Gardiner v Oxford Art Supplies and Books Pty Ltd
[2007] NSWWCCPD 210
•15 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Gardiner v Oxford Art Supplies and Books Pty Ltd [2007] NSWWCCPD 210
APPELLANT: Janette Gardiner
RESPONDENT: Oxford Art Supplies and Books Pty Ltd
INSURER:GIO General Ltd
FILE NUMBER: WCC1447-07
DATE OF ARBITRATOR’S DECISION: 6 June 2007
DATE OF APPEAL DECISION: 15 October 2007
SUBJECT MATTER OF DECISION: Evidence; drawing of inferences; procedural fairness
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Somerville & Co
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 6 June 2007 is revoked and the following orders made:
“1. The matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
2. Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration, if they are otherwise recoverable under the relevant costs regulations.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Janette Gardiner (‘the Appellant Worker/Ms Gardiner’) started work for Oxford Art Supplies and Books Pty Ltd (‘the Respondent Employer/Oxford Books’) as a casual shop assistant at its Chatswood store on 1 November 2000. She became permanent part time at the store from 2 August 2001, working Tuesday, Wednesday and Thursday from 10.00am to 6.00pm with a 30-minute lunch break. She ceased work for the Respondent Employer in the week ending 7 or 8 July 2005.
Throughout her period of employment with Oxford Books, Ms Gardiner was often off work because of flu like symptoms and sinusitis. She alleges that over a lengthy period she was subjected to a culture of bullying and harassment at work including sexual harassment by the owner and managing director, David Altshuler. She alleges that she ceased work because she was so physically ill that she thought she was heading for a nervous breakdown. She submitted a claim form to GIO General Ltd (‘GIO’) on 25 July 2005. Her claim was initially accepted but denied by letter from the GIO dated 20 February 2007 on the ground that she had not received any injury as alleged or at all and that her employment was not a substantial contributing factor to any injury. In addition, the letter denied that she was incapacitated for employment. She was paid weekly compensation until 2 April 2007 and medical expenses until 23 February 2007.
An Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 5 March 2007. In it Ms Gardiner alleged her injury to be “Post traumatic stress disorder, anxiety and depression” as a result of “Harassment and bullying in the workplace”. The date of injury is alleged to be 8 July 2005. At the hearing there was no issue that the claim was one relating to the nature and conditions of her employment from November 2000 until her last day of work on either 7 or 8 July 2005.
The Respondent Employer’s Reply was filed on 27 March 2007 and the matter was listed for conciliation and arbitration on 21 May 2007. On that day the matter proceeded to arbitration with both parties represented by counsel.
In a carefully prepared and detailed decision delivered on 6 June 2007 the Arbitrator concluded that he was not satisfied that Ms Gardiner had proven her case on the threshold issue of injury or, in the alternative, if she had sustained an injury, that her employment was a substantial contributing factor to that injury. As a result, he made an award in favour of the Respondent Employer.
By an appeal filed in the Commission on 3 July 2007, Ms Gardiner seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 June 2007, records the Arbitrator’s orders as follows:
“1.There will be an award for the Respondent.
2.No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that Ms Gardiner had not established a prima facie case;
(b)finding that Ms Gardiner’s employment was not a substantial contributing factor to her injury;
(c)assuming inferences as to documentary evidence that were not reasonably founded on the evidence;
(d)forming conclusions about the evidence that were not open and without affording the paries the opportunity to address any inferences he was about to draw about that evidence or offer any opportunity to Ms Gardiner to explain the evidence;
(e)failing to exercise his discretion under section 354(2) of the 1998 Act;
(f)failing to comply with section 354(1) of the 1998 Act, and
(g)failing to take into account or refer to material provided in support of Ms Gardiner’s case.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311). When dealing with an alleged denial of the requirements of natural justice (procedural fairness), all that an appellant needs to show is that the denial deprived him or her of the possibility of a successful outcome (Stead v State Government Insurance Commission (1986) 161 CLR 141 (‘Stead’)).
I intend to apply the above principles in the matter before me.
FRESH EVIDENCE
Neither party seeks to rely on fresh or additional evidence on appeal.
