Trimnell, T.J. v Commissioner for Superannuation
[1994] FCA 496
•29 JULY 1994
THOMAS JONES TRIMNELL v. COMMISSIONER FOR SUPERANNUATION
No. VG21 of 1994
FED No. 496/94
Number of pages - 7
Superannuation
(1994) 123 ALR 22
COURT
IN THE FEDERAL COURT OF AUSTRALIA
MELBOURNE DISTRICT REGISTRY
GENERAL DIVISION
JENKINSON, RYAN AND WHITLAM JJ
CATCHWORDS
Superannuation - Commonwealth - Deemed invalidity - eligible employee terminating employment by resignation - employee unfit for duties of substantive position - employee directed to perform other duties - whether commissioner should have regard to duties of substantive position in determining employee's capacity to perform his duties - meaning of "his duties".
Superannuation Act 1976 s.7(2)
Public Service Act 1922, s.67(1)
Public Service Regulations r.32
Commissioner for Superannuation v Hastings (1986) 70 ALR 625.
HEARING
MELBOURNE, 29 July 1994
#DATE 29:7:1994
Counsel for the appellant: Mr N Green
Solicitor for the appellant: Minter Ellison Morris Fletcher
Counsel for the respondent: Mr F H Callaway QC with Mr T Ginnane
Solicitor for the respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS:
1. That the appeal be dismissed.
2. That the appellant pay the respondent's costs of the appeal.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
JENKINSON, RYAN and WHITLAM JJ This is an appeal from a judgment of a single Judge of the Court allowing an application by way of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") on 28 August 1992. By that decision, the Tribunal set aside a decision of the Commissioner for Superannuation ("the Commissioner"), confirmed upon reconsideration by the Commissioner's delegate, refusing a direction that the appellant, Mr Trimnell, be deemed to have been retired on the ground of physical or mental incapacity to perform his duties. Provision for a direction of that kind was made by s.7(2) of the Superannuation Act which provided:
"7(2) Where a person has, before attaining his maximum retiring age, ceased to be an eligible employee otherwise than by reason of death or by reason of his having been retired, or his services having been otherwise terminated, on the ground of physical or mental incapacity to perform his duties, but the Commissioner is satisfied that, at the time he ceased to be an eligible employee, he was, by reason of physical or mental incapacity, unfit to perform his duties, the Commissioner may direct that the person shall, for the purposes of this Act, be deemed to have been retired on the ground of that physical or mental incapacity."
The relevant facts pertaining to Mr Trimnell as summarized by the learned primary Judge were:
"(He) was born on 23 August 1935. He commenced employment with the Department of Social Security on 14 July 1959 at Hamilton in Victoria. Initially he was employed as a clerk but in the late 1960's he became a field officer and by 1979 held the office of Field Officer Grade 3 and was responsible for the efficient functioning of the field office section at Hamilton. In 1979 he sought medical advice in relation to problems he was then experiencing and was placed on anti-depressant medication. From February 1979 until May 1980 he was absent from work on sick leave. He resumed work on 14 May 1980 at the direction of the personnel officer. The department considered him to be fit for duty on the basis of significantly reduced responsibility. He was assigned to duties which equated with those of a clerical assistant grade 3. His salary remained at his substantive level which was equivalent to the salary of a clerical assistant grade
6. On 17 July 1980 the acting regional manager at Hamilton reported that he was carrying out his duties in a most capable manner. The respondent was on sick leave from 22 September 1980 to 2 October 1980 for "nerves and stress disorder" and from 3 October 1980 to 9 October 1980 for "nerves, anxiety depression, skin disorder". On 9 October 1980 he tendered his resignation, which became effective on 10 October 1980."
