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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] AATA 828
Decision Date: 26 October 2010

CaseChat Overview and Summary

Slater sought review of a decision by the Administrative Appeals Tribunal (AAT) affirming a decision that his compensation entitlements since 1 June 2002 were nil. Slater had previously been employed by Telstra Corporation Limited (Telstra) as a telecommunications technician. He was injured in 2002, resulting in a permanent impairment. Slater applied for and was granted permanent impairment compensation under the Safety, Rehabilitation and Compensation Act 1988. Slater sought to have his weekly compensation reassessed, claiming he was entitled to weekly compensation for total incapacity to work. Telstra opposed the application, arguing that Slater was not entitled to compensation because he had failed to seek suitable employment and was capable of earning an amount equivalent to or greater than his compensation entitlement.

The court had to determine whether Slater was entitled to weekly compensation. This involved considering whether Slater was required to seek employment, the reasonableness of his failure to do so, the amount Slater was able to earn, and the impact of lump sum benefits on his compensation. The court also needed to consider whether the AAT had the power to review the entire scope of Slater’s compensation entitlements under the Administrative Appeals Tribunal Act 1975.

The court held that Slater was not required to seek employment as there were no jobs available that matched his qualifications and experience. The court found Slater’s failure to seek employment was reasonable and he was not able to earn an amount equivalent to or greater than his compensation entitlement. The court also held that the AAT had the power to review the entire scope of Slater’s compensation entitlements under the Administrative Appeals Tribunal Act 1975. The court found that Slater was not entitled to weekly compensation as he had not sought suitable employment and was capable of earning an amount equivalent to or greater than his compensation entitlement.

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

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		GORDON SLATER Applicant