Terrivic Pty Limited v Davis
[2016] NSWWCCPD 27
•20 May 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Terrivic Pty Limited v Davis [2016] NSWWCCPD 27 | |
| APPELLANT: | Terrivic Pty Limited | |
| RESPONDENT: | Adele Elizabeth Davis | |
| INSURER: | QBE Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-4072/15 | |
| ARBITRATOR: | Mr R Perrignon | |
| DATE OF ARBITRATOR’S DECISION: | 13 January 2016 | |
| DATE OF APPEAL DECISION: | 20 May 2016 | |
| SUBJECT MATTER OF DECISION: | Leave to cross-examine; effect of resignation without stipulated period of notice on contract of employment; injury in the course of or arising out of employment (s 4 of the Workers Compensation Act 1987); adequacy of reasons; alleged errors in fact finding | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Mulcahy Lawyers |
| Respondent: | Firths – The Compensation Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s decision dated 13 January 2016 is confirmed. | |
INTRODUCTION
Terrivic Pty Limited (the appellant) operated the KFC franchise in Broken Hill (the store). Adele Elizabeth Davis (the respondent) was employed there from 2 April 2012, full-time, as the assistant manager. The respondent suffered serious injuries in a motor vehicle accident on 7 May 2013. It was common ground that, if the respondent succeeded, she was entitled to weekly compensation at a rate of $936.68 per week, on the basis that she had no current work capacity, over a closed period from 7 May 2013 to 16 July 2015.
The issue in the case was whether the respondent’s injuries were sustained in the course of, or arising out of, her employment with the appellant.
BACKGROUND
The respondent stated that she had difficulties with Cameron Wilson, the manager of the store. There were “not enough staff”. The respondent worked long hours. Mr Wilson bullied her, he yelled at her for not doing things that were “often impossible in circumstances when [she] was the only person around”. He would often send abusive text messages. He was abusive to other staff in front of customers. The respondent said that over a number of months “it got to a point where I was finding it very difficult to continue to work at KFC”.
Diane Leonard was the sole director of the appellant company. She stated that her husband, David Aitchison, assisted with administrative duties. Ms Leonard lived in Renmark, South Australia. The respondent said that Renmark was “approximately a few hours’ drive from Broken Hill”. The respondent said that Mr Wilson would not allow her to speak with “the owners”.
The respondent resided in Broken Hill at the time of her injury.
The respondent stated that when she arrived at work on 7 May 2013 Mr Wilson immediately yelled at her for not completing tasks. She said that she went into the office and Mr Wilson followed her and started yelling at her again. The respondent said that she wrote a “short letter of resignation”, went to her car in the car park, and started driving “towards Renmark where the owners live”. She stated:
“My intention was to get to Renmark and speak with the owners to try and resolve the problems. I intended for my resignation to take affect [sic] only if I was unable to resolve the issues.”
There are differing versions of whether Mr Wilson was present in the store at the time of the respondent’s departure.
The respondent stated that the motor vehicle accident occurred “on the way to Renmark” when she swerved to avoid hitting a kangaroo. Material from NSW Police described a one car accident, in which the respondent was driving her car south, about 48 kilometres south of Broken Hill. This was consistent with driving towards Renmark.
The respondent’s claim for compensation was denied in a s 74 notice dated 3 March 2014. It raised s 10(3A) of the Workers Compensation Act 1987 (the 1987 Act), on the basis that the respondent was engaged in a ‘journey’ within the meaning of s 10(3) and there was not “a real and substantial connection between the employment and the accident”. It also referred to her having “already resigned at the time of the accident”. The respondent issued a further s 74 notice dated 6 January 2015. It again raised s 10(3A). Additionally, it said that the respondent had not suffered injury arising out of or in the course of employment.
THE ARBITRAL PROCEEDINGS
The proceedings were commenced by way of Application to Resolve a Dispute registered on 17 July 2015 (the Application). The appellant’s Reply identified the issues “as per dispute notice/s”.
The proceedings were heard in Broken Hill on 26 November 2015. The respondent was represented by Mr Goodrich of counsel, instructed by Mr McQuilkin. The respondent was present with her mother, and also Ms Smith. Ms Smith was described as “the financial controller of the financial affairs” of the respondent. The appellant was represented by Mr Mulcahy, solicitor.
The matter was not conducted as one pursuant to s 10 of the 1987 Act, and s 10(3A) was not pressed as being of relevance. The Arbitrator described the issue as whether the respondent’s injury was one “arising out of or in the course of her employment” with the appellant. After some discussion, the appellant did not seek leave to put s 9A of the 1987 Act in issue.
The appellant’s solicitor made an application for leave to cross-examine on the basis that there was a conflict on the evidence, going to whether Mr Wilson was present at the time the respondent wrote her resignation and left the store. Additionally, there was said to be a dispute about whether the respondent told Mr Wilson that she was going to speak with the owners. Mr Wilson’s statement was to the effect that he was not present in the store when the respondent wrote her resignation and left. Mr Mulcahy made it clear that the appellant did not concede that the respondent was driving to Renmark, for the purpose of seeing Ms Leonard and Mr Aitchison, at the time of the accident. Mr Aitchison is sometimes referred to as “Mr Leonard” in the evidence.
The appellant’s solicitor’s application is at T4.30–9.20. The Arbitrator’s reasons for refusing the application are at T9.20–11.7. He essentially said that the cross-examination would not assist him in understanding the evidence.
There were submissions going to what had been placed in issue by the appellant in its s 74 notices. After some discussion, it was eventually common ground that the appellant could raise an argument, without leave pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), going to whether the respondent had taken herself outside the course of her employment, prior to the motor vehicle accident. After hearing addresses the Arbitrator reserved his decision.
THE ARBITRATOR’S DECISION
The Arbitrator’s Certificate of Determination and Statement of Reasons were dated 13 January 2016.
The Arbitrator said it was agreed that the period of notice applicable to the respondent’s employment was two weeks, pursuant to the Fast Food Industry Award 2010. He noted the respondent’s submission that the notice of resignation which she signed was not effective immediately. She only intended resigning if she could not sort things out with Ms Leonard and Mr Aitchison to her satisfaction. Even if the notice was intended to take effect immediately, it was ineffective to do so as there was a contractual obligation to give two weeks’ notice. The earliest time the notice could be effective from was 10 May 2013, when Mr Aitchison accepted the repudiation, in a telephone conversation with the respondent’s mother. The respondent was still in the employ of the appellant at the time she suffered injury.
The Arbitrator referred to the respondent’s evidence that there was a meeting involving herself, Mr Wilson and Jessica Shipway on 7 May 2013, in which there was discussion about Ms Shipway taking over the respondent’s managerial duties. She also said she had telephoned Mr Aitchison on 18 February 2013, seeking advice about what she should do in response to Mr Wilson’s conduct.
The Arbitrator noted the appellant’s submission that the notice of resignation was intended to take effect immediately, and did so. She left it at the store with the intent that it be seen by Mr Wilson, the manager. The respondent submitted that the Commission would not be satisfied that the respondent was travelling to Renmark. There were other explanations for the journey. Alternatively, it was submitted that the respondent committed a gross breach of her employment contract, thereby taking herself outside the course of her employment.
The Arbitrator referred to a statement of Ingrid Ferguson, on which the appellant relied. Ms Ferguson said the respondent appeared upset when she arrived at work on 7 May 2013. There was then a meeting involving the respondent, Mr Wilson and Ms Shipway. Mr Wilson and Ms Shipway left the store. A piece of paper with the respondent’s name tag attached was thrown on a desk near Ms Ferguson. The respondent then left the building, not saying where she was going. Ms Ferguson opened the paper and saw it was a letter of resignation. Shortly thereafter, Mr Wilson and Ms Shipway returned.
The Arbitrator accepted the evidence of Ms Ferguson, save for that going to whether the respondent was upset when she started work, he not resolving this conflict between the evidence of the respondent and Ms Ferguson.
The Arbitrator referred to a statement of Mr Wilson. Mr Wilson did not refer to a meeting with the respondent and Ms Ferguson, on 7 May 2013. He said that he and Ms Shipway left the store at or before 3.20pm, to do banking and get tiles cut. They returned by 4pm. He was shown the letter of resignation with the name tag attached. He referred to the letter, in his statement, as saying the resignation was “effective immediately”. This was inconsistent with the document, which was in evidence. The Arbitrator said it made him doubt Mr Wilson’s veracity.
