Cerin v ACI Operations Pty Ltd and WorkCover Corporation of South Australia [2013] SAWCT 23

1. The jurisdictional objection was not raised in the preferred procedural manner in that neither ACI nor the compensating authority filed an application for directions seeking an order that the proceedings be struck out for want of jurisdiction. I refer to my recent comments on this topic in Graeber v The State of South Australia.[4] However, it is clear that they seek a summary order striking out the notices of dispute on the ground that the Tribunal does not have jurisdiction to entertain them or alternatively to make the orders sought. I have proceeded on this basis.
2. I referred to the legal principles relevant to such applications in Durber v Arnott's Biscuits Limited in the following terms:[5]

"...to establish a basis for an order for summary dismissal, the employer must clearly demonstrate that the worker has no arguable case for review on either fact or law - that is, ...that the dispute is so obviously untenable that it cannot possibly succeed, or that it is manifestly groundless...the power of summary dismissal should be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried'...the need for exceptional caution is nowhere more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such circumstances, great care was to be exercised to ensure that under the guise of achieving expeditious finality, a claimant is not improperly deprived of an opportunity for the trial of a case by the appointed Tribunal."[6]

1. Undisputed historical information was set out in the submissions of the parties, in various parts of the Book of Documents to which the parties referred without objection, and in part of an affidavit of the worker's solicitor, Mr Ats. ACI and the compensating authority objected to portions of that affidavit[7] on the ground that it included hearsay material. I admitted the affidavit into evidence despite these objections bearing in mind that the material under objection indicated the nature of the case the worker intended to advance, if allowed to proceed. It is not my role at this stage to make any findings in relation to that factual material and I have not done so.
2. I now set out the background facts to the extent necessary. Since the right shoulder injury in April 2009, the worker has been either totally or partially incapacitated for work. He suffered further shoulder injuries (both left and right), and underwent surgery in July 2010 and September 2010. By letter dated 18 January 2012 ACI indicated it had formed the view that the worker was unable to perform the inherent requirements of either his pre-injury position or a subsequent modified position, and proposed a "detachment" from the worker's employment with ACI.[8]
3. On 2 October 2012 ACI wrote to the compensating authority and sought a release from its obligation under s 58B(1) of the Act to provide suitable employment for the worker. It advised that in its view the worker was not suitable for a range of positions the worker alleged were suitable for him. At this time ACI and the worker were bound by a RRTW plan which contained the objective of returning the worker to different employment with ACI. The plan was due to expire on 17 October 2012.[9]
4. On 10 October 2012 the compensating authority advised the worker's then representative by email that it had decided "to proceed with the detachment of this claim". The decision was said to be the responsibility of the claims agent rather than the employer, and to have been made after a review of medical information and upon the compensating authority forming the opinion that no suitable or sustainable duties were available for the worker with ACI.[10] On the same day the compensating authority issued a decision entitled "New employer direction approved" to the effect that approval had been given to returning the worker to suitable employment with a new employer. It was noted that the worker's employment was to be terminated.[11]
5. By letter dated 12 October 2012 ACI advised the worker that his employment would be terminated with effect from 12 November 2012 due the requirements of s 58B of the Act and ACI's inability to provide suitable employment due to the injury/incapacity.[12] The worker, through his union, indicated his opposition to this course of action and asserted that there was suitable employment for him with ACI.[13]
6. On 12 November 2012 the worker lodged a notice of dispute[14] ("the first dispute") said to relate to a decision of 17 October 2012. It is not clear what, if any, decision was made on that date. There was no evidence of any decision of that date in the materials before me. The compensating authority's confirmation of disputed decision assumed the dispute related to what it described as the decision to detach the worker under s 58B of the Act being the decision of 10 October 2012 described above.[15]
7. In his affidavit Mr Ats asserted that the notice of dispute had been filed because the compensating authority had failed to respond to requests[16] that it establish a rehabilitation programme which included duties with ACI.[17] Thus, as I understand it, the worker's position was that the alleged failure of the compensating authority to respond to such requests was to be taken to be a decision not to establish a rehabilitation programme in the terms sought, and thus to be a reviewable decision under s 89A of the Act, to which the notice of dispute of 12 November 2012 was directed. No issue was taken with this characterisation of the dispute.
8. On 17 April 2013 the compensating authority established a RRTW Plan ("Plan 3") which had a completion date of 10 July 2013. The parties were the worker and ACI, the latter described as "the pre-injury employer".[18] The nominated return to work objective was "the worker's return to different employment with a different employer", the nominated employment being either purchasing officer or accounts clerk.
9. On or about 29 April 2013 a notice of dispute was filed by the worker[19] ("the second dispute") which asserted Plan 3 was unreasonable in that it did not include the objective that the worker return to work to different employment with ACI, being one of the objectives contemplated by Regulation 23(c)(ii) of the Workers Rehabilitation and Compensation Regulations 2010 ("the Regulations").
10. The parties agreed that the objection to the jurisdiction of the Tribunal to hear the second dispute should be heard and dealt with at the same time as the jurisdictional objection in relation to the first dispute.

