Telstra v Slater

Case [2001] FCA 149

FEDERAL COURT OF AUSTRALIA

Telstra v Slater [2001] FCA 149

ADMINISTRATIVE LAW – appeal from the Administrative Appeals Tribunal – nature of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)

WORKER’S COMPENSATION – whether there is an obligation to provide a rehabilitation programme – payments under Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether injured worker able to earn in suitable employment- meaning of “suitable employment”.

WORDS and PHRASES – “suitable employment”

Administrative Appeals Tribunal Act 1975 (Cth) s 44
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 19, 23(1), 24, 37, 40, 62(5)

Commonwealth of Australia v The Human Rights and Equal Opportunity Commission [1998] FCA 3, cited
Commonwealth Banking Corporation v Percival (1988) 82 ALR 54, followed
Norton v Comcare [2000] FCA 1068, referred to
Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, referred to
Waterford v Commonwealth of Australia (1987) 163 CLR 54, referred to
Webb v Repatriation Commission (1997) 47 ALD 277, referred to

TELSTRA CORPORATION LIMITED v GORDON SLATER

Q 292 of 1999

SPENDER J
BRISBANE
28 FEBRUARY 2001


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 292 OF 1999

BETWEEN:

TELSTRA CORPORATION LIMITED
APPELLANT

AND:

GORDON SLATER
RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

28 FEBRUARY 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Administrative Appeals Tribunal of 12 November 1999 be set aside.

3.The application for an order of review to the Administrative Appeals Tribunal of the decision of 10 November 1998 be dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 292 OF 1999

BETWEEN:

TELSTRA CORPORATION LIMITED
APPELLANT

AND:

GORDON SLATER
RESPONDENT

JUDGE:

SPENDER J

DATE:

28 FEBRUARY 2001

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Introduction

  1. This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (AAT) given in Brisbane on 12 November 1999. Such a proceeding is in the original jurisdiction of the Court. The decision under review before the AAT was a reviewable decision made on 10 November 1998 by a senior claims officer at GIO Australia’s Telstra Compensation Group (which may be treated as a decision of Telstra Corporation Limited (Telstra) for the purposes of these reasons), by which an earlier Telstra determination of 14 October 1998 was affirmed, in relation to a claim for compensation by Mr Gordon Slater under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

  2. The delegate of Telstra, on 16 April 1997, had earlier determined that Mr Slater was then:

    “2.     … fit to return to full time work,  with restrictions; and

    3.that the available evidence has established that liability no longer exists in respect of incapacity payments; and

    4.that the available evidence has established that…

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Details
AGLC
Telstra v Slater [2001] FCA 149
Case
[2001] FCA 149
Decision Date

CaseChat Overview and Summary

The case of Telstra v Slater involved the appellant, Slater, challenging a decision made by the respondent, Telstra, regarding his eligibility for compensation under the Workers Rehabilitation and Compensation Act 1988 (Cth). The central issue was whether Slater was entitled to compensation under section 19 of the Act, which pertains to incapacity due to a work-related injury. Slater argued that Telstra had failed to determine suitable employment for him, thereby neglecting its statutory obligations. In contrast, Telstra contended that it had identified suitable employment options for Slater, which he had rejected.

The court had to determine whether Telstra had adequately fulfilled its obligations under the Act to determine suitable employment for Slater and to calculate compensation payable under section 19. The court examined the evidence provided by Slater regarding his acceptance of the occupations listed in the Work Directions Australia report, except for the roles of console operator and real estate agent, which he deemed unsuitable due to his physical and emotional requirements. Telstra argued that Slater's rejection of these occupations indicated a lack of genuine interest in returning to work, while Slater requested vocational counselling to help him choose a suitable occupation.

The court found that Telstra had not adequately fulfilled its obligations under the Act. It concluded that Telstra had failed to properly assess Slater's emotional satisfaction with the proposed occupations and had not gone far enough in determining suitable employment. The court also noted that Telstra had made a fundamental error in its understanding of the Act by rejecting Slater's entitlement to compensation under section 19. Consequently, the court allowed Slater's appeal, set aside the orders of the Administrative Appeals Tribunal, and dismissed the application for review. The matter was remitted to Telstra to calculate the compensation payable to Slater under section 19 of the Act.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Administrative Appeals Tribunal of 12 November 1999 be set aside.

