New South Wales Fire Brigades v Ferguson
[2005] NSWWCCPD 156
•16 December 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:New South Wales Fire Brigades v Ferguson [2005] NSW WCC PD 156
APPELLANT: New South Wales Fire Brigades
RESPONDENT: David Ferguson
INSURER:NSW Treasury Managed Fund
FILE NUMBER: WCC3041-2004
DATE OF ARBITRATOR’S DECISION: 13 August 2004
DATE OF APPEAL DECISION: 16 December 2005
SUBJECT MATTER OF DECISION: “Course of employment”; injury occurring on a journey home from attendance at workplace on a non-working day to submit an application for change of shift; “substantial contributing factor”; sections 4 and 9A Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: Hicksons Lawyers
Respondent: Steve Masselos & Co
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant to pay the Respondent’s costs of the appeal
BACKGROUND TO THE APPEAL
The New South Wales Fire Brigades (‘the Appellant’ and ‘the Employer’) seek leave to appeal the decision of an arbitrator (‘the Arbitrator’) made 13 August 2004 in favour of Mr David Ferguson (‘the Respondent’ and ‘the Worker’). The Worker is a fire fighter who was injured in a motor vehicle accident on 4 March 2003 while returning to his home from his place of employment, the Liverpool Fire Station. By his application registered 16 February 2004 he sought payment of weekly compensation for total incapacity for the closed period 4 March 2003 to 16 April 2003 and a general order for payment of medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator made an award in his favour.
There is no dispute that the Worker was not rostered to attend work on 4 March 2003. He had completed a night shift immediately prior to Tuesday 4 March 2003 and was off duty until the following Saturday. The Worker’s evidence was that on Tuesday 4 March 2003 he rang a colleague at the Fire Station and arranged with him that the colleague would work for him the following Saturday, being the Worker’s next rostered day at work. The Employer requires that where shifts are to be changed or part changed notice must be given in writing at least 24 hours in advance. The rostered officer and the relieving officer must sign the application and it must be approved by the rostered officer’s supervisor. There is no dispute that the Worker attended the Fire Station on 4 March 2003 to sign the application form and submit it to his supervisor.
The Worker did not base his case on the journey provisions (section 10) of the 1987 Act. He asserted that having regard to the purpose of his visit to the Fire Station that he was injured “in the course of employment” within section 4 of the 1987 Act. The Employer raised various defences in the Reply, but at the arbitration relied on two defences only- first, that section 10 did not apply because the journey on which the Worker was injured was not a “daily or other periodic journey” between his place of employment and home (this was conceded), and, secondly, that the injury did not occur “in the course of employment”. The Arbitrator found that this attendance by the Worker at his place of employment, to sign and submit a change of shift form, was incidental to his employment although he was not working that day, and so was “in the course of employment”. He relied on a number of authorities to reach this conclusion, including a decision of the Commission on appeal from an arbitrator, Chubb Security Australia Pty Ltd v Annette Treverrow [2003] NSW WCC PD 17. The Arbitrator also found that the Worker’s employment was a “substantial contributing factor” to the injury.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 13 August 2004 and issued on 16 August 2004, records the Arbitrator’s orders as follows:
That the Respondent pay the Applicant weekly compensation at the rate of $889.22 for the period of 4 March 2003-16 April 2003.
That the Respondent pay the Applicant’s section 60 expenses on production of accounts or receipts.
That the Respondent pay the Applicant’s costs as agreed or assessed.
The relevant portion of the Arbitrator’s reasoning is contained in paragraph 26 of his Reasons. He said in relation to the facts of the case:
“In this instance, the Applicant worker was attending the Fire Station in order to fulfil the administrative requirements necessary to change part of his rostered shift under the New South Wales Fire Brigade Standing Orders, Order 1997/21 by signing forms prepared by his supervisor….As this protocol is put in place by the NSW Fire Brigade, the act of fulfilling this requirement is logically incidental to the Applicant worker’s employment.”
