Marium v Woolworths Group Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Marium v Woolworths Group Ltd [2025] NSWPIC 59
APPLICANT:	Marium Marium
RESPONDENT:	Woolworths Group Limited
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	20 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Applicant claimed weekly benefits after sustaining an injury on 31 July 2024; dispute over correct calculation of pre-injury average weekly earnings (PIAWE); applicant submitted that she was in concurrent employment at the time of injury and that 28 weeks should be excluded from the 52 week relevant period pursuant to clause 8E in Division 2 of Part 4 of the Workers Compensation Regulation 2016; Held – that the applicant was not in concurrent employment at the time of injury and that 27 weeks should be excluded from the relevant earning period resulting in a PIAWE of $496.63.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant to be paid weekly compensation from 31 July 2024 based on pre-injury average weekly earnings rate of $496.63 per week, subject to indexation and with the respondent to have credit for payments made. A brief statement is attached setting out the Commission’s reasons for the determination.

WORKERS COMPENSATION DIVISION

STATEMENT OF REASONS

BACKGROUND

On 1 November 2024, Marium Marium (the applicant) lodged an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (Commission). The applicant’s employer at the relevant time was Woolworths Group Limited (the respondent). The respondent was self-insured at the relevant time and Employers Mutual (NSW) Limited (the insurer) managed the claim for the respondent.
The applicant claimed weekly benefits compensation. The applicant, in the course of her employment with the respondent as a Team Member, sustained an injury to her head on
31 July 2024 when the handle of a heavily loaded “tote” from an online delivery snapped, and struck her on the head.
The applicant made a claim for weekly compensation, completing a Workers Injury Claim form dated 14 August 2024. In a letter dated 21 August 2024, the insurer advised that provisional payments had been accepted in relation to the claim and pre-injury average weekly earnings (PIAWE) had been calculated at $528.54 per week based on an interim rate until there was enough information to calculate PIAWE.
In an email dated 28 August 2024, the respondent advised the applicant that her PIAWE had been re-calculated at $238.77 per week.
The Section 78 Notice dated 12 November 2024 from Mr Hughes of BBW Lawyers stated that the applicant’s claim “for payments in respect of a PIAWE exceeding $238.77 is denied.” Reasons given relevant to the decision were as follows:
“●     Immediately after you submitted your claim for compensation was made, an interim PIAWE of $528.54 was applied. This was calculated based on payslips for 4 weeks prior to the relevant date of injury (ie average earnings across those 4 weeks). The interim PIAWE was communicated to you by way of letter dated
21 August 2024.
·        EML subsequently received from Woolworths a wage report for your earnings in the 52 weeks prior to your injury. The wage report disclosed total gross earnings of $12,415.87, which yielded a PIAWE of $238.77 (ie $12,415.87 / 52 weeks).
·        Subsequent to that PIAWE being conducted, EML recognised the wage report contained 28 weeks of nil earnings.
·        Clarification was sought from you and you confirmed you were employed by Woolworths at the relevant time but did not actually work the 28 weeks in question. You also confirmed you did not have concurrent employment as at the date of your injury.
·        Accordingly, EML has applied the PIAWE of $238.77.
·        In the Application to Resolve a Dispute you rely on a statement containing submissions. Therein, you assert the calculation of PIAWE is incorrect because ‘EML failed to follow legal provisions regarding employment periods shorter than 52 weeks and did not account for earnings in accordance with the statute’.
·        You also rely on an email you sent to Meridith Wenzel of EML dated 13 September 2024 wherein you assert the earning period had not been calculated correctly because you were employed less than 52 weeks and your ‘dental payslips’ had been ignored.
·        You rely on a ‘Schedule of Earnings’ which (a) excludes weeks where there were nil earnings with Woolworths and includes earnings in the 52 weeks prior to injury with Castle Hill Dental Care Trust. You assert total earnings in that period are $22,602.91 and you only worked 24 weeks during the period, hence your PIAWE should be $941.79.
· With regard to your earnings with Castle Hill Dental Trust, Per Schedule 3 of the Workers Compensation Act 1987, clause 2, these earnings would only be considered if it was employment in which you were ‘engaged at the time of your injury’. In an email dated 24 September 2024 you confirmed you were not employed at Castle Hill Dental Trust as at the date of your injury. Accordingly, earnings with Castle Hill Dental Trust are excluded for the purposes of calculating PIAWE.
