Philmac Pty Ltd v Stringer No. Scgrg-97-991 Judgment No. S6687

[1998] SASC 6687

PHILMAC PTY LTD v STRINGER

Full Court:  Doyle CJ, Millhouse and Nyland JJ

DOYLE CJ

This is an appeal against a decision by the Workers’ Compensation Appeal Tribunal (“the Tribunal”). By s100(3) of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) the appeal is limited to a question of law.

In my opinion the appellant has not identified any error of law made by the Tribunal.  Indeed, I doubt whether a question of law arises at all.  I would dismiss the appeal.  My reasons for so concluding are as follows.

It is not now in dispute that the worker has suffered from a partial incapacity for work at all relevant times. That incapacity arose from a compensable disability suffered on 26 August 1994.  The disability was an injury to the worker’s back.  The result of the injury was that the worker was able to perform only certain types of the work that she had previously performed.  The worker returned to work on 29 August 1994.  The employer provided work that was within the limitations that the disability imposed upon  the worker, and the worker performed that work.

But the worker resigned from her employment on 29 September 1994.  That followed a meeting between the worker and two other workers, each of whom appears to have occupied a supervisory position in relation to the worker.

The issue before the Tribunal, as it was before the Review Officer, was whether the worker was entitled to weekly payments in respect of her disability. The worker being partially incapacitated for work, her entitlement was to receive payments equal to the difference between her “notional weekly earnings” and earnings that she “could earn in suitable employment”: see s35(1)(a) of the Act. It is relevant to mention that her partial incapacity for work is to be treated as total incapacity unless it is established “that suitable employment is reasonably available to the worker”: s35(2)(b). There was no dispute before us that in deciding upon the availability of suitable employment, the Tribunal was entitled to have regard to more than the task assigned to the worker. As the High Court said in R J Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665, at 669-670, the performance of a contract of service involves the co-operation of both employer and employee. When considering the work offered by an employer to a worker who is partially incapacitated for work, it is appropriate to take account of the conditions under which the worker is expected to work. There can be situations in which a worker is offered work within the physical capabilities of the worker, but under circumstances such that it cannot be said that the work is suitable employment. An example of this is a situation in which there is a real risk of a worker suddenly confronting a task beyond the worker’s physical limitations, in circumstances such that there is the risk of the worker instinctively performing the task and suffering a further injury. Another example, more pertinent to the present case, is of a worker who is offered work which is within the worker’s physical capabilities but is to be performed in an environment in which other workers are hostile to the worker or in which the worker’s supervisors criticise the worker for not performing all of the functions that the worker ordinarily performed. Although this was referred to by the Tribunal as an issue of mutuality, it is sufficient to treat it as an aspect of the availability of suitable employment: cf Kelvinator v Jezior (1988) 49 SASR 592 in particular at 598 Cox J and WorkCover Corporation v James (1992) 57 SASR 365 in particular at 394 Zelling AJ.

In the present case the dispute between the worker and the employer revolved around the circumstances under which the worker resigned from her employment, and the manner in which she had been treated while she was performing restricted duties.  As to that, the Review Officer found (reasons p12):

“I accept her evidence that she left because she received no support in rehabilitation, no support from Sister MacDonald-Taylor, and no support from the team management.  I find that on the whole the worker was left to create her own rehabilitation and to select her own suitable duties.  I find there was no breach of mutuality on the worker’s part and she was always ready, willing and able to perform the suitable work.

I find she terminated her services because of the circumstances she was confronted with in the workplace. Some of those were perceived threats, others were real threats to her.  I further find that the worker remained partially incapacitated after she left the services of Philmac, and that the partial incapacity was a direct consequence of her compensable disability.”

The Review Officer went on to find (at 657) that the worker:

“... was always ready, willing and able to work on suitable duties, but felt she had to resign because of circumstances within the workplace.”

The Review Officer found that the worker was entitled to weekly payments on the basis of partial incapacity deemed to be total.

