WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. 165 of 1986. Between Victor Bartell, Appellant and Hon Minister for Education, Respondent. Before the Full Bench. His Honour the President D.J. O'Dea, Commissioner O.K. Salmon, and Commissioner W.S. Coleman. The 16th day of May 1986. Mr H.N.H. Christie (of Counsel) on behalf of the appellant. Mr R.E. Cock (of Counsel) on behalf of the respondent. Reasons for Decision. THE PRESIDENT: These are the reasons for the unanimous decision of the Full Bench. The appellant was injured in the course of his employment with the respondent on 16 November 1984. As a result he was for a time totally incapacitated for work and received a weekly payment of compensation during the incapacity equal to his weekly earnings in accordance with the Workers' Compensation and Assistance Act 1981. After some nine months he received a notice from the respondent which led to compensation being reduced on the basis of partial incapacity in accordance with the Act from 3 September 1985. Before the reduction came about the appellant endeavoured to return to his employment with the respondent and to this end on all but two days on which he was incapable he attended at his place of employment and presented for work. He was however unable on the basis of medical advice to perform all of the duties which were normally required of him and the respondent through its servant declined to permit the appellant to perform any work even though he was pre- pared to work at his job to the best of his ability. The appellant was thus placed in the position where his compensation was reduced from $318.50, the amount of his weekly earnings, to $123.70, a sum calculated by reference to the amount by which those weekly earnings exceeded the amount which he was able to earn in some suitable employment. Application was made under section 29 (b) (ii) of the Industrial Relations Act 1979 which permits a claim by an employee that he has not been allowed by his employer a benefit not being a benefit under an award or order to which he is entitled under his contract of service. The basis of the claim was that from 26 August 1985 the appellant had been available and willing to work and that his contract of service with the respondent subsisted and he was entitled to payment of the difference between the amount of weekly earnings $318.50 and the weekly payments of $123.70 paid by the respondent. In the alter- native it was claimed [pursuant to paragraph (i) of section 29 (b)] that if the respondent's refusal to permit the appellant to work and its failure to pay the weekly wages amounts to termination of the contract of employment, which was denied, then the appellant was unfairly dismissed and claimed reinstatement and compensation. The Commission found that the contract of service subsisted but that there was no contractual entitlement to the difference between weekly earnings of $318.50 and weekly payments of $123.70 which had not been allowed. It took the view that the contract of service was still on foot but payments under the contract are suspended, being replaced by the payments prescribed under the Workers' Compensation and Assistance Act 1981. Under that Act and subject to compliance with its terms weekly payments of compensation for incapacity for work on the basis of weekly earnings are required to commence and continue in accordance with those terms and in that sense the weekly wages which an employee may otherwise have earned is supplanted by payment of 850 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 66 W.A.I.G. compensation, although in the case of compensation for partial incapacity he receives less than his wages on the assumption that he is capable of earning a weekly amount in some suitable employment. In this case it appears it was assumed that the appellant could earn the minimum weekly wage which in the circumstances was a fallacious assumption. The appellant brings the appeal on the following grounds: 1. The Commissioner should have found that as from 26 August 1985 the Appellant was entitled to his wages of $318.50 per week (less a credit for payments made by the respondent) on the basis that from that date the contract of employment between the Appellant and the Respondent remained on foot and that the Appellant attended at his work place and presented for work and accordingly the Appellant had been denied a benefit due to him from the Respondent pursuant to section 29 2 (b) (sic) of the Industrial Relations Act 1979. 2. The Commissioner should have found that as from 26 August 1985 the refusal of the Respondent to provide work to the Appellant and the failure of the Respondent to pay to the Appellant his usual wages amounted to a suspension of the Appellant without pay. 3. The Commissioner should have found that the payment both of wages and of partial payment of workers' compensation was expressly contemplated by Clause 7 (2) of Schedule 1 of the Workers' Compensation and Assistance Act 1981 which provides, inter alia, that a worker is entitled to: "... a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings calculated ... in accordance with this Schedule would exceed the weekly amount. . . which he is earning ... in some suitable employment . . . after the occurrence of the disability." and that accordingly the Workers' Compensation and Assistance Act 1981 could not operate to prevent the Respondent from being liable to pay the Appellant wages that would otherwise have been due to the Appellant merely by reason of the fact that the Appellant was receiving partial payments of compensation. 