Slater and Telstra Corporation Limited

[2010] AATA 828

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 828

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2010/0824

GENERAL ADMINISTRATIVE DIVISION		)
Re		GORDON SLATER  Applicant

And TELSTRA CORPORATION LIMITED
Respondent

DECISION

Tribunal   Mr M Hyman, Member

Date  26 October 2010

Place  Canberra

Decision  The decision under review determining the Applicant’s compensation entitlements since 1 June 2002 as nil is affirmed. 

....................[sgd].....................

Mr M Hyman, Member 

CATCHWORDS

COMPENSATION – calculation of Normal Weekly Earnings (NWE) – adjustments of Normal Weekly Earnings – whether overtime was required and regular – failure to seek employment – reasonableness of failure to seek employment - amount Applicant was able to earn (AE) – adjustments for lump sum benefits (superannuation payout) - entitlement to compensation – decision under review affirmed.

PRACTICE AND PROCEDURE – Powers of the Tribunal to determine the scope of a matter under review – scope of matter under review must include issues decided in reviewable decision.

Administrative Appeals Tribunal Act 1975 ss 25, 33

Safety, Rehabilitation and Compensation Act 1988 ss 4, 8, 9, 19, 21, 62

Social Security Act 1991

Re Slater and Telstra Corporation Ltd. [2010] AATA 274

Re Slater and Telstra Corporation Ltd. [2009] AATA 434; (2007) 45 AAR 111

Re Slater and Telstra Corporation Ltd. [2007] AATA 1085

Re Slater and Telstra Corporation Ltd. [2006] AATA 533

Re Slater and Telstra Corporation Ltd. [2005] AATA 956; (2005) 41 AAR 458

Re Slater and Telstra Corporation Ltd. [2005] AATA 527; (2005) 40 AAR 369

Re Slater and Telstra Corporation Ltd. [2004] AATA 1207

Re Slater and Telstra Corporation Ltd. [2004] AATA 1010; (2004) 84 ALD 158

Re Slater and Telstra Corporation Ltd. [2002] AATA 597

Re Slater and Telstra Corporation Ltd. [1999] AATA 849

Re Slater and Telstra Corporation Ltd. [1998] AATA 176

Telstra Corporation Ltd. v Slater [2001] FCA 149

Slater v Telstra Corporation Ltd. [2001] FCA 1417; 115 FCR 34

Slater v Telstra Corporation Ltd. [2004] FCA 476

Re Sleiman and Companies Auditors and Liquidators Disciplinary Board [2007] AATA 1892; (2007) 98 ALD 170; (2007) 46 AAR 374

Re Quinn and Australian Postal Corporation [1992] AATA 668

Re Zarb and Comcare (1997) 25 AAR 344

Telstra v Peisley [2006] FCAFC 79; (2006) 151 FCR 275

Comcare v Pires [2005] FCA 747; (2005) 143 FCR 104; 86 ALD 592

Re Farah and Australian Postal Corporation [1997] AATA 774

Re Keen and Telstra Corporation [2003] AATA 585

Re Roberts and Comcare  [2008] AATA 495

Re Sollazzo and Comcare [2000] AATA 65

Re Sambastian and Australian Postal Corporation [2010] AATA 141

Martin v Australian Postal Corporation [2000] FCA 1646

Re Diamante and Telstra Corp Ltd [2009] AATA 878

Re Fagan and Comcare [2005] AATA 533

Telstra Corp Ltd v Warner [1994] FCA 1312; 20 AAR 259

REASONS FOR DECISION

1.      Mr Slater, the applicant, injured his knee in 1996 while working for Telstra installing cable television. He received compensation for the injury, and suffers an ongoing incapacity which has been assessed against the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) as less than total. He has attempted to obtain ongoing compensation payments under the Act. Most recently, In January 2010, Telstra’s insurer determined that his compensation entitlements since 1 June 2002 were nil. Mr Slater has sought a review of that decision.

History to Mr Slater’s claim

2.      Mr Slater’s claim has a long history. He worked first as a refrigeration mechanic in the UK and after migrating to Australia took up contract work for Telstra (the Respondent) installing cable television. On 11 July 1996 he injured his knee while working under contract to Telstra. Telstra accepted liability for the injury and paid compensation. In a succession of decisions by the Tribunal[1] and on some aspects by the Federal Court,[2] Mr Slater’s compensation entitlements were determined. Mr Slater was partially incapacitated for work but fit for full time work in suitable employment. A decision of the Tribunal in 2002 determined the extent of compensation payable to Mr Slater up to 1 June 2002. Mr Slater appealed this decision to the Federal Court, unsuccessfully.[3]

[1] Re Slater and  Telstra [1998] AATA 176; Re Slater and  Telstra [1999] AATA 849; Re Slater and  Telstra [2002] AATA 597.

[2] Telstra v Slater [2001] FCA 149; Telstra v Slater [2001] FCA 1417.

[3] Slater v Telstra [2004] FCA 476.

3. Since that time Mr Slater has attempted to re-agitate some matters from the period before 1 June 2002, as well as pursue his entitlements on and after that date. Through a series of decisions, the Tribunal decided that Mr Slater should not be allowed to re-litigate matters already decided. In 2007 the Tribunal, exercising its powers under subsection 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) decided that he should only be able to make further applications to the Tribunal if granted leave to do so.[4] In 2005 Senior Member McCabe used the Tribunal’s powers under subsection 25(4A) of the AAT Act to limit the focus of the proceedings agitated by Mr Slater to the question of whether his condition had deteriorated.[5] In 2009 Senior Member McCabe decided that it had not, but the terms of the reviewable decision prevented him from determining whether compensation was payable to Mr Slater since 1 June 2002.[6]

[4] Re Slater and Telstra [2007] AATA 1085.

[5] Re Slater and Telstra [2005] AATA 527.

[6] Re Slater and Telstra [2009] AATA 434.