1. The compensating authority submitted that in reality the notices of dispute did not relate to a "claim for compensation" under the Act or raise any issue as to a compensation related entitlement determinable by the Tribunal under the Act. It contended that, under the guise of a compensation dispute, the worker sought a review of the industrial relationship between the worker and his former employer, and a finding that the dismissal was unreasonable, and an order for his re-employment.
2. The compensating authority accepted that, in accordance with the recent Full Tribunal decision in State of South Australia v Holloway,[20] there may be jurisdiction to hear the application for a review of Plan 3 on the ground that it was unreasonable. However, the compensating authority contended that once the employment relationship was terminated, whether on the grounds given by ACI or for any other reason, it could not be restored by an order of the Tribunal as it had no statutory power to do so. It contended that the worker would have to pursue any such remedy elsewhere.
3. ACI supported the compensating authority's submissions. It also contended that the applications for review were an impermissible attempt to overcome the "decision" of the compensating authority under s 58B of the Act to permit the disengagement of the worker from his employment with ACI. Further, that the power to order that a rehabilitation programme be established or to modify a RRTW Plan did not extend to the creation of new rights and entitlements under an employment contract.
4. The worker contended that the jurisdiction of the Tribunal was enlivened upon the allegation that it was unreasonable of the compensating authority not to establish a rehabilitation programme or to modify Plan 3 in the terms sought. Further, assuming unreasonableness was established, the worker contended that the terms upon which the proposed return to work objective should be included in any programme or plan depended upon the factual findings made, and did not necessarily involve the re-establishment of the employment contract.
5. The worker submitted that however one may construe the operation of s 58B of the Act, it could not be taken to limit the dispute resolution powers under either ss 28B or 89A of the Act. Further, that it was a misconception to suggest that there was any "decision" capable of being made in accordance with s 58B which could limit the powers of the Tribunal.
6. It was submitted that the parties objecting to jurisdiction had not demonstrated that the worker had no arguable case for review on either fact or law and that the ultimate outcome turned upon the findings of fact which would be made upon a full hearing.

1. The Tribunal possesses the jurisdiction conferred upon it by statute (s 79). It has jurisdiction to resolve a dispute arising under both ss 28B and 89A of the Act by judicial determination, which involves a hearing of the matter in dispute and a decision without regard to decisions taken in earlier proceedings (s 94C), and having regard to the terms of ss 84 and 85 relating to the nature of the evidence and information able to be considered and principles of equity, good conscience and the merits of the case.
2. The compensating authority has a positive obligation under s 26 of the Act to establish a rehabilitation programme and a worker has a reciprocal right to have a programme established, and has a right under s 89A(1)(b) of the Act to seek a review of "a decision about the nature of rehabilitation services provided, or to be provided, for a worker": Dunstan v State of South Australia.[21] The compensating authority has allegedly declined to establish a rehabilitation programme in the terms as requested, and the worker asserts that this is a decision which is unreasonable as there should be a programme with the objective of returning him to different employment with the pre-injury employer. The first dispute enlivens the jurisdiction of the Tribunal, which must proceed to determine whether the worker's request is reasonable, and whether the compensating authority's refusal to accede to the request is unreasonable.[22]
3. The second dispute arises from an application for review under s 28B of the Act, which provides review rights complementary to those available under s 89A, but which is confined to issues arising over the establishment or terms of RRTW Plans, and whether a discretion should be exercised, assuming unreasonableness, to modify a Plan so as to ensure it does not impose unreasonable obligations.[23] Nevertheless, the determination of any such review involves the same process as under Part 6A of the Act. The worker's assertion is that Plan 3 is unreasonable as it does not contain the objective of returning him to different employment with the pre-injury employer. That is an assertion which enlivens the jurisdiction of the Tribunal on an application under s 28B of the Act: Holloway.[24]
4. Once the jurisdiction of the Tribunal is enlivened, the Tribunal must consider the merits of the dispute. If the worker establishes unreasonableness, then with respect to the first dispute, the Tribunal must consider what might be the appropriate terms of a rehabilitation programme, and with respect to the second dispute, must consider what modifications might be made to Plan 3 to remove any unreasonable obligation on one of the parties bound by it. These considerations must take place in light of the facts found by the Tribunal.
5. It is necessary to bear in mind the distinction between the jurisdiction of the Tribunal to entertain an application for review of a decision and the powers it might exercise in determining the dispute. This was discussed in Holloway, where the majority observed that the "...jurisdictional question is to be considered apart from what the Tribunal might do if it concludes it has jurisdiction".[25]
6. The Full Tribunal expanded on that point, in the context of the question then before it concerning the alleged unreasonableness of a Plan due to a failure to make provision for payment of an appropriate wage with respect to alternative duties, in the following terms:[26]

