Summers and Repatriation Commission (Veterans' entitlements)
[2018] AATA 315
•23 February 2018
Summers and Repatriation Commission (Veterans' entitlements) [2018] AATA 315 (23 February 2018)
Division:Veterans' Appeals Division
File Number: 2007/3957 and 2009/2689
Re:RONALD SUMMERS
APPLICANT
AndREPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:23 February 2018
Place:Melbourne
The Tribunal:
sets aside the decision of the respondent dated 3 July 2008 (and affirmed by the Veterans’ Review Board on 21 April 2009) in so far as it found that the applicant was entitled to pension at 100% of the General Rate; and
substitutes a decision that the applicant is entitled to a pension at the Special Rate under s 24 of the Veterans’ Entitlements Act 1986 with effect from 10 September 2007.
..................[sgd].....................................................
S A FORGIE
Deputy President
VETERANS’ ENTITLEMENTS – remittal - application for Special Rate of pension – alone test – alcohol dependence – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 s 44
Fair Work Act 2009 s 389
Veterans’ Entitlements Act 1986 s 13
Workplace Relations Act 1996 s 399A(4)
Cases
Blackman v Commissioner of Taxation [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409
Re Hornery and Repatriation Commission [1998] AATA 602; (1998) 52 ALD 317; 28 AAR 193
Re Jagroop and Minister for Immigration and Border Protection [2015] AATA 751; (2015) 67 AAR 288
Rendell v Repatriation Commission [2001] FCA 1881
Re Summers and Repatriation Commission [2010] AATA 803
Re Summers and Repatriation Commission [2013] AATA 439
Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179; 65 AAR 320; 145 ALD 30
Summers v Repatriation Commission [2011] FCA 1451
Summers v Repatriation Commission [2012] FCAFC 104
Summers v Repatriation Commission [2014] FCA 608
Secondary Materials
Macquarie Dictionary, Fifth Edition, 2009, Macquarie Dictionary Publishers Pty Ltd, Sydney
REASONS FOR DECISION
Deputy President S A Forgie
Mr Ronald Summers applied for pension at the Special Rate under the Veterans’ Entitlements Act 1986 (VE Act). He has been in receipt of pension at 100% of the General Rate for some time but the Repatriation Commission (Commission) refused his application for payment at the Special Rate. Its decision was affirmed by the Veterans’ Review Board and by a differently constituted Tribunal. On appeal, the Full Court of the Federal Court set aside that decision and remitted the matter to the Tribunal.[1] Since the remittal, the parties have agreed that Mr Summers’ alcohol dependence is a war-caused disease with effect from 10 September 2007. His conditions of bilateral sensorineural hearing loss, chronic bronchitis, emphysema, lumbar spondylosis and post-traumatic stress disorder (PTSD) had already been accepted as war-caused at an earlier time. The issue that remains outstanding is whether Mr Summers is entitled to a pension at either the Intermediate Rate under s 23 of the VE Act or at the Special Rate under s 24 of that legislation. I have decided that Mr Summers is entitled to pension at the Special Rate with effect from 10 September 2007. I have decided that he is entitled to be paid pension at the Special Rate with effect from 10 September 2007.
[1] Summers v Repatriation Commission [2015] FCAFC 36; (2015) 230 FCR 179; 65 AAR 320; 145 ALD 30; Kenny, Murphy and Beach JJ allowing an appeal from Summers v Repatriation Commission [2014] FCA 608; Mortimer J dismissing an appeal from Re Summers and Repatriation Commission [2013] AATA 439; Senior Member Friedman. The decision made by Senior Member Friedman was made when the matter had been remitted by an earlier Full Court of the Federal Court in Summers v Repatriation Commission [2012] FCAFC 104; Gilmour, Perram and Jagot JJ allowing an appeal from Summers v Repatriation Commission [2011] FCA 1451; North J dismissing an appeal from Re Summers and Repatriation Commission [2010] AATA 803; Senior Member Friedman.
BACKGROUND
Mr Summers was born in 1947 and worked at the Myer department store when he left school. At this time, he met the girl who was to become his wife. Mr Summers served in the Australian Army as a National Serviceman from 12 July 1967 until 11 July 1969. During those two years, he had operational service in South Vietnam from 24 June 1968 until 14 October 1968. For the three months and three weeks he was in Vietnam, Mr Summers was responsible for the operation and management of the Other Ranks’ Canteen. He was granted two weeks of compassionate leave from 14 October 1968 so that he could return to Australia following the death of his father. He and his father had lived together before his Army service and after his mother had left the family home. Mr Summers did not return to Vietnam and served the remainder of his military service at the Watsonia Barracks in Victoria. Mr and Mrs Summers married in 1969 after his discharge. They separated for a period in 1975 but have since resumed their relationship.
History of proceedings
On 18 October 2006, the Repatriation Commission (Commission) assessed Mr Summers’ entitlement to disability pension at the rate of 100% of the General Rate for the accepted disabilities of bilateral sensorineural hearing loss, chronic bronchitis and emphysema. Mr Summers had been paid at that rate for some time and so the status quo remained unchanged. On 27 June 2007, the Veterans’ Review Board (VRB) affirmed that decision.
