Counsel for appellant: Mr D M Quick QC with Mr N J Iles

JUDGE1 KING CJ This is an appeal on a question of law pursuant to s.100 of the Workers Rehabilitation and Compensation Act, against a decision of the Workers Compensation Appeal Tribunal.

The facts giving rise to the appeal are stated in the reasons for judgment of the Tribunal as follows: "The worker commenced employment with Plas-Tec Pty. Ltd. ('the employer') as a die setter in about June 1988. On 8 August 1990 whilst in the course of his employment with Plas-Tec he sustained a disability to his back. He was initially totally incapacitated for work as a consequence of that disability but when his incapacity had improved to the stage where it was only partial the employer provided him with suitable light work to perform.

In about April 1991 the worker reached the conclusion that it might be in his best long term interests if he gave up the work he was then performing with the employer, and seek to make a career for himself doing other work in a different capacity. In reaching that decision the worker was mindful of the fact that the work he was performing with Plas-Tec may cause an aggravation to his back disability, which might result in hospitalisation. He therefore tendered his resignation from employment with the employer in order to commence a course in hotel catering with T.A.F.E.

At the time he tendered his resignation the employer's personnel officer pointed out to the worker that if he did resign such action may cause him to forego certain rights to his claim without being specific as to what rights to worker's compensation he might lose.

After the worker resigned, the employer engaged another person to carry out the duties which the worker had performed

Following his resignation from employment the worker worked for a few months in a restaurant. After that work ceased he sought other employment but was unable to find any. On 5 June 1992 the worker wrote to the employer seeking employment within the physical limitations placed upon him by the work caused disability. A week or so later the worker followed up that letter with a telephone call to the employer seeking suitable employment. However the employer did not offer the worker any suitable work because it said there was no position available for him.

The Corporation rejected the worker's claim for weekly payments of compensation which he lodged on 2 July 1992, because it maintained that the worker by his conduct in resigning from the suitable employment which the employer had made available up to the point in time of resignation had thereby indicated that he was not thereafter ready, willing and able to undertake that suitable work with the employer.

Both before the Review Officer, and on appeal to this Tribunal, the Corporation alleged that the worker, although partially incapacitated was estopped by his conduct of resigning from employment from maintaining that he was ready willing and able to work for the employer."

The Workers Rehabilitation and Compensation Corporation rejected the worker's claim for compensation 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". A Review Officer set aside the Corporation's determination and determined that the worker was entitled to weekly payments. The Tribunal dismissed an appeal against the determination of the Review Officer and this appeal has been brought against that decision.

There is no dispute about the fact that the worker is partially incapacitated for work. The appeal concerns the worker's claim that his partial incapacity should be treated as total by virtue of s.35(2) of the Act. That subsection so far as relevant is as follows: "35(2) For the purposes of subsection (1)-- (a) a partial incapacity for work over a particular period shall be treated as a total incapacity for work over that period unless the Corporation establishes that suitable employment for which the worker is fit is reasonably available to the worker in respect of that period (but where the period of incapacity extends beyond a period of two years, this paragraph does not apply to a period commencing after, or extending beyond, the end of the second year of incapacity);"

It is settled law that the notion of unavailability to a worker of work for which he is fit connotes that he is ready and willing to perform such work; R J Brodie (Holdings) Pty Ltd v Pennell [1968] HCA 73; (1968) 117 CLR 665, Electric Power Transmission Pty Ltd v D'Urso [1970] HCA 40; (1970) 124 CLR 338, Dowell Australian Ltd v Archdeacon [1975] HCA 29; (1975) 132 CLR 417, Hartwell v ETSA (1982) 29 SASR 365, GMH Ltd v D'Andrea (1985) 122 LSJS 301. This is the principle of mutuality which is referred to in the Corporation's determination.

Those cases were decided upon statutory provisions which made the failure of the employer to provide suitable work the pre-condition or one of the pre-conditions of partial incapacity being treated as total. In Kelvinator v Jezior (1988) 49 SASR 592, the Full Court held that the principle of mutuality applied to s.35(2) which contains no provision relating to the employer at the time of the occurrence of the disability. I think, however, that the principle cannot apply in precisely the same way as it did under the previous legislation.

Section 67 of the previous legislation, the Workers Compensation Act 1971, provided that partial incapacity was to be treated as total except during any period in respect of which the employer made available work for which the worker was fit or such work was reasonably available elsewhere. If the employer made suitable work available to the worker, the effect was to deprive the partial incapacity of the potential to be treated as total irrespective of whether the worker might be unable to avail himself of the work by reason of altered circumstances such as having moved from the locality. With such a provision mutuality required a readiness on behalf of the worker to avail himself of the work made available by the employer with which he was employed at the time of incurring the disability.

I do not think that that can be the position under the present Act. The precondition under s.35(2) does not have an aspect which is specific to a particular employer. The precondition is the non-availability of suitable work generally. It is true that s.58B makes it an offence for an employer, where a worker has been disabled in the employment of that employer and is able to return to work, to fail to provide suitable employment to him. That penal obligation exists, no doubt, for the protection of both the worker and the Corporation. It does not however modify the provision of s.35(2) that suitable work must be reasonably available. Work made available by the employer may not be reasonably available to a worker by reason of the changed circumstances of the worker in relation to his place of residence or otherwise. 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).

Mr Quick QC, for the Corporation, did not contend for that proposition. He contended, however, that the resignation and consequent filling of the position by the employer, destroyed the necessary mutuality for a time, presumably until the employer had available another suitable position. This argument, however, approaches the matter from the point of view of the employer's obligation to provide work. The resignation might well provide a defence to a prosecution for breach of the obligation imposed by s.58B. It does not, however, in the circumstances in which it occurred, affect the non-availability of suitable work for the purpose of s.35(2).

That is not to say that the circumstances in which a worker abandons employment in which he has been engaged is incapable of affecting mutuality for the purpose of s.35(2). Mr Quick QC instanced a worker who gave up his work from time to time for no good reason and expected to get his job back on his return. In such a case the fact that employment which was available to him has been lost by reason of his own conduct may well affect the issue of whether suitable work is reasonably available to him. But as Kanoon v Cablemakers of Australia Pty Ltd 1975 WCR(NSW) 268 shows, even mutuality destroyed by misconduct can be restored in time.

The Tribunal has correctly stated the law and Mr Quick has not contended otherwise.

This appeal on a question of law can only succeed, therefore, if the facts as found lead inevitably to the conclusion that mutuality did not exist at the time of the application to the Corporation, with the consequence that the Tribunal must have misapprehended the law despite its correct articulation of it or must have misapplied the law. If it is a question of evaluation or degree, there has been no error of law. The existence of mutuality when the legal concept is correctly apprehended, is a question of fact; Kelvinator v Jezior supra per Cox J at p.598. So far from the facts in the present case leading inevitably to the conclusion that the required mutuality did not exist, they are incapable, in my opinion, of leading to that conclusion.

JUDGE2 BOLLEN J I have doubts and vacillations about this appeal. But in the end I think, with respect, that the reasoning of the Chief Justice is correct. The fact that "the precondition under s35(2) does not have an aspect which is specific to a particular employer" (words of the Chief Justice) is, I think, very important. That fact helps me to accept the reasoning of the Chief Justice. I, therefore, agree that the appeal should be dismissed. Perhaps the fact that it is not only work offered by the particular employer which is relevant may make reference to "mutuality" inapplicable in some cases "under" s35(2)]

JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.