Carr and Repatriation Commission [2011] AATA 42 (31 January 2011)

Last Updated: 1 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 42

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1353

VETERANS' APPEALS DIVISION		)
	Re		ANTHONY GEORGE CARR

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member K Bean Mr S J Ellis AM (Member)

Date 31 January 2011

Place Adelaide

Decision

The decision under review is affirmed.

..............................................
K BEAN
(Senior Member)

CATCHWORDS

VETERANS' AFFAIRS – Veterans’ entitlements – Rate of disability pension – Special rate – Whether part-time teaching work part of remunerative work undertaken by veteran – Application of “alone” test – Veteran’s cessation of full-time employment contributed to by factors other than accepted disabilities – Cessation of part-time work also contributed to by other factors – Alone test not satisfied – Decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth) s 24
Starcevich v Repatriation Commission (1987) 76 ALR 449
Hill v Repatriation Commission [2000] FCA 929
Anderson v Repatriation Commission [2004] FCA 1009
Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47

REASONS FOR DECISION

31 January 2011

Senior Member K Bean Mr SJ Ellis AM (Member)

INTRODUCTION

1. The applicant, Mr Carr, was conscripted into the Australian Army in April 1966, and deployed to Vietnam in April 1967. He was wounded in action during the Vietnam war and ultimately discharged following his return to Australia on 18 March 1968. Prior to being called up for national service, he had been employed by the National Australia Bank (NAB) as a probationer and following his return from Vietnam, he resumed that employment on 10 April 1968. For some 39 years after that, he pursued a highly successful career with the NAB, rising to the position of Controller of the Asset Structuring Department in Adelaide. Between 1984 and 2006 he also carried out lecturing in banking on a part-time basis at a TAFE college.
2. Unfortunately, Mr Carr’s career with the NAB ended prematurely when he resigned on 2 November 2002, following the arrival of a new manager and in circumstances which will be discussed more fully later in these reasons.
3. Following his resignation from the NAB, Mr Carr was diagnosed as suffering from post-traumatic stress disorder (PTSD) which has been accepted as resulting from his service, together with a number of other conditions.
4. In July 2006, Mr Carr also ceased his employment as a part-time lecturer and following his cessation of that employment he lodged an application for an increase in his disability pension[1]. In response to that application, the Repatriation Commission increased his pension to 90 percent of the general rate with effect from 26 July 2006[2].
5. On 27 February 2007, Mr Carr applied for review of that decision by the Veterans’ Review Board (VRB)[3], seeking to be paid pension at the special rate, and on 16 March 2010, the VRB decided to affirm the Repatriation Commission’s decision[4]. Mr Carr has now applied to this tribunal for review of the decision of the Repatriation Commission, as affirmed by the VRB.

LEGISLATION AND ISSUES

6. In order to establish that he is entitled to be paid disability pension at the special rate, Mr Carr must demonstrate that he satisfied all of the requirements of s 24 of the Veterans’ Entitlements Act 1986 (the VE Act) at some point during the assessment period. For the purposes this matter, the assessment period is the period between when Mr Carr first lodged his application on 26 July 2006[5], and the date of this tribunal’s decision[6].
7. Section 24 of the VE Act relevantly provides as follows:

“24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
...”

8. There was no dispute between the parties that the conditions suffered by Mr Carr and which had been accepted as being war-caused were:

(a) lumbar strain;

(b) shrapnel wound left axilla;

(c) bilateral sensorineural hearing loss;

(d) post-traumatic stress disorder;

(e) alcohol dependence or alcohol abuse; and

(f) psoriasis.

9. There was also no dispute between the parties that Mr Carr satisfies ss 24(1aa), 24(1aab), 24(1)(a), 24(1)(b) and 24(1)(d). However, the respondent contends that he does not satisfy the “alone” test prescribed by s 24(1)(c). At the hearing, the parties also urged different conclusions upon the tribunal in relation to the “remunerative work that Mr Carr was undertaking”.
10. The issues for our determination therefore are:

(a) what was the remunerative work that Mr Carr was undertaking for the purposes of s 24(1)(c) of the VE Act?; and

(b) whether, during the assessment period, Mr Carr was prevented by his accepted disabilities “alone” from continuing to undertake the remunerative work he was undertaking?

