Sydney Opera House Trust v Sykes - [2006] NSWWCCPD 227

WORKERS COMPENSATION COMMISSION

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

CITATION:Sydney Opera House Trust v Sykes [2006] NSWWCCPD 227
APPELLANT:  Sydney Opera House Trust
RESPONDENT:  Tanya Sykes
INSURER:GIO General Limited
FILE NUMBER:  WCC15421-05
DATE OF ARBITRATOR’S DECISION:          21 December 2005
DATE OF APPEAL DECISION:  13 September 2006
SUBJECT MATTER OF DECISION: Leave to appeal; section 308 Workplace Injury Management and Workers Compensation Act 1998; costs
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Moray & Agnew
Respondent:   Leigh Virtue & Associates

ORDERS MADE ON APPEAL: Leave to appeal is refused.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 10 January 2006 Sydney Opera House Trust (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 December 2005.

The Respondent to the Appeal is Tanya Sykes (‘the Respondent Worker/Ms Sykes’).

Ms Sykes was employed by the Appellant Employer on 30 May 2005 as a rehabilitation co-ordinator. Her contract of employment was intended to expire on 30 November 2005. On 23 June 2005 she was involved in a motor vehicle accident on her way home from work and sustained injury. She returned to work on or about 8 July 2005 but had a number of days off work before her employment was terminated on 14 July 2005.

The Respondent Worker remains off work and has been paid and continues to be paid all her entitlements to hospital and medical expenses and weekly compensation under the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’). There is no outstanding claim for compensation before the Commission.

On 9 September 2005 Ms Sykes filed an Application to Resolve a Workplace Injury Management Dispute (‘the Application’) alleging that:

(a)the injury management plan had not been followed;
(b)there was no return to work plan, and
(c)no suitable duties had been provided.

The Application was conciliated by the Registrar, through her delegate, on 22 September 2005 when he was unable to find that a dispute had been made out in respect of points (a) and (b) above. In respect of point (c) the Registrar stated that “since the Commission is unable to provide the worker with a remedy of reinstatement to her employment with the Respondent it would be inappropriate…to make such the subject of a recommendation”. As a result the Registrar determined:

· “To decline making a recommendation.
· To decline an order for costs against the Respondent.”

The Respondent Worker submits that the Registrar’s delegate could not and did not deal with the proceedings as he is not a member of the Commission. I reject that submission. It ignores section 371 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) which provides that the Registrar can delegate any of the Registrar’s functions under the Workers Compensation Acts (the 1987 Act and the 1998…

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: [2006] NSWWCCPD 227
Decision Date: 13 September 2006

CaseChat Overview and Summary

In the case of Sydney Opera House Trust v Sykes, the Appellant Employer sought leave to appeal against a decision of the Workers Compensation Commission, which was made by an Arbitrator. The Respondent Worker, Tanya Sykes, had been employed by the Appellant Employer and sustained an injury in a motor vehicle accident on her way home from work. Following her injury, Ms Sykes filed an Application to Resolve a Workplace Injury Management Dispute, alleging various issues regarding her injury management plan and employment conditions. The Arbitrator declined to make a recommendation and ordered the Appellant Employer to pay the Respondent Worker’s costs.

The appeal raised three primary issues: the jurisdiction of the Arbitrator, the appropriateness of the costs order, and the finding concerning the reason for Ms Sykes' termination. The Appellant Employer argued that the monetary threshold for leave to appeal had not been met, as the claim did not seek compensation but rather alleged procedural failures in managing Ms Sykes’ injury. The court agreed, noting that since no compensation was claimed, the appeal did not meet the monetary threshold required by section 352 of the Workplace Injury Management and Workers Compensation Act 1998.

Additionally, the court found that the Arbitrator did not have jurisdiction to hear the matter as no recommendation had been made by the Registrar, which was a prerequisite under section 308 of the Act. Consequently, the Arbitrator’s order for costs was deemed incorrect, as it did not align with established principles that only exceptional circumstances, such as misconduct or unnecessary prolongation of proceedings, warrant such an order. The court highlighted that the Appellant Employer’s success in the Arbitration did not justify an order for costs against it.

Ultimately, leave to appeal was refused due to the failure to meet the monetary threshold. Consequently, the court was unable to formally correct the jurisdictional error or address the costs order. The Appellant Employer was, however, ordered to pay the Respondent Worker’s costs for the appeal.

Orders