4. Following that decision, on 13 January 2010 Telstra’s insurer, Allianz Australia Insurance Ltd, determined Mr Slater’s compensation entitlements since 1 June 2002, setting his compensation entitlements at zero. This was reviewed and affirmed on 22 February 2010, thus establishing a ‘reviewable decision’ in terms of section 62 of the Safety, Rehabilitation and Compensation Act 1988. On 1 March 2010 Mr Slater applied for review of that decision by the Tribunal. In April 2010 Member Webb  exercised the  powers of the Tribunal under section 25(4A) of the AAT Act, and directed that the scope of the review should be limited to the determination of normal weekly earnings (NWE).[7]

[7] Re Slater and Telstra [2010] 274.

5.      That history, itself only partial, illustrates Mr Slater’s determination to ensure that he receives his rights. They also illustrate Mr Slater’s attempts to pursue matters that are already settled. The application of cause of action estoppel to the Tribunal is contested and uncertain[8] but it is clear that the Tribunal has power under subsection 25(4A) of the AAT Act to determine the scope of a review and under section 33 to control its procedure.

[8] See for example ReQuinn and Australian Postal Corporation [1992] AATA 668.

6.      Under subsection 25(4A) of the AAT Act the Tribunal may limit questions of fact, evidence and issues to be considered in a given matter. In Re Sleiman and Companies Auditors and Liquidators Disciplinary Board[9] Senior Member Taylor noted that the exercise of powers under subsection 25(4A) was not dependent on the agreement of the parties, nor even on their having agreed on the issues before the Tribunal, but that the powers acted to give effect to the objective of the Tribunal set by section 2A (that review should be “fair, just, economical, informal and quick”) but not to defeat that objective: “[t]hose powers could not be used to justify orders precluding effective review of decisions falling within the Tribunal’s proper review jurisdiction.”[10] In the present instance, Member Webb directed that the Tribunal not consider any arguments about matters already decided in previous proceedings. In particular, matters that are not to be considered include Mr Slater’s entitlements under section 19 of the SRC Act prior to 1 June 2002, his fitness for employment, what amounts to suitable employment, and the relevance of the Queensland Clerks Award in the period following 1 June 2002.[11] Facts found in earlier proceedings are to stand.

[9] [2007] AATA 1892.

[10] Ibid, at [12].

[11] Re Slater and Telstra [2010] 274.

Issues

7.      The reviewable decision concerns the calculation of Mr Slater’s compensation entitlements. This requires a calculation of NWE for the period 1 June 2002 to 1 July 2010. Further, in determining compensation under section 19 of the SRC Act, the formula requires, in Mr Slater’s case, two other calculations to be made. The first is a calculation of the amount Mr Slater would have been able to earn (AE), if he had been in employment. The other involves calculating the deduction, if any, in accordance with section 21 of the Act, to take account of the superannuation payout made to Mr Slater in 1999. I understand Member Webb’s direction not to be intended to exclude those elements of the calculation of compensation. Those aspects were determined in the reviewable decision of 22 February 2010 and have not previously been subject to review. The AE amount is decided by what Mr Slater has done since 1 June 2002 to seek or obtain employment. Previous examination of that question for the period before 1 June 2002 cannot inform the decision before me now, in respect of the period after that date.

8.      Accordingly, the issues before the Tribunal are:

(a)What were Mr Slater’s normal weekly earnings (NWE) for 1 June 2002 to 1 July 2010?

(b)Did Mr Slater fail to seek employment during the period from 1 June 2002 to 1 July 2010?

(c)If so, was it reasonable for him not to seek employment?

(d)Are there any other issues that should be taken into account in deciding what Mr Slater would have been able to earn (AE)?

(e)Taking into account the answers to (b) (c) and (d), what was Mr Slater’s AE for 1 June 2002 to 1 July 2010?

(f)What deduction, if any, must be made to account for the superannuation payout to Mr Slater in 1999?

(g)Is Mr Slater entitled to compensation and if so, at what level?

9.      As it is possible that some other interpretation of Member Webb’s direction limiting the scope of the current proceedings might be made, I invited further submissions after the hearing on the issues identified above. Telstra made no further submission; Mr Slater made a further submission on 1 October 2010.

10.     The matter was heard by telephone on 17 August 2010. Mr Slater submitted his evidence-in-chief in writing (Exhibit A1), and referred to extensive documentation submitted on 17 May 2010 (Exhibits AB1-AB78); 19 June 2010 (Exhibits AC1-AC11); and 4 May 2010 (Exhibits AD1-AD3) as well as documents submitted by Telstra under section 37 of the AAT Act. Telstra submitted a report by Ms Aelan Bradley of Australian Personnel Management (Exhibit R1), and Mr Slater cross-examined Ms Bradley on that report. Counsel for Telstra also referred to some of the ‘T-documents’, in particular transcripts of earlier proceedings, wage level information from the Queensland Government, and records relating to Mr Slater’s employment with Telstra.

Legislative framework

11.     Section 8 of the Act sets out how NWE is calculated. For current purposes, the calculation set out in subsection 8(1) is that NWE is the average hours worked each week by the employee, multiplied by the ordinary hourly rate of pay. Subsection 8(2) provides for the NWE calculation to be adjusted where ”the employee is required to work overtime on a regular basis” by adding an amount arrived at by multiplying the average overtime hours worked each week by the overtime hourly rate of pay. Subsection 8(9B) provides for the NWE figure, for an employee whose employment has ceased, to be adjusted by an indexed amount specified in the regulations, and subsection 8(9C) sets the indexation date for that purpose as 1 July each year.

12.     Section 9 of the Act sets the relevant period for the calculation of the base rate of NWE as the two weeks leading up to the date of the injury.

