March 2025 Newsletter and Cases Update

Firm News

Team Member update

Lauren Knappstein

Administrative staff

Many of our clients and colleagues would have received correspondence from our wonderful Legal Secretary, Irene Glapa over the years.  Irene will be taking an extended (and well deserved) break which means that you will be hearing from our new administrative staff members, Irene Jarman and Lorraine Allison.

Doyle’s Guide rankings

Doyle’s Guide is an independent, nationally recognised publication listing firms and lawyers who have been identified by the legal profession and clients for their expertise.  We are proud to announce that KJK Legal has once again been recognised as a Leading Workplace Health and Safety Law Firm by Doyle’s Guide.  A big congratulations to Tracey Kerrigan and Neville John who have also been recommended as Leading Workplace Health and Safety Lawyers this year!

February 2025 – Client seminar featuring Paul Dewing

Sponsorships

RSPCA Million Paws Walk

Save the Date

SISA Closing the Loop conference

KJK Legal are proud to announce their ongoing sponsorship of the Self Insurers of South Australia (SISA) Closing the Loop Conference on Thursday, 18 September 2025.

More details are to come, but in the meantime do not forget to put the date in your diary and keep an eye on SISA’s website for further information as it’s released.

The Society of Labour Lawyers (SA) – Both Sides of the Fence seminar

KJK Legal are also proud to announce their ongoing sponsorship of the Both Sides of the Fence Seminar 2025 presented by The Society of Labour Lawyers (SA) on Friday, 21 November 2025. 

Stay tuned for details of the 2025 program.  We look forward to seeing you all at that event as well later in the year.

Employment Law update

Superannuation Guarantee reforms to address unpaid superannuation

The government has released draft legislation to mandate payment of superannuation guarantee contributions on ‘payday’, instead of the current quarterly requirement.  This reform was announced by the Federal Government in the 2023-24 Budget – known as the Securing Australians’ Superannuation Package – and will take effect from 1 July 2026.

These legislative changes (once passed) will:

• assist employees in tracking when their super has been paid, receive compensation if super is unpaid, and increasing their retirement savings sooner;
• assist employers’ in meeting their payroll obligations and prevent build up of large payroll liabilities; and
• assist the Australian Taxation Office recover unpaid super.

Employers will be required to pay contributions to an employees’ superannuation fund within 7 calendar days of payday.  Limited exceptions are provided for new employees and small and/or irregular payments that occur outside of the ordinary pay cycle.

The superannuation guarantee charge (‘SG charge’) will also be updated to reflect the ‘payday’ requirements, meaning that employers will be liable to pay the SG charge if superannuation contributions are not received into an employee’s superannuation account within the 7 calendar days.

The superannuation guarantee contribution rate increases to 12% from 1 July 2025, with the rate remaining the same for the 2026 financial year.

Also of importance is the government’s advice that the Australian Taxation Office’s ‘Small Business Superannuation Clearing House’ will be retired from 1 July 2026.  The ATO will engage with small businesses in the lead up to these changes and provide support during the transition period.

Feedback on the draft legislation is open until 11 April 2025.

Recent Decisions of the South Australian Employment Tribunal

Return to Work Corporation of South Australia v Hill [2024] SAET 113

Topic: Whether receipt of leave payments during period covered by the consent orders to be taken into account

Commentator: Chrissy Psevdos

Background

In the decision of Hill [2023] SAET 93 Deputy President Judge Crawley determined that the Corporation was to pay the worker arrears of weekly payments of income support without making any deduction for personal leave.

The Full Bench was asked to consider whether or not personal leave taken and paid to a worker who is in receipt of weekly payments of income support is a prescribed benefit in accordance with section 37 of the RTW Act.

Issues

Whether the collateral benefits described in section 37 of the RTW Act are designed to compensate a worker for, a period of incapacity.