Additionally, the Arbitrator considered that Mr Wilson’s failure to refer to his meeting, with the respondent and Ms Shipway, may have been an attempt by him to conceal that he could have upset the respondent, and been the cause of her leaving. The Arbitrator preferred the respondent’s evidence, when it conflicted with that of Mr Wilson. He accepted the evidence of the respondent and Ms Ferguson about the occurrence of a meeting on 7 May 2013.
The Arbitrator referred to the evidence of Ms Leonard. She said it was a requirement of KFC that there be a manager, assistant manager or shift supervisor in the store at all times. She was unaware of any conflict between the respondent and Mr Wilson. Ms Leonard said the respondent had not telephoned her, requested a meeting, or announced she was travelling to Renmark. Had the trip continued she may not have been at home. Ms Leonard did not deny the respondent’s conversation with her husband on 18 February 2013. It was supported by the respondent’s mobile phone records, and the Arbitrator accepted that it occurred.
The letter of resignation did not say when it was to take effect. The Arbitrator accepted that the most likely inference was that the resignation was to take effect in the normal course, at the end of the two week notice period.
The Arbitrator concluded that there were “interpersonal difficulties” between the respondent and Mr Wilson, and that a complaint about Mr Wilson was made by the respondent to Ms Leonard’s husband, by telephone, on 18 February 2013. When the respondent attended work on 7 May 2013 there was a meeting in which Mr Wilson discussed having Ms Shipway take over the respondent’s duties. It was likely that the respondent was upset by this, and decided to drive to Renmark to see Ms Leonard and her husband and try to negotiate a solution. It was understandable that the respondent did not forewarn Ms Leonard, as she would wish to talk to the Leonards before Mr Wilson could give a version of his own.
The Arbitrator referred to Gunnedah Shire Council v Grout [1995] IRCA 694 (Grout). The contract of employment was still on foot as at 7 May 2013 when the accident occurred.
The Arbitrator said that the respondent was travelling to Renmark to complain about the conduct of Mr Wilson and negotiate a solution. There was a causal connection between the injury and the respondent’s employment. He referred to Qantas Airways Ltd v Watson (No 2) [2010] NSWWCCPD 38 (Watson). The injury arose from the employment.
The injury occurred during ordinary working hours while the respondent was attempting to urgently address difficulties in her workplace. There was an appropriate temporal nexus: Commonwealth v Oliver (1962) 107 CLR 353. The injury occurred in the course of the employment.
The Arbitrator then considered whether the respondent had “so misconducted herself that she took herself out of the course of her employment”. The Arbitrator accepted Ms Leonard’s evidence, which was not contradicted, that the store was required to have a manager, assistant manager or shift supervisor present at all times. The Arbitrator was not satisfied that the respondent, in leaving the store under the control of Ms Ferguson, had breached her employment contract, even if the franchisee may have been in breach of the franchise agreement.
The Arbitrator also said that to be in breach of an employment contract did not necessarily constitute conduct of the sort that takes a worker out of the course of employment. The Arbitrator referred to examples of gross misconduct, and said the degree of moral turpitude required to achieve such a result was not present. There was no evidence that Ms Ferguson was other than perfectly capable of managing the store in the respondent’s absence.
The Arbitrator said that the respondent had not taken herself out of the course of her employment. He made an award of weekly compensation consistent with the agreement of the parties.
ISSUES IN DISPUTE
The appellant’s initial grounds and submissions made reference to an unofficial transcript which was attached to the Application to Appeal. In response to a Direction of the Commission, the appellant lodged amended grounds and submissions on 10 March 2016. That document substituted references to the official transcript, and additionally added a further ground, that set out at (f) of the following paragraph.
The issues in dispute in the appeal are:
(a) the Arbitrator erred in the exercise of his discretion in refusing the appellant’s application to cross-examine;
(b) the Arbitrator erred in law in failing to find that the respondent’s contract of employment had not been brought to an end, prior to the occurrence of injury;
(c) the Arbitrator erred in fact in recording the appellant’s submission as one that the respondent was guilty of gross misconduct;
(d) the Arbitrator erred in law in finding that the respondent’s injury arose out of or in the course of her employment within the meaning of s 4 of the 1987 Act;
(e) the Arbitrator failed to provide adequate reasons, going to his finding of injury within the meaning of s 4 of the 1987 Act, having regard to the legal authorities on which the appellant submitted, and
(f) the Arbitrator erred in deciding whether Mr Wilson was present when the respondent gave her written resignation and left the store. This resulted in him giving “incorrect weight” to the respondent’s evidence.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(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.”
The appellant submitted that an oral hearing should be held. It said a sound recording of the arbitration hearing was transcribed by 29 January 2016. Formal instructions to proceed with the appeal were received by its solicitor on 10 February 2016. Written submissions were “prepared in a hurried fashion” and the Commission would be assisted by further oral submissions.
The appellant has given no indication of the further oral submissions which it seeks to make. The Commission, in correspondence dated 12 February 2016, furnished the appellant’s solicitor with a copy of the official transcript. The appellant’s solicitor was informed that, if the appellant had been unable to complete its grounds or submissions due to the absence of the official transcript, it should lodge and serve its final grounds and/or submissions by 11 March 2016. The appellant lodged further submissions on 10 March 2016. These adjusted the transcript references to reflect the availability of the official transcript, and added a further ground (see [33] and [34] above).
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submission by the respondent that the appeal can proceed to be determined on the basis of these documents, 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by s 352(6) of the 1998 Act which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The appellant sought leave to have its typed transcript of the arbitral hearing admitted as fresh evidence. The official transcript is before the Commission for the purposes of dealing with the appeal. There is no need for any additional transcript to be before the Commission. The application to rely on fresh evidence is rejected.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Ground 1 – The Application to Cross-Examine
The Appellant’s Submissions
The way in which this ground was framed acknowledged that it represented a challenge to an exercise of discretion.
The appellant submitted that principles of procedural fairness require that “a party should be given the opportunity of testing prejudicial evidentiary material tendered against him/her”, quoting from Barbero v Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1.
The appellant referred to s 360 of the 1998 Act and to Pt 15 r 15.2 of the Workers Compensation Commission Rules 2011 (the Rules). Reference was also made to that part of the Commission’s Guidelines for the Practice of the Conciliation/Arbitration Process (the Guidelines) which is relevant to oral evidence. The appellant referred to Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34 (Zheng) and Electrolux Home Products Pty Limited v Richey & Email Limited [2006] NSWWCCPD 242 (Richey).
The appellant submitted that whether the respondent suffered injury while driving towards Renmark, to discuss her resignation, was in dispute, and was central to whether she sustained injury in the course of, or arising out of, her employment. “Cross-examination was central to testing the [respondent’s] memory/demeanour/credit” on the issue.
The appellant referred to the respondent’s statements. The statement dated 18 July 2014 at [26] indicated that Mr Wilson was present when the respondent wrote her resignation, and that she told him that she was going to speak to “the owners”. Mr Wilson’s statement dated 27 October 2014 at [17]–[20] said that he was away from the store, when the respondent wrote her resignation and left. Ms Ferguson’s statement dated 27 October 2014 at [14]–[17] also said that Mr Wilson was away from the store when the respondent wrote her resignation and left. The respondent’s later statement dated 8 April 2015, at [5], said that when she wrote her letter of resignation “there were no managerial staff in the KFC store”.
The appellant referred to “inconsistency in [the respondent’s] evidence and contradictory evidence from the witnesses”. It was submitted that the Arbitrator could not have been properly satisfied that it was the respondent’s intention to drive to Renmark, “without the evidence of the [respondent] being tested in cross-examination”.
The Respondent’s Submissions
The respondent referred to her statement dated 18 July 2014, dealing with her condition. It said:
“As a result of the brain injury I now have short term memory loss, depression, loss of concentration, difficulty understanding complex situations, difficulty reading and writing. I also have significant psychological injuries as a result of the accident in which I have nightmares, depression and anxiety.”
She referred also to nerve palsy, neck pain and headaches.
The respondent submitted that, as regards the issue about whether the contract of employment continued at the time of the accident, contracts are construed objectively and there was no ambiguity in the contract of employment. This was inconsistent with an argument that cross-examination about the respondent’s subjective intentions would assist in dealing with this issue. The respondent also referred to the evidence of Andrea Davis, the respondent’s mother. She said that Mr Aitchison telephoned her two days after the accident to say that the appellant was accepting the respondent’s resignation. This evidence was not contradicted.
