FEDERAL COURT OF AUSTRALIA Comcare v Line [2002] FCAFC 321 COMPENSATION – government employee – "suitable employment" – requirement that employee "did not subsequently terminate that employment" does not mean "whose employment was terminated" – "employment by the Commonwealth" does not mean "employment of the nature concerned with the Commonwealth" Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 4(1), 4(9), 8, 14(1), 19, 19(2), 19(3), 19(3)(a), 19(3)(b), 19(3)(f), 19(4), 19(4)(b) – (g), 21A, 40(1) Safety, Rehabilitation and Compensation Amendment Act 2001 (Cth) Comcare v Chenhall (1996) 69 FCR 201 approved Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 referred to Telstra Corporation Ltd v Warner (1994) 20 AAR 249 referred to Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015 referred to COMCARE v TRACY LEAH LINE W154 of 2002 FRENCH, LEE and RD NICHOLSON JJ 24 OCTOBER 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIAN DISTRICT REGISTRY W154 of 2002 On Appeal from a Single Judge of the Federal Court of Australia BETWEEN: COMCARE APPELLANT AND: TRACY LEAH LINE RESPONDENT JUDGE: FRENCH, LEE and RD NICHOLSON JJ DATE OF ORDER: 24 OCTOBER 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appellant be given leave to add a ground of appeal to the effect that the Court erred in failing to set aside par 1(b)(i) of the decision of the Tribunal and to remit the calculation of the normal weekly earnings of the respondent for the period referred to therein in accordance with the law. 2. Order 1 of Carr J made on 2 May 2002 be deleted and in lieu thereof the following order substituted: "Paragraph 1(b)(i) and (ii) of the decision of the Administrative Appeals Tribunal, made on 10 May 2001, be set aside". 3. The matter of the amount of compensation which the respondent is liable to pay, pursuant to s 19(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to the appellant for each of the first 45 weeks immediately after 17 September 1995 be remitted to the Tribunal for decision in accordance with the law. 4. The appeal otherwise be dismissed. 5. The appellant pay the respondent's cost of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W154 of 2002 On Appeal from a Single Judge of the Federal Court of Australia BETWEEN: COMCARE APPELLANT AND: TRACEY LEAH LINE RESPONDENT JUDGE: FRENCH, LEE and RD NICHOLSON JJ DATE: 24 OCTOBER 2002 PLACE: PERTH REASONS FOR JUDGMENT FRENCH AND LEE JJ: 1 We agree with the orders proposed by Nicholson J for the reasons he has given. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice French and Justice Lee. Associate: Dated: IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIAN DISTRICT REGISTRY W154 of 2002 On Appeal from a Single Judge of the Federal Court of Australia BETWEEN: COMCARE APPELLANT AND: TRACY LEAH LINE RESPONDENT JUDGE: FRENCH, LEE and RD NICHOLSON JJ DATE: 24 OCTOBER 2002 PLACE: PERTH REASONS FOR JUDGMENT RD NICHOLSON J: 2 This appeal raises an issue of construction concerning par (a) of the definition of "suitable employment" in s 4 of the Safety Rehabilitation & Compensation Act 1988 (Cth) ("the Act"). The issue arises on an appeal against orders of the primary judge which had the effect of dismissing the bulk of the appellant's appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") made on 10 May 2001. The issue of construction relates to certain provisions of the Act which govern the rate of weekly compensation payments the calculation of which involves application of the definition of "suitable employment". Background circumstances 3 The background circumstances were set out in the reasons for judgment of the primary judge (Carr J) from which the following is derived. The respondent was born on 27 August 1974. On 10 August 1992 she enlisted in the Royal Australian Airforce ("RAAF"). Her first duties were to take part in what is known as "recruit training". After approximately seven weeks of that training the respondent developed shin pain. She was diagnosed as suffering from stress fractures. She also began to experience severe headaches and dramatic mood swings. Her duties were then restricted. 4 On 21 July 1993 right and left shin fasciotomies were performed on the respondent under general anaesthetic. However, her symptoms continued. Although her duties in the RAAF were of a clerical nature in the accounts department, she had considerable difficulty managing that work. 5 On 17 September 1995 the respondent was discharged from the RAAF. The ground of her discharge was that she was medically unfit for further service by reason of her physical and mental impairment. These were described respectively as "bilateral fasciotomies" and "somatoform disorder". 6 The respondent made considerable efforts to obtain new employment. In November 1995 she secured employment in a card shop for a few weeks. She worked as a clerk at Edith Cowan University from 9 April 1996 to 20 June 1997. 