Kerr v Sydney Catholic Schools Limited - [2025] NSWPICPD 12

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Kerr v Sydney Catholic Schools Limited [2025] NSWPICPD 12
APPELLANT:	Allison Kerr
RESPONDENT:	Sydney Catholic Schools Limited
INSURER:	Catholic Church Insurances Limited
FILE NUMBER:	A1-W6403/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	18 February 2025
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Member’s Certificate of Determination dated 21 March 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 352 of the Workplace Injury Management and Workers Compensation Act 1998 – appeal under section 352(5) is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error – the appeal is not a review or new hearing – sections 15, 16, 36, 37 of the Workers Compensation Act 1987 – pre-injury average weekly earnings – worker worked greater than 15 hours per week – worker’s earnings greater than 95 per cent of pre-injury average weekly earnings
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr I Collins, solicitor
Respondent:
Mr T Murray, solicitor
Integroe Partners
DECISION UNDER APPEAL:	Kerr v Sydney Catholic Schools Limited [2024] NSWPIC 140
PRINCIPAL MEMBER:	Ms J Bamber
DATE OF MEMBER’S DECISION:	21 March 2024

INTRODUCTION

The appeal is from a Certificate of Determination of a Principal Member of the Personal Injury Commission (Commission) dated 21 March 2024.
The Certificate of Determination provided as follows:
“By consent of the parties, the Commission orders:
1. The Application to Resolve a Dispute is amended by consent to add a claim for treatment expenses under s 60 of the Workers Compensation Act 1987.
2. The respondent is to pay the [appellant’s] treatment expenses pursuant to s 60 of the Workers Compensation Act1987 on production of accounts, receipts and/or Medicare Notice of Charge.
The Commission determines:
3. The [appellant] has been assessed by the Medical Appeal Panel as suffering 14% whole person impairment.
4. The [appellant] is not entitled to lump sum compensation due to the operation of s 65A(3) of the Workers Compensation Act1987 because the permanent impairment assessed is below the threshold of 15%.
5. Award for the respondent in relation to the claim for weekly compensation.”
The appeal is against the award for the respondent in relation to weekly payments. For the reasons that follow the appeal is dismissed and the determination of the Principal Member is confirmed.

BACKGROUND FACTS

The proceedings have a substantial history, but so far as the present matter is concerned there is little controversy as to the facts which are adequately set forth by the Principal Member under the hearing “Background”. This statement of facts is relied upon for the purpose of these reasons.
The appellant was employed by the respondent as a secondary science teacher commencing in 2001 initially as a casual employee. The appellant obtained a full-time position with the respondent as a chemistry teacher at Our Lady of Sacred Heart Kensington commencing in 2011.
The appellant commenced proceedings in relation to a psychological injury she alleged was sustained in the course of her employment. The proceedings were resolved on 23 January 2019 with a Certificate of Determination – Consent Orders providing for the payment “on a voluntary basis” of weekly compensation from 15 February 2018 to 11 July 2018, together with the payment of medical expenses. There was an award for the respondent for other periods of weekly compensation.
In the present matter the appellant alleged a further psychological injury as a result of the respondent failing to provide her with suitable duties in the period 5 February 2019 to 5 October 2021. Reliance was also placed on a purported termination of employment by the respondent in January 2020. The appellant was wrongly informed that her employment had been terminated.
On 3 March 2023, the Principal Member determined the liability dispute finding for the appellant under s 4(b) of the Workers Compensation Act1987 (the 1987 Act), determining that the respondent had not established its defence under s 11A of the 1987 Act and making orders that the s 66 lump sum claim be referred for assessment by a Medical Assessor.
A Medical Assessment Certificate dated 3 August 2023 was successfully appealed to a Medical Appeal Panel which published its reasons on 27 November 2023. The latter revoked the Medical Assessor’s Certificate and substituted a Certificate finding permanent impairment of 14%.
As the finding of 14% was less than the threshold for s 65A(3) of the 1987 Act, the appellant was not entitled to an award of lump sum compensation. There is no appeal against that finding.
The matter came before the Principal Member on this occasion for the purpose of considering the outstanding claim for weekly compensation.