In the meantime, however, Mr Summers had lodged a further claim for lumbar spondylosis and an increase in his pension. The Commission accepted his claim on 16 March 2007 and lumbar spondylosis was accepted as a war-caused condition with effect from 1 August 2007. It decided that Mr Summers should continue to be paid at 100% of the General Rate. Mr Summers asked the VRB to review the decision but it was not before the VRB when it made its decision on 27 June 2007.[2]
[2] Exhibit 2 at 91
On 10 December 2007, Mr Summers claimed that the alcohol dependence and post-traumatic stress disorder, from which he was suffering, were war-caused conditions. The Commission rejected his claim on 3 July 2008 and affirmed its earlier decision that he be paid pension at 100% of the General Rate.
The VRB reviewed both the Commission’s decision of 3 July 2008 and its earlier decision dated 16 March 2007. On 21 April 2009, the VRB affirmed the Commission’s decisions.
Mr Summers applied to the Tribunal for review of the Commission’s decision as affirmed by the VRB. The Tribunal affirmed the Commission’s decision dated 3 July 2008[3] and this led to the following proceedings:
(1)Appeal to the Federal Court, which was dismissed by North J: Summers v Repatriation Commission [2011] FCA 1451.
(2)Appeal to the Full Court of the Federal Court, which allowed the appeal and also set aside the Tribunal’s decision dated 3 July 2008 and remitted the matter to the Tribunal for determination: Summers v Repatriation Commission [2012] FCAFC 104; Gilmour, Perram and Jagot JJ.
(3)Heard on remittal and, on 27 June 2013, Senior Member Friedman decided that Mr Summers’ post-traumatic stress disorder (PTSD) was war-caused and otherwise affirmed the Commission’s decision that Mr Summers be paid disability pension at 100% of the General Rate: Summers v Repatriation Commission [2013] AATA 439.[4] That meant that the Tribunal did not accept Mr Summers’ alcohol dependence as war-caused and did not accept that he should be paid a pension at a rate greater than 100% of the General Rate.
(4)Appeal to the Federal Court dismissed by Mortimer J: Summers v Repatriation Commission [2014] FCA 608.
(5)Appeal to the Full Court of the Federal Court, which allowed the appeal and set aside the decision of the Tribunal in so far as it affirmed the decision under review and remitted the matter to be determined according to law and the reasons in the judgment: Summers v Repatriation Commission [2015] FCAFC 36; Kenny, Murphy and Beach JJ.
[3] [2010] AATA 803; Senior Member Friedman in Proceedings No. 2007/3957
[4] Proceedings No. 2009/2689
Accepted war-caused conditions
Mr Summers’ accepted war-caused conditions are bilateral sensorineural hearing loss, chronic bronchitis, emphysema, lumbar spondylosis, PTSD and alcohol dependence.
Mr Summers’ employment history
On the basis of his written and oral evidence and that of his wife, Mrs Diane Summers, I find that Mr Summers worked at a department store, Myer, before he was called up for Army service. On his discharge, he went back to Myer. He was based first at its store at Northland and later at Doncaster where he became the Manager of the Shirt Department. During the period of his employment, he continued to drink. Mr Summers’ boss was his best man at his wedding. His behaviour was tolerated in the initial stages. In 1972, he was promoted to the position of National Shirt Buyer for Myer. In 1975, Mr Summers resigned from Myer after he was demoted.
Mr Summers’ then accepted an offer to work as Sales Manager at Capt’n Snooze in Surrey Hills. In 1976 or 1977, Mr Summers lost his driver’s licence for 24 months after he was involved in a car crash and charged with drink driving. He remained with Capt’n Snooze for four years but left because of his alcohol problems and because he did not enjoy working with many of the store’s clientele. He then entered a franchise agreement in 1979 to operate his own Capt’n Snooze store, first at Chadstone, and then further stores at Greensborough and Oakleigh. In 1982, his store at Greensborough was failing and then closed. He attributed the failure in part to his being unable to manage the business property and in part to his spending all of his money on alcohol. At the same time, he was having problems with his lifting and breathing. Mr Summers sold his Chadstone and Oakleigh stores.
In 1985, Mr Summers took a position as a Salesman working for Stan Cash at Essendon and was then promoted to the position of Furniture Manager. In 1990, he lost his driver’s licence due to a drink driving offence and has not renewed it since. Since then, Mrs Summers has undertaken all of the driving for herself and her husband. Mr Summers remained with Stan Cash for five years and then moved to a similar position with Guyatts in Brunswick. After three years, Mr Summers went back to Essendon for a further two years. In 1995, he took a similar position as a Salesman with Greensborough Bulk Electric where he remained for the next ten years. On the basis of his evidence, I find that one of the directors and managers of Greensborough Bulk Electric, Mr Peter Jepson, saw that Mr Summers clashed at times with both staff and customers. When these clashes occurred, Mr Jepson was able to talk to Mr Summers about them and even threaten him with dismissal if he did not behave appropriately. For a few days, Mr Summers would improve his behaviour but he could not continue to do so and would “start acting up again”.[5]
[5] Exhibit Q at [3]
During his employment with Greensborough Bulk Electric, the business was purchased by Betta Electrical in 2003. He was still drinking but was now unable to walk up the stairs and could not carry anything. Mr Summers became very angry with staff and was castigated by his customers on a number of occasions. Mr Jepson considered terminating Mr Summers’ employment in about 2003 or 2004 because of his aggressive behaviour. Mr Summers’ behaviour was impairing his ability to work effectively as a salesman. Mr Jepson decided against it because he was helping to sell the business and he hoped that a change of management would spur Mr Summers to change his behaviour for the better. Mr Summers was made redundant by Betta Electrical on 16 November 2005.
