Issue 4: April 2019
This issue includes a summary of the March 2019 decisions.
These summaries are prepared by the Presidential Unit and are designed to provide an overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for a decision maker’s independent research.
This issue, and previous issues, of On Appeal is available on the WCC website: http://www.wcc.nsw.gov.au/
Decisions are published on AustLII, JADE and LexisNexis at the following websites:
Please note that the following abbreviations are used throughout these summaries:
|ADP||Acting Deputy President|
|AMS||Approved Medical Specialist|
|Commission||Workers Compensation Commission|
|MAC||Medical Assessment Certificate|
|Reply||Reply to Application to Resolve a Dispute|
|1987 Act||Workers Compensation Act 1987|
|1998 Act||Workplace Injury Management and Workers Compensation Act 1998|
|2003 Regulation||Workers Compensation Regulation 2003|
|2010 Regulation||Workers Compensation Regulation 2010|
|2010 Rules||Workers Compensation Rules 2010|
|2011 Rules||Workers Compensation Rules 2011|
|2012 amending Act||Workers Compensation Legislation Amendment Act 2012|
|2015 amending Act||Workers Compensation Amendment Act 2015|
Berri v Harbour City Ferries Pty Limited  NSWWCCPD 9
Factual findings – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd  NSWWCCPD 25; 10 DDCR 156 applied; current work capacity; s 32A of the Workers Compensation Act 1987
Marinic v RPC Interiors Management Pty Ltd  NSWWCCPD 11
‘Worker’ – application of Stevens v Brodribb Sawmilling Company Pty Ltd  HCA 1; 160 CLR 16, Hollis v Vabu Pty Ltd  HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 and associated authorities
Patrick Stevedores Holdings Pty Ltd v Viera  NSWWCCPD 12
Whether error in determining the need for surgery resulted from the work-related aggravation of a disease; principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd  NSWWCCPD 25; 10 DDCR 156, Najdovski v Crnojilovic  NSWCA 175; 72 NSWLR 728 considered and applied; s 50 of the 1987 Act – sick leave – NSW Police Service v Azimi  NSWWCCPD 125 considered and applied
Lindsay v IMB Ltd  NSWWCCPD 7
Psychological injury – application of State Transit Authority of New South Wales v Chemler  NSWCA 249; 5 DDCR 286
Port Stephens Shire Council v Pearsall  NSWWCCPD 8
Psychological injury; failure to give adequate reasons – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied; failure to consider relevant evidence – Waterways Authority v Fitzgibbon  HCA 57; 79 ALJR 1816 applied
Jeld-wen Australia Pty Ltd v Quilao  NSWWCCPD 10
Failure to comply with r 10.3 of the 2011 Rules – Iovanescu v McDermott  NSWCA 106; r 14.1 of the 2011 Rules – DVD surveillance and surveillance report deemed to be one document for the purpose of r 10.3; whether error in the discretionary decision to refuse to admit late evidence – requirements of Practice Direction No 9 – Micallef v ICI Australia Operations Pty Ltd  NSWCA 274, Hamod v State of New South Wales  NSWCA 375 applied; adequacy of reasons – ADCO Constructions Pty Ltd v Ferguson  NSWWCCPD 21, Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied
15 March 2019
This appeal concerned a claim for weekly compensation under the 1987 Act. In particular, it concerned a challenge to the Arbitrator’s finding concerning the worker’s capacity for suitable employment as defined in s 32A of the 1987 Act.
The worker sustained an injury to his right shoulder after painting the base of the seats on a river cat in October 2014. In June 2016, he claimed that he felt pain in his left shoulder after using a needle gun to descale paint work. In July 2017, he underwent right shoulder surgery.
In January 2016, the worker was suspended on full pay pending an investigation into allegations of serious misconduct. A number of the allegations, relating to unsafe work practices and breach of the respondent’s code of conduct, were found to be substantiated. During this time, the worker made several allegations of workplace bullying and harassment.
In October 2017, the worker made a claim for compensation. He claimed that he sustained a psychological injury as a result of workplace bullying and harassment (deemed to have occurred on 27 July 2016) and that he also sustained work injuries to the shoulders (right shoulder injury deemed 1 October 2014 and left shoulder injury dated 21 June 2016).
The matter came before a Commission Arbitrator for resolution. At the commencement of arbitration proceedings, the Arbitrator granted the worker leave to amend the date of the injuries claimed to a deemed date of 27 July 2016, that being the last date of work and first date of alleged no current work capacity.
The Arbitrator issued a Certificate of Determination finding that the worker continued to suffer from the effects of his right shoulder injury but that the left shoulder condition had resolved in 2018. He also found that the worker suffered a primary psychological injury pursuant to s 4 of the 1987 Act, to which employment with the respondent was the substantial contributing factor. The Arbitrator further found that the worker had current work capacity for suitable employment. The worker appealed the Arbitrator’s findings on current work capacity.
The issues in dispute on appeal were whether the Arbitrator erred:
(a) in failing to properly consider or misconceiving the medical evidence or misdirecting himself as to the evidence in determining that the worker had “some capacity for employment” and could earn $331.27 per week from 23 July 2017 to 26 September 2017, when the evidence proved that the worker had “no work capacity.” (Ground one)
(b) in failing to properly consider or misconceiving the medical evidence and the worker’s statements or misdirecting himself as to that evidence when determining that the worker had “some capacity for employment” and could earn $331.27 per week from 26 July 2016 to date and continuing when the accepted evidence proved that the worker had “no work capacity”. (Ground two)
(c) in finding that “the appellant’s injury to his left shoulder has resolved” by failing to properly consider the medical evidence and the worker’s statements and give reasons as to whether the worker’s left shoulder condition contributed to his current work capacity from 26 July 2016 to an undetermined date in 2018 by which time it was found to have resolved. (Ground three)
(d) in failing to make a finding:
(i) of the date(s) of injury in respect of the shoulders, and
(ii) of a specific date by which the left shoulder condition resolved. (Ground four)
Held: The Arbitrator’s decision was in part revoked and remitted to a different Arbitrator for re-determination of the outstanding issues.