Section 37 provides that prescribed benefits are as follows:

(a)	any amount paid to the worker by the Corporation or a self‑insured employer in respect of an employment program provided or arranged by the Corporation or self‑insured employer for the purposes of this Act;
(b)	any of the following received by the worker from an employer:
	(i) any payment, allowance or benefit related to annual or other leave;
	(ii) any payment, allowance or benefit paid or conferred by the employer on the worker’s retirement;
	(iii) any payment, allowance or benefit paid or conferred under a superannuation or pension scheme;
	(iv) any payment, allowance or benefit paid or conferred on the retrenchment, or in relation to the redundancy, of the worker;
(ba)	any prescribed amount ordered by the Tribunal to be paid to the worker by the employer under section 18(5e);
(c)	any other payment, allowance or benefit of a prescribed kind.

Held

Deputy President Judge Calligeros and Deputy President Judge Rossi determined that the amount of weekly payments payable cannot be fixed until all the matters described above as a prescribed benefit are ascertained and applied.  That is the reason why orders commonly only refer to the rate of AWE and do not attempt to quantify the amount payable.

To do otherwise would ignore section 39(1)(a)(ii) and fail to observe the rule against double compensation – which provides that an applicant may not recover, in circumstances of more than one person having a liability, an amount that is in excess of the loss suffered.

Deputy President Judge Calligeros and Deputy President Judge Rossi considered a substantial amount of case law; but with specific reference to the matters of Local Government Association Workers Compensation Scheme (District Council of Mount Remarkable) v Cheriton [2014] SAWCT 47, Thompson v Armstrong and Royse Pty Ltd [1950] HCA 46 when reaching their decisions.

Furthermore, it was held that given there was no issue of fact to be determined, it would have been preferable to refer a question of law to a Full Bench of the South Australian Employment Court in accordance with section 22(1) of the South Australian Employment Tribunal Act 2014 rather than to decline to follow an earlier decision of a single Presidential Member on the same point.

Key Takeaway

There is an intention that the rule against double compensation has application to the construction of provisions of the RTW Act unless both payments are permitted to be received by the clear text of the provision.

Hussain v Return to Work Corporation of South Australia (No 2) [2024] SAET 114

Topic: Whether the Tribunal is empowered to order that a worker attended a medical examination to obtain medical expert opinion

Commentator: Chrissy Psevdos

Background

Following the delivery of his Honour’s reasons in Hussain [2024] SAET 98 the applicant filed a notice of appeal against the Order that he attend the examination with Dr Champion and an application for directions seeking to stay the operation of the order directing him to attend.

Issues

The application for directions was initially heard by the President and an order was made described as an “interim” order staying the operation of the order made by his Honour Deputy President Judge Rossi, until the application for directions was heard and determined by Rossi DPJ.

This of course meant that the applicant would not be required to attend the examination that had been scheduled by the respondent.

The respondent recognised the effect of the order made by the President but submitted that the situation was rescuable by utilising the leave that had been granted by Rossi DPJ which provided:

Liberty is granted to the parties to apply for further orders including liberty to the respondent Return to Work Corporation of South Australia to apply for further orders if the applicant does not attend the examination scheduled with Dr Champion at 11.00am on 25 November 2024.

The respondent submitted that order was broad enough to substitute a new date and time for an examination to be conducted by Dr Champion.  On that basis it was submitted that there was no need to revisit the reasons for the initial order that Mr Hussain attend the examination on 25 November 2024.

In the alternative the application for directions, sought by way of proposed order 2, was for Mr Hussain to be directed to attend the further scheduled appointment with Dr Champion on 24 February 2025.

The respondent submitted that the use of the leave granted was more appropriate as the applicant should not be permitted to advance further submissions as to the merits of the direction for the applicant to attend an examination to be performed by Dr Champion where that has been argued, has been the subject of reasons for decision, and there is an appeal to be heard and determined by a Full Bench.

The applicant submitted that irrespective of whether the current application for him to be examined by Dr Champion was pursuant to leave granted or by way of a further application for directions, the Tribunal is required to determine the further application on its merits and the applicant is entitled to advance further submissions.

