Wakeling v Qantas Airways Limited - [2009] NTSC 42

Wakeling v Qantas Airways Limited [2009] NTSC 42

PARTIES: WAKELING, PAUL
v
QANTAS AIRWAYS LIMITED
TITLE OF COURT: SUPREME COURT OF THE NORTHERN
TERRITORY

JURISDICTION:

SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: LA12 of 2008 (20808628)
DELIVERED: 6 August 2009
HEARING DATES: 1 & 2 June 2009
JUDGMENT OF: THOMAS J
CATCHWORDS:
REPRESENTATION:
Counsel:

Appellant: I Morris
Respondent: S Walsh QC
Solicitors:

Appellant: Ward Keller
Respondent: Hunt & Hunt Lawyers

Judgment category classification: C
Judgment ID Number: Tho200908
Number of pages: 30
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Wakeling v Qantas Airways Limited [2009] NTSC 42
No. LA12 of 2008 (20808628)
BETWEEN:
WAKELING, PAUL
Appellant

AND:
QANTAS AIRWAYS LIMITED
Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 6 August 2009)

This is an appeal from the decision of a Stipendiary Magistrate involving the
interpretation of s 49 of the Workers Rehabilitation and Compensation Act
dealing with normal weekly earnings and, in particular, the interpretation of
s 49(2) of the Workers Rehabilitation and Compensation Act.
Mr Morris on behalf of the appellant worker asserts that what should be
included as part of the worker’s compensation was the access to a

concessional travel agreement that enabled employees to obtain travel at
about ten percent of the cost of a normal ticket.

The learned stipendiary magistrate in the Work Health Court ruled that the

worker’s concessional travel entitlements are not part of the worker’s
normal weekly earnings. It is this ruling which is the subject of appeal.

The issue for the Court, as expressed by Mr Morris, is whether the

concessional travel scheme is a benefit which ought to be included in
remuneration and if so then to calculate the normal weekly earnings under
s 49(1)(d)(ii) of the Workers Rehabilitation and Compensation Act. The
12 months of his employment prior to the injury is the basis for calculation
of normal weekly earnings.
Appellant’s background

The appellant was born on 31 January 1951. He was at all material times

employed by the respondent as an airline services operator at Darwin
Airport Ramp Services.

On 20 April 2002, the appellant worker sustained a right knee injury during
the course of employment with the respondent employer. He made a work
health claim relating to this injury which was accepted by the respondent.
On 1 October 2006, the appellant sustained a left knee injury during the

course of his employment with the respondent. The appellant made a work
health claim relating to this second injury which was accepted by the
respondent.

The respondent employer assessed the worker’s normal weekly earnings as
at the date of the second injury in the amount of $927.35 gross per week.
The worker asserted in the Work Health Court that his normal weekly

earnings as at the date of the second injury to be $2,780.60 made up of
$1,853.25 weekly non cash remuneration and $927.35 weekly cash
remuneration.

The worker’s employment was terminated with effect from 5 December 2007
because the respondent…

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: [2009] NTSC 42
Decision Date: 06/08/2009

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Wakeling, Paul (the appellant) appealed against the decision of the Stipendiary Magistrate (the learned magistrate) in the Work Health Court that the appellant's concessional travel entitlements were not part of his normal weekly earnings (NWE) for the purposes of section 49 of the Workers Rehabilitation and Compensation Act (the Act). The appeal was dismissed. The appellant's concessional travel entitlements were a benefit granted by the employer, Qantas Airways Limited (the respondent), at the sole discretion of the employer. The appellant's entitlement was subject to a number of conditions and could be withdrawn by the employer at any time. It was not sufficient to establish that it was a benefit. The issue was whether concessional travel was a benefit that formed part of the appellant's remuneration. The learned magistrate did not err in his approach. It was not part of the terms of the appellant's contract of employment. It was not and therefore cannot form part of his normal weekly earnings. In those circumstances the learned magistrate had no obligation to attempt to assess the value of the benefit. Ultimately, his Honour decided that he could not make a finding based on the differing valuations put forward by the appellant and the respondent. If the appellant were to be subsequently successful on appeal from this Court, then the matter may have to be referred back to the Work Health Court for further evidence as to the correct calculation of the benefit. The appeal was dismissed. The appellant to pay the respondent's costs of this appeal as agreed or taxed.

Orders