13.     Section 19 sets out the calculation of compensation for injuries resulting in incapacity. Weekly compensation is calculated as NWE-AE, where AE is the amount the employee is either able to earn in ”suitable employment” or else earns in the week. After a period of 45 times the employee’s normal weekly hours the formula is calculated under subsection 19(3) by virtue of subsection 19(2A). Under that subsection the same formula applies but NWE is multiplied by an ‘adjustment percentage’ that reduces compensation depending on the extent to which the employee is employed. If the employee is unemployed, the adjustment percentage is 75%.

14.     Subsection 19(4) provides that in determining AE under subsection 19(3) the decision-maker must have regard to factors relating to the employee’s efforts to find and engage in employment. Relevantly, those factors include where the employee failed to seek suitable employment, the decision-maker should take into account the amount the employee ‘could reasonably be expected to earn in such employment’ if so engaged (paragraph 19(4)(e)); in paragraph (f), whether it was ‘reasonable in all the circumstances’ for the employee not to seek employment; and in paragraph (g) ”any other matter [the decision-maker] considers relevant.”

15.     Section 21 deals with the reduction of compensation calculated under section 19 to take account of interest on a lump sum benefit received under a superannuation scheme. Under subsection 21(3), for current purposes, the amount of compensation is the amount worked out under section 19 less the sum of the weekly interest on the lump sum and 5% of the employees normal weekly earnings. Subsection 21(3) also provides for the calculation of weekly interest on the lump sum by multiplying the amount of the lump sum benefit by a specified rate, and then dividing by 52. Subsection 21(5) allows the Minister to specify a rate for that purpose.

16.      Section 4 includes a definition of suitable employment, as follows:

suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

(a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

(i)the employee’s age, experience, training, language and other skills;

(ii)the employee’s suitability for rehabilitation or vocational retraining;

(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and

(iv)any other relevant matter; and

(b)in any other case—any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).

17.     Section 5 defines ”employee” to include a contractor to a corporation such as Telstra, under certain circumstances. It is common ground that Mr Slater is covered by the Act, and in these reasons I use ‘employee’ to include Mr Slater.

Consideration

What were Mr Slater’s normal weekly earnings (NWE) for 1 June 2002 to 17 August 2010?

18.     Telstra’s submission of 12 August 2010 includes proposed figures for NWE for the period 1 June 2002 up to and including the year beginning 1 July 2010. The starting point for the preparation of this table – a figure for NWE on 20 December 2001 - was provided to Mr Slater and the Tribunal under a letter from Telstra dated 24 May 2010. In that letter Telstra noted that it had lost the calculations on which the NWE figures in the determination of 13 January 2010 had been based (and therefore those covered by the reviewable decision). The figure now submitted was offered in place of those lost as a basis for a new calculation. The starting point of $801.36 differed slightly (in Mr Slater’s favour) from the earlier figure of $801.24.

19.     In a letter of 26 May 2010, Mr Slater accepted the revised figure as a basis for NWE calculations, subject to the calculations being redone using this starting point, and subject also to his being able to ask questions regarding these calculations in the hearing. In the event, Mr Slater did not raise any matters concerning these figures, and the table submitted by Telstra on 12 August 2010, which was generated using the same indexation parameters as that in the determination of 13 January, represents common ground between the parties, except in one respect: Mr Slater has consistently maintained that he is entitled to recognition of his overtime for Telstra in the calculation of NWE.

20.     When this issue was decided for the period up to 1 June 2002, the interpretation of section 8(2) followed Re Zarb and Comcare[12] (Zarb) which adopted a strict, indeed narrow, reading of the phrase ‘required to work overtime on a regular basis’. Since that time, however, the interpretation of the phrase has been clarified and in some senses relaxed through two Federal Court cases, Telstra v Peisley[13] (Peisley) and Comcare v Pires[14] (Pires). In Peisley the court rejected the conclusion in Zarb that section 8(2) required that overtime worked be symmetrical or uniform. It agreed with the Tribunal below, that it was the requirement to do overtime that had to be regular, not whether the periods of overtime were regular in length. In Pires, the issue was whether overtime which was not regular or required could be included in the calculation of NWE under subsection 8(1). Jacobson J held that the drafting of subsections 8(1) and 8(2) meant that only required, regular overtime could be used to calculate NWE, using the formula provided in subsection 8(2).

[12] (1997) 25 AAR 344.

[13] [2006] FCAFC 79.

[14] (2005) 143 FCR 104.

21.     The contract under which Mr Slater worked as a fixed term employee for Telstra[15]  includes as one of the conditions of employment in attachment one to the contract the following provision: ”All employees shall be liable to be called for duty at any time they are required, however, overtime will be paid for any work outside the normal hours of duty”. The analysis in Zarb, which has not been challenged on this point, concludes that, following the ordinary sense of the word, ‘required’ means ‘the imposition in an authoritative fashion of an obligation upon the employee to work overtime’. The terms of the condition in the contract show that Telstra required contractors to be available to work overtime, but the condition stops short of being an actual requirement for them to do such work: a conclusion that they were required to work overtime would need to be supported by evidence about what Telstra’s actual practice was, for example, whether it obliged contractors to work, or allowed them discretion whether to work or not, or contacted several and allowed the most eager to do the work available. I note that in 2002 Member Kenny also found that the evidence before him was inadequate to support a finding that the overtime was ”required”.[16]

[15] Exhibit AD1, submitted to the Tribunal under Mr Slater’s letter of 4 May 2010.

[16] Re Slater and Telstra [2002] 597 at [62].

22.     It may also be questioned whether the overtime worked was in fact “regular”. Mr Slater’s payment records from 1995-96[17] show that in most fortnights leading up to his injury he worked overtime, although the number of occasions and the number of hours worked varied considerably. The legislation demands that overtime be both required and regular to be included in NWE under subsection 8(2). As it has not been established that the overtime was required, I do not need to consider whether it was sufficiently regular to meet the needs of the Act.

[17] T7.

23.     I find that the requirements of required regular overtime, set by subsection 8(2), have not been met. Pires confirms that only required, regular overtime can be factored into NWE calculations. Mr Slater’s NWE are therefore set by subsection 8(1).