1. This ground was limited to the period between 23 July 2017 and 26 September 2017. The appellant set out detailed reasons as to why the worker should have been found to have “no current work capacity” for suitable employment during this period. The respondent properly conceded that the worker was totally incapacitated for work during the period 26 July 2017 and 26 September 2017, as a result of the surgery to the right shoulder. (-)
2. The President found that the Arbitrator erred in failing to have regard to the Concord General Repatriation Hospital medical certificate and the treating doctors’ medical certificates certifying the worker to have no current work capacity between 26 July 2017 and 26 September 2017. Having regard to that evidence, it was clear that the worker had no current work capacity for that period. The Arbitrator’s factual finding to the contrary was wrong and an error of the kind discussed in Whiteley Muir. (-)
(Raulston v Toll Pty Ltd  NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 considered and applied)
3. The remaining issue for resolution under this ground concerned the period between 23 July 2017 and 25 July 2017, which was dealt with under ground two. ()
4. The appellant submitted that it was not open to the Arbitrator on the medical evidence to find that the worker had “some” current work capacity. It also complained that the Arbitrator misinterpreted the worker’s statement evidence that he would be “prepared to try” to return to work. (-)
5. The Arbitrator observed that the weight of the evidence demonstrated that the worker’s restriction for work was due to the psychological injury and not the physical injury. The Arbitrator found that a fundamental barrier to the worker’s return to work was his perception that it was impossible to return to the workplace due to the allegations made by him about the work practices. The Arbitrator made this finding, having regard to the evidence of Dr Smith (and Dr Smith’s record of conversation with Dr Hanna, treating practitioner) that the worker had current work capacity if he was “agreeable” to return to the workplace in a temporary role. ()
6. The President found that, in the context of the medical evidence of no current work capacity, it was not open to infer from the worker’s statement that his preparedness to “try” was consistent with capacity for some type of employment. In drawing that inference, the Arbitrator overlooked Dr Smith’s ultimate conclusion that the worker was not “fit to work”. It was material evidence which the Arbitrator should have taken into account in deciding the ultimate question on current work capacity and the inference to be drawn. (-)
7. The President also found that the Arbitrator overlooked or gave too little weight to the evidence of Dr Hanna. The Arbitrator recorded that Dr Hanna certified the worker as having no current work capacity. However, the Arbitrator erred in failing to take into account this evidence and according no, or too little, weight to that evidence in deciding the inference to be drawn on the worker’s current work capacity.The Arbitrator also fell into error by failing to analyse that evidence. ()
8. The Arbitrator’s failure to properly consider the above evidence was an error of the kind discussed in Whiteley Muir. The President concluded that the Arbitrator’s reasoning process and ultimate determination, on the issue of current work capacity and the quantification of the worker’s entitlement to weekly compensation in the disputed period, was infected by this error. It followed that the Arbitrator’s decision on the worker’s current work capacity was revoked. (-)
9. The President held that in determining the worker’s current work capacity, as defined in s 32A of the 1987 Act, it was necessary for the Arbitrator to identify whether and, if so, when the left shoulder condition resolved. That was because in assessing the worker’s current work capacity for suitable employment the Arbitrator was required to determine whether, and to what extent, the left shoulder condition contributed to the worker’s current work capacity. This necessitated a finding of when the left shoulder condition resolved. The Arbitrator’s failure to find when the left shoulder condition resolved was an error. (-)
Ground four (i)
10. The President found that the Arbitrator determined the matter on the basis of the pleaded deemed date of injury and that this was consistent with how the case was run. The appellant could not now attempt to re-agitate matters in a manner that was not consistent with the conduct of the case at first instance. This ground of appeal was not made out. (-).
(Smits v Roach  HCA 36; 228 ALR 262; 80 ALJR 1309 and University of Wollongong v Metwally(No 2)  HCA 28; 59 ALJR 481 considered)
Ground four (ii)
11. For the reasons under ground three, the President held that the Arbitrator erred in not finding the precise date in which the left shoulder condition resolved. ()
26 March 2019
The appellant is the widow and only dependant of the late Ivan Marinic (the deceased), who died from a heart attack at work on 2 December 2016. The appellant brought these proceedings pursuant to ss 25(1) and 26 of the 1987 Act, for the lump sum death benefit together with funeral expenses. The appellant alleged that the deceased was a worker in the employ of RPC Interiors Pty Ltd (the respondent), or alternatively a deemed worker pursuant to Sch 1, cl 2 of the 1998 Act, at the time of his death. This was disputed by the respondent in a s 74 notice dated 6 November 2017; these were the only issues between the parties.
On 18 October 2018, the Arbitrator made an award in favour of the respondent. The Arbitrator concluded that the deceased was not a ‘worker’ or a deemed worker. This appeal was brought against that decision.
It was not in issue that, at the time of the deceased’s death, he was contracted (however it may be characterised) to the respondent, and was being paid by the respondent. The site at which he was performing duties, Portman Street, Zetland (the Portman Street site) was a development site controlled by Ballast Point Pty Ltd (Ballast Point). The deceased was “provided” by the respondent to another company, Ultra Building Works Pty Ltd (Ultra), which was carrying out works at the site. Ultra paid $60 per hour to the respondent, for the deceased’s time, and the respondent paid the deceased $57.50 per hour for his time.
The issues on appeal were whether the Arbitrator erred in finding that the deceased was not:
(a) a ‘worker’, or;
(b) a ‘deemed worker’.
Held: The Certificate of Determination dated 18 October 2018 was revoked and the matter was remitted for re-determination by another arbitrator.
