Star Entertainment Group Ltd v Antoniak

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Star Entertainment Group Ltd v Antoniak [2020] NSWWCCPD 46
APPELLANT:	Star Entertainment Group Ltd
RESPONDENT:	Kabir Antoniak
INSURER:	Gallagher Bassett Services Pty Ltd
FILE NUMBER:	A1-4077/19
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	9 October 2019
DATE OF APPEAL DECISION:	23 July 2020
SUBJECT MATTER OF DECISION:	Monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 – Popovic v Liverpool City Council [2017] NSWWCCPD 49, Westpac Banking Corporation v Dinning [2019] NSWWCCPD 33, Corporate Management Services (Australia) Pty Ltd v Country Energy [2010] NSWWCCPD 5 discussed; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Hall & Wilcox

Respondent:
Mr C Tanner, counsel
Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	1.     The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied, and there is no right of appeal.

INTRODUCTION AND PROCEDURAL BACKGROUND

1. Mr Kabir Antoniak (the respondent) was employed by Star Entertainment Group Ltd (the appellant) as the restaurant manager of the Flying Fish restaurant. He commenced that employment on 6 November 2018.

2. The respondent described a number of stressors in the course of his employment, including a performance review on 9 February 2019. On 10 February 2019, the respondent notified the appellant that he was suffering from a psychological injury as a result of his employment and ceased work.

3. On 30 April 2019, the respondent lodged a notice of injury, citing as the cause of his injury the requirement to work long hours together with having undue stress placed on him by his immediate superior and the owner of the restaurant. On 22 May 2019, the appellant issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant accepted that the respondent had suffered a psychological injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) and that the respondent’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. The appellant, however, declined liability for the injury on the basis of s 11A of the 1987 Act, alleging that the respondent’s injury was wholly or predominantly caused by reasonable action taken by the appellant in respect of performance appraisal and/or discipline.

4. The respondent commenced proceedings in the Commission, claiming weekly payments of compensation and treatment expenses pursuant to s 60 of the 1987 Act. The respondent alleged that his injury was caused by:

   (a)    bullying and harassment in the workplace;

   (b)    excessive work hours;

   (c)    an unfair performance review, and

   (d)    failure by the Director of Dining to:

   (i)act on complaints about staff members and a part owner of the restaurant,…