7 On 6 July 1994 the respondent lodged a claim for compensation with the Department of Defence. The appellant accepted liability to pay compensation to her pursuant to the Act in respect of injuries described as "stress fracture left and right tibiae, left fibula and bilateral compartment syndrome and somatoform disorder". Later the appellant accepted liability to pay to the respondent lump sum compensation for permanent impairment and non-economic loss pursuant to ss 24 and 27 of the Act in respect of her "lower legs condition" on the basis that she had suffered a "whole person impairment" of 20 percent as a result of the compensible injury to her legs. 8 On 18 June 1998 a delegate of the appellant made a determination assessing the amount of compensation payable to the respondent by way of incapacity (ie weekly) payments pursuant to s 19 of the Act. The determination was that the total amount of such compensation payable to the respondent for the period from 18 September 1995 to 24 June 1998 was $16,977.52 (gross) and that thereafter the amount of such compensation payable to the respondent per week was $19.80 (gross). This calculation was based on the delegate's assessment that the amount which the respondent was then able to earn in "suitable employment" was $477.37 per week. 9 On 9 July 1998 another delegate of the appellant made a decision affirming the determination of 18 June 1998. On 28 July 1998 the respondent filed with the Tribunal an application to review the decision made by the delegate on 9 July 1998. Legislative framework 10 The expression in relation to which the issue of construction arises on this appeal, that of "suitable employment", is defined in the Act in s 4(1) as follows: "suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means: (a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment – employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to: (i) the employee's age, experience, training, language and other skills; (ii) the employee's suitability for rehabilitation or vocational retraining; (iii) where employment is available in a place that would require the employee to change his or her place of residence – whether it is reasonable to expect the employee to change his or her place of residence; and (iv) any other relevant matter; and (b) in any other case – any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv)." 11 The section pursuant to which the delegate assessed incapacity payments in respect of the respondent and in which the expression "suitable employment" appears relevantly reads as follows: "19(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies. (2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula: NWE-AE where: NWE is the amount of the employee's normal weekly earnings; and AE is the amount per week (if any) that the employee is able to earn in suitable employment. (3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation: (a) where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; (b) where the employee is employed for 25% or less of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 80% of his or her normal weekly earnings; (c) where the employee is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 85% of his or her normal weekly earnings; (d) where the employee is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 90% of his or her normal weekly earnings; (e) where the employee is employed for more than 75% but less than 100% of his or her normal weekly hours during that week - of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 95% of his or her normal weekly earnings; and (f) where the employee is employed for 100% of his or her normal weekly hours during that week-of an amount that, when added to the amount that he or she was able to earn during that week in suitable employment, results in an amount equal to 100% of his or her normal weekly earnings. … (4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to: (a) where the employee is in employment - the amount per week that the employee is earning in that employment; (b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment,. (c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; (d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment; (e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment-the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment; (f) where paragraph (b), (c), (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and (g) any other matter that Comcare considers relevant. . . . (6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings. . . ." 12 The expression "normal weekly earnings" as utilised in s 19 is defined in s 4(1) to mean "the normal weekly earnings of an employee calculated under section 8". It is not necessary to go to the provisions of s 8 beyond explaining that the section provides for the calculation of the normal weekly earnings of an employee before an injury and the adjustment of that amount in the various circumstances referred to in that section. 13 The payments pursuant to s 19 are "in respect of the injury" and that term is itself defined in s 4(1) of the Act as follows: "injurymeans: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment." 14 Other definitions of relevance to this matter are the following which appear in s 4(1) of the Act: "disease" means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation; "ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); "impairment" means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;" 15 The reference to incapacitation of the employee in s 19 is to be understood in the context of s 4(9) which provides: "(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened." 16 The foundation of the liability of the appellant is derivative from s 14(1) of the Act which provides: "Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." Tribunal's decision 17 The principal evidence before the Tribunal was medical evidence. On the basis of that evidence the Tribunal found that during her period of service in the RAAF the respondent suffered physical ailments in the form of stress fracture of the left and right tibiae and of the left fibula and anterior and posterior compartment syndrome in both legs. It also found that during that period she suffered a mental ailment, namely somatoform disorder or anxiety/depressive disorder. Additionally, the Tribunal found the respondent had continued to suffer a physical ailment manifested in