Grounds of appeal
1. The appellant’s appeal application did not clearly distinguish between grounds and submissions. It did not specify numbered grounds. The appellant specified that she appealed the two ultimate findings of fact against her, stating the Arbitrator erred in finding that the deceased was not a ‘worker’ or a ‘deemed worker’. She set out headings, under which she dealt more fully with the specifics of the alleged error. The challenge was primarily one going to the fact-finding process. Notwithstanding the respondent’s submissions about the way in which the appeal was argued, the preferable course was to deal with the matters raised, on their merits. The respondent had addressed the appeal, grouping its submissions under the various sub-headings referred to below. Deputy President Snell adopted the same approach. (–)
Consideration of the ‘worker’ issue
2. The majority of the sub-headings below describe indicia. There was an initial issue that required resolution before it was possible to deal with whether there was error in how the Arbitrator dealt with and weighed the indicia. (–)
(Malivanek v Ring Group Pty Ltd  NSWWCCPD 4; 15 DDCR 146 (Malivanek) referred to)
Identifying the contract
3. Whether the deceased had an obligation to work for the respondent, whether the respondent had a right to the exclusive services of the deceased, and whether the respondent had a right of termination, were among the indicia (if relevant on the facts) that required consideration, in deciding whether the deceased was employed pursuant to a contract of service. The Arbitrator’s reasoning started from the premise that the deceased had been operating a business in the past. He referred to the deceased’s financial records, and moved from that to an acceptance that when the deceased contracted with the respondent, through Mr Clark (manager of the respondent), this contract was with the deceased’s business, and accordingly it was not a contract of service. ()
Characterisation of the contracts with other entities
4. In the reasons at , the Arbitrator referred to the material attached to the Application to Admit Late Documents, which demonstrated the deceased invoiced different companies for his labour from time to time, charged GST and paid his own income tax. These matters were potentially consistent with the deceased having carried on a business when working with those other entities. However, such factors are not necessarily determinative. (, )
(ACE Insurance Ltd v Trifunovski  FCAFC 3; 209 FCR 146; 295 ALR 407; 235 IR 115 applied)
5. In considering whether the deceased was conducting a business from 2013 to 2016, when dealing with other entities, there was little evidence before the Arbitrator apart from compliance with some of the regulatory requirements for conducting a business. It is necessary, in seeking to distinguish between a contract for services and a contract of service, to have regard to those indicia which are present and relevant. This involves reference to the contractual terms and relevant work practices. It is necessary to look to the totality of the relationship between the parties. The passage at  of the reasons did not draw a clear distinction between the contract involving the deceased and the respondent, applicable at the time of death, and the arrangements in force with other entities previously. In the passage of the reasons at  there was a similar blurring of the discussion and findings, regarding the previous relationships with other entities, and the relationship between the deceased and the respondent which was in issue. ()
(Hollis v Vabu Pty Ltd  HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 applied)
6. The issue before the Arbitrator was whether the relationship between the respondent and the deceased, operative at the time of his death, was one of master and servant. This did not require that the appellant establish that the deceased had such a relationship with the other entities he contracted with previously. The Arbitrator dealt with a different question, being whether the deceased was conducting a business over a number of years, and whether the way the deceased contracted with the respondent was consistent with how he had done business over previous years. The Arbitrator asked himself the wrong question. The Deputy President accepted the appellant’s submission that the Arbitrator erred, in failing to properly consider the conditions of the relevant contract in issue, rather than past contracts. The enquiry extends also to the work practices in the employment with the respondent. The approach the Arbitrator took had the clear capacity to affect the result. If the conclusion about the deceased’s conduct of a business in earlier times was simply carried forward, to characterise the relationship with the respondent in the last weeks of the deceased’s life, this did not have proper regard to the relevant indicia in the later relationship between the deceased and the respondent. ()
7. The Arbitrator’s consideration of these indicia, which were decided adversely to the appellant, reflected the conclusion he had reached, that the deceased was previously an independent contractor conducting a business. The consequence was that proper consideration was not given to the indicia applicable to the deceased’s relationship with the respondent. The error affected the result. There was appealable error. ()
Consideration of the indicia
8. The remainder of the issues raised by the appellant on this appeal, relevant to Ground No 1 (the ‘worker’ ground), related to whether there was error in how the Arbitrator dealt with the indicia. ()
Method of remuneration
9. The way in which the Arbitrator expressed himself, at  of the reasons, involved treating the method of remuneration (pay on an hourly basis at a set rate) as a factor consistent with the deceased being an independent contractor. This was erroneous, payment at a set rate on an hourly basis could not represent a factor in any way inconsistent with a contract of employment. The finding to the contrary constituted error. In the circumstances of the case, it was appropriate to regard that aspect of the mode of remuneration as a factor more consistent than not with a contract of employment, but a relatively minor indicator. ()
Set hours of work
10. The evidence did not touch on why the hours worked by the deceased and Mr Miletic were from 6.30 am to 2.30 pm. The invoices showed that the deceased worked for eight hours each day that he was on the site, which was consistent with this. There was no indication the hours varied from day to day. If the deceased’s hours were set in a certain way, to reflect the operation of Ultra on the site (for example, when Ultra could access the site), this did not change the fact that the hours were fixed, and the deceased worked them. It could be appropriately inferred the deceased worked those hours because he was required to, having been placed on the site as part of his engagement with the respondent. It was reasonable to draw this conclusion, on the probabilities. It was not “mere conjecture or surmise”. The inference that the deceased did so was compelling, and should have been made. The failure to do so constituted error of the type identified in Raulston v Toll Pty Ltd  NSWWCCPD 25; 10 DDCR 156 (Raulston) at . ()
(Bradshaw v McEwans Pty Ltd  HCA 480; 217 ALR 1 applied)
The finding that the deceased did not have an obligation to work for the respondent
11. The Arbitrator found the deceased had contracted with other entities in the past, charging GST, paying his own income tax and carrying on his own business. In contracting with the respondent, the deceased was contracting in a way “perfectly consistent” with that adopted in the past, through his own business. The Arbitrator concluded the deceased did not have an obligation to work for the respondent. ()
