State Transit Authority of NSW v Chemler
[2005] NSWWCCPD 82
•10 August 2005
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Remitted on Appeal: This decision had been the subject of a remitter from the court of Appeal: see State Transit Authority of NSW v Chemler [2006] NSWCA 249; and State Transit Authority of NSW v Chemler No 2 [2006] NSWWCCPD 332; (2006) 5 DDCR 78 | ||||||
| CITATION: | State Transit Authority of NSW v Chemler [2005] NSWWCCPD 82 | |||||
| APPELLANT: | State Transit Authority of NSW | |||||
| RESPONDENT: | Fritzi Chemler | |||||
| INSURER: | State Transit Authority of NSW | |||||
| FILE NUMBER: | WCC509-04 | |||||
| DATE OF ARBITRATOR’S DECISION: | 10 August 2004 | |||||
| DATE OF APPEAL DECISION: | 10 August 2005 | |||||
| SUBJECT MATTER OF DECISION: | Sections 9A and 11A of the Workers Compensation Act 1987; psychological injury, treatment of evidence, focus on the worker’s perception of events. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Robin Handley | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Sparke Helmore, Lawyers | ||||
| Respondent: | Turner Freeman, Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator is confirmed. | |||||
| The Appellant, the State Transit Authority of NSW, is to pay the Respondent, Mr Chemler’s costs in this appeal as agreed or assessed. | ||||||
BACKGROUND TO THE APPEAL
On 3 September 2004, the State Transit Authority of NSW (‘STA’), the employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 10 August 2004.
The Respondent to the Appeal is Fritzi (Freddy) Chemler. Mr Chemler was born in Romania on 1 April 1946 and is aged 59. He claims his wife, Miriam, is mainly dependent on his earnings and, at the relevant time, his son, Addy, who was born on 19 November 1986, was totally dependent on his earnings.
Mr Chemler says he learned his trade as a welder in Romania, before moving to Israel, from where he migrated to Australia in March 1979. He commenced employment with the STA as a boilermaker/welder in March 1981. He was later re-classified as a body maker. On 6 January 2003 and 6 June 2003, Mr Chemler notified the STA that he was suffering from anxiety and depression, and hypertension, as a result of “racial harassment, anti semitic graffiti and victimisation” at work. He lodged workers compensation claims on 29 January 2003 and 23 June 2003.
On 12 January 2004, Mr Chemler’s ‘Application to Resolve a Dispute’ was registered by the Commission. Mr Chemler claimed weekly benefits of $1,026.86 from 7 June 2003 to date and continuing, and medical, hospital or related expenses amounting to $3,113.90. The STA denied liability. Its ‘Reply’ was lodged with the Commission on 2 February 2004.
The Arbitrator held a teleconference with the parties on 25 May 2004 and, on 22 June 2004, conciliation having proved unsuccessful, commenced an arbitration hearing that was concluded on 9 August 2004. The Arbitrator delivered ex tempore reasons for his decision at the end of the hearing. The Certificate of Determination, set out below, was issued on the following day.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 10 August 2004 records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of $843.30 from 7 June 2003 to 6 December 2003 under section 36 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant weekly compensation at the rate of $460.50 from 7 December 2003 to 31 March 2004 under section 37 of the Workers Compensation Act 1987.
3. That the Respondent pay the Applicant weekly compensation at the rate of $468.90 from 1 April 2004 to 27 June 2004 under section 37 of the Workers Compensation Act 1987.
4. That the Respondent pay the Applicant weekly compensation at the rate of $468.30 from 28 June 2004 to date under section 40 of the Workers Compensation Act 1987.
5. That the Respondent have credit for any payments of weekly benefits made in the periods above.
6. Such weekly payments to continue in accordance with the provisions of the Act.
7. That the Respondent pay the Applicant’s expenses not already paid by the Respondent under section 60 of the Workers Compensation Act 1987 up to the sum of $5,637.00 on production of accounts or receipts.
8. That the Respondent pay the costs of the Applicant as agreed or assessed.
9. Determine [sic] that this matter is a complex matter as provided for in Item 4.10 of Schedule 6 of the Workers Compensation Regulations 2003.”
