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[1975] HCA 29
High Court of Australia
1975-07-01
Murphy JJ, McTiernan J
Original judgment source is linked above.
High Court of Australia McTiernan, Gibbs, Mason, Jacobs and Murphy JJ. Dowell Australia Ltd v Archdeacon [1975] HCA 29
This is an appeal by Dowell Australia Limited (Dowells), which carries on business in Sydney, from an order of the Court of Appeal of the Supreme Court of New South Wales dismissing an appeal which the company brought in accordance with s. 37 (4) of the Workers' Compensation Act, 1926, as amended, against an award of compensation made in favour of Kenneth Archdeacon, the respondent worker.
Mr. Archdeacon received injury while at work. Dowells were his employers at the time the accident happened. The date of the accident was 22nd February 1971. The injury totally incapacitated the worker for work. Dowells paid him compensation under s. 9 (1) of the Act until 30th June 1972.
The learned judge of the Workers' Compensation Commission, who made the award, found that at about that time the worker had recovered from the injury to the extent that he could then be classed as a case of partial incapacity for work.
But Dowells dismissed him from their service on 30th June 1972. The dismissal was found to be for the purpose of retrenchment.
This action, on the part of the employer, led to the institution of the proceedings in the Workers' Compensation Commission in which the award was made. The proceedings were instituted on 15th December 1972. Since his dismissal, the worker had attempted to find employment in Sydney suitable to his diminished capacity for work, but did not succeed in finding employment.
Section 9 (1) of the Workers' Compensation Act provides: "Subject to the provisions of this section and of ss. 10 and 11, where total or partial incapacity for work results from the injury the compensation payable by the employer under this Act shall include " weekly payments described in the sub-section.
(a) In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.
(2) An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work.
Upon any failure by such employer to provide suitable employment as aforesaid the worker's incapacity for work shall be deemed to be total, and he shall be compensated accordingly.
The particulars required to be furnished in an application for an award included the following:
Total incapacity from 22/2/71-16/8/71, partial incapacity thereafter, partial incapacity deemed total from 1/7/72 to date and continuing
$69 per week from 1/7/72 to date and continuing under s. 11 (2) plus medical expenses under s. 10.
Particulars furnished also included that Dowells were the worker's employers and he was employed under them as a maintenance fitter, and on 22nd February 1971 he sustained injury to his left arm while engaged on work he was employed to do for Dowells in their factory. This was in a suburb of Sydney. The worker also resided in a suburb of Sydney.
Dowells filed an answer to this application for an award in which they denied that any compensation was payable to the worker under s. 9 (1) or s. 11 (2).
The proceedings were heard before his Honour Judge McGrath on 9th April 1973. The worker gave oral evidence. His evidence so far as material here, was as follows:
Q. Do you live at 120 Settlement Point, Port Macquarie? A. Yes.
Q. And you formerly lived at 8 Elsie Street, Earlwood? A. That is true.
For the purposes of their defence in the claim so far as it depends upon s. 11 (2), Dowells put some reliance on the remoteness of Port Macquarie from Sydney, their place of business. The distance was not proved in evidence. It is about 280 miles.
I do not refer to the evidence establishing that the worker sustained the injury of which he complained, while at work in the factory of Dowells at Sydney. The evidence is not disputed here. The date of injury was proved to be 22nd February 1971.
Q. You were put off at the end of June 1972, is that correct? A. That is correct.
Q. What did you do about work? A. I registered with the Employment Bureau.
[This is the Commonwealth's Employment Bureau. Caringbah is a suburb of Sydney.]
Q. What other steps did you take to obtain work? A. I tried to get on with McMasters Engineering on the Boulevarde tried quite a few of them along the Boulevarde. Tried Metropolitan Sands, rang them up. I was ringing near daily old employers of mine, McDonald Constructions, practically daily I called, drove them mad, and Chicago Bridge, Bernards Smiths - I was promised there would be a start. I tried to get on the Council.
Q. Then what happened? A. I was getting snowed under and I had an offer on my house. I sold my house, I thought I would buy a cheaper one up north, advertised to get a cheaper one up north.
Q. Did you go up to Queensland looking for work? A. I did because I had worked at the Bundaberg sugar mills up there and it had changed all into machinery and I thought I would get a chance to go on machinery and go on the new dockyards up in Brisbane. I thought I could swing in somewhere around that way.
Q. When did you leave Sydney to go north? A. December.
Q. What sort of work were you looking for there? A. I was looking for mainly the fitting work, like hydraulic work, fitting work or operating. Mainly on the way going up I tried nearly all the mineral deposits, all dredge work trying to get on dredges; I just could not, most of them were off.
Q. How did you find work up north? A. I found that living conditions were a lot cheaper but work was a darn sight harder.
Q. Did you head back for Sydney? A. I headed back towards Sydney.
Q. Did you get to Port Macquarie? A. I got to Sawtell at Coffs Harbour and went and seen Smiths Engineering which used to do a lot of refinery work, I still do, thought I might be able to get on the testing or something like that or inspection work at Smiths Engineering. I tried with the Council, registered with nearly every Council.
Q. Did you get a job at Port Macquarie? A. Yes I got a job at Port Macquarie.
Q. A construction company? A. A construction company.
Q. Building a bridge at Telegraph Point? A. That is right.
Q. I think you have some hopes that you will be able to continue with that job but it is more or less a part time job? A. It is a temporary job, that is true.
Q. You worked at Dowells as a maintenance fitter? A. Yes.
Q. Dowells are a large company who manufacture aluminium extrusions for window frames and doors and other sort of fittings. A. That is right.
Q. It is a large factory is it? A. Very large factory.
Q. Does it have large modern equipment there? A. Very modern equipment, yes.
In cross-examination the worker was asked and answered these questions:
Q. You say, you left Sydney and was that around about December? A. That was December, and I negotiated, got the negotiation on my house in October
Q. At this time - I do not want to go into any great detail - you were in the last six months of 1972 in effect in quite a lot of trouble around you particularly with drink. I do not want to go into any great detail about this but that was so? A. No, I would not say it was any great deal.
Q. It would not be correct to say that one of the reasons you left Sydney was you had got into a lot of trouble in hotels in the area in which you were living with your drinking habits? A. That was not the reason I was leaving Caringbah for.
Q. Did you leave Caringbah for reasons which were not entirely connected with your employment, without going into details? A. So I could get another house so I could get rid of some of my debts, so I could get a cheaper house.
Medical reports were tendered. These were used by the learned judge to determine what was the extent of the worker's capacity for work.
The name and address of the worker's solicitor appeared on the face of the application to the Commission. His office was in Sydney. The date of the service of the application was 18th January 1973.
The learned judge gave a written judgment on 23rd May 1973. In dealing with earning capacity his Honour said: "It seems to me, the evidence indicates his earning capacity is not greater than about $92 per week which was the figure he was earning on the construction of the bridge" (at Port Macquarie). As regards s. 11 (2) his Honour said: "The other matter is whether s. 11 (2) applies."
If this sub-section does not apply the compensation payable would, subject to s. 11 (1), be in accordance with s. 9 (1). If s. 11 (2) does apply the compensation payable would be payable in accordance with s. 9 (1) but not limited by s. 11 (1).
