LGA Workers Compensation Scheme (City of Holdfast Bay) v Pointer [2007] SAWCT 62

"We advise that pursuant to Section 36(1)(f) of the Act, a worker's income maintenance payments may be discontinued for breach of mutuality. A breach of mutuality has been particularised pursuant to Section 36(1a) of the Act to include the following:

(e) the worker fails to comply with an obligation under a rehabilitation and return to work plan under this Act; or

(i) to undertake work that the worker has been offered and is capable of performing; or

(ii) to take reasonable steps to find or obtain suitable employment,

or having obtained suitable employment, unreasonably discontinues the employment; ... .

We have received a medical report from Dr Lipert dated 4 July 2005 and he expresses the opinion that you are able to commence a work hardening process which you attend to light duties half time leading up to full time duties over a period of four weeks. Similarly, Dr Potter in his medical report of 12 July 2005 expressed the opinion that you are fit to progress through a work hardening and rehabilitation program.

Your records of attendance at work for September and October 2005 indicate the following:-

On each occasion you attended work and performed minimal, if any, duties and then left. It is our opinion that the duties which have been made available to you are within your restrictions and that you are refusing or failing to undertake work that has been offered to you and which work you are capable of performing.

We are satisfied that you have breached your obligation of mutuality and have determined to discontinue your weekly payments of compensation."

14 At the conclusion of the hearing before the learned President, Mr Pointer's counsel, Mr Warren, argued that there did not need to be an inquiry into the merits of the case because the determination was invalid. The argument was based upon the notice requirements prescribed by the Act and the regulations promulgated thereunder.[2] These require the determination to include information about "the general basis on which...[the compensating authority] has made its decision."

15 He said that although the determination made reference to ss 31(1a)(e) and (f) none of the alleged breaches were particularised. Implicit in what he put, was that the notice requirements require in the case of a determination made under s 31(1a)(e) the provision of particulars of the obligations imposed under the plan and provision of particulars as to how those obligations have been allegedly breached.

16 Next he argued that the only issue was whether Mr Pointer complied with the plans. He said that work offered outside of the plans and Mr Pointer's alleged failure to perform that work was irrelevant. He submitted that s 31(1a)(f) was only concerned with "work" required to be performed pursuant to a contract of employment. He said that this followed from the structure of the Act and from a consideration of the relevant authorities.

17 He said that Mr Pointer was employed as part of Holdfast Bay's maintenance team and had never agreed to be transferred to any other section. Hence it was said that the work offered was not work that Mr Pointer was required to perform pursuant to a contract of employment.

18 He took the learned President to Pignataro v GH Michell and Sons (Australia) Pty Ltd[3]. He referred him to a passage in the judgment which suggested that work that has been offered "is an opportunity to sell one's labour".

19 Next he took the learned President to a decision under the former Act of Millwood v Brownbuilt[4]. There, Judge Layton said in connection with s 67 of the Workers Compensation Act 1971: "In my view, the word "work" in the context of that section and the Act must mean activity to be performed by the worker for the employer for which the worker is to be paid."

20 He made reference to the decision of the Full Court of the Supreme Court of South Australia in State of South Australia v Day[5]. In that case the Full Court held that performing duties pursuant to a rehabilitation and return to work plan, without more, does do not constitute duties for which a worker is entitled to be paid wages.

21 Finally he made reference to the decision of Sutton v SA Water[6]. There, albeit in a different context, the Tribunal wrote:-

"The binding of nature of such a Plan, and consequences which flow to the worker for a refusal or failure to comply with it, strongly suggest that its position is paramount in the return to work process.... In my view the application of s 36(1a)(f) as a basis for the discontinuance of weekly payments will be limited by the existence of a current Rehabilitation and Return to Work Plan. If such a Plan places obligations upon a worker to perform certain work, as was the case here, and the offer of work relied upon as a breach of mutuality differed from the obligations contained in the Plan, then it is not a valid offer of work for the purposes of s 36(1a)(f)."

22 Mr Warren contended that it followed that the determination was confined to the allegation about a breach of mutuality in respect of the plans and that any such alleged breach could only be in respect of dates covered by the plans. He said that any other days in September, October or November 2005 when Mr Pointer attended work but was not required to do so under the compulsion of the plans were irrelevant.

