D'Mello v Coles Supermarkets Australia Pty Ltd
[2021] NSWPIC 426
•8 October 2021
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | D'Mello v Coles Supermarkets Australia Pty Ltd [2021] NSWPIC 426 |
| APPLICANT: | Xavier D'Mello |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| PRESIDENT’S DELEGATE: | Parnel McAdam |
| DATE OF DECISION: | 8 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; applicant injured in bakery; suitable employment identified as role as a bank branch manager; applicant had previously worked as an assistant manager in a bank and had transferrable skills, experience and qualifications for the role; Held - award for the respondent. |
ORDERS MADE: | 1. Award for the respondent. |
Statement of Reasons
Background
Mr D’Mello’s work career has been varied and diverse. He obtained a bachelor’s degree in commerce in India in 1994, and then began working as a freelance writer. He worked for over 10 years in production and film roles in India, before migrating to Australia in 2005. His first role in Australia was with Bakers Delight in the production team, before changing roles and working with ANZ for a number of years.
In 2017, he commenced work with Bakers Delight, in the production of bread. Following this, he worked at Coles as the manager of the bakery department, which is where he suffered his injury.
In June 2018, Mr D’Mello suffered a shoulder injury. He returned to work on suitable duties, working in customer service, before returning to his pre-injury position in January 2019, where he further aggravated that injury and suffered a consequential condition in his other shoulder due to overuse.
On 20 May 2021, the respondent issued a work capacity decision reducing Mr D’Mello’s payments to nil. Mr D’Mello disputes the findings made in that decision.
Issues in dispute
There are two issues in dispute:
(a) the period for which Mr D’Mello is entitled to weekly benefits pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act), and
(b) whether the employment options identified in the work capacity decision are within the definition of suitable employment in section 32A of the 1987 Act.
The legislation
As this dispute concerns suitable employment, I must consider the definition in section 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Section 37 of the 1987 Act provides:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
I am determining this dispute exercising powers of the President delegated to me. Section 297(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
“When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.”
The evidence
The evidence in this matter is fairly succinct, particularly that filed by the applicant, who relied on only four documents in an Application of 29 pages of material. The respondent has included further documents relevant to the dispute, such as the vocational assessment report on which the work capacity decision is based and other medical records.
The dispute notice
The work capacity decision issued as a section 78 notice dated 20 May 2021 identified the roles of bank and branch manager, office manager and customer service manager as suitable employment options. The notice relied on bank and branch manager as the most suitable option. The notice determined that Mr D’Mello would be capable of earning more in this suitable employment than in his pre-injury average weekly earnings (PIAWE), and accordingly, his payments would be reduced to nil, effective 29 August 2021.
The applicant’s statement
Mr D’Mello provides a short statement, essentially outlining his employment history. He states that whilst he previously worked in the banking sector for a number of years, he has not been in that industry since he left ANZ in June 2015, and has not had an office based role, or any office based experience, since that time. He states that he has not been able to maintain nor accumulate the skills required for any of the positions identified as suitable employment options.
Reports and certificates provided by Dr Mi Soo Cho
The applicant attaches a number of certificates of capacity, the most recent of which is dated 16 July 2021 to 13 August 2021. That certificate provides that Mr D’Mello has capacity for some type of employment for 7.6 hours per day, 5 days per week. The capacity restrictions placed on Mr D’Mello are not fully specified, but rather in general terms (such as “as tolerated” and “await further physiotherapy”).
The previous certificate provided some relevant restrictions on lifting/carrying of:
“waist to shoulder lift up to 12kg
overheard press up to 9kg
unilateral carry up to 12kg”With pushing/pulling ability certified as:
“standing pull up to 18kg
standing push up to 12kg
all not repetitive”Attached to the Reply is the most recent certificate of capacity, for the period 12 August 2021 to 10 September 2021. That certifies Mr D’Mello as fit for 7.5 hours a day, 5 days a week, with the similar “as tolerated” and “await further physiotherapy” restrictions as outlined above.
Attached to the Reply is a response to a medical questionnaire provided to the applicant’s treating doctor, Dr Mi Soo Cho. That fax response provides Dr Mi Soo Cho’s approval of the three employment options identified in the vocational assessment report as being suitable for Mr D’Mello, with the restrictions as outlined above.
