Temmuz v Stock Specialist Pty Ltd - [2023] NSWPIC 429

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Temmuz v Stock Specialist Pty Ltd [2023] NSWPIC 429
APPLICANT:	Yuhanon Temmuz
RESPONDENT:	Stock Specialist Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	24 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation in respect of accepted psychological injury at a higher rate than has been paid; whether commissions to which the applicant says he was entitled to be included in pre-injury average weekly earnings (PIAWE); non-compliance by employer with Notices to Produce and requests by insurer for records relating to employment; Held – no dispute that commissions not in fact paid; documents identified as employment contracts by applicant unsigned, undated and vague with regard to the entitlement to commission; evidence insufficient to establish entitlement to commissions or quantum of entitlement; Commission declined to make orders sought by applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The Commission declines to make the orders sought by the applicant.

STATEMENT OF REASONS

BACKGROUND

Mr Yuhanon Temmuz (the applicant) commenced employment as an Equities Specialist with Stock Specialist Pty Limited (the respondent) on 16 June 2022.
On 5 September 2022, the applicant made a claim for compensation in respect of a psychological injury arising out of or in the course of his employment with the respondent. Payments of weekly compensation were commenced and backdated to 22 July 2022.
Email correspondence between the applicant and the respondent’s insurer reveal a dispute as to the proper calculation of the applicant’s pre-injury average weekly earnings (PIAWE) rate and, in particular, whether commissions to which the applicant was entitled should be included in the calculation of his PIAWE.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) on 16 March 2023. The applicant sought weekly compensation from 22 July 2022 to date and continuing pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) based on a higher PIAWE rate of $1,906.50, subject to periodic indexation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for a preliminary conference before Member Young on 18 April 2023, on which occasion orders were made for the lodgement of Directions for Production seeking payslips, financial records, wage records, group certificates and other documents in relation to the applicant’s injury. The matter was referred to conciliation conference and arbitration hearing to be held on 15 June 2023.
At the conciliation conference and arbitration hearing on 15 June 2023, the applicant was represented by Mr John Gaitanis of counsel, instructed by Mr Lorenzo Gutierrez. The respondent was represented by Mr Justin Hart of counsel, instructed by Ms Tarana Singh. A representative from the insurer was also present.
A direction was made admitting into evidence documents attached to an Application to Admit Late Documents lodged by the applicant on 2 May 2023.
Submissions were also heard from the parties in relation to an application made by the respondent to have admitted in the proceedings a payslip for the period ending 15 August 2022. An…

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 429
Decision Date: 24 August 2023

CaseChat Overview and Summary

The case of Temmuz v Stock Specialist Pty Ltd involved the applicant seeking an increase in his weekly compensation for an accepted psychological injury. The applicant argued that he was entitled to a higher rate of compensation due to the inclusion of commissions in his pre-injury average weekly earnings (PIAWE). The dispute reached the Commission, which had to determine whether the commissions claimed by the applicant were to be included in his PIAWE and whether the employer's failure to comply with Notices to Produce and requests for records related to employment impacted the outcome.

The legal issues before the Commission were whether the commissions claimed by the applicant were indeed part of his PIAWE and if the employer's non-compliance with document requests affected the determination of the applicant's entitlements. Specifically, the Commission had to assess the validity and applicability of the commissions as part of the PIAWE and consider whether the employer's failure to produce relevant documents prejudiced the applicant's claim.

In examining these issues, the Commission found that there was no evidence that the commissions were actually paid to the applicant. Furthermore, the documents the applicant identified as employment contracts were unsigned, undated, and unclear regarding the entitlement to commissions. The evidence presented was deemed insufficient to establish the applicant's entitlement to commissions or to determine the quantum of such entitlement. Consequently, the Commission concluded that the employer's non-compliance did not prejudice the applicant's claim, as the evidence was inadequate regardless.

The Commission declined to make the orders sought by the applicant. No further orders were made in light of the insufficient evidence to support the applicant's claims regarding the inclusion of commissions in his PIAWE.

Orders