Telstra Corporation Limited v Lyons

Case [2003] FCA 1168

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited v Lyons [2003] FCA 1168

COMPENSATION – commonwealth employees – ‘suitable employment’ – requirement that employee ‘did not subsequently terminate that employment’ – whether referrable to constructive termination by employee – whether language of paragraph clear and unambiguous – whether construction contended for open in the context of the other provisions of the legislation - whether constructive dismissal cases support such contention – construction rejected

Acts Interpretation Act 1901 (Cth) s 15AA
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 19, 19(2), 19(4), 37, 37(1), 37(5), 37(7), 40, 40(1)

AAT Case 12,997; AAT Case 12/98 (1998) 98 ATC 183 distinguished
Allison v Bega Valley Council (1995) 63 IR 68 distinguished
Comcare v Line (2002) 71 ALD 69 followed
Comcare v Line [2002] FCA 553 followed
Kallinos v London Electric Wire [1980] IRLR 12 distinguished
Peters v Jenolan Caves Reserve Trust (1998) 86 IR 162 distinguished
Police Service of New South Wales v Batton (2000) 98 IR 154 distinguished
Siagian v SanellPty Ltd (1994) 122 ALR 333 cited
Western Excavating (E.C.C.) Ltd v Sharp [1978] QB 761 distinguished
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 applied

TELSTRA CORPORATION LIMITED v STEPHEN ANDREW LYONS
W535 of 2001

RD NICHOLSON J
24 OCTOBER 2003
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W535 OF 2001

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR RD FAYLE (SENIOR MEMBER) AND
DR D WEERASOORIYA (MEMBER)


BETWEEN:

TELSTRA CORPORATION LIMITED
APPLICANT

AND:

STEPHEN ANDREW LYONS
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

24 OCTOBER 2003

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.   The application by way of amended notice of appeal dated 30 June 2003 be dismissed.

2.   The notice of contention and cross appeal be allowed.

3.   Paragraph (a) of the decision of the Administrative Appeals Tribunal dated 29 October 2001 be set aside and in lieu there be substituted:

(a)(i)the respondent is liable, pursuant to s19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay weekly incapacity payments to the applicant on the basis that subpara (a) of the s 4(1) definition of ‘suitable employment’ in that Act applies;

(a)(ii)the matter is remitted to the President of the Tribunal for allocation to a Tribunal to determine the rate of weekly incapacity payments (compensation) payable by the applicant to the respondent pursuant to s19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the following periods:

(A)from the date of the respondent’s dismissal, 5 December 1998, to the date he commenced work with Visionstream (or Bensons);

(B)from the date he commenced work for Visionstream (or Bensons) till May 1999; and

(C)from the date he ceased working for Visionstream (or Bensons) to the present.

4.   The applicant pay the respondent’s costs of the appeal and cross appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

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Telstra Corporation Limited v Lyons [2003] FCA 1168
Case
[2003] FCA 1168
Decision Date

CaseChat Overview and Summary

In Telstra Corporation Limited v Lyons, the respondent challenged the assessment of his weekly incapacity payments and the admissibility of certain evidence regarding his conduct and employment termination. The dispute arose following the respondent's termination of employment by the applicant due to his ongoing back pain and incapacity. The respondent contended that the Tribunal erred in its assessment of his incapacity payments and in allowing evidence of his conduct prior to his termination, which he argued was irrelevant and prejudicial.

The legal issues before the court included whether the Tribunal correctly interpreted the term "suitable employment" under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and whether the evidence concerning the respondent's conduct prior to his termination was admissible and relevant to the assessment of his incapacity payments. The court had to determine if the Tribunal's findings were consistent with the statutory definition of "suitable employment" and if the evidence was properly considered.

The court found that the Tribunal's interpretation of "suitable employment" was correct and that the evidence of the respondent's conduct prior to his termination was not pertinent to the assessment of incapacity payments. The court concluded that the Tribunal was not required to determine the justification of the respondent's employment termination for the purposes of incapacity payments. The court also held that the Tribunal should have determined the rate and amount of the weekly incapacity payments itself. The appeal was dismissed, and the cross-appeal was allowed. The matter was remitted to the Tribunal to determine the appropriate compensation.

The court ordered that the applicant pay the respondent's costs of the appeal and cross-appeal, and it directed the Tribunal to re-evaluate the amount of weekly incapacity payments due to the respondent for specified periods.