24.     Applying subsection 8(1) of the Act, Mr Slater’s NWE amounts are as follows:

Period	NWE
1 June 2002 – 30 June 2002	$801.36
1 July 2002 – 30 June 2003	$828.60
1 July 2003 – 30 June 2004	$856.77
1 July 2004 – 30 June 2005	$888.47
1 July 2005 – 30 June 2006	$919.57
1 July 2006 – 30 June 2007	$958.19
1 July 2007 – 30 June 2008	$996.52
1 July 2008 – 30 June 2009	$1,038.27
1 July 2009 – 30 June 2010	$1,081.97

Did Mr Slater fail to seek employment during the period from 1 June 2002 to 1 July 2010?

25.     Subsection 19(4) of the SRC Act requires the decision-maker (here the Tribunal) to have regard, in determining the amount an employee is able to earn per week (AE), to the matters set out in paragraphs (a) to (g) of that subsection. Paragraphs (a) to (d) are not relevant to Mr Slater’s case, as he is not in employment, nor, it appears, has an offer of employment been made to him. Paragraph (e) provides that where after becoming incapacitated for work the employee has failed to seek suitable employment, the decision-maker must have regard to the amount the employee could reasonably be expected to earn in suitable employment. If he has failed to seek employment, this paragraph is likely to be a dominant consideration in determining Mr Slater’s AE figure, unless paragraphs (f) or (g) apply.

26.     Telstra commissioned a report by Advanced Personnel Management (APM), an employment company. That report, prepared by Ms Aelan Bradley, a Senior Rehabilitation Officer, was tendered in evidence (Exhibit R1). Ms Bradley was cross- examined by Mr Slater during the telephone hearing.

27.     The APM report reviewed Mr Slater’s employment history and the medical records, and then considered the availability of employment in south-east Queensland over the period from 1 June 2002 to April 2010. South-east Queensland is a rapidly growing area, indeed Australia’s fastest growing metropolitan area, according to the report. Over the period in question the unemployment rate for males moved from 7.2% in June 2002 to a low of 3.1% in June 2007, rising to 5.9% in June 2009 and falling again slightly to 5.5% in April 2010. The report concluded that the availability of employment to Mr Slater would have increased over the period. The report also surveyed the weekly earnings of males in employment and quoted Australian Bureau of Statistics biennial figures for average weekly cash earnings for full-time male employees, for May 2004, May 2006 and August 2008, for the occupations considered suitable for Mr Slater by the Tribunal in 2002[18] (console operator, real estate salesperson, occupational health and safety officer, mechanical engineering technician, mechanical engineering associate, building inspector/surveyor, teacher of technical and further education, and clerical worker). The report then considered the availability of clerical positions in south-east Queensland, and found that in 2009-10 an estimated 21,733 positions were available in the Brisbane, Gold Coast and Logan City areas. Rates of pay under the Clerical Employees Award State, Level 5, 2^nd year were listed for the period 1 September 2001-1 September 2006; for the Clerical Employees Award – State 2002, Level 5 Second Year of Service, NAPSA (Notional Agreement Preserving a State Award) for 1 December 2006 to 1 October 2008; and for Clerks Private Sector Award 2010 under the new Modern Awards. These rates, in Telstra’s contention, establish what Mr Slater would have been able to earn – that is, his AE – over the period since 1 June 2002.

[18] Re Slater and Telstra [2002] AATA 597 at [50-51].

28.     The report also surveyed the availability of clerical and administrative positions in south-east Queensland, based mainly on internet recruitment sites and services, noting however that internet sources do not exhaust available opportunities and vacancies. The report generally finds large numbers of vacancies in the clerical/administrative area, and offers additional information regarding the availability of services that can assist a prospective employee, including one with a disability, to find a position. The report also suggests that positions listed as available by Russo Recruitment, the firm chiefly relied on by Mr Slater, are not indicative of the positions more generally available in the area.

29.     The report concludes that clerical/administrative employment for males has generally increased over the period, as have earnings in those occupations.

30.     Mr Slater supplied material showing that from June 2009 he approached various organisations seeking or enquiring about employment. The first of these organisations appear to have been in the UK, but from October 2009 Mr Slater focused his efforts on Australia, seeking employment through recruitment companies Russo Recruitment, LSA Australia and Workwisepersonnel Recruitment Agency. He also submitted printouts of online job searches through Adecco Australia, Seek, Sarina Russo Job Access and the Australian Government site, Australian JobSearch. In addition, he sought employment through Telstra itself.[19]  Some of these approaches were met with no response; others yielded letters or emails advising that no suitable positions were available.

[19] Exhibits A38-A60.

31.     The scheme of the Act is that a person who has suffered a work related injury is expected to return to suitable employment when able to do so, even if to a different kind or level of work. The Act makes provision for differing levels of compensation depending on the persistence and willingness an injured employee has shown in returning, or seeking to return, to work. Mr Slater has submitted no evidence of any attempt to obtain employment for the period 1 June 2002 to October 2009. In the hearing before Senior Member McCabe in 2009, the transcript of which is before me, he admitted that he had not sought employment in Australia for nine or ten years.[20] From 1 June 2002 to October 2009, on the evidence before me, he certainly failed to seek employment.

[20] T33, p19, p20.

32.     From October 2009 to March 2010 Mr Slater sent material to various employment agencies and the like, but it is by no means clear that he did so in a genuine attempt to find employment. The wording of many of these approaches (eg ”do I have the necessary qualifications for a clerical or administrative position?”) seem designed to bolster Mr Slater’s case that no suitable employment was available to him, that is, he was attempting to satisfy paragraph (f) of subsection 19(4) (that it was reasonable for him not to seek work) rather than paragraph (e). A flurry of applications sent from the UK without enthusiasm, further explanation or follow up does not in my view demonstrate the kind of commitment to obtaining employment that the Act sets out to recognise.

