Federal Court of Australia

Zdziarski v Telstra Corporation Limited [2022] FCA 1296

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed pursuant to r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J

Introduction

1    By notice of appeal filed on 4 March 2022, the applicant appeals a decision of the second respondent, the Administrative Appeals Tribunal (Zdziarski v Telstra Corporation Limited [2022] AATA 145 (T)) pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). In that decision, the Tribunal set aside and remitted to Telstra Corporation Limited, the first respondent, its reviewable decision dated 23 September 2019, with the direction that the applicant’s entitlements under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) be re-calculated.

2    In reaching its conclusion that the applicant’s entitlements needed to be recalculated (and reduced), the Tribunal accepted evidence from Mr Tony Considine, Telstra Field Manager, as to the different (and reduced) average weekly overtime hours worked by comparable employees in the Newcastle Wireline Team after the applicant had sustained his injury and no longer worked in the team.

3    This appeal concerns whether the Tribunal had failed to exercise its jurisdiction by not deciding a material issue raised by the applicant, namely whether it should take into account, when reaching its decision, three statements of Mr Considine it considered, adduced by the first respondent, which the applicant objected to. For the reasons set out below, I dismiss the appeal.

Jurisdiction – questions of law

4    Jurisdiction is conferred on this Court to hear an appeal from a decision of the Tribunal under s 44(1) of the AAT Act, whereby a party may “appeal” to the Court “on a question of law”. Whilst s 44(1) employs the language of “appeal”, this jurisdiction is exercised in the Court’s original jurisdiction and not its appellate jurisdiction, and is constrained to appeals on such questions.

5    As observed by Bowen CJ, Fisher and Lockhart JJ in Brown v The Repatriation Commission [1985] FCA 236; 7 FCR 302 at 304, this requirement is not merely a qualifying condition, “rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it”.

Background

6    The applicant had been a long term employee of the first respondent. Following an injury at work on 17 September 2001, he has received payments of different kinds of workers’ compensation under the SRC Act. The applicant’s employment with the first respondent ended in December 2003.

7    On 21 March 2011, the Tribunal made a decision by consent upon an application that the applicant’s normal weekly earnings (NWE) be calculated to include overtime of 9.25 hours per week. On 20 December 2016, the first respondent determined that it was liable to pay compensation to the applicant in respect of periods of incapacity from 27 August 2015 up to 22 February 2017 amounting to a total of $146,480.46. On 16 January 2017, the applicant sought reconsideration of the first respondent’s determination of 20 December 2016. On 10 August 2017, the first respondent affirmed its determination made on 20 December 2016. Later in 2017, the applicant made a further application before the Tribunal challenging the first respondent’s decision of 10 August 2017 to affirm the determination dated 20 December 2016 (the 2017 application). As part of those proceedings, the first respondent served two statements from Mr Considine dated 6 July and (incorrectly) 12 August 2018 (prepared in September 2018), respectively the first statement and the second statement. On 18 September 2018, the applicant withdrew his 2017 application.

8    One part of the applicant’s compensation entitlements was calculable by reference to his NWE (as had been recalculated in 2011, as referred to at [7] above). This included an amount referable to the overtime the applicant would have worked if he had remained in the employ of the first respondent.

9    On 23 September 2019, the first respondent made a determination (the reviewable decision), which was the subject of the Tribunal decision now on appeal. The first respondent recalculated the applicant’s NWE based on the average annual overtime hours worked by current employees of the first respondent who were considered to be comparable to the applicant. In effect, this decision – if correct – demonstrated that the applicant had been overpaid the sum of $99,397.62, for the period between 1 July 2015 and 18 September 2019 (the relevant period). The first respondent concluded that it was no longer correct to include 9.25 hours of weekly overtime in the applicant’s NWE. On p. 3 of the reviewable decision, the first respondent indicated that the wage records demonstrated that the average overtime hours worked by comparable employees (Newcastle Wireline team, Band 4 level) for the relevant period were:

10    On 22 October 2019, the applicant made an application for review of the reviewable decision before the Tribunal.

Pre-hearing processes

11    The respondent served a third statement from Mr Considine in advance of the Tribunal hearing. The apparent purpose of this evidence (and the two previous statements) was to permit a calculation of the average annual overtime hours (consistent with the reviewable decision) worked by employees comparable to the applicant.

