Sollazzo and Comcare
[2003] AATA 1324
•27 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1324
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/485
GENERAL ADMINISTRATIVE DIVISION )
Re ANTONIETTA SOLLAZZO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr G A Mowbray Date27 November 2003
PlaceCanberra
Decision For reasons given orally
1. The Tribunal sets aside the reviewable decision of the Respondent of 12 October 2001.
2. In substitution therefor the Tribunal decides that the Applicant’s NWE is to be calculated on the basis that
(a) up to 18 May 2001 the Applicant would have been employed at the GSO 5 level
(b) from 19 May 2001 to 31 August 2001 the Applicant would have been employed at the GSO 2 level
(c) from 1 September 2001 the Applicant would have been employed at the GSO 3 level.
.................................…………..
G A Mowbray
Member
CATCHWORDS
COMPENSATION – normal weekly earnings – calculation of payments for incapacity - applicant’s substantive position following work restructure – NWE reduced
Safety, Rehabilitation and Compensation Act 1988 sections 8, 9, 19
REASONS FOR DECISION
22 December 2003 Mr G A Mowbray Background
1. On 21 October 1988 Mrs Antonietta Sollazzo made a claim for compensation for injuries to her neck, left shoulder and right leg sustained in a fall in the main kitchen of the Royal Canberra Hospital on 16 September 1988. In the claim she is described as being an Acting Supervisor Grade 2 within the Hospital's Food Service Department. A section of the claim completed by her employer indicated she was on Higher Duties Allowance.
2. Although the original acceptance of the claim does not appear in the documents it is evident that liability was found for "Neck muscle strain, bruised (R) leg, and pain in shoulder".
3. On 23 June 1994 Comcare determined that Mrs Sollazzo's more recent incapacity and medical claims could not be paid under her current claim and forwarded a new claim form. It is apparent from other documents that this led to the acceptance of a claim for "aggravation of cervical spondylosis" said to have occurred on 3 April 1994.
4. On 25 August 1998 Comcare determined that it continued to be liable to pay compensation to Mrs Sollazzo in respect of her neck condition "arising out of an incident on 19 September 1988 (sic)" and amended the description of the accepted condition to "aggravation of cervical spondylosis". In doing so it also affirmed a decision to cease liability in relation to the 1994 aggravation.
5. On 5 January 2001 Mrs Sollazzo requested reconsideration of a determination of 15 December 2000 that had apparently reduced the rate of payment of compensation paid to her for periods of time off work. That determination does not appear in the T documents, but there are a series of computer print-outs that purport to show the amount of compensation paid and the figures used to calculate that amount.
6. On 14 August 2001 Comcare revoked the determination of 15 December 2000 and in substitution determined that on and from 19 May 2001 Mrs Sollazzo was no longer entitled to a higher duties component and that her normal weekly earnings should be at the rate of a General Service Officer (“GSO”) 5 position without her GSO7 higher duties component.
7. On 5 October 2001 the Tribunal received an application for a review of this decision.
8. On 12 October 2001 Comcare undertook a reconsideration of own motion and revoked the decision of 14 August 2001. In substitution it determined that on and from 1 December 2000 Mrs Sollazzo was no longer entitled to a higher duties component. According to the reasons for decision this effectively reinstated the primary determination of 15 December 2000. This decision, that is the 12 October 2001, is the reviewable decision before the Tribunal.
9. On 14 November 2001 Mrs Sollazzo withdrew her first application for review and lodged an application for review of the 12 October 2001 decision.
10. The application was heard on the 23 May 2003 and the 17-18 November 2003. Mrs Sollazzo represented herself and Comcare was represented by Mr Damien O’Donovan of counsel. Oral reasons were given on 27 November 2003 setting aside the decision under review.
11. On 27 November 2003 the Tribunal received a request for written reasons for the decision from Mrs Sollazzo pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the oral reasons with appropriate minor editing.
Issues
12. As is apparent from this background, the matter before the Tribunal relates to Mrs Sollazzo's normal weekly earnings (“NWE”) pursuant to section 8 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for calculation of her entitlement to compensation for incapacity under section 19 of that Act.
13. It is common ground that the relevant period for determining the NWE is the two week period prior to the injury on 16 September 1988 (section 9(1)).
14. It is accepted that at the time Mrs Sollazzo was an acting Food Service Supervisor Grade 2. It is also agreed that on 20 April 1989 Mrs Sollazzo was formally promoted into the Grade 2 position (position number 7097).
