Michael Alexander and Sandra Alexander as legal personal representatives of the Estate of Hugh Alexander v Secretary, Department of Education and Communities

[2015] NSWWCCPD 41

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Michael Alexander and Sandra Alexander as legal personal representatives of the Estate of Hugh Alexander v Secretary, Department of Education and Communities [2015] NSWWCCPD 41
APPELLANT:	Michael Alexander and Sandra Alexander as legal personal representatives of the Estate of Hugh Alexander
RESPONDENT:	Secretary, Department of Education and Communities
INSURER:	Allianz Australia Insurance Ltd
FILE NUMBER:	A1-5644/14
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	2 April 2015
DATE OF APPEAL DECISION:	7 July 2015
SUBJECT MATTER OF DECISION:	Journey claim; motor vehicle accident; journey between place of employment and place of abode or between place of employment and an educational institution; if the former, whether a real and substantial connection between the employment and the accident; if the latter, whether journey a “periodic” journey and whether employer “required” or “expected” worker to attend university graduation ceremony; s 10(3)(a) and (b) and s 10(3A) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Ian Collins Solicitor
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1.       The respondent’s name is amended to be Secretary, Department of Education and Communities. 2.       The Arbitrator’s determination of 2 April 2015 is confirmed.

INTRODUCTION

1. Section 10(1) of the Workers Compensation Act 1987 (the 1987 Act) provides that a personal injury received by a worker on any journey to which the section applies is, for the purposes of the Act, an injury arising out of or in the course of employment. Journeys to which the section applies are set out in several paragraphs in s 10(3). This appeal concerns paragraphs (a) and (b) of s 10(3).

2. Paragraph (a) refers to daily or other periodic journeys between the worker’s place of abode and place of employment. Paragraph (b) refers to daily or other periodic journeys between the worker’s place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker’s employment, or is “expected” by the worker’s employer, to attend.

3. In the present case, the worker died from injuries received in a car accident while driving from his place of employment to either his place of abode or to an educational institution to attend his graduation ceremony. The worker’s parents claimed compensation for lump sum death benefits and funeral expenses under the 1987 Act. They presented the claim on the basis that, on the facts, the journey came within either paragraph (a) or paragraph (b).

4. The parties agreed that if the worker was on a journey to which paragraph (a) applied, s 10(3A) had to be satisfied. That provision requires that a journey referred to in subsection (3) to or from a worker’s place of abode is a journey to which s 10 applies “only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose”. It was agreed that s 10(3A) did not apply to paragraph (b).

5. The Arbitrator determined that if the worker was on a journey to which paragraph (a) applied, there was no real and substantial connection between the employment and the accident. In the alternative, if the worker was on a journey to which paragraph (b) applied, the Arbitrator was not satisfied that the journey was a “periodic” journey or that the educational institution was one that the employer required or “expected” the worker to attend. Therefore, on either basis, the claim failed.

6. For the reasons explained below, the Arbitrator’s decision is confirmed.

FACTUAL BACKGROUND

1. The deceased worker, Hugh Alexander, was a school teacher. At the time of his death, he lived at Swan Hill, Victoria. On 9 October 2013, he started work for the respondent employer, the Department of Education and Communities, as a casual physical education teacher at Tooleybuc Central School, a small school on the Victoria and New South Wales border about 900 kilometres southwest of Sydney. The respondent gave him a temporary contract of employment from 4 November 2013 until 19 December 2013.

2. On a date not disclosed in the evidence, but accepted to be before October 2013, the deceased completed a Bachelor of Education at the Charles Sturt University at Bathurst. The graduation ceremony for his course was held at Bathurst on Thursday, 19 December 2013. With the approval of the school’s principal, Melanie Wait, the respondent gave the deceased paid leave to attend the ceremony.

3. After attending a farewell lunch at the school, the deceased left the school at about 1.30 pm on 18 December 2013. The accepted evidence is that he intended to drive to his parents’ residence at Lithgow, about an eight-hour plus drive, where he would stay the night, and then attend the graduation ceremony at Bathurst the following day. Though nothing turns on it, given the deceased’s direction of travel from Tooleybuc, his trip would have involved some backtracking because he would have had to pass through Bathurst to reach Lithgow.