In his ex tempore reasons, the Arbitrator acknowledged there was conflicting evidence from Mr Chemler and other people in his workplace at the STA’s Waverley depot, and that Mr Chemler’s account of the facts was not always entirely clear or consistent. The Arbitrator accepted the evidence of the STA’s witnesses that there was no direct racial vilification (arbitration hearing transcript page 57 to 58):
“However, there is no doubt that in this workplace, racial slurs and comments were made, particularly in relation to the Jewish religion, and the respondent’s witnesses accept that. They say that it was a joke, and I accept that that was not a joke as far as Mr Chemler was concerned. I accept that these jokes occurred in the workplace going back at least until 2001.
I also accept that Mr Chemler … had made complaints about his treatment not in relation to his race but in relation to other issues going back as far as July 2001 … his letter of Monday, 2 July 2001 clearly expresses his concern he’s getting in the workplace. It doesn’t refer to racial vilification but it does refer to him being harassed in the workplace.”
The Arbitrator found the evidence to be consistent with the history that Mr Chemler gave Dr Robert Lewin, Consultant Psychiatrist, as recorded in his report of 23 March 2004. The Arbitrator found that Mr Chemler was isolated in his workplace, and that there were people who did not like him. Moreover, there were “racially based jokes that were particularly offensive to Mr Chemler”, there were signs that referred to his religion “and they, when added to the other things, would have further affected Mr Chemler”. The Arbitrator said (transcript pages 58 to 59):
“I don’t accept that Mr Chemler recently invented his concern in relation to the way he was treated in the Waverley workshop. I think that he was affected and as at, I think, January 2003 he sought treatment.
I accept what the respondent says, that he only sought that treatment after he had been disciplined and that it’s the discipline that caused Mr Chemler to be emotionally distressed and to cause him his psychological injury …
The legislation requires me to determine whether Mr Chemler’s present illness was substantially contributed by conditions that occurred at work, and I accept what Dr Lewin says, that it was. It may not have been the sole cause but it was a substantial contributing factor to Mr Chemler being sick, and I accept what Dr Lewin says and what the psychologist had to say, that Mr Chemler is and was sick and continues to be sick and unable to work as a result of his psychological injury and, therefore, he’s entitled to compensation.”
The Arbitrator found Mr Chemler had no real prospect of finding alternative employment for which he might be qualified. He appears to have accepted that Mr Chemler was totally incapacitated for work for the period from 7 June 2003 to 27 June 2004, and partially incapacitated for work thereafter. The Arbitrator then made the awards of weekly compensation and the award in respect of section 60 expenses that are set out in the Certificate of Determination. He found Mr Chemler was presently working 20 hours a week on a return-to-work program and therefore had a residual earning capacity of $370.60. The difference between such residual earning capacity and comparable wages to those Mr Chemler would have been earning if not injured of $843.30, was $472.70. However, this was above the maximum statutory rate of $468.90, which was, therefore, what the Arbitrator awarded for the period from 28 June 2004 to date and continuing, as indexed. [Although the figure of $468.90 was agreed by the parties, the basis for the figure is unclear: it seems to be the rate for a worker with a dependent wife and one dependent child. See paragraph 38, below.]
ISSUES IN DISPUTE
The principal issues in dispute before the Arbitrator were, first, whether Mr Chemler suffered an ‘injury’ that was a ‘psychological injury’, second, whether Mr Chemler’s employment was a substantial contributing factor to his injury, and, third, whether his psychological injury was wholly or predominantly caused by reasonable action taken by the STA with respect to his performance.
The grounds of appeal identified by the STA are as follows:
“1. That the Arbitrator failed to consider and apply the test in sections 11A and 9A of the Workers Compensation Act 1987.
2. That the Arbitrator failed to take into account relevant material considerations, such as evidence, written and oral, from the Appellant.
3. That the Arbitrator gave improper weight to some pieces of evidence that were, in the circumstances, extraneous or irrelevant.
