Car v Vanguarde Pty Ltd

Case [2020] NSWWCCPD 71


DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: CAR v Vanguarde Pty Ltd [2020] NSWWCCPD 71
APPELLANT: CAR
RESPONDENT: Vanguarde Pty Ltd
INSURER: icare Workers Insurance
FILE NUMBER: A1-4934/19
ARBITRATOR: Mr C Burge
DATE OF ARBITRATOR’S DECISION: 31 August 2020
DATE OF APPEAL DECISION: 9 December 2020
SUBJECT MATTER OF DECISION: Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – factors to take into account when determining whether to allow a reconsideration of a decision – Samuel v Sebel Furniture Ltd [2006] NSWCCPD141; 5 DDCR 482 applied; s 267 of the 1998 Act – the objectives of the Commission.
PRESIDENTIAL MEMBER: Deputy President Elizabeth Wood
HEARING: On the papers
REPRESENTATION: Appellant:
Mr G Horan, counsel
Turner Freeman
Respondent:
Mr S Grant, counsel
Hall & Willcox
ORDERS MADE ON APPEAL:

1.    The Arbitrator’s Certificate of Determination dated 31 August 2020 is confirmed.

INTRODUCTION AND BACKGROUND

  1. Mr CAR (the appellant) was employed by Vanguarde Pty Ltd (the respondent) as a Senior Property Manager. The appellant’s employment with the respondent was terminated on 1 December 2017. The appellant was dismissed after a random compliance check disclosed irregularities in the respondent’s trust account wherein payments from the trust account were made into the appellant’s personal bank account.

  2. The appellant made a claim for compensation, alleging psychological injury as a result of an “overbearing workload, feeling of hostility from other staff and due to an ordeal in which he accidently misappropriated funds.”[1] The date of injury was deemed to be 1 December 2017. The respondent initially accepted liability and paid weekly compensation and treatment expenses.

    [1] Application to Resolve a Dispute (ARD) Part 4 – Injury details.

  3. On 4 April 2019, the respondent disputed liability for the injury, raising the following issues:

    (a)    the appellant did not suffer an injury pursuant to s 4(a) and s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act);

    (b)    the appellant’s employment was not the main contributing factor to any disease injury (s 4(b)(i) of the 1987 Act) or to the aggravation acceleration, exacerbation or deterioration of a disease (s 4(b)(ii) of the 1987 Act);

    (c)    the psychological injury was caused by the reasonable action taken by the respondent with respect to performance appraisal, discipline or dismissal and was therefore not compensable (s 11A(1) of the 1987 Act);

    (d)    at the time of the injury, the appellant was acting in contravention of statutory or other regulation applicable to the appellant’s employment, so that the injury was solely the result of serious and wilful misconduct in the form of a fraud (s 14 of the 1987 Act);

    (e)    treatment expenses were not reasonably necessary, and

    (f) the appellant did not give notice of injury or make a claim within the time prescribed by ss 260 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[2]

    [2] ARD, pp 49–55.

  4. The appellant commenced proceedings in the Commission, claiming ongoing weekly…

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Car v Vanguarde Pty Ltd [2020] NSWWCCPD 71
Case
[2020] NSWWCCPD 71
Decision Date

CaseChat Overview and Summary

The case of Car v Vanguarde Pty Ltd was heard before the New South Wales Civil and Administrative Tribunal (NCAT). The dispute arose from an application for reconsideration of a decision made by the Workers Compensation Arbitrator, which had rejected the applicant’s claim for compensation. The applicant, Car, sought to have the decision reconsidered on the basis that new evidence had emerged that could potentially affect the outcome. Vanguarde Pty Ltd, the respondent, opposed the application, arguing that the new evidence did not warrant a reconsideration of the decision.

The primary legal issue before the Tribunal was whether the new evidence provided by the applicant was sufficient to warrant a reconsideration of the Arbitrator’s decision. The Tribunal was required to determine the factors to be taken into account when deciding whether to allow a reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The Tribunal also had to consider the objectives of the Commission as outlined in section 267 of the 1998 Act.

In delivering the decision, the Tribunal found that the new evidence provided by the applicant did not meet the threshold for reconsideration. The Tribunal applied the principles set out in Samuel v Sebel Furniture Ltd [2006] NSWCCPD141; 5 DDCR 482, which established that a reconsideration should only be allowed if the new evidence is significant and could reasonably be expected to affect the outcome of the decision. The Tribunal concluded that the new evidence did not meet this standard and, therefore, the application for reconsideration was dismissed. The Tribunal confirmed that its decision was consistent with the objectives of the Commission to ensure that decisions are made fairly, efficiently, and in accordance with the law.

The final orders of the Tribunal were that the Arbitrator’s Certificate of Determination dated 31 August 2020 be confirmed, and the application for reconsideration be dismissed.

Orders

Orders of the court

1. The Arbitrator’s Certificate of Determination dated 31 August 2020 is confirmed.

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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