June 2024 Newsletter and Cases Update

Welcome to our latest Newsletter and Case Update for 2024, where we aim to keep you up to date with all that is happening in the law affecting workplaces, and with what we have been doing here at KJK Legal.

INTRODUCTION

In this edition, you can expect to read about:

• Some recent cases from the South Australian Employment Tribunal (SAET);
• The Right to Disconnect – case law;
• Some proposed legislative amendments to the Return to Work Act;
• KJK Legal’s golf superstar; and
• The retirement of our Managing Director, Mark Keam.

Save the Date!

Self Insurers of South Australia Inc (SISA) August Forum – Friday, 16 August 2024

It is set to be a busy few months for the KJK Legal team, as we are also proud to announce that we will be sponsoring the SISA’s August Forum on 16 August 2024.

Details: Getting to grips with Complex Regional Pain Syndrome.

Join our Chrissy Psevdos, as we hear from Dr Dilip Kapur, Anaesthetist and Pain Medicine Specialist, and delve into the issues surrounding diagnosis, treatment, and assessment of CRPS.  Dr Kapur will also discuss the proposed changes to the Impairment Assessment Guidelines, which look to improve some of the difficulties presently experienced in diagnosis of CRPS in the workers compensation jurisdiction. Our Tracey Kerrigan will then provide an update on permanent impairment assessments, and how to best prepare your referrals in order to achieve the most appropriate and accurate outcome.

Registration is now open. Visit SISA’s website here for further details.

SISA Closing the Loop – Thursday, 19 September 2024

KJK Legal are proud to announce their ongoing sponsorship of the Self Insurers of South Australia (SISA) Closing the Loop Conference.

Once again, this successful series will be held at the Morphettville Racecourse and the 2024 Conference plans to focus on up-to-date safety, wellness and return to work issues. The theme for this year is ‘Prepare, Perfect, Protect’, and will aim to have sessions that allows participants to:

• Prepare to execute their work and/or personal life role;
• Perfect processes and ensure the best possible safety and return to work outcomes for employees; and
• Protect employees with improved mental health practices, technological advancements, and procedural governance.

Not only is our team excited to be a part of what is sure to be another beneficial day for participants, we are looking forward to catching up with as many of you as we can.

Registration is now open. Visit SISA’s website here for further details.

Both Sides of the Fence – Friday, 22 November 2024 at Adelaide Oval

KJK Legal are proud to announce their ongoing sponsorship of the Both Sides of the Fence Seminar 2024 presented by The Society of Labour Lawyers (SA).  Not only is our team excited to be a part of what is sure to be another beneficial day for participants, we are looking forward to catching up with as many of you as we can at the Adelaide Oval.  Do not forget to put the date in your diaries and register to attend this great event.

Register your interest at Both Sides of the Fence – Workers Compensation Seminar 2024.

Recent decisions from the South Australian Employment Tribunal

Longford v Department for Education [2024] SAET 11

Topic: Whether the employer impermissibly relied upon information that post-dated a determination to re-determine a claim

Commentator: Matilda Wise

Background

Ms Longford (the worker) was employed by the Department for Education as a pre-school teacher.  The worker made a claim for loss of wages and medical expenses as a result of a chronic laryngeal hypersensitivity condition which she said arose out of the course of her employment around 1 June 2021.  At the time of her claim she was certified fit for modified duties, until the school closed for the Christmas school holidays in December 2021.  In February 2022 the Department accept the worker’s claim for medical expenses only.  A few days later the worker produced a work capacity certificate to say she was medically unfit for suitable duties, as her specialist considered her voice needed rest and rehabilitation.  In August 2022 the Department made the decision to accept the worker’s claim for weekly payments, backdated to February 2022.

In early 2023, the Department received a number of anonymous reports from ReturnToWorkSA containing screenshots of posts taken from the worker’s domestic partner’s Facebook page.  The Department did their own investigation into the complaints and found images on Facebook pages of the worker, her partner, and his car racing team, which depicted her in numerous social and recreational settings between October 2021 and April 2023.  The Department considered the images of the worker were inconsistent with her incapacity that she reported during an ADL assessment and to her case manager.  They chose to re-determine the worker’s claim to be rejected for both medical expenses and weekly payments.

When the Department re-determined the worker’s claim, they did not explain what information they had become privy to that caused them to want to re-determine her claim.  Therefore, the worker filed an Application for Directions, seeking summary judgment, and to find out this information in the alternative.  The Department also made an application for an order for disclosure for further information from the worker i.e. her Facebook posts from 1 July 2021 to present.