4. That the Arbitrator was mistaken as to the facts alleged from both the Appellant and the Respondent.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(6)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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties. The STA submits that the appeal involves complex legal and factual issues, significant conflict as to the correct interpretation of the law and as to the facts, that there are questions as to the credit of Mr Chemler, and that the determination involves substantial financial ramifications for the STA. Mr Chemler’s solicitors submit that the matter should be dealt with on the papers, there being a record of all submissions made to the Arbitrator as well as the written submissions filed by the parties in relation to the appeal. Having considered these submissions, 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), according to the STA, the amount of compensation at issue is $45,471.15 and $468.30 per week to date and continuing. This comprises 100% of the amount awarded by the Arbitrator. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
The STA’s first ground of appeal is that the Arbitrator failed to apply sections 11A and 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). With regard to section 11A, despite the STA’s pleading the section as a defence to Mr Chemler’s allegations on the basis that his psychological injury was wholly or predominantly caused by disciplinary matters, there is no mention of section 11A in the Arbitrator’s statement of reasons. Failure to address a relevant principle is an error of law. The STA submits the Arbitrator’s finding that Mr Chemler “only sought treatment after he had been disciplined and that it’s the discipline that caused Mr Chemler to be emotionally distressed and to cause him his psychological injury”, justifies an award in favour of the STA if section 11A is applied.
Mr Chemler’s solicitors respond that the Arbitrator found the cause of Mr Chemler’s psychological injury was harassment and racial vilification in the workplace. Consequently, section 11A had no application. Moreover, none of the medical opinion before the Arbitrator considered that Mr Chemler’s injury was due to disciplinary action.
With regard to section 9A, the STA submits the Arbitrator, while relying on Dr Lewin’s report of 23 March 2004, failed to refer to his later report, dated 20 May 2004, in which Dr Lewin acknowledged the different version of events put forward by the STA suggested that “Mr Chemler has, with hindsight, a different emphasis upon the various elements of his reported difficulties”. The STA submits:
“The Arbitrator erred in law by not identifying which was the causative factor of injury, and then applying section 9A to ascertain if employment was the substantial contributor to the injury.”
Mr Chemler’s solicitors reject this submission: the Arbitrator expressly referred to the need to determine whether Mr Chemler’s “present illness was substantially contributed by conditions that occurred at work” and accepted that it was. With regard to Dr Lewin’s subsequent report of 20 May 2004, for the Arbitrator, having accepted the facts were as stated by Mr Chemler, the subsequent report of Dr Lewin was of no relevance. In any event, Dr Lewin did not change his earlier opinion. Rather, he emphasised the effect that the offending sign bearing the words “Out Jewish”, displayed in the workplace, would have on the child of a holocaust survivor.
The STA’s second ground of appeal is that the Arbitrator failed to take into account relevant material considerations such as evidence, written and oral, from the STA. On the one hand, the Arbitrator acknowledged that Mr Chemler’s account was “not entirely clear and is not always consistent”, while on the other hand he acknowledged that the STA’s witnesses denied any racist comments were made to Mr Chemler. Thus, the issue of whether racist comments were made should have been answered in the negative. Similarly, the Arbitrator failed to explain why he did not accept Mr Ashley’s statement denying that he harassed Mr Chemler.
Mr Chemler’s solicitors submit the Arbitrator accepted, quite properly, Mr Chemler would find the sign erected at his workplace that said “Out Jewish” and “Isn’t it funny in a Jewish world” to be offensive, even if not intended to be by way of racial vilification or not considered offensive by the STA’s witnesses. With regard to Mr Ashley, it was clear that, after analysing the evidence, the Arbitrator preferred Mr Chemler’s version of events.
The STA’s third ground of appeal is that the Arbitrator gave improper weight to extraneous and/or irrelevant evidence. The STA submits the Arbitrator placed too much weight on the presence of the sign in the workplace containing racist material, and assumed the workplace was, therefore, a place where racist slurs and comments were made in relation to the Jewish religion. However, the Arbitrator found that Mr Chemler was first affected by the sign in January 2003, despite the sign having been at the same workplace since 1995. The relevance of the sign only becomes an issue where Mr Chemler can prove it was partly or wholly causative of the injury.
Mr Chemler’s solicitors point to Dr Lewin’s opinion that:
“the psychiatric condition was directly caused by the impact of this sign which was correctly perceived to be as an insult and a provocation in the strongest terms. This measure was designed to hurt and there is no doubt it did so.”
