"SRGGGG" and Military Rehabilitation and Compensation Commission

[2006] AATA 1151

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 1151

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/667

GENERAL ADMINISTRATIVE  DIVISION		)
Re		"SRGGGG"

Applicant

And MILITARY REHABILITATION & COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly &
Member, Mr Ian Way

Date of oral decision        21 November 2006

Date of written reasons   8 December 2006

Place  Sydney

Decision The decision under review is affirmed.    

………………………………..

Signed Presiding Member,
  Senior Member Mrs Josephine Kelly

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant and Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent. 

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly   and Member, Mr Ian Way

CATCHWORDS

Worker’s Compensation – issue is what rate to apply when calculating the Applicant’s normal weekly earnings – Respondent had calculated based on rate of pay for Sub-Lieutenant – Applicant argued should be calculated based on pay for Lieutenant – Held Applicant’s normal weekly earnings are to be calculated based on the rank of Sub-Lieutenant – decision under review affirmed.

LEGISLATION

Sections 5 and 8, Safety, Rehabilitation and Compensation Act 1988

CASES

Comcare v Thompson [2000] FCA 790

McDonald v Department of Defence (1999) FCA 882

1.      There have been previous proceedings in the Tribunal and in the Federal Court concerning the Applicant.  In essence, he was found to suffer compensable conditions arising from his experiences at the Australian Defence Force Academy (“ADFA”), from which he resigned at the beginning of his second year of training.  He joined ADFA in January 1991.

2. This application seeks a review of a decision made on 21 February 2006, and affirmed on reconsideration, that the Applicant’s normal weekly earnings are to be calculated based on the rank of Sub-Lieutenant, as this is the rank he would have obtained on graduation from ADFA if he had graduated. The case, argued on behalf of the Applicant, was that his normal weekly earnings should be calculated based on the rank of Lieutenant. The issue in this case is the interpretation of section 8(6) of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). Relevantly, section 8(6) provides:

Subject to this section, if the minimum amount per week payable to an employee in respect of his or her employment by the Commonwealth or a licensed corporation at the date of the injury is increased, or would have been increased if the employee had continued in that employment, because of

…

(b) the completion by the employee of a particular period of service; or

(c) the receipt by the employee of an increase in salary, wages or pay by way of an increment in a range of salary, wages or pay applicable to the employee or to his or her office, position or appointment;

the normal weekly earnings of the employee before the injury, as calculated under the preceding subsections, shall be increased by the same percentage by which that minimum amount per week is increased, or would have been increased, as the case may be.

3.      The Applicant’s father represented the Applicant and made submissions, which included what we regard as evidence.  No issue was taken by the Respondent about the Applicant’s father representing his son.  The submissions/evidence were mainly in the form of a written document, which he read out and which became exhibit A2.  It included enclosures and, in particular, evidence from Commander Carney, the Senior Instructor Officer and head of Instructor Primary Qualification (“ITPQ”) of the Royal Australian Navy from 1993 until his retirement in 2000, and from Admiral Forrest who was the Assistant Chief of Naval Personnel from April 1995 to July 1997.  We also heard brief oral evidence by telephone from Commander Carney and Admiral Forrest. 

4. Enclosure 5 of the written document prepared by the Applicant’s father, set out pay rates he had calculated from 1 January 1995 until 1 July 2005. It was based on various documents. Relevantly, he argued that the Applicant would have been entitled to pay at the rank of Lieutenant from 1 January 1997 with increments thereafter. He said that the SRC Act was written for civilian public servants and not members of the ADF, and therefore applying it to ADF personnel is difficult. He argued that section 8(6)(c) could be interpreted for a member of the Defence Forces as applying to promotion and the associated pay rise. In essence, the Applicant’s father argued that promotion to Lieutenant was automatic and occurred after six years.

5.      The Applicant joined ADFA in the Instructor Branch category, which meant that he would have been engaged in training activities on graduation.  The Applicant’s case accepted that the completion of the Instructor Officers’ Application Course was a requirement for substantive promotion to Lieutenant.  The Applicant’s father referred to Captain Bate’s letter of 11 September 2006, an enclosure in his document, which states that:

No ADFA graduates failed the Training Systems Application Course between 1994 and 1997.

6.      He also referred to the evidence of Commander Carney. 

7.      It was accepted that “automatic” promotion to Lieutenant is subject to commanding officer’s approval, but he referred to T6, page 26, paragraph 7, which he described as a negative reporting system, that is, if nothing was heard from the commanding officer, the officer is promoted to Lieutenant.  He also relied on Rear Admiral Forrest’s evidence that no officers who reached their initial minimum period of service (“IMPS”) which was nine years, had not made Lieutenant by that time. 