SUBMISSIONS AND FINDINGS
The Appellant Worker submits:
(a)her statement of 23 February 2007 set out, among other things, her allegations of bullying and harassment;
(b)she was not cross-examined about her allegations;
(c)the Respondent Employer relied on three statements from Mr Altshuler. His only evidence in response to her allegations of sexual harassment and bullying is at page two of his statement of 29 July 2005 where he said, “In regard to accusations of abuse from myself, I only raised my voice on the phone so I could get a word in edgeways”;
(d)the Respondent Employer has not denied the harassment allegations, her attempts to have dispute resolution, or the breakdown in the relationship between her and Ms Henry;
(e)in support of her case she relied on several statements (referred to in the transcript as a “bundle of references” and marked document J (T6.21) that corroborated her complaints about the treatment she received from her employer;
(f)infringement notices from the WorkCover Authority of NSW (‘WorkCover’) were tendered confirming that WorkCover had attended the Respondent Employer’s premises and found no grievance procedures in place;
(g)she had made out a prima facie case;
(h)the Arbitrator found that though there may have been some interpersonal tension from time to time at work and there may have been advances made by Mr Altshuler, those matters did not amount to “either bullying or sexual harassment of the nature now claimed as being any cause of the applicant’s psychological condition” (Statement of Reasons for Decision (‘Reasons’) at paragraph 145);
(i)her statement of 23 February 2007 identified constant unwanted sexual harassment from Mr Altshuler, none of which was denied by him or put in issue in the Respondent Employer’s case. To classify such actions as not amounting to either bullying or sexual harassment “imports a gross misunderstanding of what is acceptable conduct in the workplace and the legality of the employer’s actions” (Appellant Worker’s submissions, paragraph nine);
(j)given the unchallenged nature of the evidence, the Commission appears to have applied a greater burden of proof than the civil burden in determining the case and in considering section 9A of Workers Compensation Act 1987 (‘the 1987 Act’);
(k)the Arbitrator concluded that document “K”, a statement purportedly from Penny Marshall, had been signed by her (Ms Gardiner) because it bore the same signature as appears on Ms Gardiner’s statement dated 2 April 2007. It is apparent from Ms Gardiner’s statement of 23 February 2007 that the signature on document “K” is not Ms Gardiner’s;
(l)the Arbitrator concluded that as far as her psychological condition was concerned, “there was evidence of earlier problems” (Reasons, paragraph 73) and made references to the treating doctor’s clinical notes as referring to “long counselling” (Reasons, paragraphs 82, 84, 90 and 102). Those entries in the notes could refer to her smoking habit. Even if they did refer to counselling in respect of allergies and/or litigation, they were not sufficient to infer that Ms Gardiner had a previous psychological problem and they do not negate her medical case as to the cause of her psychological condition;
(m)the Arbitrator has misinterpreted a number of the entries in the treating doctor’s clinical notes. The entry quoted at paragraph 100 of the Arbitrator’s Reasons in fact reads “Problem with his new partner” (emphasis added) not “this new partner”, as the Arbitrator speculated. It is disputed that the reference to “counselling” at paragraph 101 of the Arbitrator’s Reasons can be read as “counselling +++”;
(n)the Arbitrator’s reference to the treating doctor’s clinical notes recording “personal difficulties arising from relationships the Applicant entered into” and “many counseling [sic] sessions as to this aspect of the Applicant’s life” (Reasons, paragraph 103) is not borne out by a concise interpretation of the notes;
(o)the Arbitrator’s conclusion that document “K” had been signed by her (Ms Gardiner) and not by Mrs Marshall was incorrect and it was therefore erroneous to infer that Ms Gardiner’s credit was questionable because of that document;
(p)by not inviting the parties to be heard about the inferences to be drawn from the signature appearing on document “K” the Arbitrator denied Ms Gardiner procedural fairness;
(q)whilst the Commission may inform itself on any matter in such manner as it thinks appropriate (section 354(2) of the 1998 Act), before the Arbitrator assumed certain inferences about document “K” and the entries in the treating doctor’s clinical notes he should have properly informed himself of any explanation Ms Gardiner could have offered. That is especially so in circumstances where none of the inferences drawn by the Arbitrator were raised by the parties during the arbitration;
(r)if the Arbitrator formed the view that he was unable to determine the matter in the absence of oral evidence, he should have required the matter to be conducted other than “on the papers”, and
(s)the Arbitrator was wrong to conclude that the bundle of documents included in “J” were of no probative value because they post dated the events complained of and were essentially hearsay. It would be unreasonable to expect corroborative statements obtained for the purpose of litigation to be contemporaneous with the events the subject of the proceedings. To dismiss the documents because of the rules of evidence or because they merely recorded Ms Gardiner’s complaints was contrary to section 354 of the 1998 Act and forms no legal basis for that evidence to be either dismissed or ignored.
