Taylor-Craig v Smartgroup Benefits Pty Ltd - [2023] NSWPIC 137

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Taylor-Craig v Smartgroup Benefits Pty Ltd [2023] NSWPIC 137
APPLICANT:	James Taylor-Craig
RESPONDENT:	Smartgroup Benefits Pty Ltd
PRINCIPAL Member:	Glenn Capel
DATE OF DECISION:	30 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; dispute regarding the applicant’s pre-injury average weekly earnings (PIAWE); whether bonus payments should be included in the calculation of the PIAWE having regard to the terms of the applicant’s contract and clause 6(2)(d) of Schedule 3; Held – the respondent had a discretion to pay the bonuses under the terms of the contract, so such payments were made without obligation; the bonus payments are excluded from the calculation of the PIAWE; award for the applicant; credit for payments already made.
determinations made:	The Commission determines: 1. The applicant sustained a psychological injury arising out of or in the course of his employment on 4 February 2022 (deemed). 2. The applicant’s employment was the main contributing factor to his injury. 3. The applicant had no current work capacity from 4 February 2022 to 10 May 2022. 4. The applicant was paid weekly compensation from 4 February 2022 to 4 May 2022. 5. The applicant’s pre-injury average weekly earnings were $1,407.04 as of 4 February 2022 and $1,432.93 as of 1 April 2022. 6. The respondent paid the applicant weekly compensation from 4 February 2022 to 4 May 2022. The Commission orders: 1. The respondent to pay the applicant weekly compensation as follows: (a) $1,336.69 per week from 4 February 2022 to 31 March 2022 pursuant to s 36(1) of the Workers Compensation Act 1987; (b) $1,361.28 per week from 1 April 2022 to 5 May 2022 pursuant to s 36(1) of the Workers Compensation Act 1987, and (c) $1,146.34 per week from 6 May 2022 to 10 May 2022 pursuant to s 37(1) of the Workers Compensation Act 1987. 2. The respondent to have credit for payments already made. 3. Liberty to the parties to apply in respect of these calculations within 14 days of this determination.

STATEMENT OF REASONS

BACKGROUND

James Taylor-Craig (the applicant) is 49 years old and commenced employment with Smartgroup Benefits Pty Ltd (the respondent) as a leasing consultant on 1 July 2018. His current employment status is unknown. He was previously employed by Smartsalary Pty Ltd.
There is no dispute that the applicant suffered a psychological injury arising out of or in the course of his employment on 4 February 2022 (deemed) and that his employment was the main contributing factor to his injury. Further, there is no dispute that the applicant had no current work capacity from 4 February 2022 to 10 May 2022. The applicant was certified fit to return to his pre-injury duties on 10 May 2022.
The applicant submitted a claim form to the respondent on 31 March 2022, alleging that he suffered his injury because of limited time to complete tasks, poor systems, excessive workload and lack of assistance. He first experienced symptoms on 1 February…

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: [2023] NSWPIC 137
Decision Date: 30 March 2023

CaseChat Overview and Summary

This case, heard in the Workers Compensation Court, involved a dispute between the applicant, Taylor-Craig, and the respondent, Smartgroup Benefits Pty Ltd, regarding the calculation of the applicant’s pre-injury average weekly earnings (PIAWE) under the Workers Compensation Act 1987. The primary issue before the court was whether certain bonus payments made to the applicant should be included in the calculation of the PIAWE, having regard to the terms of the applicant’s contract of employment and clause 6(2)(d) of Schedule 3.

The court needed to determine the extent to which discretionary bonuses, which were not guaranteed under the applicant's contract, impacted the calculation of PIAWE. The terms of the applicant's contract explicitly stated that discretionary benefits, including any bonus or incentive payments, did not form part of the contract of employment or remuneration. The court considered the nature of these bonuses, which were subject to the company’s absolute discretion and could be altered or ceased at any time without any obligation. Clause 6(2)(d) of Schedule 3 further supported the exclusion of such discretionary payments from the PIAWE calculation.

In its reasoning, the court held that since the bonuses were paid at the company's discretion, they were not obligatory and should not be included in the PIAWE calculation. The court concluded that the bonuses were discretionary benefits not guaranteed under the employment contract, thereby excluding them from the calculation of the PIAWE. The court awarded the applicant’s claim, taking into account the credit for payments already made.

The court’s final orders provided that the respondent must calculate the applicant’s PIAWE without including the discretionary bonus payments, and awarded the applicant compensation accordingly. The court also directed that credit be given for any payments already made to the applicant, ensuring that the applicant was not overcompensated.

Orders

Orders of the court

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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

The relevant paragraphs in the “Terms Sheet” are as follows:“4 RemunerationYour total remuneration package is $76,321.50 gross per annum (‘TRP’). Your TRP presently consists of the following components:(a) Base Salary $69,700.00 gross, per annum (This is the full time equivalent fixed annual salary, where you work part time hours, the amount will be pro rata accordingly).(b) superannuation $6,621.50 gross, per annum. (This is the full time equivalent amount, where you work part time hours, the amount will be pro rata accordingly). Superannuation contributions will be paid into an approved fund nominated by you, or in the absence of such nomination into an approved fund nominated by the Company.You will be paid your remuneration for the month on the 15th of each month by electronic funds transfer into your nominated bank account after deduction of all taxes, superannuation contributions and, if relevant, salary sacrifice amounts.Your TRP compensates you for any benefits or entitlements under any applicable award, other industrial instrument or any law and you will not be entitled to receive any additional payment in respect of such benefits or entitlements. This includes, without limitation, any overtime payments, penalty rates, allowances and loadings to which you may be entitled under an award other industrial instrument or law.Your TRP is confidential and you must ensure and you must ensure that it is treated as Confidential Information in accordance with your obligations under this Agreement.Your Base Salary will be reviewed annually but will not necessarily be increased as a result of such review.5 Discretionary BenefitsIn addition to your TRP, the Company may in its absolute discretion provide you with other benefits (‘Discretionary Benefits’). The Company may cease to provide Discretionary Benefits or change the basis on which it provides them at any time, and nothing in this clause constitutes a promise or guarantee that you will receive any Discretionary Benefit.Discretionary Benefits including any bonus or incentive payment do not form part of your contract of employment or remuneration. You agree and acknowledge that the payment of a Discretionary Benefit does not create any expectation that further Discretionary Benefits will be paid.For the avoidance of doubt, you will not be entitled to receive any Discretionary Benefits if you:(a) are not employed as at the date the Discretionary Benefit is payable; or(b) have given or received notice of termination of your employment as at the date the Discretionary Benefit is payable.24 Entire agreementThese terms and conditions, including any schedules to this Terms Sheet, constitutes the entire agreement of the parties with respect of the matters dealt with in this contract of employment. It supersedes all prior agreements, understandings, arrangements and negotiations in respect of your employment. No other term can be implied or inferred.” William Cordiner, a vehicles consultant, provided a statement on 7 June 2022. He confirmed that he worked in the same team and role as the applicant. His statement largely dealt with the system of work, understaffing, and the excessive workload.