"...depending on a conclusion of unreasonableness the Tribunal still has discretion to order modification of the RRTW Plan. Regard must be had to the evidence supporting the finding of unreasonableness. It must be stressed that every case depends on its own circumstances. What is reasonable is a mere question of fact in a given set of circumstances...The unreasonableness must be considered in the context of the objects of the Act to promote rehabilitation and return to work. If unreasonableness arises from the circumstances in which the RRTW Plans were established or a failure to pay an appropriate wage or salary for alternative duties it is open to the Tribunal to consider whether that unreasonableness can be remedied by modifying the RRTW Plans to include a provision as to an appropriate pay rate. That is, it has jurisdiction to consider the merits of the application and what might be an appropriate variation to the RRTW Plan."

1. The question as to whether there is power to make an order sought to determine a dispute is not always separable from the question of jurisdiction. There are cases where an attempt to invoke the jurisdiction of the Tribunal will be summarily dismissed without the need for a hearing on the facts to determine whether unreasonableness is established and what orders might properly be made by the Tribunal in light of the full facts. The recent decision of WorkCover Corporation (Green Triangle Forest Products Limited) v Crute[27] is an example. There the worker sought the establishment of a RRTW Plan that obliged an entity that was not the preinjury employer to provide him with employment on modified duties. The Tribunal determined that on a proper construction of the Act a RRTW Plan imposing obligations on such an entity could not be established under s 28A of the Act. It was held that the Tribunal lacked jurisdiction to order that such a Plan be established in any circumstances.
2. In the present case the position is not nearly so clear. It is arguable that a rehabilitation programme or RRTW Plan may be established which imposes obligations on a former employer of a worker; that the operation of s 58B of the Act, and any "decision" made under that provision by a compensating authority, imposes no restriction on the jurisdiction or powers of the Tribunal in determining a rehabilitation dispute; that the order sought by the worker does not necessarily involve an order for reemployment; and that even if it did, such an order is not necessarily beyond power. I address each of these topics in turn.
3. The provisions of the Act do not suggest that a rehabilitation programme or RRTW Plan which imposes obligations on an employer cannot be established after the employment relationship has ended. Section 26 imposes an obligation on a compensating authority to establish a rehabilitation programme, which may be in general or particular terms. The section lists a range of specific services and activities with respect to workers that might be encompassed by such a programme. Whilst it contains no specific provisions in that regard with respect to employers, the functions of rehabilitation advisers set out in s 28 of the Act suggest that the devising of such a programme may involve consultation with employers.[28]
4. Under s 28A of the Act, the compensating authority, in preparing a RRTW Plan, must consult with both the worker and "the employer out of whose employment the injury arose".[29] The Plan may impose obligations on both worker and employer, and is binding on them.
5. The employer upon which obligations may be imposed, arguably under s 26, and specifically under s 28A, is the employer out of whose employment the injury arose. The word "employer" is defined in s 3 of the Act to include a "former employer". It is clear that a rehabilitation programme or a RRTW Plan can be established which imposes obligations on ACI as the former employer, notwithstanding its termination of the employment of the worker. Indeed, this is precisely what Plan 3 does, although with what the worker contends is the unreasonable omission of the objective of returning the worker to different employment with ACI.
6. In the initial written submissions of the parties opposing jurisdiction, there was a suggestion that what was described as the "decision" of the compensating authority to "detach" the worker under s 58B of the Act was a decision which deprived the Tribunal of jurisdiction to hear the dispute, and that it was beyond the power to make an order which would encroach upon or overturn the effect of that "decision". I note that in its oral submissions, the compensating authority expressly resiled from that position, and relied solely upon the contention that, as the employment of the worker had been terminated, an order in the terms proposed was beyond power simply because it would be an order for re-employment. However, ACI maintained the submission as to the limiting effect of a decision under s 58B.
7. As observed in Holloway,[30] Section 58B is contained in Part 4 Division 9 of the Act, in a quite different location to the rehabilitation provisions in Part 3. The section provides as follows:

"58B - Employer's duty to provide work or pay wages

(1) If a worker who has been incapacitated for work in consequence of a compensable injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the injury arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).

(2) Subsection (1) does not apply if -

(a) it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or

(b) the worker left the employment of that employer before the commencement of the incapacity for work; or

(c) the worker terminated the employment after the commencement of the incapacity for work; or

(e) the employer currently employs less than 10 employees, and the period that has elapsed since the worker became incapacitated for work is more than 1 year.

(3) If a worker who has been incapacitated for work in consequence of a compensable injury undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation."

1. As is evident from the terms of subs (1), the provision imposes an obligation on the employer from whose employment the injury arose to provide suitable employment to the worker. The employer is exposed to prosecution and to the imposition of a penalty if that obligation is not complied with.
2. It appears that at some stage during 2012 the compensating authority came to share the view of ACI that it was not reasonably practicable for ACI to provide suitable employment to the worker, and thus made a "decision" to detach the worker from s 58B. This could be no more than a decision by the compensating authority that it did not consider ACI to be in breach of s 58B(1) in making a decision that it was not practicable for it to provide employment in accordance with s 58B(1), and that it would take no legal or other action to pursue the imposition of a penalty on ACI for acting upon that decision by terminating the employment of the worker.
3. It is relevant to note that the circumstances set out in s 58B(2), in which the obligation under s 58B(1) will not apply, do not include a termination by the employer of the worker's employment, but do include the actions of the worker in leaving or terminating the employment as described in subs (2)(b) and (c). Whilst subs (2)(a) provides that s 58B(1) will not apply if it is not reasonably practicable for the employer to provide suitable employment, termination of employment for that reason does not of itself provide protection from the consequences of a breach of s 58B(1). The employer still has the onus of establishing that it is not reasonably practicable to provide employment in accordance with s 58B(1) of the Act.
4. However the "decision" of the compensating authority with respect to s 58B may be categorised, it arguably has no effect upon the powers of the Tribunal with respect to the determination of the disputes in question. Such a view is consistent with the approach taken by the majority in Holloway, albeit that the focus was there upon the operation of s 58B(3).[31]
5. The compensating authority submitted that a proper understanding of the analysis of the relationship between the worker and the employer in the Full Supreme Court decision of State of South Australia v Day[32] suggested that a RRTW Plan could not impose obligations on an employer to provide duties to a worker unless there was an ongoing relationship of employment. It was submitted that, although the functions performed by Ms Day as a School Services Officer ("SSO") were performed under a series of RRTW Plans established under s 28A of the Act, and not under a contract of employment, this could only have occurred in the context of the preexisting and ongoing employment relationship of Ms Day as a teacher.
6. The decision in Day was made with respect to a claim for underpayment under s 14 of the then Industrial and Employee Relations Act 1994 on the basis that Ms Day's salary entitlement for the SSO duties exceeded the amount she was receiving by way of compensation. In order for her claim to have a proper statutory foundation, the entitlement to payment had to arise from an award, enterprise agreement or a contract of employment.
7. In dismissing the claim on the basis that no such foundation was established, Bleby J, with whom the other Members of the Supreme Court agreed, said:[33]

"In my opinion, the functions of a SSO performed by the respondent were not performed under a contract of employment as a SSO but pursuant to a series of rehabilitation and return-to-work plans given statutory force by s 28A of the Compensation Act. There was never any intention on the part of the appellant and the respondent to enter into contractual relations, let alone a contract of employment to perform the duties of a SSO. As there was no contract to perform those duties, there was nothing on which the award could operate, and her claim, in so far as it was based on the award, was bound to fail."

