Goodman Fielder Limited v Alasmar
[2004] NSWWCCPD 43
•19 July 2004
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 Certificate of Determination, with attached Statement of Reasons (‘the Reasons’) dated 14 November 2003, which records the Arbitrator’s orders as follows:
“1. That the Respondent pay to the Applicant weekly benefits in terms of Section 38 of the Workers Compensation Act at the rate of $480.17 per week, for the period 5 May 2003 to 7 July 2003, and on a continuing basis subject to production by the Applicant of medical certification as to his incapacity.
2.That the Respondent pay the Applicant’s costs as agreed or assessed”.
The appeal was referred to me for review on 23 March 2004. A hearing was held on 25 May 2004 and final submissions were filed on 28 June 2004.
ISSUES IN DISPUTE
The Employer submits that the order of the Arbitrator should be revoked. In summary, the Employer claims that the Arbitrator erred in:
1. Failing to properly exercise his discretion to allow the Employer to tender an investigative report as evidence in the proceedings (by reference to the Arbitrator’s obligations under sections 354 and 367 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and Rule 71(c) of the Workers Compensation Commission Rules 2003 (‘the Rules’));
2. Failing to accord the Employer procedural fairness and to properly exercise his discretion to grant the Employer’s application for an adjournment of the arbitration on 17 September 2003;
3. Failing to make the decision on the basis of credible evidence; and,
4. Misinterpreting the requirements of section 38A(5)(b) of the 1987 Act.
The Worker submits that the grounds of appeal are not made out and that the Arbitrator’s decision should be confirmed.
LEAVE
In this matter leave to appeal was granted on 31 March 2004 because I was satisfied that:
· The appeal was filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
· The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act), and
· The Appellant disputes 100% of the award of the Arbitrator (section 352(2)(b) of the 1998 Act).
ADMISSION OF ‘LATE’ AND ‘FRESH’ EVIDENCE
The Employer seeks leave to give ‘fresh evidence’ on appeal. This ‘fresh evidence’ consists of the following five documents (‘the late documents’), which relate to the Worker’s conduct whilst in the employ of the Appellant:
·Record of Interview of Mr Alasmar, dated 28 February 2003;
·Record of Interview of Chris Hibbard, dated 28 February 2003;
·Surveillance Log, 19 and 20 February 2003, Operation Aztec-POI No.8- Alasmar, Mohammed;
·Surveillance Log, 12 and 13 February 2003, Operation Dough- POI No. 18- Hibbard, Chris; and,
·Video Surveillance (to be supplied upon the request of the Commission).
The arguments in support of the two applications (late evidence before the Arbitrator and fresh evidence on appeal) clearly overlap. It is appropriate to deal with the applications in the chronological order in which they have arisen. Clearly, if the Arbitrator is found to have erred in refusing to admit the late evidence in the arbitration proceedings, then the argument for admission of substantially the same material on the same issue, as ‘fresh evidence’ on appeal, is compelling.
Did the Arbitrator Err in Refusing to Admit Late Evidence?
The Employer submits that the Arbitrator erred by failing to observe Rule 71(c) of the Rules, which provides as follows:
“71 Measures to assist parties
The Commission is to take such measures as are reasonably practicable to:(a)assist the parties to any proceedings to understand the nature of the proceedings and the legal implications of any assertion made in any documents or otherwise in the proceedings, and
(b)explain to the parties any aspect of the procedure or any decision or ruling made by the Commission in relation to the proceedings, and
(c)ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and
(d)ensure that the parties have the opportunity to explore settlement in the proceedings.”
To properly understand the Employer’s submissions it is necessary to review the progress of the matter in the Commission. The following relevant matters can be ascertained by a review of the Commission file and of the transcripts of proceedings before the Arbitrator on 3 and 17 September:
·A telephone conference was held on 14 August 2003 and the Arbitrator made a number of procedural directions. Leave was granted to the Employer (the ‘Respondent’ before the Arbitrator) to file late documents (filed on 10 July 2003) and these were admitted in the proceedings. The Arbitrator directed the Employer to produce relevant medical and vocational assessments, and other documents (including video material) relating to the Worker’s termination of employment, by 18 August 2003, and the ‘Section 40 Assessment by Work Focus’, and other documents by 21 August 2003. The parties were given time to file further submissions on the admission of documents relating to the Worker’s termination of employment.
