Royal Adelaide Hospital v Khammash [2001] SAWCT 66

Workers Compensation Tribunal (SA)|2001-06-08

1 This is an appeal from a decision of a learned Deputy President which concerns his conclusions in respect of a review purportedly conducted pursuant to s 39(2)(a)(i) of the Workers Rehabilitation and Compensation Act 1986.

3 The appellant, the Royal Adelaide Hospital ("the employer") employed the respondent George Khammash ("the worker") as an orderly. The worker was classified under the applicable Award, the South Australian Government Health Etc Ancillary Employees Award, as a Health Ancillary Employee Level 2 ("HAE 2"). Pursuant to that classification and pursuant to the terms of his contract of employment he could have been employed as an orderly or as a porter. In fact he only worked for the employer as an orderly.

4 In July 1995 and in December 1996 the worker suffered injuries to his back in compensable circumstances. As a result he has and continues to be partially incapacitated for work. The worker has returned to work but he is being paid an amount of compensation reflecting the difference between his notional weekly earnings and what he is earning in suitable employment.

5 In early 1997 the employer outsourced the work of its orderlies. The employer's orderlies were given the option of seeking employment with the outsourcing entity, becoming a redeployee within the hospital or taking a separation package. Having failed to take out the alternate options, by default, the worker became a redeployee at the hospital.

6 All such redeployees continued to be employed as and paid as a HAE 2. Because these employees no longer performed the work of orderlies they no longer received shift penalties that as orderlies they used to receive. As a result their wages have reduced. In other words, it is reasonable to assume that had the worker not suffered the compensable disabilities he would be working as and receiving the base pay of a HAE 2 and hence lower wages than his previously determined notional weekly earnings.

7 By determination dated 4 February 1998 the employer in purported reliance upon s 39(2)(a)(i), determined that the worker's notional weekly earnings should be adjusted to an amount of $446.50 per week, being the base amount (ie without the benefit of shift allowances) payable to a HAE 2.

8 In doing so, it asserted that the kind of employment that the worker was engaged in at the time of his compensable disability was that of a HAE 2 and because the amount of $446.50 per week reflected the amount that such employees are now earning, that it was appropriate to adjust the worker's notional weekly earnings pursuant to s 39 (2)(a) (i) on that basis.

9 The learned Deputy President rejected that submission. He found that the kind of employment in which the worker was engaged in at the time of his compensable disabilities was that of an orderly. He therefore concluded that the employer's determination had to be set aside.

10 The employer's appeal against the learned Deputy President's decision is based upon its assertion that His Honour's conclusion as to the relevant kind of employment was wrong and that he should have found that it was the work of a HAE 2.

11 For the reasons explained in Chenoweth v TransAdelaide [2001] SAWCT 29 we think that the employer's approach to its review under s 39(2)(a)(i) was fundamentally incorrect. As was explained in that case, s 39 does not provide a vehicle by which to recalculate a worker's notional weekly earnings to bring them into line with what the worker would probably have been earning had he or she not suffered the compensable disability. What it is concerned with is an adjustment to the amount of compensation being paid to an incapacitated worker to reflect rises or falls in wages.

12 Independently of this however, in our view, the employer's appeal to this Full Bench is incompetent.

13 An appeal to the Full Bench of the Tribunal is limited to "a question of law"; s 86(1).

14 By limiting the scope of an appeal in this way, Parliament has imposed significant constraints on the capacity of the Full Bench to review and interfere with a decision made below. As Kirby J explained in Vetter v Lake Macquarie City Council [2001] HCA 12 at par 75:-

"... those constraints do not warrant the appellate court's simply substituting its own view of the facts and calling the substitution a correction of an erroneous statutory construction. The primacy accorded to the Compensation Court's factual decisions, by limiting appeals from its awards, relevantly, to the establishment of a grievance in point of law, must be respected so long as what is involved is a finding of fact. The giving of meaning to straightforward statutory language, according to the facts as found, is such a finding." (emphasis ours)

15 This is a view that has been expressed in many decisions of the Full Bench of the Tribunal, see, for example: WorkCover/MMI Workers Compensation (SA) Ltd (Ballestrin Concrete Constructions Pty Ltd) v Gianfranco Giocondoz Zanini JD125/1999.

16 In Vetter (supra) at par 108, Hayne J put it this way:-

"As Mason J pointed out in Hope v Bathurst City Council, [1980] HCA 16; (1980) 144 CLR 1 at 7, when a statute uses words according to their common understanding and it is not unreasonable to conclude that the facts as found fall within those words, the conclusion that they do, is a conclusion on a question of fact: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 at 511 - 512 per Kitto J."