Mr Chemler’s solicitors submit the wording of the sign was undeniably racist, offensive to the Jewish religion and hurtful. The Arbitrator’s conclusion was merely a statement of clear fact. The Arbitrator was entitled to accept Mr Chemler’s evidence that he was aware of the sign and was offended by it. The mere fact that others were not aware of the sign does not preclude Mr Chemler’s being aware of the sign, which was undeniably there.
The STA’s final ground of appeal is that the Arbitrator made mistakes of fact, relying on Mr Chemler’s version of events to the exclusion of the STA’s version. There were strong doubts as to the version of events recorded by Dr Lewin on which the Arbitrator relied. Moreover, the Arbitrator misinterpreted the evidence of Mr Chemler’s friend, Mr N Papadopoulos, claiming that he said the people at the Waverley workshop did not like Mr Chemler. In fact, Mr Papadopoulos’ had never noticed the sign and confirmed that Mr Chemler was not harassed due to his religion. The Arbitrator had the opportunity to take evidence from the STA’s witnesses about these matters but failed to do so. The STA also submits the Arbitrator misconceived the effect of the injury on Mr Chemler’s earning capacity and failed to follow the correct procedure required for an award under section 40 of the 1987 Act.
Mr Chemler’s solicitors submit the Arbitrator accepted Mr Chemler’s version of events, noting this was consistent with the history given to Dr Lewin. The STA’s complaints about the treatment of Mr Papadopoulos’ evidence is merely a matter of semantics. With regard to Mr Chemler’s capacity for work, the Arbitrator accepted the STA’s contention that Mr Chemler had a residual earning capacity equal to what he was currently earning working for 20 hours per week. As to section 40, Mr Chemler’s solicitors submit that while the Arbitrator did not refer to the exercise of the discretion in subsection 40(1) of the 1987 Act, the STA made no submission on this and the evidence does not disclose any matter that would give rise to a proper exercise of the discretion.
EVIDENCE
The Arbitrator decided not to take oral evidence at the hearing, but chose to rely on written statements from Mr Chemler and from the STA’s witnesses, and on the medical reports, with the benefit of submissions for the parties.
In his statement dated 5 December 2003, Mr Chemler said that from when he transferred to the STA’s Waverley depot in October 1995, he experienced various forms of harassment and victimisation as a result of which he felt bullied. He was upset and depressed and started having bad headaches. Mr Chemler went to see his doctor who diagnosed him as suffering from hypertension and prescribed medication. Mr Chemler said what he “felt was constant victimisation” continued, including various forms of “ragging”. However, there were also incidents when his work was criticised, in part, it would seem, because of communication problems. In late December 2002, according to Mr Chemler as a result of a misunderstanding, he was disciplined for leaving a job unfinished and demoted from a level 4 to a level 3 tradesman for three months. In early January 2003, he became increasingly upset and anxious and consulted his general practitioner, Dr SR Fischer who issued a medical certificate stating Mr Chemler was not fit for work. She recommended rest and counselling. Mr Chemler subsequently returned to work but, in early June 2003, the maintenance manager criticised his work, Mr Chemler felt intimidated and traumatised, and did not work after 6 June 2003.
Dr Fischer provided a report dated 10 October 2003. She said she first saw Mr Chemler on 8 January 2003 when “he was extremely distressed, depressed and tearful”. Mr Chemler returned to work in late January 2003 and, at first, seemed to be coping. However, when Dr Fischer saw Mr Chemler on 6 June 2003, he said “he was again being harassed”, and was extremely distressed by anti-semitic slogans in the workplace. Dr Fischer referred Mr Chemler to a clinical psychologist, Mr Tom Jones, for counselling. On advice from Mr Jones, Dr Fischer subsequently prescribed anti-depressant medication. In Dr Fischer’s most recent report dated 9 May 2004, she said Mr Chemler’s “mood remains low and he is very unhappy … I feel his depression and inability to return to the workplace are a direct result of his treatment in the workplace”.
