Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury)

[2019] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Permission to Appeal in Private)

SACCO v LOCAL GOVERNMENT ASSOCIATION WORKERS COMPENSATION SCHEME (CITY OF SALISBURY)

[2019] SASC 15

Judgment of The Honourable Justice Nicholson

19 February 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - OTHER MATTERS

Application for permission to appeal in private against a decision of the Full Bench of the South Australian Employment Tribunal pursuant to s 68 of the South Australian Employment Tribunal Act 2014 (SA).

Held, permission to appeal granted.

Return to Work Act 2014 (SA), referred to.
Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2017] SAET 130; Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2018] SAET 76, considered.

SACCO v LOCAL GOVERNMENT ASSOCIATION WORKERS COMPENSATION SCHEME (CITY OF SALISBURY)
[2019] SASC 15

Civil: Permission to appeal in private

1. NICHOLSON J: This is an application by a worker for permission to appeal pursuant to section 68 of the South Australian Employment Tribunal Act 2014 (SA) against a judgment of the Full Bench of the South Australian Employment Tribunal.[1]  The Full Bench dismissed an appeal by the worker from two judgments of his Honour Deputy President Judge Hannon in Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) (“Sacco (No 1)”)[2] and Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) (“Sacco (No 3)”).[3]

   [1]    Local Government Association Workers Compensation Scheme (City of Salisbury) v Sacco [2018] SAET 221 (their Honours Deputy President Judges Gilchrist, Farrell and Kelly). 

   [2]    Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2017] SAET 130.

   [3]    Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2018] SAET 76.  There was also another decision by Hannon DPJ, Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2018] SAET 10 (“Sacco (No 2)”).  However, this decision dealt only with questions of costs and for present purposes does not need to be further referred to. 

2. The underlying circumstances of the dispute in Sacco (No 1) were succinctly described by Hannon DPJ as follows.[4]

   On 10 February 2016 the applicant, Mr Sacco, was working as a construction maintenance worker for City of Salisbury when he was directed to return to the depot to undergo a random drug test. On arrival at the depot, he visited the toilet before going to the test room. He said that when leaving the toilet, he slipped and fell, and suffered various injuries. Nevertheless, he proceeded to the test room, without reporting the injury. He then failed a drug test due to detection of a high level of methamphetamine in his system.

   The applicant was subsequently dismissed from his employment for serious and wilful misconduct involving a breach of his employer’s drug policy. The applicant did not contest the dismissal. He was subsequently diagnosed to be suffering from a fracture injury to the left shoulder and injury to the ulnar nerve of the left elbow, which he claimed were a consequence of the alleged fall. He alleged that he suffered periods of total and partial incapacity for work following his dismissal.

   [4]    Sacco v Local Government Association Workers Compensation Scheme (City of Salisbury) [2017] SAET 130 at [1]-[2].

3. After a hearing on the evidence, his Honour found: that the worker had sustained an injury in the course of his employment and described the nature of those injuries; that the injuries resulted in an incapacity for work such that the worker, ordinarily, would be entitled to compensation by way of income support and medical expenses; that the employer had lawfully dismissed the worker; that the worker had breached his obligation of mutuality; and, that the worker had not since restored mutuality.  As a consequence, the worker was found to be disentitled to weekly payments of compensation from the time of the injury. 

4. In Sacco (No 3), Hannon DPJ made findings rejecting the worker’s entitlement to medical expenses under section 33 of the Return to Work Act 2014.

5. As earlier indicated, the Full Bench dismissed the worker’s appeal.[5]  The Full Bench upheld the trial Judge’s reasoning in Sacco (No 1) but appears not to have dealt with the issue raised in Sacco (No 3).  The worker now seeks permission to appeal from the Full Bench decision on the following three grounds.

   1.The Full Bench misconstrued and/or misapplied the provisions of the Return to Work Act, 2014, in particular section 39 of that Act, in deciding that the worker’s dismissal for serious and wilful misconduct disentitled him from receiving weekly payments:-

   1.1     For the period or periods of his total incapacity for work;

   1.2     In respect of and to the extent of his partial incapacity for work.

   2.The Full Bench failed to address the worker’s grounds of appeal challenging the finding of the trial judge that the worker had not restored mutuality, in particular the test applied by the trial judge in making that finding.

   3.The Full Bench failed to address the worker’s appeal against the trial judge’s decision that the period referred to in section 33(20) of the Return to Work Act, 2014 (in respect of the entitlement to medical and like expenses) had ended … .

   [5]    The matter in fact came before the Full Bench by way of a cross-appeal by the worker.  The compensating authority had appealed against an aspect of the judgment in Sacco (No 1) but that appeal was dismissed by the Full Bench.

6. I have reviewed the Full Bench judgment and the judgments of Hannon DPJ together with the summary of argument provided by the worker for the purpose of this application for permission.  I am satisfied that the appeal grounds raise questions of significance to the worker and that he will suffer substantial injustice if the Full Bench decision were to stand in the event that it were to have been incorrectly decided.  I am also satisfied that the issue raised in ground 1 of the appeal is one of general importance in that it raises for consideration the proper construction of relevant provisions of the Return to Work Act 2014 in circumstances where there has been a dismissal for serious and wilful misconduct or a breach of mutuality.  I am further satisfied that each of the three grounds is reasonably arguable. 

7. In the circumstances, the interests of justice require a grant of permission to appeal and I give that permission.