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[2010] SAWCT 5
General information, not legal advice.
Workers Compensation Tribunal (SA)
2010-02-17
Mr J
Original judgment source is linked above.
1
This is a judicial determination of a preliminary issue that concerns the jurisdiction of the Tribunal to make orders upon the hearing of a review instigated by an employer pursuant to s 36(12)(b) of the Workers Rehabilitation and Compensation Act 1986.
2
I heard argument on the preliminary issue on 22 December 2009.
3
A statement of facts was agreed as hereunder:
"STATEMENT OF AGREED FACTS IN RELATION TO AGREED STATEMENT OF PRELIMINARY ISSUE
1. The worker and employer entered into a contract of employment on or about 28 February 2005.
2. On or about 20 April 2007, the worker sustained disability arising from his employment with the employer (the compensable disability).
3. In or about May 2007, the worker lodged a claim for compensation in respect of the compensable disability.
4. The compensating authority accepted the claim, including for income maintenance payments on an ongoing basis.
5. As at 11 August 2008, the worker continued to receive income maintenance payments from the compensating authority in respect of the compensable disability.
6. On 11 August 2008 and in the days following, various events occurred associated with the worker's employment by the employer, which the employer asserts amount to serious and wilful misconduct and/or a breach of the terms of the worker's employment contract authorizing summary dismissal.
7. On 15 August 2008 the employer dismissed the worker from employment.
8. By letter dated 27 November 2008, the employer, by its solicitors Messrs Donaldson Walsh, requested that the compensating authority review the worker's entitlement to payment of income maintenance pursuant to section 36(8) of the Act.
9. On 4 March 2009, the compensating authority determined not to discontinue or to reduce the worker's weekly payments of income maintenance.
10. On 24 March 2009, the employer filed the Notice of Dispute herein, against the decision of the compensating authority dated 4 March 2009.
11. On 1 April 2009, the compensating authority confirmed its decision of 4 March 2009 on Reconsideration.
12. This dispute has been referred into the Tribunal for judicial determination pursuant to section 92D of the Act."
4
By letter to Donaldson Walsh dated 4 March 2009 the Corporation, by its agent Employers Mutual Limited SA, gave notice of its decision on the review in the following terms:
"We write in reply to the correspondence dated 17th February 2009 received from SA Workers Compensation Tribunal directing us to carry out a review of the workers entitlements pursuant to Section 36(10).
We have reviewed the claim file as per your request pursuant to Section 36(8) with regard to the ongoing weekly payment entitlements of the worker and in accordance with Section 36(9) of the Act.
The worker cannot be discontinued under Section 36 as none of the relevant provisions of Section 36(1) can be applied.
In addition the worker cannot be reduced under Section 36 as none of the relevant provisions of Section 36(2) can be applied.
As a result the weekly payments of the worker remain unchanged.
Please note that you have the right to review this decision in accordance with Section 36(12)(b) of the Act.
If you have any queries regarding this claim, please contact me on (08) 8127 5163, or write to us at the above address.
Please ensure that the Case Manager's name and your claim number is written on all correspondence forwarded to this office.
If you are not satisfied with this decision, you may apply for a review under Section 90 of the Act. To apply, a completed Notice of Dispute must be lodged with the Workers Compensation and Tribunal, within one month from the date that you receive this letter. Further information about the Dispute Resolution Process is attached.
Yours faithfully
Nisha Raipathi
Case Manager".
5
Section 36(12) of the Act requires:
"(12) On completing the review the Corporation must give the employer notice in writing -
(a) of the Corporation's decision on the review, and the reasons for its decision; and
(b) of the employer's right to have the Corporation's decision reviewed."
6
It is doubtful whether the 'reasons' given in this notification of decision (viz "that none of the relevant provisions of s 36(1) or s 36(2) can be applied") could be regarded as adequate.
7
Mr Luke, for the employer, noted this but indicated that for the sake of expediency the employer was not taking issue with the decision on this score, at least not for now.
8
Nonetheless, what information EML had, or had regard to, when reviewing its earlier decision is not known. Likewise, it is not known what information EML had regard to when it further reviewed its decision before confirming its decision on 1 April 2009. EML's confirmation of disputed decision provided the following reasons:
"Employers Mutual Limited has reconsidered the decision in dispute based on the information supplied with the Notice of Dispute and previous information on the claim relevant to the disputed decision.