the form of chronic pain in both legs and the mental ailment previously referred to. 18 In relation to both the physical and psychiatric/psychological ailments found to have been sustained by the respondent the Tribunal found these had been "contributed to in a material degree" by her employment with the Commonwealth in the RAAF. It held that each of the conditions was a "disease" and also constituted an "injury" within the meaning of those definitions in s 4(1) of the Act. It further found that as a result of each of those conditions she suffered and continued to suffer an incapacity to engage in work at the same level at which she was engaged by the Commonwealth in that work or in any other work immediately before the injury happened: see 4(9)(b) of the Act. The Tribunal therefore accordingly found the respondent was incapacitated for work as a result of an injury and was entitled to compensation pursuant to s 19 of the Act. 19 Then the Tribunal reasoned that because the respondent's employment was terminated by the Commonwealth and not by her, par (a) of the definition of "suitable employment" in s 4(1) of the Act applied. Consequently "suitable employment" for the purposes of calculating her incapacity payments under s 19 of the Act meant "employment by the Commonwealth … in work for which [the respondent] is suited having regard to" the matters listed in subpars (i) to (iv) of par (a). Because no such "suitable employment" had been available to the respondent since her discharge from the RAAF on 17 September 1995 she had not been "able to earn" any amount in "suitable employment" for the purposes of the application of s 19(2) and (3) of the Act. It followed therefore in the reasoning of the Tribunal that her incapacity payments were to be calculated under those provisions without regard to any amount of money that the respondent had earned or was capable of earning in employment. 20 The effect of the Tribunal's decision was that the compensation payable to the respondent was payable in three periods, namely: (1) 100% of Ms Lines "normal weekly earnings" for the first 45 weeks of her incapacity – in accordance with s 19(2) of the Act; (2) 100% of Ms Lines "normal weekly earnings" for each week after the end of that period until 20 June 1997, during which time Ms Line was employed for 100% of her "normal weekly hours" – in accordance with s 19(3)(f) of the Act; (3) 75% of Ms Lines "normal weekly earning" for each week after 20 June 1997 – in accordance with s 19(3)(a) of the Act. 21 Carr J set aside the Tribunal's decision in respect of the second period set out above and remitted to it the issue of the amount of compensation payable from that period until 20 June 1997. Otherwise the appellant's application was dismissed. 22 It is convenient to address the grounds of appeal and the reasoning of Carr J below in connection with each of the issues arising on this appeal. Seven questions of law were raised in the appeal to the primary judge. The grounds of appeal as pressed on this appeal are all directed to one of those questions, namely his conclusions on the issue of the construction of the definition of "suitable employment" in s 4(1) of the Act. Meaning of "terminate that employment" in par (a) of the definition of "suitable employment" Issue on appeal 23 Pursuant to the grounds of appeal it is firstly contended for the appellant that Carr J was in error in failing to hold that the words "who did not subsequently terminate that employment" in par (a) of the definition of "suitable employment" in s 4(1) of the Act excludes from that paragraph a person whose employment with the Commonwealth (or a licensed corporation) had been terminated. That is, it is contended that par (a) applies to an employee who remains in employment with the Commonwealth (or a licensed corporation) and par (b) applies for former employees who do not remain in such employment. Reasons of the primary judge 24 In dismissing the aspects of the appellant's application before him Carr J held that par (a) and not par (b) of the definition of "suitable employment" in s 4(1) of the Act applied to an employee in the situation of the respondent – namely an employee who was a permanent employee of the Commonwealth on the day that she was injured and whose employment was subsequently terminated by the Commonwealth. 25 In his reasons his Honour commenced by a firm statement that in his view the language in par (a) of the definition of "suitable employment" is "clear and unambiguous". His reason for stating this was that the subject of the verb "terminate" in line three of that paragraph is earlier identified as an employee who, on the day on which he or she was injured, was a permanent employee of the Commonwealth. Accordingly, he considered par (a) is to apply to such a person who did not subsequently terminate that employment. 26 His Honour found support for this view in the decision of Heerey J in Comcare v Chenhall (1996) 69 FCR 201 at 205 where it was said: "Mr Chenhall fell within par (a) of that definition [the definition of "suitable employment"] since on the day of injury he was a permanent employee of the Commonwealth who did not subsequently terminate his employment – it was terminated by the Commonwealth." He rejected a submission on behalf of the applicant before him that Heerey J's decision was "fundamentally wrong", considering him to be "quite right in adopting that construction". He noted that Heerey J's judgment had been given over five years ago and that the definition of "suitable employment" had remained unamended in the meantime. 