FEDERAL COURT OF AUSTRALIA

Simmons v Comcare [2013] FCA 484

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal (the Tribunal) given on 5 October 2012 be set aside and in lieu thereof:

(1)    it be declared that the calculation of the applicant’s normal weekly earnings (NWE) under s 8(1) to (9G) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act):

(a)    for the purposes of s 8(10)(a) of the Act, for the period from 8 February 2010 to 2 August 2011, not include the Operational Response Group Allowance (the ORG Allowance);

(b)    for the purposes of s 8(10)(b)(i) of the Act, as at 3 August 2011, include the ORG Allowance; and

(c)    for the purposes of s 8(10)(b)(ii) of the Act, as at 3 August 2011, not include the ORG Allowance;

(2)    the matter be remitted to the respondent to calculate the applicant’s NWE from week to week in accordance with the declarations made in order 2(1) above and otherwise with the Act;

(3)    pursuant to s 67 of the Act, the respondent pay the applicant’s costs of the proceedings before the Tribunal as agreed or taxed.

3.    The respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from a decision of the Administrative Appeals Tribunal that found that the normal weekly earnings of Michael Simmons, a former member of the Operational Response Group of the Australian Federal Police, should be reduced for the purposes of calculating the compensation to which he was entitled under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The Tribunal so concluded because it found that on 8 February 2010 Mr Simmons chose, for personal reasons and not because of his compensable injury, to leave the Operational Response Group based in Canberra and transfer to the Counter Terrorism Unit based in Sydney. The consequence of Mr Simmons’ transfer at that time was that his normal weekly earnings calculated under s 8 of the Act would be reduced by the pro rata value of a special allowance that, immediately before his transfer, had been payable to him as an employee who had been assigned duties as an “operational” employee in the Operational Response Group under cl 7.2 of the Australian Federal Police (International Deployment Group) – Operational Response Group – Domestic – Determination No 7 of 2007 (the determination).

The issues

2    The questions of law raised in the notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) were whether, having accepted that Mr Simmons, as a result of a compensable injury, was permanently unfit as at 8 February 2010 to return to his pre-injury operational duties in the Operational Response Group, it was open to the Tribunal:

(1)    to find that, on the proper construction of the Act and the determination, his normal weekly earnings under s 8(10) of the Act on and after 8 February 2010, did not include the allowance;

(2)    to take into account, as a relevant consideration, Mr Simmons’ decision on 8 February 2010 to accept a transfer from the Operational Response Group in Canberra to the Counter Terrorism Unit in Sydney in determining whether the allowance should have been included in the calculation of his normal weekly earnings under s 8(10) of the Act.

3    The resolution of the questions turns on the proper construction of s 8(10) of the Act. That provides:

“(10)    If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:

(a)    where the employee continues to be employed by the Commonwealth or a licensed corporation—the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work; or

(b)    where the employee has ceased to be employed by the Commonwealth or a licensed corporation—whichever is the greater of the following amounts:

(i)    the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date of the injury;

(ii)    the amount per week of the earnings that the employee would receive if he or she had continued to be employed by the Commonwealth or the licensed corporation in the employment in which he or she was engaged at the date on which the employment by the Commonwealth or the licensed corporation ceased;

the amount so calculated shall be reduced by the amount of the excess.” (emphasis added)

For brevity, I will omit referring in these reasons to the statutory alternative of a licensed corporation.

4    It was common ground that the way in which s 8(10) operated has been authoritatively determined by the reasons of Dowsett J with who Spender J agreed in John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 particularly at 586-587 [73]-[77].

Background

5    The background facts are not in dispute. Relevantly, the determination provided in cll 7.4 and 9.5:

“7.4    ORG operational employees receiving this allowance will be required:

a.    To be contactable and available for immediate deployment overseas.

b.    To manage leave arrangements and personal commitments subject to deployment requirements. This will include cancellation of leave where operational requirements demand.

c.    To maintain health and fitness for deployment overseas at a level necessary for operational response. The minimal standard is the AFP National Fitness Standard. However, this may be varied by the NMIDG [National Manager International Deployment Group] at any time.

d.    To maintain appropriate skill levels as notified by the NMIDG at any time.

e.    To maintain other eligibility for employment requirements as specified in sub-clause 9.5.

