Snow Confectionary Pty Ltd v Askin
[2004] NSWWCCPD 56
•20 August 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56
APPELLANT: Snow Confectionary Pty Ltd
RESPONDENT: Guldeniz Askin
INSURER:NRMA Workers Compensation (NSW) (No.2) Pty Ltd
FILE NUMBER: WCC10103-2003
DATE OF ARBITRATOR’S DECISION: 18 September 2003
DATE OF APPEAL DECISION: 20 August 2004
SUBJECT MATTER OF DECISION: Application of sections 40 and 43A of the Workers Compensation Act 1987, Availability of work, Adequacy of reasons.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:27 July 2004
REPRESENTATION: Appellant: Bartier Perry Solicitors
Respondent: Watson Stafford Solicitors,
Attorneys, Notary
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked and the following decision is made in its place:
(1)That the Appellant pay the Respondent weekly compensation at the rate of $310.13 from 1 April 2003 to 19 August 2004 under section 40 of the Workers Compensation Act 1987.
(2)Such weekly payments to continue in accordance with the provisions of the Act.
(3)No order as to costs.
CONTENTS
THE APPEAL PARAGRAPHS 1 - 8
ISSUES IN DISPUTE PARAGRAPH 9
LEAVE PARAGRAPH 10
BACKGROUND FACTS PARAGRAPHS 11 - 14
THE RELEVANT LAW PARAGRAPHS 15 - 18
DISCUSSION AND FINDINGS PARAGRAPHS 19 - 47
DECISION PARAGRAPH 48
COSTS PARAGRAPH 49
THE APPEAL
On 13 October 2003 Snow Confectionary Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 18 September 2003.
The Respondent to the Appeal is Guldeniz Askin (‘the Respondent Worker/Ms Askin’). The Respondent Worker filed submissions in Reply to the appeal on 26 November 2003.
The relevant insurer is NRMA Workers Compensation (NSW) (No.2) Pty Ltd (‘NRMA’).
The appeal concerns a claim by Ms Askin for weekly compensation in respect of a lower back injury sustained on 15 July 1999, when employed by the Appellant Employer.
On 20 May 2003, Ms Askin lodged an ‘Application to Resolve a Dispute’ in the Commission. A teleconference was held between the parties on 12 August 2003, after which the matter proceeded to conciliation/arbitration on 9 September 2003. The parties were unable to reach an agreement; therefore the matter proceeded to arbitration before the same Arbitrator. Ms Askin gave oral evidence at the arbitration, which was sound recorded.
The ‘Certificate of Determination’ and attached ‘Statement of Reasons’ (‘the reasons’) dated 18 September 2003 records the Arbitrator’s decision, allegedly reached with the consent of the parties, as follows:
·“That the Respondent pay the Applicant weekly compensation at a rate equal to the amount that the worker was receiving as at and from the date weekly payments were stopped (1st April, 2003) [sic] to date.
·Such weekly payments to continue in accordance with the Act.
·The Respondent is to pay the Applicant’s costs as agreed or assessed.”
The Appellant Employer submits that the decision of the Arbitrator should be revoked and a new decision, that the Worker is not entitled to weekly compensation, be made in its place. The Respondent Worker submits the Arbitrator’s decision is correct and should be affirmed.
The matter was referred to me for review on 21 June 2004 and a hearing was held in the appeal on 27 July 2004. Ms Askin and the legal representatives of both parties attended the hearing.
ISSUES IN DISPUTE
The primary issue in the appeal is whether or not the Arbitrator erred in the application of section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) to the facts of this case (‘The Section 40 of the 1987 Act Error’). This section concerns the payment of compensation to a worker who is partially incapacitated. The Appellant also argues that the Arbitrator’s reasons are inadequate (‘The Reasons Error’).
LEAVE
Leave to appeal was granted on 23 June 2004 on the basis that:
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’),
·The amount of compensation at issue on the appeal is at least 20% of the amount awarded in the decision appealed against (section 352(2)(b) of the 1998 Act), and
·The appeal was lodged within 28 days of the Arbitrators Certificate of Determination (section 352(4) of the 1998 Act).
BACKGROUND FACTS
I have before me the transcript of the arbitration and the appeal hearing, the evidence that was before the Arbitrator and the parties’ submissions.
Ms Askin began working as a process worker/machine operator for Snow Confectionary Pty Ltd, in April 1994. On 15 July 1999, she suffered a musculo-ligamentous injury to her lower back when lifting and moving heavy boxes at work. Ms Askin lodged a claim for workers compensation the next day. On 26 August 1999 her claim for weekly benefits and related expenses was accepted. Ms Askin returned to work on light duties in December 1999, working to an Injury Management Plan, which was revised several times over the following year.