12. The Arbitrator’s reasoning was to an extent circular. Because the deceased previously conducted a business, on this occasion he contracted (consistent with his previous practice) on behalf of his business, as an independent contractor. Because he contracted on that basis, an obligation to work for the respondent was not present, as that is an incident of a contract of service. The way in which this indicium was dealt with constituted error. Rather, it was necessary to consider whether the particular indicium was relevant, and if so, whether it (together with other indicia) supported the proposition that, looking at the totality of the relationship, there was a contract of service. ()
13. The regularity of the deceased’s hours of work was consistent with him being under an obligation to work for the respondent (and Forest Building and Maintenance Pty Ltd (Forest) (which was Mr Clark’s “maintenance company”) before it). The description in the RPC tax invoice dated 6 December 2016, of the arrangement as one of “Labour Hire”, was consistent with the deceased being under an obligation to work for the respondent. A labour hire arrangement between RPC and Ultra, if the person the subject of the arrangement was not under an obligation to work for RPC, would be nonsensical. While the deceased was engaged by Forest, and then by RPC, he worked only for these entities. This was all consistent with the deceased being under an obligation to work for Forest, followed by RPC. None of the evidence, dealing with the basis on which the deceased carried out his work activities with Forest and the respondent, suggested otherwise. The evidence strongly supported the proposition that the deceased was under an obligation to work for the respondent. There was error of the type identified in Raulston at . ()
Respondent’s right to exclusive services of the deceased
14. The evidence strongly supported the proposition that the respondent had a right to the exclusive services of the deceased. The finding to the contrary involved error of the type identified in Raulston at . ()
Lack of right to delegate
15. Having found that there was not a right to delegate, the Arbitrator referred to the fact that the “deceased’s business” did not employ any other people. The significance of this observation was not expanded on. If delegation were possible, it would not necessarily have been restricted to servants of the deceased (had there been any). The Arbitrator’s reasons did not identify whether the lack of a right to delegate was treated as an important indicium in the overall circumstances of the matter or not. ()
16. It was not suggested by either party that the Arbitrator erred, in finding that there was no right to delegate. Beyond the discussion at  of the reasons, the reasons were silent regarding the significance of this indicium to the reasoning. The Arbitrator concluded that there was not a right to delegate, and that this was suggestive of the existence of a contract of employment. The reasoning did not go beyond this. It was then necessary that this factor be considered, in balancing the indicia and considering whether, on the totality of the relationship, a contract of service existed. The failure to do so involved error, in that there was a failure to take account of a material consideration. It was error of the kind identified by Hayne J in Waterways Authority v Fitzgibbon  HCA 57; 221 ALR 402; 79 ALJR 1816 (Waterways Authority). ()
(Stevens v Brodribb Sawmilling Company Pty Ltd  HCA 1; 160 CLR 16 (Stevens) and Australian Mutual Provident Society v Chaplin  UKPC 7; 18 ALR 385 applied)
The right of direction and control over the deceased
17. The Arbitrator, earlier in the reasons, described the right of control as the “principal criterion” in determining ‘worker’, and quoted from the judgment of Wilson and Dawson JJ in Stevens, where it was said that the control test “remains the surest guide to whether a person is contracting independently or serving as an employee”. The Arbitrator found that, when employed at a building site for the week leading up to his death, the deceased was under the control of a foreman of the company to which the deceased was lent on hire at that time. The respondent argued at the arbitration that this did not constitute control by it. The Arbitrator did not deal with whether the control exercised by the foreman should be viewed as control by the respondent, in balancing the indicia. He did not indicate what weight, if any, was given to the indicium of control. The appellant submitted the Arbitrator failed to give this indicium “full and proper weight in balancing the relevant indicia to determine whether the deceased was a worker or an independent contractor”. There was no indication of what weight was given to the indicium of control, or how it was balanced with the other indicia. There was error in the failure to consider and balance the indicia, including that of control, in considering the totality of the relationship, to determine whether the deceased was employed pursuant to a contract of service. Again, it may be understood as error of the kind referred to by Hayne J in Waterways Authority at . ()
The ultimate question/entrepreneur test
18. The appellant did not, in his submissions before the Arbitrator, refer to On Call Interpreters, or submit on the basis of the ‘ultimate question’ or ‘entrepreneur test’. Failure by an arbitrator to address a matter not raised does not constitute legal error. The argument articulated on this issue was made by the appellant for the first time on this appeal. It followed that the Arbitrator did not err in failing to deal with this argument by the appellant. The Arbitrator did err in failing to deal with the respondent’s argument based on the same authority. That was not an error that was raised or relied on by the respondent in this appeal. It followed that the appellant could not establish appealable error on this basis. (–)
(Watson v Qantas Airways Ltd (2009) 75 NSWLR 539; 7 DDCR 113, Brambles Industries Limited v Bell  NSWCA 162; 8 DDCR 111 and Waterways Authority applied)
19. It followed from the above that what was described as Ground No 1 was made out. This was sufficient that the appeal succeeded. It was unnecessary in the circumstances to deal with Ground No 2. Various errors were identified in the appeal, going to how the Arbitrator identified and considered the contract and associated work practices, in the relationship between the deceased and the respondent. Errors were identified in how various of the indicia of employment were dealt with. It was appropriate that the matter be remitted to another arbitrator for re-determination. ()
29 March 2019
The worker suffered an injury to his left foot which was deemed to have occurred on 18 July 2016, described as an aggravation of pre-existing degenerative changes.
The employer, Patricks, denied liability for the injury and the associated treatment expenses. Patricks conceded that the worker had suffered an injury and that employment was the main or substantial contributing factor to the injury. The issues before the Senior Arbitrator that required determination were whether the worker had recovered from his injury; the extent and quantification of the worker’s entitlement to weekly compensation and whether Patricks was liable for medical expenses pursuant to s 60 of the 1987 Act.
The Senior Arbitrator found that the talonavicular fusion surgery performed by Dr Negrine and the associated treatment expenses were reasonably necessary as a result of the injury. The Senior Arbitrator ordered that Patricks pay the worker weekly payments of compensation and the worker’s reasonably necessary medical expenses with respect to the left talonavicular fusion and graft, and associated expenses, pursuant to s 60 of the 1987 Act. Patricks appealed.
The issues on appeal were whether the Arbitrator erred in:
(a) fact, law and discretion in determining that the talonavicular fusion surgery was reasonably necessary as a result of the injury and the worker required medical treatment as a consequence of the injury (Ground one), and
(b) law in that in respect of the weekly payments, there was no order in accordance with s 50 of the 1987 Act that Patricks were to receive credit for sick leave payments made during the period (Ground two, expressed in the alternative if the Senior Arbitrator’s decision that the surgery was reasonably necessary as a result of the injury was confirmed).
Held: The Certificate of Determination dated 30 October 2018 was confirmed.
