Issue 10: October 2013

Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson [2013] NSWWCCPD 49

(a) finding Mr Thompson was a “worker” for the purposes of the legislation;

(b) determining that Mr Thompson was injured while in the course of his employment and arising out of his employment, and

(c) determining that employment was a substantial contributing factor to the injury.

Held: The Arbitrator’s determination was revoked and an award was made for the employer. 

Discussion and findings

1. The four essential features of a contract of employment are:

(a) there can be no employment without a contract;

(b) the contract must involve work done by a person in performance of a contractual obligation to a second person. That is because the essence of a contract of service is the supply of the work and skill of the worker;

(c) there must be a wage or other remuneration, otherwise there will be no consideration, and

(d) there must be an obligation on one party to provide, and on the other party to undertake, work. (see The Modern Contract of Employment, Ian Neil SC and David Chin, 2012, Lawbook Co) [31].

2. The Arbitrator erred in finding that the Club made a contract of employment with Mr Thompson. There was no work done by Mr Thompson in performance of a contractual obligation to the Club [33].

3. The very essence of a contract of service, namely, the obligation on one party to provide, and on the other party to undertake, work, was missing in the present matter. Mr Thompson had no obligation to perform the duties of the pension officer. There was no evidence that he accepted the position in return for a promise of remuneration or that he had any obligation to perform activities of a pension officer [34].

4. Mr Thompson was paid, as described by the minutes of the Club’s annual general meeting, an “Honoraria” [35]. That was a voluntary payment or a gift, which was not made under a contractual obligation. The Club was not obliged to pay Mr Thompson for his activities as the pension officer and Mr Thompson was not obliged to perform those duties, just as he was not obliged to perform the duties of a director (save for his obligations under the Registered Clubs Act 1976), or any of the other activities he performed on the various committees with which he was involved with the Club [38].

5. The Arbitrator erred in saying that Mr Thompson was “remunerated for work”. The Club paid Mr Thompson an honorarium, voted on at each annual general meeting, something it had no legal obligation to do. Therefore, the honorarium was not consideration from the Club in return for a promise from Mr Thompson to do work. It followed that no contract arose and Mr Thompson’s claim failed [39].

6. If there was a contract between Mr Thompson and the Club, the question arose as to whether it was a contract of service.

7. In Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16, Mason J said that a “prominent factor” in determining the nature of the relationship is the degree of control which is exercised. His Honour said that the importance of control lies not so much in its actual exercise, though that is relevant, but in the right of the employer to exercise it (Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; 93 CLR 561). It is the totality of the relationship between the parties which must be considered [41].

8. In the same case, Wilson and Dawson JJ observed that the “modern approach” is to “have regard to a variety of criteria”, though this approach has its limitations because not all the accepted criteria provide a relevant test and none is conclusive. Their Honours acknowledged that the question is one of degree “for which there is no exclusive measure”. Dealing with the control test, their Honours said that “[i]t remains the surest guide to whether a person is contracting independently or serving as an employee” [42].

9. Mr Thompson did not point to evidence that the Club either controlled his activities or had the right to do so. The evidence was that Mr Thompson’s role as a pension officer was “autonomous”, that he did not report to anyone, and that there was no supervision, direction or instruction given to him. That evidence suggested that the Club did not exercise control over Mr Thompson, or reserve the right to do so, and was strongly against a finding that he was a worker [44].

10. That Mr Thompson underwent training to perform the duties of a pension officer, because it was a specialised activity, did not mean the Club exercised control [45].

11. That the files generated by Mr Thompson’s activities as the pension officer were stored at the Club was of no significance. There was no evidence of what, if any, control the Club exercised over the files, or over Mr Thompson’s activities in respect of them [46].

12. Contrary to the Arbitrator’s finding, the indicia of employment was not in favour of Mr Thompson being a ‘worker’ [47]. In addition to the lack of control, not one of the usual features of a contract of employment was present. The Deputy President referred to:

(a) the lack of any fixed or regular hours;

(b) the lack of any right in the Club to dismiss or suspend Mr Thompson;

(c) the lack of any regular remuneration that related to or was commensurate with the duties performed;

(d) no uniform was worn while acting as the pension officer;

(e) the lack of any obligation on Mr Thompson to do the activity;

(f) the absence of tax deductions or superannuation contributions, and

(g) the absence of leave entitlements [48].