…

9.5    Payment of this allowance will not be made when ORG employees cease to be eligible and/or available for deployment. This includes but is not limited to:

a.    Cessation of assignment of ORG duties within Australia.

b.    Deployment of ORG employee overseas.

c.    Failure to meet medical, psychological, training and integrity assessments necessary for deployment.

d.    Failure to maintain the requirements specified at sub-clause 7.4 or 8.4.” (emphasis added)

The Tribunal’s findings

6    The tribunal made a number of findings which relevantly, so far as they bear on the issues in the appeal, are as follows. On 15 May 2009, Mr Simmons injured his right shoulder while he was undertaking advanced warrant training in the course of his employment in the Operational Response Group. At that time his base salary was supplemented by a number of additional entitlements including the Operational Response Group allowance. The value of the allowance was equivalent to $20,000 per annum, payable fortnightly in arrears. As a member of the Operational Response Group, Mr Simmons was required to be available for immediate deployment overseas on operational duties. The tribunal found that Mr Simmons’ shoulder injury rendered him unfit for work for a time. He obtained medical and physiotherapy treatment for the injury over the following months.

7    Mr Simmons underwent surgery on 30 July 2009 and, then, commenced rehabilitation treatment. He had family in Sydney and was given suitable duties working three days a week for four hours a day from 31 August 2009 in Sydney premises of the Australian Federal Police. But he was, then and subsequently, subject to medical restrictions including that he could not lift objects with his right arm.

8    On 4 November 2009, Mr Simmons attended to return to work meeting with a number of persons including Superintendent Kruger of the International Deployment Group. At that time Mr Simmons was still working in the Sydney office, performing desk-based administrative duties and his medical restrictions remained unchanged. He was told that he should return to Canberra from Sydney to undertake suitable duties in the Operational Response Group, Tactical Intelligence Work Team, from 16 November 2009, but he expressed reservations about doing so. Return to work plans were prepared for him subsequently, but he continued to be permitted to undertake rehabilitation while performing suitable duties based in the Sydney premises. The Tribunal found that, at that time, it was quite clear that Mr Simmons did not want to return to duties in Canberra, and Supt Kruger authorised him to continue with his duties in Sydney, pending an independent assessment of his condition.

9    On 1 December 2009, Dr English, a consultant orthopaedic surgeon, reported that Mr Simmons was fit for current alternative duties and general policing duties, but unfit in the long term for return to the Operational Response Group. Dr English opined that completion of Mr Simmons’ physiotherapy and ongoing review by his existing orthopaedic surgeon was likely to be required for approximately nine months post-operatively.

10    On 17 December 2009, Mr Simmons received an offer of a suitable position in the Operational Response Group in line with his current skills and medical restrictions. However, that position was based in Canberra to commence on 11 January 2010. During January 2010, Mr Simmons continued to receive offers for him to work in Canberra, but did not accept any and took leave for about a week during that period.

11    The Tribunal found that on 27 January 2010, Mr Simmons’ normal weekly earnings for the period 26 November 2009 to 13 January 2010 were $1909.19. Mr Simmons passed a use of force training course on 28 January 2010. He then sought approval to be released from the Operational Response Group to the Sydney-based position with the Counter Terrorism Unit. On 8 February 2010, Mr Simmons’ transfer request was granted and he took up permanently modified duties in the Counter Terrorism Unit based in Sydney. He was informed that from that day the allowance would cease to be payable, and as a result, his normal weekly earnings reduced to $1589.41. Subsequently, on 18 April 2010, Mr Simmons re-injured his right shoulder and was rendered unfit for work. He required further surgery. In August 2011, he transferred to employment with the New South Wales Police Service.

