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Brickworks Ltd v Wright

Brickworks Ltd v Wright

Case [2022] NSWPICPD 21 7 June 2022

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Brickworks Ltd v Wright [2022] NSWPICPD 21
APPELLANT:	Brickworks Ltd
RESPONDENT:	Stewart Glenn Wright
INSURER:	Self-insured
FILE NUMBER:	A1-W1790/21
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	7 June 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 23 August 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 11A(1) of the Workers Compensation Act 1987 – reasonable action with respect to discipline: Commissioner of Police v Minahan [2003] NSWCA 239, having regard not only to the end result but to the manner in which disciplinary action was effected, Jeffery v Lintipal Pty Ltd [2008] NSWCA 138: test of reasonableness is objective; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227: employer confined to matters raised in dispute notices; ss 22 and 22A of the 1987 Act: apportionment; reasons: NSW Police Force v Newby [2009] NSWWCCPD 75
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr A Combe, counsel
Hall & Wilcox Lawyers
Respondent:
Mr P Stockley, counsel
Michael J Corbett, solicitor
DECISION UNDER APPEAL
MEMBER:	Mr P Young
DATE OF MEMBER’S DECISION:	23 August 2021

INTRODUCTION AND BACKGROUND

The respondent, Stewart Glenn Wright (the worker) held a heavy vehicle licence. He worked for RH Giles delivering concrete pipes in semi-trailers from 7 February 2005 to 14 September 2011. He was involved in a fatal accident in 2008 in the course of that employment. The worker suffered significant injuries in the accident, including head injuries and third-degree burns. He was in an induced coma for two weeks. He was diagnosed with Post Traumatic Stress Disorder (PTSD) and received “psychological interventions” over about two years. He felt that he made a complete recovery.[1]
[1] Worker’s statement 24/12/20, [10]–[19], Application to Resolve a Dispute (ARD), pp 23–24.
The worker started working with the appellant, Brickworks Ltd (Brickworks), from about 13 January 2013. The worker was elected as a union delegate in around 2017 and there was a change of management about six months later. The worker considered that safety standards slipped.[2] The worker said he was being marginalised by management when he raised safety issues. He identified a number of areas of concern that he raised with management.[3]
[2] Worker’s statement, [20]–[21], [25]–[26], ARD, pp 24–25.
[3] Worker’s statement, [33]–[34], ARD, pp 25–26.
The worker described an incident on 16 August 2019.[4] A truck was blocking one of two loading bays. Ten trucks were lined up waiting to be loaded because of the blocked bay. The worker stated that a panel, that was waiting to be loaded onto the truck in the blocked bay, required certification before loading. The worker considered that Mr Elston, the manager in charge, was attempting to have the uncertified panel loaded, which was “unsafe and unlawful”. The worker stated that, while he was “assisting with the congested loading bay, [the worker’s] truck was given a load, under the instruction of Mr Andrew Elston, that was…

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 Brickworks Ltd v Wright

Details

AGLC: Brickworks Ltd v Wright [2022] NSWPICPD 21
Case: [2022] NSWPICPD 21
Decision Date: 7 June 2022

CaseChat Overview and Summary

In the matter of Brickworks Ltd v Wright, the Industrial Court of New South Wales heard an appeal concerning the dismissal of an employee by the respondent, Brickworks Ltd, and the subsequent claim for compensation by the appellant, Wright. The central dispute revolved around whether the dismissal was conducted in a manner that complied with the statutory requirements for disciplinary action, specifically under section 11A(1) of the Workers Compensation Act 1987.

The court was tasked with determining the reasonableness of the employer's disciplinary action, considering both the outcome and the process. It had to assess if the employer adhered to the principles outlined in Commissioner of Police v Minahan, where it was noted that reasonableness is not only a matter of the final result but also the manner in which the disciplinary process was carried out. Furthermore, the court had to apply the objective test of reasonableness as described in Jeffery v Lintipal Pty Ltd, ensuring that the employer's actions were fair and justifiable.

The Industrial Court found that Brickworks Ltd had not acted reasonably in dismissing Wright, primarily due to procedural shortcomings in the disciplinary process. The court held that the employer was confined to matters raised in the dispute notices, as indicated in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services. It concluded that the employer failed to provide adequate reasons for the dismissal, which was necessary to meet the statutory requirements. Consequently, the court granted Wright's claim for compensation, applying the apportionment provisions under sections 22 and 22A of the 1987 Act.

The court ordered Brickworks Ltd to pay compensation to Wright, reflecting the proportion of fault attributable to the employer's unreasonable actions. This decision underscored the importance of following proper disciplinary procedures and providing sufficient justification for dismissal to comply with the statutory obligations under the Workers Compensation Act 1987.

Orders