Smyth v Charles Sturt University - [2007] NSWWCCPD 184

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Smyth v Charles Sturt University [2007] NSWWCCPD 184

APPELLANT:  Thomas Raymond Smyth
RESPONDENT:  Charles Sturt University
INSURER:Allianz Australia Workers Compensation
FILE NUMBER:  WCC16434-06
DATE OF ARBITRATOR’S DECISION:          16 February 2007
DATE OF APPEAL DECISION:  23 August 2007
SUBJECT MATTER OF DECISION: Section 11A of the Workers Compensation Act 1987; error of fact; whether re-allocation of duties was a response to performance appraisal/management.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:On the papers
REPRESENTATION:  Appellant:      Maurice Blackburn Cashman
Respondent:   Vardanega Roberts

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 16 February 2007 is revoked and the matter is remitted to another Arbitrator for determination, in accordance with these reasons, of the Appellant Worker’s entitlement, if any, to payment of compensation.
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.

The costs of the proceedings before the first Arbitrator are to follow the event when the matter is determined.

BACKGROUND

Dr Thomas Raymond Smyth, the Appellant Worker, was born on 22 January 1942. He commenced employment as a Lecturer in Psychology at Charles Sturt University (‘the University’), the Respondent Employer, on 15 August 1994.

Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’) was the University’s insurer at all relevant times.

On 26 March 2004 Dr Smyth attended a meeting with his University supervisor, Associate Professor Michael Collingridge, to discuss issues concerning his work performance and the University’s expectations of its academic staff. On 13 April 2004 Dr Smyth visited his general practitioner, Dr Robert Cox and was diagnosed as suffering from stress. On 11 May 2004 Associate Professor Collingridge wrote to Dr Smyth as a follow up to the March meeting, providing a set of the University’s minimum requirements in relation to his teaching and research duties.

A meeting was held on 6 December 2005 to further discuss Dr Smyth’s work performance. In attendance were three of Dr Smyth’s supervisors, a representative from the University’s Human Resources section, Dr Smyth’s union representative and Dr Smyth. A summary of this meeting was sent to Dr Smyth on 14 December 2005. This correspondence set out the areas of performance, which were viewed as unsatisfactory, the process for managing these issues in the future and a timeframe in which Dr Smyth was to respond.

On 16 December 2005 the Deputy Vice-Chancellor of the University advised Dr Smyth that his application for Special Studies Program leave (sabbatical leave), for the purpose of writing a book and carrying out research, from 25 January 2006 to 25 July 2006, had been deferred until there was a resolution of the issues raised regarding his work performance.

On 21 December 2005 Dr Smyth submitted to the University his written response to the University’s correspondence dated 14 December 2005.

Dr Smyth was informed by email on 18 January 2006 that he had been re-allocated different teaching subjects for the first semester of 2006, because another University lecturer had agreed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWWCCPD 184
Decision Date: 23 August 2007

CaseChat Overview and Summary

The appeal in Smyth v Charles Sturt University was heard by the Workers Compensation Commission, with Deputy President Gary Byron presiding. The Appellant, Dr Thomas Raymond Smyth, challenged the Arbitrator’s decision that his claim for workers compensation was barred under section 11A of the Workers Compensation Act 1987. The core issue was whether the Arbitrator correctly determined that the reallocation of Dr Smyth’s teaching duties by the Respondent, Charles Sturt University, was part of a performance appraisal process, thus triggering the exclusion under section 11A.

The University argued that the reallocation of duties was a reasonable action taken during the performance appraisal process, aimed at managing and improving Dr Smyth’s performance. Conversely, Dr Smyth contended that the reallocation was purely administrative, necessitated by his sabbatical leave, and not related to any performance appraisal or management. The Deputy President examined the evidence and found that the reallocation of duties was not part of the performance appraisal process but an administrative necessity due to Dr Smyth’s sabbatical leave. The reasoning highlighted that there was no evidence to suggest the reallocation was connected to the performance management process, contrary to the Arbitrator’s conclusion.

As a result, the Deputy President concluded that the Arbitrator erred in finding that the reallocation of duties fell within the scope of the performance appraisal process. Consequently, the decision of the Arbitrator was revoked, and the matter was remitted to another Arbitrator to determine Dr Smyth’s entitlement to compensation, in accordance with the Deputy President’s reasons. The University was ordered to pay Dr Smyth’s costs of the appeal, while the costs of the initial arbitration would follow the event when the matter is finally determined.

Orders