His Honour said that s. 11 (2) has been held to impose "an absolute requirement on the employer" - adding "In certain circumstances certain employers have been exempted." It would appear that his Honour was referring to passages in judgments in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [3] and Electric Power Transmission Pty. Ltd. v. D'Urso [1] . The passage in the former case reads:
There can, of course, be no "failure" on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of co-operation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer's place of business as to be quite incompatible with employment by that employer.
there cannot be a continuing failure where the circumstances are such that it can be seen that throughout any relevant period the employee is not ready, willing or able to enter the employ of the pre-injury employer.
This passage is quoted by Hardie J.A. in the judgment he gave in the Court of Appeal in the present case. His Honour observed after quoting the passage: "The judgment then points out that whether there has been any such failure in relation to any period, is a question of fact to be determined in the light of all the circumstances, including the situation of the worker."
The same learned Justice of Appeal also quoted the passage in Electric Power Transmission Pty. Ltd. v. D'Urso mentioned above [1a] :
If a worker is in hospital or in prison or has gone away so that he cannot be employed, his former employer could not be said to have failed to employ him, whether or not the employer knew of the circumstances which made further employment impossible. 1. (1970) 124 C.L.R., at p. 342.
The judgment of Judge McGrath in the present case, after referring to the cases mentioned above that were decided in the High Court, decided that there was a "clear obligation" under s. 11 (2) on Dowells "right up to the time Mr. Archdeacon's services were terminated", on 30th June 1972.
His Honour Judge McGrath continuing his reasons for judgment said:
As I read the evidence the applicant tried his hand up north because of the fact he had exhausted all his endeavours in this city to gain employment. In these circumstances, where the termination of the contract of service, which had been entered into in compliance with s. 11 (2) was at the instance of the employer, I do not think the worker has to keep pestering the employer constantly about a job when the employer was the one who removed the suitable work from the worker. I think they had an obligation to chase him up from there on, at least during periods when they had the means and possibility of communicating with him.
"They" in the last sentence of this passage means of course, Dowell Australia Limited. I do not think that this comment is unfair.
In this particular case, at least from and after the date of the service of the application for determination on the employer they had the means of communicating with him. I think that the service of the application would give the employer a means of communicating with him and the means of carrying out their obligations under the section, even though the applicant was in fact permanently residing in Port Macquarie. I do not think the fact that he may have indicated that he wants to remain permanently in Port Macquarie terminates the employer's obligation. In such a case I think the employer should, as it were, stand him up on it. The employer has to provide work and communicate the position to him. If they do and he says that he wants to stay in Port Macquarie, then things may be different.
As I read the section the applicant is entitled to full compensation for the period when he was not working.
I find that the applicant received employment injury to his left arm on 22nd February 1971, and was incapacitated and paid compensation for all periods of total incapacity up to 30th June 1972. He has been partially incapacitated since 1st July 1972. Probable earnings $125 per week. During the periods of partial incapacity he was able to earn approximately $92 per week. I find the respondent on and after 1st July 1972 has failed to provide suitable employment during his partial incapacity. Three children are dependent on him. His wife has been dependent on him since October 1972.
The particulars of the award which his Honour made are as follows:
there will be an award at the rate of $58 per week from 1st July 1972, to 28th October 1972; $69 per week from 29th October 1972 to 15th December 1972; $33 per week from 16th December 1972 to 18th January 1973; $69 per week from 19th January 1973 to 26th February 1973; $33 per week from 27th February 1973 to 30th March 1973, and $69 per week from 31st March 1973 and continuing. Section 10 expenses. Costs r. 46. I refer to a medical board under s. 51 (8) the assessment of the permanent loss of efficient use of his left arm.
At the request of Dowells his Honour Judge McGrath pursuant to s. 37 (4) stated a case for the decision of the Court of Appeal of the Supreme Court of New South Wales on four questions of law.
The case stated contains the salient facts on which the points of law have to be decided. These facts are: The dismissal of the worker by Dowells from their service on 30th June 1972; the worker's capacity for work on that date was partial only and at the time of the trial; he left Sydney in December 1972 because since 30th June 1972 he did not find employment; the name and address in Sydney of the worker's solicitor appeared in the copy of the application for determination served on Dowells and it would have been possible for the solicitor to communicate to the worker an offer of employment if made; after the worker left Sydney he travelled to Queensland in search of employment; because he was not successful he went to Port Macquarie and found the employment described in his evidence; he established a residence in this town and was living there in April 1973 - the application was served on the ninth day of that month.
There is no evidence that Dowells ever communicated with him directly or through his solicitor after 30th June 1972.
The four questions of law which were referred by the case stated to the Court of Appeal were as follows:
(1) Whether there was any evidence upon which his Honour could find that the appellant employer had failed during any periods after 15th December 1972 to provide suitable employment for the respondent worker under the provisions of s. 11(2) of the Workers' Compensation Act, 1926 as amended.
(2) Whether the Commission erred in law in finding that the respondent worker was entitled to the benefit of the provisions of s. 11 (2) of the Workers' Compensation Act, 1926 as amended in respect of any periods of time after his departure from Sydney in the State of New South Wales with the intention to reside either interstate or in a distant part of the State of New South Wales from Sydney.
(3) Whether the Commission erred in law in finding that the service of an application for determination by the applicant upon the employer was a sufficient request for suitable employment or a sufficient offering by the applicant to engage in suitable employment to be provided by his employer.
(4) Whether the Commission erred in law in finding that there is an obligation upon the employer to seek out and find a partially incapacitated worker whom it had dismissed from his employment and who has taken up residence in a distant part of the State of New South Wales for the purposes of offering that worker suitable employment within the provisions of s. 11 (2) of the Workers' Compensation Act, 1926 as amended.
The majority of the Court of Appeal answered only question (1). They answered it in the affirmative. The dissenting Justice answered that question in the negative and the second question in the affirmative.
The result of these answers was that the Court dismissed the appeal against the award.
The question broached in the cross-examination whether intemperance in drinking contributed to the loss of the worker's employment in Dowells' factory disappeared from the case.
The first paragraph of s. 11 (2) is in form imperative. The section is enacted for the protection of a section of the public - workers partially incapacitated for work by injury arising out of or in the course of their employment. The legislature provided the protection offered by s. 11 (2) to them, during partial incapacity for work, as a matter of public policy. The respondent being an "injured worker" to whom the sub-section was applicable could not in law effectually agree with the appellant, his employer, to waive or renounce by words or conduct any right accruing to the respondent under the sub-section. See Cominelli and Bonazzi v. Lake View and Star Ltd. [2] .
It is clear that the claim for compensation which the respondent put forward in his application for compensation was within s. 11 (2). Nothing occurred after that which estopped the respondent from pursuing his claim.
The words modifying or amplifying the natural peremptoriness of the language of the first provision of s. 11 (2) cannot be added by a construction of the provision justified by established rules for the interpretation of statutes. Whether the provision as it stands is onerous or not is immaterial.