33.     Mr Slater seeks assistance from Telstra Corporation Ltd. v Warner,[21] in which Heerey J noted that the failure of Telstra in that case to offer employment to Mr Warner was relevant to the question of what he was able to earn. I note that an approach to Telstra, without explanation or follow up, some thirteen or more years after working for Telstra as a contractor, does not constitute a comparable set of circumstances to those of Mr Warner in the quoted case.

[21] [1994] FCA 1312.

34.     I find that Mr Slater failed to seek employment over the entire period in question. Unless either paragraph (f) or (g) of subsection 19(4) applies to him, the dominant factor in deciding his AE will be his failure to seek employment.

Was Mr Slater’s failure to seek employment reasonable in all the circumstances?

35.     Paragraph (f) of subsection 19(4) provides, relevantly, that the decision-maker must take into account, where an employee fails to seek employment, whether, in the decision-maker’s opinion, that failure was reasonable in all the circumstances. Where the Tribunal has found it reasonable for an employee not to seek employment, it has usually set the AE at nil.[22]

[22] See for example Re Diamante and Telstra [2009] AATA 878.

36.     Mr Slater has advanced a number of reasons why he believes his failure to seek employment should be regarded as reasonable. In the first place, he points out that in the UK, under UK legislation, he is regarded as incapacitated for work, and while this does not make him incapacitated for work in Australia, or create any compensation entitlements here, it makes it reasonable, in Mr Slater’s argument, for him not to seek employment. Second, Mr Slater notes that his general practitioner has ruled him incapacitated for work, and Mr Slater argues that he should be guided by the advice of his doctor. Third, Mr Slater argues that although there may be employment available in clerical positions in south-east Queensland, there is no evidence that any employer is able and willing to employ him, given the restrictions imposed on him by his injury. Fourth, Mr Slater suggests that in practice no employer is, or was willing to employ him without retraining - as the responses he received to his applications for and expressions of interest in employment in Queensland illustrate - that so that it was, and had been, reasonable for him not to seek employment. These arguments fall neatly into two groups: the first two relate to Mr Slater’s incapacity; the second two to the actual availability of work to Mr Slater in the relevant labour market. On each of these arguments, Mr Slater has put forward various authorities to support his case. I will deal with the two groups of arguments in turn, considering the evidence and Telstra’s counter-arguments as well as Mr Slater’s arguments and the case law offered in support.

37.     Mr Slater’s arguments related to his incapacity do not go to the question of whether he is incapacitated for work in Australia, or to questions of compensation for the full range of conditions he suffers from. These matters were decided when the Tribunal decided, in 2009, that Mr Slater did not have a psychiatric injury, and that his knee had not deteriorated since 2002.[23] Rather, Mr Slater argues that the opinions of various medical practitioners in the UK made it reasonable for him not to seek employment, as those opinions encouraged him to regard himself as permanently incapacitated. The argument is especially clear in the transcript of the hearing before Senior Member McCabe in 2009.[24] Mr Slater plainly considers that once his doctors in the UK rated him as incapacitated for work, that was an end to the matter, and it was thenceforth reasonable for him no longer to concern himself with employment prospects in Australia.

[23] Re Slater and Telstra [2009] AATA 434.

[24] T33, p-20, p-21.

38.     Mr Slater tendered a quantity of evidence related to his claim of medical incapacity: a letter of 27 July 1998 from Telstra Super Pty Ltd[25] advising that his claim for Total and Permanent Invalidity benefit had been accepted; a completed form under UK social security law dated 9 April 1999 certifying that Mr Slater should refrain from work for three months;[26] a doctor’s statement dated 2 July 1999 by D A J Long of Spennymoor, Co Durham[27] to the effect that that Mr Slater should refrain from his usual occupation; a further doctor’s statement of 7 November 2002 from the practice of Doctors Sanderson, Senelor, Ibbott, Long and Patel of Spennymoor,[28] stating that Mr Slater should refrain from his usual occupation for one year; a note of 14 June 2005 from Dr A J Long of St Andrew’s Medical Practice, Spennymoor,[29] advising that Mr Slater had been unfit to work from 1 June 2002 to that date; a letter from the UK Social Security Office in Durham[30] dated 8 July 2005 confirming that Mr Slater was in receipt of (UK) Incapacity Benefit from 1 June 2002, and a letter from ‘JobCentrePlus’[31] (which I take to be a national or regional organisation in the UK aimed at helping people to find employment) of Sunderland advising that Mr Slater had been in receipt of UK Incapacity Benefit since 5 March 1999; and a report of JobCentrePlus[32] dated 7 March 2008 advising Mr Slater that he continued to meet the threshold of incapacity under UK law.

[25] Exhibit AB1.

[26] AB7.

[27] AB10.

[28] AB26

[29] AB27

[30] AB28.

[31] AB31.

[32] AB34.

39.     It is easy to understand Mr Slater’s argument. He is resident in the UK, where doctors have now consistently rated him as incapacitated for work. In his submission of 26 May 2010 Mr Slater argued that until the reports of Dr Brewster in 2007 and Dr McMeniman in 2008 (reports considered by Senior Member McCabe in 2009), “[a]t no time...was there any contrary medical evidence” that he was other than totally incapacitated. In the circumstances, why would it be reasonable for him to look for work in Australia?

