Acma v Sesame Gourmet Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Acma v Sesame Gourmet Pty Ltd [2024] NSWPIC 308
APPLICANT:	Arzu Acma
RESPONDENT:	Sesame Gourmet Pty Ltd
MEMBER:	Anthony Scarcella
DATE OF DECISION:	13 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); whether the applicant is a “worker” within the meaning of section 4 of the 1998 Act; injury not in dispute; applicant a director of the respondent; Teen Ranch Pty Ltd v Brown, Riverwood Legion & Community Club Ltd v Morse and Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson considered and distinguished; Stephan v Pacesetter Cleaning Services Pty Ltd & Anor considered and applied; Held – the applicant is a worker within the meaning of section 4 of the 1998 Act; the applicant suffered injuries to the lumbar spine and the right hip arising out of or in the course of her employment with the respondent on 10 March 2022 within the meaning of sections 4 and 9A of the 1987 Act; the matter is remitted to the President for referral to a Medical Assessor under section 321 of the 1998 Act for the assessment of the applicant’s whole person impairment; following the issue of the Medical Assessment Certificate, the matter will be relisted for a further preliminary conference to deal with the outstanding disputes, namely, the claim for weekly payments of compensation and medical and related treatment expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant is a worker within the meaning of s 4 of the Workplace Injury Management and Workers Compensation Act 1998. 2. The applicant suffered injuries to the lumbar spine and the right hip arising out of or in the course of her employment with the respondent on 10 March 2022 within the meaning of ss 4 and 9A of the Workers Compensation Act 1987. The Commission orders: 3. The matter is remitted to the President for referral to a Medical Assessor under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 10 March 2022 – personal injury and (deemed) – disease; (b) body systems: lumbar spine, right lower extremity (right hip) and the skin (scarring – TEMSKI), and (c) method of assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute dated 17 April 2024 and attached documents; (b) Application to Admit Late Documents lodged by the respondent dated 14 May 2024 and attached Reply and supporting documents, and (c) Application to Admit Late Documents lodged by the applicant dated 27 May 2024 and attached document. 5. Following the issue of the Medical Assessor’s certificate, the matter will be relisted before me for a further preliminary conference to deal with the outstanding disputes, namely, the claim for weekly payments of compensation and medical and related treatment expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Ms Arzu Acma, is a 53-year-old woman who is one of three directors of the respondent, Sesame Gourmet Pty Limited t/as Lokmades (Sesame Gourmet). Ms Acma alleges that she is employed by Sesame Gourmet as a working director.
On 10 March 2022, Ms Acma alleges that she slipped and fell on the freshly mopped floor of Sesame Gourmet’s premises and sustained injuries.
Ms Acma lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
On 30 May 2022, Employers Mutual Limited (EML), acting as the agent of NSW Self Insurance Corporation (icare), issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying that Ms Acma was a worker within the meaning of s 4 of the 1998 Act or a deemed worker within the meaning of s 5 and cl 2 of Sch 1 of the 1998 Act and therefore, had no entitlement to weekly payments within the meaning of s 33 of the 1987 Act or reasonably necessary medical and related treatment expenses as a result of injury within the meaning of ss 59 and 60 of the 1987 Act.[1]
[1] Application to Resolve a Dispute at pages 20-25.
On 21 April 2023, Ms Acma made a claim for weekly payments, medical and treatment related expenses under s 60 of the 1987 Act and lump sum compensation under s 66 of the 1987 Act.[2]
[2] Application to Resolve a Dispute at pages38-40.
On 17 July 2023, EML issued a dispute notice under s 78 of the 1998 Act denying an entitlement to lump sum compensation under s 66 of the 1987 Act on the same basis as its dispute notice dated 30 May 2022, that is, that Ms Acma was not a worker or deemed worker.[3]
[3] Application to Resolve a Dispute at pages 26-31.
On 5 January 2024, EML issued a dispute notice under s 78 of the 1998 Act maintaining the dispute and in addition, disputed that, if Ms Acma were found to be a worker or deemed worker (which was not conceded), she was not entitled to lump sum compensation under s 66 of the 1987 Act because her permanent impairment was not greater than the 10% whole person impairment (WPI) threshold imposed by s 66(1) of the 1987 Act.[4]
[4] Application to Resolve a Dispute at pages 32-37.
Ms Acma, through her lawyers, lodged an Application to Resolve a Dispute (ARD) dated 17 April 2024 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming weekly benefits compensation between 10 March 2022 and 14 August 2022 under ss 36 and 37 of the 1987 Act; reasonably necessary medical and related treatment expenses under s 60 of the 1987 Act; and permanent impairment compensation under s 66 of the 1987 Act as a result of the injuries sustained in the course of her employment with Sesame Gourmet on 10 March 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether Ms Acma was a worker within the meaning of s 4 of the 1998 Act;
(b)    alternatively, whether Ms Acma was a deemed worker within the meaning of s 5 and cl 2 of Sch 1 of the 1998 Act;
(c)    in the event that Ms Acma is found to be a worker or deemed worker, her entitlement to lump sum compensation under s 66 of the 1987 Act;
(d)    in the event that Ms Acma is found to be a worker or deemed worker, her entitlement to weekly payments of compensation within the meaning of ss 32A, 33, 34, 36 and 37 of the 1987 Act arising from her accepted lumbar spine and right hip injuries between10 March 2022 and 14 August 2022, and
(e)    in the event that Ms Acma is found to be a worker or deemed worker, her entitlement to medical and related treatment expenses under s 60 of the 1987 Act, as claimed.

