Booth v Central West Pathology Service
[2007] NSWWCCPD 205
•4 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Booth v Central West Pathology Service [2007] NSWWCCPD 205
APPELLANT: Allison Sarah Booth
RESPONDENT: Central West Pathology Service
INSURER:Treasury Managed Fund, GIO Limited
FILE NUMBER: WCC15004-06
DATE OF ARBITRATOR’S DECISION: 6 February 2007
DATE OF APPEAL DECISION: 4 October 2007
SUBJECT MATTER OF DECISION: Section 11A Workers Compensation Act 1987; sufficiency of reasons for decision; weight of evidence.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Higgins and Higgins
Respondent: DLA Phillips Fox
ORDERS MADE ON APPEAL: 1. Time to apply for leave to appeal extended to 15 March 2007.
2.The decision of the Arbitrator dated 6 February 2007 is confirmed.
3. No order as to costs.
BACKGROUND TO THE APPEAL
On 15 March 2007 Allison Sarah Booth (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 February 2007.
The Respondent to the Appeal is Central West Pathology Service (‘the Respondent’).
The Appellant, who was born on 23 October 1965, was employed by the Respondent as a Scientific Officer in 1999. The Appellant initially took up her duties at the Bathurst Laboratory of the Central West Pathology Service which was conducted by the Respondent. Shortly after commencement of her employment the Appellant was assigned to the Respondent’s Lithgow laboratory for the purpose of establishing a microbiology department. Following establishment of the department the Appellant was transferred to the Lithgow laboratory on a fulltime basis. It is relevant to note that the Appellant took up her duties with the Respondent at the same time as did her partner, Richard Kleinbergs. Mr Kleinbergs’ position was that of Chief Hospital Scientist at the Lithgow laboratory.
The Appellant remained in this position until 22 October 2004 at which time she ceased duties by reason of alleged incapacity resulting from work related injury. It appears that at relevant times there were, including the Appellant and her partner Mr Kleinbergs, six staff members at the Lithgow laboratory. The evidence establishes that, at the very least, there was, among the staff members at that laboratory, a significant degree of disharmony. It is the Appellant’s case that during her employment the laboratory was subject to significant economic “cut backs” which placed considerable strain both on herself and her fellow staff members. Relations between the Appellant and her co-workers became strained and her relationship with fellow worker Ms Gardiner was especially strained. By mid 2004 the Appellant’s relationship with fellow staff members, excluding Mr Kleinbergs, had deteriorated to the point where it was her perception that she had been ostracised and she felt “very isolated”. The Appellant alleges that by July 2004 she had become very lethargic and depressed and that she was losing sleep.
In mid July 2004 the Appellant, by reason of her concern with respect to Ms Gardiner’s conduct and attitude, telephoned Ms Barker, the Respondent’s Business Manager seeking “outside intervention and mediation” between herself and Ms Gardiner. The Appellant stated in evidence that she had “received no reply” to her request and that two weeks later she received notification of a “grievance” having been lodged against her.
The Respondent’s Human Resource Manager, Richard Elligett took steps to have an “external Investigator” appointed to address the matters raised in the grievance. That Investigator, Helen Colbey, conducted an investigation and the final interviews conducted by her took place on 15 October 2004 being interviews with the Appellant and Mr Kleinbergs. Before completion of the investigation by Ms Colbey and delivery of her report Mr Elligett was informed of certain conduct of the Appellant and Mr Kleinbergs which led to a meeting attended by the Appellant, Mr Kleinbergs, Ms Anne Clarke, Union Representative, Margaret Barker, John White and Mr Elligett. That meeting occurred on 22 October 2004.
The Appellant was informed at that meeting that she and Mr Kleinbergs were to discontinue work immediately, that they had been granted “paid special leave” and that they were each to report the following Monday to the Bathurst laboratory of the Respondent or take leave if they so wished. The Appellant ceased work and subsequently arranged a consultation with her Medical Practitioner, Dr Yin.
The Appellant remained off work following the meeting on 22 October 2004 and claimed workers compensation benefits through her Solicitors by letter dated 19 November 2004. That correspondence alleged receipt by the Appellant of an injury on 22 October 2004 during the course of her employment. It was stated that the Appellant suffered from “stress, anxiety and depression” and a claim was made in respect of weekly payments and medical expenses. That claim was declined by the Respondent.
An Application to Resolve a Dispute (‘ARD’) was filed on behalf of the Appellant in the Commission on 19 September 2006. That ARD alleged the occurrence of an injury on 22 October 2004 and the injury description was that of “stress, anxiety and depression”. The Appellant claimed weekly benefits compensation, medical, hospital or related expenses and lump sum compensation with respect to permanent impairment/pain and suffering. That Application came before an Arbitrator for conciliation/arbitration on 11 January 2007 and a Certificate of Determination issued on 6 February 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 6 February 2007 records the Arbitrator’s orders as follows:
“1.Award for the Respondent in respect of the Applicant’s claims for weekly benefits, medical, hospital or related expenses, permanent impairment and pain and suffering.
2.That the Respondent to pay the Applicant’s costs as agreed or assessed.”
A Statement of Reasons for Decision (‘Reasons’) accompanied the Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)whether the Arbitrator failed to give reasons or adequate reasons with respect to the application of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’);
(ii)whether the Arbitrator’s decision was against the evidence or against the weight of the evidence;
(iii)whether the Arbitrator erred in failing to determine questions of fact relevant to his decision;
(iv)whether the Arbitrator failed to determine questions as to the credit of witnesses in matters of factual dispute, and
(v)whether the Arbitrator erred in accepting facts as documented in the Respondent’s evidence with respect to matters in dispute.
The summary of the issues as set forth above is taken from the Appellant’s document headed “Statement of Grounds for Appeal” filed with the Commission on 15 March 2007. Detail of submissions and an analysis of the Appellant’s grounds of appeal appear hereunder.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant has submitted that the appeal may properly be decided solely upon the basis of the written Application and Notice of Opposition lodged.
It is submitted on behalf of the Respondent at Part A paragraph 10 of its Notice of Opposition that, by reason of the Appellant’s suggested application to adduce fresh evidence on this appeal and the Appellant’s attempt to rely upon argument not presented at the hearing before the Arbitrator, it would be “inappropriate to deal with this matter on the papers”.
