Mitsubishi Motors Australia Ltd v Lupul [2004] SAWCT 130

'Mr Martin: this reflects our agreement that we did add to the statement of issues

(a) Did the applicant suffer from a compensable illness or disorder of the mind arising out of employment and in particular, from the transfer or attempted transfer of the applicant in July 2000?

(b) Did any such disability arise from any of the disqualifying events in s 30A(b)? and,

(c) What incapacity has resulted from any such compensable injury?'"

4 The worker's added s 30A claim, described by the learned Deputy President in his reasons for decision as "the most important part of the case", was determined in the worker's favour. The learned Deputy President found that the worker was totally incapacitated for work on account of his tinnitus and also on account of an illness or disorder of the mind for which his employment was "the substantial cause".

5 The learned Deputy President rejected the appellant's arguments that the worker had failed to show that the disqualifying events set out in s 30A(b) were not applicable. The learned Deputy President reviewed the events and conversations leading up to the worker's acceptance of the voluntary redundancy package and concluded that the appellant's method of implementing its restructuring, in so far as it applied to and impacted on the worker, was unreasonable. It was, he said, "even more unreasonable when seen in the context of the applicant's physical symptoms" (par 152 decision). He therefore concluded that s 30A(b) did not protect the appellant (par 154 decision).

6 The learned Deputy President's determinations of lump sum compensation entitlement pursuant to s 43 of the Workers Rehabilitation and Compensation Act 1986 ("the Act") are not directly challenged by the appellant.

The appeal

7 The appellant raises a number of grounds of appeal which can be categorized under the following headings:-

1. Findings of fact that the appellant says were not open on any view of the evidence or, alternatively, were inferences not capable of being drawn from the evidence.

2. The learned Deputy President's alleged failure to give reasons.

3. The learned Deputy President's alleged misdirection of himself as to the requisite test of reasonableness for the purposes of s 30A(b).

4. The learned Deputy President's alleged failure to link his finding that the appellant's method of implementing the worker's redeployment was unreasonable and the worker's diagnosed disability.

5. The learned Deputy President's alleged misdirection of himself as to the effect in law of the worker's acceptance of the redundancy package on issues of breach of mutuality and estoppel.

6. The learned Deputy President's alleged misdirection of himself as to the law requiring that the worker's benefits under the redundancy package be refunded or factored into any award of compensation.

Findings and inferences of fact

8 Section 86(1) of the Act limits appeals to the Full Bench of the Tribunal to questions of law. The Full Bench considered the limitations that this imposes on its appellate role in SA Police Department v Barber [2001] SAWCT 100, the majority judgment of Jennings PJ and Gilchrist DPJ concluding at p 18:-

"64 In our view the history of the relevant legislation, the dispute resolution process that parliament has seen fit to create, and the terms of the Act itself, indicate that parliament envisaged that the trial presidential member alone is charged with the duty of finding the facts and applying the law to the facts as found. We think parliament intended for the Full Bench's role to be limited to determining whether there has been a misunderstanding of legal principle, or an error as to the proper construction of the Act or of some other legislative enactment. If none of these matters are involved, we think that parliament's intention is for the Full Bench to let the decision made below stand. In other words, if there was some evidence to support the findings made or some basis to conclude that the findings did or did not fall within the relevant statutory provision, that has not been shown to have been misunderstood by the trial presidential member, the Full Bench has no right to interfere with the result.

65 By giving pre-eminence to the findings and conclusions reached at first instance, parliament is making it clear to the parties that if they take a matter to trial, absent an error of law, the decision of the presidential member will be final and that this is a factor that will have to be taken into account in deciding whether or not to make or accept or reject an offer of compromise."

9 Grievances about findings of fact are beyond the Full Bench's jurisdiction. The Full Bench, whose jurisdiction is specific and limited by statute, has no mandate to correct errors of fact. An error of fact finding cannot be elevated to an error of law, if based on evidence open to the trial judge, even if an appeal court was of the view that the decision on the facts was illogical, perverse or completely unreasonable: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. In Azzopardi Glass JA, with whom Samuels JA agreed, said at 155:-

"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex part White [1966] HCA 69; (1966) 116 CLR 644 at 654."