Report of Mr Luke Bowen
Mr Bowen is an exercise physiologist. He provides a report dated 21 October 2020 discussing Mr D’Mello’s condition in the context of his termination from his role with Coles. The report comments on Mr D’Mello’s functional capacity:
“It is my opinion that Xavier would be more suited towards an office based role, in which he has limited physical stress on his shoulder and not subject to lifting, pushing/pulling or carrying heavy objects in awkward positions all day.”
Rehab Management reports
Rehab Management is a service provider that has provided rehabilitation services to
Mr D’Mello during the course of his injury.Rehab Management produced the vocational assessment report on which the section 78 notice is based. A report dated 26 October 2020 is attached to the Reply. It is authored by Ms Bonita Chidiac, a “rehab counsellor”.
The report discusses Mr D’Mello’s injuries, his background, his medical status (at the time of the assessment, his employment and his transferrable skills. The report identifies three vocational options (those reflected in the section 78 notice, discussed above), and the author conducted a labour market analysis of those vocational options.
Based on the applicant’s employment history, transferrable skills, and feedback from prospective insurers, the report concludes that the three roles identified would be suitable employment options for Mr D’Mello.
A progress report for the period 10 December 2020 to 12 January 2021 is also attached to the Reply. It confirms that Mr D’Mello had completed the job seeking training, and had been offered a virtual interview from NAB for a credit control position.
A further email, outlining the jobs Mr D’Mello applied for in the job seeking period is attached, as well as a job seeking diary from 4 December 2021 to 22 February 2021.
Submissions
The parties were unable to resolve the dispute during the teleconference. Accordingly
I issued a direction calling for written submissions, which have been provided by both parties. A summary of the submissions will be provided below.
Applicant’s submissions
The applicant’s submissions, as foreshadowed from the issues in dispute, are divided into two issues: the period of payments available under section 37, and the applicant’s capacity for suitable employment as defined in section 32A of the 1987 Act.
In terms of the second entitlement period under section 37, the applicant submits that this period ceases on 21 February 2022 on the basis:
(a) the period elapses only when the applicant has “total or partial incapacity” as required by section 33 of the 1987 Act. If this is not satisfied, then compensation is not payable under section 33 and as such section 37 cannot operate. The applicant submits that the period from 10 July 2020 to 28 September 2020 is such a period;
(b) the applicant refers to the certificates of capacity in that period, provided by
Dr Mi Soo Cho, which noted that Mr D’Mello had capacity for some type of employment for 40 hours per week, which was his pre-injury hours. Whilst there were restrictions on his lifting/carrying capacity, he had in fact return to his
pre-injury duties and wages;(c) because he had returned to his pre-injury hours, the amount that he could earn was equivalent to his that in his pre-injury employment. Therefore there was no “total or partial incapacity for work” as required by section 33;
(d) the applicant refers to the decision of Hee v State Transport Authority of NSW [2017] NSWWCC 252;
(e) in the period 18 September 2020 to 28 September 2020, whilst the certificate of capacity certifies for 35 hours per week, he was in effect working 40 hours per week as the employer was not giving him reduced duties;
(f) the applicant submits that the 11-week period from 10 July 2020 to 28 September 2020 should not be taken as part of the aggregate 117-week entitlement to payments of compensation under section 37(2), and
(g) the entitlement to weekly payments ceases on 21 February 2022.
In respect of Mr D’Mello’s capacity, the applicant submits that the employment options identified in the work capacity decision are not suitable employment in accordance with the definition in section 32A of the 1987 on the following basis:
(a) during his employment with ANZ bank from 2007 to 2013, he was a customer service consultant and then a personal banker;
(b) whilst he was “pushed into” the role of assistant manager, those duties were not synonymous with those of a branch or bank manager;
(c) the duties he undertook were reasonably mundane tasks, such as staff training, compliance and internal audit checks, and reporting on the work done at the branch. He had no experience in planning, anything to do with budget systems, or advising on the most effective use of resources. The applicant refers to the ANZSCO summary for bank and branch managers and notes they are the skills expected in such a role;
(d) further, the applicant submits that he has not worked in the banking industry for over six years, and his lack of skills and recent experience, as well as his age at 50 years old, should be taken into consideration, and
(e) the applicant submits that the two other roles identified by the respondent are similarly not suitable employment on account of his skills, work experience and age.
