Zaree v C & N Laser Pty Ltd - [2024] NSWPIC 119

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zaree v C & N LASER PTY LTD [2024] NSWPIC 119
APPLICANT:	Narges Zaree
RESPONDENT:	C & N Laser Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	12 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; pre-injury average weekly earnings (PIAWE); dispute as to whether bonus payments should have been included in calculation: whether schedule 3.2(2)(d) prevented the same as being payments made without obligation; Held – respondent’s reliance on Taylor-Craig v Smartgroup Benefits Pty Ltd distinguished as no written contractual term present, parole evidence considered and payment of bonus found to be a contractual obligation; bonus payments accordingly part of the PIAWE.
DETERMINATIONS MADE:	The Commission determines: 1. The appropriate pre-injury average weekly earnings for the subject period was $1,912.22. 2. The respondent will calculate the payment of compensation in accordance with this finding. 3. Leave is granted for the parties to apply in respect of these calculations within 14 days of determination.

STATEMENT OF REASONS

BACKGROUND

Narges Zaree, the applicant, brings an application against C & N Laser Pty Ltd, the respondent, for a determination regarding a work capacity Decision dated 6 October 2023.
It is common ground that on a deemed date of 13 September 2023 Ms Zaree suffered an injury to her neck, right shoulder, lower back, and secondary anxiety and depression.
It was agreed that Ms Zaree has been earning a base rate of $1,764.15 per week (pw) in her employment with the respondent company, which operated under the trading name “Evolution Laser Clinic,” where she commenced in January 2018.[1]
[1] Statement dated 23 October 2023 at [5].
The issue in dispute is whether the insurer was entitled to assess her pre-injury average weekly earnings (PIAWE) without including the payments described as “bonuses” on her payslips over the relevant period between 12 September 2022 and 10 September 2023.
It was agreed that with the bonuses included over that period, Ms Zaree would have earned $1,912.22, so that the dispute concerns the sum of $148.08 pw – the difference between the two annual figures.
The applicant was employed under a written contract of employment with C&N Laser Pty Ltd and it was common ground that the written contract did not include any mention of payments and commission for obtaining bonuses.[2]
[2] Employment Contract at Application to Resolve a Dispute (ARD) page 35.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) has Ms Zaree’s PIAWE been assessed correctly?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard on 15 December 2023. Mr John Gaitanis of counsel appeared for the applicant briefed by Ms Dorsa Dawson. Mr James McEnaney of counsel appeared for the respondent, instructed by Mr Jamie Coleman. Ms Nishita Khanna appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting…

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 119
Decision Date: 12 March 2024

CaseChat Overview and Summary

Zaree was a plaintiff in a dispute with C & N Laser Pty Ltd, regarding the calculation of pre-injury average weekly earnings (PIAWE) under the Workers Compensation Act 1987. The central issue in this case was whether bonus payments should be included in the calculation of PIAWE. This determination hinged on the interpretation of section 3.2(2)(d) of the Act, which governs the inclusion of payments made without obligation. The court needed to decide whether the bonus payments made by the respondent to Zaree were indeed payments made without obligation, thereby excluding them from the PIAWE calculation.

The court examined whether there was a written contractual term that exempted the payment of bonuses, as was considered in the case of Taylor-Craig v Smartgroup Benefits Pty Ltd. In the present case, the court found that there was no written contractual term excluding the obligation to pay bonuses. Consequently, the court admitted parole evidence to understand the nature of these payments. The evidence revealed that the payment of bonuses was a contractual obligation, not a discretionary act. Therefore, the court concluded that the bonuses should be considered as part of the PIAWE.

Given the findings, the court held that the respondent's reliance on the Taylor-Craig decision was misplaced due to the absence of a written contractual term exempting the bonus payments. As a result, the bonuses were included in the calculation of Zaree's PIAWE. This decision underscored the importance of the contractual obligations surrounding bonus payments in determining PIAWE under the Workers Compensation Act 1987.

Orders