10 The appellant's complaints set forth in par 1 of the grounds for appeal are complaints about the learned Deputy President's reasoning in making his findings of fact and credit. Even if that reasoning was demonstrably unsound, this could not amount to an error of law. There was evidence before the learned Deputy President to support the findings he made and the Full Bench has no role in determining whether his findings were right or wrong or reasonably open on the evidence or otherwise. No question of law arises.

Failure to give reasons

11 The proper administration of justice requires that reasons be given and be given in a form that will enable the losing party to understand properly the grounds upon which the case was lost and that will not frustrate the losing party's right of appeal: Public Service Board of NSW v Osmona (1986) 159 CLR at 666 - 7.

12 Gray J, in Papps v Police [2000] SASC 183; (2000) 77 SASR 210 at 218 - 9, summarised the obligation to give reasons as follows:-

"34 The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be 'coherent, intelligible and comprehensive'. But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud:

'The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.'

35 In my view, the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed."

13 Whilst appeals to the Full Bench are limited to questions of law, this does not abrogate from the responsibility to ensure that the reasons meet the need for justice to be seen to be done: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281 per McHugh JA:-

"In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough."

14 These principles have been applied by various Full Benches of this Tribunal: WorkCover Corporation/Royal & Sun Alliance Workers Compensation (SA) Ltd (Adelaide Casino Pty Ltd) v Hunter [2003] SAWCT 63; Lavers v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (RW Miller and Co Pty Ltd) [2004] SAWCT 44; WorkCover Corporation/Vero Workers Compensation (SA) Ltd (AL Akhurst) v Kalb [2004] SAWCT 61 .

15 Mr Crawley submitted that the learned Deputy President failed to provide reasons for his findings adequate for the parties to be satisfied that justice had been done. His outline of submissions put it thus:-

"2.1 In light of the errors in findings of fact enumerated in par 1 hereof, the learned Deputy President erred in law in failing to provide reasons for the decision which were adequate for the parties to be satisfied that justice had been done.

2.2 The learned Deputy President erred in law in finding the method of implementation of the restructure was unreasonable without providing adequate reasons for such finding (par 147 - 152)".

16 The obligation on the trial judge to provide adequate reasons for his decision ought not be used as simply a backdoor means of enabling something to be done which the Act does not permit, that is, for the Full Bench to review findings of fact that an appellant seeks to have reversed or set aside.

17 The learned Deputy President accepted the worker as a truthful witness and found that his evidence was corroborated by his contemporaneous records which he found to be accurate and genuine. He preferred the worker's account of relevant events and conversations to the accounts given by the respondent's witnesses and he gave his reasons for this.

18 In relation to the restructuring, he specifically found that the worker's attempts to raise with the company doctor his 'legitimate concerns' about his physical capacity to do the new job he had been given had been ignored or subverted (par 147 decision), that his 'positive complaint' of a groin injury was ignored (par 148 decision), that his 'request for reconsideration of his role in the new structure was at best ignored' (par 149 decision) and that this request 'coincided with his manager, Edwards suggesting that the way out of the dilemma was to apply for a voluntary redundancy' (par 149 decision). By way of summarising his findings, the learned Deputy President said:-

"150 In other words nothing was done to accommodate let alone address the applicant's legitimate concerns about his status and health.

151 The executives concerned, such as Edwards, were simply too busy and preoccupied, and focused on driving the reorganisation.

152 I find the events of Thursday 27 June, Monday 3, Tuesday 4 and Wednesday 5 July combine to demonstrate that whatever was done - however good and necessary in itself - the method of implementation was unreasonable. It becomes even more unreasonable when seen in the context of the applicant's physical symptoms already detailed.

153 It is no answer for Messrs Edwards, Wee, and Mavris to say they did not know the applicant was unwell. They did nothing to find out."

19 In relation to the medical evidence, the learned Deputy President canvassed this and where there were divergent views he stated his reasons for preferring one view over another.

20 There was evidence for all of these findings. These were matters exclusively within the province of the learned Deputy President. His findings and reasoning are set out in a coherent manner and it is readily apparent how he came to the conclusions that he did.