·The Employer did not comply with the direction to produce medical assessments or evidence relating to termination by 18 August 2003, instead, producing the material at the conciliation/arbitration hearing on 3 September 2003. The section 40 report was also produced. The result was that the Worker’s (the ‘Applicant’ in the arbitral proceedings) legal representative was granted an adjournment to consider the documents. On the same day the Arbitrator refused the Employer’s request to issue a ‘Direction for Production’ to Dr Salama, the Worker’s treating general practitioner, for his notes and relevant reports. The refusal was on the basis that the Employer had been given the opportunity to have the direction issued earlier and had failed to do so. Further Directions were made directing, inter alia, that the Applicant notify the Employer of what further materials it sought to rely upon (including the section 40A assessment and materials relating to the termination of the Applicant’s services) in the materials that had been produced by the Employer, and, the video material. All evidence was to be filed by 10 September 2003.
The Employer makes a number of claims in relation to the conduct of the proceedings by the Arbitrator that are not evidenced in the transcript. The solicitor for the Applicant Worker informed the Arbitrator, at the arbitration hearing on 17 September 2003, that he would not be relying on the material relating to the circumstances of the Worker’s dismissal. The Employer then sought to tender documentary evidence of Mr Alasmar’s alleged misconduct and claims that the Arbitrator refused this request. The Employer submits that, after the Worker advised that he would not be relying on any of the material relating to the alleged offences that lead to his dismissal (‘the late evidence’), the Arbitrator wrongly refused the Employer leave to tender such evidence. The Employer argues that evidence of the conduct of the Worker became a crucial matter for the Arbitrator to consider. “The Arbitrator made a conscious decision not to allow the documents into evidence nor to draw any adverse inference (see Jones v Dunkell) when the documents were not tendered in the Applicant’s case.”The Employer also claims that it was not allowed extra time during the arbitration to cross-examine the Worker and it was refused an adjournment to make investigations of claims made by the Worker at the arbitration hearing. The transcript of 17 September 2003 does not appear to fully record these issues. The Worker’s representatives also attested to the fact that the Arbitrator “turned the tape on and off” during the arbitration.
The claim that the Arbitrator selectively recorded the arbitral proceedings on 17 September 2003 is a serious one. The ‘Guideline for the Practice of Conciliation/Arbitration’ (‘the Guideline’) in the Commission requires that the arbitration phase of proceedings be recorded. This is critical to the conduct of an appeal, particularly where reasons for decision are given ex tempore. In this matter the Arbitrator allegedly turned the sound recording equipment on and off at several points in the arbitration. The matters that were allegedly not recorded were: the application for an adjournment made by the Employer “upon learning from the Worker that he had prior workers compensation claims”; a submission “to the Arbitrator that the Worker should be warned prior to a particular line of questioning which may have included references to criminal matters”, and a series of questions about these claims. The failure to record the entirety of the arbitration is unacceptable. However, in the circumstances of this particular matter, it is not fatal to a fair review of the decision on appeal. The transcript is alleged to incompletely record Mr Alasmar’s evidence about previous workers compensation claims; however, I am not satisfied that the relevance of this evidence is such that any failure to record it, materially affects a fair review of the decision on appeal. I accept, for the purposes of the appeal, that the Employer made the adjournment application and it was refused. The reasons for the refusal are evident from the parties’ submissions. Submissions made to the Arbitrator in relation to cross-examination, and apparently not recorded, have been made on appeal. I also accept that the Employer was restricted in its cross examination of Mr Alasmar as to the previous claims and will proceed to review the decision of the Arbitrator on that basis. The failure of the Arbitrator to fully record the arbitration is, in this case, a matter best referred to the Registrar.