The respondent observed that the challenge to the Arbitrator’s exercise of discretion is subject to the decision in House v The King [1936] HCA 40; 55 CLR 499 (House v The King).
The respondent referred to a passage of transcript, at T2.4, as indicating that there was no dispute between the parties that the respondent was travelling towards Renmark, where the director of the appellant lived, at the time of her accident. If accepted, this would be inconsistent with cross-examination, about where the respondent was travelling to, being of any utility.
The respondent submitted that nothing turned on the alleged conflict in the evidence.
The respondent submitted that the Arbitrator’s discretion was exercised appropriately and correctly. Given the limited nature of the issues, and the respondent’s medical condition, she should not “have been vexed”.
Discussion
The granting of leave to cross-examine involved the exercise of discretion: Zheng at [37] per Bryson JA (Handley JA and Bell J agreeing). I accept the respondent’s submission that the appeal on this point involves application of the principles in House v The King.
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (Micallef) involved an appeal dealing with a discretionary decision. Heydon JA (Sheller JA and Studdert AJA agreeing) dealing with the relevant principles at [45] said:
“… Garling DCJ had to make a discretionary decision on a matter of practice and procedure – an extremely important one, having potentially serious consequences for the plaintiff, but a discretionary decision on a matter of practice and procedure nonetheless. Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a) made an error of legal principle,
(b) made a material error of fact,
(c) took into account some irrelevant matter,
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance – might have adjourned the matter so as to permit the defendants to consider the late-supplied particulars, or might have held the plaintiff to the old particulars, or might have fixed one more ‘final’ date for outstanding matters to be completed by – any such conclusion would be immaterial. The law committed the exercise of the discretion to Garling DCJ. The law permits interference with his exercise of the discretion in only the limited circumstances just described.”
Micallef was recently applied by Keating P in Zurich Financial Services Australia Ltd v Dickson [2016] NSWWCCPD 25.
The appellant submits at length on the application to cross-examine and whether, on its merits, it should have been granted. The submissions specifically refer to the Arbitrator making “an error in discretion”. However, the appellant’s submissions on the point do not seek to address the essential issue, of whether error can be demonstrated on the basis of the principles in House v The King. In the circumstances, the challenge to the exercise by the Arbitrator of his discretion, in Ground 1, must fail.
I will address the appellant’s arguments on their merits. This ground of appeal would not have succeeded in any event.
O’Keefe J in Kojima v Australian Chinese Newspapers [2000] NSWSC 1153 (Kojima) at [32] said:
“There may, however, be cases in which the denial of an oral hearing or of the right to cross-examine may constitute a denial of natural justice. In determining whether that is so or not in a given case, it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any agreement as to the way in which the proceedings are to be conducted. It is for the relevant tribunal, in this case the Small Claims Division of the Local Court, to determine this in the light of its obligation to act fairly.”
This is consistent with the decision of the Full Bench of the Federal Court in Barbero v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 at 694.
The statutory context in which such discretionary decisions are reached includes Pt 15 r 15.2 of the Rules and the relevant Guidelines. In Zheng Bryson JA at [37] said:
“There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
The appellant referred to the Rules and Guidelines in its argument. I do not see that Pt 15 r 15.2 assists the appellant’s argument. The Guidelines, dealing with oral evidence, provide that it:
“… will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision.”
The Guidelines give two examples of circumstances where cross-examination may be allowed:
· contradictory evidence requires to be clarified or tested, or
· adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.
The second of these does not assist the appellant in the circumstances.
The appellant addressed at some length on contradictions in the respondent’s statements, internally and when compared with those of other witnesses. The fundamental inconsistency is set out at [48] above. Was Mr Wilson present when the respondent wrote out her resignation and left the store, saying (according to her earlier statement) that she was going to speak to the owners? The inconsistency was largely eliminated by the respondent’s statement dated 8 April 2015, in which she said there were no managerial staff in the store at the time she wrote the resignation.
On a literal reading of the respondent’s statements, this arguably left open the possibility that Mr Wilson could have returned, after the respondent wrote the resignation, but before the respondent left. However, this would have been inconsistent with the evidence of Ms Ferguson, which the Arbitrator accepted in this regard.
The Arbitrator made factual findings consistent with the case the appellant put, relevant to who was present when the respondent wrote her resignation and left the store. His reasons at [23] said:
“She said there were no managerial staff at the store when she left the letter there”.
This evidence was accepted (see the reasons at [29]).
The Arbitrator, in his consideration of the matter at [86], said:
“Neither the length of the journey, nor her failure to alert Ms Leonard or anyone at the store of her intention, causes me to doubt her intention to get to Renmark and speak to her employer face to face.” (emphasis added)
The Arbitrator’s findings were consistent with the case made by the appellant on the particular factual issue; Mr Wilson was not present when the respondent left her resignation at the store, or when she departed from the store.
The Arbitrator’s reasons for refusing the appellant’s application should be read in conjunction with the interchanges which occurred during the application. He was clearly alert to the possibility of inconsistencies in the evidence being relevant to the application. He said that the proposed cross-examination would not assist him in understanding the evidence (T10.08 and T11.5). He did not consider the cross-examination was ‘necessary to come to a decision’ (to adopt the phrase used in the Guidelines).
The appellant also made a general submission that cross-examination should have been permitted, as there “was a clear issue regarding the [respondent’s] memory/demeanour/credit”.
It is common that matters involve issues of memory, demeanour and credit. The respondent suffered a severe head injury. At the arbitration hearing the appellant’s solicitor referred to Dr Walker’s report dated 16 November 2014. It stated that when ambulance officers attended the scene of the motor vehicle accident, the respondent had a Glasgow coma scale of 3/15. It said “Post-traumatic amnesia was more than two months, indicating a severe traumatic brain injury.” The appellant submitted that “during that time [the two months] the [appellant] submits that the [respondent] was unable to say what happened” (T29.5).
The respondent’s counsel pointed out that the reference was to post-traumatic (rather than pre-traumatic) amnesia.
Leave to cross-examine was not rendered appropriate, on the basis that the respondent suffered a head injury, which was associated with post-traumatic amnesia and some cognitive impairment. There was medical evidence dealing with the topic, but only limited reference was made to this during submissions at the arbitration on this discretionary point.
There was also a submission that the respondent’s evidence, about driving to Renmark, which was accepted, was “inconsistent and uncorroborated”. Significant amounts of evidence are uncorroborated in most claims. Acceptance of the respondent’s case on this issue was based on acceptance of her evidence, as is commonly the case. The reference to inconsistent evidence is apparently a reference to inconsistencies in the respondent’s statements, discussed above. Few of these relevant inconsistencies remained by the time the matter was heard.
Ground 1 must fail. It does not address whether there was appealable error, applying the principles in House v The King. The Arbitrator’s decision on the leave application was, in any event, consistent with the proper exercise of his discretion pursuant to s 360 of the 1998 Act and the Guidelines.
For the sake of completeness, I should note that the decision in Richey was dated 22 September 2006, when appeals pursuant to s 352 of the 1998 Act were governed by the section in an earlier form, which provided for a power of ‘review’ (see Zheng at [38]). Since the amendments to s 352(5), which commenced 1 February 2011, such appeals are restricted to “error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Ground 2 – Was the Contract of Employment Terminated Prior to the Injury?
The Appellant’s Submissions
The appellant submitted that the respondent terminated her employment contract by unilateral breach, when she abandoned her employment and left the store. The respondent’s resignation was effective immediately, and injury after that was outside the course of her employment.
The appellant submitted that it was an error of law to hold that the resignation was subject to a period of notice, or that it could be withdrawn without the appellant’s agreement.
The appellant referred to Birrell v Australian National Airlines Commission [1984] FCA 378; 9 IR 101; 5 FCR 447 (Birrell) and State of New South Wales v Paige [2002] NSWCA 235; 60 NSWLR 371 (Paige).
The Respondent’s Submissions
The respondent submitted that the appellant’s submission was misconceived. The proposition put by the appellant is inconsistent with Paige, in which that proposition is said to not apply if there is any contractual or statutory provision to the contrary.
The respondent’s employment had been subject to the KFC National Enterprise Agreement 2009 (the Enterprise Agreement), which was in force until 11 September 2012. Thereafter, her employment was governed by the Fast Food Industry Award 2010 (the Award). The notice period under the Award was the same for both a worker and an employer, being the period provided in the National Employment Standards at ss 59 to 131 of the Fair Work Act 2009 (Cth). For an employee who was “more than 1 year but not more than 3 years”, the notice period was two weeks. The respondent was required to give two weeks’ notice of resignation.
