Ahmadi v Spectrum Cladding

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT

Case No. L10848706

Mohammad AHMADI	Plaintiff
v
SPECTRUM CLADDING PTY LTD	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne (via WebEx)
DATE OF HEARING:	9-10, 13-14 September 2021
DATE OF DECISION:	10 December 2021
CASE MAY BE CITED AS:	Ahmadi v Spectrum Cladding
MEDIUM NEUTRAL CITATION:	[2021] VMC 20

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CATCHWORDS – Workers Compensation – Rejected Claim - Left Knee Injury - Whether a ‘worker’ – Whether a deemed worker – Whether injury arose out or in the course of employment – Capacity - Credit of the plaintiff – Video surveillance and contextual setting - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – ss. 3(1), 4(3), 39(1), 140, cl.9 of Sched 1.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr O. Lesage	Zaparas Lawyers Pty Ltd
For the Defendant	Ms S De Guio	Minter Ellison

HER HONOUR:

INTRODUCTION AND OVERVIEW

In May of 2019, Mr Mohammad (Mehdi) Ahmadi and Mr Jacob Ali, director of Spectrum Cladding Pty Ltd (‘Spectrum’), entered into an arrangement involving Mr Ahmadi performing Hebel (concrete panel) installation work for Spectrum on various building sites (‘the work’).
Mr Ahmadi has alleged that on 19 July 2019 he suffered injury to his left knee whilst performing work for Spectrum (‘the injury’). He seeks compensation for injury in accordance with the Workplace Injury and Rehabilitation Act 2013 (‘the Act’).
By notice of the WorkCover Agent dated 3 October 2019, Mr Ahmadi’s claim for compensation dated 5 September 2019 was rejected on multiple grounds including:
·He was not a ‘worker’ nor a ‘deemed worker’ under the Act.
·In providing services to Spectrum, Mr Ahmadi was carrying on an independent trade or business.
·Any injury (which was not admitted) did not arise out or in the course of employment with Spectrum as he was not employed by Spectrum.
·Any incapacity for injury was denied.
It was not disputed that the period during which Mr Ahmadi did the work for Spectrum was about 47 days, being from 21 May 2019 until 19 July 2019, (‘the 47-day period’).

The only witnesses who gave viva voce evidence were Mr Ahmadi and Mr Ali.

EVIDENCE OF THE PLAINTIFF

Background

Born in Afghanistan, Mr Ahmadi came to Australia in 2011 from Pakistan. In Pakistan, after completing a primary school education, he did manual work including cladding, carpentry and welding. He is aged 32 years and is married with three children. His primary language is Dari and he gave evidence via an interpreter.

From 2012, for about six years, Mr Ahmadi worked in a Colac timber factory. He was employed as a full-time production worker with CMTP Movability and Protection Solutions (‘CMTP’).

Regarding his CMTP employment, in cross-examination, Mr Ahmadi agreed he provided CMTP with his tax file number and completed various employment forms. His pay-slips showed wages of around $24 an hour, accrual of entitlements such as sick leave and employer contributions to superannuation.

As for prior injuries, in around 2012, there was an episode of left knee pain for which he saw a GP who said he could keep working. In around 2017, he made a WorkCover claim and was off work for about three months for a finger injury.

In or about early August 2018, Mr Ahmadi finished up with CMTP.

On 6 August 2018, he registered an ABN in his own name. He obtained a building industry OH&S ‘white card.’ About this time, he posted on a community page on Facebook: ‘looking for job welding cladding or Hebel job’ and included his mobile phone number.

The purpose of the Facebook post was ‘to get jobs and do jobs’. He did bricklaying, tiling, welding, cladding and installing Hebel panels. After that first post, he put up another Facebook post to get more jobs. He would change jobs if the money was not enough. For example, somebody paid him $150 per day so he left that job and posted again.

In cross-examination, Mr Ahmadi said, in total, he only advertised twice on Facebook. The first time he got no jobs. The second time he heard from Mr Ali and stopped advertising. Later he said he advertised maybe two or three times.

