James Kirby Pty Ltd t/as Kirby Contract Labour v John E Pennell [2000] NSWCC 2 (25 February 2000)

Last Updated: 9 August 2000

CITATION: James Kirby Pty Ltd t/as Kirby Contract Labour v John E Pennell [2000] NSWCC 2

PARTIES: James Kirby Pty Ltd t/as Kirby Labour Contract

James E Pennell

TITLE OF COURT: Compensation Court of NSW

JURISDICTION: Original

MATTER NO/S: NSWCC 5774 of 1999

DELIVERED ON: 29 February 2000

DELIVERED AT: Sydney

HEARING DATES: 10 November 1999; 30 November 1999; 25 January 2000

JUDGMENT OF: Campbell CJ

NUMBER OF PARAGRAPHS: 70

CATCHWORDS: Workers Compensation; Intention to Discontinue Payment of Compensation; s 52A.

REPRESENTATION

APPLICANT/S

Mr G P F Rundle instructed by Hunt & Hunt appeared for the applicant worker.

RESPONDENT/S

Mr D M Re instructed by Leigh File & Associates appeared for the respondent worker.

Compensation Court of New South Wales

Matter No 5774 of 1999

James Kirby Pty Ltd

t/as

Kirby Contract Labour

v

John E Pennell

29 February 2000

JUDGMENT

CAMPBELL CJ

This is an application for Declarations in the following terms:

1. the relevant time herein is 30 September 1999

2. at the relevant time, the worker was partially incapacitated

3. at the relevant time, the worker had received compensation in respect of partial incapacity for 104 weeks

4. at the relevant time, the worker was not suitably employed (within the meaning of s 43A)

5. at the relevant time, the worker was not seeking suitable employment (as determined in accordance with s 38A)

and an Order that

weekly payments in respect of partial incapacity for work are not payable beyond 15 November 1999.

Mr G P F Rundle of counsel appeared for the applicant employer. Mr D M Re of counsel appeared for the respondent worker. Counsels' submissions have been recorded and in the main transcribed. It is unnecessary for me to refer to each argument merely to ensure that it is noted.

Little information was placed before me as to the background facts. However, it may be gleaned that the applicant suffered a back injury arising out of and in the course of his employment with the respondent on 2 November 1995. He has been paid weekly compensation since that time and has not been in employment since then. He had received weekly payments on the basis of partial incapacity for at least 104 weeks before 30 September 1999.

On 22 June 1999 the respondent was referred to the Job Action Program conducted by Kairros Pty Ltd, an accredited rehabilitation Provider with the WorkCover Authority, by GIO Workers' Compensation (NSW) Ltd (GIO) the insurer of the respondent.

The respondent commenced a 12 week job placement program in July 1999, however, he was removed from the program, against his expressed wish, on 7 September 1999.

On 24 August 1999 Dr K Koutsoullis certified the applicant fit for suitable duties from 1 September 1999 to 30 November 1999 working four hours per day five days a week with a five minute extra rest break every half an hour. The doctor also noted the following additional restrictions:

Lifting - less than 2 kg

Bending - nil

Pushing - less than 5 kg

Pulling - less than 5 kg

Sitting - less than half an hour

Standing - less than half an hour

Walking - less than half an hour

Walking on uneven ground - nil

Squatting - nil

Climbing - nil

On 30 September 1999 GIO wrote a letter to the respondent which in part reads:

Notice Under Section 54 of Intention to Discontinue Payment of Compensation Pursuant to Section 52A Workers Compensation Act 1987

We have carefully considered your claim for ongoing weekly compensation benefits.

Section 52A(1) of the Workers Compensation Act 1987 states that weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity if the worker -

(a) is not suitably employed and is not seeking suitable employment,

(b) is not suitably employed, and has previously unreasonably rejected suitable employment, or

(c) has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker's injury).