In a report dated 20 August 2003, Mr Jones diagnosed “adjustment disorder with anxiety and low mood, in partial remission”. He said Mr Chemler would be able to return to work when he is “confident that he will not be subjected to discriminatory disciplinary procedures, or subjected to anti-semitic harassment”. Mr Jones said, in his opinion, Mr Chemler’s employment “was a substantial contributing factor in [sic] causation of his psychological injuries”. In his most recent report dated 7 May 2004, Mr Jones diagnosed “chronic adjustment disorder, with symptoms of both anxiety and low mood”. Mr Jones said “it is my firm clinical opinion that he himself strongly believes that he has been subject to discriminatory practices”. In his opinion, “his continuing incapacity to return to State Transit to work in any capacity results directly from events which have occurred in the workplace”.
The STA commissioned a report from SC Hall & Co, Insurance Investigators and Assessors, dated 4 August 2003. Included with the report are statements from staff at the STA’s Waverley depot. The report confirmed the presence of a sign at the workplace, a piece of sheet metal attached to the wall of the body repairers’ room bearing the words “Out Jewish”, and “Home Sweet Home Dave Barbon and Keith Abrahams $ Jewish Boys (The “O.T.” Kings) Money Money Money isn’t funny in a Jewish World”. Photographs of the sign appear in the filed papers. The report stated the sign had been there for several years and was taken down “in mid July 2003 when the matter was brought to the attention of management at the Waverley depot”. The report concluded there was no evidence of any discrimination, harassment or vilification against Mr Chemler because of his Jewish background, or that the sign ever referred to Mr Chemler:
“Indeed all of the evidence is to the effect that the sign referred to David Darbon and Keith Abrahams who were keen workers of overtime. The evidence was all to the effect that the sign in question had been a running joke among Workshop staff about Mr Darbon and Mr Abrahams being regular and enthusiastic workers of overtime. All of the evidence is to the effect that the sign never referred to Mr Chemler.”
The STA referred Mr Chemler to Dr Eva Lowy, Clinical and Organisational Psychologist, for assessment. In a report dated 9 July 2003, Dr Lowy diagnosed Mr Chemler as suffering from “a mild Adjustment Disorder with Mixed Anxiety and Depressed Mood, especially when ruminating about the workplace”. She considered employment a substantial contributing factor to the injury. She said, in her opinion:
“the substantial cause of Mr Chemler’s lingering distress is the perceived instances of harassment and intimidation consistent with Mr Chemler’s perceptions of workplace discrimination and racism. As Mr Chemler is the only worker of Jewish faith in the workplace he has taken these comments to be personally directed at him.”
Dr Lowy suggested that it would be appropriate for a rehabilitation provider to contact Mr Chemler to facilitate a return to work at another workplace.
The STA also provided a copy of the Notice of Punishment dated 17 December 2002 detailing Mr Chemler’s misconduct, that is, essentially, alleged poor workmanship. There are also reports and letters concerning various other incidents that constitute the history of Mr Chemler’s employment at the Waverley depot. Other documents filed indicate Mr Chemler lodged an appeal with the Transport Appeals Board dated 8 January 2003 against his demotion, for three months, from a level 4 to a level 3 tradesman.
The documents filed include a letter dated 6 June 2003 from David Yates, Acting Maintenance Manager Waverley Depot, to Mr Chemler, alleging poor workmanship in carrying out repairs to the window of a bus. Mr Chemler said he refused to sign this letter to acknowledge receipt. On 7 August 2003, Mr Chemler lodged a complaint alleging racial hatred, discrimination, harassment, bullying, intimidation and victimisation because of race, Jewish origin and religious beliefs, in the Human Rights and Equal Opportunity Commission. This complaint was the subject of a Deed of Settlement between Mr Chelmer and the STA dated 2 March 2004.
The STA filed reports from Dr Robert Lewin, Consultant Psychiatrist, dated 23 March 2004 and 20 May 2004, and a letter from Dr Lewin to the STA dated 16 June 2004. In his initial report of 23 March 2004, Dr Lewin, who had examined Mr Chemler on 19 March 2004, recorded the history given to him by Mr Chemler. Dr Lewin diagnosed an “Adjustment Disorder with Mixed Emotional Features (of anxiety and depression)”. He said:
“the psychiatric condition was directly caused by the impact of this sign [the “Out Jewish” sign] which was correctly perceived to be as an insult and a provocation in the strongest terms. This measure was designed to hurt and there is no doubt that it did so.”
