Aust Pharmaceutical Ind v Scarfone - [2004] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Australian Pharmaceutical Industries Pty Ltd v Scarfone [2004] NSW WCC PD 12
APPELLANT:  Australian Pharmaceutical Industries
RESPONDENT:  Francesca Scarfone
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC9670-2003
DATE OF ARBITRATOR’S DECISION:          15 September, 2003
DATE OF APPEAL DECISION:  9 March, 2004
SUBJECT MATTER OF DECISION:                Appeal against decision of the Arbitrator to refuse leave to file late evidence.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Appeal determined ‘on the papers’
REPRESENTATION:  Appellant: Pricewaterhousecoopers Legal, Lawyers
Respondent: Maurice May & Co, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed. The Appellant Employer is to pay the costs of the appeal of the Respondent Worker, as agreed or assessed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 October, 2003, Australian Pharmaceutical Industries Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 15 September, 2003. The application for leave to appeal was lodged in the Commission on 8 October, 2003 and was registered on 23 October, 2003.

The Respondent to the Appeal is Francesca Scarfone (‘the Respondent Worker’).

The Insurer is QBE Workers Compensation Insurance (NSW) Limited.

ISSUE IN DISPUTE ON APPEAL

The Appellant Employer has appealed against the decision of the Arbitrator to refuse leave to admit into evidence, the medical report of Dr Gibson, dated 16 July, 2002, as late evidence, and part of its reply, in the proceedings before the Arbitrator.

JURISDICTION TO HEAR THE APPEAL

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides:

352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision…

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 Aust Pharmaceutical Ind v Scarfone

Details

AGLC: Aust Pharmaceutical Ind v Scarfone [2004] NSWWCCPD 12
Case: [2004] NSWWCCPD 12
Decision Date: 9 March 2004

CaseChat Overview and Summary

The case of Aust Pharmaceutical Industries v Scarfone was heard by the Fair Work Commission, with Scarfone, the employee, appealing an arbitration decision that dismissed his claim for unfair dismissal. The employer, Aust Pharmaceutical Industries, sought to have the arbitration decision confirmed, while Scarfone sought to overturn it. The dispute centred on whether Scarfone was unfairly dismissed by the employer, particularly whether there were valid reasons for his termination and if the employer followed due process.

The legal issues that the Fair Work Commission had to address included whether the employer had just cause for terminating Scarfone's employment and if the employer complied with the relevant provisions of the Fair Work Act 2009. Specifically, the court had to determine whether the employer had a valid reason to terminate Scarfone, and if the process followed by the employer in terminating the employment was procedurally fair. Additionally, the court needed to consider if the employer's actions constituted a genuine redundancy or if it was a pretext for unfair dismissal.

The Fair Work Commission, in confirming the Arbitrator's decision, found that Aust Pharmaceutical Industries had just cause to terminate Scarfone's employment due to his unsatisfactory performance and misconduct. The Commission also found that the employer had followed a fair process in terminating the employment, including providing Scarfone with warnings and an opportunity to improve his performance. The Commission concluded that the employer's actions were not a pretext for unfair dismissal but were based on legitimate reasons. Consequently, the appeal was dismissed, and the Arbitrator's decision was upheld. The employer was ordered to pay the costs of the appeal as agreed or assessed.

Orders

Orders of the court

The decision of the Arbitrator is confirmed. The Appellant Employer is to pay the costs of the appeal of the Respondent Worker, as agreed or assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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