· In terms of shortening the 52-week relevant earning period, this can only occur in accordance with Part 4, Division 2 of the Workers Compensation Regulation 2016. As these clauses do not apply, the relevant earning period cannot be shortened.
·        It follows that the PIAWE has been correctly calculated.”
The applicant claims that her PIAWE were $941.79 per week. She claims weekly benefits from 25 August 2024 ongoing, pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
A preliminary conference was held on 2 December 2024. On that occasion the applicant was advised to seek legal representation and to file a supplementary statement of evidence. In the preliminary conference, the parties agreed that the matters in dispute were as set out below.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant was in concurrent employment;
(b) whether the relevant earning period is to be adjusted – Regulations 8C and 8E of Schedule 3 of the Workers Compensation Regulation 2016, and
(c) calculation of PIAWE.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration via the audiovisual link (MS TEAMS) on 15 January 2025. The proceedings in the conciliation were sound recorded and a copy of the recording is available to the parties. The applicant was self-represented and had a support person, Mr Gurjip Singh present. The respondent was represented Mr David Hughes of BBW Lawyers. Mr Marco Amprino from EML attended the conference. An interpreter in the Urdu language, Navreet Bains, attended the conference.
The applicant filed late documents on 14 January 2025. The respondent submitted that an adjournment was required in order to enable the respondent to make enquiries about the late documents and, if necessary, file evidence in reply. The applicant had no objection to an adjournment. The matter was adjourned to 6 February 2025.
The parties attended a conciliation conference and arbitration via the audiovisual link (MS TEAMS) on 6 February 2025. The proceedings in the conciliation were sound recorded and a copy of the recording is available to the parties. The applicant was self-represented and had a support person, Mr Gurjip Singh present. The respondent was represented by Ms Nicole Compton who was instructed by Mr David Hughes of BBW Lawyers. Mr Marco Amprino from EML attended the conference. An interpreter in the Urdu language, Navreet Bains, attended the conference.
The respondent was given leave to be represented by counsel in the proceedings.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The applicant was provided with an interpreter in the Urdu language although she did not request an interpreter in the Application. It appeared that in the preliminary conference on
2 December 2024 the applicant required assistance from her support person, Mr Singh, from time to time to interpret some words. I therefore requested that an interpreter in the Urdu language be available during the conciliation conference and arbitration.
The applicant during the conciliation phase of the proceedings stated that the interpreter spoke Punjabi and the applicant found it difficult to understand the interpreter’s translation into Urdu from English. The interpreter stated that Punjabi was her first language, but she also spoke Urdu. Ms Compton suggested that the matter be adjourned and set down for a hearing in person with another Urdu interpreter. The applicant rejected that proposal on the basis that she suffered from seizures and would find it difficult to attend a hearing in- person. The applicant stated that she did not want an adjournment and wanted the matter to proceed on 6 February 2025 via TEAMS even though she did not have the services of an interpreter. In the circumstances the services of the interpreter were not used following the complaint by the applicant. I note that having read the signed submissions of the applicant dated
6 February 2025 I was satisfied that the applicant had a reasonable command of the English language and sufficient for the arbitration to proceed.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Documents filed by the applicant on 14 January 2024;
(d)    Application to Admit Late Documents filed by the respondent on 20 January 2025 and attachments, and
(e)    submissions and attached documents filed by the applicant on 6 February 2025 (excluding pages 17,18, 20, part of 21 and 22 of the attachments).
In relation to the submissions and attached documents filed by the applicant on
6 February 2025 Ms Compton objected to the pages numbered 17 of 62, 18 of 62, 20 of 62, part of 21 of 62 under the copy of the medical certificate dated 12 January 2024 and page 22 of 62. These pages or the section of page 21 appeared to be extracts from a Whatsapp Chat between 23 July 2023 and 27 November 2023 and Ms Compton stated that the respondent had no opportunity to make enquiries about this Whatsapp Chat, nor had the applicant provided any statement identifying these pages. The applicant then stated that these pages, that is, the pages numbered 17 of 62, 18 of 62, 20 of 62, part of 21 of 62 under the copy of the medical certificate dated 12 January 2024 and page 22 of 62 were to be excluded from the documents attached to her submissions of 6 February 2025.