4. Shortly before 1.50 pm, the deceased lost control of his vehicle on Goodnight Road, Kyalite, a short distance from Tooleybuc. His vehicle, which was estimated to be travelling at 100 kilometres per hour, rolled several times and the deceased was thrown from it. A witness to the accident, Paul Langton, a registered nurse, provided immediate assistance, but the deceased died at the scene. In a statement to the police, Mr Langton said that the deceased had been “speeding and lost control”. A police examination of the deceased’s vehicle revealed no mechanical defect that may have contributed to the accident and blood tests were negative for drugs and alcohol.

5. The deceased’s parents, Michael and Sandra Alexander, have brought proceedings in the Commission claiming lump sum death benefits under ss 25 and 26 of the 1987 Act. As the Application to Resolve a Dispute (the Application) was so poorly drafted, it is impossible to know the exact basis of the claim. The respondent disputed liability for the claim and the Commission allocated the matter to an Arbitrator for determination.

THE ARBITRATOR’S REASONS

1. The Arbitrator identified (at [7]) the issues to be whether the deceased died from injuries sustained either:

   (a)     on a daily or periodic journey from his place of employment to his place of abode (under s 10(3)(a)) and (whether) there was a real and substantial connection between the employment and the accident or incident out of which the personal injury arose (s 10(3A)), or,

   (b)     on a daily or periodic journey between the deceased’s place of employment and an educational institution which he was “expected by [his] employer, to attend” (s 10(3)(b)).

2. The Arbitrator acknowledged (at [8]–[9]) the parties’ agreement that, in the circumstances of this case, s 10(3A) applied if the deceased was on a daily or periodic journey from his place of employment to his place of abode under s 10(3)(a), but it did not apply if he was on a journey to which s 10(3)(b) applied. That was because s 10(3A) only applies to journeys in subsection (3) “to or from the worker’s place of abode”. They also agreed that, on the evening of 18 December 2013, the definition of place of abode in s 10(6) included the deceased’s parents’ residence at Lithgow.

3. The Arbitrator accepted that Ms Wait had encouraged the deceased to attend the graduation ceremony and had suggested that he take special leave to do so. Consistent with that evidence, there is an incomplete “Teachers Application for Leave” form in evidence, dated 18 December 2013. It is unclear how much of that document was completed by the deceased and how much was completed by Ms Wait, but it suggests that he sought a half day of leave on 18 December 2013. Regardless of how and when the form was completed, the parties accepted that, at the time of the accident, the deceased was on special (paid) leave, and was not in the course of his employment.

4. Dealing with the first of the scenarios argued, namely, that the deceased was on a journey from his place of employment to his place of abode (s 10(3)(a)), the Arbitrator noted that it was settled that s 10(3A) only “requires a real and substantial connection between the employment and the accident or incident out of which the injury arose” ([45]). He concluded that “there [was] insufficient evidence concerning what employment factors caused, or had a connection with, the cause of the motor vehicle accident” for him to be satisfied “that the accident’s connection with [the deceased’s] employment was real and substantial” ([47]).

5. Dealing with the alternative scenario, namely, that the deceased was on a daily or periodic journey from his place of employment to an educational institution (Charles Sturt University), the Arbitrator was satisfied that the deceased was on a two day journey from his place of employment to an educational institution, as defined in s 10(6)(b). However, he was not satisfied that the journey was a “daily or periodic journey”. He held that “the purpose of the travel giving rise to the journey was a ‘once off’” ([52]). That was because the travel “was for the once only purpose of attending [the deceased’s] graduation ceremony” ([52]). He was not satisfied that it could be characterised as a periodic journey “as it lack[ed] any degree of regularity or periodicity” ([52]).

6. The Arbitrator added (at [54]) that there was no evidence that, apart from the subject journey, there was any other travel or journey undertaken, or contemplated to be undertaken, by the deceased to an educational institution. He was also not satisfied the journey was a daily or periodic journey to an educational institution which the deceased was “expected” by his employer to attend in the manner contemplated by the section ([55]), noting (at [57]) that the qualification in respect of which the graduation ceremony related would have been conferred upon the deceased whether or not he attended.

7. Further, the Arbitrator accepted that the respondent may have held a reasonable expectation that the deceased would use his special leave to attend his graduation ceremony. However, the graduation ceremony related to course work carried out and completed at a time prior to the deceased starting work with the respondent, and was completed independently of his employment with the respondent. In these circumstances, the Arbitrator was not satisfied that the deceased’s attendance at the graduation ceremony was “in a material way connected with his employment or was an incident of his employment in the sense that such attendance was ‘expected’ as contemplated” by s 10(3)(b).