12    The applicant “requested particulars” of the first and second statements of Mr Considine the year prior to the hearing. A response was provided. The sufficiency of the response appears to be a central complaint of the applicant.

13    Notably, with respect to the unusual request for “particulars” associated with statements of evidence: There is no right for a party to these kinds of proceedings to request particulars at all: The provision of particulars relates to pleadings – there were no pleadings. In any event, the request for particulars was made in respect of evidence – however, there is never an entitlement to request “particulars” of evidence; in the ordinary course evidence is challenged by objection, or in cross-examination, or by bringing forward competing evidence. However, I do accept that care must be taken not to adopt adversarial procedure given the non-adversarial, inquisitorial nature of procedure in the Tribunal: s 2A of the AAT Act. As observed by Flick J in Australian Postal Corporation v Hughes [2009] FCA 1057; 111 ALD 579 (at [47]):

…Even prior to the amendments to the 1975 Act which introduced ss 2A and 33(1AA), in Re Beigman and Secretary, Department of Social Security (1992) 29 ALD 332 the Tribunal, comprised of the then President, a Deputy President and a Member, observed (at [24]):

[24] Proceedings before this tribunal are not adversarial but are designed to enable the tribunal to reach the correct or preferable decision in the circumstances of the case. To this end the role of the parties is to assist the tribunal in reaching its decision. The tribunal expects departments and agencies involved in the review process to have an understanding of that role.

14    It was open to the applicant, at any time during Tribunal proceedings, to:

(a)    request that the matter be listed for a directions hearing at which time he would make an application seeking that the Tribunal exercise its powers under the AAT Act and direct the first respondent to provide information which is relevant to the issues in dispute and which will assist the Tribunal to make the correct or preferable decision: ss 33(1A) and 33(2A)(a) of the AAT Act; and/or

(b)    apply for a summons: s 40A(1) of the AAT Act.

15    The applicant did not require Mr Considine for cross-examination, a course which was available to him and to the extent that there was a change of position on the day of the Tribunal hearing (where the applicant (through his then counsel) wanted to ask Mr Considine some questions when he was no longer available), it was open to the applicant to seek an adjournment. As indicated by the transcript, a choice was made to proceed without cross-examination.

The conduct of the Tribunal hearing

16    The hearing was conducted on 7 May 2021. Documents were tendered, no oral evidence was adduced and oral submissions were made.

17    When the first respondent tendered the third statement from Mr Considine, the Tribunal asked if there was an objection. It is appropriate to set out the exchange between the Tribunal and the applicant’s (then) counsel, as to the way in which the matter would proceed:

[APPLICANT’S COUNSEL]: Yes, in the sense that it’s part of a more global objection to the evidence of Mr Considine that I take generally. That’s based upon – and I can articulate this further at a convenient point. It’s based upon particulars that we have sought previously and understand you’ve been provided with a bundle of material, Senior Member, with the request, the reply and then a subsequent request. So my submission will be that it’s patently unfair for the respondent to rely upon Mr Considine’s evidence at all in circumstances of the nature of replies or responses to those requests that we have made.

SENIOR MEMBER: All right, can we deal with it this way? That if the evidence is taken in, but I note your objection, it can be dealt with by way of submissions as to what I can do with that evidence and what way it should be attributed to it.

[APPLICANT’S COUNSEL]: I’d be content with that course, Senior Member, because the points that I would make about the deficiencies in the particulars, which flows into the effect that it gives on the evidence would really be almost the same in terms of the final submissions that I would make as to what the outcome should be. So I don’t have any difficulty with that, it seems to be probably a convenient course to avoid that repetition when you’re otherwise dealing with the matter on the papers as it were.

(Emphasis added.)

18    On appeal, the parties agreed that there was a typographical error in the bolded extract from the transcript above. The parties agree that the second sentence in the bolded extract should read:

That if the evidence is taken in, but I note your objection, it can be dealt with by way of submission as to what I can do with that evidence and what weight [not “way it”] should be attributed to it.

(Emphasis added.)

