Archbold v Toll Pty Limited - [2007] NSWWCCPD 211

WORKERS COMPENSATION COMMISSION

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

CITATION:Archbold v Toll Pty Limited [2007] NSWWCCPD 211
APPELLANT:  Stephen Archbold
RESPONDENT:  Toll Pty Limited
INSURER:Self-insurer
FILE NUMBER:  WCC17651-06
DATE OF ARBITRATOR’S DECISION:          22 December 2006
DATE OF APPEAL DECISION:  16 October 2007
SUBJECT MATTER OF DECISION: Leave to appeal – monetary threshold in section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998, ‘current weekly wage rate’, extension of time pursuant to section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant: Galluzzo Andriano
Respondent: Leigh Virtue & Associates

ORDERS MADE ON APPEAL: Leave to appeal is refused.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 8 February 2007 Stephen Archbold (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 22 December 2006.

The Respondent to the Appeal is Toll Pty Limited (‘the Respondent Employer’).

The Appellant Worker worked as a driver of heavy vehicles. He was employed by Finemores Transport, and when that firm was taken over by the Respondent Employer, he continued in the same work, in the employ of the Respondent Employer. He was based at its Enfield depot. He was the union delegate at the depot from 1999. There was a history of some interpersonal conflict between the Appellant Worker and others. His statement of 23 October 2006 described arguments between he and Allan Nolan (a manager with the Respondent Employer) in November and December 2005, which led to various meetings, the outcome of which was that the Appellant Worker was transferred to the Port Kembla depot of the Respondent Employer. He commenced at that depot from 18 January 2006 ([12] to [14] of his statement).

A statement of Noel Hepper, dispatch manager with the Respondent Employer, dated 10 April 2006, recorded he had been threatened by the Appellant Worker “in February 2005 about a work issue”. Mr Hepper stated the Appellant Worker had also told Sandra Barden “not to stand near any window that he might come back and doing a drive by shooting” (sic). It is unclear whether Mr Hepper actually witnessed this threat.

Sandra Barden, whose duties included taking minutes at ‘toolbox’ and OH & S meetings, and acting as return to work co-ordinator, wrote to Alan Nolan on 9 December 2005, complaining about aggression and verbal abuse on the Appellant Worker’s part, and saying she felt threatened for her “personal safety due to the environment which I believe is created by Steve Archbold”. The letter stated in part “He (the Appellant Worker) then commented to Rod Samuels and myself that when he leaves his employment at Toll Liquids he will come back here and ‘finish off’ or words to that effect, everyone here that he doesn’t like”. It continued “Steve (the Appellant Worker) then made another comment…

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.

Continue reading Archbold v Toll Pty Limited

Details

AGLC: Archbold v Toll Pty Limited [2007] NSWWCCPD 211
Case: [2007] NSWWCCPD 211
Decision Date: 16 October 2007

CaseChat Overview and Summary

The appeal in this case was brought by Stephen Archbold against a decision of the Workers Compensation Commission, which had dismissed his claim for workers' compensation. The claim was based on an alleged psychological injury stemming from unfair treatment and false allegations of wrongdoing at his workplace, following an incident involving a gunshot at his former workplace. The appeal raised questions regarding the applicability of certain sections of the Workers Compensation Act and the determination of the monetary threshold for leave to appeal. The Acting Deputy President of the Workers Compensation Commission, Michael Snell, examined whether the monetary threshold for leave to appeal was met, as well as whether the appeal was lodged within the required time frame. The Appellant Worker's claim for compensation, based on probable gross earnings, did not meet the monetary threshold of $5,000, as the compensation sought would have been less than this amount. Moreover, the appeal was lodged outside the prescribed 28-day time frame, and the Appellant Worker failed to demonstrate "exceptional circumstances" to warrant an extension of time. Consequently, the Acting Deputy President, Michael Snell, refused leave to appeal and made no order as to costs of the appeal.

Orders