Wilson v Ascott Sales Integration Pty Ltd - [2024] NSWPIC 579

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wilson v Ascott Sales Integration Pty Ltd [2024] NSWPIC 579
APPLICANT:	Sally Anne Wilson
RESPONDENT:	Ascott Sales Integration Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	17 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; dispute is in relation to the calculation of pre-injury average weekly earnings (PIAWE); clause 8C of the Workers Compensation Regulation 2016 considered; Held – clause 8C applies; award for the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The relevant earning period for the calculation of pre-injury average weekly earnings should be adjusted to commence on 30 October 2021. 2. Pre-injury average weekly earnings as at 22 April 2022 was $740.19, and thereafter adjusted with indexation. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Sally Anne Wilson (the applicant) was employed by Ascott Sales Integration Pty Ltd, also known as IQVIA, (the respondent) on a casual basis as a registered nurse.
In October 2012 she was employed by YourHealth as a registered nurse and clinic manager on a part time basis of 32 hours per week.
On or about 7 November 2017 the applicant claimed workers compensation for a left thumb injury, later both thumbs, as a result of the nature and conditions of her employment with YourHealth. The claim was accepted by GIO, the workers compensation insurer at the time.
In about November 2018, the applicant commenced employment with the respondent. This was a casual role with intermittent and irregular shifts dependent on demand.
On 10 October 2019 the applicant commenced working for Nature Care as a registered nurse on a casual basis of one day per week. She also continued to work concurrently with YourHealth and the respondent.
On 15 December 2020 YourHealth closed down and the applicant ceased working for that employer. At that time the applicant increased her hours of work at Nature Care to 16 hours per week.
On 17 May 2021 the applicant ceased work with Nature Care as her hand was “too painful” and she was not coping with the nature of the work at Nature Care. She told Nature Care that she needed to stop accepting shifts.
A few weeks later, the applicant stopped taking shifts with the respondent for the same reason she stopped accepting shifts with Nature Care. The applicant was struggling with her injury and she knew she was having surgery to her right thumb on 19 July 2021.
On 19 July 2021 the applicant underwent surgery to her right thumb. GIO paid for the surgery, as well as weekly benefits from that time until November 2021. The applicant was totally unfit for work.
The applicant returned to work at the end of October 2021 with the respondent. The applicant thought it was late November 2021, although her payslips indicate it was
30 October 2021. The work with the respondent was very busy with “quite a lot of hours” due to an increase in the number…

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: [2024] NSWPIC 579
Decision Date: 17 October 2024

CaseChat Overview and Summary

The applicant, Wilson, filed a claim against Ascott Sales Integration Pty Ltd for the calculation of pre-injury average weekly earnings (PIAWE) under the Workers Compensation Act 1987. The dispute centred on the application of clause 8C of the Workers Compensation Regulation 2016, which pertains to the adjustment of the relevant earning period in cases of a financially material change to earnings. The matter was heard by the court, which was tasked with determining whether the change in the applicant’s employment circumstances qualified as a financially material change under the regulation.

The central legal issue was whether the change in the number of hours worked by the applicant constituted a materially ongoing change to her employment arrangement. The respondent argued that the applicant’s employment had always been a casual role with irregular and intermittent shifts, and the increase in hours was a natural fluctuation within this arrangement, rather than a fundamental change. The court had to assess the nature of the employment arrangement and the alleged change, as well as the relevance of the payslips provided by the respondent.

The court rejected the respondent's argument that the increase in hours was not a materially ongoing change to the employment arrangement. It found that the respondent's submissions regarding the nature of the employment and the continuity of the payslips were unconvincing, particularly as there were no payslips for the relevant period provided to the court. The court held that the change in the number of hours worked by the applicant did indeed constitute a materially ongoing change to her employment arrangement, and thus clause 8C of the regulation applied. Consequently, the applicant was awarded compensation.

The court ordered that the pre-injury average weekly earnings should be recalculated in accordance with the findings, reflecting the adjustment made under clause 8C of the Workers Compensation Regulation 2016.

Orders

Orders of the court

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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

Division 2 of Part 4 of the Workers Compensation Regulation 2016 relevantly provides:“8A Operation of Division (1) This Division provides for the adjustment of the relevant earning period under clause 2(2) of Schedule 3 to the 1987 Act for a worker in employment for the purposes of calculating the pre-injury average weekly earnings in relation to the worker. (2) The relevant earning period in respect of the employment is to be adjusted in accordance with the provisions of this Division in the following order- …(b) Clause 8C (Adjustment for financially material change to earnings),” Clause 8C, also referred to as reg 8C, provides:“8C Adjustment for financially material change to earnings-Schedule 3, clause 2(3)(a) of 1987 Act (1) The relevant earning period for a worker is to be adjusted in accordance with this clause if, during the unadjusted earning period, there was a change of an ongoing nature to the employment arrangement resulting a in a financially material change to the earnings of the worker (for example, a change from full-time to part-time work). (2) The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.” In relation to reg 8C, the respondent, in oral submissions, submitted it is necessary to consider first the nature of the employment arrangement. It was submitted that this was found at paragraph 5 of the applicant’s statement, that is her employment with the respondent was “a casual role with intermittent and irregular shifts dependent on demand.” It was submitted that the alleged change in employment arrangements was described in paragraph 11, in which the applicant said she returned to work in November 2021 “with quite a lot of hours, due to an increase in the number of patients”. It was submitted by the respondent that the change referred to in paragraph 11 of the applicant’s statement was entirely within the employment arrangement, which was a casual role with intermittent and irregular shifts depending on demand. The number of shifts rises and falls with demand, it was submitted. It was submitted by the respondent that this could not be a change of an ongoing nature to the employment arrangement, because the employment arrangement had remained the same for both before and after November 2021, that is a casual role with shifts that were determined by changes in demand. In written submissions, the respondent submitted the above, and also submitted that at no material time did the applicant resign her employment, nor did she seek to re-apply for her position with the respondent. It was submitted that the applicant’s payslips reflected the continuity of her status. I do not accept the respondent’s submissions in relation to payslips and continuity of the same employment arrangements. There were no payslips of the respondent before me for the period 17 July 2021 to 20 October 2021. It is the case that the payslips of the respondent stated, under the heading “Payroll Advice”, “16/04/2021 To 22/04/2022”. However, those words were not explained, and did not form part of the main body of the payslip, in which specific pay periods and amounts were identified.