ISSUES IN DISPUTE
The Appellant submits that the Arbitrator erred in his conclusion that the injury occurred “in the course of employment” because the attendance to make application to change his roster was not reasonably incidental to the performance of his duties for the following reasons:
(1)There was no evidence that the conditions for the grant of such an application were satisfied (paragraph 13(b) of the Appellant’s submissions dated 13 September 2004).
(2)The application did not warrant a special attendance at the place of employment. The submissions state: “The employer could have a reasonable expectation that any such applications would be made at a time when the worker was otherwise in attendance at the place of employment. If the worker elected to do otherwise, that would not be sufficient to render the attendance “incidental to the performance of his duties of employment”. To the contrary, the worker was acting purely in his own interests at the time.” (paragraph 13(c)).
(3)Neither the application for change of shift nor the Worker’s attendance for that purpose was encouraged by the Employer (paragraph 13(d)). Specifically, there was no evidence that the Employer had “expressly or impliedly induced or encouraged” the Worker to attend, as required by Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 (‘Hatzimanolis’) (paragraph 13(e)).
(4)There was no evidence or insufficient evidence to establish that the Worker had been authorised to attend to submit the application, or that the application was “expected, required or authorised in order to carry out his actual duties” (as required by Henderson v Commissioner of Railways (1937) 58 CLR 281 (‘Henderson’) (paragraphs 13(d) and (e)).
The Appellant further submits that for the same reasons the Arbitrator erred in finding that employment was a “substantial contributing factor” to the injury.
The Respondent opposes the appeal. His submissions rely principally on Chubb Security, and assert that the facts are not distinguishable, save that, “if anything, the present case shows a stronger employment connection to the worker’s attendance upon his place of work than did Ms Treverrow’s” because of the requirements of Standing Order 1997/21 (incorrectly referred to in the Respondent’s submissions as 1997/2) (paragraph 8 of the submissions).
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act 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.”
Both parties agree that the appeal may be heard on the papers. I consider that I have sufficient information to deal with the appeal in that way, and that that is the appropriate course.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides a monetary threshold for leave to appeal and a time limit for appeal. There is no dispute that the amount in question meets the monetary threshold. In relation to time to appeal, section 352(4) provides that the appeal must be made within 28 days after “the making of the decision appealed against”. Rule 77(2) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that this time runs from the issuing of the Certificate of Determination, here 16 August 2004. The Appellant filed a document entitled “Respondent’s Submissions for Appeal Against Decision of an Arbitrator” on the 28th day after this date, being 13 September 2004. The document does not comply with the requirements of Rule 77 and so, technically, the appeal was not filed in time. The Respondent makes no objection on this basis, however, and as the substance of the Appellant’s intentions and arguments was made clear within time I extend time pursuant to Rule 77(8) to the date on which the properly completed appeal form was submitted. I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
The relevant material before me consists of the following:
(1)Application and Reply and documents attached thereto.
(2)Transcript of the arbitration.
(3)Submissions by the Appellant on the appeal filed 13 September 2004, completed appeal form, and further submissions as to the threshold questions and time filed 23 September 2004.
(4)Notice of Opposition and submissions by the Respondent filed 15 October 2004.
DISCUSSION AND FINDINGS
To succeed on the appeal the Appellant must demonstrate that the Arbitrator made an error of fact, law or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 and many subsequent decisions). I will deal with the two grounds of appeal in turn.
Section 4 1987 Act: “in the course of employment”
An injury may occur “in the course of (a worker’s) employment” even if the injury does not occur while the worker is actively engaged in work duties, provided he is engaged in an activity that is “incidental” to his work. There is a long line of authority to this effect, which is referred to in the principal High Court authorities, Henderson and Hatzimanolis. In Henderson, Dixon J. expressed it thus:
“to be in the course of employment, the acts of the workman must be part of his service to the employer… (but) the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work.”
