Simmons v Comcare

Case [2013] FCA 484

FEDERAL COURT OF AUSTRALIA

Simmons v Comcare [2013] FCA 484

Citation: Simmons v Comcare [2013] FCA 484
Appeal from: Michael Simmons v Comcare [2012] AATA 687
Parties: MICHAEL SIMMONS v COMCARE
File number: ACD 78 of 2012
Judge: RARES J
Date of judgment: 13 May 2013
Date of orders: 23 May 2013
Catchwords: ADMINISTRATIVE LAW – statutory construction – calculation of normal weekly earnings in respect of entitlement to compensation under s 8 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – construction of ss 8(10)(a) and 8(10)(b) – where employee paid allowance pre-injury in respect of his employment – where employee after injury chooses to transfer employment to other duties with same employer for personal reasons unrelated to injury thus losing entitlement to allowance – whether relevant employment was as employee of Commonwealth or employee in particular type of employment by Commonwealth – where employee subsequently ceases to be employed by Commonwealth – whether allowance should have been excluded from calculations of normal weekly earnings receivable if employee had continued to be employed by Commonwealth in employment in which he was engaged at either the date of injury or the date of ceasing to be employed by Commonwealth
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8, 19
Cases cited: John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 applied
Minister for Immigration v Wu Shan Liang (1995) 185 CLR 259 applied
Date of hearing: 13 May 2013
Place: Canberra
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 39
Counsel for the Appellant: Mr L T Grey
Solicitor for the Appellant: Pappas, J. - Attorneys
Counsel for the Respondent: Mr P Woulfe
Solicitor for the Respondent: Australian Government  Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 78 of 2012
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

MICHAEL SIMMONS
Appellant
AND:

COMCARE
Respondent

JUDGE:

RARES J

DATE OF ORDER:

23 MAY 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The decision of the Administrative Appeals Tribunal (the Tribunal) given on 5 October 2012 be set aside and in lieu thereof:

(1)it be declared that the calculation of the applicant’s normal weekly earnings (NWE) under s 8(1) to (9G) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act):

(a)for the purposes of s 8(10)(a) of the Act, for the period from 8 February 2010 to 2 August 2011, not include the Operational Response Group Allowance (the ORG Allowance);

(b)for the purposes of s 8(10)(b)(i) of the Act, as at 3 August 2011, include the ORG Allowance; and

(c)for the purposes of s 8(10)(b)(ii) of the Act, as at 3 August 2011, not include the ORG Allowance;

(2)the matter be remitted to the respondent to calculate the applicant’s NWE from week to week in accordance with the declarations made in order 2(1) above and otherwise with the Act;

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AGLC
Simmons v Comcare [2013] FCA 484
Case
[2013] FCA 484
Decision Date

CaseChat Overview and Summary

In the matter of Simmons v Comcare, the Federal Court of Australia was tasked with determining the proper calculation of normal weekly earnings in respect of compensation entitlements under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Mr. Simmons, an employee of the Australian Federal Police, suffered an injury while working in the Operational Response Group, which entitled him to an Operational Response Group allowance. After his injury, he was reassigned to desk duties in Sydney, where he remained until he ceased employment with the Commonwealth. The central issue was whether the allowance should be included in the calculation of his normal weekly earnings for the purposes of determining his compensation entitlements under the Act. The court had to interpret sections 8(10)(a) and 8(10)(b) of the Act to resolve this question.

The court examined the background facts, noting that Mr. Simmons had chosen to remain in Sydney for personal reasons unrelated to his injury, thereby losing his entitlement to the Operational Response Group allowance. The tribunal had already determined that his decision to remain in Sydney should be taken into account when assessing his hypothetical earnings if he had not been incapacitated for work. The court found that the tribunal's decision to consider Mr. Simmons' personal choice in its assessment did not constitute an error. It was a question of fact, and the court was precluded from engaging in merits review of the tribunal's findings. The court concluded that the appeal should be allowed and directed the tribunal to recalculate Mr. Simmons' normal weekly earnings in accordance with the court's findings.