12    The Tribunal found that Mr Simmons had chosen to transfer his employment from Canberra to Sydney for personal reasons relating to changes in his personal circumstances, namely what was at that time, his new residence in Newport, a Sydney suburb, and his closer proximity to his daughter. The Tribunal stated that the contemporaneous evidence did not support the assertions that Mr Simmons’ made to it of his having had injury-related reasons for seeking a transfer to Sydney, although it said that those could not be ruled out entirely. Rather, it found that the contemporaneous documents provided some support for Mr Simmons’ assertion that he repeatedly raised issues related to his rehabilitation and treatment in Sydney at the time.

13    The Tribunal found that while he derived benefit from maintaining the therapeutic relationship with his treating surgeons and physiotherapist in Sydney, that did not prevent him from resuming suitable duties in Canberra. It found that he completed his rehabilitation program in January 2010. It found that while he required assistance and support from his partner, family members and others in respect of the self-care and domestic duties, that evidence did not establish that he had any significant requirement for such assistance and support in January or February 2010. The Tribunal commented on his assertion that he needed that assistance and support not sit easily or well with his ability to pass use of force training at the end of January 2010, albeit that the requirements of that course had been somewhat modified. The Tribunal stated:

“I struggle to accept the proposition that a person who could satisfactorily meet the physical performance requirements of that testing would require assistance with self-care or domestic duties to any significant or substantial degree.”

14    The Tribunal was satisfied that Mr Simmons had been offered suitable employment in Canberra within a team operating in the Operational Response Group. The Tribunal found that Mr Simmons’ had rejected the offer of a position as a project officer in the Operational Response Group in Canberra that was suitable employment for him in the context of his rehabilitation program. The Tribunal found that the evidence established that the allowance was payable to him in the project officer position that he rejected.

15    The Tribunal found that, once Mr Simmons had left his employment with the Commonwealth in about August 2011, s 8(10)(b) applied for the purpose of calculating his normal weekly earnings in respect of his current employment with the New South Wales Police Service. It found that it was necessary to consider the notional amount he would have earned each week as a member of the Operational Response Group had his pre-injury or Commonwealth employment continued. The Tribunal said that that exercise required consideration of the determination, particularly cl 9.5. The Tribunal said that when Mr Simmons removed himself from the Operational Response Group on 8 February 2010, the allowance ceased to be payable by force of cl 9.5. It found that the allowance was only payable to Operational Response Group members who were available for immediate deployment overseas and was not payable to members of the Counter Terrorism Unit in Sydney. Accordingly, the Tribunal found that when Mr Simmons transferred to the latter unit his weekly earnings thereafter would not include the allowance, resulting in the reduction of his normal weekly earnings within the meaning of s 8(10)(b)(ii) of the Act. The Tribunal then found nothing in the period from 8 February 2010 to the time of its decision on 5 October 2012, compelled a different conclusion. It said ([28]-[30]):

“28    Once Mr Simmons transferred out of his previous ORG employment for personal reasons, he was no longer entitled to payment of the ORG deployment allowance.

29    Thus, the amount that Mr Simmons would have earned if his pre-injury employment had continued, or if his Commonwealth employment had continued is the same – the notional amount of Mr Simmons’ earnings under s 8(10)(b)(i) or (ii), would be the weekly amount he would have earned at the level of his employment as a sworn Federal Agent in the Australian Federal Police. Under s 8(10)(b)(i), if Mr Simmons’ pre-injury employment as a Federal Agent in the ORG had continued, his weekly earnings would have reduced by the amount of the ORG deployment allowance when he left ORG on 8 February 2010 to take up Australian Federal Police duties in Sydney at the same substantive level, subject to incremental and other salary changes from time to time. It is the continuation of that employment, as a Federal Agent in Sydney, that must be considered under s 8(10)(b)(ii), and no different result would be obtained.