The Work with Spectrum

The day after a Facebook post on 21 May 2019, Mr Ahmadi received a phone call from Mr Ali who had seen his post. They had a discussion and agreed to meet the next day at a building site. Mr Ali asked him about his past experience in installing Hebel which he said he had. It was also agreed Mr Ahmadi would do an initial work trial, then the daily rate would be agreed.

At Mr Ali’s request, he texted photos of his ‘white card’ and drivers licence. He could not recall if was asked about having an ABN. In cross-examination, he denied Mr Ali spoke of having Hebel work, but the work may not be consistent.

After the work trial, there was a discussion about the rate of pay. Mr Ahmadi wanted $300 a day and Mr Ali only wanted to pay him $250 a day, then they agreed on a rate of $280 a day.

In cross-examination, Mr Ahmadi denied the discussion regarding rate had any connection with Mr Ahmadi not having his own tools. Mr Ali had just said he could not afford to pay him $300 a day.

On the first day of the work trial, Mr Ahmadi had told Mr Ali he didn’t have his own tools. The tools needed included: grinders, a drill, a circular saw, hammers and screws. The scaffolding would always be provided by the building company.

During the 47-day period, Mr Ahmadi did not work for anyone else That was because Spectrum was giving him enough work. He expected he would be working for Spectrum for five to ten years. This was because of Spectrum had a lot of jobs and Mr Ali was always happy with his work.

As for the work arrangements with Spectrum, Mr Ahmadi gave the following evidence:

o His usual hours were from around 7:00 to 7:30 AM to about 4:00 or 4:30 PM. His hours were set by his boss Mr Ali. He worked five or six days a week from Monday to Friday and sometimes on Saturdays.

o As he was still living in Corio, sometimes he would ask whether he could start late due to the distance he had to travel to get to work. Mr Ali said that was no problem.

o As for being provided with instructions or supervision, for the first few days Mr Ali shown him how to do the work. Sometimes Mr Ali would be on site and sometimes he would not. Over the 47-day period, Mr Ali would sometimes just show up and check his work.

o He had no tools himself and these were all provided by Mr Ali.

o Communication by text and phone call. He received text messages with job details and the address of the worksite. Also they would speak face to face on work sites.

o Mr Ali organised everything. Mr Ali dealt with the customers and arranged the work.

o In terms of getting paid for the work, Mr Ahmadi would give Mr Ali invoices that stated the number of days worked and the amount calculated, then Mr Ali would pay him.

o He did not get paid superannuation, sick leave, or annual leave. The arrangement was ‘no work, no pay’.

o He would sometimes refuse work for Mr Ali if he had family issues such as appointments at Centrelink.

o He was given a high-viz shirt by Mr Ali which he was expected to wear the whole time. The shirt had Spectrum’s logo on it and Mr Ali’s phone number.

o While working for Spectrum, Mr Ahmadi did not advertise his services elsewhere.

o He was not allowed to delegate work to other people. Mr Ali denied this.

In cross-examination, Mr Ahmadi denied he proposed to Mr Ali getting his cousin in to do some of work. At another point, he said he didn't know and couldn't remember.

In cross-examination, Mr Ahmadi disagreed there were no set start times. Mr Ali told him when to start. In relation to breaks, Mr Ali told him to take 30 minutes for lunch, 10 minutes for morning smoko and 10 minutes after 2:00 PM. Mr Ali denied this.

In cross-examination, it was put to Mr Ahmadi that he was an experienced Hebel installer who could and did work without supervision. Mr Ahmadi denied that saying Mr Ali was his supervisor, his boss and that ‘everything, everything he decide’.

At another point, Mr Ahmadi agreed he could do the work without Mr Ali being there, but that Mr Ali supervised him to say, ‘do this wall then this wall’. That was not just at first but at every site he would tell him how to do the work.

As for whether Mr Ahmadi could decide when he worked or decline work, he was shown translated text messages from him to Mr Ali as follows:

· On 28 June 2019, “Hello, do not come soon, let me rest today.’

· On 2 July 2019, ‘‘Sorry bro, I cannot [do that] in the morning my kids have an appointment at Centrelink”.

Mr Ahmadi denied declining work with Spectrum in order to work elsewhere. The only reason he had declined work was for family reasons.

In cross examination Mr Ahmadi denied that sometimes he dealt with the builders on site. That was always Mr Ali's job.