The Employer submits that the Arbitrator erred in finding that, as the documents were not provided with the reply or with other documents provided prior to the arbitration, they could not be permitted into evidence at the Arbitration. In doing so, the Arbitrator denied the Employer its right to properly defend its claim (Twist v Randwick Municipal Council (1976) 136 CLR 106, at 110). To this end the Employer submits that the Arbitrator erred in failing to properly exercise his discretion. Documents should be admitted into evidence in circumstances where refusal would result in a substantial injustice (Radnedge v GIO of NSW (1987) 9 NSWLR 235). In addition, the evidence sought to be tendered was of such probative value that there was a high probability that it would have led to a different outcome had its tender been allowed (Harrison v Shipp (2002) 54 NSWLR 738).
The Employer also submits that the Arbitrator erred in refusing to admit evidence of the Worker’s misconduct and that the decision was unfair, and contrary to:
· section 367(1)(a) of the 1998 Act, which provides that the Commission is to “provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts”;
· the intention of section 354(1) of the 1998 Act, which provides that “proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits”;
· section 354(2) of the 1998 Act, which provides that “the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”;
· section 354(3) of the 1998 Act, which provides that “the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.
The Worker submits the Arbitrator did not err in refusing to admit the reports, as they were filed late, without reasonable explanation for the delay. It is significant that the Employer failed to identify the dates at which its investigation reports, the subject of the Arbitrator’s purported errors, came into existence. It can be readily inferred that the reports were in existence before 28 February 2003, as that was the date on which the Worker was given notice of his termination as a result of the information contained in those reports. Despite filing its reply to the original application with the Commission on 25 June 2003, and being permitted to file late documents on 10 July 2003, the Employer did not seek to rely upon the investigation reports until the day of arbitration on 17 September 2003. The Worker has not been provided with a copy of the video footage that the Employer now seeks to introduce on appeal. The Employer has not identified the date of the video or indicated “why it was not adduced as part of the Appellant’s case from the outset.”
The Workers Compensation Commission Rules 2003 (‘the Rules’) set out the requirements for the filing of evidence and submissions by parties to proceedings in the Commission. They are made to facilitate a fair, timely and efficient process of dispute resolution and with the intent that they be complied with. Legal representatives must be aware of the requirements of the Rules and ready to operate in the Commission’s non-adversarial and non-technical environment. The Commission is not a court (Orellana Fuentes v Standard Knitting Mill Pty Limited & Anor; Carey v Blasdom Pty Limited T/as Ascot Freightlines & Anor [2003] NSW CA 146). Its practices and procedures are governed by the Workers Compensation Acts (‘the 1987 Act and the 1998 Act’). These provide for the application of principles of procedural fairness in a context different to a court. It is not tenable for the Employer in this matter to maintain that in insisting on substantial adherence to the Rules the Arbitrator “. . . denied the Employer its right to properly defend its claim”. The Employer quite rightly refers to sections 354 and 367 of the 1998 Act; however, it is mistaken in equating the application of these provisions with adversarial and technical proceedings in a court.
I am not satisfied that the Arbitrator erred in refusing to grant leave to the Employer to tender late evidence, being evidence of the alleged conduct of the Worker that led to his dismissal. This is a matter for the discretion of the Arbitrator, to be exercised fairly, reasonably and lawfully in the circumstances of the instant case. Practice Direction No. 9, concerns the lodgement of late documents in Commission proceedings. It sets out a number of factors that are relevant to this discretion including; the submissions of the parties; the prejudice, if any, that will result from granting or refusing leave; the effect of any attendant delay on the timely resolution of the dispute; the requirements of the 1998 Act and the Rules, and the nature of the proceedings in the context of the objectives of the Commission. The conduct of the parties is also relevant (ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21).