We have decided that section 52A(1)(a) applies to you because you are not seeking suitable employment as you have unreasonably refused to cooperate in procedures connected with the provision or arrangement of suitable employment or rehabilitation under the employer's workplace rehabilitation program. You will not receive weekly workers compensation benefits from 15/11/99.

However, we will still pay any reasonable and necessary hospital, medical, and associated expenses relating to your workers compensation claim.

The respondent acknowledges that he received the letter although it is not clear precisely when that occurred. The letter noted the employer as PRL Sales Pty Ltd, however, no point was made as to this. Further, no point was made as to the reference in the heading of the letter to s 54.

The statutory provisions relied upon by the applicant are as follows:

52A Discontinuation of weekly payments for partial incapacity after 2 years

(1) Weekly payments for compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:

(a) the worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A).

38A Determination of whether worker seeking suitable employment

(1) ...

(2) General requirements. The worker is not to be regarded as seeking suitable employment unless:

(a) ...

(b) ...

(c) ...

(d) the worker is taking reasonable steps to obtain suitable employment from some other person.

(3) ...

(4) ...

(5) Worker treated as not seeking suitable employment. A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:

(a) unreasonably refuses to have an assessment made of the worker's employment prospects, or

(b) unreasonably refuses to cooperate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer's workplace rehabilitation program.

An issue arose as to whether the applicant could rely upon an allegation that the respondent was not taking reasonable steps to obtain suitable employment from some other person in the light of the limited ground referred to in the letter of 30 September 1999. (See, Sippel v Carey's (Tamworth) Pty Ltd (Burke J, unreported, 24 January 2000). Having regard to the view I have formed of the facts in this matter I do not need to resolve this issue.

It is convenient to deal at this point with an application made by Mr Re at the conclusion of the reading of the applicant employer's affidavits.

Mr Re submitted that the application for Declarations must fail because this Court has no power to make Declarations and because, admittedly, the respondent had not been given a preliminary notice - as provided for in Sch 6 Pt 4 cl 14(2).

For reasons which I then gave I continued with the hearing of the matter, however, I did not express any concluded views upon the points taken.

As it happens the view I take upon the facts in this matter make it unnecessary for me to deal with either point. I do, however, observe in respect of the first point that this Court has been making Declarations for a great many years and that it would not be appropriate for a Judge of the Court to depart from that long established and recognised practice.

In so far as the second point is concerned Mr Re relied upon the decision of Bishop J in Royal Society of Welfare for Mothers and Babies v Bowers (unreported, 3 November 1999). Judge Bishop had also given a decision to similar effect in Vockins v North Broken Hill Ltd (unreported, 10 November 1999). On the other hand Judge Burke expressed, obiter, a different view in Sippell at 21. I understand that there is an appeal to the Court of Appeal on foot in Vockins and an application for Leave to Appeal in Bowers. There is no utility in me adding another obiter first instance view to the learned and careful judgments of my brethren.

S 38A(7) provides that in s 38A:

refusal of an offer or to do a thing includes failure to accept the offers or to do the thing.

The Macquarie Dictionary Revised Edition defines "cooperate" as "to work or act together or jointly; unite in producing an effect". I do not consider that the wording or purpose of the sections of the Act relating to the return of workers to employment exclude this meaning.

The Workers Compensation Acts apply across the broad spectrum of workers. It cannot have been the contemplation of Parliament that to satisfy the requirement that workers should not refuse to cooperate that they should all become well adjusted, polite, non swearing, non drinking persons who do not make sexist or other inappropriate remarks, are capable of putting their experience as partially incapacitated workers behind them and can make entirely rational and informed choices as to which places to approach for employment. Had the Parliament intended that "cooperation" meant literal compliance with every suggestion of those conducting the programs it would have used quite different language, perhaps drawn from the legislation relating to disciplined organisations.

To make out his case Mr Rundle called Victoria Levey, a Director of Kairros, Roderick Edward Tolliday, program coordinator of the program undertaken by the respondent and Keri Walsh, a volunteer worker.