13. While no one matter is determinative, these matters, taken together, and “consider[ing] the whole of the circumstances of the relationship” (Connelly v Wells [1994] 10 NSWCCR 396), pointed strongly to Mr Thompson not being a worker [49].

14. The activities of the pension officer may well be “moderately specialised”, as was submitted, and the Arbitrator accepted, but that, on its own, did not indicate that Mr Thompson was a worker employed by the Club and did not diminish the need to consider the whole of the circumstances. Even if Mr Thompson established a contract did exist, the Arbitrator erred in finding that he was a worker under s 4.

15. In addition, cl 21 of the Club’s constitution expressly prohibits a Club “employee” from voting at any meeting of the Club or of the Board or from holding “office as a member of the Board”. While this was not a matter argued, and did not form the basis of the decision on appeal, it was another matter that was consistent with the conclusion reached [57].

Other matters 

16. It was submitted that the Arbitrator erred in finding that Mr Thompson’s injuries were received in the course of and arising out of his employment, and that that employment was a substantial contributing factor to his injuries. While the Arbitrator dealt with those matters, she should not have done so, as the only issue disputed in the s 74 notice was whether Mr Thompson was a worker and no application for leave to dispute these further matters was made (s 289A(4)) [59]-[60]. The additional matters were highly relevant and it was quite extraordinary that they were not raised in the s 74 notice or the Reply [62].

(a) failing to provide sufficient reasons for his factual conclusions, and

(b) finding that the appellant had failed to prove that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the appellant within the meaning of s 11A of the 1987 Act.

Held: The Arbitrator’s determination was confirmed.  

Determination on Appeal

1. The question of reasonableness (s 11A) is one of fact: Commissioner of Police v Minahan[2003] NSWCA 239; 1 DDCR 57 (Minahan). An obligation is placed on an Arbitrator to provide sufficient reasons for conclusions of fact: s 294(2) of the 1998 Act. Any failure to provide such reasons may constitute an error of law: Housing Commission (NSW) v TatmarPastoral Co Pty Ltd [1983] 3 NSWLR 378 (Tatmar) [40].

2. The appellant’s complaints related to a suggested failure by the Arbitrator to “analyse relevant evidence” and failure to “give clear or logical explanation as to why” he accepted the evidence of the worker over that of the appellant’s witnesses. The appellant sought to raise matters not argued before the Arbitrator. There was no question that the action was in respect of discipline nor that circumstances required such action. The focus of argument advanced, and of the Arbitrator’s reasoning, concerned the conduct of the process itself. The facts relevant to conduct of that process were not in dispute [44]. In so far as it was suggested that the Arbitrator failed to provide sufficient reasons that argument was rejected (Tatmar) [45].

3. The task of the Arbitrator was to determine, upon an objective analysis of the facts, whether the relevant action was reasonable: Jeffery v Lintipal Pty Ltd [2008] NSWCA 138. The parties accepted, and the Arbitrator correctly observed, that the onus of establishing matters raised by s 11A was upon the appellant: Minahan [49].

4. The fundamental aspect of the Arbitrator’s reasoning which led to his conclusion on reasonableness was the appellant’s failure to follow its own procedures. The Arbitrator had found that there had been delay between the occurrence of the relevant incidents and the sending of the “first and final warning letter”. Whilst “delay” is in all respects a relative concept, it was an appropriate description of the interval between the occurrence of those incidents relied upon by the appellant and the despatch of the relevant correspondence [50].

5. That delay constituted non-compliance with the relevant procedures. Notwithstanding the requirement that such matters be conducted “speedily” there was a further delay in the present matter until 30 April 2012 before a meeting was convened as required. It was this “delay” that the Arbitrator had also taken into account [51].

6. The Arbitrator also determined that the withdrawal of the first warning letter after the initial meeting and subsequent issue of a letter “in similar terms” was unsatisfactory [53].

7. The Arbitrator took into account the entirety of the action to determine the question as to whether the steps taken were reasonable; this was consistent with Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 [55].

8. The appellant failed to comply with its own procedural requirements. The evidence also permitted the Arbitrator’s conclusion as to delay in the conduct of the relevant action. The Arbitrator had considered the action taken in its entirety and had concluded that such action had not been proven to be reasonable. Such conclusion was open on the evidence [56].

