Whitby and Telstra Corporation Limited
[2009] AATA 316
•6 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 316
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600709; 2007/2292;
GENERAL ADMINISTRATIVE DIVISION ) 2009/0195 Re SCOTT WHITBY Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member Date6 May 2009
PlaceBrisbane
Decision The Tribunal:
1. in respect of Application No Q 200600709:
(a) sets aside that part of the reviewable decision which deals with the calculation of the normal weekly earnings;
(b) remits that part of the reviewable decision to the respondent for reconsideration in accordance with the written reasons; and
(c) otherwise affirms the balance of the reviewable decision.
2. in respect of Applications No 2007/2292 and 2009/0195:
(a) affirms the reviewable decisions.
....................[Sgd]..........................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Injury – Incapacity – Normal weekly earnings – Whether the calculation of normal weekly earnings exceeded the amount of earnings the applicant would have received if not incapacitated – Whether overtime correctly calculated in normal weekly earnings – Decision set aside and remitted
WORKERS’ COMPENSATION – Injury – Permanent impairment – Degree of impairment – Whether the degree of impairment greater than 10% – Degree of impairment less than 10% – Decision affirmed
WORKERS’ COMPENSATION – Injury – Incapacity – Whether injury as a result of work – Injury not as a result of work – Decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 8(8), 8(10), 9(1), 24, 27
Bortolazzo v Comcare Australia [1997] FCA 515, (1997) 75 FCR 385
Re Lower and Comcare [2008] AATA 352, (2008) 102 ALD 195
REASONS FOR DECISION
6 May 2009 Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member 1.
Mr Scott Whitby, the applicant, was injured at work in November 1998. He sought and received compensation from Telstra, his employer, under the
Safety, Rehabilitation and Compensation Act 1988(“the SRC Act”). Mr Whitby experienced a further injury at work in June 2003. Telstra has since reviewed
Mr Whitby’s case and decided to change the figures it used to calculate his normal weekly earnings (“NWE”) after December 2002: Application No Q 200600709. That change had the effect of reducing Mr Whitby’s entitlements. He said the changes are inappropriate and contended for a different way of calculating the amount of overtime he would have performed. Telstra also decided to cease medical and incapacity payments on the basis that there was no longer a causal connection between the applicant’s 1998 injury and his current condition (Application No 2009/0195) and it rejected Mr Whitby’s claim for whole person impairment compensation pursuant to ss 24 and 27 of the SRC Act (Application No 2007/2292).
2. We will begin by reviewing the background facts. We will then turn to the medical evidence. That evidence will help us to decide whether there is a link between his work-related injuries and his current condition. It will also enable us to determine whether he experiences a whole person impairment that might attract compensation under the SRC Act. We will then consider the issues raised by his arguments over the calculation of NWE.
The background facts
3. Mr Whitby was working as a linesman for Telstra when he injured his lower back on 28 November 1998. In his statement of 8 October 2007 (Exhibit A2), he said he leaned into a van to pick up a piece of test equipment that weighed less than two kilograms. He then heard and felt a snap in his lower back and immediately experienced intense pain.
4. The applicant underwent a CT scan on 4 January 1999 and was subsequently diagnosed with a disc prolapse at L4/5. Telstra accepted liability for a right facet joint strain L4/5 level in its determination dated 9 December 1998. Mr Whitby received incapacity payments between 28 November 1998 and 2 May 2003. The amount of the applicant’s incapacity payments was calculated with reference to certain assumptions about the applicant’s level of overtime.
5.
This was not the first occasion on which Mr Whitby injured his back. He had a motorcycle accident on 4 December 1991. Dr Sundar, one of his treating doctors, suggested in a letter (Exhibit R6) written in 1997 in support of a workers’ compensation claim arising out of the motorcycle accident that Mr Whitby still reported back pain from time to time. In 1999, a physiotherapist referred to a “previous history of a disc bulge after he fell off a motorbike” in a letter written to
Dr Sundar: Exhibit R7. Dr Sundar’s clinical notes (Exhibit R4) also refer to the applicant’s fall on a rubber mat in 1997.
6. Mr Whitby moved to a new job that involved running jumpers into Telstra exchanges in late 2002. He continued to experience what he described as “flare ups” in his back. In his statement of 26 February 2007 (Exhibit A1), he referred to episodes in December 2000, February 2001 and February 2002. All of the episodes resulted in time off work. But he said worse was to come.