The Respondent’s objections to the acceptance of fresh evidence on this appeal and its objection with respect to the presentation of submissions concerning arguments not advanced at the hearing before the Arbitrator are dealt with hereunder. It will be seen that I am of the view that the Respondent’s objections are well founded. In all the circumstances and having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
Part 16.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) governs procedural requirements with respect to appeals against an Arbitrator’s decision. Rule (11) of that Part provides:
“(11) The Commission constituted by a Presidential Member may, if a party satisfies the Presidential Member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The Appellant’s Application was filed with the Registry of the Commission on 15 March 2007. The Decision was made, in terms of section 352(4) of the 1998 Act, on 6 February 2007. It can be seen that the Appellant’s Application is in breach of the time requirements in that it was filed 9 days after expiration of the period fixed by the 1998 Act and the Rules (Part 16.2 rule (1)). The Respondent in its submissions on this appeal opposes the granting of any extension of time. Reliance is placed by the Respondent upon the decision by Snell ADP in Department of Corrective Services v Buxton [2007] NSWWCCPD 55 and argument founded upon that authority is amplified in Part A paragraphs 5-8 of the Respondent’s Submissions.
The Appellant’s Application includes a document headed “Submissions on out of time Appeal”. It is put on behalf of the Appellant that the Application was initially filed with the Registry of the Commission on 28 February 2007 and that the Registry rejected the document on the basis that it contained formal defects. The Commission file contains a letter from the Appellant’s Solicitors addressed to the Registrar dated 2 March 2007. That correspondence enclosed an Application with respect to this appeal “by way of filing”. That correspondence and the Application enclosed bears a stamp of receipt by the Registry of 5 March 2007. It therefore appears that the attempted filing of the Application was made within the time limited by the relevant provisions.
The Appellant, following correction of the deficiencies raised by the Registry, again submitted the Application for filing, as noted above, on 15 March 2007.
An examination of the Commission’s file indicates that the Arbitrator’s Statement of Reasons for Decision was forwarded by him to the Registry under cover of correspondence dated 8 February 2007. Accompanying the Reasons was a Certificate of Determination signed by the Arbitrator dated, curiously, 2 January 2007. The endorsement of that date on the Certificate is necessarily erroneous given that it predates the date of the hearing before the Arbitrator.
There is no record as to the date of dispatch to the parties of the Arbitrator’s Reasons and Certificate of Determination. What does appear on the Commission file is a copy of Certificate of Determination, as noted above, bearing date 6 February 2007. The curious aspect of the endorsement of that date is that it predates the correspondence forwarded by the Arbitrator to the Registry enclosing his Reasons and the erroneously dated Certificate of Determination. It is clear that, having regard to the state of the record, there is considerable doubt as to the correct date of issue of the Certificate of Determination. This fact, in my view, constitutes “exceptional circumstances” within the meaning of the relevant Rule.
The Appellant submits, and I accept, that the defects noted by the Registry with respect to the original form as lodged for filing were related to non-contentious matters. It is not argued on behalf of the Respondent that the delay in filing the Application has given rise to any relevant prejudice.
The principles relevant to the exercise of discretion to extend time were considered by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479. Those principles have been discussed and applied in numerous decisions of the Commission (see for example, Alexandru v State Rail Authority NSW [2004] NSWWCCPD 54).
Given my acceptance of the existence, in the present matter, of “exceptional circumstances” and the fact that the Appellant has raised substantial issues for determination in its Application I am of the opinion, that should the Appellant lose the right to seek leave to appeal, demonstrable and substantial injustice in terms of the relevant rule would likely occur.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
I formally order that time to apply for leave to appeal be extended to 15 March 2007. Having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
FRESH EVIDENCE
Paragraph 2.4 of the Appellant’s Application records that leave is not sought to rely on fresh evidence or evidence in addition to or in substitution for the evidence received before the Arbitrator. Notwithstanding that fact the documents filed in support of the appeal contain argument founded upon the content and provisions of the Hospital Scientists (State) Award and a copy of that Award is annexed to the Application. That Award was not in evidence before the Arbitrator. The arguments presented on this appeal founded upon the provisions of that Award were not advanced before the Arbitrator.
Having regard to the provisions of section 352(6) of the 1998 Act and the content of Practice Direction Number 6 relating to the process for seeking leave of the Commission to admit “new evidence” on appeal it may be seen that no such application for leave has been made on behalf of the Appellant with respect to the admission of the Award into evidence. There is no submission put on behalf of the Appellant seeking to argue that the Commission may take judicial notice of the existence and the content of such an Award.
I am of the view that the Appellant has failed to comply with the requirements of the 1998 Act and Practice Direction Number 6 with respect to any application which is required to be made with respect to the admission of the Award into evidence as fresh evidence. Shortly stated I do not treat the Appellant’s submissions as constituting an application for leave to give new evidence and accordingly the content and provisions of the Award identified above is not treated as constituting part of the evidence on this appeal.
EVIDENCE AND SUBMISSIONS
Evidence
The documentary evidence that was before the Arbitrator was noted by him at paragraph 13 of his Reasons. No oral evidence was taken at the hearing. The hearing before the Arbitrator was recorded and a transcription of that recording is before the Commission (‘Transcript’). That Transcript records the submissions put on behalf of each party.
The documents tendered on behalf of the Appellant included an undated copy of “Grievance” which, whilst unsigned is stated to have been prepared by Mr Kleinbergs and the Appellant “against MWAHS and various staff of same”. That document contains a lengthy and detailed summary of complaint as against “MWAHS” as well as a number of named individuals, each being employees of the Respondent as well as complaint as against Helen Colbey the person appointed to investigate a grievance lodged as against the Appellant. There is no evidence relevant to this particular document and it is unknown as to when or whether such grievance was formally lodged.
There were two Statements made by the Appellant in evidence before the Arbitrator, the first dated 15 May 2005 and the second dated 21 September 2005. The first of those Statements outlines the personal and occupational background of the Appellant and proceeds to describe in detail the numerous difficulties perceived by the Appellant concerning her employment with the Respondent. Particular attention is given in that Statement to the consequences of there being financial constraints imposed with respect to administration of the laboratory and to the personal difficulties encountered with a fellow employee Ms Gardiner. The Appellant states that during a period when Ms Gardiner was absent on leave the laboratory “ran more harmoniously”. The Appellant states that Ms Gardiner’s work “appeared slipshod and rushed” and the Statement records that informal complaints had been made to the Appellant by “nurses, patients and doctors” to her with respect to Ms Gardiner’s behaviour. The Appellant details particular incidents involving the conduct of Ms Gardiner and it is stated that:
“… relations between Ms Gardiner and myself had deteriorated to a point when [sic] I felt extreme desperation and depression. I felt unable to partake in universal activities, and withdrew badly from the lab interactions.”