Matters previously notified as disputed

The issues in dispute were notified in the dispute notices referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 5 June 2024. Mr James McEnaney of counsel appeared for Ms Acma, instructed by Mr Dilan Kasturi, solicitor and Ms Kavita Balendra of counsel appeared for Sesame Gourmet, instructed by Ms Felicia Thomas and Ms Samantha Torpy, solicitors.
During the conciliation phase the parties agreed as follows:
(a)    Ms Acma’s unsigned statements at pages 4 and 9 of the ARD are the same as her signed statements dated 30 March 2022 and 17 May 2022 at pages 7 and 12 of the Reply;
(b)    there is no dispute that Ms Acma sustained an injury to her lumbar spine and right hip on 10 March 2022;
(c)    in the event that there is an award in favour of Ms Acma in respect of the issue of worker within the meaning of s 4 of the 1998 Act or deemed worker within the meaning of s 5 and cl 2 of Sch 1 of the 1998 Act, then her lump sum claim will be referred to a Medical Assessor for the assessment of whole person impairment in respect of the lumbar spine, right lower extremity (right hip) and the skin (scarring – TEMSKI), and
(d)    following the issue of the Medical Assessor’s certificate, the matter will be relisted before me for a further preliminary conference to deal with the outstanding disputes, namely, the claim for weekly payments of compensation and medical and related treatment expenses.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD dated 17 April 2024 and attached documents;
(b)    Application to Admit Late Documents (AALD) lodged by Sesame Gourmet dated 14 May 2024 and attached Reply to ARD and supporting documents, and
(c)    AALD lodged by Ms Acma dated 27 May 2024 and the attached document.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Ms Arzu Acma’s evidence

In evidence there are statements by Ms Acma dated 30 March 2022,[5] 17 May 2022,[6] 29 March 2023[7] and 13 April 2024.[8] I will now refer to the relevant parts of those statements.
[5] Reply at pages 7-11.
[6] Reply at pages 12-15.
[7] ARD at pages 1-12.
[8] ARD at pages 13-17.
Ms Acma stated that she is married to Sedat Acma. She has three children of a former relationship, namely, Ersan Agacayak aged 33 years, Selin Agacayak aged 25 years and Evran Agacayak aged 15 years. Evran is autistic.
Ms Acma stated that she is the sole director of Impress Food Services Pty Limited t/as Cook & Co (Impress Food Services), which is a casual dining restaurant and café she formed with her ex-husband on 1 November 2010.[9] Her current husband, Sedat Acma, is the head chef and her son, Ersan Agacayak, and his wife also work for Impress Food Services. Ms Acma took over complete ownership of Impress Food Services in about 2016. The business name Cook & Co was registered on 20 September 2016.[10]
[9] ARD at page 242.
[10] ARD at page 241.
Ms Acma stated that Sesame Gourmet was established on 2 April 2014.[11] However, no business operated under the company name until Lokmades commenced operating on 15 June 2021. Lokmades is a take-away dessert shop and the business name was registered on 7 December 2020.[12]
[11] Reply at page 6.
[12] ARD at page 239.
Ms Acma stated that she was one of three directors of Sesame Gourmet, the other two directors being her husband, Sedat Acma and her son, Ersan Agacayak. However, a search produced by the Australian Securities and Investments Commission dated 13 May 2022, listed Sesame Gourmet’s directors as Arzu Acma and Sedat Acma.[13] In her statement dated 29 March 2023, Ms Acma stated that she and her husband were equal partners and directors in Sesame Gourmet.
[13] Reply at page 6.
Ms Acma stated that, in 2020, she and her husband had a significant surplus of funds in Impress Food Services. In late 2020, they decided to utilise those funds to open another business. She recalled discussions with her accountant, Mr Tolga Halacoglu, in about November 2020. She received advice that they could use the surplus funds as a loan to fund another business as long as they made regular repayments and paid interest to Impress Food Services. They then began looking for business options and decided that a dessert shop that only operated in the evenings would be a good choice for Ms Acma and her family.
Ms Acma stated that, in late 2020, she contacted a company in Turkey that supplied specialised equipment used to make lokmades (a type of dessert). The intention was to open dessert shops in multiple locations if Sesame Gourmet was successful.
Ms Acma stated that Sesame Gourmet borrowed $250,000 from Impress Food Services to start-up the dessert shop business. In December 2020, she leased premises and oversaw the whole fit out of the shop. The funds borrowed from Impress Food Services were used to purchase the necessary equipment and renovate the leased premises. Sesame Gourmet repays the loan to Impress Food Services on a weekly basis by way of bank transfer.
Ms Acma stated that it was her intention to eventually draw a wage or a salary from Sesame Gourmet for both her and her husband. She intentionally decided not to pull wages from Sesame Gourmet so that she could put her efforts and the money accumulated into building the business. She intended to begin drawing wages or a salary from Sesame Gourmet on the first anniversary after the business opened (15 June 2022). That is, about three months after her accident.
Ms Acma had conversations with their accountant about eventually drawing wages or salaries from Sesame Gourmet and the accountant recommended that they commence drawing a wage from the business. Ms Acma stated that their goal was to build the business brand and retain as much revenue within the brand as possible to facilitate its growth. She and her husband agreed that they would eventually be paid a set salary similar to that they were receiving from Impress Food Services.
Ms Acma stated that the cost of employing someone to perform the roles she was performing in Sesame Gourmet prior to her accident would have cost the business no less than $2,000 gross per week.
Ms Acma stated that Impress Food Services employed 11 people in its restaurant, including Ms Acma. Prior to her accident, she worked an average of five hours per day, seven days per week at Impress Food Services. Ms Acma also worked at Sesame Gourmet seven days per week, Monday to Friday from 6.00pm to 11.00pm and weekends from 5.00pm to 11.00pm.
Ms Acma stated that, prior to her accident, her duties at Sesame Gourmet included preparing the chocolate display section and nut section; tidying the ice cream refrigerator; setting up tables; getting the delivery apps in order; serving customers; making coffee; taking orders; running social media; being the manager on duty; handling the cash till; and closing the shop every day. Until about early January 2022, Ms Acma, her husband and son did the cleaning at Sesame Gourmet. Thereafter, they hired a cleaner, Mr Cuong Lam, who worked five days per week and also worked in the kitchen as a kitchen hand.
Ms Acma stated that, on 10 March 2022, she commenced work at Sesame Gourmet at 5.00pm. Ms Acma’s husband left the shop at 10.00pm. Three employees, Mr Tarek Bolad, Mr Srijan Karmacharya and Ms Zumara Mahjabeen, left the shop at 11.15pm. Ms Acma stayed back to perform the cleaning because it was Mr Lam’s day off. Ms Acma’s friend, Ms Nilgun Cikar, was in the shop helping her out as they were going to go out together afterwards.
Ms Acma described her accident and the lead up to it as follows:
“At midnight, I went and did the till and Nilgun went to the bathroom. We had finished cleaning. I took the money from the till, the eftpos receipts, the till receipts and the days [sic] takings and I carried them in my hand, as I walked away from the doorway near the end of the kitchen, towards the storeroom. Where the doorway is located, is where the machines for the delivery apps are and so I stopped and wrote down the takings from those; everything was in my hand (I don’t remember which one).
Then I walked into the storeroom, and I took around five or six steps. I was turning around to my right, to go into my office. I took another step; then my right foot slid out in front of me, and I fell onto my right side, and nothing broke my fall. I didn’t trip over anything, and I just fell, and I don’t know why.”[14]
[14] Reply at page 10 at [29]-[30].
Ms Acma stated that she was unable to get up off the floor. She slightly turned to her right, felt excruciating pain and slipped onto her back where she lay until the arrival of ambulance paramedics about 30 to 40 minutes later. Ms Cikar came upon her about 2.5 minutes after the fall.
Ms Acma stated that she was conveyed to Bankstown Hospital by ambulance. She underwent an X-ray in the emergency department, where she was told she would require a hip replacement. She also underwent a CT scan and was diagnosed with a right subcapital neck of femur fracture. She underwent surgery on 11 March 2022 by Dr Christopher Reitz, orthopaedic surgeon, who inserted three cannulated screws in her right side. She was discharged from hospital on 13 March 2022.
Ms Acma stated that her usual general practitioner is Dr Esin Ozme and that she also consults doctors at the City West Medical Centre in Auburn.
Ms Acma stated that, since her accident on 10 March 2022, she has been unable to return to work for Impress Food Services due to her injuries, apart from a handful of occasions when they were short-staffed and she did her best to step in and assist. On or about 10 October 2022, Ms Acma returned to work with Sesame Gourmet in a reduced capacity working, on average, 22 hours per week until about mid-July 2023. thereafter, she increased her working hours to an average of 40 hours per week.
Ms Acma stated that, since 10 October 2022, her duties at Sesame Gourmet have been restricted to serving customers; making coffees; lifting and/or carrying light objects/equipment and running the business’s social media content. During the course of her working day, it was common for her to experience flare-ups of her symptoms. When this occurs she takes breaks as needed, rests and takes pain relieving medication.
Ms Acma stated that, as a result of the injuries she suffered to her lower back and right hip on 10 March 2022, she continues to suffer from the following ongoing disabilities:
(a)    pain, stiffness and restricted range of motion in the lower back;
(b)    pain, stiffness and restricted range of motion in the right hip;
(c)    aches and occasional tingling and throbbing sensations in the right groin;
(d)    difficulty sleeping when rolling onto her right side;
(e)    early morning stiffness on awakening;
(f)    difficulty lifting and carrying heavy objects;
(g)    difficulty having sexual intercourse due to pain;
(h)    difficulty sitting, standing and walking for prolonged periods;
(i)    tingling sensations and pain on the scar on the right upper thigh when lying in bed, sitting incorrectly or bumping it;
(j)    self-consciousness of the scar on the right upper thigh due to its very noticeable dark purple colour on her fair skin;
(k)    difficulty carrying out pre-injury employment duties including carrying, lifting and moving furniture or heavy objects including chairs, tables, outdoor furniture, delivery boxes, milk crates, portable gas heaters and ottomans;
(l)    difficulty climbing up and down ladders to access storage units;
(m)     difficulty cleaning the work premises;
(n)    difficulty carrying out pre-injury domestic tasks such as mowing the lawn, cleaning the bathrooms, vacuuming and mopping around the house, and
(o)    difficulty participating in pre-injury social activities such as bushwalking and bike riding.

