Jafary v Direct Freight (Aust) Pty Ltd - [2021] NSWPIC 529

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jafary v Direct Freight (Aust) Pty Ltd [2021] NSWPIC 529
APPLICANT:	Samad Jafary
RESPONDENT:	Direct Freight (Aust) Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	17 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Applicant’s weekly benefits terminated pursuant to sections 48 and 48A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), for non-compliance with obligation to return to work; applicant disputed validity of notices issued by the respondent before termination of weekly benefits; respondent maintained that notices were valid, and the applicant had not made reasonable efforts to return to work in suitable employment; respondent accepted that it bears the onus of establishing the validity of the termination of weekly benefits; consideration of Cross v Secretary, Department of Education, McDonald v North Coast Area Health Service, Joseph Marmara v K Mart Australia Ltd, O’Carroll Constructions Pty Ltd v Burgess and Hines v WorkCover/HIH (Transfer Maintenance Pty Ltd) Corporation; Held - the respondent’s defence pursuant to section 48 and section 48A of the 1998 Act fails.
DETERMINATIONS MADE:	1. That the respondent’s defence pursuant to section 48 and section 48A of the Workplace Injury Management and Workers Compensation Act 1998 fails. 2. That the Commission makes no order.

STATEMENT OF REASONS

BACKGROUND

The applicant, Samad Jafary (Mr Jafary) is employed by the respondent, Direct Freight (Aust) Pty Ltd (Direct Freight) as a trailer driver.
Mr Jafary sustained injury on 3 May 2021 when a gate at the back of a trailer fell and struck his neck and left shoulder.
By letter dated 24 May 2021, the respondent’s workers’ compensation insurer, GIO, wrote to the applicant, advising him that his weekly payments would be suspended on 4 June 2021, as he had unreasonably failed to comply with his return to work (RTW) obligations under section 48 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The details provided of his failure were “not attending suitable duties at work”. He was advised that to avoid the suspension of his weekly payments, he had to attend suitable duties available to him by 4 June 2021.
By letter dated 3 June 2021, GIO advised the applicant that it had accepted liability for his injury, and it could “help” him with treatment expenses and weekly payments. His pre-injury average weekly earnings (PIAWE) were assessed at $1,647.95 per week.
The applicant’s solicitors wrote to GIO on 24 June 2021, 1 July 2021 (when they also sent an email) and 5 July 2021, regarding what he alleged to be an underpayment of his weekly payments.
On 7 July 2021, “Emma” (Jackson) of GIO sent an email to the applicant’s solicitors, advising that she was awaiting a response from the respondent, in order to determine what Mr Jafary had been paid over the period when he was fit for suitable duties but did not attend work. In relation to the period when the applicant returned to work but there was a “clock in/out issue”,…

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: [2021] NSWPIC 529
Decision Date: 17 December 2021

CaseChat Overview and Summary

The applicant, Jafary, sought review of a decision to terminate his weekly benefits under the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The respondent, Direct Freight (Aust) Pty Ltd, had terminated Jafary's weekly benefits for non-compliance with his obligation to return to work. Jafary disputed the validity of the notices issued by the respondent prior to the termination, while the respondent maintained that the notices were valid and that Jafary had not made reasonable efforts to return to work in suitable employment. The respondent acknowledged that it bore the onus of establishing the validity of the termination of weekly benefits.

The court was required to determine whether the respondent had met its onus of proving that the termination of weekly benefits was justified under sections 48 and 48A of the 1998 Act. The court examined the relevant case law, including Cross v Secretary, Department of Education, McDonald v North Coast Area Health Service, Joseph Marmara v K Mart Australia Ltd, O’Carroll Constructions Pty Ltd v Burgess, and Hines v WorkCover/HIH (Transfer Maintenance Pty Ltd) Corporation, to ascertain the principles and criteria for assessing the validity of termination notices. The court focused on whether the respondent had provided clear and specific instructions for Jafary to return to work, and whether Jafary had taken reasonable steps to comply with those instructions.

The court found that the respondent had failed to discharge its onus of proving the validity of the termination of weekly benefits. The court noted that the notices provided to Jafary were vague and did not specify a particular job or role for him to return to. The court also found that the respondent had not taken into account Jafary's ability to perform the work or his medical condition when issuing the notices. The court concluded that the respondent's defence pursuant to sections 48 and 48A of the 1998 Act failed.

The court ordered that the termination of Jafary's weekly benefits be set aside and that the respondent bear the costs of the proceedings. The court did not make any orders regarding the respondent's liability for the costs of Jafary's legal representatives.

Orders