FEDERAL COURT OF AUSTRALIA

Bis Industries Limited v Dale [2017] FCA 789

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The case is remitted to the Administrative Appeals Tribunal to decide again.

3.    The parties file any submissions as to costs (not exceeding 5 pages) by 4 pm on 24 July 2017.

4.    The parties file any submissions in response (not exceeding 5 pages) by 4 pm on 31 July 2017.

5.    If submissions are filed in accordance with Orders 3 and 4, the question of costs will be decided on the papers.

6.    If no submissions are filed in accordance with Orders 3 and 4, there will be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal against a decision made by a Deputy President of the Administrative Appeals Tribunal (the Tribunal) on 31 October 2016: see Dale v Bis Industries Limited (Compensation) [2016] AATA 862.

2    The Tribunal decided that the respondent, Steven Dale, was entitled to weekly compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for his incapacity for work.

3    The applicant, Bis Industries Limited (the employer), holds a licence under Part VIII of the Act. It is, in effect, a self-insurer in respect of injuries sustained by its employees arising out of or in the course of their employment.

4    The issues which arise in the appeal are:

(1)    whether the Tribunal failed to address an argument raised by the employer to the effect that the termination of Mr Dale’s employment for misconduct meant that he was not entitled to weekly compensation for incapacity, or, alternatively, whether the Tribunal failed to provide reasons for rejecting that argument;

(2)    whether the outcome might have been different if the Tribunal had addressed that argument;

(3)    whether the Tribunal gave adequate reasons for its finding that Mr Dale was unable to earn any amount in suitable employment.

5    For the reasons that follow, the appeal must be allowed and the matter remitted to the Tribunal to decide again.

The legislation

6    As the employer is a licenced corporation under Part VIII of the Act, the references to “Comcare” in the statutory provisions that follow should be read as references to the employer. Where appropriate, they should also be read as referring to the Tribunal standing in the shoes of the employer.

7    Section 14(1) of the Act provides for the liability of Comcare (or a licensed insurer) to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8    The expression “incapacity for work” is defined in s 4(9) as follows:

(9)    A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:

(a)    an incapacity to engage in any work; or

(b)    an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

9    Section 19 provides for the liability of Comcare to pay compensation for incapacity for work. That section states, relevantly:

19    Compensation for injuries resulting in incapacity

(1)    This section applies to an employee who is incapacitated for work as a result of an injury...

(2)    Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE – AE

where:

AE is the greater of the following amounts:

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

(b)    the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee’s normal weekly earnings.

…

(4)    In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:

(a)    where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;

(b)    where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(c)    where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;

(d)    where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;

(e)    where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;

(f)    where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and

(g)    any other matter that Comcare considers relevant.

10    The expression “suitable employment” is defined in s 4(1) as follows:

suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

(a)    in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—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).

11    It is not in issue that Mr Dale was “an employee” and that he sustained “an injury”.

The facts

12    Mr Dale commenced employment with the employer on 28 June 2011 as a road-train driver. On 25 October 2013, he suffered an injury at work when a metal bar fell onto his elbow.

13    On 26 November 2013, Mr Dale made a claim for compensation under s 54 of the Act. On 16 December 2013, the employer accepted liability pursuant to s 14 of the Act in respect of injuries described as “tear of the lateral collateral, lateral ulnar collateral ligaments and common extensor tendon insertion, left elbow”.

14    Mr Dale was certified by doctors as unfit to work until 4 February 2014 and was subsequently certified fit for suitable duties. On 4 February 2014, he returned to full-time work, although under a rehabilitation programme. His duties under the rehabilitation programme consisted of administrative tasks and driving motor vehicles for up to four hours per day. These vehicles had automatic transmissions and power steering. Mr Dale did not return to driving road-trains. While he was undertaking the rehabilitation programme, he was entitled to payment under s 37(5) of the Act of the amount that would otherwise have been payable for his incapacity for work.

15    On 15 September 2014, a manager found Mr Dale smoking at the work site. This was said to be in breach of the employer’s policies. On 23 September 2014, the employer wrote to Mr Dale notifying him that his employment had been terminated for wilful misconduct.

16    By letter dated 24 September 2014, the employer (acting as a self-insurer) notified Mr Dale that it had determined that he had no current entitlement to compensation under s 19 of the Act. The letter stated that due to the termination of his employment, Mr Dale had failed to continue to engage in suitable employment. This aspect of the employer’s determination appears to relate to s 19(4)(c) of the Act. The letter stated that if Mr Dale had continued to engage in the suitable employment he would have been able to earn $2,190.33 per week. This was a reference to the “AE” part of the formula set out in s 19(2) of the Act. The letter said that his entitlement to compensation under s 19 of the Act was $0.00.