Mr Tolga Halacoglu’s evidence

In evidence, there is a statement by Mr Tolga Halacoglu dated 30 March 2023.[15] I will now refer to the relevant parts of that statement.
[15] ARD at pages 18-19.
Mr Halacoglu stated that he has been acting as Ms Acma’s accountant since about 2011.
Mr Halacoglu stated that Sesame Gourmet was established on 2 April 2014 by the accounting firm he works for.
Mr Halacoglu stated that he recalled a meeting with Ms Acma in about September or October 2020 during which she sought advice in respect of starting a new business and whether Impress Food Services could fund a new business. He advised Ms Acma that surplus funds from Impress Food Services could be used as long as it was taken as a loan by Sesame Gourmet and paid within a reasonable time together with interest. He recalled that Impress Food Services did have surplus funds in its business account. Lokmades was registered as the trading name of Sesame Gourmet on 7 December 2020.

Mr Halacoglu stated that Ms Acma emails him on a weekly basis with the hours worked by all staff across both businesses and he actions the payroll for both Sesame Gourmet and Impress Food Services. He was aware that, after Sesame Gourmet became operational, Ms Acma worked at both businesses but dedicated more time to Sesame Gourmet. During that time, Ms Acma continued to receive her weekly wages from Impress Food Services.
Mr Halacoglu stated that, whilst he could not recall specific dates, he did recall asking Ms Acma on multiple occasions if she wanted to draw wages from Sesame Gourmet. She told him that she did not need to at that point in time and would let him know when she was ready to do so. Mr Halacoglu understood that the pay Ms Acma and her husband were receiving from Impress Food Services was enough to fund their lifestyle at that stage. He was also aware that Ms Acma had forfeited drawing wages from Sesame Gourmet in order to allow the business to grow.

Mr Tarek Bolad’s evidence

In evidence, there is an undated statement by Mr Tarek Bolad.[16] I will now refer to the relevant parts of that statement.
[16] Ms Acma’s AALD dated 27 May 2024 at page 1.
Mr Bolad stated that he commenced employment with Sesame Gourmet on 7 June 2021 following an interview for the job by Ms Acma. He commenced work a week prior to the opening of the business because they were testing the food and the kitchen. He worked six days per week at about 6.25 hours per shift. Mr Bolad’s shifts always commenced an hour before opening time to enable him to perform the necessary preparations. He worked until closing time.
Mr Bolad stated that, prior to her accident, Ms Acma almost always arrived at work before him. She would still be at work for final closing and after all staff had left.
Mr Bolad stated that Ms Acma worked full shifts performing a diverse range of things. She served customers; made drinks and coffee; made desserts from the topping bar; cleaned, took and packed delivery orders; cleaned tables; and threw out rubbish. He could not recall a single day that Ms Acma was not at work prior to her accident.
Mr Bolad stated that, on the day of Ms Acma’s accident, they had worked together until he left at the end of his shift. Ms Acma stayed back to clean because it was the cleaner’s day off. He became aware of Ms Acma’s fall on the following day.
Mr Bolad stated that Ms Acma was off work for months following her accident. He was promoted to the position of supervisor and took on extra roles. He supervised the staff; tended to customer problems; accounted for the daily takings, including reconciliation of the delivery apps and eftpos; and closed the shop. He also trialled and trained new staff members and completed the orders list for the following day. These were all things that Ms Acma had done prior to her accident.
Mr Bolad stated that Ms Acma returned to work at a reduced capacity after a number of months. He continued in his role until his resignation in January 2024.