WHAT WAS THE REMUNERATIVE WORK THAT MR CARR WAS UNDERTAKING?

11. Counsel for Mr Carr, Mr Swan, contended that the “remunerative work” that Mr Carr was undertaking for the purposes of s 24(1)(c) of the VE Act was as a banker. He referred the tribunal to authorities in support of the proposition that this phrase has been interpreted to require that the relevant remunerative work must have been “substantial” remunerative work[7] and relied upon Mr Carr’s evidence that he had worked for the NAB as a banker from 1963 until his resignation on 2 November 2002. Whilst he acknowledged that Mr Carr had concurrently carried out lecturing in banking on a part-time basis between 1984 and 2006, he submitted that this was not remunerative work for the purposes of s 24(1)(c). Mr Crowe, who appeared as advocate for the respondent, submitted that both Mr Carr’s work as a banker and as a part-time lecturer in banking must be considered to have been remunerative work he was undertaking for the purposes of s 24(1)(c).
12. As submitted by Mr Swan, in order to be considered remunerative work in the relevant sense, work undertaken by a veteran must have been “substantial”. Further, it is also established that the relevant remunerative work need not be the last remunerative work that the veteran was undertaking.
13. Having regard to the applicable authorities, there is no doubt that Mr Carr’s work as a banker was at the very least part of the remunerative work he was previously undertaking. The only real issue is whether his part-time lecturing work should also be considered part of the remunerative work he was undertaking, or a kind of remunerative work undertaken by him.
14. In his evidence, Mr Carr confirmed that he had taught various banking subjects as a part-time lecturer at Adelaide TAFE for 20 years. He said the money he was paid for this was from his point of view insignificant, but at least while he remained employed by the NAB, he regarded his teaching work as a “hobby” which made him a better banker as it also helped him to keep up-to-date. He also said that he taught for his own interest and he enjoyed the interaction with students. In his statement dated 19 July 2010, he said that he worked less than eight hours each week performing his duties as a TAFE lecturer[8].
15. We note that in some cases, activities which produce some limited income have nevertheless been characterised as “hobbies” rather than remunerative work[9]. In the circumstances of this matter, however, it appears to us on the evidence that Mr Carr’s lecturing activities were an adjunct to his work as a banker. Further whilst the income he derived from his lecturing may not have been his main motivation for undertaking his lecturing work, it was nevertheless a serious professional activity, closely related to his work as a banker which produced income for him and which he carried out for a lengthy period of time.
16. In light of these matters, it would be somewhat artificial in our view to conclude that the remunerative work which he undertook was as a banker only and did not extend to this other, albeit subsidiary, arm of his professional life, i.e. as a teacher of banking. It follows that in our view both kinds of work should be considered to be remunerative work that Mr Carr was previously undertaking for the purposes of s 24(1)(c).
17. It remains for us to consider whether Mr Carr was prevented, by his accepted disabilities, alone, from continuing to undertake the remunerative work which he was undertaking.

DID MR CARR’S ACCEPTED DISABILITIES, ALONE, PREVENT HIM FROM CONTINUING TO UNDERTAKE THE REMUNERATIVE WORK HE WAS UNDERTAKING?

18. Once the remunerative work that Mr Carr was undertaking is defined to include his teaching work, it appears to us that the only real question remaining is whether he was prevented from carrying out that work by his war-caused disabilities, alone. That is because he ceased work as a banker in 2001 but did not cease his teaching work until 2006. Therefore even if he ceased work as a banker due to his accepted disabilities, alone, this would not allow him to qualify for pension at the special rate, unless it could also be shown that he ceased work as a TAFE teacher by reason of his accepted disabilities, alone.
19. We accordingly propose to consider this question first, before also considering whether he ceased work as a banker by reason of his accepted disabilities, alone.

Did Mr Carr cease his work as a TAFE teacher by reason of his accepted disabilities alone?

20. In the event the tribunal concluded that Mr Carr’s work as a TAFE teacher constituted remunerative work in the relevant sense, Mr Swan did not press an argument that he ceased that work due to his accepted disabilities alone. We have nevertheless given consideration to this issue, given its importance to the outcome and the necessity for us to be reasonably satisfied of all relevant matters[10].
21. In his evidence, Mr Carr said that in the latter years of his employment as a TAFE teacher, he struggled to cope with classes which were largely comprised of foreign students. He found that on occasions the students would cheat and he would be “forced to take them back”. He said it was his impression that many of these students were motivated by the need to obtain residency in Australia and were not taking their studies seriously. He felt he was not supported in attempting to impose reasonable standards of application and behaviour on those students. He said he understood there had been complaints against him and he believed that the fact that he was receiving complaints and asking “too many questions” led to the end of his employment with TAFE. He said he realised now that at least some of the behaviour which had led to problems in his TAFE employment was attributable to his PTSD.
22. Under cross-examination however he also conceded that he was “at odds” with his TAFE employers regarding some aspects of TAFE policy, in particular in relation to the policy on cheating. He agreed that the way the TAFE policy was applied offended his philosophy. He also did not disagree with the proposition that the fact that his philosophy was offended was a factor in his departure from TAFE. This evidence was consistent with Mr Carr’s statement signed on 19 July 2010[11] in relation to this issue.
23. In addition to Mr Carr’s evidence, there is also some documentary evidence before us in relation to this issue, which includes a number of letters provided by TAFESA at the request of the Veterans’ Review Board[12]. These include a letter from Dr Brian Pudney, General Manager for the Business Services Program in TAFESA in which he advises that a thorough search of correspondence has been unable to locate a letter of complaint forwarded to him by Mr Carr and also responds to certain allegations made by Mr Carr in relation to his treatment by TAFESA. The letter states in part:

“... I do not have a direct involvement in operational and administrative matters at the level referred to by Mr Carr. However, in relation to a number of matters referred to by Mr Carr, eg:

• arrangements for payment of hourly paid instructors for marking assignments
• changes in the timetabled duration of classes;
• management of course information
• the need to change staffing arrangements consequent upon curriculum changes or reduced demand.

On investigation I have been unable to find any evidence that these matters were dealt with other than in accordance with normal process and required practice and certainly not in a capricious and unreasonable manner as alleged by Mr Carr.
I would further comment that Mr Carr’s statements about the behaviour and motives of the Principal Lecturer (Ms Mary Bawden) are highly emotive and totally unsubstantiated and certainly not consistent with the professional and empathetic manner with which, in my extended experience, Ms Bawden conducts her program implementation duties.”

24. The material before us also includes a letter from Ms Mary Bawden, Principal Lecturer, Financial Services, TAFESA South Institute in which she relevantly states as follows:

“...

• Following a search of files, no written complaints from students regarding Mr Carr have been found, nor have any written complaints from Mr Carr been found.

...

• Reduction in numbers of students who wished to do banking and the training package structure resulted in a decision to integrate the new banking course with the accounting course, effectively reducing the use of hourly paid instructors.”[13]
  

25. In response to this letter, in a written statement provided to the VRB, Mr Carr maintained his allegations about Ms Bawden’s motivations, stating in part:

“...
Mary admitted during our interview that she had deliberately excluded me from participation. She said that she had endured a ‘ministerial’ investigation in the Accounting area a year or so before and was not going to involve me and run the risk of another problem like that! ...
I believe that she deliberately excluded me because I ask too many questions on topics which she has no idea, that I was too abrasive and forthright with difficult students and as a consequence she wished to ‘manage’ me out of the system after 22 years!”[14]

26. However, Ms Bawden was not called to give evidence and in these circumstances, it is not possible for us to more fully explore the accuracy of Mr Carr’s assertions and the extent to which they reflect the reality, as opposed to his genuinely held beliefs and perceptions about the circumstances surrounding the ending of his TAFESA employment.
27. On the basis of the evidence which is before us, including the correspondence received from TAFESA, we are satisfied that the reduction in student numbers and a decision to integrate the new banking course with an accounting course, was at least a significant contributor to the decision not to renew Mr Carr’s teaching contract. For that reason, we are not able to conclude that his accepted disabilities, alone, led to him ceasing his teaching work with TAFE.
28. In these circumstances, for the reasons given above, it is not strictly necessary for us to proceed to consider whether Mr Carr ceased his work as a banker due to his war-caused disabilities, alone. However, in the circumstances of this matter and against the possibility that our conclusion reached immediately above is in error, we consider it appropriate that we do so.

Did Mr Carr cease work as a banker due to his war-caused disabilities alone?

29. Although we have not had occasion to do so previously in these reasons, we should observe that we found Mr Carr to be an extremely impressive witness who gave his evidence with eloquence, clarity and honesty. Whilst we have some reservations as to the accuracy of his perception of what led to the ending of his TAFESA employment, we have no hesitation in accepting his evidence as to the

circumstances in which his banking career ended. We also have little doubt that the symptoms of PTSD from which he was then suffering, although the condition had not yet been diagnosed, made it more difficult for him to cope with the circumstances which confronted him and contributed to the premature ending of his career. As Mr Carr clearly explained in his evidence however, events which took place in Mr Carr’s workplace also played a role in the premature ending of his career.

30. As Mr Carr explained, by the year 2000 he had acquired vast experience in banking. He had also developed strongly held beliefs about the appropriate and best way for the bank to conduct itself in dealing with problem debts. For many years prior to 2000 he said that those holding poorly performing accounts had been given assistance from the bank to allow them to “stand up straight” again before legal action was taken against them. Mr Carr said that he and others in his area of the bank were committed to attempting to clear up bad debts in an ethical manner and in a way which left the client’s dignity intact. He said this approach had the advantage of causing minimum damage to the bank’s “brand” as well as the consciences of the staff involved, and was generally preferable in the long run even from a practical point of view.
31. In the year 2000, however, a new manager from Melbourne was appointed above Mr Carr and that person brought with him an entirely different approach, both to the management of bad debts and the management of staff below him. Mr Carr said he and other staff were unable to operate as they had previously and were subject to intense scrutiny of the rate at which they “cleaned up” bad debts. Mr Carr said the new manager had no respect for the fact that those in the section had been successfully performing their function for many years, and no time for the more compassionate approach which had previously been taken to resolving bad debts. Confronted with the approach and attitudes of this new manager, and the pressure which he applied to Mr Carr and other staff, Mr Carr became extremely angry and had difficulty managing his feelings in the workplace. He began to seek professional help, which ultimately culminated in him being diagnosed with PTSD. He also resigned from his employment, notwithstanding that it would have been far more lucrative for him to stay and attempt to obtain a “package”.
32. Under cross-examination, Mr Carr agreed that up until the new manager started, he had still seen banking as his life-time career. He said that with the advent of the new manager, the discretion he had previously had to deal with bad debts in a decent fashion was all but eliminated and this was at odds with his personal philosophy. He also agreed that he still felt that his philosophy was correct and the new manager’s was wrong. He also agreed that other staff had had a similar reaction to these changes to the one he had. He further agreed with the proposition that the bank was keen to retire older officers and that when he left his employment with the bank, he was the oldest officer in the State.
33. Oral evidence was also given by Mr Brian Rees, who had also been employed by the NAB for almost 39 years and had known Mr Carr since the early 1980’s. His evidence was entirely consistent with that of Mr Carr and he confirmed that when the new manager arrived in 2000, he completely changed the style of banking adopted by the bank, causing considerable anxiety for the staff. He said the new manager required the staff below him to get rid of “impaired” accounts as soon as possible. He said that as head of the section, the pressure fell most heavily on Mr Carr.
34. In applying the “alone” test, we note that any factor apart from Mr Carr’s accepted disabilities which played a part or contributed to him being prevented from continuing to engage in the relevant remunerative work will be sufficient to prevent him from satisfying the “alone” test prescribed by s 24(1)(c)[15].
35. Whilst, as mentioned above, we have no doubt that Mr Carr’s PTSD symptoms played a role in his inability to continue his employment with the bank, the real question is whether any other factor also played a part. In relation to that question, in light of the evidence, we have concluded that the sudden and dramatic changes brought about by the advent of a new manager in the year 2000 also played a role in Mr Carr’s inability to continue with his employment with the NAB. It appears to us from the evidence before us that the new manager arrived with a determination to improve the clearance rate for bad debts, with little regard for how this was achieved. We also received the impression from the evidence that the approach

