Advertiser Newspaper Ltd v McAllister - [2010] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ADVERTISER NEWSPAPER LTD v MCALLISTER
[2010] SASCFC 32
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Sulan)
23 September 2010
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW - PARTICULAR CASES
Appeal from Full Bench of Workers Compensation Tribunal - whether Full Bench erred in law by holding that a single member's reasons for decision were inadequate as a matter of law giving rise to a miscarriage of justice - Full Bench erred - single member's reasons adequate - appeal allowed.
Workers Rehabilitation and Compensation Act 1986 (SA) s 30A, s 53, s 67(1), s 86(1), s 86A(2), s 86A(2a), referred to.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, discussed.
R v Keyte (2000) 78 SASR 68; South Australian Fire & Emergency Services Commission v Workers Compensation Tribunal (2009) 105 SASR 1, considered.

ADVERTISER NEWSPAPER LTD v MCALLISTER
[2010] SASCFC 32
Full Court: Doyle CJ, Gray and Sulan JJ

DOYLE CJ: This appeal raises the question of whether the Full Bench of the Workers Compensation Tribunal erred in law in deciding that a single member of the Tribunal made an error of law when upholding the decision of a compensating authority to reject Mrs McAllister’s claim for weekly payments of compensation. The claim for compensation was made under the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act).
The appellant Advertiser Newspaper Ltd (Advertiser) submits that the Full Bench erred in law by holding that the single member’s reasons for her decision were inadequate as a matter of law, giving rise to a miscarriage of justice.
An appeal lies to the Full Court “on a question of law”: s 86A(2) of the Act. A Judge of this Court has granted permission to appeal: s 86A(2a).
The appeal from the single member to the Full Bench was also limited to “a question of law”: s 86(1) of the Act.
It was common ground before the Full Bench, and on appeal to this Court, that the appeal to the Full Bench and to the Full Court raised a question of law. The question was in each case whether the single member provided reasons for her decision that were adequate as a matter of law.
Decisions on claim for compensation
Mrs McAllister was employed by Advertiser.
She claimed from Advertiser weekly payments of compensation, alleging that she had suffered an adjustment disorder with anxiety and depression which resulted in an incapacity for work.
Advertiser is a self-insured employer, and so exercised the relevant statutory powers in relation to the claim for compensation: s 67(1) of the 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: [2010] SASCFC 32
Decision Date: 23 September 2010

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Doyle CJ, Gray and Sulan JJ, heard an appeal from a decision of the Full Bench of the Workers Compensation Tribunal. The appeal concerned whether the Full Bench had erred in law by finding that a single member's reasons for decision were inadequate, thereby causing a miscarriage of justice. The appellant, Advertiser Newspapers Ltd, argued that the single member's reasons were sufficient, while the respondent, Mrs McAllister, contended they were not.

The central legal issue before the court was whether the reasons provided by the single member of the Workers Compensation Tribunal for her decision were adequate as a matter of law. Specifically, the court had to determine if the Full Bench was correct in concluding that the single member failed to adequately address the argument that the employer's actions were unreasonable, particularly in not engaging in performance management before proposing changes to Mrs McAllister's duties and working hours. This question of adequacy of reasons was accepted by all parties as a question of law.

The Full Bench had, by majority, set aside the single member's decision on the grounds that her reasons were inadequate. However, the Supreme Court, in allowing the appeal, respectfully disagreed with the Full Bench. The Court found that while the single member's reasons on the specific point of performance management could be described as sparse, she had, when reading her reasons as a whole, intended to and did deal with the issue. The single member had noted that the employer did not explain why performance management was not used, accepted the proposal was an attempt to deal with shortcomings, and characterised the discussion as a consultation about a mere proposal that required further approval. The Court concluded that the single member had, in effect, found that it was not unreasonable for the employer to formulate the proposal rather than immediately resorting to performance management, and that this finding, being a finding of fact, was not subject to appeal.

The appeal was allowed, and the Full Bench's decision that the single member's reasons were inadequate was overturned.