27 Additionally Carr J said that the phrase "suitable employment" clearly distinguished an employee who resigns or retires from employment with the Commonwealth from an employee who did not do so, for example, an employee whose employment was terminated by the Commonwealth. He considered that if there was any ambiguity (which he did not think to be the case) it should be resolved in favour of the respondent because the Act was beneficial workers' compensation legislation: Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335. 28 Carr J rejected a contention that the intention of the legislature would be frustrated by such a construction as had been contended for the appellant as applicant before him. He considered that the incentives contemplated by s 19(3) still applied in the case of employees in the situation of the present respondent. The incentive scheme would work if the Commonwealth were to offer such a person employment by it in work for which the employee was suited. In that context he did not consider that there was any incongruity in s 19(4)(g) that the appellant shall have regard to any other matter that it considers relevant. 29 Counsel for the appellant before Carr J also suggested that in Telstra Corporation Ltd v Warner (1994) 20 AAR 249 Heerey J had adopted an analysis which did not correspond with Chenhall. However, his Honour saw no difficulty in reconciling the two decisions. He considered that one of the essential findings of fact made by the Tribunal in Warner was that Telecom had not made any offer of employment, retraining or rehabilitation despite the fact that Mr Warner had applied to it on two occasions for work: see at p 262. He regarded that as an essential part of the factual matrix upon which the Tribunal determined that Mr Warner was not able to earn anything in suitable employment. It was this aspect in which Heerey J had not seen any legal error. Appellant's contentions 30 For the appellant a number of contentions are advanced on this issue. The first was that there is in par (a) an absence of reference to the Commonwealth or the employee as the responsible agency for any termination of employment. To support this, reference is made to s 21A of the Act where the words "an employee who … retires voluntarily" are utilised. 31 Secondly, it is said that the words "employment by the Commonwealth" confirm that the paragraph is concerned with employees who remain in the employment of the Commonwealth and whose employment has not been terminated. 32 Thirdly, it is said par (b) applies when an employee's employment has been terminated irrespective of whether the employment was terminated by the Commonwealth or by the employee. 33 Fourthly, it is contended that the construction of par (a) favoured by the primary judge focuses too narrowly on the language in the paragraph and inadequately has regard to the statutory context and the function which the term "suitable employment" performs in the substantive provisions of the Act and particularly in s 19. This is supported by reference to the effect of the reading of the paragraph arrived at by the primary judge which is that where an employee's employment with the Commonwealth is terminated by the Commonwealth that employee will be entitled (in the absence of the Commonwealth offering employment) to full and continuing incapacity under s 19(2) and (3) of the Act even though the employee chooses not seek or engage in employment that is available and for which the employee has capacity. This is illustrated by reference to the case of the respondent. 34 Next, it is said that each of pars (a) and (b) adopts as a relevant consideration "the employee's suitability for rehabilitation or vocational training" – see subpar (a)(ii). The Act's provisions relating to rehabilitation as set out in Pt III of the Act do not distinguish between employees whose employment was terminated by the Commonwealth and employees whose employment was terminated by the employee. 35 Furthermore, it is said that in determining an employee's ability to earn in "suitable employment" the appellant is required to have regard to a variety of factors as listed in s 19(4). The effect of the ruling is to narrow the operation of s 19(4)(b) to (g) to distinguish between employees whose employment was terminated by the Commonwealth and employees who terminated their own employment. It is said that if par (a) carries the meaning given to it by the Tribunal and his Honour the application of s 19(4) of the Act will lead to anomalous distinctions. In support it is said that for example the operation of par (a) may depend on whether the Commonwealth should be regarded as having constructively terminated an employee's employment (where the employee has resigned but claims that the resignation was driven by the conduct or attitude of the Commonwealth). It is unlikely, it is said, that the legislature intended those distinctions to determine the nature of "suitable employment" for the purposes of determining an employee's entitlement to incapacity payments. 36 Finally, in relation to the decision of Heerey J in Chenhall it is submitted that decision was in error. Reasoning on this issue 37 In my opinion there are a number of reasons why the view reached by Carr J on this issue was correct. The first is that the language in issue (the words "and who did not subsequently terminate that employment") in the definition of "suitable employment" do not permit of the constructional point when considered in their particular context. As the primary judge pointed out, the subject of the verb "terminate" in the paragraph is earlier identified as an employee who, on the day on which he or she was injured, was a permanent employee of the Commonwealth. The consequence is that par (a) applies in its term to such a person who did not subsequently terminate that employment. I agree with his Honour that the language used is "clear and unambiguous". 