Other matters

9. The appellant sought leave to adduce additional evidence on appeal which was opposed by the respondent worker [19]-[20].

10. Leave was granted to admit into evidence two pages missing from the appellant’s witness’ signed statement. Despite failing to submit these documents at the Arbitration, after leave to do so was granted, it was held that the two pages should be admitted as the Commission may otherwise be misled concerning the evidence of that witness [23]-[25].

11. In respect of the second document sought to be tendered as fresh evidence, a drafted letter, it was held that leave must be refused as that document could have been provided prior to the arbitration with reasonable diligence. No argument was advanced that such refusal would cause substantial injustice [26].

(a) the sexual assaults and abuse did not happen, and

(b) the subject injury was caused by reasonable action in respect of transfer.

Held: The Arbitrator’s determination was confirmed. 

1. The worker’s first ground of appeal challenged the Arbitrator’s finding that the sexual assaults and abuse alleged by her had not happened. That conclusion was reached by the Arbitrator following his finding that the worker’s evidence was not credible. Error, it was argued, was demonstrated by the Arbitrator’s failure to take into account that:

(a) English was not the worker’s first language;

(b) the worker was “embarrassed and uncomfortable” concerning the abuse and assaults, and

(c) the worker was a poor historian. [54]

2. None of the matters complained of were capable of forming a basis upon which relevant error could be argued. The worker had, at all times, the benefit of a suitably qualified interpreter to assist her at the hearing. The worker elected to give much of her evidence in English, without placing reliance upon the services of that interpreter. There was nothing submitted, nor to be found in the transcript, which demonstrated that the worker in any relevant manner experienced difficulty with the language such that the evaluation of her evidence required any more scrutiny than that which was found in the reasons as expressed by the Arbitrator [55].

3. In so far as it was suggested that the Arbitrator failed to take into account the worker’s embarrassment and discomfort and that she was a poor historian, it was noted that her allegations were plainly and comprehensively stated by her in evidence. That evidence was rejected because, in the Arbitrator’s view, there existed marked inconsistencies. It was that inconsistency that led to his conclusion that her evidence “lacked credibility and was unreliable”. The suggestion that the worker did not report these events because she was embarrassed and uncomfortable was itself expressly rejected by the Arbitrator. As was recorded by the Arbitrator, the worker’s case was that she reported the events to her superiors and her treating doctor. It was assumed on appeal that such evidence constituted part of the inconsistency which the Arbitrator had found [56].

4. The worker’s complaints were directed to the Arbitrator’s factual findings, which were made following an evaluation of the worker’s credibility as a witness. The worker failed to demonstrate that that finding was against “incontrovertible facts or uncontested testimony”, or, that the finding was “glaringly improbable” or “contrary to compelling inferences” and therefore failed to establish error: Fox v Percy [2003] HCA 22; 214 CLR 118 [57].

5. The second ground challenged the Arbitrator’s finding that the psychological injury received by the worker was wholly or predominantly caused by the hospital’s reasonable action, in terms of s 11A, in respect of transfer [59]. It seemed to be argued that the hospital had not, as it was required, established on the evidence that its action with respect to transfer was reasonable. It was argued that the failure of the respondent to interview a fellow worker, in respect of complaints regarding poor work standards, demonstrated that the action of transfer was unreasonable [60].

6. The Arbitrator accepted the evidence of the worker’s superior; that evidence included a statement that she had relied upon the investigation and report of a responsible supervisor concerning the complaints of poor work standards. Such approach was found to be reasonable and nothing raised by the worker suggested the commission by the Arbitrator of any relevant error in reaching that conclusion: Irwin v Director General of School Education (unreported, Workers Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997) [61].

7. It was also argued that the failure to offer the worker work “in carpeted areas” amounted to unreasonableness. The necessity to transfer the worker to the toilet amenities was explained by the superior in evidence and that evidence was accepted. The Arbitrator’s acceptance of that evidence led, in part, to his conclusion as to the reasonableness of the action. The conclusion reached, that the action was reasonable, was open on the evidence and no relevant error was demonstrated [62].