Oral evidence

There was no application by either party to cross-examine any witness or call oral evidence.

Submissions

The applicant filed written submissions dated 6 February 2025. Ms Compton made oral submissions during the arbitration and the applicant made oral submissions in reply. The oral submissions were recorded, and I do not propose to repeat those or the written submissions in full. However, I note that the applicant submitted that (i) her work as a dental assistant should be taken into account as concurrent employment at the time of the injury for the purpose of the calculation of PIAWE and (ii) a period of unpaid leave taken from
16 April 2023 to 4 February 2024 was improperly treated as unauthorised leave and should be excluded in the calculation of PIAWE.
The respondent submitted that the applicant was not in concurrent employment at the time of her injury and that the period before 4 February 2024 and two other weeks after
4 February 2024 should not be excluded in the calculation of PIAWE.

FINDINGS AND REASONS

During the conciliation phase of the proceedings reference was made to a complaint by the applicant that she had not been served with a s 78 Notice dated 31 October 2024. This was not an issue identified by the parties as an issue in dispute in the preliminary conference on
2 December 2024. The respondent advised the applicant that the respondent accepted that she had not been served with the Section 78 Notice dated 31 October 2024.
There was no dispute as to injury or incapacity.
The onus of proof is on the applicant to make out her claim.

Concurrent employment

The first issue to determine was whether the applicant was in concurrent employment.
In the Workers Injury Claim Form dated 14 August 2024 the applicant, in response to the question “Did you have any other employment at the time you were injured? Please provide details or attach the names of anu other employers and their contact details, and any relevant wage or payment records”, answered “No”.
In an email dated 24 September 2024 from the applicant to Meredith Wenzel of the insurer, the applicant wrote:
“In response to your query, I would like to clarify that my statement regarding not being employed for the full 52 weeks pertains to my employment with Woolworths. While my hire date was 05/02/2020, the records show that I have only worked for 28 weeks out of the last 52 weeks. As my role is casual, I did not work continuously throughout the entire period.
I commenced employment with Castle Hill Dental Care Trust on 19 February 2024 and worked until 29 April 2024. I only have two payslips in my possession for the periods 25/03/2024 to 07/04/2024 and 08/04/2024 to 21/04/2024. If you require additional payslips, you may need to obtain them directly from the employer, as I do not have any others. The salary for the other weeks is consistent with the payslips I’ve already provided.
I confirm that I did not work at Woolworths during the period from 31/07/2023 to 09/02/2024, as stated by Woolworths payroll.”
A number of payslips from Castle Hill Dental Care Trust were in evidence. The applicant was classified as a Dental Assistant – Receptionist and paid an hourly rate of $30.
The pay slips appear to cover the following pay periods: 12 February 2024 to
25 February 2024, 26 February 2024 to 10 March 2024, 11 March 2024 to 24 March 2024, 25 March 2204 to 7 April 2024, 8 April 2024 to 21 April 2024 and 22 April 2024 to
5 May 2024.
The applicant attached a statement in the annexures to the Application. The statement is dated 31 October 2024 and is signed. However, this statement contains a series of allegations and complaints about the insurer. The statement is a submission and not a statement of evidence.
Based on the evidence, including the applicant’s admissions in her Workers Injury Claim Form dated 14 August 2024 and her email dated 24 September 2024 to Meredith Wenzel, I find that the applicant last worked for Castle Hill Dental Care Trust on 28 April 2024 and was not employed by Castle Hill Dental Trust at the date of the injury, that is, 31 July 2024. The applicant had not been employed by Castle Hill Dental Trust for over three months when she was injured on 31 July 2024.