By the time of his retrenchment, Mr Summers regarded himself as one of the better salesmen in the company. He was not sleeping well at night, drinking alcohol to excess and feeling aggressive with his co-workers and his boss. Words were exchanged with fellow employees whom he felt were not pulling their weight. On three or four occasions during the three or four years before his retrenchment, he was chastised for being aggressive with customers. Those customers had felt that he had talked down to them when they did not understand the products and complained about him to management. That had not happened in earlier years.
Mr Summers has sought help from Dr Velakoulis, a Psychiatrist, and has attended a PTSD course as well as a lifestyle course and, in 2007, a 12 month alcohol course at the Heidelberg Repatriation Hospital.
LEGISLATIVE FRAMEWORK
Where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension by way of compensation to that veteran in accordance with that legislation.[6] Where a veteran is already in receipt of a pension, he or she may apply for an increase in the rate of pension on the ground that his or her incapacity has increased since the rate was last assessed. In this case, Mr Summers has, since his last assessment, also had an additional condition accepted as a war-caused disease i.e. alcohol abuse.
[6] VE Act; ss 13(1)(b) and (d)
Mr Summers claims that he should be paid pension at the Special Rate. While that raises the prospect that he might be entitled to payment at the Intermediate Rate, rather than the Special Rate, I have set out the provisions relating to payment at the Special Rate only. I have done that because I have concluded that Mr Summers is entitled to payment at the Special Rate with the consequence that there is no need to consider payment at the lower Intermediate Rate.
At the time Mr Summers lodged his claim, he was not yet 65 years of age. The degree of his incapacity from his conditions that have been accepted as war-caused has been assessed to be at least 70%. That means that Mr Summers has satisfied ss 24(1)(aa), (aab) and (a)(i). It is agreed between the parties that he also satisfies s 24(1)(b). I accept that and consequently accept that Mr Summers is totally and permanently incapacitated in the sense that his incapacity from his war-caused injuries or diseases is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. Section 25 does not come into play as there is general agreement that Mr Summers is not temporarily incapacitated from his war-caused injuries or diseases. Therefore, he meets the requirements of s 24(1)(d).
The issue that remains in dispute is whether Mr Summers meets the requirements of s 24(1)(c) or, if not, whether he meets its requirements when ameliorated by s 24(2)(b). The requirement in s 24(1)(c) is that:
“the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity”.
Section 24(2)(b) provides:
“For the purpose of paragraph (1)(c):
(a) …
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
THE SCOPE OF REVIEW ON REMITTAL FROM THE FEDERAL COURT
The Full Court of the Federal Court’s order and directions
Putting aside the formal parts of the order made by the Full Court of the Federal Court, the substantive order relevant to this hearing was that:
“(a) the decision of the Administrative Appeals Tribunal dated 27 June 2013 be set aside in so far as it affirmed the decisions under review; and
(b)the matter is remitted to the Administrative Appeals Tribunal to be determined according to law and the reasons herein.”[7]
The decisions that had been affirmed by the Tribunal were those that did not accept Mr Summers’ alcohol dependence as war-caused and did not accept that he should be paid a pension at a rate greater than 100% of the General Rate. The Tribunal’s decision that Mr Summers’ PTSD was war-caused was not disturbed on appeal. The Full Court then observed that:
“ We observe that, given the significance of Mr Summers’ alcohol dependence to his accepted inability to continue to engage in remunerative work, in practical terms, his application for a special rate is likely to turn on whether his alcohol dependence is found to be war-caused. For the avoidance of doubt, we note that there is no requirement for the Tribunal to rehear the question of whether Mr Summers suffers from war-caused PTSD, and the Tribunal’s finding in that regard stands.”[8]
[7] [2015] FCAFC 36; (2015) 230 FCR 179; 65 AAR 320; 145 ALD 30; Order 3(b)
[8] [2015] FCAFC 36 at [21]
In the body of the reasons for judgment delivered by the Full Court, the Tribunal’s attention is drawn to the way in which the hearing should be confined on remittal and the directions that are to be made to require Mr Summers to adduce evidence relating to the Statement of Principles regarding alcohol dependence.[9] Since the parties have agreed that his alcohol dependence is a war-caused condition, I do not have to consider that issue further. That leaves the issue whether, on a proper application of ss 23 or 24 of the VE Act, Mr Summers qualifies for the intermediate or special rate pension.