His Honour also referred in these terms to certain findings of fact made by the Tribunal:
"... the Tribunal said:
That the applicant performed duties equal to those of a clerical assistant grade 3 when he returned to work in May 1980 is not in issue. Clearly he did. Whether that was the position he held at the date he resigned is another issue. The Tribunal then proceeded to deal with some intra-departmental correspondence and a memorandum dated 19 September 1980 in which the regional manager at Hamilton was advised that the respondent would occupy a field officer grade 2 position on a trial basis until 31 October 1980. The Tribunal found that the decision to return the respondent to a field officer grade 2 position for a trial period was not divulged to the respondent who was on sick leave from 22 September 1980 until he resigned. In this context the Tribunal continued (Reasons pp 14-15; AB pp 372-3): While there was no evidence as to the implementation of the instruction it should also be borne in mind that the applicant was, according to department records, on sick leave from 22 September 1980 until he resigned. Had he not been on sick leave, it seems reasonable to infer that in the terms of the memorandum, he would have been some way through the trial period as a field officer. In view of the above, and notwithstanding a degree of inconclusiveness about the evidence, it does not seem to us that the applicant held the position of a clerical officer at the date he resigned. We are therefore not satisfied that the words "his duties" can properly refer to the position of a clerical officer as at the date the applicant resigned. In our opinion, applying what was said in Hastings, his duties at the relevant date were those of a field officer. The Commissioner in considering the applicant's request under s.7(2) proceeded on the basis, incorrectly in our view, that "his duties" were those of a clerical officer."
After accepting that Mr Trimnell was, before his resignation, an officer in the Australian Public Service, and referring to Reg. 32 of the Public Service Regulations, his Honour indicated the following understanding of the Tribunal's findings of fact:
"In the instant case it is clear on the Tribunal's findings that in May 1980 when the respondent resumed work after a long period of sick leave he held the office of field officer grade 3 but he was directed to perform certain clerical duties unassociated with the duties of his office. That direction was never countermanded and at all times after 14 May 1980, when not on sick leave or recreational leave, the respondent performed the duties of a clerical officer grade 3."
The learned primary Judge then identified as follows the error which he imputed to the Tribunal:
"It is my opinion that the Tribunal erred in addressing the question of what office or position the respondent held at the time of his resignation and not the duties he had been directed to perform at that time. Section 7(2) of the Superannuation Act does not refer to the duties of the eligible employee's position or office but rather refers only to his duties which in my opinion must relate to his actual obligation to perform duties at the time his services are terminated."
Considerable attention was directed both at first instance and before this Full Court to the judgment of another Full Court (Woodward, Keely and Wilcox JJ) in Commissioner of Superannuation v Hastings (1986) 70 ALR 625. In that case, the respondent had been retired in 1971 from a position as clerk within the Commonwealth Department of Excise and Customs on the ground of invalidity arising from ischaemic heart disease. On 8 April 1980 Mr Hastings was appointed a senior health inspector in the Northern Territory Department of Health. By virtue of that appointment he became an "eligible employee" within the meaning of the Superannuation Act but, on 15 August 1980, his appointment was terminated pursuant to s.49 of the Public Service Act (NT) on the ground that he was inefficient or incompetent or unable to discharge or incapable of discharging his duties as an employee under that Act. Because his appointment to the Northern Territory Public Service had automatically terminated Mr Hastings' entitlement to a pension under the Superannuation Act by virtue of his employment in the Department of Excise and Customs, the question arose whether he was entitled to a direction pursuant to s.7(2) of the Superannuation Act in respect of the termination of his employment in the Public Service of the Territory. Upon the Commissioner's refusing to give that direction, the matter was considered by the Tribunal.
The following summary of the proceedings up to the Tribunal's decision appears at p.627 of the reasons for judgment of the Full Court:
"Mr Hastings appealed to the Administrative Appeals Tribunal against the decision of the Commissioner. When the matter came on for hearing the Tribunal was informed that it was common ground between the parties that, on 15 August 1980, Mr Hastings was not physically able to perform the duties of a senior health inspector. However, it was the case of the Commissioner that he was fit to perform duties in an alternative classification within the department and that his medical condition was not the reason for his dismissal. The Tribunal was also told that there was a major issue between the parties as to Mr Hastings' capacity for work. On behalf of Mr Hastings it was submitted that it was unnecessary for the Tribunal to resolve that issue, that - once it be conceded or established that Mr Hastings was not fit for work as a senior health inspector the Commissioner was obliged by s.7(2) to deem him to have been retired on the ground of physical incapacity. Counsel for the Commissioner disputed the construction of s.7(2) necessary to yield this result and the Tribunal decided first to resolve the issues of construction, deferring in the meantime the receipt of evidence upon the disputed questions of fact. As already indicated, the Tribunal eventually accepted the submissions upon construction put on behalf of Mr Hastings, so that it became unnecessary for it to receive the evidence."