THE PRINCIPAL MEMBER’S FINDINGS AND REASONS

The dispute between the parties was “as to the calculation of the pre-injury average weekly earnings figure (PIAWE).” The appellant contended that an amount of $100,000 paid to her pursuant to a deed should be included in the calculation. The respondent contended to the contrary.
The Principal Member defined the other area of dispute as relating to Ms Kerr’s ability to work in “suitable employment”.
The Principal Member set out the relevant legislative provisions from Sch 3, cll 2, 6 and 9 of the 1987 Act relating to the meaning of PIAWE, the definition of “earnings” and “income” and of “current” and “no current work capacity”. The Principal Member quoted s 32A of the 1987 Act as to the definition of “suitable employment”.
The payment of $100,000 was provided for in a Deed of Release between the parties dated 5 October 2021. The Deed was executed in settlement of proceedings brought by the appellant against the respondent in the Federal Circuit Court of Australia.
So far as need be noted for the purpose of the determination of the appeal, the Deed relevantly provided, without admission of liability, that the parties agreed to settle all matters in relation to employment, the proceedings and the dispute on the terms set out in the Deed, for the settlement sum which was defined in cl 1.3 as follows:
“Settlement Sum means $100,000.00 gross (less applicable tax) to be characterised as an Employment Termination Payment for tax purposes.”
Pursuant to the agreement the appellant was required to resign her employment effective upon execution of the Deed. The appellant agreed to discontinue the proceedings in the Federal Circuit Court within five business days of receipt of the settlement sum.
The Deed also provided:
“4. In consideration of the Employee’s resignation and the releases, discharges, and indemnities contained in this Deed, the Employer will pay the Settlement Sum to the Nominated Account, in full and final settlement of these Proceedings and all Claims the Employee has, had, or may have against the Employer, its directors, officers and employees.”
The Principal Member recorded the parties’ written submissions in full and summarised the oral submissions.
On the issue of whether the PIAWE should include the $100,000 payment made by the respondent to the appellant on 5 October 2021, the Principal Member determined:
“… the respondent’s calculation has been performed correctly in accordance with cl 2 of Schedule 3 and the PIAWE is $1,088.23.
In relation to the [appellant’s] argument that the $100,000 payable under the deed should be included as earnings in the PIAWE calculation, I am not persuaded by Mr Collins’ arguments. I agree with the respondent that the deed in cl 1.3 says the payment is to be characterised as ‘Employment Termination Payment for tax purposes’ and I cannot go beyond the terms of the deed. To infer that the payment was for wages lost in the ‘relevant period’ I consider would only be speculation.”[1]
[1] Kerr v Sydney Catholic Schools Limited [2024] NSWPIC 140 (reasons), [50]–[51].
The Principal Member accepted that the payment of $100,000 was in settlement of all claims the appellant had or may have had against the respondent employer and that “it was not necessarily confined to the past loss of wages due to not being given shifts and the [appellant’s] consideration set out in the deed at cl 4 was to resign, as well as to release and discharge the employer for any claims.” She said, “it is impossible to work out if the $100,000, in whole or part, reflects lost wages.”[2]
[2] Reasons, [53].
The Principal Member then addressed the second issue, namely, the appellant’s entitlement to weekly compensation from 5 October 2021.