1. Patricks maintained throughout its submissions at the arbitration and again on this appeal that it was not liable for the cost of the surgery to the left foot performed by Dr Negrine on the basis that, although the surgery was reasonably necessary, it was required to treat the worker’s underlying degenerative disease condition. ()
2. The decision the Senior Arbitrator was required to make was a decision as to causation, that was a factual decision requiring consideration of the evidence before him and the inferences that could be drawn from those facts. ()
3. Findings of fact will not normally be disturbed if they have rational support in the evidence. In order for Patricks to succeed on this appeal, it must establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong. (–)
(Fox v Percy  HCA 22; 214 CLR 118, 125–126; Raulston v Toll Pty Ltd  NSWWCCPD 25; 10 DDCR 156, –, and Najdovski v Crnojilovic NSWCA 175; 72 NSWLR 728 applied)
4. Deputy President Wood held that it could not be said that the probabilities so outweigh that chosen by the Senior Arbitrator, that material facts were overlooked or given undue or too little weight, or that there was an opposing available inference that was so preponderant that the Senior Arbitrator’s decision was wrong. The Senior Arbitrator had set out a proper reasoning process based on the facts before him that led him to his conclusions. It followed that this ground of appeal failed. (–)
5. Patricks had not challenged the Senior Arbitrator’s decision in respect of the worker’s capacity for work and the calculation of his weekly entitlements, other than to seek an award in its favour in respect of those entitlements. Deputy President Wood assumed that Patricks sought to have the order for payment of weekly compensation set aside on the basis that the worker had either recovered from the effects of his injury or that the surgery was not reasonably necessary as a result of the injury, or both. The Senior Arbitrator determined that the effects of the aggravation had not ceased and that the surgery resulted from the injury. Deputy President Wood confirmed that decision on appeal. There was no basis to disturb the worker’s entitlement to payment of weekly compensation. ()
6. This ground of appeal was expressed to be brought in the alternative to the first ground of appeal, and contingent upon that ground failing, with the result that the Senior Arbitrator’s decision was confirmed. Deputy President Wood found no error on the part of the Senior Arbitrator, so it was necessary for her to determine this ground of appeal. ()
7. A review of the transcript revealed that at the commencement of the arbitration, both parties were agitating that the Senior Arbitrator make “some notation” in the form of a re-credit to Patricks of money paid in relation to payment of wages for rostered weeks off totalling three weeks. Neither party raised any issue or sought any order from the Senior Arbitrator in respect of the payments of sick leave. In the absence of any issue being raised before the Senior Arbitrator, he could not have fallen into error in not dealing with it. (–)
(Brambles Industries Limited v Bell  NSWCA 162; 8 DDCR 111,  and  applied)
8. The Senior Arbitrator made no order in respect of credit being given to Patricks for sick leave (or any other leave) taken and it would not have been appropriate for him to do so. ()
9. Section 50(3) of the 1987 Act provides that if a worker is paid sick leave by the employer during any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, those payments are deemed to satisfy, to the extent of the payments made, the employer’s liability to pay compensation for that period. ()
(Bellamy v Albury City Council (1997) 15 NSWCCR 534 applied)
10. Even if the issue had been raised before the Senior Arbitrator, such an application would have been misguided, and there was no basis for raising the issue on appeal. It followed that this ground of appeal failed. (–)
(NSW Police Service v Azimi  NSWWCCPD 125, and Milburn v Veolia Environmental Services (Australia) Pty Ltd  NSWWCCPD 26 applied)
1 March 2019
The appellant worker was employed by the respondent as a loans assessor. Interpersonal conflicts developed, particularly from about December 2016 onwards. Various meetings were held to deal with these. The appellant eventually stopped work on 9 August 2017. She saw her general practitioner, Dr Zureigat, on that date, complaining of feeling “very anxious and ... betrayed”, and giving a history of “bullying and harassment at workplace ... going on for the past two months”. She was put off work and has not resumed.
The insurer paid compensation on a provisional basis from 28 August 2017 to 5 November 2017. On 9 November 2017, the insurer issued a s 74 notice denying liability on the basis that employment was not a ‘substantial contributing factor’ to injury.
On 9 May 2018, the appellant commenced proceedings, seeking weekly payments and the cost of medical and related treatment, in respect of psychological injury alleged to have occurred on 1 July 2017, relying on “various incidents occurring in the workplace”. The Arbitrator made an award for the respondent. The worker appealed.
The issues on appeal were whether the Arbitrator erred in law in failing to:
(a) properly go about the fact-finding process resulting in an ultimate error of fact in finding that none of the employment events alleged by the appellant to have contributed to her psychological condition were real events (Ground No 1), and
(b) apply established legal principles applicable to psychological injury cases such as the appellant’s by failing to appreciate the difference between the actuality of events and the perception of events (Ground No 2).
Held: The Arbitrator’s Certification of Determination dated 12 September 2018 was revoked and the matter was remitted for re-determination by another Arbitrator.
1. There were two grounds of appeal that were interconnected and it was convenient for Deputy President Snell to deal with them together. ()
2. The s 74 notice was apparently based on the statements obtained by the investigator, including this statement of the appellant. The s 74 notice identified nine allegations, to which the insurer responded. The ARD pleaded “various incidents occurring in the workplace”, and attached the appellant’s statement, which described multiple causative events. The basis of the finding of ‘injury’ in the appellant’s favour was unclear. It must be regarded as a finding on ‘injury’, as the Arbitrator then moved to deal with ‘substantial contributing factor’. One only moves to consider whether s 9A is satisfied after injury has been found. The injury must be identified, so as to consider whether it satisfies the requirements of s 9A. Sections 4 and 9A of the 1987 Act require independent satisfaction. The brief finding may simply reflect an understanding (arguably consistent with the s 74 notice) that injury within the meaning of s 4(a) was not disputed. The finding must have been pursuant to s 4(a), as s 9A does not apply to a ‘disease’ injury. ()
(Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited  NSWCA 324; 7 DDCR 75 (Badawi),  applied)
3. The Arbitrator’s fundamental finding was that the events at work, which the appellant relied upon as causing her injury, were not real events. The appellant’s simple submission was that there was no doubt the events relied on were real, they were confirmed not only by the appellant, but by other evidence. The respondent submitted the way in which the events occurred was crucial to finding what the events were. It submitted the finding that the events did not occur was available, given the Arbitrator’s rejection of the appellant’s evidence. (–)
