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Dennis v NSW Fire Brigades

Dennis v NSW Fire Brigades

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Case Copied 31 July 2007 49 min read

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Dennis v NSW Fire Brigades [2007] NSWWCCPD 165
APPELLANT:  Robert Dennis
RESPONDENT:  NSW Fire Brigades
INSURER:Allianz Australia Treasury Managed Fund
FILE NUMBER:  WCC9151-06
DATE OF ARBITRATOR’S DECISION:          31 October 2006
DATE OF APPEAL DECISION:  31 July 2007
SUBJECT MATTER OF DECISION: Psychological injury; evidence; section 11A Workers Compensation Act 1987; meaning of ‘discipline’.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Steve Masselos & Co
Respondent:   Hicksons

ORDERS MADE ON APPEAL: Time to appeal the Arbitrator’s determination dated 31 October 2006 is extended until 29 November 2006.

The Arbitrator’s determination dated 31 October 2006 is revoked and the following order made:

“The matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal. Costs of the first Arbitration are to follow the result of the second arbitration.

BACKGROUND TO THE APPEAL

On 29 November 2006 Robert Dennis (‘the Appellant Worker /Mr Dennis’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 31 October 2006.

The Respondent to the Appeal is NSW Fire Brigades (‘the Respondent Employer/the Fire Brigade’).

Mr Dennis started work for the Respondent Employer as a fire fighter in May 1986. He worked at various fire stations up until April 2003 at which time he started in the Fire Safety Division (‘FSD’) of the Respondent Employer as a Fire Safety Officer under the leadership of Chris Jurgeit.

Mr Dennis made an earlier claim against the Respondent Employer and filed an Application to Resolve a Dispute (matter WCC 5179-05) in the Commission in April 2005. The basis for this claim was that Mr Dennis suffered psychological injury as a result of, among other reasons, a workplace conflict with Mr Jurgeit, his team leader. This claim was settled on 12 October 2005 following a conciliation conference and a “Certificate of Determination – Consent Orders” was issued on 17 October 2005 making the following orders:

“1. Award to the Respondent in respect of all claims for weekly benefits up to 12 October 2005 as the Respondent has paid all periods of incapacity by way of sick leave and/or wages.

2. That the Applicant is granted leave to amend the ARD to delete from Part 4.1 the words ‘date and continuing’ and insert therein ‘12 October 2005’.
3. Award to the Applicant’s [sic] in respect of section 60 of the Workers Compensation Act 1987 expenses to date, up to the sum of $3,500 inclusive of any HIC charge.

4. That the Respondent pay the Applicant’s costs as agreed or to be assessed.”

The settlement also “noted” the following:

“(a)Respondent agrees to re-credit the Applicant’s sick leave of 812 hours taken in the period 5/1/05 to 12/10/05.

(b)Respondent agrees to pay the Applicant’s treatment with Dr J Kontroni [sic] at one…

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: [2007] NSWWCCPD 165
Decision Date: 31 July 2007

CaseChat Overview and Summary

The case involves an appeal by Robert Dennis against a decision of the Workers Compensation Commission, specifically the Arbitrator's determination dated 31 October 2006. Dennis, a former firefighter with the NSW Fire Brigades, sought weekly compensation and medical expenses following a workplace conflict with his team leader, Chris Jurgeit. The Arbitrator rejected Dennis's claims, finding that he had not sustained a psychological injury and that the employer had successfully established a defence under section 11A of the Workers Compensation Act 1987. The key issues on appeal were whether the Arbitrator correctly found that Dennis had not suffered an injury and whether the employer's actions constituted 'discipline' under section 11A.

The appeal was initially filed outside the 28-day time limit, but the Court extended time to appeal until 29 November 2006, finding that to lose the right to appeal would work a substantial and demonstrable injustice to Dennis. The Court found that the Arbitrator erred in several respects. The Arbitrator failed to consider the opinion of an industrial psychologist, Robyn Bartlett, who found Dennis not psychologically fit to return to work. The Arbitrator also incorrectly dismissed the evidence of Dennis's psychologist, Mr Kotroni, because he did not take a history of the events of December 2005. Furthermore, the Arbitrator incorrectly found that the employer's actions amounted to 'discipline' under section 11A, when in fact they were purely a management decision.

The Court revoked the Arbitrator's determination and remitted the matter to a different Arbitrator for re-determination. The employer was ordered to pay the costs of the appeal and the costs of the first Arbitration were to follow the result of the second arbitration.

Orders