30    If one was to apply s 8(10)(a) to the weeks when Mr Simmons was in Commonwealth employment following his injury, no different result is obtained. Absent incapacity, Mr Simmons would not have earned the ORG deployment allowance on or after 8 February 2010, when he transferred to the Counter Terrorism Unit in Sydney. Thereafter, in each of those weeks, he would not have earned that allowance.” (emphasis added)

16    The Tribunal then affirmed the decision under review that Mr Simmons’ normal weekly earnings had been properly reduced by the amount of the allowance from 8 February 2010. The issues under question 1 arise out of the Tribunal’s findings in its reasons at [28]-[29] while those under question arise out of those reasons at [30].

Principles

17    In John Holland 185 FCR at 586 [73], Dowsett J observed that the Act was very much concerned with conditions in which employees work and their terms of engagement rather than how they might be classified. He held that s 8 was concerned with earnings, but observed that trades, callings and systems of classification were commonly used in fixing pay scales. Importantly, his Honour said (185 FCR at 586-587 [74]-[75]):

“74    Clearly, s 8(10) seeks to limit the compensation payable to an injured employee by reference to his or her notional earnings derived from employment with the same employer had he or she not been injured. Section 8(10)(a) demands a notional enquiry which commences with the employee's actual current employment. The enquiry is as to his or her earnings in that employment had he or she not been injured. Such enquiry would involve consideration of how, in those circumstances, the employee would have been employed, including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident.

75    Section 8(10)(b) involves different considerations. It assumes continuation of either the pre-injury employment or other actual employment undertaken subsequent to the injury with the same employer. The decision-maker is not directed to assume that the employee was not incapacitated. The enquiry pursuant to s 8(10)(b)(ii) involves only consideration of the employee's actual employment at the date at which he or she ceased to be employed by the employer and of the earnings which would have been derived had the employee been in such employment in the week for which he or she is to be compensated. It seems unlikely that the basis for comparison was meant to be anything other than the actual earnings, adjusted to reflect changes in circumstances between the cessation of employment and the date of calculation. In particular, it seems unlikely that it was intended that the actual terms of employment were to be ignored, and the calculation based on the notional employment at rates payable to persons in a particular trade, calling or classification.

76    I also see no reason for requiring such a notional exercise in connection with s 8(10)(b)(i). The section contemplates the notional continuation of the previous employment. The purpose of the notional extension is to identify likely earnings in the event that such employment had been so extended. The section does not contemplate the notional formulation of conditions of employment which had never existed. The decision-maker must simply take the terms of employment applicable to the employee at the date of injury and enquire as to likely earnings pursuant to those terms as at the date of calculation.

77    From Mr Robertson's point of view, such an approach has one major drawback. Pursuant to the letter of employment he had no entitlement to overtime, at least on the present state of the evidence. He was to be paid only for such overtime as he performed. Any enquiry as to his earnings after completion of the project would presumably reflect the total unavailability of overtime.” (emphasis added)

Comcare’s submissions on question 1

18    Comcare argued that the Tribunal had correctly applied and construed s 8(10). It contended that both questions 1 and 2 raised questions of fact, or mixed fact and law, and so were not questions of law that enlivened an appeal to the Court under s 44 of the AAT Act. It submitted that the terms and conditions of Mr Simmons’ employment at the date of his injury included a condition that the allowance would continue until he ceased to be entitled to it in accordance with cl 9.5 of the determination. Comcare relied on the Tribunal’s finding that Mr Simmons elected to leave the Operational Response Group on 8 February 2010. It argued that his employment on that date was subject to cl 9.5 of the determination. Comcare contended that since he had ceased to be assigned to the Operational Response Group for personal reasons, he was no longer entitled to the allowance. It said that, in order to ascertain the relevant amounts of normal weekly earnings under the various limbs of s 8(10), the decision-maker had to inquire as to whether, week by week, Mr Simmons would be likely to remain employed on the terms of his pre-injury employment. It contended that the Tribunal had properly construed s 8(10)(b)(i) and (ii) in [29] of its reasons so as to arrive at the conclusion that Mr Simmons’ earnings on and from 8 February 2010 under each limb would not have included the allowance.

