Telstra v Slater [2001] FCA 149 (28 February 2001)

Last Updated: 1 March 2001

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] HCA 25; (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 liability still exists in respect of medical expenses as outlined in the statement of reasons."

3 The Tribunal, on 13 March 1998, decided:

"The Tribunal sets aside the decision under review only in so far as it decided that the applicant was fit to return to full time normal duties with restrictions, and substitutes a decision that:

1. the applicant was partially incapacitated for work, but fit for full time work in suitable employment; and

2. remits the matter to Telstra, with a direction that the delegate determine what would be suitable employment for the purposes of s19 of the Safety Rehabilitation and Compensation Act 1988."

4 It should be noted that there was no reference to what compensation, if any, was payable to Mr Slater pursuant to s 19 of the Act.

5 On 14 October 1998 a senior claims officer of GIO Australia, referring to the remission by the Administrative Appeals Tribunal with a direction that the delegate determine what would be suitable employment for the purposes of s 19 of the Act, determined that suitable employment for the purposes of s 19 of the Act is:

"Console Operator

Real Estate Sales Person

Occupational Health and Safety Officer

Teacher of Technical and further Education/TAFE Teacher

Mechanical Engineering Technician

Mechanical Engineering Associate

Building Inspector/Surveyor

Clerical Position"

6 On 10 November 1998, in accordance with the provisions of s 62(5) of the Act, the determination of 14 October 1998 was affirmed.

7 On 12 November 1999, the Administrative Appeals Tribunal decided:

The Tribunal varies the decision under review insofar as we determine that suitable employment for the applicant includes the occupations listed by Work Directions Australia in their report dated 4 September 1998. The matter is remitted to the respondent to calculate compensation payments by the respondent to the applicant in accordance with Section 19 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal further directs that:

§ Compensation payments as calculated in accordance with Section 19 of the Act be payable from some date in October 1997 to be agreed on by the parties;

§ The respondent provide vocational counselling to select an occupation from the list provided in the Work Directions Australia report; and

§ The respondent provide a rehabilitation program pursuant to Section 37 of the Act, or some other form of program with the aim of re-training the applicant for his chosen occupation.

8 It is to be noted that the directions of the Tribunal, in its references to "select an occupation" and "chosen occupation" seem to contemplate that the duty of Telstra was to provide vocational counselling, so as to permit Mr Slater to select which occupation to pursue.

9 The central question on this appeal is whether the Tribunal erred in law in varying the decision of 10 November 1998, review of which was sought, and in giving the directions set out above.

History

10 Mr Slater was born in the United Kingdom on 9 May 1954. From 1974 to 1992 he was employed as a refrigeration mechanic, and came to Australia in 1992. After approximately 18 months in Australia, he returned to the UK for some thirteen months. He returned to Australia in February 1995, and in October 1995 he commenced employment with Telstra on a fixed term contract as a communications officer or cable TV installer. He was employed on a further fixed term contract for the period 4 July 1996 to 4 January 1997 when, on 11 July 1996, he sustained an injury to his left knee whilst installing a television cable at a private residence.

11 On 19 July 1996 Mr Slater completed a claim for compensation, attaching a medical certificate by Dr B. Geissmann dated 26 July 1996, which certified that Mr Slater suffered from a left knee injury but "is fit to return to modified/alternative duties from 27.7.96 to 10.8.96", and specified work restrictions or limitations to be "no lifting/squatting/heavy weights etc". Mr Slater signed a rehabilitation plan and return to work programme on 30 July 1996, the latter of which specified tasks to be undertaken as "driving and other light duties as required" on a full-time basis from 30 July 1996 to 31 August 1996. After two days work, Mr Slater apparently experienced further problems with his knee, and on 31 July 1996 was certified by Dr Geissman to be totally incapacitated for work from that date until 7 August 1996.

12 By letter dated 6 August 1996, Telstra determined that it was liable to pay compensation in respect of "Left Knee Injury suffered as result of a work related incident on 11/7/96". Telstra further determined that it would pay various medical expenses incurred, and that in accordance with s 19(2) of the Act, Mr Slater was entitled to full pay incapacity payments of $545.00 per week from the period 12 July 1996 to 26 July 1996 inclusive.