The Respondent Employer submits:
(a)Ms Gardiner’s complaints were of such a serious nature that one would reasonably expect corroboration from her treating medical practitioners but this was not the case;
(b)the Arbitrator correctly characterised Ms Gardiner’s evidence as a reconstruction after cessation of employment;
(c)the contemporaneous evidence did not bear out the allegations made so that, if one did not accept Ms Gardiner, no prima facie case was made out;
(d)the Arbitrator did not draw inferences but rather interpreted the evidence placed before him which the Appellant Worker did not seek to amplify;
(e)the submission that the Arbitrator drew wrong inferences about Mrs Marshall’s statement is not borne out when one has recourse to paragraphs 117 to 120 inclusive of the Arbitrator’s Reasons;
(f)the Arbitrator was entitled to interpret the evidence in the way he did;
(g)the onus of proof rested with the Appellant Worker;
(h)all areas of concern to the Arbitrator were explored at the arbitration;
(i)no matter under section 354(2) of the 1998 Act arose;
(j)the Appellant Worker chose not to call any oral evidence;
(k)reliance is placed on the Court of Appeal decision of Campbelltown City Council v Vegan and others [2006] NSWCA 284, and
(l)the Arbitrator’s Reasons were exhaustive and fully enumerated and his decision should be upheld.
DISCUSSION AND FINDINGS
Whilst the Appellant Worker has raised seven grounds of appeal, the appeal can be disposed of by consideration of two grounds which I believe are of critical importance: first, whether the Arbitrator drew inferences that were not supported by the evidence and, second, whether the Appellant Worker was denied procedural fairness.
Did the Arbitrator draw inferences that were not supported by the evidence?
The Arbitrator was “unable to accept that the [Appellant Worker’s] case has been proven on the balance of probabilities” (Reasons, paragraph 143). In reaching that conclusion the Arbitrator referred to the fact that the decision not to seek leave to call oral evidence meant that the Commission had no opportunity to “assess the competing versions on sworn or affirmed evidence” (Reasons, paragraph 64). He then added:
“It also meant that there was no explanation made as to the evidentiary difficulty the Applicant encountered as the documentary evidence was being identified. This has confronted the Commission with some doubt as to the Applicant’s credit.” (emphasis added)
The reference to the “evidentiary difficulty the Applicant encountered as the documentary evidence was being identified” was a reference to the signature on document “K”, a document alleged to be a statement by Mrs Marshall. This statement was significant as it provided independent corroboration of Ms Gardiner’s complaint that Mr Altshuler had harassed her during a telephone conversation on 11 July 2005. It asserts that Mrs Marshall was with Ms Gardiner during that conversation, that she heard a male caller “yelling aggressively” and that Ms Gardiner was clearly shaken by the experience. At paragraph 61 the Arbitrator said of this document:
“The probative value of this statement is somewhat diminished, however, because it became apparent that the statement was signed not by Mrs Marshall, but the Applicant herself. Moreover, as will be seen later in these reasons, the document appeared to originate on the same word processor.” (emphasis added)
At paragraphs 117 and 118 of his Reasons the Arbitrator said:
“117.When document ‘K’ was examined, it was found that its signature seemed to be an exact replica of the applicant’s which appeared on her statement which immediately preceded document ‘K’ in the ARD - document ‘pt G’. Moreover, the typing on document ‘K’ was of a similar single spaced, oddly phrased kind that was used in document ‘Pt G’.