19    Comcare argued that the Tribunal’s finding of fact that Mr Simmons had decided to transfer from the Operational Response Group for personal reasons was conclusive that he ceased to be entitled to payment of the allowance under the terms and conditions of his employment. It argued that as Mr Simmons continued to be employed by the Commonwealth throughout the period until August 2011, the fact that he was in a different role, performing different duties, did not affect the application of either limb of s 8(10)(b).

20    Moreover, Comcare contended that how s 8(10) applied to Mr Simmons’ circumstances was simply a question of fact. It submitted by transferring to the Counter Terrorism Unit, he ceased to be eligible for the allowance. The reason for that, Comcare argued, was because the Tribunal had found that his decision to do so was based on his personal circumstances, rather than his work related injury. Comcare submitted that whether or not Mr Simmons was classified as “operational” for the purposes cl 7 of the determination was a matter within his employment but that it was not definitive of that employment.

Consideration

Question 1: Was the allowance included in normal weekly earnings for the purposes of s 8(10)(b)?

21    In my opinion, Comcare’s submissions should be rejected. They give no effect to the distinctions in wording within s 8(10). The first concept is that in s 8(10)(a). There the calculation of normal weekly earnings is related simply to whether employment of the employee by the Commonwealth continues. The expression “continues to be employed” affects the ascertainment of the calculation provided for in s 8(10)(a), namely “the amount per week of the earnings that the employee would receive if he or she were not incapacitated for work”. This is in contradistinction to the phraseology in each limb of s 8(10)(b). Each limb commences with the concept of continuation of employment, but adds, “… in the employment in which he or she was engaged at the date of” either the injury (s 8(10)(b)(i)) or the date on which the employment by the Commonwealth ceased (s 8(10)(b)(ii)).

22    I am of opinion that “the employment in which he or she was engaged” at either time specified in s 8(10)(b)(i) or (ii) is the actual employment or job that the employee was engaged in at that date. The two limbs of the sub-section contemplate that that employment or job can, and often will, be different depending on whether one is considering the date of the injury or the date of cessation of employment. Mr Simmons’ employment in the Operational Response Group at the time of his injury required him to comply with the terms of the determination. In particular, at that date he had been “… assigned duties as an operational employee in the ORG” by force of a decision made under cl 7.2. Whilever he was assigned duties as an operational employee in the Operational Response Group, his job was to be available and to comply with the other requirements in the determination applicable to him as such an employee. That job was “… the employment in which he was engaged at the date of the injury” within the ordinary and natural meaning of s 8(10)(b)(i).

23    In contrast, in August 2011, he was employed in the Counter Terrorism Unit, and that was “the employment in which he … was engaged, the date on which the employment by the Commonwealth … ceased” within the ordinary and natural meaning of s 8(10)(b)(ii).

24    It is obvious that Mr Simmons’ two “employments” or jobs in which he was engaged on the respective dates of his injury and transfer to the New South Wales Police Service were different. Those employments had different terms and conditions, including different duties, responsibilities, wages and entitlements. The Commonwealth was continuously his employer, through the agency of the Australian Federal Police, but Mr Simmons was required to perform different jobs in each position for that employer before and after 8 February 2010. As Dowsett J said in John Holland at 185 FCR at 584 [66]:

“If the Act contemplates a connection between an injury or disease and the employee's employment, then it must be possible to determine the ambit of such employment, and whether the circumstances in which the injury arose were within that ambit. This suggests a focus on what was done rather than upon trade, calling or any system of classification.” (emphasis added)

25    In my opinion when s 8(10)(b)(i) refers to an employee continuing to be employed by the same employer in the employment in which he or she was engaged at the date of the injury, it refers simply to that person being employed to perform the same job with the same relevant incidents of employment in that job. That is, a person could only have “continued to be employed … in the employment in which he or she was engaged” at a particular time if what he or she did as work for the employer was the same at each end of the period of the continuum. If the employee was, for example, promoted or demoted in that period then that change must be treated as bringing about a different employment in which the employed is engaged.