The learned Deputy President's alleged misdirection of himself

21 Mr Crawley submitted that the learned Deputy President had wrongly viewed the actions of the appellant from the subjective perspective of the worker with his particular personality and sensitivities (it being suggested that he was an obsessive/compulsive person, resistant to change), and thus had wrongly concluded that the method of implementation of its restructuring as it affected the worker had been unreasonable. He submitted that the appellant's actions should have been judged against the perspective of 'the ordinary worker'. He did not attempt to define the characteristics of an ordinary worker.

22 The learned Deputy President's approach to this issue is made evident from pars 113 and 114 of his decision:-

"113 It is obvious that what is reasonable must be seen in the context of all of the circumstances. This includes the financial imperatives facing MMAL, the need to shed employees - the need to restructure - the time constraints imposed upon Adelaide management by Japan - the fact that the plant had to be kept operational while the total restructure was put in place.

114 Reasonable must also be considered in the context of an individual employee - his social and employment history, his age, personality and legitimate expectations. In other words in deciding whether an act is prima face (sic) reasonable, the manner of how that act impacts upon an individual employee must be examined. It is not the collective 'worker' who is disabled - it is the individual who claims compensation."

23 The learned Deputy President then noted that "the proposition that a restructure at MMAL was unreasonable in itself was not advanced by Mr Martin".

24 We doubt that it can be said that the learned Deputy President viewed the appellant's actions from the perspective of an obsessive/compulsive worker, or that he saw this description of the worker as being of any significance. In par 118 of his decision, he noted:-

"118 The applicant is of Polish origin. He came from a family with a management background. MMAL had employed him since 1985. He had progressed from an Award worker to management ranks. He held a relatively important position in the workforce. He was 55 years old. He came to Australia as a refugee. He undoubtably had a physical disability in his left arm and shoulder that precluded him from any work that had much of a physical aspect to it. His personality was described as 'obsessive/compulsive'. That may mean nothing more than that he was anxious to succeed, coming from a non Australian background and was driven to proving himself as a matter of self protection, if nothing else."

25 It is apparent, however, that the learned Deputy President did see the worker's physical disabilities, as opposed to any description of his personality, as being relevant. In pars 147 - 153 inclusive he detailed the reasons for his finding that the appellant's method of implementation of the worker's redeployment was unreasonable, highlighting the appellant's failure to address the worker's legitimate concerns about his physical capacity to do the job being asked of him.

26 In any event, we think the learned Deputy President's description of how reasonable action in s 30A is to be assessed, in pars 113 and 114 of his decision, was fair and accurate in law, and that in particular he was right in indicating that reasonable action is to be considered having regard to the impact of the employer's actions on the particular individual concerned, and not on some abstract 'ordinary' worker. The actions of the employer are to be measured against an objective reasonable standard, but the legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his predispositions and susceptibilities, whatever they may be: per Mason JA as he then was, in Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29 at 44, whose judgment was upheld by the High Court (1973) 47 ALJR 236.

The causation link

27 Section 30A provides that an illness or disorder of the mind will only be compensable if the employment is shown to be a substantial cause of the disability and if the disability does not arise wholly or predominantly from any of the precluding events described in s 30A(b). The onus is upon the worker to establish all of the matters in pars (a) and (b) of s 30A: SA Mental Health Services Inc v Murgush unreported Full Supreme Court 8 September 1995 judgment number S5246.

28 The learned Deputy President's findings that the worker did have an illness or disorder of the mind and that his employment was a substantial cause of this disability (par 108 decision) were not challenged on appeal.

29 It was the appellant's case that if the worker did have an employment related illness or disorder of the mind, ie if Dr Schembri's evidence was preferred to that of Dr Cotton, then his disability was caused by the appellant's reasonable actions taken in a reasonable manner in transferring or attempting to transfer him in July 2000: par 90 decision; tr 546 - 7.

30 The learned Deputy President preferred the evidence of Dr Schembri over that of Dr Cotton and he gave his reasons for doing this.