4. Alternatively the Commissioner should have found that the Appellant was entitled to his usual wages in place of any workers' compensation payments as from 26 August 1985 on the basis that from that date by returning to the work place and being available for work the appellant elected to pursue his entitlement to wages instead of payments of workers' compensation for so long as his contract remained on foot and unchanged. The question is whether during the time the appellant was in receipt of weekly compensation under the Workers' Compensation and Assistance Act he had any entitlement to wages under his continuing contract of service. It seems to us that the view adopted by the Commission is consistent with the principles which emerge from cases to which we have been referred and which appear to be applicable. Those cases are of early origin but are the only authorities of which we are aware which deal with the point in issue. In Hall v. Carr and Another, Ex parte Carr and Another (The Queensland Law Reporter, March 1921, page 16) the Industrial Court in Queensland upheld an appeal from the decision of an Industrial Magistrate to convict an employer in not paying wages prescribed under an award to an employee who had for the respective period received other moneys including compensation under the Workers' Compensation Acts 1916 to 1918 (Queensland). The Court followed a case decided in England in 1902 by the Kings Bench Division — Elliott v. Liggens (1902) 2 KB 84. The interpretation of the English Workers' Compensation Act of 1897 which emanated from that case was not questioned and in Carr's case the Industrial Court accepted that inter- pretation as an authoritative interpretation which was applicable by construction in respect of the Queensland Act. It was also accepted that the point decided in Elliott v. Liggens settled the law and that case and another case [Niblett v. Midland Railway Company (23 TLR 240) which dealt with an analogous situation] were followed. The Industrial Court also referred to a case in which those authorities were reviewed by the English Court of Appeal — Warburton v. The Co-operative Society Limited (1917) 1 KB 663. In that case at page 668 Lord Justice Strutton observed:— Under the decided cases a servant incapacitated by illness and in the absence of notice under the contract does not cease to be employed, unless the illness is such as to seriously interfere with or frustrate the business purposes of the contract. Cuckson v. Stones (1 E&E 248), Story v. Fulham Steel Works Co (24 Times LR 89). But, though still in employment, he is not entitled to full or any wages while receiving sick pay under rules, or compensation under the Statute. Niblett v. Midland Railway Company, Elliott v. Liggens. The reason for this latter proposition is based either on an implied contract that a man who is receiving money because he is not able to work should not also claim the full money he would receive were he able to work, or, as in Elliott v. Liggens, on some kind of estoppel, which I do not clearly understand. The result of the cases, however, appears to be very good sense, and I do not think the Court should interfere with them. In Elliott v. Liggens an employee who was partially incapacitated for work claimed and received compensa- tion under the Workmen's Compensation Act 1897 which provided that where total or partial incapacity for work resulted from the injury weekly payments during incapacity must not exceed 50 per cent of average weekly earnings. It was held in that case that the employee was not entitled to recover the balance of his wages for the relevant time. The following passages illustrate in our opinion the proper approach to the point here at issue:— It seems plain from the sections to which I have referred, and from the fact of the plaintiff having given notice and received this weekly payment, that his conduct was inconsistent with the view that he was still entitled to the whole of his original wages. If the wages continue to become due during his incapacity to earn them, there would be no need for any inquiry under paragraph 2 of the 1st schedule as to the difference between the earnings before and after the accident, and as to whether there had been any payment by the employer other than wages during the incapacity. / think that a workman who takes the benefit of the Act on the ground of his incapacity to earn wages, and obtains compensation based on the footing of those wages, cannot turn round and say that he is entitled to the balance of his wages during the time in which he has been disabled from work and receiving compensation. Lord Alverstone C.J. at page 86 (our emphasis). The right of a workman to make a claim for compensation under the Act is founded on the basis that, when his capacity to earn his wages has ceased because of the injury which he has sustained, money becomes payable to him calculated on a considera- tion of his weekly earnings which he has been receiving before he sustained the injury. The compensation is, therefore, payable in lieu of the wages