She noted that was governed by ss 36, 37 and 32A of the 1987 Act. She said:
“… There is consensus that the [appellant] does not have capacity to return to pre-injury employment but she is able to return to work in suitable employment. Mr Collins relies on the assessment by the Medical Appeal Panel which in its certificate stated for employability:
‘She cannot work in the same position. She can tolerate less than a full time load (up to three days per week) in a casual role that is qualitatively less demanding than a full-time classroom teacher.’
The [appellant] has demonstrated this capacity by her work with the Department of Education. The formula in s 36(2) says the entitlement is 95% of the PIAWE less her ‘current weekly earnings’. 95% of the PIAWE figure I have found of $1,088.23 is $1,033.82. In the s 37 period the rate is also 95% for weeks when the [appellant] has worked not less than 15 hours per week but it drops to 80% of PIAWE if she works for less than 15 hours per week.”[3]
[3] Reasons, [57]–[58].
A schedule prepared by the respondent set out the appellant’s actual earnings from 5 October 2021 from which it was evident that most weeks she earned more than 95% of the PIAWE. The respondent argued that the fact that the appellant was able to work for so many weeks exceeding her PIAWE demonstrated an ability to earn. It was the respondent’s argument that the weeks where the earnings are less are more likely than not due to availability of work which is a factor not permitted to be taken into account under s 32A.[4]
[4] Reasons, [60].
The Principal Member rejected the appellant’s argument that it was not correct to use “raw actual earnings because they [did] not reflect that [the appellant] cannot work in school holidays and [did] not have the industrial options open to a full-time worker” saying:
“Clearly the definition of current weekly earnings means her actual gross earnings and does not allow me to entertain matters such as raised by Mr Collins. Also, the fact that schools are closed for holidays, meaning work will not be available to her every week, I find is a factor I cannot take into account under s 32A.”[5]
[5] Reasons, [61].
The Principal Member accepted the respondent’s submissions:
(a) the appellant was not restricted to working in schools;[6]
(b) when applying the factors in s 32A the likelihood was that the weekly fluctuation in actual earnings was “more likely than not due to availability of work and not to [the appellant’s] ability”. The Principal Member accepted the logic of that submission noting that the appellant’s solicitor did not make any persuasive submissions to the contrary.[7]
[6] Reasons, [62].
[7] Reasons, [63].
The Principal Member said:
“The [appellant] has the onus of proof. When one takes into account the factors in s 32A such as her age, education, work history and the medical information I find that she does have a capacity to work three days per week as a casual teacher. I find I cannot take into account availability of that work, such as holiday periods. In any event, I accept the respondent’s submissions that she would be able to undertake other casual work when schools are on holiday and work such as a tutor would utilise her skills but fit within the Medical Appeal Panel’s description of being qualitatively less demanding [than] a full-time classroom teacher.”[8]
[8] Reasons, [63].
The Principal Member concluded:
“In summary, I find that the [appellant’s] ability to earn in suitable employment is higher than her actual weekly earnings and higher than 95% of her PIAWE and that therefore she has not established an entitlement to weekly compensation in the period claimed. Therefore I find an award for the respondent for the claim for weekly compensation.”[9]
[9] Reasons, [65].