In Henderson Dixon J. suggested that the test as to whether or not an activity was “incidental” depended on what “the workman is reasonably required, expected or authorised to do in order to carry out his actual duties”. Henderson, a 1937 case, arose out of a fatal injury during an interval in the worker’s work, being at lunchtime. On the facts of that case, the High Court held that the worker was engaged in the course of his employment while crossing a railway line from the place of work to his camp. Hatzimanolis, a 1992 case, also concerned an injury during an interval in work. In that case the worker was also engaged to carry out work in a remote area of Australia, away from his home. He was injured on a weekend but while undertaking an excursion encouraged by his employer. The High Court held that the work extended over the whole period of the worker’s engagement, and so although the injury was on a non-working day it nevertheless occurred in an interval in an overall period of work. In these circumstances the Court held that the injury is “in the course of employment” if the employer has “induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way” (paragraph 16 of the joint decision of Mason C.J., Deane J, Dawson and McHugh J.J.).
The parties agree that these cases set out the relevant tests, and that the Arbitrator correctly referred to them, but the Appellant says the Arbitrator erred in their application to the facts in this case. The first ground advanced is that there was no evidence that any of the conditions on which an application for change of shift may be approved were satisfied. I am not entirely sure to what the Appellant refers by this submission, but, in any event cannot see the significance of whether or not the pre-conditions were satisfied. Whether or not the application would have been accepted is a different question to whether or not attending the place of work to submit it was “incidental” to the Worker’s duties.
The second ground is that the Worker did not need to attend his work place on a non-rostered day to submit the application. Certainly there is nothing in the Standing Order that makes a personal attendance compulsory. However, the Standing Order does require both the rostered officer and the relieving officer to sign the application, and the supervisor to approve it. The Worker gave sworn evidence at the arbitration, which was not contested, that he was not next on duty until the day he was seeking to change his roster, the implication being that in order to give 24 hours notice he had to submit the form prior to his next rostered day. In fact he was asked in his oral evidence in chief “So in order to meet the 24-hour deadline for notice to the station officer, you would have to attend in your own time at the station to sign the form. Is that correct?” The Worker answered “That’s right. Plus, also, the shifts that Scott Auberson (the proposed relieving officer) works, that was the only day I was able to get hold of him as I do not have his personal details, phone number, address.” (Transcript, page 3 lines 13-19) The Worker was not cross examined about this evidence and there was no evidence to the contrary. Given the requirements of both officers to sign, the fact that the form had to be submitted prior to the next rostered day, and the difficulty of contacting the relieving officer other than that day at the workplace there was ample evidence on which the Arbitrator could conclude that attendance at the Fire Station on a non-rostered day to sign the form was incidental to the Worker’s employment because it was “made necessary by the (Worker’s) employment and rules” (Reasons paragraph 26).
The Appellant submits that the Employer did not induce or encourage the application for change of shift or the attendance to submit it as required by Hatzimanolis. Certainly there is no evidence that the Employer induced or encouraged the making of the application for change of shift, as opposed to permitting it on certain conditions. However, for the reasons set out above, I do consider that there was evidence that the Employer induced or encouraged a personal attendance to submit the form in relation to this particular request for change of shift. The requirements of the Standing Order, in particular the notice and that both parties must sign, coupled with working arrangements that entailed a number of days in succession rostered off (presumably as the counter to a number of days in succession rostered on) were sufficient evidence on the basis of which the Arbitrator could conclude that the attendance was “induced or encouraged” by the Employer. In fact, the Arbitrator went further and found that the attendance, in this instance, was “made necessary”. I consider there was evidence on the basis of which he could reach that conclusion. In support of this ground, the Appellant relies on the fact that the Respondent was required to leave the Fire Station prior to signing the form because all the staff on duty were called out to a fire. In my view this is irrelevant. The requirement to secure the Station once all staff on duty leave does not mean that attendance by an employee not working that day, while rostered staff are in attendance, was prohibited.
The Appellant argues that the Worker did not submit any evidence that he had been authorised to attend the workplace. Equally, the Employer did not at the arbitration call any evidence to the effect that the Worker was prohibited from attending on a non-working day. Indeed, the Employer attached no evidence at all to the Reply. The Worker attached to the Application two statements from firefighters on duty at the Station at the time of his attendance, which testify to the fact that when he made his purpose known he was permitted to go to the Station Officer’s office to retrieve the form. In my view, in the absence of any evidence to the contrary, the Arbitrator was entitled to infer that the Worker was permitted to attend the Station on a non-working day to make application for change of shift.