Orders

Orders of the court

1. The application by way of amended notice of appeal dated 30 June 2003 be dismissed.

2. The notice of contention and cross appeal be allowed.

3. Paragraph (a) of the decision of the Administrative Appeals Tribunal dated 29 October 2001 be set aside and in lieu there be substituted:

(a)(i) the respondent is liable, pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay weekly incapacity payments to the applicant on the basis that subpara (a) of the s 4(1) definition of ‘suitable employment’ in that Act applies;

(a)(ii) the matter is remitted to the President of the Tribunal for allocation to a Tribunal to determine the rate of weekly incapacity payments (compensation) payable by the applicant to the respondent pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the following periods:

(A) from the date of the respondent’s dismissal, 5 December 1998, to the date he commenced work with Visionstream (or Bensons);

(B) from the date he commenced work for Visionstream (or Bensons) till May 1999; and

(C) from the date he ceased working for Visionstream (or Bensons) to the present.

4. The applicant pay the respondent’s costs of the appeal and cross appeal.

Background

Background to the litigation

The respondent has brought a notice of contention and cross-appeal directed to issues arising in relation to the assessment of his weekly incapacity payments. It is also directed to an alleged error of law by the Tribunal in allowing evidence to be given of the respondent’s conduct whilst in the course of his employment with the applicant prior to 4 December 1998 and in making a finding of fact that the applicant was justified in terminating the respondent’s employment on that date. These are issues directed to the Tribunal’s approach to the evidence.BACKGROUND CIRCUMSTANCES The respondent was born on 25 May 1971. He left school 1986 when he was around 15 years old. In 1989 he joined the Royal Australian Navy and remained there until 1994, being discharged medically fit. Later that year he commenced employment with the applicant as a Communications Officer. His duties required him to do fairly heavy physical work from time to time including digging of trenches with a shovel for cable laying, digging of installing pits and laying and joining of cables and pre-wiring of houses, the latter involving climbing, lifting, bending and carrying loads. His first incident of injury in that employment occurred in 1997. Whilst working in the confined roof space of a house, he felt pain in his lower back which resulted in two or three weeks off work. On 8 January 1998, when he was working on a lead-in trench and removing a slab of bricks, he experienced severe pain in his lower back. It is this incident that the respondent claimed led to be the injury giving him ongoing back pain and requiring treatment. He was off work for eight weeks. He underwent considerable conservative treatment including physiotherapy, pool exercises, walking, analgesics and was assigned to light duties. He did not consider these gave him significant improvement of his back pain. In January 1998 the respondent worked as part of a group comprising Ms C Thompson as manager and Ms J Purcell as team leader. In the course of his rehabilitation he was put into a different work situation on a part-time basis under the supervision of a Mr Saligari. This work involved using a computer (for which he needed training), answering telephones and speaking with customers. By the beginning of December 1998 he had been cleared to commence full-time light duties. On 5 December 1998 the respondent was dismissed from his employment. The notice of dismissal ‘effective immediately’ was contained in a letter dated 17 November 1998 from the applicant to the respondent. The Tribunal found that it had become effective on 5 December 1998. On 12 January 1998 the applicant made his claim for compensation.RELEVANT STATUTORY PROVISIONS The critical provision for the issue of statutory construction is the definition of ‘suitable employment’ contained in s 4(1) of the Act and reading as follows:‘4(1) In this Act, unless the contrary intention appears:…“suitable employment”, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment – employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:(i)the employee’s age, experience, training, language and other skills;(ii)the employee’s suitability for rehabilitation or vocational retraining; (iii)where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or place of residence; and(iv)any other relevant matter; and(b)in any other case – any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv);…’It is not necessary to set out the definitions of any of the terms used in definition of ‘suitable employment’.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is apparent from this description of the cases referred to that, as counsel for the respondent submitted, they all arise out of the concern by the courts to protect a worker from an exploitative employer. They have nothing to do with the converse situation of an employee failing to perform his or her duties. The cases simply do not fit into the legislative scheme of the Act. That, in addition to that fact that the language of the Act gives no opening for the cases to apply. There is nothing in these cases that should occasion a departure, if it were possible, from the views reached by the Full Court in Comcare v Line on the meaning of the words at issue in par (a) of the definition of suitable employment.CONCLUSION The result is that the Tribunal was correct to conclude that the respondent was not precluded from the application of par (a). Therefore the first ground of the application fails and the remaining grounds of the application fail in consequence. It also follows that the respondent is entitled to succeed on the cross-appeal. The correct interpretation of ‘suitable employment’ for the purposes of s 19 of the Act did not require the Tribunal to determine and make any findings of fact as to whether the applicant was justified in terminating the respondent’s employment on 5 December 1998. Additionally the Tribunal should itself have determined the rate and amount of weekly incapacity payments. It is common ground that the matter should therefore be referred back to the President of the Tribunal for allocation to a Tribunal for determination of the amount of compensation payable to the respondent in accordance with the law.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.