Electric Power Transmission Pty Ltd v D'Urso

The judgment of the Workers' Compensation Commission is as follows, and we set it out in full:

On the probabilities I am satisfied that the applicant sustained an injury to his back on 13th December 1966 in the nature of a lumbo-sacral disc lesion which was already the site of degenerative changes.

Since 21st September 1967 the applicant has been partially incapacitated for his pre-injury work but has been fit for light work not involving much bending or lifting.

Had he remained uninjured and continued in the same or comparable employment he would have been earning in the vicinity of $60, and since 21st September 1967 he has been able to earn in suitable employment about $40 a week.

I find that the respondent has not failed to provide suitable employment since 21st September 1967 because, in the view I have formed of the applicant, he has not been genuinely available for suitable work if such had been made available to him.

On the basis of those findings, I make an award under s. 11 (1) at the rate of $20 a week from 21st September 1967 and continuing. Medical and hospital expenses in accordance with s. 10; costs rule 46; one qualifying fee for Dr. Rowe. I certify for advice on evidence.

That is to say, the Commission found in substance that the worker should not be treated as totally incapacitated.

In the Supreme Court, all members of the Court were of the opinion that there was evidence before the Commission to support a finding that if suitable work had been offered by the employer to the worker he would not have accepted it, and that a request which the worker had made to the employer for work was not bona fide.

The majority considered, however, that because at the time when the employer did not accede to the worker's request for suitable employment, the worker's unwillingness to work was not known to the employer, there had been a failure on the part of the employer to provide the worker with suitable employment.

In our opinion the judgments of the majority are not in accordance with s. 11 (2). This subsection does require an employer to provide his partially incapacitated worker with suitable employment and states the consequence of his failure to do so. It does not require as a condition of its operation that the worker should ask for work and it does not afford the employer any excuse for failing to provide such work. It operates if, but only if, the employer fails to provide suitable employment.

As, however, appears from what was said by the members of this court in R. J. Brodie (Holdings) Pty Ltd v Pennell [1] an employer does not fail to provide employment to a worker who in fact is not willing to work for him. It was pointed out there 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. What Sugerman J. said in Asciak v Australian Glass Manufacturers Pty Ltd [2] is in line with the observations made in Pennell's Case [1] .

1. (1968) 117 C.L.R. 665. 2. (1964) 64 S.R. (N.S.W.) 344, at 351. 3. (1968) 117 C.L.R. 665.

It seems to us that the majority of the Supreme Court did not correctly understand these observations and that their view was not consistent with the reasons of this Court in Pennell's Case [1] .

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.

Exactly the same reasoning applies in the case of a worker who is simply not willing to work for his former employer, even if the worker should pretend that he is willing to work, and the employer is not aware that a request by the worker for employment is a sham.

For the worker it was argued before us, as an alternative to the mode of reasoning which commended itself to the majority of the Supreme Court, that to provide suitable employment within the meaning of the section is not to give a suitable job to a worker ready and willing to work but to be ready and willing to employ the worker to do suitable work whether or not the worker should be ready and willing to do that work. This contention, however, is, we think, contrary to what was said by this Court in Pennell's Case [1] and is not a construction of the section which we are prepared to accept.

The finding of the Commission that the worker had not been genuinely available for suitable employment with the employer of itself properly led to the conclusion that the employer had not failed to provide him with suitable employment and to the refusal of compensation as for total incapacity.

Accordingly, the judgment of the Supreme Court must be set aside and that of the Commission restored.

With some hesitation I agree with the judgment delivered by the Chief Justice, but I do so on the footing that Pennell's Case [1] has adopted a construction of the sub-section in question that I feel bound to accept. I was not one of the Judges in Pennell's Case [1] .

1. (1968) 117 C.L.R. 665. 2. (1968) 117 C.L.R. 665.