Favelle v NSW Rural Fire Service
[2023] NSWPIC 122
•27 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Favelle v NSW Rural Fire Service [2023] NSWPIC 122 |
| APPLICANT: | Robyn Favelle |
| RESPONDENT: | NSW Rural Fire Service |
| Member: | Rachel Homan |
| DATE OF DECISION: | 27 March 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to sections 36 and 37 as amended by the by the Workers Compensation Legislation Amendment Act 2012 in respect of a psychological injury; payments of weekly compensation already made on the basis that the applicant was an exempt worker; whether the applicant was a ‘firefighter’ for the purposes of clause 25 of Part 19H of Schedule 6; consideration of Ware v NSW Rural Fire Service; Held – applicant’s normal duties were administrative in nature and not that of a firefighter; although the applicant did on occasion attend the scene of fires, no event at or during a fire was causative of the injury; the injury was not received by a ‘firefighter’; the 2012 amendments apply to the injury; award for compensation in favour of the applicant with credit for payments already made; no order as to costs. |
| determinations made: | 1. The injury was not received by a “firefighter” for the purposes of cl 25 of Part 19H of Sch 6 the Workers Compensation Act 1987. 2. The respondent to pay the applicant weekly compensation in accordance with ss 36 and 37 of the Workers Compensation Act 1987, as amended and in force as at the date of injury, from 8 October 2021 to date and continuing. 3. The respondent to have credit for payments of weekly compensation already made in the period above. 4. No order as to costs. |
STATEMENT OF REASONS
BACKGROUND
Ms Robyn Favelle (the applicant) was employed by the NSW Rural Fire Service (the respondent) as a District Coordinator.
The applicant sustained a psychological injury arising out of her employment, liability for which was accepted by the respondent’s insurer on 10 October 2022. The applicant claimed to have sustained the injury after being cross-examined at an Industrial Relations Commission (IRC) hearing and the subsequent online publication of an IRC decision in which negative comments about the applicant made by her Area Manager were transcribed.
Payments of weekly compensation were made by the insurer in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act) in force prior to the amendments made by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), on the basis that the applicant was a ‘firefighter’ and therefore exempt from the amendments pursuant to the transitional provision in cl 25 of Pt 19H of Sch 6 to the 1987 Act.
On 4 November 2022, the applicant’s solicitor wrote to the insurer claiming that the applicant was not an exempt worker for the purposes of the 2012 amendments and that weekly compensation should be paid at the rate of 95% of her pre-injury average weekly earnings (PIAWE) for the first 13 weeks and thereafter at the rate of 80% of PIAWE.
On 1 December 2022, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing the applicant’s request to be assessed as a non-exempt worker.
The applicant commenced proceedings in the Personal Injury Commission (the Commission) on 20 December 2022. The applicant seeks weekly compensation from 8 October 2021 to date and continuing in accordance with ss 36 and 37 of the 1987 Act as amended.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant is an exempt worker (firefighter) for the purposes of cl 25 of Pt 19H of Sch 6 to the 1987 Act;
(b) orders for payment of weekly compensation, and
(c) orders as to costs.
There is no dispute in these proceedings as to the applicant’s entitlement to weekly compensation generally or the extent of her incapacity resulting from injury.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The parties appeared before the Commission for conciliation conference and arbitration hearing on 21 March 2023. The applicant was represented by Mr John Sharpe of counsel, instructed by Mr Richard Brennan. The respondent was represented by Ms Kavita Balendra of counsel, instructed by Ms Ruth Kim. The hearing was conducted via Microsoft Teams.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
Neither party applied to adduce oral evidence or cross examine any witness.
FINDINGS AND REASONS
Relevant law
The provisions governing the payment of weekly compensation in the 1987 Act were significantly amended by the 2012 amending Act, commencing on 1 October 2012.
Certain workers are, however, exempt from the 2012 amendments. Relevantly, the transitional provision in cl 25 of Part 19H of Sch 6 to the 1987 Act provides:
“The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”
The applicant claims that she is not a “firefighter” (or other exempt worker) for the purposes of cl 25 and therefore the amendments made by the 2012 amending Act apply to her.
The term “firefighter” is not defined in the 1987 Act.
Both parties referred the Commission to the interpretation given to the term “firefighter” as it in appears in cl 25 in the presidential decision of Ware v NSW Rural Fire Service[1] (Ware). The worker in that case was employed by the respondent as a mechanic working in a workshop in Katoomba. On rare occasions, he repaired firefighting equipment at the fire front of an active bushfire. The worker claimed lump sum compensation pursuant to s 66 of the 1987 Act due to a gradual process hearing loss. As the worker’s hearing loss did not exceed the 10% threshold for compensation under s 66 of the 1987 Act, as amended by the 2012 amending Act, he was not entitled to lump sum compensation unless he could establish that he was an exempt worker to whom the 2012 amendments did not apply.
[1] [2014] NSWWCCPD 33.