The employer appealed to the Tribunal.  After reviewing the evidence and the findings by the Review Officer, the Tribunal dismissed the appeal.  The Deputy President referred to the fact that the work offered had been within the worker’s limitations, and to the fact that in some respects the worker’s evidence was not accepted.  The Deputy President then said (reasons p4):

“It is not determinative that the worker might have been able to perform the work as such exclusive of the environment. The determinative aspect was the failure of the employer to provide the requisite co-operation or mutuality.”

The Deputy President then went on to say (reasons p5):

“As is clear from the above, the Review Officer who heard and saw the people involved in the resignation concluded lack of mutuality on the employer’s part, at least not on the part of the employee.”

As to the findings by the Review Officer, the Tribunal reached these conclusions (reasons p6):

“He had evidence to find a hostile atmosphere towards injured workers and poor management of this particular case ... the assistance provided to the worker in the circumstances fell far below what not only could have been done but also what ought to have been expected in the circumstances....”

A number of complaints were made.  One was that the findings by the Review Officer, and to a lesser extent the findings by the Tribunal, were insufficiently specific when they found that the employer had poorly managed the provision of work to the worker.  It would have been better if each of them had made a clear finding as to the deficiencies that caused them to conclude that suitable employment was not made available to the worker.  But, in my opinion, a lack of detail does not give rise to an error of law.  It is quite clear that the Review Officer and the Deputy President were satisfied that the worker was left in a state of some uncertainty about the approach to be taken to her rehabilitation, and it is quite clear that each of them were satisfied that there was some hostility on the part of other workers towards the worker. I do not consider that, in this respect, any error of law appears from the reasons of the Tribunal.  It seemed to me, at bottom, that the complaint was really with the findings made.  But those findings are findings on a question of fact, and do not involve any question of law.  There is no indication that the Tribunal erred as a matter of law in its approach to the relevant issue.

The other main complaint was that the finding in favour of the worker about the suitability of the employment offered rested, in part at least, upon the worker’s perception of the situation, as distinct from the objective reality.  Particular emphasis was placed upon the reference by the Review Officer to “perceived threats”, which expression appears in the passage from the reasons of the Review Officer set out above.  There is some force in that criticism, although I am inclined to think that the Review Officer rested his decision upon findings of objective fact.  But, in any event, it is clear that the Tribunal did so.  I refer to the concluding findings of the Tribunal that are set out above.  They are findings that there was in fact a hostile atmosphere and that the worker was not given the assistance that she should have been given.  Those findings do not rest upon a perception on the part of the worker that might not reflect the actual facts.  Moreover, they are findings of fact and they are findings which were open to the Tribunal because there was evidence to support them.

Once again, to some extent the complaint was really about the findings made. But, once one concludes that there was evidence upon which those findings could be made, this Court has no further part to play in relation to those findings of fact. 

Criticism was also made of the Tribunal’s finding, also set out above, that there was “at least” no lack of mutuality on the part of the employee.  I agree that if that finding stood alone, error would be disclosed.  The question was not whether the employer had proved that the worker had not behaved reasonably.  The issue was whether the worker had proved that suitable employment was not made available to her. The finding that the worker had not behaved unreasonably, or had not failed to co-operate with the employer, would not itself be a sufficient finding in favour of the worker.  But the finding in question does not stand alone.  In context, it appears to me to be quite consistent with the Tribunal’s ultimate conclusion that I have set out above.

In summary, despite a lack of precision in the finding that the employment offered was not suitable employment because of the environment in which it was offered, and because of the arrangements under which the worker was to work, there is no error of law in the approach taken by the Tribunal to the issues before it.  The findings that the Tribunal made are findings which were open to it upon the evidence before it.  For those reasons there is, in my opinion, no error of law disclosed.

The appeal should be dismissed.

MILLHOUSE J

I agree.

NYLAND J

I agree that the appeal should be dismissed for the reasons expressed by the Chief Justice.