8. Consistent with the Arbitrator’s reasons, the Commission issued a Certificate of Determination on 2 April 2015, making an award for the respondent.

9. Mr and Mrs Alexander have appealed the Arbitrator’s findings and determination.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:

   “(6)  If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

2. Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

1. Mr Collins, solicitor, who also appeared for Mr and Mrs Alexander at the arbitration, has prepared the grounds of appeal and submissions in support. For the avoidance of doubt, I will set out the grounds of appeal exactly as they have been presented by Mr Collins:

   “1.The Arbitrator erred in finding the Applicants death did not arise within the meaning of Section 10 (1) Workers Compensation Act, 1987.

   2.The Arbitrator erred in not finding the journey resulting in death a journey within the meaning of Section 10 (3) (b) being a ‘periodic journey’ between ‘place of employment, and any educational institution which the worker … Is expected … to attend’.

   3.In the alternative the Arbitrator erred in not finding a ‘real and substantial connection’ in relation to the journey only and when considering the journey as journey from place of employment to place of abode.

   4.The Arbitrator found an ‘expectation’ in the Employer for the attendance at Graduation as required by Section 10 (3) (b) but then disallowed the claim based on consideration of Section 10 (3A) not relevant to Section 10 (3) (b) in these circumstances. If the journey considered a journey from place of employment t an educational institution.

   5.The Arbitrator erred in finding the journey for private purposes and therefore not compensable.” (reproduced as per original)

2. Having set out the above “grounds”, Mr Collins then made submissions under only two headings. They were: “Section 10(3)(b) Argument” and “Section 10(3A) Argument”. I will deal with his submissions under these headings.

SECTION 10(3)(b) ARGUMENT

The legislation

1. Section 10(3)(b) provides:

   “(3)   The journeys to which this section applies are as follows:

   (a)     …,

   (b)the daily or other periodic journeys between the worker’s place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to attend, …”

2. Section 10(6) defines educational institution to mean:

   “(a)   a trade, technical or other training school, or

   (b)a university or other college or school providing secondary or tertiary education.”

Submissions

1. Mr Collins said the evidence is clear that the deceased died on a journey between his place of work and an educational institution and the Arbitrator properly found that there was an “expectation” that the deceased attend the graduation ceremony and hence embark on the journey. The “remaining issue” was whether the journey was a “daily or periodic journey”.

2. As it was not suggested that it was a “daily” journey, the issue was whether the journey was a “periodic” journey. Mr Collins argued that the deceased had been a student at Charles Sturt University and completed his degree at that university. The graduation day was “another (and final) journey for that process”.

3. Mr Collins said the Arbitrator wrongly considered the journey to be a “once off” journey. He submitted that the journey “should be seen in the context of its purpose which was the completion of the Degree process”. It was not therefore a “once off” “but [was] indeed the last journey of the many journeys to complete his Degree”. It was a journey within the meaning of Madden v The Council of the Shire of Rylstone [1951] WCR 123 (Madden), being a “recurring journey”.

Discussion and findings

1. Mr Collins’ submissions are plainly wrong and cannot be accepted.

2. The Arbitrator did not find that the deceased was “expected” to attend the graduation ceremony, such that the requirements of s 10(3)(b) were satisfied. He found, at [60]:

   “60.I accept that to the extent that leave was granted to [the deceased] for the particular purpose it follows that the [respondent] had given its approval for his attendance at the educational institute and also had an understanding or ‘expectation’ that [the deceased] would attend the educational institute for that purpose. I accept that at the time [the deceased] left the school after lunch the employer had an understanding, or an ‘awareness’ that [the deceased] was travelling for the purpose of attending an educational institution. However I am not satisfied that this level of understanding or awareness, to the extent that it is synonymous with an ‘expectation’ is of a nature, or of sufficient relevance, to amount to an incident of [the deceased’s] employment, so as to attract the operation of the section.”

3. The Arbitrator added (at [63]) that the respondent may have held a reasonable “expectation [that the deceased] would utilise his leave to attend his graduation ceremony”. This finding was based on the evidence from Ms Wait that the deceased had told her he intended going to the ceremony and that she suggested he take the day off (on special leave) to attend. However, the Arbitrator’s reasons make it abundantly clear that he did not accept that the respondent “expected” the deceased to attend as an incidence of his employment. 