[9] [2015] FCAFC 36; (2015) 230 FCR 179; 65 AAR 320; 145 ALD 30 at [205]; 228; 368; 78
General principles relating to the Tribunal’s task in reviewing a decision on remittal
The Full Court’s observation that Mr Summers’ application for Special Rate is likely to turn on whether his alcohol dependence is found to be war-caused is just that; an observation. It is not part of the order that was made by the Full Court and it is not the Full Court’s role to make findings of fact on appeal except to the limited extent that fact finding is permitted by ss 44(7) and (8) of the Administrative Appeals Tribunal Act 1975 (AAT Act). The roles and the principles underpinning them were explained by Gray J in in Blackman v Commissioner of Taxation:[10]
“… The Tribunal stands in the place of the original decision maker, to make the ‘correct or preferable decision’ on the material before the Tribunal. See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J. The Tribunal has the responsibility of ascertaining the facts necessary for the making of the decision. By s 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
The obligation of the Tribunal to find facts is not diminished where there has been a successful appeal to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act. If the Court allows the appeal, sets aside the decision of the Tribunal, and remits the case to be heard and decided again, the Tribunal retains its responsibility to find the facts. If, as is usually the case, the remitted matter is heard and decided by a Tribunal differently constituted from the Tribunal whose decision was the subject of the successful appeal, the differently constituted Tribunal will have to find facts. In the exercise of its powers, and subject to the submissions of the parties, the Tribunal may decide to act on the findings of fact made by the earlier Tribunal, or some of them. It may decide, as the learned Senior Member did in the present case, to rely upon evidence which was before the earlier Tribunal. It may decide that the proper course is to receive all or some evidence afresh. The parties might agree that some or all of the findings of fact previously made are to be treated as findings of fact by the Tribunal. The order of the Court may limit the ambit of the issues with which the Tribunal is to deal upon the case being remitted. The order of Jenkinson J in the present case cannot be construed as containing such a limitation. The course which the Tribunal takes in relation to any case will depend on the circumstances of that case, but it will be the responsibility of the Tribunal which ultimately decides the case to determine for itself the facts.”[11]
[10] [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118; Sweeney, Keely and Gray JJ
[11] [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [13]; 455-456; 124 per Gray J, with whom Keely J agreed on this aspect.
I adopt the summary of other relevant principles established by the authorities that I gave in Re Jagroop and Minister for Immigration and Border Protection:[12]
[12] [2015] AATA 751; (2015) 67 AAR 288 at 297
(1)the Tribunal must determine the scope of its powers on a remittal by reference to the order made by the remitting Court:[13]
(a)where the order is ambiguous or vague, it is permissible to have regard to extrinsic material including the reasons for judgment;[14]
(2)the Tribunal is bound by the law as determined by the remitting Court;[15] and
(3)unless the terms of the Federal Court’s remittal require otherwise, the Tribunal is not bound by the findings of fact or concessions made by the Tribunal which heard the application on an earlier occasion:[16]
(a)the Tribunal may choose to adopt findings of fact made by an earlier Tribunal or as stated by the Federal Court if to do so is not contrary to its fact finding duty;[17] and
(b)consistent with its duty to find facts, the Tribunal may accept facts as agreed between the parties or conceded by one or other of them.
[13] Blackman [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [14]; 456; 124 per Gray J.
[14] Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25; 21 AAR 351 at [41] 33-34; 359 per Beaumont J with whom Black CJ and Jenkinson J agreed and Repatriation Commission v Yates (1997) 46 ALD 487 at 490 per Moore J.
[15] Blackman [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [10]; 452; 121 per Sweeney J
[16] Blackman [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [14]; 455-456; 124 per Gray J
[17] Fletcher v Commissioner of Taxation (No 2) (1990) 23 FCR 134; Lockhart, Wilcox and Lee JJ at 135 as explained by Gray J in Blackman [1993] FCA 345; (1993) 43 FCR 449; 26 ATR 118 at [18]; 456-457; 125.
Within these parameters, the question that the Tribunal must consider on remittal remains as it always is unless modified by Parliament: “… The question for determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. …”[18] (emphasis added). Putting it another way:
“… The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. …”[19]
[18] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J
[19] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 599; 77; 429-430 per Smithers J
The law as determined by the Full Court of the Federal Court
Section 24(1)(c) must be read with s 24(2). Section 24(2)(a) simply emphasises that a veteran will not satisfy s 24(1)(c):
“… if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only secondary weight and insufficient in itself to prevent the veteran from continuing, the ‘alone’ test will not be satisfied. …”[20]
[20] [2015] FCAFC 36; (2014) 230 FCR 179; 65 AAR 320; 145 ALD 30 at [194]; 226; 366; 76 citing [2014] FCAFC 124; (2014) 226 FCR 21; Middleton, Murphy and Rangiah JJ
With regard to s 24(2)(b), the Full Court said:
“… To satisfy the provision a veteran must have ‘been genuinely seeking to engage in remunerative work, that he or she would, but for that [war caused] incapacity, be continuing so to seek to engage in remunerative work.’ As Gray J said (at [21]) in Giesen v Repatriation Commission (2005) 216 FCR 435 s 24(2)(b):
… is an ameliorating provision of which a veteran may avail himself or herself, if he or she can show that a war-caused incapacity is the substantial cause of inability to obtain remunerative work, which the veteran has been genuinely seeking. (Emphasis added)
In Leane [Leane v Repatriation Commission[21]] at [28] the Full Court explained that:
(a)the word ‘seeking’ means ‘attempting to’ or ‘trying to’; and
(b)the word ‘genuinely’ means ‘sincerely’ or ‘honestly’, and it involves an assessment of the veteran’s subjective intention or purpose.
The Court emphasised that the requirement in s 24(2)(b) does not mean that a veteran must be genuinely seeking remunerative work at all times throughout the assessment period. It was enough if the veteran could satisfy the requirement at a particular point in time during the assessment period, and it did not matter if the veteran was not subsequently genuinely seeking remunerative work.