13 Further medical assessments followed, including by orthopaedic surgeon Dr S. Rackemann. He recommended surgery and reported on 10 October 1996 following an arthroscopy of Mr Slater's knee that "In summary his pathology is an 80% rupture of the anterior cruciate ligament and condral damage to the medial femoral condyle". Various determinations by Telstra extending the period of Mr Slater's entitlement to full incapacity payments, the amount of which was increased to $678.08 per week from 19 September 1996, followed. On 2 December 1996, however, Dr Rackemann certified that Mr Slater was fit to return to modified/alternative duties from 8 December 1996 to 8 January 1997 - specifying work restrictions or limitations as "avoid squatting, climbing". Dr Rackemann's certificate also stated that Mr Slater would be fit to return to work from 9 January 1997. By letter dated 17 December 1996, Telstra indicated its intention to issue a determination that incapacity payments therefore cease on 9 January 1997, and offered Mr Slater an opportunity to provide evidence supporting a contrary decision.

14 Additional medical certificates subsequently provided by Mr Slater noted that he was fit to return to work but required treatment for his injury, and that he was fit to return to modified/alternative duties from 6 February 1997 to 26 March 1997, with restrictions or limitations being "no squatting/climbing etc". On 17 March 1997, a delegate for Telstra wrote to Mr Slater stating "on the evidence before me I have determined that Telstra Corporation Limited is ceasing liability for incapacity in respect of your claim for compensation". On 27 March 1997, solicitors for Mr Slater wrote to Telstra requesting reconsideration of the determination to cease compensation payments.

15 On 16 April 1997, a delegate of Telstra issued a "Determination (Reviewable Decision)":

"1. that the determination of 17.03.1997 be affirmed; and

2. that the available evidence has established that the Claimant is 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 liability still exists in respect of medical expenses as outlined in the statement of reasons."

16 An application by Mr Slater for review of the decision of 17 March 1997 was received by the AAT on 30 April 1997. Mr Slater stated that his reasons for the application were "I still am and always have been unable to resume full duties (see attached Clarification of Medical condition) and as such Telstra should still be liable for compensation".

17 On 13 March 1998 at Brisbane the AAT made the following decision:

"The Tribunal sets aside the decision under review only in so far as it decided that the applicant was fit to return to full time normal duties with restrictions, and substitutes a decision that:

(1) the applicant was partially incapacitated for work, but fit for full time work in suitable employment; and

(2) remits the matter to Telstra, with a direction that the delegate determine what would be suitable employment for the purposes of s 19 of the Safety Rehabilitation and Compensation Act 1988." (Emphasis added).

18 The reasons for this decision of the AAT (the first AAT decision) reveal that it treated Mr Slater's application for review as relating to the decision of 16 April 1997, rather than the earlier determination which Mr Slater specified, but nothing turns on this. The Tribunal outlined Mr Slater's medical history and the history of his claim at length and concluded inter alia:

"We are satisfied on the evidence that the applicant is not totally incapacitated for work. He has residual restrictions of movement ...[but is able] to walk considerable distances and to play 6 to 9 holes of golf, four times per week. We consider that he is capable of working full time with restrictions, such as no squatting, no heavy lifting, no pivotal movements. On the medical evidence, which we accept, he should not return to his duties as a cable TV installer.

The decision under review refers to the applicant being fit to return to `full time normal duties with restrictions'. Although we are satisfied that the applicant is capable of undertaking full time work, we would not envisage him returning to his `normal duties' as a cable TV installer. He is capable of undertaking suitable employment, which would take into account the restrictions contemplated by the decision under review."

19 The AAT also commented at [3], in relation to Mr Slater's contention in his Statement of Issues and Contentions before the Tribunal "that he had a permanent disability, and that Telstra was obliged, either to find him suitable employment, or to assist him to find suitable employment; and to provide him with a rehabilitation programme", that:

"The applicant has not lodged a claim for compensation for permanent impairment pursuant to section 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act) nor has he lodged a formal claim for rehabilitation. We accepted Telstra's submission that there is no reviewable decision, and the Tribunal does not have jurisdiction to examine these issues. The applicant formally withdrew these two contentions."