17    The employer’s letter went on to say that the “NWE” component of the formula in s 19(2) should also be reduced to $0.00. The employer did not subsequently advance this contention before the Tribunal.

18    The employer’s claims manager reviewed the determination. On 20 November 2014, the claims manager made a decision affirming the determination.

19    On 17 November 2014, Mr Dale applied to the Fair Work Commission (FWC) for a remedy for unfair dismissal. The application was made outside the 21 day limitation period. On 9 December 2014, the FWC decided that there were no exceptional circumstances to warrant the grant of an extension of time and rejected the application.

The Tribunal’s decision

20    On 23 January 2015, Mr Dale filed with the Tribunal an application for review of the reviewable decision made by the employer’s claims manager. Mr Dale later filed a second application seeking review of a decision that he had no present entitlement to compensation for medical treatment under s 16 of the Act. The second application was also decided by the Tribunal, but is not relevant to the present appeal.

21    On 31 October 2016, the Tribunal made the following decision:

I set aside the reviewable decision of 24 September 2014 in application no 0567 of 2015 and substitute a decision that from and including 23 September 2014 until the date of this decision the applicant is entitled to compensation for incapacity for work under s 19 of the [Act]. For the purpose of s 7(4) of the Act, the applicant should have been taken to have sustained the injury on 19 July 2013. The application is remitted to the respondent to calculate incapacity payments in accordance with paragraph 70 of these reasons for decision.

22    It is necessary to describe the Tribunal’s reasons for the decision in some detail, since the employer’s case in the appeal concerns the construction and adequacy of the reasons.

23    The “Consideration” section of the Tribunal’s reasons is, with respect, quite difficult to follow. In part, this is because the Tribunal only partly describes the issues in the case. In particular, the reasons summarise only some aspects of the employer’s submissions and do not describe Mr Dale’s submissions at all. The result is that it is difficult to understand the relevance of a number of the factual matters set out in the reasons for the decision, the basis for some of the findings that were made, and the significance of those findings. The “Consideration” section also tends to jump between issues, making it difficult to follow what issue is presently being discussed.

24    The employer did not include the parties’ Statements of Facts, Issues and Contentions (SFIC) and written submissions to the Tribunal in the appeal book placed before the Court. The employer’s counsel said that was because those documents are not required to be included under the Federal Court Rules 2011 (Cth). Rule 33.26(c) describes the documents that are to be included in the appeal book, and it is true that the SFIC and the written submissions before the Tribunal are not amongst those documents, but the rule does not prevent other relevant documents from being included. The absence of the SFIC and written submissions meant that it was unclear as to precisely what submissions were made to the Tribunal and resulted in the presentation of the appeal being unnecessarily confusing. It was not until those documents were provided after the hearing of the appeal that some aspects of the Tribunal’s reasons became clearer.

25    In his SFIC, Mr Dale contended that the termination of his employment was irrelevant to the question of weekly incapacity benefits under s 19 of the Act. He contended that this was because he was not commercially employable in his pre-injury vocation as a road-train driver and the employer had not formulated any reasonable or adequate plan to retrain him into a vocation where he would be commercially employable. Further, Mr Dale contended that the termination of his employment was “constructed” by the employer in an attempt to avoid its obligations under the Act.

26    In its SFIC, the employer contended that Mr Dale was not entitled to compensation for incapacity for work because, by reason of his termination, he had failed to engage in or continue to engage in suitable employment that was offered to him. This was apparently a reference to s 19(4)(c) of the Act.

27    In written submissions placed before the Tribunal, the employer argued that the termination of Mr Dale’s employment (and his failure to have that termination set aside by the FWC) was a relevant matter for the purposes of s 19(4)(g) of the Act. The employer submitted that the termination meant that it had no obligation to pay Mr Dale wages, but that he was contending that he should be paid compensation for the equivalent of his loss of wages. This would put him in a better position than another employee whose employment was terminated but who was not eligible for compensation. The employer argued that such a result would be absurd and that the legislature could not have intended that compensation should be paid under s 19 in such circumstances. The employer submitted that the amount Mr Dale was able to earn in suitable employment should be taken to be the amount he was earning in his employment before the termination. The employer argued that AE was the same amount as NWE, so Mr Dale’s entitlement to compensation under s 19(2) of the Act was nil. The argument seemed to be presented essentially as a matter of construction of s 19(4) of the Act.