It is clear from the Commission file and from the transcript of the proceedings on 3 September 2003 and 17 September 2003 that the Employer was not fully prepared to proceed with the matter, in accordance with the requirements of the 1998 Act and the Rules, when it came before the Arbitrator. The Arbitrator, on 3 September 2003, aptly made the following comments:
“. . . The point I’ve made is that the particular proceeding is intended to be dealt with on the basis that the parties at inception place their evidence before the Commission . We are finding ourselves now in this rearguard action where evidence is being introduced at a late stage as the parties take a view on what they may conceive to be strategic difficulties in the matter.
At the moment, the only evidence before the Commission is that which was filed and that which was admitted by consent at the time of the teleconference. At that stage, the matter should have been in a position for it to proceed today either in the sense of a conciliated outcome or a determination. We have been endeavouring today to manage the consequences of the failure to comply with directions which were given at the time of the teleconference.” (Transcript at page 5).
The Arbitrator considered that the Employer was well aware of the issues in dispute at the time of filing the Reply and failed to file the evidence, which it later sought to rely upon (‘the late evidence’). The Arbitrator referred the Employer to the basis upon which liability had been denied. The Arbitrator, rightly in my view, considered that it was in the interests of fairness that the basis upon which liability was disputed was not expanded to present the Worker with a new, or different, case at the point of final arbitration of the dispute in the Commission.
The Worker is clearly correct in submitting that the written reports (1-4 in paragraph 13, above), which the Employer sought to tender in September 2003, were in existence from February 2003. It is evident that on 28 February 2003, the date on which the Worker was given notice of his termination, the information contained in those reports was available and was instrumental in that decision. The Reply to the original application with the Commission was not filed until 25 June 2003, and the Employer was permitted to file further evidence as late as 10 July 2003. Yet the Employer did not seek to rely upon the investigation reports until, at the earliest, 3 September 2003, and on 17 September 2003, the day that the matter was listed for final arbitration. No reasonable excuse has been provided for this delay.
Overall the Commission is bound to act according to fairness and equity in the instant case and I am satisfied that the Arbitrator has done so in refusing to allow the Employer to file late evidence. Having considered the Arbitrator’s reasons for decision, I am not satisfied that the evidence the Employer sought to have admitted is of such probative value to the issues the Arbitrator had to determine, that it would have led to a different outcome in the proceedings. The evidence went to the alleged misconduct of the Worker, which led to the termination of his employment. This, argued the Employer, equalled a refusal to co-operate with the employer’s rehabilitative procedures and was a ground for cessation of weekly workers compensation payments, pursuant to section 38A(5)(b) of the 1987 Act.
The Arbitrator found that, “I am not persuaded that the provisions of Section 38A(5)(b) are applicable to circumstances in which the employment of an employee is terminated on grounds of misconduct”. It seems to me that necessary that I find, on appeal, that the Arbitrator erred in this interpretation of Section 38A(5)(b) of the 1987 Act, in order to sustain the argument that the evidence of the alleged misconduct would have enabled the Employer to succeed before the Arbitrator. For the reasons set out below, I am not satisfied that the Arbitrator erred in the application of section 38A(5)(b) of the 1987 Act.
Taking all of the above into consideration I am not satisfied that the Arbitrator erred in refusing to allow the Employer to file late evidence, in the form of evidence of the Worker’s misconduct leading to his dismissal from employment, in the appeal.
Should Leave be Granted to the Appellant to give Fresh Evidence in the Appeal?
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
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 Evidence
Where 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.
Leave to file new evidence in the appeal is refused.
The Adjournment Error
The Employer submits that the Arbitrator erred in the exercise of his discretion by refusing to allow it any extra time, or indeed a further hearing, in which to cross examine the Worker. The Employer submits that an adjournment should have been granted considering that the Worker revealed for the first time in that hearing, that he had in the past, received worker’s compensation for injuries with previous employers. The Arbitrator had allowed the Worker an adjournment after the first hearing date of 3 September 2003, in order to consider the section 40 (of the 1987 Act) report and investigative reports. The Employer submits that the Arbitrator denied it procedural fairness, by not granting it the opportunity to investigate the revelations from the Worker, that he had suffered similar injuries with previous employers.