Held

Ultimately, the Corporation were able to convince his Honour that the questions it wished to put to Dr Champion were indicative of a reasonably arguable case they wished to advance at trial.  The applicant has clearly pulled out all stops in the matter to avoid having to attend the appointment so as to prevent Dr Champion’s opinion assisting the Tribunal at trial determining the application for review of the decision which rejected the applicant’s application to be treated on an interim basis as a seriously injured worker.

His Honour concluded that there was no procedural unfairness to the applicant now that it was clear how the respondent intended to run its case at trial on two bases.  The first was the failure or refusal to attend the medical examination arranged and the second on the merits of the whether the applicant should be taken to be a seriously injured worker on an interim basis.

One possible outcome of the substantive proceedings is that the applicant did not fail or refuse to attend the examination then arranged to be assessed by Dr Champion, within the ambit of section 31(3)(b) of the RTW Act but did not meet the criteria to be treated on an interim basis as a seriously injured worker.

His Honour made a very important note in his judgment.

The pre-trial phase of proceedings may be dynamic.  Forensic decisions are made and may give rise to a response by another party to the proceedings necessitating a re-evaluation of the approach of the first party leading to trial.

It was noted that the application for review leads to a hearing de novo.  Whilst the potential disadvantage to the applicant in proceeding to trial, where the failure or refusal to attend a medical examination and the merits of his application being heard and determined at the same time was to be taken into account in the exercise of discretion, it did not automatically lead to the applications before his Honour being refused.

Thus, whether the discretion conferred should be exercised to require the applicant to attend the scheduled examination to be undertaken by Dr Champion, his Honour determined that it was reasonably required as part of the respondent’s preparation of its case to be presented upon the hearing of the substantive proceedings.  That outweighs any likely disadvantage to the applicant.

Key Takeaway

Whether the Presidential Members of the Tribunal will ultimately exercise their discretion to order that someone attend a medical examination will depend on whether the party seeking the examination is able to persuade the Tribunal that its intervention is reasonably required in the interests of justice and will be determined on a case-by-case basis.

Al-Shareeda v Return to Work Corporation of South Australia & Mitcon Formwork Pty Ltd (No 2) [2025] SAET 7

Topic: Costs

Commentator: Tracey Kerrigan

Background

In the initial case involving Mr Al-Shareeda, he pursued a claim for injuries to his head, neck, thoracic and lumbar spine, knees and right arm allegedly due to a fall at work in April 2018.  No claim or report of injury was made to the employer or any doctors until June 2021.

The matter proceeded to hearing and ultimately the worker was found to have “lied, deliberately omitted parts of his medical history to suit current circumstance, embellished or changed his version of events and present such implausible explanations of discrepancies that his evidence lacks credit”.  He was found to have fabricated the allegation of a fall at work.

Subsequently, both applicant and RTWSA made applications for costs to be awarded against the other party.

Issue

Was it reasonable for the applicant to be awarded costs against RTWSA and vice versa?  Section 106(3) provides that if the SAET considers a party has acted unreasonably in bringing proceedings or has acted frivolously or vexatiously in bringing or in the conduct of proceedings then the SAET can decline to make an order for costs, or reduce the amount of costs to which they may be entitled.

Held

Given the findings made that the evidence as to the fall at work was fabricated, the worker must have known from the outset that his claim was unreasonable.  Accordingly, the worker was not entitled to costs against RTWSA. The worker’s conduct was ‘so egregious’ as to warrant an order for costs in favour of RTWSA.

In discussing whether RTWSA was entitled to costs against the applicant, it was noted that the applicant was not put on notice as to costs by RTWSA.  That led to the judge reducing the amount of costs payable by the worker to RTWSA by 50%.

Key Takeaways

It is a high bar to overcome the usual discretion in the SAET to award costs to an injured worker even if their case is unsuccessful, but fraudulent behaviour should generally meet that hurdle.

Putting a worker on notice as to costs should be done at least prior to trial in order to produce the best outcome in a subsequent argument as to costs.