17 The learned Deputy President made a finding that the relevant kind of employment is employment as an orderly. That was a finding that was open to him. Even if a different conclusion was possible, that does not give rise to an error of law. See: Kirby J in Vetter at par 78: The learned Deputy President's conclusion is therefore unassailable. We have no right to review it.

18 For all of these reasons, the appeal should be dismissed.

19 This appeal concerns the interpretation of the words, "the kind of employment from which the worker's disability arose", in s 39(2)(a)(i) of the Act. Mr Crawley of counsel for the appellant, says this is a question of law, (s 86(1) (30)).

20 What constituted a question of law was determined by the Full Tribunal in Smith v. WorkCover Corporation/MMI Workers Compensation (SA) Ltd (Underdale Metal Processing) (1997) WCTR 53. The majority referred to White v. Perovic (1988) 145 LSJS 293 and the distinction made by Cox J in that case (293). Was the complaint about a misunderstanding of the law or was it about a conclusion of fact drawn by the Judge? Likewise in Ortlepp v. Le Cornu Furniture Centre (1991) SASC 2813 (unreported 12 April 1991). There Olsson J said the exercise required him to identify what was in issue on the appeal.

21 Smith's case said questions of law concerned matters of generality, (ie the way in which the legislation operated apart from the facts situation), as distinct from the specific facts being compared with it. Converting that to the subject case, a question of law is involved when the issue is the meaning and scope of the words, "the kind of employment from which the worker's disability arose". A question of law is not determined by consideration of whether the argument of the appellant is weak or strong.

22 Vetter v Lake Macquarie City Council (2001) HCA 12 is not authority to the contrary. Rather it reinforces the need to identify the issue. It does not suggest the jurisdictional threshold is absent if after hearing argument and considering the matter, the court is of the conclusion that the meaning of the statutory language is straightforward. Three passages from that case demonstrate this:-

"24 Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestly JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138:

`[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law'.

25 In his speech in Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; (1956) AC 14 at 36 Lord Radcliffe identified an error of law as arising if `the true and only reasonable conclusion contradicts the determination'. Mason J (with whom Gibbs, Stephen, Murphy and Aicken JJ agreed) discussed the matter comprehensively and stated the law on this topic in this country as follows in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7:-

`Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47 at 51, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees (1915) AC 922 at 932, which was adopted by Latham CJ in Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93 at 97, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said [1956] HCA 21; (1956) 96 CLR 47 at 51:-

"... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The `facts' referred to by Lord Parker ... are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law."

However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens [1972] UKHL 6; (1973) AC 854 was just such a case. The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.'

27 In Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 8, Mason J pointed out that when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. His Honour's reasons make it clear that a question exclusively of law arises, as the respondent sought to argue was the position in this case, if, on the facts found only one conclusion is open [1980] HCA 16; (1980) 144 CLR 1 at 9. See also Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389."

108 In both the Court of Appeal and in this Court, there was no dispute that `journey' is used throughout s 10 of the Workers Compensation Act 1987 (NSW) ("the Act") in its ordinary meaning. There was no live question between the parties about the construction of the relevant provisions of the Act. ..."

23 In Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 the Full Federal Court ruled the question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.

24 The ruling to be followed by this Tribunal is that in Smith's case. Nothing in WorkCover/MMI Workers Compensation (SA) Ltd (Ballestrin Concrete Construction Pty Ltd) v Zanini J.D.125/1999 suggests to the contrary. One assumes the Tribunal is constrained to follow the earlier authority until specifically dealt with and overruled as no longer the law in later authority: R v. Thaller & Gee (Question of Law Reserved) (2001) SASC 14 per Doyle CJ at para 87. As Mr Crawley's argument has been put singularly to a contended meaning to be attributed to "kind of employment", that makes the issue a question of law (see argument at 8).

"39. (1) Where a worker to whom weekly payments are payable is incapacitated for work or appears likely to be incapacitated for work for more than one year, the Corporation shall, during the course of each year of incapacity, review the weekly payments for the purpose of making an adjustment to the amount of those payments under this section.

(i) changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker's disability arose; or

(ii) if the worker applies, in accordance with the regulations, for the adjustment to be made on the basis of changes in rates of remuneration prescribed by an award or enterprise agreement payable to a group of workers of which the worker was a member at the time of the occurrence of the disability-changes in those rates of remuneration; and

(b) operates from the end of the year of incapacity in which the review is made."