LEGISLATION

Clause 2 of Sch 3 to the 1987 Act provides:
“2 Meaning of ‘pre-injury average weekly earnings’
(1) Pre-injury average weekly earnings, in relation to an injured worker, means 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 the injury.
Note—
See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.
(2) Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
(3) The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period)—
(a) to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or
(b) to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.
(4) If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.”
In Project Blue Sky, [1998] HCA 28 in a joint judgment of McHugh, Gummow, Kirby and Hayne JJ, their Honours said at [69] (citations omitted):
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.”[
And at [71]:
“Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northeren Territory) [2009] HAC 41 in the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ, their Honours observed at [47] (citations omitted):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
As was held by the High Court of Australia in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 at [29]:
“It can be accepted ... that the [1987 Act’s] remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the [1987 Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.”
The applicant submits that in cl 2 of Sch 3 to the 1987 Act the phrase "in any employment in which the worker was engaged at the time of the injury" cannot be interpreted to require that the worker must have been simultaneously employed in all roles at the precise time of the injury. Instead, she argues that the PIAWE calculation must reflect the worker's earning capacity based on the averaging principle inherent in the statutory language.

The applicant argues that the phrase "at the time of the injury" serves as a cut-off date, marking the end of the relevant earning period and does not impose a requirement that all jobs contributing to PIAWE must be held concurrently at the time of the injury. She submits that interpreting the phrase to require concurrent employment would distort the statutory intent to provide a fair measure of the worker’s pre-injury earning capacity and the legislative use of "weekly average" is incompatible with a restrictive interpretation that excludes jobs completed during the relevant earning period but before the injury date.
The applicant argued that to interpret PIAWE as compensating only for earnings from employment held at the moment of injury would lead to an unfair and arbitrary result particularly for workers with irregular, transitional or multi-employment arrangements. She submitted that such an interpretation would contradict the Act’s remedial intent and undermine its aim to fairly restore an injured worker to their pre-injury financial position.
The applicant submits that the phrase "in any employment in which the worker was engaged at the time of the injury" cannot be interpreted to require that the worker must have been simultaneously employed in all roles at the precise time of the injury and instead, the PIAWE calculation must reflect the worker's earning capacity based on the averaging principle inherent in the statutory language. She did not refer to any authority in support of this submission.
In my view, the text of cl 2(1) of Schedule 3 is clear and not ambiguous. The language employed is “employment is which the worker was engaged at the time of injury”. In my view, PIAWE is calculated in a series of steps. The first step is set out in cl 2(1) which provides that PIAWE means 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 the injury.
The next step is set out in cl 2(2) which provides that, except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of sub-clause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).
It is clear that the provision in cl 2 (1) limits the earnings to those received by the worker in any employment at the time of the injury and the provision cannot be interpreted to mean that the phrase "at the time of the injury" serves as a cut-off date, marking the end of the relevant earning period. The provision in cl 2 (1) imposes a requirement that all jobs contributing to PIAWE must be held concurrently at the time of the injury. The interpretation proposed by the applicant is artificial and would displace the clear meaning of the text.
I find that the PIAWE is to be calculated based on the weekly average of the gross pre-injury earnings received by the applicant for work in any employment in which she was engaged at the time of the injury and does not include employment that the applicant was last engaged in three months before the injury. The evidence in this matter is that the applicant was not employed by Castle Hill Dental Trust at the time of her injury on 31 July 2024 and had not been employed by Castle Hill Dental Trust since 28 April 2024.
Had the intent of the legislation been to calculate PIAWE based on an averaging principle for all employment in the 52 week period prior to the work injury, this provision could have been expressed in those terms. However, this provision clearly restricts the inclusion of other earnings from concurrent employment to that of concurrent employment in which the worker was engaged at the time of the injury.
