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Accident Compensation Cases

Roberts v Accident Compensation Corporation (DC, 22/06/15)

Judgment Text

Judge A N MacLean
This appeal follows an unsuccessful application for review by the appellant which, after dismissing the more substantive application for want of jurisdiction had also declined to award costs. 
The appeal now before this Court relates to both dismissals, in particular arising out of certain actions of an employer under the accredited employer part of the Act but also the costs order. 
The substantive issue has a relatively narrow focus. 
Factual Background 
The appellant over the relevant period had been employed by A F Logistics (“AFL”) which was an accredited employer. 
Over the period between 29 February 2012 to some time in November 2012 AFL and the appellant were involved in a series of decisions regarding weekly compensation due to injuries. 
While it seems there had been some differences between them relating to the appropriateness of suspensions from benefits which AFL were paying as an accredited employer they have all been either resolved or to the extent they are still extant are involved in another separate review application. 
The substantive appeal and primary focus of this appeal is in respect of a particular letter dated 7 November 2012 from AFL to the appellant. 
After commenting on other payroll and/or administration errors and, setting that all aside, the letter stated: 
“The amount of $865.95 still remains outstanding. This amount relates to difference of annual leave paid at your full rate of pay to compensation entitlements paid at 80% of your ordinary pay. ”
As it happened the appellant ticked a box at the bottom of the letter stating “I wish to repay the amount owing by offsetting the amount against 43.0 hours annual leave”. As an aside, but not relevant to this appeal, there are suggestions that that agreement may not have been given freely. 
The reviewer decided in respect of that substantive matter that he did not have jurisdiction because the letter was not a decision under the Accident Compensation Act and therefore was not reviewable. The respondent submits that any issues arising out of the letter are employment issues outside the jurisdiction of the Court. This was also primarily the reason given by the reviewer for declining costs namely that: 
“the matter was not an ACC based dispute but one particular to the employer/employee relationship: the letter of 7 November merely confirms an earlier stance of the employer and the review applications themselves did not adequately identify which aspects of any decision were being disputed. ”
The Act provides in s 6 a definition of ‘decision’ or ‘Corporation's decision’ as: 
“Includes all or any of the following decisions by the Corporation …  
A decision about which entitlements the Corporation will provide to a claimant. 
A decision about the level of any entitlements to be provided. ”
The respondent's submission is that the letter does not fit within that definition either directly or by analogy and while acknowledging that the list is not exclusive it does give guidance to the general character of decisions contemplated i.e. those that relate to a decision made about something a claimant is entitled to or ACC is required to do under the Act and that any decision has to have some clear link to the Act itself. 
The respondent further submits that the letter relates to annual leave payments between employer and employee and that annual leave payments are not entitlements under the Act but are governed by the Employment Relations Act 2000 and related employment legislation. 
In addition the respondent submits that in any event the letter was not sent by the respondent but by AFL and while some decisions of an accredited employer are deemed to be decisions of the respondent under s 184(i)(c) that is only “in relation to a work related personal injury that are made under an accreditation agreement”
The respondent makes the further point that Part 6 of the Act which governs accreditation agreements between the respondent and accredited employers essentially provides for the employer to manage the provision of the various benefits in exchange for a reduced levy and that nowhere in the accreditation agreement is there any suggestion that this in any way has a relation to annual leave or recovery of overpaid annual leave. 
Noting that part of the appellant's submission was that a decision like this made by the accredited employer is a decision where it is being made with “perceived authority as an accredited employer” the Respondent submits that cannot be correct because if that were the case all types of decisions made by an accredited employer in its capacity as an employer could be deemed decisions by the respondent under the Act and subject to review procedure to the exclusion of other jurisdictions in particular the specialist employment jurisdiction of the Employment Authority and the Employment Court. 
At the hearing I traversed with counsel whether there was any useful authority to clarify this point and the only case that counsel could identify was an Employment Court decision of the Employment Court S C Austen v Silverfern Farms Limited1