40.     It can be readily accepted that under UK law Mr Slater was incapacitated for work. Mr Slater’s argument, however, ignores the circumstances of his continuing agitation over the period in question of matters in this case. Mr Slater himself continued to press before the Federal Court and this Tribunal matters related to his injury, especially in respect of the period before 1 June 2002, but also relating to the period after that date. Tribunal decisions in this matter were handed down in 2004 (three decisions),[33] 2005 (two decisions),[34] 2006[35] and 2007.[36] Many of these decisions related to procedural matters, but they nevertheless represented further steps in his attempt to secure a favourable outcome. Over this period Mr Slater continually pressed the Tribunal to hear matter number 2002/563, dealing mainly with whether Mr Slater’s knee condition had deteriorated; the matter was only heard in 2009. In the reasons given in the decision Senior Member McCabe noted the continued agitation on related issues by Mr Slater.[37] It is not credible that during this period, while Mr Slater was very actively involved in pursuing his claim, he was unaware that he had not been found incapacitated for work in Australia, or of the provisions of the Act that required him to continue to seek work. Even if he initially thought it probable that he would be found incapacitated, he would have been aware from the examination by Dr Brewster in 2007 that this was anything but a foregone conclusion. It is surely disingenuous for him to claim that he was unaware that questions remained about his incapacity for work under the provisions of the SRC Act.

[33] Slater v Telstra [2004] FCA 476; Re Slater and Telstra [2004] AATA 1010; Re Slater and Telstra [2004] AATA 1207.

[34] Re Slater and Telstra [2005] 527; Re Slater and Telstra [2005] 956.

[35] Re Slater and Telstra [2006] AATA 533.

[36] Re Slater and Telstra [2007] AATA 1085.

[37] Re Slater and Telstra [2009] AATA 434, at [7].

41.     Mr Slater also argues, quoting Re Farah and Australian Postal Corporation[38](Farah) that preference is, or should be, given to the opinions of treating over medico-legal doctors. In Farah the Tribunal preferred the evidence of the treating doctor and accepted the award of a disability support pension as evidence that justified the setting of AE at nil. That case, however, concerned a difference of view among doctors assessing the same condition under the SRC Act. Here Mr Slater was being assessed against UK legislation by his treating doctor in the UK, for a wider array of conditions, some of which were not related to his compensation claim in Australia and by Australian medico-legal doctors against Australian legislation, in respect of a particular compensation claim. Mr Slater had been pursuing his case in Australia for years and must have understood in great detail the distinctions between the regimes that obtained in the two countries. As for the disability support pension in Farah, that was awarded under Australian legislation for the condition to which compensation was being sought. The Tribunal evidently took the view that the SRC Act and the Social Security Act 1991 (Cth) used broadly consistent criteria for disability. In another case, Re Keen and Telstra,[39] which Mr Slater also calls in assistance, the Tribunal noted that the criteria used for assessing disability in the Social Security Act 1991 and incapacity in the SRC Act are different. There is no basis for an assumption here that the decisions about incapacity are consistent, given that one decision is based on UK legislation and one on Australian legislation. Farah is no authority for preferring Mr Slater’s UK doctor or relying on his certification of incapacity rather than on the medical advice he received in Australia.

[38] [1997] AATA 774.

[39] [2003] AATA 585 at [95].

42.     Mr Slater also argues on the basis of ReSollazzo and Comcare[40](Sollazzo) that it was reasonable for him to follow the advice of his general practitioner, who advised him that he was unfit for work. In that case, the Tribunal accepted that it was reasonable for a patient to be guided by her doctor in deciding when to return to work. In Sollazzo, however, there was a difference of view between the applicant’s employer and general practitioner over an appropriate return to work program; there were also differences of view between the general practitioner and other doctors. That matter, however, involved all parties assessing the applicant against the same criteria, namely those in the SRC Act, with an obligation falling on the Tribunal to prefer one doctor’s evidence over another’s. It is very different from Mr Slater’s circumstances, where the treating doctor in the UK does not ever seem to have assessed Mr Slater’s condition in the context of Australian requirements. Mr Slater also calls in assistance Re Roberts and Comcare[41](Roberts) where it was accepted that a certificate from a treating doctor was sufficient to establish that an injury at work resulted in incapacity. That case, however, once again dealt with competing medical opinions against a single set of criteria. As already noted, medical certificates from UK doctors against UK criteria could not establish that Mr Slater was incapacitated under the SRC Act, and he must have been aware of that fact.

[40] [2000] AATA 65.

[41] [2008] AATA 495.

43.     Turning then to the second group of arguments, Mr Slater asserts that the evidence shows that work was in practice unavailable to him, and that he therefore acted reasonably in not seeking it. As a generality, that proposition does not seem consistent with the APM report. In my view it can be accepted that clerical and administrative employment was reasonably widely available in south-east Queensland. Mr Slater’s argument, however, is that it is not available to him, especially because of the restrictions imposed on him by his injury, and because he claims to lack the skills needed.

44.     Mr Slater does not appear to have tested the market at all until October 2009. If he is arguing that it was reasonable for him not to seek employment because no employment was available to him, it would appear difficult for him to demonstrate that he acted reasonably in not seeking work up to October 2009 if he did not yet know anything about its availability. Mr Slater advances an argument, drawing on Re Sambastian and Australian Postal Corporation,[42] that evidence of subsequent information and events can be taken into account in arriving at a conclusion about earlier matters. While the general proposition is unexceptionable, its application here is problematic: the employment market is dynamic, and Mr Slater’s lack of success in 2009-10 cannot speak to his prospects of success seven years earlier. More problematic still is that any evidence gathered in 2009-10 could only be relevant, even ignoring the above argument, to whether employment was available earlier; it cannot make it retrospectively reasonable for Mr Slater to have held a view when at the time he had no information on which to base it.

[42] [2010] AATA 141 at [63].

45.     In cross-examining Ms Bradley, Mr Slater attempted to show that the APM report had not examined the availability of employment at the level of detail required. First, it did not single out Level 5 employment from other clerical/administrative work; second it did not establish the availability of work to someone with the restrictions imposed on him by his injury; and third, it did not establish whether someone with no specific training and skills in the area would be able to find employment. These comments are correct, in the sense that the APM report did not set out to identify a position that would be directly and specifically suitable to Mr Slater; rather it set out to establish Mr Slater’s likely AE under subsection 19(4)(e).