23 The learned President did not deal with the submission concerning the alleged defect in the determination.

24 On the issue about the meaning of the word "work" in s 36(1a)(f) he wrote:-

"I agree with Mr Warren, counsel for Mr Pointer, that s 36(1a)(f)(i) refers to paid work as opposed to work undertaken pursuant to a Rehabilitation and Return to Work Plan. The relevant issue is therefore whether or not Mr Pointer was in breach of any of his obligations pursuant to any of the relevant Rehabilitation and Return to Work Plans and in particular on the dates particularised by the Holdfast City Council."[7]

25 As to the submission about the limited scope of the inquiry, the learned President seems to have not only accepted it, but he went further. His reasons suggest that in determining whether or not there had been a breach of mutuality, he confined his consideration to the days specified in the table, ie 12, 14, 16 and 28 September and 19, 24 and 26 October 2005. He did not deal with the days provided for by the plans when Mr Pointer did not work, they being 19, 21 and 26 September and 10, 12, 14 and 17 October 2005. Nor did he deal with the days not covered by the plans when Mr Pointer attended work but left early.

26 The learned President then went on to record:-

"Based on the evidence, the only date that assertion could possibly be made out was 19 October. On each of the other days Mr Pointer either fully complied with his work obligations, ie 12, 14 and 16 September, or he was certified by his doctor as being unfit for work, ie 28 September, 24 October and 26 October."[8]

27 As to the allegation that Mr Pointer breached mutuality by his conduct on 19 October, the learned President said:-

"On 19/10/05 Mr Pointer's evidence was that he attended work but was in pain, he went home, tried to arrange an appointment with Dr Hand who was away, and organised to see Dr Papps on the following Tuesday. Leading up to 19 October 2005, Mr Pointer was certified as being unfit for work from 13 to 18 October and fit for modified duties from 19 to 31 October."[9]

28 Although not expressly stated, it is implicit from the learned President's decision that he accepted this evidence.

29 Having concluded that LGA's determination was limited to the dates specified in the table, and did not allege in a more general way that Mr Pointer had failed to comply with his obligations under the plans or failed to undertake work which he had been offered and which he was capable of performing, he concluded that the LGA had not established a breach of mutuality in the terms of its determination and accordingly set it aside.

Submissions on appeal

30 On appeal, Mr Doyle, counsel for the LGA, submitted that the learned President adopted an unnecessarily restrictive approach in construing the terms of the determination. He contended that the days mentioned in the table simply reflected the days that Mr Pointer actually turned up for work and that the table did not purport to reflect the days that Mr Pointer was obliged to work pursuant to the plans.

31 Mr Doyle conceded that the relevant determination could have been better drafted. He said, however, that because the determination included the statement:-

• "Your records of attendance at work in September and October 2005 indicate the following...";

• "On each occasion you attended work and performed minimal, if any, duties and then left.";

• "It is our opinion that the duties which have been made available to you are within your restrictions...";

Mr Pointer well understood that the determination and the allegations it made concerned all of the days on which he was required to work pursuant to the plan and the work rosters in September and October and not merely those days specified in the table. Although Mr Doyle did not expressly say so, we understood him to submit that Mr Pointer's attendance at work on 2 November also formed part of the allegations that the LGA was making against him, and that the determination put him on notice of that allegation.

32 Mr Doyle also seemed to suggest that we could conclude that rehabilitation and return to work plans were implicitly on foot on 28 September, 24 October, 26 October and 2 November, and that Mr Pointer's conduct on those days was relevant to the allegation that he breached mutuality by reference to the plans.

33 Mr Doyle submitted that we should not conclude that s 36(1)(f) could only be relied upon in circumstances where the worker is performing work pursuant to a contract of employment.

34 Next, he contended, that in any event, there was evidence capable of supporting a finding that Mr Pointer was entitled to wages for the work that he was performing pursuant to the plan, and that in those circumstances the matter should be remitted to the learned President so that he can make a relevant finding one way or the other.

35 Mr Warren submitted that the learned President erred in not dealing with his submission that the determination was invalid. He asked us to deal with it. He essentially repeated the submissions that were put to the learned President. He said that the determination was invalid because:-

•

two of the dates specified in the notice, 24 and 26 October, were at a time when there was no operative plan.