Before turning in a little detail to the evidence it is instructive to consider answers given by Ms Levey and Mr Tolliday in cross examination.

Ms Levey gave the following evidence:

Q. Mr Pennell did not unreasonably refuse to cooperate with procedures connected with your program, did he.

A. No

Mr Tolliday agreed that during the time he was on the program the respondent did not unreasonably refuse to cooperate with his procedures.

Whilst the answers by no means determine the matters in issue they are, in my view, relevant and significant statements.

The evidence and submissions in this matter left me with the view that, whilst it is possible that the respondent has engaged in a charade to retain his weekly payments, the probability is otherwise and that he has cooperated with the program. Further, I consider that I should come to a similar conclusion in respect of the issue as to whether he has been seeking suitable work.

I should explain why I have reached these conclusions.

The applicant's experience as a worker was essentially as a storeman except that he had worked as a tradesman's assistant and was doing so at the time of his injury on 2 November 1995. It is probable that work as a storeman would have involved some bookwork, however, it was not employment such as would equip someone to work in an office job except perhaps in an office attached to a warehouse.

Dr Koutosullis had set out the applicant's work restrictions, albeit partway through the program. Except for a submission of Mr Rundle to which I refer shortly, the case proceeded on the basis those restrictions were appropriate. I think it should be inferred that Dr Koutosullis's certificate did not impose new limitations.

Mr Rundle did submit that he had obtained from the respondent an admission that he could work all day in an office job. I do not consider that a reading of the transcript conveys that meaning although a "wrapped up" question by Mr Rundle might.

When the applicant commenced the program he was assessed by Mr Lal who found him a suitable candidate for a Job Action program. He said:

Mr Pennell presented as a cooperative 35 year old male who displayed a strong desire to return to the workplace. Mr Pennell appeared genuine in his desire to improve his chances of re employment.

Ms Levey agreed that the respondent successfully completed the first few weeks and that his attendance was punctual and regular. She said that she was of the view that he was compliant with most aspects of the Job Action Program and that she was aware that the applicant was actively seeking work whilst on the program.

She gave evidence:

Q. Initially he thought that he could still get light duties working in warehouses and so on.

A. Yes.

Q. But over time, after your efforts, , as they were, you convinced him or he began to realise that he sort of - he would not be able to get that sort of work.

A. Yes.

Q. If, as a result of that, he started looking for work in other areas, would you consider that your efforts were to some degree successful.

A. Yes.

Ms Levey and Mr Tolliday had decided to terminate the respondent's involvement in the program. It was agreed, however, by both of them that he did not want his involvement to end and was prepared to continue.

In the light of Ms Levey's view that a return to work could be further explored with the respondent it seems unfortunate that the program for him ended when it did.

Whilst there were other matters to which I shall come, it is clear that what appeared to Ms Levey and Mr Tolliday to be an unwillingness on the part of the respondent to improve his presentation was an important factor in the decision.

A reason for not shaving was advanced by the respondent -facial cysts- and not challenged. More importantly, the applicant told Mr Tolliday, as appears from that witness's affidavit, that he would present in a neat and tidy fashion at interview.

I accept the applicant's evidence that he did so. That evidence is supported by the letter from TAPEX dated 9 August 1999. That letter said, amongst other things:

We very much appreciated your presentation and personal details which will remain confidential.

Mr Rundle sought to classify this letter as the sort frequently written after interview by people trying to be polite in rejection, however, Ms Levey gave the following evidence:

Q. In your experience of job rejection letters, it is not all that common, is it, to put something in about presentation, is it.

A. No it's not.

I think it can be taken from the answers of Ms Levey and Mr Tolliday that they were not aware of the letter and that had they seen it might well have effected their attitude to the termination.

I do not consider that I need to resolve each of the disagreements as to fact between the respondent and Mr Tolliday or Ms Levey. To a considerable extent they can be explained as the result of nuances of language and the selection of passages from obviously much longer conversations.