26    The complex qualifying expression “continued to be employed by the Commonwealth … in the employment in which he or she was engaged” in each limb of s 8(10)(b) is in marked contrast to the simplicity of the criterion invoked in s 8(10)(a). The latter criterion, “continues to be employed by the Commonwealth”, does not refer to any description of the nature of the employment. Thus, the criterion of the actual employment engaged in or, job, used in s 8(10)(b) is intended to contrast with, although it may be the same as, the actual situation that obtains at the time when the employee ceases employment. Nonetheless the criteria identified by the Parliament within s 8(10)(b) are different, and deliberately different, to the criterion referred to in s 8(10)(a). The latter simply requires a continuity of the identity of the employer and its relationship with the earnings the employee would have received if he or she had not been incapacitated for work.

27    Dowsett J explained in John Holland at 185 FCR at 586 [74]-[76], s 8(10)(a) is concerned with a notional inquiry that commences with the employee’s actual current employment and compares that to what his or her earnings would have been in that employment had he or she not been injured. His Honour observed that that inquiry would involve consideration of how, in the circumstances, the employee would have been employed “… including consideration of whether he or she would have continued to perform the same duties as were being performed at the time of the accident”. (Those observations are also relevant for the purposes of consideration of question 2.)

28    In contrast, as his Honour noted, s 8(10)(b)(ii), involves different considerations. It assumes the continuation of either the pre-injury employment or other actual employment undertaken subsequent to the injury with the same employer. For the purposes of s 8(10)(b)(ii), decision-maker is not directed to assume that the employee was incapacitated. Rather, the inquiry under the second limb is about the actual employment at the date the employee ceases employment and the earnings that would have been derived had he or she continued subsequently in such employment. That involves a comparison between actual earnings adjusted to reflect changes in circumstances between the cessation of employment and the date of calculation.

29    Likewise, the first limb of s 8(10)(b) contemplates the notional continuation of the previous employment because, as Dowsett J said (185 FCR at 586 [76]):

“The purpose of the notional extension is to identify likely earnings in the event that such employment had been so extended.”

30    His Honour also said there that the section did not contemplate notional formulation of conditions of employment that had never existed. The decision-maker is simply required to take the actual terms of the employment applicable to the employee at the time of the injury “… and enquire as to likely earnings pursuant to those terms as at the date of calculation”.

31    Comcare argued that when one looked at Mr Simmons’ change of heart on 8 February 2010, his consequent likely earnings calculated under s 8(10)(b)(i) would not include payment of the allowance. In my opinion that is not what s 8(10)(b)(i) provides. Rather, the section looks, as a matter of fact, at what would have been payable to the employee had he or she continued in the job he or she had at the date of the injury. The inquiry created by the section is about what the employee ought to have been paid as his or her normal weekly earnings from that date to the time at which the calculation is undertaken. But, s 8(10)(b)(i) does not look at what actually happened to the employee after the injury, or consider how he or she would have reacted. Obviously, if his or her employment, job or position came to be abolished, some inquiry would have to be made as to how that abolition would have impacted on the terms and conditions of his or her employment from that time until the relevant time for calculation of the normal weekly earnings.

32    In contrast, s 8(10)(b)(ii) projects forward from the actual employment of the employee at the time he or she ceased to be employed to the time at which the relevant calculation must be made. In Mr Simmons’ case that would commence in August 2011 when he ceased to be employed in the Counter Terrorism Unit. Thus, for example, if after the employee ceased to be employed, the normal weekly earnings payable to a person in his or her pre-injury job became less than those payable to a person in the job the employee had when he ceased employment because of, say, award changes, the figure used to calculate his or her compensation would change from that ascertained under s 8(10)(i) to that under s 8(10)(b)(ii) and vice versa.