Management of the personal loan queue
4. Deputy President Snell found that the loan queue clearly existed. There was much in the evidence that was uncontroversial, in which the appellant’s evidence was supported by statements of other witnesses and/or documents. The appellant’s involvement in management of the queue, her belief that it gave her a management role, and the fact that she was unhappy when the practice was brought to an end, were amply demonstrated by evidence other than the appellant’s. (, –)
The class A lending authority
5. It was clear that the appellant’s lending authority increased in December 2016. Her evidence that she was proud of this was plausible. Her evidence that Ms Jordan was not congratulatory at the time was uncontroverted, notwithstanding that there was statement evidence from Ms Jordan dealing with other matters. The appellant’s perception was that Ms Jordan’s behaviour towards her changed from that time. Ms Jordan regarded her relationship with the appellant as souring from about May 2017. These were real events. The perceptions of Ms Jordan and the appellant were different regarding when the relationship started to change. ()
Whether the appellant’s behaviour was of a bullying nature
6. Whether the actions of any of the participants could be encompassed by the term ‘bullying’, and whether or not the appellant’s psychological condition resulted from ‘bullying’, was not the issue. The passage from the judgment of Basten JA from State Transit Authority of New South Wales v Chemler  NSWCA 249; 5 DDCR 286 (Chemler) at  make it clear that “the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor”. ()
Reference to Ms Langford
7. It was difficult to see a basis on which, if the appellant expressed negative views about Ms Langford inconsistent with the views of Ms Jordan, this would be relevant to whether the appellant suffered psychological injury, as a result of the sequence of work events described in her statement. The appellant’s assessment of Ms Langford was in no way central to the allegations. ()
The appellant’s dealings with her superiors
8. Section 11A of the 1987 Act was not in issue. Whether there was an appropriate causal relationship, between real events and the injury, was not dependent on a value judgment about whether the appellant at all times behaved with propriety towards her superiors. ()
9. Deputy President Snell concluded that the events relied on were real events. The success of the appellant’s case did not depend on where fault lay, for the apparently increasing difficulties in personal relations in her team. The appellant did not regard herself as blameworthy, and thought that Ms Jordan was manipulating information. Some of the respondent’s lay witnesses considered the appellant bullied others in the team. These are matters of perception. The ultimate finding of fact at  of the reasons was effectively a rejection of the accuracy of the appellant’s perception of where fault lay. The approach taken was inconsistent with the decision in Chemler. (, )
10. The Arbitrator made a credit finding adverse to the appellant, based on identified deficiencies in her medical histories dealing with prior complaints and family history. The conclusion the Deputy President reached above was based on the evidence overall, and was available if the view the Arbitrator formed of the appellant’s credit was accepted. To the extent to which the credit finding played a role in the Arbitrator’s reasoning, Deputy President Snell accepted the appellant’s submission that the finding that the events were not real was such that he could give effect to his own conclusion, consistent with the principles in Fox v Percy  HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 at . ()
The respondent’s other argument
11. The respondent submitted the award in its favour could stand in any event, on the basis that the evidence could not satisfy the tests of either ‘substantial contributing factor’ (if the injury was pursuant to s 4(a) of the 1987 Act) or main contributing factor (if the injury was pursuant to s 4(b)). The respondent submitted there was no finding made regarding whether the injury was a frank injury or a ‘disease’. The Deputy President earlier concluded that the Arbitrator must have made an ‘injury’ finding, and that it must have been pursuant to s 4(a), as that was needed to proceed to deal (as she did) with ‘substantial contributing factor’. He accepted that this was not free from doubt. ()
12. As the respondent correctly stated in its submissions, whether s 9A is satisfied is not purely a medical question. In the Deputy President’s view, it was inappropriate to embark on a determination of whether s 9A was satisfied, on the current state of fact finding regarding ‘injury’. It followed from the above that appealable error was established and the appeal succeeded. (–)
13. The appeal having succeeded, the preferable course was that it be remitted for re‑determination. This would permit identification of the matters genuinely in issue. ()
14 March 2019
The worker was employed by Port Stephens Shire Council (the Council) as an Assistant Trades Gardener in the Parks and Gardens team. He was initially placed at the Medowie Depot. The worker made a number of allegations of being bullied and harassed by his supervisor, Mr Brady.
Eventually, because of the difficulties between the worker and Mr Brady, the worker was transferred to the Heatherbrae Depot, which had a larger team of workers. The worker continued to raise allegations of being bullied and harassed by various staff members and alleged that he was being discriminated against in respect of various employment matters. Allegations were also made against the worker by some of the staff. Those allegations were investigated and a number of meetings between the Council and the worker were organised to discuss the issues and to counsel the worker on his behaviour. The worker was eventually suspended from duty following alleged breaches of the Council’s Code of Conduct.
A meeting with the worker was arranged by the Council for 8 November 2017, to give the worker the opportunity to show cause as to why his employment should not be terminated. On 7 November 2017, the worker attended a general practitioner, who issued a WorkCover certificate certifying that the worker had no capacity for employment and diagnosed an adjustment disorder with anxiety and depression. The worker did not attend the meeting the following day and his employment was terminated.
The Arbitrator found that the worker suffered an injury pursuant to s 4(a) of the 1987 Act, with the final onset of symptoms occurring in May 2017, and awarded the worker continuing weekly payments of compensation and treatment expenses. The Council appealed.
The issues on appeal were whether the Arbitrator erred as follows:
(a) Ground one: in finding injury;
(b) Ground two: in finding bullying and harassment, when no complaints were made of any conduct before the worker’s dismissal;
(c) Ground three: in finding bullying and harassment on the histories given to the worker’s doctors, when they did not consider the suspension or termination of employment;
(e) Ground five: in failing to find that the Council had acted reasonably in relation to the complaints made by and against the worker, and that s 11A provided a defence to the matter;
(f) Ground six: in failing to properly consider the evidence as to the worker’s capacity to work, and
(g) Ground seven: failing to give any, or any adequate, reasons for the decision.
Held: The Certificate of Determination dated 28 September 2018 was revoked and the matter was remitted for re-determination by another Arbitrator.