Boniki Pty Ltd v Bevan [2013] NSWWCCPD 48

Challenge to factual findings; fact finder’s determination of weight to be ascribed to expert evidence

O’Grady DP

24 September 2013

Facts:

Ms Brooke Bevan commenced employment with Boniki Pty Ltd (the appellant) as an apprentice hairdresser in April 2007. Ms Bevan had earlier been employed as an apprentice with a different employer. That earlier apprenticeship came to an end when, notwithstanding the provisions of the Apprenticeship and Traineeship Act 2001, her employment was terminated after a short absence from work following injuries received by her in a motor vehicle accident which had occurred on 30 March 2007.

In December 2007, following a busy period of work, Ms Bevan experienced pain in both wrists and sought treatment from Dr Nguyen, her general practitioner. Ms Bevan continued working and was required to work quickly during many long shifts. The pain in her right wrist extended to her forearm and elbow, and pain was experienced in her neck. The painful symptoms continued and she was referred to a number of specialist doctors.

Ms Bevan was incapacitated for work during 2008 and, for a period from a date in August 2008, she was engaged by the appellant performing selected duties. By reason of painful symptoms Ms Bevan was unable to continue that work.

Between August and December 2009, Ms Bevan obtained employment with another hairdresser performing administrative duties. Ms Bevan ceased that employment by reason of her reaction to medication that had been prescribed by her general practitioner. Ms Bevan attempted retraining, but did not return to employment. The painful symptoms continued. Since early 2011 she experienced pain in her left shoulder as well as those symptoms experienced in her neck and right upper limb.

In September 2011, Ms Bevan made a claim against her employer in respect of lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. Liability in respect of permanent impairment arising from injury to the cervical spine and left upper extremity was declined by the respondent employer. An offer to settle in respect of the claim of injury to the right upper extremity was made. That offer was not accepted and the matter came before the Commission.

The appellant denied the allegation concerning injury to the neck and left upper extremity, but accepted the injury to the right upper extremity. The Arbitrator found the worker had suffered a consequential condition to her left shoulder by reason of the need for “excessive use of her left arm to spare the right [arm]”. A finding was also made that Ms Bevan had received an injury to her neck in the course of her employment.

The issue in dispute on appeal was whether the Arbitrator erred in:

(a) finding that the worker received injury to her cervical spine (neck) as alleged

Held: The Arbitrator’s determination was confirmed.

1. The Arbitrator placed considerable reliance upon the near contemporaneous report of neck pain made by Ms Bevan to a specialist doctor. That the Arbitrator had accepted the evidence of Ms Bevan concerning the occurrence of those symptoms at that time was clear. Nothing raised by the appellant in submissions suggested that such acceptance was not open to the Arbitrator [29].

2. It was clear that neck symptoms and the causal connection of those symptoms to the demands of work performed by Ms Bevan in December 2007 was expressly accepted by two specialist doctors. The evidence of a different specialist doctor (Dr Bosanquet), in which he retracted his original opinion which included a diagnosis of work related regional pain syndrome involving various anatomical regions including the neck, was found by the Arbitrator to be unsatisfactory. Such finding was based upon the absence of any explanation expressed by that practitioner as to why there was no relationship between the neck pain and the work related injury earlier diagnosed. Such a finding and the rejection of that practitioner’s evidence, was one open to the Arbitrator. It was a matter for the Arbitrator to determine the weight to be given to the expert medical evidence. Nothing raised in argument by the appellant suggested that his conclusion was made in error [30].

3. The appellant placed considerable emphasis upon the alleged “failure” of Ms Bevan to inform a specialist doctor (Dr Ellis) of the circumstances and consequences of the motor vehicle accident in 2007. It was suggested that that doctor’s evidence carried no weight because of the “inaccurate and inadequate” history recorded by him [31].

4. The Arbitrator noted that that doctor considered the relevance or otherwise of the motor vehicle accident in his last report, and concluded that the accident was “unrelated to [Ms Bevan’s] present condition”. The Arbitrator accepted that view and such a conclusion was open. That acceptance followed an acknowledgment by the Arbitrator that that doctor had not recorded neck symptoms occurring immediately after the motor vehicle accident [32].

5. The appellant failed to demonstrate relevant error concerning the Arbitrator’s finding of injury to the cervical spine. It was noted that the state of the evidence in support of Ms Bevan’s claim, including the expert evidence raised by the appellant, was in many respects unsatisfactory. However, for the reasons above the Arbitrator’s conclusion was open on the evidence and the appeal failed [33].