33    The Tribunal reasoned that Mr Simmons’ normal weekly earnings as calculated under each of ss 8(10)(b)(i) or (ii) would be the same. In doing so, it made an error of law. It failed to differentiate that the two limbs of s 8(10)(b) operate differently for the reasons which Dowsett J, with Spender J’s agreement, clearly stated in John Holland at 185 FCR at 586 [75] and [76]. Indeed Dowsett J pointed out (185 FCR at 586 [77]) that there the employee had no entitlement to overtime under his contract and accordingly, at the cessation of the contractual term for which he had been employed, he would not be entitled to be paid anything for overtime for the purposes of s 8(10)(b)(ii). That result is in contradistinction to Mr Simmons’ entitlement to the allowance up to the time he ceased to be a member of the Operational Response Group. At the time of his injury he was entitled to the allowance. And, if he had continued to be employed in his role in that group, then on the finding that the Tribunal made, he would have continued to be paid the allowance. For some reason, Mr Simmons appears to challenge that outcome under question 2. For the reasons I will give, I reject that challenge.

34    For these reasons, the tribunal erred in its construction of s 8(10) in respect of question 1. That question was on a question of law, namely the proper construction of the Act. The parties agreed that if I arrived at the construction above, Mr Simmons’ normal weekly earnings for the purposes of s 8(10)(b)(i) is a matter of calculation. Accordingly, there would be no purpose in remitting that matter to the Tribunal to make such a calculation in accordance with law.

Mr Simmons’ submissions on question 2

35    Mr Simmons argued that the Tribunal and Comcare’s submissions had misconceived how s 8 operated and had impermissibly taken up considerations that arose under s 19. The latter section makes adjustments based on events subsequent to the injury and the employee’s circumstances as they change from time to time. Mr Simmons argued that the Tribunal impermissibly used its findings that he would have transferred to the Counter Terrorism Unit for personal reasons and not because of his injury. While Mr Simmons did not challenge that finding as to his motivation for transferring jobs, he contended that the Tribunal had not asked itself the correct question, as it would have had to ask in order to find against him for the purposes of s 8(10)(a) on this point. He contended that the correct question was whether, had he not been injured, would he have made the same choice to transfer from the Operational Response Group on 8 February 2010 at the same time.

Consideration

Question 2: Should the allowance have been included in normal weekly earnings under s 8(10)(c)?

36    However, Mr Simmons’ argument is not addressed to the question of law raised by question 2 in the notice of appeal or in the grounds of appeal. Whether Mr Simmons’ decision to transfer to the Counter Terrorism Unit affected his entitlement to have the allowance included in the calculation of his normal weekly earnings on the hypothesis that he were not incapacitated for work was a relevant consideration for the Tribunal to consider in addressing the question under s 8(10)(a). It is trite to say that the reasons of an administrative decision-maker are meant to inform. They are not to be construed with an eye finely attuned to error and must be read in the manner Brennan CJ, Toohey, McHugh and Gummow JJ discussed in Minister for Immigration v Wu Shan Liang (1995) 185 CLR 259 at 272.

37    The question as to what was a relevant consideration for a decision-maker under s 8(10)(a) is a question of law. While it is true that the Tribunal did not precisely phrase the question it addressed in the way in which Mr Simmons contended it should have, it is quite clear from its reasoning that it formed the view that Mr Simmons did not leave the Operational Response Group because of his injury. The Tribunal found that the personal reasons were Mr Simmons’ Newport home and the greater proximity to his daughter. It rejected his claim that his injury was a cause of his decision to transfer to Sydney

38    The Tribunal had to address the hypothetical question in s 8(10)(a) by a consideration of the facts, including what Mr Simmons would have done had he not been incapacitated for work. He remained employed by the Commonwealth up until about August 2011. I see no error in the tribunal having taken into account his decision, for personal reasons, to leave the Operational Response Group in arriving at the assessment of the earnings that he would receive if he were not incapacitated for work. This was a question of fact for the Tribunal and it would require the Court to engage in merits review to come to some other conclusion. The latter course is not open.

Conclusion

39    For these reasons, I am of opinion that the appeal must be allowed. The parties should bring in short minutes of orders that include the amount which should be declared as Mr Simmons’ normal weekly earnings having regard to these reasons and providing that Comcare should pay his costs of the appeal.

Associate:

Dated:    23 May 2013