All information has been reviewed, and where appropriate clarified with the relevant parties. However, the decision is correct in fact and law, and in the absence of any conclusive evidence being provided to consider that reconsideration this further review does not provide grounds for Employers Mutual Limited to change the original decision.
The decision in dispute is therefore confirmed."
9
I note that the employer in its Notice of Dispute filed on 24 March 2009 contended that the compensating authority had "failed to take into account s 36(1)(e), under which weekly payments may be discontinued where the worker has been dismissed for serious and wilful misconduct".
10
In all the circumstances, I think it is inconceivable that the compensating authority failed to take into account s 36(1)(e). Whether or not it had due regard to all the relevant documents and circumstances, however, and whether or not it came to the right decision, is another matter. For the time being it is unnecessary for me to determine this.
11
This preliminary point is directed to determining what orders the Tribunal has jurisdiction to make upon its determination of the employer's Notice of Dispute.
12
An agreed statement of the preliminary issue identified three versions of possible order:
"AGREED STATEMENT OF PRELIMINARY ISSUE
1. On the hearing of the employer's Notice of Dispute in this action, does the Tribunal have jurisdiction to make any, and if so which, of the following orders:
(a) A final order (subject to appeal) discontinuing the worker's payments of income maintenance.
(b) An order directing the Compensating Authority to determine to discontinue the worker's payments of income maintenance and directing it to issue and serve a Notice upon him accordingly, including in such an order, orders as to the terms of such Notice.
(c) An order that the Compensating Authority reconsider its decision, the subject of the Notice of Dispute, to refuse to determine to discontinue the worker's income maintenance payments, including in such an order, terms as to the matters to be considered by the Compensating Authority in such reconsideration?"
13
It was not contended by anyone that the Tribunal could itself make an order discontinuing the worker's weekly payments as per alternative (a).
14
Mr Luke supported alternative (b). He submitted that the Tribunal could direct the compensating authority to issue a notice of discontinuance, having itself "stepped into the shoes of the compensating authority" and having conducted its own enquiry and determined for itself that weekly payments should be discontinued.
15
Mr Luke acknowledged that the worker could then still dispute the compensating authority's discontinuance, but noted that problematic issues of estoppel arose if the worker participated in the Tribunal's enquiry, as he envisaged the worker would do as an interested party.
16
Mr Black supported alternative (c). He submitted that the Tribunal's review was limited to an administrative law style of review, ie an enquiry as to whether the compensating authority had taken into account all the matters it should have or had taken into account matters which it ought not have. In the net result, he submitted, the Tribunal had no jurisdiction to direct the compensating authority to issue a notice, but could direct it to reconsider having regard to its (the Tribunal's) findings on relevant matters.
17
Mr Warren, for the worker, expressed support for alternative (c). As I understood his submissions, however, it was his contention that there was no power in the Tribunal on review to order anything beyond either confirming or setting aside the Corporation's decision, with appropriate reasons.
18
Mr Warren questioned the Tribunal's jurisdiction to hear and determine this matter at all, suggesting that the compensating authority's decision following its review to still not discontinue the worker's weekly payments might not constitute a reviewable decision under s 89A(1) of the Act. Suffice to say that I am satisfied that the compensating authority's decision does constitute a decision as defined by s 89A(1)(d).
19
It was not contended by anyone that the Tribunal could itself make an order discontinuing the worker's weekly payments. In my view, the Tribunal has no such jurisdiction.
20
Section 36 contemplates that it is the Corporation that decides on the discontinuance or reduction of weekly payments, and the Corporation that must give notice in the writing to the worker of any decision to discontinue or reduce payments. There is, in my view, nothing in s 36 to suggest that Parliament intended that these functions be transferred to the Tribunal in the context of reviewing a decision by the Corporation not to discontinue or reduce payments.
21
It is not easy to see how this difficulty is obviated by the Tribunal determining the matter for itself and then directing the Corporation to in effect rubber stamp its (the Tribunal's) decision and serve notice thereof on the worker.
22
Such a decision does not thereby become a decision of the Corporation. It is what it is, and that is a decision of the Tribunal. In my view, the Act does not give the Tribunal either the power to decide if a s 36 notice is to be issued, or the power to direct the compensating authority to issue such a notice.
