Whitby and Telstra Corporation Limited

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

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…