Shillingford and Comcare (Compensation)

Case [2019] AATA 4972

Shillingford and Comcare (Compensation) [2019] AATA 4972 (26 November 2019)

Division:GENERAL DIVISION

File Number(s):    2018/0159

Re:Kym Shillingford

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:                Deputy President Gary Humphries AO

Date:26 November 2019

Place:Canberra

The reviewable decision dated 8 November 2017 is affirmed.

............................................................

Deputy President Gary Humphries AO

Catchwords

COMPENSATION – incapacity for work – calculation of normal weekly earnings – where Applicant was employed on a non-ongoing basis with irregular or intermittent duties – whether arrangement was a contract of employment – where broader industry in which the Applicant was employed experienced a major downturn – decision under review affirmed

Legislation
Public Service Act 1999
Safety, Rehabilitation and Compensation Act 1988

Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Australian Education Union v Department of Education and Children's Services [2012] HCA 3
Ball v Hunt [1912] AC 496
Bortolazzo v Comcare (1997) 75 FCR 385
Certain Lloyd’s Underwriters Subscribing to Contract No1H00AAQS v Cross [2012] HCA 56
Comcare v Burgess [2007] FCA 1663
Comcare v Simmons [2014] FCAFC 4
Comcare v Thompson (2000) 100 FCR 375
Dunstan v Comcare (2014) 139 ALD 691
Holis v Vabu Pty Ltd [2001] HCA 44
John Holland Group Pty Ltd v Robertson [2010] FCAFC 88
Lysons v Andrew Knowles & Sons Ltd [1901] AC 79
Nash v Sunshine Porcelain Potteries Ltd (1960) 101 CLR 353
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

REASONS FOR DECISION

Deputy President Gary Humphries AO

26 November 2019

INTRODUCTION

  1. Mr Kym Shillingford has an accepted claim for open fracture of rib(s) (right) and right partial tear of rotator cuff sustained on 23 February 2017. The accepted injury occurred while he was working as a Food Safety Meat Assessor (FSMA) with the Department of Agriculture and Water Resources (the Department).

  2. Mr Shillingford received weekly incapacity payments pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) until 11 September 2017, when Comcare made a determination denying liability for ongoing incapacity payments pursuant to s 8(10) of the Act. Following a request for reconsideration of this determination, Comcare issued a reviewable decision dated 8 November 2017 in which it affirmed the cessation of incapacity payments, but varied the determination to reflect that this was done pursuant to s 19, rather than s 8. Mr Shillingford has sought merits review by the Tribunal of that decision.

  3. At a directions hearing by telephone held on 16 May 2019, the parties advised the Tribunal that the sole issue for determination is what, if any, entitlement Mr Shillingford has under ss 19(2) and 8(10) of the Act. The matter then proceeded to a hearing on 28 August 2019 at which, after brief opening submissions, the parties and Tribunal were minded to determine this matter on the papers.

    FACTS

  4. Mr Shillingford is 64 years of age. Upon finishing school Mr Shillingford trained as a butcher and worked in that trade for a period, and…

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Details
AGLC
Shillingford and Comcare (Compensation) [2019] AATA 4972
Case
[2019] AATA 4972
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Shillingford against a decision by Comcare regarding his entitlement to incapacity payments under the relevant Act. Mr Shillingford, a 64-year-old former butcher and meat inspector, sustained a compensable injury on 23 February 2017 while working as a casual, non-ongoing APS employee for the Department. The injury resulted in him being incapacitated for work, and Comcare had determined his normal weekly earnings. The core dispute before the Administrative Appeals Tribunal (AAT) was the calculation of any entitlement Mr Shillingford might have under sections 19(2) and 8(10) of the Act, particularly in light of his employment status and the downturn in the meat inspection industry.

The legal issues before the Tribunal were whether Mr Shillingford was an employee of the Commonwealth on 11 September 2017, and if so, what his entitlement to incapacity payments would be under section 8(10) of the Act. This involved determining the nature of his engagement with the Department, particularly given his casual and non-ongoing employment status, and considering the impact of industry-wide closures on his potential for future employment. The Tribunal also had to consider Mr Shillingford's argument that his engagement, even if accepted, did not constitute a contract of employment in substance.

The Tribunal reasoned that Mr Shillingford was indeed an employee of the Commonwealth on 11 September 2017, based on offers of engagement made under section 22(2)(c) of the Public Service Act 1999. These offers clearly stipulated that the employment was for irregular or intermittent duties, with no obligation to offer work or for Mr Shillingford to accept it, and no expectation of regular or ongoing employment. Despite Mr Shillingford's injury and the subsequent closure of abattoirs in his region, which meant no work would have been offered to him even if he had been fit, the Tribunal found that his entitlement to incapacity payments under section 8(10)(a) would be nil. This was because the calculation under that section, when applied to his circumstances, resulted in a nil entitlement.