19    In the course of submissions, the applicant’s counsel elaborated upon the “objection” to Mr Considine’s evidence which will be considered further below.

Relevant legislative provision

20    Section 19 of the SRC Act, in accordance with s 8(10) (as applicable at the time of the reviewable decision), contains the framework by which the first respondent revoked the determination dated from 25 June 2015 to 4 July 2019 and substituted a re-determination amount for the period between 2 July 2015 to 18 September 2019. Section 8(10) of the SRC Act reads:

8 Normal weekly earnings

…

(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.

Primary decision

21    On 3 February 2022, the Tribunal made a decision setting aside the reviewable decision and remitting it to the first respondent with the direction that the applicant’s entitlements be recalculated having regard to the average weekly overtime hours worked by comparable employees from Telstra’s Newcastle Wireline team. The re-calculation was by way of a slight adjustment to the calculations that had arisen during the hearing. The effect was that the applicant had lost his application in substance and had been substantially overpaid.

22    Put simply, the question before the Tribunal was whether the applicant’s NWE payable to him during the relevant period, pursuant to s 19 of the SRC Act, should be reduced in accordance with ss 8(10)(b)(i) or (ii) of the SRC Act. The applicant’s counsel, before me, stated that s 8(10)(b)(i) was the relevant provision.

23    The Tribunal noted the applicant’s pre-injury work duties (at T[6]) and referred to each of Mr Considine’s outlines of evidence (at T[9]–[12]):

9.    In a statement dated 28 August 2018, the applicant agreed with Mr Considine that at the date of injury he was employed as a Communication Technician, Band 7. He stated that while he was employed by Telstra he was required to spend, on average, five to 10 hours a week as the Occupational Health and Safety (OHS) Officer for the Newcastle region. He said he was required to be on call 24 hours a day and was regularly called out for overtime due to his level of experience and expertise.

10.     In a second signed outline of evidence dated 12 September 2018, Mr Considine confirmed the list of duties prepared by Mr Williams was a list of duties that are a “standard minimum expectation for a Field Communications Technician at Telstra”. He agreed that some functions performed by the applicant would be considered to be work performed by a Band 7 employee but said that most of the work duties that the applicant performed at Telstra are those that are now performed by employees who work at a Band 4 level. Mr Considine said it was Telstra’s preference that weekend work and most overtime work was predominantly performed by external contractors. He said that an employee’s band level does not determine whether they get overtime and said that the availability of overtime in the Newcastle area is overtime that can be worked by Field Communications Technicians at Band 4 or equivalent. Some Field Communications Technicians also perform Health, Safety and Environment (HS&E) roles during normal business hours. There is a dedicated workforce that is employed by Telstra specifically in HS&E to perform the most significant work associated with Telstra’s HS&E responsibilities.

11.     Mr Considine provided a further outline of evidence dated 27 April 2021. Mr Considine indicated that Telstra’s business has changed significantly since 2003, even more so over the last five years due to the introduction of the NBN and evolving technologies. He said, that if there was any additional work in the wireline area, it was given to Tandem. Overtime work within the Newcastle wireline team was determined by fault volume not by an employee’s Band level, simply someone would be sent that could fix the fault efficiently. Mr Considine said that “as a general rule”, ordinary work tasks were not performed as overtime and that Telstra was actively continuing to reduce overtime and other labour force expenditure. As a result of the NBN rollout, Telstra's network responsibility had declined by over 90% and resulted in a continually reducing workload at proportionate levels for staff.

12.     Mr Considine also said that presently, Telstra’s OHS representatives attend one meeting per month and that these employees were communication technicians who had volunteered or been elected by their peers. He said all was done during ordinary work hours. Additionally, Telstra also has HS&E specialists who oversaw the OHS area and managed compliance. They were not communications technicians.

    (Emphasis in original.)

24    The Tribunal then considered the means by which s 8(10) of the SRC Act was applied in the re-determination of the applicant’s total NWE for the relevant period (from T[14]–[15] and T[17]–[18]):

14.    Sub-section 8(10) is designed to reduce the amount of the NWE in certain circumstances. As Perry J observed in Comcare v Simmons [2014] FCAFC 4; 220 FCR 102 at [71], the effect of sub-section 8(10) is to impose a cap upon the amount of pre-injury NWE of an employee which has been calculated under the preceding sub-sections of section 8. It does so by requiring a reduction to be made of NWE by the amount of any excess which is arrived at by applying either sub-paragraph (a) or (b).