Dr Lewin suggested a return to work at a different workplace and that a rehabilitation consultant be employed for this purpose.
Dr Lewin’s report of 20 May 2004 is a response to a letter from the STA’s solicitors that, apparently, drew Dr Lewin’s attention to the complaints of poor workmanship made against Mr Chemler. Dr Lewin noted this represented a different version of events to that reported to him by Mr Chemler although “[t]his may well just be a difference of emphasis”. Dr Lewin reconsidered his conclusions about causation expressed in the earlier report but did not appear to change them, instead discussing the likely impact of such a sign on a child of a holocaust survivor.
Dr Lewin’s letter to the STA dated 16 June 2004 concerns Mr Chemler’s proposed return to work at the STA’s Randwick depot. Dr Lewin said a graded return to work was appropriate and suggested further counselling with Mr Jones.
The parties provided the Commission with an Agreed Wages Schedule received on 6 August 2004 showing Mr Chemler’s award rate of $843.30 and his entitlement for the period 7 June 2003 to date and continuing, should a finding of total work-related incapacity be made in Mr Chemler’s favour for that period. The parties agreed that Mr Chemler’s maximum statutory entitlement from 1 April 2004 was $468.90.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the STA must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
Having examined the evidence and the submissions of the parties on the appeal, I am not satisfied that the Arbitrator made any error of law or fact in relation to his treatment of the evidence or findings of fact. In my view, it is clear from all the medical evidence that Mr Chemler perceived he was being subjected to harassment and victimisation, and it was this perception that caused his psychological injury. This is consistent with the opinions of Drs Lewin and Fischer, and psychologists Dr Lowy and Mr Jones. The fact there are inconsistencies between Mr Chemler’s evidence and that of the STA’s witnesses is not in itself surprising because Mr Chemler’s evidence is a reflection of his perception of events.
The evidence indicates Mr Chemler perceived the events surrounding his being disciplined in December 2002 and June 2003 for alleged poor workmanship, as being part of the harassment and victimisation. Similarly, he perceived the “Out Jewish” sign as an overt display of discrimination, the sign being clear tangible evidence to which he could point. It was therefore natural that he should focus on this both in terms of his perceptions and in seeking to prove discrimination. Equally, it was natural for others, when told by Mr Chemler of the sign, to use it as important evidence of how Mr Chemler was being treated in the workplace. The fact that the sign may not have been directed at Mr Chemler and that it was not intended as a racial slight, does not alter the fact of Mr Chemler’s perception when seen in the context of other incidents over the course of several years that he perceived to constitute harassment or victimisation.
The Arbitrator gave an ex tempore decision and reasons for that decision. It was not incumbent upon the Arbitrator to address every statement, report or other evidence before him. His statutory duty, pursuant to section 294 of the 1998 Act and Rules 70 and 73 of the Workers Compensation Commission Rules 2003, was to provide adequate reasons for his decision, including findings on material questions of fact, referring to the evidence upon which those findings were based. With regard to the STA’s witness statements, the Arbitrator referred to evidence from other people in the workplace conflicting with that of Mr Chemler, and accepted (arbitration hearing transcript page 57):
“what the respondent’s witnesses say, that nobody said to Mr Chemler directly anything that was intended to be by way of racial vilification. However, there is no doubt that in this workplace, racial slurs and comments were made, particularly in relation to the Jewish religion, and the respondent’s witnesses accept that. They say it was a joke, and I accept that that was not a joke as far as Mr Chemler was concerned. I accept that these jokes occurred in the workplace going back at least until 2001.”
I am not persuaded the STA has made out its second ground of appeal. I am not satisfied that the Arbitrator failed to take into account relevant material evidence provided by the STA. Similarly, with regard to the STA’s third ground of appeal, I am not satisfied that the Arbitrator placed too much weight on the presence of the “Out Jewish” sign. It would not be unreasonable to conclude that Mr Chemler perceived the sign as a clear manifestation of the discriminatory way in which he was treated in the workplace, and for others to focus on the sign as evidence of the way in which he was treated. Certainly, Dr Lewin considered Mr Chemler perceived the sign to be an “insult and a provocation in the strongest terms” and did not retract this opinion in his later report after his attention had been drawn to contradictory evidence.