GROUNDS OF APPEAL

The appellant seeks to agitate the following grounds of appeal:
(a)    “The [Principal Member] erred in failing to include the payment by the Respondent to the [appellant] in the sum of $100,000 in her calculation of the [appellant’s] PIAWE” (Ground One);
(b)    “The [Principal Member] erred in failing to find the payment by the Respondent of $100,000 was ‘Earnings’ as defined [by] clause 6 Schedule 3 of the [1987 Act]” (Ground Two);
(c)    “The [Principal Member] erred in finding the [appellant] had an earning capacity greater than she was demonstrating and in particular that she had the capacity to perform the duties of a tutor when school was on holidays” (Ground Three), and
(d)    “The [Principal Member] erred in failing to account for the suitable duties the [appellant] was fit for and performing as a [casual] teacher was by its very nature non existent over school holiday periods and that the [appellant] should therefore be considered totally unfit for those periods” (Ground Four).

TIME

There is no dispute that the appeal has been brought within time and in accordance with the requirements of s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

THRESHOLD

The respondent concedes that the monetary threshold to the appeal pursuant to s 352(3) of the 1998 Act is satisfied.

ON THE PAPERS

The parties submit that the appeal may be determined on the papers and that no oral hearing is required.
Section 52(3) of the Personal Injury Commission Act2020, together with Procedural Directions PIC2 and WC3, provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers and without holding any formal hearing. I am so satisfied and agree to determine the matter on the papers without holding any conference or formal hearing.

NATURE OF THE APPEAL

The appellate jurisdiction conferred by s 352 of the 1998 Act relevantly provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
It is important to appreciate that the jurisdiction under s 352(5) is engaged by the demonstration of error and is limited to the correction of errors thus demonstrated. The jurisdiction does not extend to a review of a member’s determination of the parties’ dispute at first instance.
I make that observation because the appellant’s submissions appear to misconceive the nature of the s 352 jurisdiction and appear to seek a review of the Principal Member’s determination.

SUBMISSIONS

Appellant’s submissions

The appellant does not direct submissions specifically to the grounds of appeal. Such an approach is unfortunate because it is difficult to isolate the matters the appellant alleges constitute errors of fact, law or discretion and to determine whether correction is required. Furthermore Procedural Direction WC 3 at [27] directs in part that “(a)ll submissions must clearly and succinctly address each ground of appeal separately.”
The primary issue between the parties at the hearing related to the PIAWE. The appellant sets out submissions relating to the Fair Work Act2009 (Cth). In substance, the appellant submits that s 336 provides a remedy for workers relevantly who have been treated “adversely” by their employer. She says that adverse action is defined in s 342 to mean “altering the [appellant’s] employment to the [appellant’s] prejudice.” Damages with respect to such matters are uncapped.
The appellant refers to s 341 of the Fair Work Act and submits that the provision means there is a right to be paid a salary and other benefit and “arguably to be provided with work and/or suitable duties as an employee”.
Removal of an employee even temporarily constitutes adverse action for the purpose of the proceedings under the Fair Work Act. The appellant refers to her affidavit in the Federal Court proceedings and submits that it makes clear that the appellant has claimed a loss as a result of the respondent’s failure to provide suitable employment.
The appellant refers to various authorities on the interpretation of deeds.[10] However, in so far as the appeal does not challenge the Principal Member’s interpretation of the Deed, those authorities need not be considered.
[10] Appellant’s submissions, [12]–[17].
Dealing with the Deed of Release, the appellant submits:
“22. In this matter the [appellant] claimed damages as a result of the employer refusing to provide suitable employment and pay her salary following settlement of her Workers Compensation Claim and her being fit to return to work. It followed the basic employment Law principal [sic] that an employer during the currency of employment must pay an employee’s wages provide[d] the employee is fit and willing to work. … The [appellant] as a full time employee was entitled to be paid wages. Those basic principals [sic] are incorporated into the Fair Work Act2009 (Cth) and in particular section 43 which requires the incorporation into all contracts of employment Nationals [sic] Employment Standards and/or Awards both of which require payment of salary to employees.
23. The Deed covers claims as defined to include ‘any claims for wages and entitlements’. Nowhere in the Recitals or Definitions is any reference to termination or dismissal as the [appellant’s] claim did not relate to a dismissal … It was not a settlement of an unfair dismissal case.”
The appellant submits:
“26.   It is clear looking at the document as a whole that the $100,000 gross payment was a settlement of the existing claim as she had not been terminated and had not resigned. It was clear that the parties agreed to settle the existing claim and as part of that agreement then end the employment relationship.
27.    The payment of the $100,000 gross should be characterised as income inflictive [sic, indicative] of her claim settlement by the Deed.
28.    The Deed makes it clear (clause 11) that ‘the Settlement sum is in full and final settlement of all claims the employee has, had or may have against the Employer. The Employee as above had not been terminated and only agreed to resign as a condition of the Deed upon its execution. There was no claim for unfair dismissal or termination or any termination at the time of the Deed.”
Under a heading “Further and in the alternative”, the appellant submits that even if the $100,000 under the Deed was characterised as an employment termination payment, “it should not be taken into account in the calculation of the PIAWE because she did not perform work for the Respondent over that period” (emphasis added).
It seems likely that the negative was included in the above paragraph in error as the next paragraph makes this clear:
“30. The Appellant was employed and entitled to work and be paid and the (as above) was in payment and settlement of that and those rights of an Employee to salary.
31. In payment of that sum and settlement of those rights the Appellant agreed to resign.”
The appellant makes submissions with respect to her incapacity for employment, including the submission that the Commission should accept that on the evidence the appellant suffers an incapacity as a result of her injury.[11] I do not find it necessary to summarise these submissions as I understand it there is no issue with respect to the appellant’s incapacity.
[11] Appellant’s submissions, [40].