The treating medical evidence

The Bankstown-Lidcombe Hospital discharge summary dated 13 March 2022 recorded that Ms Acma presented on 10 March 2022 with right hip pain following a slip and fall at work onto her right hip.[17] The principal diagnosis was one of right subcapital neck of femur fracture. Ms Acma was managed surgically with a right hip operative fixation with three cannulated screws by Dr Reitz. She was discharged on 13 March 2022 in a clinically stable condition and prescribed daily Clexane injections to prevent blood clots whilst touch weight-bearing for six weeks and Endone for post-operative pain.
[17] ARD at pages 56-62.
On 25 March 2022, Ms Acma underwent an X-ray of her right hip and pelvis by Dr Brecher, radiologist, on the referral of Dr Reitz. Dr Brecher reported a mildly displaced oblique subcapital right femoral neck fracture associated with up to about 2mm of displacement of the fracture components; a partially visible radiolucent fracture line; and intact orthopaedic hardware.[18]
[18] ARD at page 86.
On 28 March 2022, Dr Reitz reported to Dr Ozme that Ms Acma came under his care after a fall at work where she fractured her right hip. The diagnosis was one of a minimally displaced subcapital neck of femur fracture. Dr Reitz performed a right hip reduction and screw fixation of the subcapital neck of femur fracture. Intra-operative imaging showed good hardware placement and alignment of the right hip. Dr Reitz opined that Ms Acma could return to some form of work about six weeks following surgery and a return to pre-injury activities between three months and six months. Physiotherapy would be required after the six week to eight week mark to improve her strength and gait.[19]
[19] ARD at page 97.
On 12 April 2022, Dr Reitz reported to Dr Ozme that Ms Acma was doing well. The wounds had healed well without signs of infection and the pain had started to settle. Repeat imaging demonstrated good hardware placement without complications. Overall, he was pleased with her progress. He advised her to continue with some deep vein thrombosis prophylaxis and to remain non-weight-bearing on her right leg on crutches.[20]
[20] ARD at page 100.
On 26 April 2022, Ms Acma underwent an X-ray of her right hip by Dr Brecher on the referral of Dr Reitz. Dr Brecher reported a mildly displaced oblique subcapital right femoral neck fracture associated with up to 3mm of displacement of the fracture components; three cortical compression screws transfixed the fracture; the orthopaedic hardware was intact; and there was a partially visible radiolucent fracture line.[21]
[21] ARD at page 87.
On 9 May 2022, Dr Reitz reported to Dr Ozme that Ms Acma commenced weight-bearing the previous week because she felt her hip was fine and the pain had markedly improved. He explained to her that it was too early to weight-bear. Recent X-rays demonstrated an intact right hip in good position with cannulated screws in situ. He was happy for her to progress to touch weight-bearing over the next six weeks. Dr Reitz referred her for X-rays and a bone scan to be performed prior to her next consultation.[22]
[22] ARD at page 99.
On 1 June 2022, Ms Acma underwent a nuclear medicine bone scan plus SPECT by Dr Dixson and Dr Lee on the referral of Dr Reitz. Drs Dixson and Lee concluded that the appearance was consistent with a healing fracture of the right femoral neck and post-surgical activity around the screws in the right femoral head. There was no convincing evidence of avascular necrosis.[23]
[23] ARD at page 88.
On 7 June 2022, Ms Acma underwent an X-ray of her pelvis and right hip by Dr Lee on the referral of Dr Reitz. Dr Lee reported that there had been further healing of the right neck of femur fracture with slightly reduced fracture lucency. The cannulated screws were in position. There were no features of hardware failure. There was mild osteoarthritic change involving both hip joints.[24]
[24] ARD at page 89.
On 19 July 2022, Ms Acma underwent an X-ray of her right hip by Dr Brecher on the referral of Dr Reitz. Dr Brecher reported intact orthopaedic hardware trans fixing a mildly displaced oblique subcapital right femoral neck fracture. The radiolucent fracture line remained partially visible. There was moderate to marked sclerosis of bone/callus formation located at the fracture site which appeared to be increased when compared to the prior study.[25]
[25] ARD at page 90.
On 28 July 2022, Dr Reitz reported to Dr Ozme that Ms Acma was doing very well. The wounds had healed well without signs of infection. Clinically, there was no focal tenderness over the right hip and there was a good range of motion. The hip was not irritable. An X-ray demonstrated good hardware placement with signs of union of the neck of femur fracture.[26]

The forensic medical evidence

[26] ARD at page 98.

Dr James Bodel: 25 January 2023

On 25 January 2023, Ms Acma consulted Dr James Bodel, orthopaedic surgeon, at the request of her lawyers. In evidence, there are two reports by Dr Bodel dated 25 January 2025.[27] I will now refer to the relevant parts of those reports.
[27] ARD at pages 46-55.
Dr Bodel took an occupational history, a history relating to Ms Acma’s injury on 10 March 2022 and a history of her treatment thereafter that was consistent with the unchallenged evidence. Dr Bodel had the advantage of viewing a short clip of the available closed-circuit television (CCTV) footage showing Ms Acma slipping and falling heavily on her right side as she turned a corner to go into her office on 10 March 2022. The CCTV footage was not in evidence before me, probably because there was no dispute in respect of injury.
Dr Bodel’s diagnosis was one of a subcapital fracture to the neck of the right femur and an injury to a lower part of the back.
Dr Bodel recorded Ms Acma’s current complaints as follows:
(a)    an ache in the groin;
(b)    a tingling and throbbing sensation in the groin;
(c)    waking from sleep when rolling onto the right side at night;
(d)    early morning stiffness when walking that takes some time to loosen-up;
(e)    aggravation of pain with prolonged standing or walking, and
(f)    difficulty with sexual intercourse due to pain.
Dr Bodel recorded Ms Acma’s current treatment to include Panadol for the relief of pain and some home-based exercises.
On examination, Dr Bodel observed that Ms Acma rose from the chair slowly and walked with a right-sided limp. There was an element of Trendelenburg gait pattern but it was a delayed Trendelenburg gait when she stood independently on the right side. There was a healed scar in the upper part of the thigh considered to be a mildly complicated surgical scar. She also had tenderness in the lower part of the back and reached forward in flexion with her hands to the knees. There was backache and right buttock pain at this point and also on extension with a slight restriction of lateral bending to the left. She climbed on the couch slowly. She had to lift her right leg up with her left leg because she did not have the power to do that independently. Straight leg raising was 80° on the left and 70° on the right when her knee was bent as she was unable to flex past 70° of flexion. She had a restricted range of hip extension on the right-hand side. With the leg out in extension, she had a better range of hip rotation and abduction and adduction. There was no restriction of knee, ankle or subtalar movement. There was no reflex abnormality or sign of sensory impairment in the lower limbs.
Dr Bodel listed and reviewed the medical imaging provided to him.
Dr Bodel opined that Ms Acma’s lower part of the back and right hip had been impaired as a result of the incident on 10 March 2022. He also opined that employment was the main and only substantial contributing factor to the injuries and that there were no other pre-existing abnormalities or conditions.
Dr Bodel noted that Ms Acma had commenced a graded reintroduction to work and opined that she was still partly incapacitated for work. He further opined that the main restrictions on her activities in the open labour market were to avoid prolonged standing, walking, carrying, bending, twisting or lifting.
In respect of Ms Acma’s prognosis, Dr Bodel opined:
“Her overall prognosis remains guarded because of the nature of the injury. It is unusual to have a high subcapital fracture in a person of this age but it has occurred and the twisting motion and the way she fell is the probable cause for it. There is no indication at this stage that there has been any avascular necrosis of the head of the femur and hopefully that will not occur. There is evidence in the literature that it can occur as a late complication, even as much as two or three years after the injury, but hopefully that will not be the case in this circumstance.”[28]
[28] ARD at page 51.
Dr Bodel opined that Ms Acma had reached maximum medical improvement and that her impairment was permanent. He assessed WPI at 12% (5% WPI in respect of the lumbar spine; a 2% WPI loading in respect of the activities of daily living that had been moderately compromised; 4% WPI in respect of the right lower extremity; and 1% WPI for a mildly complicated surgical scar under the TEMSKI scale).