20 By letter dated 8 July 1998, solicitors for Telstra wrote to solicitors for Mr Slater noting that arrangements had been made for Mr Slater to be assessed by Work Directions Australia (WDA) on 21 July 1998, and that "Subsequent to that assessment our client will then be in a position to comply with the Order of the Tribunal to determine what is suitable employment for the purposes of s 19 of the Safety Rehabilitation and Compensation Act 1988". (Emphasis added).

21 After assessment of Mr Slater, WDA issued a report on 4 September 1998. The report outlined his personal history, including education, employment and health, the circumstances and effect of the injury in question, and his current status. It assessed his physical abilities and mental capacity, and the types of work he preferred to do. It concluded that he should not return to his previous occupation, but that he would be suited to seven specified types of employment on a full-time basis, stating:

"Potentially suitable occupations which are commensurate with his physical disability and requiring various lengths of training include:

§ Console Operator (for petrol/service station)

§ Real Estate Salesperson

§ Occupational Health and Safety Officer

§ Teacher of Technical and Further Education/TAFE teacher

§ Engineering Associate Professional, eg Mechanical Engineering Technician

§ Engineering Associate Professional, eg Mechanical Engineering Associate

§ Building Inspector/Surveyor"

22 The report specified the training required for each of the employment options listed. All required university or TAFE training of various durations, with the exception of the console operator option, for which "training is carried out via a traineeship with the respective employer". The report also indicated that Mr Slater's IQ "is in the range of approximately 118 to 120 (High-Average to Superior Ranges of intellectual functioning)", and that the assessment generally had "indicated that Mr Slater has a high level of aptitude for further training at a tertiary level".

23 Although it involves a departure from the chronological record, it is useful here to note the contents of a letter to Mr Slater dated 25 November 1998 from Margaret Kennedy, Occupational Therapist/Psychologist at WDA. Ms Kennedy was the author of the initial report referred to above, and was writing in response to a letter from Mr Slater which appears not to be in the material before the Court. Relevantly, Ms Kennedy writes:

"In answer to your questions:

1. Clerical duties could well be included in the list of occupations which were identified in my report dated 4 September 1998.

...

2. Without further training or qualifications, the first occupation of Console Operator is achievable. Training is required (13 weeks) once a person is employed but this is sponsored by the employer under a traineeship scheme. Such an employer would be eg. Shell." (Emphasis added).

Ms Kennedy noted in essence that she did not include a clerical occupation in her initial suggested list because of the preferences Mr Slater expressed during the assessment for other types of work, and continued:

"To just nominate clerical work for any person who can no longer carry out heavier work would be an easy outcome from my assessments - however we do make carefully considered and researched opinions when making recommendations for an individual's future."

24 Consequent upon the first AAT decision, Telstra then determined on 14 October 1998 "that suitable employment for the purposes of Section 19 of the Safety, Rehabilitation and Compensation Act 1988 is:-

Console Operator

Real Estate Salesperson

Occupational Health & Safety Officer

Teacher of Technical and Further Education/TAFE Teacher

Mechanical Engineering Technician

Mechanical Engineering Associate

Building Inspector/Surveyor

Clerical Position". (Emphasis added).

For convenience, this will be referred to as the "primary determination".

25 The statement of reasons for the primary determination stated inter alia that this list of eight suitable options was based on the report from WDA. Clearly, this list of eight is not the same list as that of seven provided in the WDA report. That the inclusion of "clerical position" as an eighth option was based on the report is, however, equally clear: such a position can easily be seen to be commensurate with Mr Slater's identified level of intelligence, capacity for retraining, and ability to perform the tasks involved in the other positions identified. The 25 November 1998 letter from Mrs Kennedy, apparently responding to a letter from Mr Slater which asked inter alia why a clerical role had not been included in her WDA report, confirms this.