A notice of termination not providing the minimum period of notice is ineffective: Hill v CA Parsons & Co [1972] Ch 305 (Hill) at 313.
It was submitted that a notice given in haste or anger may be withdrawn: Grout. If a notice of resignation does not comply with the minimum period of notice, but is not made in anger, haste, duress or a confused emotional state, it operates as a repudiation of the employment agreement. The employer may waive the breach, or may accept the resignation as a repudiation and terminate the employment contract. The contract is terminated from the time when the resignation is accepted by the employer: Grout. In this instance, the appellant accepted the resignation three days after the resignation was given.
On any view of the resignation, the contract of employment remained on foot, at the time of the respondent’s injury.
Discussion
The appellant’s argument on this ground is based on two alternative propositions. The first is that the legal effect of the resignation, written by the respondent and left at the store on 7 May 2013, was to terminate her employment forthwith, so that the contract was no longer on foot when she suffered injury later on the same day. The second is that the respondent’s actions, in leaving the store on 7 May 2013, amounted to abandonment of her employment, the contract being ended by this breach, so that it was no longer on foot when she suffered injury.
The First Argument – the Effect of the Resignation
It was common ground, by reference to the Award, that the relevant period of notice was two weeks (T.19.16–19.31).
The resignation was signed, and in its entirety, read “I Adele Davis hereby resign my position at KFC Broken Hill”. It did not specify a period of notice.
In Paige Spigelman CJ at [277] said:
“Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance the common law has always attached to personal autonomy. Where this principle applies, unilateral withdrawal of a resignation or notice of termination is not possible.”
In the same case, Spigelman CJ referred to a passage in Birrell, on the topic of whether a resignation given in haste or anger may be withdrawn. His Honour, at [286], said of this exception to the common law principle that a resignation may not be withdrawn:
“By reason of the significant purposes served by the common law principle, the qualification should be restricted to circumstances in which the act of resignation was not, in truth, a manifestation of the personal autonomy of the individual.”
The submissions going to whether a notice of resignation given in haste or anger may be withdrawn are of limited relevance. The evidence does not support a conclusion that the respondent was so overcome in the heat of the moment that she resigned other than in the exercise of her personal autonomy. More fundamentally, there is nothing in the evidence which could amount to an attempt to withdraw the resignation. The statement of her mother to Ms Leonard, on the day following the accident, that she was “not sure whether [the respondent] was serious about that [the resignation]”could not amount to a withdrawal.
G.J. McCarry in Termination of Employment Contracts by Notice (1986) 60 ALJ 78 (McCarry) at 79 wrote:
“Absent agreement or award to the contrary, there appears to be no requirement that a notice be given at any particular time or that it be worded to expire at any particular time.” (emphasis added)
The above article was referred to with apparent approval by Spigelman CJ in Paige at [281] and by Meagher JA in Adventure World Travel Pty Ltd v Newsom [2014] NSWCA 174 at [27].
Spigelman CJ in Paige at [289] said:
“The respondent’s evidence, to the effect that the practice was to permit resignations to be withdrawn was, as I have indicated above, uncontradicted. Where such a course of dealing has arisen in a specific context the common law position may be modified. It may operate contractually. Alternatively, there may be a basis for an estoppel.”
The respondent, in her statement dated 8 April 2015, said that it was “commonly accepted practice” at the store that every employee worked the notice period as per the terms in their contracts. At [6] she said:
“As I have outlined in my previous statement, I had no intention that my letter had any binding effect until such time as I spoke with the store owners. Even if it were the case that I later decided to formally submit my resignation, I would still be required to work my two weeks notice period thereby retaining my position as an employee at the store for an additional two weeks after the date of the accident.”
The Arbitrator, in his reasons at [76], said:
“I accept that the [respondent] knew she was required to give two weeks notice. In the absence of any contrary wording in the letter, the most likely inference is that she intended to resign with effect from the end of the notice period, in the normal course. I accept her evidence to that effect.”
The respondent’s evidence on this point was effectively uncontradicted. The only evidence to the contrary was that of Mr Wilson at [21] of his statement, where he misquoted the written resignation to insert the words “effective immediately”.
The Arbitrator’s approach was consistent with that discussed in Paige at [289], implying a term, consistent with the Award which governed the contract of employment, and also with the practice adopted by the appellant and its employees. It is not in error.
The alternative analysis was that the resignation, as it did not specify a period of notice, was invalid, and acted as a repudiation of the contract. This is consistent with a passage from McCarry at 79, where the author said:
“Whether oral or written, notice of termination must specify when the termination is to occur, or must at least make it possible for that to be ascertained.”
The above cited Morton Suntour Fabrics v Shaw (1967) 2 ITR 84, QBD as authority for the proposition. It is consistent with Hill, cited by the respondent in her submissions.
The consequences are discussed in McCarry at 81:
“The invalid notice constituting the repudiation can be withdrawn unilaterally at any time before it is accepted by the innocent party, for ‘[a]n unaccepted repudiation is a thing writ in water…’ (Howard v Pickford Tool Co Ltd [1951] 1 KB 417 at 421 per Asquith L.J.). However a repudiatory notice, if accepted by the innocent party, will bring the contract to an end upon such acceptance (rather than from the time of the repudiation constituted by service of the invalid notice) (Thomas Marshall Ltd v Guinle [1979] 1 Ch 227 at 240).” (emphasis added and footnotes omitted)
The earliest suggested time, on the evidence, when acceptance of the repudiation occurred, was in the conversation between Mr Aitchison (Ms Leonard’s husband) and the respondent’s mother, three days after the accident. The evidence of the respondent’s mother in her statement dated 21 August 2015 is uncontradicted.
On either of the analyses above, the contract of employment was still on foot at the time of the accident. Either it had a further two weeks to run until the period of notice was worked out, or it was on foot pending acceptance by the appellant of the repudiation constituted by an invalid notice. If, contrary to my view, the Arbitrator was in error in treating the notice as effective, the second of these analyses applies. Any such error cannot affect the result: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 (Stead) at [16], Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561 (Morrissey). The contract remained on foot at the time of the accident, pending the subsequent acceptance of the repudiation by the appellant, through the agency of Mr Aitchison.
There is no basis for concluding that the resignation was, as submitted by the appellant, “effective immediately”.
The first argument in support of Ground 2 is rejected.
The Second Argument – Abandonment of Employment
The appellant’s solicitor did not make a specific submission at the arbitration hearing, that the employment contract was ended as a consequence of abandonment by the respondent of her employment.
In the first of his submissions going to ground 2, the appellant’s solicitor referred to the employment contract being “terminated by unilateral breach” on the respondent’s part. It referred to two events as having achieved this. The first was the respondent leaving the written resignation at the store. The effect of the resignation is dealt with above.
The second matter referred to was “Absenting herself from the [appellant’s] workplace without the authority of [the appellant].” The only other submission dealing with ground 2, which is possibly applicable, is a reference to “her unauthorised departure from her formal workplace” in the fifth of those submissions.
The only authorities referred to, in support of the submissions on ground 2, are Birrell and Paige. These authorities are discussed above. Relevantly, they go to the issue about the effect of the resignation.
An assertion that the respondent was involved in an unauthorised absence from her employment appears to be of more relevance to grounds 3 and 4, which deal (in a general sense) with whether the injury was suffered in the course of or arising out of the respondent’s employment.
The appellant’s solicitor’s submissions, at the arbitration hearing, referred to matters such as the respondent leaving the store (T21.20), attaching her name badge to the resignation (T37.5), running away from her job (T43.19), and leaving the premises without an appropriate managerial presence (T44.25–48.31). He said that when the respondent left the premises she “embarked upon a frolic of her own” (T44.26). The Arbitrator asked him whether this meant the respondent was “outside the course of employment”. He replied:
“Outside the course of employment. The [respondent] well knew that it was her responsibility to be there as a manager when there was no other manager there. It was specifically why Cameron had left to do his shopping was [sic] because there was another manager on the premises.”
Other than the reference to the name badge, all of the transcript references referred to in the preceding paragraph related to the respondent leaving the store when she did. Attaching her name badge to the resignation could hardly be said to amount to abandonment by the respondent of her employment, or to “unilateral breach”.