But the principle expressed in the maxim lex non cogit ad impossibilia - the law does not compel a man to do that which he cannot possibly perform - is not rendered inapplicable to s. 11 (2) by anything inherent in the sub-section or express or implied in the Act. It is said in Broom's Legal Maxims, 10th ed. (1939), pp. 162-163:
the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling than to impossibilities, and the administration of law must adopt that general exception in the consideration of all particular cases. "In the performance of that duty, it has three points to which its attention must be directed. In the first place, it must see that the nature of the necessity pleaded be such as the law itself would respect, for there may be a necessity which it would not. A necessity created by a man's own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of controlling, is of that nature. Secondly, that the party who was so placed used all practicable endeavours to surmount the difficulties which already formed that necessity, and which on fair trial he found insurmountable. I do not mean all the endeavours which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion, and an ordinary knowledge of business. Thirdly, that all this shall appear by distinct and unsuspected testimony, for the positive injunctions of the law, if proved to be violated, can give way to nothing but the clearest proof of the necessity that compelled the violation." (The Generous [3] ). 1. (1818) 2 Dods 322, at pp. 323, 324 [165 E.R. 1501].
In my judgment it is a proper interpretation of s. 11 (2) to hold that where because of impossibility of performance the command in the sub-section is not obeyed by the employer, an injured worker might not be entitled to succeed in a claim for compensation under the sub-section against the employer.
Having regard to the evidence in this case it was open to the Judge to conclude that impossibility of performance could not be a legal excuse available to the appellant for not providing the respondent with suitable employment during the period after his dismissal up to the date of the trial.
In my judgment the decision of the Court of Appeal upholding the award is right. The order which I propose is that the appeal be dismissed with costs.
On 22nd February 1971 the respondent, who was then employed by the appellant as a maintenance fitter, sustained an injury to his left arm in consequence of which he became incapacitated for work. The respondent was a worker within the meaning of the Workers' Compensation Act, 1926 N.S.W., as amended ("the Act") and the injury arose out of and in the course of his employment. It is not doubted that he is entitled to compensation under the Act. The basis on which compensation should be awarded in respect of the period on and since 15th December 1972 is, however, in dispute. It is common ground that before that date the respondent had ceased to be totally incapacitated although he remained partially incapacitated. The question in issue is whether on and since that date his incapacity is deemed to be total by virtue of s. 11 (2) of the Act whose provisions read as follows:
An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work.
Upon any failure by such employer to provide suitable employment as aforesaid the worker's incapacity for work shall be deemed to be total, and he shall be compensated accordingly.
After the respondent had received treatment for his injuries and was able to return to light duties the appellant provided him with suitable employment in which he remained until 30th June 1972. On that date he was dismissed by the appellant and has not since been provided by the appellant with employment. For some time the respondent, who lived at Earlwood (a suburb of Sydney) sought employment in Sydney but he was unsuccessful and on 15th December 1972 he sold his house and commenced to travel to Queensland in the hope of obtaining employment. He went to Bundaberg but found no work there and turned back towards Sydney. At Port Macquarie, he eventually obtained work for a time; he has since lived there and has the present intention of living there permanently. Before leaving Sydney the respondent signed an application dated 15th December 1972 for the determination of the liability and amount of compensation payable to him by the appellant; the application showed the respondent's Earlwood address and the address of his solicitors in Sydney. The application was not served on the appellant until on or about 18th January 1973, by which time the respondent was travelling in the northern coastal districts of New South Wales looking for work.
On 23rd May 1973 the Workers' Compensation Commission made an award in favour of the respondent for compensation commencing on 1st July 1972 on the basis that the respondent was thereafter totally incapacitated for work except from 16th December 1972 to 18th January 1973 when, to use the words of the case stated, the respondent was "out of communication with the appellant", and from 27th February 1973 to 30th March 1973 when he was engaged in employment at Port Macquarie; during those two periods the award was on the basis of partial incapacity. The Commission held that on 1st July 1972 the appellant failed to provide suitable employment for the respondent as required by s. 11 (2) and that, in accordance with that sub-section, his incapacity for work was deemed to be total - so far, the decision is not in dispute. In respect of the period that commenced on 15th December 1972, when the respondent left Sydney, the Commission made findings which are recorded in the stated case as follows:
(7) That as the appellant had retrenched the respondent worker from his employment there was an obligation on the appellant to seek out the respondent worker and to provide him with suitable employment in accordance with its obligations under s. 11 (2) of the Workers' Compensation Act, 1926, as amended.
(8) That the respondent worker's departure from Sydney on or about the 15th December 1972 prevented the appellant from being able to communicate any offer of suitable employment to the respondent worker and that accordingly there was no failure to provide suitable employment while there was an inability in the appellant to communicate with the respondent worker.
(9) That upon service of the application for determination on or about the 18th January 1973 the appellant was at least at that time able to communicate with the solicitors on the record for the respondent worker.
(10) That on and from the date at which it was possible that some communication could be had with the respondent worker through his solicitors the appellant had failed to provide suitable employment to the respondent worker under the provisions of s. 11 (2) of the Workers' Compensation Act, 1926, as amended.
(11) That despite the respondent worker's intention to settle permanently in Port Macquarie the appellant should have at least made some form of offer of suitable employment to the respondent worker in order that he should have the opportunity to accept or reject that offer.
An appeal to the Court of Appeal was dismissed by a majority. The matter now comes to this Court by special leave.
The words of s. 11 (2) are deceptive in their apparent simplicity. The legislature in enacting its provisions has given little guidance to the solution of the problems to which it gives rise. However, we do not approach the sub-section free from authority. Its meaning and effect have been discussed in a number of cases, and in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [4] , and Electric Power Transmission Pty. Ltd. v. D'Urso [5] , in particular, this Court has given to the words of the sub-section an authoritative interpretation that we are bound to apply to the circumstances of the present case.
The actual decision in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [4] was that a worker is not disentitled to be compensated under s. 11 (2) upon the basis of total incapacity merely because during a period of partial incapacity he has earned some money by work. To reach this conclusion the Court had to consider the nature of the obligation imposed on an employer by s. 11 (2). As to this Kitto, Taylor, Windeyer and Owen JJ. said [6] :
A clue to the true solution may, perhaps, be found in the somewhat loose language of the sub-section itself for the "provision" of suitable employment involves an element of mutuality. Employment is not a commodity which can be provided merely by an offer; it can in strictness be provided only by the employer and employee entering into and performing their obligation under a contract of service and this involves the co-operation of both employer and employee. There can, of course, be no "failure" on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of co-operation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer's place of business as to be quite incompatible with employment by that employer. Likewise, it would seem, the position would be the same where after his partially incapacitating injury the worker suffers further injuries or sickness resulting in total incapacity for any form of work. It must be remembered that not only is the obligation to provide suitable employment a continuing one but there must also be a continuing failure to provide suitable employment in order to entitle a worker to continuing benefits pursuant to s. 11 (2) and, in our view, there cannot be a continuing failure where the circumstances are such that it can be seen that throughout any relevant period the employee is not ready, willing or able to enter the employ of the pre-injury employer. Their Honours pointed out that whether or not there has been any such failure in relation to any period during the continuance of the partial incapacity is a question of fact to be determined in the light of all the circumstances, including the situation of the worker, and went on to say [7] : If throughout any such period he is engaged in activities which would have made it impossible for him at the same time to have performed the duties of an employment with his former employer there cannot be said to be a failure on the latter's part to provide suitable employment. They concluded by holding that there was no real basis for asserting that the very minor activities in which the worker in that case engaged were such as to preclude him from asserting that he was ready, willing and able to enter into suitable employment with his former employer. The other member of the Court, Menzies J., stated his conclusion rather more shortly. He said [8] : The provision of employment imports, of course, mutuality between the employer and the worker and it is not difficult to see that where it is the worker who is responsible for a lack of mutuality there is no failure on the part of the employer to provide employment. 1. (1968) 117 C.L.R. 665. 2. (1968) 117 C.L.R., at p. 669. 3. (1968) 17 C.L.R., at p. 670. 4. (1968) 117 C.L.R., at p. 671.