Respondent’s submissions
The respondent’s submissions focussed on the suitability of the roles identified first. The respondent relies on the vocational assessment report provided by Rehab Management. The respondent submits:
(a) the applicant’s tertiary qualifications and 10 years of experience with the finance industry, as well as the support of the three individual employers contacted, supports the role of bank manager/branch manager as suitable employment;
(b) the applicant has suitable skills for the role of bank/branch manager. The applicant’s transferrable skills are listed in the vocational assessment report and are consistent with the statement provided;
(c) the skills required in the role of bank/branch manager are very similar, if not identical to the skills the applicant possesses, skills utilised during his previous employment with ANZ bank;
(d) there is nothing about the applicant’s age that prevents him from performing the proposed role;
(e) the applicant has been provided with relevant rehabilitation services, include job seeking support. The applicant has applied for roles in the banking industry as part of his job seeking;
(f) in terms of the other two roles identified, the applicant has not put any evidence to contest the opinion of the vocational assessors. The only evidence before the Commission is the expert evidence contained in the vocational assessment report;
(g) the applicant’s most recent role was with the respondent as a department manager, and
(h) the applicant has worked in a number of managerial and supervisory roles throughout his career, and has demonstrated general managerial skills that make him suitable for an office manager or service manager role.
In terms of the period available for section 37 payments, the respondent submits:
(a) the Commission does not have jurisdiction to make an award in favour of the applicant for weekly payments past 7 October 2021, as the entitlement would fall into the section 38 period;
(b) the list of payments shows a gap in weekly payments between 22 June 202 and 27 September 2020, a period of 13 weeks and 6 days. During this period, the applicant was paid his regular wages by the respondent;
(c) this period must be included when determining when the second entitlement period would end;
(d) the use of the words “paid or payable” mean that a payment does not actually have to be made for the entitlement period to run (see Speirs v Industrial relations Commission of NSW [2011] NSWCA 205 at [66]-[70]);
(e) section 33 of the 1987 Act links weekly compensation to incapacity for employment, rather than economic loss;
(f) the decision in Hee v State Transit Authority of New South Wales [2010] NSWCA 175 held that an amount of nil was still an amount (i.e. a payment of weekly compensation);
(g) sections 36 and 38 are mechanical provisions to calculate a worker’s entitlement, they do not create the entitlement;
(h) as long as the applicant demonstrated incapacity for his pre-injury employment, an amount of weekly compensation was payable regardless of whether he had chosen to make a claim (with reference to Vinet v Thomas Coffey Limited [2015] NSWWCC 34);
(i) the evidence shows that the whilst the applicant could return to his pre-injury hours, he did not return to his pre-injury employment, which means the second entitlement period continued to run, and
(j) as a result, the second entitlement period ends on 7 October 2021.
Discussion
There are two issues in dispute in this case: the first, the period for which the applicant is entitled to weekly compensation, and the second, the applicant’s capacity for suitable employment as defined in section 32A of the 1987 Act.
The period of entitlement issue means the difference in approximately 11 weeks of weekly payments for the applicant. If I do not find for the applicant on that issue, his period of entitlement under section 37 ceases on or around 1 October 2021.
I will deal with the second issue first, because if I find in favour of the respondent on that issue (i.e. that the applicant has capacity for suitable employment in one of the roles identified by the respondent), then the issue of the period of entitlement goes away.
There are a list of considerations and matters that can not be considered in section 32A of the 1987 Act when it comes to the definition of suitable employment. The issues in dispute in this case, per the submissions of the parties, are entirely focussed on the worker’s age, education, skills and work experience. There does not appear to be any issue that
Mr D’Mello is physically capable of the suitable employment options identified, in terms of the nature of his incapacity. His treating doctor has approved the roles as suitable and there is no medical evidence provided suggesting otherwise.
The worker’s age, education, skills and work experience
Mr D’Mello’s career has had its share of twists and turns. He commenced employment upon graduating from university as a freelance writer and then in film and television production roles. He then moved to Australia and worked in baking, before changing careers to work in a bank. He changed careers again and began working with the respondent, where he suffered his injury.
He is not fit for his pre-injury duties and the focus of the section 78 notice was on suitable employment as a bank/branch manager. The applicant suggests this role (and the others identified in the vocational assessment report) are not suitable. The respondent disagrees.
