Thorpe and Secretary, Department of Employment and Workplace Relations

[2007] AATA 2013

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2013

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1013

GENERAL ADMINISTRATIVE DIVISION		)
Re		TREVOR THORPE

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr J Campbell, Member

Date3 December 2007

PlacePerth

Decision The Tribunal affirms the decision under review.

..........(Sgd. J Campbell)................

Member

CATCHWORDS

Social Security - Disability Support Pension - termination of employment - removal from employment - income maintenance period - issue of whether leave accrued monies prior to 20 September 2006 should be taken into account in calculating income maintenance period

LEGISLATION

Social Security Act 1991, Sections 94, 117, 1064 Module F

Police Act 1892 (Western Australia), Sections 7, 8, 33K, 33L

REASONS FOR DECISION

3 December 2007 Dr J Campbell, Member     

1. Mr Thorpe commenced work as a police constable with the Western Australia Police Force (WAPF) on 4 April 1976. Mr Thorpe commenced sick leave resulting from work related matters on 4 May 2004. The Police Commissioner on 17 August 2006 issued a notice to Mr Thorpe that it was his intention to recommend to the Minister of Police that the Minister’s approval would be sort for Mr Thorpe to be removed from the WAPF on medical grounds pursuant to s 33L of the Police Act 1892. On 16 October 2006 the Commissioner, pursuant to s 33L confirmed to Mr Thorpe his earlier intentions, as he was satisfied that Mr Thorpe, because of his medical conditions, was not able to continue to perform the duties of a Police Officer.

2.      Mr Thorpe was removed from his role as a non commissioned Police Officer on 1 December 2006 (T7, pg 5).  As a consequence Mr Thorpe received an eligible termination payment of $7,755.36 (s 33M), and leave payments of $15,663 for 82 days unused long service leave and $36,236.95 in lieu of unused annual leave.

3. On 1 December 2006 Mr Thorpe lodged a claim for Disability Support Pension (DSP). This claim was approved on 12 December 2006 pursuant to s 94 of the Social Security Act 1991 (the SS Act), but payment in relation to such a claim was precluded until 26 August 2007, because of an Income Maintenance Period being imposed as a consequence of s 1064 Module F of the SS Act.

4.      The decision in relation to the Income Maintenance Period was considered and affirmed by an authorised review officer on 6 February 2007.  The matter was further considered by the Social Security Appeals Tribunal and affirmed in a decision dated 6 March 2007.

Issues

5.      The relevant issues in this matter are:

(a)does Mr Thorpe’s removal on medical grounds from the WAPF fall within the phrase ‘termination of employment’ as nominated within s 1064 F2?

(b)should monies paid in lieu of long service and annual leave accrued prior to 20 September 2006 (being the date upon which Module F, s 1064 became operative) be taken into account in the calculation of the income maintenance period?

Decision

6.      For the reasons nominated later in this decision, I conclude that:

(a)Mr Thorpe’s removal on medical grounds from the WAPF involved a statutory process with defined and particular language.  No matter what the description, Mr Thorpe’s service with the WAPF was brought to a close, with the implementation of the particular pathway undertaken by the Police Commissioner.  While the statute demanded such processes and language, the substantive intent and consequence of such implementation was the termination of Mr Thorpe’s service/employment.  In such circumstances Mr Thorpe’s arguments cannot be sustained as clearly no matter how described, the outcome of the process employed involved a termination of his employment.

(b)Yes, such monies as owing from payments of accrued leave prior to the commencement of the operative date as nominated in the Amending Act (namely 20 September 2006) should be taken into account in defining the income maintenance period.

(c)the decision under review is affirmed.

Consideration and Findings

7.      I note that the factual circumstances as earlier nominated are not in dispute between the parties.  I so find.

8. Further I note that with the passage of time, the issues between the parties have narrowed, with only the two issues nominated being pursued by Mr Thorpe. In particular, I note that Mr Thorpe does not seek to question the calculations undertaken by the Respondent in relation to the income maintenance period, apart from contending that if his assertion, that monies paid for accrued leave prior to 20 September 2006 not be taken into account in determining the length of the income maintenance period, is correct, the length of income maintenance period would be much shorter. I note that Mr Thorpe did not wish to pursue whether any of the income maintenance period could be waived pursuant to severe financial hardship provisions contained within s 1064 – F11 of the SS Act.

The Issue of “Removal from the Police Force”

9. Mr Thorpe’s main contention is that “removal” from the Police Force is not mentioned within the SS Act while other words such as redundancy, retirement, resignation, death and termination are. In furthering his contentions, Mr Thorpe, in noting the Oxford Dictionary definition of remove as to mean dismiss, with the same dictionary defining dismiss as “terminate the employment of, especially as the result of dishonourable action; sack”, argues that such words as removal and dismissal and the inferences arising as a consequence of the use of such words are not contained within the SS Act. Further Mr Thorpe contends such words (removal, dismissal) are not consistent in meaning with the words used, such as redundancy and termination.

10. In addressing this contention, I shall first turn to s 1064 – F2 of the SS Act which deals with lump sum payments arising from termination of employment. I observe that the Shorter Oxford Dictionary defines the word terminate to include “bring to an end, put an end to, cause to cease; finish, dismiss from employment”. I note that Mr Thorpe has defined termination (means terminate) as “bring or come to an end”. I further note the meaning of the word of “termination” as defined within the Shorter Oxford Dictionary to include “the action of putting an end to something or bringing something to a close”; “dismissal from employment”.

11.     Further I note from the Shorter Oxford Dictionary that the meaning of “dismissal” involves “the action or act of dismissing esp. from employment, one’s thought or one’s presence.  The word dismiss in the same dictionary is defined to mean “remove, esp. with dishonour, from a post or employment”.