26 Mr Slater subsequently made a request for reconsideration of the primary determination, and on 10 November 1998 Senior Claims Officer Sharon Coleman issued a "Determination (Reviewable Decision)" affirming the primary determination. Ms Coleman's statement of reasons recounted that the primary determination "found that the claimant was fit for suitable employment in a number of fields, inclusive of: [the eight employment options listed above]. On this basis it was determined that the claimant was able to earn in suitable employment, and consequently not entitled to payment under Section 19 of the Act." [Emphasis added]. This reviewable determination did not specifically address any of the eight suitable employment options other than the clerical one (see below), but since it affirmed the primary determination it may be taken as having affirmed the entire list.

27 Ms Coleman's reasons also relevantly state:

"Having perused the available information it is apparent that the claimant has the attributes to efficiently and effectively perform the duties of a clerical type position, and that it is reasonable for the claimant to undertake such employment with the physical restrictions imposed by his left knee condition.

...

The claimant has subsequently opined that in accordance with the above definition, none of the occupational pursuits detailed in the determination of 14 October 1998, are suitable due to his not having the training, qualifications, or experience required.

Having regard to the findings of Work Directions Australia, the claimant has shown himself to be an individual of above average intelligence, who would be able to fulfil the requirements of a clerical based position, with the potential of advancement. It is not a requirement of such a role that formal training having been undertaken, or that formal qualifications be obtained. From the work directions report findings it would appear that the claimant has not pursued work of this nature previously because of a desire to work out of doors in a manual capacity, rather than indoors. This desire does not however preclude the expectation of the claimant undertaking work which is deemed suitable in light of physical restrictions.

The other matter raised by the claimant in his request for reconsideration concerns a failure by the primary decision maker to define an amount of compensation under Section 19 of the Act.

I note that the claimant was not a permanent employee of Telstra ..., and was in fact employed on a fixed contract basis. There was no expectation by the claimant of continued employment beyond the expiration date of the contract. Similarly there was no expectation by the claimant to maintaining salary beyond the expiration date of the contract, and he would have been seeking employment in the open market commensurate with his skills and abilities.

Accordingly there is no evidence to suggest that the claimant's earning capacity would have been less than, equal to, or greater than that received whilst in the employ of Telstra.

I am satisfied that the claimant is fit for employment in duties of a clerical nature, which may well attract financial remuneration equal to, or greater than that earned as a Communications Officer Grade 2 with Telstra. Furthermore, I find that such duties would be deemed suitable in accordance with the Act, and that it is a reasonable expectation for the claimant to undertake such duties.

In closing therefore, I find that the claimant's ability to earn is such that there would be no entitlement to compensation in accordance with Section 19 of the Act." [Emphasis added].

28 A letter to the AAT from Mr Slater dated 8 December 1998 is agreed to constitute the application for review which was before the AAT, although it is not in the form provided for by the AAT Act. The application is in the following terms:

"APPLICATION FOR REVIEW OF DECISION

This application refers to two decisions

1) Decision reference T0097659 dated 10 November 1998

reason for application: the occupation identified as suitable employment by the decision maker is not suitable.

No amount of earnings has been identified as being able to earn in suitable employment

No amount of compensation has been identified as being liable to pay under section 19

2) Several requests for a determination following a request for a rehabilitation program has resulted in no determination being forthcoming.

Failure to provide a determination is in itself a determination and as such I rquest [sic] that this determination be reviewed with a view to obtaining a rehabilitation program to include retraining

Enclosures: i) Reconsideration of determination dated 10.11.98

ii) Letters dated 24.4.98 and 25.1.98 requesting rehabilitation program."

29 For completeness it is sufficient for current purposes to note the contents of Mr Slater's enclosed letter dated 24 April 1998, which read inter alia:

"I refer you to my letters dated 15.10.97, 27.10.97, 5.11.97, 17.11.97, and 25.1.98 formally requesting that you supply me with a rehabilitation program.

It is your duty under the CRC Act 1988 to issue me with a formal determination to include a statement of reasons and informing me of my rights if I do not agree with your decision.

Your letter of 16.2.98 is not a determination and therefore constitutes a breach of my rights under the CRC Act 1988, I therefore request that you address this within the next seven days ..."

30 Telstra's letter dated 16 February 1998 referred to an earlier request by Mr Slater for a rehabilitation program, and to the WDA report dated 11 February 1998, a copy of which was attached. The letter stated inter alia:

"The rehabilitation assessment outcome was no further recommendations with regard to any physical intervention that would be of assistance.

The rehabilitation plan included job seeking assistance and you attended a Work Directions `Job Seeking Workshop' on 03 July 1997.

Further comments from Work Directions Australia indicated Job seeking services were declined by you until after your appeal had been determined.

In line with relevant provisions of the SRC Act 1988, you were assessed as capable of undertaking a Rehabilitation program and that was initiated under Work Directions Australia.

The rehabilitation program was closed in September 1997 after consideration that further physical intervention would be of no assistance and that job seeking services that had been included in that plan were declined.

After having examined circumstances of the case, the rehabilitation assessment [having] been exhausted, there is no additional benefit in having you re-assessed." [Emphasis added].

31 The report from WDA dated 11 February 1998 is entitled "Case Summary" and was provided to Telstra as an outline of "the progress of the case as detailed in the Work Directions Australia rehabilitation file". The document notes that the report, prepared following an initial rehabilitation assessment of Mr Slater and review of the various medical reports, recommended that no further physical intervention would assist Mr Slater, but that Mr Slater "be assisted with job seeking and a rehabilitation plan was developed to address this recommendation". The plan was stated to include six hours job-seeking assistance and four hours for case management, and was estimated to run from 1 June 1997 to 1 September 1997. Mr Slater attended a workshop to which he was referred in relation to job application skills on 3 July 1997, and attended a later meeting to discuss further assistance that could be provided with job seeking as per the rehabilitation plan. The WDA case manager then received a letter from Mr Slater dated 26 August 1997 which stated that:

"Until the issue of suitable employment is resolved any job leads which you supply may be inappropriate, unless you address the issue of suitable employment first".

32 Upon receipt of this letter WDA contacted Telstra to discuss the ongoing rehabilitation plans. Telstra requested WDA to close the rehabilitation file, and this was done.

33 Mr Slater's letter dated 26 August 1997 is to the effect noted in the WDA summary. Relevantly, Mr Slater also wrote to Telstra on 2 September 1997, referring to the WDA  job-seeking assistance and requesting:

"In an effort not to waste these resources on job leads which may not be classed as `suitable employment' as defined by the CRC Act 1998 please confirm that all efforts will be made to determine suitable employment prior to my using these services."

34 On 12 November 1999 the AAT, constituted by Deputy President Dr P. Gerber, and Members Dr K.P. Kennedy and Major- General J.N. Stein, issued the decision now appealed from. The decision was in the following terms:

"The Tribunal varies the decision under review 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. The matter is remitted to the respondent to calculate compensation payments by the respondent to the applicant in accordance with Section 19 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal further directs that:

§ compensation payments as calculated in accordance with Section 19 of the Act be payable from some date in October 1997 to be agreed on by the parties;

§ The respondent provide vocational counselling to select an occupation from the list provided in the Work Directions Australia report; and

§ The respondent provide a rehabilitation program pursuant to Section 37 of the Act, or some other form of program with the aim of re-training the applicant for his chosen occupation." (Emphasis added).

35 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).

36 Telstra filed a notice of appeal in this court on 10 December 1999. It seeks orders that the application for review be dismissed, or that the AAT be directed to rehear the application and proceed according to law, and costs. The grounds are stated to be that by reason of stated errors of law the decision should not be allowed to stand as it amounts to a miscarriage of justice. The questions of law raised on the appeal are said to be:

"(i) the Tribunal erred by failing to take into account a material consideration or alternatively, failing to include in its Reasons any consideration of the Respondent's stated position (until he changed his mind in evidence in chief) that none of the occupations referred to in the Work Directions Australia Report, and in the primary decision were suitable to him;

(ii) the Tribunal erred in law in making the implicit finding that Telstra Corporation Limited properly could have calculated and made payments under s.19 of the Act in respect of the Respondent's partial incapacity for work and in accordance with the decision of the Tribunal made on 13 March, 1998;

(iii) the Tribunal erred in law in that a reasonable tribunal of fact could not have found that the Respondent requested Telstra Corporation Limited `that he be provided with some vocational counselling to assist in choosing which occupation would be most suitable, and as was suggested by Work Directions Australia in their report';

(iv) the Tribunal erred in law in failing to deal at all with that part of the decision under review whereby Telstra Corporation Limited determined that suitable employment as aforesaid included clerical work;

(v) the Tribunal erred in law in that a reasonable tribunal of fact could not have found that no evidence was provided of the Respondent's refusal to participate in a rehabilitation programme which was offered by the Applicant to the Respondent;

(vi) the Tribunal erred in law in directing Telstra Corporation Limited to provide vocational counselling and a rehabilitation programme to the Respondent when the Tribunal found as likely that the Respondent will fail to take full advantage of any rehabilitation provided in order to seek suitable employment in this country and in view of the findings that the Respondent had made his life in England and that he is likely to return there when his rights under the Act are exhausted."

Legislation

37 Part II of the Act deals with compensation. Section 14 is headed "Compensation for injuries", and relevantly provides:

"(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

38 Section 19 of the Act relevantly provides:

"(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount under the formula:

NWE - AE

where:

NWE is the amount of the employee's normal weekly earnings; and

AE is the amount per week (if any) that the employee is able to earn in suitable employment.

(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:

(a) where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;

..." (Emphasis added).

39 Section 19(4) then sets out matters to which Comcare shall have regard in determining the amount per week that an employee is able to earn in suitable employment. Aside from subs (4)(g) - "any other matter that Comcare considers relevant" - each of the matters there set out refers to a defined amount, such as inter alia: (a) the amount per week the employee is earning (if employed); (b) the amount per week the employee would be earning if a job offered to he or she had been accepted; or (e) where the employee has failed to seek suitable employment, the amount per week that he or she "could reasonably be expected to earn in such employment", "having regard to the state of the labour market at the relevant time". If they apply, these are methods to assist in the calculation of possible earnings in suitable employment.

40 Section 4 of the Act defines "suitable employment", in relation to an employee who has suffered an injury in respect of which compensation is payable under the Act, to mean:

"(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment - employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:

(i) the employee's age, experience, training, language and other skills;

(ii) the employee's suitability for rehabilitation or vocational retraining;

(iii) where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and

(iv) any other relevant matter; and

(b) in any other case - any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i), (ii), (iii) and (iv);". (Emphasis added).

Here, since Mr Slater was employed on a contract basis, part (b) of the definition applies and suitable employment is not limited to employment with Telstra.

41 Section 23(1) provides that compensation is not payable under section 19, 20, 21, 21A or 22 to a person who has reached 65.

42 Part III of the Act is headed "Rehabilitation" and relevantly provides in s 37:

"(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.

...

(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:

...

(b) any reduction in the future liability to pay compensation if the program is undertaken;

(c) the cost of the program;

(d) any improvement in the employee's opportunity to be employed after completing the program;

...

(f) the employee's attitude to the program;

...

(h) any other relevant matter.

...

(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program." (Emphasis added).

43 Section 40 is headed "Duty to provide suitable employment" and provides inter alia:

"(1) Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment." [Emphasis added].

44 This appeal is brought pursuant to s 44 of the AAT Act, which relevantly provides:

"(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

...

(4) The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

(5) Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court."

45 Without embarking on an exhaustive explanation of the nature of an appeal under s 44 of the AAT Act, it is important to keep in mind that, as Brennan J stated in Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54 at 77:

"The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit or make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact."

46 In Commonwealth Banking Corporation v Percival (1988) 82 ALR 54 at 60, the Full Court of the Federal Court, constituted by Davies, Sheppard and Ryan JJ, quoted with approval the comments of Justice Brennan in Waterford, and found that if a reading the reasons of the AAT reveals an error of law:

"either by express statement or by necessary implication and if that error of law affected the decision reached, then the decision must be set aside. If material error of law is so identified, it is of no consequence that the decision reached could have been supported on a different basis, that there was evidence, which, if accepted, would have justified the ultimate decision."