In re-examination, Mr Ahmadi agreed that he and Mr Ali had a system whereby Mr Ahmadi would take pictures of work completed an update Mr Ali by sending those.

Payment Arrangements with Spectrum

As for the payment arrangements, Mr Ahmadi’s evidence was:

o He was paid by Spectrum about every two weeks.

o The total amount he was paid by Spectrum for the 47-day period was about $13,000. Over the 47-day period, three tax invoices were issued by Mr Ahmadi to Spectrum that set out dates, days worked and calculated the amount owed.

o The percentage of his total earnings during the 47-day period that represented income earned with Spectrum was between 95 and 98 per cent. The balance of other payments received in the same period was for jobs undertaken prior to starting with Spectrum.

In cross-examination, Mr Ahmadi agreed there was a difference between his employment relationship with CMPT and his arrangement with Spectrum. As for why he gone from being employed by CMPT to registering an ABN, it was because he wanted to earn more money having come from Pakistan. With CMPT, he was not earning enough. He denied the purpose of registering the ABN was to start work for himself. He was looking for work, but he was not his own boss.

In cross-examination, Mr Ahmadi denied that from 6 August 2018 he was working in his own small business for different entities. He said: ‘No, I didn’t have any business, I am labour’. He did not consider himself a contractor, saying again: ‘I am labour, maybe subcontractor, I don't know’. He was advertising his labour and did not have any machinery.

2019 Income Tax Return

In cross-examination, Mr Ahmadi agreed that he declared in his tax return for the year ending 30 June 2019:

Gross wages from CMTP in the sum of $7,555 (for the period from 1 July 2018 to his cessation date).

‘Other business income’ in the sum of $34,771.

Expenses relating to business income in the sum of $7,391 including protective clothing and tools. He said the clothing related to his work before starting with Mr Ali. He could not recall the details of the claim in relation to the tools.

In cross-examination, Mr Ahmadi agreed that from 6 August 2018, he did jobs including welding and Hebel panel work for various contractors (‘the additional work’). He took on jobs either as jobs finished or subject to what daily rate he could get. The contractors included:

· Bravo Tiling Pty Ltd;

· Golden Solid Construction Pty Ltd;

· Unique Fabrication and Engineering Pty Ltd;

· Macho Construction Services Pty Ltd.

Tax invoices were issued by him under his ABN which were similar to those rendered to Spectrum. For example, he was shown a tax invoice dated 27 August 2018 rendered to Unique Fabrication for four days’ work at a rate of $22.00 per hour which he said was not enough.

In re-examination, Mr Ahmadi was asked about the difference between his work with Spectrum and the work with the other contractors. He said the work with Mr Ali could be regular because Mr Ali was happy with him and there was ongoing work. The other contractors had not given him enough work and were also disrespectful or bossy to him.

Injury on 19 July 2019

On 19 July 2019, Mr Ahmadi was performing work for Spectrum at a site in Botanic Ridge. As he carried a grinder down some steps, he missed a step and injured his left knee. He took a few days off because his knee was painful. Mr Ahmadi agreed to resume work as Mr Ali said he would give him easy jobs. He tried to work but it was no good and he stopped work about two days after that.

On 6 August 2019, he saw his GP Dr Mollah about his knee injury. He was sent for an MRI, prescribed medications and referred to a specialist, Mr Nizam, who recommended surgery.

WorkCover Claim

After stopping work, he approached Mr Ali for extra money. Mr Ali told him he would apply for WorkCover and not to worry. There was a number of conversations like. Mr Ali denied this.

In cross-examination, Mr Ahmadi was asked about a text message exchange with Mr Ali regarding a tax invoice of 15 August 2019 for 28 days. Mr Ali asked via text: ‘Can you put the dates you worked’. Mr Ahmadi replied by text: ‘Can't remember. 20 days u will recivie [sic] from insurance.’

Mr Ahmadi agreed he wanted Mr Ali to pay him for the equivalent of 20 days’ work and that when Mr Ali received money from WorkCover, he would give the money back.

Later, in cross-examination, Mr Ahmadi conceded that Mr Ali had said on one occasion that he could not put in a Workcover claim because Mr Ahmadi was not a worker. Mr Ahmadi had asked how everyone could work with no insurance and Mr Ali had told him he only insured himself.