It did not appear to me that Ms Levey and Mr Tolliday were, at least by the time they gave evidence, antagonistic to the applicant. Indeed, although it does emerge that Ms Levy had reservations as to the genuineness of the applicant's work seeking efforts, I think one can detect a view that more could usefully be done to help him obtain employment.

Where there is a direct conflict in the evidence I think that of Ms Levy and Mr Tolliday more probably correct, however, as I have said, much turns upon the nuances of language.

I should deal with some of the specific matters relied upon.

Ms Levey deposed in her affidavit:

I recall that early in his participation with the program talking with the Respondent when he said words to the effect:

"I have worked as a storeman and it is the only type of work that I am experienced and know how to do."

I said to him words to the effect:

"With your injury, it is unlikely that you could perform the duties of a storeman." (sic) It's the only work I know how to do and that's what I want to do".

It would seem to me very natural that early in the program a man such as the respondent would refer to his experience and his preference for working in that field. He did apply as the program progressed for office and customer service jobs. I did not find his assertion that he had hopes of obtaining work in an office attached to a warehouse unreasonable. Indeed, I would have thought that if he could obtain such a job where his experience would be used it would be a very good result. Admittedly, such jobs are few and far between but they do exist.

It is said by Ms Levey that the respondent, when work trials were explained to his group, said "I am not going to work for some bastard for nothing."

The respondent denies he said this. He said that he recounted an experience some years before when he worked for three weeks and that at the end there was nothing for him. He said that he did not wish that to happen to him again. There is plenty of room in this sort of conversation for both versions to be essentially correct as understood by the participants. The applicant said that he told Ms Levey the next day that he was prepared to participate in a work trial and, indeed, she had referred to this in her progress report of 4 August 1999.

Ms Levey deposed that, when she asked the applicant what he really wanted to do, he replied "I would like to die". His evidence that this was a jest after he had been canvassing for jobs for two hours, seems likely to be correct to me. Even if it is not, such an observation by an unemployed man could have many explanations other than unwillingness to cooperate.

Ms Levy recounts an occasion upon which the applicant said works to the effect:

My trouble is that I am an aggressive sort of bastard.

The respondent denies this, however, I think a remark to this effect might well have been made. The difficulty is that one does not have the context.

In any event, as I have said, I do not think that the Act requires that workers change their basic characteristics, unless perhaps they are of idleness. The applicant's work history prior to his injury would not suggest that characteristic. I would think that, prior to his injury, the respondent was an assertive man inclined to express his opinions forceably. That he would continue to do so does not to my mind establish that he was not cooperating.

Ms Levey deposed that the applicant said words to the effect:

I am very angry with the GIO, they are responsible for my position.

The first I heard from the GIO in four years was when they sent me here.

The GIO can keep on paying me - it is not in my interest to work more than four hours per day - if I do no good here and the insurance company cuts me off, I will see them in Court.

Again we do not have the full context of these conversations. The respondent denies that he is angry with the GIO. I think, however, he may well have given Ms Levey that impression.

It would be the rule rather than the exception that long time disabled workers start to shift some of their frustration and resentment to the insurer with whom they are in contact. I think the respondent's reference to "first time" refer to the first attempt at a program, as he asserts, since clearly he would have had other contacts with the insurer over the years.

The respondent is clearly partially incapacitated, why would he not expect the GIO to keep on paying compensation? His doctor had provided a detailed work restriction certificate, why would it not be in the respondent's interest to work within it? Why would it not be expected that he would see the GIO in court if his payments were cut off? Interestingly, the passage appears to accept the possibility that he might "do good" here.

Ms Levey said that she suggested that the applicant might benefit from some adjustment to injury counselling and, on another occasion, she suggested one on one case management. The respondent did not think that those steps would be helpful. A view, one would think, that he was entitled to put.

Ms Levey did not deny the assertion by the respondent that, when his involvement in the program was terminated, she told him that she had taught him everything that she could about seeking work and getting a job and that he would be better off going out there and putting it to use.