15.    In this matter, determination of the amount of overtime to be included in the applicant’s NWE, and, therefore, the appropriate amount of the applicant’s total NWE in the relevant period should be done by applying the provisions in section 8(10)(b) of the SRC Act. Section 8(10)(b)(i) contemplates the notional continuation of the previous employment to identify likely earnings in the event the employment had been extended. The Tribunal must simply take the terms of employment applicable to the employee when injured and enquire as to likely earnings pursuant to those terms at the date of calculation.

…

17.     While the applicant contends that the employees identified by Mr Considine are not comparable and that Band 7 employees still existed at Telstra, this is not supported by the evidence. As is apparent from the evidence of Mr Considine, the functions and overtime requirements of the applicant’s work has changed significantly over time, largely due to outsourcing, the rollout of the NBN and the reduction in labour force expenditure.

18.    The underlying basis for the calculation of NWE in the determination dated 25 February 2010 was the inclusion of 9.25 hours of overtime per week which is not the average amount of overtime worked by employees comparable to the applicant for the relevant period. The provision of compensation operates week to week post incapacitation. Having regard to the weeks in the relevant period, the available evidence establishes that if the applicant had not been incapacitated, he would have suffered a reduction in income as a result of the reduction of available overtime work.

25    The Tribunal further noted the evidence produced by Mr Considine, which provided a list of the overtime hours worked by the comparable employees from the Newcastle Wireline team during the relevant period, and that these figures are not disputed by the parties (at T[20]–[22]):

20.     The amount of overtime that would have been available to the applicant if he had continued to be employed by the respondent is to be determined by having regard to the amount of overtime that has been worked by the applicant’s comparable employees in accordance with those identified by Mr Considine being those employed in the Newcastle Wireline Team and based on the average weekly overtime hours worked by those employees in the relevant period.

21.     In the outline of evidence of Mr Considine dated 6 July 2018, he provided a list of Newcastle Wireline Team employees comparable to the applicant. These employees have been included in the following calculation of average weekly overtime worked by Telstra employees which are comparable to the applicant for the relevant period (excluding employees who ceased their employment during the relevant period):

(a)    2.85 hours in the financial year ending 30 June 2016;

(b)    4.97 hours in the financial year ending 30 June 2017;

(c)    1.4 hours in the financial year ending 30 June 2018;

(d)    2.4 hours in the financial year ending 30 June 2019;

(e)    1.11 hours from 1 July 2019 to 18 September 2019.

22.    There does not appear to be any dispute with the calculation of the above figures.

The present appeal

26    By the applicant’s notice of appeal in this Court filed 4 March 2022, the applicant advanced six grounds of appeal, but as articulated by the applicant’s counsel at hearing and in written submissions, the question was whether the Senior Member erred in failing to exercise the Tribunal’s jurisdiction by failing to decide a material issue raised by the applicant, namely whether she could take into account, when reaching her decision, three statements tendered by the first respondent to which the applicant had taken objection.

27    The alleged failure to address the objection was said to constitute a constructive failure to exercise jurisdiction. It is further put by the applicant that the effect of the constructive failure to exercise jurisdiction was material – not because “the error could have effected the outcome of the case” but because “a different result might have been reached had no error of law been made”: see Bridges v Minister for Immigration and Multicultural Affairs [2001] FCA 1647; 114 FCR 456 at [10] (emphasis added).

Consideration

28    This Court’s jurisdiction is confined to a consideration of whether the Tribunal erred with respect to a question of law: s 44(1) of the AAT Act. I accept the submission of the first respondent that the error is not so confined as to have to constitute jurisdictional error. Nevertheless, the error must be on a question of law which in this case is a purported failure to determine a material issue. The applicant argued variously that it was a failure to determine whether to “admit” (or not admit), to “take in account” or to “consider” the evidence of Mr Considine.