31 Dr Schembri had first seen the worker in July 2003 on referral from the worker's general practitioner, Dr Karpinski. It was Dr Schembri's opinion that the worker was then incapacitated for working at Mitsubishi because of a mental condition which in his report of 4 November 2003 Dr Schembri described as 'an adjustment disorder with an anxious mood'. Dr Schembri attributed the worker's condition to "injuries that he suffered in the course of his work in the past and the series of events that happened around the middle of 2000 as discussed in the main body of the report".

32 As to the events occurring around the middle of 2000, Dr Schembri's report recorded these as follows:-

"Mr Lupul stated that towards the end of June 2000 he was called into the office to be advised that his application for a position had been unsuccessful. He stated that he was then notified that there was some concern about the quality of his work. Mr Lupul stated that he pointed out that he had had two individual pay rises over the preceding twelve months, which suggested otherwise. He stated that he was advised that if he had difficulty with the assessment, he could apply for a separation package.

Mr Lupul commented that a couple of months later there was instituted a process of restructuring. He did not apply for a voluntary separation package. He stated that he was called into the office around July of 2000 and advised that he had been made a manufacturing engineer and was to return to metrology. He stated that he was handed a copy of his new job description. He stated that he felt very concerned about the move. He understood that his new duties involved measurement of panels and lifting. He was concerned on account of his past history of a left inguinal hernia and a shoulder injury. The patient felt trapped in a situation where he had to do work that he considered was beyond his ability or risk losing his job.

Mr Lupul told me that he sought a consultation with the company doctor but apparently was unable to see the doctor as he did not have a referral. He made an appointment to consult with his family practitioner for later that afternoon but in the meantime he felt he had no choice but to attempt his new duties. He pointed out that it was physical and heavy work, explaining that he had to separate stacks of thirty metal pressings and check each one of them individually. The work involved repeated bending and lifting. In the course of his work he felt a tearing sensation in the left inguinal area.

Mr Lupul proceeded to consult with his family doctor that afternoon. He was referred to the company doctor for the following day. The doctor advised Mr Lupul that he will be discussing matters with his immediate boss. Mr Lupul stated however that he was returned to his duties. He was never made aware of what discussions took place between the doctor and his boss. He felt very alarmed and feared that he had already injured himself. He felt unable to cope and, at that point in time, he sought to express interest in a separation package. He made the point that it was not really what he wanted to do but he felt he had on (sic) option. He expressed the view that his employer was attempting to put pressure on him in order to get rid of him.

Mr Lupul further commented that he requested a meeting to discuss his grievances before he departed but apparently this was refused. He stated that he was called into the Human Resources department and advised that he would be leaving the following day with no addressing of his grievances.

Mr Lupul stated that he had become very anxious and apprehensive by all these above events, beginning to feel threatened it would seem, from the time that he was required to do work that he felt was beyond his ability on account of his past injuries. He recalled that he was hardly sleeping at all at night. He was conscious of a lump in the throat and he had difficulty breathing while he also became tremulous. He was suffering from epigastric discomfort. He felt dizzy and he became forgetful. He was troubled by a sense of pressure in the forehead and blurring of vision. He recalled that he used to lose track of the conversation when interacting socially. He also came to see very little hope for his future and to entertain death wishes and some suicidal ideation.

Mr Lupul described that time as 'a dramatic period of my life' one in which he felt he was 'losing everything'. He recalled that on the 22nd July 2000, he was lying in bed at night, visualising all the traumas he had been through over the preceding weeks. He stated that he became aware of a ringing in his ear. He has been investigated for his tinnitus by an ENT surgeon. He has not improved and continues to suffer difficulty understanding speech. Masking had been suggested to him but it did not help and left him feeling somewhat agitated."

33 Dr Schembri said that the worker's account of these past events suggested that he was "quite agitated at the time he decided to ask for a retrenchment package. In fact he only did so because he felt he had no option, fearing that he would injure himself further if he continued to work for Mitsubishi and seeing no other way out".

34 The parties joined issue on the reasonableness, or otherwise, of the appellant's actions/responses in connection with these events in and around July 2000. No other disqualifying event within s 30A(b) was contended by the appellant, or suggested on the evidence. Considerable time in the hearing, and decision, went into examining every aspect of the meetings between the worker and various representatives of the appellant in late June and early July 2000. The learned Deputy President found that the appellant's actions/responses had been unreasonable in all the circumstances.