Dr Robert Breit: 7 November 2023

On 2 November 2023, Ms Acma consulted Dr Robert Breit, orthopaedic surgeon, at the request of Sesame Gourmet’s lawyers. In evidence, there is a report by Dr Breit dated 7 November 2023. I will now refer to the relevant parts of that report.
Dr Breit took an employment history, a history relating to Ms Acma’s injury on 10 March 2022 and a history of her treatment thereafter that was consistent with the unchallenged evidence.
Dr Breit listed the documentation provided to him, which included a report by Dr Bodel dated 13 March 2023. The latter mentioned report was not in evidence.
In respect of Ms Acma’s present complaints, Dr Breit recorded pain across the low back and down towards the right hip, more than the left, which then radiated to the knees. She reported a sensation of pins and needles in front of the right thigh, particularly at night or if sitting on the right side. Movements were diminished. Stairs were negotiated with the aid of a banister and singly. Sometimes, there was a sensation that the leg may give way. If too much pressure was placed on the right leg it would ache. She is able to get to her feet and can walk quite a bit but finds that standing causes some pain. There is start-up stiffness which improves as she mobilises.
On examination, Dr Breit observed that Ms Acma was in no apparent distress, got up out of the consulting room chair without difficulty and had a normal gait pattern. She was able to stand on heel and tip toes. There was some tenderness in the lower lumbar region and the right sacroiliac joint. However, pelvic thrusts, pelvic compression and distraction did not produce any pain. Trendelenburg’s test was negative on the left and could not be undertaken on the right. She was able to forward flex almost to the ankle with a smooth rhythm of recovery and only slight loss of extension. Straight leg raising was not impaired by sciatic nerve root irritability and neurological assessment was entirely normal. In his report, Dr Breit reproduced a photograph of the surgical scar on Ms Acma’s right hip and noted tenderness from the underlying structures. Ms Acma did not have a fixed flexion deformity. She was able to flex to 90° with normal abduction and adduction. In a prone position, there was 30° internal and 20° external rotation. Leg lengths were equal.
Dr Breit made brief reference to the medical imaging provided to him. The bone mineral density study was normal. Post-operative X-rays confirmed the presence of three compression screws and a subcapital fracture of the right hip. There was marked lumbosacral spondylosis.
Dr Breit noted that Ms Acma presented in a straightforward manner.
Dr Breit diagnosed an aggravation of lumbar spondylosis and a subcapital fracture of the right hip due to the fall on 10 March 2022. He noted that the fall was a significant traumatic event.
In respect of Ms Acma’s prognosis, Dr Breit opined:
“It is guarded. There is not a lot of information about the lumbar spine, but she has had no treatment. The hip symptomatology is a concern, and in particular as to whether or not she is going to suffer avascular necrosis from the subcapital fracture.”[29]
[29] Reply at page 21 at [5].
In respect of further treatment, Dr Breit opined that Ms Acma required some treatment to her lumbar spine but ought to undergo an X-ray first. She should also undergo an updated X-ray of her right hip to ascertain whether there are any changes of avascular necrosis. He opined that, if avascular necrosis occurs, Ms Acma will require a total hip replacement.
Dr Breit opined that Ms Acma was fit for her preinjury duties as she had a good range of movement and her fracture had united. The duties were within her physical capabilities. He noted that she had already returned to work on lesser hours.
Dr Breit assessed WPI at 10% (5% WPI in respect of the lumbar spine; 4% WPI in respect of the right lower extremity; and 1% WPI for the surgical scar under the TEMSKI scale).
Dr Breit commented on Dr Bodel’s WPI assessment as follows:
“The findings are essentially the same, the point of difference relates to ADLs. I have indicated my reason for not giving a quantum. Dr Bodel has added 2%, which I consider unjustifiable considering this lady has returned to pre-injury duties. He has also failed to consider that there has been long-term assistance through NDIS because of an autistic child.”[30]
[30] Reply at page 23 at [12].

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will provide an outline of the parties’ submissions below.

Sesame Gourmet’s submissions

Injury is not in dispute. Ms Acma’s entitlement to weekly payments of compensation for the period claimed and reasonably necessary treatment and related expenses is not in dispute.
The only issue is Ms Acma’s status. Sesame Gourmet disputes that she was a worker or deemed worker within the meaning of the 1998 Act at the time of injury.
Ms Acma worked in both businesses. On her own evidence, it is clear that it was never Ms Acma’s intention to be paid wages by Sesame Gourmet whilst she was working there. The goal was to build the business and retain as much revenue as possible.
Mr Halacoglu’s evidence also confirms that, despite discussions with Ms Acma, it was not her intention to obtain a wage from Sesame Gourmet.
Accordingly, the scenario is a simple one, Ms Acma was working in the Sesame Gourmet business for free, which means that there is no difference between Ms Acma’s position and the position of a volunteer. Teen Ranch Pty Ltd v Brown[31] (Teen Ranch) examined the conditions under which someone could be considered a volunteer within an organisation. In that case it was found that the applicant was working for free. In the circumstances of that case, it involved altruism on the part of the applicant. A similar analogy can be made in Ms Acma’s case. Ms Acma was working for free for the benefit of her business. At no point in the near future was there ever an intention to be paid for the work she was doing.
[31] Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197.
Ultimately, it is Ms Acma’s obligation to provide the Commission with sufficient evidence to show why she was not a volunteer.