47 While it is well established that a mis-statement of the law by the AAT in the course of its reasons will not vitiate its decision if the mis-statement could not have affected its decision, it is not necessary to show that the error in question would have affected the outcome. Rather, as Burchett J stated in Commonwealth of Australia v The Human Rights and Equal Opportunity Commission [1998] FCA 3:

"[T]he correct proposition is that there will be error of law in an administrative decision, requiring it to be set aside, if an error is shown `that could have affected the outcome of the case': Conway v Repatriation Commission (1988) 16 ALD 770 at 771, per Lockhart and French JJ; BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 253 to 254, per Lockhart and Hill JJ; Alphapharm Pty Limited v SmithKline Beecham (Australia) Pty Limited (1994) 49 FCR 250 at 265 per Burchett J; Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136 at 139 in the joint judgment of Burchett, Branson and Tamberlin JJ; Friends of Hinchinbrook Society Inc v Minister for the Environment (1997) 147 ALR 608 at 630, per Burchett J." (Emphasis added).

48 It is clear, also, that an error of law capable of vitiating a Tribunal decision can be made in the fact-finding process. In Webb v Repatriation Commission (1997) 47 ALD 277, Finkelstein J said at 284:

"It is well accepted that when an inferior tribunal arrives at a decision without having taken into account relevant considerations or after having taken into account irrelevant or extraneous considerations its decision will be vitiated for error of law ..."

49 Further, in Norton v Comcare [2000] FCA 1068, Drummond J referred to Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, where it was held that a decision on matters of fact will be flawed for error of law and thus reviewable if the decision-maker, in determining the facts, has failed to have regard to relevant considerations or has had regard to irrelevant considerations or if the decision may have been so unreasonable that no reasonable decision-maker could have come to it.

50 In my view, the second decision of the AAT involves legal error in the application of the provisions of the Act, having regard to the decision under review by it.

51 The initial finding of Mr Slater's partial incapacity, but fitness for full-time work in suitable employment, has not been challenged and is not in question here. The effect of that finding is that compensation is payable pursuant to s 14 of the Act at a rate calculable by the formula expressed in s 19. The questions that must be answered in order that this formula can be applied are: (1) is Mr Slater "able to earn in suitable employment"; (2) if so, what is "the amount per week (if any)" that he is able so to earn? Whether compensation is payable at all, and if so how much, can then be determined by application of the formula.

52 In my opinion the initial AAT decision of 13 March 1998, to remit the matter to Telstra to determine "what would be suitable employment for the purposes of s 19 of the Act", can properly be seen, as the AAT effectively found in the decision under review, to have required Telstra not just to determine a list of suitable employment options, but to in fact calculate the amount of compensation (if any) payable.

53 Telstra's primary determination of 14 October 1998 merely provided a list in answer to the first two questions asked of it, and failed to consider the amount of compensation, if any, that was payable.

54 Upon review, however, Telstra in my opinion correctly - if inelegantly - performed its task under the Act. Ms Coleman determined that Mr Slater is able to earn in suitable employment (ie some amount), affirmed the earlier list of eight suitable employment options, emphasising the clerical one, determined that clerical "may well attract remuneration equal to or greater than" Slater's normal earnings, and concluded that his ability to earn was such that he has no entitlement to compensation.

55 In my view, while the language used is imprecise, Mrs Coleman's conclusion that Mr Slater's "ability to earn is such that" he has no entitlement to compensation strengthens her earlier statement that he "may well" earn more than previously, such that her determination amounts to a finding that Mr Slater is able to earn an amount - though unspecified - in suitable employment of sufficient magnitude such that compensation to be calculated in accordance with s 19 is nil. The intention of the legislature cannot have been to demand of a decision maker applying s 19 that he or she always determine a precise amount for the figure "AE" in the formula provided, at least where the decision maker is satisfied that amount able to be earned from suitable employment is greater than what was previously earned. This is certainly so where, as here, none of the specific matters listed in s 19(4) to assist in calculation of the relevant amount are applicable. A decision maker in this situation is then left with an obligation merely to have regard to "any other matter that Comcare considers relevant" pursuant to s 19(4)(g). Ms Coleman referred to the findings of WDA as to Mr Slater's capacity, and noted in the course of her reasons that "he would have been seeking employment in the open market commensurate with his skills and abilities". Given the WDA findings, both her approach and its application were, in my respectful opinion, sound.