The Tribunal affirmed the reviewable decision dated 8 November 2017.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At a directions hearing by telephone held on 16 May 2019, the parties advised the Tribunal that the sole issue for determination is what, if any, entitlement Mr Shillingford has under ss 19(2) and 8(10) of the Act. The matter then proceeded to a hearing on 28 August 2019 at which, after brief opening submissions, the parties and Tribunal were minded to determine this matter on the papers.FACTS Mr Shillingford is 64 years of age. Upon finishing school Mr Shillingford trained as a butcher and worked in that trade for a period, and later as a meat inspector. From 2011 he was employed on a casual basis as a non-ongoing APS employee pursuant to s 22(2)(c) of the Public Service Act 1999 (the PSA). He had various short engagements as a meat inspector with the Department. He lives in Corowa, New South Wales. Mr Shillingford was working at an abattoir in Cobram, Victoria on 23 February 2017 pursuant to his employment when he tripped and sustained his compensable injury of open fracture of rib(s) (right) and right partial tear of rotator cuff.[1] He went off work the following day and has not been engaged by the Department since then. There was no dispute before the Tribunal that the injury resulted in him becoming incapacitated for work. [1] The use of italics in this decision generally indicates a direct quotation. By a determination dated 9 May 2017 Comcare decided that Mr Shillingford’s normal weekly earnings pursuant to s 8 of the Act were $1,362.88 gross per week for normal weekly hours of 22.23 hours per week. That calculation is also not in dispute in these proceedings. The Department approved a rehabilitation plan for him on 4 May 2017. Pursuant to that plan Mr Shillingford was assessed for determining his fitness for rehabilitation by Dr Phillip Haynes, an occupational physician, on 27 July 2017. Dr Haynes diagnosed right shoulder rotator cuff tears, tendinosis and bursitis, which would cause restrictions on lifting of more than 5kg and undertaking work involving any forceful pulling or pushing using his arm. The rehabilitation program was closed on 3 October 2017, at which time it was noted that Mr Shillingford was unable to achieve his Rehabilitation goal of pre-injury hours and duties due to his pre-injury employment site ceasing trade. Comcare tendered a statement of Mr Dale Eyers, who held the position of Assistant Director, Veterinary and Export Meat Services South with the Department. Mr Shillingford did not object to the Tribunal considering Mr Eyers’ statement in the absence of his oral evidence. In the statement, he said that abattoirs at Deniliquin and Cobram closed in March 2017. The only abattoirs operating in the region around Corowa were at Wodonga and Tongala, but permanent (i.e. not casual, like Mr Shillingford) FSMAs were available to work at those locations. He said:As a result of the situation… no work would have been offered to Mr Shillingford after March 2017 (even if he had been fit to work).Though not explicitly stated, it appears as if the situation to which he refers includes a general downturn in the industry at that time, and since.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Applying this approach in the present proceedings, Mr Shillingford’s entitlement pursuant to s 8(10)(b)(i) would, again, be nil.CONCLUSION The reviewable decision dated 8 November 2017 is affirmed.

Ratio Decidendi

Legal Principle Established

For the reasons provided below, the Tribunal finds that Mr Shillingford was an employee of the Commonwealth (through the Department) on 11 September 2017. His entitlement to incapacity compensation is therefore determined by s 8(10)(a). It finds, applying the calculation in that paragraph, that Mr Shillingford’s entitlement to incapacity payments would be nil.CONSIDERATIONWas Mr Shillingford employed by the Commonwealth on 11 September 2017? Mr Shillingford was made an Offer of Engagement by the Department on 5 June 2015. This was by means of a letter bearing that date, in which he was advised:…This offer of engagement is made under section 22(2)(c) of the Public Service Act 1999 (the Act) and is for irregular or intermittent (casual duties). If you accept this offer you will be placed into a pool of casual employees and work may be offered to you during peak periods and other periods when the department is unable to meet its work demands through its ongoing staff.The department is under no obligation to offer you work and you are under no obligation to accept work that may be offered. You should not have an expectation of regular employment hours or ongoing employment with the department… [emphasis in original]The letter went on to stipulate that the terms and conditions of your employment would be governed by the PSA, including the APS [Australian Public Service] Values, the APS Code of Conduct and the Employment Principles to which the PSA refers. It appears that this offer of employment was the basis on which he was working at Cobram on 23 February 2017 when he was injured. On 9 June 2017, after his injury and while he was not working, the Department wrote to Mr Shillingford again, making him an offer for non-ongoing (casual) employment as a Food Safety Meat Assessor…in accordance with section 22 (1) of the PSA. The letter stipulated:…If you accept this offer you will be placed into a pool of casual employees and work may be offered to you during peak periods and other periods when the department is unable to meet its work demands through its ongoing staff. The department is under no obligation to offer you work and you are under no obligation to accept any work that may be offered. You should not have an expectation of regular employment hours or ongoing employment with the department. Work will be offered according to departmental needs, which may be irregular or at short notice. The Tribunal had before it a copy of what appeared to be an undated electronic document entitled Assessment Form – Food Safety Meat Assessor. The personal details outlined in the document are Mr Shillingford’s. The penultimate question in the form – Do you accept this offer of employment? – was answered Yes, I accept the offer of employment and agree to the terms and conditions described in the Notice of Engagement… Comcare asserted that the letter of 9 June 2017 making an offer of employment was the basis on which Mr Shillingford remained employed with the Department until 6 July 2018. That assertion was not challenged by Mr Shillingford, though he disputed that in fact he was employed beyond 24 February 2017. However, I do not understand him to be asserting that he did not accept the offer made in the letter of 9 June 2017. Rather, I understand him to be submitting that the arrangement entered into pursuant to that letter was not, in substance, a contract of employment. Indeed, in his submissions to the Tribunal he argued that the engagement pursuant to the letter of 5 June 2015 was also not actual employment (at least not after 23 February 2017).