The Appellant proceeds to state that she made a request of Ms Barker for “outside intervention and mediation” between Ms Gardiner and herself. It is stated that this communication took place in mid July 2004 and it is said that the Appellant received “no reply”. It is further stated that two weeks thereafter the Appellant received notification of a grievance that had been lodged against her. The Appellant states that several weeks passed before the “basis of the grievance was made known” to her and her partner, Mr Kleinbergs. That period of time was described by the Appellant as being one “of tension and uncertainty”. The Appellant states that she took steps to contact Mr Jon Wilbey the “EAP person” for support. In her dealings with Mr Wilbey the Appellant states that she “lost any confidence in the confidentiality of the service provided. It added to my feelings of isolation.” The Appellant proceeds to state that the complaints made against her “were either applicable to all staff, or were untrue, personal in nature, or a complaint against the quality management systems which the laboratory is regulated to work under.” The Appellant proceeds to state that on the occasion of her “removal from the lab on 22/10/04” she had been accused of “reprisals because I attempted to make a staff member aware of errors that were being made, and tried to provide support and comfort to an upset staff member”. The Appellant proceeds to state that she “felt insubstantial and worthless by the attitude and treatment and by my removal from the lab and during the interview with MWAHS officials”. The Appellant further records that she had consulted a local Medical Practitioner, a Specialist Counsellor and had been under treatment for insomnia and depression. The Appellant states that she had been off work since 22 October 2004 and that she is “totally unfit to return to any form of employment indefinitely”.
The latter Statement made by the Appellant dated 21 September 2005 contains 21 numbered paragraphs which are stated by her to be directed to “demonstrate section 11a [sic] does not apply”. This Statement pays particular attention to the personal relationship and perceived difficulties with the fellow worker Ms Gardiner. The Statement contains a reiteration of some of the matters addressed in the earlier Statement and it is further stated that Mr Elligett, Human Resources Manager, had failed to “fulfil his job” in failing to assist his staff. The Appellant’s Statement also contains detail concerning events which occurred some considerable time after the date upon which she ceased her employment, namely 22 October 2004.
Also before the Arbitrator were copies of correspondence from the Respondent addressed to the Appellant concerning proposed termination of her employment which were dated a considerable period of time after her cessation of work.
There was before the Arbitrator a report from Ms Wendy Savill, Consultant Counsellor dated 31 March 2005. Ms Savill records that the Appellant first presented for counselling on 10 March 2005. A history is there recorded that the Appellant had:
“been suffering from stress, anxiety and depression and has been unable to work since 22 October 2004. Ms Booth feels this condition has been caused by workplace harassment and character annihilation at work since May, 2003.”
Ms Savill was of the opinion that the Appellant demonstrated symptoms of stress, anxiety and depression and that she presented:
“visibly anxious and extremely emotional, visibly shaking expressing her inability to sleep and eat properly and has trouble putting her thoughts together, or doing daily domestic tasks.
Ms Savill was of the opinion that the appropriate diagnosis was that of depression, anxiety and stress. Ms Savill noted that she had been consulted by the Appellant on two occasions the last being 17 March 2005 and expressed the following view:
“5.My opinion as to the relationship between Ms Booth’s condition and the injury sustained is definitely consistent.”
Ms Savill also expressed the view that the Appellant was “definitely unfit for her pre-injury occupation”.
Included in expert medical evidence before the Arbitrator were four reports from Dr Yin dated 19 January 2005, 12 May 2005, 14 July 2005 and 27 September 2005. Dr Yin’s clinical notes were also in evidence. The earliest entry in Dr Yin’s clinical notes as tendered in evidence relates to a consultation by the Appellant on 11 October 2004 where a history is recorded as follows:
“Insomnia 1-2 hrs per night for 3/52. Stresses at work. Discussion.”
It is recorded that Dr Yin prescribed Normison 10mg tablets. The next recorded consultation with Dr Yin by the Appellant was that of 25 October 2004 where a history was taken in the following terms:
“Similar problem. unable. depression. 2nd. lot work today. difficult to cope with.”
Again it is recorded that Normison was prescribed.
Dr Yin’s report of 12 May 2005 records a history of interpersonal conflicts between the Appellant and fellow staff members and “inability of the Area Health Service to provide constructive resolutions to these problems”. It seems from the terms of the report that that history was taken on 25 October 2004. Dr Yin’s diagnosis was that of reactive depression, anxiety and insomnia due to work related stressors. Dr Yin expressed the view:
“I have no doubt that the current interpersonal conflict between staff at her workplace contributed fully to her reactive depression. This progressively worsened and required medical treatment.”
An earlier report of Dr Yin dated 19 January 2005 is a letter of referral addressed to Dr Andrew Frukacz, Psychiatrist. The report dated 14 July 2005 of Dr Yin is addressed to Health Quest and appears to certify that the Appellant suffered anxiety attacks and that it would not be in the patient’s interests to have to travel long distances.
The report from Dr Yin dated 27 September 2005 purports to address issues raised by the provisions of section 11A of the 1987 Act.
There was before the Arbitrator a report from Dr Frukacz, Consultant Psychiatrist, dated 3 May 2005. That report records a history of problems encountered by the Appellant with a fellow Technician at her workplace and Dr Frukacz concluded that the Appellant was suffering from a major depressive disorder (with reference to DSM IV criteria). That report contains a summary of the Appellant’s symptoms. The Doctor observed:
“… that the depression began after she was accused of harassing one of the other Technicians in the pathology laboratory, and that the occupying thoughts are to do with the work situation and these are persistent then history is consistent with the situation at work being a direct causative factor to her depression.”
It was Dr Frukacz’ opinion that the Appellant was not fit for her pre-injury occupation.
The report of Dr Frukacz dated 20 September 2005 purports to address issues relevant to the application of section 11A of the 1987 Act to the history as provided to him by the Appellant.