23
Mr Luke referred to the Tribunal decisions of WorkCover/CGU (Duell's Furniture Removals) v Davidson[1] and Felstead v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Limited (V & P De Vizio Pty Ltd)[2]. In particular he relied on Deputy President Judge Gilchrist's comments in Felstead as hereunder:
"24 Once it is accepted that that the decision is reviewable it must, in my opinion, follow that the decision is reviewable in the same way as any other reviewable decision under the Act. That is, the Tribunal determines for itself what decision should be made. This was expressly provided for by s 96 of the Act under the former dispute resolution regime (which was the dispute resolution regime when s 44(3)(b) first appeared in the Act). It has been held to be the case in respect of the present regime. See Hornhardt v WorkCover/HIH (NTP Pty Ltd) [2000] SAWCT 157 and WorkCover/Royal & Sun Alliance (AMS Engineering Pty Ltd) v Toohey [2001] SAWCT 53. Had Parliament intended for some other form of review to apply, it is again reasonable to assume that it would have expressly said so."
24
Davidson is authority for the proposition that a compensating authority's decision to withhold or grant consent for a worker to reside out of the State or live out of the State continuously for a period of two months is a reviewable decision for the purposes of the Act. The Tribunal's decision in Davidson did not direct the Corporation to do anything.
25
The preliminary point before the Tribunal in Felstead was whether the Corporation's decision to refuse relief to the spouse of a deceased worker pursuant to s 44(3)(b) of the Act was immune from review by the Tribunal. Deputy President Judge Gilchrist found against the Corporation, holding that its decision was reviewable.
26
In Felstead, the Corporation contended that in any event the scope of any review was limited to a consideration of whether its decision had been open and whether its discretion had been properly exercised, within the principles declared by the High Court in House v The King[3]. Deputy President Judge Gilchrist disagreed, noting that "Had Parliament intended for some other form of review to apply, it is again reasonable to assume that it would have expressly said so".
27
That the Corporation's decision here is reviewable is not in dispute. Section 36(12)(b) makes it clear that it is.
28
The scheme of the Act, and s 36 in particular, suggests to me that the review contemplated by s 36(12)(b) is limited to a consideration of whether the Corporation's discretion has been properly exercised having regard to the principles identified by the High Court in House v The King.
29
The Tribunal's jurisdiction on such a review is in effect a supervisory jurisdiction, providing an aggrieved employer the means to be informed and heard. It provides a check against a compensating authority abusing or simply erring in the exercise of its powers.
30
The criteria for discontinuing or reducing weekly payments set out in s 36 are qualifying criteria. Section 36 does not mandate the discontinuance or reduction of weekly payments if one of the criteria is met. There remains a discretion in the compensating authority, regardless of the criteria being met, not to discontinue or reduce payments.
31
The problem for the employer here is that it does not know how the Corporation arrived at its decision not to discontinue payments. It does not know why s 36(1)(e) has not been applied.
32
Simply to be informed by the Corporation, in effect, that s 36(1)(e) does not apply, is not an adequate response for the employer. It would be unfair to the employer if it was left at that.
33
It is for such situations that the s 36(12)(b) review process is intended. Whether or not the employer will be appeased by the eventual outcome of the review process, at least it will know how the Corporation came to the decision it did and, in addition, have the benefit of the views of an independent Tribunal as to the adequacy of the Corporation's decision making process.
34
None of this, however, gainsays the fact that s 36 contemplates that it is the compensating authority, and only the compensating authority, that decides whether to discontinue or reduce weekly payments.
35
The Act does not contemplate that the Tribunal should do this, either directly or by proxy by directing that the compensating authority adopt and implement its decision.
36
Nor do I think that the Act gives the Tribunal the jurisdiction to order the compensating authority to reconsider its decision.
37
Whilst it is likely that a finding by the Tribunal here that the Corporation's decision not to discontinue weekly payments was erroneous and should be set aside would lead to the employer again requesting the Corporation to review the matter, I think that that is a process that must be initiated by the employer. Mr Luke's concerns regarding a 'circular process' are noted, but if the compensating authority and the employer heed the findings of the Tribunal, the review process will have served its purpose.
38
I accordingly find that the Tribunal does not have jurisdiction to make any of the proposed orders (a), (b) or (c), but is limited to ordering either the setting aside or confirmation of the Corporation's decision and indicating its reasons for doing so.
Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.
It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.
Abela
WorkCover/Employers Mutual Ltd
(1936) 55 CLR 499
(1976) 55 CLR 499