Railcorp v Lam Luu - [2010] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rail Corporation NSW v Lam Luu [2010] NSWWCCPD 44
APPELLANT:		Rail Corporation NSW
RESPONDENT:		Lam Luu
INSURER:		Rail Corporation NSW
FILE NUMBER:		A1-5969/09
ARBITRATOR:	Mr Ross Bell
DATE OF ARBITRATOR’S DECISION:		27 October 2009
DATE OF APPEAL DECISION:		27 April 2010
SUBJECT MATTER OF DECISION:		Leave to appeal; definition of “compensation” and “any monetary benefit”; sections 4 and 352(2) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:		John Peisley & Associates
ORDERS MADE ON APPEAL:		Leave to appeal is refused.
The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

The appellant, Rail Corporation NSW (‘RailCorp’), employed the respondent, Mr Luu, as a duty manager at Regents Park railway station.

On 29 April 2008, Mr Luu was informed that he was to be the subject of a disciplinary investigation into allegations of breaches of the RailCorp Code of Conduct. Four breaches were alleged, occurring between 22 January 2008 and 11 April 2008. The allegations concerned Mr Luu’s alleged inappropriate and offensive behaviour, and failing to carry out his duties in a professional manner.

On 5 August 2008, RailCorp notified Mr Luu that the investigation had been completed, and the result of the investigation was to be forwarded to the Disciplinary Review Panel for consideration.

On 13 October 2008, Mr Luu was notified that the alleged breaches had been substantiated. He was further informed that a preliminary view of the appropriate disciplinary action was dismissal. He was provided with a brief opportunity to provide further submissions.

Whether Mr Luu made any further submissions is not clear. However, on 24 November 2008, he was notified that, due to the serious nature of the breaches, he was to be dismissed effective 17 December 2008.

Mr Luu initiated proceedings in the Australian Industrial Relations Commission concerning his dismissal. The proceedings were resolved on terms, which, inter alia, permitted Mr Luu to resign effective from 17 December 2008.

On a date which is unspecified, but prior to 3 June 2009, Mr Luu made a claim for workers compensation benefits. The evidence does not indicate the nature of the benefits claimed, but it may be inferred that Mr Luu made a claim for weekly compensation.

On 3 June 2009, RailCorp denied the claim. In a notice issued under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), the claim was denied pursuant to section 11A(1), section 33 of the Workers Compensation Act 1987 (‘the 1987 Act’), and section 65(1)(c) of the 1998 Act. Full particulars of the basis for the decision were provided, including the background leading to Mr Luu’s dismissal.

On 28 July 2009, Mr Luu lodged an Application to Resolve a Workplace Injury Management Dispute in the Commission. He alleged that he had suffered a psychological injury as a…

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 Railcorp v Lam Luu

Details

AGLC: Railcorp v Lam Luu [2010] NSWWCCPD 44
Case: [2010] NSWWCCPD 44
Decision Date: 27 April 2010

CaseChat Overview and Summary

Railcorp and Lam Luu were the parties in dispute before the court. Lam Luu, an employee of Railcorp, sought workers' compensation benefits following an injury sustained during the course of employment. The primary issue was whether certain payments made to Lam Luu constituted "compensation" or "any monetary benefit" within the meaning of sections 4 and 352(2) of the Workplace Injury Management and Workers Compensation Act 1998. The court was required to determine whether these payments fell within the scope of the statutory definitions, which would affect the calculation of any further compensation to which Lam Luu might be entitled.

The court examined the statutory definitions of "compensation" and "any monetary benefit" as outlined in the Act. It considered whether the payments in question could be classified as compensation or any monetary benefit under the definitions provided. The court also looked at the legislative intent behind these definitions and the broader context of the Act. In its reasoning, the court held that the payments did not constitute "compensation" or "any monetary benefit" under the relevant sections of the Act. The court found that the payments were not intended to compensate for the injury itself but rather for other purposes not covered by the statutory definitions.

Consequently, the court ruled that Lam Luu's claim for additional compensation was not supported by the statutory definitions. The court concluded that the payments in question did not fall within the scope of the provisions governing compensation and monetary benefits. As a result, leave to appeal was refused, and Lam Luu's claim was dismissed. The court's decision clarified the interpretation of the statutory terms and affirmed the boundaries of the compensation provisions under the Act.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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