DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Hamad v Q Catering Limited [2017] NSWWCCPD 6
APPELLANT:
Samir Hamad
RESPONDENT:
Q Catering Limited
INSURER:
Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:
A1-3174/16
ARBITRATOR:
Mr T Wardell
DATE OF ARBITRATOR’S DECISION:
6 October 2016
DATE OF APPEAL DECISION:
15 March 2017
SUBJECT MATTER OF DECISION:
Section 11A(1) of the Workers Compensation Act 1987; proof of ‘wholly or predominantly caused’; the test on causation and role of medical evidence; factual error
PRESIDENTIAL MEMBER:
Deputy President Michael Snell
HEARING:
On the papers
REPRESENTATION:
Appellant:
Stacks Goudkamp
Respondent:
Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:
1. The Arbitrator’s determination dated 6 October 2016 is revoked.
2. There is a finding that the respondent’s defence pursuant to s 11A(1) of the 1987 Act is not made out.
3. The matter is remitted to the same Arbitrator, to determine the remaining issues, consistent with these reasons. Liberty to the parties to apply within seven days, if either party seeks to submit that the matter should be remitted to a different Arbitrator.
INTRODUCTION
Samir Hamad (the appellant) suffered a conceded psychological injury, in the course of his employment as a leading hand with Q Catering Limited (the respondent). This appeal involves challenge by the appellant to an award in the respondent’s favour, on the basis that it had established a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).
BACKGROUND
The appellant was employed by the respondent from 12 November 1993. He was a leading hand from 1999. He worked at Mascot, with responsibilities for the “consolidation” of aircraft meals. Prior to 2013, level 5 leading hands in consolidation (such as the appellant) took responsibility for the assembly of aircraft meals, and level 5 leading hands in transport took responsibility for transferring food to aircraft, and the handover to flight crew. From 2013, the respondent amalgamated these responsibilities. This was described as the “Flight Set Consolidation, Delivery & Handover Process”. The appellant, on 1 July 2013, signed an agreement to participate in this process, and to assist in the delivery of the “changes that are to be implemented”.
An issue subsequently developed, involving the Transport Workers Union (TWU) (of which the appellant was a member) and the respondent, regarding whether the leading hands, performing the combined role, were entitled to be paid as Level 6 (rather than Level 5) leading hands. Shortly before Christmas 2014, those who had been transport leading hands refused to go into the kitchen, so that they were not participating in the combined role. From early February 2015, those who had been consolidation leading hands declined to continue performing the transport tasks, so that they too were not participating in the combined role. Those members of these groups, who participated in this industrial action, were only prepared to carry out the role they had been performing initially, before the combined roles were adopted.
The appellant’s refusal to perform…
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.
Continue reading Hamad v Q Catering Limited
Sign in free to access the full text
Details
AGLC
Hamad v Q Catering Limited [2017] NSWWCCPD 6
Case
[2017] NSWWCCPD 6
Decision Date
CaseChat Overview and Summary
The case of Hamad v Q Catering Limited involved a dispute concerning the application of section 11A(1) of the Workers Compensation Act 1987. The claimant, Mr. Hamad, sought compensation for an injury sustained during his employment with Q Catering Limited. The respondent argued that the injury was not caused wholly or predominantly by the employment, thus invoking the statutory defence. The matter was ultimately before the court to review the Arbitrator’s determination and to decide whether the statutory defence was valid.
The primary legal issue before the court was the interpretation and application of section 11A(1) of the 1987 Act, specifically regarding the burden of proof and the role of medical evidence in establishing causation. The court had to determine whether the Arbitrator had correctly assessed the evidence and whether the statutory defence was appropriately applied. Additionally, the court needed to examine whether the Arbitrator's findings contained any factual errors that would warrant overturning the determination.
In reaching its decision, the court thoroughly reviewed the evidence presented to the Arbitrator, including medical reports and expert testimonies. The court found that the Arbitrator had erred in their factual assessment, leading to an incorrect application of the statutory defence. The court concluded that the statutory defence under section 11A(1) was not made out because the Arbitrator had misconstrued the relevant evidence. The matter was therefore remitted to the same Arbitrator to re-evaluate the remaining issues, in line with the court's reasons.
The court revoked the Arbitrator’s determination dated 6 October 2016 and found that the respondent's statutory defence was not substantiated. The matter was remitted to the original Arbitrator for further consideration, with the option for either party to apply within seven days if they wished for the matter to be remitted to a different Arbitrator.
Orders
Orders of the court
1. The Arbitrator’s determination dated
6 October 2016 is revoked.
2. There is a finding that the respondent’s defence pursuant to s 11A(1) of the 1987 Act is not made out.
3. The matter is remitted to the same Arbitrator, to determine the remaining issues, consistent with these reasons. Liberty to the parties to apply within seven days, if either party seeks to submit that the matter should be remitted to a different Arbitrator.