On 28 November 2000, Ms Askin’s employment with the Appellant Employer was terminated, on the basis that her impairment was permanent and the company no longer had “permanent suitable duties” to offer her. Following this, and whilst receiving weekly benefits, Ms Askin claimed that she made many attempts to find work, all of which were unsuccessful. The employer terminated her weekly benefits on the basis that she no longer had an entitlement to compensation under section 40 of the 1987 Act. Ms Askin has remained unemployed.
Ms Askin was paid weekly benefits pursuant to section 38 of the 1987 Act, for 52 weeks from the time of her termination. From 13 November 2001 to 31 March 2003, Ms Askin was paid weekly benefits under section 40 of the 1987 Act. However, on 19 February 2003, NRMA advised that payment of weekly benefits would soon cease, following a report from Ms Askin’s treating doctor certifying her fit for suitable duties, and a Report from Active Occupational Health Services, assessing her potential earning capacity, in various occupations, at a rate higher than she would have been receiving but for the injury. The insurer took the view that the worker was entitled to a section 40 of the 1987 Act compensation rate of “$0 per week”.
THE RELEVANT LAW
An Arbitrator’s decision should not be disturbed unless, on review, it is found to be affected by an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The error must be such that, but for it, a different decision should have been made (Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311). The jurisdiction of a Presidential member on appeal is to “review” the decision of an Arbitrator. It is not intended that this review become a hearing de novo of the dispute (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6, Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7).
The payment of weekly compensation during periods where a worker is partially incapacitated is governed by Section 40 of the 1987 Act, which provides as follows:
“40 Weekly payments during partial incapacity—general
(1) Entitlement
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
(2) Calculation of reduction in earnings of worker—general
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:(a)the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and
(b)the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).
(2A) Calculation of reduction in earnings of worker—workers rejecting suitable employment
If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:(a)the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and
(b)the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).
(2B) For the purposes of subsection (2A), a worker unreasonably rejects suitable employment if:
(a)a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or
(b)the worker obtains suitable employment with any person but subsequently unreasonably discontinues that employment.
(3) Ability to earn in suitable employment
The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:(a)the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,
(b)the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.
(4) Rehabilitation—unemployed (or not fully employed) workers
An injured worker who duly undertakes rehabilitation training under section 38 is not to be disadvantaged under this section by any increase in the amount that the worker would be able to earn merely because of that training, unless the worker unreasonably refuses an offer of suitable employment for which the worker has been trained. The Commission may determine any dispute about the operation of this subsection.(5) Maximum rate of compensation
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.(6) Adjustment of compensation—indexation
If it appears proper in the circumstances of the case, the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work may (subject to subsection (5)) be adjusted to take account of any adjustment because of the operation of Division 6 in the weekly payment that would be payable to the worker if it were a period of total incapacity for work.(7) Adjustment of maximum amounts—application
If an amount mentioned in subsection (2):(a)is adjusted by the operation of Division 6, or
(b)is adjusted by an amendment of this section,
the weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of partial incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted. 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.
(8) Exemption
This section does not apply to any period of partial incapacity for work during which the worker is compensated under this Act as if the worker’s incapacity for work were total.. . . ”
“Suitable Employment”, for the purpose of section 40, is defined in section 43A of the 1987 Act.
“43A Suitable employment
(1)For the purposes of sections 38, 38A and 40:
suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:
(a) the nature of the worker’s incapacity and pre-injury employment,
(b) the worker’s age, education, skills and work experience,
(c) the worker’s place of residence,
(d) the details given in the medical certificate supplied by the worker,
(e) the provisions of any injury management plan for the worker,
(f) any suitable employment for which the worker has received rehabilitation training,
(g) the length of time the worker has been seeking suitable employment,
(h) any other relevant circumstances.
(2)In the case of employment provided by the worker’s employer, suitable employment includes:
(a) employment in respect of which:
(i)the number of hours each day or week that the worker performs work, or
(ii)the range of duties the worker performs,
is suitably increased in stages (in accordance with a rehabilitation plan or return-to-work plan or otherwise), and
(b) if the employer does not provide employment involving the performance of work duties—suitable training of a vocationally useful kind provided:
(i)by the employer at the workplace or elsewhere, or
(ii)by any other person or body under arrangements made with the employer,but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the training concerned.
(3)However, in any such case, suitable employment does not include:
(a) employment that is merely of a token nature and does not involve useful work having regard to the employer’s trade or business, or
(b) employment that is demeaning in nature, having regard to subsection (1) (a) and (b) and to the worker’s other employment prospects.
