Whittingham v Ascott Air Conditioning Pty Ltd - [2010] NSWWCCPD 36

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36
APPELLANT:		Stephen Whittingham
RESPONDENT:		Ascott Air Conditioning Pty Ltd
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		A2-8723/09
ARBITRATOR:	Mr J McDermott
DATE OF ARBITRATOR’S DECISION:		23 December 2009
DATE OF APPEAL DECISION:		13 April 2010
SUBJECT MATTER OF DECISION:		Extension of time to appeal; section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998; injury at a Christmas party at the employer’s premises; sections 4, 9A and 14 of the Workers Compensation Act 1987; alcohol supplied by the employer; excessive consumption of alcohol; whether worker’s conduct in the course of employment; gross misconduct; serious and wilful misconduct
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	P K Simpson & Co
Respondent:	Stephen Lee Legal
ORDERS MADE ON APPEAL:		Time to appeal is extended until 28 January 2010. Paragraph one of the Arbitrator’s determination of 19 December 2009 is revoked and the matter is remitted to an arbitrator for such further orders as are appropriate consistent with the reasons in this decision. The Arbitrator’s determination of 19 December 2009 is varied to add: “3A. The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the Workers Compensation Act 1987 as a result of his injuries received on 19 December 2008, upon production of accounts or receipts.” All other orders by the Arbitrator are confirmed.
The respondent employer is to pay the appellant worker’s costs as agreed or assessed.

BACKGROUND

The appellant worker, Mr Whittingham, started work as a casual sheet metal offsider with the respondent employer in November 2008. On 19 December 2008, the respondent employer held a Christmas party at its Glendenning workshop. About nine or ten people attended the party, which commenced at about 12 midday.

What happened at the party is the subject of sharply conflicting evidence. Mr Whittingham alleges that the respondent’s managing director, Mr Michael Scott, charged at him and “crash-tackled” him to the ground. He also alleges that Mr Scott clenched his fist as if he was going to punch him. Another worker, Darren Flood, allegedly intervened and dragged Mr Scott off the worker.

Mr Scott denies having tackled the worker and alleges that, at about 4.00 or 5.00 pm, Mr Whittingham ran across the driveway outside the workshop, straight towards him, as though he was trying to crash-tackle him. Mr Scott stepped to one side and Mr Whittingham fell into a garden bed that has a raised concrete gutter around it, landing with the mid-section of his body on the concrete gutter.

Evidence from a third witness, Darren Flood, the worker’s supervisor, suggests that there were two incidents on the afternoon of 19 December 2008. Each involved Mr Whittingham either crash-tackling or attempting to crash-tackle Mr Scott.

Mr Whittingham alleges that, as a result of being tackled by Mr Scott, he injured his back, right…

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: [2010] NSWWCCPD 36
Decision Date: 13 April 2010

CaseChat Overview and Summary

Whittingham v Ascott Air Conditioning Pty Ltd is a case in which the worker, Mr Whittingham, appealed against the Arbitrator's decision that his dismissal was justified due to serious and wilful misconduct. The Arbitrator determined that Mr Whittingham's intoxication and subsequent assault of his employer at a Christmas party held at the employer's premises constituted serious and wilful misconduct. The appeal was heard in the Civil and Administrative Tribunal of New South Wales.

The legal issues before the Tribunal were whether Mr Whittingham's actions were within the course of his employment and whether they constituted serious and wilful misconduct warranting dismissal. The Tribunal considered whether the Arbitrator had erred in finding that Mr Whittingham's conduct was in the course of his employment, and whether the Arbitrator's decision was unreasonable. The Tribunal also had to decide whether the Arbitrator's decision was within the scope of the evidence and whether the dismissal was justified.

The Tribunal found that the Arbitrator had erred in finding that Mr Whittingham's conduct was in the course of his employment. The Tribunal held that the Arbitrator's decision was unreasonable and that the dismissal was not justified. The Tribunal also found that the employer had supplied alcohol at the Christmas party and that Mr Whittingham's excessive consumption of alcohol was not a voluntary act. The Tribunal noted that the employer had failed to take reasonable steps to prevent the excessive consumption of alcohol, which contributed to Mr Whittingham's conduct.

The Tribunal extended the time to appeal until 28 January 2010 and revoked paragraph one of the Arbitrator’s determination. The matter was remitted to an arbitrator for further orders consistent with the Tribunal's reasons. The Tribunal also varied the Arbitrator’s determination to include an order that the employer pay Mr Whittingham's reasonable hospital and medical expenses resulting from his injuries received on 19 December 2008, upon production of accounts or receipts. All other orders by the Arbitrator were confirmed.

Orders

Orders of the court

Time to appeal is extended until 28 January 2010.

Paragraph one of the Arbitrator’s determination of 19 December 2009 is revoked and the matter is remitted to an arbitrator for such further orders as are appropriate consistent with the reasons in this decision.

The Arbitrator’s determination of 19 December 2009 is varied to add:

“3A. The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the Workers Compensation Act 1987 as a result of his injuries received on 19 December 2008, upon production of accounts or receipts.”

All other orders by the Arbitrator are confirmed.

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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