Holberton v Tasmea Limited [2025] SAET 8

Topic: Noise induced hearing loss

Commentator: Tracey Kerrigan

Background

The worker pursued a claim in respect to NIHL.  He was employed by Ottoway Engineering (a subsidiary of Tasmea).  He worked as a manager there from August 2012 to August 2016.  He mainly worked in the office adjacent to the workshop but also worked in the workshop.

He then worked for Ecospec Pty Ltd from January 2017 to January 2018.  He was then self-employed from January 2018 (Tube Solutions).  The work he did in self-employment was basically the same as what he did at Ecospec.

The claim was made against Tasmea as the last “noisy” employment.

The worker provided an affidavit of evidence.  This included evidence of noise exposure prior to OE, exposure at OE and alleged non-exposure at Ecospec and Tube Solutions.  Dr Fagan was called for the worker and Dr Tomich for the employer.  A witness from OE was called to give evidence about the level of noise in the workshop.

The judge identified a number of factual errors in the witness affidavits corrected in oral evidence.  A number of reports were obtained from the doctors, but these factual errors had to be corrected at trial.

Held

The worker was required to prove that he had NIHL and was employed in work involving exposure to noise.  The burden of proof then shifts to the employer (Tasmea) to refute the assertion that the hearing loss did not arise from OE’s employment.

The worker proved that he was suffering NIHL and that the work at Ecospec and Tube Solutions was not capable of causing NIHL.  Tasmea however successfully discharged their onus based on the combination of factual evidence and the opinion of Dr Tomich that any exposure at OE was insufficient to cause NIHL (specifically being exposed to about 90dB of noise between 1 and 2 hours per day whilst wearing hearing protection and working in a quiet environment for the rest of the day is unlikely to result in NIHL).

The judge was highly critical as to the standard of medical reports obtained from the experts and the lack of proper factual evidence/history being provided to the experts.

Key Takeaways

Review the affidavit evidence that is being provided when preparing a NIHL case for trialand seek supplementary comments from your expert as early as possible after receiving the worker’s affidavit and any other factual information.

Walter v Forestry SA [2025] SAET 15

Topic: Replacement of hearing aids

Commentator: Tracey Kerrigan

Background

The issue in this case is whether the worker was entitled to the costs of replacement hearing aids.  The worker had been receiving hearing aids paid for by the self-insured employer approximately every 4 years.  He had recently received new aids in 2024.

Unfortunately, soon after receiving the new aids, he lost them whilst out shopping.  The worker had had surgery on his left ear to remove a skin cancer and post-surgery found the left aid irritating.  He did not wear his hearing aids as much (prior to surgery he wore them all day).  Rather than only taking out the left aid he took to removing both in order to “not lose them”.  However, on the day in question whilst out shopping the left aid started to irritate his ear so he removed both and placed them in his shirt pocket, where he also kept his glasses case.  At some stage he removed his glasses and the inevitable occurred with the aids being lost and subsequently not being found.

The worker sought payment of further hearing aids.  The case proceeded “on the papers” as part of the Fast Track Stream process.

President Dolphin found the worker was careless in losing the hearing aids.  His lawyers submitted that the loss was not deliberate but the judge said that was not a relevant consideration as it does not take “into account the multiplicity of situations of accidental non-deliberate loss.  It cannot be a one size fits all approach…It is a matter of fact and degree.”

The judge found that there was a foreseeable degree of risk in where the worker stored the hearing aids and clearly found it very odd that the worker took both aids out when it was only the left one causing the issue.  This increased the risk of losing them.  The worker needed to take some responsibility for what occurred.

To balance the interests of both parties, the judge decided that the worker was entitled to reimbursement of only one of the aids, not both.  He also thought it would be unfair for the respondent to pay for both aids having so recently paid for new ones.  The situation may be different if the timeframe between the replacement and the loss was greater.

Key Takeaway

When asked to replace hearing aids because the worker has been careless, the facts of the loss and the time difference between the request made and the loss will be important.  Don’t apply a “one size fits all” rule, as ultimately it is a question of reasonableness and that is always dictated by the facts.

The SAET is willing to impose some degree of personal responsibility on workers to take care of what are expensive items.

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.