Be aware that the employer witness may be subject to cross examination at the s81A hearing stage in consideration of the evidence they have provided.
- Two recent decisions in the Workers Rehabilitation and Compensation Tribunal in Tasmania have given rise to issues related to cross-examination at a s81A Tribunal hearing (disputes as to an employer’s initial liability for the worker’s claim). Each application for cross-examination was made by the worker and each was granted by the Tribunal.
- In Maintenance Systems Pty Ltd v M  TASCAT 66, Deputy President Clues ultimately found that rules of procedural fairness required cross-examination be permitted where the worker desired the opportunity to do so. This was so the worker had the opportunity to refute claims made by the Managing Director of the employer in a sworn statement admitted into evidence.
- Likewise, in The State of Tasmania (Department of Education) v B  TASCAT 49, Senior Member Jack also allowed the cross-examination of the employer witness despite noting that the intention of a s81A hearing is generally not to allow cross-examination witnesses. Essentially, where there are disputed facts and the answer to the questions raised would be substantially aided by cross-examination, the principles of natural justice should afford the parties an opportunity to cross-examine, but cross-examination is not a given in every s81A hearing.
Implications for you
These two decisions highlight the importance placed by the Tribunal on the opportunity to cross-examine witnesses where inconsistent evidence is adduced in a s81A hearing. They serve as a timely reminder that the rules of natural justice are to be followed in Tribunal hearings, which may sometimes lead the Tribunal to a decision that cross-examination is required. This is more likely when there is a very clear difference between the worker’s and employer’s evidence, and the worker wants to test the employer’s evidence to see if the employer has satisfied the onus of proof in terms of the s81A process for a reasonably arguable case.