7. Mr Whitby said in his statement of 8 October 2007 that he experienced “a flare up in my back” while he was at work on 20 June 2003. In his application for workers’ compensation, he explained the problem occurred while he was bending over a desk. Telstra accepted liability for “acute right sciatica, L4/5 disc protrusion” in a determination dated 11 July 2003. The applicant said he was unable to work from the date of the incident until 14 August 2003: Exhibit A2. He claimed his physical condition and quality of life deteriorated after August 2003. Thereafter he said he experienced regular pain attacks when he attempted to perform daily tasks.
8. Mr Whitby said in his oral evidence that the pain attacks worsened over time. He testified the pain was always present, like a tooth-ache. He said that walking on an incline or using steps without a handrail caused his back to throb. He added that walking on flat surfaces could be a problem as well. Indeed, he suggested he experienced pain walking from the nearby Roma St railway station to the courthouse on the morning of the hearing.
9.
The applicant’s statement of 8 October 2007 set out a long list of activities that he said he has difficulty performing as a result of his back condition. He also said in his statement that he cannot lift or carry weights in excess of 10 kilograms. He was asked questions about these claims in the course of his oral evidence.
Mr Clark, counsel for the respondent, asked the applicant about his spear-fishing hobby in particular. In his statement, Mr Whitby said he could not carry the weight of the equipment without assistance before entering the water.
10. That evidence was difficult to reconcile with the pictures of Mr Whitby that were taken from his Facebook profile and put to him during cross-examination. The pictures depict a smiling Mr Whitby showing-off two large fish that he apparently caught while spear-fishing. He was holding a large fish in each hand without assistance. While it was difficult to be precise, the applicant agreed the photographs showed him carrying loads that weighed more than 10 kilograms. He explained he was not lifting or carrying the fish in the pictures; he was merely holding them after they were handed to him by someone else. The explanation was unconvincing. The pictures call into question the veracity of the rest of the account of his symptoms.
11.
Following the injury in June 2003, Mr Whitby received incapacity payments from the respondent from 20 June until 13 August 2003. The reviewable decision dated 4 August 2006 determined the effects of that injury ceased by 13 August 2003. The reviewable decision said the incapacity payments made to the applicant after that date were referable to his 1998 injury. Those payments were made between
14 August 2003 and 17 May 2006. The reviewable decision also reassessed the applicant’s NWE after considering the evidence in relation to overtime. We will discuss the evidence in relation to the applicant’s overtime in due course.
12.
The applicant’s claim in respect of permanent impairment compensation pursuant to ss 24 and 27 of the SRC Act was refused in a reviewable decision dated
26 April 2007. Telstra was not satisfied the applicant experienced the minimum level of impairment under the relevant tables in the Guide to Permanent Impairment
(“the Comcare Guide”). The decision to cease payment of all compensation was made in the reviewable decision dated 18 December 2008. The outcome of the review of both of these decisions turns on the medical evidence.
The medical evidence
13.
None of the doctors who saw the applicant conducted objective tests that would confirm the applicant’s claims about the extent of his condition. Only
Ms Kate Anthony, the occupational therapist, recorded detailed observations of the applicant sitting, standing, walking, lifting and performing other functions over a reasonable period. But that examination occurred in April 2002, some seven years ago. More recent evidence would have been useful given the question marks over the applicant’s credit raised by the Facebook photographs and the fact he appears to have given different histories to different experts.
14. We have already referred to documentary evidence (Exhibits R6 and R7) suggesting the applicant experienced chronic back pain following a motorcycle accident in 1991. Ms Anthony’s report (Exhibit R1 at 92) said the applicant claimed his back pain commenced in 1998. She added he did not have “any other previous medical history impacting on his functional abilities”. Dr Bruce McPhee said he was told of the motorcycle accident, but the applicant claimed the pain subsided after 12 months: Exhibit R10 at 1. Dr Peter Steadman also said he was aware of the accident but reported the applicant claimed the accident resulted in an injury to a different part of his spine: Exhibit R11 at 5. Dr Malcolm Wallace acknowledged he had been told of the motorcycle accident but added the applicant “did not have any lower back pain”: Exhibit R3 at 34. Dr John Morris also acknowledged in his oral evidence that he was not aware of any history of back pain prior to 1998.