Issue

The issue in this case was whether the Department had sufficient grounds to re-determine the worker’s claim in accordance with section 31(9) of the Act.

Held

Her Honour Deputy President Eaton found the worker’s case in support of a summary judgment was made out on the following basis:

• The worker did not deliberately withhold information that she should have provided the Department before the original determination was made, and therefore the determination was not made on a false basis and had not satisfied the criteria of section 31(10)(b).  The Department did not identify in the re-determination letter or subsequently in the proceedings what they said the worker withheld.
• The information the Department relied upon to make their re-determination was created after the two separate determinations of the worker’s claim.  Therefore, the Department had not satisfied section 31(10)(c) of the Act, as the alleged inconsistency between the images on Facebook and the worker’s reported symptoms related to circumstances occurring after her claim was accepted.
• However, the images from Facebook constituted a change of circumstances which may or may not lead to a variation in the worker’s entitlements going forward.

Therefore, Her Honour accepted the worker’s argument the Department should have reconsidered her entitlement to ongoing compensation by way of investigation and falling under section 48 of the Act, rather than via sections 31(9) and (10).  The redetermination dated 26 April 2023, rejecting the claim for medical expenses and weekly payments, was set aside.

Her Honour also found the Department’s argument the matter contained facts and legal issues that warranted the matter to be heard by way of a full trial, was not made out.  The Department argued that the images obtained questioned the worker’s credibility generally, and therefore the trial disclosure process would likely uncover further evidence which would support their re-determination.  Her Honour found that sending this matter to trial based on the Department’s application for further disclosure would be an impermissible fishing expedition.

Key Takeaway

This case is an excellent reminder that employers can only re-determine a worker’s claim in accordance with section 31 (9) and (10) if they can sufficiently prove a worker has withheld information that should have been provided to them as part of the determination process, and prior to the determination being made, and the specifics of the withheld information should be appropriately identified in any re-determination.

A link to the full text of the case can be found here.

Paul Halliwell v Department for Correctional Services [2024] SAET 14

Topic: The production of CCTV footage where the footage is relied on in the determination of a claim

Commentator: Chrissy Psevdos

Background

Employed by the Department for Correctional Services (the Department), the worker alleged an injury to his left knee sustained on 3 May 2023.  By decision dated 6 July 2023 the Department rejected the worker’s claim.  Within the decision, the Department relied on a statement from the worker, a medical report, and CCTV footage of the incident, in order to support its rejection.

The Department alleged the CCTV footage showed no evidence of any twisting motion or limping (as alleged by the worker) during the reported timeframe.

The Department resisted production of the CCTV to the worker during the dispute resolution proceedings.

Issue

On referral of the matter to Judicial Determination the worker’s solicitors pressed for unqualified production of the CCTV footage of the incident in question, which the Department had refused to provide, on the basis that either:

• The worker had a complete memory of the incident, in which case he could recount it without the need to refresh his memory by reference to the CCTV footage;
• The worker had an incomplete memory, in which case he could say what he could recall;
• Or the worker had no recollection, in which case he could say so;
• The worker’s evidence could not be the result of reconstruction, having had the benefit of the CCTV footage.

The Judge considered the application of Rule 57(4) and 57(6)(d) of the of the South Australian Employment Tribunal Rules 2022 and suggested the worker could potentially be directed to give his evidence-in-chief, regarding the circumstances of the alleged injury, orally.

Held

The Judge found there was no good reason why the CCTV footage should not be produced.  The Judge determined the principles of natural justice and procedural fairness compelled the production of the footage.

Furthermore, noting the Department had relied on the CCTV footage in its decision to reject the worker’s claim, then without a copy of it the worker was denied a reasonable opportunity to respond to the adverse determination made against him, and this needed to be corrected immediately.

In dismissing the application for directions, the Judge ordered the Department to produce the CCTV footage to the worker’s solicitors within 7 days.

Key Takeaway

Noting that most, if not all, lay witnesses give their evidence-in-chief through witness statements and this has been a long-standing practice in this State for over 25 years at the SAET, and its predecessor the Workers Compensation Tribunal, unless the circumstances are exceptional, the usual practice of evidence-in-chief through a witness statement following disclosure and production should prevail.

A link to the full text of the case can be found here.

Marthenis v Return to Work Corporation of South Australia [2024] SAET 15

Topic: MMI

Commentator: Tracey Kerrigan

Background

This case relates to the issue of MMI and whether the worker had achieved that when assessed by the accredited assessor, Dr Begg.  Dr Begg had assessed the worker as having a whole person impairment of 27% and as such the worker was not a seriously injured worker as he did not reach the threshold for a psychiatric injury.