The applicant referred to the “Act’s remedial intent”.
The relevant legislative scheme for this claim includes the 1987 Act, the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and the 2016 Regulation. Under s 2A of the 1987 Act , the 1998 Act are to be construed together, with the 1998 Act prevailing in the event of any inconsistency.
The stated objectives of the legislation contained in s 3 of the 1998 Act which are as follows:
“The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives—
(a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b) to provide—
·    prompt treatment of injuries, and
·    effective and proactive management of injuries, and
·    necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible,
(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d) to be fair, affordable, and financially viable,
(e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f) to deliver the above objectives efficiently and effectively.”
As regards the 1987 Act, having referred to the system objectives in s 3 of the 1998 Act, Payne JA (Gleeson JA and Sackville AJA agreeing) in Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 78, said:
“[65] It is true that one purpose of the Workers Compensation Act is to benefit workers but it is going too far to say that every grant of an entitlement should be construed broadly because it is part of a beneficial scheme...
[66] The Workers Compensation Act does not pursue a single purpose of providing the maximum amount of benefits to workers at all costs. Where, as here, the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For this Court to construe the Workers Compensation Actas though it pursues only the purpose of providing benefits to workers to the fullest extent possible would be contrary to the manifest intention of the legislation.”
It is apparent from those legislative objectives in s 3 of the 1998 Act that there is a balance to be reached between the provision of benefits to workers with the need to ensure a fair system and one which is financially viable. The applicant argues that an interpretation would contradict the “Act’s remedial intent” and undermine its aim to fairly restore an injured worker to their pre-injury financial position. However, the 1987 Act does not aim, in my view, to restore a worker to their pre-injury financial position. For example, the 1987 Act provides that worker is paid only a percentage of PIAWE, either 95% in the first entitlement period, and 80% after that first entitlement period. The 1987 Act also provides that there is a maximum weekly payment that can be made. Further, the 1987 Act, as a result of the amendments made in 2012, limits the term of such payments for most workers.
It follows that I do not accept the applicant’s submission that interpreting the phrase in such a way so as to require concurrent employment to the time of injury would distort the statutory intent to provide a fair measure of the worker’s pre-injury earning capacity.
The applicant submits that the legislative use of "weekly average" is incompatible with a restrictive interpretation that excludes jobs completed during the relevant earning period but before the injury date. I do not accept this submission as the provisions must be read as a whole. As I have stated above, it is clear that the requirement that the other employment must be concurrent at the time of the injury is an integral part of the definition of PIAWE.
I note that in the Second Reading Debate Speech in the Legislative Council of the Workers Compensation Amendment Bill 2018, Mr Scott MacDonald stated:
“Importantly, the new schedule 3 to the Act introduced by the bill provides for a simple and clear method of determining PIAWE. The bill also includes a provision to amend the schedule by regulation. This provides flexibility to keep pace with the changes in the way that workers earnings are determined. This regulation-making power mirrors a similar power introduced in the Motor Accident Injuries Act 2017. Consistent with this adaptable and flexible approach is a regulation-making power to adjust the relevant earning period to accommodate changes in the worker's earnings circumstances and the ability to align the calculation of weekly payments with an injured worker's normal pay cycles. The regulations may also provide for the adjustment of weekly payments following a work capacity decision if required”
There is nothing in the second reading speeches in the New South Wales Legislative Council or even in the Legislative Assembly that deal in any way with the specific question of concurrent employment.
The interpretation put forward by the applicant is inconsistent with the simple and clear method of determining PIAWE that was put in place by this legislation. There has been a legislative choice to fashion payments of compensation under the 1987 Act by reference to the earning capacity of the worker as at the date of the relevant injury.
I am satisfied that the earnings of the applicant in her employment with Castle Hill Dental Trust should not be taken into account in the calculation of her PIAWE as she was not in employment with Castle Hill Dental Trust as the time of the injury.