46.     Mr Slater’s restrictions are that he is suited to sedentary and clerical roles, but should not engage in lifting, squatting or climbing. He may need an ergonomic desk and/or have his work station assessed for suitability to his physical needs. Mr Slater quotes Martin v Australian Postal Corporation[43] (Martin) in aid of his argument that employment must be identified that is suitable for a person with the restrictions imposed by his injury. In that case, Wilcox J found that an error of law had been made by the Tribunal in somewhat similar circumstances, because the Tribunal had failed to determine whether work observing the relevant restrictions was available in the relevant labour market. In this instance, I have found that clerical/administrative work is available. I accept Counsel for Telstra’s argument that the extent of the restrictions on Mr Slater are not such as to impose impossible conditions on a normal employer, operating under occupational health and safety legislation that requires proper care of staff. Ergonomic desks and workplace assessments, where required, are now part of normal employment practice. Mr Slater’s restrictions are in practice no bar to his employment. Martin does not assist Mr Slater. I find that employment that observes the restrictions imposed on Mr Slater by his injury is available.

[43] [2000] FCA 1646.

47.     Mr Slater also calls on other cases. In Re Diamante and Telstra Corp Ltd,[44] the Tribunal held that it was reasonable for the Applicant in that case not to have sought work because of age, lack of skills, restrictions, and in particular that he was becoming totally incapacitated. Each case of this kind turns on its own facts: in Diamante, the Tribunal made a finding that the Applicant’s physical condition was deteriorating; here on the other hand, the Tribunal found, only last year, that Mr Slater’s condition has not deteriorated since 2002. In Re Fagan and Comcare[45] the Tribunal found that it had been reasonable for the Applicant in that case not to seek employment: she was incapacitated, 61 years old and had been fired by her last employer. The circumstances of that case, once again, do not transfer to this one.

[44] [2009] AATA 878 at [114-120].

[45] [2005] AATA 533.

48.     Mr Slater has consistently argued that in order to be employed in clerical or administrative work he would need retraining. In the absence of retraining, he argues, there is no reason for him to seek employment, because it would not be available to him. Member Kenny considered this issue in 2002 and decided that none of the various employment options identified for Mr Slater lacked equivalence to the work Mr Slater had undertaken for Telstra.[46] He also decided that a rehabilitation program should not be offered to Mr Slater.[47]

[46] Re Slater and Telstra [2002] AATA 597 at [59].

[47] Ibid at [85].

49.     It is clear that since that time Mr Slater has made no attempt to undergo formal training that would make him more employable. He has not sought to find employment and in my view, his inaction is not because he lacks the skills to undertake clerical work. Mr Slater has assiduously pursued his case through the Tribunal and the Federal Court: he has amply displayed his skills in administrative work through that process. In my opinion Mr Slater has not advanced persuasive evidence that his skills are inadequate for clerical/administrative work. I do not find it reasonable that on those grounds he should refrain from seeking employment.

50.     It is my finding that, in all the circumstances, it is not reasonable for Mr Slater not to have sought employment over the period 1 June 2002 to 1 July 2010.

Are there any other issues that should be taken into account in deciding what Mr Slater would have been able to earn?

51.     In his submission of 26 May 2010 Mr Slater identified several issues that he regarded as relevant under subsection 19(4)(g) (”any other matter that [the decision-maker] considers relevant”). Most of these issues have been dealt with under other headings – the relevance of the restrictions to Mr Slater’s ability to find work, the need for rehabilitation and retraining before it is reasonable for him to seek employment, the certification by UK authorities of Mr Slater as incapacitated for work. One issue Mr Slater has raised might qualify as relevant to this paragraph and that is the reasonableness of expecting him to change his place of residence from the UK to Australia. I turn to that issue below when dealing with the definition of “suitable employment”.

52.     No other issues have been raised by the parties and I am not aware of any other issue relevant to the proceedings that needs to be considered.

What was Mr Slater’s AE for 1 June 2002 to 1 July 2010?

53.     Section 19 requires the calculation of what an employee was or would have been able to earn (AE) in suitable employment. As noted in Telstra Corp Ltd v Warner,[48] the subsection requires an assessment not only of capacity to work but also of the actual availability of work (a similar point is made in Re Sinclair Jones and Comcare[49]).

[48] [1994] FCA 1312.

[49] [2004] AATA 546, at [141].

54.     ‘Suitable employment’ is defined in section 4 of the Act, and it is paragraph (b) of that definition that applies to Mr Slater. The following considerations must be taken into account in determining suitable employment:

(i)the employee’s age, experience, training, language and other skills;

(ii)the employee’s suitability for rehabilitation or vocational retraining;

(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and

(iv)any other relevant matter.

55.     Member Kenny considered what constituted suitable employment for Mr Slater in ReSlater and Telstra [2002] 597 and concluded at [56-60] that the listed employment options, including clerical work, constituted suitable employment for him. That finding was covered by the terms of Member Webb’s Direction. Mr Slater had moved back to the UK at his own initiative before Member Kenny’s determination. Mr Slater’s age is not at the point where he is unable to work. The APM report establishes that work was available, and I have rejected Mr Slater’s arguments that the restrictions he suffered from and his limited skills were a bar to his employment.

56.     Taking into account that I have found that Mr Slater failed to seek employment, that it was not reasonable for him to fail to seek employment, and that I have not identified any other matter that should be considered, I find that Mr Slater’s AE is as identified in the APM report, and as set out below. These figures are taken from the report, supplemented by figures supplied by Wageline, the employment agency of the Queensland Government.[50]

[50] T24, T26, T32, T37.

Date	AE
1 June 2002 - 31 August 2002	$609.50
1 September 2002 – 31 August 2003	$627.50
1 September 2003 – 31 August 2004	$644.50
1 September 2004 – 31 August 2005	$663.50
1 September 2005 – 31 August 2006	$680.50
1 September 2006 – 31 August 2007	$699.90
1 September 2007 – 31 August 2008	$712.00
1 September 2008 – 31 August 2009	$735.60
1 September 2009 - onwards	$751.80

What deduction, if any, must be made to account for Mr Slater’s superannuation payout?