In Electric Power Transmission Pty. Ltd. v. D'Urso [9] the worker, who was partially incapacitated, was unwilling to work but the employer was unaware of that fact; it was nevertheless held that there was no failure by the employer within s. 11 (2). Barwick C.J. and Menzies, Windeyer and Owen JJ. said [10] :
As, however, appears from what was said by the members of this court in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [11] , an employer does not fail to provide employment to a worker who in fact is not willing to work for him. This statement was as a matter of expression confined to the case of a worker not willing to work, since that was the actual situation which the Court there had to consider, but there is nothing in the judgment that suggests that their Honours were intending to limit, or restate to a different effect, the principle in Pennell's Case that they were applying to the facts before them. They went on to remark that what Sugerman J. said in Asciak v. Australian Glass Manufacturers Pty. Ltd. [12] , is in line with the observations made in Pennell's Case [11] . In Asciak v. Australian Glass Manufacturers Pty. Ltd. Sugerman J. said [12] : Section 11 (2) necessarily imports a readiness and willingness on the part of the worker both to accept suitable employment when offered and, if it is undertaken, to continue in it and conform to its duties and obligations. Their Honours in Electric Power Transmission Pty. Ltd. v. D'Urso then went on to give examples similar to those given in Pennell's Case. They said [13] : If a worker is in hospital or in prison or has gone away so that he cannot be employed, his former employer could not be said to have failed to employ him, whether or not the employer knew of the circumstances which made further employment impossible. These examples support the view that a workman must be not only willing but also ready and able to work before an employer can be said to fail to employ him. The ability referred to is, of course, an ability to work in suitable employment; the sub-section assumes that the worker is capable of some work and the employment which the employer is required to provide must be suitable to his disability. The remaining member of the Court, McTiernan J., agreed with the judgment of the other members on the footing that Pennell's Case [14] had adopted a construction of s. 11 (2) that he felt bound to accept. In my opinion the Court in Electric Power Transmission Pty. Ltd. v. D'Urso [15] accepted and applied the principle established in Pennell's Case and went further in holding that it is immaterial that the employer is unaware that the worker is not ready, willing and able to enter into suitable employment. 1. (1970) 124 C.L.R. 338. 2. (1970) 124 C.L.R., at p. 341. 3. (1968) 117 C.L.R. 665. 4. (1964) 64 S.R. (N.S.W.) 344, at p. 351. 5. (1968) 117 C.L.R. 665. 6. (1964) 64 S.R. (N.S.W.) 344, at p. 351. 7. (1970) 124 C.L.R., at p. 342. 8. (1968) 117 C.L.R. 665. 9. (1970) 124 C.L.R. 338.
The present case comes within the very words used in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [16] and Electric Power Transmission Pty. Ltd. v. D'Urso [17] in giving examples of cases in which an employer could not be said to have failed to employ a worker. The respondent had gone away so that he could not be employed; he had moved his residence to a place so remote from the appellant's place of business as to be quite incompatible with employment by the appellant. No doubt the generality of the words chosen to state examples of the principle laid down in those decisions may require qualification in a particular case, since all the circumstances have to be considered. However, in the present case there are no facts that outweigh the significance of the departure of the respondent for Queensland, without any notification to his employer, and his subsequent settling in Port Macquarie with the intention of taking up permanent residence there. It is true that the fact that he left Sydney in the hope of finding employment shows that he was willing to work, but it does not show that he was ready and able - or indeed willing - to work for the appellant. It is true that the appellant made no offer of employment to the respondent after 15th December 1972, but that has no bearing on the question whether the respondent was ready, willing and able to work for the appellant.
The Commission found that the failure of the appellant to provide suitable employment for the respondent ceased on 15th December 1972 but recommenced on 18th January 1973 when the application for determination was served. The fact that it may have been possible for the applicant after 18th January 1973 to have discovered the whereabouts of the respondent by means of enquiries directed to his solicitors does not mean that the respondent was ready, willing and able to work for the appellant. The statement by the Commission that an employer has a duty to seek out a worker and to provide him with suitable employment is too widely expressed and ignores the element of mutuality that has been held to be necessary. If the situation of the worker is incompatible with his employment by the employer the latter does not fail to provide employment if he does not seek the worker out and make an offer of employment to him.
There is no appeal by way of rehearing to the Supreme Court from a decision of the Commission and this matter came before the Court of Appeal on a case stated on a question of law under s. 37 (4) (b) of the Act. The learned Judges of Appeal who constituted the majority took the view that the facts were capable of supporting a finding that the appellant had failed to provide suitable employment for the respondent and that there was no error in law in making such a finding, although they recognized that a contrary finding also would have been supportable. With all respect, I have reached a different opinion. Before us reliance was placed on the presumption of continuance; it was submitted that the respondent had previously accepted employment when offered by the appellant, and had thereby demonstrated that he was ready, willing and able to work for the appellant, and that it should be inferred in his favour that he continued to be ready, willing and able to work for the appellant if the latter should again offer employment to him. If it were right to give effect to a presumption of continuance the result would in the present case be adverse to the respondent. The Commission's finding, which was not challenged - and is in my opinion unchallengeable - is that the failure of the appellant to provide suitable employment ceased on or about 15th December 1972. It is implicit in that finding, having regard to the circumstances of the case, that from that date onwards the respondent was no longer ready, willing or able to accept suitable employment if it was offered to him by the appellant. If there were a presumption, it would be that this situation continued while the respondent remained away from Sydney, travelling to and from Queensland and then in Port Macquarie. The fact that his solicitors on 18th January 1973 served an application for determination of compensation on the appellant in my opinion is no evidence at all that the respondent was either willing or able to accept employment if it were offered to him by the appellant. Of course, as was put in argument, his intention to reside permanently in Port Macquarie was not immutable; he might have changed his mind and returned to Sydney at any time, but in fact he did not.