•

the determination did not specify which plan or plans were operative when the alleged breaches occurred.

•

the determination did not specify what the obligations imposed by the plan or plans were.

•

the determination did not specify what obligations imposed by the plan or plans had been breached.

36 Mr Warren sought to uphold the learned President's approach to the issue of the alleged breach of mutuality by reference to the plans. We understood him to endorse the limited inquiry based solely on the dates specified in the table.

37 He repeated his submissions about the meaning of the word "work" that were made at trial, and contended that as the work was not work performed pursuant to a contract of employment such that s 36(1a)(f) had no role to play.

Consideration

Did the determination satisfy the notice requirements prescribed by the Act and regulation?

38 We are mindful that it is well established through several decisions of this Tribunal and its predecessor that it is important for compensating authorities to comply with their obligations in issuing determinations pursuant to s 36, including the obligation to comply with the notice requirements.[10]

39 It does not follow, however, that s 36 notices should be construed narrowly, combing through the words used with a fine tooth comb on full alert to find a verbal slip. They must be considered fairly, read as a whole and in context.[11]

40 In this case it is clear that Mr Pointer was well aware of the terms of the plans, and it is not being contended otherwise. Mr Pointer knew there were several days in September and October when he was expected to attend work and did not. He knew that over that period he, on occasions, attended work for less, sometimes much less, than the time he was expected to work.

41 These matters form the context in which the determination must be read.

42 Reading the determination as a whole and in context, in our view, the statement within the determination:-

"It is our opinion that the duties which have been made available to you are within your restrictions and that you are refusing or failing to undertake work that has been offered to you and which work you are capable of performing."

made it plain enough what the LGA was alleging. That is, that Mr Pointer could have worked a full day's work on the days when he left early, and on the days when he was rostered on and did not attend. The determination did not need to provide any greater specificity to comply with the notice requirements.

43 The complaint that the notice requirements were not met has not been made out.

How should the determination be construed?

44 Although the determination was not issued until 7 November its reference to "Your records of attendance at work for September and October 2005..." would in our view lead the recipient of the determination to conclude that it was only dates in September and October that were relevant. We therefore reject the submission that the determination should be read as including an allegation concerning the events of 2 November 2005.

45 We also reject the submission that we should imply the existence of a rehabilitation and return to work plan for the dates 28 September, 24 October, 26 October and 2 November 2005. A rehabilitation and return to work plan is a plan formulated under s 28A of the Act. Pursuant to s 28C such a plan must comply with standards and requirements imposed by regulation. Pursuant to cl 5(a) of the Workers Rehabilitation and Compensation (Rehabilitation Standards and Requirements) Regulations 1996 the plan must be in writing. In our view this standard does not permit the finding by inference of the existence of a plan for a period that is not covered by a written rehabilitation and return to work plan.

46 However, reading the determination as a whole, the citation within it of ss 36(1a)(e) and (f) make it plain enough that the LGA was alleging that Mr Pointer breached mutuality in one of two ways. It was alleging that he failed to comply with an obligation under a rehabilitation and return to work plan (s 36(1a)(e)) and, in the alternative, it was alleging that he refused or failed to undertake work that he had been offered and that he was capable of performing. (s 36(1a)(f)).

47 Thus the fact that two of the dates specified in the notice, 24 and 26 October, when Mr Pointer left early were at a time when there was no operative plan does not necessarily indicate any defect in the determination. Mr Pointer must have understood that he was offered work on those days as well as on all of the days covered by the plans. He must have known that it was being alleged that he refused or failed to undertake that work and that he was capable of performing it. Of course this still begs the question as to whether Mr Pointer was offered "work" and that in turn hinges upon what "work" in s 36(1a)(f) means.

What does the word "work" mean as it appears in s 36(1a)(f)?