The appellant concludes under the hearing “Summary re PIAWE”:
“41. A proper interpretation of the Deed understanding the nature of the claim and the language of the Deed would result in a finding that the $100,000 gross income settlement figure should be included in the calculation of the [appellant’s] PIAWE as it represented an agreement to pay an agreed figure for unpaid claimed wages by the [appellant].”
Under the heading “Section 37 current work capacity”, the appellant submits that all of the evidence indicates that the appellant is fit to work as a casual teacher three days a week in a supervisory role (not as a teacher) and that “she is demonstrating that current work capacity.”
The appellant submits:
“44. When considering the [appellant’s] capacity to work one must look at the entire context of that ‘suitable employment’. In the [appellant’s] case she [is] only fit for Casual Supervisory role 3 days per week. However that suitable employment by its nature does not exist for school holiday periods so whilst casual employment in a supervisory role exists and is available it is intrinsic to that employment that it only exists and is available during School Term and that there is no such ‘Employment’ except during school term.
45. The [appellant] submits that she is unfit for any work except during school term.
46. Alternatively the [appellant] submits that being fit for ‘Casual work’ she is paid a higher rate as a Casual employee that compensates for the loss of other Industrial rights such as sick leave and holiday pay compared to other permanent full time or part time employees. She is not fit for a permanent part time or full time position as these require ‘teaching’ as opposed to a supervisory role of children. She submits that [to] make allowance for that an averaging of income is a better calculation of her ‘current work capacity’ for section 37 Workers Compensation Act1987.”
The finding that the appellant has a capacity to undertake other casual work when schools are on holiday such as tutoring is inconsistent with the medical evidence and was never “put to her”. It is submitted further that it misunderstands that a tutor’s role is in fact teaching.
The appellant submits that the Commission should accept the appellant’s evidence that she is demonstrating a current work capacity and that her income represents her best efforts in line with that work capacity.

Respondent’s submissions

The respondent makes its submissions by reference to each ground of appeal.

Respondent’s submissions Ground One

The respondent submits that the authorities relied upon by the appellant at paragraphs [12] to [17] were not put before the Principal Member. To the extent they encourage an approach to interpretation of the Deed different to that put in oral submissions, it verges on the appellant now putting a case that was not put before the Principal Member (such a course is impermissible – University of Wollongong v Metwally (No. 2)[12]). However, the respondent submits:
“Nonetheless, there is nothing in the Member’s determination contrary to the approach required in interpreting the terms of the Deed.”[13]
[12] [1985] HCA 28; 59 ALJR 481.
[13] Respondent’s submissions, [13].
The respondent submits that the Principal Member correctly concluded at [51] that in accordance with cl 1.3 of the Deed, the amount paid under the Deed was an employment termination payment. That finding was plainly correct given the unambiguous terms of the Deed. The worker points to no authority to establish that an employment termination payment can form part of the PIAWE.
The respondent submits the Principal Member correctly understood that it was necessary to look at, not why the proceedings were brought in the Federal Circuit Court, but “as to the nature of the payment actually made (under the Deed)”.
It submits:
“17. The Deed simply did not support a conclusion that the payment must be treated as pertaining solely to loss of income. As was accepted by the Member, the releases in the Deed were broad and far reaching (decision, [53]). That conclusion was patently correct, noting the definition of ‘claims’ as contained in the Deed (clause 1.1), the categorisation of the payment as an employment termination payment (clause 1.3), the worker resigning her employment (clause 2) and the broad releases provided (clause 9).
…
19. Put simply, the Member did not accept that the evidence before her, including the terms of the Deed, allowed supported a conclusion that the payment was solely for loss of income. The appellant has not established how that conclusion was in error.” (emphasis in original)
Furthermore:
“21. It was entirely open to the Member to conclude that she could not be satisfied that the amount paid under the Deed pertained, in whole or in part, to loss of earnings. The Member reached that conclusion for a number of different reasons:
(a)Firstly, the Deed itself categorised the payment as an employment termination payment which was consistent with the deed providing for the resignation by the worker of her employment (decision, at [51] and [53]). The Member was correct to conclude an [employment termination payment] was not a payment in respect of any loss of income.
(b)Secondly, to infer that the payment under the Deed was for ‘wages lost in the relevant period’ would be only speculation (decision at [51])
(c)Thirdly, the Deed plainly established that the payment was in settlement of all claims the worker has, had or may have against the respondent (decision at [53]).”
The respondent submits the appellant has not established any error with those conclusions.