Ms Acma’s submissions

Ms Acma was not a deemed worker. She was not a contractor.
Ms Acma was plainly not a volunteer. It is not altruism to spend seven days per week performing the work Ms Acma was performing for Sesame Gourmet. The business is not a charitable organisation. The clear category of volunteers would not include a working director who intends to get money out of the company at some time in the relatively near future.
Amongst other things, Ms Acma was a worker at the front of the house performing remunerative type work for which she was, effectively, creating a claim on the business for an eventual payment.
It is Ms Acma’s own business and she has arranged it in particular ways that suit her. It is not correct to suggest that Ms Acma would not be taking a wage at any point in the near future. Ms Acma’s unchallenged evidence was that she intended to take a wage within about three months of her accident, being the 12 month anniversary of the business’s commencement.
Sesame Gourmet’s submissions ignore the practical reality that directors of businesses can make claims on the business where they are workers, so long as the claims are accounted for. Ms Acma had not done that at the time of her accident but she had accrued to the business the saleable value of her labour. Through the labour she described in her evidence, she has conferred on the business a value for which she has a claim. Further, her evidence is that she proposed and intends to make that claim.
Up to the time of Ms Acme’s accident, she had performed some nine months of quite serious labour for which she expected a return, being, at least, a wage in the near future, if not a direct claim on monies in the accounts. To say that she was not a worker under a contract of service ignores the reality of what she was doing. The duties Ms Acma performed were not directors’ duties as recognised under the Corporations Act 2021.

The question then becomes, was there a contract of service? Was there some agreement with the employer? Was there an agreement that the effort Ms Acma was putting in by doing the work be repaid to her? The answer is, yes. Both in terms of a direct salary and her ability to make a claim on the employer. The contract of service was implied. The forfeiting of her wage implies that she was entitled to make a claim on the business because she worked for it, but she was leaving it in the till until such time as she might need it or until such time that the business had progressed to a point where it could more readily withstand paying a wage to her.
Whilst there was no written contract of service, that was not a bar to a finding that there was a contract for Ms Acma to perform work in the business. The arrangement was that she was worth something to the business, namely, the value of her labour and that she would have a claim on funds later and eventually, a formalised salary. That did not change the nature of the relationship. All of which points to Ms Acma being a worker, albeit under a complicated contract. There was an intention to enter into legal relations.

Sesame Gourmet’s submissions in reply

There was no evidence before the Commission that Ms Acma had or has an entitlement to make the claim suggested in her submissions or that she intends to seek payment of her past wages.
In those circumstances, the only possible explanation is that Ms Acma was a volunteer.

FINDINGS AND REASONS

Was Ms Acma a worker or deemed worker?