15. Drs McPhee and Steadman reported a suspicion that the applicant was exaggerating his symptoms. Dr McPhee said in his report (Exhibit R10 at 4) that there was a discrepancy between the range of lumbar spine flexion observed in the standing and sitting positions. That discrepancy should not have occurred if the applicant was telling the truth. He also referred (at 4) to the results of an accessory validity test that indicated the range of lumbar movements observed were not an accurate reflection of Mr Whitby’s true level of impairment. Dr McPhee accepted (at 4) that the radiological evidence was consistent with the reported symptoms but added that he thought there was a significant level of stress that affected Mr Whitby’s presentation. In his oral evidence at the hearing, Dr McPhee expressed even stronger doubts about the veracity of the applicant’s account in light of evidence that the applicant had been suffering back pain over a long period prior to 1998.
16. Dr Steadman was questioned at length on his suspicions. He testified the radiological evidence was inconsistent with the applicant’s account of his symptoms. Dr Steadman noted the applicant’s references to the amount of time he spent managing his back symptoms. Dr Steadman said that focus was consistent with a psychological overlay rather than indicative of a particular cause. He also referred to the application of Waddell’s criteria, which is a test for determining whether a patient is exaggerating his or her symptoms. Dr Steadman explained the criteria at the hearing. He agreed the criteria had to be applied with care, but said they were useful to an expert exercising his or her clinical judgment. Ms Scott-MacKenzie, counsel for the applicant, questioned him about his competence to apply those criteria. We have no reason to doubt Dr Steadman’s competence in light of his extensive qualifications and experience. (Dr Steadman is an associate professor at the University of Queensland with an extensive practice in orthopaedic surgery.) Dr Steadman opined that the applicant’s back problem is complicated by a psychological overlay. He suggested the applicant has spent so long “managing his back symptoms” that they have taken on a life of their own.
17.
Notwithstanding the concerns of Drs McPhee and Steadman with the authenticity of the applicant’s symptoms, they accepted the applicant may have aggravated an underlying degenerative condition in 1998. Dr Steadman did not offer an impairment rating, although he said the applicant’s current condition – whatever its genesis – was unlikely to improve. Importantly, Dr Steadman added that the aggravation resulting from the 1998 injury was likely to be of a temporary nature and had long since resolved. The reported deterioration he witnessed was the result of the earlier injury taking its course, complicated by a psychological overlay.
Dr McPhee reluctantly accepted the applicant might attract 10% under Table 9.6 of the Comcare Guide if one ignored doubts over the veracity of the applicant’s account of his symptoms. He went on to criticise Table 9.6, and he added that it was impossible to assign a rating under Table 9.5 in the circumstances without evidence of neurological symptoms.
18. Dr Morris’s opinion was affected by the quality of the history he took. He did not recall whether he examined the applicant’s capabilities or if he simply obtained the relevant information by asking the applicant. In any event, he did not assign an impairment rating. He said the 1998 injury was temporary and should have resolved itself by now. Dr Morris did not change his opinion after being provided with evidence of Dr Wallace (discussed below at [20]).
19. Dr John Sowby opined in his report (Exhibit R1 at 249ff) in 2004 that the applicant was already suffering from a degenerative back condition when he was injured in 1998, possibly as a result of the 1991 injury. He did not assign an impairment rating under the Comcare Guide.
20.
That leaves Dr Wallace, the principal medical witness for the applicant. He did not conduct any objective tests but concluded the applicant should be assigned an impairment rating of 5% under Tables 9.5 and 9.6 of the Comcare Guide. Dr Wallace initially suggested the applicant experienced a 10% level of impairment under
Table 9.6 but in his oral evidence he suggested that was too high. He insisted the “snap” the applicant heard and felt in his back in 1998 was unrelated to any previous injury. We have already noted (at [14] of these reasons) his report was premised on the assumption that the applicant did not experience any back pain following the 1991 motorcycle accident.
Conclusions in relation to the medical evidence
21. The task of evaluating the medical evidence is hampered by the absence of objective measurements. The only objective measurement in existence – the report of Ms Anthony – does not support the applicant’s account of the severity of his symptoms. But that report is seven years old, so it carries limited weight.
22.
In all the circumstances, we prefer the evidence of Dr Steadman.