Respondent’s submissions Ground Two

The respondent submits that the appellant’s complaint is that the Principal Member was in error in finding that the payment made by the respondent under the Deed of Release did not meet the definition of “earnings” under Sch 3. The submissions in support of that proposition appear at paragraphs [29] and [31] of the appellant’s submissions which the respondent submits “do not come close to establishing an error as defined by s 352 [of the 1998 Act].”
The respondent submits that pursuant to Sch 3 the amount in question must meet the definition of “earnings” to be included in a worker’s PIAWE. In her decision, the Principal Member at [55] of the reasons determined that the amount paid by the respondent under the Deed did not constitute earnings because it was not a payment to the worker in respect of work performed in any employment during the week.
The respondent submits:
“31. That finding was undoubtedly correct. The worker, on her own admission, did not perform any work for the respondent over the relevant period. The Member was undoubtedly correct to conclude that the later payment under the Deed was not, and could not be, for ‘work performed’.”
The respondent directs attention to the jurisdiction exercised under s 352 and that the appellant “appears to proceed on the basis that an appeal may succeed simply if a President[ial] Member forms the view a different decision was preferable,” but that that approach is impermissible.[14]
[14] Citing Northern NSW Local Health Network v Heggie [2013] NSWCA 255, [72].
The respondent submits the Principal Member’s finding that the definition of “earnings” in Sch 3 requires the amount in question to be in respect of work actually performed was open and has not been seriously challenged by the appellant. That finding necessitated the conclusion that the amount paid under the Deed must therefore be excluded as it did not satisfy the Sch 3 definition.
Further, the worker’s persisting submission that she was employed is, the respondent submits, irrelevant. “Her employment status is not instructive of whether the amount in question meets the definition of earnings. The Principal Member correctly concluded as such (decision at [55]) and the appellant has not pointed to any error in that conclusion.”[15]
[15] Respondent’s submissions, [36].