The action of the respondent in leaving Sydney to seek work was reasonable, and indeed commendable. That, however, is not the test posed by s. 11 (2) - it would be reasonable to accept full-time permanent employment at a high rate of remuneration if such were provided by someone else, but a worker who took that reasonable course could not also claim to be deemed to be totally incapacitated. It is regrettable if the sub-section has an effect which is calculated to deter an employee who has suffered partial incapacity from seeking to rehabilitate himself in circumstances in which he has to travel away from the place of business of his former employer in order to do so. However, the function of this Court is not to re-mould the provisions of the statute to make them achieve what may be thought to be desirable ends; we must interpret its words, and we must do so in accordance with the decisions already given by this Court on its provisions. The scheme of s. 11 (2) does not appear to have been carefully considered. The sub-section does not expressly deal with the various situations that may arise in the relationship between an employer and his partially disabled employee. At best it does rough justice between the parties. As Taylor J. said in Australian Gas Light Co. v. Steele [18] , "it is impossible so to construe the subsection as to avoid anomalies". In my judgment the sub-section must be given the construction already adopted by this Court in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [19] and Electric Power Transmission Pty. Ltd. v. D'Urso [20] , and on that construction the Commission was bound to find, in all the circumstances of this case, that the appellant did not at any time after 15th December 1972 fail to provide the respondent with suitable employment.
For these reasons I would allow the appeal and would answer the questions in the case stated as follows:
(1) Whether there was any evidence upon which his Honour could find that the appellant employer had failed during any periods after 15th December 1972 to provide suitable employment for the respondent worker under the provisions of s. 11 (2) of the Workers' Compensation Act, 1926, as amended.
(2) Whether the Commission erred in law finding that the respondent worker was entitled to the benefit of the provisions of s. 11 (2) of the Workers' Compensation Act, 1926, as amended, in respect of any periods of time after his departure from Sydney in the State of New South Wales with the intention to reside either interstate or in a distant part of the State of New South Wales from Sydney.
(3) Whether the Commission erred in law in finding that the service of an application for determination by the applicant upon the employer was a sufficient request for suitable employment or a sufficient offering by the applicant to engage in suitable employment to be provided by his employer.
(4) Whether the Commission erred in law in finding that there is no obligation upon the employer to seek out and find a partially incapacitated worker whom it had dismissed from his employment and who has taken up residence in a distant part of the State of New South Wales for the purposes of offering that worker suitable employment within the provisions of s. 11 (2) of the Workers' Compensation Act, 1926, as amended.
The words of s. 11 (2) of the Workers' Compensation Act, 1926 N.S.W., as amended, convey little of its meaning as it has been elaborated by the decisions of this Court in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [21] and Electric Power Transmission Pty. Ltd. v. D'Urso [22] . The sub-section is an ill-conceived provision; the draftsman appears to have overlooked the difficulties which necessarily arise in its application. In terms it comes close to suggesting that once an employer fails to provide suitable employment for a partially incapacitated worker he is thereafter under a liability to pay compensation as for total incapacity. So interpreted the sub-section would travel far beyond the provision of compensation for incapacitating injury and would impose an intolerable burden on the employer to pay compensation on the footing of total incapacity to a worker in gainful employment elsewhere.
These extravagant consequences were avoided by the construction given to s. 11 (2) in Pennell's Case [21] where in the joint judgment it was pointed out [23] that the sub-section imports an element of mutuality; that there can be no failure by the employer to provide suitable employment "if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of co-operation on his part"; that "there must be a continuing failure to provide suitable employment in order to entitle a worker to continuing benefits pursuant to s. 11 (2)"; and that "there cannot be a continuing failure where the circumstances are such that it can be seen that throughout any relevant period the employee is not ready, willing or able to enter the employ of the pre-injury employer". Instances were given of a lack of co-operation on the part of a worker which would be inconsistent with the existence of such a failure on the part of the employer: the undertaking of full-time employment with another employer for the duration of that employment and the movement by a worker of his place of residence to a place so remote from the employer's place of business as to be quite incompatible with employment by him. What was said in Pennell's Case [23a] was accepted and confirmed in D'Urso's Case [24] . It therefore reflects an interpretation of the sub-section which has now been unanimously accepted by this Court in two recent decisions and which, if the law is to have certainty and consistency, we should follow.
In Pennell's Case their Honours also observed that "whether or not there has been any such failure in relation to any period during the continuance of the partial incapacity is a question of fact to be determined in the light of all the circumstances including the situation of the worker". Once it is accepted that the provision of suitable employment involves the concept of mutuality in the sense explained, it seems to follow that an applicant for an award under s. 11 (2) must establish that he for his part was in the relevant period of time ready, willing and able to enter into the employment which he claims the employer failed to provide. It is for the applicant to show a failure on the part of the employer to fulfil his statutory obligation; this he does not begin to do until he demonstrates that there was the necessary degree of co-operation on his side.
It is against this background that the appeal in this case must be considered. It arises out of a case stated by the Workers' Compensation Commission in which the first question asked is whether there was any evidence on which the Commission could find, as it did, that the appellant employer had failed to provide suitable employment for the respondent worker pursuant to s. 11 (2) during certain periods after 15th December 1972. According to the case the respondent was injured in the course of his employment in Sydney and thereby partially incapacitated. The appellant provided suitable employment in Sydney for the respondent until 30th June 1972 when he was dismissed. The respondent then sought other employment in Sydney without success. On 15th December 1972 he sold his home in Sydney and left for Bundaberg in search of work, without notifying the appellant of his departure or intended address. Before doing so, he signed an application dated 15th December 1972 for a determination under the Act for the compensation payable to him by the appellant. The application contained the name and address of his solicitors and gave his former address at Earlwood as his address. The application was served on or about 18th January 1973. The respondent's search for employment in Queensland was unsuccessful. Subsequently he found work in Port Macquarie where he has since resided and where he intends to reside indefinitely.
The Commission made an award in favour of the respondent on the footing that he was totally incapacitated for work on and after 1st July 1972, except for two periods: first, from 16th December 1972 to 18th January 1973 - the time during which the appellant had no knowledge of the respondent's whereabouts and had no means of communicating with him; and secondly, from 27th February 1973 to 30th March 1973 - a period during which the respondent was in full-time employment at Port Macquarie. During the two periods mentioned the respondent was awarded compensation on the footing that he was partially incapacitated for work.
The Commission found that the appellant had failed to provide suitable employment upon its dismissing him on 30th June 1972, and that although there was an obligation on the appellant to seek out the respondent and to provide him with suitable employment under s. 11 (2), the respondent's departure from Sydney in December 1972 prevented the appellant from being able to communicate any offer of suitable employment and that accordingly there was no failure to provide suitable employment while there was an inability in the appellant to communicate with the respondent. The Commission went on to find that upon service of the application for determination on or about 18th January 1973, the appellant was able to communicate with the solicitors for the respondent and that thereafter the appellant had failed to provide suitable employment for the respondent. The Commission concluded by stating that despite the respondent's intention to settle permanently in Port Macquarie the appellant should have made some form of offer of suitable employment to the respondent in order that he should have the opportunity to accept or reject that offer.
With the exception of certain evidence to which I shall refer later, these findings, together with the facts mentioned earlier, sufficiently reflect the evidence on which the award was based. Conspicuous by its absence was any oral evidence from the respondent to the effect that he was at any relevant time ready, willing and able to enter the appellant's employ. He was not asked and did not say whether he would have returned to Sydney to work for the appellant had he been given the opportunity so to do. If evidence of this kind had been led it could be said that there was an issue of fact to be determined by the Commission which, if decided in favour of the respondent, might ground an award in his favour.
