Lintipal Pty Ltd v Jeffery

[2007] NSWWCCPD 118

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Decision set aside on appeal: Jeffery v Lintipal Pty Ltd [2008] NSWCA 138
CITATION:		Lintipal Pty Ltd v Jeffery [2007] NSWWCCPD 118
APPELLANT:		Lintipal Pt Ltd
RESPONDENT:		Peter Lewis Jeffery
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC14994-06
DATE OF ARBITRATOR’S DECISION:		11 January 2007
DATE OF APPEAL DECISION:		23 May 2007
SUBJECT MATTER OF DECISION:		Section 11A Workers Compensation Act 1987; whether injury was wholly or predominantly caused by ‘transfer’, and whether employer’s action with respect to ‘transfer’ was reasonable.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Goldbergs
Respondent:		Higgins & Higgins
ORDERS MADE ON APPEAL:		The Arbitrator’s decision and orders dated 11 January 2007 are revoked and the following orders made:
“1.  Award for the Respondent employer. 2.    No order as to costs.”
No order as to costs of the Appeal.

BACKGROUND TO THE APPEAL

1. On 8 February 2007 Lintipal Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 January 2007.  At the time of the events giving rise to this appeal, Lintipal was known as Tempo Cleaning Services Ltd (‘Tempo’).

1. The Respondent to the Appeal is Peter Lewis Jeffery (‘the Respondent Worker/Mr Jeffery’).

1. Mr Jeffery was born on 3 March 1951 and is currently 56 years old.  He completed his schooling in year eight at Katoomba High School.  After leaving school he performed various jobs including packer, kitchen hand and barperson until in about 1981 he started work for the Government Cleaning Service as a cleaner at Katoomba High School where he worked for about five years.  He then worked for the next 20 years as a cleaner at Katoomba Public School (‘Katoomba Public’).  Over this period the identity of his employer has changed but his duties and location have remained the same.  His duties required him to cleaning classrooms, toilets, dusting, vacuuming, buffing and polishing, removing and emptying rubbish bins and cleaning the playgrounds.

1. He performed his work without any adverse notice or comment until 23 September 2005 when he received a warning letter from the Appellant Employer for not signing off and leaving work eight minutes early on 22 September 2005.  On 21 September 2005 an unnamed Grievance Officer and Federation Representative wrote to the school making several complaints about Mr Jeffery’s behaviour in the course of his duties at the school. 

1. As a result of the letter of 21 September 2005, and other complaints made to the Principal, Janet McCarthey, she arranged to meet with the following senior personnel from Tempo on 24 October 2005: Marianne Berrier, Area Manager; Barry Purssell, General Manager; Feryial Kassim, Operations Manager; Rhonda Wilson, Support Officer; and Victoria Carroll, Human Resources Manager.  At that meeting the content of several letters of complaint about Mr Jeffery were discussed and Ms McCarthey directed Tempo to remove Mr Jeffery from…