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Suleski v. Pilbara iron company (services) Pty Ltd. - (23 Aug 2018)

Compensation not payable unless disease predominantly arose from discipline which was unreasonable and harsh on part of employer


In instant case, the Appellant (Mr Suleski), was employed as a crane supervisor by the Respondent (Pilbara Iron). At a meeting with his superintendent, Appellant was placed on a performance management plan. He subsequently developed a disease, characterised as either an adjustment disorder or depressive disorder. The disease rendered Appellant totally incapacitated to perform work as a supervisor, and all forms of work involving heavy machinery.

An arbitrator determined a dispute as to Pilbara Iron's liability to pay workers' compensation to Appellant. The arbitrator also found that, the disease was caused by stress that arose pre-dominantly from the implementation of the performance management plan, which was a form of discipline. The arbitrator made orders for the payment of workers' compensation to him under the Act. Pilbara Iron appealed against those orders to the District Court of Western Australia. The primary judge granted leave to appeal and allowed the appeal. The primary judge set aside the arbitrator's orders and the 'decision' that, the implementation of the performance management plan was unreasonable and harsh.

Section 18 of the Workers' Compensation and Injury Management Act 1981 provides that, if an injury of a worker occurs, the employer shall, subject to the Act, be liable to pay compensation. 'Injury' is defined by Section 5 of the Act to include a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree. However, a proviso to the definition of 'injury', read with Section 5(4), excludes a disease caused by stress that arose wholly or predominantly from his discipline, unless the discipline 'is unreasonable and harsh on the part of the employer'.

Under Section 247 of the Act, 1981, an appeal from an arbitrator to the District Court only lies with the leave of that Court, and leave can only be granted if 'a question of law is involved' in the appeal. A decision-maker may err in law by misconstruing or misunderstanding the nature and scope of his or her power, irrespective of whether or not the material before the decision-maker is capable of supporting his or her ultimate conclusion. A material misapprehension by a decision-maker of the nature and limits of his or her power ordinarily constitutes a jurisdictional error. So long as the misapprehension could have made a difference to the ultimate decision, the existence of jurisdictional error will not ordinarily be denied by evidence which is merely capable of supporting the ultimate decision.

In the present case, the question of whether the arbitrator exceeded his power by proceeding on the basis of a material misunderstanding of the scope of his inquiry is a question of law. In any event, nothing in the written and oral submissions advanced on behalf of Appellant provides any proper basis for doubting the correctness of the primary judge's conclusion. Nor do those submissions provide any proper basis for doubting the correctness of the primary judge's conclusions that, the arbitrator failed to undertake such an inquiry, and thus misunderstood the scope of the inquiry he was required to undertake. Therefore, leave to appeal under Section 254(b) of the Act is refused on the basis that none of the grounds of appeal have any reasonable prospect of succeeding.


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