28    The employer submitted, in the alternative, that s 19(4)(c) of the Act applied and that Mr Dale’s incapacity compensation should be reduced to nil because he unreasonably failed to continue in suitable employment. The employer argued that Mr Dale had accepted an offer of suitable employment by signing the relevant rehabilitation paperwork and not seeking to challenge the rehabilitation programme. It also argued that Mr Dale had failed to continue to engage in suitable employment when his employment was terminated. Further, the employer argued that Mr Dale’s failure to continue to engage in the employment was not reasonable because he had acted in direct contravention of the prohibition upon smoking at the work site.

29    The employer’s written submissions described the medical and occupational therapy evidence led by Mr Dale as being irrelevant. The employer did not otherwise address that evidence.

30    In Mr Dale’s written submissions to the Tribunal, he focussed on the reduction of his capacity for employment as a result of his injuries. He relied on the evidence of an orthopaedic surgeon and an occupational therapist. The orthopaedic surgeon, Dr Van Der Walt, gave evidence that Mr Dale was unfit to work as a road-train operator and was only fit for sedentary or light manual work. The occupational therapist, Ms Hague, gave evidence that Mr Dale was unable to return to his pre-injury role, and that there would be great difficulty in attempting to retrain him into lighter work. Ms Hague’s report was admitted by consent and she was not required for cross-examination. Mr Dale submitted that, for the purposes of s 19(2) of the Act, he was commercially unemployable and was unable to earn any income in suitable employment.

31    In relation to the employer’s argument concerning s 19(4)(c) of the Act, Mr Dale submitted that the provision of a rehabilitation programme was not “suitable employment” within the meaning of that expression in s 4 of the Act. He also submitted that he had not failed to continue to engage in suitable employment because he had not, in fact, breached the employer’s no smoking policy and the termination of his employment was unjustified. He submitted, alternatively, that even if the Tribunal was satisfied that he had breached the no smoking policy, his conduct was nonetheless reasonable. For these reasons, Mr Dale submitted that s 19(4)(c) did not apply.

32    The transcript of the hearing before the Tribunal was not placed before the Court, so it can only be assumed that the oral arguments made to the Tribunal were consistent with the written submissions.

33    The Tribunal’s reasons become somewhat easier to follow when read in light of the issues identified in the submissions made to the Tribunal.

34    The Tribunal’s reasons commence with a description of the employer’s determinations and the decisions under review. The reasons then set out the medical and occupational therapy evidence and describe the evidence given by Mr Dale. His evidence was largely about the rehabilitation programme, the difficulties that he would have in working as a road-train driver, what he was smoking at the workplace and the termination of his employment. The reasons then describe the evidence of the employer’s witnesses who described catching Mr Dale smoking, the termination of his employment and the employer’s non-smoking policies. The Tribunal then sets out the relevant parts of s 19 of the Act and some of the relevant definitions.

35    Under the heading “Consideration”, the Tribunal’s reasons summarise the employer’s argument based on s 19(4)(g). They do not summarise any part of Mr Dale’s argument in response.

36    The reasons then jump to consideration of evidence lodged by the employer after the hearing and conclude that it would not be fair to place any weight upon that evidence.

37    The reasons then refer to a submission made by the employer that the preferable conclusion is that the applicant was dismissed because he was smoking a “normal” cigarette. The reasons analyse the evidence concerning whether Mr Dale had been caught smoking a tobacco cigarette, an e-cigarette or a vapour cigarette. The Tribunal concludes that it would not be fair to find that Mr Dale was smoking a tobacco cigarette because that was not a matter put to him in cross-examination. The Tribunal also says that even if Mr Dale was smoking an e-cigarette, it would not be fair to decide that this was in breach of the employer’s policies.

38    The Tribunal does not explain the significance of its discussion concerning what Mr Dale was smoking and whether he breached the employer’s policies. However, from an examination of the parties’ submissions, it appears that this discussion is relevant to the employer’s argument that s 19(4)(c) of the Act applied, since part of that argument concerned whether Mr Dale had engaged in conduct that resulted in the termination of his employment and the reasonableness of his conduct.

39    The Tribunal goes on to conclude that it was not required to decide whether the termination of the employment was justified. The reasons state at para [55]:

In any event I do not consider that it is part of my enquiry to make any findings of fact as to whether the respondent was justified in terminating the applicant’s employment. In Telstra Corporation v Lyons (2003) 132 FCR 548 RD Nicolson J emphasised at 554-555 that it is important to have regard to the objects of the Act which are the provision of rehabilitation and worker’s compensation. The Full Court of the Federal Court of Australia explained in Comcare v Line (2002) 124 FCR 337 at 346-347 that the policy objects of the Act can be defeated where an employer terminates the employment of an employee and “thus removing the duty to provide suitable employment provided for in s 40(1)”.