3. The application for an order of review to the Administrative Appeals Tribunal of the decision of 10 November 1998 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The AAT’s reasons for decision relevantly include the following:“The applicant gave evidence that he agreed with the [WDA] report in that he could not return to his former employment as a refrigeration mechanic. He accepted that the occupations listed would be suitable for him, except in relation to console operator and real estate agent. A number of reasons were offered by the applicant for this. He believed, from his understanding of the job, console operator would not be suitable because he cannot sit or stand for long periods. Mr O’Gorman went further and submitted that the position of console operation was ‘beneath’ his client, taking into consideration his background as a qualified tradesman; and real estate agent would not be suitable as he had no background in selling on commission.Ultimately, it was submitted by Mr O’Gorman that these jobs were not suitable for the applicant in accordance with the definition of ‘suitable employment’ in s 4(1) of the Act. Mr O’Gorman pointed to the need for ‘emotional satisfaction’ on the part of the applicant. He relied upon an extension of the principles applied by the Federal Court in Department of Defence v Fox (1997) 24 AAR 171, a decision relating to the provision of a rehabilitation program pursuant to s 37 of the Act. The thrust of Mr O’Gorman’s submission was that when assessing suitable employment for a particular person, it is not enough to establish what types of work that person is physically and intellectually capable of performing. What must also be established, based upon the person’s background and experience, is what type of work will be emotionally satisfying for the person. Counsel failed to point to any employment that would not be ‘beneath’ the emotional requirements of this qualified tradesman.The thrust of the applicant’s evidence was that whilst he would be happy to accept the majority of the occupations identified in the Work Directions Australia report, he had no idea as to what any of these occupations entailed. He therefore requested that he be provided with some vocational counselling to assist in choosing which occupation would be most suitable, as was suggested by Work Directions Australia in their report.The applicant was rigorously cross-examined and it was submitted that on his own evidence he had demonstrated no interest in returning to full-time employment, and that his sole aim in life was to remain on disability payments. Counsel pointed to the applicant’s numerous job applications and submitted that they were merely intended to lay the foundation for establishing his alleged willingness to work. The applicant conceded that some applications were not genuine attempts, rather they were designed to show the respondent that he was unable to find work in the areas suggested in the Work Directions Australia report.…Mr O’Gorman submitted that since receiving the report, the respondent had done nothing to act on it except to determine ‘suitable employment’, and that this was not enough to comply with the earlier Tribunal’s direction of 13 March 1998. He submitted that as the direction was that the respondent determine suitable employment ‘for the purposes of s 19’ of the Act, it was clear that the Tribunal as then constituted intended that the respondent comply with this section and make calculations as to the compensation payable to the applicant.The applicant claims to have requested the respondent on numerous occasions to be provided with a rehabilitation program in accordance with s 37 of the Act. The respondent, in turn, claims that such a program has been offered to the applicant but he has refused it. No evidence of such refusals was provided. On the other hand, in a letter dated 7 December 1998 (TA-14), the respondent wrote to the applicant in response to his requests and stated:‘In relation to providing further rehabilitation, it was never Telstra’s intention to offer you suitable employment with Telstra or to conduct a rehabilitation program to locate you with suitable employment in the labour market. I apologise for any misunderstanding that may have occurred in this regard.’In the meantime, the applicant has returned to the United Kingdom and lives there with his wife and three children.…The liability of the respondent to the applicant under s 19 of the Act is also provided for by the direction of the Tribunal on 13 March 1998 that the respondent determine ‘what would be suitable employment for the purposes of s 19’. We agree with the submission of the applicant in relation to this, and find that the respondent has failed to comply with this direction. At the risk of repetition, it is clear upon reading s 19 that its purpose is to provide compensation to an incapacitated employee. The respondent, in determining a number of occupations suitable for the applicant, has not gone far enough to comply with this direction. The respondent is required to then use this information to make calculations in accordance with s 19 to enable determination of the compensation payable by it to the applicant.…We again find that the applicant’s ability to work has been restricted by the work injury. As already pointed out, under the Act the respondent has a responsibility not only to compensate the applicant for his injuries and loss of work for the period for which he was contracted. This responsibility extends to cover the effect of the incapacity to the applicant beyond the period of the contract and into the future. Additionally, the responsibility may extend to include rehabilitation and re-training of the applicant to ensure that he is able to re-enter the workforce.We agree with the submission that the applicant has shown no inclination to return into the workforce and sat on his hands waiting for the respondent to take the initiative in complying with the requirements of the Act. Indeed, we think it likely that the applicant will fail to take full advantage of any rehabilitation provided in order to seek suitable employment in this country. He has again made his life back in England and we feel he is likely to return there when his rights under the Act are exhausted. In short, we were far from impressed with the applicant and his demeanour in the witness box. He knows his rights and is determined to exhaust them to the end. Having said this, it is equally apparent to us that the respondent has failed to comply with the Act and has neglected its statutory obligation.The respondent submitted that they have been unable to undertake the calculation provided by s 19 of the Act because the applicant has been obstructionist and rejected the occupations that were listed in the Work Directions Australia report. However, the respondent made it clear in the reviewable decision to the applicant dated 10 November 1998 … that it felt the applicant was not entitled to payments under s 19. This is a basic and fundamental misconception of the requirements of the Act.The decision under review is varied insofar as we determine that suitable employment for the applicant includes the [seven] occupations listed by Work Directions Australia in their report dated 4 September 1998 …We remit the matter to the respondent to calculate compensation payments payable by the respondent to the applicant in accordance with s 19 of the Act. …” (Emphasis Added).

Decision

Reasons for decision

SPENDER J

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Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

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