Tran v Westpac Banking Corporation - [2018] NSWWCCPD 4

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Tran v Westpac Banking Corporation [2018] NSWWCCPD 4
APPELLANT:	Thi Bich Van Tran
RESPONDENT:	Westpac Banking Corporation
INSURER:	Self-insured
FILE NUMBER:	A1-2461/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	13 September 2017
DATE OF APPEAL DECISION:	8 February 2018
SUBJECT MATTER OF DECISION:	Section 352 of the Workplace Injury Management and Workers Compensation Act 1998, absence of reliable transcript of arbitral hearing; need for remitter in the circumstances of the case.
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Stacks Goudkamp
Respondent:	HWL Ebsworth
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 September 2017 is revoked. 2. The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

This appeal raises alleged errors in the fact finding process, and also the correctness of the test applied going to whether a defence was made out pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) in an allegation of psychological injury. The transcript of the arbitration hearing was significantly inadequate, due to unknown technical deficiencies in the sound recording. For reasons which follow, I conclude that, in all the circumstances, I cannot properly carry out the task of conducting an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in the absence of an appropriate transcript.

BACKGROUND

Thi Bich Van Tran was employed by Westpac Banking Corporation (the Bank) as a business analyst. She commenced work with the Bank in late 1993. In about 2015 Ms Tran had difficulties using a software application (SAS) with which she was unfamiliar. Aspects of Ms Tran’s reporting function were to be automated. Ms Tran also came under the supervision of a new manager, Akiko Hatagami, from June 2015. In October 2015 Ms Tran received a performance review which she was unhappy with. Her attempts to change the outcome of this review, in late 2015, were unsuccessful. Ms Tran was informed that she was to be placed on formal performance management. Ms Tran took carers’ leave from November 2015 to 26 February 2016 to care for her mother, who underwent surgery.
After her resumption Ms Tran was invited, on 14 March 2016, to attend a performance management interview on 17 March 2016. She saw a doctor for stress on 15 March 2016, and was off work from 15 to 24 March 2016. On 12 April 2016 Ms Tran was invited to another such meeting, to be held on 13 April 2016. She lodged a ‘grievance’ on 12 April 2016, involving allegations of ‘bullying and harassment’ against Ms Hatagami. Performance management was placed on hold while the ‘grievance’ was investigated. Ms Tran (with a union representative for support) was interviewed by Human Resources on 22 April 2016. On 13 May 2016 Ms Tran was informed that her allegations against Ms Hatagami were dismissed as “unsubstantiated”.[1] Human Resources recommended that Ms Tran be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWWCCPD 4
Decision Date: 8 February 2018

CaseChat Overview and Summary

The matter before the court was an appeal by the claimant against a determination made by an arbitrator in relation to a workers compensation claim. The claimant, Tran, was appealing the decision of the arbitrator, arguing that the absence of a reliable transcript of the arbitral hearing undermined the fairness of the process. The respondent, Westpac Banking Corporation, contended that the absence of a transcript did not affect the outcome and the decision should stand. The court was required to decide whether the absence of a reliable transcript necessitated the remitting of the matter for re-determination by another arbitrator under Section 352 of the Workplace Injury Management and Workers Compensation Act 1998.

The court found that the absence of a reliable transcript of the arbitral hearing was a significant procedural irregularity. This irregularity affected the ability of the court to properly review the merits of the arbitrator's decision, and thus, compromised the fairness and transparency of the process. Given the importance of ensuring that all parties have access to a reliable record of the proceedings, the court held that the decision of the arbitrator was flawed and could not be upheld. Consequently, the court decided that the matter must be remitted for re-determination by another arbitrator, as mandated by Section 352 of the Act.

In light of the above findings, the court revoked the Certificate of Determination dated 13 September 2017. The court further ordered that the matter be remitted for re-determination by another arbitrator to ensure a fair and transparent process. The decision underscores the critical role of reliable records in the arbitration process and the court's commitment to upholding procedural fairness in workers compensation claims.

Orders

Orders of the court

1. The Certificate of Determination dated 13 September 2017 is revoked.

2. The matter is remitted for re-determination by another Arbitrator.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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