1. Whilst it is to be acknowledged, as the compensating authority contended, that the facts in Day reveal that the worker had been employed as a teacher before her injury under a series of contracts of employment, those contracts were periodic, and may not have been appropriately renewed, such that there was some doubt as to whether there was any ongoing underlying contract of employment at the time she was deployed on SSO duties.[34]
2. The majority of the Full Tribunal in Holloway made the following observation as to these comments in Day:

"At the risk of stating the obvious and despite what is said in Day's Case, not all payments for work organised for the injured worker under a RRTW Plan arises from the statutory force of s 28A. Clearly some are performed under a contract of employment. Frequently RRTW Plans involve the worker working for a third party. As such the work is performed pursuant to a contract of employment. The RRTW Plan will no doubt provide an arrangement for make-up compensation if appropriate. The important point is that in RRTW Plans there may be found a myriad of arrangements. The common feature is an arrangement between the Corporation, the worker and the employer with the objective of promoting and assisting the injured worker to return, so far as the progress of his or her injuries permit, to his or her pre accident capacity."[35]

1. The point which emerges from the above is that RRTW Plans may be founded upon a "myriad of arrangements", and impliedly, need not necessarily be founded upon an ongoing contract of employment. This arguably lends support to the contention of the worker that the order sought for the establishment of a rehabilitation programme, or for the modification of Plan 3, to include the objective of returning to different employment with ACI, and the obligation to provide work or duties to that end, does not of itself necessarily involve re-employment, at least at the initial stage. The rights and obligations between the parties with respect to any work or duties provided arguably may be capable of definition in a modified Plan 3 which has statutory force under s 28A in a manner which does not reestablish an employment relationship.
2. That proposition is indirectly supported by the terms of s 58B(3), set out above, as to the obligation of the employer to pay an appropriate wage or salary if a worker undertakes alternative or modified duties under employment or an "arrangement" that falls outside the worker's contract of service for the employment from which the injury arose.[36] The highlighted words arguably suggest that alternative or modified duties in the rehabilitation context may be undertaken under an arrangement given statutory force by s 28A of the Act without an underlying contract of employment.
3. In my view the above considerations are enough to dispose of the application for summary dismissal as it is arguable that the orders sought need not involve re-employment. However, I add some further observations with respect to whether it is arguable that the Tribunal can make an order which has that effect.
4. The compensating authority contended that a relevant consideration was the general reluctance of common law courts to order specific performance of employment contracts. However, that is not to the point. The jurisdiction of a statutory Tribunal arises from the legislation under which it is established. A Tribunal may be given explicit power by statute to order re-employment, as with the Industrial Relations Commission of South Australia under s 109 of the Fair Work Act 1994. Alternatively, there may arguably be power to make an order in the proper exercise of the jurisdiction bestowed by statute which has the incidental effect of requiring re-employment.
5. This Tribunal has no explicit power to order reemployment, understandably so as the Act relates to rehabilitation and compensation, and resolution of disputes arising under either ss 89A or 28B of the Act. However, although the jurisdiction of the Tribunal is limited to that conferred by statute, the power of the Tribunal is supplemented by jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise. This does not mean the Tribunal possesses an inherent jurisdiction, but only such jurisdiction as is necessary to allow it to properly discharge its statutory function.[37]
6. The objects of the Act require the Tribunal, in exercising its powers without bias towards the interests of employers on the one hand, or workers on the other, to provide for the effective rehabilitation of injured workers and their early return to work. If the argument of the employer and the compensating authority is correct, the ability of the Tribunal to achieve that objective by the exercise of powers to decide a rehabilitation dispute could be constrained by the unilateral action of the employer in terminating the employment contract, whether that action was justifiable or not, and whether or not it had the support of the compensating authority.
7. The background to the disputes before the Tribunal suggests they are not centred upon, and do not arise solely out of, the fact of the termination of the worker's employment. It appears that since at least January 2012 ACI has been asserting an inability on the part of the worker to perform any duties available at ACI, and that the worker has at all times disputed that assertion.[38] There appears to have been an issue over the proper course of the rehabilitation process since that time. Whilst the actual dispute proceedings arose after the termination of employment, the subject matter of the dispute relates to rehabilitation and work capacity issues in existence well before the dismissal on 12 October 2012.
8. Depending upon the factual findings, it may be arguable on the part of the worker that, as part of a wider dispute over rehabilitation, the Tribunal, if it finds unreasonableness, has power to determine the dispute by modifying Plan 3 through orders which have the consequential or incidental effect of requiring re-employment by ACI of the worker. That is, that such an order is open to the Tribunal as a means of determining the primary matter before it, being the rehabilitation dispute.
9. In this context, whilst the circumstances are obviously entirely different, an approach analogous to that taken with respect to the general powers of dispute resolution of the Industrial Commission of South Australia, compared with the specific powers of re-instatement of the former Industrial Court of South Australia, may be open. The Full Supreme Court of South Australia, in R v Industrial Commission of South Australia; ex parte Corporation of the City of Salisbury,[39] upheld the power of the Industrial Commission, in resolving an industrial dispute which commenced before the dismissal of two of the employee participants in the dispute, to order re-instatement of those employees. A contention that a re-instatement order could not be made in such circumstances, because there was an allegedly exclusive jurisdiction to order re-instatement upon dismissal vested in the Industrial Court, was rejected. Whether this analogy has any validity would depend upon the findings made by the Tribunal and an assessment of the scope of the Tribunal's powers in that context.
10. The point just made highlights the relevance of the observation made in Holloway, to the effect that in some circumstances, where the Tribunal's jurisdiction to hear and determine a dispute over rehabilitation is appropriately invoked, questions as to the Tribunal's power to make the specific orders sought by an applicant may not be capable of determination until factual findings with respect to the entirety of the dispute are made, and until the precise nature of the orders sought are identified in the context of the facts.[40]
11. A further observation I make is that the fact that the worker has exercised the right to agitate the alleged unreasonableness of his dismissal in the Federal Circuit Court does not of itself present a bar to the Tribunal proceeding to hear the dispute. It may present a problem for the proceedings under the FW Act if the Tribunal proceedings are properly able to be characterised under s 732 of the FW Act as proceedings "in relation to the dismissal". I make no comment in that regard. If the proceedings cannot be so characterised, and but nevertheless may result in an order determining the dispute which, among other things, obliges ACI to re-employ the worker, there may need to be a stay of one set of proceedings or the other, to avoid any problem of inconsistent decisions being reached by different tribunals. That would be a matter for the parties or the Tribunal to address if and when it became necessary. The point is that the fact that other proceedings are on foot does not of itself prevent the exercise of such powers as are available to the Tribunal to determine the rehabilitation disputes before it.