…
… [B]y the use of the present continuous tense in s 24(2)(b) through the use of the words ‘genuinely seeking to engage in remunerative work’, Parliament intended to convey an activity that may be ongoing or incomplete rather than a reference to an activity which is satisfied by a single attempt such as a phone call. Her Honour considered that the phrase contemplates at least a course of conduct by the veteran. Like the primary judge, we do not accept that a decision-maker is obliged to find that a veteran satisfied s 24(2)(b) if there is a single piece of evidence about a single attempt to seek work during the assessment period (no matter how long), and no evidence that the attempt was dishonest or disingenuous.”[22]
[21] [2004] FCAFC 83; (2004) 81 ALD 625; Emmett, Conti and Selway JJ
[22] [2015] FCAFC 36; (2014) 230 FCR 179; 65 AAR 320; 145 ALD 30 at [197]-[202]; 227-228; 367-368; 77-78
While I am bound by the Full Court’s rulings on the law, the case that it and the previous Tribunals considered was somewhat different from that which I must consider. The reason for the difference lies in the fact that the Commission has now accepted that Mr Summers’ alcohol dependence is a war-caused disease with effect from 10 September 2007. At the time of the previous hearings and appeal, it had not. Therefore, any finding that his alcohol dependence played any part in preventing him from continuing to undertake remunerative work meant that he could not satisfy the “alone test” in s 24(1)(c) of the VE Act. The ameliorating provisions of s 24(2) did not change that outcome. I may now have regard to the role that any incapacity from his alcohol abuse had in preventing him from continuing to undertake remunerative work.
CONSIDERATION
Both Mr and Mrs Summers gave evidence regarding his drinking habits over the years. Mrs Summers is very well versed in her husband’s habits given that she first started going out with him when she was 14 years of age. She has, therefore, knowledge of his habits both before and after his service. Of particular relevance now that Mr Summers’ alcohol abuse has been accepted as war-caused, is her evidence, as well as his and that of Mr Jepson, relating to his drinking in the context of his employment. I refer to the “context” of Mr Summers’ employment in the sense that it encompasses events that occurred during when he was at his place of work but also those that occurred at work-related functions or with fellow employees or those in the wholesale and retail industry with whom he associated. Mr Jepson knew Mr Summers in that context for at least ten years when he was one of the directors and managers of Greensborough Bulk Electric.
The evidence of all of them is consistent. On the basis of Mr Jepson’s evidence, which accords with Mr Summers’ own view of his skills, I find that Mr Summers was a good salesman and a good worker. His skills were, however, impaired by his aggressive behaviour when he drank to excess and he became aggressive and ill-tempered. That aggression was exhibited not only on the shop floor with customers but at product knowledge nights, which Mr Summers attended. Salesmen and managers from retail electronics stores in the area attended product knowledge nights held by manufacturers’ representatives. The manufacturers’ representatives would have the event catered for and alcohol was made available free of charge. Mr Summers, I find, would drink to excess at these functions and become aggressive.
Mr Jepson’s evidence supports my finding on this as he attended the same product knowledge night but it is also supported by the evidence of Mrs Summers and Mr Summers himself. Mrs Summers’ evidence tells a long story of her husband’s drinking to excess and doing so regularly after work and into the night. She also referred to his becoming embarrassingly drunk at social events run by Capt’n Snooze. In essence, Mrs Summers’ evidence was that her husband drank with others, whom he would readily shout, and he drank alone. He drank while the Capt’n Snooze franchise at Greensborough went into debt. He drank while she was in labour and delivering her babies and he drank while she waited almost every night, and long into the night, for him to come home after work. I accept her evidence. It is not only consistent with her husband’s evidence but also consistent with that of Mr Jepson of her husband’s after hours drinking. Certainly, Mr Jepson only saw Mr Summers at the Watsonia RSL on the occasions when he and his wife attended, but his seeing Mr Summers on each occasion that he attended that venue is consistent with Mr Summers’ being a regular attendee. It was unlikely to be mere coincidence that Mr and Mrs Jepson and Mr Summers attended on the very same evenings that Mr Summers chose to attend the RSL and that they were the only evenings on which he attended.
Mr Summers’ pattern of drinking has, I find, been consistent across his working life after his discharge from the Army. It continues today. It makes him aggressive and ill-tempered and so impairs his ability to work with customers and colleagues, both of which he must do in the retail industry. Work in the retail industry, whether as a salesman or as a manager, is the work that he undertook. His abuse of alcohol had the effect on his behaviour that I have identified and his behaviour led to his being unfit to continue to work in the retail industry.
As Ms Dowsett submitted on behalf of the Commission, Mr Summers has, in the past, also attributed his ceasing work to his having been made redundant. That is true and the effect of Mr Summers’ evidence was that he felt that his being made redundant was unfair. While he was made redundant, staff whom he regarded as less-qualified than he were retrained and, three weeks after his redundancy, Betta Electrical engaged a person on a full-time basis to do the work that he had been doing. Mr Raymond Johns had been one of Mr Summers’ colleagues at Betta Electrical. In his statement made on 22 May 2013, Mr Johns said that he recalled Mr Summers’ telling the new manager of the store not to tell him how to “suck eggs” in front of other staff. Within a few days, Mr Johns recalled, the manager had called Mr Summers into his office when he had returned from lunch to tell him that he was being made redundant.
Mr Johns said in his statement that he felt that the retrenchment had nothing to do with shortage of work and referred to the engagement of a person to replace Mr Summers. In the employment context, the ordinary usages of the word “redundant” include “… denoting or relating to an employee who or becomes superfluous to the needs of the employer. …”[23] When the word is used in the industrial relations context, it is generally used when the termination of a person’s employment is at the initiative of the employer and on the grounds of operational requirements or because the employer is insolvent. This is the way in which a “redundancy provision” was understood in the Workplace Relations Act 1996 at the time of Mr Summers’ redundancy.[24] It is the position, and not the person, that is no longer required for operational needs.