118.The transcript will reveal that there was some discussion as to these matters, with neither counsel disagreeing that the two signatures matched, nor that the two documents appeared to be similar in their appearance. These facts led to an obvious inference that the Applicant had signed both documents, when document K represented itself to be by another person altogether. Moreover, without more, it was open to the inference that indeed the Applicant had composed both documents.”
The Respondent Employer objected to the tender of document “K” (T7.18) on the basis of its content. In the course of hearing submissions on that objection the following exchange took place at T7.47 to T8.42:
“ARBITRATOR: You ask me to withdraw the conclusion - well, whose signature is this? [Inaudible] believed to be in Mrs Marshall’s statement?
MS WOOD: Mrs Marshall’s, I presume.
ARBITRATOR: It’s an identical signature to that of the applicant in the document before, isn’t it?
MR BEAUCHAMP: Yes. And the witness [inaudible]. See, we run into this same problem later on when we get to my documents, and I’ve ‑ well, I’ve taken instructions on my friend’s objection to delete one document because I can’t be certain about the maker and the circumstances of it.
ARBITRATOR: Well, it also appears to be ‑ and that’s capable of rebuttal, of course, but that ‑ the typing and the set out of both documents appears to be the same.
MR BEAUCHAMP: Oh, dear!
ARBITRATOR: It looks as if ‑‑
MS WOOD: I can’t ‑‑
ARBITRATOR: ‑‑ the same author is responsible for both.
MS WOOD: I can’t prove that that [inaudible] made by Penny Marshall.
ARBITRATOR: All right. That raises some problems in itself, doesn’t it? Are you objecting to this document?
MR BEAUCHAMP: Yes.
ARBITRATOR: Even though it might be some ‑ what I’ll do is I’ll admit it. I think it’s relevant, perhaps not for its content but for ‑‑
MR BEAUCHAMP: Well ‑‑
ARBITRATOR: ‑‑ execution. Okay.
MR BEAUCHAMP: [Inaudible]?
MS WOOD: That document is ‑‑
MR BEAUCHAMP: Oh, I’m sorry, yes.
MS WOOD: ‑‑ [inaudible].
MR BEAUCHAMP: Sorry. Sure.
ARBITRATOR: Yes.” (emphasis added)
The document was marked “K”. No further submissions or comments were made at the arbitration about it or its execution.
At paragraphs 119 and 120 the Arbitrator said:
“119.No attempt was made to proffer an explanation, nor was anybody called to rebut the obvious inference that the Applicant was dishonest. There is nothing in the medical material to indicate that the Applicant suffered from any condition that would cause her to involve herself in such dishonesty. Whilst she may have been delusional, I do not accept that her condition meant that she was unable to be aware that she was signing a document that purported to be from another person, nor that to do so was wrong.
120.Such a finding of fact has the most serious repercussions for the Applicant. Without any explanation being proffered by way of oral evidence or submission, the clear inference is that she was deliberately misleading the Commission. The absence of such an explanation must affect the Applicant’s credit. As this case is dependent upon the Commission accepting her assertions as to both the fact of the bullying and sexual harassment, and her perceptions that these facts led to her psychological injury, such an adverse finding must result in her failing to make out her case, unless she has reliable corroborative evidence. I find this to be a significant issue, and without more, sufficient to raise a doubt as to whether the events she later described as being causative of her injury actually had that effect.” (emphasis added)
In light of the Arbitrator’s finding that Ms Gardiner signed Mrs Marshall’s statement and that the “clear inference” was that she (Ms Gardiner) was “deliberately misleading the Commission”, these matters have assumed critical importance in the outcome of the claim and require that the signatures on the relevant documents be examined with some care. For that reason, and for the avoidance of doubt, I have had the signatures on three relevant documents copied and they are reproduced in an annexure to this decision. Though the annexure forms a part of this decision, in order to protect the privacy of those involved it will not be published.