35 Having found that the worker had suffered an illness or disorder of the mind, that his employment had been a substantial cause of this disability and that the appellant's method of implementing the failed transfer was unreasonable, the requirements of the Act were satisfied. The worker had fulfilled the onus that s 30A put upon him to establish all of the matters in sub paragraphs (a) and (b).

Breach of mutuality and estoppel

36 Mr Crawley submitted that the learned Deputy President misdirected himself as to the effect in law of the worker accepting the redundancy package. He submitted that the worker had, in accepting the package, breached mutuality and had thereby lost any entitlement to weekly payments. The circumstances were, he said, in principle no different to those in General Motors - Holdens Ltd v D'Andrea (1985) 122 LSJS 301 and the learned Deputy President should have adopted the same reasoning as had the Full Supreme Court in that matter.

37 Mr Crawley submitted that application of the legal principles in D'Andrea would have led to findings that the worker was estopped from asserting that he had not breached mutuality, and estopped also from seeking to restore mutuality.

38 Mr Crawley submitted that it was of no consequence that the worker was found to be totally incapacitated for work, and that the learned Deputy President had erred in law in regarding this fact as precluding further consideration of the issue of breach of mutuality.

39 Mr Martin submitted that where, as here, a worker is found to be totally incapacitated for work, there is no room for application of the concept of breach of mutuality. He cited the decision of Deputy President Acting Judge (as he then was) Gilchrist in Krstic v WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Super Tooling Pty Ltd) JD 40/1998 as authority for this proposition, namely, that the concept of breach of mutuality did not arise where the worker was at all material times totally incapacitated for work.

40 D'Andrea was decided under the Workmen's Compensation Act 1971. S 67 of that Act provided:-

"67. For the purposes of determining the amount of weekly payments provided for by section 51, partial incapacity for work shall be treated as total incapacity for work except -

(a) during any period in respect of which the employer proves that work for which the worker was fit was made available to the worker by the employer;

(b) during any period in respect of which the employer proves -

(i) that it was not reasonably practicable for the employer to make available to the worker work for which the worker was fit;

(ii) that such work was reasonably available to the worker elsewhere."

41 The worker had suffered back injuries in the course of his employment which led to various absences from work. The injuries were compensable. He had remained partially incapacitated and the employer provided light duties. The worker then decided to accept an offer by the employer to its employees generally of early retirement, with a special retirement allowance. As a result, the worker resigned and received $13,012 from the respondent, including $5279 superannuation benefits and $4446 retirement benefits. He tried to get other work but was unsuccessful and went on an invalid pension. Two and a half years after his retirement he lodged a claim for weekly payments. He notified his former employer that he was ready, willing and able to undertake whatever suitable work the employer might offer him.

42 On appeal, the Full Supreme Court held that s 67 could have no application. By his acceptance of early retirement in return for a substantial financial benefit, the worker had removed himself from the employer's workforce and had intimated that he was no longer available for work. In those circumstances, it was held that s 67 could not operate to convert the worker's partial incapacity into notional total incapacity. The court further held that the worker was estopped by his conduct from asserting that he was available for work.

43 D'Andrea is immediately distinguishable from the matter at hand by reason of the fact that it was decided under different legislation, the fact that the worker there was only partially incapacitated for work, and the fact that the worker there was, by choosing to retire and accept the benefits of the employer's early retirement scheme, found to have impliedly indicated that he was no longer available for work.

44 Later decisions applied the principle of mutuality to s 35(2) of the current Act, although as noted by King CJ in WorkCover Corporation (Plas-tec Pty Ltd) v Grigor [1994] SASC 4450; (1994) 62 SASR 283, the principle could not be applied in precisely the same way as it did under the previous legislation given that the pre-condition for the deeming of partial incapacity to be treated as total incapacity in s 35(2) did not, unlike the earlier s 67, have an aspect that was specific to the worker's employer.

45 In Grigor a partially incapacitated worker, who had been coping with modified light duties notwithstanding concerns that his compensable back disability might be aggravated, resigned in order to commence a TAFE course in hotel catering. After the worker resigned, the employer engaged another person to perform the duties the worker had done in his partially incapacitated state. For his part, the worker worked for a few months in a restaurant before that work came to an end. He sought other employment but was unable to find any.

