Sydney Trains v Ali-Ahmad - [2020] NSWWCCPD 4

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sydney Trains v Ali-Ahmad [2020] NSWWCCPD 4
APPELLANT:	Sydney Trains
RESPONDENT:	Fayez Ali-Ahmad
INSURER:	Transport for NSW
FILE NUMBER:	A1-5531/18
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	9 July 2019
DATE OF APPEAL DECISION:	29 January 2020
SUBJECT MATTER OF DECISION:	Alleged factual error, application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, duty to give reasons
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms R Petrolo, solicitor
Gair Legal
Respondent:
Mr M Hajje, solicitor
Fern Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 9 July 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Fayez Ali-Ahmad (the respondent) was employed by Sydney Trains (the appellant) from 1977. Initially he was a labourer; from 1989 he was employed as a station assistant, first at Redfern and from about 1990 at Bankstown. The respondent said that his supervisor at Bankstown belittled him and made unsubstantiated allegations, and from early 2014 he became increasingly anxious. The respondent identified various specific allegations that it is unnecessary to recite for the purposes of this appeal. The respondent suffered from renal problems and underwent surgery for kidney stones on a number of occasions. He was off work certified medically unfit from 2 July 2015 to 30 November 2015. He accepted a voluntary redundancy on 30 October 2015. He has not worked since. [1]
[1] Respondent’s statement 27/4/17, Application to Resolve a Dispute (ARD), pp 187–189.
The appellant issued multiple s 74 notices, denying liability on the basis of ‘injury’, s 9A of the Workers Compensation Act 1987 (the 1987 Act) (‘substantial contributing factor’) and s 11A of the 1987 Act (citing ‘transfer’, ‘discipline’ and the ‘provision of employment benefits’). The appellant also denied that incapacity continued and disputed there was any ‘permanent impairment’.[2]
[2] Reply, pp 20–22 (dated 26/8/16), 143–147 (dated 12/12/16), 154–159 (dated 23/2/17), 174–179 (dated 27/3/18).
These proceedings were commenced in an Application to Resolve a Dispute registered on 22 October 2018 (ARD). The claim was for weekly payments, medical expenses and lump sum compensation for 17 per cent permanent impairment in respect of psychological injury. At a telephone conference on 30 November 2018, the parties agreed the respondent had suffered a psychological injury deemed to have occurred on 16 November 2015. This disposed of the issues regarding ‘injury’ and s 11A previously raised by the appellant. The matter was referred to an Approved Medical Specialist (AMS) for assessment of whole person impairment in respect of that injury.[3]
[3] Certificate of Determination – Consent Orders, dated 30/11/18.
Dr Hong, an AMS, examined the respondent on 25 January 2019, and a Medical Assessment Certificate (MAC) was issued dated 5 February 2019. The permanent impairment assessment was 8 per cent, a figure insufficient to entitle the respondent to lump sum compensation (see s 65A(3) of the 1987 Act). An application by the respondent to appeal that assessment failed, as a…

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: [2020] NSWWCCPD 4
Decision Date: 29 January 2020

CaseChat Overview and Summary

Sydney Trains brought an application against Ali-Ahmad in the Fair Work Commission (FWC), challenging a decision made by an arbitrator. The dispute centred around whether the arbitrator had made an alleged factual error and the application of the principles outlined in Raulston v Toll Pty Ltd. The matter was heard and determined by the Full Bench of the FWC.

The legal issues before the Full Bench were twofold. Firstly, whether the arbitrator had erred in fact, leading to an unjust outcome. Secondly, whether the principles from Raulston v Toll Pty Ltd were correctly applied in the context of this case. The Full Bench needed to assess if the arbitrator had adequately discharged the duty to give reasons for the decision and whether this duty was satisfied.

In confirming the arbitrator’s decision, the Full Bench held that no factual error was evident and that the principles from Raulston v Toll Pty Ltd were appropriately applied. The Full Bench found that the arbitrator had sufficiently discharged the duty to give reasons. The reasoning was grounded in the fact that the arbitrator’s findings were supported by the evidence presented, and the decision-making process was transparent and rational. Consequently, the Full Bench upheld the original decision.

The orders of the Full Bench were to confirm the arbitrator’s decision dated 9 July 2019. This meant that the outcome reached by the arbitrator, which found in favour of Ali-Ahmad, was upheld by the Full Bench, and Sydney Trains’ application was dismissed.

Orders

Orders of the court

1. The Arbitrator’s decision dated 9 July 2019 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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