which he has lost. If the contention of the plaintiff were correct, he would logically be able to sue for the whole of his wages during the time of his incapacity, and not merely for the balance after deducting the amount paid to him each week by way of compensation, for, according to the argument on his behalf, he is entitled to compensation for the injury he sustained, and also to his wages although he was incapacitated from earning them. 66 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 851 I think that the construction that we are putting upon the Act is not opposed to the interests of workmen in general, for, if the opposite construc- tion were to prevail, the first act of every employer on hearing of an accident to a workman would be to discharge that workman from his employ, so as to prevent him from setting up a claim to his wages in addition to his claim for compensation for the injury. Darling J. at pages 86 and 87 (our emphasis). I agree, and I think the best way of putting it is that the plaintiff, by claiming and accepting some- thing which is absolutely inconsistent with his right to claim his wages, is estopped from saying that he is entitled to recover those wages. The only way in which he could do so would be by saying that his claim under the Workmen's Compensation Act was all a mistake, and that he abandoned it and gave credit to his employer for what he had received. But he has not framed his action in this way, and, as I said, I think he is estopped from now claiming the wages. Channell J. at page 87 (our emphasis). The Workers' Compensation and Assistance Act 1981 operates in similar vein, in principle if not in detail, when compared with the Acts under review in the cases to which we have referred. We are of the opinion that the above observations are apposite to the issue in this appeal and provide an answer to the arguments raised by the grounds of appeal, that is to say they indicate that the appellant has been unable to make out any entitlement as envisaged under section 29 (b) (ii). Mr Christie who appeared for the appellant acknowledged that it was important from the appellant's point of view that the cases of Elliott v. Liggens and Hall v. Carr and Another be distinguished and sought to distinguish them from the present case because they relate to the position where a person has received full entitlement to compensation and claims wages in addition but in our view that has not been done. The principle involved has present application. We accept that the appellant though acquiescing and continuing to receive payments of compensation from the respondent did not intend, as it were, to have his cake and eat it. However, we are obliged to accept the proposition of Mr Cock who appeared for the respondent that the ratio of Elliott v. Liggens amounts to this, if you are not able to earn your wages and you receive compensation it would be quite inconsistent that you should have any entitlement to wages. He referred to a number of text books in which the proposition is broadly stated, for example: A worker who received compensation for the period of his incapacity is not entitled to wages for the same period. Workers' Compensation Victoria Anderson & Rendit 3rd ed. para 2072. A worker who has been compensated in terms of the Act cannot recover any of his wages during the period of incapacity in respect of which such compensation is paid. McDonald's Law Relating to Workers Compensation in New Zealand 4th ed. para 586. We consider that Mr Cock is right in asserting that the old authorities still stand. The principles are sensible and apply in the case of partially as well as totally incapacitated employees. On that basis we think the Commission was right in deciding that it could not make a finding that there was any entitlement to wages. We do not think that the case for the applicant is aided by what is contained in ground 4. There is no statutory obligation upon the employer to provide work for an employee who is in receipt of compensation while partially incapacitated for work. Clause 7 (2) of Schedule 1 of the Act merely recognises an ability to earn weekly in suitable employment for the purpose of calculating compensation for partial incapacity. The contract of service which continued to exist and under which the appellant claimed to be entitled to wages required the appellant to perform all of the duties required of him whereas the provisions of the Schedule clearly contemplate that the employee is not able to do that by virtue of his partial incapacity. It is apparent that the Commission below appreciated the position in which the appellant found himself and properly took such steps as were open to it. The case presents features which are quite out of keeping with a scheme for social assistance and rehabilitation. On the one hand the respondent we believe is willing to take the employee back on the job were it not that he is unable to fully carry out the task according to medical advice. On the other hand unless the appellant is able to obtain alternative part-time employment his invidious position will remain unrelieved. We are by no means unsympathetic but we do not think he has any remedy against the respondent by way of entitlement to wages and have no alternative but to dismiss the present appeal. Order accordingly. BEFORE THE