46 The worker then wrote to the employer seeking employment within the physical limitations imposed by his disability. A week or so later he followed up his letter with a telephone call to the employer seeking suitable employment. The employer did not offer the worker any suitable work because it said there was no position available for him.

47 The Corporation rejected the worker's claim for weekly payments on the ground that he had "breached mutuality by resigning from employment which was reasonably available, suitable and for which he was certified fit to perform". By resigning, it was contended, the worker had indicated that he was not thereafter ready, willing and able to undertake the suitable work that the employer had made available to him.

48 A Review Officer set aside the Corporation's decision and determined that the worker was entitled to weekly payments. The Corporation's appeals to both the Workers Compensation Tribunal and to the Full Bench of the Supreme Court were dismissed.

49 In the Supreme Court, King CJ, with whom Bollen and Mullighan JJ agreed, said:-

"The mutuality required by s.35(2) is therefore a readiness and willingness to perform work which is reasonably available and is not necessarily negated by the worker's unavailability for work provided by the employer in whose employment the disability occurred. Although it may not be of significance in the decision of the present appeal, certain expressions used in the reasons of the Tribunal and in argument before us make it important to state that the question is not whether the resignation of the worker precludes him from asserting that the previous employer has not made suitable work available to him as in GMH v D'Andrea supra, which was decided under the previous Act, but whether it precludes him from asserting that work for which he is fit is not reasonably available to him generally whether from his former employer or from some other source.

I cannot find anything in the facts of the present case which would justify such a conclusion. There is no question of a permanent retirement from the work force as in D'Andrea. The worker's resignation was for the purpose of pursuing other employment which he considered to be more suited to his physical condition. That employment is no longer available to him. There is no evidence of any refusal or unwillingness to accept employment for which he is fit. No attempt has been made to suggest that suitable work is available to him. It cannot be that a worker's decision to change his employment deprives him of the benefit of s.35(2)."

50 Consideration of the principles of mutuality and estoppel in those and other compensation cases was driven by the notion that a statutory provision deeming a worker's partial incapacity to be total should be applied fairly so as to ensure that unreasonable obligations were not imposed on employers when it would be patently unjust for that to occur. It would be unjust, for example, if a worker could be advantaged under the Act by being deemed totally incapacitated for work when he was unwilling to perform available work within his capacity.

51 The learned Deputy President found that the worker was totally incapacitated for work from the time he left the appellant's employ in July 2000. That was a finding of fact. He found that the worker had applied for a redundancy package "because it was represented to him as part of a 'take it or leave it' exercise. The only alternative to the manufacturing quality engineer's job was the package and it was obvious that MMAL would not change the restructuring arrangements to suit the applicant" (par 159 decision).

52 The learned Deputy President found that suitable duties within the worker's capacity had not been made available, and that this had compounded the worker's medical condition.

53 As noted previously, Dr Schembri, whose evidence the learned Deputy President accepted, had reported that "your client's account would suggest that he was quite agitated at the time that he decided to ask for a retrenchment package. In fact he only did so because he felt he had no option, fearing that he would injure himself further if he continued to work for Mitsubishi and seeing no other way out".

54 On those findings, it is difficult to see how it could be said that the worker had voluntarily retired or declared himself unwilling to take up suitable employment. He was, on the learned Deputy President's findings, unfit to work on account of his compensable disability. Moreover, even if he had not been totally incapacitated, it could not be said that by his conduct he was asserting that he was no longer available for work. Suitable duties had not been made available. The principles of mutuality and estoppel can have no role in these circumstances.

The learned Deputy President's failure to take into account the benefits accruing to the worker from the redundancy package

55 The benefits received by the worker under the redundancy package were not benefits provided under the Act. They were benefits to which the worker was entitled on account of him being made redundant. That he volunteered for redundancy, as opposed to having redundancy forced upon him, is of no consequence. Payments, allowances or benefits paid or conferred in relation to redundancy are not to be taken into account in the calculation of a disabled worker's weekly payments: s 35(4).

56 The learned Deputy President was right in disregarding the worker's redundancy package benefits.

57 The appeal is dismissed.