The Full Court identified that first question arising under s.7(2) in Hastings' Case as the meaning to be ascribed to the phrase "his duties", and continued, at 627:
"The question is whether these words refer only to the duties of the respondent in his employment as a senior health inspector as at the time he ceased to be an eligible employee - that is, at the time his services were terminated - or whether they encompass the whole range of duties which the respondent could reasonably have been required by his employer to perform, through redeployment or transfer.
The submission of the applicant Commissioner is that "his duties" includes the full range of available duties, so that an employee can be said to be incapacitated only in a case in which no suitable work can be found by the employer. In support of that submission counsel for the applicant draws attention to the well-known practice of Commonwealth instrumentalities - which practice finds expression in various legislative provisions similar in terms to s.49 of the Northern Territory Act already quoted - to attempt in the first instance to find for incapacitated employees suitable alternative work, terminating the services of the employee only when no such work is available. Counsel contends that an interpretation of "his duties" which limited the application of those words to the duties of the position occupied by the employee at the relevant time would confer an advantage upon an opportunistic employee who, being unable to cope with those duties, resigned his or her employment before new duties could be substituted. We agree that this is a possibility but, as we consider that the Commissioner has a discretion under s.7(2), it is a matter of little moment; the Commissioner would be entitled to take into account those circumstances when considering the proper exercise of that discretion.
The strongest argument in favour of construing "his duties" in the manner suggested by counsel for the applicant is the contrast between the use of those words in s.7(2) and the use in s.75 of the Act of the phrase "the duties performed by him immediately before his retirement on the ground of invalidity"; the latter being a clear reference to the employee's actual duties."
After setting out the text of s.75 of the Superannuation Act, the Full Court continued at 628-9:
"Section 75 relates to an event which occurs after the termination of the employment of a person: the restoration, in whole or in part, of the former employee's health. At that time the person has no current duties. It would not, therefore, have been appropriate to use in s.75 the term "his duties". It was necessary to use a phrase which referred back to the duties previously performed by the person. It is understandable that the legislature should have selected as significant the duties performed immediately before retirement. A phrase such as that actually used was necessary for that purpose. By contrast, the need in s.7(2) was to refer to a situation ascertainable at the date of the actual cessation of employment: retirement or termination on a ground other than incapacity "to perform his duties". As the relevant date was one at which the employee still had duties, it was natural in this context to speak of "his duties". The difference in terminology between s.7(2) and s.75 being explained by the differing contexts, no inference of an intended different meaning should be drawn. Upon analysis, s.75 furnishes no support for the construction of s.7(2) urged on behalf of the applicant. Indeed, inasmuch as s.75 requires a consideration of the duties performed by the employee immediately before his or her retirement - and does not require any consideration of the duties of other positions to which the employee might have been transferred immediately before retirement - it is consistent with the interpretation of s.7(2) argued on behalf of the respondent.
Counsel for the respondent argues that the term "his duties" ought to be construed literally, to refer to the duties of the position held by the person at the relevant date, ie retirement. There is no warrant, he says, for any extended meaning and, particularly, for one which would require the Commissioner to investigate the duties of some alternative position which might have been, but was not, allocated to the employee by the employer. We agree. Had it been the intention of Parliament to have the Commissioner embark upon such an inquiry, this intention could easily have been stated. Normally the words "his duties", used in reference to an employee, would be understood as referring to the duties of the position which that employee held at the relevant time. We see no warrant for interpreting them in s.7 in any other way. In relation to the first point we agree with the view of the Administrative Appeals Tribunal that "his duties" refers to the respondent's duties as senior health inspector."