The legislation and legal principles

Section 4 of the 1998 Act defines “worker” as a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, and whether the contract is oral or in writing). The definition goes on to exclude certain persons from the definition, none of which are relevant to this matter.
Section 5 of the 1998 Act refers to the deemed employment of workers and states that Sch 1 has effect. Clause 2(1) of Sch 1 provides that where a contract to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or is made with the contractor, who neither sublets the contracts nor employs any worker, the contractor is, for the purposes of the 1998 Act, taken to be a worker employed by the person who made the contract with the contractor.
Sesame Gourmet and Ms Acma both submitted that the latter was not a deemed worker within the meaning of s 5 and Sch 1, cl 2(1) of the 1998 Act. On the evidence, I agree with the parties’ submissions in this regard. Accordingly, I do not propose to deal with the issue of whether Ms Acma was a deemed worker.
The onus of proving a contract of service is on the worker. Establishing a contract of service involves principles of contract law such as offer and acceptance, consideration and mutual obligation. A contract of service requires a mutuality of obligation in the formation of the contract with the intention to create legal relations.[32] If there is clear evidence that a person offered services for reward and the proposed employer accepted the offer on the basis that payment for those services would be made, there will be an intention to enter into legal relations and a contract of employment will exist.
[32] Dietrich v Dare (1980) 30 ALR 407.
There are four essential features of a contract of employment (The Modern Contract of Employment, Ian Neil and David Chin, 2012, Lawbook Co). Those features are discussed in detail at pages 1-3 in that book and may be summarised as follows:
(a)    there can be no employment without a contract;[33]
(b)    the contract must involve work done by a person in performance of a contractual obligation to a second person;[34]
(c)    there must be a wage or other remuneration, otherwise there will be no consideration,[35] and
(d)    there must be an obligation on one party to provide, and on the other party to undertake, work.[36]
[33] Lister v Romford Ice & Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555 at page 587.
[34] Abdalla v Viewdaze (2003) 122 IR 215 at [23].
[35] Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at page 515.
[36] Forstaff Pty Ltd v Chief Commissioner of State Revenue [2004] NSWSC 573; (2004) 144 IR 1 at [91].
It is often unclear whether a relationship is one of employment. However, there are a number of criteria or indicia by which to gauge whether an employment relationship exists. The facts in each case must be carefully considered in order to balance the indicia both for and against a contract of employment. The principal criterion remains the employer’s right of control of the person engaged but it is not the sole determinant. In more recent times, the courts have favoured looking at a variety of criteria.
In the leading case of Stevens v Brodribb Sawmilling Co Pty Ltd[37] (Stevens), the High Court of Australia set out a number of relevant indicia. These include, but are not limited to, the following:
[37] Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16.
(a)    the mode of remuneration;
(b)    the provision and maintenance of equipment;
(c)    the obligation to work;
(d)    the timetable of work and provision for holidays;
(e)    the deduction of income tax;
(f)    the right to delegate work;
(g)    the right to dismiss the person;
(h)     the right to dictate the hours of work, place of work and the like, and
(i)    the right to the exclusive services of the person engaged.
The task of identifying who is a worker by applying the indicia is not always straightforward. Hollis v Vabu Pty Ltd[38] (Hollis) is a case in point. Vabu Pty Ltd operated a courier business known as Crisis Couriers. Mr Hollis was injured when a Crisis Courier bicycle struck him and he sued Vabu Pty Ltd for damages. The trial judge found that the bicycle couriers were independent contractors. Factors in favour of this finding included:
(a)    the couriers had to provide their own transport and pay their own running costs;
(b)    in earlier proceedings between Vabu Pty Ltd and the Commissioner of Taxation it was determined that the couriers should be taxed as independent contractors, not as employees;
(c)    the couriers received commissions, not wages, and
(d)    the couriers were permitted to operate through their own companies.
[38] Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21.
The finding was made despite evidence of a significant degree of control over couriers by the company. That evidence included requirements for the couriers:
(a)    to wear uniforms provided by the company;
(b)    to start work at a certain time and to work certain hours;
(c)    to accept the work given to them by the company;
(d)    to work in a manner directed by the company, and
(e)    to take leave only when permitted by the company.
Ultimately, the High Court of Australia upheld Mr Hollis’ claim, stating that too much weight had been placed on the fact that the bicycle couriers owned their own bicycles. They had little control over the manner of performing their work and, looking at the relationship as a whole, it should properly be characterised as one of employment. It is the totality of the relationship that must be considered. The factors set out in Stephens are merely a guide to establishing the nature of a relationship.
The High Court of Australia discussed both Stevens and Hollis in the recent decision of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[39] (CFMEU v Personnel Contracting), providing a reminder that determining whether an employment relationship exists is more complex than running down items on a checklist. The Court referred to the distinction between an employee and an independent contractor, being a person who serves in his employer’s business and a person who carries on a trade or business of his own.
[39] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.
CFMEU v Personnel Contracting provides an extensive and comprehensive discussion of the relevant considerations when examining whether an employment relationship exists. It is also poised to shift the focus onto the primacy of the contract to interpret the employment relationship. Where there exists a comprehensive written contract of employment between the parties, that should be the starting point to determine the relationship, rather than undertaking a balancing exercise. Hollis was not an invitation to broaden the inquiry beyond the contractual rights and duties of the parties.
In Teen Ranch the applicant worked as a volunteer with a non-profit Christian organisation that ran camps for teenagers. He received meals, accommodation and use of the camp’s facilities but no wages. He was injured when horse riding at the camp. He was awarded compensation by the trial judge, but his claim was dismissed on appeal. The Court of Appeal noted the applicant’s evidence that there was a moral obligation but no legal obligation to work with a non-profit Christian organisation. The Court held that, as there was no intention to enter legal relations, there was no contract and the applicant was a volunteer.
In Harris v Cudgegong Soaring Pty Ltd,[40] the applicant was permitted to live on the respondent’s airfield in return for acting as the caretaker of the airfield. He was injured testing a glider. The trial judge found that there was an intention to enter legal relations and that there was consideration from both parties. Teen Ranch was distinguished on the basis that, in this case, the applicant was not acting as caretaker out of altruism but to secure a necessity of life, namely, shelter.
[40] Harris v Cudgegong Soaring Pty Ltd [1995] NSWCC 18; (1995) 11 NSWCCR 678.
Directors of organisations are generally not regarded as workers. However, it is possible for directors to also be employees of the same company. This will depend on whether a contract of service is evident.
In Lee v Lee’s Air Farming,[41] the applicant, a director, was found to also be a worker as a provision existed in the company’s Articles of Association for Mr Lee to be employed at a salary to perform work as a pilot.
[41] Lee v Lee’s Air Farming [1961] AC 12.
In Stephan v Pacesetter Cleaning Services Pty Ltd & Anor (Stephan) the Court of Appeal held that, in the absence of an express contract of service, it is possible to infer the necessary contractual intention between a company and its injured director from the conduct of the parties.[42] The Court made such an inference in Stephan.
[42] Stephan v Pacesetter Cleaning Services Pty Ltd & Anor [1995] NSWCA 455.
In Stephan, Mr Stephan and Mr Cooper worked as part-time contract cleaners. They purchased cleaning contracts. At a later point in time, they incorporated a company, Pacesetter Cleaning Services Pty Limited (Pacesetter), of which they became directors. Pacesetter acquired the cleaning contracts. Invoices were sent in the name of Pacesetter to clients. The two directors, Mr Stephan and Mr Cooper performed cleaning work and engaged other assistance. Pacesetter paid no salary to the directors, who left funds accumulating in the company bank account. Pacesetter established few formal records and made no provision for sick pay or superannuation to its directors. Mr Stephan was injured on a journey alleged to be compensable and was rendered quadriplegic. In the Compensation Court of New South Wales, Thompson, CCJ dismissed the claim on the basis that he could not infer that a contract of service existed between Pacesetter and the injured director, Mr Stephan, so as to render him a “worker” within the meaning of the relevant workers compensation legislation at the time.
In Stephan, Rolfe AJA concluded, with Kirby, ACJ (as his Honour then was) and Cole, JA agreeing, as follows:
“This short narration of the facts, without more, leads me to the conclusion that each of the appellant (Mr Stephan) and Mr Cooper was, from 1 September 1989 to and including 3 December 1989, a director of and working for the company in the course of its office cleaning business. The very nature of the operation entailed, and was intended to entail, that the appellant (Mr Stephan) and Mr Cooper would work physically in the business for some time. This they were doing. The income derived from carrying out the work was paid to the credit of the company’s bank account. The company had purchased from the appellant (Mr Stephan) and Mr Cooper cleaning contracts. The only missing elements of employment were evidence of a contract between them and the company and the making of some regular payment to them. However, in the circumstances of this case, I do not regard either of those considerations of any significance. Looked at realistically, he would hardly have expected the appellant (Mr Stephan) and Mr Cooper, in the circumstances, I have outlined, to have fussed themselves about entering into a contract to do precisely what they intended should be done by the company. So far as the failure of the company to make a payment, other than the payment by way of loan to Mr Cooper, I find nothing strange about that. It was the intention of the appellant (Mr Stephan) and Mr Cooper to allow the company to build up its capital base. This is what was happening and, as the sole shareholders in the company, they were the parties, subject to any claim by creditors, entitled to those moneys. Their permanent employment during the daytime made it unnecessary for them to withdraw money from the company at that stage. However, in my opinion, this did not mean that they were not entitled to reimbursement from the company at some future stage for the work they had carried out from its inception.”[43]
[43] Stephan v Pacesetter Cleaning Services Pty Ltd & Anor [1995] NSWCA 455 at page 458.
In respect of Thompson, CCJ’s reasoning and conclusion, Rolfe AJA said:
“I think his Honour’s error stemmed, to some extent, from an attempt to find indicia of employment, which would apply in the case where there was not the coincidence of directorship and employment, which applied in the present case.
In my opinion, with respect, his Honour placed far too much significance upon these matters in the circumstances of this case.”[44]
[44] Stephan v Pacesetter Cleaning Services Pty Ltd & Anor [1995] NSWCA 455 at page 460.
In Dacas v Brook Street Bureau (UK) Ltd[45] it was held that a contract of service may be implied from the parties’ conduct and from the surrounding circumstances and from the work done.
[45] Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA (Civ) 217.
In Riverwood Legion & Community Club Ltd v Morse[46] (Morse), the applicant was elected a director of the respondent club in 1999. One day she attended the club for a function, tripped on some stairs and was injured. Roche DP held that the applicant was a director who performed none of the duties one would expect of an employee. Although the club voted to award the directors an honorarium, that was insufficient to amount to consideration. Roche DP concluded that none of the elements essential for the formation of a contract of service were present, in particular offer and acceptance, consideration and an intention to create legal relations.
[46] Riverwood Legion & Community Club Ltd v Morse [2007] NSWWCCPD 88.
In Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson[47] (Thompson), it was held that the applicant was not a worker employed by the club. The applicant was a director of the club and undertook the duties of a pension officer in return for payment of an honorarium. Roche DP held that the payment of an honorarium was a voluntary payment or a gift and not a payment made under a contractual obligation. Accordingly, there was no contract. In the alternative, if there was a contract, it was not one of service.
[47] Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson [2013] NSWWCCPD 49.