There were copies of clinical notes compiled by Ms Savill with respect to the Appellant’s consultations. Included in the detail recorded by Ms Savill was the note “grievance procedure” and the notation “22 Oct sick leave”. Ms Savill noted that the Appellant reported “workplace character annihilation since May 2003. Seems there is a [sic] agenda to get them out of the workplace. Female jealously toward Alli.” That record also includes progress notes concerning consultations with the Appellant up to and including 12 October 2005.
There were a number of WorkCover NSW Medical Certificates issued by Dr Yin in evidence before the Arbitrator concerning treatment of the Appellant. The first of those certificates is dated 4 November 2004. Dr Yin records in response to the pro forma “How the injury occurred”:
“Stress associated with handling of grievance procedures and complaints”.
“Date of Injury” was noted as “22.10.04”.
Dr Yin expressed his opinion in that certificate that the Appellant was unfit for work.
The last certificate issued by Dr Yin (which is not a WorkCover pro forma certificate) certifies as to a diagnosis of depression and states that the Appellant was unfit to work from 17 June 2005 to 17 August 2005.
The Arbitrator also had before him a large volume of wage records relating to both the Appellant and comparable employees.
The Respondent adduced a large volume of documentary evidence before the Arbitrator the first item of which was a “Deed of Release” dated 16 August 2006. That document was admitted into evidence over the objection of the Appellant’s representative at the hearing. The Release came into being upon settlement of a claim brought by the Appellant against the Respondent with respect to alleged unfair dismissal. Included under the heading “Recitals and Warranty” was the following:
“E.The Releasor warrants that as and from 14 August 2005, she was ready, willing and able to return to full employment duties without restriction or limitation.”
Under the heading “Operative Provisions” and the subheading “Confidentiality” the Deed contained the following notation:
“4.3The Releasor permits the Releasee to tender this deed in any workers compensation proceedings which the Releasor may bring.”
That Deed was executed by the Appellant and on behalf of the Respondent.
There was before the Arbitrator a “briefing note” dated 22 October 2004 said to be authored by Richard Elligett, Human Resource Manager of the Respondent and is addressed to the Director, Finance and Corporate Services, the Deputy Administrator and the Administrator. The subject of that briefing note is an “alleged breach of the Protected Disclosures Act during the course of an investigation into alleged misconduct” on the part of the Appellant. It also relates to a similar allegation of misconduct on the part of the Chief Hospital Scientist, Mr Kleinbergs. That note records that complaints were lodged against both the Appellant and Mr Kleinbergs in late August of 2004. The complainants, it was noted, were given protection under the Protected Disclosures Act. An external Investigator Ms Helen Colbey had been engaged by the Health Service to conduct the investigation. Final interviews of the Appellant and Mr Kleinbergs had been completed on 15 October 2004. As at the date of the briefing note Ms Colbey was “in the process of preparing her report”. The briefing note proceeds to record, relevantly, that one of the complainants, Ms Gardiner, was handed a document by the Appellant which comprised a list of recent errors that Ms Gardiner had made in conducting laboratory tests. The document records that Ms Gardiner interpreted this action as a reprisal for her complaints. These matters came to the attention of Mr Elligett following which, it is noted, discussions with other Senior Officers of the Respondent took place on the afternoon of 21 October 2004. It is noted that an agreement was reached that immediate action needed to be taken to protect all parties until the investigation was completed. It was agreed, as recorded in that document, that the only practical means of doing so was to transfer Mr Kleinbergs and Ms Booth to another site until the matter “is resolved”. The document proceeds to record a meeting between Mr White, Ms Barker and Mr Elligett with Mr Kleinbergs and Ms Booth who were in the company of a Union Representative, Ms Pam Clark. That document records that the Appellant and Mr Kleinbergs were advised that they would be given the remainder of the day as paid special leave and that on the following Monday they were to report for duty at the Bathurst laboratory of CWPS. It is noted that, in the alternative, they would be supported in accessing any leave entitlements. Both the Appellant and Mr Kleinbergs indicated that they were stressed by the situation and would be visiting their Medical Practitioners seeking a period of sick leave. The document records that the Appellant, Mr Kleinbergs and Ms Clark were left by the Respondent’s Officers in the interview room to allow an opportunity to discuss the matter with the Union Representative. The document proceeds to record:
“Once all parties were reassembled in the room, Mr Kleinbergs and Ms Booth indicated, with some reluctance, that they accepted the decision to remove them, temporarily, from the laboratory as long as it was made clear that it was not a disciplinary measure. Mr White undertook to confirm this in writing.”
There was before the Arbitrator a document headed “Minutes of Meetings held at Lithgow Community Hospital Friday 22nd October 2004 commencing at 0915 hours”. This document purports to record events which took place at the subject meeting. Of significance the following notation is contained under the heading “Outcome”:
“The following options were offered to Richard & Alison until the investigation is finalised.
1.Richard & Alison relocate to Bathurst Laboratory and participate in that laboratory’s shifts & rosters.
2.Richard & Alison may take their leave entitlements if they wish.
Pam Clarke, HSU representative, then held private discussions with Richard & Alison. It was agreed that they both complete their shift for the day on full salary. It was agreed that Richard & Alison contact M Barker to advise her of their decision. Richard Elligett then held further discussions relating to human resource issues with Richard & Alison.”
There was before the Arbitrator a copy of correspondence dated 22 October 2004 addressed to the Appellant. That correspondence confirmed the proposed transfer of the Appellant to the Central West Pathology Laboratory at Bathurst as from Monday, 25 October 2004. That correspondence further noted that the transfer:
“will extend until the current investigation into allegations which have been made regarding your contact as second in charge at the Lithgow laboratory has been finalised, and all associated actions completed.”
A voluminous report from Helen Colbey bearing date “October 2004” relating to her investigation into alleged inappropriate conduct by the Appellant was before the Arbitrator. That document contains a summary of the issues to be investigated and the substance of Ms Colbey’s investigations. Such investigation included the Appellant’s responses to allegations made. Ms Colbey exhaustively describes the investigative process and made the following recommendations:
“RECOMMENDATIONS
It is recommended that:
(1) CWPS AND MWAHS should consider the findings of this report and provide appropriate feedback to Ms Booth the (sic) staff who lodged the protected disclosures as to the outcome of the investigation
(2) Ms Booth should be formally counselled about:
(a) the inappropriateness of her conduct in allowing a patient to take blood from her and warned that any similar conduct in the future may result in disciplinary action;
(b) the inappropriateness of using the Lithgow laboratory telephone number in an advertisement to sell a horse float; and
(c) the need to ensure that she gives appropriate priority to her role in the day to day work of the laboratory as opposed to updating and other work associated with the manuals.