38 The thrust of the appellant's contentions, however, seek support from the context in which the definition of "suitable employment" is required to operate in the Act. The long title of the Act emphasises that it is an Act "relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers' compensation for those employees and certain other purposes, and for related purposes". It is not the case that the effect of the decision of the primary judge is such as to defeat the rehabilitative policy of the Act by providing for the respondent to have an entitlement to weekly payments of compensation until she either recovers or choses to return to work. The Commonwealth can at any time fulfil its obligations by assisting the respondent with rehabilitation and retraining and providing her with suitable employment. Furthermore, again taking the particular example of the respondent, there is an incentive for her to return to work and receive full remuneration rather than compensation of only 75% of her normal weekly earnings. 39 The rehabilitative provisions in the Act are contained in Pt III. Section 36(1) provides: "Where the employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program." Section 40 provides for a duty to provide suitable employment as follows: "(1) Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment. (2) In this section: relevant employer means: (a) in relation to an employee employed by a Commonwealth authority – that authority; and (aa)in relation to an employee employed by a licensed corporation – that corporation; and (b) in relation to any other employee – the Commonwealth." If the interpretation favoured by the appellant were to be read into the language of the Act in place of the words in issue, it would be open to the Commonwealth as the relevant employer to defeat the policy objectives of the Act by terminating the employment of the employee and thus removing the duty to provide suitable employment provided for in s 40(1). 40 The explanatory memorandum in respect of the Commonwealth Employees' Rehabilitation and Compensation Bill 1988 and the Minister's Second Reading Speech in relation to that Bill shows that considerably improved benefits were introduced as a trade off against the removal of the common law right to sue and that permanent employees were intended to be protected, the intention being that they were to be provided with rehabilitation and employment. 41 The definition of "suitable employment" is also to be considered in its application in s 19(4). There is nothing incongruous or inconsistent that some of the matters covered in that subsection are more appropriate to those employees who come within par (b) of the definition of "suitable employment" and that some matters may not necessarily apply to those employees who come within par (a) of that definition. 42 In my opinion to give a different meaning to the plain words reading "and who did not subsequently terminate that employment" by reading them as "and whose employment was not terminated" would therefore be both artificial and unjustified in the context of the statute and its objectives. The Act has recently been amended by the Safety, Rehabilitation and Compensation Amendment Act 2001 (Cth). In response to the decision in Chenhall, Parliament clarified s 19 by amending it to ensure that the amount actually earned in any employment is always deducted from normal weekly earnings. However, Parliament did not amend the definition of "suitable employment" in s 4(1). 43 It follows that I consider that the decision of Heerey J in Chenhall was correct. 44 For these reasons I would not allow the appeal against this portion of his Honour's reasoning. Meaning of "employment of the Commonwealth" in par (a) of the definition of "suitable employment" Issue on appeal 45 The case for the appellant then submits that when regard is had to the function which the term "suitable employment" performs in s 19 of the Act, the words "employment by the Commonwealth" should be understood as meaning "employment of the nature concerned with the Commonwealth" and not simply "employment by the Commonwealth alone". Reasons of the primary judge 46 His Honour considered a submission on this issue made on behalf of the then applicant based upon observations by Emmett J in Pulitano v Telstra Corporation Ltd (1998) 50 ALD 1015. The submission was that "suitable employment" referred to "employment of the nature concerned with the Commonwealth and not simply by the Commonwealth alone"; that is, it was not dependent on continuing employment with the Commonwealth. 47 His Honour examined the facts in Pulitano in some detail because the applicant before him had claimed that Emmett J's observations formed part of the ratio decidendi whereas the respondent had contended the remarks were obiter dicta. His Honour concluded the situation in Pulitano was one where Mr Pulitano had received an offer of suitable employment by Telstra but, after commencing such employment, had failed to continue to engage in that employment. In that situation s19(4)(c) had entitled the delegate to have regard to the amount per week that Mr Pulitano would have been earning as a petrol bowser attendant if he were engaged in that employment. 