Respondent’s submissions Ground Three

The respondent submits, dealing firstly with the complaint that the Principal Member’s findings were inconsistent with the medical evidence, that submission is patently incorrect. The appellant has not addressed why the Principal Member’s finding was contrary to the evidence.
The Medical Appeal Panel in their decision dated 27 November 2023 confirmed the decision of the Medical Assessor in respect of employability and made the following finding:
“She cannot work in the same position. She can tolerate less than a full time load (up to three days per week) in a casual role that is qualitatively less demanding than a full-time classroom teacher.”
It is difficult to see how work as a tutor would not fall within the above opinion/determination regarding the appellant’s capacity for work. That is, the Principal Member’s finding was open on the medical evidence before her.
The appellant submits that work as a tutor is in fact a teaching role at least as demanding as a classroom teacher. With respect, the respondent argues that that submission cannot be accepted, as no evidence whatsoever has been proffered to support it. The respondent submits the Principal Member’s finding was open to her and was plainly consistent with the medical evidence and no error is established.
The appellant’s approach before the Principal Member was to submit that the only employment that was suitable was her current work activities with the Department of Education. However, submissions were made regarding the question of capacity at large outside of that employment, including detailed submissions by the respondent. Submissions were therefore advanced on that issue. It was open to the Principal Member to reach the conclusion she did.[16]
[16] Respondent’s submissions, [46], referring to the transcript of proceedings before the Principal Member dated 8 February 2024, page 24, lines 21–27.
Finally:
“the respondent would highlight that the finding challenged by the appellant under this ground was an alternative finding (decision, [63]). The primary reason her claim failed, was because the Member accepted that her currently ability to earn, as demonstrated with the [Department of Education], exceeded her maximum entitlement to compensation under s 36/37. It follows, that if the remaining grounds of appeal fail, success on this ground would not affect the end result, as the balance of the findings made by the Member and dealt with under those grounds would still result in the same outcome.”[17]
[17] Respondent’s submissions, [49].

Respondent’s submissions Ground Four

The respondent identifies the appellant’s complaint as being that the Principal Member fell into error in failing to determine that the worker was totally unfit over the periods in which her casual teaching/supervisory duties with the Department of Education were not available (that is over a holiday period). The submissions in support of that ground appear at the appellant’s submissions [42]–[48]. The respondent submits that the appellant does not demonstrate error.
The respondent submits the submissions advanced are simply a restatement of the submissions made by the appellant before the Principal Member, which the Principal Member considered and rejected.
The only challenge raised by the appellant appears to be related to periods where the appellant’s earnings were nil during school holiday periods where no work was available. The Principal Member at [63] correctly did not accept submissions that any reduction in earnings was on account of reduced capacity or ability to work. At paragraph [63] the Principal Member made specific findings of fact that the periods where there was a fluctuation in the appellant’s earnings with the Department of Education were the result of availability of work and not the result of any lack of capacity to undertake suitable employment of up to at least three days per week. No challenge is made to that finding which was clearly open to the Principal Member and it has not been shown that the conclusion was wrong.[18]
[18] Citing Raulston v Toll Pty Limited [2011] NSWWCCPD 25, [19].
The respondent points out that s 32A of the 1987 Act says that no regard is to be had to “whether the work or the employment is available”. Having concluded that a reduction in earnings over certain weeks was on account of the availability of work (a finding which has not been challenged), the Principal Member correctly applied s 32A and had no regard to that fact in assessing the worker’s entitlement to weekly payments. There was no error in the finding at [63] of the decision.
For completeness, the respondent submits that the appellant’s submissions at paragraph [46] are simply a restatement of the argument advanced before the Principal Member which was correctly rejected, at reasons [61] and [64]. The fact that a casual employee’s hourly rate is higher to compensate for the absence of other industrial entitlements is irrelevant. It remains the rate at which the appellant is paid for the work performed and therefore the Principal Member was correct to accept that the rate is informing the conclusion as to the worker’s ability to earn in suitable employment.

