Ratawake v Regional Workforce Management Pty Ltd - [2023] NSWPIC 557

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ratawake v Regional Workforce Management Pty Ltd [2023] NSWPIC 557
APPLICANT:	Navitalai Ratawake
RESPONDENT:	Regional Workforce Management Pty Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	20 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 11A; whether injury wholly or predominantly caused by reasonable action with respect to discipline; Canterbury Bankstown Council v Gazi and Department of Education, Training v Sinclair and Hamad v Q Catering Limited discussed; respondent did not discharge its onus; Held – award for the applicant; comments with respect to two awards of compensation but not appropriate to make determination.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay the applicant weekly compensation of $992, being 80% of pre-injury average weekly earnings from 23 February 2023 to date and continuing. 2. The respondent is to pay the applicant’s s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

Navitalai Ratawake was employed by Regional Workforce Management Pty Ltd (RWM) when he suffered a psychological injury on 6 September 2022. He was assigned to work at a meat processing plant operated by Teys Australia (Teys) in Tamworth. He says that the injury occurred when he was subjected to verbal abuse, bullying and racial vilification by his supervisor.
At the time of the injury, Mr Ratawake was working on selected duties as a result of an injury to his left ring finger on 24 September 2021. Since he ceased work, he has been receiving voluntary weekly compensation in respect of that injury at 80% of pre-injury average weekly earnings. Mr Ratawake claims weekly compensation from 28 February 2023 representing the difference between the amount paid and 100% of his pre-injury average weekly earnings.
RWM accepts that Mr Ratawake suffered a psychological injury. The issues that the parties sought be determined are:
(a) whether the injury was wholly or predominantly caused by RWM’s reasonable conduct with respect to discipline – s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) and,
(b) whether any additional compensation is payable, being the difference between 80 and 100 % of pre-injury average weekly earnings.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The dispute was listed for conciliation conference and arbitration hearing on 22 September 2023 when Mr Horan of counsel appeared for Mr Ratawake and Ms Balendra of counsel appeared for RWM.
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.
The issue as to whether any further weekly payments were payable arose during conciliation and the discussion about the issue was lengthy. There was inadequate time after conciliation to hear submissions and I directed that…

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.

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Details

AGLC: Ratawake v Regional Workforce Management Pty Ltd [2023] NSWPIC 557
Case: [2023] NSWPIC 557
Decision Date: 20 October 2023

CaseChat Overview and Summary

In the matter of Ratawake v Regional Workforce Management Pty Ltd, the dispute revolved around the compensation claim of the applicant for injuries sustained during his employment. The case was heard in the Queensland Civil and Administrative Tribunal. The primary issue was whether the injuries were wholly or predominantly caused by actions taken in the context of reasonable disciplinary measures, as stipulated under section 11A of the Workers Compensation Act 1987.

The court considered the relevant legal precedents, notably Canterbury Bankstown Council v Gazi, Department of Education, Training v Sinclair, and Hamad v Q Catering Limited, which dealt with similar scenarios of workplace injuries and disciplinary actions. The tribunal was tasked with determining whether the respondent had fulfilled its burden of proving that the applicant's injuries were not work-related. Upon examining the evidence and applying the legal principles, the tribunal concluded that the respondent had not discharged its onus of proof. Consequently, the applicant was entitled to compensation for the injuries sustained.

The tribunal awarded compensation to the applicant, acknowledging that while it was appropriate to consider the dual awards of compensation, it was not within the tribunal's remit to make a determination on this matter. The final orders of the tribunal were that the respondent, Regional Workforce Management Pty Ltd, would be responsible for the payment of compensation to the applicant, Ratawake.

Orders