4. This follows from the Arbitrator’s further findings that the graduation ceremony related to course work carried out and completed prior to the deceased starting work with the respondent, and independent of his employment with the respondent. These findings were consistent with the evidence and were correct. In these circumstances, the Arbitrator was not satisfied that the deceased’s attendance at the ceremony “was in a material way connected with his employment or was an incident of his employment in the sense that such attendance was ‘expected’ as contemplated by the subsection” ([63]). That finding was open on the evidence and involved no error.

5. The submission that the deceased’s attendance at the graduation ceremony was “another (and final) journey for” the process for the completion of his degree at Charles Sturt University is untenable. There is no evidence of any attendances by the deceased at the university while he worked for the respondent. Why would he have done so when, by that time, he had already completed his degree?

6. The submission that the journey on 18 December 2013 was the “last journey of the many journeys to complete his Degree” is unsupported by any evidence and is unsustainable. Attendance at a graduation ceremony is plainly not a step in the “completion of the [d]egree process”. A graduation ceremony is merely a ceremony at which the degree is presented. Attendance at that ceremony is not a prerequisite for the completion of the course. The university could have sent the degree to the deceased in the post. It follows that the Arbitrator’s conclusion that the relevant journey was a “once off” was clearly correct.

7. The submission that the journey was “within the meaning” of Madden makes no sense and is unsupported by any specific page reference in that decision, or any other decision. Nothing in Madden supports Mr Collins’ argument. In that case, the worker was an electrical mechanic who lived and worked in Rylstone. The employer engaged him in October 1948, subject to him qualifying by passing two trade examinations, the first of which was held at Rylstone and the second in Orange. The employer promised to assist the worker with his studies.

8. After a continuation of his studies, all of which were private, the worker travelled to Orange on 29 September 1949 for his second examination. On the return journey, he was injured in an accident at Bathurst. Dignam J held that there was no periodicity in the journey and that it did not come within s 7(1)(c)(ii) of the Workers Compensation Act 1926, which was in similar terms to s 10(3)(b) of the 1987 Act.

9. His Honour noted that Hall v Estate of J. R. Hughes [1948] WCR 97 held that a single journey may be a daily or periodic journey for the purposes of the statute if it is a “journey of the character which workers, generally either daily or periodically, undertake for the purpose of going to or from employment” (125). In the case before him, his Honour said that the test returned to the question of whether the journey was “a periodic journey other than a daily journey, that is to say, whether it was in the class of journey performed at weekly, bi-weekly, fortnightly, monthly, quarterly or yearly, or similar regular or recurring intervals”. The worker was not on such a journey at the time of his accident and the claim failed.

1. The Arbitrator referred to Madden, and the authorities discussed in it, and concluded, at [54]:

   “54.There was no evidence to indicate that apart from the subject journey, that during the course of [the deceased’s] employment with the respondent, there was any other travel or journey undertaken or contemplated to be undertaken to the educational institute. I am not satisfied the particular journey contains the necessary elements to be characterised as either a daily or other periodic journey and it follows therefore that s 3 (b) [sic, s 10(3)(b)] has no further application towards the facts of this matter.”

2. This conclusion was correct and I agree with it. The journey was not a periodic journey.

SECTION 10(3A) ARGUMENT

The legislation

1. Section 10(3)(a) provides:

   “(3)   The journeys to which this section applies are as follows:

   (a)the daily or other periodic journeys between the worker’s place of abode and place of employment, …”

2. Section 10(3A) provides:

   “(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.”

3. Section 10(6) defines place of abode to include:

   “(a)   the place where the worker has spent the night preceding a journey and from which the worker is journeying, and

   (b)     the place to which the worker is journeying with the intention of there spending the night following a journey.”

Submissions

1. Mr Collins accepted that if the deceased was on a journey from his place of employment to his place of abode, it was necessary to establish “a real and substantial connection between the employment and the accident or incident out of which the personal injury arose” (s 10(3A)) before the claim could succeed.