The Arbitrator’s reference to the signature on document “K” (Mrs Marshall’s statement) being “an identical signature to that of the applicant in the document before, isn’t it?” (emphasis added) was a reference to the signature on Ms Gardiner’s statement dated 2 April 2007 (identified as “Pt G” at the arbitration). Three people signed document “Pt G”. The first signature on “Pt G” is identical to the signature on document “K” and, presumably, is Mrs Marshall’s. The second signature on “Pt G” is clearly Ms Gardiner’s. This is established by comparing it to Ms Gardiner’s signature on her statement dated 23 January 2007 (identified as document “G” at the arbitration and about which there is no dispute as to authenticity or execution). Thus, these two signatures (the second signature on “Pt G” and Ms Gardiner’s signature on document “G”) are identical. The third signature of “Pt G” is that of an unidentified witness.
The Arbitrator wrongly assumed that the first signature on document “Pt G” was Ms Gardiner’s and that, because that signature was identical to the signature on document “K” (Mrs Marshall’s statement), Ms Gardiner had signed Mrs Marshall’s statement (Reasons, paragraphs 61 and 117). It is correct that the first signature on document “Pt G” and the signature on document “K” are identical, but they are not Ms Gardiner’s. They are, in all probability, Mrs Marshall’s. The confusion has arisen because Ms Gardiner largely prepared her statements in support without legal advice. As a result, contrary to the usual practice with statements, Mrs Marshall signed “Pt G”, which was Ms Gardiner’s statement of 2 April 2007.
It follows that the Arbitrator’s adverse conclusions about Ms Gardiner’s credit were without foundation and should not have been made. The Arbitrator’s error has impacted on his assessment of the whole claim because the case largely depended on whether Ms Gardiner’s factual allegations were accepted (Reasons, paragraph 120). The Arbitrator considered Ms Gardiner’s credit to be a significant issue which, without more, was “sufficient to raise a doubt as to whether the events she later described as being causative of her injury actually had that effect” (Reasons, paragraph 120).
The Arbitrator’s additional comments that document “K” “appeared to originate on the same word processor” (Reasons, Paragraph 61) were also unsupported by the evidence. It is certainly possible that the documents “Pt G” and “K” were prepared on the same word processor, but without evidence to that effect it was not appropriate for the Arbitrator to speculate on such matters.
The Arbitrator further noted that “the typing on document ‘K’ was of a similar single spaced, oddly phrased kind that was used in document ‘Pt G’” (Reasons, paragraph 117) and concluded that “without more, it was open to the inference that indeed the Applicant had composed both documents”. Whilst it is certainly possible that Ms Gardiner composed both documents, there was no evidence to that effect. In any event, that fact on its own did not indicate any dishonesty on her part (though it might be relevant to the weight to be attached to the evidence) as it is quite common for statements to be prepared by someone other than the signatory.
In these circumstances, the Arbitrator was in error on an issue of crucial importance to the outcome of the case.
Did the Arbitrator deny the Appellant Worker procedural fairness?
The Appellant Worker also argues that by not inviting the parties to be heard about the inferences to be drawn from the signature appearing on document “K” the Arbitrator denied Ms Gardiner procedural fairness.
The Commission is bound to comply with the rules of procedural fairness (Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15). In determining the nature and extent of the requirements of the rules of procedural fairness it is necessary to have regard to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [20]).
Proceedings in the Commission are less formal than in a court. The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter permits (section 354(2) of the 1998 Act). When informing itself on any matter, the Commission is to bear in mind the principles of procedure set out at Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006 which state, among other things, that evidence based on speculation and unsubstantiated assumptions is unacceptable. The Commission must also act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities or legal forms (section 354(3) of the 1998 Act).
When considering the application of the rules of procedural fairness it is instructive to bear in mind the words of Gleeson CJ in In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 (‘Lam’) where his Honour said at [37]:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Muin v Refugee Tribunal [2002] HCA 30 (‘Muin’) Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
Whilst a tribunal is not required to give a “running commentary upon what it thinks about the evidence” (SZEBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48]) and it does not have to disclose what it is minded to decide (F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369), where there are specific matters that have not been addressed by the parties which the tribunal thinks are important to the determination of the claim, it is essential that those matters be brought to the parties’ attention in such a way that they have a reasonable opportunity to answer them.