| X |Footnote: 1
[2014] NZEMPC 30 ARC 88/81 
where the Chief Employment Court Judge observed when commenting on the jurisdictional boundaries between the exclusive preserve of the Accident Compensation scheme and that of the employment related jurisdiction: 
“I conclude however that the fields of employment and accident compensation law are not so neatly and absolutely ring fenced, at least so far as the ability of employment institutions to consider the accident compensation regime in determining matters properly within the province of employment law adjudication. That is particularly so where, as here, the employer has assumed the role of insurer and rehabilitator of its employees who have suffered workplace accidents. So long as the Court's examination of these documents and their applications of the facts of the case that are relevant for personal grievance considerations and any decisions about them are for that purpose and not to decide compensation entitlements, those issues are not out of bounds. ”
For practical purposes in the context of this appeal that takes the matter no further but brings one back to the key issue here as to whether essentially the question of reduction of compensation entitlements to holiday pay are concerned is an ACC matter or an Employment matter.. 
The appellant's submission is that the decision is a decision falling under s 6(i)(d) i.e. “a decision about which entitlements the Corporation will provide to a claimant”
The respondent points to s 69 of the Act which spells out the entitlements provided under the Act as follows: 
Rehabilitation comprising treatment social rehabilitation and vocational rehabilitation. 
First week compensation. 
Weekly compensation. 
Lump sum compensation for permanent impairment. 
Funeral grants, survivors grants, weekly compensation for the spouse. 
The respondent argues that the decision incorporated in the letter of 7 November is not about whether the Corporation should provide compensation or the extent of that or any of the other entitlements described above, but rather relates to the employer decision not to pay more than the statutory minimum in respect of Holiday pay entitlements under the Holidays Act. 
The respondent also suggests that while an accredited employer may elect to provide more than the statutory amount of Holiday pay this is a discretionary matter for the individual employer and as such is not a decision for the Corporation noting that clause 13.3(f) of Framework for the Accredited Employers Programme(SR200/1)states: 
“Nothing in this paragraph precludes the accredited employer from providing more assistance to the employee than the statutory minimum. ”
The respondent submits therefore that the issue in this case is not whether the appellant was being paid the wrong entitlements or the calculation of entitlements was incorrect but that the decision by AFL was not a decision by the Corporation in respect of Accident Compensation Act related entitlements because payments of compensation at 100% of an employee's salary (whether by annual leave payments or otherwise) is at the employer's discretion and is not a decision open to the Corporation.. 
Analysis and Discussion 
Absent any directly relevant authority with relation to the status of holiday pay some guidance is afforded by the case of Sim v ACC2
| X |Footnote: 2
[2016] ACC 62 
which was looking at whether or not holiday pay from pre-incapacity earnings should be taken into account for the purpose of calculation of entitlement to weekly compensation post accident. The outcome of the appeal is not relevant for this appeal but the case usefully points out that the legislative authority for holiday pay comes from the Holidays Act 1981 which generally entitles a paid holiday for up to a defined period after the conclusion of a year at work s albeit with room for negotiation of abatement if a full year has not elapsed. 
To an extent therefore, while that decision makes the point that holiday pay is regarded as post-incapacity earnings for the purpose of the abatement provisions it implies that Holiday pay is not an Accident Compensation Act related entitlement but a Holidays Act entitlement arising out of an Employer/Employee relationship.. 
I note that the argument before me in effect was a re-run of the argument before the Reviewer and I have carefully read the analysis of the reviewer. 
Whilst it is open to this Court to disagree completely with the reasoning process of the reviewer it is incumbent on the Appellant to demonstrate that the reviewer was wrong and I cannot fault in any way the reasoning process on this point. I therefore agree that the letter of 7 November was not a reviewable decision. 
Accordingly the appeal is dismissed with respect to that matter. 
So far as costs are concerned one can detect a degree of exasperation about the somewhat muddled way the application review proceeded and it had further strands which are not relevant in this appeal. 
I can see no reason to disagree with the reviewer's conclusion on the costs issue and that appeal is dismissed also. 

[2014] NZEMPC 30 ARC 88/81 
[2016] ACC 62 

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