2. In support of his contention that there is a “real and substantial connection” in the present case, Mr Collins pointed to the fact that the deceased was a school teacher employed by the respondent and the respondent, through the principal, had encouraged him to attend the graduation ceremony. He submitted that common sense would “note that the employer is in the business of education and that it has by its encouragement and policy of paid leave for graduations an emphasis on Education and recognition of educational achievement”.

3. Mr Collins argued that, but for the direction of the principal, the deceased “would not in all probability of embarked on the journey that resulted in his death”. He said that the purpose of the journey “was incident [sic, incidental] to the purposes of the employer and in line with its policies”.

4. Mr Collins’ next submission is difficult to follow. For the avoidance of doubt, I will set it out in full:

   “15. In this case the issues are different and distinguishable from Wickenden’s case which was a case on its own facts. It is not [sic] relevant to the argument in this case that the journey itself was for a purpose promoted, encouraged and incident to the purposes of the employer. ‘But for’ the recommendation of the employer to attend the graduation a reasonable inference would be that [the deceased] would not have embarked on the journey resulting in his death.

   16.The [deceased] therefore would satisfy the requirements of Section 10(3A) of ‘real and substantial connection’.” (emphasis included in original) (the reference to Wickenden was a reference to Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (Wickenden)).

5. For these reasons, Mr Collins contended that the Arbitrator erred in not finding a real and substantial connection.

Discussion and findings

1. Mr Collins’ submissions, which have essentially ignored the evidence and the Arbitrator’s reasons, cannot be accepted.

2. The Arbitrator accepted that Ms Wait encouraged the deceased to attend the graduation ceremony. However, on its own, that did not satisfy s 10(3A). He said that the authorities, which he reviewed in detail, established that s 10(3A) may, but does not necessarily, require a causal connection between the employment and the accident and that “connection” involves a wider concept than causation (Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72 at [114]). He also noted that s 10(3A) requires a real and substantial connection between the employment and the accident or incident out of which the injury arose.

3. He concluded that there was “insufficient evidence concerning what employment factors caused, or had a connection with, the cause of the motor vehicle accident” ([47]) for him to be satisfied that the accident’s connection with the deceased’s employment was real and substantial. He added that there was a lack of direct or inferential evidence to indicate how or to what extent employment related factors played a role or contributed to the accident.

4. Other than the reference to the fact that Ms Wait encouraged the deceased to attend the graduation ceremony, Mr Collins has referred to no evidence or authorities that establish that the Arbitrator erred in his approach or conclusion. The fact that the respondent is in the business of education is, in the circumstances of this case, irrelevant to the issues in s 10(3A). There are no factors that establish any, let alone a substantial, connection between the accident and the employment.

5. The submission that, but for the direction of the principal, the deceased “would not in all probability” have embarked on the journey is based on a false premise. It has wrongly assumed that Ms Wait “directed” the deceased to attend the graduation ceremony. While there is some support for that in the hearsay evidence from Mr Alexander (not referred to by Mr Collins) about a conversation the deceased allegedly had with Ms Wait, Ms Wait firmly denied that she directed the deceased to attend.

6. Ms Wait’s evidence was that she enquired if the deceased would be attending the graduation ceremony and he said he “was intending to go”. She then suggested that he take the day off prior to the ceremony, noting that the respondent provides special leave so that staff can attend ceremonies (without having to take recreation or unpaid leave). She added that “[a]t no time did I insist [the deceased] attend the graduation ceremony in Bathurst, as this is a personal choice for staff, if they wish to attend”. In the end, the deceased only took half a day off on 18 December 2013.

7. The Arbitrator did not expressly resolve this conflict in the evidence (I note that the parties’ submissions did not invite him to do so). However, it is clear from a fair reading of his reasons overall that he did not accept that Ms Wait directed or required the deceased to attend the graduation ceremony. He said that notwithstanding the respondent’s “approval, support or encouragement in respect of [the deceased’s] travel to Bathurst to attend the graduation ceremony” ([48]), he was not satisfied that such “conduct, attitude, or assistance on the part of the employer [was] sufficient to ground the finding that it amounted to a ‘real and substantial connection’ with the accident or incident out of which the personal injury arose” (see also the discussion at [31]–[32] above dealing with s 10(3)(b)). That conclusion was open on the evidence and disclosed no error.

8. The test in s 10(3A) is whether there is a real and substantial connection between the employment and the accident or incident out of which the personal injury (or death) arose. That test is always fact sensitive. On the evidence tendered, the Arbitrator was not satisfied that such a connection had been established. His conclusion was clearly open on the evidence and disclosed no error.