Calculation of PIAWE – relevant earning period

Clause 6 of Sch 3 to the 1987 Act provides:
“6 Meaning of ‘earnings’
(1) 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.
(2) ….”
Regulation 8AA of the 2016 Regulation defines the “relevant earning period” as having “the same meaning as in clause 2(2) of Schedule 3 for the purpose of calculation of the worker’s pre-injury average weekly earnings”.
Division 2 of Pt 4 of the 2016 Regulation, introduced by the Workers Compensation Amendment (Pre-injury Average Weekly Earnings) Regulation 2019 (NSW) and which commenced on 21 October 2019 (the day when the relevant amendments to Sch 3 pursuant to the 2018 Amendment Act took effect), provides for the adjustment of the “relevant earning period” under cl 2(2) of Sch 3 to the 1987 Actin certain circumstances, including those in regs 8E of the 2016 Regulation.
The relevant regulations in Division 2 of Part 4 of the 2016 Regulation provides:
“8A Operation of Division
(1) This Division provides for the adjustment of the relevant earning period under clause 2(2) of Schedule 3 to the 1987 Act for a worker in employment for the purposes of calculating the pre-injury average weekly earnings in relation to the worker.
(2) The relevant earning period in respect of the employment is to be adjusted in accordance with the provisions of this Division in the following order—
(a) Clause 8B (Adjustment for workers not continuously employed),
(b) Clause 8C (Adjustment for financially material change to earnings),
(c) Clause 8D (Alignment of relevant earning period with pay period),
(d) Clause 8E (Adjustment for unpaid leave),
(e) Clause 8EA (Adjustment for prescribed periods relating to COVID-19).
(3) Accordingly, a reference in a provision of this Division—
(a) to the relevant earning period is a reference to the relevant earning period as adjusted in accordance with any preceding provision applicable to the worker, or
(b) to the unadjusted earning period is a reference to the relevant earning period as so adjusted, but without regard to any adjustment under the provision in which the expression is used.
…
8E Adjustment for unpaid leave—Schedule 3, clause 2(3)(a) of 1987 Act
(1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during any period of not less than seven consecutive calendar days within the unadjusted earning period—
(a) no earnings in the employment were paid or payable to the worker, and
(b) the worker took a period of unpaid leave (the unpaid leave period) commencing on the first day of that consecutive period.
(2) The relevant earning period is to be adjusted by excluding each day (whether or not the day was a usual work day for the worker) of the period commencing on the first day of the unpaid leave period and ending immediately before the day on which earnings in the employment once again became payable to the worker.
The applicant submits that the insurer’s calculation of the applicant’s PIAWE was incorrect, specifically the improper inclusion of unpaid leave taken from 16 April 2023 to
4 February 2024, which the insurer treated as unauthorised leave. The applicant noted that the insurer’s Weekly Earning Calculation Summary (Applicant’s document bundle, page 10 of 25) contained a row titled “Any Unpaid Leave taken by the worker” marked as “N/A” without explanation or justification. The applicant contends that this unpaid leave, formally approved by her Store Manager Nick Ayoub, was improperly treated as unauthorized leave to the detriment of the applicant.
The respondent submits that an absence from employment is not unpaid leave and that there is no evidence that the applicant took unpaid leave.
The Section 78 Notice dated 12 November 2024 stated that in terms of shortening the 52-week relevant earning period, this can only occur in accordance with Part 4, Division 2 of the Workers Compensation Regulation 2016 and that these clauses do not apply.
In a letter to the applicant from Mr Nick Ayoub, store manager of Woolworths Schofields Town Centre dated 11 January 2024, requested medical information from the applicant.
Mr Ayoub wrote:
“I am writing to you in relation to your extended absence from Woolworths Schofields Town Centre (the Store) since 16 April 2023.
Background
More recently, you provided a medical certificate from Dr Dipanwita Bhowmik, dated 27 November 2023 (the Certificate). In the Certificate, Dr Bhowmik stated that you have a history of bilateral multiple joint pain and the work-related tasks that you perform at the Store make your symptoms worse. Dr Bhowmik also recommended that you would be better suited in a role that is less physical, requires less walking and a role that avoids lifting weight.
Due to the extensive duration of your absence from work, we require current medical information to provide clarification with respect to your condition and its impact on your employment. This information will also assist us in assessing whether any reasonable adjustments can be made to facilitate you to complete the full duties associated with your role and ensure that you are able to undertake such duties safely, without risk of exacerbation.
