Thereafter the worker continued to submit medical certificates certifying him fit to perform alternate duties.

On 5 September 1996, the worker was certified fit to return to full duties as a Deputy Principal and on 19 September 1996 the employer served a notice pursuant to Section 36 of the Act determining that the worker ceased to be entitled to weekly payments of income maintenance on the basis that he ceased to be incapacitated for work.

The issue between the parties concern the status of the payments that the worker was receiving prior to that date. The respondent contends that those payments were payments of income maintenance. It therefore reasoned that in accordance with Section 35(1)(b) of the Act, which provides that weekly payments of income maintenance can be reduced to 80 per cent if the period of incapacity for work exceeds one year, that it was entitled to reduce those payments to that level. It therefore issued a notice to that effect on 7 May 1996.

The worker contends that following his return to work on 31 July 1995, he ceased to be receiving income maintenance. He says that he was being paid wages. Hence, he says that the respondent had no right to invoke Section 35(1)(b). That is the basis of the first notice.

In the alternative the worker says that if he was not being paid wages, he should have been. More to the point, he says that if the ultimate effect of the classification of his payments is that he was receiving less than a full days pay for a full days work, a rehabilitation and return to work plan that contains such a provision was unreasonable and should be reviewed in accordance with Section 28B of the Act. That is the basis of the second notice.

The respondent answers this by saying, that having accepted the worker's claim for compensation and having agreed to pay him weekly payments of compensation, it was obliged to continue to pay weekly payments of income maintenance unless and until those payments were reduced or discontinued in accordance with the Act. Next it says, that because no notice of discontinuance was issued prior to 19 September 1996 the payments that it was making to the worker have to be regarded as weekly payments of income maintenance and that in those circumstances, it clearly had the right to do what it did, namely to reduce those payments to 80% on the anniversary of the worker's incapacity. As I understand it, it is submitted, that even if the worker, as a result of the performance of the duties that he undertook from 31 July 1995 has generated an entitlement to wages in respect of which he has not been paid the resolution of any dispute in relation thereto does not properly form the subject of a dispute that is actionable in this Tribunal.

As regards to the second notice, the respondent contends that a dispute about whether a worker is being paid wages or compensation is not the sort of dispute that falls within the ambit of Section 28B. Next it was said that in any event, even if the worker did have a legitimate complaint in respect of this matter, given that under Section 28B(3) the obligations complained of are not suspended by the filing of the Notice of Dispute or subsequent proceedings and moreover given that the rehabilitation and return to work plan is no longer on foot, there is no effective remedy that the Tribunal can now provide.

In my opinion, the respondent's contentions, are essentially correct. The worker might well be right when he says that he should have been paid wages not compensation, but I think that he would have to go elsewhere to argue that that was so.

In all the circumstances, I think that the respondent is entitled to the orders that it seeks. The first and second notice will be struck out. I will hear the parties as to costs.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.