ISS Property Services Pty Ltd v Milovanovic

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27
APPELLANT:		ISS Property Services Pty Ltd
RESPONDENT:		Mirjana Milovanovic
INSURER:		Self insured
FILE NUMBER:		A1-005454/08
DATE OF ARBITRATOR’S DECISION:		22 October 2008
DATE OF APPEAL DECISION:		12 March 2009
SUBJECT MATTER OF DECISION:		Section 11A of the Workers Compensation Act 1987; reasonable actions taken or proposed to be taken with respect to transfer, discipline or provision of employment benefits
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers.
REPRESENTATION:		Appellant:		TurksLegal
Respondent:		Steve Masselos & Co
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 22 October 2008 is confirmed.
The appellant employer is to pay the costs of the appeal of the respondent worker.

BACKGROUND TO THE APPEAL

1. Mirjana Milovanovic (‘the worker’) was born in Serbia in 1947. She was working as a cleaner employed by ISS Property Services Pty Ltd (‘the employer’) when she alleges she suffered stress and anxiety as a result of the actions of her employer on or before 12 December 2006. On that day, shortly after arriving at work and before beginning her cleaning shift, the worker collapsed and was taken to St Vincent’s Hospital where she remained overnight.  It will be necessary to deal with the events prior to 12 December 2006 in further detail later.  A document entitled Notification of Workplace Incident was completed by the worker’s manager, Paul Emerson, that day and a Report of Injury was made by the worker on 19 January 2007. Some payments of weekly compensation were made however, they ceased on 21 January 2007.

2. On 22 January 2007 the employer wrote to the worker giving notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) that the claim for compensation was declined. The reasons given in support of this decision were that:

   (a)        she had not sustained an injury as defined;

   (b)        employment was not a substantial contributing factor to her injury;

   (c)        any injury she sustained was wholly or predominantly caused by the employer’s reasonable action with respect to performance appraisal, discipline, provision of employment benefits and transfer; and

   (d)        she was fit for work.

   The employer was thus relying on sections 4, 9A and 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).

3. The worker commenced proceedings in the Workers Compensation Commission of New South Wales (‘the Commission’) on 17 July 2008 which came before a Commission  Arbitrator for teleconference on 21 August 2008 and for a conciliation/arbitration conference on 8 October 2008.  At such conference written material only was relied on and no witnesses were called to give evidence.  On 22 October 2008 the Arbitrator found in favour of the worker and awarded weekly compensation and made other orders.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 22 October 2008 records the Arbitrator’s orders as follows:

   “1.      Respondent pay the Applicant weekly compensation pursuant…