Solomon Cooper and Comcare
[2013] AATA 305
[2013] AATA 305
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2770
Re
Solomon Cooper
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO, Deputy President
Date 15 May 2013 Place Hobart Decision Summary
The decision under review is set aside and the matter remitted to the respondent for re-determination in accordance with the following directions :
(a)The earnings the applicant would have received since 30 June 2008 if he had not been incapacitated for work would, during the period 5 November 2008 to 29 May 2009 and perhaps at other times, have included some payment of Higher Duties Allowance.
(b)The amount the applicant would have received in each financial year after 30 June 2008 by way of Higher Duties Allowance is to be calculated for the purpose of section 8 (10) (a) of the Safety Rehabilitation and Compensation Act 1988 in accordance with the methodology set out in paragraph 111 of the Tribunal’s reasons for decision.
........................................................................
Deputy President
CATCHWORDS
Compensation - weekly payments for incapacity - employee continuing in Commonwealth employment - calculation of normal weekly earnings - employee initially receiving higher duties allowance - higher duties allowance deducted from normal weekly earnings – employee, if not incapacitated, would remain at APS3 level and would receive some higher duties allowance - employee to receive average of higher duties allowance paid to other APS3 employees - decision set aside and remitted
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 8(1)(7)(10), 9(1), 14, 19
CASES
Ragg and Military Rehabilitation and Compensation Commission [2012] AATA 18
Comcare v Hart [2004] FCA 1067
John Holland Group Pty Ltd v David Robertson [2010] FCAFC 88
Ladic and the Capital Territory Health Commission [1982] FCA 173
Colebrook and Australian Postal Corporation [1983] AATA 40
Field and Australian Postal Corporation [2003] AATA 1036
Roe and Comcare [2003] AATA 126
Jefferts and Comcare [1996] 24 AAR 10Blade and Comcare [2001] AAT 291
REASONS FOR DECISION
The Hon R J Groom AO, Deputy President
INTRODUCTION
This is a review of a decision made by Comcare on 3 June 2011. That decision reduced the amount of weekly compensation Mr Cooper had been receiving by removing the Higher Duties Allowance from his compensation payment.
Mr Cooper suffered an injury on the 12 January 2006 in the course of his employment at the Australian Tax Office (“ATO”) in Hobart. Mr Cooper was then a permanent employee of the ATO at APS 3 level. At the time of his injury he had been undertaking work at APS 4 level. As a result he was being paid higher duties at that level. Comcare determined that his normal weekly earnings (“NWE”) and therefore his weekly compensation should include the Higher Duties Allowance.
The Higher Duties Allowance had formed part of Mr Cooper’s assessed NWE until the 30 June 2008. Comcare decided that after that date the allowance should no longer form part of his weekly compensation. Comcare’s reason for that determination was that from that date higher duties had ceased to be generally available to employees in Mr Cooper’s section at the ATO in Hobart. Comcare stated that it had reduced the amount of Mr Cooper’s weekly compensation pursuant to Section 8 (10) of the Safety, Rehabilitation and Compensation Act 1988 (“The Act”).
The applicant contends that he should continue to receive the Higher Duties Allowance component of his NWE because, had it not been for his incapacity, he would have been promoted permanently to APS4 level. Alternatively it is contended that had he not been incapacitated for work he would have continued to undertake work at APS4 level and therefore would continue to receive a Higher Duties Allowance.
It is submitted on behalf of the respondent that Mr Cooper would not have been promoted to APS4 level under the ATO’s merit based system of promotion. The respondent contends that this was not as a result of his injury or incapacity but because of his work performance prior to and since the date of his injury. It is further argued that he could not continue to receive Higher Duties Allowance as that allowance had generally ceased to be paid to employees in Mr Cooper’s section of the ATO in Hobart from the 30 June 2008. The respondent therefore contends that the decision to cease paying the Higher Duties Allowance’s component of Mr Cooper’s weekly compensation was correct and should be affirmed.
BACKGROUND FACTS
Mr Cooper was initially employed by the ATO on 27 March 2000 as a Call Centre Customer Service Operator at APS3 level.
The Hobart Call Centre was closed in late 2000. Mr Cooper was then transferred to the Superannuation Section of the ATO where he performed project work. At that stage he commenced to receive Higher Duties Allowance at the APS4 level.
In late 2001 Mr Cooper was transferred to the Personal Tax area. He was then dealing with objections to tax assessments and also some project work. He was then still at APS3 level and was not receiving any Higher Duties Allowance. He was not paid any Higher Duties Allowance during the calendar year 2002.
Early in 2003 he started undertaking private rulings and classifying duties and was once again paid a Higher Duties Allowance at APS4 level.
Mr Cooper was paid a Higher Duties Allowance for considerable periods from early 2003 until the middle of 2008. Full details of Mr Cooper’s Higher Duties Allowance payments are set out in Mr Cooper’s “Record of Higher Duties” (Exhibit A4). That record shows significant payments of Higher Duties Allowance in the course of 2003, 2004, 2005, 2006 and 2007 calendar years and continuing up until 30 June 2008.
In January 2004 Mr Cooper experienced pins and needles in his right hand. He was off work for a period of time and received weekly compensation for “neck strain and thoracic strain”.
Mr Cooper returned to work but with significant discomfort because of his work related medical condition. He remained at APS3 level but was receiving Higher Duties Allowance from time to time for the work he was undertaking. Then in early 2006 he again suffered an episode of pain at work. As a result he made a new compensation claim for an injury suffered on the 11 January 2006.
In early January 2006 Mr Cooper was off work for some weeks following his injury. After that period he was given a certificate by Dr Salter certifying him fit to work for half a day only but also stating that he was not to do any computer work.