40    The Tribunal’s reference to Telstra Corporation v Lyons (2003) 132 FCR 548 and Comcare v Line (2002) 124 FCR 337 was apparently in support of its conclusion that it was not required to make findings as to whether the termination of Mr Dale’s employment was justified. However, the connection between the cited passages and that conclusion is not readily apparent. It may be that the Tribunal meant to refer to para [43] of the judgment in Telstra Corporation v Lyons, which says that it was unnecessary for the Tribunal in that case to decide whether the employer was justified in terminating the employee’s employment when considering the interpretation of “suitable employment”, but that is a matter of conjecture.

41    The reasons then say that it is necessary to consider “for how long [Mr Dale] has been prevented from returning to the workplace by his injuries”. It is unclear what the Tribunal means by this or which workplace is being referred to. The Tribunal goes on to conclude that there was no cogent evidence that his condition would have resolved by the date of the hearing.

42    The reasons then return to s 19(4)(c) of the Act. The reasons summarise part of the employer’s submissions concerning this provision, but make no reference to Mr Dale’s response. The Tribunal rejects the employer’s submission that Mr Dale had received an offer of “suitable employment” within the meaning of that expression in the Act, distinguishing “suitable employment” from a rehabilitation programme. The reasons conclude that when Mr Dale’s employment was terminated, he was still undertaking a rehabilitation programme and was not undertaking suitable employment. In light of that conclusion, the reasons state that it is unnecessary to consider whether Mr Dale failed to continue to engage in his employment. These findings amount to a rejection of the employer’s submission that s 19(4)(c) applied.

43    The Tribunal then turns to the application of the formula in s 19(2) of the Act, saying at para [65]:

The amount of AE in the formula in s 19 of the Act is $0.00 as I do not consider that the employer was able to earn anything in suitable employment. [Mr Dale] is unable to use his left arm until he elbow injury resolves. Dr van der Walt in giving evidence remarked that the preferred course is to avoid using the affected elbow. The work of [Mr Dale] has involved the use of his hands as a driver.

44    The Tribunal goes on to consider whether the employer had any present liability to pay compensation for medical treatment under s 16 of the Act. The Tribunal concludes that Mr Dale does not presently require any form of medical treatment and affirmed the reviewable decision. As I have said, that decision is not relevant to the present appeal.

45    The reasons then discuss the appropriate form of orders. The Tribunal says at para [70]:

The amount of AE in the formula of s 19 of the Act is $0.00 as I do not consider that [Mr Dale] is able to earn any income in suitable employment.

46    The totality of the Tribunal’s reasoning for its conclusion that Mr Dale is unable to earn any income in suitable employment (and that, therefore, AE is nil) is contained in paras [65] and [70] of the reasons.

47    The effect of the Tribunal’s decision is that the employer is liable to pay Mr Dale compensation under s 19(2) of the Act in the amount of $2,190.33 per week for the first 45 weeks after 23 September 2014 and then 75% of that amount for each week up to the date of the decision.

The appeal

48    The notice of appeal sets out the following grounds:

1.    The Tribunal failed to take into account a relevant consideration.

a.    Under s 19(4)(g) of [the Act], the Tribunal was obliged to have regard to any “other matter” that was relevant for the purposes of determining the amount per week that [Mr Dale] was able to earn in suitable employment.

b.    The termination of [Mr Dale’s] employment was an “other matter” that was relevant for the purposes of determining the amount per week that he was able to earn in suitable employment in the circumstances.

c.     The Tribunal failed to take into account the termination of [Mr Dale’s] employment for the purposes of determining the amount per week that he was able to earn in suitable employment in the circumstances.

2.    The Tribunal failed to provide reasons for rejecting, if it did reject, Bis’ case that the termination of [Mr Dale’s] employment was an “other matter'” that was relevant for the purposes of determining the amount per week that he was able to earn in suitable employment in accordance with s 19(4)(g) of [the Act].

3.    As a result of the legal errors made by the Tribunal, as set forth in the two preceding grounds, the Tribunal constructively failed to exercise jurisdiction because it failed to apply itself to the real question to be decided. That question was determining the amount per week that [Mr Dale] was able to earn in suitable employment taking into account the termination of his employment in the circumstances.

49    The employer does not take any issue with the Tribunal’s conclusion that s 19(4)(c) of the Act was not engaged. However, the question of how the Tribunal dealt with that argument is relevant when considering the grounds of appeal.