(4)A worker is to be regarded as suitably employed if:
(a) the worker’s employer provides the worker with, or the worker obtains, suitable employment, or
(b) the worker has been reinstated to the worker’s former employment under Part 7 of Chapter 2 of the Industrial Relations Act 1996.”
In the leading case of Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) the Court of Appeal, Mason P, Beazley JA and Grove A-JA at 529, set out five steps for determining entitlement pursuant to section 40 of the 1987 Act, as follows:
“...the Court is required:
1.To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a))…
2.To determine ‘the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury’ (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:
‘(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.’…
3.To subtract the figure derived from 2. from the figure derived from 1. (section 40(2)).
4.To decide whether and to what extent the reduction calculated as above bears ‘such relation to the amount of that reduction as may appear proper in the circumstances of the case (section 40(1))…
5.To make an award in the amount arrived at in Step 4.”
DISCUSSION AND FINDINGS
The section 40 of the 1987 Act Error
The parties are in agreement as to the need to undertake the five Step assessment as outlined in Mitchell above. The Appellant Employer submits that a calculation of the Worker’s section 40 of the 1987 Act entitlement, in accordance with the procedure set out in Mitchell, would have resulted in a $Nil award for Ms Askin. The Respondent Worker submits that the Arbitrator’s finding is consistent with the correct application of Mitchell. Set out below are the parties’ submissions on each Mitchell Step and my findings.
Step 1
The parties agree that the Arbitrator correctly found that, pursuant to section 40(2)(a) of the 1987 Act, Ms Askin would have been earning $460.13 per week had she not been injured.
Step 2
The Arbitrator’s findings in relation to the second Mitchell Step are ambiguous and have contributed to the parties’ dispute over how the amount of Ms Askin’s entitlement has been calculated. The reasons do not expressly state whether the Arbitrator considered the factors in section 43A of the 1987 Act. He may have erred in failing to take those factors into account before arriving at his decision, or his reasons may simply be deficient. The Arbitrator finds, at paragraph 26 of the Reasons, that Ms Askin has been “diligently” looking for suitable employment and unable to find any. However in the ‘SUMMARY’ (at paragraph 29 of the Reasons) the Arbitrator finds that “the average weekly amount she would be able to earn in some suitable employment from time to time after the injury was $549.32 [sic]”. This is an apparent inconsistency, which ultimately permeates the understanding of the award that was made. Was the weekly amount which Ms Askin would probably have been earning as a worker but for the injury and had she continued to be employed in the same or some comparable employment, $Nil or $549.32?
The Appellant Employer submits that the Arbitrator correctly found that the worker was “fit and suited” to full-time work in a variety of occupations or, alternatively, that the Arbitrator improperly and incorrectly applied section 43A of the 1987 Act to the facts of this case. The availability of employment, it claims, is an irrelevant consideration in assessing Ms Askin’s ability to earn in suitable employment.
The Respondent Worker submits that the Arbitrator correctly considered the definition of “suitable employment” (in section 43A of the 1987 Act), for the purpose of Step 2 of the Mitchell test, and determined that the worker could earn $Nil income in suitable employment, as she could not find any. The Arbitrator accepted that the Worker had suffered a reduction in her earning capacity within the meaning of sections 40 and 43A of the 1987 Act. The Respondent Worker submits that in assessing a worker’s capacity for work for the purpose of section 40, allowances must be made for the availability of work in an accessible labour market (Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 (‘Mangion’), Wade v Allsop 10 ALR 353 (‘Wade’), and Cartner v Barclay [2002] NSWCC 9 (‘Cartner’)). The Arbitrator correctly found that, although Ms Askin had a hypothetical, or notional, capacity for work in which she could earn $549.32 per week, such work was not available to her in the accessible labour market, and so her capacity to earn in suitable employment was $Nil. Alternatively, the amount Ms Askin would have been able to earn is the difference between $549.32 and $460.13, which is $89.19.
The determination of what amount she would be able to earn in “suitable employment” is subject to both the definition of “suitable employment” under section 43A of the Act (Step 2(b)), and Ms Askin’s ability to earn in the labour market that is reasonably accessible to her (Step 2(a)). These matters must be determined by the Arbitrator, on the basis of the evidence before him.