Dr Steadman’s suspicions of the applicant’s account are supported by Dr McPhee. Drs Steadman and McPhee are the best credentialed of the medical experts with an acknowledged expertise in the field. The basis of their suspicions was carefully explained. We were particularly impressed by the careful testimony of Dr Steadman, who explained the use and application of Waddell’s criteria and the other evidence he relied upon to reach his view that the applicant’s problems were principally psychological. Dr Wallace, in contrast, appeared to assume the role of advocate for Mr Whitby. He exhibited a faintly defensive demeanour when questioned about the discrepancies in the history provided to him. His conclusions about the level of impairment were not expressed with strong conviction. His conclusion in relation to the level of impairment under Table 9.5 of the Comcare Guide was also directly at odds with Dr McPhee, who said the applicant could not attract a rating under that table in the absence of neurological signs. Given the credentials and experience of
Dr McPhee, we prefer his evidence on this point.
23. We do not accept the applicant has experienced a whole person impairment of 10% or more under the Comcare Guide. We accept Dr Steadman’s view that there is no connection between the applicant’s current condition and his work-related injury in 1998. It follows that the reviewable decisions in Applications No 2007/2292 and 2009/0195 must be affirmed.
The evidence in relation to overtime and normal weekly earnings
24. The reviewable decision in Application No Q 200600709 discussed the applicant’s preference for using the second injury in June 2003 as the starting point for assessing overtime. The decision concluded the effects of that injury had ceased by 13 August 2003 and the assessment should be undertaken having regard to the 1998 injury. There was presumably some advantage to the applicant in using the 2003 incident as the starting point for the calculation.
25. At the hearing, the arguments were put in a different way. The applicant gave evidence that he regularly performed between 10 and 15 hours of overtime each week when he was working as a communication technician or linesman. He said he often worked on weekends and more overtime was available after periods of heavy rain. He did less overtime when he started working in the exchanges in 2002 and did virtually no overtime when he finished that job and started working in an office.
26.
The applicant adduced supporting evidence in the form of statements from two co-workers, Messrs Darryl Conkey and Adiptya Singh. The statements are almost identical. Mr Clark asked Mr Whitby about this, and the applicant agreed he had helped his co-workers prepare their statements. We do not think anything turns on this revelation. Mr Conkey said he worked alongside Mr Whitby between 1999 and 2003. He said they worked a 38 hour week in the ordinary course, and he also performed a further 12 hours of overtime in an average week. Mr Singh did the same job as Mr Whitby between 1999 and 2003, and he said he worked around 15 hours of overtime each week. We were also referred to a series of Telstra pay slips for
Mr Conkey and another employee, Mr Garry Pointer, in Exhibit R1 at 150-155. That evidence appears to be consistent with the information presented in Mr Conkey’s statement.
27. Messrs Conkey and Singh pointed out in their statements that their working arrangements changed after 2003 when they came to be employed under Australian Workplace Agreements (“AWAs”). They were no longer paid overtime. Their team was assigned tasks and they earned credit points for jobs completed. They worked flexible hours and could earn significant bonuses depending on productivity and other factors. Mr Whitby said he was unaware of any communication technicians being employed under the old arrangements. He understood all of them had moved to AWAs. The respondent did not confirm whether this was so.
28.
The respondent obtained evidence in the form of an email from
Mr Terry Randall, a Telstra supervisor: Exhibit R1 at 129. The email is dated
28 October 2002. Mr Randall said communications technicians in his team worked around five hours overtime over a three week period – the equivalent of one Saturday every three weeks. Mr Whitby agreed Mr Randall was in a position to know how much overtime was worked at the time but disagreed with the estimate. Mr Whitby said he and his colleagues certainly worked more than one in three Saturdays.
29.
We were also provided with a note taken on 1 April 2003 by
Ms Kirsten Macintyre, a case manager at GIO Australia, the respondent’s former insurer: Exhibit R9. The note records the details of telephone conversations between Ms Macintyre and Mr Randall and his boss, Mr Glenn McKeon. Mr McKeon reportedly said a financial planner had been engaged to analyse the amount of overtime that was being worked by communications technicians in the Southern Region (of Queensland, we assume) in the 12 week period prior to the beginning of April 2003. He said the planner had concluded the workers undertook an average of 3.85 hours overtime each week during that period. The reviewable decision confirmed that a figure of 3.85 hours was used in the calculations of NWE following the 1998 injury and at the time of re-calculations that occurred in each of the following years. (The reviewable decision pointed out that the calculation of NWE in 2001 and 2002 initially assumed a larger number of overtime hours on the basis that the applicant was in fact working five hours overtime in his job at the time. The calculation was changed to use the lower number.)