For the same reasons, I am not persuaded the STA has made out its final ground of appeal: I am not satisfied the Arbitrator made mistakes of fact in relation to the evidence. His focus was rightly on Mr Chemler’s perceptions. It is in relation to this final ground that the STA raises the issue of whether the Arbitrator failed to follow the correct procedure for an award under section 40 of the 1987 Act. Mr Chemler’s solicitors acknowledge that the Arbitrator did not refer to the exercise of the discretion in section 40(1). However, they point out that the STA made no submission to the Arbitrator on this issue and that the evidence does not disclose any matter that would give rise to a proper exercise of the discretion.
I agree the Arbitrator did not properly address the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527, in particular step 4, whether to exercise the discretion in section 40(1). Nevertheless, in my view, there is no evidence that would justify exercising the discretion in section 40(1) to adjust the amount of the reduction in earnings and therefore the amount of weekly compensation payable. I note the STA made no submission on this issue at the hearing. Despite the Arbitrator’s error of law in not specifically addressing step 4, I am not satisfied that a rehearing and redetermination of this issue would lead to any different outcome and I decline to revoke the award on this basis. Whilst, initially, the Arbitrator seemed to think Mr Chemler had a residual earning capacity of only $1, he quickly corrected this at the prompting of the STA’s counsel and found Mr Chemler’s residual capacity for work to be 20 hours per week. The parties were in agreement that his residual earning capacity was $370.60 per week.
The other errors of law contended by the STA fall under its first ground of appeal, that the Arbitrator failed to apply sections 11A and 9A of the 1987 Act. Section 11A provides that no compensation is payable in respect of a psychological injury if that injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to, amongst other matters, performance appraisal and discipline. Although I agree the Arbitrator did not sufficiently set out his reasoning process on this issue, it is clear enough that he found the psychological injury suffered by Mr Chemler was caused by what Mr Chemler perceived to be harassment, victimisation and racial vilification. As mentioned above, the medical evidence supports such a finding. The Arbitrator did accept that Mr Chemler only sought treatment after he had been disciplined, and that this caused him emotional stress and motivated him to seek treatment (arbitration hearing transcript page 59). However, the Arbitrator went on to say that although the conditions at work were not the sole cause of Mr Chemler’s injury, they were the substantial contributing factor to his injury.
In my view, it could reasonably be argued that the disciplinary action taken by the STA was a symptom of how Mr Chemler was being treated at work. Having so concluded, the Arbitrator should have specifically addressed section 11A of the 1987 Act and, presumably, had he done so, he would have found section 11A to have no application. Despite what is arguably an error of law in failing to specifically address section 11A, in my view this is not a basis for revoking the decision since the outcome would be the same.
Turning to section 9A, this provides that no compensation is payable in respect of an injury “unless the employment concerned was a substantial contributing factor to the injury”. As stated above, the Arbitrator found that Mr Chemler’s conditions of work were the substantial contributing factor to his injury. The STA contends the Arbitrator failed to refer to Dr Lewin’s later report of 20 May 2004 in which he acknowledged a different version of events put forward by the STA. It is true the Arbitrator does not refer to this later report. However, in my view, that report contributes little to the overall picture. The Arbitrator’s focus was, rightly, on Mr Chemler’s perception of events. Dr Lewin’s later report does not suggest any alteration of his opinion, despite the STA having brought to his attention the conflicting version of events described by its witnesses.
Thus, in relation to the STA’s first ground of appeal, I am not satisfied the Arbitrator made an error of law by failing to apply section 9A of the 1987 Act, and the Arbitrator’s error of law in failing to address section 11A does not warrant revoking the decision since, in my view, the outcome would be the same. Certainly, the Arbitrator’s reasons could have been better stated, but I also do not consider them to be so inadequate as to amount to a failure by the Arbitrator to exercise his statutory duty fairly and lawfully (YG & GG v Minister for Community Services [2002] NSWCA 247).
Having found no legal, factual or discretionary error warranting interference with the Arbitrator’s determination, the determination must be confirmed.
DECISION
The Arbitrator’s decision is confirmed.
COSTS
The STA is to pay Mr Chemler’s costs in this appeal as agreed or assessed.
Robin Handley
Acting Deputy President
10 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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