29    The purported error is directed to the Tribunal’s procedure rather than the merits of the outcome. As correctly submitted by the first respondent, it would be apt to mislead if the Court were to consider too closely in this case whether the Tribunal was correct in its overall outcome or if the Tribunal was correct to accept Mr Considine’s evidence from an evidentiary as opposed to procedural perspective. For the reasons which follow, I do not accept that the Tribunal failed to determine this purported material issue.

30    A review of the transcript reveals that, consistent with the informal procedure adopted routinely by the Tribunal, by consent, the Tribunal admitted the evidence of Mr Considine and allowed the matter to proceed with that evidence before it by reference to any submissions the applicant wished to make as to “weight”. This is evident by reason of the following.

31    A review of the entire transcript reveals that the applicant’s (then) counsel, at the outset of the hearing, accepted, despite Mr Considine being unavailable for cross-examination, that he was “just going to have to deal with the matter on that basis”. The counsel thereafter raised what he described as a “global objection to the evidence” on unfairness grounds (given the absence of responses to particulars).

32    Consistent with this acceptance, the applicant’s counsel thereafter agreed to the informal procedure proposed by the Senior Member, as contained in the critical passage of the transcript, extracted at [17] above. A fair reading of the exchange is that the Tribunal proposed a course by stating “can we deal with it this way?” which was that “if the evidence is taken in”, meaning the evidence is admitted on the basis that the applicant’s counsel’s objection is noted, and submissions could be made as to its weight. I accept the first respondent’s submission that the phrase “taken in” is to be equated with more formal language of being admitted – that is, taken in and considered. This is particularly so given the Senior Member appears to have deployed the statutory language which gives the Tribunal power to “take evidence” on oath or affirmation: see ss 40(1)(a), 40(3) and 40(5) of the AAT Act. Furthermore, whilst the Senior Member used a compound phrase describing two things – what she could do with it and what weight should be attributed to it – I accept the first respondent’s submission that, in context, it can only be read as admitting the evidence, taking it into account and determining what weight should be attributed to it. I do not accept the applicant’s submission that it constituted a provisional admission for which there was then an obligation on the Tribunal to later determine and give reasons for deciding whether to admit it and take it into account.

33    My view is supported by the Tribunal’s approach being in conformity with the Tribunal’s statutory purpose to act in a fair, just, economical, informal and quick way, the statutory requirement for its proceedings to be conducted with as little formality and technicality and as much expedition as possible and where the Tribunal is not bound by the rules of evidence: ss 2A(b), 33(1)(b) and 33(1)(c) of the AAT Act.

34    Furthermore, the Tribunal acted in a manner consistent with this interpretation, by thereafter marking the evidence and giving it exhibit numbers and, by contrast, it did not mark it for identification, did not require that the applicant’s objection be dealt with separately first and prior to the substantive submissions and did not, at any stage, give an indication that the “objection” would be deferred to be determined with reasons in the decision. I do not accept in these circumstances the argument of the applicant, that the agreement as to procedure, involved a “provisional admission”.

35    In response to the Tribunal’s proposed course, the applicant’s counsel stated “I’d be content with that course”. He justified this acceptance by the foreshadowed comity between his submissions as to the effect of the deficiencies in the particulars “on the evidence” and his final submissions as to the outcome. This immediate articulation as to what his submissions would comprise, reveals that the nature of the objection was as to what weight could be placed on the evidence, rather than its admissibility. Questions concerning the admissibility of evidence must be distinguished from those relating to weight. The former is a matter of law for the court, the latter is a question of fact.

36    This articulation supports an interpretation that the “objection” was not one in a true sense as to admissibility under evidentiary principles, but rather what weight should be given to the evidence.

37    A consideration of the applicant’s submissions thereafter confirm this view. Whilst the applicant identified five sections of the Tribunal transcript in his submissions as purportedly comprising “objections”, the applicant’s senior counsel correctly conceded that at least two of those parts constituted submissions as to weight. A review of each of these portions of the transcript in the context of the transcript as a whole, reveal:

(a)    there was never any claim of inadmissibility by reference to evidentiary principles even on general terms, let alone by reference to the Evidence Act 1995 (Cth) (which in any event does not apply in the Tribunal: s 33(1)(c) of the AAT Act);