The respondent’s counsel objected to the appellant’s solicitor submitting on the basis that the respondent was on a “frolic of her own” (T57.24). Following an adjournment, the appellant’s solicitor said:
“The situation is that I am not going to press a frolic of her own; I am simply going to submit on acting out of the course of employment.” (T58.21)
The effect of the above interchanges was that the appellant ultimately conducted the matter on the basis that the respondent, in leaving the store when she did, took herself out of the course of her employment. Any argument that her departure constituted a unilateral breach of the employment contract, ending it at that moment in time, was not pursued.
In Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 Simpson JA (Sackville AJA agreeing) at [98] described as “uncontentious” the proposition that “parties are bound by the conduct of their cases at trial, and that an appellate court will not ordinarily allow a new case to be made on appeal” (see also Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68). To the extent that it is relied upon, the second argument put in support of ground 2 is rejected.
Ground 2 is rejected.
Ground 3 – The ‘Gross Misconduct’ Argument
The Appellant’s Submissions
It was stated at the outset, at the arbitration hearing, that the agreed issue was whether the injury suffered by the respondent was “personal injury arising out of or in the course of her employment” (T2.26).
The appellant at the arbitration hearing submitted on the basis that, in leaving the store and driving south from Broken Hill, without the knowledge or permission of the appellant, the respondent was outside the course of her employment. “[S]he was doing something that she was not reasonably required, expected or authorized to do in order to carry out her duties”. Reference was made to Humphrey Earl Limited v Speechley [1951] HCA 75; 84 CLR 126 (Speechley) per Dixon J at 133. The appellant referred to its submissions to this effect at the arbitration (T75.23–76.5).
The Arbitrator, in his reasons at [94], described this issue as:
“… whether, by failing to ensure that the store was left adequately managed, the [respondent] so misconducted herself that she took herself out of the course of her employment.”
The Arbitrator, at [96] of his reasons, discussed the issue on the basis of whether there was “gross misconduct, which is required in order to take an employee out of the course of their employment”. He referred to reported examples of this. At [97] the Arbitrator dealt with the relative competence of Ms Ferguson (who was left in the store when the respondent left). He said he was not satisfied that the respondent, in leaving Ms Ferguson in charge when she left the store, committed a breach which “amounted to misconduct at all”.
The appellant submits that the Arbitrator misapprehended its submission on this point. The submission went to whether the respondent was in the course of her employment, not to whether there was gross misconduct.
The Respondent’s Submissions
The respondent referred to passages in the transcript, discussing whether the s 74 notices raised a defence on the basis that, “in leaving her employment without a manager, [the respondent] took herself outside the course of her employment” (T59.31–60.4). It was submitted the appellant’s solicitor had “misstated the agreed issues” (at T60.7–11). There was an interchange going to whether the ‘course of employment’ argument was based only on a denial that the contract of employment remained on foot at the time of the accident, or extended to whether the respondent had removed herself from the course of employment in some other fashion (T64.12–22).
The respondent’s submissions went on to say that the respondent had “the right, if not the obligation, to bring to the attention of her ultimate employer her concerns regarding the store manager”. The respondent referred to a Fairwork Australia factsheet which was attached to the Notice of Opposition to Appeal. The respondent also referred to the Enterprise Agreement, and the obligation of workers to bring certain matters to the attention of the appellant, pursuant to that agreement.
The respondent referred to s 14(2) of the 1987 Act, and Higgins v Galibal Pty Ltd (t/as Hotel Nicko Darling Harbour) (1998) 45 NSWLR 45 (Higgins). It was stated that the respondent’s counsel understood the appellant to be attempting to raise “gross misconduct that amounts to disentitlement”. There was reference to the proviso in s 14(2), where the injury resulted in “serious and permanent disablement”. The respondent also referred to its submission at the arbitration that, in going to see the Leonards, “it’s all going about the duties or a matter arising out of the duties”.
It was submitted that the award could also be supported, on the alternate basis that the injury arose out of the employment.
These submissions of the respondent were described as applying to grounds 3, 4 and 5.
Discussion
Some of the respondent’s submissions suggest that an issue, of whether the injury occurred in the course of employment, was inconsistent with how the matter was conducted.
The respondent took issue with whether this could be raised as a defence (T60.13–24), and there was discussion going to whether the appellant should be granted leave pursuant to s 289A(4) of the 1998 Act to raise it. Ultimately, it was common ground that the ‘course of employment’ issue could be raised without leave (T75.11–19). The appellant’s solicitor then addressed on the issue without objection.
The appellant’s submissions, going to how the actions of the respondent, in leaving the store and (allegedly) driving towards Renmark, should be characterised, were varied. It was described as “a frolic of her own” (T40.4 for example), a breach of her obligations “in a severe manner” (T45.24), “a gross breach of her employment contract” (T49.2), “she has resigned and ran away” (T83.20). The respondent’s version of events was described as “a complete fabrication” (T56.27).
The appellant did not submit using the terms “misconduct” or “gross misconduct”.
‘Serious and wilful misconduct’ is a specific statutory defence, pursuant to s 14(2) of the 1987 Act. As was observed by the respondent’s counsel, it would be unlikely to have application given the nature of the injuries suffered by the respondent. That defence was not submitted on by the appellant. Higgins was a matter which dealt with the operation of s 14(2), and with the concept of ‘the course of employment’. The Arbitrator did not approach the matter on the basis that s 14(2) was an issue.
The appellant submitted that “in leaving the premises [the respondent] was acting outside the course of her employment” (T69.13). The appellant’s submissions clearly raised the test in Speechley (T75.22–76.5).
The appellant’s argument is that the real issue which it raised, and which required determination by the Arbitrator, was whether the respondent’s injury occurred in circumstances such that she was in the course of her employment. This was an issue on which the parties addressed, and which the Arbitrator decided (his reasons at [93]). He specifically said, dealing with the ‘course of employment’ issue, that “the temporal nexus between employment and the journey is established”. This was, however, “[s]ubject to the question of gross misconduct, considered below”.
The Arbitrator’s reasons, read as a whole on this issue, involved him making a finding on whether the respondent was in the course of her employment, and then considering whether there was conduct which took her outside the course of her employment. His discussion on this topic was based on a consideration of whether misconduct, gross misconduct or a degree of moral turpitude was present.
The appellant’s submissions clearly raised the principles in Speechley. There are authorities dealing with whether misconduct or gross misconduct removes a worker from the course of employment. The appellant did not submit on those authorities. It was the appellant’s submission that the respondent, in leaving the store as she did and driving away, had removed herself from the course of her employment.
The appellant’s submission is that the Arbitrator misapprehended the submission made to him, and dealt with an issue different to that submitted on. There is, in my view, substance to that submission. The consequences of this are further discussed below, in dealing with Ground 4.
Ground 4 – The Finding of Injury in the Course of or Arising Out of Employment
This ground asserts error of law in a finding that the respondent’s injury occurred in the course of or arising out of her employment within the meaning of s 4 of the 1987 Act, on the basis that she was not guilty of gross misconduct.
The Appellant’s Submissions
The appellant submits that it was an error of law for the Arbitrator to find that the respondent was employed at the time she embarked on the road journey south from Broken Hill. This is a restatement of the appellant’s argument in Ground 2. It is not apparent why it was included again.
It is submitted that the Arbitrator “erred in law by determining the case on the basis of gross misconduct”.
The appellant listed various actions on the respondent’s part, which were submitted to be consistent with the respondent removing herself from the course of her employment. This was so, it was submitted, even if the respondent’s intention was to travel to Renmark to speak to Ms Leonard and her husband (the legal argument).
The appellant submitted that the Arbitrator erred in failing to recognise the improbability of the respondent submitting a written resignation, leaving the store without permission, and embarking on a 400 kilometre journey. This “caused him to give inappropriate weight to the late and uncorroborated evidence of the [respondent]” (the factual argument).
The respondent made no further submissions on this ground, beyond those made in response to Ground 3.
Discussion
The Arbitrator dealt with the argument going to injury ‘in the course of employment’ and ‘arising out of employment’ in stages. At [92] of his reasons he found the injury arose out of the employment. At [93] of his reasons he found the injury occurred in the course of employment. At [94]–[98] of his reasons he dealt with the issue of whether the respondent’s actions, prior to the accident, had taken her out of the course of her employment. At that stage, the Arbitrator used the terms “misconduct” and “gross misconduct”. He also referred to “The degree of moral turpitude required”.