30. Mr Whitby was critical of this evidence. In the course of cross-examination, he explained that the figure of 3.85 hours overtime per week was derived by averaging the working patterns of up to 500 people in the Southern Region. He said he worked in a smaller, busier team comprised of 20 to 30 people. He said the planner would have obtained a much larger average figure for overtime if he or she examined the overtime patterns of a smaller group.
31. The respondent also called Ms Rachel Austin, an employee of Telstra’s current insurer, Allianz Australia Insurance Limited, to explain the way in which the respondent assessed overtime. Ms Austin was described as a technical specialist who trained staff and provided technical advice on the handling of claims. She did not have first-hand knowledge of the issue as the work was undertaken by a different company. She declined to comment on the calculations completed by GIO Australia, the former insurer, on the basis that they were not her calculations. That seems fair enough. Mr Clark asked her to explain the current approach to assessing NWE where any employee’s circumstances change. She said the insurer asked the business line to provide details of other employees in the same role. The payroll office would provide information about earnings (including overtime) of those employees over a 12 month period. The insurer would then calculate the average earnings over that period. The result was the figure used for the purpose of s 8(10) of the SRC Act.
32. Mr Clark went on to ask Ms Austin about the approach where staff were employed under AWAs. It was noted that the AWAs did not necessarily provide for overtime. Ms Austin said the insurer had not yet reached a view as to how it would approach the question of assessing NWE in those circumstances. AWAs had only been widely used since around 2005, she explained.
33.
Ms Austin said in cross-examination that the six pay periods immediately before the injury in 1998 were the starting point for NWE calculations for the purposes of s 8(8) of the SRC Act. She said a 12 week period gave a good indication of the employee’s earnings. (The applicant argued a two week period should have been used, but Ms Scott-MacKenzie conceded nothing turned on the difference.)
Ms Austin said other information indicating that the provisional figures were misleading (eg, information from the business line suggesting comparable employees in the same area were doing less overtime) was used to make adjustments to the final figure where appropriate pursuant to s 8(10). She said information about employees engaged under AWAs was not used because staff members employed under those arrangements are not generally paid overtime.
Calculating normal weekly earnings
34. Sections 8 and 9 of the SRC Act set out the way to calculate NWE. We start with s 8. Relevantly, s 8(8) provides that, subject to the legislation:
the normal weekly earnings of the employee before the injury shall be an amount determined by Comcare to be the amount per week that the employee would have been able to earn at the date of the injury (including any amount in respect of overtime worked on a regular basis) if he or she had engaged in suitable paid employment.
35. Subsection 9(1) says the respondent uses the employee’s earnings in the two week period prior to the injury as the guide. Subsection 8(5) permits the respondent to make an assessment over a different, longer period if the figures paid over the shorter period:
would not fairly represent the weekly rate at which the employee was being paid in respect of his or her employment before the injury …
36.
Subsections 8(6), (7) and (9) provide for automatic adjustments to NWE that take account of promotions, seniority and other matters. We do not need to concern ourselves with those processes here. Subsection 8(10) provides for a reality check. Once a provisional figure has been identified as required under the other sections,
s 8(10) permits the respondent to ask whether the calculations produced an unrealistic result that created a windfall for the applicant. If the provisional figures yielded a number that was unrealistically high, the respondent is able to make an adjustment so that the NWE figures are set at a more realistic level.
37. Subsection 8(10) contains two limbs. The first addresses the situation where the injured employee remains an employee of the Commonwealth or a licensed corporation, while the second deals with individuals who have moved on. We note Mr Whitby has recently ceased working for Telstra. But he worked for Telstra throughout the period he received compensation, so we proceed on the basis that the first limb of s 8(10) is applicable.
38. The applicant says Telstra has not applied s 8(10) correctly in this case. Ms Scott-MacKenzie explained in her submissions that the respondent appeared to have engaged in a mechanical process of asking what other employees working in the same business line would have earned. Because of shortcomings in the sampling process – most obviously, because the sample was too large, as Mr Whitby explained in his evidence – that figure was too low. Ms Scott-MacKenzie said the correct approach was to focus on what the applicant would have been earning but for the injury.
