Challenger TAFE v Shaban

[2004] WASCA 314

CHALLENGER TAFE -v- SHABAN [2004] WASCA 314

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 314
Court:	THE FULL COURT (WA)
Case No:	CIV:2362/2004	Heard:	22 NOVEMBER 2004
Coram:	STEYTLER J TEMPLEMAN J	Delivered:	22/11/04
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	CHALLENGER TAFE JAFAR SHABAN
Catchwords:	Appeals Application for leave to appeal Workers' compensation Employee not provided with appropriate duties and roster Disability from stress Whether denial of "benefit"
Legislation:	Workers' Compensation and Rehabilitation Act 1981, s 5(4)(b)
Case References:	FAI General Insurance Co Ltd (De-Registered) v Goulding [2004] WASCA 167 Trewin v Comcare [1998] FCA 713 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CHALLENGER TAFE -v- SHABAN [2004] WASCA 314 CORAM : STEYTLER J

TEMPLEMAN J

HEARD : 22 NOVEMBER 2004 DELIVERED : 22 NOVEMBER 2004 FILE NO/S : CIV 2362 of 2004 BETWEEN : CHALLENGER TAFE

Applicant (Appellant)

AND

JAFAR SHABAN
Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATE'S COURT

Coram : PACKINGTON CM

Citation : SHABAN v CHALLENGER TAFE

File No : CM 62 of 2004

Catchwords:

Appeals - Application for leave to appeal - Workers' compensation - Employee not provided with appropriate duties and roster - Disability from stress - Whether denial of "benefit"

(Page 2)

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 5(4)(b)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant (Appellant) : Mr G R Hancy
Respondent : No appearance

Solicitors:

Applicant (Appellant) : Dibbs Barker Gosling
Respondent : No appearance

Case(s) referred to in judgment(s):

FAI General Insurance Co Ltd (De-Registered) v Goulding [2004] WASCA 167
Trewin v Comcare [1998] FCA 713

Case(s) also cited:

Nil


(Page 3)

1 STEYTLER J: I agree with Templeman J. I would only add in respect of ground 1 that the stress problem which the respondent suffered arose because he was given and had to teach a non-preferred subject which had a number of adverse consequences for him. I would agree entirely with what was said by the Compensation Magistrate in par 72 of his reasons to the effect that it was not the denial of a benefit but the allocation of something that the respondent did not want, in the form of the allocation of subjects he felt he was not competent to teach, which was the source of the problem and also that it was the actual carrying out of those duties which caused the disease.

2 I would also add so far as ground 2 is concerned that the evidence on which the finding was open included evidence from the respondent himself. It is summarised in par 15 of the review officer's findings where the review officer says:

"The applicant explained that his alleged disability arose from the fact that the students were encouraged to complain about him. He was given subjects to teach which he was wasn't competent in. He was given subjects which required a lot of marking to be undertaken. He was refused CAD training and management continued to ignore his complaints –"

and so on. Also, the Magistrate referred to evidence which had been summarised by the review officer in par 19 of his reasons to the effect that the applicant was given the wrong classes to teach and that the applicant was given difficult students and, with English as his second language, it was particularly difficult for him to teach subjects he was given when he specialised in teaching higher maths but wasn't given those classes. So, for the reasons given by Templeman J as well as those additional reasons, I agree that the application for leave should be dismissed.

3 TEMPLEMAN J: This is an application for leave to appeal against a decision of a Compensation Magistrate. I take the background from the decision of the Magistrate, commencing at p 61 of the Application Book.

4 The applicant is the respondent's employer. The respondent was a TAFE lecturer. He was assigned to teach particular subjects to particular classes of students according to a roster. The respondent felt that he was not assigned subjects that best matched his skills and expertise. His perception was that he was assigned subjects that were less prestigious and that he was not well-suited or qualified to teach.

(Page 4)

5 He made a number of complaints to those responsible for rostering his work but he received no satisfaction, as he saw it.

6 The respondent became unwell, suffering from a psychiatric condition which the compensation Magistrate held was a "disease" within the meaning of that term as defined in s 5 of the Workers' Compensation and Rehabilitation Act 1981. There is no suggestion that the Magistrate erred in that conclusion.

7 However, the applicant contended that the disease the respondent suffered from was a disability of a kind which was excluded by s 5(4) of the Act. Section 5(4) provides:

"For the purposes of the definition of 'disability' the matters are as follows –"

(and only (b) is relevant in this context):

"(b) The worker is not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment."

8 In other words, if the respondent's disease was the result of his not being given a benefit in relation to his employment then it was excluded and he would not be entitled to receive workers' compensation.

9 That point was taken before a Review Officer who first dealt with the matter. The Review Officer rejected that argument. The crucial part of his reasons is set out in par 72 of his judgment. The Review Officer said:

"I do not accept the respondent's argument that the applicant's disease arose as a result of not being granted a benefit. The evidence clearly demonstrated that it was not the denial of a benefit, if indeed the allocation of a preferred subject and timetable could be construed as such but was due to the fact that the applicant was allocated a subject he felt he was a not competent to teach. Put simply, it was not the denial of a benefit but the allocation of something he did not want which was the source of the problem and in fact it was the actual carrying out of those duties which caused the disease."

The respondent and the applicant were of course reversed in that passage because it was then the applicant's application for compensation which was under consideration.