15. Again it is common ground that in 1990 a restructure was undertaken in the Food Service Department, partly due to the amalgamation of Canberra and Woden Valley Hospitals and partly in implementation of the structural efficiency principle. There was a further restructuring in 2000 of the Food Service Department at Canberra Hospital.
16. In April 2000 Mrs Sollazzo was notified that as a result of this latter restructure she had become an excess officer. In May 2000 she declined an offer of a voluntary redundancy. Under ACT legislation and awards Mrs Sollazzo was entitled to salary payments at her substantive level at the time she was declared redundant for a period of 13 months, that is, until 18 May 2001.
17. The two contentious issues for the Tribunal are
·what was Mrs Sollazzo's substantive level following the restructure in 1990 until the 2000 restructure
·following the restructure in 2000 at what level would Mrs Sollazzo have been placed if she had not been incapacitated for work.
18. For reasons which follow my findings are
·Mrs Sollazzo's substantive position from the 1990 restructure was GSO5. She has never been promoted beyond this level
·following the 2000 restructure Mrs Sollazzo would have been employed at the GSO2 level until 31 August 2001, and then the GSO3 level.
19. These findings mean that from 19 May 2001 Mrs Sollazzo's NWE will need to be reduced in accordance with section 8(10) of the Act.
Consideration of Issues and Findings
Mrs Sollazzo’s substantive level following the 1990 restructure
20. On the evidence before me it is incontrovertible that at the time of the restructure in August 1990 Mrs Sollazzo's substantive position of Food Service Supervisor Grade 2 was translated into a Health Service Officer or General Service Officer (these terms have been used interchangeably - I will use the term GSO) level 5.
21. Mrs Sollazzo contends that from 1990 she was substantively employed as a GSO6 in position number 0385. In support she relies on
· her strongly held views expressed in oral evidence
·the recollection of her colleague, Mr Joe Teixeira, who had some involvement in the restructure
· a vast mass of documents that she filed in the Tribunal.
22. Notwithstanding Mrs Sollazzo's strongly expressed views to the contrary, the vast bulk of the documentary evidence does not support her case. Indeed, the primary documents clearly indicate that she was translated to the GSO5 level and was never promoted above that level.
23. It is clear that she did act on higher duties for long periods at more senior levels but that does not help her. What I have to determine is using public service phraseology what was Mrs Sollazzo “nominal” or substantive position or level, not her “actual” or acting level from the time of the restructure.
24. The documentary evidence in support of GSO5 level translation includes
·the salary records of the hospital which record that from September 1990 to July 2001 Mrs Sollazzo's "classified office" was as a HSO or GSO5
·the higher duties records which show Mrs Sollazzo acting at GSO6, 7 and 9 levels at various times, up to the time she ceased work in July 1995
·higher duty temporary transfer forms which, with a few exceptions, show her substantive level as GSO5
· rosters provided by Mrs Sollazzo recording her position as a GSO5
·a formal "transfer certificate" under section 50 of the Public Service Act 1922 transferring Mrs Sollazzo at level from GSO5 position number 27097 to GSO5 position number 23047 with effect from 1 March 1994
·an organisation chart at 30.6.91 formally approving an organisation which included a GSO 5 position number 7097. Position number 7097 was the position into which Mrs Sollazzo was promoted in 1989 and the position, renumbered as 27097, from which she was transferred at level on 1 March 1994 to position number 23047
·a number of documents provided by Mrs Sollazzo to the Tribunal which show her as acting in a higher position but not the substantive occupant of that position.
25. These are not the only documents that indicate that Mrs Sollazzo was transferred at the GSO5 level and never promoted beyond that level. There are numerous other secondary documents which support such a proposition. Apart, possibly, from the pay slips (which I will discuss later) there is no primary document in support of Mrs Sollazzo's contention. Indeed there would need to have been a formal instrument in writing providing for such a promotion. Neither Mrs Sollazzo nor the Hospital was able to provide such an instrument to the Tribunal.
26. The evidence of Ms Sue Denton, Resource Manager, Food Services at Canberra Hospital since 1996 corroborated the documentary evidence. She was not involved in the 1990 restructure but she was able to confirm Mrs Sollazzo's level from July 1996 onwards. Some of the documents filed by Mrs Sollazzo might suggest that the Food Service Supervisor Grade 2 positions were to be translated to the GSO6 level. But to reach such a conclusion would require inferences which in the face of the overwhelming contrary evidence cannot be made.