Subsequently, the worker was examined by Dr Blakemore, who considered the worker’s condition had deteriorated after the PIA assessment.  The worker argued the assessment of Dr Begg should be set aside.  At trial he was not successful , and Deputy President Crawley found there was no basis to assert the worker had not reached MMI at the time of Dr Begg’s assessment.

The worker then appealed, and argued there were 2 questions of law raised by the decision of Deputy President Crawley.  The Full Bench disagreed and found there were no questions of law raised on the appeal.  The Full Bench was satisfied the trial judge had properly reviewed the issue of MMI, and that Dr Begg had properly satisfied himself MMI had been reached at the time he made his assessment.

Key Takeaway

The issue of MMI is something that the assessor must consider, and it will take a lot for a dissatisfied worker to subsequently establish they were not at MMI at the relevant time.

A link to the full text of the case can be found here.

The Right to Disconnect

Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162

Topic: Right to Disconnect

Commentator: Suzana Jovanovic

Background

We have previously written about the ‘right to disconnect’.  However, since our last newsletter, the Federal Court of Australia handed down a decision which outlines factors to consider when determining whether additional hours requested from an employee are reasonable or not.  The case of Dorsch involved a worker who alleged his employer required him to work more than 38 hours a week.  Amongst other things, the worker claimed he was required to work unreasonable additional hours without being adequately compensated, and without his employer having regard to his health and relationship.

Issue

Section 62 of the Fair Work Act provides an employer must not request or require an employee to work more than 38 hours for a full-time employee unless the additional hours are reasonable.  An employee can refuse to work additional hours if those hours are unreasonable.  So, what is reasonable/ unreasonable?

Test

In determining whether the additional hours are reasonable, the following factors need to be taken into consideration:

• Any risk to the employee’s health and safety from working the additional hours;
• The employee’s personal circumstances, including family responsibilities;
• The needs of the workplace or enterprise in which the employee is employed;
• Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of working additional hours;
• Any notice given by the employer of any request or requirement to work the additional hours;
• Any notice given by the employee of his or her intention to refuse to work the additional hours;
• The usual patterns of work in the industry, or the part of an industry, in which the employee works;
• The nature of the employee’s role and the employee’s level of responsibility;
• Whether the additional hours are in accordance with averaging terms in a modern award, enterprise agreement or arrangement agreed to by the employer and employee;
• Any other relevant matter.

Held

Here, the worker was unable to prove his employer imposed upon him a requirement to work excessive hours or that his workload was excessive.  The worker “failed to establish, with the required precision when and what he says the hours were that he worked” or who “required” him to work the hours in question.

Key Takeaway

So, whilst an employee can exercise a right to disconnect from 26 August 2024 (or 26 August 2025 for small businesses), one still needs to take into account the above factors, and there needs to be an element of precision by an employee who claims the additional hours requested by his / her employer are unreasonable.

A link to the full text of the case can be found here.

Proposed amendments to the Return to Work Act 2014

The SA Parliament is currently considering the Return to Work (Employment and Progressive Injuries) Amendment Bill 2024.  A large part of the bill relates to section 18 and the obligation to offer suitable employment and seeks to expand that obligation.  There has been a lot of information about that issue, and we have addressed that with you in the past.

But the lesser-known area of the Bill relates to what are generally referred to as ‘dust diseases’, such as asbestos related conditions and silicosis.  Many employers would never experience such claims, but for those who do they do provide significant challenges, particularly in terms of assessing permanent impairment.

Often the conditions are terminal, and this raises the issue of when can a PIA occur as the claimant may never reach MMI.

The Bill substitutes references to MMI both in the Act and the Impairment Assessment Guides to the concept of ‘stabilisation’.  A work injury in this context is considered to have ‘stabilised’ if the worker’s condition is unlikely to change in the next 12 months with or without medical treatment.

It is anticipated this will enable terminal conditions to be assessed for permanent impairment at a much earlier date.  There are also amendments to the average weekly earnings provisions which impact on these claims as well, where exposure/injury may occur much earlier than when the claim is made, and which can otherwise result in anomalies in the way average weekly earnings are calculated.

Firm News

KJK Legal’s Golf Superstar!

Retirement of our Managing Director, Mark Keam

As always, should you have any queries, feedback, or comments on anything we have discussed above, or advice on any workplace legal needs, then please do not hesitate to reach out to one of us.

If you wish to undertake further reading in relation to any of the decisions discussed above, they can be found on the Austlii website.