(Page 5)

10 Pausing there, I emphasise that there was a finding of fact made by the Review Officer that the disease was the result of the allocation of something that the respondent did not want, and it was the actual carrying out of those duties which caused the disease.

11 The applicant appealed to the Compensation Magistrate who dealt with the finding made by the Review Officer in the par 72 to which I have referred, in the following way:

"Secondly, whatever one makes of the Review Officer's conclusions, paragraph 72 of his reasons highlights, albeit in passing, the real question: could the failure to allocate to the respondent a preferred subject and timetable be characterised as the respondent not being granted a benefit in relation to his employment." (AB 67)

12 The Compensation Magistrate then went on to consider the dictionary definition of "benefit" which was, "Anything that is for the good of a person or thing." His Worship then referred to Trewin v Comcare [1998] FCA 713 where the Federal Court adopted a definition in those terms and held that a refusal by an employer to make a temporary employee permanent, amounted to a failure by the employee to obtain a benefit in connection with his or her employment. This is, of course, quite a different case.

13 The Magistrate went on to say:

"That the appellant declined to reallocate rostered subjects to suit the respondent's wishes cannot, in my opinion, be taken to mean that the respondent was not granted a benefit."

14 His Worship explained his view by reference to the dictionary definition to which I have referred.

15 His Worship then referred to a decision of this Court, FAI General Insurance Co Ltd (De-Registered) v Goulding [2004] WASCA 167, in which Murray J expressed the view that a disease caused by stress could not constitute a compensable disability if the stress resulted from what might be described as the management processes referred to in s 5(4).

16 There was a submission in the present case that the allocation of particular subjects and classes to the respondent was a management process and, therefore, fell within the excluded part of the s 5(4) definition.

(Page 6)

17 I will quote from p 69, par 20, of the Compensation Magistrate's reasons where his Worship said this:

"A line has to be drawn somewhere because, as the respondent's advocate pointed out, just about anything to do with one's employment can be dressed up as a management issue. It should be borne in mind that what is in issue is something which has not been granted. I have no difficulty with accepting that a change in employment status from temporary to permanent can be granted (or, as in Trewin v Comcare, not granted), but it does not seem appropriate to me to speak of a re-allocation of rostered subjects as something which is granted. The roster was the means by which the respondent's work (which might itself be stressful) was ordered. The failure on the part of the respondent to persuade management to re-order the roster did not bring about a career disappointment, of the type referred to by Heery J in Trewin v Comcare. Everybody, even Compensation Magistrates, would like their work load rearranged so that they got more interesting matters, with less paper work, and their work colleagues undertook less attractive duties, but unsuccessful lobbying for such a rearrangement cannot in my view be equated with being denied the grant of a "benefit" within the meaning of s 5(4)."

18 From that decision, leave is sought to appeal on two grounds. The first is:

"The learned Magistrate erred in law in that he failed to find that the respondent was not granted a benefit in relation to the employment for the purpose of s 5(1) of the Act, in that the appellant did not allocate to the respondent his preferred duties.

The second ground is:

"The learned Magistrate erred in law in failing to find that the respondent had not proved that his disease was a disability for the purpose of the Act."

19 In support of the application, submissions have been filed in which it is said that leave to appeal should be granted where the decision was wrong or there is sufficient doubt about whether it is correct, and where substantial injustice would be done if the decision was not reversed. The well-known authorities are referred to.
(Page 7)

20 It is submitted in relation to ground 1, that the decision below is attended with sufficient doubt on the basis that the respondent's illness resulted from an allocation of teaching duties that he did not want.

21 In relation to the first ground it seems to me that the reasons given by the Compensation Magistrate to which I have referred provide a complete answer. It is really very difficult, I think, to improve on the way in which the Compensation Magistrate put it. In my view, rostering a teacher - in this case a lecturer (or the refusal to roster him) in a way which avoided the problem from which he suffered, could not be described as a benefit, or conversely, as a refusal of a benefit, for the reasons given.

22 The word "benefit" is extremely wide but it was I think construed properly by the learned Magistrate who said (and I go back to his reasons at par 17):

"The dictionary definition is so wide that it would include just about anything one might desire, subject of course to it being in relation to employment."

The Magistrate went on to say:

A different colour carpet in one's office? An expensive fountain pen? A new briefcase? The logical extension of the appellant's submission is that a stress-free workplace is a "benefit". A failure to provide a worker with a stress-free workplace would therefore amount to the worker's not being granted a benefit with the result that if the worker contracted a disease caused by stress in the workplace, he or she could not be said to have contracted such a disease no matter how that stress arose. Catch-22: it is not possible to contract a disease caused by stress in a stressful workplace. If that were the case, then there would be no need for any of the other provisions of s 5(4)."

23 I find myself in such complete agreement with the way the Compensation Magistrate put it that I am unable to conclude that there is any sufficient doubt in relation to the first ground.

24 The second ground, we are now told, is really a ground that there was no evidence on which the Magistrate (and before him, the Review Officer) could have concluded that the disease was caused in a way which is not excluded by s 5(4). It seems to me that the finding of fact, to which I have already referred, made by the Review Officer and upheld by the compensation Magistrate, that it was the actual carrying out of the duties

(Page 8)

which caused the disease is supported by the psychiatric evidence. I am not persuaded, therefore that there is sufficient doubt in that ground to warrant leave. It is unnecessary to consider the question of substantial injustice to the respondent. In my view that question does not arise. I would therefore dismiss the application.