(3) CWPS and MWAHS in consultation with Ms Booth develop a performance improvement plan for Ms Booth that addresses the areas identified in this report where she requires enhancement of her skills particularly interpersonal relationship, staff supervision and performance management and team building.
(4) CWPS and MWAHS should consider relocating Mr Kleinbergs and/or Ms Booth to another Laboratory to overcome the perceived and actual conflict of interest in the situation where they are partners and Ms Booth directly reports to Mr Kleinbergs.
(5) In the event that for industrial or other reasons the above recommendation cannot be implemented, it is recommended that in consultation with all staff from the Lithgow Laboratory an appropriate strategy should be developed and documented that deals with the matters raised in this report about conflict of interest including but not limited to issues concerning the following areas that relate to Ms Booth. In these areas Ms Booth should be managed by the Business Manager and not by Mr Kleinbergs:
Leave
Staff Development and Training
Higher duties
Overtime
Time in Lieu
Incremental progression
(6) CWPS and the Area should address the confusion that is evident about the application of the NATA requirement for a designated 2IC position and the impact that this has on other positions in the Laboratory in an organisational, HR and Industrial relations sense. Decisions relating to the outcome of this review should be appropriately documented and conveyed to all staff.
(7) Duty statements for Technical Officer/Scientific Officer should be updated to reflect the role undertaken in the development and continuous updating of technical manuals.
(8) MWAHS should review the apparent inconsistencies in a number of policies as set out in this report as to the expected standards relating to the use of the internet and email for private purposes and clarify this situation with all staff as appropriate.
(9) CWPS should review the rostering arrangements at Lithgow in consultation with the staff to ensure that perceptions relating to lack of equity as a consequence of Mr Kleinbergs and Ms Booth being partners and wanting to maximise their opportunity to start and finish at the same time and always have lunch together are addressed.
(10) MWAHS should review its policy relating to work experience students and clarify and document issues concerning insurance coverage.
(11) CWPS should consider implementing a formal performance improvement plan for Ms Gardiner to enhance her skills particularly in relation to interpersonal relationship, team building and other technical areas relating to the skill requirements of her position.”
There was before the Arbitrator a report by Dr Klaas Akkerman, Psychiatrist, dated 17 December 2004 relating to a consultation which took place on that date with the Appellant. That report includes a notation of the history given by the Appellant and it was noted that the symptoms enumerated by the Appellant had “started in July 2004”. Dr Akkerman expressed the following view as to diagnosis:
“DIAGNOSIS
She has some minor symptoms. These symptoms do not reach DSM-IV criteria for any psychiatric disorder. She does not and has never suffered from any psychiatric disorder. The symptoms are secondary to the disciplinary action at work. Her employment is a substantial contributing factor through the disciplinary action for the minor symptoms that she has. However, she does not suffer from a psychiatric disorder.”
Dr Akkerman proceeded to state that he did not believe that the Appellant required any further treatment and that there was no permanent impairment.
There was before the Arbitrator a report produced by Protocol Investigations dated 8 February 2005. That report included much material that the parties had otherwise adduced in evidence.
It is to be noted that there is a large volume of documentary material presented at the hearing which was described by the Appellant’s representative as being irrelevant to the claim . No specific objection was taken to particular material and it was stated by Counsel then appearing for the Respondent that:
“I don’t seek to rely on documents that aren’t relevant to the proceedings, these proceedings. To the extent that they’re not relevant, I don’t seek to rely on them. I don’t propose, unless you require me to, to go and excise them from the Reply.”
That approach was accepted by the Arbitrator and I note that no subsequent objection was taken to any specific item other than the Deed of Release as above noted.
Submissions
Documentation filed by the Appellant in support of this appeal include an enumeration of five separate “grounds of appeal” which have been summarised in paragraph 12 above. There follows what is described as “Background” to the appeal. That portion of the document headed “Background” is a lengthy summary of matters relevant to the relationship between the Appellant and her fellow workers and purports to summarise matters relevant to actions taken by or on behalf of the Respondent with respect to interpersonal conflict among its staff members at the subject laboratory. Unhelpfully, that “Background” statement includes an attempted summary of matters which relate to alleged injury and incapacity sustained by the Appellant’s partner Mr Richard Kleinbergs.
Reference is made in this “Background” summary to the Appellant’s attendance at a meeting on 22 October 2004 at which numerous matters were discussed including the proposed transfer of the Appellant to Bathurst. Of significance it is put on behalf of the Appellant that:
“The Applicant’s (sic) considered the transfer unreasonable in the circumstances and as a result of the transfer had a decompensation and suffered psychiatric injury for which compensation was claimed.”
This part of the Appellant’s submissions also includes an assertion that “the primary issue” that was raised for determination before the Arbitrator was the “reasonableness or otherwise of the Respondent’s conduct” in relation to “the investigation and transfer (including the employer’s failure to deal with their (sic) grievances”. There follows a detailed submission founded upon suggested breach of the terms of the Hospital Scientists (State) Award. I have earlier ruled that Award is not in evidence in these proceedings (paragraph 32 above). I also note that no such argument was advanced on behalf of the Appellant at the hearing before the Arbitrator. There is, founded upon public policy, a general prohibition against raising new points on appeal. Notwithstanding such prohibition it is clear that there is no absolute bar to raising new points upon appeal (see discussion by the High Court of Australia in Calin v The Greater Union Organisation Pty Limited [1991] 173 CLR 33). In all the circumstances of the present matter I conclude that the Appellant should not be permitted to raise the arguments founded upon terms of the industrial Award.
The Appellant further submits that the Arbitrator, when addressing the “reasonableness” of the Respondent’s actions failed to:
“deal with the Applicants’ (sic) case directly or give any reasons in relation to his findings specifically dealing with the Applicants (sic) complaints about the unreasonableness of the transfer and the consequences that would flow therefrom”.
It is further submitted that the Arbitrator erred in finding that the “transfer was agreed upon”.
The Appellant’s submissions under the heading “Background” include an analysis of aspects of the evidence before the Arbitrator including correspondence from the Respondent to the Appellant dated 22 October 2004 and the minutes of the meeting which was conducted on that date. Those submissions, to some extent, seek to reiterate arguments raised with respect to factual matters at the hearing before the Arbitrator.
