State of South Australia (Department for Education & Child Development) v Andrzejczak

[2018] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Permission to Appeal in Private)

STATE OF SOUTH AUSTRALIA (DEPARTMENT FOR EDUCATION & CHILD DEVELOPMENT) v ANDRZEJCZAK

[2018] SASC 30

Judgment of The Honourable Chief Justice Kourakis

15 March 2018

WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - AMOUNT OF COMPENSATION DURING INCAPACITY - WEEKLY PAYMENTS

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

Application for permission to appeal in private against a decision of Full Bench of the South Australian Employment Tribunal, pursuant to s 68(2) of the South Australian Employment Tribunal Act 2014 (SA).

Held, granting permission to appeal:

(1) The application raises an arguable question of the proper construction of the term ‘entitlement’ contained in clause 37 of Schedule 9 of the Transitional Provisions of the Return to Work Act 2014 (SA). The question is of general importance affecting important workplace rights of injured workers.

South Australian Employment Tribunal Act 2014 (SA) s 68(1); Transitional Provisions of the Workers Rehabilitation and Compensation Act 1986 (SA) (repealed) cl 37(6) of Schedule 9, referred to.
Pennington v Return to Work SA [2016] SAET 21, discussed.

STATE OF SOUTH AUSTRALIA (DEPARTMENT FOR EDUCATION & CHILD DEVELOPMENT) v ANDRZEJCZAK
[2018] SASC 30

Civil:  Application to Appeal

1. KOURAKIS CJ: This is an application to appeal pursuant to s 68(1) of the South Australian Employment Tribunal Act 2014 (the SAET Act). The proposed appeal is against a decision of the Full Bench of the South Australian Employment Tribunal delivered on 21 December 2017 on a question of law concerning the proper construction of clause 37 of Sch 9 of the Transitional Provisions of the Return to Work Act 2014 (the RTW Act).

2. The RTW Act commenced operation on 1 July 2015[1] on which date the Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act) was repealed. Part 10 of Schedule 9 of RTW Act enacts transitional provisions to provide continuing entitlements, in prescribed circumstances, for workers suffering an injury attributable to a trauma that occurred before 1 July 2015 (an existing injury). Clause 37 of Schedule 9 provides for the continuation of payments of income maintenance for limited periods from 1 July 2015 for several categories of workers who, in respect of an existing injury, were “immediately before the designated day [1 July 2015], still entitled to receive a weekly payment”. Clause 37(6) provides:

   To avoid doubt, a person who, before the designated day, has ceased to have an entitlement to weekly payments on account of a discontinuance under section 36 of the repealed Act is not entitled to weekly payments under this clause (or under the repealed Act).

   [1]    Save for certain provisions which commenced at or subsequent to the Gazettal of the Act on 4 December 2014 but prior to this date; nothing turns on the respective commencement dates of such provisions for the purposes of determining the present application.

3. The respondent suffered existing injuries to her left shoulder and back and was, at least, partially incapacitated for work and subject to medical restrictions at all material time from 24 February 2014.  However the respondent returned to work with her employer on alternative duties and was earning at or above her notional weekly earnings.  Accordingly, the respondent was not in receipt of any payments of income maintenance in the week immediately before 1 July 2015.

4. The Full Bench of the South Australian Employment Tribunal held that the respondent was entitled to receive a weekly payment within the meaning of that term in clause 37 even though her employer had provided, in accordance with its statutory duty, alternative employment at a remuneration which meant that no weekly payment of compensation was actually payable to her. 

5. Accordingly, on the reasoning of the Full Bench, the respondent was entitled to income maintenance payments for 26 and 27 October 2015, and 15 and 16 March 2016 on which days she was totally incapacitated for work.

6. The Full Bench held that an entitlement within the meaning of that term in clause 37 may be a nascent or inchoate one and need not be one which results in an entitlement to an actual payment.  The decision of the Full Bench is inconsistent with the statement of principle made by a differently constituted Full Bench in Pennington v Return to Work SA,[2] that entitlement in clause 37 means an entitlement to receive an actual weekly payment and not merely to a “notional or theoretical entitlement”.  Even though there is a factual difference between Pennington and this case, in that the circumstances in Pennington fell within the express terms of clause 37(6), it is desirable that the tension between the respective judgments be resolved by this Court.  The question is of general importance affecting important workplace rights of injured workers.

   [2] [2016] SAET 21 at [25].

7. I grant permission to appeal.