…
We ask that you please provide documentation from your treating practitioner in response to the above by 5:00pm on 24 January 2024, either by email to [email protected] or by hand”.
In a Certificate dated 27 November 2023, Dr Dipanwita Bhowmik of Kellyville Medical Centre wrote:
“Miss Marium Marium has history of multiple joint pain and her current job requirements at Woolworth is making her symptoms worse. We are investigating her condition with some further tests however meanwhile I believe she will benefit from change in nature of job, something that is less physical, avoiding excessive walking and running around or lifting weights might help and reduce the risk of exacerbation of her condition.
She has taken some time off from work as per Dr (sic) which has made significant improvement in her symptoms but she needs to come back to work for financial support.
If you can accommodate her need at the work place that would be highly recommended and appreciated to allow her to continue work and manage her symptoms.”
In a Medical Certificate dated 12 January 2024, Dr Dipanwita Bhowmik certified the applicant would be fit for returning to work full duty from 12 January 2024.
In an email from Mr Ayoub headed “time line of events” dated 18 January 2025 to Mr Byran Greer, Injury Care Partner at the respondent, wrote:
“Please see below timeline of events in which Marium returned to work at the start of 2024
24/10/2023 - Team lead reached out to Marium regarding availability and working
24/10/2023 - Marium responded with message regarding injuries - screenshot has been provided
11/11/2024 [sic] - Team lead requested medical certificate regarding limitations
27/11/2024 [sic] - Team member provided Medical certificate regarding limitations - screen shot has been provided
24/1/2024 - Team member provided medical doctor clearance (screenshot sent by team member to team leader)
- Team member doctor certificate stated that the team was fit to return to work from 12/01/2024 it was not provided to the team leader until the 24/1/24.
- Rosters are already built in the current week, +1 week
-Team leader then rostered team member in the next roster build as per the team members availability in the kronos system. (rosters are created 2 weeks in advance)
7/2/2024 - Team member reached out regarding shifts
7/2/2024 - Team lead replied - As per process rosters had been completed and Marium was on the next available roster build
7/2/2024 - Team member replied thanking for the quick response and was appreciative of all the support and help
10/2/2024 - Team member picked up a shift that was available and returned to work.”
The EML Woolworths Group Weekly Earnings Calculation Summary dated 27 August 2024 (pages 9-10 of the documents attached to Form 2) noted that the relevant period range was 31 July 2023 to 28 July 2024. In answer to the Question “Any unpaid leave taken by the worker? The answer was “N/A”. Under “Relevant period”, it was noted that there were 28 potential missing weeks. Total gross earnings were $12,415.87 and PIAWE was calculated as $238.77.
In an email dated 11 September 2024, Jeanette Stewart of the respondent’s payroll services, confirmed that the applicant did not work and was not paid for any worked hours from
31 July 2023 to 9 February 2024.
The respondent’s pay records for the applicant were attached to the Reply. These records show that the applicant did not work and did not get paid for any work for the period
31 July 2023 to 9 February 2024. The pay records do show that the applicant was paid the sum of $16.26 for the week ending 26 November 2023 but that payment was marked “Review – Gross” and a further $2.71 was paid as “Review Interest payment”. I am satisfied that this payment was not a payment for work performed by the appellant in the week ending 26 November 2023.
The respondent submits that no period in 52 weeks prior to the date of injury up to
29 January 2024 should be treated as leave without pay. The respondent also argued that the applicant received a clearance to return to work on 12 January 2024 and had that been submitted immediately as opposed to on 24 January 2024 (two weeks later) she could have commenced work two weeks sooner.
In Secretary, Department of Communities and Justice v Stewart [2024] NSWCA 59 (Stewart) Griffiths AJA observed:
“Interpreting ‘leave’ in the context of the expression ‘period of unpaid leave’, as referring to an entitlement or authorisation which relieves a worker of the performance of their duties by or under an employment contract, statute or industrial agreement, is also consistent with other provisions in the [1987 Act] which describe other types of ‘leave’. For example, s 49(1) provides that compensation is payable in respect of a period of incapacity for work even though the worker has or may receive any payment, allowance or benefit for ‘long service leave’. Similar provision is made in s 50(1) in respect of ‘sick leave’. Both those kinds of leave involve an entitlement or authorisation which excuses a worker from performing their duties of employment.”