In conclusion, the Federal Court allowed the appeal and set aside the tribunal's decision. It declared that the calculation of Mr. Simmons' normal weekly earnings should exclude the Operational Response Group allowance for certain periods and include it for others, as specified in the court's order. The matter was remitted to the respondent to recalculate his earnings in line with these declarations. Additionally, the court ordered Comcare to pay Mr. Simmons' costs of the appeal. This decision clarified the interpretation of sections 8(10)(a) and 8(10)(b) of the Act in the context of compensation entitlements, emphasizing the importance of considering an employee's hypothetical actions in assessing normal weekly earnings.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal (the Tribunal) given on 5 October 2012 be set aside and in lieu thereof:

(1) it be declared that the calculation of the applicant’s normal weekly earnings (NWE) under s 8(1) to (9G) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act):

(a) for the purposes of s 8(10)(a) of the Act, for the period from 8 February 2010 to 2 August 2011, not include the Operational Response Group Allowance (the ORG Allowance);

(b) for the purposes of s 8(10)(b)(i) of the Act, as at 3 August 2011, include the ORG Allowance; and

(c) for the purposes of s 8(10)(b)(ii) of the Act, as at 3 August 2011, not include the ORG Allowance;

(2) the matter be remitted to the respondent to calculate the applicant’s NWE from week to week in accordance with the declarations made in order 2(1) above and otherwise with the Act;

(3) pursuant to s 67 of the Act, the respondent pay the applicant’s costs of the proceedings before the Tribunal as agreed or taxed.

3. The respondent pay the applicant’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It was common ground that the way in which s 8(10) operated has been authoritatively determined by the reasons of Dowsett J with who Spender J agreed in John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 particularly at 586-587 [73]-[77].BACKGROUND The background facts are not in dispute. Relevantly, the determination provided in cll 7.4 and 9.5:“7.4 ORG operational employees receiving this allowance will be required:a.To be contactable and available for immediate deployment overseas.b.To manage leave arrangements and personal commitments subject to deployment requirements. This will include cancellation of leave where operational requirements demand.c.To maintain health and fitness for deployment overseas at a level necessary for operational response. The minimal standard is the AFP National Fitness Standard. However, this may be varied by the NMIDG [National Manager International Deployment Group] at any time.d.To maintain appropriate skill levels as notified by the NMIDG at any time.e.To maintain other eligibility for employment requirements as specified in sub-clause 9.5.…9.5Payment of this allowance will not be made when ORG employees cease to be eligible and/or available for deployment. This includes but is not limited to:a.Cessation of assignment of ORG duties within Australia.b.Deployment of ORG employee overseas.c.Failure to meet medical, psychological, training and integrity assessments necessary for deployment.d.Failure to maintain the requirements specified at sub-clause 7.4 or 8.4.” (emphasis added)THE TRIBUNAL’S FINDINGS The tribunal made a number of findings which relevantly, so far as they bear on the issues in the appeal, are as follows. On 15 May 2009, Mr Simmons injured his right shoulder while he was undertaking advanced warrant training in the course of his employment in the Operational Response Group. At that time his base salary was supplemented by a number of additional entitlements including the Operational Response Group allowance. The value of the allowance was equivalent to $20,000 per annum, payable fortnightly in arrears. As a member of the Operational Response Group, Mr Simmons was required to be available for immediate deployment overseas on operational duties. The tribunal found that Mr Simmons’ shoulder injury rendered him unfit for work for a time. He obtained medical and physiotherapy treatment for the injury over the following months. Mr Simmons underwent surgery on 30 July 2009 and, then, commenced rehabilitation treatment. He had family in Sydney and was given suitable duties working three days a week for four hours a day from 31 August 2009 in Sydney premises of the Australian Federal Police. But he was, then and subsequently, subject to medical restrictions including that he could not lift objects with his right arm. On 4 November 2009, Mr Simmons attended to return to work meeting with a number of persons including Superintendent Kruger of the International Deployment Group. At that time Mr Simmons was still working in the Sydney office, performing desk-based administrative duties and his medical restrictions remained unchanged. He was told that he should return to Canberra from Sydney to undertake suitable duties in the Operational Response Group, Tactical Intelligence Work Team, from 16 November 2009, but he expressed reservations about doing so. Return to work plans were prepared for him subsequently, but he continued to be permitted to undertake rehabilitation while performing suitable duties based in the Sydney premises. The Tribunal found that, at that time, it was quite clear that Mr Simmons did not want to return to duties in Canberra, and Supt Kruger authorised him to continue with his duties in Sydney, pending an independent assessment of his condition.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal had to address the hypothetical question in s 8(10)(a) by a consideration of the facts, including what Mr Simmons would have done had he not been incapacitated for work. He remained employed by the Commonwealth up until about August 2011. I see no error in the tribunal having taken into account his decision, for personal reasons, to leave the Operational Response Group in arriving at the assessment of the earnings that he would receive if he were not incapacitated for work. This was a question of fact for the Tribunal and it would require the Court to engage in merits review to come to some other conclusion. The latter course is not open.CONCLUSION For these reasons, I am of opinion that the appeal must be allowed. The parties should bring in short minutes of orders that include the amount which should be declared as Mr Simmons’ normal weekly earnings having regard to these reasons and providing that Comcare should pay his costs of the appeal.

