Nounou v Allstaff Australia Sydney Pty Limited

[2023] NSWPIC 234

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Nounou v Allstaff Australia Sydney Pty Limited [2023] NSWPIC 234
APPLICANT:	Anas Nounou
RESPONDENT:	Allstaff Australia Sydney Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	23 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Weekly compensation; calculation of pre-injury average weekly earnings (PIAWE) and whether a period when the applicant, who was a casual employee, was on unpaid leave within the relevant earnings period should be excluded from calculation of the period for determining his PIAWE; only issue for determination was the amount of the applicant’s PIAWE by reference to whether a certain period should be excluded from the relevant earnings period; Held – clause 8E of the Workers Compensation Regulation 2016 applies; the relevant earning period for the calculation of the applicant’s PIAWE is to be adjusted by excluding each day of the period during which he was on unpaid leave; parties’ agreement for PIAWE was in the sum of $1,643.71 per week; parties ordered to lodge consent orders.
determinations made:	1.     The applicant’s pre-injury average weekly earnings in respect of his injury suffered on 12 September 2022 is $1,643.71 per week.

STATEMENT OF REASONS

BACKGROUND

1. On 12 September 2022, Anas Nounou (the applicant) suffered an agreed injury to his lumbar spine and right hip in the course of his employment with Allstaff Australia Sydney Pty Ltd (the respondent).

2. The applicant brings proceedings for weekly benefits arising from this injury, and the only matter in dispute between the parties relates to the calculation of his pre-injury average weekly earnings (PIAWE).

3. There is no issue the relevant earnings period for the calculation of the applicant’s PIAWE is 12 September 2021 to 11 September 2022, being 52 weeks before the agreed date of injury (the relevant period). There was also no issue the applicant’s gross earnings for the relevant period were $31,230.66.

4. During the relevant period, the applicant was incapacitated due to an earlier injury from 11 October 2021 to 31 March 2022 (a period agreed total 24.43 weeks).

5. On 1 April 2022, the applicant was certified as fit for pre-injury duties and took unpaid leave from 1 April 2022 to 23 April 2022 (a period agreed to total 3.29 weeks). At the hearing, it was agreed between the parties this period would be excluded from the calculation of the applicant’s PIAWE.

6. The applicant then returned to work and continued working during the relevant period from 24 April 2022 until 10 July 2022, before again taking unpaid leave from 11 July 2022 to
   20 August 2022 (a period agreed to total six weeks). It is this period which is the subject of the dispute in these proceedings.

7. The applicant then returned to work and continued working during the relevant period from 21 August 2022 to 12 September 2022 (an agreed period of a further 3.43 weeks).

ISSUES FOR DETERMINATION

1. The parties agree that the only issue remaining in dispute is the calculation of the applicant’s PIAWE, and in particular, whether the period from 11 July 2022 to 20 August of 2022 should be included in that calculation or should be excluded.

2. The respondent contends the six-week period between 11 July 2022 and 20 August 2022 (hereafter referred to as the period in dispute) should form part of the calculations of the applicant’s PIAWE. The applicant submits the period in dispute should be excluded.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. 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.  

2. The parties attended a hearing on 17 May 2023. At the hearing, the applicant was represented by Mr Tanner of counsel instructed by Ms Azer. The respondent was represented by Mr Grant of counsel instructed by Mr Webb.            .

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

   (a)    Application to Resolve a Dispute (the Application) and attached documents;

   (b)    Reply and attached documents;

   (c)    applicant’s Application to Admit Late Documents (AALD) and attached documents dated 28 April 2023, and

   (d)    respondent’s AALD and attached documents dated 19 April 2023.

Oral evidence

1. There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Calculation of the applicant’s PIAWE

1. For the applicant, Mr Tanner submitted this matter was simply one where the provisions of cl 8E(1) of the Workers Compensation Regulation 2016 (the 2016 Regulations) apply. The relevant clause states:

   “8E Adjustment for Unpaid Leave

   (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 (‘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 workday 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.”

2. Mr Tanner submitted that a simple reading of the Statement of Agreed Facts lodged in the proceedings and attached to the Application at page 52 would satisfy the Commission of the applicability of cl 8E. The relevant agreed fact between the parties is number 7, namely “the applicant was also absent from work on unpaid leave during the relevant period from 11 July 2022 to 20 August 2022 (six weeks)”.

3. For the respondent, Mr Grant conceded, quite appropriately, the applicant was on leave in accordance with agreed fact 7. He also conceded that in the period of unpaid leave, the applicant was not paid wages. He nevertheless relied upon paragraph 3 of the statement of Mr Wilford, state manager of the respondent and particularly, paragraph 3, where Mr Wilford stated:

   “3.     As a casual employee, Mr Nounou is paid a higher rate of pay by way of casual loading to compensate him for the inconsistent nature of employment and payment by the hour for entitlements such as annual leave, personal leave and public holidays that permanent employees are entitled to.”

4. I have little difficulty accepting the accuracy of Mr Wilford’s statement; however, it does not obviate the operation of cl 8E of the 2016 Regulation. The respondent having appropriately conceded the applicant was on unpaid leave for a period of not less than seven consecutive days during which he was not paid any income by it, cl 8E of the 2016 Regulation is in my view operable. Nothing in the clause, notwithstanding Mr Wilford’s observations, excludes casual employees from its operation.

5. Mr Grant also relied on written submissions prepared by the respondent’s previous counsel. Those submissions also note the higher rate of pay for casual workers which compensates them for lack of paid leave entitlements. Nevertheless, nothing in those submissions points to any statutory provision or legal authority which excludes casual workers from the operation of cl 8E of the 2016 Regulations.

6. At the hearing, Mr Tanner drew the Commission’s attention to a number of text messages attached to a supplementary statement of the applicant. Those text messages originated from the respondent and dealt with the requirements for lodging leave applications by casual employees. Those submissions were appropriately made on the pre-emptive basis that there would be a challenge to the notion of the applicant being on unpaid leave for the period in dispute.

7. Given Mr Grant’s concession that the applicant was on such unpaid leave during the period in dispute, it is not in my view necessary to make a formal finding in relation to the status of the applicant’s absence from work for that period; however, had I been required to do so, I would have been persuaded on the balance of probabilities the applicant was on unpaid leave during the period in dispute. The respondent’s own communications with him plainly indicate a procedure for the lodging of leave applications even by casual employees in circumstances where they were not going to be paid.

8. Moreover, the applicant’s statement evidence in relation to making a leave application for the period in dispute is not meaningfully contested, and the text messages annexed to his supplementary statement in his AALD together with the blank Application for Leave form which he annexed to his supplementary statement in my view successfully meet and defeat the contention found in paragraph 4 of Mr Wilford’s statement, namely that the applicant as a casual employee was not required to request approval for leave in writing. I reiterate, however, that it was not strictly necessary to make these findings given the contents of the Statement of Agreed Facts and the concession by the respondent in its submissions at the hearing.

9. Having found the period in dispute ought to be excluded from the calculations of the relevant period for determining the applicant’s PIAWE, I note the lack of mathematical disagreement as to how the parties’ respective PIAWE calculations were arrived at. There was no dispute that if the applicant was successful, then his PIAWE would be calculated at the rate of $1,643.71 per week. That figure was not the subject of challenge at the hearing.

10. I therefore find, having excluded the period in dispute from the relevant period in determining the applicant’s PIAWE, that the appropriate PIAWE figure is $1,643.71 per week, and the Commission will accordingly make the finding and orders on page 1 of the Certificate of Determination.