Al Hadidi v Form 1 Building and Construction Pty Ltd [2023] NSWPICPD 42

Background

The Appellant (Al Hadidi) commenced proceedings in the PIC seeking weekly compensation in respect of a back injury he sustained on 9 September 2019 whilst working for the Respondent. He was claiming a PIAWE of $1800. In addition to his PIAWE, whether he was a “deemed worker” was also in dispute.

Ultimately, Member Homan conducted an arbitration and issued a COD, where she determined that the appellant was a “deemed worker” within the meaning of cl 2 of Sch 1 WIMA and that his PIAWE was $625.

The Appellant appealed this, alleging that the Member had made errors in fact and in law, when determining that the PIAWE was $625

Issues in Dispute

To summarise, the issues in dispute were that the Member erred in fact by determining:
(a) that the tax invoices and certain ABN belonged to the Appellant;
(b) that the PIAWE was $625 per week.

It was also alleged she erred in law by:
(a) failing to respond to substantial arguments;
(b) making determinations without putting the Appellant on notice
(c) requiring the appellant to Corroborate his evidence,

Decision

Ultimately, it was found that Member Homan had not erred in fact by determining that the tax invoices and ABN number belonged to the Appellant, and thus had not erred by considering them in the calculation of PIAWE.

It was reiterated that In order to challenge a Member’s factual decision, the Appellant is required to demonstrate the kind of error consistent with the principles in Roche DP in Raulston v Toll Pty Ltd and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd. That is that a Presidential Member can only find an error in fact, if the other probabilities so outweigh the option chosen by the Member, that it can be clearly said that the Member was wrong. It is not sufficient for it to be merely found that the Presidential Member would have drawn a different inference. Essentially, if two conclusions are open to acceptance, with the evidence finely balanced in both, it cannot be held that an error in fact was made because of a preference of view.

It was also held that Member Homan had not erred in law. She had noted the Appellant’s assertions but expressed dissatisfaction with his evidence because it was internally inconsistent, problematic, and unsupported by any documentary evidence.

Lessons for Employers
The key takeaway is that there is a high threshold that must be reached to prove that a Member made an error in law and especially in fact. It is not sufficient to appeal a decision on the basis that there is another conclusion available, or the Presidential Member could reach the alternative conclusion.

Contributor
Melissa Cuadros Lu

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.