Orders

Orders of the court

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Background

Background to the litigation

The Full Bench set aside that decision, finding (by majority) that the single member’s reasons for decision were not adequate.Facts and previous decisions Mrs McAllister was employed by Advertiser as an Injury Management Coordinator. She worked four days a week. Her manager was Mr Beaton. Mrs McAllister said that in the first half of 2007, despite a previously friendly relationship with Mr Beaton, a number of minor incidents between them upset her. The central incident, as things turned out, occurred on 1 June 2007. In McAllister v Advertiser Newspapers Ltd [2010] SAWCT 11 the majority (Hannon DPJ and Lieschke DP) said:[8]On 1 June 2007 a discussion took place between the appellant and Mr Beaton which resulted in a substantial deterioration in their relationship. The appellant had arranged to meet Mr Beaton at his office that day to discuss a work issue with him. When she entered his office Mr Beaton was working on a draft of a proposal to restructure the rehabilitation team. The appellant had no prior knowledge of the proposal, but apparently noticed the draft and asked Mr Beaton whether she could be of assistance. It appears that, albeit with some initial hesitation, Mr Beaton agreed to discuss the draft proposal with the appellant despite not having planned to do so at that stage. [9]The draft proposal contemplated an alteration in the appellant’s role so that she spent more of her injury management time on legal and rehabilitation matters and less on administrative matters. Mr Beaton explained to the appellant that he was proposing this change to allow her to focus on the stronger areas of her performance. He explained that it would result in costs savings for the respondent in that it would reduce the extent of its reliance on external legal and rehabilitation service providers, whilst at the same time the appellant’s workload would be reduced by assigning some of her administrative and case management responsibilities to her administrative assistant, Ms Herrod. Mr Beaton explained that as part of this restructure, he was considering a reduction in the appellant’s working week from four days to three days. This, he said, would release funds to enable Ms Herrod to be appropriately recognised for her extra work, and would allow the appellant to return to three days of work a week and to spend more time with her family. [10]Mr Beaton did not have authority to implement his proposals without approval from above. The outcome of the discussion with the appellant was inconclusive. Each party retained a different perception of it. Mr Beaton did not form the impression that the appellant was upset by his proposal at the time. The appellant said that she was greatly upset, as she could not understand why her hours would be reduced if her work performance was satisfactory. She also felt that some of the comments made by Mr Beaton in relation to the proposed reduction in her salary were demeaning. Within a few days of this incident Mr Beaton’s supervisor or manager became aware of the proposal, and declined to approve it. It never proceeded. Nevertheless, for reasons that Mrs McAllister explained in evidence, she became unwell as a result of the incident, and that is what led to the claim. The case proceeded on the basis that this incident and its consequences were the main cause of her disability, and that what happened on the occasion in question constituted “action” or “administrative action” for the purposes of s 30A of the Act. As to that the majority said at [22]-[23]:[22]The learned Deputy President described the relevant event as a proposal by Mr Beaton “...to cut [the appellant’s] hours and narrow her duties”, and later as “...a discussion about a restructuring of [the appellant’s] work duties and hours”. The learned Deputy President found that whilst the action related to the day to day tasks of the appellant’s employment, it was also linked to action taken by the employer concerning deployment of the activities associated with its business. On this basis she was satisfied that the discussion about the proposal could be characterised as administrative action. [23]The learned Deputy President characterised the incident in question after consideration of the relevant legal principles. There was no error in her application of those principles to the facts as found. The action on the part of Mr Beaton of preparing a restructuring proposal, and discussing it with the appellant, in the circumstances of this case, is capable of being characterised as administrative action, notwithstanding that the proposal was not implemented subsequently. It could properly be found to involve administrative action even though the proposal, if implemented, would have impacted upon the performance by the appellant of her daily duties in the future. There was no error of law in the conclusion of the learned Deputy President.Footnotes omitted