After about 45 days had passed, Mr Ali had blocked his number. That was when Mr Ahmadi visited his lawyer.

Mr Ahmadi lodged a claim form dated 5 September 2019 against Spectrum for his left knee injury.

In cross-examination, Mr Ahmadi denied knowing he had to lodge the Workover claim himself, saying at CMTP, it was the boss who called WorkCover. That was why he said to Mr Ali, it's the boss’s job to call WorkCover.

In cross-examination, Mr Ahmadi said he hadn’t filled out the form himself but gave instructions to someone. He agreed under ‘Worker's Employment Details’, in answer to the question ‘Which of the following apply to you?’, the box for ‘Contractor’ was ticked. Mr Ahmadi denied that showed he knew he was not a worker for Spectrum.

In re-examination, he agreed the form also stated that his employer was Spectrum.

Since Lodgement of the Claim

From the time of the injury, he has had ongoing left knee symptoms involving stiffness, severe pain and clicking. He has trouble walking. When his knee becomes locked, it was ‘very horrible’ pain. The level of pain was always 7 or 8 out of 10, sometimes 4 out of 10. He could bend, but has a lot of pain. He could not tolerate twisting, squatting or crouching. He had continued to have knee pain to the present day.

Surveillance Films

In cross-examination, the Court was shown surveillance films of activities in May 2020 (‘the May film’) and 3 June 2020 (‘the June film’). Mr Ahmadi agreed the films depicted him and he had viewed them before the hearing.

The May film consisted of two dates. Firstly, on 26 May 2020 (of just over one-minute duration), the film showed him walking to or from a medical suite with a somewhat altered gait. Secondly, on 29 May 2020 (of just over two minutes’ duration) the film showed him walking normally into a post office, standing to be served and walking back to his car).

The June film (which was of one hour and 19 seconds duration) showed him apparently performing work at a private residence including on a roof. In examination-in-chief, Mr Ahmadi described doing two days’ work in June 2020, from about 9:00 AM to about 3:00 PM for four or five hours on each day. He had to do the work to pay off a debt of about $400 for rental arrears. He had no money and no other way of paying.

As for how he coped with that work, he had pushed himself. He took four Tramadol each day as he had a lot of knee pain. He could not sustain such work on a daily basis because of his knee problems.

A synopsis of the June film was as follows:

· Mr Ahmadi is seen in the vicinity of a work van with another man in the driveway of a private residence. He walks freely up a slight incline. He places weight on his left leg and crouches on the ground. He leans over a few times, he bends over, he squats to attach a hose to a machine. He steps one foot at a time into waterproof over-trousers.

· Then Mr Ahmadi is seen on the tiled, pitched roof of the house. From on the roof, he pulls up the hose, placing weight on his left knee. He walks up the sloped roof, stands on the ridge of the roof and then walks down the other side. He stands astride the pitched roof and balances freely using a high-pressure hose. He shifts his weight between his left and right legs, appearing to place all his weight on his left leg. At one stage, he is leaning over with both legs bent.

· He is seen continuing to use the high-pressure hose on the roof, walking up the incline, leaning, shifting his weight between both legs, leaning forward and then fully straightening up.

Under cross-examination, Mr Ahmadi gave the following explanations of his activity in the June film:

· He had no pain and no feeling in his body that day because he had used the Tramadol. As for how he could have been repeatedly bending, squatting, walking and kneeling, he said that if a person uses four Tramadol, even if it hurts, you can do it.

· Walking up the slope of the roof was easy, everyone could walk on that. Standing balanced on either side of the ridge or peak of the roof was something everyone could do.

· As for whether the roof was slippery, he said, of course it was slippery because of the water.

Under cross-examination, Mr Ahmadi was asked about the difference between his unrestricted abilities in the June film and how he was walking in the May film. His explanation was sometimes he could walk properly and sometimes he couldn't

In re-examination, Mr Ahmadi was asked to compare the work in the June film with his pre-injury work of installing Hebel panels. He said the work on 3 June 2020 was easy, it was just washing. Whereas working with Hebel panels that weighed 70 to 80 kilograms was very heavy work.

