Pemberton v Woolstar Pty Ltd - [2024] NSWPIC 241

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pemberton v Woolstar Pty Ltd [2024] NSWPIC 241
APPLICANT:	Lee Pemberton
RESPONDENT:	Woolstar Pty Ltd
MEMBER:	Lea Drake
DATE OF DECISION:	9 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant’s injury and resultant incapacity was found to be as a result of his failure to follow a reasonable management direction; Held – the respondent’s 11A defence was upheld.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has established a defence pursuant to s 11A (1) of the Workers Compensation Act 1987. 2. Any injury and incapacity suffered by the applicant was wholly caused by the applicant’s failure to follow the respondent’s reasonable action with respect to discipline and dismissal, being a direction that he follow the respondent’s policy in relation to COVID-19 vaccinations. The Commission orders: 3. There will be an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Lee Pemberton (the applicant) was employed by Woolstar Pty Ltd (the respondent) from 2006 in a variety of roles. His employment was terminated on 8 April 2022 for failure to follow the respondent’s reasonable action with respect to discipline and dismissal, being a direction that he follow the respondent’s policy in relation to COVID-19 vaccinations.

MATTERS IN DISPUTE

The issue in dispute is whether the respondent has established a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). Is the condition suffered by the applicant wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal? The respondent relies on reasonable management action with respect to discipline and dismissal.

PROCEEDINGS BEFORE THE PERSONAL INJURY COMMISSION

Mr John Dodd of counsel, instructed by Mr McCabe of McCabe Partners Lawyers appeared for the applicant. Mr Brendan Jones of counsel, instructed by Ms Dunn of BBW Lawyers, appeared for the respondent.
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.

RELEVANT LEGISLATIVE PROVISIONS

Section 4 and s 11A of 1987 Act are as follows:
“S.4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
means personal injury arising out of or in the course of employment,
includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pemberton v Woolstar Pty Ltd

Details

AGLC: Pemberton v Woolstar Pty Ltd [2024] NSWPIC 241
Case: [2024] NSWPIC 241
Decision Date: 9 May 2024

CaseChat Overview and Summary

In the case of Pemberton v Woolstar Pty Ltd, the applicant sought workers' compensation for an injury sustained during his employment. The respondent, Woolstar Pty Ltd, contested the claim on the basis that the applicant's injury and resultant incapacity were due to his failure to follow a reasonable management direction. The dispute was heard in the relevant workers' compensation tribunal, which was required to determine whether the respondent's defence under section 11A of the Workers Compensation Act 1987 was valid.

The central legal issue before the tribunal was whether the applicant's injury was caused by the failure to follow a reasonable management direction. The tribunal needed to assess the nature of the direction, whether it was reasonable, and if the applicant's failure to comply with it directly led to his injury and incapacity. The applicant argued that the direction was unreasonable and that his injury was unrelated to his failure to follow it, while the respondent maintained that the direction was reasonable and that the applicant's non-compliance was the direct cause of his injury.

The tribunal found that the direction provided by the respondent was reasonable and that the applicant's failure to follow it was the direct cause of his injury and subsequent incapacity. The tribunal concluded that the respondent's defence under section 11A was valid, as the applicant's injury was a result of his failure to adhere to a reasonable management direction. Consequently, the tribunal dismissed the applicant's claim for workers' compensation.

As a result of the tribunal's decision, the respondent's defence was upheld, and the applicant's claim for workers' compensation was dismissed. The tribunal ruled that the injury and incapacity suffered by the applicant were due to his failure to follow a reasonable management direction, and thus, the respondent was not liable for compensation under the Workers Compensation Act 1987.

Orders