Whether the Tribunal dealt with the employer’s argument as to the effect of termination, or failed to provide reasons for rejecting that argument

50    The grounds of appeal are confined to alleging that the Tribunal failed to take into account the termination of Mr Dale’s employment as a relevant matter under 19(4)(g) of the Act or, alternatively, failed to provide reasons for rejecting the employer’s case as to the relevance of the termination.

51    The employer’s submissions in the appeal go further than the grounds of appeal. The employer’s submission is not merely that the Tribunal failed to take into account the termination of Mr Dale’s employment, but that it failed to address the employer’s argument as to the effect of that termination. The substance of the employer’s submissions is summarised in the following passage of its written submissions:

But nowhere in its reasons did the Tribunal grapple with the case advanced by Bis. The Tribunal did not state that it rejected Bis’ submissions under s 19(4)(g) of the [the Act]. The Tribunal simply did not address the submissions of substance that Bis had seriously advanced, even if it broadly summarised those submissions. And the Tribunal’s statement of reasons fails to enable the reader, in particular Bis, to reasonably understand or discern why it was unsuccessful (if at all).

52    The employer’s “case” or “submissions of substance” which the Tribunal is said to have failed to address started with the proposition that the termination of Mr Dale’s employment for misconduct (and his failure to have the termination set aside by the FWC) was a relevant matter for the purposes of s 19(4)(g) of the Act. Under that provision, the Tribunal must have regard to “any other matter that [the Tribunal] considers relevant”. Before the Tribunal, the employer submitted that Mr Dale was seeking to compel the employer to pay him the equivalent of weekly wages in circumstances where it would not otherwise have been required to pay him wages; and that that would place him in a better position than an uninjured employee whose employment was terminated. The employer argued that this would be contrary to Bortolazzo v Comcare (1997) 75 FCR 385, where Heerey J held at 388:

The underlying policy is that an injured employee should not be worse off during the period of incapacity as a result of work-related injury. However, it follows conversely that the injured employee should not be better off.

53    The employer argued before the Tribunal that it would be contrary to common sense to hold that a person whose employment was terminated for misconduct was entitled to receive incapacity payments to negate the effect of the termination. The employer submitted that the intention of the legislature could not have been to require the payment of the equivalent of weekly wages to an employee whose employment had been terminated for misconduct. The argument continued that the amount Mr Dale was able to earn in “suitable employment” should be taken as the same amount as he earned before the termination, so that AE was the same as NWE, resulting in no weekly amount for compensation being payable. The argument was presented as one of statutory construction. The employer submits that the Tribunal failed to deal with this argument in its reasons.

54    The Tribunal’s obligation to provide reasons for its decision is described in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) as follows:

43    Tribunal’s decision on review

Tribunal must give reasons for its decision

(2)    Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

…

(2B)    Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

55    In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court said at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

56    A failure by the Tribunal to respond to a substantial, clearly articulated argument relying on established facts involves an error of law: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]; Dunstan v Comcare (2011) 125 ALD 362 at [68].

57    The Tribunal’s reasons summarise the employer’s argument concerning the relevance of the termination of Mr Dale’s employment and the effect of 19(4)(g) of the Act. However, as the employer correctly points out, the reasons do not go on to expressly deal with that argument.

58    Mr Dale submits that the Tribunal did address the employer’s s 19(4)(g) argument. He argues that this is to be inferred from the Tribunal’s summary of the argument and the subsequent references in para [55] of its reasons to Telstra Corporation v Lyons and Comcare v Line. Mr Dale submits that these cases are authority for the proposition that the termination of an employee’s employment is irrelevant to assessment of the amount that an employee is able to earn in suitable employment for the purposes of ss 19(2) and (4) of the Act. He submits that the Tribunal decided that it was not required to make findings as to whether the employer was justified in terminating his employment because his former employment was irrelevant to the assessment of compensation.

59    The acceptance of Mr Dale’s submissions would require attribution to the Tribunal of a process of reasoning that it did not express. The Tribunal relied upon Telstra Corporation v Lyons and Comcare v Line in support of its conclusion that it was not required to make any findings as to whether the employer was justified in terminating the employment. However, that was an issue raised by the parties in respect of the argument concerning s 19(4)(c) of the Act, not s 19(4)(g). Therefore, the Tribunal was not dealing with the employer’s s 19(4)(g) argument when it referred to those cases. In addition, the passages which the Tribunal refers to from those cases do not indicate that the termination of the employment of an employee is irrelevant to the enquiry as to the amount the employee is able to earn in suitable employment. Further, nothing else in those cases suggests that the termination of an employee’s employment is irrelevant to that enquiry.