9. Mr Collins’ last submission (see [47] above) raises three points. First, that the issues in the present case are different and distinguishable from Wickenden. Second, that it is relevant that the “journey itself was for a purpose promoted, encouraged and incident[al] to the purposes of the employer”. (I note that the submission, as typed, said that these matters were “not relevant”. I have read the submission, in favour of Mr and Mrs Alexander, as if Mr Collins submitted that these matters were relevant.) Last, the “but for” point. The “but for” point was a repeat of a submission previously made and has been dealt with at [53] above.

10. Mr Collins did not explain why the issues in the present case are relevantly distinguishable from Wickenden. In that case, the worker’s usual hours were from 9.30 am until 2.30 pm. On the day of the accident, and for a short period prior to that day, the employer required the worker to work from 7.30 am until 5.30 pm. That meant that her journey home, which she would normally have completed in daylight, would be in completed in darkness. On that journey on her motorbike, on a narrow country road of “fairly poor quality”, an oncoming car swerved, to avoid cattle on the road, and struck the worker.

11. The worker succeeded because her employment required her to work later than normal and required her to ride home in darkness, which exposed her to a risk of injury due to the darkness. Thus, in the circumstances, the connection between the employment and the accident was held to be real and substantial.

12. I accept that, as Mr Collins submitted, Wickenden turned on its own facts. However, it provided an illustration of the circumstances where s 10(3A) was satisfied. Mr Collins has not explained how distinguishing Wickenden advances his clients’ position on appeal and I have not found his submission to be of any assistance in establishing relevant error by the Arbitrator.

13. The second point appears to be that, in the present case, the journey itself was for a purpose promoted and encouraged by the respondent, and incidental to the purposes of the respondent. I have already dealt with the submission that the respondent encouraged the deceased to attend the graduation ceremony (see [50]–[52] above) and will not repeat my comments on that point.  

14. The submission that the journey was “promoted” by the respondent, and was incidental to the purposes of the respondent, is untenable. It was of no concern to the respondent if the deceased did not attend his graduation ceremony. The deceased would have received his degree whether or not he attended. As Ms Wait said, it was a personal choice for staff whether they attended. Thus, it is not accurate to say that the journey was “promoted” by the respondent.

15. The respondent’s concern was that the deceased was properly qualified to be a teacher. It would therefore have “required” and “expected” him to complete the necessary studies to be properly qualified. He had completed those studies prior to starting work with the respondent. How it was incidental to the purposes of the respondent that the deceased attend his graduation ceremony was not explained in the submissions or the evidence. Nothing in this further submission has come close to establishing relevant error by the Arbitrator.

OTHER MATTERS

1. For completeness, I should also comment on the fourth and fifth grounds of appeal relied on by Mr Collins (see [23] above), though Mr Collins made no submissions in support of them. They are both misconceived and without substance. Dealing with the fourth ground, the Arbitrator did not, with respect to the claim under s 10(3)(b), disallow that claim because of s 10(3A). He rejected that claim because, as explained earlier in this decision, the journey was a “once off”, and therefore not a “periodic” journey, and because he was not satisfied that the respondent had “expected” the deceased to attend the graduation ceremony. The Arbitrator expressly noted the parties’ agreement that s 10(3A) did not apply to s 10(3)(b) (see [13] above).

2. The fifth ground of appeal is without merit. The Arbitrator did not find that the journey was for “private purposes”, and therefore not compensable, though it would have been open to him to do so. He found that the journey did not satisfy the provisions in either paragraph (a) or (b) of s 10(3). I have analysed his reasons above and will not repeat that analysis. For the reasons previously explained, the Arbitrator’s conclusions involved no error.

3. Last, to be consistent with Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 and Pt 1 of Sch 1 of the Government Sector Employment Act 2013 (NSW), the name of the respondent has been amended to be Secretary, Department of Education and Communities.

CONCLUSION

1. Mr Collins has failed to establish that the Arbitrator’s decision is affected by any relevant error and the appeal is unsuccessful.

DECISION

1. The respondent’s name is amended to be Secretary, Department of Education and Communities.

2. The Arbitrator’s determination of 2 April 2015 is confirmed.

Bill Roche
Deputy President

7 July 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE