Sarheed v C1 Formwork Group Pty Limited
[2021] NSWPICPD 7
•27 April 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Sarheed v C1 Formwork Group Pty Limited [2021] NSWPICPD 7 |
| APPELLANT: | Faisal Sarheed |
| RESPONDENT: | C1 Formwork Group Pty Limited |
| INSURER: | icare Workers Insurance |
| FILE NUMBER: | A1-3962/20 |
| MEMBER: | Ms C McDonald |
| DATE OF MEMBER’S DECISION: | 15 September 2020 |
| DATE OF APPEAL DECISION: | 27 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – fresh evidence – CHEP Australia Limited v Strickland [2013] NSWCA 351; Jones v Dunkel [1959] HCA 8; 101 CLR 298 considered |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| Kassira Law | |
| Respondent: | |
| Ms L Goodman, counsel | |
| Hicksons Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant is granted leave to make submissions seeking to adduce fresh evidence on appeal. 2. The application by the appellant to adduce fresh evidence is denied. 3. The Arbitrator’s Certificate of Determination dated 15 September 2020 is confirmed. |
INTRODUCTION
Faisal Sarheed (the appellant) suffered injury in the course of his employment with C1 Formwork Group Pty Limited (the respondent) on 17 January 2020. There is no dispute that the respondent is liable to pay compensation to the appellant, nor is there any dispute regarding the appellant’s current incapacity.
The dispute both below and on appeal relates to the calculation of the appellant’s Pre-Injury Average Weekly Earnings (PIAWE).
The appellant was and is receiving compensation based on a PIAWE figure of $1,009.31 as adjusted. The appellant maintained that the correct PIAWE figure was in the sum of $2,475 per week. This was the contest before the Arbitrator which involved an assessment of credit principally of two witnesses: the appellant and the respondent’s principal, Mr Ibrahim. The Arbitrator found that the appellant had failed to make out his case and consequently made no order on the application. It is from that decision that the appellant seeks intervention on appeal.
TRANSITIONAL MATTERS
After the current appeal was lodged, the Workers Compensation Commission was abolished.[1] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act. In view of her appointment at the time of her decision, for convenience, I will refer to the Member in her capacity as an Arbitrator.
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
APPLICATION BY THE APPELLANT TO ADDUCE FRESH EVIDENCE PURSUANT TO SECTION 352(6) OF THE 1998 ACT
The appellant by submission dated 7 December 2020 seeks the leave of the Commission pursuant to s 352(6) of the 1998 Act to adduce fresh evidence on appeal. Section 352(6) relevantly provides as follows:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The application to adduce fresh evidence was made very late in these proceedings. The appellant’s submissions in support of its appeal had been filed and responded to by the respondent. It was not until the appellant’s reply submissions were submitted that the application to adduce fresh evidence was made.
The application to adduce fresh evidence on appeal is opposed by the respondent.
I have decided to deal with this application before addressing the appeal points. Patently, were I to grant leave to admit the evidence, that would need to be taken into account in my consideration of the appeal.
Appellant’s submissions
The fresh evidence sought to be adduced by the appellant consists of four emails. I adopt the description of the emails contained in the appellant’s submissions of 7 December 2020,[3] but it will be necessary for me to expand on and reproduce aspects of those emails in the body of this decision.
[3] Appellant's submissions in reply and submissions seeking leave to adduce fresh evidence on appeal, [8].
The emails are:
(a) email from Mr Kassira (the appellant’s solicitor) to Cbus Super, dated 30 November 2020 and annexures which include the appellant's third party authority form, dated 30 November 2020, and payslip which had been included at page 38 of the Reply;
(b) email from Zak of Cbus responding to Mr Kassira’s email, dated 1 December 2020;
(c) email from the appellant to Cbus, dated 2 December 2020, and annexed photographs of the front and rear of his Photo Card; and
(d) email from Zak of Cbus responding to the appellant’s email, dated 3 December 2020.
Section 352(6) of the 1998 Act poses two threshold questions which arise as alternatives. The appellant relies upon the second alternative only, namely “leave is sought on the basis that failure to grant leave to adduce the fresh evidence would cause substantial injustice in the case.”[4]
[4] Appellant's submissions in reply and submissions seeking leave to adduce fresh evidence on appeal, [9].
As a matter of formality, the appellant also sought leave to make these further submissions regarding fresh evidence, given the stage of the proceedings at which the application was made.[5]
[5] Appellant's submissions in reply and submissions seeking leave to adduce fresh evidence on appeal, [10].
The respondent has had an opportunity to reply to these submissions regarding fresh evidence, and in the circumstances there is no disadvantage arising to the respondent. I therefore grant the appellant leave to make submissions seeking to adduce fresh evidence.
The appellant asserts that the payslip dated 29 January 2020 was created by the respondent and relied upon in the arbitration in order to substantiate its defence of the proceedings. The appellant submits that the fresh evidence demonstrates that the veracity of the matters recorded in the payslip of 29 January 2020 would not be accepted.[6] As a consequence, the appellant asserts that Mr Ibrahim’s evidence would not be accepted and that the appellant’s evidence would therefore be accepted on the issue in dispute. Additionally, the fresh evidence is described as objective and independent, that is, it is not evidence coming from either the appellant or the respondent.
[6] Appellant's submissions in reply and submissions seeking leave to adduce fresh evidence on appeal, [26].
Respondent’s submissions opposing leave to adduce fresh evidence
The respondent filed submissions dated 15 December 2020. The respondent submits that the emails from Zak, a member of the Cbus communication team, only state that “we are unable to locate an active account”. The respondent submits:
“There may be a perfectly plausible explanation for why an active account could not be found. For example, it may be that the account has been archived. There may also be some other explanation – another section of CBUS deals with accounts that have not been used for some time. The payslip refers to the date of payment as 29 January 2020. If the account has not been used for some time, the application was only made on 30th November 2020, therefore 10 months later, with no activity on the account, it could have been transferred from the ‘active’ file section. All this of course is speculation. However, the statement ‘we are unable to locate an active account’ leaves a lot of questions unanswered.”[7]
[7] Respondent’s submissions in response to appellant’s submissions seeking leave to adduce fresh evidence, [14].
The respondent states that the material sought to be adduced into evidence is not probative and is not of assistance in determining the appeal.
Consideration
This application is made on the basis of only one of the alternatives available in s 352(6) of the 1998 Act, that is that the “failure to grant leave would cause substantial injustice in the case”. This is the only basis on which the application is advanced. The payslip dated 29 January 2020 was at all relevant times part of the bundle of documents filed by the respondent in their reply and that document clearly specifies an amount of superannuation paid by the respondent to Cbus Superannuation. There is no dispute that this evidence was available to the appellant for an extended period both before and during the proceedings. Rather, in order to exercise my discretion to admit the evidence, I must be satisfied that the failure to admit would cause substantial injustice in the case.
The Court of Appeal has examined this question in CHEP Australia Limited v Strickland.[8] Barrett JA in considering this question said as follows:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[9] (emphasis added)
[8] [2013] NSWCA 351 (Strickland).
[9] Strickland, [30]–[31].
It is therefore necessary for me to consider in some detail the emails sought to be adduced as fresh evidence and to determine whether or not a failure to admit this evidence would cause substantial injustice in the case in accordance with the passage set out above from Strickland.
The first email from the appellant’s solicitor, Mr Kassira, of 30 November 2020 reads as follows:
“Dear CBUS Team
Please find attached signed third party authority form by my client.
I have also attached a payslip from the employer which suggests that a contribution was made into a CBUS account on my client's behalf.
Please urgently confirm the following:
1. whether a CBUS account exists in my client's name;
2. whether the contribution referred to in the payslip was made and if so, the date of contribution;
3. whether the CBUS account number referred to in the payslip exists; and
4. any other information you believe may assist.
Regards
Mason Kassira
Principal”
Attached to this email were the Cbus third party authority form and a copy of the payslip from page 38 of the respondent’s Reply.
The second email is in response to Mr Kassira’s email of 30 November 2020. This email, dated 1 December 2020, is from a person who is described as “Zak” from the Cbus Communications Team. Zak responds to Mr Kassira as follows:
“Thank you for your email.
Please be advised, we are unable to locate an active account with the information provided on the form.
We would suggest to have the client contact Cbus by email or phone for information.”
This invitation is then taken up by the appellant, Mr Sarheed. Mr Sarheed, by email dated 2 December 2020, wrote to Zak as follows:
Dear Zak
My name is Faisal Sarheed born [redacted]. I have attached a photo of my identification.
I confirm that my legal representatives are Kassira Law Pty Ltd which includes all staff from Kassira Law. I authorise Kassira Law to access all CBUS account information in relation to me requires [sic].
I have attached a payslip which indicates that a contribution was paid into a CBUS account on my behalf.
Please confirm the following:
1. does a CBUS account exist in my name?
2. if a CBUS account in my name was ever active, when did it become inactive?
3. does a CBUS account linked to me with member number 700445905 exist?
4. was a contribution made by C1 Formwork Group Pty Ltd in the amount of $78.20 into a CBUS account linked to a person named Faisal Sarheed; and
5. any other information you believe may assist.
Please reply by 11am tomorrow morning.
If you wish to discuss the matter with me, please call me with an Arabic interpreter present on [redacted].
Kind regards
Faisal Sarheed
Attached in this e-mail is also my license and my lawyer’s e-mail.”
The final email in the chain sought to be adduced as evidence is as follows. It is dated 3 December 2020 and is from Zak responding to Mr Sarheed’s email.
“Dear Faisal
Thank you for your email.
Please be advised, we were unable to locate any active accounts with the details you have provided.
To search for and access any member accounts we require the following information matching our records:
• Member Number
• Date of Birth
• Full Current Address including state and postcode
• Full Previous Address including state and postcode
• Business name of the employer that has contributed to your fund
• Name of your beneficiary
Please check your records to confirm Cbus is the correct fund.
Alternatively, the employer below can contact Cbus for clarification on contributions made.
It would also be appreciated when replying to this email that the email history is included so we can refer to your original enquiry.
Alternatively, please contact the Service Centre on [number and times excluded] and one of our Member Consultants will assist.
More information
If you have any questions, please call us on [number and times excluded], reply to this email, or visit us online.
Yours sincerely,
Zak
Cbus Communications Team”
The appellant asserts, as I have described above, that this email exchange demonstrates that the information which was recorded in the payslip cannot be relied upon. At [23] of the appellant’s submissions of 7 December 2020, it is stated that the payslip recorded that superannuation contributions had been made, and that they had been paid to Cbus superannuation account number 700445905. It is then asserted in [24] of the same submissions that the payslip was relied upon by the respondent to substantiate its denial of the appellant’s claim.
The Arbitrator did rely upon the payslip. At [75] of the Arbitrator’s reasons, the following is stated:
“The pay slip dated 29 January 2020 forms the basis of the calculation of PIAWE by reference to an undisclosed award. The hourly rate of $26.91 appears to be an appropriate rate for a formwork labourer.”
At [78], the Arbitrator found:
“For the reasons set out above, I accept the evidence of Mr Ibrahim where it conflicts with that of Mr Sarheed.”
One of the Arbitrator’s reasons which was set out above paragraph [78] relates to the payslip in question. Clearly, a consideration of the payslip in question was germane to the Arbitrator’s decision in this matter.
The appellant’s submission, although not stated in terms, is to the following effect:
(a) It is submitted that an account in the appellant’s name with Cbus did not exist.
(b) The submission by inference asserts that the payment said to have been made to Cbus as disclosed in the payslip, had not in fact been made.
(c) As a result of this, the “veracity” of all matters recorded in the payslip, that is not only the superannuation payment but everything else described in the payslip would not be accepted. Namely, the hours worked per week, the ordinary hourly rate of pay for a CW1(a), the gross and net payments and the tax paid. Further, this submission is also wide enough to encompass the job title and employment status included on the payslip, namely the job title of carpenter said to have been employed on a casual basis.
This is the use which the appellant asserts the fresh evidence would have and as a result it would cause a substantial injustice in the case for it not to be admitted. Clearly, given the Arbitrator’s reliance upon the payslip, evidence which undermines the veracity of the payslip would, in the Strickland sense, cause substantial injustice in the case if it were not admitted. However, this does depend upon a detailed consideration of the evidence itself, whether or not it would have that tendency.
For the reasons outlined below, I reject this submission and I reject the application for fresh evidence to be adduced in the appeal as sought. In making this decision, I make it clear that I accept the veracity of the email responses from Cbus. The Cbus officer concerned, “Zak”, is clearly doing his best to answer the appellant’s enquiries and there is no reason to doubt, nor is it suggested, the veracity of the information supplied. I have therefore proceeded to consider the emails on that basis.
A close consideration of the emails sought to be adduced into evidence by the appellant reveals that they do not have the necessary probative value that would cause a substantial injustice in the case if they were not admitted. In the last of the email chain, that is the email from Zak dated 3 December 2020, Cbus are still seeking further particulars. As set out above, Cbus said as follows:
“To search for and access any member accounts we require the following information matching our records”.
Six dot point requests then appear below. It is clear that Cbus, as at the date of this email, could not locate any “active accounts” for the appellant and was seeking further details or information in order to conclude its searches. The most that can be said about this email from Cbus is that no definitive answer had been provided by them because they still required further information to pursue their enquiries.
Further, the evidence is that at the time this application was made to Cbus, the appellant was incapacitated for work and in receipt of weekly compensation payments. The prospect must arise that if Cbus were searching for an active account, this may suggest that the enquiry might have been better directed to whether or not an inactive account existed in the appellant’s name, but the Cbus material does not address this question.
The initial enquiry made by the appellant’s solicitor was not restricted to active accounts, it was a broader enquiry than that, namely “whether a CBUS account exists in my client’s name”. The appellant’s email of 2 December likewise was not constrained, but both responses from Cbus refer to their enquiries with regards to “active accounts”. It may be that Cbus only maintains active accounts, but it is not possible to reach a concluded view about this issue given the state of the Cbus evidence.
In my view, the probative value of the evidence sought to be adduced is very low. The answers obtained from Cbus are qualified and suggest that further enquiries are necessary. The responses from Cbus appear to have been limited to active accounts only, when it is clear that the request from both the appellant and his solicitor were not restricted in terms to active accounts only.
In short, the evidence sought to be adduced is of low probative value, in many respects it is not complete and it is certainly not definitive or supportive of the submission which is made on its behalf. Even if this material were admitted, the weight attributed to it would be either low or neutral. It cannot be said that a different result would emerge if it were admitted.
The application to adduce fresh evidence on the appeal is denied.
THE EVIDENCE
The appellant’s evidence
The appellant provided several statements. In his statement dated 24 June 2020, the appellant notes that his solicitor and an interpreter assisted him in making the statement. Of relevance to the appeal, the appellant described being contacted by a friend named Salam on the morning of 7 January 2020 and was informed that a number of companies were looking for form workers on construction sites in the ACT and was told the companies were paying high hourly rates.[10] The appellant says he was unemployed at the time and was looking for work, which was why Salam contacted him. The appellant says he informed Salam he was interested in working in the ACT and would take on the right opportunity.
[10] Appellant’s statement dated 24 June 2020, [13], Application to Resolve a Dispute (ARD), p 10.
The appellant says he was told by Salam that a person named Mohammed who had his own company was looking for workers. (At this point, I note that, as observed by the Arbitrator,[11] in the documents, Mr Ibrahim is referred to in some as Mohammed Ibrahim Dafaala and in others as Mohammed Ibrahim. I take the reference to “Mohammed” here to be to Mr Ibrahim.) Salam said he was working for Mohammed’s company, who was also paying for Salam’s accommodation in the ACT. The appellant recalls that he was invited by Salam to attend the accommodation in the ACT that he was staying at. The appellant says that later that day on 7 January 2020, he travelled to the ACT to meet with Salam. He says that later that evening he received a telephone call from Mohammed, who is the Director of the respondent.
[11] Sarheed v C1 Formwork Group Pty Ltd [2020] NSWWCC 326 (Reasons), [9].
The appellant recalls the telephone conversation. In essence, the appellant says he was told by Mohammed that he would be required to work six days per week, Monday to Friday, with 5 hours on a Saturday, totalling 55 hours per week. The rate of pay was described as $50 per hour with a total of $2,750 per week. The appellant also says he was told that rent in share accommodation would be paid for by the respondent.
The appellant says that on 9 January 2020, he had a further discussion with Mr Ibrahim, in which he says he asked Mr Ibrahim to be paid in part early as he had relocated from Sydney. Mr Ibrahim arranged for him to collect $200 cash from an ATM. The appellant says that on 11 January 2020, he had a meeting with Mr Ibrahim and sets out his recollection of that meeting. In summary, the appellant says he was told that Mr Ibrahim could not pay him $50 per hour, but could pay him $45 per hour, with the hours being unchanged and his weekly pay would instead be $2,475 per week, which he accepted.
The appellant said on 13 January 2020, he asked for a further early payment and Mr Ibrahim arranged for him to collect $300 from an ATM. The appellant has included in the ARD copies of the text messages that contained details for him to collect the money on both occasions from the ATM.[12] He notes on 15 January 2020, $1,000 was deposited into his bank account. The appellant also set out the hours he worked each day, which totalled to be 32.5 hours in the first week and 41 hours in the second week until he was injured. He also disputes the payslip provided by the respondent to the insurer, which recorded that he only worked 37.5 hours between 13 and 18 January 2020. The appellant claims it is not accurate of the hours worked.
[12] ARD, pp 15–17.
The appellant made a further statement dated 26 August 2020 prepared with the assistance of his solicitor and an interpreter.[13] He says he commenced working as a form worker in late 2012 and said that his day to day role was to do all that was required as a form worker on the worksite in accordance with the foreman’s instructions. The appellant said that “among other things [he would] erect columns, place formwork sheeting for the ceiling, do the formwork required for concrete slabs and walls.”[14] The appellant refers to Mr Ibrahim’s statements of 6 July and 6 August 2020 (which are discussed below). With respect to Mr Ibrahim’s statement of 6 July 2020, the appellant denied he was employed as a labourer and asserts he was employed as a form worker. He denies that he agreed to work for two weeks for the respondent and also denies he was employed to clean up the worksite after the form workers had finished. The appellant says he was employed full time on a permanent basis and says that but for his injury, he would have continued working on the jobsite.
[13] Application to Admit Late Documents (AALD), lodged on 27 August 2020.
[14] Appellant’s statement of 26 August 2020, [11]–[12], AALD, p 4.
The appellant claims he was only paid for the first week of his employment. He also disputes that he drove back to Sydney from the ACT following the injury, asserting he was driven by a friend.
With respect to Mr Ibrahim’s statement dated 6 August 2020, the appellant maintains that he was not employed for 14 days to perform site cleaning work, and that he was employed on a permanent full-time basis as a form worker. The appellant adds that there was no employment agreement and the terms of the agreement were oral and evidenced through conduct.
The appellant then says at [22]–[23]:
“22. I refer to paragraph [7] [of Mr Ibrahim’s statement dated 6 August 2020] and deny that no conversation took place with respect to the terms of my employment agreement with the employer. I maintain my position from my previous statement filed in these proceedings.
23. I refer to paragraph [9] [of Mr Ibrahim’s statement] and deny that I was paid $1,009.13 by the employer. I maintain my position from my previous statement filed in these proceedings.”
Mr Ibrahim’s evidence
Mr Ibrahim provided three statements dated 6 July 2020, 6 August 2020, and 31 August 2020. In the statement of 6 July 2020, Mr Ibrahim details the appellant’s initial contact with him. The appellant told him he was a form worker. Mr Ibrahim told the appellant that he needed labourers for form workers and asked if the appellant would be willing to work for him for two weeks to clean up after the form workers had finished, for example screeding concrete after the formwork had been poured and the formwork stripped. He says he employed three other workers for the same period as labourers to clean up after the formwork was finished. He says he provided accommodation for them.
Mr Ibrahim says the appellant commenced on 7 January 2020 and was employed for at least two weeks. Mr Ibrahim says he paid the appellant via EFT (which I interpret to be electronic funds transfer). At [12] of this statement, Mr Ibrahim says the appellant requested to be paid in cash which Mr Ibrahim refused, “but advanced [the appellant] $300 as he said he didn’t have any money”.
Mr Ibrahim proceeds to describe a discussion he had with the foreman of the work site about the appellant’s performance, and also describes the events surrounding the injury. Due to the narrow scope of the appeal before me, it is not necessary to set these out further.
Mr Ibrahim then says the appellant drove home to Sydney after the injury. Mr Ibrahim details his offer for the appellant to return the following week on light duties and says that the appellant did not turn up for work on 20 January 2020.
In the statement of 6 August 2020, Mr Ibrahim reiterates that the appellant was hired for a period of 14 days to perform site cleaning work for the respondent. He denies ever having a conversation with the appellant where he told the appellant he would be paid $45 to $50 per hour. Mr Ibrahim says for the period of employment, the appellant was “paid 37.5 hours work at the rate of $26.91 per hour being the award rate paid for [the appellant’s] level of expertise”,[15] and was paid $1,009.13 gross for the total work he performed for the respondent. Mr Ibrahim disputes that he required the appellant to work 55 hours per week, being 10 hours a day Monday to Friday, with a further 5 hours on Saturday.
[15] Mr Ibrahim’s statement dated 6 August 2020, [8], Reply, p 47.
Mr Ibrahim concedes he paid the appellant $200 cash as a gesture of goodwill, as the appellant told him that he did not have money for groceries. Mr Ibrahim maintains he did not tell the appellant that the appellant would be paid $50 per hour and that the appellant would receive $2,750 per week. He reiterates that the appellant was paid $26.91 per hour.
Finally, Mr Ibrahim disputes that the payslip provided to the appellant[16] was incorrect, false and misleading.
[16] That is referred to at [34] of the appellant’s statement dated 24 June 2020.
In a further statement dated 31 August 2020, Mr Ibrahim asserts that at no stage was the appellant employed as a form worker; he was employed for a two week period as a labourer. Mr Ibrahim says that the appellant did not hold the relevant qualifications to work as a form worker. Mr Ibrahim also disputes that the $200 and $300 “paid into the [appellant’s] bank accounts … were payments of wages. They were monies paid to [him] as a sign of goodwill as he requested funds to assist with the purchasing of day to day items as he advised [Mr Ibrahim] that he did not have any money to purchase such items.”[17]
[17] Mr Ibrahim’s statement dated 31 August 2020, [5], AALD 1 September 2020, p 2.
Documentary evidence
There are some documents in evidence, in addition to the text messages referred to above, in relation to the cash payments of $200 and $300, which it is necessary to note. There were eight Certificates of Capacity dated from 20 January 2020 to 3 July 2020.[18] For the purposes of the appeal, it is sufficient to note that all of these described the appellant’s occupation as “formworker”.
[18] Reply, pp 12–35.
The appellant also provided a copy of a handwritten timesheet[19] of the hours worked on 8 to 11 January 2020.
[19] ARD, p 19.
The respondent also relied upon a letter from Mr Ibrahim dated 16 January 2020 to the appellant confirming a conversation that day and advising in writing that the appellant’s employment with the respondent would end on 17 January 2020.[20]
[20] Reply, p 37.
The bank statement
In evidence also was a copy of the appellant’s bank statement for the period 1 January to 21 January 2020. Of note are the following entries:
(a) Centrelink Newstart payment on 5 January 2020 for $696.20;
(b) Centrelink Newstart payment on 7 January 2020 for $500;
(c) Centrelink Newstart payment on 21 January 2020 for $627.50, and
(d) a transfer on 15 January 2020 described as “Transfer from CBA CommBank app work payment”, a deposit for the amount of $1,000.
Payslip dated 29 January 2020
The respondent relied upon a payslip dated 29 January 2020. The payslip recorded the hours worked per week to be 37.5. It described the ordinary hourly rate as $26.91. It describes the appellant’s job title as “carpenter” and the employment status to be “casual”.[21] It provided that the appellant’s taxable income was $1,009.13. It also mentioned the amount of $22.22 was paid to NSW Long Service Leave and a CBUS Superannuation contribution of $78.20.
[21] Reply, p 38.
THE ARBITRATOR’S REASONS
The Arbitrator noted the following:
(a) There was no dispute that the respondent was liable to pay compensation and the appellant was in receipt of weekly benefits.[22]
(b) The dispute concerned the calculation of PIAWE, noting the appellant is in receipt of compensation based on PIAWE of $1,009.31 as adjusted.
(c) The appellant’s contention that he should be receiving compensation based on PIAWE of $2,475.[23]
[22] Reasons, [1].
[23] Reasons, [2]–[3].
The Arbitrator set out some brief reasons dealing with her declinature to grant an adjournment sought to enforce a notice to produce.[24]
[24] Reasons, [6]–[8].
The Arbitrator set out the documentary evidence.[25] She discussed the appellant’s statement including how he found out about the work, his telephone conversation with Mr Ibrahim including the discussion of the hours and hourly rate. She also discussed Mr Ibrahim’s evidence and the balance of the evidence, much of which is referred to above.
[25] Reasons, [11]–[35].
The Arbitrator set out the parties’ submissions[26] before moving on to set out her findings and reasons.
[26] Reasons, [36]–[53].
Of relevance to the appeal, at [37] of the Reasons, the Arbitrator referred to the appellant’s counsel’s summary of the appellant’s statements, and noted:
“He said that Mr Sarheed asked for an advance payment of $200 to purchase items because he left Sydney to go to work for C1 in the ACT. On 13 January Mr Sarheed requested further payment. On 15 January he received a transfer of $1,000. The total of those payments was $1,500 which represented a payment of $46 per hour for the 32.5 hours worked that week.”
At [41] of the Reasons, the Arbitrator noted the appellant’s submission that a further inconsistency was the reference to $300 being advanced then later being described as a payment of goodwill. It was submitted:
“that it did not make sense that someone would make a payment out of goodwill and there was no evidence to support that contention. This was particularly so when the payments corresponded to the hourly rate agreed for the hours worked in that week, recorded on the timesheet. The payment of $1,000 did not reflect the hours worked. Mr Adhikary said that Mr Sarheed was employed on an ongoing basis.”[27]
[27] Reasons, [41].
The Arbitrator also noted at [48]:
“In the first week, Mr Sarheed asked for some money. He was given $200 then an additional $300. He was paid $1,000 for that week which was just a few dollars less than the award rate for the hours worked. The payslip for the later work is dated 29 January 2020.”
The Arbitrator then proceeded to discuss her findings and reasons from [54].
The Arbitrator quoted a passage[28] from Nguyen v Cosmopolitan Homes,[29] and identified that the determination of the case depended solely on whether she accepted the appellant’s evidence or that of Mr Ibrahim. She noted the appellant carried the onus of proving his version in relation to the terms of his contract of employment. She also noted that she must feel an actual persuasion that the facts presented on his behalf existed.[30]
[28] Reasons, [54].
[29] [2008] NSWCA 246 (Nguyen).
[30] Reasons, [55].
The Arbitrator proceeded to discuss the issue of credit.[31] She noted that there was no cross-examination which was not an impediment,[32] citing JB Metropolitan Distributors Pty Ltd v Kitanoski.[33]
[31] Reasons, [56]–[62].
[32] Reasons, [56].
[33] [2016] NSWWCCPD 17, [121].
The Arbitrator referred to the single bank statement provided by the appellant, noting it suggested that the appellant was in receipt of Centrelink payments at the same time he performed work for the respondent. She noted the appellant could have sought to lead evidence to explain the receipt of Centrelink payments while Mr Sarheed was working.[34] The Arbitrator recalled Mr Ibrahim’s evidence that the appellant requested to be paid in cash. She observed that the appellant did not answer this and found that a request to be paid in cash could indicate that the appellant did not intend to disclose his earnings to Centrelink.[35]
[34] Reasons, [57].
[35] Reasons, [58].
The Arbitrator noted the appellant’s assertion that he still had not been paid for the second week, comparing it to Mr Ibrahim’s claim that he had been paid. The Arbitrator found that if he had not been paid, it was a simple matter for the appellant to produce bank records to support this, but he did not.[36]
[36] Reasons, [59].
The Arbitrator proceeded to draw a Jones v Dunkel inference, citing Jones v Dunkel[37] and Kuhl v Zurich Financial Services Australia Ltd,[38] and said:
“60. Because of the controversy between the parties, it might be expected that Mr Sarheed would have supported his evidence by a statement from his friend, Salam but he did not. Mr Sarheed’s evidence is that Salam told him about the opportunity, that he was working for C1 and staying in accommodation paid for by C1. Mr Sarheed went to the ACT and stayed in that accommodation. After the injury, he said he was driven home by a friend. Mr Ibrahim referred to a small group of workers. Those circumstances suggest that those other workers may have been retained on a similar basis and would [have] knowledge of the rates of pay and hours worked.
61. In the absence of a statement from Salam, I consider it is appropriate to draw an inference that evidence from Salam would not have assisted Mr Sarheed’s case.
62. Because of those concerns about Mr Sarheed’s credit, and because some of the evidence is improbable, as discussed below, I prefer the evidence of Mr Ibrahim where that differs from the evidence of Mr Sarheed.”
[37] [1959] HCA 8; 101 CLR 298 (Jones v Dunkel).
[38] [2011] HCA 11.
The Arbitrator, under the heading “contract terms”,[39] found the PIAWE the appellant contended was very high.[40] The Arbitrator noted the original Workers Compensation Commission and the Compensation Court were recognised as having knowledge and experience of the labour market,[41] and applied Woolworths Limited v Salam,[42] where Snell DP said:
“These principles similarly apply in the Commission, which is a specialist tribunal, taken to possess such specialist knowledge: Goktas v Goodyear Australia Pty Limited [2007] NSWWCCPD 1 at [32], Forests NSW v Hancock No.2 [2007] NSWWCCPD 191 at [76], Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 at [75].”[43]
[39] Reasons, [63]–[72].
[40] Reasons, [63].
[41] Citing J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625; Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385.
[42] [2017] NSWWCCPD 35 (Woolworths v Salam).
[43] Woolworths v Salam, [80].
The Arbitrator proceeded to say that it would be a very rare case that the PIAWE of a building worker would exceed the maximum weekly payment under s 34 of the Workers Compensation Act 1987 (the 1987 Act) and held “[t]he circumstances of the formation of the contract reinforce[d] [her] view that it is unlikely such a high PIAWE was agreed.”[44]
[44] Reasons, [64].
The Arbitrator found the employment contract was made by telephone on 7 January 2020 and the appellant was asked to commence the following day, subject to an induction. She observed that Mr Ibrahim had not met the appellant before making the offer of employment. The Arbitrator said: “If Mr Ibrahim needed a formwork labourer to clean up for a short period, it may well be the case that he would offer a position paid at the award rate to someone he had not met”. She concluded it was “improbable that a position as a formworker at a very high rate of pay on an ongoing basis would be offered as a result of a telephone discussion.”[45]
[45] Reasons, [65].
The Arbitrator adopted the respondent’s submission, that the length of time the appellant expected to be employed was not strictly relevant to the determination of PIAWE. The Arbitrator acknowledged the appellant’s assertion that he was not employed on a short term basis. She noted Mr Ibrahim’s evidence that he terminated the appellant’s employment on 16 January at the request of the supervisor on site. She noted the appellant denied the conversation but did not deal with the letter in his statements.[46]
[46] Reasons, [66].
The Arbitrator referred to the appellant’s submission that he would not have travelled to the ACT to perform work for a period of two weeks at the rate asserted by the respondent. The Arbitrator noted this submission was not developed further and found that the first part of the submission was not supported by the appellant’s own evidence.[47] She recalled the appellant’s evidence to be that he drove to the ACT because his friend Salam had told him work was available and the appellant did not speak to Mr Ibrahim until after he arrived at the accommodation. The Arbitrator noted that in any event, the drive there was only roughly three hours.
[47] Reasons, [67].
She also found the appellant’s submission was unconvincing for another reason, being:
“Mr Sarheed’s evidence is that he was unemployed when Salam told him about work available in the ACT. That is confirmed by the entries in his bank statement for Newstart. For a person in his position, wages of $1,009.31 per week were significantly better than Centrelink benefits.”[48]
[48] Reasons, [68].
The Arbitrator continued:
“69. Mr Sarheed’s evidence about tasks of formworker is not persuasive. He prepared his second statement with the assistance of his solicitor and an interpreter. With that assistance, he had the opportunity to explain his experience more thoroughly than he did. His description does not convey long experience in that role.
70. I do not accept Mr Adhikary’s submission that the reference to Mr Sarheed’s occupation as formworker in the medical certificates is objective evidence as to the role in which he was employed. There is no evidence as to how the doctor who completed those certificates was informed of Mr Sarheed’s occupation. It is likely that Mr Sarheed provided that information.
71. Mr Ibrahim said that Mr Sarheed was cleaning concrete at the time of the injury. That is consistent with the role of a formwork labourer.
72. Taking all of those matters into account, I find that Mr Sarheed was employed as a formwork labourer, employed to clean up after the formwork had been completed, and not as a formworker.”[49]
[49] Reasons, [69]–[72].
The Arbitrator then proceeded to deal with the issue of PIAWE.[50] She noted “[d]espite the lack of further explanation as to how it was calculated, the parties both made submissions on the basis that the payment of $1,000 was remuneration for the 32.5 hours worked during the first week of work.”[51]
[50] Reasons, [73]–[80].
[51] Reasons, [73].
The Arbitrator referred to Mr Ibrahim’s evidence that the two further cash payments were made as a gesture of goodwill to allow the appellant to purchase items that he needed. She noted Mr Ibrahim’s evidence that the second payment of $300 was made after he refused the appellant’s request to be paid in cash. The Arbitrator acknowledged the appellant’s evidence that those payments were part of his remuneration and Mr Ibrahim’s disagreement with this assertion.[52]
[52] Reasons, [74].
The Arbitrator observed the payslip dated 29 January 2020 formed the basis of the calculation of PIAWE by reference to an undisclosed award. She held the hourly rate of $26.91 appeared to be an appropriate rate for a formwork labourer.[53]
[53] Reasons, [75].
The Arbitrator referred to the appellant’s evidence that he was retained to work 55 hours per week and his PIAWE should be calculated on that basis. She noted this calculation was based on a week of 10 hour days and five hours on a Saturday. She noted the appellant’s calculation did not include any time for breaks. The Arbitrator held the appellant’s “assessment of hours worked [was] improbable.”[54] The Arbitrator referred to the respondent’s submission that the appellant was paid on the basis of 37.5 hours per week. She held it “would be unusual for a building worker to be retained on a basis that did not include a base rate and overtime.”[55]
[54] Reasons, [76].
[55] Reasons, [77].
The Arbitrator, for her earlier reasons, accepted the evidence of Mr Ibrahim where it conflicted with the appellant’s evidence.[56] She found that the appellant was employed as a formwork labourer and his pre-injury average weekly earnings were $1,009.31.[57] As she had determined that the calculation made by the insurer was correct, the Arbitrator was of the view that the appropriate course was not to make any order.[58]
[56] Reasons, [78].
[57] Reasons, [79].
[58] Reasons, [80].
The Certificate of Determination issued on 15 September 2020 records:
“The Commission determines:
1. I find that the applicant’s pre-injury average weekly earnings as at 17 January 2020 were $1,009.31
2. I make no order.”
GROUNDS OF APPEAL
The appellant alleges the following errors on the part of the Arbitrator:
(a) the Arbitrator committed an error of law by failing to provide the appellant with procedural fairness by not dealing with the submissions made on his behalf (Ground A);
(b) the Arbitrator committed an error in fact and/or discretion by not accepting the appellant’s evidence on the basis of credit (Ground B);
(c) the Arbitrator committed an error of law by drawing an inference against the appellant for failing to adduce evidence of Salam (Ground C), and
(d) the Arbitrator committed an error of law in failing to provide adequate reasons for her findings (Ground D).
LEGISLATION
Section 34 of the 1987 Act provides:
“34 Maximum weekly compensation amount
(1AA) A weekly payment of compensation under this Subdivision is not to exceed the maximum weekly compensation amount.
(1) The maximum weekly compensation amount is $1,838.70.
(2) If the amount mentioned in subsection (1)—
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the maximum weekly compensation amount applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted.
(3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.”
SUBMISSIONS
Appellant’s submissions on the background and general principles
The appellant notes the essential issue at the hearing was the PIAWE. The appellant alleged his average weekly earnings were $2,475.00 prior to the application of s 34 of the 1987 Act. The respondent alleged the average weekly earnings were $1,009.31, which were indexed to currently be $1,040.00 per week.
The appellant alleges that before he commenced his employment, it was agreed that his remuneration would be $50 per hour for employment as a form worker. He claims that on 9 January 2020, he sought an advance on his pay in the amount of $200, which was transferred by the respondent to him. On 11 January 2020, the appellant had a discussion with Mr Ibrahim in relation to his remuneration and his hourly rate which was re-negotiated to $45 per hour. The appellant alleges that, on 13 January 2020, he sought a further advanced payment of his wages in the amount of $300, which was paid to him in cash on that day. Further, it is alleged that on about 15 January 2020, the respondent transferred $1,000 to him. He alleges that this was the balance of his weekly wage noting the earlier advances of $200 and $300.
The appellant notes the respondent’s allegation that the payments of $200 and $300 were cash transfers to assist him and did not represent advanced payment of his wages. The respondent also alleges the appellant was not hired as a form worker, and the appellant was paid $26.91 per hour.
Reference is made to the Arbitrator’s decision at [73]–[80], in which she preferred the evidence of Mr Ibrahim when it conflicted with the evidence of the appellant, and found the appellant was employed as a form work labourer and his pre injury average weekly earnings were $1,009.31.
The appellant seeks orders that the Certificate of Determination be revoked and the matter be remitted to a different arbitrator for re-determination due to material errors made by the Arbitrator.
Respondent’s submissions on the background and general principles
The respondent submits the scope of the appeal is set out in s 352(5) of the 1998 Act and is limited to a determination whether the Arbitrator’s decision was or was not affected by any error of fact, law or discretion and to the correction of error. It contends that the appellant is required to show error.
At the conclusion of its submissions, the respondent submits the appellant has not demonstrated that the decision was affected by error, nor has the appellant established that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong, relying on Northern NSW Local Health Network v Heggie.[59] It concludes the appeal should be dismissed and the Arbitrator’s decision should be confirmed.
Ground A
[59] [2013] NSWCA 255.
Appellant’s submissions
The appellant quotes extracts from Dranichnikov v Minister for Immigration and Multicultural Affairs,[60] at [24] and Wang v State of New South Wales,[61] at [63].
Hourly rate
[60] [2003] HCA 26; 197 ALR 389; 77 ALJR 1088 (Dranichnikov).
[61] [2019] NSWCA 263.
The appellant refers to his submission that the payments of $200, $300 and $1,000 totalled $1,500. It is said that when $1,500 is divided by 32.5, being the number of hours the appellant worked in the first week,[62] the appellant’s hourly rate is $46.15, which was consistent with his statement.[63] The appellant refers to his evidence that he was initially paid $50 per hour, which was reduced to $45 per hour on 11 January 2020. The appellant submits this demonstrates the appellant’s allegations with respect to the advance payments and his PIAWE were consistent with the material before the Arbitrator.[64]
[62] Which is said to be in the timesheet in the Application to Resolve a Dispute (ARD), p 19.
[63] Appellant’s submissions, [25].
[64] Appellant’s submissions, [26].
The appellant contends the Arbitrator noted these submissions at [37], [41] and [74] of the Reasons, but did not respond or engage with these submissions. The appellant argues that it was necessary to respond or engage with those submissions, as they were “relevant and material to the proceedings” and formed part of the appellant’s substantive argument.[65]
[65] Appellant’s submissions, [27]–[29].
Reference is made to the respondent’s submission at first instance that the appellant was paid at a rate of $26.91 per hour and worked 32.5 hours in the first week, but was paid $1,000. The appellant quotes the respondent’s submission from the Reasons at [48], where it is said to have been submitted the appellant was paid $1,000 for that week, which was just a few dollars less than the award rate for the hours worked.
The appellant quotes the Arbitrator’s reasons at [73] where she says “[d]espite the lack of further explanation as to how it was calculated, the parties both made submissions on the basis that the payment of $1,000 was remuneration for the 32.5 hours worked during the first week of work”.[66] Although the Arbitrator said this, the appellant argues that the appellant’s remuneration of $26.91 per hour for 32.5 hours of work totals $875.57. The appellant, restating its submission at first instance, submits that this is inconsistent with the respondent’s allegations in its evidence and the submissions made before the Arbitrator, that the appellant was paid $1,000 for the first week “in keeping with an hourly rate of $26.91”.
[66] Appellant’s submissions, [31].
The appellant says this inconsistency was extremely pertinent to the issues before the Arbitrator. The appellant submits that by failing to respond and engage with his submissions, the Arbitrator failed to engage and respond “to a substantial, clearly articulated argument that was material to the central issue in these proceedings”.[67] He says that had the Arbitrator responded and engaged with his submissions, the inconsistency would have been apparent to her. The appellant adds that had these submissions been engaged with, the Arbitrator would not have concluded at [75] of the Reasons that the hourly rate of $26.91 appeared to be an appropriate rate for a formwork labourer on the basis of the payslip dated 29 January 2020.
Job Title
[67] Appellant’s submissions, [34].
The appellant noted his submission[68] that the payslip dated 29 January 2020 reflected his job title as a carpenter. He says this submission was made in response to the respondent’s submission that he was hired as a formwork labourer. The appellant submits that whilst the Arbitrator found he was employed as a formwork labourer at [75] of the Reasons, he submits that at no point in the Reasons was it apparent that the Arbitrator engaged or responded to the “submissions made as to the matters which the [r]espondent’s payslip reflected”.[69]
[68] Noted at Reasons, [39].
[69] Appellant’s submissions, [40].
The appellant contends that had the Arbitrator appropriately engaged with the submission, it would have been apparent that the evidence of Mr Ibrahim was not consistent. That is, he was not employed as a formwork labourer, but was employed as a carpenter, which he says should be taken to be a formwork carpenter.[70] The appellant submits that a reason for the Arbitrator’s determination was that it was more likely the appellant was retained, via telephone, as a formwork labourer and offered remuneration pursuant to an award rate, rather than being employed as a form worker at a very high rate of pay in these circumstances.[71]
[70] Appellant’s submissions, [41].
[71] Appellant’s submissions, [42].
The appellant further submits that given the Arbitrator’s treatment of his evidence, had she had regard to these submissions, the inconsistency between Mr Ibrahim’s statement and the payslip would have been apparent to her. The appellant concludes that this “was a further substantial and clearly articulated argument that was material to the central issue in the proceedings before the Arbitrator, not least given the Arbitrator made findings contrary to same.”[72]
[72] Appellant’s submissions, [44].
Respondent’s submissions
In relation to both the issues of the hourly rate and description of the appellant’s employment as a formwork labourer, the respondent submits the Arbitrator did in fact engage with the submissions; she did not accept those submissions and gave detailed reasons for not doing so.[73]
[73] Respondent’s submissions, [6]–[7].
The respondent quotes [55] of the Reasons, noting this was in accordance with Nguyen. The respondent refers to [62] of the Reasons where the Arbitrator stated her preference for the evidence of Mr Ibrahim where it differed from the evidence of the appellant. The respondent submits this was because the Arbitrator had concerns about the appellant’s credit, and because she was of the view that some of the evidence was improbable.[74] The respondent argues that in coming to this conclusion, the Arbitrator took into account matters at [57]–[61]. It notes these included:
(a) the fact that only a single bank statement was provided by the appellant, which suggested that he was also in receipt of payments from Centrelink at the same time as he was working for the respondent;
(b) the appellant could have produced additional bank statements and/or could have sought to give evidence at the arbitration to explain his receipt of Centrelink benefits, but did not;
(c) the appellant did not respond to Mr Ibrahim’s evidence that the appellant asked to be paid in cash;
(d) he did not produce evidence in support of his assertion that he was not paid for the second week, and
(e) there was no evidence from his friend Salam or the friend who drove him home after the injury.
[74] Respondent’s submissions, [9].
In relation to the appellant’s submission that he would not have travelled to the ACT for two weeks’ work at the PIAWE amount asserted by the respondent, the respondent submits the Arbitrator noted that this was not supported by the appellant’s own evidence, and that the appellant’s own evidence was that he was unemployed at the time and the amount of $1,009.31 per week was significantly better than Centrelink benefits.[75] It says that the inconsistency in the appellant’s own evidence is that the appellant was told by his friend Salam that work was available, and that he drove there and only spoke with Mr Ibrahim after his arrival.
[75] Respondent’s submissions, [11].
With respect to the appellant’s assertion that the Arbitrator did not respond or engage with the payslip, the respondent submits the payslip was dealt with in the Reasons at [75]. It notes the Arbitrator specifically noted the hourly rate of $26.91 appeared to be appropriate for a formwork labourer.[76] The respondent refers to [76] of the Reasons and says the Arbitrator noted the appellant’s contention that he was retained to work 55 hours per week and his PIAWE should be calculated on that basis. The respondent says the Arbitrator opined that the appellant’s calculation on a week of 10 hour days with five hours on Saturdays, with no breaks, was improbable.[77] It further refers to [77] of the Reasons, where the Arbitrator noted that it would be unusual for a building worker to be retained on a basis that did not include a base rate and overtime.
[76] Respondent’s submissions, [12].
[77] Respondent’s submissions, [13].
In relation to the second submission at [108] above concerning the description of his duties, the Arbitrator was not persuaded by the appellant’s evidence about the tasks performed by a form worker. The respondent submits this was particularly so, as his evidence given in his statement was made with the assistance of his solicitor and an interpreter. The respondent submits the appellant had the opportunity to explain his experience more thoroughly than he did. It also refers to the Arbitrator’s note that Mr Ibrahim’s evidence was that the appellant was cleaning concrete at the time of his injury and the Arbitrator was of the view this was consistent with the role of a formwork labourer rather than a form worker.[78]
[78] Respondent’s submissions, [15].
The respondent says the Arbitrator rejected the appellant’s submission that the reference to his occupation as a form worker in the medical certificates was objective evidence of the role in which he was employed, because there was no evidence as to how the doctor who completed the certificates was aware of the appellant’s occupation.[79] The respondent contends the Arbitrator found the appellant was employed as a formwork labourer who was employed to clean up after formwork had been completed, and not as a form worker. The respondent submits it was clear that the Arbitrator was not persuaded by the appellant’s evidence and gave very detailed reasons for not accepting his evidence where it differed from the respondent’s evidence.[80]
Ground B
[79] Respondent’s submissions, [16].
[80] Respondent’s submissions, [18].
Appellant’s submissions
The crux of the appellant’s submissions for this ground is that the Arbitrator’s findings were not made on a sound evidentiary basis. That is, the evidence was not strong enough for the Arbitrator to be satisfied that the appellant was committing, or intending to commit, Centrelink fraud.[81]
[81] Appellant’s submissions, [57].
He says this is particularly so having regard to the fact that the deposits from Centrelink were made, relevantly, on 7 January 2020 and then on 21 January 2020, and the appellant commenced working on 8 January 2020 and his last date of employment was 17 January 2020 and no Centrelink payments were made on or during those dates.[82]
[82] Appellant’s submissions, [58].
The appellant refers to the Arbitrator’s Reasons at [62]. He notes that at [56]–[61] of the Reasons, the Arbitrator impugned the appellant’s credit on the basis of him being in receipt of Centrelink payments whilst he was employed by the respondent. The appellant notes that under the heading of “credit”, the Arbitrator made a Jones v Dunkel inference, at [61] of the Reasons, on the basis that a statement by Salam was not lodged by the appellant.
The appellant also refers to the Arbitrator’s finding that the appellant did not answer Mr Ibrahim’s contention that the appellant asked to be paid in cash. The appellant refers to the Reasons at [58], where it was said “[a] request to be paid in cash could indicate that [the appellant] did not intend to disclose his earnings to Centrelink.”[83]
[83] Appellant’s submissions, [48].
The appellant quotes the following passage by Dixon J (as his Honour then was), in Briginshaw v Briginshaw:[84]
“when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”
[84] [1938] HCA 34; 60 CLR 336, 361–362.
The appellant also quotes the following in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:[85]
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” (references omitted)
[85] [1992] HCA 66; 67 ALJR 170; 110 ALR 449, [2].
The appellant submits that consistently, in Heyworth v VMWare Australia Pty Limited,[86] King SC ADP stated that:
“Satisfaction on the balance of probabilities is all that is called for, and even if a serious matter is in contention, so that to be satisfied on the probabilities a fact-finder should look for a sound evidentiary basis, it is not necessary that the evidence come to more than that.”
[86] [2019] NSWWCCPD 64, [53].
The appellant submits the Arbitrator found that the appellant was in receipt of Centrelink payments at the same time he worked for the respondent and that he requested to be paid in cash and this request could indicate that he did not intend to disclose his earnings to Centrelink. The appellant says that it is evident from [57] of the Reasons that the Arbitrator based these findings on the fact that a single bank statement was provided.
The appellant submits the Arbitrator effectively determined that the appellant committed Centrelink fraud.
The appellant accepts the acceptance or rejection of evidence or the weight given to it is a matter within the Arbitrator’s province.[87] The appellant submits, however, that the Arbitrator’s findings with respect to his credit ought to be displaced on the basis that they were wrong. In other words, based on the evidence before her, the findings ought not have been made. The appellant adds the Arbitrator ought not have made those findings “in the absence of sound evidentiary basis.”[88]
[87] Citing Wood v Woolworths Limited [2020] NSWWCCPD 8.
[88] Appellant’s submissions, [60].
The appellant concludes by saying this is not a case where there were equally open conclusions available and the Arbitrator made a finding based on one of those equally open conclusions. He says the Arbitrator “made her findings in absence of evidence which supported same”.[89]
[89] Appellant’s submissions, [61].
Respondent’s submissions
The respondent submits that the Arbitrator did not only make her findings at [62] on the basis of the appellant being in receipt of Centrelink payments whilst he was employed by the respondent. The respondent repeats its submissions at [108]–[110] above.
The respondent submits that in the absence of a statement from Salam, it was appropriate for the Arbitrator to draw an inference that evidence from him would not assist the appellant’s case. The respondent argues the matters taken into account in doing so were referred to at [60] of the Reasons. It says these included, amongst other things, the fact it was Salam who told the appellant there was work available; that Salam was staying in the accommodation provided and paid for by the respondent, and the appellant went to the ACT and stayed at that accommodation.[90] The respondent further refers to the Arbitrator’s consideration that Mr Ibrahim referred to a small group of workers and that those circumstances suggested that the other workers may have been retained on a similar basis and would have had knowledge of the rates of pay and hours worked.
[90] Respondent’s submissions, [20].
The respondent submits the Arbitrator made no error in arriving at her conclusions at [61] and [62] of the Reasons. It contends the finding was open to her and discloses no error.
In relation to the finding of “fraud”, the respondent submits the Arbitrator made no such finding. Referring to the appellant’s submissions at [53], the respondent notes the Arbitrator found that the appellant was in receipt of Centrelink payments whilst working for the respondent. The respondent asserts the Arbitrator accepted the appellant requested to be paid in cash and this request could indicate that he did not intend to disclose his earnings to Centrelink.[91] It submits the Arbitrator did not go on to make any finding that the appellant had committed, or was intending to commit, Centrelink fraud.[92]
[91] Respondent’s submissions, [24].
[92] Respondent’s submissions, [25].
The respondent reiterates that, firstly, the Arbitrator made no finding of Centrelink fraud, and secondly, Centrelink payments are generally made on a fortnightly basis and in this case, on 7 and 21 January, two weeks apart. The respondent submits the payments do not generally reflect when a recipient of Centrelink payments is in employment.
The respondent submits that it is a matter for the recipient to inform Centrelink if they are in employment so that payments from Centrelink can be stopped or reduced. The respondent says it was the Arbitrator’s view that not giving further bank statements and/or giving further evidence in respect of Centrelink payments and the appellant’s request to be paid in cash could indicate the appellant did not intend to disclose his earnings.
The respondent submits that it has not been shown that the Arbitrator fell into error and this ground should be dismissed.
Appellant’s submissions in reply
The appellant submits the respondent’s submissions do not indicate that the Arbitrator responded or engaged with the submissions made in respect of the hourly rate at which the appellant was paid or the submissions with regard to the reference to the appellant’s job title on the payslip.
Ground C
Appellant’s submissions
The appellant quotes the Arbitrator’s reasons at [60]–[61] in relation to the Arbitrator’s statement that it might be expected that the appellant would have called evidence from Salam, but did not.
The appellant asserts the Arbitrator knew there was controversy between the parties. The appellant submits the Arbitrator appears to have formed her conclusion with regard to the Jones v Dunkel inference on the basis the appellant and Salam were friends.[93] He submits the Arbitrator failed to have regard to the fact that Salam was employed by the respondent. The appellant points out that there was no evidence before the Arbitrator that suggested:
(a) that Salam was present when the appellant spoke with Mr Ibrahim, either in person or by telephone;
(b) that the appellant and Salam ever discussed either worker’s remuneration with the respondent, and
(c) what Salam’s evidence would actually have been, including whether his evidence would have been adverse to either party.
[93] Appellant’s submissions, [64].
The appellant relies upon Payne v Parker,[94] which he contends is authority “that a condition for the principle to be applied, it ought to be found that the missing witness would be expected to be called by one party, rather than the other”.[95] It also relies upon Glass JA’s comment:
“The first condition is also described as existing where it would be natural for one party to produce the witness … or the witness would be expected to be available to one party rather than the other … or where the circumstances excuse one party from calling the witness, but require the other party to call him … or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him … or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other.”
[94] [1976] 1 NSWLR 191 (Parker), 201–202.
[95] Appellant’s submissions, [67].
The appellant submits the Arbitrator did not consider, prior to deciding it was appropriate to draw the inference against the appellant, whether Salam was a witness that was expected to be called by the appellant, rather than the respondent.[96] The appellant argues that had the Arbitrator turned her mind to this, as well as the matters referred to at [134] above, it would have been apparent, in the circumstances of the case, it was not expected that Salam was a witness the appellant was expected to call.[97] The appellant concludes that the Arbitrator erred in drawing the adverse inference in this matter.
[96] Appellant’s submissions, [69].
[97] Appellant’s submissions, [70].
Respondent’s submissions
The respondent repeats its earlier submissions set out at [113] above. It submits the onus of proof is on the appellant to prove his case. Reference is made to [55] of the Reasons where the Arbitrator said: “the determination of this case depends solely on whether I accept Mr Sarheed’s evidence or that of Mr Ibrahim”. The respondent contends the onus of calling any witnesses to support the appellant’s evidence was upon the appellant. It is not for the respondent to disprove anything.
The respondent says it was Salam who told the appellant there was work available in the ACT, and that the respondent provided and paid for accommodation for the workers. It submits that in the circumstances, it was appropriate for the Arbitrator to draw an inference that Salam’s evidence would not have assisted the appellant’s claim.
The respondent submits that the Arbitrator did not fail to have regard to the fact that Salam was employed by the respondent, again referring to Reasons at [60].[98]
[98] Respondent’s submissions, [35].
The respondent concludes that no error has been demonstrated and this ground should be dismissed.
Appellant’s submissions in reply
The appellant complains that the respondent has not indicated how the Arbitrator’s findings complied with the authorities to which it referred in its submissions and has failed to address the substance of its submissions on this ground. The appellant refers to the respondent’s reference to the Reasons at [60], that Salam was employed by the respondent. The appellant submits that the appellant’s submissions at [65] “were not made to address mere reference to employment.”[99] The appellant submits they were made to indicate that the Arbitrator did not have regard to, when drawing the Jones v Dunkel inference and in that context, the fact that Salam was in the respondent’s employ, that is, when having regard to whether Salam was a witness who was expected to be called by the appellant rather than the respondent.[100]
Ground D
[99] Appellant’s submissions in reply, [5].
[100] Appellant’s submissions in reply, [6].
Appellant’s submissions
The appellant quotes the Arbitrator’s Reasons at [65]. He submits that the two preceding paragraphs noted the Commission as having specialised knowledge and experience of the value of work in the labour market. The appellant complains that the Arbitrator has not indicated the evidentiary basis upon which she formed the conclusion at [65]. The appellant submits the Arbitrator had a duty to provide reasons to “enable the parties to understand why the decision has been made.”[101]
[101] Citing ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21, [31].
The appellant submits that having regard to her reasons as a whole, it is not apparent why the Arbitrator “determined that an employer would make an offer in the manner that she considered to be probable and not make an offer, in the manner contended by the [a]ppellant, and for this offer to be improbable”.[102]
[102] Appellant’s submissions, [76].
The appellant adds that the fact the Arbitrator referred to an offer being made on the basis of an award and then, at [75] indicating the award was undisclosed reinforced that the Arbitrator did not provide sufficient reasons for her findings. In other words, the appellant contends, it is not clear why an award, the name and details of which were unknown, was more probable as being the basis of an employment offer.[103]
[103] Appellant’s submissions, [77].
Respondent’s submissions
The respondent submits that the Arbitrator disclosed her reasoning for concluding that it was improbable that a position as a formworker at a very high rate of pay on an ongoing basis would be offered following a telephone discussion only.[104] It asserts it is based upon the specialised knowledge of the Commission.[105]
DISCUSSION
[104] Reasons, [65].
[105] Citing Woolworths v Salam and the cases cited therein.
As to Ground A
Before turning to the submissions made by the appellant in support of Ground A, it is necessary to understand precisely the task that was being carried out by the Arbitrator. At its heart, this is a dispute about the terms upon which the appellant was engaged to work for the respondent. In dispute were the appellant’s hours of work, his rate of pay, his job description and duties. It was accepted between the parties that there was no written contract of employment which defined the terms of engagement. Counsel for the appellant put it to the Arbitrator that an oral agreement existed between the parties.[106] Given that the existence of an oral contract of employment was asserted, the task for the Arbitrator was to assess the respective credit of the appellant and the respondent’s principal, Mr Ibrahim, in order to discern the terms of that contract. Documents such as the payslip were also considered along with this evidence.
[106] Transcript of Proceedings Sarheed v C1 Formwork Group Pty Ltd (WCC, [2020] NSWWCC 326, Arbitrator McDonald, 2 February 2020) (T), 8.29–31.
Clearly it was the Arbitrator’s duty in order to resolve this dispute to identify the terms of employment, such as they were, and make a finding regarding the PIAWE accordingly. The Arbitrator succinctly identified her task as follows:
“The determination of this case depends solely on whether I accept Mr Sarheed’s evidence or that of Mr Ibrahim. Mr Sarheed carries the onus of proving that his version of the terms of his oral contract of employment was correct. In order to find in his favour, I must feel an actual persuasion that the facts as presented on his behalf existed.”[107]
[107] Reasons, [55].
It is within this context that the appellant’s submissions with respect to Ground A must be considered. The appellant alleges, in accordance with Dranichnikov, that the Arbitrator had failed to engage with clearly articulated arguments made with respect to two aspects of the appellant’s employment, namely hourly rate and job title.
The application of the principles stated in Dranichnikov has been the subject of frequent consideration. In DNA17 v Minister for Immigration and Border Protection,[108] the Full Federal Court of Australia said as follows:
[108] [2019] FCAFC 146 (DNA17).
“52. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, the Full Federal Court stated (at [46] and [47]):
‘It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]–[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason ...
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’
53. In CPE15, Mortimer J referred to Griffiths J’s summary of the authorities in SZSSC and stated (at [40]):
‘The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as ‘a substantial and clearly articulated argument’. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been ‘clearly articulated’, the Tribunal would not be put on notice. Unless the argument is ‘substantial’, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument.’
54. As the above passage makes clear, the failure to consider an argument will only constitute a constructive failure to exercise jurisdiction, and thereby jurisdictional error, if the argument is substantial in the sense that it is capable of altering the decision. In that sense, the requirement of substantiality is equivalent to considering whether the failure is material to the outcome. As the Full Federal Court recently observed in Singh v Minister for Home Affairs [2019] FCAFC 3 at [35]–[37], the ultimate concern is with the identification of jurisdictional error: the review body not performing the function entrusted to it or not performing it in an authorised way. The degree of consideration which is necessary for jurisdiction to have been exercised is affected by the significance of the submission made to the decision-maker. In that regard, it is necessary to have regard to the whole of the decision-maker’s reasons and the issues considered.” (emphasis added)
Hourly rate
It is clear that before the Arbitrator, there was much discussion and argument about what was the appellant’s hourly rate. The appellant relied upon what he said transpired between himself and Mr Ibrahim. Mr Ibrahim on behalf of the respondent denied this and pointed to the contents of the payslip. In terms of the Arbitrator’s approach, she dealt with these arguments beneath three headings in her reasons. The three headings are credit,[109] contract terms[110] and finally PIAWE.[111] Given that what was alleged was the existence of an oral contract, it was proper and appropriate for the Arbitrator to proceed to deal with the credit issue that existed between the appellant and Mr Ibrahim. In many respects, this credit contest was the crux of the dispute. Ultimately in her credit findings, the Arbitrator for the reasons outlined in this section of the decision, preferred the evidence of Mr Ibrahim.[112] Having made this finding, the Arbitrator then considered the terms of the contract and the PIAWE. In this regard, PIAWE is inextricably linked to two aspects of the engagement, namely the hours worked per week and the hourly rate. It is apparent that where the Arbitrator is considering PIAWE, an aspect of that consideration must be the hourly rate because it would not be possible for any decision maker to reach a view on the quantum of PIAWE without dealing with this issue. The Arbitrator’s attention was clearly drawn to the appellant’s assertion that the oral agreement was initially that he would be paid $50 per hour[113] for a 55 hour week and that this was later modified by Mr Ibrahim to a promise to pay $45 per hour on the basis of the same hours.[114] Arising from this assertion, the appellant alleged that his PIAWE would thus be $2,475 per week.[115]
[109] Reasons, [56]–[62].
[110] Reasons, [63]–[72].
[111] Reasons, [73]–[80].
[112] Reasons, [62].
[113] Reasons, [15].
[114] Reasons, [17].
[115] Reasons, [17].
In terms of her consideration of the contract terms, the Arbitrator said “[t]he PIAWE for which Mr Sarheed contends is very high.”[116] The Arbitrator then proceeds to construe the contract terms and the PIAWE and the reasons for which she prefers to rely upon the payslip where the hourly rate of $26.91 is found.[117]
[116] Reasons, [63].
[117] Reasons, [75].
It is apparent to me that on a fair reading of the Arbitrator’s decision, she has in terms dealt with the appellant’s assertions regarding the hourly rate. In this regard I refer to the highlighted passage (set out above) from DNA17 where the full Federal Court said:
“In that regard, it is necessary to have regard to the whole of the decision-maker’s reasons and the issues considered.”
The whole issue of hourly rate was inextricably bound up in the Arbitrator’s findings regarding the appellant’s credit, the terms of the contract (which the parties agreed was oral) and ultimately what the PIAWE was.
In terms of the hourly rate allegation, the appellant’s case relies on his assertions regarding what he and Mr Ibrahim agreed being accepted. Once the Arbitrator made the credit finding that she did, the allegations regarding the hourly rate made by the appellant would of necessity fall away.
I am satisfied that the Arbitrator dealt with the issue of hourly rate and this is apparent from a consideration of her reasons as a whole. The first leg of Ground A therefore fails.
Job title
It is asserted on behalf of the appellant that “at no point in her Reasons is it apparent that the Arbitrator engaged or responded to the submissions made as to the matters which the respondent’s payslip reflected.” Namely, that on the payslip dated 29 January 2020 the appellant’s job title was described as that of a carpenter.
There was clearly a dispute between the parties as to the appellant’s job title. It was asserted by the appellant that he was a formworker. Mr Ibrahim said that he had been engaged as a formwork labourer.
The appellant, in his statement of 24 June 2020, alleges that Mr Ibrahim said the following to him on 7 January 2020:
“Hello Faisal. I have positions in form work available. I need someone to start urgently. Are you interested?”[118]
[118] ARD, p 11.
The appellant does not proceed to describe his duties. In the appellant’s second statement of 26 August 2020, he alleges that he commenced working as a “formworker” and then at [12] of this statement, describes the duties that he asserts he carried out. He also denies that he was employed as a labourer by the respondent.
Before the Arbitrator, counsel for the appellant asserted as follows:
“MR ADHIKARY: … Now the, the second reason why Mr Ibrahim’s evidence ought to not be accepted is that when you look at his statements he’s repeatedly stated that the applicant wasn’t employed as a formworker but that he was employed as a labourer, cleaning after the formworkers or such other effects but he’s made it clear repeatedly that the applicant wasn’t ..(not transcribable 0.13.28).. Given his own statement that the payslip that he’s provided is not false or incorrect, misleading and that it’s accurate. When you look at the payslip itself, Madam Arbitrator, underneath the heading again on the right hand side about the fourth line the applicant’s job title is listed as being a carpenter so clearly there’s a form of formwork.
ARBITRATOR: I’m not sure that necessarily follows but, yeah.
MR ADHIKARY: But, Madam Arbitrator, my instructions are that the, the carpenter and formworker that they’re related. It certainly is different to a labourer, but those are my instructions.”[119]
[119] T 9.18–10.5
The appellant’s submissions[120] assert as if it were proven as a fact that a carpenter is a formwork carpenter. The appellant’s submissions assert as if it were proven as a fact that a carpenter and a formworker are related callings.
[120] Appellant’s submissions, [41].
It was of course necessary for the Arbitrator to consider the whole question of job title because obviously if the appellant was retained in a more skilled classification, it is more likely than not that the wages to be paid for that position would be higher than those paid to a labourer.
At no stage in the appellant’s statements did he allege that he was a carpenter of any description, formwork carpenter or otherwise. He consistently alleged that he was formworker.
It is clear that there was a dispute about exactly the role that the appellant was engaged to perform. The appellant has alleged at the time of the formation of the contract that he was engaged as a formworker. Reliance is sought to be placed upon the payslip, which is only produced after the conclusion of the oral contract, as somehow supporting the allegation that he was a formworker on the basis, as asserted on behalf of the appellant, that “as being a carpenter so clearly there’s a form of formwork”.[121] The Arbitrator was not convinced with this submission. Counsel for the appellant then made an assertion that the two roles, carpenter and formworker, were related.
[121] T 9.30–31.
The Arbitrator at [39] of the Reasons stated as follows:
“Mr Adhikary said that I would not accept Mr Ibrahim’s evidence because he said there was no employment contract and because he repeatedly stated that Mr Sarheed was not employed as a form worker. However the payslip described Mr Sarheed as a carpenter which was related to being a form worker rather than a labourer.”
The issue regarding the description of the appellant as a carpenter as described in the payslip is an aspect of the appellant’s attack upon Mr Ibrahim’s credit. Indeed this is what the appellant asserts in this appeal. This aspect though regarding the payslip is a subset of a wider dispute regarding the appellant’s job title or classification. The appellant consistently maintained that he was a formworker, the respondent consistently maintained that he was a formwork labourer. For the reasons outlined by the Arbitrator, she was not persuaded by the appellant’s evidence regarding the conversations had with Mr Ibrahim, nor his evidence about the tasks actually undertaken by a formworker. I have not been persuaded how this finding is said to be in error in the Raulston sense.[122] The appellant’s assertion with regard to the description of the job title of carpenter on the payslip would only have resonance if it could be established that there was a relationship between the calling of a carpenter and that of a formworker. When this was asserted by the appellant before the Arbitrator, the Arbitrator, quite properly, indicated that she was not sure that that submission necessarily followed. No assistance, other than the bare assertion of a relationship between the two callings, was then made.
[122] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.
In the circumstances, and particularly having regard to the manner in which this assertion was put to the Arbitrator, it cannot be said that the description of the appellant being a carpenter in the payslip undermined Mr Ibrahim’s evidence as to the job title the appellant was engaged under. This assertion, as I have said above, is based upon the unsubstantiated assertion regarding the relationship of the roles of a carpenter and a formworker. In any event, the formation of the oral contract of employment took place at a point before the issuing of the payslip and it is clear that the Arbitrator has considered the evidence of both the appellant and Mr Ibrahim in reaching the decision that she did regarding the job title. Clearly from the transcript exchange that I have outlined above, the Arbitrator was not convinced of the bare assertion of the relationship between a carpenter’s role and that of a formworker. In those circumstances, and as I have related above in the extract from DNA17, if one considers the Arbitrator’s decision as a whole, it is clear that she has considered the relevant evidence regarding the appellant’s job title and found accordingly.
This aspect of Ground A has not been made out. Ground A is thus dismissed.
As to Ground B
Ground B attempts to overturn the credit findings that the Arbitrator made which were adverse to the appellant.
As I have described above in Ground A, this case involved a contest of credit between the appellant and the respondent’s principal, Mr Ibrahim. In terms of credit findings, the proper approach on appeal has been described by the High Court in Devries v Australian National Railways Commission.[123] In Devries, Brennan, Gaudron and McHugh JJ said as follows:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable.’”[124]
[123] [1993] HCA 78, 177 CLR 472 (Devries).
[124] Devries, 479 (citations omitted).
The relevant findings in the Arbitrator’s reasons were:
“Because of those concerns about Mr Sarheed’s credit, and because some of the evidence is improbable, as discussed below, I prefer the evidence of Mr Ibrahim where that differs from the evidence of Mr Sarheed.”[125]
And:
“For the reasons set out above, I accept the evidence of Mr Ibrahim where it conflicts with that of Mr Sarheed.”[126]
[125] Reasons, [62].
[126] Reasons, [78].
As is evident from these ultimate findings, namely that Mr Ibrahim’s evidence would be preferred to that of the appellant, both findings were prefaced upon a consideration of the Arbitrator’s weighing of the evidence of the two men.
The appellant alleges as follows in support of this appeal ground:
“The Arbitrator effectively determined that the Appellant committed Centrelink fraud for the above reasons.
Having regard to the seriousness of the Arbitrator’s findings, the Appellant submits the Arbitrator’s findings were not made on a sound evidentiary basis i.e. the evidence was not strong enough for the Arbitrator to be satisfied that the Appellant was committing, or intending to commit, Centrelink fraud.”[127] (emphasis added)
[127] Appellant’s submissions, [56]–[57].
It is asserted that absent a sound evidentiary basis, these “findings” ought not to have been made and, as I understand the appeal ground, this is asserted to be either an error of fact and/or an error of discretion.
For the reasons set out below I do not accept this submission.
It is important to make the point, contrary to the submission, that at no point in her decision did the Arbitrator determine that the appellant had committed Centrelink fraud. No fair reading of the decision substantiates that assertion. Rather, in paragraphs [57] and [58] of the Reasons, the Arbitrator was construing a bank statement provided by Mr Sarheed. Given that his level of remuneration was the matter that was in contest, it was proper and appropriate to review this material. The material concerned revealed receipt of Centrelink benefits. No issue was taken with that fact, although on appeal the timing of these payments was sought to be put into context by the appellant.[128]
[128] Appellant’s submissions, [58].
In my view, the manner in which the appellant has chosen to construe the Arbitrator’s findings is not available. No positive finding that the appellant had committed Centrelink fraud was made. No finding that the appellant was intending to commit Centrelink fraud was made. Rather, the Arbitrator was construing the appellant’s bank statement noting the Centrelink receipts and the fact that this was not explained by the appellant. At its highest, the Arbitrator stated that a request to be paid in cash could indicate that Mr Sarheed did not intend to disclose his earnings to Centrelink. In this section of the decision, the Arbitrator is opining about the content of the appellant’s bank statement and his failure to offer any explanation of its contents. This was all done for the purpose of weighing the appellant’s credit as opposed to that of Mr Ibrahim.
In terms of a finding of fact, I would not place this finding as described in [58] as high as being a positive finding of fact. Rather, it sits within the section of the Arbitrator’s decision where the credit of the two respective witnesses is being weighed. I should say that in arriving at this decision, I have not read the Arbitrator as making any finding that the appellant had committed criminal conduct or had any intention to do so. I do not accept that the approach adopted by the Arbitrator is in contravention of the remarks that I have set out from Devries at [170] above.
In terms of an error of discretion, for this allegation to be made good, the Arbitrator must have involved herself in a House v The King[129] type error. I do not see the basis for a House v The King type error in the Arbitrator’s reasoning. This was a case about the appropriate level of the appellant’s earnings which would then produce the PIAWE figure for his weekly compensation payments. This determination rested upon a review of the competing credit of the appellant vis-à-vis Mr Ibrahim. A review of the appellant’s bank statements was a proper and appropriate activity to be undertaken by the Arbitrator and given the contest between the parties, which was well known to the appellant, it was open to him to attempt to explain these matters. He did not and in the circumstances this, along with other reasons, caused the Arbitrator to have concerns about the appellant’s credit, hence her preference for Mr Ibrahim’s evidence. This was an approach which was available to the Arbitrator on the evidence and no error in approach has been disclosed. This appeal ground therefore fails.
[129] [1936] HCA 40; 55 CLR 499 (House v The King), 504–505.
As to Ground C
At paragraph [61] of the reasons, the Arbitrator drew a Jones v Dunkel inference against the appellant. This finding was preceded by the following passage where the Arbitrator addressed the position of Salam.
“Because of the controversy between the parties, it might be expected that Mr Sarheed would have supported his evidence by a statement from his friend, Salam but he did not. Mr Sarheed’s evidence is that Salam told him about the opportunity, that he was working for C1 and staying in accommodation paid for by C1. Mr Sarheed went to the ACT and stayed in that accommodation. After the injury, he said he was driven home by a friend. Mr Ibrahim referred to a small group of workers. Those circumstances suggest that those other workers may have been retained on a similar basis and would [h]ave knowledge of the rates of pay and hours worked.”[130]
[130] Reasons, [60].
The appellant takes issue with this inference. Specifically, the appellant says that the basis of the inference was that the appellant and Salam were friends, which was consistent with submissions made by the respondent’s counsel.[131]
[131] Appellant’s submissions, [64].
The appellant then contends as follows:
(a) that the Arbitrator failed to have regard to the fact that Salam was employed by the respondent;
(b) there was no evidence that suggested that Salam was present when the appellant and Mr Ibrahim spoke either in person or on the telephone;
(c) there was no evidence that the appellant and Salam ever discussed the terms of the appellant’s employment or remuneration with the respondent, and
(d) there was no suggestion what Salam’s evidence would actually have been, and whether Salam’s evidence would have been adverse to either party.
It is also alleged that the Arbitrator did not consider whether Salam was a witness that was expected to be called by the appellant rather than by the respondent.
The respondent’s counsel submitted as follows:
“The second thing is the applicant says in his first statement that it was this Salem or someone like that who, in fact, encouraged him to come down to the ACT to, to do some work. There’s no statement from him whatsoever. So that, that would have been easy enough one would have thought. That is, for the applicant to get a statement from his friend saying yep, this is what the arrangement is, this is what I do because Mr Salem was already there. He could have produced a statement from him but he has chosen not to do that. In my respectful submission you would draw the usual inference against the applicant where those matters are concerned.”[132]
[132] T 26.24–27.1.
Counsel for the appellant before the Arbitrator said this in relation to the Jones v Dunkel inference:
“Finally, Madam Arbitrator, the, there was submissions made about a, an inference, a Jones v Dunkel inference that could be drawn regarding Mr Salam or Salem. What Mr Salem’s evidence would go to is completely unclear. At no point does he say that Mr Salem was there ..(not transcribable 1.01.19).. conversation. At no point does he say Mr Salem was doing work on the exact same basis that I was. At no point does he say that, or any of the evidence, not just Mr, not just the applicant’s statement or does Mr Ibrahim give any relevance or any importance to Mr Salem in this case. So simply because there’s no evidence from a person doesn’t mean, (1) it’s material, or (2) that a Jones v Dunkel inference can be drawn in relation to the absence of that person and in my submission this is that precise case. No inference ought to be drawn. Mr Salem’s evidence is completely irrelevant.”[133]
[133] T 33.4–20.
It is therefore necessary to consider where Salam’s position as a possible witness is traversed in this matter.
The appellant submitted a statement dated 24 June 2020 with his Application to Resolve a Dispute. For relevant purposes, that statement said as follows:
“13. In the morning of 7 January 2020, I was contacted by a friend of mine named Salam and informed that a number of companies were looking for form workers on constructions sites in the Australian Capital Territory (ACT) and that the said companies were paying high hourly rates.
14. I was unemployed at the time Salam contacted me and I was looking for work. This is the reason that Salam contacted me to let me know of opportunities in the ACT.
15. I informed Salam that I was interested in working in the ACT and would take on the right opportunity.
16. Salam informed me that a person named Mohammed who had his own construction company operating on work sites in the ACT was looking for workers.
17. Salam informed me that he was working for Mohammed's company and that Mohammed's company was paying for his accommodation in the ACT.
18. Salam then invited me to attend the accommodation in the ACT that he was staying at.
19. Later that day on 7 January 2020, I left Sydney and drove down to the ACT to meet with Salam.”[134] (emphasis added)
[134] ARD, pp 10–11.
I pause at this point to confirm, consistent with the approach that I have taken in this judgment, that the Mohammed referred to in the appellant’s statement of 24 June 2020 has been and is described as Mr Ibrahim.
Mr Ibrahim on behalf of the respondent does not address the evidence regarding Salam which was relied upon by the appellant in his first statement of 24 June 2020. There are a number of aspects of the appellant’s statement which are worthy of close consideration before turning to a consideration of the inference drawn by the Arbitrator.
Salam is described as “a friend of mine” and he confirmed that a number of companies were looking for “formworkers on construction sites” and that the said companies “were paying high hourly rates”. These two statements attributed to Salam directly support aspects of the appellant’s claim. Firstly, there is a dispute about whether or not the appellant was employed as a formworker or as a labourer. This evidence from Salam is plainly deployed to assist the appellant’s assertion that he was engaged as a formworker. Secondly, the statement that companies were paying high hourly rates goes directly to one of the major facts in issue in this case, namely what the appellant was paid. The comment regarding high hourly rates is also deployed to provide support for the appellant’s assertion regarding what he claims was the monetary agreement that he had reached with Mr Ibrahim. It is then stated that Salam was working for Mr Ibrahim’s company and that Mr Ibrahim was looking for workers and that he was paying for accommodation in the ACT. On the same day as this conversation took place between the appellant and Salam, Salam invited him to attend the accommodation in the ACT and the appellant immediately left Sydney to go to the ACT to meet with Salam.