[23] Macquarie Dictionary, Fifth Edition, 2009, Macquarie Dictionary Publishers Pty Ltd, Sydney
[24] Workplace Relations Act 1996; s 399A(4) and this remains the way in which it is used in contemporaneous industrial relations law where reference is made to a “genuine redundancy”: Fair Work Act 2009; s 389. One essential element of a “genuine redundancy” is specified in s 389(1)(a) as “the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise”.
In the case of Mr Summers’ redundancy, it may be that the position was indeed redundant. I would not wish to suggest that Betta Electrical had not acted lawfully. It may be that Mr Summers and Mr Johns misunderstood the way in which his employment had come to an end. Perhaps the termination was in fact a dismissal. I have no evidence on the issue. What I do have evidence about is that Betta Electrical engaged new staff very shortly after it let Mr Summers go. That is to say, it was a case in which it had no operational requirements for Mr Summers’ position but it did for other positions.
The Financial Report for the Buy-Rite Stores, which included Betta Electrical, for January 2005 showed that Betta Electrical was performing below budget. That continued to be the position for Betta Electrical in October 2005 when the Financial Report dated 31 October 2005 was prepared. Looked at academically, a company’s performing below budget might well have been a catalyst for it to reduce its staff and so to offer redundancies. In this instance, Betta Electrical did offer Mr Summers a redundancy but the evidence of both Mr Summers and Mr Johns, who worked in the store with Mr Summers at the time, satisfies me that the financial state of the company was not the reason for the redundancy. The management of Betta Electrical had decided that Mr Summers and his behaviour were no longer required. The position he held was not redundant because I find on the basis of Mr Johns’ evidence and that of Mr Summers himself that other staff were engaged to do his former job. The management at Betta Electrical simply took the step that Mr Jepson had seriously contemplated taking when he owned Greensborough Electrics but had given Mr Summers the opportunity to redeem himself with its new owners. He clearly did not take advantage of that opportunity.
The reason he could not take advantage of that opportunity was because he could not control his behaviour in a way that would lead to his interacting with customers, fellow staff and management in a way that was appropriate. Was this as a result of his alcohol abuse or does it have some other foundation that was not war-caused? The evidence of his wife and of his work colleagues, Mr Jepson and Mr Johns, was that Mr Summers’ alcohol abuse affected his behaviour but I have looked also to the medical evidence to see whether a link is established between his alcohol abuse and his behaviour.
In his report dated 14 May 2008, Dr Strauss was of the opinion that Mr Summers gave up work because of his respiratory problems and not because of alcohol abuse. He based that on his conclusion that Mr Summers had worked successfully for many years with a high consumption of alcohol and had, in recent years, been drinking less. Therefore, he did not believe that Mr Summers’ alcohol abuse had caused him significant incapacity.[25] Earlier in his report, Dr Strauss had noted that Mr Summers had told him that his breathing was impaired and he could no longer cope with the stairs at work. He also noted that Mr Summers had told him that he was becoming irritable and arguing with the customers and staff. He was about to resign when he was sacked, Mr Summers told him.
[25] Exhibit P
Dr Strauss maintained his opinion regarding the relevance of alcohol abuse in his second report dated 17 February 2010. In his third, dated 16 January 2013, he noted that he believed that Mr Summers has developed tolerance to excessive alcohol consumption and that he becomes very upset and agitated when it is not available.[26] Dr Strauss was not asked to comment on Mr Summers’ ability to undertake remunerative work. He did not comment on any link between Mr Summers’ mental state and his alcohol abuse.
[26] Exhibit H
Dr Velakoulis’s supplementary report dated 20 February 2013 was directed to whether Mr Summers’ alcohol abuse and PTSD were war-caused. He did not consider issues related to Mr Summers’ ability to engage in remunerative work. Dr Velakoulis did address that issue in his earlier report dated 23 June 2008. By that time, Dr Velakoulis had been Mr Summers’ treating psychiatrist since January 2007. On the issue of Mr Summers’ ability to undertake remunerative work, Dr Velakoulis wrote:
“In his current state, I feel that he is not capable of undertaking regular work duties for more than eight hours per week as a salesman, and this had been the case throughout the period of treatment with me. It would also seem that in addition to difficulties with his COPD and lumbar back problems, his PTSD and alcohol dependence were quite significant in the deterioration in his sales career leading to him eventually being offered a redundancy package in 2005.”[27]
[27] Exhibit B at 5 at T documents; T18 at 118
Dr Robyn Horsley referred to Mr Summers’ increasing episodes of anger with customers and staff but her main focus was upon his respiratory condition with some reference to his lumbar spondylosis. She was of the opinion that his respiratory function effectively prevented him from returning to work. Dr Horsley’s report was dated 20 December 2007.[28] She followed her report with another dated 22 January 2008 in which she reported on the results of a lung function test. They were:
“I note that his previous lung function in 2005 revealed an FEVI of 1.85L which is 65% of predicted and an FVC of 2.83L and an FER ratio of 65% with mild reduction in gas transfer.
In November 2007, he had a further significant reduction in lung function. His FEV1 is not 1.3 litres and his FVC is 1.8 litres, which is only 42% of predicted.