However, the absence of such evidence is not necessarily fatal to the respondent's cause. Central to what occurred was the breach by the appellant of its statutory obligation on 30th June 1972, a breach which continued at least until 15th December 1972. The Commission took the view that the breach then terminated because the respondent did not inform the appellant of his whereabouts, thereby disabling the appellant from making an offer of employment until it was served with the application in January.
In my opinion the Commission was in error in thinking that failure of the worker to notify the employer of his whereabouts terminated the employer's continuing failure to perform his statutory obligation. The respondent's failure to notify his whereabouts was significant only if the appellant had intended to make an offer of employment and had been prevented from making it by inability to communicate with the respondent. This was not the case. From the continuing failure to make an offer up to 15th December and the absence of an offer after service of the application there was an inescapable inference that the appellant did not intend to make an offer of suitable employment to the respondent at any relevant time after 15th December 1972.
The question then is whether the employer can be held to be in breach of the statute after the respondent left Sydney in the circumstances described. This is not an easy question to answer for much depends upon the true character and purpose of the respondent's departure for Queensland. If he went north, not to establish a home there, but so as to find temporary work, there being no employment in Sydney, with the intention of taking up employment in Sydney again if and when it became available, I should then infer that despite his absence from Sydney he was ready, willing and able to enter the appellant's employ. If, on the other hand, the purpose of his departure from Sydney was to settle in the north, to find permanent work and establish a home there, the only conclusion which could be reached is that after his departure he was no longer ready, willing and able to enter the employment of the appellant.
It is necessary to examine closely the evidence given by the respondent as to the circumstances of his departure from Sydney. After recounting his abortive efforts to secure work in Sydney his evidence was as follows:
A. I was getting snowed under and I had an offer on my house. I sold my house, I thought I would buy a cheaper one up north, advertised to get a cheaper one up north.
A. I did because I had worked at the Bundaberg sugar mills up there and it had changed all into machinery and I thought I would get a better chance to go on machinery and go on the new dockyards up in Brisbane. I thought I could swing in somewhere around that way.
Q. Did you leave Caringbah for reasons which were not entirely connected with your employment, without going into details?
A. So I could get another house so I could get rid of some of my debts, so I could get a cheaper house.
Q. Then so far as your work was concerned that you eventually got as a boiler attendant, that was at Port Macquarie?
A. I have leased a home there with the potential of buying it, that is on the basis of my daughter getting into the hospital.
Q. Allowing for all the things that can happen in life that could come out one way or the other it is your present intentions to sort of settle in the area?
A. Yes, because there will be more dredge work or something and that is, I might be able to get into dredge work there.
To my mind the appellant's evidence was not susceptible of the interpretation that he went north to seek employment with the intention of returning and taking up employment in Sydney if and when it offered. On the contrary, it suggests to me that he sold his house and moved north with his family, without communicating his intended whereabouts to his employer, with a view to establishing a permanent home and finding a permanent job there. It follows that in my view there was an absence of evidence on which the Commission could find that the respondent was at the relevant times ready, willing and able to take up employment with the appellant.
I have not overlooked the circumstance that the learned member of the Commission who made the award said: "As I read the evidence the applicant tried his hand up north because of the fact he had exhausted all his endeavours in this city to gain employment." Although this may be correct in so far as it suggests that the difficulty of securing work in Sydney was a strong motivating reason for the respondent's departure, it does not overcome the deficiency in the evidence in point of its failure to establish readiness and willingness to enter the appellant's employ.
The majority of the Court of Appeal who considered that there was evidence to support the award were, as I read the judgments, disposed to think that it was open to the Commission to find on the facts that it was not conduct on the part of the respondent inconsistent with his acceptance of any employment offered by the employer which was responsible for his not being provided with suitable employment. As I have pointed out, this conclusion can be sustained only if there is evidence from which it can be inferred that at the relevant times the respondent was ready, willing and able to accept an offer of suitable employment if made. For the reasons which I have stated, there was an absence of such evidence. It is not to the point that the respondent had earlier co-operated with the appellant or that he had conscientiously sought to secure work. Nor is it to the point, having regard to the interpretation which has been authoritatively placed on s. 11 (2), that he went north in search of work.
In the result I would allow the appeal and answer the first and second questions in the case stated "No" and "Yes" respectively.
Section 11 (2) of the Workers' Compensation Act, 1926 N.S.W. is as follows:
An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work.
Upon any failure by such employer to provide suitable employment as aforesaid the worker's incapacity for work shall be deemed to be total, and he shall be compensated accordingly.
In the present case the respondent worker on 22nd February 1971 received an injury arising out of and in the course of his employment with his employer, the appellant. He was thereby totally incapacitated for some time and thereafter partially incapacitated for work. The appellant provided suitable employment for the respondent up to 30th June 1972 and on that day retrenched the respondent from his employment. It is not disputed on this appeal that the appellant failed to provide suitable employment for the respondent after the day last mentioned.
For some time after that day the respondent sought local employment but on 15th December 1972, having sold his home in Sydney, he travelled inter-State for the purpose of obtaining employment. On the same day there was filed on his behalf with the Workers' Compensation Commission an application for determination of the compensation to which he was entitled. The particulars of his incapacity concluded with the claim that there was partial incapacity from 16th August 1971 "deemed total" from 1st July 1972 and continuing. This application was not served on the appellant until 18th January 1973.
The respondent, after he left Sydney, went first to Bundaberg in Queensland. He returned to New South Wales and at the time of service of the application on the appellant was travelling in the northern coastal districts of New South Wales looking for dredge work for which he had special qualifications. Ultimately he came to Port Macquarie with the intention of taking up residence there and working in dredge work. He entered into employment in Port Macquarie on 26th February 1973 and remained in that employment until 30th March 1973.
On 23rd May 1973 the Workers' Compensation Commission found that the respondent was entitled to compensation under s. 11 (2) from 1st July 1972 until 15th December 1972. It found that he was not so entitled between 15th December 1972 and 18th January 1973. The reason for so finding was that between those dates the appellant had no way of communicating to the respondent an offer of employment if it had wished to do so. The respondent did not appeal against this finding or ask that any question thereon be raised in a stated case. The Commission found that the respondent was entitled to compensation under s. 11 (2) from 18th January 1973 onwards, excepting periods when he was otherwise employed. It made an award accordingly.
The appellant appealed to the Court of Appeal of the New South Wales Supreme Court by way of case stated. The facts which I have stated above appear in that case. The questions asked in the case were as follows:
(1) Whether there was any evidence upon which his Honour could find that the appellant employer had failed during any periods after 15th December 1972 to provide suitable employment for the respondent worker under the provisions of s. 11 (2) of the Workers' Compensation Act, 1926 as amended.
(2) Whether the Commission erred in law in finding that the respondent worker was entitled to the benefit of the provisions of s. 11 (2) of the Workers' Compensation Act, 1926 as amended in respect of any periods of time after his departure from Sydney in the State of New South Wales with the intention to reside either inter-State or in a distant part of the State of New South Wales from Sydney.