Current Circumstances

In February 2021, Mr Ahmadi had a left knee arthroscopy and partial meniscectomy as a public patient. He has continued to see his GP and a psychologist. He takes Panadol, Tramadol and an anti-depressant. He has had physiotherapy.

Mr Ahmadi had not worked at all since ceasing with Spectrum because of his knee. He had not applied for work nor inquired about part-time work. He received Centrelink benefits. He would be happy to be working and didn't want to be stuck at home. He could not do Hebel installation work as it was too heavy.

EVIDENCE OF MR ALI

Mr Ali came to Australia in 2010 from Afghanistan. He currently works as an interstate truck driver.

Before that, from January 2019, Mr Ali had been (and remained) the director and sole employee of Spectrum which he set up to do Hebel installation work in the building trade. Spectrum’s work had come from residential builders, Porter Davis and Carter Grange, and also from CSR, the manufacturer of the Hebel panels.

Spectrum hired sub-contractors to carry out the work rather than employing workers. That was due the varying volume of work the builders gave to Spectrum. There was not work every day. The builders used other installers besides Spectrum.

Mr Ali made sure the people he put on were all sub-contractors by ensuring they had their own ABN, ‘white cards’ and own transport. They arranged that themselves and had to have an ABN which he gave to his own accountant for tax purposes.

In cross-examination, Mr Ali agreed Spectrum was getting plenty of work when he started and the building companies giving Spectrum work were ‘volume builders’. However, it all depended on the work that came from the builders - if he had jobs for a whole year, he could employ the workers. Also, if it was raining, he didn't need anyone. That was why in construction, there are no permanent employees especially in Hebel cladding.

In cross-examination, it was put to him that when it was busy, he could ‘turn the tap on’ and if not busy, he could ‘turn the tap off’. Mr Ali agreed with that, saying that was why the ‘subbies’ could go anywhere they wanted. He ‘hired a lot of subbies’ and that ‘everyone was greedy for money’. Also, sometimes, he would do a job himself.

In cross-examination Mr Ali agreed he was an educated person who had completed secondary school. Mr Ali agreed to speaking English more proficiently than Mr Ahmadi. About half the people he hired were Afghani. He disagreed that he spoke better English than most of his workforce.

Mr Ali agreed his Hebel qualifications were superior to those of Mr Ahmadi’s.

When they first spoke on the phone on 22 May 2019, they spoke of Mr Ahmadi’s availability, the timing of the work, whether he had an ABN, a white card and tools and so on. He could not say if he asked Mr Ahmadi whether he had his own insurance, but assumed he did ask that. That was because when he was an individual subcontractor (before starting Spectrum) he had made sure he had his own ABN and insurance.

The purpose of the trial was to see if Mr Ahmadi was confident and knew what he was doing. After the trial, it was ‘all good’. Mr Ali had only wanted to pay $250 which was to take account of Mr Ahmadi having to borrow and use Spectrum’s tools. The rate agreed was $280 a day.

At no stage had Mr Ali offered to take on Mr Ahmadi as an employee of Spectrum. He did not pay him annual leave or sick leave nor had he deducted income tax nor make superannuation contributions on his behalf.

In cross-examination, Mr Ali agreed he was happy with Mr Ahmadi’s work and there would have been ongoing work as long as the work was coming in.

In cross-examination, Mr Ali was asked to explain why Mr Ahmadi’s contact details were saved in his phone as ‘Mehdi new worker’. Mr Ali denied that meant he considered Mr Ahmadi to be a worker. In his language, there was just one word and they were all subbies.

As for the arrangements day to day, Mr Ali’s evidence was as follows:

· The method of pay was a daily rate upon receipt of invoices from Mr Ahmadi.

· He would let Mr Ahmadi know in the afternoon by text message of the next job unless he saw him on site and told him in person. The text would say work tomorrow and the address.

· As for whether he set the hours, he expected Mr Ahmadi to be on site at 7 am as that was when the building sites normally started work. Otherwise, he left it up to the subbies themselves. He didn't provide instructions on when they should take breaks. They knew what they were doing - when they wanted lunch, they took lunch.

