Freeman v Fleetmaster Services Pty Ltd

INTRODUCTION 1 This is an appeal from a decision of the Administrative Appeals Tribunal ("Tribunal") (Freeman and Fleetmaster Services Pty Ltd [2013] AATA 38) affirming a reviewable decision of the respondent that the applicant had failed, without reasonable excuse, to undertake a determined rehabilitation program provided for him under s 37 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("Act") and, in consequence, the suspension of his rights to compensation under the Act as provided for in s 37(7).

BACKGROUND 2 By way of background, s 37(1) of the Act permits a rehabilitation authority (the respondent is a rehabilitation authority) to make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program. A rehabilitation authority that makes a determination under s 37 is obliged by s 38(1) of the Act to serve a notice on the employee concerned setting out the terms of the determination and the reasons for it as well as a statement to the effect that an employee dissatisfied with the determination may request Comcare to review the determination. Additionally, and by operation of s 62(2) of the Act, the employee concerned, described as "the claimant" in the sub-section, may, if dissatisfied with the determination, request reconsideration of it. A decision on reconsideration is a "reviewable decision" (s 60 of the Act), that is, one capable of being reviewed in the Tribunal (s 64 of the Act). The applicant did not exercise either of these options; instead he declined to participate in the program. In such circumstances, s 37(7) of the Act becomes relevant. It provides: Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program. 3 In Australian Postal Corporation v Forgie (2003) 130 FCR 279, a Full Court of this Court concluded (at [86]) that s 37(7) of the Act was a provision which requires a "determination", within the meaning of s 60(1), to be made and that an employee can also request a reconsideration of such a "determination" under s 62 of the Act. That is what the applicant did in this case. 4 In the Tribunal, the relevant issue/question was identified by the Tribunal at Reasons ("R") [24] in the following way: The nature of the task that I am obliged to undertake in the present proceedings has been authoritatively determined by the decision of the Full Court in Pascoe v Australian Postal Corporation [[2004] FCAFC 4, (2004) 77 ALD 464 (Hill, Marshall & Finklestein JJ)]. In that case the Tribunal was held not to have considered whether the applicant had a reasonable excuse for his failure to undertake the rehabilitation program but had instead considered whether the program was an appropriate one for him. It is not now open to Mr Freeman to challenge the appropriateness of the rehabilitation program provided by Fleetmaster (and he does not seek to do so). Pascoe decided that [at [14]], …when considering whether an employee has a reasonable excuse for failing to undertake a rehabilitation program, the program in question is to be taken to be appropriate for the employee. Their Honours subsequently said [at [21]] in relation to the Tribunal's decision, In our view, the AAT, standing in the shoes of Australia Post, did not evaluate the reasonableness of any excuse presented to explain Mr Pascoe's failure to undertake the program devised for him, rather it focused on the reasonableness of the program itself. It was not its role to do so. The AAT should have taken the program as having been provided to the employee without challenge following a determination, and assessed the reasonableness of Mr Pascoe's excuse, if he had one, for failing to undertake that particular program. 5 The Tribunal then proceeded to consider whether the applicant had a reasonable excuse for his failure or refusal to participate in the rehabilitation program and concluded that he did not. Under this head, the Tribunal made the following observations and findings at R [25] - [33] in respect of the events of 15 November 2010, when the applicant attended the respondent's Grafton depot for work: 25. It is now necessary to consider in greater detail the events of 15 November 2010. Those events were the subject of evidence from Mr Freeman, Mr Michael Durbin, a mechanic at the Fleetmaster Grafton depot, and Mr John Geary, the manager of that depot and the person responsible for supervising Mr Freeman. I should say immediately that I see no reason to doubt the accuracy and reliability of the evidence of Mr Durbin and Mr Geary. They both impressed me as being reliable historians and their evidence was supported by logic and common sense. I lack similar confidence in the evidence of Mr Freeman for reasons that will emerge. 26. There is no doubt that Mr Freeman was given duties to perform in and around the depot on his return to work on 15 November 2010. Mr Freeman's case is that the duties he was given to perform, … were unsuitable as they either required use of both his hands or were duties that were unsuitable due to his level of training and experience. Consequently, so Mr Freeman says, he was unable to perform those duties satisfactorily and suffered an exacerbation of the pain in his arm requiring him to cease work. That, he says, provided him with a reasonable excuse for his failure or refusal to participate in the rehabilitation program that Fleetmaster had determined he should undertake. 27. As will appear, I do not accept that Mr Freeman had a reasonable excuse. Nor do I accept that the duties he was required to perform caused an exacerbation of his pain. The contemporaneous documents tell against acceptance of such a proposition. I consider instead that the likelihood is that Mr Freeman was simply not interested in undertaking tasks allocated to him. I need not decide whether, as Mr Clark, counsel for Fleetmaster, suggested, he regarded the tasks as being beneath him. 28. There is agreement that Mr Freeman was asked to undertake two tasks, data input and checking tyre pressures. Mr Freeman says that, additionally, he was asked to undertake a further task involving the fixing of curtains on trailers. As to that latter task, both Mr Durbin and Mr Geary deny that he was asked to perform any task involving the fixing of curtains. I accept their evidence and reject that of Mr Freeman. 29. The data input task appears to have been the first one which Mr Freeman was asked to undertake. It involved him in [sic] using a computer and keyboard to input drivers' logs onto the computer. Mr Geary says that he asked Mr Freeman to undertake the task but that he refused, saying that he did not know how to do it. Mr Geary offered to show him what needed to be done, which was not complicated and which could be explained in 10 to 15 minutes, but Mr Freeman simply refused to even participate in that. 30. It was, in my view, unreasonable on the part of Mr Freeman to refuse to participate in this task. It is not to the point that he lacked computer skills, he refused even to participate in any explanation of the task. The evidence of Mr Geary satisfies me that the task was uncomplicated and needed no particular skill. What was required could have been readily conveyed to Mr Freeman had he wished to participate; he chose, unreasonably, not to do so. It was not open to Mr Freeman to simply refuse to receive training in a simple task. 31. The task of checking tyre pressures was quite basic. It involved the use of the gauge, capable of being used with one hand, to read tyre pressures and, where necessary, the use of a hose to inflate the tyre, again a task capable of being performed with one hand. It may well have been the case that Mr Freeman was required to use his right, injured, hand to perform these tasks but I do not accept that he was ever required to use that hand for weight-bearing tasks. As the medical evidence demonstrated, it was in Mr Freeman's interests to make some use of his injured hand; it was not as if the limb was hanging loosely by his side incapable of any use whatsoever. 32. Mr Durbin gained the impression from Mr Freeman that "he just did not want to be there". I see no reason to doubt that observation. It is consistent with the tone of subsequent correspondence from Mr Freeman to Fleetmaster, referred to below. 33. After a relatively short period of time Mr Freeman left the depot and went home. As I have said, he did not ever return.