The Worker makes no submissions in reply to the Employer’s submission that the Arbitrator erred in not allowing the Appellant an adjournment.
The procedure in the Commission is governed by the 1998 Act, the Rules and Guidelines made pursuant to them. Section 354 of the 1998 Act provides as follows:
“354 Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7)An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8)In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
There is no doubt that the Commission is bound to comply with the demands of procedural fairness. The exact content of procedural fairness in Commission proceedings is determined by the provisions of the 1998 Act, the nature of the decision under review and the demands of the instant case (Kioa v West (1985) 159 CLR 550). A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11).
The decision to grant an adjournment is a matter for the Arbitrator’s discretion (see Tagg v International Flavours and Fragrances [2003] NSW WCC PD 5). It is clear from reading the transcript of 17 September 2003 that the legal representative of the Employer was dissatisfied with the time that had been allocated by the Commission to the conciliation and arbitration of this dispute. In my view, it is also clear that the Arbitrator sought to provide both parties with the opportunity to present their case within the allocated time. Proceedings in the Commission, as stated above, differ from proceedings in a court. The Rules of the Commission guide the parties in filing all of their evidence and submissions in documentary form, and wherever possible, matters are determined on the papers. Oral evidence and cross-examination of witnesses is not necessary in all Commission proceedings and is not a necessary pre-requisite to procedural fairness. It is a matter for the discretion of the Arbitrator, according to the application of the principles of procedural fairness in the circumstances of each case (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] WCC PD 26). In this matter the Arbitrator was not persuaded of the relevance of the cross-examination proposed nor of the need for an adjournment to allow these matters to be further investigated.
I am not satisfied that the Arbitrator has failed to exercise his discretion fairly or lawfully in relation to refusing to adjourn the proceedings and in cutting short the Employer’s cross-examination of Mr Alasmar. The issues in dispute were, or should have been, clarified in the Application and Reply and in the evidence filed. The parties attended both a telephone conference and two allocated hearing days in the arbitral phase. Oral evidence was given and submissions were made. The Arbitrator expressed reservations about the relevance of aspects of the ongoing cross-examination of the Worker in relation to settlement of previous workers compensation claims. The Arbitrator did not err in proceeding to determine the matter on the basis of the evidence and submissions before him.
Failure to Make the Decision on the Basis of Credible Evidence
The Employer submits that the Arbitrator erred in failing to make any adverse comment as to the demeanour of the Worker. He also failed to direct the Worker to answer questions satisfactorily. The Employer claims that Mr Alasmar was being evasive under cross-examination, and any reasonable person in the position of the Arbitrator would have been entitled to form the opinion that the Worker’s evidence was not persuasive.
The Worker has not made any submissions on this ground of appeal.
Rule 70 provides that:
“70 Principles of Procedure
When informing itself on any matter, the commission is to bear in mind the following principlesa) evidence should be logical and probative,
b) evidence should be relevant to the facts in issue and the issues in dispute,
c) evidence based on speculation or unsubstantiated assumption is unacceptable,
d) unqualified opinions are unacceptable.”
A Presidential Member, on review, must not overturn findings based on credit unless they are clearly based on obvious mistake or misapprehension of the relevant facts (Abalos v Australian Postal Commission (1990) 171 CLR 167; Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190) or the Arbitrator’s unique position, in terms of having the benefit of having seen and heard the witness, has been somehow misused (State Rail Authority of NSW v Earthline Constructions Pty Limited (In liquidation) (1999) 160 ALR 588).
Having considered the transcript of the proceedings and the reasons for decision I am not satisfied that the Arbitrator erred in accepting Mr Alasmar’s evidence. Judgements about matters of demeanor are clearly for the Arbitrator hearing the oral evidence. In my view the Arbitrator’s reasons for decision would have benefitted from more clearly setting out the evidence that was accepted by the Arbitrator and relied upon in coming to his decision. However, a careful reading of the reasons discloses that the Arbitrator accepted that Mr Alasmar ‘did not concede that he was guilty of any allegations on which the Respondent has based his dismissal’ and that the Arbitrator found this persuasive. This was a matter for the Arbitrator’s discretion and I am not satisfied that the Arbitrator erred in accepting the evidence of Mr Alasmar as credible and persuasive.