12.     In noting the definitions of the words, removal, dismissal, terminate and termination, I am mindful that the meaning given to such words should be the result of careful examination of the context in which the words are being used, with further consideration given as to why such words are used (statutory context).  In the circumstances of the matter to hand, the choice of words used by the Police Commissioner was particularised by the process and words contained within the Police Act 1892 (WA).  While I note the term removal was used, it is evident from the definitional scenario outlined that all three words, namely removal, dismissal and termination enjoy similar meaning, when considered in the context of employment, namely bringing to a close a period of service/employment.

13.     As a consequence I conclude that Mr Thorpe’s “Removal on Medical Grounds” from the WAPF involved a defined statutory process of some antiquity, which resulted in his period of service with the force being brought to an end.  While the statutory process has involved the use of a particular word, namely ‘removal’, within the context of the employment environment, the end result is cessation of employment, an outcome congruent within the meaning of the word “termination” in the context of employment.

14. It is for these reasons that I conclude that Mr Thorpe’s contention on this issue must fail. While the word ‘removal’ is not used in the SS Act in the context being considered, it is evident that the term ‘termination of employment’ clearly prescribes circumstances in which employment is brought to an end. In so doing, it is further evident and I so conclude that such phrases as “removal from service” or “dismissal from service” have a meaning and substance congruent with that inherent in the phrase “termination of employment”.

The issue of the Income Maintenance Period

15. The Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 was an act to amend the Social Security Law and was assented to on 14 December 2005. Included within the provisions of the Act was a schedule 16 which introduced a Module F to the Pension Rate Calculator, nominated in s 1064 of the SS Act.

16. The summary effect of this amendment is that from 20 September 2006, a person who claims or receives the disability support pension under s 94 of the SS Act may have in particular circumstances an income maintenance period imposed. It is noted that permanently blinded persons in receipt of disability support pension are excluded from the application of the income maintenance period, as they are not subject to the ordinary income test.

17. Section 117 of the SS Act provides that the rate of a person’s disability support pension is calculated in accordance with the Pension Rate Calculator A in s 1064 of the Act.

18. Section 1064 Module F is concerned with the mechanics of working out the rate of disability support pension payable to a person, with s 1064 F2 nominating that a person is said to have received a lump sum payment arising from the termination of his employment on the day the person’s employment was terminated. Section 1064 – F5 details that certain lump sum payments received as a termination payment are to be considered ordinary income for a period (income maintenance period) equal to the period to which the payment relates.

19.     Section 1064 – F14 defines a termination payment to mean a leave or redundancy payment relating to a person’s employment that has been terminated.  Section 1064 – F14 defines a leave payment to include payment in respect of sick leave, annual leave, maternity leave and long service leave.

20.     In this matter, it is noted that Mr Thorpe received a termination payment being a leave payment with two components, namely annual leave ($15,663) and long service leave ($36,236.95).  There is no dispute on these factual circumstances.

21.     Mr Thorpe contends that as the amendments to the Act (Module 1064 – F) did not become operative until 20 September 2006, only leave payments made in respect of annual leave and long service leave accrued after 20 September 2006 should be taken into account and considered ordinary income for the purposes of calculating the income maintenance period.

22.     I further note the comments made in the extracts contained within Exhibit R1 attachment R1 (introduction of amendments to Parliament) and in particular the statement:

“Under the income maintenance period, which a person receives a leave payment, the amount of leave payment is apportioned over the period that the payment represents and maintained as ordinary income for that period”.

23.     In addressing the contention raised by Mr Thorpe, I am mindful that a termination payment can only be made on termination of employment.  In calculating the termination payment periods of accrued annual and long service are paid as lump sum leave payments, with the Act provisions claiming such payments to be ordinary income at the time the termination payment is paid.  Further, and remembering that such provisions are to do only with the calculation of the rate of disability support pension payments, an income maintenance period is established which affects that such leave payments and the period of time that such leave payments represent, are deemed to be ordinary income.

24.     In such circumstances, all lump sum termination leave payments made after 20 September 2006 will be treated as ordinary income, irrespective of over what periods of time such leave entitlements have been accruing, for by virtue of the act amendments the treatment of such lump sum termination (leave) payments has been changed as from 20 September 2006 as regards the calculation of rate of payment of disability support pension.

25.     Further, I would observe that this is clearly the intention of the Act amendments as indicated by the treatment of redundancy payments at the time of termination, in an endeavour to have similar income maintenance provisions applied to most income support payments for working age people.

26.     Finally, in addressing Mr Thorpe’s particular contention, I would consider that if leave accruals prior to the commencement date of 20 September 2006 for the amendments were to be disregarded in the circumstances of termination payments, the amendments would have so stated.

27.     It is for these reasons that I am not persuaded to accept Mr Thorpe’s submission on the second issue.  It is my view that the clear intent and purpose of the amendments were to include termination payments, without limitation as to period of accrual, as ordinary income, with such income to be used in calculating the rate of payment of disability support pension.  My view is further reinforced in that the amendments clearly define circumstances in which rollover lump sum termination payments are to be disregarded in working out a person’s ordinary income (s 1064 – F5).

28.     In conclusion I concede that the decision under review be affirmed.

I certify that the twenty eight [28] preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member

Signed:         ...................(Sgd. R Riberi)..................................
  Associate

Date of Hearing  26 November 2007
Date of Decision  3 December 2007
Representative for the Applicant       Self Represented
Counsel for the Respondent              Mr A Holt
Solicitor for the Respondent              Legal Services Branch, Centrelink