It is submitted under heading “The Appeal” that an Arbitrator, in giving a decision, must “make it clear and explain and give adequate reasons to explain the essential ground or grounds upon which the decisions (sic) rests …”. It is put that the role of the Arbitrator in the Commission is to “investigate in an inquisitorial manner” and that in the present case the Arbitrator has failed to do so and, in particular has failed to make findings “in relation to the factual dispute giving rise to the matter”. It is further argued that the Arbitrator’s decision “shows a misunderstanding of the facts or issues between the parties”. It is put that the Arbitrator’s finding with respect to the reasonableness of the Respondent’s conduct was “glaringly improbable”. It is argued that such finding was against the weight of the evidence and, as such, constitutes an error of law.
Under the heading “Medical Expenses” it is stated that it was “incorrect” that there was “no evidence from the Applicant” with respect to medical expenses. It is asserted under this heading that in fact accounts and receipts “were available but not necessary to be produced on the preliminary issue of liability”.
Under the heading “Reasonableness” the Appellant enumerates 12 separate and distinct assertions which appear to address the fact finding process. A number of those assertions address the question of suggested breach of an industrial Award. For the reasons as stated above I consider that those arguments should not be permitted on this appeal. A number of the assertions under the heading “Reasonableness” make reference to matters which occurred after the Appellant ceased employment and concern the termination of the Appellant’s employment with the Respondent. These matters were not specifically addressed in the evidence before the Arbitrator nor was argument raised before the Arbitrator with respect to these matters. In the circumstances including a consideration of the issue of relevance, I conclude that the arguments addressing the suggested unlawful termination of the Appellant should not be permitted on this appeal.
The Respondent in its “Reply to Grounds of Appeal and Submission in Support” enumerates each ground relied upon by the Appellant and seeks to refute those arguments raised by the Appellant and to support the conclusions reached by the Arbitrator as revealed in his Reasons.
The Respondent has placed reliance upon the decisions of the NSW Court of Appeal in Haris v Bulldogs Rugby League Club [2006] NSWCA 53 (‘Haris’) and Beale v GIO of NSW (1997) 48 NSWLR 430l (‘Beale’) in support of the Arbitrator’s reasoning process. With respect to the Arbitrator’s conclusion that the Appellant’s condition had been wholly or predominantly caused by the communication of the proposed transfer it is the Respondent’s argument that such conclusion was reached following a proper “weighing” of all the relevant evidence and that the Arbitrator’s Reasons for so concluding were sufficient “in that there was a clear process of reasoning to permit Appellate review and detect appellable error”. Concerning the question as to whether the Respondent’s action with respect to the transfer was “reasonable” in terms of section 11A of the 1987 Act the Respondent draws attention to the relevant parts of the Arbitrator’s Reasons and it is argued that such were sufficient as required by law and reliance is again placed upon the decisions of Haris and Beale.
With respect to the Appellant’s ground suggesting that the Arbitrator’s decision was against the evidence or the weight of the evidence the Respondent makes detailed submissions in relation to the Arbitrator’s finding as to reasonable action by the Respondent and reference is made, in particular to the evidence contained in the report by Ms Colbey. These arguments are addressed below.
With respect to the Appellant’s grounds which suggest error on the part of the Arbitrator in “failing to consider the Appellant’s evidence” and “failing to make findings on credit” the Respondent argues that the Arbitrator’s findings should not be disturbed having regard to the principles stated by the High Court of Australia in Warren v Coombes (1979) 142 CLR 531 (‘Warren’). It is put on behalf of the Respondent that:
“… the Commission ought not disturb the Arbitrator’s findings of fact in relation to the evidence which he preferred unless satisfied that the Appellant has discharged the onus of proof of establishing that the decision was clearly incorrect.”
This submission and associated arguments put by the Respondent are addressed below.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that afore mentioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
Each of the five grounds raised by the Appellant challenging the Arbitrator’s determination of the issues before him assert error on his part with respect to his findings of fact. It is put that the Arbitrator’s fact finding process was flawed having regard to his failure to provide reasons or adequate reasons with respect to the application of section 11A; that the decision was against the evidence or the weight of the evidence; that the Arbitrator failed to make findings with respect to particular matters of fact relevant to his decision; that there was a failure to address questions of credit in cases of factual dispute and that the Arbitrator erred in acceptance of documentary evidence which was disputed by the Appellant.
Before addressing the matters raised in argument by the Appellant it is convenient to examine the Arbitrator’s Reasons to determine those findings of fact made by him which led to his ultimate determination.
The question as to whether the Appellant had, on the evidence, satisfied the Arbitrator that she suffered an injury being a psychiatric injury arising out of or in the course of her employment was addressed by him between paragraphs 34 and 38 of his Reasons. That issue was determined in the Appellant’s favour. It is clear that the Arbitrator rejected the evidence of Dr Akkerman whose report was tendered on behalf of the Respondent and accepted the medical and other expert evidence relied upon by the Appellant. Following a discussion of the evidence the Arbitrator concluded:
“38.I find that the Applicant’s psychiatric injury arose out of her transfer from Lithgow to Bathurst which was communicated to her on 22 October 2004.”
The Respondent’s reliance upon the provisions of section 11A required a determination by the Arbitrator as to whether the Appellant’s psychological injury was wholly or predominantly caused by reasonable action taken by the employer with respect to the subject transfer. The operation of section 11A upon the facts as proven was addressed by the Arbitrator between paragraphs 39 and 43 of his Reasons. Following a summary of evidence relevant to the conduct of the meeting the Arbitrator concluded:
“43.In my view, the Respondent has acted reasonably and appropriately with respect to the Applicant in terms of section 11A of the 1987 Act. No compensation is therefore payable and it is not therefore necessary to address the submissions regarding incapacity.”
The Appellant’s first ground of appeal is framed as follows:
“1.The Arbitrator failed to provide reasons or adequate reasons in finding section 11A applicable.”
It must be noted that the form of the Appellant’s submissions is such that I accept the general proposition put on behalf of the Respondent that there is no clear identification of the bases upon which the suggested failure on the part of the Arbitrator is demonstrated in his Reasons.
Section 11A(1) provides:
“11A (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provisions of employment benefits to workers.”