(3) Whether the Commission erred in law in finding that the service of an application for determination by the applicant upon the employer was a sufficient request for suitable employment or a sufficient offering by the applicant to engage in suitable employment to be provided by his employer.
(4) Whether the Commission erred in law finding that there is an obligation upon the employer to seek out and find a partially incapacitated worker whom it had dismissed from his employment and who has taken up residence in a distant part of the State of New South Wales for the purposes of offering that worker suitable employment within the provisions of s. 11 (2) of the Workers' Compensation Act, 1926, as amended.
The Supreme Court by majority found it necessary to answer the first question only and it answered this question in the affirmative. From that decision the appellant employer appeals by special leave.
Whether or not an employer fails to provide suitable employment for his injured worker during any period of the worker's partial incapacity for work is a question of fact to be determined in the light of all the circumstances including the situation of the worker. This was the ratio decidendi of the decision inR. J. Brodie (Holdings) Pty. Ltd. v. Pennell [25] . It followed also as part of the ratio decidendi that if throughout any such period the worker is engaged in activities which would have made it impossible for him at the same time to have performed the duties of an employment with his former employer there cannot be said to be a failure on the latter's part to provide suitable employment. The conclusion which followed from the enunciated principle was that a mere earning of money from activities during the relevant period did not in law disentitle the worker to compensation under s. 11 (2) and that the relevant question of fact was whether those activities were such as to preclude him from asserting that he was, during the period in question, ready willing and able to enter into "suitable employment with the employer" [26] .
Next, in Electric Power Transmission Pty. Ltd. v. D'Urso [27] , this Court held that in a case where the activities of the worker did not preclude him from asserting that he was during the relevant period ready willing and able to enter into suitable employment with the employer nevertheless the worker was not entitled to compensation under s. 11 (2) if in fact the worker was not willing to work for him even though the employer did not know of that unwillingness and was not himself prepared to provide suitable employment for the worker and, having been requested so to do, had positively refused.
What follows from these two cases is a principle of law that the worker must in fact be ready willing and able to undertake the suitable employment whether or not his state of readiness willingness and ability be known or not known to the employer. If he is not, then the employer does not fail to provide him with suitable employment. That question is one of fact and degree and provided there is some evidence thereof the Commission is entitled to make an award under s. 11 (2).
In the course of explaining the need for readiness willingness and ability on the part of a worker to accept suitable employment Kitto, Taylor, Windeyer and Owen JJ. in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell said [28] :
There can, of course, be no "failure" on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of co-operation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer's place of business as to be quite incompatible with employment by that employer. Likewise, it would seem, the position would be the same where after his partially incapacitating injury the worker suffers further injuries or sickness resulting in total incapacity for any form of work. 1. (1968) 117 C.L.R., at p. 669.
In the same way Barwick C.J. and Menzies, Windeyer and Owen JJ. in Electric Power Transmission Pty. Ltd. v. D'Urso [29] :
If a worker is in hospital or in prison or has gone away so that he cannot be employed, his former employer could not be said to have failed to employ him, whether or not the employer knew of the circumstances which made further employment impossible. 1. (1970) 124 C.L.R., at p. 342.
In each case the judgments were referring to factual situations. In some of the instances given only one conclusion of fact would be open, but in the particular case where a worker goes away from the vicinity of an employer's place of work it will be a question of fact whether in his circumstances he remained ready willing and able to accept suitable employment from his former employer.
The question then is whether there was any evidence upon which the Commission could find in the present case that the respondent was ready willing and able to accept suitable employment from the appellant. There was certainly no obligation on him to ask or keep asking for suitable employment. The section does not so provide though if he does so that will be some evidence of his readiness and willingness.
The obligation to provide the employment lay under the sub-section on the employer. If the employer were unable to do so for the kinds of reason adverted to in respect of the worker in the passages which I have quoted above it would be an excuse to the employer. Moreover, Electric Power Transmission Pty. Ltd. v. D'Urso makes it clear that it is not what the employer believes to be the readiness willingness and ability of the worker which is relevant. It is the actual condition and state of mind of the worker.
It therefore does not appear to me to be of particular relevance whether or not the respondent kept the appellant informed of his changes of address when he moved from Sydney, except in so far as by so doing he would have provided particular evidence from which his state of mind could be ascertained. However, there was no appeal upon the Commission's finding in respect of the period from 15th December 1972 to 18th January 1973. There was in my opinion ample evidence upon which the Commission could find that after 18th January 1973 the respondent was ready willing and able to accept a suitable employment provided by the appellant and that the appellant failed to provide such employment. There is first the fact that he accepted such employment so long as it was available to him. There is next the fact that his reason for leaving Sydney was to look for work after he had unsuccessfully sought work in Sydney. Then there is the fact that his search for work in Queensland and on the North Coast had resulted only in temporary work at Port Macquarie and the fact that his intention of residence at Port Macquarie was related to the fact that he could obtain some work there which he was able to do. In addition, there was his claim lodged with the Commission on 15th December 1972 and served on the appellant on 18th January 1973 that the appellant had failed and was continuing to fail to provide him with suitable employment. This claim necessarily involved the contemporaneous declaration by him that if the suitable employment were offered he was ready willing and able to accept it. There was no suggestion that he was unable to return quickly to Sydney and when the evidence is considered, in the light of his largely unsuccessful efforts over many months to obtain employment, there was nothing in that evidence which would compel a conclusion that he was not ready and willing to return very quickly.
In these circumstances I am of the opinion that the Supreme Court was correct in answering the first question in the stated case in the affirmative and I would dismiss the appeal.
This is an appeal from the Supreme Court of New South Wales sitting as the Court of Appeal. By a majority (Reynolds and Bowen JJ.A. with Hardie J.A. dissenting) the Court of Appeal answered in the affirmative a question in a case stated for its decision by His Honour Judge McGrath of the Workers' Compensation Commission of New South Wales and dismissed the appeal from him with costs.
The respondent, a worker, sustained an injury on 22nd February 1971 arising out of and in the course of his employment with the appellant. Initially, he was totally incapacitated but became, and is now, partially incapacitated for work.
The employer of a partially incapacitated worker is obliged to make periodic payments to the worker under ss. 7 and 11 (1) of the Workers' Compensation Act 1926, as amended. It is also obliged to provide suitable employment for him under s. 11 (2) which reads:
(2) An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work.
Upon any failure by such employer to provide suitable employment as aforesaid the worker's incapacity for work shall be deemed to be total, and he shall be compensated accordingly.
The employer complied with its obligation under s. 11 (2) to provide suitable employment for the worker until 30th June 1972 when he was retrenched with several others. We have been asked by Mr. Simblist, the senior counsel for the employer, to deal with the case on the basis that the employer would not, from the time of the retrenchment, offer any employment to the worker. That this repudiation was not grounded on any fault of the worker was also borne out by the evidence. The employer wished the case decided on this basis because "the question has some importance for insurance companies who are placed daily in this position and have to determine daily questions that are similar to this".