26 The learned Deputy President appealed from set out the determination of the Corporation dated 4 February 1998 and in the following terms (AB Vol 1 121):-

"(1) Pursuant to section 39(1), your notional weekly earnings must be reviewed in the course of each year of incapacity for the purpose of making an adjustment to the amount of those payments under this section.

(2) Pursuant to section 39(2), such an adjustment must be based on changes in the rates of remuneration payable to workers engaged in the kind of employment from which your disability arose.

(3) As at 14 April 1997, the Royal Adelaide Hospital outsourced the work of orderlies to an outside contractor. Following the said outsourcing, all orderlies were given the choice, inter alia, of seeking work with the outside contractor or electing to remain employed by the Royal Adelaide Hospital as a redeployee.

(4) Redeployed employees of the Royal Adelaide Hospital work a five day week and are not paid any shift penalties. The base rate for a redeployee of your classification is $446.50.

(5) Accordingly your notional weekly earnings are adjusted to $446.50 per week."

27 While at the Royal Adelaide Hospital prior to his injury the worker worked as a hospital orderly. Under the applicable award he was classified as a "Health Ancillary Employee, Level 2". That classification was appropriate for orderlies and for other descriptions of duty or function. The fact that the classification was appropriate to a range of activities is not peculiar. Many of the government awards were revised in a "broad banding" exercise in Industrial Commissions a decade ago. Those familiar with industrial regulation would well know that.

28 The worker since January of 1999 has been provided light duties in the medical records section. But he is incapacitated for his former work as a hospital orderly.

29 In 1997 the Royal Adelaide Hospital Administration introduced major change. Henceforth the duties of orderlies were outsourced to "Tempo". Of the 101 orderlies at the Hospital, 5 sought and obtained employment with Tempo, 46 took packages and 51 were "redeployed" within the Hospital. The worker fell into the latter group. Employment with Tempo was not subject to the abovementioned Award.

30 Before the learned Deputy President appealed from and before us the Hospital argued, in effect, that the "kind of employment from which the worker's disability arose" meant employment within classification HAE 2 level at the Royal Adelaide Hospital. Since those remaining in HAE 2 were limited to redeployed employees at the Royal Adelaide Hospital and since redeployed employees were now on a base rate, that was enough to establish changes in the rates of remuneration payable to workers engaged in the "kind of employment from which the worker's disability arose".

31 That argument was modified in the course of argument before us. It was argued that what the worker was doing, that is the description of the actual activity of the worker in his job, did not equate to "employment". His employment covered what he actually did but also what the employer might legitimately require him to do. This meant it incorporated any of the functions that might fall within HAE 2 (5). Alternatively while it was admitted his only activities with the Hospital were as a hospital orderly (7), what the words of the statute contemplated was something akin to the contract of employment and the person with whom that contract existed (8).

32 The Deputy President held "kind of employment" was a reference to the activities of a hospital orderly. The Hospital had to demonstrate under s 39 that there had been a change in the rate of remuneration of that kind of employment. I quote the Deputy President's conclusion as to the meaning of the words in the statute (AB Vol 1 124):-

"12 The task under s 39(2) is to identify `the kind of employment from which the worker's disability arose'. Giving the words their plain and ordinary meaning, the kind of employment the worker was engaged in was employment as a hospital orderly. That seems to me to be an indisputable description of the kind of employment that he was engaged in at the time of his disability.

14 `Kind of employment' in this context refers to the type or species of employment. The word `kind' connotes an element of specificity, ie by way of describing one type or species of employment from another. An employee's award classification is, as here, commonly not specific as to the kind, type or species of employment.

16 I find that the kind of employment from which the worker's disability arose was that of a hospital orderly. It follows that any adjustment of weekly payments must be based on changes in the rates of remuneration payable to workers engaged in work as hospital orderlies.

17 The Corporation's adjustment of the worker's notional weekly earnings did not proceed on this basis, but rather was based on the post-outsourcing earnings of hospital redeployees. Its determination must be set aside."

33 That approach accords with the approach adopted in previous s 39 cases before the Tribunal and its predecessor: see The Corporation (Coles New World) v Nemeth (unreported A.56/1990). It is derived from the ordinary and natural meaning of the words. On the question put by Mr Crawley whether the statute was using the words in their ordinary and natural meaning or in a peculiar sense, I am in agreement with the Deputy President appealed from. They are being used in their ordinary and natural meaning.

34 I conclude there is a question of law but that the appeal should be dismissed.

Rehabilitation and Compensation Act 1986

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