48 We commence our discussion on this issue with an observation about Pignataro. The passage to which Mr Warren referred has to be considered in context. It was made in response to a submission that the activities that the worker was required to perform for the employer were not associated with a real job, but rather, were manufactured and that unproductive activities of this type did fall within the ambit of work for the purposes of the provision. The Tribunal wrote:-

"I accept that it is unlikely that the employer would have paid someone to exclusively carry out the tasks offered to the worker, other than in the context of rehabilitation. But it does not follow from that, that the activities were not 'work'. In my view, all that is contemplated by the expression 'work that ... has been offered' as that term appears in the sub-section, is an opportunity to sell one's labour and that is an opportunity that the worker was afforded in this case. He was invited to come upon the employer's premises to undertake tasks connected with the employer's business and to be paid for doing so. I can accept that the provision of duties calculated to demean or embarrass an injured worker might fall outside the scope of the provision."[12]

49 It will be apparent that the statement about work being "an opportunity to sell one's labour" was obiter and that the case does not reflect a considered opinion about its meaning in the context argued here.

50 The statement in Millwood v Brownbuilt also has to be viewed in context. It was made in response to a submission concerning s 67 (b) of the Workers Compensation Act 1971. Pursuant to that subsection an employer could avoid a deeming provision that deemed a partial incapacity to be a total incapacity if the employer could prove that work for which the worker was fit was reasonably available elsewhere. The employer argued that some seasonal work that was generally but not specifically available was sufficient for these purposes. Judge Layton rejected this submission noting that the purpose of the provision was to relieve an obligation to pay compensation and that this should only apply where the worker was performing an activity for which the worker is to be paid.

51 The case does not purport to reflect a considered opinion about the meaning of the word "work" for all purposes and is of no assistance in deciding what it means here.

52 We therefore approach our consideration of Mr Warren's argument on the basis that there is no binding authority that compels any particular conclusion.

53 We have a number of concerns about Mr Warren's submission on this issue. Amongst them are two that we think are decisive.

54 The first is the absence of any apparent reason why Parliament would have intended to limit the meaning of the expression in the manner suggested. We cannot discern any policy reason why Parliament would only contemplate enforcement of an offer of work if the work was work that the worker was either contractually bound to perform, or the performance of the work was a term of a rehabilitation program or a rehabilitation and return to work plan.

55 The second is the words of the section itself as set out in the LGA's letter of 7 November. It will be seen that s 36(1a)(f)(i) refers to work that the worker is capable of performing whereas s 36(1a)(f)(ii) refers to suitable employment. The word "employment" is defined in the Act and it plainly means employment pursuant to a contract of employment. If Mr Warren's argument were correct one would have expected s 36(1a)(f)(i) to have read:-

(i) to undertake employment that has been offered and is capable of performing.

56 The fact that it does not is telling. This difference between ss 36(1a)(f)(i) and (ii) strongly suggests that Parliament contemplated that work that the worker is capable of performing is not identical to suitable employment.

57 In our view the word "work" in s 36(1a)(f) is not confined to work for which the worker is entitled to be paid wages pursuant to a contract of employment.

58 It remains to be determined what work was offered, when it was offered, whether Mr Pointer was on each occasion when it was offered capable of performing it and whether he refused or failed to undertake it.

59 However the LGA's alleged failure to prove that the "work" was not work that Mr Pointer was not contractually bound to perform was not decisive of that inquiry.

60 We accept that in some circumstances a worker's compliance with rehabilitation and return to work plans should render the worker immune from an allegation of a breach of s 36(1a)(f). In this case, if the work on offer compromised Mr Pointer's capacity to comply with the plans, then consistent with Sutton and the cases that have followed Sutton, the LGA would not have been able to rely upon the offer of work as grounds for alleging a breach of mutuality. However, in this case, it appears that the work offered was either the same work provided for by the plans or concerned periods outside the periods provided for by the plans. If it is contended otherwise this can be pursued.

Conclusion

61 With respect, the learned President erred in law in his approach and was wrong to have set aside LGA's determination on the basis that he did.

62 We therefore allow the appeal and remit the matter back to the learned President to determine Mr Pointer's challenge to the determination on the merits in conformity with these reasons.

[2] Section 36(3) of the Act and Regulation 7 of the Workers Rehabilitation and Compensation (General) Regulations 1999.

[5] [2000] SASC 451; (2000) 78 SASR 270

[6] [2002] SAWCT 6 para 50.

[7] Pointer v LGA (City of Holdfast Bay) [2007] SAWCT 28 at para 12.

[10] See for example Rundle v WorkCover/Vero Workers Compensation (SA) Ltd (P & O Transport Australia) [2006] SAWCT 12.

[11] Minister for Immigration and Ethic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 per Kirby J.