Coles Myer Limited v Tabassum - [2005] NSWWCCPD 16

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Coles Myer Limited v Tabassum [2005] NSW WCC PD 16
APPELLANT:  Coles Myer Limited
RESPONDENT:  Rukhsana Tabassum
INSURER:Coles Myer Limited
FILE NUMBER:  WCC 18161-04
DATE OF ARBITRATOR’S DECISION:          8 February 2005
DATE OF APPEAL DECISION:  18 March 2005
SUBJECT MATTER OF DECISION:                Refusal to admit late document; denial of procedural fairness
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant: Landers & Rogers Lawyers
Respondent: McDonnell Schroder Solicitors & Conveyancers

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the Respondent Worker’s costs in this appeal, as agreed or assessed.

THE APPEAL

Mrs Rukhsana Tabassum, the Respondent Worker (Mrs Tabassum) commenced employment as a checkout operator with Coles Myer Limited, Chatswood, at some time in 1995. Coles Myer Limited (Coles) is the Appellant in this appeal. Ms Tabassum left soon after and had her second child on 3 July 1996. In February 1998, she resumed part-time employment with Coles at Chatswood, on a part-time basis, working approximately 21 to 24 hours per week. Mrs Tabassum transferred to Coles at Winston Hills in July 2000, and worked about the same hours that she worked at Chatswood. She described her work as a checkout operator as being repetitive and involving lifting items of various weight, scanning and placing them in a plastic bag. On some occasions, Mrs Tabassum said that she received assistance from other employees who would place the items in the customer’s trolley.

Mrs Tabassum first experienced pain on 13 November 2001, which she claims arose from an injury suffered as a result of the nature and conditions of her employment. She has provided details of further developments, medical treatment, and the further history of this dispute, arising out of these circumstances.

Mrs Tabassum filed an Application to Resolve a Dispute in the Workers Compensation Commission on 5 November 2004, and Coles filed a Reply in response. The matter came before an Arbitrator at a teleconference held on 8 February 2005.

The Arbitrator made the following Direction:

“The Commission therefore directs:
1.The medical dispute is to be referred to an AMS.
2.For the purposes of the referral to the AMS:
-     I admit the late report of Dr Lethlean dated 13 January 2005.
-     I reject late the [sic] report of Dr Jones dated 20 December 2004 as I am not satisfied that the delay in service of the report was reasonable.
-     the surveillance video is not relied on and the report of Quantum Investigations dated 26.2.03 should be removed from the file sent to the AMS.
3.The Respondent is to provide, on or before 30 March 2005, comparable wages information from December 2003. The Applicant is to provide a wages schedule with supporting documents on or before 15 April 2005.
4.This Direction is to be issued to the parties.”

Coles lodged an appeal against this decision in the Commission on 11 February…

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.

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Details

Case: [2005] NSWWCCPD 16
Decision Date: 18 March 2005

CaseChat Overview and Summary

Coles Myer Limited has appealed the decision of an Arbitrator who was constituted as a member of the Workers Compensation Commission. The appeal concerns the Arbitrator's refusal to admit a late document into evidence and the denial of procedural fairness. The Respondent Worker, Mrs Rukhsana Tabassum, had filed an Application to Resolve a Dispute in the Commission on 5 November 2004, and Coles filed a Reply in response. The matter came before an Arbitrator at a teleconference held on 8 February 2005. The Arbitrator made a number of directions, including admitting the late report of Dr Lethlean and rejecting late the report of Dr Jones. The Arbitrator also directed that the surveillance video was not to be relied on, and that the report of Quantum Investigations should be removed from the file sent to the Approved Medical Specialist.

The legal issues that the court was required to decide were whether the Arbitrator's decision to exclude the late report of Dr Jones was a denial of procedural fairness, natural justice and prejudicial to Coles. The court had to consider whether the Arbitrator had made any error or law, fact or discretion in this case, and whether the decision that he made to exclude the late report of Dr Jones was reasonable, in all of the circumstances.

The court's reasoning and outcome were that the Arbitrator clearly decided that the explanation for the undue delay in lodging Dr Jones’ report in the Commission and serving it on Mrs Tabassum, was not acceptable, for reasons that were obviously made clear to the parties. The court agreed with his finding in this regard and that the report was in the hands of Coles’ solicitors before the beginning of the Christmas/New Year holiday break. The court found that it was incumbent upon both the solicitors and Coles to ensure that the report was lodged and served in accordance with the requirement in Rule 40(2)(b), that is, “as soon as practicable after the evidence becomes available”. Failure to do this should not be construed against Mrs Tabassum. In terms of prejudice to the parties, admitting Dr Jones’ late report into evidence in the prevailing circumstances, and at that exceedingly late stage, would have given rise to prejudice to Mrs Tabassum. Such prejudice clearly outweighs any prejudice to Coles that may have been occasioned by the Arbitrator’s decision to reject the report. The court found that there was no justification for invoking Rule 40(3) as, in balancing the interests of the parties, there is little if any evidence of actual injustice to Coles. On the other hand, injustice would arise if Mrs Tabassum were to be disadvantaged by the failure of Coles to comply with the Rules. The court found that the Arbitrator has not made any error or law, fact or discretion in this case, and that the decision that he made to exclude the late report of Dr Jones was reasonable, in all of the circumstances. The appeal was unsuccessful.

The final orders were that the decision of the Arbitrator is confirmed, and the Appellant is to pay the Respondent Worker’s costs of this appeal, as agreed or assessed.

Orders