56 In the decision under review, the AAT on 12 November 1999 reduced the list of suitable employment options to seven simply by the removal of the clerical option, without explanation. It stated that: "it is clear upon reading s 19 that its purpose is to provide compensation to an incapacitated employee" and later said that Telstra's reviewable decision "that it felt the applicant was not entitled to payments under s 19" was "a basic and fundamental misconception of the requirements of the Act". Section 19 on its face does not have the purpose of "providing compensation", but of providing a mechanism to determine whether compensation is payable and if so in what amount. Telstra's finding that Mr Slater was not entitled to payments under s 19 did not demonstrate any misunderstanding of the requirements of the Act.

57 The Tribunal's directions that Telstra provide vocational counselling to Mr Slater to select an occupation from the list provided in the WDA report, and that Telstra provide a rehabilitation programme pursuant to s 37 of the Act, or some other form of programme to retrain Mr Slater for his chosen occupation, in my opinion again reflects the Tribunal's misunderstanding of the relevant provisions of the Act.

58 Under s 37 of the Act, Telstra had an obligation to consider whether to provide a rehabilitation programme to Mr Slater, which programme may under the definition in s 4 include vocational training. Section 37 does not require the provision of any such programme, but provides inter alia that in deciding whether an employee should undertake a rehabilitation programme the relevant authority shall have regard to matters, which include the employee's attitude to the programme and any other relevant matter.

59 If there is, in truth, suitable employment available to the applicant (as was decided by Ms Coleman on 10 November 1998), and if the calculation called for by s 19 results in a nil entitlement (as was in my view the determination of Ms Coleman on 10 November 1998), then Telstra is not in breach of its obligations under the Act.

60 If retraining was necessary for suitable employment to be available to an injured employee, compensation would be payable until the time at which such retraining would reasonably be concluded.

61 While an injured employee might genuinely dispute whether employment suggested by the delegate of Telstra as suitable was suitable, the obligation to pay compensation is not conditional on the acceptance by an employee of what is in truth suitable employment. In those circumstances, an employee does not have a subjective right of veto in respect of what is suitable employment. The AAT noted:

"...He flew back to Brisbane solely for purposes of this hearing. He stated in evidence that if he were offered a rehabilitation program by the respondent he would return to Australia to take part in it. He also stated that if a reasonable job became available at the conclusion of this program, he would probably return to Australia permanently and his wife and two youngest children would come back with him."

The AAT further noted:

"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."

62 I think that in this case the Tribunal was distracted from a real consideration of the correctness of the application of s 19 by the Senior Claims Officer to the circumstances of Mr Slater, by the submission that was made to it on behalf of Telstra, that Telstra's liability to pay compensation ceased because the applicant was on a fixed term contract which had ended, and thereby its liability was at an end. This submission, which the Tribunal described as "bold", was said by it to be "nothing short of nonsense". The submission was certainly not correct. The Tribunal then, erroneously in my opinion, concluded that Telstra "had not gone far enough in determining what would be suitable employment for the purposes of s 19 to comply with (this) direction". It said:

"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."

63 However in my opinion, this is what in fact the delegate of Telstra did, and the delegate determined that in accordance with the requirements of s 19, no compensation was payable by Telstra to Mr Slater.

64 The Tribunal was in error in concluding that the decision of 10 November 1998 that Mr Slater was not entitled to payment under s 19 involved "a basic and fundamental misconception of the requirements of the Act".

65 The appeal should be allowed, the orders of the AAT of 12 November 1999 be set aside, and in lieu, the application for review to the AAT be dismissed. I will hear the parties on costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 28 February 2001

Counsel for the Appellant:	R. Dickson
Solicitor for the Appellant:	Standish Partners
Counsel for the Respondent:	D. O'Gorman
Solicitor for the Respondent:	Mahoney & Hesford
Date of Hearing:	11 October 2000
Date of Judgment:	28 February 2001