Gross misconduct is one way in which a worker may remove him or herself from the course of employment, but it is not the only way. To that extent, the Arbitrator’s consideration of whether the respondent had removed herself from the course of employment was conducted on too narrow a basis.
In Hatzimanolis v ANI Corporation Limited [1992] HCA 21; 173 CLR 473 (Hatzimanolis) the plurality at [14] said:
“The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.”
The above passage was quoted in Higgins by Priestley JA (Stein JA agreeing) at 53G as “a succinct statement of a long recognised position”.
The Factual Issue
On the findings, the respondent was to work a shift from 3pm to 11pm on 7 May 2013. After arriving, she attended a meeting with Mr Wilson and Ms Shipway. Mr Wilson and Ms Shipway left the store. The respondent sat at a desk. A piece of paper with the respondent’s name badge attached to it came flying through the air and landed on a desk in front of Ms Ferguson. The respondent “grabbed her handbag and was heading for the door to exit”. She ignored Ms Ferguson’s questions about where she was going. The respondent continued towards the carpark. This occurred between 3 pm and 4 pm. Mr Wilson and Ms Shipway returned to the store, after “only a matter of a few minutes”. The Arbitrator accepted the evidence of Ms Ferguson on this sequence of events.
The appellant, in its submissions, referred to the following sequence of events, stated briefly:
(a) the respondent submitted a written resignation;
(b) she left the store without seeking permission;
(c) she left the store without an authorised manager being present;
(d) she did not say why she was leaving, and
(e) she did not email or telephone Ms Leonard or her husband before commencing her journey to Renmark.
The appellant on appeal repeated a submission from the arbitration, that this was a “complete fabrication”. Put shortly, the appellant said that the version of events was improbable, and should, for that reason, have been rejected. The appellant’s submissions going to alleged factual error do little more than restate the submissions which were made at the arbitration hearing. They do not identify any alleged specific error in fact finding.
The areas of factual dispute were confined. None of the factual propositions set out at [152] above was controversial. The accident occurred about 48 kilometres south of Broken Hill, on the Silver City Highway heading south. There is no contest that the respondent was in her car driving south when the accident occurred. It was common ground that this was on the route towards Renmark.
The evidence which is challenged as improbable is the respondent’s evidence about why she was driving south at that time. In her statement dated 18 July 2014 she said that, on reaching her car, she “started driving immediately towards Renmark where the owners lived”. She said:
“My intention was to get to Renmark and speak with the owners to try and resolve the problems. I intended for my resignation to take affect [sic] only if I was unable to resolve the issues.”
One of the challenges made to the respondent’s version of events, by the appellant, was that the respondent had never made a complaint about Mr Wilson to the “owners” (see T8.5). The appellant disputed that the respondent was driving to Renmark to see the “owners” at the time of the accident (T10.17–22, T66.23–31).
The respondent, in her statement dated 28 April 2015, said that she telephoned Ms Leonard’s residence and spoke to Ms Leonard’s husband on 18 February 2013. She said that she was “in tears as I was very distressed about [Mr Wilson’s] conduct and lack of support”. She said that she sought the advice of Ms Leonard’s husband. Her evidence that a telephone call was made by her, to the residence on that date, was confirmed by her mobile phone records, which were in evidence. The number was conceded to be that of the Leonards (T53.7–11).
There was no evidence put on from Ms Leonard’s husband to contradict the respondent’s version of this call. The appellant attacked the respondent’s evidence going to where she made the call from (T52.10–53.5, 53.30–56.10). It was not disputed that the call was made. The appellant submitted, at the arbitration, that the respondent’s recollection about the call should be “somewhat doubted”. There was no evidence, apart from that of the respondent, going to the subject matter of the call. The Arbitrator made a specific finding, at [72] of his reasons, accepting the respondent’s evidence going to this telephone call. This was clearly available, and indeed compelling, on the evidence. This was a factual finding that the respondent had complained to Ms Leonard’s husband, about Mr Wilson’s behaviour, about 11 weeks prior to the accident.
There was no evidence that directly contradicted the respondent’s case that she was driving towards Renmark to speak with the owners, about her problems with Mr Wilson. The appellant’s submission was that the respondent’s evidence on this issue should not be accepted, as it was improbable.
The Arbitrator, where there was conflict between the evidence of Mr Wilson and the respondent, preferred the evidence of the respondent (reasons at [60] and [61]). He gave his reasons for this in his discussion of Mr Wilson’s statement (reasons at [46]–[61]). The reasoning on that point has not been challenged in this appeal. It was implicit in this that the Arbitrator accepted the respondent’s evidence about Mr Wilson’s conduct and her difficulties with him.
The Arbitrator was clearly aware of the factual dispute regarding whether the respondent was driving towards Renmark to see “the owners” at the time of the accident (T66.32–67.4). He gave reasons, at [85] and [86], for accepting the respondent’s case on this issue. His reasoning in that regard is not subject to any specific attack in this appeal.
It does not assist the appellant to repeat a submission from the arbitration that the claim was a “complete fabrication”, or that the respondent’s submissions were improbable. The powers of a Presidential member under s 352(5) of the 1998 Act are limited to the determination and correction of “any error of fact, law or discretion”. The appellant’s submissions do not deal with whether there was appealable error in the Arbitrator’s acceptance of the respondent’s case on this issue. It was open to the Arbitrator, as he did, to accept the respondent’s evidence that on leaving the store she drove towards Renmark to see “the owners”.
The Arbitrator’s acceptance, of the respondent’s evidence on this issue, involved a finding of credit. Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, dealing with the operation of s 352 of the 1998 Act after commencement of the Workers Compensation Legislation Amendment Act 2010 (on 1 February 2011), at [26] said:
“Sixth, credibility based findings may be overturned if ‘incontrovertible facts or uncontested’ evidence (Fox v Percy at [28]) establish that they were wrong. In rare cases, although the facts fall short of being ‘incontrovertible’, such findings may be overturned if they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case (Fox v Percy at [29] citing Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 59 ALJR 842 at 844 and Chambers v Jobling (1986) 7 NSWLR 1 at 10).”
The respondent’s evidence on the topic was not “glaringly improbable”. It was not “contrary to compelling inferences”. It was not wrong by reference to “‘incontrovertible facts or uncontested’ evidence”. The appellant has not demonstrated any such error in respect of the Arbitrator’s credibility based findings.
On the accepted evidence, Mr Wilson had been behaving in a bullying and inappropriate manner towards the respondent for some time. The respondent telephoned Ms Leonard’s husband about 11 weeks prior to the date of injury, to complain about this. Things had not improved. On the date of the accident, there was a meeting in which Mr Wilson discussed having Ms Shipway take over the respondent’s managerial position. The respondent described being the subject of verbal abuse from Mr Wilson on the date of the accident, from when her shift commenced. Against this background, the respondent said that she decided to drive towards Renmark “to speak with the owners”. The respondent described Renmark as “a few hours’ drive from Broken Hill”. It was open to the Arbitrator to accept the respondent’s evidence about where she was driving and why. He was not in error in doing so.
The challenge to the Arbitrator’s fact finding, which formed part of the submissions going to Ground 4, fails.
The Legal Issue
The question of whether the respondent was in the course of her employment, at the time of the accident, is to be approached in the context of the above factual findings. She was driving towards Renmark to see Ms Leonard and her husband, to discuss matters relating to her work at the store.
The appellant, in its submissions on appeal, quoted a submission it made at the arbitration hearing (T75.20–76.5). It set out the substance of the appellant’s argument that the respondent was not in the course of her employment at the time of the accident:
“So it’s the respondent’s submission that in leaving the premises without providing any reason for leaving the premises, other than the written resignation, and leaving those premises unsupervised, unmanaged, that the [respondent] took herself outside the course of her employment; and even if she had – if you were to accept that her intention was to go and speak to the employers, notwithstanding no prior notice, then you have to apply the decision in Humphrey Earl Ltd v Speechley, a Court of Appeal decision – sorry, a High Court decision – where Dixon J said that it is necessary that the injured worker would be doing something that was ‘reasonably required – or authorised to do in order to carry out his/her duties’. In leaving the place unmanaged that’s not something that was reasonably required or authorised by the employer and, hence, outside the course of her employment.”
The appellant submitted that the Arbitrator’s reasoning was predicated on the basis that the appellant argued that ‘gross misconduct’ took the respondent outside the course of her employment. Rather the submission was that the respondent “was not doing something that she was reasonably required or authorised by the employer to do at the time of injury”.