Further, an Arbitrator is not bound by the way the parties present their case, but if he or she is contemplating determining the case on a different basis the rules of procedural fairness require that the parties be informed of that prospect so they can either call evidence or make submissions on any new issue (Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 per Ipp JA (with Mason P agreeing) at [78]).
In the present matter, the Arbitrator stated that there was “some discussion” about document “K” at the arbitration and neither counsel disagreed that the signature/s on “Pt G” and “K” matched (Reasons, paragraph 118). The exchange about the signatures on the documents is set out at [28] above. That discussion was limited to the Arbitrator suggesting that the signature/s on the two documents were the same and then asking the question, “isn’t it?” (T7.54). He then stated that it looked as if the same author was responsible for both documents (T8.10/14). Neither counsel made any submission or concession about whether the signature on “Pt G” matched the signature on document “K”.
It was not part of the Respondent Employer’s case that Ms Gardiner had acted dishonestly or that her credit had been impugned by the execution of document “K”. Its “primary submission” was that the Arbitrator would not be satisfied that the major depression from which Ms Gardiner suffers was due to bullying and harassment at work with the Respondent Employer (T19.55). The Arbitrator’s comments at pages seven and eight of the transcript amounted to no more than raising a potential issue and posing a question at a time when evidence was being tendered. The issue about the execution of document “K” was not raised again. Further, neither the Arbitrator nor counsel for Oxford Books suggested at the arbitration that Ms Gardiner had deliberately attempted to mislead the Commission.
If an Arbitrator is minded to draw adverse inferences against a party on issues of crucial importance and the parties have not had an opportunity to deal with those issues, it is essential that the Arbitrator bring those matters to the parties’ attention so they can deal with them by either making further submissions or calling evidence. A failure to do so will often, depending on the circumstances of the case and the importance of the issue to the final outcome, result in the Arbitrator’s decision being revoked because of a denial of procedural fairness.
The Arbitrator in the present matter did not indicate that he intended to draw damaging inferences about Ms Gardiner’s credit because of the manner of the preparation and execution of document “K”. Given the importance of Ms Gardiner’s credit to the assessment of her claim, the Arbitrator should have done so and his failure amounted to a breach of his obligation to afford Ms Gardiner procedural fairness. Had the Arbitrator raised the issue during submissions it is most likely that counsel for Ms Gardiner would have drawn his attention to Ms Gardiner’s signature on document “G” and the Arbitrator’s concerns may well have been allayed.
Such a breach of procedural fairness has deprived Ms Gardiner of the possibility of a successful outcome and requires that the Arbitrator’s decision be revoked (Stead).
CONCLUSION
The Arbitrator was in error in finding that Ms Gardiner signed Mrs Marshall’s statement. As a result, he was also in error in inferring that Ms Gardiner was dishonest and that she deliberately misled the Commission. Such a serious finding, contrary to the evidence, was of critical importance in a case that turned on whether the Arbitrator accepted Ms Gardiner’s complaints that she had been subjected to harassment and bullying at work and that that behaviour caused her condition.
Even if there was evidence to support the inferences drawn by the Arbitrator, in circumstances where those inferences had not been properly raised during the hearing, the Arbitrator was obliged to bring his concerns to the parties’ attention in clear terms so they had an opportunity to answer them. Merely raising a question in passing, while documents were being tendered, was insufficient to comply with the Arbitrator’s obligation to afford the parties procedural fairness.
In light of my findings on the issues relating to document “K” and procedural fairness it is not necessary or appropriate that I consider the other grounds of appeal, especially as the matter must be re-determined by a different Arbitrator.
OTHER MATTERS
Whilst it is not for me to prepare the case for the parties, I record my surprise at the way the case was prepared and presented at the arbitration. A considerable body of relevant material in the possession of the GIO was not tendered. Significant issues raised by Ms Gardiner were not addresses at all by Oxford Books. No doubt both sides will want to consider what additional evidence should be called at the re-determination so that the matter can be determined according to its substantial merits.
DECISION
The Arbitrator’s determination dated 6 June 2007 is revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
2.Costs of the first arbitration, and of the second arbitration, are to follow the event of the second arbitration, if they are otherwise recoverable under the relevant regulations.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
15 October 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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