CONSIDERATION

Grounds One and Two – PIAWE

Schedule 3, clause 2(1) defines PIAWE to mean “the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of injury.”
Schedule 3, clause 6(1) of the 1987 Act provides:
“The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.”
In Schedule 3, clause 6(2), certain payments are excluded.
The Principal Member found that the payment of $100,000 was in settlement of all claims the appellant had against the respondent employer.
The Deed expressly provided in cl 4 that the consideration included the employee’s resignation and “the releases, discharges, and indemnities contained in this Deed.”
The Principal Member was correct in her conclusion that the payment was “not necessarily confined to past loss of wages due to not being given shifts”.[19] Furthermore, the Deed itself characterises the payment as an “Employment Termination Payment for tax purposes”. The characterisation of the payment in this manner by the parties to the Deed is doubtless a response to the provisions of the Income Tax Assessment Act 1997 (Cth) and presumably has tax advantages. However, the point is that characterisation of a payment by the parties in the Deed is not irrelevant for the purpose of determining whether the payment should be characterised as earnings for work done. The Principal Member was not in error in having regard to the terms of the Deed as to the characterisation of the payment.[20]
[19] Reasons, [53].
[20] Reasons, [51].
The respondent’s submission (at [63] above) is correct. Schedule 3, clause 6 required the amount to be “income of the worker received by the worker for work performed in any employment during the week.” The $100,000 was not received by the worker for the work performed in employment in which she was engaged at the time of the injury.
Clause 11 of the Deed is an acknowledgment by the appellant. However, the promises to resign and release are contained in cl 4 of the Deed.
It does not matter, with respect, what motive the appellant had in resigning. The consideration for the payment of $100,000 was in part the agreement to resign.
A payment for an agreement to resign is not an amount of income received by the worker “for work performed in any employment during the week.”
Furthermore, the Principal Member made a factual finding at [55] that the appellant did not perform work for the respondent during the weeks which are taken into account in the relevant period for the PIAWE. During that period she received earnings for work she performed for the Department of Education. The only work she performed in that period was work for the Department of Education.
The definition of “earnings” is confined to “income of the worker received by the worker for work performed in any employment during the week.” The payment of $100,000 is not “income of the worker received by the worker for work performed in any employment during the week” being a reference to the weeks from 5 October 2020 to 5 October 2021 which is the period relevant.
Grounds One and Two of the appeal are not made out.

Grounds Three and Four – No award under sections 36/37

The appellant during the relevant period was working for the Department of Education.
Section 36(2) of the 1987 Act provides:
“(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates:
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 37(2) of the 1987 Act provides:
“(2) The weekly payment of compensation to which an injured who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates:
(a)95% of the worker’s pre-injury weekly earnings, less the current weekly earnings,
(b)the maximum weekly earnings amount, less the worker’s current weekly earnings.”
There is no dispute that the worker returned to employment for greater than 15 hours per week and that accordingly she had a current work capacity.
The Principal Member said:
“The respondent has set out the [appellant’s] actual earnings and it is evident that in the majority of weeks she has earned more than 95% of the PIAWE figure. The respondent also argues that the [appellant’s] ability to earn in suitable employment is not restricted to her actual earnings. Mr Murray argued the fact that she was able to work for so many weeks exceeding her PIAWE demonstrates her ability to earn. He argues that the weeks where the earnings are less are more likely than not due to the availability of work which is a factor not permitted to be taken into account under s 32A.”[21]
[21] Reasons, [60].
The Principal Member accepted that:
“… the definition of current weekly earnings means her actual gross earnings and does not allow me to entertain matters such as [those] raised by Mr Collins. Also, the fact that schools are closed for holidays, meaning work will not be available to her every week, I find is a factor I cannot take into account under s 32A.”[22]
[22] Reasons, [61].
The appellant in her submissions to the Principal Member accepted that the appellant’s actual earnings between 5 October 2021 and 6 December 2023 were $1,079.61 per week (see appellant’s submissions to the Member).[23] Ninety five per cent of the PIAWE as determined by the Principal Member is $1,033.82.[24] The Principal Member noted that the respondent’s calculation of the appellant’s actual earnings for the majority of weeks exceeded 95% of the PIAWE figure.[25] She rejected the appellant’s submission that it was inappropriate to use the actual earning.[26] The appellant’s earnings after 5 October 2021 exceeded 95% of the PIAWE determined by the Principal Member.
[23] Appellant’s written submissions to the Member, p 1.
[24] Reasons, [58].
[25] Reasons, [60].
[26] Reasons, [61].
It follows that the appellant was not entitled to weekly compensation under either s 36 or s 37 for the period after 5 October 2021.
Grounds Three and Four of the appeal are rejected.

CONCLUSION

The appeal is dismissed. The Member’s Certificate of Determination dated 21 March 2024 and decision are confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

18 February 2025