57.     In July 1999 Mr Slater received $78,921.80 as a lump sum benefit under his superannuation.[51] That payout, by section 21 of the Act, must be factored into Mr Slater’s compensation calculation.

[51] T38.

58.     Mr Slater has not challenged the legitimacy of the application of section 21 to his superannuation payout, nor the lump sum amount to which the calculation is to be applied. The amount of the deduction from the compensation amount varies with time because of changes to NWE and also because of legislative amendments. I find that the amounts to be deducted each week are as follows:

Period	Interest	5% NWE	Deduction
1 June 2002 - 30 June  2002	$151.77	$40.07	$191.84
1 July 2002 – 30 June 2003	$151.77	$41.43	$193.20
1 July 2003 – 30 June 2004	$151.77	$42.84	$194.61
1 July 2004 – 30 June 2005	$151.77	$44.42	$196.19
1 July 2005 – 30 June 2006	$151.77	$45.98	$197.75
1 July 2006 – 27 April 2007	$151.77	$47.91	$199.68
28 April 2007 – 30 June 2007	$86.81	$47.91	$134.72
1 July 2007 – 30 June 2008	$86.81	$49.83	$136.64
1 July 2008 – 30 June 2009	$92.28	$51.91	$144.19
After 30 June 2009	$81.20	$54.10	$135.30

Is Mr Slater entitled to compensation and if so, at what level?

59.     The Act provides for compensation to be paid to those incapacitated as a result of work-related injuries, but it also encourages those who are injured to seek to re-enter the workforce. There is an expectation that any employee whose incapacity is less than total will seek suitable employment and unless an employee’s incapacity is determined to be total under the Act, or other events intervene, that expectation subsists. It is recognised in the Act through the provisions that govern the amount of compensation to which an injured employee is entitled.

60.     Mr Slater injured himself in 1996 and from some time after that sought to have himself treated as totally incapacitated for work under the SRC Act. In that regard he has been unsuccessful. He moved of his own volition back to the UK, whence he had originally migrated to Australia, and doctors there did decide that he was incapacitated for work – but under UK legislation. The SRC Act does not impose a requirement that a partially incapacitated employee seek employment, but it recognises and rewards those who do so, through the compensation system. By not seeking employment over an extended period when he had not been found totally incapacitated for work under the Act, Mr Slater chose, and in my view chose knowingly, to risk a lower compensation entitlement. I have found that it was not reasonable, in all the circumstances, that he failed to seek employment. These matters must be taken into account in the calculation of compensation to which Mr Slater is entitled.

61.     The formula applied to determine compensation is decided by subsection 19(3) of the Act, as modified by section 21. Subsection 19(3) applies to an employee after 45 times the normal weekly hours had elapsed following the injury, and the incapacity has persisted throughout the period. That subsection applies to Mr Slater, given the time that had elapsed by 1 June 2002. The formula in subsection 19(3) is (Adjustment percentage x NWE – AE). The adjustment percentage, if the employee is unemployed during the week in question, is set by paragraph (a) of the subsection at 75%. Section 21 then requires that a further deduction be made from the compensation payable to take account of the superannuation payout. Using the NWE figures set out in paragraph 24 above, the AE figures set out in paragraph 54 above, and the superannuation deductions set out in paragraph 56 above, the calculation yields the following results:

Period	75% NWE ($)	AE ($)	Superannuation deduction ($)	Compensation payable ($)
1 June 2002 – 30 June 2002	601.02	609.50	191.84	0
1 July 2002 – 31 August 2002	621.45	609.50	193.20	0
1 September 2002 – 30 June 2003	621.45	627.50	193.20	0
1 July 2003 – 31 August 2003	642.58	627.50	194.61	0
1 September 2003 – 30 June 2004	642.58	644.50	194.61	0
1 July 2004 – 31 August 2004	666.35	644.50	196.19	0
1 September 2004 – 30 June 2005	666.35	663.50	196.19	0
1 July 2005 – 31 August 2005	689.68	663.50	197.75	0
1 September 2005 – 30 June 2006	689.68	680.50	197.75	0
1 July 2006 – 31 August 2006	718.64	680.50	199.68	0
1 September 2006 – 27 April 2007	718.64	699.90	199.68	0
28 April 2007 – 30 June 2007	718.64	699.90	134.72	0
1 July 2007 – 31 August 2007	747.39	699.90	136.64	0
1 September 2007 – 30 June 2008	747.39	712.00	136.64	0
1 July 2008 – 31 August 2008	778.77	735.60	144.19	0
1 September 2008 – 30 June 2009	811.48	751.80	144.19	0
1 July 2009 – 31 August 2009	811.48	735.60	135.30	0
1 September 2009 – 30 June 2010	811.48	751.80	135.30	0

Other issues

62.     In his submission of 1 October 2010, Mr Slater raised other issues. Mr Slater’s major submission is that his claim of total incapacity from March 1999 to May 2002, the subject, in his argument, of a reviewable decision of 5 June 2002, has never come before the Tribunal for review. Mr Slater apparently sought review of this decision on 28 June 2002.[52] I note that this contention, whatever its merits, on which I offer no opinion, lies outside both the reviewable decision determining the Tribunal’s jurisdiction in the current matter and the terms of Member Webb’s decision constraining the scope of that matter. I have no jurisdiction to consider Mr Slater’s argument.

[52] A63.

Decision

63.     The decision under review is affirmed.

I certify that the preceding 63 paragraphs are a true copy of the reasons for the decision herein of Mr M HYMAN, MEMBER

Signed:  ..................[sgd]...........................................................
  Associate

Dates of Hearing  17 September 2010
Date of Decision  26 October 2010
Solicitor for Mr G Slater             Self Represented          
Counsel for the Respondent     Ben Dub
Solicitor for the Respondent     Stephen Routh, Sparke Helmore