The Arbitrator has found that the Appellant suffered a “psychological injury” and, at paragraph 39 of his Reasons, embarked upon a paraphrase of the provision. The words “wholly or predominantly” were not stated by the Arbitrator. That concept of “wholly or predominantly” as it appears in section 11A(1) does not appear in the course of the Arbitrator’s Reasons. In the context of the dispute between the parties such an omission may be criticised and indeed arguably constitutes error on the part of the Arbitrator. However it is my view that the Arbitrator’s finding in paragraph 38 of his Reasons as above noted makes it clear that he has determined that the subject injury “arose out of her transfer from Lithgow to Bathurst which was communicated to her on 22 October 2004”. The Arbitrator further noted, at paragraph 41 of his Reasons-
“41.The evidence is that it was the transfer of the Applicant from the Lithgow laboratory to the Bathurst laboratory which was the major incident that precipitated the Applicant’s condition into a psychological injury.”
It is apparent from the manner in which the Arbitrator’s Reasons were stated that he had accepted the evidence with respect to causation of the psychological injury which he had summarised at paragraph 36 of Reasons. It is clear that the Arbitrator has found that the transfer was the predominate or sole cause of the subject injury (cf State Transit Authority of NSW v Chemler [2006] NSWCA 249 ).
Notwithstanding the omission on the part of the Arbitrator to make reference to the statutory terms “wholly or predominantly” I am of the view that the reasons expressed by the Arbitrator are such as to meet the standard as stated by the NSW Court of Appeal in Beale. I am fortified in this view having regard to a paragraph which appears under the heading “Background” which forms part of the Appellant’s argument on this appeal which states:
“The Applicants (sic) considered the transfer unreasonable in the circumstances and as a result of the transfer had a decompensation and suffered psychiatric injury for which compensation was claimed.”
Such an assertion plainly, in my view, infers an acceptance by the Appellant that the action taken on behalf of the Respondent with respect to the proposed transfer on 22 October 2004 “wholly or predominantly caused” the subject psychological injury.
It was put on behalf of the Appellant, again under the heading “Background” that:
“The primary issue between the parties was the reasonableness or otherwise of the Respondent’s conduct in the matter in which the Applicants (sic) were treated both in relation to the investigation and transfer (including the employer’s failure to deal with their grievances).”
The Arbitrator in his Reasons has addressed the “reasonableness” of the Respondent’s actions with respect to the transfer. Having regard to his conclusions of fact as to causation of the subject psychological injury it was in my view unnecessary to examine the “reasonableness” of the Respondent’s conduct with relation to management and response to the disharmony among the workforce at the Lithgow laboratory nor with respect to the conduct of the investigation by Ms Colbey. The question as to whether such a finding as to causation was open on the evidence is addressed hereunder.
The Arbitrator’s reasons as expressed with respect to the issue of “reasonableness” are indeed brief. Notwithstanding the Arbitrator’s economy of expression it is clear that in reaching his conclusion as to the reasonableness of the Respondent’s action he had taken into account relevant evidence. Specific reference was made by the Arbitrator to the contents of the minutes of the meeting conducted on 22 October 2004. It is clear from the Arbitrator’s Reasons that, with respect to the question of “reasonableness”, he had placed significant reliance upon the contents of those minutes. That evidence contained a record that the particular purpose of the meeting was “in reference to two items of recent written correspondence” one being a memo from the Appellant to Ms Gardiner. It is, in my view, plain that the Arbitrator accepted that the Respondent’s action with respect to the transfer was taken, as quoted by him at paragraph 41 of Reasons, “to protect the wellbeing of all concerned while the investigation process was in place”. Whilst the reasons as stated by the Arbitrator are brief it is my view that the Arbitrator has expressed reasons which were sufficient to enable exposure of his reasoning process with respect to the issue of “reasonableness”. It being plain following an examination of the Arbitrator’s reasons as to the basis upon which he found “section 11A applicable” it is my view that this ground fails.
The second ground relied upon by the Appellant was:
“2.The Arbitrator’s decision was against the evidence or the weight of the evidence.”
It appears from the contents of paragraph 2 under heading “The Appeal” which forms part of the Appellant’s Submissions that this ground is directed specifically to the Arbitrator’s finding as to the “reasonableness” of the Respondent’s action. It is put that the Arbitrator’s decision “shows a misunderstanding of the facts or issues between the parties” and further that the decision was “glaringly improbable” as stated in Sutherland Shire Council v Dietz 2004 NSWCA 53 (‘Dietz’). It is put that such a conclusion constitutes error of law.
At the outset I note that I reject the Respondent’s submissions with respect to this ground appearing in paragraphs 34 and 36 of Submissions which make reference to the report of Ms Colbey. It is my view that those submissions contain two distinct errors. Firstly, the evidence is unequivocal that Ms Colbey’s report had not been published as at the date of the meeting which took place on 22 October 2004. Therefore the contents of that report can be in no way relevant to a determination by the Arbitrator of the question of “reasonableness” of the action with respect to transfer. Secondly, it is suggested (at paragraph 36) that a recommendation was made by Ms Colbey with respect to consideration of disciplinary proceedings against the Appellant. No such recommendation appears in the report which was before the Arbitrator.
It is my view that there was abundant evidence before the Arbitrator to permit his conclusions as to the reasonableness or otherwise of the Respondent’s action. There was evidence that the Appellant had presented Ms Gardiner with a memo with respect to her performance of duties at a time prior to publication of Ms Colbey’s report. The minutes of the meeting conducted on 22 October 2004, which was plainly accepted by the Arbitrator as being a correct record of proceedings on that occasion, recorded that an explanation was sought from the Appellant with respect to the circumstances and timing of presentation of that memo. The Arbitrator (at paragraph 41 of his Reasons) clearly accepted that, as recorded in the minutes, the Respondent’s action with respect to transfer was founded upon the need “to protect the wellbeing of all concerned while the investigation process was in place”.