48 However, Emmett J had given consideration (in the alternative) to what might have been the position if s 19(4)(c) had not been applicable. Emmett J said he would, in those circumstances, have rejected the applicant's contention that once employment had been terminated there was nothing to be deducted in making a calculation under s 19(3)(b). Emmett J had then said (at pp 1016 – 1017): "However, I consider that the term "suitable employment" where it is used in s 19 is, as Heerey J says (at ALD 29; ALR 384): "… concerned with the amount the employee is able to earn in "suitable employment". Thus the term refers to employment of the nature concerned with the Commonwealth and not simply employment by the Commonwealth alone. However, for the reasons which I have indicated I do not consider that on a fair reading of all of the material, the matter goes beyond a determination of the tribunal in accordance with section 19(4)(c). For those reasons I consider that the appeal should be dismissed." Carr J concluded it was quite clear that the observations of Emmett J were obiter dicta. He did not think that it was a fair construction of what Emmett J had said in the paragraph quoted that the term "suitable employment" in s 19 of the Act referred to employment of the nature concerned with the Commonwealth by an entity other than the Commonwealth. In his view his Honour was referring both to employment of the nature concerned and to such employment being "with the Commonwealth" as contrasted with simply "employment by the Commonwealth alone". That is, he considered that the word "alone" did not refer to the possibility of an alternative employment. Carr J regarded such a conclusion as perfectly consistent with par (a) of the definition of "suitable employment" which refers to work "for which the employee is suited". He also considered it was consistent with the fact that Emmett J had just expressed agreement with Heerey J in Chenhall. For these reasons he rejected the applicant's alternative argument based upon its construction of what Emmett J said in Pulitano. Appellant's submissions 49 In the submissions for the appellant it is said the construction adopted by the primary judge would lead to irrational and manifestly unintended consequences. The following examples are given: (1) an employee suffers a minor injury as a result of employment resulting in limited incapacity for work; (2) the Commonwealth terminates the employee's employment as a result of disciplinary proceedings, leading to the employee being unsuitable for re-employment by the Commonwealth; (3) alternatively, the employee's employment is terminated by the Commonwealth and the employee resides in an area where no employment with the Commonwealth is available; (4) there exists a wide range of "suitable [and accessible] employment" for the employee – albeit employment by employers other than the Commonwealth; (5) the employee chooses not to exercise his or her earning capacity (that is, the employee elects not to enter the labour market), but relies on the fact that employment was terminated by the Commonwealth to ensure that Comcare continues to be liable to pay compensation under s 19(2) (for the first 45 weeks) and s 19(3) (indefinitely). Reasoning on this issue 50 I agree with the views of Carr J in relation to what was said by Emmett J in Pulitano. In particular, I consider that to read the words as the appellant urges would be inconsistent with the reference to work "for which the employee is suited" in the relevant part of par (a) of the definition of "suitable employment". I note, as did the primary judge, that Emmett J had expressed agreement with Heerey J in Chenhall. 51 In relation to the examples given by the appellant to illustrate absurdity, they are not in my view such as to make the statutory construction wrong as a matter of law. If such events occur they would be supportive of the need for amendment of the Act by Parliament, a course hitherto abjured. 52 For these reasons I do not consider this ground of appeal is made out. Failure to set aside Tribunal order 53 One unintended consequence of the dismissal (being that which is addressed in an additional ground of appeal for which leave is sought) was that the Tribunal's decision in par 1(b)(i) was allowed to stand. That is the decision reflected in the first of the periods of award set out above. It involved an award to the respondent of 100% of her normal weekly earnings for the 45 weeks immediately after 17 September 1995 even though part of that period fell after 9 April 1996 when she was engaged in full time employment. 54 It followed from the reasoning of the primary judge that it was necessary for the Tribunal to bring into account, in calculating the compensation payable under s 19(2) of the Act, the amount per week that the respondent was earning in her employment during that period of 45 weeks that fell after 9 April 1996. That is, in that part of the period, the factor "AE" had a value. While the Tribunal's order 1(b)(ii) was set aside because it involved the same error of law, the order in the Tribunal's decision 1(b)(i) was not so set aside. 55 While it is the case that the point did not arise before the Tribunal, it now lends itself to the grant of such leave as would be appropriate to allow the issue to be treated as a ground of appeal. An order in the terms sought should be made. That outcome is required for consistency of application in the reasoning and the resolution of the appeal. Conclusion 56 For these reasons I consider that the appeal should be allowed only in relation to the additional ground and that otherwise the appeal should be dismissed. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 24 October 2002 Counsel for the Appellant: Mr C Gunst QC, Mr J Lenczner Solicitor for the Appellant: Blake Dawson Waldron Counsel for the Respondent: Mr H Christie Solicitor for the Respondent: Christie & Strbac Date of Hearing: 14 August 2002 Date of Judgment: 24 October 2002