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"Unsatisfactory conduct": Workplace insurer slammed for compliance failures

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Return To Work SA has been forced to review its dispute processes after being hit with a scathing judgement in the state Employment Tribunal, which criticised its “unsatisfactory conduct” and argued a “failure to comply” with rulings would see insurance premiums increase for SA businesses.

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The finding was handed down in June after Return to Work – the state’s workplace injury insurance scheme, previously known as WorkCover – launched an appeal to an earlier ruling that a claimant, Renee Leighton, should be considered a seriously injured worker on an interim basis under the scheme.

But a full bench comprising Tribunal president Justice Steven Dolphin and deputies Mark Calligeros and Anthony Rossi issued a scathing rebuke, after the corporation’s counsel advised that Return To Work would not be proceeding with the Appeal – on the morning of the hearing.

Court transcripts detail that the counsel declared “he had received instructions a week earlier that the Corporation would not be proceeding with the Appeal, but final detail of the instructions with respect to proposed orders was not received until the morning of the hearing of the Appeal”.

That was despite the Full Bench earlier notifying Return To Work that it was “most concerned with the non-compliance with” the tribunal’s previous orders, and receiving “no response… to that expressed concern”.

Refusing to give leave for the appeal to be abandoned, the Tribunal noted that “the conduct of the Corporation – from the time of the institution of this Appeal, and consistently thereafter – has been unsatisfactory”.

“This was an Appeal that had no real prospect of success,” it said.

“The disregard for the orders made by the [earlier Tribunal] and [the corporation’s] failure to promptly report instructions to not proceed with the appeal have resulted, in a busy jurisdiction, in a morning set aside for hearing an appeal and the preparation time, being effectively costs thrown away.

“A failure to comply with orders made by the Tribunal increases costs to the parties, the costs paid by employers by way of premiums in the scheme, the cost to the community more generally associated with those impacts and unnecessary costs thrown away through the wasted resources of the Tribunal.”

It went on to note that the corporation’s actions had further “unnecessarily delayed the conduct of other matters, including matters where the parties have dutifully complied with orders made”.

While the Tribunal noted that an “occasional lapse in compliance” could be excused, “there can be no justification for the persistent failure to comply in this matter with the associated failure to communicate with the Tribunal”.

“There is a professional duty to comply with orders of the Tribunal and to keep the Tribunal properly informed of important developments in the proceeding,” it determined.

“In this case the deficiencies are also associated with the Corporation, which is a regular party to proceedings in this jurisdiction – and that is an additional concern.”

It noted that “the deficiencies in this matter are not isolated”.

“Indeed, they may have become too commonplace in this jurisdiction,” the Tribunal argued.

“Perhaps the Tribunal has been too tolerant in the past in relation to the failure to comply with its orders in a timely manner.

“Parties should not expect such an approach to be ongoing.”

It dismissed the Appeal, ruling Leighton was entitled to costs.

In a statement to InDaily, Treasurer Rob Lucas – who has ministerial oversight over Return To Work SA –  acknowledged “the failings identified by the Tribunal in this particular case”.

However, he insisted the issues identified were not endemic.

“I am advised that a thorough review of Return To Work SA’s disputes was conducted with its claims agents and legal providers and it indicated that this matter was an aberration and by no means representative of the way in which Return To Work SA conducts its litigation in the Tribunal,” Lucas said.

“In addition, Return To Work SA is continuing to work with its claims agents and legal providers to review its processes to ensure all disputes and appeals must be managed professionally, in a timely manner and in accordance with the SA Employment Tribunal rules, practice directions and orders.”

He said if there was “an unavoidable reason why an order cannot be complied with, the SAET must be advised in advance of the due date and an extension of time sought”.

Lucas said the matter in question had now been settled with the claimant.

“Return To Work SA agrees that the conduct of this particular matter falls short of the expectations of a model litigant in the Return to Work scheme,” he said.

“We take these obligations seriously and, as a statutory corporation funded by the employers of South Australia, Return To Work SA is well aware that its litigation must be conducted efficiently and effectively, avoiding unnecessary delay and keeping litigation costs to a minimum. 

“Making sure employers’ costs are contained within reasonable limits so the impact of work injuries on South Australian businesses is minimised is a legislative imperative for Return To Work SA… our efforts in this regard are reflected in SA’s average premium rate, which is the lowest it has ever been in the history of the WorkCover and Return to Work schemes.”

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