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was common ground before the Full Bench, and on appeal to this Court, that the appeal to the Full Bench and to the Full Court raised a question of law. The question was in each case whether the single member provided reasons for her decision that were adequate as a matter of law.Decisions on claim for compensation Mrs McAllister was employed by Advertiser. She claimed from Advertiser weekly payments of compensation, alleging that she had suffered an adjustment disorder with anxiety and depression which resulted in an incapacity for work. Advertiser is a self-insured employer, and so exercised the relevant statutory powers in relation to the claim for compensation: s 67(1) of the Act. Advertiser made a determination in writing under s 53 of the Act rejecting the claim. By its determination Advertiser accepted that Mrs McAllister had “suffered a mental disability comprising an adjustment disorder”. Advertiser also accepted that Mrs McAllister was disabled from working, and that her employment was a substantial cause of the disability. Because the claim was in respect of a disability consisting of an illness or disorder of the mind, it was governed by s 30A of the Act. That section provides:30A—Psychiatric disabilitiesA disability consisting of an illness or disorder of the mind is compensable if and only if—(a) the employment was a substantial cause of the disability; and(b) the disability did not arise wholly or predominantly from—(i)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or(ii)a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with the worker's employment; or(iii)reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment; or(iv)reasonable action taken in a reasonable manner under this Act affecting the worker. By its determination Advertiser rejected the claim because Mrs McAllister had not established that the disability did not arise wholly or predominantly from reasonable action taken in a reasonable manner by the employer for a purpose referred to in s 30A(b)(i) or (iii). A single member of the Tribunal upheld that decision: McAllister v Advertiser Newspapers Pty Ltd [2009] SAWCT 20. The single member said:[73]There was no dispute of consequence as to the diagnosis of Mrs McAllister’s condition. There was some difference of opinion as to the cause of her condition. It was unnecessary for me to make any findings in relation to the medical evidence relating to causation in this matter as a result of my findings in relation to administrative action on the part of the employer. [74]Mrs McAllister has not established that the condition from which she suffered did not arise predominantly from reasonable administrative action taken in a reasonable manner. [75]I am satisfied on the evidence before me that Mrs McAllister’s disability arises predominantly from reasonable administrative action taken in a reasonable manner by the ANPL in connection with her employment. Therefore she is not entitled to compensation pursuant to the Act. [76]The determination of the compensating authority to reject claim (sic) is affirmed.

Ratio Decidendi

Legal Principle Established

On appeal, the issue is whether the majority erred in law in reaching the conclusion that they did.Consideration of Appeal The criticism of the reasons of the single member is that she did not deal with the contention that it was unreasonable of Mr Beaton (for convenience I express the matter this way, despite the wording of s 30A) to prepare a proposal to change Mrs McAllister’s duties and to reduce her hours, the proposal being based on or influenced by his opinion that her work performance was unsatisfactory, without first attempting to deal with his concerns by raising them with Mrs McAllister and by trying to deal with them by “performance management”. Mrs McAllister argues that the single member dealt only with the manner in which Mr Beaton handled the discussion, precipitated by Mrs McAllister, on 1 June 2007. This is the criticism made by the majority in their reasons at [63]-[70] (set out above). I respectfully disagree with the majority. In her reasons the single member noted that Mr Beaton did not explain in evidence why he did not rely on performance management of Mrs McAllister, preferring to propose a change of duties and hours: at [50]. The single member accepted that the proposal was an attempt to deal with Mrs McAllister’s shortcomings: at [51]. In her reasons at [63] (set out above) the single member finds that the proposal was “only a proposal” and that what occurred on 1 June 2007 was “in effect a consultation” with Mrs McAllister about the proposal. Reading the single member’s reasons as a whole, I consider that she intended to find, and did find, that Mr Beaton acted reasonably in formulating the proposal (a mere proposal, requiring later discussion and approval) rather than resorting to and relying on performance management. As the single member said, it was only a proposal. It was yet to be approved. That required a decision by someone senior to Mr Beaton. By inference, the ultimate decision might have been to rely on performance management. For these reasons, the single member said in effect, that it was not unreasonable of Mr Beaton to formulate his proposal, rather than rely on performance management. The issue is not whether this Court, or the Full Bench, agrees with that conclusion. The finding is not subject to appeal. The issue is whether the single member’s reasons deal adequately with the case before her. I agree that her reasons on the point could fairly be described as sparse. But I am satisfied that she intended to and did deal with the issue before her. I agree with the reasons of Deputy President McCouaig (in dissent in the Full Bench), and in particular with his conclusions at [86] and [88] (also set out above). My conclusion that the single member’s reasons are adequate, and that the Full Bench erred in deciding that they were not, is sufficient to dispose of the appeal. In considering the adequacy of the single member’s reasons I have had regard to the following matters in particular.