Mr Tolliday expressed the view in his affidavit that in the early weeks of the program the respondent was very negative and repeatedly expressed negative views about employers generally. He agreed in cross examination that this was not unusual for long term partially incapacitated people without work.

He noted that the applicant was at times assertive, which seemed to discomfort some other members of the groups and that he had some received complaints about the applicant's aggressive behaviour.

Mr Tolliday said "because of John Pennell's disruptive and negative attitude I discussed his case with Victoria Levy and between us we decided he was to be removed from the Job Action Program."

The cross examination of Mr Tolliday presented a much more complex and positive view of the respondent's conduct. I am not persuaded by the effect of the whole of Mr Tolliday's evidence that the respondent was not cooperating.

Ms Walsh, a volunteer worker, clearly did not approve of the respondent. She thought him scruffy, untidy and unshaven, given to sexist conduct and drinking, rude and aggressive and inclined to "big note" himself by referring to big betting. Accepting all these things they would not in my view establish that the applicant was not cooperating with the program. There is an interesting contrast with the report of Dr Koutsoullis of 16 November 1999. He found the applicant friendly and reasonable although depressed at times.

An allegation that the respondent fastened a pair of lady's knickers to a door with a note to Ms Levey, which is denied by the respondent, may be true. However, having regard to Ms Walsh's obvious dislike for the respondent, I am not satisfied that more probably than not it is. In any event it would be an act of inappropriate sexist behaviour to be looked at against the background of all the evidence in the case.

Mr Rundle put that the applicant's claimed attempts to obtain work during the program, immediately after he had left it and then again after he received the letter of 30 September 1999 supported the contention that he was not genuinely looking for work.

It was put that during the program the respondent looked for some customer service type (or office) jobs, then reverted to going to warehouses and similar operations and only went back looking for office type jobs after receiving the letter.

On examination the respondent's job application log does not entirely support the suggested allocation in the type of jobs sought. For example, he applied to Kalamazoo on 17 September 1999 for an office type job and to Impala Kitchens on 22 September 1999 for a paperwork job. In any event, I do not find it surprising that the applicant would, on being cast adrift, go to the areas of employment with which he was familiar, nor that, having received the letter that he did, he should pay particular attention to the type of employments that had been highlighted in the program.

It is not difficult to find apparent oddities and inconsistencies in the applications for employment of long time unemployed workers. On the one hand persistence and effort is encouraged, on the other what might seem to be inappropriate applications are used to suggest lack of genuiness. Workers do not carry out a detailed analysis before applying for jobs - hoping that something might turn up, as does occur from time to time.

Experience in this Court teaches that constant applications for work and equally constant rejections, with various levels of politeness, are found very distressing and humiliating by most workers. The respondent may not be so effected but I think that unlikely. I accept his rejection of Mr Rundle's suggestion that he filled in his log "as a way to fill in (his) time".

Ms Levey made the point that the respondent did not have an ID which she said was a requirement of the Commonwealth Government Job Search Scheme. This, she said, indicated to her that the applicant had not been looking for employment. It would seem probable that she had not seen the respondent's Job Leads Form which is annexed to his Affidavit of 8 November 1999. The log shows a great many applications for work from October 1997 and the probability, on the evidence before me, is that those applications were in fact made and were genuine.

I think the probability to be that the applicant's attempts to find employment have been genuine. It follows that I am not persuaded that more probably than not they are not genuine.

I am not satisfied that the applicant employer has established that the respondent worker refused to cooperate with the Kairros program. Further I am not satisfied that the respondent was not, at any relevant time, seeking suitable work.

In the circumstances the applicant employer has not made out the grounds upon which it seeks the declarations and orders sought in the Notice of Motion. The Notice of Motion is dismissed.

The applicant employer is to pay the respondent workers costs of the Notice of Motion.

Mr G P F Rundle instructed by Hunt & Hunt appeared for the applicant employer.

Mr D M Re instructed by Leigh File & Associates appeared for the respondent worker.