Abdul-Rahman v Allied Pickfords Pty Ltd - [2005] NSWWCCPD 107

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Abdul-Rahman v Allied Pickfords Pty Ltd [2005] NSWWCCPD 107
APPELLANT:  Merwhen Abdul-Rahman
RESPONDENT:  Allied Pickfords Pty Ltd
INSURER:MMI Workers Compensation (NSW) Limited
FILE NUMBER:  WCC482-04
DATE OF ARBITRATOR’S DECISION:          5 July 2004
DATE OF APPEAL DECISION:  9 September 2005
SUBJECT MATTER OF DECISION: Findings of fact; ‘reasonable action’ of employer; section 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:       Turner Freeman Lawyers
Respondent:     A.O. Ellison & Co Solicitors.

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 5 July 2004 is confirmed.
No order as to costs of the appeal.

Background to the Appeal

Merwhen Abdul-Rahman worked for Allied Pickfords Pty Ltd (‘Pickfords’) as a clerical worker. He claims he incurred a psychological injury as a result of harassment and racial discrimination he received from fellow workers. This is alleged to have occurred in the days leading up to and including 16 October 1998. On that day Mr Abdul-Rahman was advised by management that an investigation was to be instigated into a complaint of sexual harassment made against him by a fellow worker. Pickfords imposed disciplinary action on him at the conclusion of the investigation. As a consequence Mr Abdul-Rahman’s employment was terminated under a voluntary redundancy package on 10 December 1998.

Mr Abdul-Rahman claimed weekly benefits compensation and medical expenses from Pickfords. It denied liability for the claim. He lodged an application for determination of the dispute in the Compensation Court on 27 March 2002 and this application was transferred to the Commission in January 2004. The application concerns a claim for workers compensation benefits made against his employer, Pickfords, whose Insurer is MMI Workers Compensation (NSW) Limited. The Insurer acted for and on behalf of the employer in the Commission proceedings.

The dispute was referred to an Arbitrator, and a teleconference was held on 24 May 2004. The dispute was not resolved and the matter proceeded to arbitration on 24 June 2004. The parties did not reach an agreed settlement of their dispute, so the Arbitrator made a determination. He dismissed Mr Abdul-Rahman’s application and made no order as to costs. A ‘Certificate of Determination’ evidencing these orders, and a ‘Statement of Reasons’ were issued on 5 July 2004.

On 3 August 2004, Mr Abdul-Rahman lodged an appeal against the Arbitrator’s decision on the basis that the Arbitrator made errors of law and fact in concluding that the injury was not compensable. He wants the matter to be re-listed for an Arbitration hearing. His appeal documents were incomplete, and were re-lodged with the defects addressed on 2 September 2004.

Pickfords submits that the Arbitrator has not erred and that the decision should be affirmed.

The amount of compensation in dispute is in excess of $5,000 and no amount was awarded in the decision appealed against, therefore section 352(2) of the Workplace Injury Management & Workers Compensation Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWWCCPD 107
Decision Date: 9 September 2005

CaseChat Overview and Summary

The appeal in Abdul-Rahman v Allied Pickfords Pty Ltd was heard by Dr Gabriel Fleming, Deputy President of the Workers Compensation Commission. The appellant, Merwhen Abdul-Rahman, appealed against the decision of an Arbitrator who dismissed his claim for workers' compensation benefits. Abdul-Rahman claimed that he incurred a psychological injury due to harassment and racial discrimination from fellow workers, which he alleged occurred in the days leading up to and including 16 October 1998. The employer, Allied Pickfords Pty Ltd, denied liability for the claim. The issues in dispute in the appeal related to the Arbitrator's findings of fact, whether the employer's actions were reasonable, and whether Abdul-Rahman's psychological injury had ceased by 10 December 1998.

Dr Gabriel Fleming, Deputy President, considered the appeal on the papers and found that the Arbitrator had not made any errors of fact or law. The Deputy President held that the Arbitrator's findings of fact were reasonably open to him based on the evidence before him. In terms of the reasonable actions of the employer, the Deputy President found that it was open to the Arbitrator to conclude that the employer's actions were reasonable, and that Abdul-Rahman's claims were merely a challenge to the Arbitrator's fact-finding. Finally, regarding the cessation of Abdul-Rahman's psychological injury, the Deputy President found that the Arbitrator did not err in determining that Abdul-Rahman was fit to return to work from 10 December 1998.

In light of these findings, the decision of the Arbitrator, dated 5 July 2004, was confirmed. No order was made as to the costs of the appeal.

Orders