27. A number of these documents represent statements of principles, others are drafts. Very few if any refer specifically to Mrs Sollazzo or her specific position number. Much of the material filed by Mrs Sollazzo was largely irrelevant at best to the issues before the Tribunal and of little assistance. On the other hand, a number of documents written and filed by Mrs Sollazzo indicated that she was aware that her Food Service Supervisor Grade 2 position had been translated to the GSO5 level. She was unhappy about this and sought to have it rectified, but it was clear that Mrs Sollazzo was of the view at that time that her translation had been at the GSO5 level (see particularly exhibit A1 page 88).
28. It appears that a higher level position was created but there is no evidence that Mrs Sollazzo was promoted into that position, although she may have acted in it. Mr Teixeira was unable to provide any documents to support his recollection.
29. The only evidence which on its face casts some doubt on whether Mrs Sollazzo's substantive position was a level 5 or level 6 position is contained in the payslips. But a closer examination of these reveals that some show the classification at level 5, others at level 6. One set shows Mrs Sollazzo moving from a level 6 back to a level 5, remaining at the level 5, and then returning to a level 6. There are gaps. For example, no payslips are provided for the period 18 May 1992 to 19 July 1992 when Mrs Sollazzo was acting as a level 9. No explanation is given for the gap in these payslips filed by Mrs Sollazzo.
30. The answer clearly lies in Ms Jane Davies' letter of 8 May 2002 to Mrs Sollazzo
“You mentioned that you have old pay slips that state your classification as a GSO6, leading you to believe that this was your substantive classification. I consulted the Operations Manager of Payroll Services and she explained that people like you who were on extended full time higher duties were at that time set up on the payroll system in a way that reflected the classification at which they were being paid, rather than their substantive classification. As a result, your old pay slip lists your classification as a GSO6 because that was the classification of the position in which you were acting.”
Ms Denton confirmed this in her oral evidence which I accept.
31. Mrs Sollazzo and Mr Teixeira contended that once a person had acted on higher duties for more than 12 months that person was automatically promoted to the position, and Mrs Sollazzo had acted for long periods at higher levels. This contention is fanciful and wrong. Mrs Sollazzo and Mr Teixeira have confused the higher duty acting situation with that of a short term temporary employee under the Public Service Act.
32. The evidence is over-whelming. I have no doubt that at the time of her accident Mrs Sollazzo was an acting Food Service Supervisor Grade 2. She was promoted into that position numbered 7097 from 20 April 1989. This position was translated in the 1990 restructure to a GSO5 level. From 1 March 1994 Mrs Sollazzo was transferred from this position, renumbered as 27097, to a GSO5 position numbered 23047.
33. Mrs Sollazzo has never been substantially promoted beyond the GSO5 level. During the period in question she substantively occupied the Food Service Supervisor and GSO5 position number 7097 (later 27097) and the GSO5 position, number 23047. She acted for significant periods in GSO6, 7 and 9 positions, but was never promoted into them.
Placement following the 2000 restructure
34. Section 8(10) of the Act relevantly provides
“If the amount of the normal weekly earnings of an employee
before an injury, as calculated under the preceding subsections,
would exceed:(a)where the employee continues to be employed by the Commonwealth or a licensed corporation - the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work;
…
the amount so calculated shall be reduced by the amount of the excess.”
35. It is therefore necessary to examine the 2000 restructure and its aftermath to determine at which level Mrs Sollazzo would have been employed until her recent retirement from the Hospital had she not been incapacitated for work.
36. In a letter to Mrs Sollazzo of 12 June 2001 Mr Tim Bright, Senior HRM adviser to the Hospital said
“You will recall that in April 2000 you were notified that you had become an excess officer following an organisational restructure within the Food Services Section of The Canberra Hospital. That restructure had involved the abolition of all the supervisory positions at the GSO5 and GSO7 levels. (All the other GSO5 and GSO7 supervisors within Food Services were also declared to be excess officers at that time.)
…
As there are presently no vacant GSO5 positions within the Food Services Section (and no appropriate vacancies at that level elsewhere within the Hospital), steps will now be taken, in accordance with the relevant provisions of the award and the enterprise agreement, to identify a suitable position at a lower level into which you can be transferred. As there are no substantive vacancies within Food Services at either GSO3 or GSO4, it would appear at this stage that it would be likely that your placement would be at the GSO2 level.