After his dismissal, the worker did what the employer has conceded was reasonable and commendable. He made many unsuccessful attempts to obtain work in Sydney, where he had been employed until his dismissal, then sold his home there. He went to Queensland and then to Port Macquarie in northern New South Wales with the aim of obtaining work and also cheaper living accommodation for himself, his wife and his three children. At that time he was not receiving wages or compensation. He found work in Port Macquarie on 26th February 1973 and remained in that employment until 30th March 1973. He became a permanent resident in Port Macquarie.
Before leaving Sydney on 15th December 1972, he made an application for an award in the Workers' Compensation Commission which was served on the employer on 18th January 1973. The award on that application has given rise to the present proceedings.
His Honour Judge McGrath found that for the period from 15th December 1972 to 18th January 1973, the employer, if it wished to provide suitable employment for the worker, had no way of communicating with him and therefore was not in breach of s. 11 (2). His Honour also found that during the period from 26th February to 30th March 1973 the worker was engaged in employment, and awarded compensation on the basis of partial incapacity for these two periods. I will not express any opinion on either of these findings as there was no appeal against them or question raised about them.
His Honour found that (except for these two periods) the employer had failed to provide suitable employment since the retrenchment on 30th June 1972 and (except for these periods) awarded compensation on the basis of total incapacity from 30th June 1972 and continuing.
At the request of the employer, his Honour stated a case for the decision of the Court of Appeal of the Supreme Court of New South Wales on four questions of law. These were:
(1) Whether there was any evidence upon which his Honour could find that the appellant employer had failed during any periods after 15th December 1972 to provide suitable employment for the respondent worker under the provisions of s. 11 (2) of the Workers' Compensation Act, 1926 as amended.
(2) Whether the Commission erred in law in finding that the respondent worker was entitled to the benefit of the provisions of s. 11 (2) of the Workers' Compensation Act, 1926 as amended in respect of any periods of time after his departure from Sydney in the State of New South Wales with the intention to reside either interstate or in a distant part of the State of New South Wales from Sydney.
(3) Whether the Commission erred in law in finding that the service of an application for determination by the applicant upon the employer was a sufficient request for suitable employment or a sufficient offering by the applicant to engage in suitable employment to be provided by his employer.
(4) Whether the Commission erred in law in finding that there is an obligation upon the employer to seek out and find a partially incapacitated worker whom it had dismissed from his employment and who has taken up residence in a distant part of the State of New South Wales for the purposes of offering that worker suitable employment within the provisions of s. 11 (2) of the Workers' Compensation Act, 1926 as amended.
The Court of Appeal by majority answered only question (1), with the answer "Yes". It dismissed the appeal against the award.
It was contended by the employer and accepted by Hardie J.A. (dissenting) in the Court of Appeal that because of observations of this Court in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [30] and Electric Power Transmission Pty. Ltd. v. D'Urso [31] , the Workers' Compensation Commission was bound to hold that there was no failure by the employer from 15th December 1972.
In Pennell's Case, Kitto, Taylor, Windeyer and Owen JJ. said [32] :
the "provision" of suitable employment involves an element of mutuality. Employment is not a commodity which can be provided merely by an offer; it can in strictness be provided only by the employer and employee entering into and performing their obligation under a contract of service and this involves the co-operation of both employer and employee. There can, of course, be no "failure" on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of co-operation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer's place of business as to be quite incompatible with employment by that employer. 1. (1968) 117 C.L.R., at p. 669.
That judgment also stated that there must be a continuing failure to provide suitable employment in order to entitle a worker to continuing benefits under s. 11 (2) and that there can not be a continuing failure when in any relevant period the worker is not ready, willing or able to enter the employment with the pre-injury employer. It further stated that whether there was such a failure is a question of fact to be determined in light of all circumstances including the situation of the worker.
In D'Urso's Case, the judgment of Barwick C.J., Menzies, Windeyer and Owen JJ. [33] stated that employment involved mutuality between the employer and the worker and that if a worker did not want to work, an employer could not be said to have failed to provide him with employment.
In my opinion, the rulings in these two cases do not require a conclusion that in the present case the employer did not fail to provide suitable employment. The present case is quite different to D'Urso's Case where the worker was unwilling to be employed, although he made a sham application for employment. In Pennell's Case [33a] , earning of some moneys by the worker did not bring about an end to the employer's failure under s. 11 (2).
In the present case, the employer has repudiated its obligation, stating that irrespective of what the worker may do, it will not provide him with suitable employment. Once the employer adopted this attitude, mutuality became impossible. The worker has not shown any lack of co-operation. He continued to work for the employer until his dismissal and then did his best to find work.
The employer's contention amounts to this: even after repudiation by the employer, the worker is obliged to stay idle and in the vicinity of the employer's place of work or lose his rights under s. 11 (2). I find nothing in the sub-section or in the decisions of this Court to compel me to this conclusion.
The sub-section is designed to encourage rehabilitation of the injured worker who is partially incapacitated, by requiring the employer to provide him with suitable employment under penalty of paying compensation on the basis of total incapacity. It is consistent with other provisions of the Act which encourage rehabilitation of injured workers. The result contended for would tend to frustrate the intention of the Act.
Suppose after this repudiation by the employer, the worker had undertaken a training course to fit him for some other employment. Once the worker had committed himself to the course, would it have been open to the employer to claim that its failure to provide suitable employment then ceased? Counsel for the employer contended that the observations in the cases of Pennell and D'Urso compelled that conclusion. I do not accept that view. The observations in those cases were not directed to cases where the worker would not have done what he did if the employer had not repudiated his obligation.
Or, suppose the worker, after the employer's repudiation, simply moved to some very remote place where the cost of living enabled him to maintain himself and his family more easily on his compensation payments. A reasonable reading of the sub-section does not require a conclusion that the employer's failure then ceases.
The contention that moving to a remote place automatically brings about a cessation of the failure and a loss of entitlement of the worker under s. 11 (2) seems inconsistent with s. 54 which provides:
If a worker receiving a weekly payment ceases to reside in the Commonwealth of Australia, he shall thereupon cease to be entitled to receive any weekly payment, unless a medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature.
If the medical referee so certifies, the worker shall be entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as he proves, in such manner and at such intervals as may be prescribed by rules made by the Commission, his identity and the continuance of the incapacity in respect of which the weekly payment is payable.
If the employer were to change its attitude and offer to provide suitable employment under s. 11 (2) it would be for the Workers' Compensation Commission to consider whether this offer terminates the employer's failure. On that question, it would be open to the Commission to consider whether the employment offered was suitable in respect of continuity and other terms having regard to all the circumstances including the previous repudiation by the employer and the consequent changed situation of the worker.
The Commission would also be entitled to hold that the employer's failure continues until the worker has had a reasonable opportunity to avail himself of it, in the same way as an employer is entitled to a reasonable opportunity to provide it. (See the judgment of Sugerman J. in Asciak v. Australian Glass Manufacturers Pty. Ltd. [34] ).
The question of the failure of the employer to provide suitable employment was one of fact for the Workers' Compensation Commission. There was ample evidence to justify the conclusion of the learned judge of the Commission that there was a continuing breach of s. 11 (2) by the employer. I agree with the majority in the Court of Appeal and would answer the first question only and in the affirmative.
Dowell Australia Ltd
Archdeacon