Lintipal Pty Ltd v Jeffery (No 2)

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR FOLLOWING REMITTER FROM THE COURT OF APPEAL
STATUS: Remitter: This decision is a decision on remitter from the Court of Appeal decision in Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
CITATION:			Lintipal Pty Ltd v Jeffery (No 2) [2008] NSWWCCPD 79
APPELLANT:			Lintipal Pty 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 FIRST APPEAL DECISION:		23 May 2007
DATE OF COURT OF APPEAL DECISION:		17 June 2008
DATE OF SECOND APPEAL DECISION:			30 July 2008
SUBJECT MATTER OF DECISION:			Remittal of matter from the Court of Appeal.
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			On the papers
REPRESENTATION:			Appellant:	Goldbergs
Respondent:	Higgins & Higgins
ORDERS MADE ON APPEAL:			The Arbitrator’s determination dated 11 January 2007 is revoked and the following order made: “1.The matter is remitted to a different Arbitrator to be re-determined in accordance with the reasons given by the Court of Appeal in its decision dated 17 June 2008. 2.  Costs of the first arbitration are to follow the event of the second arbitration.”
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal in Lintipal Pty Ltd v Jeffery [2007] NSWWCCPD 118. No order as to costs in Lintipal Pty Ltd v Jeffery (No 2) [2008] NSWWCCPD 79

BACKGROUND

1. On 8 February 2007 Lintipal Pty Ltd (‘the Appellant Employer/Lintipal’) 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. I determined the appeal in favour of Lintipal on 23 May 2007 (Lintipal Pty Ltd v Jeffery [2007] NSWWCCPD 118) (‘Jeffery No 1’).  The facts and background to the matter are set out in that decision and the following summary is taken from paragraphs [3] to [9] inclusive of that decision:

“3.Mr Jeffery was born on 3 March 1951 and is currently 56 years old [now 57].  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.

4.He performed his work without any adverse notice or comment until 23 September 2005…