Roche DP found:
“… the legal meaning of firefighter corresponds with its normal grammatical (dictionary) meaning and there is nothing in the context, purpose or policy behind cl 25 that leads to a different conclusion. It follows that firefighter means ‘someone whose activity or employment is to extinguish fires, especially bushfires’. As Mr Ware was employed as a mechanic, not a firefighter, he is only a firefighter, for the purposes of cl 25, when he is engaged in providing support at the fire front during a fire.”
In so concluding, Roche DP considered a submission made on behalf of the worker that all those integral to the activity of fighting fires are “engaged in fire fighting and are fire fighters” and there was no warrant to limit the term ‘firefighter’ to people actually on the active fire ground directing the hose. The worker submitted that for every person at the fire front, it is necessary to have a support team performing essential tasks such as co-ordination, supply, transport and repair of equipment.
Roche DP responded:
“Such support personnel may well, depending on the circumstances, be firefighters during a fire. However, in the absence of a definition of firefighter, such as the definition of police officer in the Police Act, members of the support team, whose normal duties do not involve work at the fire front, cannot be regarded as firefighters while performing those duties when there is no fire.
To suggest that there is no warrant to limit the term firefighter to people actually on the active fire ground is to ignore the clear meaning of that term in circumstances where there is nothing in the context or policy of the legislation that justifies doing so.”
Evidence
In the present proceedings, the respondent relies on a “Role Description” for the applicant’s position of District Coordinator, dated 27 May 2021. In that document, the purpose of the applicant’s role was described as:
“The role coordinates and provides technical and operational support to better protect the community from bush fires and other emergencies.”
Amongst the role’s “key accountabilities” was,
“When needed, lead or participate in activities to protect the community from fire and similar incidents within the scope of qualifications held.”
The “essential requirements” of the role included:
“May be required to participate on an after hours and/or on call roster.
…
During periods of heightened operational activity, the incumbent may be required to support operational management activities consistent with their skills and background.”
The respondent also relies on a policy document dealing with workers compensation and injury management for the respondent’s employees. Under cl 3.25 of the policy document, it was noted that employees undertaking firefighting activities whose designated occupation is not that of a firefighter will be deemed to be a firefighter for workers compensation purposes. A list of designated firefighting roles attached to the policy as an addendum did not explicitly include the role of “District Coordinator” but was noted not to be an exhaustive list. Clause 3.26 of the policy defined firefighting duties as:
“a. Any reasonable act or operation performed by a firefighter, either within or outside normal working hours at or about the scene of or in connection with a fire which is necessary, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire or any other way necessarily associated with the fire, and includes:
i. Travel to and from the fire, whether by road, air or on foot, surveillance of a running fire, mop up (including logistical support, e.g., meal delivery, fuel delivery, field-based repairs on plant and equipment on an active fire ground);
ii. Aerial attack;
iii. Application of chemical fire retardants and foams;
iv. Office duty performed directly in connection with the organisation and direction of the firefighting effort.
b. Duties performed either within or outside normal working hours in connection with tasks necessary to prevent or reduce the risk of fire (including travel to and from the site at which the duties are to be performed) such duties being:
i. Hazard reduction, including burning, felling trees, fire trail maintenance and the creation of fire barriers using machinery or hand tools, use of aircraft to drop incendiary devices; and
ii. Fire standby duty and fire detection (both fire tower operation and mobile fire patrol).”
The applicant described her role in a written statement dated 6 December 2022 as follows:
“My job as a District Co-Ordinator is an administrative/clerical position providing support to the Team Manager, staff and the volunteer firefighters. By "support” l mean managing issues, attending meetings, organising hazard reduction burns and mitigation works.
Sometimes in the past I may have attended an incident being a motor vehicle accident, a fire which On-Call Officers went to and so forth. When I did that l supported the volunteers - checked their wellbeing and offered support. In my role as a District Co-Ordinator, I was never required to, nor did I ever fight a fire. In that role, as Scott Morrison would say, I have never held a hose.”
The applicant described the cause of her injury as involving her appearance at an IRC hearing on 3 September 2021 and the subsequent online publication of the IRC decision. The applicant said her injury had absolutely nothing to do with fighting a fire or providing support at a fire front during a fire.
Submissions
In submissions made at the arbitration hearing on 21 March 2023, it was noted that the applicant gave evidence that she was never required to nor did she ever fight a fire in the course of her employment. No evidence had been provided by the respondent that the applicant had undertaken firefighting duties either incidentally or otherwise. The applicant’s role of District Coodinator was not on the respondent’s list of designated firefighting roles. In any event, the respondent’s policy could not interfere with the plain language of the legislation. It was clear that the applicant was not a firefighter and the attempt by the respondent to somehow circumvent the legislation was without basis.
Although the respondent agreed with the applicant’s submissions as to the relevant case law, it took a different view as to the requirements of the applicant’s role. Referring to the position description and the policy document, the respondent submitted that the applicant’s role required her to be potentially able to do firefighting activities. The fact that the applicant had not previously performed firefighting duties did not mean that she could not have been required to do so. Furthermore, the applicant’s usual duties were incidental to the control or suppression of fire.