Clearly the respondent was initially in the course of her employment, from when she attended the store and commenced her shift. The issue was whether she, through her actions, then took herself outside the course of her employment. The Arbitrator referred to cases such as Schinnerl v Commissioner of Police [1995] NSWCC 12, 11 NSWCCR 278 (Schinnerl), involving issues about whether ‘gross misconduct’ took a worker outside the course of employment.
Priestley JA in Higgins at 54B referred to authorities going to ‘gross misconduct’. His Honour expressed doubt about whether ‘gross misconduct’ would always take a worker out of the course of employment.
Geraghty J in Schinnerl at 285B, after referring to authorities including Hatzimanolis, said:
“Consequently, not only can gross misconduct take one outside the ambit of employment, but doing something which is not incidental to employment also achieves the same end. Performing some activity which one is not reasonably required, expected or authorised to do in order to carry out one’s duties will also take one outside the course of employment.”
In Speechley at [3] Dixon J said:
“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties: see Brice v. Edward Lloyd Ltd.; Knight v. Howard Wall Ltd.; Pearson v. Fremantle Harbour Trust; Whittingham v. Commissioner of Railways (W.A.); Henderson v. Commissioner of Railways (W.A.); Davidson v. Mould.” (footnotes omitted)
In Hatzimanolis at [16] the plurality said:
“Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment.”
The above was said in the context of injury sustained during an interval or interlude between two discrete periods of employment.
In Bill Williams Pty Ltd v Williams [1972] HCA 23; 126 CLR 146 (Williams) Stephen J at [4] and [5] said:
“4. Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work: Kavanagh v. The Commonwealth per Fullagar J. It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, ‘there is nothing more in the concept than time measured by activity of a particular character’: Kavanagh v. The Commonwealth per Menzies J. It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in his work or something incidental to it the time span endures; as soon as he ceases to be so engaged the time span ends and with it the course of employment.
5. That which is incidental to a worker's work depends upon ‘the sufficiency of the connexion between the employment and the thing done by the employee’ which is ‘a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment’: Whittingham v. Commissioner of Railways (W.A.) per Dixon J. It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he ‘was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties’: Humphrey Earl Ltd. v. Speechley per Dixon J.: whether the accident has happened ‘while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service’ : Pearson v. Fremantle Harbour Trust.” (footnotes omitted)
The Arbitrator’s reasons for finding that the injury occurred in the course of employment were set out at [93] of his reasons:
“For the injuries to be suffered in the course of employment, a temporal nexus must be established between the two: Commonwealth v Oliver (1962) 107 CLR 353. In this case the injuries were suffered during ordinary work hours, well before the end of the worker’s shift, while the worker was attempting to address urgently with her employer the difficulties she was experiencing in her workplace. Subject to the question of gross misconduct, considered below, the temporal nexus between employment and the journey is established.”
The appellant, in its submissions, specifically raised the issue of whether the respondent remained in the course of her employment, after she left the store and started driving towards Renmark. The Arbitrator, at [96] of his reasons, said:
“Even if, contrary to my finding, Ms Davis did breach her employment contract by doing this, a mere breach of an employment contract does not necessarily amount to gross misconduct, which is required in order to take an employee out of their employment: Schinnerl.”
‘Gross misconduct’ is not the only way in which a worker may take him or herself outside the course of employment. The Arbitrator, in approaching the issue as he did, applied an inappropriate test. It was inconsistent with the submission which had been made by the appellant. This constituted error.
It would be difficult to characterise driving from Broken Hill towards Renmark as work which the respondent was employed to do. She was employed to work at and manage the appellant’s store in Broken Hill. The issue then became whether that activity was incidental to the respondent’s work. Regard should be had to the factors described by Stephen J in Williams at [5].
The issue is finely balanced. Ultimately it is unnecessary that I resolve this issue. Its resolution would not affect the result (Stead, Morrissey).
The Arbitrator, at [92] of his reasons, made a finding that the respondent, at the time of the accident, was engaged in a journey to complain about the conduct of Mr Wilson, and to negotiate a solution, including the consensual withdrawal of her resignation. There was a “causal nexus” between the respondent’s employment and the journey. The Arbitrator referred to Watson. He made a finding that the injuries arose out of the respondent’s employment.
The appellant’s submissions going to Ground 4 contain occasional references to ‘arising out of the employment’. The ground itself asserts error in a finding that the injuries “arose out of, or in the course of, employment”. The first submission, supporting Ground 4, referred to a finding that “personal injury arose out of, or in the course of, her employment”. This submission dealt with the question of when the contract of employment came to an end, which was the subject matter of Ground 2. The submissions numbered 2, 3 and 4 are relevant to the argument about ‘the course of employment’. The submission numbered 5 includes the phrase “arose out of”, but its content relates only to the argument based on Speechley. The submissions numbered 6 and 7 return to the factual issue (referred to and decided above) in Ground 4.
In short, although the phrase “arose out of” is mentioned briefly, there are no submissions in support of Ground 4 which assert any legal error in the Arbitrator’s finding that the injury arose out of the employment. The respondent submitted that, even if there was error in how the Arbitrator dealt with the issue of whether the injury occurred in the course of employment, the result could “be supported on the alternate basis set out in the written submissions before him that is that the injury arose out of the employment”. I accept that submission. The factual issue having been decided against the appellant, there is no argument put by the appellant submitting error in the finding that the injury arose out of the employment.
It follows that, even if the finding that the injury occurred in the course of employment involved error, the award would stand on the alternate basis found by the Arbitrator, that it arose out of the respondent’s employment. Ground 4 is rejected.
Ground 5 – Reasons
Ground 5 asserts that “the Arbitrator failed to provide sufficient reasons dealing with the legal authority provided by the Appellant during submissions at the arbitration hearing that demonstrated that the Worker did not suffer a personal injury arising out of, or in the course of, her employment”.
The first submission essentially repeats the ground of appeal. The second, third and fourth submissions refer to the appellant’s submission at the arbitration hearing based on Speechley, saying that “these submissions was [sic] not addressed by the Arbitrator in his Reasons”. The fifth submission is a general assertion that “the Arbitrator erred in law as he provided insufficient reasons as to how he arrived at his decision”. The sixth submission repeats the assertion that the Arbitrator did not address the “legal authority relied upon by the Appellant”.
The seventh submission stated that if the Arbitrator had “properly considered the legal authority” he “would have concluded that the Worker was acting outside the course of her employment”.
The only authorities referred to by the appellant at the arbitration hearing, arguably relevant to issues going to injury ‘in the course of’ and ‘arising out of’ the employment, were Speechley and Carthew v Badger & Ors [2004] NSWCA 317 (Carthew).
Carthew involved an issue regarding whether there was injury arising out of or in the course of employment. There were two competing factual cases. Giles JA (Santow and Ipp JJA agreeing) at [9] said it was accepted, at first instance and on appeal, that if the evidence of the employer’s witnesses was accepted, the injury was not in the course of or arising out of the employment. The trial judge accepted the employer’s witnesses, and consequently the worker failed. “[T]he sole ground of appeal was that the judge had given inadequate reasons for his decision.” (per Giles JA at [3]). The only discussion in the Court of Appeal decision went to the adequacy of the trial judge’s reasons relevant to his factual finding. Carthew was not an authority relevant to the issue going to whether the respondent’s injury occurred in the course of, or arising out of, her employment.
Thus the submissions on this ground numbered 1 and 5 simply restate the ground of appeal. The submissions numbered 2, 3, 4, 6 and 7, relate to the appellant’s argument that the injury did not occur in the course of employment. I have already, in relation to Ground 4, concluded that error is established in respect of the finding that the injury occurred in the course of employment. I have also concluded that it was not appealable error, as it could not affect the result, given the additional finding that the injury arose out of the employment.
The reasons given in respect of injury ‘in the course of employment’ are irrelevant to the basis on which the respondent argues the decision should be confirmed. This is “the alternate basis set out in the written submissions before [the Arbitrator] that is that the injury arose out of the employment”. The appellant makes no specific submissions going to the adequacy of the reasons relating to the finding of injury ‘arising out of the employment’.
The Arbitrator’s reasons on the issue were succinctly stated at [92] of his reasons. Such a finding required that “a causative connection must be established, employing a common sense approach”. He referred to the decision of Roche DP in Watson. The Arbitrator found that the purpose of the journey was to complain about Mr Wilson’s conduct and negotiate a solution. He said:
“Having regard to the purpose of the journey, a causal nexus is established with the [respondent’s] employment.”