8.      The Applicant’s father referred to document PT24, which is an email referring to ABR6289, Chapter 13, which was said to be an Officers’ Career Management Manual, which came into being on 30 March 1999 when Defence instruction (N)PERS 42-15 (“DI(N)PERS 42-15”) was cancelled.  The latter document was said to be applicable during the Applicant’s possible period of service and provided for automatic promotion.  It is document T6 and we quote from page 26 paragraph 5, General Principle:

The General Principle is that all junior officers must complete six years of service prior to promotion to the rank of LEUT.  However, rank seniority credit, may be granted on the basis of successful completion of relevant tertiary qualifications and/or relevant work experience. The credits available for each method of entry are discussed later in this instruction. Typical promotion patterns in accordance with this principle are illustrated at Annex A.     

9.      During argument he elaborated upon that proposition. The example that he gave was that a person could be promoted to a higher rank while on a ship at sea and would be paid at the higher level while carrying out duties of a lower rank.  The Applicant’s father agreed that if a serviceman of a lower rank was acting in a position held by a person of higher rank he would be eligible for pay for higher duties. 

10.     The Applicant’s father distinguished the case of Comcare v Thompson [2000] FCA 790 on the basis that the case concerned a public servant, not a member of the ADF.

11. In relation to section 8(6)(b), the Applicant’s father referred to the completion of the IMPS, that is, the nine years, and annual salary increments, both applicable to the Applicant, as falling within that provision. In support of the contention that the Applicant would have made a successful career in the Navy but for the damage he suffered at ADFA, the Applicant’s father points to his undertaking a Master’s Degree by distance learning and learning German at the same time to assist his studies.

12.     We note the opinion of Mr Drummond (enclosure 4 to the document provided by the Applicant’s father) that the Applicant would almost certainly, and certainly on the balance of probabilities, have been promoted to Lieutenant had he remained in the Navy for the nine year period demanded under his return of Service Obligation Condition. 

13.     We heard evidence from the Applicant’s mother, as well as having her written statement, which is exhibit A1.  She expressed her frustration and anger at how her son’s case had been handled by MCRS. 

14. The evidence from the Respondent was a minute from Captain B.S. Jones. The documents provided to the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act of 1975 (“the T-documents”) were also before the Tribunal.

CONSIDERATION

15. At the outset, we cannot accept the submissions made by the Applicant’s father that the SRC Act was written for public servants and not members of the ADF and therefore applying it to ADF personnel is difficult. Section 5, which defines “employee”, explicitly refers to a member of the Defence Force (s 5(2)(b)).

16. We considered both section 8(6)(b) and (c) of the SRC Act in terms of our determination. As the case for the Applicant was presented principally on the basis of 8(6)(c), we address that provision first.

17.     We are unable to accept the argument for the Applicant.  We consider that the provision would apply to the increments set out by the Applicant’s father in relation to a Lieutenant, from Lieutenant O/P to Lieutenant O/5, but it does not apply to a change in rank from Sub-Lieutenant to Lieutenant.  We consider that the provision itself makes this clear.  It is what Sunberg J held in McDonald v Department of Defence (1999) FCA 882, which binds us (see paragraph 12 of that decision).

18. There seem to be two arguments that emerge from the case put by the Applicant’s father in relation to section 8(6)(b). These are either at the end of six years service (see Defence Instruction PERS 42-15), or nine years service (the completion of the IMPS), the Applicant would have obtained the rank of Lieutenant. Paragraph 7 of DI(N) PERS 42-15 at T6, page 26, says:

All ’automatic promotions’ are subject to the officer’s medical fitness, the achievement of all necessary qualifications and the recommendation of the officer’s Commanding Officer.  Commanding Officers’ will be advised, by the Navy Office of those officers due for automatic promotion (or confirmation in rank) a minimum of four weeks in advance of the date such a promotion confirmation is due.  Unless a recommendation to the contrary (with supporting reasons) is received from the Commanding Officer. The officers concerned will be deemed to have been promoted or confirmed on the due date.

19.     There are other provisions, which deal with probationary periods, provisional promotion and delay in promotion in that document. 

20. In our opinion the increase in pay by virtue of the promotion to Lieutenant is not subject solely to “the completion by the employee of a particular period of service” within the meaning of section 8(6)(b) but to the other criteria just referred to and also those referred to in evidence. Section 8(6)(b) requires that the only criterion is the completion of a particular period of service. Accordingly we do not accept the submission made on behalf of the Applicant.

21.     While we sympathise with the circumstances of the Applicant and his parents, we are bound by the legislation that Parliament has enacted and the cases in superior Courts that have interpreted the legislation.

22.     For the reasons set out above, we conclude that the Applicant’s normal weekly earnings are to be calculated based on the rank of Sub-Lieutenant.  The decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly

Signed: Ms Preethi Nimmagadda

Associate

Date of Hearing:  20 November 2006 

Date of Oral Decision:               21 November 2006

Date of Written Reasons:         8 December 2006

Representative for Applicant:    Applicant’s father

Solicitor for the Respondent:   Sparke Helmore Lawyers

Counsel for the Respondent:   Miss Rhonda Henderson