These objective findings are consistent with his physical tolerances and his poor respiratory reserve and further confirms that he is permanently unfit for work of all kind on the basis of his respiratory condition.”[29]
[28] Exhibit C
[29] Exhibit D
Dr Amanda Sillcock, an Occupational Physician, wrote a report dated 28 November 2007 expressing the view that Mr Summers had considerable limitations due to his COAD, which made him very short of breath. His chronic back pain at that stage was of a fairly low intensity but, because of his difficulties in breathing, Dr Sillcock believed that Mr Summers had an inability to work for more than eight hours each week.
The medical witnesses have focused on the questions that were put to them. That meant that they did not necessarily focus on the question that I must answer. That said, Dr Strauss did note that Mr Summers had developed tolerance to excessive alcohol consumption and that he became very upset and agitated when it was not available. The person who has worked most closely with Mr Summers is Dr Velakoulis. Their professional relationship began in January 2007 and so only a little over a year after he had been made redundant. Dr Velakoulis attributed his inability to work to four conditions, all of which have been accepted as war-caused: chronic bronchitis and emphysema (both of which come under the name of chronic obstructive pulmonary disease), lumbar spondylosis, post-traumatic stress disorder (PTSD) and alcohol dependence. Having regard to this medical evidence and to the evidence of his wife and colleagues, to which I have referred earlier, I find that Mr Summers’ behaviour was attributable to his alcohol abuse. As I have found that his behaviour with customers, staff and management was the reason for his being made redundant, I am also satisfied that he ceased to engage in remunerative work in November 2005 for reasons related to his incapacity from alcohol dependence and so from a war-caused disease. That was the sole reason for his giving up work on that day in November 2005.
Had he not been made redundant on that day, I find that his chronic bronchitis, emphysema and lumbar spondylosis, which are also accepted conditions, would have prevented him from continuing to engage in remunerative work. On his own evidence, he was having difficulty in carrying goods and found the stairs too difficult to use. He has given a consistent history to medical practitioners whether he has consulted them or they are medical practitioners to whom he has been referred for a medico-legal report. Dr Horsley concluded in her report dated 20 December 2007 that Mr Summers has no realistic capacity for work given his respiratory condition and his lumbar spondylosis. Dr Sillcock is of the same view but bases her conclusion on only one of his accepted conditions being his chronic obstructive airways disease. Dr Strauss also attributes Mr Summers’ inability to engage in remunerative work to respiratory issues. In light of this evidence, I find that Mr Summers is prevented from engaging in remunerative work for a minimum of eight hours because of his accepted war-caused conditions and has been since he was made redundant in November 2005.
Is there any other reason apart from his war-caused conditions that would have prevented Mr Summers from engaging in remunerative work? His age has been put forward as a reason of that sort. It does not matter, it is said, that he was prevented from working in the retail industry because of his war-caused conditions because his age alone would have prevented him from doing so. Mr Summers was born in 1947 and was 58 years of age when he was made redundant in 2005.
Mr Johns remained with Betta Electrical until he was 67 years of age. His evidence is that there is no shortage of work for qualified persons in the retail industry. His view of the situation from the point of view of an employee is supported by the Retail Workforce Study dated March 2014 and prepared by the Australian Workforce and Productivity Agency:
“Face-to-face sales positions are projected to continue to make up the bulk of employment opportunities in retail. These positions can be physically demanding, requiring long periods of standing, lifting and packing. They are also often part-time or casual in nature. The retail industry may need to reconsider job redesign in order to attract and retain older workers. The advent of new technologies across the enterprise may well be an enabler of such change, and the demand for more sophisticated interpersonal skills to engage customers may provide a good fit for mature-age workers.
According to Service Skills Australia, the sector already appears to be responding: the proportion of workers aged 45 and over in retail increased by approximately 15.9 per cent between 2005 and 2011.[30] Nevertheless, a significantly higher proportion of younger workers are employed in retail compared to the all-industries average (see Figure 12). Retail has one of the youngest age profiles, second only to Accommodation and Food Services, with almost three-quarters of workers aged under 45 years and around a third aged 24 years of younger.[31]
[30] Service Skills Australia, 2013, Retail, wholesale and floristry environmental scan, Service Skills Australia, Sydney
[31] Exhibit R at 51
The increase in the proportion of workers aged 45 years and over is reflected in the discussion about the value of older workers found in an article in Inside®etail Australia. The article, which is undated but bears a copyright notation of 2014, commented on the ageing population and the need to strike the right balance between older and younger workers. Setting the retirement age at 70 for those born after June 1958[32] will present challenges for retail businesses. Creating harmony and bridging the gap between older and younger workers was increasingly important. Older workers were seen as better at customer service and more likely to remain in their jobs and so offer stability to a retail business.
[32] I understand this statement in the article to be a reference to the age at which a person would first be qualified to receive an Age Pension if otherwise eligible.
Given that it was published in 2014, the Inside®etail Australia article does not assist greatly in ascertaining the position of the retail industry in 2005. The Australian Bureau of Statistics’ (ABS’s) Retail Trade Australia report for January 2006 showed that, in Household Good Retailing:
“There had been weak trend growth for four months. Victoria and South Australia have had a decline or no change in the trend estimate for at least seven months while all other states, except Western Australia, have had at least two months of moderate or strong growth.”[33]
[33] Exhibit T at 4 and see also 6 where a similar analysis is given for Victoria’s retail sector overall.