39.Ms Scott-MacKenzie referred me to a number of decisions, including:
·
the Federal Court decisions of Bortolazzo v Comcare Australia
[1997] FCA 515, (1997) 75 FCR 385; and Comcare v Burgess
[2007] FCA 1663, (2007) 164 FCR 66; and
·the Tribunal decisions of Re Saldanha and Comcare [1995] AATA 580, (1995) 38 ALD 451; ReWatterson and Comcare [2005] AATA 1198, (2005) 89 ALD 115; Re Kennedy and Military Rehabilitation and Compensation Commission [2007] AATA 19, (2007) 93 ALD 700; and Re Lower and Comcare [2008] AATA 352, (2008) 102 ALD 195.
She said these cases stood for the proposition that s 8(10) of the SRC Act required the decision-maker to focus on what the applicant would be earning but for the injury. Thus in Bortolazzo, the injured employees had their NWE reduced to reflect reductions in overtime paid to their colleagues following a restructure. The Court held the reduction under s 8(10) was necessary to bring the injured workers’ NWE into line with what they would have been earning but for their injuries if they had remained at work. Similarly, in Re Lower, the Tribunal found the applicant would have lost his entitlement to shift allowances if he had remained at work because of a changed worked environment and poor performance so it was proper to deduct an amount from NWE to reflect the change.
40. As we understood the applicant’s submissions, Telstra failed to discharge its obligation to look at what Mr Whitby would have been earning after 2002 for the purposes of making adjustments pursuant to s 8(10) of the SRC Act. Instead, Telstra is said to have simply used a figure that was arrived at as a result of a crude and inaccurate assessment of what other employees in the same business unit earned during that period. Mr Whitby claimed he performed a lot of overtime in 1998, and he said there is no reason to doubt he would have continued to have done large amounts of overtime (or received higher compensation in lieu of overtime if he subsequently took up employment under an AWA) if he stayed in his job.
41. Mr Clark referred to most of the same cases on behalf of the respondent. He agreed one must consider the facts in each case and focus on what the injured employee would have been earning. But he said a decision-maker must have regard to what comparable employees would have been earning in the course of considering whether the applicant’s NWE were realistic for the purposes of s 8(10).
42.
We agree that the earnings of comparable employees are likely to be useful when the decision-maker is considering a reduction under s 8(10). Relevant comparisons help the decision-maker determine what the injured employee would have been earning but for the injury – and comparisons are likely to become more important as time goes by. Even then, structural change in the workplace – such as the introduction of AWAs – might make the task difficult. In those circumstances, the Tribunal might have no choice but to “gaze into a crystal ball”, as
Senior Member Hastwell said in Re Lower (at [74]).
43.
Our task in this case is complicated by the state of the evidence. The applicant criticises the comparative process which Telstra has adopted because the sample was too large. He may be right; the limited evidence of that process makes it difficult to say for sure whether Telstra (through its then insurer) made appropriate comparisons. We acknowledge Telstra may have experienced some difficulty obtaining evidence of these issues given changes in personnel and the fact that it now uses a different insurer. We do not accept the applicant’s submission that we should rely on a much smaller sample of employees comprised of
Messrs Conkey and Singh. We also acknowledge there were important changes in the workplace at Telstra – most obviously the changes to working arrangements that culminated in the introduction of AWAs for a large number of employees – that are relevant to the deliberations required under s 8(10).
44.
Given the state of the evidence before us, we will remit the question of whether there was an appropriate reduction in NWE pursuant to s 8(10) of the
SRC Act to the respondent for reconsideration. The respondent should examine the records available to it and consult with the applicant with a view to identifying an appropriate sample of comparable employees whose overtime history might afford some guidance for the purposes of the decision required under s 8(10).
Conclusion
45.
The Tribunal sets aside that part of the reviewable decision referred to in Application No Q 200600709 which deals with the calculation of NWE. The calculation of any reduction in the applicant’s NWE pursuant to s 8(10) of the
SRC Act is remitted to the respondent for reconsideration in accordance with these reasons pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975. The balance of that decision and the decisions in Applications No 2007/2292 and 2009/0195 are otherwise affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member.
Signed:.................................[Sgd].............................................
Michael Buckingham, AssociateDates of Hearing 27-28 January 2009
4 February 2009
Date of Decision 6 May 2009
Counsel for the applicant Ms S Scott-MacKenzie
Solicitor for the applicant Slater & Gordon Lawyers
Counsel for the respondent Mr C Clark
Solicitor for the respondent Sparke Helmore Lawyers
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