60    In my opinion, the Tribunal failed to deal with the employer’s argument concerning the relevance of the termination of Mr Dale’s employment for the purposes of s 19(4)(g) of the Act.

Whether the outcome might have been different if the Tribunal had addressed the employer’s argument

61    It remains necessary to consider the merits of the argument that the Tribunal failed to deal with. That is because, as Bennett J explained in Australian Postal Corporation v Sellick [2008] FCA 236 at [35]:

If the particular submission…would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law.

62    The employer’s argument before the Tribunal involved the proposition that the termination of Mr Dale’s employment for wilful misconduct, as a matter of construction of s 19(4) of the Act, necessarily had the consequence that the amount he was able to earn in suitable employment should be regarded as the amount he was earning before the termination. This would mean that AE was equal to NWE under the formula in s 19(2) and that no amount of compensation was payable. It followed, on the employer’s argument, that the medical, occupational therapy and other evidence concerning Mr Dale’s post injury capacity for employment was irrelevant to the question of his ability to earn income in suitable employment.

63    In my opinion, the employer’s argument misconceives the purpose and operation of s 19 of the Act and is wrong, as I will explain. This explanation requires consideration of the statutory provisions in some detail.

64    Part II of the Act has the heading, “Compensation”. Section 14, which is found in Division 1 of Part II, provides that Comcare (or a licenced insurer) is liable to pay compensation in accordance with the Act in respect of an injury (as defined) if the injury results in death, incapacity for work, or impairment.

65    Division 3 of Part II has the heading, “Injuries resulting in incapacity for work”. Section 19 is then headed, “Compensation for injuries resulting in incapacity”. Section 19(1) states that the section applies to an employee “who is incapacitated for work as a result of an injury”. The expression “incapacity for work”, defined in s 4(9), refers to the employee’s incapacity, as a result of an injury, to engage in any work or to engage in work at the same level as immediately before the injury. Accordingly, incapacity for work may be total or partial.

66    Section 19(2) of the Act provides a mechanism for the determination of whether compensation for an employee’s loss of earnings due to incapacity for work is payable and, if so, in what amount: Telstra v Slater [2001] FCA 149 at [56]. The evident purpose of the provision is to make Comcare (or a licenced corporation) liable, subject to Part II, to pay a weekly amount of compensation to an employee for the employee’s loss of earnings due to incapacity for work as a result of an injury. The provision also describes the way the amount of compensation is to be calculated, namely by applying the formula, NWE minus AE.

67    NWE is the amount of the employee’s “normal weekly earnings”. Under s 8, an employee’s normal weekly earnings are, in essence, the employee’s pre-injury weekly earnings. The NWE component is not affected by any subsequent termination of an employee’s employment.

68    Under s 19(2) of the Act, AE is defined as the greater of any amount per week that the employee actually earns from employment and any amount per week that the employee “is able to earn in suitable employment”. Since the formula requires the greater of the two amounts to be applied, it is always necessary to make an assessment of what employment, if any, is suitable employment for the employee and the amount, if any, the employee is able to earn in such employment. That is not to say that it is always necessary to determine a precise amount: Telstra v Slater at [55].

69    The concept of incapacity for work is crucial under s 19(2) of the Act, but so too is capacity. The phrase “is able to earn” in the definition of “AE” refers to the capacity of the employee to earn income from suitable employment. The definition of “suitable employment” is also concerned with the capacity of an employee to earn income from employment. Section 19(2) requires an assessment of the employee’s post-injury ability, or capacity, to earn income from suitable employment.

70    Under s 19(2) of the Act, the amount of compensation payable reflects the difference between an employee’s pre-injury earnings and the greater of the employee’s post-injury earnings and the amount the employee is able to earn in suitable employment. The provision envisages that in some cases, the earning capacity of an injured employee will be greater that the employee’s actual earnings. This is reinforced by paras (b) to (f) of s 19(4). The legislative policy is that an injured employee’s underutilisation of his or her earning capacity will, in appropriate circumstances, result in reduction of the amount of weekly compensation payable. That is because compensation under s 19(2) is payable only for loss of earnings due to incapacity for work.

71    The definition of “suitable employment” in s 4(1) of the Act requires that where an employee is no longer employed by the Commonwealth or a licenced corporation, suitable employment is to be assessed by reference to “any employment”. There must be an assessment of “work for which the employee is suited”. That assessment must have regard to the four categories of matters specified, namely: the employee’s age, experience, training, language and other skills; suitability for rehabilitation or vocational training; whether it is reasonable to expect the employee to change his or her place of residence; and any other relevant matter. It is implicit that other relevant matters will include the nature and extent of the employee’s injury and the effect of the injury upon the employee’s ability to work. The availability of work is also a relevant factor: Martin v Australian Postal Corporation (2000) 32 AAR 199 at [34]-[35]. The exercise of assessing what is suitable employment, and the amount per week that an employee is able to earn from such employment, involves evaluation of all the relevant matters and the exercise of judgment.