The decision in Watson, to which the Arbitrator referred, includes a review of various authorities dealing with whether injury arises from employment. The Deputy President at [76] observed that in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75 (Badawi) the majority referred to and endorsed the approach in Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119. It involved “a common sense approach to the application of the phrase, noting that it involved a causative element” (Badawi at [73]). He described Clarke JA as expressing “a similar view” in Zinc Corporation Ltd & Anor v Scarce (1995) 12 NSWCCR 566, from which he quoted the following passage:
“It is now well established at common law that the test of causation is a common sense one. Any controversy on the question has been laid to rest by the decision of the High Court in March v E & HM Stramare Pty Ltd (1991) 171 CLR 506. What needs to be established is that the event which is sought to be linked with the injury ‘was so connected with the loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it’. (See Halvorsen Boats Pty Ltd v Robinson(1993) 31 NSWLR 1 at 7). The question is, of course, a question of fact which ‘must be determined by applying common sense to the facts of each particular case’ (see March at 15). In my opinion, there is no reason to adopt a different approach in relation to the test of causation posed by the words ‘arising out of’. The question of fact is whether there is such a connection between the worker’s personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment. In deciding that question, my preferred view is that the test laid down by Jordan CJ in Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 at 124 – that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury – should be applied. At the very least, the test requires that the employment was a contributing factor to the injury ...”
The legal basis for the Arbitrator’s finding of injury arising out of the employment appears sufficiently from the decision to which he referred.
The Arbitrator’s finding on the issue should be read together with the various factual findings appearing in his reasons. He preferred the evidence of the respondent where it conflicted with that of Mr Wilson. He gave reasons for this. He made “findings generally in accordance with the evidence of the [respondent], including her evidence as to the purpose of her journey” (at [29]). This also involved acceptance of the respondent’s evidence about her treatment by Mr Wilson. The Arbitrator at [84] made specific findings that the respondent had “significant interpersonal difficulties” with Mr Wilson over a period of time, and that she had complained of these to Ms Leonard’s husband, on 18 February 2013 by telephone.
The Arbitrator, at [85], found that Mr Wilson met with the respondent and Ms Shipway on the day of the accident, to “discuss the possibility” of Ms Shipway taking over the respondent’s duties. He found the respondent “then determined to speak personally with the Leonards about it, driving to their home at Renmark”.
Section 294(2) of the 1998 Act provides:
“A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
The Rules at Pt 15 r 15.6 provide:
“15.6 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
In NSW Police Force v Newby[2009] NSWWCCPD 75 Keating P dealt with the nature of an Arbitrator’s duty to give reasons, at [149]–[151], saying:
“149. To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge’s (Arbitrator’s) reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor[2007] NSWCA 203 at [30]).
150. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority(1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council[2005] NSWCA 424).
151. When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443–444 (‘Beale’)). A Presidential member on review is not required to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd(1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
‘If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter(1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.’”
The reasons given by the Arbitrator complied with the statutory duty and the authorities referred to above. Ground 5 is rejected.
It should be noted that Ground 5 restricted itself to whether the duty was complied with in respect of “the legal authority provided by the Appellant during submissions at the arbitration hearing”, dealing with “whether the [respondent] suffered a personal injury arising out of, or in the course of, her employment”. It should also be noted that no specific submissions were directed to the adequacy of the reasons, relevant to injury arising out of the employment.
Ground 6 – Evidence Regarding Mr Wilson’s Whereabouts
The appellant’s amended grounds and submissions, lodged on 10 March 2016, added this further ground. The appellant has not sought leave to rely on the further ground. The respondent has not made submissions in response to the further ground.
The ground states that the Arbitrator “misdirected himself as to the facts in relation to whether or not Manager, Cameron Wilson was present at the time that the Respondent worker tendered her resignation and left the employer’s premises and in so misdirecting himself gave incorrect weight to the Respondent’s workers [sic] evidence.”
The appellant refers to the two statements of the respondent. The first said that Mr Wilson was present when she left her resignation, the second said there was no manager present when she left her resignation. The appellant, in the first submission going to this ground, refers to the unsuccessful application to cross-examine.
The submissions numbered 2 and 3 then refer to a passage in the transcript at T7.21 and following. The appellant submits that the interchange is consistent with acceptance by the Arbitrator that Mr Wilson “was present at the time of the Respondent worker’s resignation”. The appellant submits that this led to the Arbitrator “giving unreasonable weight to the Respondent worker’s evidence that Cameron Wilson was present.”
The appellant goes on to submit that it was a mistake of fact to accept that Mr Wilson was present. Had the Arbitrator been aware that Mr Wilson was not present at the relevant time, “the Arbitrator would not have been able to accept the Respondent worker’s evidence that she told Cameron Wilson that she was going to complain to the Appellant’s director in Renmark”.
The appellant submits that, had the Arbitrator not accepted that the respondent indicated her intentions to Cameron Wilson, the Arbitrator would not have accepted that it was the respondent’s “intention to drive to the Director’s home to make complaint about her Manager.” Without evidence of the respondent’s intention, there was no evidence that the respondent was acting in the course of or arising out of her employment.
Ground 6, and the submissions in support of it, are based on a misreading of the passage of the transcript which was quoted, and the Arbitrator’s reasons.
The submission numbered 3 quoted only part of the Arbitrator’s response to an interjection by the respondent’s counsel. In the following passage from that interchange, at T7.21–30, the part that was not quoted is underlined:
“MR GOODRICH: Yes, and at page 77, paragraph 17 – what does she mean
‘I waited till Cameron and Jess returned.’
Apparently Cameron had been there.
ARBITRATOR: Yes, well he says he was because at page 83 he said he’d gone out to get coffees for everybody at paragraph 18.”
The passage from page 77 of the Application is from the statement of Ms Ferguson. That statement specifically said that the resignation was left by the respondent, who then left the store without saying where she was going, while Mr Wilson and Ms Shipway were absent (Ms Ferguson’s statement at [14]–[17]). The reference to page 83 of the Application is a reference to the statement of Mr Wilson, who specifically said that he left the store with Ms Shipway, and when he returned the respondent was gone and Ms Ferguson handed him the resignation.
Both of the statements, the subject of the above interchange, are from witnesses who said Mr Wilson was not in the store, when the respondent resigned and left. Contrary to the appellant’s submission numbered 3, the interchange quoted above cannot be read as an acceptance by the Arbitrator that Mr Wilson was present in the store at that time. It says no such thing.
This alleged acceptance by the Arbitrator of an erroneous fact, is then submitted to give rise to a chain of factual errors.
There is no suggestion in the Arbitrator’s reasons, that his reasoning on the factual issues was based on an acceptance that Mr Wilson was present when the respondent gave her resignation and left the store. In his reasons at [23] he said that the respondent “said there were no managerial staff at the store when she left the letter there”. At [44] the Arbitrator, save as to one restricted aspect not relevant for current purposes, said that he accepted the evidence of Ms Ferguson.
The appellant, in the third of its submissions on this ground, specifically said that “had the Arbitrator found that Cameron Wilson was not present then the Arbitrator would not have been able to accept the Respondent worker’s evidence that she told Cameron Wilson that she was going to complain to the Appellant’s director in Renmark”. It is clear, from the Arbitrator’s reasons at [86], that he did not deal with the factual issue on this basis. The Arbitrator at [86] of his reasons said:
“Neither the length of the journey, not her failure to alert Ms Leonard or anyone at the store of her intention, causes me to doubt her intention to get to Renmark and speak to her employer face to face.” (emphasis added)
The factual basis for Ground 6, and the submissions made in support of it, are totally without foundation. To the extent that it is necessary, I give the appellant leave to rely on this additional ground. Ground 6 is rejected.
DECISION
The Arbitrator’s decision dated 13 January 2016 is confirmed.
ADDENDUM
On 19 May 2016, after completion of the decision on appeal, and shortly prior to its publication, the appellant’s solicitors, by email, lodged an amended “Chronology of Events”. The covering email stated that the appellant’s original chronology was “incomplete”, and that the “complete Chronology” was attached for filing. It was not lodged pursuant to any direction or leave from the Commission. There was no indication that that document had been served on the respondent’s solicitors. This further chronology has been attached to the Commission’s file. It has not been considered in reaching the decision on appeal. It would not, in any event, have affected the result.
Michael Snell
Deputy President
20 May 2016
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