Grounds one and seven: alleged error in finding injury and in failing to give any, or any adequate, reasons for the decision
1. The Arbitrator concluded that the worker was subjected to bullying and harassment in the course of his employment. ()
2. The Arbitrator found the “cigarette butt” incident (where the worker alleged that he was made to pick up cigarette butts in the rain at a sports complex while Mr Priestley sat in his car) occurred partly because the circumstances were so unusual and bizarre that it was unimaginable that the story would be false. He also took into account that there was no evidence from Mr Priestley denying the event occurred. ()
3. The Arbitrator’s conclusion that the event occurred because it was bizarre lacked logic. The Arbitrator’s role was to evaluate the assertion by considering it in the context of the surrounding body of evidence. In determining whether evidence should be accepted, it was necessary for the Arbitrator to weigh the evidence as a whole, not simply to evaluate the evidence on an issue, then consider whether other evidence denied that evaluation. ()
(Agbaba v Witter (1977) 14 ALR 187, 191, per Barwick CJ (Mason and Stephen JJ agreeing) applied)
4. The “cigarette butt” event was said to have occurred in 2014. Despite the worker lodging a number of written complaints, and making numerous allegations in response to questions asked of him during counselling and Code of Conduct meetings, the worker did not raise any such complaint until his statement was taken in December 2017, after his employment was suspended. The only other documented evidence recording that complaint was the report of Dr Takyar dated 11 May 2018. Those matters were raised in submissions by the Council in the arbitration proceedings and the Arbitrator failed to address those submissions. ()
5. In relation to the Arbitrator’s three findings that Mr Brady threw his mobile telephone at the worker, the worker’s transfer to the Heatherbrae Depot was motivated “solely by a joint grievance by fellow workers” and the worker was made to work through his meal breaks, no such assertions were made by the worker and the findings were not factually correct. ()
6. While the worker complained that Mr Brady threw his telephone, he did not assert that the telephone was thrown at him. Even on the worker’s evidence, it was apparent that Mr Brady’s comments and actions were an expression of his own frustration, and the context in which those actions occurred ought to have been afforded some consideration by the Arbitrator. ()
7. The “joint grievance by fellow workers” referred to by the Arbitrator did not occur until some months after the worker had been transferred to the Heatherbrae Depot. ()
8. There were no details of when and in what circumstances the worker was alleged to have been required to work through his authorised meal breaks and the Arbitrator failed to apply any reasoning process to his determination that this event in fact did occur. ()
9. In relation to the remaining factual findings, the Arbitrator did not give any consideration to the evidence adduced by the Council as to what, on its version, actually occurred. A failure to consider all of the material relevant to a particular issue is an error in the process of fact finding and itself amounts to an error of law. ()
(Waterways Authority v Fitzgibbon  HCA 57; 79 ALJR 1816,  applied)
10. While an Arbitrator’s reasons do not need to be elaborate or lengthy, there are three fundamental elements of the duty to give reasons. Firstly, a judge should refer to the relevant evidence. Secondly, where the evidence is important to the proper determination of the matter, and the judge does not refer to it, on appeal it may be inferred that the judge overlooked, or failed to give consideration to the evidence. Where evidence is accepted over other significant evidence, the judge should set out his or her findings as to how he or she came to accept that evidence over the other. Thirdly, a judge should provide reasons for making the relevant findings of facts, and conclusions reached. The process of reasoning should be understandable and logical. ()
(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443–444 applied)
11. It was apparent from the Arbitrator’s reasons that he did not sufficiently engage with the evidence. It was further apparent that the Arbitrator did not provide a logical reasoning process for his conclusions. ()
12. The Arbitrator found that the worker suffered a psychological injury as a result of bullying and harassment occurring cumulatively from 2014 to 2017, with a severe onset of symptoms in May 2017. He further concluded that the notice of intention to terminate the worker’s employment was not causative of the injury because the “injury had already occurred.” It was not incumbent upon the Arbitrator to find that the worker was bullied and harassed. (–)
(State Transit Authority of New South Wales v Chemler  NSWCA 249; 5 DDCR 286,  applied)
13. The medical evidence in support of the worker’s case did not support the Arbitrator’s conclusion that the events after May 2017 and up to the termination played no part in the worker’s psychological injury. The Arbitrator’s conclusion as to the effect of the suspension from duty and the termination on the worker’s psychological condition was not supported by the medical evidence, or the worker’s own evidence and the finding was not open to him. It followed that error was established and grounds one and seven of the appeal succeeded. (–)
14. The Council raised a further ground of appeal (ground four) in respect of the Arbitrator’s determination that the injury was a personal injury pursuant to s 4(a) of the 1987 Act, rather than a disease to which s 4(b) of the 1987 Act applies. Although the issue was flagged as an issue to be determined, the submissions made in the arbitration proceedings did not agitate any real argument for or against the classification of the alleged injury. Submissions made on this appeal included a short submission from the Council, without reference to any authority. It was also appropriate that the matter was remitted for re-determination by a different Arbitrator. (, )
18 March 2019
The appellant employer sought leave to appeal an interlocutory decision made by the Arbitrator on 5 November 2018, in which the Arbitrator refused to admit a surveillance report (the report) dated 16 October 2018.
The report had been filed in the Commission by Jeld-wen under an Application to Admit Late Documents dated 24 October 2018. The worker opposed the admission of the report. The Arbitrator, without hearing the basis of the worker’s objection, ruled that the report was not admitted. The employer appealed.
Jeld-wen alleged the following grounds of appeal:
(a) Ground one: error of law in failing to give adequate reasons;
(b) Ground two: error of discretion in failing to admit the document into evidence;
(c) Ground three: error of fact in determining that Jeld-wen had not provided an explanation as to why the evidence had not been adduced earlier, and
(d) Ground four: such further ground as is available following receipt of the transcript of the proceedings.
Jeld-wen did not seek to raise any further ground after it received the transcript.
Held: Leave to appeal the interlocutory decision made on 5 November 2018 was refused. The matter was remitted to the same Arbitrator for determination of the remaining issues.