Much of the evidence in the Appellant’s case before the Arbitrator concerned the complex relationships among the workers at the Lithgow laboratory, the conflict and general disharmony among the workers and the perceived injustice of the manner in which the Respondent conducted itself in particular with respect to failure to respond to complaints by the Appellant and the conduct of investigations of a grievance filed against the Appellant. It was not, in my view, incumbent upon the Arbitrator to address the complex issues raised with respect to the management of conflict within the workplace. That is because the Arbitrator’s ultimate conclusion was that the relevant psychological injury was caused by a discrete event, namely the action taken by the employer at the meeting on 22 October 2004. It is apparent that the Appellant’s suggestion that the Arbitrator’s decision was against the evidence and the weight of the evidence is founded upon a suggested failure by him to take into account in reaching his decision the voluminous evidence relating to conflict among staff members and the Respondent’s management of same. That evidence, in my view, had no relevance to the determination of the issues raised by section 11A, in particular the question as to “reasonableness”, given the Arbitrator’s conclusion as to causation of injury. There was expert medical evidence in the Appellant’s own case which supported the Arbitrator’s conclusion as to causation and, as noted above, the nexus between the conduct of the subject meeting and injury does not, having regard to the form of the Appellant’s Submissions on this appeal, appear to be in dispute. Given the state of the evidence with respect to the issues before the Arbitrator for determination I am not satisfied that his conclusions were against the evidence or the weight of the evidence. This ground must fail.
Ground 3 relied upon by the Appellant is expressed as follows:
“3.The Arbitrator failed to make findings on facts in dispute such as would enable him to reach his decision. The Arbitrator failed to consider the Applicant’s evidence and in particular the Statements of the Applicants (sic). He appears merely to have treated the Respondent’s documents as evidence of fact when they were in dispute.”
As discussed above the issues for determination by the Arbitrator required his assessment of the evidence which related to conduct of the meeting on 22 October 2004. Neither of the Statements of the Appellant which were before the Arbitrator raise, in my view, any substantial dispute as to the relevant facts. It is clear from those Statements and the tenor of the Submissions in support of this appeal that the Appellant perceives that she was the subject of unreasonable conduct on the part of her employer on that occasion. At paragraph 35 of the Appellant’s Statement dated 15 May 2005 the following appears:
“35.On my removal from the lab on he (sic) 22/10/2004, I was accused of “reprisals” because I attempted to make a staff member aware of errors that were being made, and tried to provide support and comfort to an upset staff member. My actions were then used against me. I feel that to have let the errors would have been inappropriate as it would have compromised patient outcomes. I had attempted many other methods of communication, but had been accused (in the grievance of harassment), so attempted an approach I would not normally try, i.e. in writing. I attempted to respond to complaints made, and the reaction of my removal has added to my sense of failure and inadequacy.”
As I have earlier noted the Arbitrator’s conclusions of fact with respect to the occurrence of injury and its cause did not require a determination by him of the merits of the Appellant’s complaints with respect to her employer’s management of conflict within the workplace. I conclude that there has been no failure on the part of the Arbitrator made out with respect to his fact finding process and in particular I reject the suggestion that the Arbitrator failed to consider the Appellant’s evidence or that, in some way, acceptance by him of the Respondent’s documents as being evidence of fact was in any respect flawed. This ground must fail.
The Appellant’s fourth ground is stated as follows:
“4.The Applicant (sic) failed to make findings on credit in a matter where there was a real and genuine factual dispute.”
The assertion as contained in that “ground” is not in any meaningful way supported by the Submissions accompanying this appeal. In particular the Appellant has not identified the witnesses nor the evidence that it is suggested are in conflict.
In the absence of a specific analysis of the evidence and argument directed to conflict and issues going to credit of particular witnesses I find that this ground has not been made out. It is true that the Submissions contain numerous assertions as to the Appellant’s rejection of certain aspects of the Respondent’s case however no attention is given to the state of the evidence. I might again remark that much of what is raised on behalf of the Appellant has no relevance to the correctness of the Arbitrator’s reasoning process and approach to the evidence given that the issues addressed in submissions are not relevant to his ultimate determination. I am of the view that this ground must fail.
The final ground relied upon by the Appellant is in the following terms:
“5.The Arbitrator accepted as fact the Respondent’s documentation when those were matters that were in dispute.”
This ground appears, having regard to the content of submissions, to be directed to the matters recorded in the minutes of the meeting of 22 October 2004 and correspondence bearing that same date addressed from the Respondent to the Appellant.
Whilst it is asserted in submissions that:
“’Minutes of meeting’ as claimed by the Respondent has (sic) never been accepted or adopted by the Applicant (sic) as being a correct and accurate reflection of that meeting.”
There is no reference made to the evidence before the Arbitrator which would support that assertion. A narration of the Appellant’s perception as to suggested erroneous content in those minutes as found in the Submissions has, in my view no force, in the absence of there being evidence raising a question as to the weight and reliability of that document.
A similar flaw exists in the argument, slight though it may be, raised with respect to the contents of the correspondence dated 22 October 2004 addressed to the Appellant. It is stated in Submissions that the subject letter “misrepresented the status of their (sic) situation at that time and evidence (sic) the unreasonableness of the employer by having to so misrepresent in correspondence to them the stated reason for transfer.” The difficulty with this assertion put on behalf of the Appellant is that there is no evidence to support the suggested misrepresentation. It is my view that this ground must fail.
Having regard to my conclusions as to the merits of this appeal as set forth above it is not necessary to address the question as to the admissibility of the Deed of Release (‘the Deed’) and its force and effect. Nevertheless I consider it appropriate to deal briefly with those matters raised with respect to the Deed. The Deed, tendered on behalf of the Respondent, was clearly admissible in evidence before the Arbitrator notwithstanding the “confidentiality” clause. Contrary to what was stated during the course of submissions before the Arbitrator the “no contracting out” provision in workers compensation law in this State remains to be found in the provisions of section 234 of the 1998 Act. Whilst no argument was advanced on behalf of the Respondent that the Appellant had in some manner contracted to forego her rights to compensation benefits it was asserted that the contents of clause E of “Recitals and Warranty” constituted an admission that as at 14 August 2005 the Appellant was “ready, willing and able to return to full employment duties without restriction or limitation”. I respectfully disagree with the Arbitrator’s view expressed at paragraph 33 of his Reasons with respect to the force and effect of that “warranty”. The clause constitutes, in my view, an informal admission and it is a matter for the fact finder to assess the weight of such evidence in determining relevant questions such as incapacity. Such an admission persists beyond the date it was given but its consequences, so far as entitlement to compensation is concerned, must be assessed in the light of any other evidence adduced with respect to the question of incapacity.
Given that each of the grounds raised by the Appellant have failed, and my view that the Arbitrator’s reasoning process is not vitiated by reason of any error with respect to his adjudication concerning the force and effect of the Deed of Release, his determination must stand.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 6 February 2007 is confirmed.
COSTS
No order as to costs.
Kevin O’Grady
Acting Deputy President 4 October 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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