Goodman Fielder Limited v Alasmar - [2004] NSWWCCPD 43

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Goodman Fielder Limited v Alasmar [2004] NSW WCC PD 43
APPELLANT:  Goodman Fielder Limited
RESPONDENT:  Mohammed Alasmar
INSURER:Goodman Fielder Limited
FILE NUMBER:  WCC 10873-2003
DATE OF ARBITRATOR’S DECISION:          14 November 2003
DATE OF APPEAL DECISION:  19 July 2004
SUBJECT MATTER OF DECISION: Section 38A of the Workers Compensation Act 1987; Whether misconduct can sever a worker’s right to compensation; Discretion of Arbitrator to admit evidence; Fresh evidence.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:25 May 2004
REPRESENTATION:  Appellant: Eakin McCaffery Cox
Respondent: George Caristo Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

On 10 December 2003 Goodman Fielder Limited (‘the Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 14 November 2003.

The Respondent to the Appeal is Mohammed Alasmar (‘the Worker/Mr Alasmar’).

The Employer is self insured for the purposes of workers compensation.

The appeal relates to Mr Alasmar’s claim for payment of weekly worker’s compensation benefits. Mr Alasmar was employed by the Employer, as a delivery driver for its bread products, from early 2000 until 28 February 2002. He claims to have suffered an injury to his neck and shoulders when he slipped whilst unloading products from his vehicle, during a delivery on 14 October 2002. The Employer originally accepted liability for his claim, and paid weekly compensation from the date of the injury. Approximately one week after his accident, Mr Alasmar returned to work on restricted duties, and was provided with an assistant to load and unload his truck so that he could continue with his primary duty of driving the truck.

During the latter period of Mr Alasmar’s employment, Goodman Fielder Limited conducted covert surveillance of its premises in order to detect fraud and misconduct amongst its employees. On 28 February 2003, the company wrote to Mr Alasmar terminating his employment for reasons of alleged serious misconduct. The alleged misconduct included instructing another employee to take and exchange product, giving unauthorised dock access in exchange for product, and claiming unauthorised overtime.

On 19 March 2003 the Employer notified Mr Alasmar his weekly worker’s compensation payments would cease, on the ground that his misconduct constituted non-co-operation in ‘suitable employment’ under his return to work program. The Employer alleged that this amounted to a failure to comply with section 38A(5)(b) of the Workers Compensation Act 1987 (‘the 1987 Act’). The Employer subsequently denied liability and ceased payments from 5 May 2003. On 11 June 2003, Mr Alasmar lodged an ‘Application to Resolve a Dispute’ with the Commission.

The dispute was allocated to an Arbitrator who held two conciliation and arbitration hearings. On 3 September 2003, the Employer submitted an employability report on the Worker and the matter was adjourned. On 17 September 2003 the matter proceeded to arbitration.

The Commission issued a…

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: [2004] NSWWCCPD 43
Decision Date: 19 July 2004

CaseChat Overview and Summary

Goodman Fielder Limited, the employer, filed an appeal against a decision of an arbitrator in the Fair Work Commission. The dispute concerns the employer's refusal to admit fresh evidence, including video surveillance, in the course of the appeal. The employee, Alasmar, opposes the introduction of this evidence, arguing it was not filed in a timely manner and is therefore not "fresh." The central legal issue before the Commission was whether the employer should be granted leave to adduce new evidence in the appeal proceedings, despite having failed to present it in the original arbitration hearing. The employer argued that the evidence was crucial and that its non-admission would cause substantial injustice. The employee countered that the employer had not provided a valid reason for the delay and that the evidence was not "fresh" as it had been in existence for some time.

The Commission considered Practice Direction No. 6, which outlines the process for seeking leave to introduce new evidence on appeal. The Commission examined the employer's reasons for the delay in submitting the evidence and concluded that the employer had not provided a satisfactory explanation for the late submission. The employer's arguments for admitting the evidence were largely based on the same grounds that were previously rejected by the arbitrator. The Commission further found that the evidence did not meet the criteria for being considered "fresh" and that its admission would effectively open a new case for the employee to respond to. The Commission held that the statutory scheme for resolving workers' compensation disputes aims for early disclosure and resolution, and allowing the fresh evidence would undermine these objectives.

The Commission ultimately refused the employer's application to admit the fresh evidence on appeal. The decision emphasised that the employer had not provided a good reason for the delay in submitting the evidence and that it was not satisfied that the evidence was such that it would cause substantial prejudice and injustice if not admitted. The Commission stressed that admitting the evidence would be neither fair nor just and would not align with the statutory scheme for resolving workers' compensation disputes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Practice Direction No. 6 sets out the process for seeking leave of the Commission to give ‘fresh evidence’ on appeal. It provides as follows:“New EvidenceWhere a party seeks leave to give ‘fresh evidence or evidence in addition to or in substitution for the evidence received’ (‘new evidence’) in relation to the decision appealed against, the party must serve a copy of the new evidence on the other parties to the dispute when serving the ‘Application for Leave to Appeal Against an Arbitrators Decision’ or the response to the application.The party seeking to rely upon new evidence must also file in the Commission and serve on the other parties:· a statement attesting to the service of the new evidence on the other parties to the dispute,· a brief outline of the new evidence and the reasons why it was not given in proceedings before the Arbitrator, and · submissions as to why the new evidence should be admitted.” The fresh evidence the Employer submits on appeal is the evidence the Arbitrator refused to admit at the hearing plus the video surveillance of the Worker. As noted above, many of the arguments for its admission on appeal, overlap with the late evidence issue that was before the Arbitrator. The Employer claims the Arbitrator erred in refusing to admit this evidence in the first instance, and that it should therefore be admitted on appeal. This evidence, argues the Employer, is crucial to the application for review and a refusal to admit the evidence on appeal would cause the Employer a substantial injustice. The Employer submits that the late evidence is relevant to two matters. Firstly the claim that the Worker’s conduct at the workplace was such that he did not comply with the requirements of section 38A(5)(b). Secondly that the Worker was not a person whose evidence was credible. The Employer’s only explanation as to why these documents were late in the first instance is that the workers compensation division of the company was not aware of the existence of the documents at the time the Reply was filed in the Commission. The Worker submits that leave should not be granted to admit fresh evidence on appeal, as the Employer has failed to make out any case whatsoever as to why leave should be granted. The Worker submits that leave should not be granted because not only did the Employer provide no explanation for the delay in submitting this evidence at the hearing, but the Employer has provided no explanation on appeal for that original delay. In addition, as the evidence has been in existence for some time, it is consequently not ‘fresh’ evidence, and leave to admit it cannot be granted. Fresh evidence that does no more than lay out the reasons for the Worker’s dismissal from employment, is irrelevant, unless it goes directly to the allegation that the Worker was not willing to perform his work duties. Taking all of these matters into consideration, leave to admit fresh evidence on appeal is refused. I am not satisfied that the Employer has provided a good reason why this evidence was not filed with the Reply, in accordance with the Commission’s Rules. Clearly it was in existence at the time the Reply was filed. I am also not satisfied that the evidence is such that it would cause the Employer a substantial prejudice and injustice if it were not admitted on the appeal, particularly given my view of the section 38A(5)(b) argument. To allow this evidence to be filed in the appeal effectively opens a new case for the Worker to meet in the dispute. This is neither fair not just, nor consistent with the statutory scheme for the resolution of workers compensation disputes, which strives to achieve early disclosure in relation to disputed claims and early, hopefully consensual, resolution of disputes.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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