72    Section 19(4) of the Act also requires Comcare (or a licensed corporation) to have regard to the matters set out in paras (a)-(g) in determining the amount per week the employee is able to earn in suitable employment. The matters in paras (a)-(f) are factors that can operate to reduce the weekly amount of compensation payable for incapacity (including to zero in appropriate cases). Paragraph (g), which refers to “any other matter that Comcare considers relevant”, can operate to reduce the amount of compensation payable or, conversely, to increase the compensation payable notwithstanding paras (a) to (f): see Woodbridge v Comcare (1994) 20 AAR 196 at 205. Again, an evaluative judgment is required.

73    Section 19(4) of the Act provides guidance for the evaluative judgment as to the amount the employee is able to earn in appropriate employment, but does not purport to control that judgment. The requirement is only that the decision-maker “must have regard to” the specified matters. If any of the paragraphs of s 19(4) are found to apply, that does not automatically mean that there must be a reduction of the amount of compensation – no single factor is necessarily determinative: see Woodbridge v Comcare at 206-207; and, on appeal, Woodbridge v Comcare (1995) 21 AAR 201 at 202-203. Nor does s 19(4) purport to control the extent of any reduction.

74    In every case, it is left to the decision-maker to determine the amount per week that the employee is able to earn in suitable employment, taking into account the range of factors set out in the definition of “suitable employment” and in s 19(4) of the Act. No single factor, such as the termination of an employee’s employment for misconduct, necessarily determines the answer.

75    The termination of an employee’s employment, whether voluntarily or because of dismissal for misconduct, redundancy or some other reason, is a factor that may well be relevant. The precise relevance and significance of the termination will depend upon the circumstances of the case.

76    The judgments in Telstra Corporation v Lyons and Comcare v Line recognise that the possibility of an employer defeating the policy objectives of the Act by terminating an injured employee’s employment is relevant to the construction of s 19(4) of the Act. In Comcare v Line, RD Nicholson J observed at [40] that the Act was intended to improve the benefits to employees as a trade off against the removal of the common law right to sue, and that injured employees were to be protected by, inter alia, being provided with rehabilitation and employment. A construction of s 19(4) such that termination of an employee’s employment for wilful misconduct must result in the employee receiving no compensation would render it to an employer’s advantage to terminate the employment. Such a construction should not readily be adopted.

77    Against this, the employer argues if its construction is not adopted, an injured employee whose employment is terminated for wilful misconduct would be better off than an uninjured employee whose employment is terminated for the same reason. The employer submits that it would be required to pay the equivalent of weekly wages in circumstances where it would not otherwise have been required to pay wages. It argues that such a result would be absurd and could not have been intended by the legislature.

78    The employer’s argument conflates the payment of wages with the payment of compensation for incapacity for work. They are not the same. That misconception seems to stem from the employer’s conflation of its position as an employer with its liability as a licenced corporation under the Act. In respect of the latter, the employer acts as a self-insurer: see ss 108, 108A, 108B and 108C of the Act. It is not correct to say that because the employer terminates the employment of an employee and is not obliged to pay wages, it is also not obliged to pay compensation. The employer’s liability as a self-insurer depends on the statutory requirements.

79    It must be remembered that the object of s 19(2) of the Act is to provide for compensation for an injured employee’s loss of earnings due to incapacity for work as a result of injury. An injured and incapacitated employee remains injured and incapacitated following the termination of his or her employment. An uninjured employee whose employment is terminated retains his or her full capacity to earn income by obtaining other employment. An injured employee whose employment is terminated for wilful misconduct is not better off than an uninjured employee terminated for wilful misconduct in any relevant sense. The employer is correct to say that termination of an employee’s employment may be a relevant matter. However, the employer’s argument that termination of employment for wilful misconduct must result in the amount the employee is able to earn in suitable employment being taken to be the amount earned in his or her employment before the termination, with the consequence that no compensation is payable under s 19(2), must be rejected.

Adequacy of the Tribunal’s reasons for finding that Mr Dale was unable to earn any income in suitable employment

80    Mr Dale argues that any failure by the Tribunal to decide upon the employer’s argument as to the relevance of the termination of his employment made no difference to the outcome of the case. He submits that the Tribunal found that he is commercially unemployable, the employer having failed to make submissions upon the medical and occupational therapy evidence, and that AE is nil. Mr Dale submits that these findings of fact necessarily conclude the issue under s 19(2) of the Act and that the Tribunal’s decision should not be set aside.