Following any such reduction in classification you would still continue to be entitled, under the provisions of the award, to salary payments based on GSO5 salary rates until 18 May 2001 (that is, 13 months from when you were notified that you were an excess officer). However, on and from 19 May 2001, your salary and related entitlements will be based on the rates applicable to the lower classification.
…
In your particular case, had you been at work, you would by now have been transferred into a lower classified position resulting in a reduction in your normal earnings after 19 May 2001.”
37. The evidence before me indicates
· the GSO5 positions were abolished on 1 July 2000
· the GSO6 positions were abolished on 19 April 1995
· the GSO7 positions were abolished on 30 June 2000.
38. In view of my finding that Mrs Sollazzo was never promoted beyond a GSO5, it is not necessary to consider whether GSO6 or 7 positions would have been available to her. This is because of the manner in which section 8 of the Act operates to calculate the NWE
·during the relevant period for the purposes of section 8 (ie. in September 1988) Mrs Sollazzo was an acting Food Service Supervisor 2
·she was later promoted to a Food Service Supervisor 2 which became a GSO5 (for the way this is treated see section 8(7))
·her NWE then would essentially be at the GSO5 level unless reduced in accordance with section 8(10).
39. In any event the oral evidence of Ms Denton confirmed the position set out in Mr Bright's letter that there were no opportunities at the GSO6 or 7 levels.
40. The question is at what level Mrs Sollazzo would have been employed.
Mrs Sollazzo asserted that GSO5 positions were available. On the other hand, Ms Denton gave evidence that· two GSO5 positions were advertised and filled in the cafeteria in 1994
· there were now no GSO5 positions available
·there were sufficient people to fill the GSO4 menu monitor positions, bearing in mind that the restructure was intended to downsize the organisation
· there were no vacant GSO4 positions
·positions were available at the GSO2 level as Patient Service Plating and Delivery Officers.
41. This confirmed the evidence of Mr Bright, who also pointed out there were no substantive GSO3 positions available. None of this evidence of Ms Denton or Mr Bright was contradicted other than by assertion.
42. No evidence was provided on possible positions in the administrative stream.
However, I accept Mr O'Donovan's submissions that the evidence before me shows that Mrs Sollazzo's skills and experience were not in the administrative but rather the food service area.
43. Having regard to all the evidence, it is clear to me that
·from the time of the 2000 restructure no substantive position above GSO2 was available in which to place Mrs Sollazzo
·had Mrs Sollazzo not been incapacitated she would have been placed at the GSO2 level
·Mrs Sollazzo would have been entitled to salary retention at the GSO5 level for 13 months from the date of notification that she was an excess officer until 18 May 2001.
44. Furthermore, both parties agree that from 1 September 2001 the GSO2 positions in the Food Service Department were reclassified as GSO3 positions under the Certified Agreement 2002-2005.
Conclusions
45. In summary I conclude that
·Mrs Sollazzo's Food Service Supervisor Grade 2 position was translated to a GSO5 position in the 1990 restructure
· Mrs Sollazzo has never been substantively promoted beyond the GSO5 level
·Mrs Sollazzo acted on higher duties for significant periods in GSO6, 7 and 9 positions
·if she had not been incapacitated Mrs Sollazzo would have been employed at the GSO2 level following the 2000 restructure
·she would have been entitled to salary retention at the GSO5 level until 2001
·Mrs Sollazzo would have been employed from 1 September 2001 at the GSO3 level.
46. Therefore, for the purposes of calculation of her NWE under section 8 of the Act, section 8(10) would come into play from 19 May 2001 requiring a reduction in her NWE. The precise amount is something for Comcare to calculate. The reviewable decision must therefore be set aside.
Decision
47. The reviewable decision of 12 October 2001 is set aside and the following decision substituted
The Applicant's NWE is to be calculated on the basis that
(a)up to 18 May 2001 the Applicant would have been employed at the GSO5 level
(b)from 19 May 2001 to 31 August 2001 the Applicant would have been employed at the GSO2 level
(c)from 1 September 2001 the Applicant would have been employed at the GSO3 level.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
...........[Sarah Rososinski]..........................................
AssociateDates of Hearing 23 May, 17-18 November 2003
Date of Decision 27 November 2003
Date of Written Reasons 22 December 2003
Counsel for the Applicant Self-Represented
Counsel for the Respondent Mr Damien O’Donovan
Solicitor for the Respondent Mr Stuart Marris, Sparke Helmore
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