For these reasons I do not consider that the Appellant has established any error by the Arbitrator in his conclusion that attendance at the Fire Station to submit the application for change in shift on a non-working day, which necessarily involved travelling from the Worker’s home there and back, was incidental to his employment, and so the injury occasioned on the journey home was “in the course of employment”.
As the Respondent submits in his Notice of Opposition the Arbitrator’s decision was consistent with, and one might say required by, the decision of the Commission in Treverrow. In that case, the worker attended her employer’s headquarters, which was not her usual place of work, on a non-working day for a purpose related to her employment, being to make a complaint about a fellow worker and to lodge a sick leave form. The Commission on appeal upheld the finding of the arbitrator that the attendance and injury was “in the course of employment”. I accept the submission of the Respondent that in this case there is an even stronger case for the worker, because of the strict requirements as to notice, signature of both officers and approval by a supervisor in the Standing Order.
Section 9A of the 1987 Act: employment must be a “substantial contributing factor” to injury
The Appellant also submits that the Arbitrator erred in finding that the Worker’s employment was a “substantial contributing factor” to the injury within the meaning of section 9A of the 1987 Act. The Appellant does not give any detailed explanation as to the manner in which the Arbitrator erred, save to refer to the same reasons advanced in relation to section 4.
The Arbitrator did not give exhaustive consideration to section 9A in his Reasons, but this was consistent with the manner in which the case was conducted by the Employer. Although the Employer raised section 9A in the Reply, Counsel for the Employer made no submissions on section 9A at the arbitration. The passing reference in the appeal is consistent with this approach. In paragraph 27 of his Reasons the Arbitrator extracted the relevant portion of Mercer v ANZ Banking Group (2000) 20 NSWCCR 70 and found that there was sufficient causal connection between the injury and employment in this case by reason of the work related purpose of the journey during which the injury occurred. I do not consider that any of the matters raised by the Appellant in the appeal establish that he was in error in reaching this conclusion. Significantly, there was no dispute that the only purpose of the journey was to attend the Fire Station to submit the application to change shifts.
This conclusion is supported by the Court of Appeal decision on appeal from Chubb Security (Chubb Security Australia Pty Ltd v Trevarrow (sic) [2004] NSWCA 344). On appeal the employer in that case conceded that the injury the worker suffered occurred in the course of her employment, but submitted that section 9A was not satisfied because, in its submission, the employment only provided the opportunity for her injury, and it was not established that the actual work she performed was a substantial contributing factor (see paragraph 30 of the decision of Santow J.A., with whom Beazley J.A. and Ipp J.A. agreed). The Court of Appeal did not accept this submission. Santow J.A. held that the attendance of the worker in that case at the headquarters of her employer on a non-working day to discuss the terms and conditions of her employment
“falls squarely within the test as set out in Mercer. The activity of making a complaint about a co-worker was, if not directly part of her usual employment activities, certainly part of it in an incidental or ancillary sense. Ms Trevarrow’s employment was an instigating factor (being a characteristic of the conditions in which her work was performed) in her attendance at the Ashfield premises, where she sustained the injury.” (Paragraph 33)
He concluded (paragraph 35) that “the particular finding that Ms Trevarrow’s employment was a substantial contributing factor was entirely appropriate, being well open on the state of the evidence”.
Having regard to this authority I do not consider there is any basis for finding that the Arbitrator was in error in relation to his conclusion that the Worker’s employment was a “substantial contributing factor” to his injury.
DECISION
The Appellant has not established any error in the decision of the Arbitrator. Accordingly, I confirm the decision of the Arbitrator.
COSTS
Costs are in the discretion of the Commission (section 341 of the 1998 Act), subject to section 345 of the 1998 Act. The Appellant has been wholly unsuccessful. I consider the appropriate course is for the Appellant to pay the Respondent’s costs of the appeal.
Robyn Lansdowne
Acting Deputy President 16 December 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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