When he returned to work Mr Cooper worked a reduced number of hours each working day. Initially it was for four hours each day but when his symptoms became worse this was then reduced to three hours. After 30 June 2008, following the removal of the Higher Duties Allowance from his weekly compensation, he increased his hours to four hours a day. Mr Cooper continued to work for four hours until “early 2011” when he ceased to do any work at all at the ATO in Hobart. He said he then became totally incapacitated because “….they needed to find work (for him) that was not computer work, and there was none there …” (transcript page 35).
As at the date of the hearing Mr Cooper is no longer working at the ATO in Hobart although he remains an ATO employee. He is wholly dependent on the weekly compensation payments he receives.
THE LEGISLATION
Under section 14 of the Act compensation is payable :
“In respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
Section 19 of the Act provides for the payment of weekly compensation to an employee who is incapacitated for work as a result of an injury. It prescribes formulae for determining the amount to be paid to the employee for each week of incapacity. The formulae relevantly includes the following :
”(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings”.
“(3)Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(Adjustment percentage X NWE) – AE
where :
Adjustment percentage is a percentage equal to:
(a)if the employee is not employed during that week – 75%; or
(b)if the employee is employed for 25% or less of his or her normal weekly hours during that week – 80%; or
(c)if the employee is employed for more than 50% but not more than 50% of his or her normal weekly hours during that week – 85%; or
(d)if the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week – 90%; or
(e)if the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week – 95%; or
(f)if the employee is employed for 100% of his or her normal weekly hours during that week – 100%.
AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2).
(c)The amount of a person’s NWE is determined under Section 8 of the Act which relevantly provides as follows :
“8. Normal Weekly Earnings
(1)For the purposes of this Act, the normal weekly earnings of an employee (other than an employee referred to in subsection (2)) before an injury shall be calculated in relation to the relevant period under the formula:
(NH x RP) + A
where :
NH is the average number of hours worked in each week by the employee in his or her employment during the relevant period;
RP is the employee’s average hourly ordinary time rate of pay during that period; and
A is the average amount of any allowance payable to the employee in each week in respect of his or her employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
“(7) Subject to this section, if:
(a)an employee continues to be employed by the Commonwealth or a licensed corporation after the date of an injury; and
(b)the minimum amount per week payable to the employee in respect of that employment is increased because of the promotion of the employee;
the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage as the percentage by which that minimum amount per week is increased.
“(10)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; or
(b)where the employee has ceased to be employed by the Commonwealth or a licensed corporation – whichever is the greater of the following amounts :
(i)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;
(ii)the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;
the amount so calculated shall be reduced by the amount of the excess.”
Section 9 of the Act relevantly provides as follows :
“(1)For the purposes of calculating the normal weekly earnings of an employee before an injury, a reference in section 8 to the relevant period is, subject to this section, a reference to the latest period of 2 weeks before the date of the injury during which the employee was continuously employed by the Commonwealth or a licensed corporation.
THE ISSUES
The following are the principal issues to be determined by the Tribunal:
(d)What were Mr Cooper’s NWE under Section 8 of the Act?
(e)Does Section 8 (10) of the Act apply and so reduce the amount of Mr Cooper’s NWE after the 30 June 2008?
(f)If he was not incapacitated for work would Mr Cooper have been promoted permanently to APS4 level?
(g)If he was not incapacitated for work would Mr Cooper have continued at any time after 30 June 2008, to be paid a Higher Duties Allowance at APS 4 level?
WHAT WERE MR COOPER’S NWE UNDER SECTION 8 OF THE ACT?
The amount arrived at by applying the formulae in Section 8 of the Act, including any adjustments to that amount pursuant to the various sub-sections in Section 8, forms the basis of the weekly compensation to be paid from time to time to an injured employee during a period of incapacity for work resulting from a work related injury.
It is not in dispute in these proceedings that the “relevant period” for the purpose of calculating Mr Cooper’s NWE is the two week period immediately before the date of the injury. (see section 9 (1) of the Act).
There is also no dispute as between the parties that the amount of NWE initially included the Higher Duties Allowance at APS4 level which Mr Cooper was receiving in the “relevant period”.
It was agreed by the parties that the question of the precise quantum of weekly compensation is not a matter for this review. The central issue is limited to whether the Higher Duties Allowance should continue to form part of the NWE after the 30 June 2008.
Details of the claimed NWE are set out at page 19 of the T documents. The NWE then included a gross salary at that time of $905.96, a Higher Duties Allowance of $84.46 per week but also two other smaller allowances totalling $14.15 per week. As mentioned all of these dollar amounts are subject to adjustments over times in accordance with the provisions in section 8 of the Act.
During the hearing, and after submissions from both counsel, the Tribunal determined that it did not have jurisdiction to decide whether the two smaller allowances, namely a Fire Warden’s allowance of $5.27 per week and an allowance of $8.88 per week for Mr Cooper’s role as Occupational Health and Safety Officer, should form part of the NWE. It was so determined because the initial decision of the 16 March 2011, the reconsideration of the 3 June 2011 and also the application for review were all confined to the Higher Duties Allowance and whether that allowance should continue to be included in Mr Cooper’s NWE beyond the 30 June 2008.
Although the Tribunal is not authorised by the relevant legislation to decide if those two smaller allowances should be included in Mr Cooper’s NWE, and particularly noting that this issue was not the subject of any substantive submissions by counsel, it is noted that they were for duties performed and not for “special expenses incurred” (see the definition of “(A)” in section 8 (1) and the helpful analysis by Senior Member Kenny in Ragg and Military Rehabilitation and Compensation Commission [2012] AATA 18 (16 January 2012))
Putting to one side, as it must, the two smaller allowances, the Tribunal finds, for the purposes of this application, that Mr Cooper’s initial NWE included his base salary at APS3 level plus the Higher Duties Allowance paid at APS4 level as adjusted from time to time.
Those elements of Mr Cooper’s normal NWE as at the date of the injury continue to be the basis for calculating his weekly compensation throughout his period of incapacity subject to any adjustments from time to time under the sub sections in section 8. The dollar figures attached to those elements will rise over time as incremental increases occur. There may also be reductions in the weekly compensation if it exceeds at any time the amount calculated under section 8 (10) of the Act. The amount of compensation paid may also be reduced through the imposition of the “adjustment percentage” section 19 (3) of the Act. It is noted that an injured employee who is incapacitated and not working at all receives 75% of his assessed NWE.
DOES SECTION 8 (10) OF THE ACT HAVE APPLICATION AND SO REDUCE THE AMOUNT OF MR COOPER’S NWE AFTER THE 30 JUNE 2008?
This issue is central to the respondent’s case as it submits that section 8 (10) authorises it to remove the amount of the Higher Duties Allowance from the weekly compensation paid to Mr Cooper after the 30 June 2008.
It is important to recognise that section 8 (10) places a cap on the amount of weekly compensation an injured worker receives in a particular week. It only comes into play if the amount of NWE calculated under section 8 exceeds the amount the employee would have received had he not been incapacitated for work. As Gyles J. said in Comcare v Hart [2004] FCA 1067 at paragraph 11 :
“the reviewable decision purported to be made pursuant to s8 (10) of the Act. That provision operates to reduce the NWE that would otherwise be applicable, by the amount of the excess thrown up by the comparison to which that provision refers. Section 8 (10) would certainly not authorise substituting an NWE based upon some existing position in lieu of the original NWE calculated in accordance with s 8 (1) and s 8 (2) (with any appropriate adjustments over time pursuant to the other subsections).
As Mr Cooper continues to be employed by the ATO (and still remains employed by the Commonwealth) the relevant paragraph of section 8 (10) is (a). There must therefore be a comparison between the amount of the applicable NWE and the amount of the hypothetical “earnings” Mr Cooper would have received if he were “… not incapacitated for work”. It is necessary to compare those amounts in order to determine whether the NWE exceeds the earnings Mr Cooper would receive had he not been injured and incapacitated for work.
The plain intention of section 8 (10) (a) is to ensure that an injured commonwealth employee does not received more than he would have received if he had not been injured and continued to work. Because the comparison is simply with the pre-injury NWE, and not the actual amount of compensation payable after applying the provisions in section 19 (3) of the Act, that comparison does not necessarily accurately reflect the comparative positions. It does not take into account, for example, the 25% reduction in the NWE which applies if an injured employee is not working at all.
In order for the Tribunal to make the comparisons required by section 8 (10) (a) it is necessary for it to consider all of the material before it in order to determine, as best it can, the amount of earnings Mr Cooper would have received had he not been incapacitated for work. This is an exercise in supposition described by Dowsett J. in John Holland Group Pty Ltd v David Robertson [2010] FCAFC 88 at paragraph 74 in the following terms :
“Section 8 (10) (a) demands a notional enquiry which commences with the employee’s actual employment. The enquiry is as to his or her earnings in that employment had he or she not been injured. Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident”.
It is now necessary to consider all of the evidence in order to decide, for the purposes of section 8 (10) (a), the earnings Mr Cooper would have received had he not been injured and incapacitated. In particular the Tribunal will decide whether Mr Cooper would have remained at APS3 level or at some point been promoted to APS4 level. If it finds he would not have been promoted to APS4 then it is necessary to then consider the alternative proposition advanced by the applicant, namely that he would have continued to be paid higher duties at APS4 level.
IF HE WAS NOT INCAPACITATED FOR WORK WOULD MR COOPER HAVE BEEN PROMOTED PERMANENTLY TO APS4 LEVEL?
It is necessary at this point to refer to the issue of onus of proof. That issue was discussed at the hearing and also raised in counsel’s written submissions.
It has long been understood that in proceedings before this Tribunal, which are essentially administrative in nature, no formal onus or burden of proof is borne by a party unless, of course, the specific legislation creating the Tribunal’s jurisdiction expressly establishes an onus or burden (See, e.g., Section 14ZZK of the Taxation Administration Act 1953.
Despite the absence of a formal onus or burden of proof it is a matter of common sense that the Tribunal has to be satisfied that matters essential to a party’s case, are indeed present. If an essential element of a person’s case is not established then that person obviously cannot succeed on that particular issue. This informal obligation is well expressed in the phrase – “he who asserts or seeks a result must prove” (see Ladic and the Capital Territory Health Commission [1982] FCA 173 per Fox J. and Colebrook and Australian Postal Commission [1983] AATA 40).
An application to the Tribunal may involve a variety of relevant assertions by the parties. It may be that the applicant makes certain assertions for which he or she needs to advance material in order to satisfy the Tribunal or it may be that the respondent makes other assertions which it must establish.
In the application now before the Tribunal the respondent contends that the Higher Duties Allowance is no longer generally available in Mr Cooper’s section of the ATO. If that is to be established to the Tribunal’s satisfaction then it must have sufficient material before it to reach that conclusion. On the other hand the applicant submits that, had he not been incapacitated, he would have been promoted to APS4 level. Again, there must be sufficient cogent material before the Tribunal to persuade it of that contention.
As well as questions of onus there is also a standard of proof required. In the absence of a legislated standard (e.g. section 120 of the Veteran’s Entitlements Act 1986) the Tribunal has consistently determined relevant facts on the “balance of probabilities” (see Field and Australian Postal Corporation [2003] AATA 1036 and Roe and Comcare [2003] AATA 126).
As previously mentioned Mr Cooper has been employed by the ATO in Hobart since the 27 March 200. He initially worked full time but later, because of his work related injury, he was restricted to part time duties. From a date early in 2011, as has been mentioned, Mr Cooper has no longer worked at all as suitable duties have not been available. He remains an employee of the ATO. Throughout the total period of his employment at the ATO he has been a permanent APS3 level employee.
If Mr Cooper had actually been promoted during his period of incapacity his NWE would then reflect the increase in salary which resulted from that promotion. (See section 8(7) of the Act).
It is asserted on Mr Cooper’s behalf that had he not been incapacitated for work he would have been promoted, at some point in time after his injury, from his substantive APS3 level to the APS4 level. It is contended that he would have received an increase in salary equivalent to, or more than, the Higher Duties Allowance he had been paid as part of his NWE.
It is submitted that there should therefore be no reduction in his weekly compensation payments pursuant to section 8 (10) (a) of the Act.
In her closing written submission Ms Taglieri, counsel for the applicant, referred to particular elements of the evidence which she contends establishes that Mr Cooper would have been promoted to APS4 levels. It is submitted on the applicant’s behalf that this evidence shows that there was “…a good chance, almost a certainty, that Mr Cooper would have been promoted to APS4 had he not been injured”. In her written submission Ms Taglieri referred to the following evidence:
(a)Most work done in Mr Cooper’s unit or area of work became classified at APS4 level. Ms William’s evidence that three quarters was.
(b)Although the Respondent asserted that no APS4 higher duties were available after 30 June 2008 at the ATO Hobart, that is plainly wrong. Exhibits A7, A8 and A9 establish that such work was available and done. Ms Williams corrected herself in her oral evidence.
(c)Mr Cooper had undertaken APS4 level duties for lengthy periods prior to his injury and proven himself an efficient and capable employee at that level. All performance appraisals were to that effect, except on in 2009, after his injury. Even in this instance Ms Williams agreed that the poorer performance was most likely due to symptoms of pain.
(d)All persons in Mr Cooper’s area or unit who were APS3 level and applied for promotion in Wave 1 and Wave 2, obtained promotion to APS4. Mr Cooper’s evidence about this ought to be accepted and is confirmed by the searches he made of the APS Gazette, the result of which is contained in Exhibit A5. Mr Williams essentially confirmed Mr Cooper’s evidence in this regard.
(e)The Wave 1 and Wave 2 promotions were especially targeted or designed to permanently promote employees acting in higher duties to that higher duty level. Ms Williams effectively agreed, although she did choose to split hairs, referring to order of merit selection. The contents of Exhibit R4, confirms Mr Cooper’s evidence and the substance of his case. Annexures 6 and 7 of Ms William’s statement are highly relevant to this.
(f)All employees of Mr Cooper’s area/unit at ATO Hobart who were APS3 became permanent APS4 as a result of the wave promotions (except Fletcher and Rothwell who did not apply and Mr Cooper who was injured)..
(g)Although some criticism was made of aspects of Mr Cooper’s work and performance by witnesses called by the Respondent, when that evidence was tested, it became apparent that the criticism was hardly fair, sufficient to have prevented him getting promotion or not an accurate representation of his real capacity and performance. Ms Williams conceded as much.
(h)Until his injury, (and indeed mostly after injury too), the Applicant was routinely assessed as performing at a good and acceptable standard for APS4 work. The performance appraisal documents and statistics included in Exhibit R3 and Exhibit A4 verify this. As does the evidence of Ms Williams, who agreed that this meant Mr Cooper was likely to have been promoted permanently to APS4 if not for his injury.
(i)The Respondent has produced evidence which is unchallenged that the number of employees in the Hobart ATO increased after 2006, Exhibit R7. The workforce at ATO Hobart was an increasing one, not a constricting one. It can easily be understood that employees with experience, proven record of performance and more security of tenure would be well placed and preferred to secure promotions as they became available and they clearly did.
(j)Although the Respondent may argue that Mr Cooper had not certainty of securing a permanent promotion to APS4 in wave 1 or wave 2, there is no evidence whatsoever, that persons not already employees of the ATO, were appointed to APS4, in fact the evidence is to the contrary. The evidence establishes that virtually all if not all permanent promotions to APS4 in Mr Cooper’s area were filled from persons already employed in that area. Exhibits A5 and R8, the email from Julie James to Lindrea Dearne dated 1 November 2012 confirm the evidence of Mr Cooper”.
Mr Cooper, although remaining throughout his employment at APS3 level, had frequently been performing work at APS4 level. Because of this, as has been mentioned, he was paid higher duties at that level for particular periods in 2001, 2003, 2004, 2005, 2006, 2007 and 2008.
During those periods not only was Mr Cooper being paid higher duties at APS4 level he also graduated through the various increment levels within APS4 from increment 1 to increment levels 2, 3 and 4 and was paid accordingly. Increment 4 is the highest increment available within the APS4 level. Mr Cooper said he reached increment level 4 “later in 2006” (Transcript page 22).
Mr Cooper said he had applied for promotion in the first “4 years or so” after he commenced work at the ATO. He said :
“I believe it was once. It may have been twice but – yes, I will say once for sure”
(Transcript page 50).
At the time of his injury Mr Cooper was employed in the “Micro Enterprises and Individuals – Interpretive Assistance Team” (“ME&I”).
In 2006/2007 the ATO undertook a number of recruitment and promotion processes throughout Australia. Those processes were undertaken in 5 separate “waves”. Waves 1 and 2 were of particular relevance to this application as they provided opportunities for permanent appointment of ATO staff to APS4 level.
The evidence is that at the time of waves 1 and 2 there were 9 APS3’s in the ME&I Team in Hobart. Those employees were advised that there were to be 4 new APS4 positions in the ME&I Team at the Hobart ATO (See paragraphs 30 and 31 of exhibit R9).
Mr Cooper told the Tribunal that he applied for a promotion in wave 1 but was unsuccessful. He said in evidence that he was the only employee from the ME&I Team in Hobart who applied and was not promoted.
It was also mentioned by Mr Cooper that he also applied for a promotion in 2008. Again he was unsuccessful. Of that particular application for promotion he said :
“I was in intense pain, under a lot of stress, and it was very difficult for me to you know, do an application as I would have liked”.
(Transcript page 53).
According to Mr Cooper two other employees in the ME&I Team have never applied for promotion and continue to be employed at APS3 level. As the Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 requiring that the names of those two employees not be disclosed in these reasons they will be referred to as “X” and “Y”.
The Tribunal considers the circumstances relating to X and Y to be of significance in this case. Both those employees worked for a considerable period of time at APS3 level in the same ME&I Team as Mr Cooper. Both have undertaken significant periods of higher duties at APS4 level. The Tribunal is satisfied that neither has been promoted to APS4. Mr Cooper believes that both X and Y did not apply for promotion. Despite Mr Cooper’s stated belief the Tribunal is left in a state of uncertainty as to whether or not either X or Y, or both, actually applied for promotion. There is evidence that all the APS3’s in ME&I were encouraged to apply for promotion in the waves. Perhaps, as Mr Hobbs for the respondent suggested, X and Y did not wish to admit to anyone that they had applied for promotion and had been unsuccessful. Although unsure of the true position the Tribunal considers it would be rather surprising if X and Y had not applied for promotion particularly if there was truth in Mr Cooper’s claim, that except for himself, promotion for APS3 employees who had been receiving APS4 higher duties was virtually automatic.
The Tribunal is however satisfied on the evidence before it that, although much of the work performed in the ME&I Team was at APS4 level, promotion to that level was not automatic but occurred through a competitive process based on merit after proper assessment following a formal application.
A number of relatively senior employees of the ATO gave evidence at the hearing. They were Nicole Dianne Williams, Ian Lesley Wright, Jonathan Andrew Hortle and Peter John Hardstaff.
Ms Williams, who had been Mr Cooper’s team leader at various limited periods from 2005 until 2009 in essence said that the purpose of the wave promotions was not designed to simply to promote people doing higher duties into one of the promoted positions. She emphasised that it was a “merits based system” and that “you need to be found suitable for the position”.
Ms Williams confirmed that apart from Mr Cooper, employees X and Y are the only ones in the team who had been paid higher duties at APS4 and who, after the promotion opportunities, remain at APS3 level. (Transcript page 259).
Ms Williams made reference to Mr Cooper’s work performance. She said in her written statement (exhibit R9) at paragraph 49:
“Each time I was acting as Solomon’s supervisor I noticed his performance was gradually falling away. His system knowledge declined as did his interest in being part of the team. His motivation and interest in helping himself also declined. Solomon was not a self -starter, he always had to be prodded to do training. At work Solomon would do the bare minimum and just scrape through …”
Ms Williams agreed that in assessing Mr Cooper’s work performance she had “probably not” taken into account the effect his injury was having on the quality of his work.
Later in her evidence Ms Williams agreed that people who were doing APS4 level classifying were “highly likely” to get a promotion.
Ms Taglieri asked as follows :
Taglieri:
“Right. And so Mr Cooper who had been doing those duties, was highly likely to have got it, but for his injury?”
Williams:
“Yes”
(Transcript page 287).
That statement by Ms Williams was however somewhat qualified later in re-examination when she agreed that it was dependent upon the credentials, suitability and aptitude of other applicants for the position (Transcript page 316).
Mr Wright had held various positions at the ATO in Hobart since 1986. He was an ME&I Team Leader from approximately April 2001 until October 2002. This was, of course, before Mr Cooper suffered his injury in January 2006.
Mr Wright criticised Mr Cooper’s work performance. He said at paragraph 8 of his witness statement (exhibit R11):
“When compared with others in the team Solomon was not as competent. Others had better case turnover, better work ethic and they had a far greater willingness to work as part of a team.”
In paragraph 9 of Mr Wright’s witness statement he said:
“…overall I would rate him as somewhere a 2 – needs development and 3 – satisfactory. This rating would be lower than the average rating I would have applied to other staff at APS3 level in the team at that time. I would be surprised if a Selection Committee would consider a person as suitable for promotion with these ratings.”
Those assessments by Mr Wright were based on his recollection of Mr Cooper’s performance and certain events of more than a decade ago. The Tribunal did however find Mr Wright to be a generally reliable witness. His views do indicate that there were concerns about Mr Cooper’s performance prior to his injury.
Mr Hortle is a very experienced ATO employee. He has been employed by the ATO for some 23 years. He spent at least 6 years working with APS3 and APS4 staff mostly in quality assurance or in supervisory roles.
Attached to Mr Hortle’s witness statement (exhibit R12) was a written assessment of Mr Cooper’s work on CIS Audit Reports. It is dated 26 July 2001. There were some positive comments in this report but also a number of criticisms of the standard of Mr Cooper’s work. e.g., in the final paragraph he stated:
“There are often an above average number of careless errors in Solomon’s reports (e.g. : TFN’s misquoted, words missing). This may also be a symptom of not putting enough work into a case before submitting it.”
In paragraph 6 of his statement Mr Hortle said as follows :
“With the passage of time all that I can remember of my opinion of Solomon, as his manager, Team Tax Practitioner and technical advisor over a number of years, does align with my written report of July 2001. His work was satisfactory but he had some persistent faults as outlined in that document. I would have certainly placed him in the bottom 1/3 of the team at that time. When comparing him with others in the team (and throughout the ATO given the nation-wide scope of may ATO selection processes) I would not have said Solomon was particularly competitive for promotion. This assessment of Solomon is based on my experience of 23 years working in the ATO and at least 6 years in roles directly relevant to these sorts of judgements about staff suitability for work at this level”.
At exhibit R3 page 25 is a document headed “Comments for Performance Appraisal 2003-2004 Solomon Cooper”.
Mr Hortle agreed that he had prepared the comments following discussion with other “TTP’s”. When questioned in cross-examination he said: “Yes that is quite a positive report”. (Transcript page 346).
He said that particular appraisal did not alter the view he had expressed in paragraph 6 of his written statement. Mr Hortle stated that that paragraph expressed: “The overall impression that I am left with after a number of years …”
Again, the Tribunal found Mr Hortle to be a reliable witness.
Mr Hardstaff has been employed at the ATO since November 1999. He said Mr Cooper joined the same team at the same level “shortly thereafter”. He said “our paths had crossed intermittently throughout our careers” (transcript page 354).
Exhibit R2 is headed “Annual Appraisal Discussion Solomon Cooper – 9.30 a.m. – 3 September 2009 STA Comments – Peter Hardstaff.
This document includes some positive comments but again there are criticisms of Mr Cooper’s performance. Importantly it states, in part, :
“Capable of APS4 level work and has demonstrated this previously, although not considered to be fully effective at this level. To be fully effective you need to be able to work independently at the routine levels.
Very good at the bottom end of routine casework but tends to struggle when getting towards the top end or more complex routine casework”.
Mr Hardstaff agreed that he did not discuss with Mr Cooper the impact his work-related injury was having on his work performance. He agreed he had focussed only on “the technical aspects” of Mr Cooper’s work.
Mr Hardstaff was asked by Ms Taglieri:
“If a permanent position became available at APS4 would a person who had been doing higher duties at APS4 level be in the box seat to get that?
Mr Hardstaff : “No. And the evidence was – it’s clear that it isn’t putting them in the box seat. What it does, it gives them the ability to address the selection criteria and then it just depends who has the strongest claim to that selection criteria. And not necessarily would it go to the person who has been sitting in the position” (Transcript page 359).
At paragraph 8 of his witness statement (exhibit R13) Mr Hardstaff said :
“The higher duties were determined on a competitive process and I do not believe that Solomon would have been as competitive as others from the team”.
The Tribunal also finds Mr Hardstaff to be a credible witness.
The Tribunal has considered the various performance appraisals of Mr Cooper’s work. They include both positive and negative comments. His APS4 work was generally satisfactory. The appraisals indicate that Mr Cooper’s productivity was at an acceptable level but that the quality of his work was sometimes lacking. There was criticism of aspects of his work performed before the January 2006 injury and since.
In 2008 an order of merit was prepared for an “expression of interest” process to appoint an APS4 case officer/classifier at the ATO in Hobart. The closing date for lodging an “expression of interest” was the 20 October 2008.
Of the 14 applicants listed in the order of merit Mr Cooper was listed number 14. Ms Williams acknowledged that it was the document prepared by herself and another ATO officer. Mr Cooper was given the lowest rating of 2/5.
The Tribunal finds it most surprising that there are two different versions of this document said to have been prepared in 2008 (see annexure 3 to exhibit R9 and exhibit R10). In the two versions some applicants have different scores in each version. The entries for employees X and Y are markedly different in each.
Although concerned about these apparent inconsistencies the Tribunal does however accept as accurate the order applicants were placed in and that of the 14 applicants Mr Cooper was rated number 14. This rating was arrived at a considerable period after Mr Cooper’s injury and while he continued to suffer the effects of that injury.
After carefully considering all the material before it the Tribunal is not satisfied to the standard required that Mr Cooper would have been promoted permanently to APS4 level had he not been injured in January 2006 and incapacitated for work.
In arriving at this decision the following factors have particularly influenced the Tribunal :
(a)The quality of Mr Cooper’s work performance both before and since his injury has been questioned in the evidence of several witnesses and in written appraisals. The overall impression is that he was satisfactory at the less complex aspects of APS4 level work but found the more complex aspects of that work to be most difficult. Because of this deficiency in his work he was not able to compete successfully in a merit’s based selection process for promotion to APS4 level.
(b)It is of relevance that he did apply for promotion on a number of occasions but was unsuccessful. He was then subjected to all of the rigours of a competitive selection process. The Tribunal is being asked to find that Mr Cooper would have been promoted but without the opportunity to assess the credentials of other potential applicants as occurs during a normal competitive selection process.
The difficulties attached to such a notional process was stressed by Deputy President Blow in re Jefferts and Comcare (1996) 24 AAR 10 at paragraphs 14 and 15.
(c)Mr Cooper was not the only ME & I team member who had not been promoted to APS4 level. Employees X and Y had also been paid the Higher Duties Allowance at APS 4 level over a considerable period of time but remain at APS3 level at the ATO. It is possible that they may not have applied for promotion but on the evidence before it the Tribunal is unable to make a positive finding that they did not seek promotion to APS4 level.
(d)The wave promotions as well as the October 2008 promotion process were merits based competitive selection processes. It was not simply a case that anyone at APS3 level who had been doing APS4 work and paid a Higher Duties Allowance would definitely be promoted permanently to APS4 level. If that was the case why wouldn’t employees X and Y apply, be appointed and receive the increased salary? If they did in fact apply then why were they not promoted?
(e)The selection process for a promotion to the ATO APS4 positions was rigorous. This is clear from the relevant annexures to Ms William’s witness statement. The process included advertising, establishing selection criteria, written applications, appointment of a selection panel, a full and proper consideration of the merits of each applicant and then finally a decision based on merit.
Persuasive evidence is obviously required to satisfy a Tribunal that a person would have successfully negotiated all of the steps required to gain promotion as a permanent employee at APS4 level.
(f)A critical issue is whether deficiencies in Mr Cooper’s work and his inability to compete successfully in the selection processes resulted from his serious work-related injury rather than his competence as an employee.
Some of the criticisms of his work performance did not properly take into account the effects of his injury. However the Tribunal is particularly persuaded by the evidence of his performance prior to the injuries. The assessment dated 26 July 2001 annexed to Mr Hortle’s statement, indicates that careless errors were then occurring. There is reasonably consistent criticism of the quality of his work over a quite lengthy period both prior to the injury in 2006 and since. The Tribunal is satisfied that Mr Cooper’s injury and incapacity were not the cause of his failure to gain promotion to APS4 level.
(g)The Tribunal is satisfied on the evidence that Mr Cooper would have remained in the ME&I Team at the ATO in Hobart. He had been working in that team for a number of years and had gained experience in the work it undertakes. The Tribunal concludes that Mr Cooper would not have moved to another section of the ATO and thereby gained a promotion.
The Tribunal is not satisfied, on the balance of probabilities, that Mr Cooper would have been promoted to APS4 level had he not been incapacitated for work.
IF HE WAS NOT INCAPACITATED FOR WORK WOULD MR COOPER HAVE CONTINUED, AFTER 30 JUNE 2008 TO BE PAID A HIGHER DUTIES ALLOWANCE AT APS4 LEVEL?
The Tribunal finds on the evidence that, because of budget constraints, the Higher Duties
Allowance became generally unavailable to employees in the ME&I Team after the 30 June 2008.It further finds that although the allowance generally ceased to be paid after that date, for limited periods of time in 2008 and 2009 a Higher Duties Allowance was paid to some employees in the ME&I Team.
Ms Williams said in her witness statement as follows :
“During the period July 2008 until November 2008 there were no higher duties carried out by anyone in the team. In November 2008 the following periods of higher duties were available in the ME&I team.
5 November 2008 to 26 November 2008,
18 November 2008 to 6 February 2009,
27 November 2009 to 6 February 2009 and
28 April 2009 to 29 May 2009.
On 13 October 2008 a request for expressions of interest was circulated to undertake higher duties at the APS4 level. There were two positions for a period of three months. The positions were required to be filled from within the team. Solomon was unsuccessful in obtaining either of these positions based on merit. Solomon had been ranked last of all who submitted an expression of interest (See annexure 4).
One employee carried out higher duties for the period of 5 November 2008 to 26 November 2008 and 27 November 2008 to 6 February 2009 and a second team member carried out higher duties from 18 November 2008 to 6 February 2009 and 28 April 2009 to 29 May 2009. Giving a total of 13 weeks for one employee and 16 weeks for the other employee since November 2008. There have been no other higher duties carried out within the team.
From November 2008 when APS4 work was required to be completed and permanent APS4 staff were not available, where possible graduates, who were at the APS4 level, undertook those duties. Graduates had taken part in an extensive corporate and technical development program which builds on their existing education qualifications and provides AT with staff who are qualified to take on all areas of tax work. Solomon is not a graduate from the ATO graduate program.”
In her oral evidence Ms Williams explained that an employee was required to do APS4 duties at that time because an employee was absent “for a short period”. She confirmed that employees X and Y were considered suitable to do this work. She believed both X and Y were paid a Higher Duties Allowance for that work.
Ms Williams also agreed that those two employees would be doing APS4 work from time to time in the future because someone might be on leave or there might be “a change of demands in the office”.
Although the Tribunal is not satisfied that Mr Cooper would have been promoted permanently to APS4 level it does find on the balance of probabilities that had he not been incapacitated for work he would have participated in any allocation of higher duties if and when the need arose from time to time for such duties in the ME&I team.
The Tribunal has reached this conclusion because Mr Cooper, both before and after his injury, frequently undertook work at the APS4 level and was paid the Higher Duties Allowance at that level for the work he did.
In the reconsideration decision of the 3 June 2011 it is stated as follows :
“Ms Bower reported on the 20 October 2008 an expression of interest was circulated for higher duties at the APS4 level. There were two positions available for a period of three months and the criteria expressed that the person needed to be full time, able to perform the classifying duties”. (T9 at page 38).
The terms of the expression of interest therefore plainly denied Mr Cooper the opportunity to obtain higher duties at that time as he was then not working full time and not able to do classifying duties as a result of his injury and incapacity.
It is also noted that the two order of merit documents (annexure 3 to exhibit R9 and exhibit R10) do not detail Mr Cooper’s prior experience in undertaking extensive higher duties at APS4 level. This omission is misleading and appears to be very unfair to Mr Cooper. In contrast for both employees X and Y there is mention of their prior experience in undertaking higher duties.
The evidence indicates that Mr Cooper was placed at a serious disadvantage as a direct result of his incapacity in seeking access to higher duties at APS4 level between 5 November 2008 and 29 May 2009.
The Tribunal is satisfied that had he not been incapacitated for work Mr Cooper would have been successful in obtaining at least portion of the higher duties allocated to his team during that period in 2008 and 2009.
APPLICANT’S WRITTEN SUBMISSION OF 16 APRIL 2013
At the hearing on the 13 February 2013 the Tribunal granted leave to Ms Taglieri to provide further submissions on the contention that any removal of the Higher Duties Allowance would only take effect from the date of Comcare’s Determination of the 16 March 2011 and not from the 30 June 2008 as submitted on behalf of the Respondent. (See Transcript pages 385 – 393).
In a written submission dated 16 April 2013 Ms Taglieri (at paragraph 16), after canvassing several other issues, summarised her argument on the specific matter relevant to the grant of leave as follows :
“If the Tribunal determines that HDA should cease, the date of such cessation should be the date the decision maker complied with its statutory duties (sections 61 and 72) and was seized with sufficient evidence to make a finding as to the matters required by section 8 of the Act. The applicant contends that that was no earlier than the 16 March 2011.”
Mr Hobbs for the respondent replied by written submission dated 23 April 2013. At page 4 of that submission he said:
“Finally, the date of a determination by Comcare cannot be determined of when an entitlement is to commence and when it is to end. The entitlement, when it commences and when it ends are questions of fact. The entitlement, when it commences and when it ends cannot be affected by the date on which a determination is made by Comcare. The procedure enacted in the legislation given with the making of a determination is merely the machinery implemented by the legislature to enable an entitlement to be ascertained, assessed and determined on the facts and in accordance with the law. Comcare is obviously not able to entertain the making of a determination until it is either asserted that an entitlement arises or is asserted that an entitlement should cease on the facts of a particular case, which necessarily means the determination must follow the occurrence of those facts. The determination necessarily cannot be made until after those facts have occurred and are determined.
In conclusion, for the reasons stated in the preceding paragraphs, the reduction in entitlement to Higher Duties Allowance should, as a matter of law, be held to be effective from the date those duties would have ceased to have been available to the applicant had he not been incapacitated for his injury – i.e., 30 June 2008 (assuming the Tribunal so concludes) – and not the date of determination by Comcare on the 16 March 2011”.
The applicant’s counsel was not able to point to any provision in the Act nor to any authority which directly supports her contention that any reduction in Mr Cooper’s entitlement to compensation should take effect only from the date of the determination by Comcare.
The facts are that the employer, not Comcare, ceased paying the Higher Duties Allowance as part of the weekly compensation paid to Mr Cooper “shortly after the 30 June 2008” (see transcript page 7). The employer did not inform Comcare of this decision until the 3 December 2011. That communication occurred only after Mr Cooper had forwarded an email regarding the cessation of his Higher Duties Allowance. Comcare, as the Determining Authority, then made a determination dated the 16 March 2011. Mr Cooper then pursued his right of review by first seeking a reconsideration of the determination. He then applied to this Tribunal for a merits review of the reconsideration decision.
There was no time limit for making a determination under section 61. After a determination has been made Comcare is required to notify the claimant of that determination “as soon as practicable”. Mr Cooper was informed of the determination by letter dated the 16 March 2011, the same day the determination was made.
It would appear from the evidence that the ATO unilaterally decided to deduct the Higher Duties Allowance component from Mr Cooper’s weekly compensation. At that stage, of course, he was still performing part time work at the ATO. There was clearly a lack of proper communication between the employer and Comcare. The resultant delay in informing Mr Cooper of the reduction in his compensation payments, which apparently he had not himself noticed, meant that he could not then pursue his appeal rights.
When Mr Cooper did receive formal notice of the determination he was then able to pursue his right to seek a reconsideration and then a full merits review by this Tribunal of the decision in its entirety.
The Tribunal is satisfied that there is no statutory basis or otherwise at law for extending payment of the Higher Duties Allowance from 30 June 2008 until the date of the determination on the 16 March 2011. Matters of procedure are to be distinguished from those sections of the Act which establish a claimant’s entitlement to compensation. The Act details the factual circumstances required to establish a compensation claim for incapacity for work.
The person’s NWE is defined in section 8. That figure may be reduced if and when section 8 (10) comes into effect. The claimant’s entitlement to compensation is created by the statute. There is no provision in the Act which brings about a delay in the reduction of weekly compensation under section 8 (10) because of some procedural deficiency.
If that had been the legislature’s intention then it would not have been difficult for it to include appropriate provisions in the Act to achieve that purpose.
The Tribunal finds no basis at law for the applicant’s contention that the Higher Duties Allowance must continue to be included in Mr Cooper’s NWE until Comcare made its determination on the 16 March 2011.
CONCLUSION
As has been indicated the task required of the Tribunal is one based on supposition. That supposition, however, must have a proper foundation in the evidence as presented.
The Tribunal finds it is probable that Mr Cooper, had he not been incapacitated for work, would have remained at APS3 level in the ME & I Team at the ATO in Hobart. It further finds that in addition to his base salary he would have received, from time to time, payment of the Higher Duties Allowance at APS4 level.
How is the Tribunal to determine the amount of Higher Duties Allowance to be paid to Mr Cooper since the 30 June 2008 and into the future? The Tribunal concludes that a reasonable approach is to calculate the average amount of Higher Duties Allowance at APS4 level, paid to the end of each financial year to all other APS3 level employees in the ME & I Teams (or their successors) at the ATO in Hobart. This approach is similar to the methodology adopted in re Jefferts and Comcare (cited above) and also recognised as appropriate in Blade and Comcare [2001] AATA 291. The Tribunal is not asked to determine a precise quantum (Transcript p.7) and, in any event, it does not have sufficient information to do so.
DECISION
The decision under review is set aside and the matter remitted to the respondent for re-determination in accordance with the following directions :
(h)The earnings the applicant would have received since 30 June 2008 if he had not been incapacitated for work would, during the period 5 November 2008 to 29 May 2009 and perhaps at other times, have included some payment of Higher Duties Allowance.
(i)The amount the applicant would have received in each financial year after 30 June 2008 by way of Higher Duties Allowance is to be calculated for the purpose of section 8 (10) (a) of the Safety Rehabilitation and Compensation Act 1988 in accordance with the methodology set out in paragraph 111 of the Tribunal’s reasons for decision.
COSTS
This decision is one to which section 67 (9) of the Act appears to apply. If that is the case then the applicant is entitled to costs. I will however hear counsel further as to costs if an application is made within fourteen days. If no application is made within that time I will order that the respondent pay the applicant’s costs of these proceedings as agreed or taxed. That order will then be incorporated in this decision.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of the Hon. R J Groom AO, Deputy President. ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 9,10,11 October 2012, 6,7,8 and 13 February 2013 Counsel for the Applicant Ms Sandra Taglieri Counsel for the Respondent Mr Craig Hobbs Solicitors for the Respondent Ms Naomi Richards
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