Mr D’Mello has had extensive experience in the banking industry. He submits that this experience is now out of date as it was over six years ago when he last worked at ANZ. I do not accept that submission for a number of reasons.
Firstly, the applicant has not explained how the banking industry has changed so dramatically that his experience would no longer be relevant. The period of six years is, in the scheme of Mr D’Mello’s so far 25+ year working career, not overly significant.
Secondly, whilst Mr D’Mello has been out of the banking industry, he has been performing managerial and supervisory functions at the respondent for a number of years. This experience is immediately relevant and transferrable to the role of a bank/branch manager. Skills obtained in middle management are generally considered to be transferrable across industries. This is recognised by the employer feedback provided in the vocational assessment report.
Thirdly, the fact that Mr D’Mello has experience in the banking industry is a factor that weighs in favour of the role identified being considered as suitable employment. “Work experience” is one of the relevant criteria identified in the definition of suitable employment in section 32A. Mr D’Mello has work experience in the banking industry.
Moreover, Mr D’Mello has specific experience at the managerial/supervisory level at ANZ bank. Mr D’Mello was an assistant manager at ANZ for a number of years. The applicant’s submissions took pains to minimise and downplay this experience, submitting that he was “pushed into” the role and his duties were reasonably mundane. I find this difficult to comprehend, as he performed the role for over two years. Even if the tasks were considered to be reasonably mundane, it is still direct and relevant managerial experience at a bank, the specific role identified as suitable employment in the section 78 notice.
In terms of Mr D’Mello’s skills, the list of transferrable skills contained in the vocational assessment report is extensive. As discussed above, Mr D’Mello’s managerial skills have not been going stale in the period prior to his work injury – he was the manager of the bakery department with the respondent prior to his injury. In my view the skills obtained in managing a busy department in a supermarket are relevant and transferrable skills to the role of a bank/branch manager at a busy bank.
I accept that the ultimate outcome of the labour of a bakery department and a bank are different. One is producing goods to be consumed, the other is providing a financial service. However, management roles in general require similar skills including planning rosters, managing budgets, and delegating tasks and the like. Whatever the industry, these skills are necessary and required.
Mr D’Mello clearly possesses these skills, and these are further enhanced by his relevant work experience with ANZ in an assistant manager role.
Mr D’Mello is highly educated, having obtained a bachelor’s degree in commerce (which
I note is relevant to the banking industry) before entering the workforce. I am also of the view that education extends to more than just higher qualifications – I have no doubt that
Mr D’Mello would have been educated on the banking industry in his previous role with ANZ. On the job experience and knowledge is closely aligned with the consideration of “experience”, but may involve some different and additional matters.
I do not believe that Mr D’Mello’s age is an impediment or a relevant consideration.
Mr D’Mello is not being expected to retrain in an entirely new industry or skill and enter the workforce with no previous relevant experience, as is often the case. Mr D’Mello is not close to retirement age in real terms.
Decision
I accept the respondent’s submissions regarding suitable employment. I am satisfied that the role of bank/branch manager is “suitable employment” within the definition in section 32A for Mr D’Mello.
If the consideration under section 32A was limited to “experience” (or more correctly, “recent experience”, for the purposes of the applicant’s case), then the situation may be different.
I acknowledge and accept that it has been a period of time since Mr D’Mello has worked in the banking industry.
However, his experience at ANZ was over a long period of time, and he performed a number of roles with that employer, including as an assistant manager (which is asserted was not the full gamut of the role). There is no evidence before me that the banking industry has fundamentally changed or that there are additional skills, qualifications, or training required to work in that industry that Mr D’Mello does not possess (other than recent work experience).
Whilst I accept that there is industry specific knowledge that is required to work in the banking industry, this puts Mr D’Mello in an advantageous position, rather than a detrimental one. Mr D’Mello’s previous experience, although a number of years ago now, is still a relevant consideration, and any gaps in knowledge could be easily rectified through
on-the-job training (rather than, as discussed above, requiring further study or an additional qualification).
Having determined that the role is suitable employment, I am not required to consider the other issue in dispute, being the period of entitlement under section 37 of the 1987 Act.
Mr D’Mello has no right to weekly payments under section 37 whether it is now or in 11 weeks.
Accordingly, there will be an award for the respondent.
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