1. I reject the contention of the compensating authority and ACI that the worker has no arguable case in fact or law that the Tribunal has jurisdiction and power to make orders sought. I decline to dismiss the dispute proceedings which should now progress to a full hearing.
2. As should be understood from the nature of summary dismissal proceedings, the conclusion I have reached does not mean that all or any of the worker's contentions of fact or law will necessarily be upheld. That is to be decided by the member who presides over the full hearing after considering all the facts.

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.

[2] Letter Zeitz Workplace Lawyers dated 22 April 2013.

[4] [2013] SAWCT 17 at [13].

[5] [2012] SAWCT 9.

[8] ACI letter dated 18 January 2012 "To whom it may concern" Book of Documents (BD) 84-85.

[10] Email from Employers Mutual to Mr Russell dated 10 October 2012 - BD/125.

[13] Letter from Australian Workers Union to Employers Mutual Ltd 24 October 2012 - BD/138.

[16] Referenced in the affidavit to written communications by or on behalf of the worker at BD/120-1 and 136-7.

[18] Annexure MA1 to the Ats affidavit.

[20] [2013] SAWCT 14.

[21] [1998] SAWCT 48 at pp 18-21.

[25] At [49], and see also, more generally, the case cited at [47].

[27] [2013] SAWCT 19.

[31] See observations at [54] and [55].

[32] [2000] SASC 451; (2000) 78 SASR 270.

[35] See objectives in Workers Rehabilitation and Compensation Regulations 2010 clause 23.

[37] Trask v WorkCover/QBE Mercantile Mutual [2005] SAWCT 28 at [41] and cases there cited.

[39] (1982) 31 SASR 51.