However, their Honours went on to hold that, notwithstanding the conclusion that "his duties" referred to Mr Hastings' duties as a Northern Territory health inspector, the Commissioner still had a discretion, not acknowledged by the Tribunal, whether or not to make a direction pursuant to s.7(2) of the Superannuation Act. Accordingly, the decision the subject of the application was remitted for reconsideration by the Tribunal.
The present case was distinguished on its facts from Hastings by the learned primary Judge who said, at p.10 of his reasons:
"The Full Court's statement that "normally the words "his duties", used in reference to an employee, would be understood as referring to the duties of the position which that employee held at the relevant time" was made in the context of a case in which the employee was, at the relevant time, performing the duties of the position to which he had been appointed and for which it was conceded he was not physically fit. But that case is not this case. In the case now before the Court the employee had been assigned alternative duties different from the duties which attached to the substantive position to which he had been appointed. This is not a case in which the Commissioner asserts that there are other as yet unidentified duties which the employee could perform if he was assigned to them (as was the case in Hastings) but rather it is a case in which the employee had been assigned and had been performing alternative duties. The only duties the respondent was obliged to perform immediately before his resignation were the duties of a clerical assistant grade 3. Indeed, in its consideration of s.75 the Full Court actually equated the meaning of "his duties" in s.7(2) with the duties performed by the employee immediately before his retirement rather than the duties of other positions to which the employee might have been transferred immediately before his retirement. In my opinion, a proper reading of the reasons in Hastings required the Tribunal in the present case to direct its attention to the duties the respondent had been required to perform immediately before his resignation. To the extent that the Tribunal construed s.7(2) as not requiring such an enquiry it erred in law."
It was submitted on behalf of the appellant that s.7(2) required the Tribunal to view as a whole the duties ordinarily performed by an eligible employee, for the purpose of determining whether, at the time of ceasing to be an eligible employee, he was unfit to perform his duties. However, acceptance of that submission insufficiently recognizes the discretionary power traditionally reposed in public service boards and similar employing entities to redeploy in lower, and less remunerative offices, employees afflicted by some incapacity to discharge the duties of the substantive offices to which they have been appointed or promoted. See, for example, s.49 of the Public Service Act (NT) quoted by the Full Court in Hastings and s.67(1) of the Public Service Act 1922 (Cth) which provides:
"If an officer appears to the Board or the Chief Officer to be inefficient or incompetent or unfit to discharge or incapable of discharging the duties of his office efficiently, the Board may, after report from the Chief Officer, and after investigation into the circumstances, retire the officer from the Service from a date to be specified by the Board, or may transfer him to some other office, with salary appropriate to such other office."
In our view it would defeat the policy underlying that aspect of public sector employment if an officer, after a long period of service in an office to which significantly higher duties attached, could rely on incapacity to perform those duties as attracting the application of s.7(2) of the Superannuation Act, notwithstanding an undisputed continuing ability to perform the less demanding duties of some lower office to which he or she had been appointed, or the duties of which he or she had been required to perform. However, our rejection of the appellant's argument does not entail that the enquiry as to what were the eligible employee's duties at the time when he or she ceased to be an eligible employee is confined to the very day of such cessation. That enquiry would, as Counsel for the respondent pointed out, be fruitless if made in respect of an unattached officer or one on sick or other leave at the date of cessation. However, we do not understand the Full Court in Hastings to have limited the enquiry in that way. Rather, it indicated, at 629, an understanding of "his duties" as referring to the duties of the position which the employee held at the relevant time.
We would add only the gloss that regard must be had to the totality of the duties of the position which the employee held at the relevant time or to the totality of the duties which he had been directed to perform at that time, as the case may be. Ability to perform only a small part of the whole of those duties would not preclude the Commissioner or the Tribunal from attaining the satisfaction postulated by s.7(2).
We agree with the primary Judge that the present case, on its facts, did not give rise to an inquiry, precluded by the Full Court in Hastings, into whether there was some hypothetical office or position to which the appellant might have, but had not been, appointed. In our view, his Honour applied to Mr Trimnell's circumstances the same understanding of the sub-section which informed the reasoning of the Full Court in Hastings. We agree in the result which he reached and, accordingly, the appeal must be dismissed with costs.
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