81    It is true that the Tribunal found that Mr Dale was unable to earn any income from suitable employment, but the employer submits that the Tribunal’s reasons for that finding are also inadequate. That aspect of the employer’s submissions has not been expressly raised in the notice of appeal. However, as the issue was argued and no point was taken about the argument being outside the scope of the notice of appeal, I consider that it is appropriate to treat the adequacy of the Tribunal’s reasons in that respect as being a part of the employer’s grounds of appeal.

82    The Tribunal’s conclusion that Mr Dale was unable to earn any income in suitable employment, and the totality of its reasons for that conclusion, are set out in paras [65] and [70] of its reasons. The reasons given are, firstly, an acceptance of Dr Van Der Walt’s evidence that Mr Dale was unable to, or should not use, his left arm until his injury resolves and, secondly, that Mr Dale’s work as a driver had involved the use of two hands. The Tribunal did not address the body of evidence concerning the work that Mr Dale had been doing while on a rehabilitation programme before his employment was terminated and his suitability for such work. That body of evidence included the fact that he had driven automatic vehicles with power steering for up to four hours a day. It also included medical evidence that Mr Dale was fit for “suitable duties”. Those matters were clearly relevant to assessment of any amount Mr Dale was able to earn in suitable employment.

83    In Statham v Federal Commissioner of Taxation (1988) 16 ALD 723, the Full Court held at 723:

Not least of the reasons for requiring the Tribunal to reach adequate findings of fact is the difficulty of the court determining an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act where such findings have not been or not adequately been made.

84    Similarly, in Summers v Repatriation Commission (2015) 230 FCR 179, the Full Court said at [110]:

A failure to state reasons for a decision — at least in circumstances where a statement of reasons is a requirement of the exercise of the decision-making process — constitutes an error of law. One of the central objects behind the statutory obligation to give reasons is to expose the Tribunal’s reasoning process which may facilitate appeals on a question of law or judicial review.

85    Section 19(2) of the Act required the Tribunal to have regard to the matters set out in sub-paragraphs (i), (ii), (ii) and (iv) of the definition of “suitable employment” in s 4(1) when assessing the amount Mr Dale was able to earn in such employment. It is not apparent from the Tribunal’s reasons whether it considered anything beyond the two factors it specifically mentioned in paras [65] and [70]. As I have observed, there were other relevant matters the Tribunal was required to consider. If the Tribunal failed to have regard to those other matters, that was an error of law. Alternatively, if the Tribunal did have regard to the other matters and failed to say so, then it failed to comply with s 43(2B) of the AAT Act and that was an error of law: see Dornan v Riordan (1990) 24 FCR 564 at 573, cf Comcare v Power (2015) 238 FCR 187 at [98].

86    To be fair to the Tribunal, the inadequacy of this aspect of its reasons appears to have been contributed to by the employer’s approach. The employer did not engage with the medical and occupational therapy evidence led by Mr Dale, beyond submitting that it was irrelevant. That submission was misconceived. The evidence was centrally relevant to the question of Mr Dale’s ability to earn income from suitable employment. The Tribunal appears to have taken the approach that it was unnecessary to deal with that question in detail in view of the employer’s failure to engage with the evidence.

87    The appeal should be allowed and the Tribunal’s decision should be set aside. Under s 44(5) of the AAT Act, the case may be remitted to be heard and decided again “either with or without the hearing of further evidence”. As the parties had the opportunity to call evidence and cross-examine before the AAT, and the appeal has been determined on the basis of the construction and adequacy of the Tribunal’s reasons, it seems appropriate that the further hearing should be conducted on the basis of the existing evidence. However, the Tribunal will have to make a decision on the basis of the facts as they then exist. The facts and circumstances may have changed, or may change before the further hearing. Accordingly, the question of any further evidence should be left to the Tribunal.

88    Although the employer has ultimately succeeded, my preliminary view is that there should be no order as to costs. I have rejected the employer’s primary argument concerning the construction of s 19(4) of the Act. Further, while the employer has ultimately demonstrated that the Tribunal’s reasons are inadequate, the inadequacy of those reasons seems to have been contributed to by its lack of engagement with relevant evidence. In contrast, Mr Dale’s conduct of the case does not appear to have contributed to the Tribunal’s error.

89    I will give the parties the opportunity to make submissions as to costs. In the absence of any such submissions being made, there will be no order as to costs.

Associate:    

Dated:    17 July 2017