1. An appeal from an interlocutory decision may only proceed with the leave of the Commission. In accordance with s 352(3A) of the 1998 Act, the Commission is not to grant leave unless it is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. In order to assess whether it is necessary for the proper and effective determination of the dispute to grant leave, it was appropriate to consider the merits of the appeal. (–)
Ground two: alleged error in the exercise of discretion
2. The second ground of appeal was that the Arbitrator erred in the exercise of his discretion in failing to admit the report into evidence. It was appropriate to deal with this ground before dealing with the alleged error in the Arbitrator’s reasoning process (ground one) and the alleged error of fact asserted in ground three. ()
3. The Arbitrator’s decision to refuse to admit the report was a discretionary decision, to be determined by what is fair and reasonable in the particular circumstances of each case. An appellate court must exercise caution in intervening in discretionary decisions made by the primary decision-maker. (–)
(Micallef v ICI Australia Operations Pty Ltd NSWCA 274 (Micallef),  and Hamod v State of New South Wales  NSWCA 375, – applied)
4. Parties must comply with the Commission’s Rules or give proper reasons for failure to do so. ()
5. Practice Direction No 9, issued by the Commission in accordance with r 18.1 of the 2011 Rules and effective from 30 October 2018, provides that the Commission, in a determination as to whether leave ought to be granted to have a late document admitted, will consider the following matters:
(a) if it is in the interests of justice to admit the document;
(b) the requirements of the workers compensation legislation and the 2011 Rules;
(c) the submissions of the parties, including the adequacy of the reasons for the delay;
(d) any prejudice arising from the granting or refusing of leave;
(e) any effect the granting of leave would have on the timely resolution of the dispute, and
(f) the objectives of the Commission. ()
6. The Practice Direction also directs that, where an application to have a document admitted is made during an arbitration, the Arbitrator will determine whether it ought to be admitted in accordance with the above principles. ()
7. The matters identified in the Practice Direction that are to be taken into account are matters that go to the proper exercise of the Arbitrator’s discretion. They are considerations that go to ensuring that regard is given to the interests of all parties to the suit, as well as to the objectives of the Commission. ()
8. Jeld-wen’s legal representative gave no explanation as to why the report could not have been obtained prior to the first arbitration, which was the basis upon which the Arbitrator rejected the admission of the report. Although Jeld-wen had possession of the document on 18 October 2018, it did not attempt to file and serve the document until 24 October 2018. ()
9. The report was clearly directed to Jeld-wen’s legal representative. As the report was sent directly to Jeld-wen’s legal representative, it could fairly be inferred that the surveillance was undertaken with the knowledge of the legal representative. A proficient legal practitioner would, as a matter of course, notify the investigators of the deadline by which this information was required. No explanation had been offered as to why Jeld-wen, or its legal representative, did not obtain the report or make enquiries as to the progress of the investigation prior to the first arbitration date. There was no evidence that either Jeld-wen or its legal representatives made any effort, at the time of the observations, to adduce evidence of the activities observed on the three days in August 2018, and on 2 October 2018, which were all well prior to the first arbitration date. ()
10. An unexplained failure to serve a document prior to an arbitration hearing is a significant factor militating against the discretion being exercised. The extent and circumstances of the delay are powerful factors against the exercise of the discretion. ()
(Nelson Bay Pest Service Pty Limited v Morrison  NSWWCCPD 135,  applied)
11. The worker had concluded his case at the first arbitration on 17 October 2018, and Jeld-wen had partly completed its submissions. If the Arbitrator had admitted the document, procedural fairness would dictate that the worker be given an opportunity to provide an explanation, and also make submissions, in particular as to the weight to be afforded to the document. Such an eventuality would be contrary to the statutory objectives of the Commission to provide an efficient resolution of the dispute. ()
12. It was evident from the report that the surveillance DVD was also forwarded to Jeld-wen’s legal representatives at the same time as the report. Rule 14.1(2)(b) of the 2011 Rules deems the DVD to be a document for the purposes of r 10.3 and the report to be part of the DVD. No attempt was made to have the DVD admitted. The evidentiary value of part of a document, that is a surveillance report without the DVD, where the report makes observations of what is contained in the DVD, was questionable. (–)
13. The Arbitrator did weigh up the evidentiary value of the material when he remarked that the report might, or might not, lead to an inference that the worker had a capacity to work. Given that Jeld-wen only sought to have the report admitted, and not the DVD which provided the primary source of the evidence, the Arbitrator’s observations were fair. The Arbitrator also considered the prejudice to the worker by observing that he would have had the opportunity to make relevant submissions had the report been admitted at the appropriate time. In the context of the worker having closed his case, such a consideration was appropriate. The implied consideration of the fact that the worker had closed his case was also relevant to the objectives of the Commission that matters are to be dealt with in a timely and effective manner. These were all matters that the Arbitrator was obliged to take into account and were matters consistent with the Practice Direction. ()
14. Jeld-wen alleged that the Arbitrator ought to have admitted the report in order to afford justice and fairness to the parties. The concept of fairness involves a weighing of the consequences to each party if the report was or was not admitted, in the context of the objectives of the Commission. The sole consequence to Jeld-wen was that it could not rely on a document that carried little weight in its argument that the worker’s credibility and capacity for work was impugned by that evidence. That consequence must be weighed against the matters that mitigated against the granting of leave, that is:
(a) the unsatisfactory explanation in relation to the failure to comply with r 10.3;
(b) the significant delay in obtaining the evidence;
(c) the lack of probative value of the report in the absence of the DVD, and
(d) the fact that the worker had closed his case. ()
15. Balancing all of those considerations, it could not be said that the Arbitrator’s discretionary decision was so unreasonable or unjust that it warranted interference by the appellate jurisdiction of the Commission. If leave were granted to appeal the interlocutory decision, this ground of appeal would fail. (–)
(Micallef,  applied)
Ground one: adequacy of reasons
16. The extent and scope of a trial judge’s duty to give reasons depends upon the circumstances of the individual case. It is not necessary for an Arbitrator to give lengthy reasons. When considering the adequacy of the reasons, the decision must be read as a whole, and not with an eye attuned to find error. (–)
(ADCO Constructions Pty Ltd v Ferguson  NSWWCCPD 21, Mifsud v Campbell (1991) 21 NSWLR 725, 728 and Beale v Government Insurance Office (NSW)(1997) 48 NSWLR 430, 443 applied)
17. The Arbitrator determined that the document should not be admitted because the document could have been obtained prior to the first arbitration, and there was no explanation as to why it was not. Reading the decision as a whole, it was apparent that the Arbitrator considered the evidence sought to be adduced and the weight that could be afforded to that evidence. He also considered the fairness to the worker, in circumstances where the worker had closed his case. He further considered the stage of the proceedings at which the application was made, and it could be inferred that he was mindful of the objectives of the Commission in that the matter had already been the subject of two arbitration days. Of significance, he also took into account the lack of explanation, not for when the report was received, but for when it could have been obtained and the delay in seeking to have it admitted. In the Deputy President’s view, in the context of the nature of the decision all of the Arbitrator’s considerations were sufficient to form a proper foundation for the Arbitrator’s ultimate determination. (–)
18. If leave were granted to appeal the interlocutory decision, this ground of appeal would also fail. ()
Ground three: error of fact in determining that Jeld-wen had failed to give any explanation as to why the evidence was not admitted earlier
19. Deputy President Wood held that the Arbitrator’s conclusion was supported by the report itself, which identified the dates upon which the observations were made. It followed that this ground of appeal would also fail if leave were granted to appeal the interlocutory decision. (–)
20. As there was no merit to the appeal, leave to appeal the interlocutory decision made on 5 November 2015 was refused. ()