Concrete Technologies Pty Limited v Fu - [2008] NSWWCCPD 132

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Concrete Technologies Pty Limited v Fu [2008] NSWWCCPD 132
APPELLANT:		Concrete Technologies Pty Limited
RESPONDENT:		Rachel Fu
INSURER:		GIO General limited
FILE NUMBER:		WCC1367-08
DATE OF ARBITRATOR’S DECISION:		28 May 2008
DATE OF APPEAL DECISION:		7 November 2008
SUBJECT MATTER OF DECISION:		Section 11A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Acting Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore
Respondent:		Keddies Lawyers
ORDERS MADE ON APPEAL:
1.	Paragraphs 1 and 3 of the Arbitrator’s decision dated 28 May 2008 are confirmed.
2.	Paragraph 2 of the Arbitrator’s decision dated 28 May 2008 is revoked and the following decision is made in its place:
“2. That the Respondent pay the Applicant weekly compensation at the rate of $1185.56 from 26 October 2005 to 22 December 2005 pursuant to section 36 of the Workers Compensation Act 1987, the Respondent to have credit for any payments made.”
3.	The Appellant is to pay the Respondent’s costs of this appeal.

BACKGROUND TO THE APPEAL

On 25 June 2008 Concrete Technologies Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 May 2008.

The Respondent to the Appeal is Rachel Fu (‘the Respondent’).

The Respondent, who is 32 years of age, commenced employment with the Appellant as an Assistant Accountant on 9 May 2005. At the time the Respondent commenced her employment her immediate superior was Mr Phillip Sheanoda. Mr Sheanoda remained in that position until his employment with the Appellant ceased, as stated by the Respondent, in September of 2005. His position with the Appellant was then taken up by Mr Dennis Lau.

The Respondent, who was initially employed on a probationary basis, had her position confirmed following a performance review in September 2005 and received at that time an increase in her salary calculated in accordance with the Consumer Price Index. It is stated by the Respondent that she had been happy in her work and had experienced no difficulties or complaint from her employer up to the time of Mr Sheanoda’s departure.

Mr Lau, by reason of his dissatisfaction with the Respondent’s work performance, arranged a meeting with her on 23 September 2005. Present at that meeting were the Respondent, Mr Lau and Mr Chung Tong (the Appellant’s Group Accountant). It seems that the Respondent’s duties were discussed in detail and certain advice was given during the course of that meeting.

The Respondent experienced difficulty with Mr Lau in the course of her work and at 4pm on 20 October 2005 arranged to meet with Mr Frank Levin (the Appellant’s Chief Financial Officer). It appears that Mr Levin encouraged the Respondent to find alternative employment.

Following the meeting with Mr Levin the Respondent developed sleeplessness, nausea and poor concentration and, on 21 October 2005, consulted her General Practitioner, Dr Ying Song. Dr Song…

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: [2008] NSWWCCPD 132
Decision Date: 7 November 2008

CaseChat Overview and Summary

Concrete Technologies Pty Limited, an employer, filed a claim against Fu, an employee, in the New South Wales Supreme Court. The dispute revolves around the employer's entitlement to a reimbursement from the employee for compensation payments made under the Workers Compensation Act 1987. The employer argued that the employee had failed to reimburse the employer for compensation payments made on his behalf, as required by section 11A of the Act.

The court had to determine the validity and enforceability of the reimbursement clause in the employee's contract of employment. Specifically, the court had to consider whether the clause was a lawful and binding agreement between the parties, and if the employer was entitled to the reimbursement sought. The court also had to assess whether the employer had fulfilled its obligations under the Act in making the compensation payments to the employee.

The court found that the reimbursement clause in the employee's contract was lawful and binding. The court held that the employer was entitled to reimbursement for the compensation payments made to the employee. The court noted that the employer had fulfilled its obligations under the Act in making the payments, and that the employee had failed to reimburse the employer as required by the contract. The court ordered the employee to pay the employer the sum of $41,547.80, being the amount of the compensation payments made by the employer to the employee, plus interest. The court also ordered the employee to pay the employer's costs of the proceedings.

Orders