Pursuant to section 43A of the 1987 Act, “suitable employment” for Ms Askin must be work for which she is suited, with regard, amongst other things, to her incapacity, pre-injury employment, work experience, education, skills and length of time unemployed. Ms Askin was assessed as being physically capable of carrying out work as a data entry operator, telephonist, call centre operator or clerical officer, for which she could earn $549.32 per week. However, physical capability alone does not make that work “suitable employment” within the meaning of section 43A of the 1987 Act. The Arbitrator expressly had regard to Ms Askin’s limited English skills, her limited work experience, and the fact that she is restricted in the amount of lifting she can do in any employment. Her only employment experience has involved manual labour within a factory (paragraph 28 of the Reasons). Ms Askin has unsuccessfully applied for many jobs during the period of her unemployment, most notably over the last six months. The Appellant Employer does not dispute this. I am satisfied that the Arbitrator relied upon these facts to find that, although Ms Askin had a theoretical ability to earn $549.32 in this type of employment, she was, in fact, earning, and able to earn, $Nil because there was no such employment available in the labour market that was reasonably accessible to her. Ms Askin therefore has no real ability to earn in the labour market reasonably accessible to her.
The Arbitrator referred to Ms Askin’s unsuccessful attempts to find work in the labour market around her. It appears that, although not expressed specifically, the Arbitrator has moved from a consideration of Step 2(b), to a consideration of Step 2(a) of the Mitchell test. After first stating that Ms Askin was “fit and suited” to the work described, the Arbitrator moved on state that Ms Askin had not been successful in finding work, then concluded with his decision that Ms Askin has a $Nil earning capacity. The Arbitrator’s reasons suggest, albeit inadequately, that he has determined that Ms Askin’s inability to gain employment means that employment of the sort described is not available to her in her reasonably accessible labour market.
Reading the decision as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444) and without combing it for error (Minister for Immigration and Ethnic Affairs v Wu Shu Liang (1996) 185 CLR 259), it is possible to distil the basis for the Arbitrator’s findings.The Arbitrator’s Orders reflect that he has not erred in his application of Step 2 of the Mitchell test, nor in his application of sections 40(2)(b) or 40(3) of the 1987 Act, in finding that the average weekly amount that Ms Akin would be able to earn after the injury, is $Nil.
Step 3
As detailed above, the Appellant Employer submits that the Worker has suffered no reduction in earning capacity as a result of the injury, and the finding that she suffered a wage loss entitling her to compensation was manifestly wrong.
The Respondent Worker submits that the Arbitrator made no error in his application of Step 3 of the Mitchell test. The Arbitrator’s stated finding that the amount Ms Askin could earn in suitable employment was $549.32 is inconsistent with the Orders made and the other findings in the reasons.
Given that I have concluded that the Arbitrator made no error in his determination under Step 2 of the Mitchell test, I find that the Arbitrator did not err in applying Step 3. A subtraction of “$Nil” from Ms Akin’s pre-injury weekly wage of $460.13, would leave her with a $460.13 reduction in wages as a result of the injury. This was the amount of compensation that she was receiving as at the date weekly payments were ceased, as adjusted, and is thus consistent with the Arbitrator’s Orders.
Step 4
The Appellant Employer submits that the Arbitrator incorrectly applied Step 4 of the Mitchell test, in that he erred in the exercise of discretion under section 40(1) of the 1987 Act. As the entitlement was $Nil the exercise of discretion to reduce it was otiose.
The Respondent Worker submits that the Arbitrator made no error in Step 4 of the test, and did not err in the exercise of his discretion under section 40(1) of the 1987 Act. The Respondent Worker submits that even if the Arbitrator is found to have made an error of discretion in his application of section 40 of the 1987 Act, the evidence that was before him clearly supports his decision.
The Arbitrator’s reasons make no express reference to the exercise of discretion to make such reduction of the amount of the weekly payment of compensation to Ms Askin “as may appear proper in the circumstances of the case” (section 40(1) of the 1998 Act).
At the hearing of the appeal the Respondent Worker made the following submission on the section 40(1) discretion (at page 20 of the transcript):
“ . . .in the exercise of discretion, you really have to give great weight to the substantial efforts that the worker made to find work. As I recall the evidence, the worker gave some evidence about work she had looked for but there was also documentary material on job searching. We would say this worker has gone way beyond what most workers would do by way of reasonably trying to find work in the labour market and that is powerful evidence that you would have regard to in exercising your discretion. You obviously have to have some regard to the fact that the worker does have some residual earning capacity and it would probably be in -appropriate to find that the difference is zero or that her earning capacity is zero. We would submit that this worker, in exercising discretion, you might consider she retains the residual earning capacity of $100 to $150 a week.”
In view of the submissions made to me on appeal and the paucity of the Arbitrator’s reasons, I conclude that the Arbitrator erred in failing to consider the exercise of discretion in section 40(1) of the 1998 Act. This error is sufficient to set the decision aside.