The Misinterpretation of Section 38A(5)(b) Error
The Appellant submits that the Arbitrator misinterpreted section 38A(5)(b) of the 1987 Act, which provides as follows:
“5) Workers treated as not seeking suitable employment
A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:(b)unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.”
The Arbitrator was not persuaded by the submissions of the Employer, that the provisions of section 38A(5)(b) of the 1987 Act relate to circumstances where an employee is terminated on grounds of misconduct. The Arbitrator stated that the provisions of the section relate explicitly to conduct that amounts to a refusal to cooperate with “procedures” associated with the provision of suitable employment, and cannot be construed to incorporate conduct that would only amount to a breach of the employment contract.
The Employer submits that the Arbitrator’s findings are incorrect in regard to the historical basis of both section 38A(5)(b) of the 1987 Act, and its predecessor, section 11(2) of the 1987 Act. The Arbitrator’s interpretation of section 38A is clearly against the intention of the section, as such an interpretation would lead to the unacceptable position that a worker would always be entitled to benefits under the section, regardless of his or her level of misconduct. The Employer argues that as ‘idleness’ was enough to disentitle the worker to compensation in James Kirby Pty Ltd v Pennell (2000) 19 NSW CCR 339, then dishonest behaviour, being at the more serious end of the spectrum, would also disentitle a worker to compensation.
While the Employer submits that the Worker is not entitled to compensation under section 38A(5)(b) of the 1987 Act, it acknowledges that he may nonetheless be entitled to compensation under section 40 of the 1987 Act.
The Worker submits that the Arbitrator did not err in his interpretation of section 38A(5)(b) of the 1987 Act. The Worker argues that the Arbitrator correctly found that the Employer’s reasons for termination of Mr Alasmar were not consistent with a failure on his part to perform suitable duties in accordance with his employment. The Worker contends that section 38A(5)(b) of the 1987 Act cannot be invoked in instances of fraud or misconduct, as the section only applies to an unwillingness to comply with return to work programs, rather than to workplace misconduct. Any evidence as to fraud or misconduct is hence irrelevant to the section 38A(5)(b) right of refusal.
The decision of James Kirby Pty Ltd t/as Contract Labour v John E Pennell [2000] 19 NSW CCR 339 is not particularly helpful on the construction of section 38A(5)(b) of the 1987 Act in relation to the facts of this case. The reference to ‘idleness’ is not the ratio of that case and does not provide guidance on the construction of the section in relation to alleged ‘serious misconduct’.
The Arbitrator was correct in his interpretation of section 38A(5)(b) of the 1987 Act. On a plain reading of the section it is not applicable to the circumstances of this case. The section refers to the ‘procedures’ connected with the provision of suitable duties or rehabilitation training. In the instant case there is no evidence that Mr Alasmar did not co-operate in the terms of his return to work on restricted duties. In my view the Employer’s remedy, in circumstances where it alleges fraud or serious misconduct on behalf of the worker, must lie elsewhere. The Arbitrator has not erred in his consideration of whether Mr Alasmar suffered a compensable injury under the Workers Compensation Acts (the 1987 Act and the 1998 Act) and his entitlement to compensation by way of weekly benefits. (See Bartley v Industrial Galvanisny Corporation Pty Ltd [2001] NSWCC 98 (5 April 2001) where Neilson J made an ongoing award in favour of a worker in circumstances where his employment had been terminated for misconduct).
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The appeal has been unsuccessful, and costs fall to be determined by section 345 of the 1998 Act, which provides as follows:
“345 Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a)the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.”
The Appellant is to pay the Costs of the appeal.
Dr Gabriel Fleming
Deputy President
19 July 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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