I note that Stewart is distinguishable on the facts as it involved a claim for a period of unpaid leave taken as the result of an earlier work injury for which the worker received workers compensation payments. However, Stern JA in Stewart made the following comments about unpaid leave:
“105. Third, the term a ‘period of unpaid leave’ is, on its face, sufficiently broad to comprehend as ‘leave’ a period during which a worker is expressly or implicitly permitted to be absent from work, whether that absence is by reason of sickness, incapacity, or some other matter. Such an absence is at least implicitly permitted by an employer who releases the worker from any obligation to be ready, willing and able to perform work as directed by the employer: as held by Kourakis CJ in dissent in Flinders v Woolford at [21]. In my judgment, it is artificial to limit the word “leave” to absences from work which are expressly authorised by legislation or contract. There is no rational basis upon which to suggest that a worker who is absent from work by reason of incapacity should be treated differently in this regard from a worker who is absent from work for personal or other reasons…
106. In this regard, the reasoning of Kourakis CJ, in dissent, in Flinders v Woolford is to be preferred to that of Stanley J (with whom Kelly J agreed). In particular, I agree that the word ‘leave’ is sufficiently broad to comprehend a period of absence from work which is expressly or implicitly permitted by an employer. An employer permits a worker who asserts incapacity to be absent from work when they take no steps to compel attendance. That is so irrespective of the fact that there may be consequences under the Compensation Act if an employer dismisses a worker because they are not fit for employment: see eg ss 241 and 242 of the Compensation Act.”
On balance I accept that the applicant had an extended absence from her employment with the respondent over the period 31 July 2023 to 9 February 2024 for medical reasons and the weeks during this period should not be taken into account in the calculation of PIAWE.
Although the applicant only filed two medical certificates concerning this period of absence dated 27 November 2023 and 12 January 2024, it is clear from those certificates that she had a history of multiple joint pain and her job requirements at Woolworths were making her symptoms worse. Dr Bhowmik on 27 November 2023 noted that she was investigating the appellant’s condition with some further tests and believed the appellant would benefit from change in nature of job to something that is less physical, avoiding excessive walking and running around or lifting weights. Dr Bhowmik noted that the appellant had taken some time off work “as per Dr”, which had made a significant improvement in her symptoms.
On balance, I am satisfied that the appellant was absent for an extended period because of a medical condition and that the respondent was aware of her absence. I accept that the applicant is a casual employee who had worked for the respondent since about January 2020. However, the letter from Mr Ayoub dated 11 January 2024 describes her absence from her employment as extended and due to a medical condition. I am satisfied that the applicant was implicitly permitted to be absent from work from 31 July 2023 to 4 February 2024
Mr Ayoub, in his letter of 11 January 2024, requested the applicant obtain a report from her treating practitioner concerning her diagnosis, the impact that would have on her ability to perform her work duties and whether she was currently fit to attend work and undertake her role as a Store Team Member. Mr Ayoub requested this documentation by 24 January 2024 and stated that the costs of the report would be met by the respondent. The letter from
Mr Ayoub, in my view, supports a finding that the applicant was on unpaid leave between
31 July 2023 to 4 February 2024.
The applicant in her wages schedule submitted that she earned $12,399.61 over a 24 week period in her employment with the respondent. She submitted that the relevant earning period was 24 weeks with 28 weeks to be excluded from the calculation. The weeks excluded in the applicant’s wages schedule were the weeks before 11 February 2024 (27 weeks) and the week ending 12 May 2024 (1 week).
Ms Compton submitted that the applicant earned $11,274.61 between 5 February 2024 to
28 July 2024 but did not file a wages schedule setting out her calculations or explain the difference in her calculations and those made by the insurer in the EML Woolworths Group Weekly Earnings Calculation Summary dated 27 August 2024.
I note that in the EML Woolworths Group Weekly Earnings Calculation Summary dated
27 August 2024 total gross earnings were calculated as being $12,415.87 in the relevant period of 31 July 2023 to 28 July 2024. I will adopt this as the correct figure for the applicant’s total gross earnings.
I note that the applicant has provided no evidence that she was on leave for this week ending 12 May 2024. Therefore, I do not accept that the applicant was on leave during the week ending 12 May 2024 and that this week should be excluded from the calculation of PIAWE.
On balance I accept that the applicant was on unpaid leave from her employment with the respondent over the period 31 July 2023 to 9 February 2024 for medical reasons and that the weeks during this period should not be taken into account in the calculation of PIAWE.
The relevant earning period is therefore 25 weeks. The applicant earned $12,415.87 and therefore PIAWE is calculated at $496.63 per week. I have not excluded an additional two weeks from the period as I consider that it may have taken some time for the applicant to organise a return to work after such a long absence.
I find that the applicant was on “unpaid leave” within the meaning of Reg 8E of the 2016 Regulation (set out above). Therefore, the relevant earning period should be adjusted to exclude the period from 31 July 2023 to 9 February 2024 when the applicant was on unpaid leave. The relevant earning period for the calculation of pre-injury average earnings should therefore be adjusted to the period from 9 February 2024 to 28 July 2024.
I find that PIAWE is $496.63 per week.
The applicant to be paid weekly compensation from 31 July 2024 based on a PIAWE rate of $496.63 per week, subject to indexation and with the respondent to have credit for payments made.

[2025] NSWPIC 59

20 February 2025