Ratio Decidendi

Legal Principle Established

The background facts are not in dispute. Relevantly, the determination provided in cll 7.4 and 9.5:“7.4 ORG operational employees receiving this allowance will be required:a.To be contactable and available for immediate deployment overseas.b.To manage leave arrangements and personal commitments subject to deployment requirements. This will include cancellation of leave where operational requirements demand.c.To maintain health and fitness for deployment overseas at a level necessary for operational response. The minimal standard is the AFP National Fitness Standard. However, this may be varied by the NMIDG [National Manager International Deployment Group] at any time.d.To maintain appropriate skill levels as notified by the NMIDG at any time.e.To maintain other eligibility for employment requirements as specified in sub-clause 9.5.…9.5Payment of this allowance will not be made when ORG employees cease to be eligible and/or available for deployment. This includes but is not limited to:a.Cessation of assignment of ORG duties within Australia.b.Deployment of ORG employee overseas.c.Failure to meet medical, psychological, training and integrity assessments necessary for deployment.d.Failure to maintain the requirements specified at sub-clause 7.4 or 8.4.” (emphasis added)THE TRIBUNAL’S FINDINGS The tribunal made a number of findings which relevantly, so far as they bear on the issues in the appeal, are as follows. On 15 May 2009, Mr Simmons injured his right shoulder while he was undertaking advanced warrant training in the course of his employment in the Operational Response Group. At that time his base salary was supplemented by a number of additional entitlements including the Operational Response Group allowance. The value of the allowance was equivalent to $20,000 per annum, payable fortnightly in arrears. As a member of the Operational Response Group, Mr Simmons was required to be available for immediate deployment overseas on operational duties. The tribunal found that Mr Simmons’ shoulder injury rendered him unfit for work for a time. He obtained medical and physiotherapy treatment for the injury over the following months. Mr Simmons underwent surgery on 30 July 2009 and, then, commenced rehabilitation treatment. He had family in Sydney and was given suitable duties working three days a week for four hours a day from 31 August 2009 in Sydney premises of the Australian Federal Police. But he was, then and subsequently, subject to medical restrictions including that he could not lift objects with his right arm. On 4 November 2009, Mr Simmons attended to return to work meeting with a number of persons including Superintendent Kruger of the International Deployment Group. At that time Mr Simmons was still working in the Sydney office, performing desk-based administrative duties and his medical restrictions remained unchanged. He was told that he should return to Canberra from Sydney to undertake suitable duties in the Operational Response Group, Tactical Intelligence Work Team, from 16 November 2009, but he expressed reservations about doing so. Return to work plans were prepared for him subsequently, but he continued to be permitted to undertake rehabilitation while performing suitable duties based in the Sydney premises. The Tribunal found that, at that time, it was quite clear that Mr Simmons did not want to return to duties in Canberra, and Supt Kruger authorised him to continue with his duties in Sydney, pending an independent assessment of his condition.