(b)    the submission was, in part, at a high level of generality, For example, the first transcript extract, relied upon in the applicant’s submissions, referring to Mr Considine’s evidence was that it was “so lacking as to not in any way able [sic] to support the decision that it has been made”; and

(c)    to the extent that there was an attack on Mr Considine’s evidence, it was on the basis of the corresponding absence of adequate responses to particulars giving rise to “patent unfairness” or such that the first respondent could not meet its onus . For example, the second and fifth transcript references, relied upon by the applicant, comprise a submission by the applicant’s counsel as to the absence of particulars and given the Tribunal was the repository of all information, the consequent “patent unfairness” of the Tribunal to rely on Mr Considine’s evidence. This, and the subsequent passage, appears to be the height of the purported “objection” articulated by the applicant. The third reference in the applicant’s submissions again comprises a general submission, in essence that the evidence of Mr Considine would not “allow the [first] respondent to meet its practical onus”. Clearly, each of these portions of the transcript reveal submissions which do not comprise an objection but go to what weight is afforded to the evidence.

38    In this regard, to the extent that there is a complaint regarding the inter-party request and answer of particulars (the foundation for the unfairness submission), this was done outside any procedural process sanctioned by the Tribunal and where procedural steps were available to the applicant which he did not take, as identified at [14] above. The Court does have some concern about there being a complaint regarding an alleged failure on the part of the Tribunal to determine the objection, where the applicant did not avail himself of the Tribunal’s processes to obtain information and did not seek to cross-examine the witness.

39    I note that at the end of the second reference, the applicant’s counsel stated:

No consideration of any of those issues and that’s why I was going to make the objection and I do make the objection to Mr Considine’s evidence. It is patently unfair in the circumstances for the respondent to reply upon all of this evidence from Mr Considine to found their decision and to hold back all of these particulars, all of this information that has been sought. So as I made clear earlier this morning, Senior Member if you’re against me in relation to the objection to the material and the material is admitted I rely upon all of the submissions that I’m making as to why the respondent can’t make out its practical onus.

40    There are a number of ways to read this passage. On one view, the applicant’s counsel is acknowledging that the Senior Member had already made the decision to admit the evidence. On the other hand, in isolation, it appears to suggest that it was the (mis)understanding of the applicant’s counsel that there was an extant objection for which no decision had been made to admit the material.

41    It is my view, despite this submission, that it is clear, from a consideration of the entirety of the transcript and the reasons provided above, that the evidence had been admitted by the Tribunal subject to submissions as to weight. The fact of any misunderstanding on the part of the applicant’s (then) counsel (if there was one) as to the procedure which had been adopted does not constitute any error of law on the part of the Tribunal in the discharge of its functions.

42    By reason of so finding, there was no failure to decide whether to “admit” the evidence and no requirement for the Tribunal to make any decision (or justify by reasons) as to the course which had been taken.

43    When evidence is admitted subject to weight, there is no obligation imposed upon the Tribunal to address the weight question expressly. It does so implicitly by its reference to the evidence it relies upon to form the bases for its findings on material questions of fact, consistent with its obligations under s 43(2B) of the AAT Act. At the Tribunal hearing, the applicant’s counsel rightly conceded that weight issues do not give rise to questions of law: A question of weight to be attributed to evidence cannot give rise to an error of law and is fundamentally within the province of the Tribunal.

44    Having so decided, there is no need for the Court to consider the various submissions and/or “objections” made by the applicant: This would constitute a descent into merits review.

45    However, even if there had been such an objection made and a provisional tender had been accepted by the Tribunal, there remained admissible evidence upon which the Tribunal could rely. I accept the submission of the first respondent that, even if there was any failure to consider the admissibility of the evidence, and the objection was taken, it could not lead to any different outcome because it is inevitable that it would have been received subject to weight in the manner in which the Tribunal did receive it. This is because Mr Considine’s evidence was unquestionably relevant to a fact in issue: Mr Considine, having worked in various front line management roles since 2010 with respect to Field Communications Technicians, gave evidence as to the overtime hours worked by employees performing comparable work to that of the applicant between June 2015 and 2016 and 42 weeks for the financial year ending June 2018.

Conclusion

46    For these reasons, I dismiss the appeal.

Associate:

Dated:    4 November 2022