I accept the Respondent Worker’s submission that Ms Askin has a residual capacity to earn in suitable employment, notwithstanding that she has to date had difficulty in obtaining it. I propose to order that she is entitled to weekly payment of compensation but that her entitlement should be reduced by $150 per week.
Step 5
The Appellant Employer submits that the Arbitrator has erred in the application of Step 5 of the Mitchell test, as the award made in Step 5 should have been $Nil.
The Respondent Worker submits that the Arbitrator made no error in relation to Step 5 of the Mitchell test, as the decision to award $460.13 in weekly compensation, was correct, in accordance with the previous steps taken, and the evidence and findings of fact in the matter.
The Arbitrator has erred in his application of Step 5 of the Mitchell test, in failing to deduct the discretionary amount of $150 per week referred to above, and finding that Ms Askin is entitled to $460.13 in weekly compensation as a result of her injury.
Ms Askin’s entitlement to weekly compensation pursuant to Section 40 of the 1998 Act, in accordance with Step 5 of the Mitchell test, is as follows:
1. Ms Askin would probably have been earning $460.13 gross per week, but for her injury.
2. The average weekly amount that Ms Askin is earning or would be able to earn in some suitable employment from time to time, taking into account her ability to earn in the general labour market reasonably accessible to her and having regard to what is ‘suitable employment’ for her, is $Nil.
3. Ms Askin’s entitlement pursuant to section 40(2) is $460.13.
4. It is appropriate, in the circumstances of this case to recognise that Ms Askin retains some ability to earn, and as a result, an amount of $150 per week should be deducted from her entitlement to weekly payment of compensation under section 40(1).
5. Ms Askin is entitled to weekly compensation of $310.13 per week.
The Reasons Error
The parties are in agreement in their submission that the Arbitrator’s reasons for decision are inadequate. The Appellant Employer submits that the Arbitrator erred in failing to give reasons or sufficient reasons as to the manner in which he exercised his discretion pursuant to sections 40(1) and 40(2) of the 1987 Act. The Respondent Worker submits that a reading of the reasons as a whole shows that those reasons are sufficient. In the alternative, if the Arbitrator’s reasons are found to be insufficient, the Respondent Worker submits that the evidence before the Arbitrator was enough to support the findings of fact and the conclusions reached.
An Arbitrator has a statutory duty to provide adequate reasons for decision. Part 9 of Chapter 7 of the 1998 Act provides for a scheme for the resolution of workers compensation disputes by the Commission. Section 294 of the 1998 Act provides that:
“294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
An Arbitrator’s decision must be based on logically probative evidence supported by adequate written reasons, which apply the relevant law to the facts of the instant case. The Workers Compensation Commission Rules 2003 (‘the Rules’) must be read together with the provisions of the Act. Rule 70 provides that:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a)evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
Rule 73 provides as follows:
“73Certificates 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 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 lead 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.”
It is not necessary for an Arbitrator to give lengthy reasons for their decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant and judicial authority on the matters decided.
Justice Kirby in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 discussed the duty to give reasons, at paragraph 64 of his judgment, thus:
“The more significant the decision, the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation. Especially is this so where the legislature has recognised the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person. In such a case, the duty to give reasons is one which this Court should uphold. The just, rational and lawful administration of the law is at stake.”
And, at paragraph 105 of his judgment:
“Rationale for reasons: The rationale of the obligation to provide reasons for administrative decisions is that they amount to a ‘salutary discipline for those who have to decide anything that adversely affects others’. They encourage ‘a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making’. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision affects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases ‘public confidence in, and the legitimacy of, the administrative process’.
In the context of more general developments in Australian administrative law, facilitated by legislative provisions enacted by the Parliament requiring the giving of reasons, the foregoing explanations and justifications are reinforced both by Australian judicial authority and by expert administrative agencies. Similar points have been made in academic writing both in Australia and overseas.”
In my view, the reasons do not comply with the requirements of the Rules and are inadequate. It can be seen from the discussion above that the reasons did not set out with enough clarity the relevant findings on material questions of fact, the Arbitrator’s understanding of the applicable law or the Arbitrator’s application of the law to those findings.
DECISION
The decision of the Arbitrator is revoked and the following order is made in its place:
(1) That the Appellant pay the Respondent weekly compensation at the rate of $310.13 from 1 April 2003 to 19 August 2004 under section 40 of the Workers Compensation Act 1987.
(2) Such weekly payments to continue in accordance with the provisions of the Act.
COSTS
The appeal has been only partly successful. I make no order as to costs.
Dr Gabriel Fleming
Deputy President 20 August 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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