Consideration and findings

The unchallenged evidence is that Ms Acma is the sole director and an employee of Impress Food Services, which is a company that operates as a casual dining restaurant and café. Prior to her accident on 10 March 2022, she worked at the casual dining restaurant and café an average of five hours per day, seven days per week.
I accept Ms Acma’s evidence, corroborated by her accountant, Mr Halacoglu, that Impress Food Services had significant surplus funds in 2020 and that she and her husband decided to utilise those funds to open another business.
I accept Ms Acma’s evidence that, after considering business options, she and her husband decided that a suitable option would be opening a take-away dessert shop that would only operate in the evenings.
I accept Ms Acma’s evidence, corroborated by Mr Halacoglu, that Impress Food Services loaned the sum of $250,000 to Sesame Gourmet, where she and her husband are directors and equal shareholders. I accept that the loan funds were used to lease and fit out the dessert shop premises.
I accept Ms Acma’s evidence, corroborated by Mr Halacoglu, that it was her intention to eventually draw a wage or a salary from Sesame Gourmet for both her and her husband. She intentionally decided not to pull wages from Sesame Gourmet so that she could put her efforts and the money accumulated into building the business. This was also corroborated by Mr Halacoglu whose recollection was that the pay Ms Acma and her husband were receiving from Impress Food Services was enough to fund their lifestyle at that stage. He was also aware that Ms Acma had forfeited drawing wages from Sesame Gourmet in order to allow the business to grow.
I accept that it was Ms Acma’s intention to begin drawing wages or a salary from Sesame Gourmet on the first anniversary after the business opened, that is, on or about 15 June 2022.
The unchallenged evidence is that Sesame Gourmet has been operating as a take-away dessert shop since 15 June 2021. Prior to her accident on 10 March 2022, Ms Acma worked in the dessert shop seven days per week from 5.00pm or 6.00pm to 11.00pm each day.
I accept Ms Acma’s description of the nature of her duties whilst working in the Sesame Gourmet dessert shop between 15 June 2021 and 10 March 2022 as set out in [29] above. Ms Acma’s evidence in this regard was corroborated by Mr Bolad.
There is no dispute in respect of the history or the mechanism of Ms Acma’s fall on the premises of the Sesame Gourmet dessert shop on 10 March 2022.
There is no dispute that Ms Acma suffered injuries to her lumbar spine and right hip in the fall on 10 March 2022 and for completeness, I so find.
Ms Acma’s circumstances do not come within the meaning of deemed worker cl 2(1) of Sch 1 of the 1998 Act and neither party submitted that she did.
I reject Sesame Gourmet’s submission that the work Ms Acma was performing at the dessert shop was that of a volunteer. I also reject the submission that she falls within the Team Ranch line of authorities because she was working for free for the benefit of her business. The category of volunteer does not apply to Ms Acma when one considers the hours she was working in the dessert shop, the nature of her work there and importantly, the similar factual circumstances in Stephan and the Court of Appeal’s findings in that case. Stephan is still good law.
I am satisfied that there was an implied contract for service between Sesame Gourmet and Ms Acma because, on the findings of fact made above, it has been possible to infer the necessary contractual intention between Sesame Gourmet and Ms Acma. It can be clearly implied from the parties’ conduct, the surrounding circumstances and from the work performed by Ms Acma referred to above.
In this case, as in Stephan, it is not necessary to meticulously work through the Stevens and Hollis checklist of criteria or indicia. As Rolfe AJA concluded in Stephan, one should not place too much significance on finding indicia of employment in circumstances of a directorship and employment (a working director).

The starting point in this case is the implied contract for service. The contract involved work done by Ms Acma in performance of a contractual obligation to Sesame Gourmet with the intention to create legal relations. I am satisfied that Ms Acma offered services for reward and that Sesame Gourmet accepted the offer on the basis that payment for those services would be made. There was consideration for the reasons stated below.
As was the situation in Stephan, Ms Acma’s intention was to build up the company’s capital base and that is what occurred. She and her husband, as the shareholders in the company, were entitled to those monies, subject to any claim by creditors. As in Stephan, their permanent employment with Impress Food Services during the daytime made it unnecessary for them to draw money from Sesame Gourmet at that stage. However, as Rolfe AJA found in Stephan, that did not mean that Ms Acma was not entitled to reimbursement from Sesame Gourmet at some future stage for the work she carried out from the company’s inception.
Ms Acma’s role as a director of Sesame Gourmet can be clearly distinguished from the roles of the directors in Morse and Thompson, who were found not to be workers within the meaning of the legislation. On their respective facts, they were not what I have referred to as “working directors”.
Accordingly, I am satisfied that Ms Acma is a worker within the meaning of s 4 of the 1998 Act.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2024] NSWPIC 308

13 June 2024