demanded by the new manager was in direct conflict with Mr Carr’s long and deeply held belief in treating defaulting customers with decency and respect. We also gained the impression that being required to approach the resolution of bad debts in a manner which was inconsistent with his values and beliefs created considerable internal conflict and personal stress for Mr Carr.

36. In addition to this, it appears to us on the evidence that Mr Carr was himself treated with a lack of respect for his experience and put under considerable pressure to improve the “statistics” of the section with little regard to the difficulty of achieving this or what was involved in doing so. The stress experienced by Mr Carr was also contributed to by the drastic circumscription of the discretion he had previously enjoyed in managing poorly performing accounts.
37. In our view, all of these matters, combined with his underlying and as yet undiagnosed PTSD condition, contributed to ultimately place such psychological pressure on Mr Carr that it became impossible for him to continue in his employment. We note that rather than simply taking “stress” or sick leave, or claiming workers’ compensation, he resigned from his employment, at considerable cost to himself, as he appears to have considered that to be the more “honourable” course.
38. Mr Carr is clearly a man of great integrity for whom we have considerable sympathy. Nevertheless, it appears to us that having regard to the matters outlined above, we cannot be satisfied that his accepted condition “alone” prevented him from continuing with his banking employment. Rather we consider that his inability to continue his employment as a banker was significantly contributed to by the arrival of a new manager in the year 2000, together with all of the associated changes, pressures and stressors we have outlined above. In fact we consider it likely that if it had not been for the arrival of the new manager and the changes we have referred to, Mr Carr would have continued in his employment with the NAB until he retired.

CONCLUSION

39. In these circumstances, we have concluded that Mr Carr does not meet the “alone” test prescribed by s 24(1)(c) of the VE Act, either when regard is had both to his employment as a banker and a part-time lecturer in banking, or only to his employment as a banker. We are accordingly obliged to affirm the decision under review.

DECISION

40. The decision under review is affirmed.
    

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Mr SJ Ellis AM (Member)

Signed: ......................J Coulthard..............................

Associate

Date of Hearing 18 November 2010

Date of Decision 31 January 2011

Counsel for the Applicant Mr C Swan

Solicitor for the Applicant Swan Lawyers

Advocate for the Respondent Mr A Crowe

DVA

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[1] T8/54
[2] T15/95
[3] T16/104
[4] T28/185
[5] T8/54-69
[6] s 91(9), VE Act
[7] Starcevich v Repatriation Commission (1987) 18 FCR 221at 225
[8] Exhibit 2
[9] See Hill v Repatriation Commission [2000] FCA 929; Anderson v Repatriation Commission [2004] FCA 1009 at [45] and [46].
[10] s 120(4), VE Act
[11] Exhibit 2
[12] T24, T25 and T26
[13] T26/174
[14] T27/180
[15] See Repatriation Commission v Hendy [2002] FCAFC 424; (2002) 76 ALD 47 at [54].