There are a number of aspects to the rule in Jones v Dunkel.
Firstly, the failure by a party to call a particular witness must be unexplained. In this case, it was the appellant who introduced Salam into evidence in his statement of 24 June 2020. No explanation for the failure to call Salam or to produce a statement from Salam was given by the appellant before the Arbitrator.
Secondly, the rule in Jones v Dunkel does not entitle the decision maker to draw an inference that the untendered evidence would have in fact been damaging to the party not tendering it.[135] In this case, at [61] of the Reasons, the Arbitrator drew the appropriate inference.
[135] Jones v Dunkel, 320–321.
Thirdly, the Jones v Dunkel rule applies where a party is required to either explain a matter or contradict something.[136] In this matter, various issues regarding the terms of the appellant’s engagement by the respondent were hotly in contest. The evidence that the appellant attributed to Salam supports the very matters that the Arbitrator was called upon to adjudicate.
[136] Jones v Dunkel, 321.
Fourthly, the position of a non-party witness who has not been called requires close consideration. Salam is of course a non-party witness. The appellant asserts, consistent with the decision of Glass JA in Parker, that had the Arbitrator considered the position of Salam as a non-party witness, the Arbitrator would not have reached the conclusion that the appellant would have been expected to call Salam in aid of his case.
The extract from Parker referred to in the appellant’s submissions is the leading decision on this aspect of the rule in Jones v Dunkel. I set the quote out in full:
“The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O’Donnell v. Reichard, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid., or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid., Regina v. Burdett, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid. Evidence capable of satisfying this condition has been held to exist in relation to a party’s foreman: Cafe v. Australian Portland Cement Pty. Ltd.; his safety officer: Earle v. Castlemaine District Community Hospital; his accountant: Steele v. Mirror Newspapers Ltd.; his treating doctor: O'Donnell v. Reichard.[137]
[137] Parker, 201–202.
The question that Glass JA is considering here is whether it would be natural for one party rather than the other to produce this witness. The question in this case is, was it natural for the appellant to have led evidence from Salam rather than the respondent. I would pause in addressing this question to note that neither party addressed this aspect of the Jones v Dunkel rule before the Arbitrator. On one view, given that the power on appeal rests upon the identification of error, given that this aspect of the rule in Jones v Dunkel was not contested, it might be said that by definition the Arbitrator was not in error. However I think the better view is that the rule in Jones v Dunkel comprises a number of aspects and the appellant is asserting in this appeal that the contents of the rule, not just aspects of it, were not satisfied.
With regard to the evidence of Salam and the appellant’s assertion that he was not a witness the appellant would have been expected to call, I do not agree with this submission. In light of the contents of the appellant’s statement of 24 June 2020 which I have outlined above, clearly the appellant had a close personal relationship with Salam. Indeed Salam knew that the appellant was looking for work and it was Salam who initiated the contact with the appellant which ultimately led to him being retained by the respondent. As I have described above, Salam’s evidence though goes in part to support the appellant’s case on at least two of the principal matters that were in issue, namely the appellant’s asserted retainer as a formworker, and the fact that they were being paid high hourly rates.
I accept that Salam was also an employee of the respondent. There is however no evidence as to his position in the respondent’s organisation and in particular whether he had any managerial or supervisory role. However the manner in which Salam’s evidence was introduced by the appellant does in my opinion inexorably lead to the conclusion that given the contents of the appellant’s statement, it would only be natural for the appellant to have led evidence from Salam.
In the circumstances, the inference drawn by the Arbitrator was proper and appropriate. As is often the case when a Jones v Dunkel inference is sought or opposed, submissions are made in very much a short hand manner. Not every aspect of the rule was necessarily addressed by the parties. When I consider the Commission’s obligation to provide adequate reasons, which is discussed at greater length at Ground D below, I find no error in approach with how the Arbitrator arrived at the Jones v Dunkel inference she ultimately drew. The consideration of the evidence that was before the Arbitrator shows that the salient aspects of the rule were satisfied and that the inference that was ultimately drawn was available to the Arbitrator on the evidence, in particular having regard to the manner in which this issue was argued before her.
Ground C fails.
As to Ground D
Ground D alleges that the Arbitrator failed to provide adequate reasons for her decision. A failure to provide adequate reasons is an error of law.
The starting point for consideration of such an assertion can be found in the statute which itself sets out the requirement to provide reasons:
“A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”[138]
[138] Section 294(2) of the 1998 Act.
Section 294(2) of the 1998 Act needs to be read in conjunction with the then rule 15.6 of the Workers Compensation Commission Rules 2011 (the Rules) which sets out what is required to meet the standard referred to in s 294(2). Rule 15.6 provides as follows:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
The obligation to give reasons has been described in a number of cases. In Soulemezis v Dudley (Holdings) Pty Ltd,[139] McHugh JA (as his Honour then was) said as follows:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”[140]
[139] (1987) 10 NSWLR 247 (Soulemezis).
[140] Soulemezis, 280.
Further, Snell ADP (as he then was) summarised the obligation to give reasons in Singh v FTW Products Pty Ltd:[141]
“62. To succeed in having the decision set aside on this ground Mr Singh must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
63. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).”
[141] [2007] NSWWCCPD 230.
There are a number of problems with the appellant’s submissions under this appeal ground. Firstly, as the Arbitrator correctly directed herself at [55], the appellant carried the onus of proving that his version of the terms of the oral contract of employment was the correct version.
The appellant seeks to impugn the adequacy of the Arbitrator’s reasons by reference to [65] of the reasons. This paragraph is not to be read in isolation. In the preceding paragraphs starting at [56], the Arbitrator considered the appellant’s credit and preferred the evidence of the respondent’s principal, Mr Ibrahim. At [63], the Arbitrator reasoned that “[t]he PIAWE for which Mr Sarheed contends is very high”, and further in [64]:
“In that context, I can say that it would be a very rare case that the PIAWE of a building worker would exceed the maximum weekly payment under s 34 of the 1987 Act. The circumstances of the formation of the contract reinforce my view that it is unlikely such a high PIAWE was agreed.”
It can be seen that by [65], the Arbitrator had already formed a view regarding the appellant’s credit as well as positing a view that the PIAWE contended for was “very high” and that it was “unlikely such a high PAWE was agreed”. The Arbitrator found in [65] that the retainer of the appellant on such a high rate of pay was improbable. This is consistent with the direction the Arbitrator gave herself in [54] and with Nguyen.
The appellant complains that “is not apparent why the Arbitrator determined that an employer would make an offer in the manner that she considered to be probable and not make an offer, in the manner contended by the Appellant, and for this offer to be improbable.”[142]
[142] Appellant’s submissions, [76].
With respect, this is not a correct reading of the Arbitrator’s reasons as a whole. The Arbitrator found that she preferred the evidence of Mr Ibrahim where it differed from that of the appellant. Clearly, there was great dispute between the appellant and Mr Ibrahim regarding the terms of his engagement, and consistent with the factual finding regarding credit made at [62], the impugned statement at [65] can be seen to have been consistent with the earlier credit finding.
This is how the Arbitrator arrived at her stated view that the terms of the offer asserted by the appellant in these proceedings was improbable.
Secondly under Ground D, the appellant alleges that the Arbitrator did not provide sufficient reasons for her findings that the appellant had in fact been offered employment on the terms of an undisclosed industrial award.[143]
[143] Reasons, [75].
For the reasons outlined below, I do not accept this submission. Firstly, in the respondent’s Reply to the Application to Resolve a Dispute there appears a statement of Mr Ibrahim of 6 August 2020. In this statement at paragraph [8] the following is said:
“For the applicant’s period of employment with C1 Formwork Group the applicant was paid 37.5 hours work at the rate of $26.91 per hour being the award rate paid for the applicant’s level of expertise.” (emphasis added)
From the date of the response, the respondent was clearly identifying that in its view the appellant was being paid pursuant to an award rate. It is true however that the particular industrial award was not identified. The matter of the unidentified award was the subject of discussion before the Arbitrator. This discussion starts at T31. Ultimately counsel for the appellant made the following submission to the Arbitrator:
“MR ADHIKARY: - - - well, well it states there that it’s paid by an award, Madam Arbitrator, so it’s not that, but that’s what the payslip states. In my submission when you look at all, all the facts in this case that’s not an accurate reflection of the true position. That, that’s the issue here for determination. I mean, yes, it’s, the fact that it says or gives a reference to an award I’m not cavilling the fact. What I’m cavilling with is whether it’s a true reflection of what actually - - -
ARBITRATOR: Of this contract.
MR ADHIKARY: - - - happened in this case.
ARBITRATOR: O.K.
MR ADHIKARY: Yes, Madam Arbitrator.”[144]
[144] T 31.31–32.13.
This exchange between counsel and the Arbitrator in many respects is not surprising. It was always the case in this matter that there was a dispute principally between the appellant and Mr Ibrahim about exactly what were the terms of the appellant’s engagement. Counsel in this exchange was not cavilling with the fact of the award, rather it was his submission that the agreement was something else.
So the respondent’s case below accepted the existence of the award but asserted that the agreement was made on a basis other than the award. Ultimately, once the Arbitrator made the findings that she did regarding the respective credit of the parties, she was left with the evidence of Mr Ibrahim that I have described above, which was to the effect that the appellant was paid consistently with an industrial award. This was the manner in which the matter was argued before the Arbitrator. Needless to say, a party is bound by the manner in which they present their case below.
In this regard, the appellant states that the Arbitrator has not indicated the evidentiary basis upon which the conclusion referred to at Reasons [65] was made.[145] I would remark that s 354 of the 1998 Act, which is now repealed, provides as follows:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
[145] Appellant’s submissions, [74].
In particular s 354(2) has been the subject of consideration by the Commission. Roche DP in PaulSegaert Pty Ltd t/as Lidco v Narayan[146] stated that s 354(2) did not give arbitrators “carte blanch to consider any material that he or she may consider of interest to an issue in dispute”. Further, Roche DP also remarked in that case that Arbitrators, when informing themselves on any matter, “have a duty to comply with the rules of natural justice and procedural fairness”. The matters which are the subject of the appellant’s complaints in Ground D were the subject of argument before the Arbitrator. The respondent asserted that the appellant had been paid consistently with an applicable industrial award, albeit that award was not identified in terms. The Arbitrator, at [63]–[64] of the Reasons, considered the very high level of PIAWE being asserted by the appellant through the Commission’s experience of having knowledge in the value of work in the labour market. She ultimately reached the view that it was improbable that the parties reached an agreement as asserted by the appellant. In my view, the reasons read as a whole satisfy the Arbitrator’s obligations pursuant to the Act and the Rules and the authorities that I have referred to, to provide reasons. No error is identified in the Arbitrator’s approach. Ground D fails.
[146] [2006] NSWWCCPD 296, [73].
DECISION
The Arbitrator has dealt with the case on the basis of the manner in which it was presented. No error in approach has been identified.
The appellant is granted leave to make submissions seeking to adduce fresh evidence on appeal.
The application by the appellant to adduce fresh evidence is denied.
The Arbitrator’s Certificate of Determination dated 15 September 2020 is confirmed.
Judge Phillips
PRESIDENT
27 April 2021
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