Bis Industries Limited v Dale

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FEDERAL COURT OF AUSTRALIA

Bis Industries Limited v Dale [2017] FCA 789

Appeal from: Dale v Bis Industries Limited (Compensation) [2016] AATA 862
File number: QUD 887 of 2016
Judge: RANGIAH J
Date of judgment: 17 July 2017
Catchwords: ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – whether Tribunal failed to address an argument– whether Tribunal failed to provide reasons for rejecting an argument – whether Tribunal gave adequate reasons for decision – effect of termination of employment for misconduct on compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – appeal allowed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 43 and 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 8, 14, 19, 108, 108A, 108B, 108C, Divisions 1 and 3 of Part II

Federal CourtRules2011 (Cth) r 33.26(c)
Cases cited:

Australian Postal Corporation v Sellick [2008] FCA 236

Bortolazzo v Comcare (1997) 75 FCR 385

Comcare v Line (2002) 124 FCR 337

Comcare v Power (2015) 238 FCR 187

Dale v Bis Industries Limited (Compensation) [2016] AATA 862

Dornan v Riordan (1990) 24 FCR 564

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088

Dunstan v Comcare (2011) 125 ALD 362

Martin v Australian Postal Corporation (2000) 32 AAR 199

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Statham v Federal Commissioner of Taxation (1988) 16 ALD 723

Summers v Repatriation Commission (2015) 230 FCR 179

Telstra Corporation v Lyons (2003) 132 FCR 548

Telstra v Slater [2001] FCA 149

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Woodbridge v Comcare (1994) 20 AAR 196

Woodbridge v Comcare (1995) 21 AAR 201
Date of hearing: 6 April 2017
Registry: Queensland
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 89
Counsel for the Applicant: Mr PG Woulfe
Solicitor for the Applicant: HBA Legal
Counsel for Respondent: Ms J Sorbello
Solicitor for Respondent: Morton & Morton
Table of Corrections
1 August 2017 In the first sentence of paragraph 23, the word “to” has been inserted after the word “difficult”.
1 August 2017 In the second sentence of paragraph 49, the word “relevant” has been inserted after the word “is”.
1 August 2017 In the third sentence of paragraph 81, the word “as” has been inserted after the word “However”.

ORDERS

QUD 887 of 2016
BETWEEN:

BIS INDUSTRIES LIMITED
Applicant
AND:

STEVEN DALE

Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

17 JULY 2017

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The case is remitted to the Administrative Appeals Tribunal to decide again.

3.The parties file any submissions as to costs (not exceeding 5 pages) by 4 pm on 24 July 2017.

4.The parties file any submissions in response (not exceeding 5 pages) by 4 pm on 31 July 2017.

5.If submissions are filed in accordance with Orders 3 and 4, the question…

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Details
Case
[2017] FCA 789
Decision Date

CaseChat Overview and Summary

The appeal in Bis Industries Limited v Dale was heard by the Federal Court of Australia. The case involved a dispute between Mr Dale, an employee who had been injured at work, and his employer, Bis Industries Limited. Mr Dale had suffered an injury at work and had been certified unfit to work until 4 February 2014. He subsequently returned to work under a rehabilitation programme, performing administrative tasks and driving motor vehicles with automatic transmissions and power steering. On 15 September 2014, Mr Dale was found smoking at the worksite, which was in breach of the employer’s policies. Consequently, on 23 September 2014, Mr Dale was notified that his employment had been terminated for wilful misconduct. The employer subsequently determined that Mr Dale had no current entitlement to compensation under s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), stating that he had failed to continue to engage in suitable employment due to the termination of his employment.

The legal issues before the court were whether the Administrative Appeals Tribunal (AAT) had failed to address an argument, failed to provide reasons for rejecting an argument, and whether the AAT had given adequate reasons for its decision. Additionally, the court considered the effect of the termination of employment for misconduct on compensation under s 19 of the Act. The court found that the AAT had failed to adequately address Mr Dale's argument regarding the impact of the employer's decision to terminate his employment on his entitlement to compensation. The AAT also failed to provide reasons for rejecting this argument and did not give adequate reasons for its decision.

The court allowed the appeal and remitted the case back to the AAT for reconsideration. The Federal Court ordered that the parties file any submissions as to costs by 4 pm on 24 July 2017, and any responses by 4 pm on 31 July 2017. If the parties complied with these orders, the question of costs would be decided on the papers. If no submissions were filed, there would be no order as to costs.

Orders

Orders of the court

1. The appeal is allowed.

2. The case is remitted to the Administrative Appeals Tribunal to decide again.

3. The parties file any submissions as to costs (not exceeding 5 pages) by 4 pm on 24 July 2017.

4. The parties file any submissions in response (not exceeding 5 pages) by 4 pm on 31 July 2017.

5. If submissions are filed in accordance with Orders 3 and 4, the question of costs will be decided on the papers.

6. If no submissions are filed in accordance with Orders 3 and 4, there will be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It is not in issue that Mr Dale was “an employee” and that he sustained “an injury”. The facts Mr Dale commenced employment with the employer on 28 June 2011 as a road-train driver. On 25 October 2013, he suffered an injury at work when a metal bar fell onto his elbow. On 26 November 2013, Mr Dale made a claim for compensation under s 54 of the Act. On 16 December 2013, the employer accepted liability pursuant to s 14 of the Act in respect of injuries described as “tear of the lateral collateral, lateral ulnar collateral ligaments and common extensor tendon insertion, left elbow”. Mr Dale was certified by doctors as unfit to work until 4 February 2014 and was subsequently certified fit for suitable duties. On 4 February 2014, he returned to full-time work, although under a rehabilitation programme. His duties under the rehabilitation programme consisted of administrative tasks and driving motor vehicles for up to four hours per day. These vehicles had automatic transmissions and power steering. Mr Dale did not return to driving road-trains. While he was undertaking the rehabilitation programme, he was entitled to payment under s 37(5) of the Act of the amount that would otherwise have been payable for his incapacity for work. On 15 September 2014, a manager found Mr Dale smoking at the work site. This was said to be in breach of the employer’s policies. On 23 September 2014, the employer wrote to Mr Dale notifying him that his employment had been terminated for wilful misconduct. By letter dated 24 September 2014, the employer (acting as a self-insurer) notified Mr Dale that it had determined that he had no current entitlement to compensation under s 19 of the Act. The letter stated that due to the termination of his employment, Mr Dale had failed to continue to engage in suitable employment. This aspect of the employer’s determination appears to relate to s 19(4)(c) of the Act. The letter stated that if Mr Dale had continued to engage in the suitable employment he would have been able to earn $2,190.33 per week. This was a reference to the “AE” part of the formula set out in s 19(2) of the Act. The letter said that his entitlement to compensation under s 19 of the Act was $0.00. The employer’s letter went on to say that the “NWE” component of the formula in s 19(2) should also be reduced to $0.00. The employer did not subsequently advance this contention before the Tribunal. The employer’s claims manager reviewed the determination. On 20 November 2014, the claims manager made a decision affirming the determination. On 17 November 2014, Mr Dale applied to the Fair Work Commission (FWC) for a remedy for unfair dismissal. The application was made outside the 21 day limitation period. On 9 December 2014, the FWC decided that there were no exceptional circumstances to warrant the grant of an extension of time and rejected the application. The Tribunal’s decision On 23 January 2015, Mr Dale filed with the Tribunal an application for review of the reviewable decision made by the employer’s claims manager. Mr Dale later filed a second application seeking review of a decision that he had no present entitlement to compensation for medical treatment under s 16 of the Act. The second application was also decided by the Tribunal, but is not relevant to the present appeal.

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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