By the time the ABS issued its Retail Trade Australia report for February 2007, the report for Household Good Retailing had improved and Victoria and South Australia were both reported as having had at least five months of moderate trend growth.[34]
[34] Exhibit U at 4
On the evidence that I have, I am satisfied that Mr Summers’ age has not been a relevant factor in his finding work. The ABS reports reveal the changes and adjustments in the retail sector but, without more, I do not find that fluctuations in the turnover figures can be regarded as directly relating to employment opportunities in the retail industry. Financial reports relating Betta Electrical’s financial position would indicate that it was not meeting its budget and was incurring losses but I have already accepted evidence that a staff member was engaged after Mr Summers was made redundant. The figures do not necessarily equate with employment opportunities. Mr Summers has given only one response from a potential employer, Retravision Greensborough, declining to employ him. He has done so on the basis of Mr Summers’ being unable to lift big goods and so unable to do the work required. No mention is made of Mr Summers’ age.
Having regard to all of the evidence, I find that Mr Summers was not prevented by his age from engaging in remunerative work in the retail industry. His accepted war-caused conditions alone have prevented him from doing so at all times since his redundancy. Whether or not Mr Summers suffered a loss of salary or wages as a result of his being prevented from continuing to undertake remunerative work is not in issue. In any event, I find that he did so in the form of the salary that he had previously received from Betta Electrical.
It follows that I am satisfied that Mr Summers meets the criteria in s 24(1)(c) of the VE Act. In reaching that conclusion, I have not had regard to s 24(2) and do not consider that I need to. I will explain why I have reached that conclusion.
Section 24(1)(c) has two parts, each of which must be satisfied but which are interlinked. The first relates to a veteran’s being prevented from continuing to undertake remunerative work that the veteran was undertaking by reason of incapacity from war-caused injury or war-caused disease or, if more than one, by both or all of them. The second relates to the veteran’s suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if the veteran were free from that incapacity. Section 24(2)(a) relates to the first part and requires a determination that a veteran has not suffered a loss of salary or wages, or of earnings on his or her own account if one of two things has happened. Either the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from the relevant war-caused diseases or injuries, or both, or the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason. Section 24(2)(a) simply reinforces the alone test set out in s 24(1)(c). I have found that he has satisfied the alone test in s 24(1)(c).
Section 24(2)(b) ameliorates the operation of the first part of s 24(1)(c) i.e. it ameliorates the application of the alone test when a veteran has not been engaged in remunerative work but has been genuinely seeking to do so. It provides:
“For the purposes of paragraph (1)(c):
(a) …
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
In a case such as this in which I am satisfied that Mr Summers has met the alone test under s 24(1)(c), I do not need to consider s 24(2)(b). As French J said in Rendell v Repatriation Commission:[35]
“… it cannot have been intended that veterans under the age of 65 who have ceased work by reason of incapacity from war-caused injury or war-caused disease or both, alone, are required to actively pursue remunerative work before they can be entitled to payment of the Special Rate. …”[36]
[35] [2001] FCA 1881
[36] [2001] FCA 1881 at [37]
In coming to this conclusion, his Honour drew on the decision of the Tribunal in Re Hornery and Repatriation Commission.[37] I note that the Tribunal had explained that, if the veteran falls within s 24(2)(b), he or she is relieved from the alone test.[38] The passage from which French J drew comes a little later in the Tribunal’s reasons for decision when it considered the Commission’s submission that a veteran had to meet both s 24(2)(a) and (b):
“ The Tribunal does not agree with the respondent’s submission that Mr Hornery must meet the requirements of s.24(2)(b). For s.24(2)(b) to be read in such a way, it would amount to a hurdle over which virtually all veterans under the age of 65 would need to drag themselves in order to obtain entitlement. The Tribunal does not consider that this was Parliament’s intention and considers its view is supported by the Second Reading Speech. ‘Special provision’ is made by s.24(2)(b) to cover unemployed veterans who have been genuinely seeking to engage in remunerative work. It cannot have been intended that veterans under the age of 65 who have ceased work by reason of incapacity from war-caused injury or war-caused disease, or both, alone are required to actively pursue remunerative work before they can be entitled to payment at the Special Rate. In the Tribunal’s view, s.24(2)(b) is and remains a special provision ameliorative of s.24(1)(c) to be applied where the Commission (and now this Tribunal) is satisfied that the veteran has been genuinely and actively (Re Bonner (above)) pursuing remunerative work (in the sense of looking to obtain work) and war-caused incapacity is the substantial cause of the veteran's inability to obtain work.”[39]
[37] [1998] AATA 602; (1998) 52 ALD 317; 28 AAR 193; Senior Member Eyre and Dr Lynch, Member at 331
[38] [1998] AATA 602; (1998) 52 ALD 317; 28 AAR 193 at [40]; 331; 207
[39] [1998] AATA 602; (1998) 52 ALD 317; 28 AAR 193 at [42]; 332; 207-208
DECISION
For these reasons, I set aside the decision of the Commission dated 3 July 2008 and affirmed by the Veterans’ Review Board on 21 April 2009 in so far as it found that Mr Summers was entitled to pension at 100% of the General Rate. In its place, I substitute a decision that Mr Summers was entitled to a pension at the Special Rate with effect from 10 September 2007.
| I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
..................[sgd]......................................................
Associate
Dated: 23 February 2018
| Heard: | 27-28 September 2016 |
| Solicitor for the Applicant: Counsel for Respondent | Mr Dino De Marchi Ms Cathy Dowsett |
| Solicitor for the Respondent: | Ms Laura Deschamps Ferrari Australian Government Solicitor |
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