Consideration
I do not accept on the evidence before me that the applicant’s ordinary or normal duties with the respondent involved extinguishing fires, especially bushfires. The applicant’s own description of her role, and the role description relied on by the respondent, both indicate that she held an administrative role, performing duties including coordinating services and providing support; researching, developing and contributing to the implementation of procedures and guidelines; and maintaining and updating corporate systems. In practice, this involved managing issues, attending meetings and coordinating hazard reduction burns and mitigation works.
The applicant said she had never participated in the activity of extinguishing fires. The applicant’s evidence in this regard is uncontradicted.
Although I would be prepared to accept that the applicant’s normal duties were incidental to or related to the fighting of fires, applying Ware, I do not accept that the ordinary or grammatical meaning of the term “firefighter” can extend to such duties.
The role description does, however, indicate that persons in the role held by the applicant might be required to participate in activities to protect the community from fire and similar incidents within the scope of her qualifications, when needed. The respondent’s submissions suggest that this requirement rendered the applicant’s role that of a firefighter.
I also do not accept this submission. Nothing in the evidence suggests that the applicant was qualified to extinguish fires or that she was expected to engage in the activity of extinguishing fires at a fire front, irrespective of whether she had in fact done so, having regard to the essentially administrative nature of the role.
Although the respondent’s submissions suggested there was some ambiguity in relation to the matter, I do also not accept that the role of District Co-ordinator, appears on the respondent’s own list of designated firefighting roles.
I do not accept, in all the circumstances, that the applicant’s ordinary or normal duties can be characterised as that of a “firefighter”.
The applicant has given evidence that sometimes she did attend the scene of fires or other incidents. In those instances her activities were limited to providing administrative and co-ordination support to those at the scene who were extinguishing fires.
I do accept that that the decision in Ware leaves open the possibility that in certain circumstances, a worker whose ordinary or substantive role is not that of a firefighter could be regarded as a ‘firefighter” whilst on the scene of a fire.
The worker in Ware was a mechanic whose substantive position was found not to be that of a firefighter, despite performing work incidental to the fighting of fires. The worker was, however, found to be a firefighter during the times he performed work as a mechanic on firefighting equipment or trucks at a fire front. As Roche DP found in Ware, support personnel performing tasks that are incidental to the activity of firefighting may well, depending on the circumstances, be firefighters during a fire.
Consistently with the decision in Ware, the respondent’s policy document envisages that certain employees whose roles are not that of a firefighter might be deemed to be a firefighter for workers compensation purposes when undertaking firefighting activities. Firefighting activities or duties are defined in paragraph 3.26 of the document. Sub-paragraph (a)(iv) of clause 3.26 refers to “office duty performed directly in connection with the organisation and direction of the firefighting effort”. However, paragraph (a) relates only to acts or operations performed by a “firefighter”. Paragraph (b) applies more broadly to the respondent’s employees but is limited to “hazard reduction”, “fire standby duty” and “fire detection” duties.
I do not accept that the policy document should be read as indicating that administrative or coordination activities, performed by a worker who is not a designated firefighter, constitute firefighting duties. In any event, I accept the respondent’s submission that the respondent’s policy cannot displace the ordinary meaning of the words contained in cl 25.
Ultimately, it is not necessary to decide whether the applicant’s work during the times when she was at the scene of a fire rendered her a “firefighter”. That is because there is an important difference between the facts of this case and the facts in Ware. In Ware, it was not disputed that the worker’s employment, both in the workshop and on the fire front, was employment to the nature of which his hearing loss injury was due.
The evidence in this case does not suggest that any event at the scene of or during a fire was causative of the applicant’s injury. Rather, the evidence indicates that it was the experience of being cross-examined in the IRC proceedings, the subsequent publication of the IRC decision, as well as a series of interactions with her colleagues in the course of the applicant’s ordinary or substantive duties, which were perceived by her as hostile, that were causative of the injury.
Had the applicant sustained a psychological injury due, for example, to some traumatic event at the scene of a fire, it may well be that cl 25 would apply so that the Workers Compensation Acts and regulations applied to and in respect of the injury as if the 2012 amendments had not been enacted.
That is not, however, the case before me. I have found that the applicant’s ordinary or normal role was not that of a firefighter. The injury in this case occurred in the course of or arose out of the applicant’s ordinary or normal employment duties.
I do not accept, for the purposes of cl 25 that the applicant received the injury as a firefighter. Accordingly, the 2012 amendments apply to the injury in this case. Sections 36 and 37 of the 1987 Act as amended and in force as at the date of injury govern the applicant’s entitlement to weekly compensation.
There will be an order for the payment of weekly compensation in accordance with the amended provisions, with credit to be given to the respondent for payments already made.
As the proceedings do not involve an exempt worker, there will be no order as to costs.