· Frequently Mr Ahmadi arrived later than this, around 7:30 or 8:00 am as he lived far away. He told Mr Ahmadi he was fine with that as long as the job was finished. In cross-examination, Mr Ali agreed that if it got past say 8:00 am he would contact Mr Ahmadi to see whether he was coming in to do the job. He denied he was keeping tabs on him.

· Mr Ali had ‘high viz’ shirts with his logo and mobile which he gave to people he hired. It was advertising for Spectrum and a ‘good look’ for CSR and the builders. Also, he had posted on Spectrum's Facebook page photos of individuals working in the shirts. It was never compulsory. As for Mr Ahmadi, he saw him wear it, but not all the time.

· When cross-examined on the shirts, Mr Ali agreed he derived the benefit rather than Mr Ahmadi. He denied the ‘high vis’ shirts were a uniform because a uniform was something you had to wear. He said, if they wear it, it's good for me, if they don't wear it, it's up to them.

In terms of training or instruction, Mr Ali had not offered that as every Hebel installer does it in his own way. As for supervision, Mr Ali went round the sites to meet up with his subbies and see how the work was progressing. The purpose was to see that things were ‘all good’. There was no need for supervision because the subbies he hired knew how to install the panels. If things went wrong with a job, the site supervisors for the builders would either let the subbies know directly or would tell Mr Ali and he let them know.

At times, on some jobs, Mr Ali had sent to Mr Ahmadi by text a colour side-view of a house to show where the Hebels had to be installed and what size was to be used.

In cross-examination, Mr Ali was asked about whether he retained control over how the Hebel installation work was done. He said, ‘it was not rocket science’ and that Hebel installers know what they’re doing and he left them alone to do it’. The sending by Mr Ahmadi of photos of his work was to show the stage of the work and how much had been done. He denied retaining a high level of control in checking and inspecting the work.

In cross examination, Mr Ali said the CSR supervisors would go around the sites, check on the quality of the work and might ask the guys to do the work this way or that way. The subbies sometimes dealt directly with them and sometimes himself. Mr Ali agreed that he also checked on the quality of the work including of Mr Ahmadi’s work.

In cross-examination, he agreed at one point some work done by Mr Ahmadi was carried out incorrectly and another time Mr Ahmadi sought clarity on how to do the job. Mr Ali said any instruction was not how, but where the Hebels were to go.

As for whether there were times when Mr Ahmadi declined jobs, this happened around eight to ten times over the 47-day period. Mr Ahmadi would contact him by phone call or text. He usually made excuses like his wife or son had an appointment or he was sick. That did not impact on his willingness to continue to offer jobs to Mr Ahmadi because he had a lot of subbies so it didn't make much difference to him.

In cross-examination, Mr Ali conceded there were only two instances of text messages from Mr Ahmadi informing him he would not be working. The other times Mr Ahmadi rang him to tell him.

At one stage, Mr Ahmadi had asked about getting his cousin in to come and work with him as well. Mr Ali had told him there was no problem with that, but the cousin never turned up.

As for the injury on 19 July 2019, Mr Ali had not seen Mr Ahmadi injure his knee nor had anybody else. He took time off and came back to work on 31 July 2019 for about three days. During those three days, he gave him normal work, not lighter work. He did not recall Mr Ahmadi complaining about pain during those days worked.

In cross examination, Mr Ali denied that Mr Ahmadi had any difficulty with the work after the 19 July 2019 injury. He had seen him go up and down ladders without any trouble.

As for the WorkCover claim, after the three days back at work, he received a text message from Mr Ahmadi asking to be paid for the month at home not working because of his knee. Mr Ahmadi told Mr Ali to put in a WorkCover claim and when it was processed, he would pay him back the money. Mr Ali told him it didn't work like that and he should have had his own insurance claim.

In cross-examination, Mr Ali accepted that Mr Ahmadi had suffered a knee injury. He agreed that installing Hebel panels was heavy work, but there was a technique so that it was not so heavy. He agreed that it would be difficult to do the job with a bad knee.

MEDICAL EVIDENCE TENDERED BY THE PLAINTIFF

MRI Left Knee dated 6 August 2019 reported pathology which included a meniscal tear and moderate effusion.

Dr Toor Mollah, treating GP, provided two reports dated 11 December 2019 and 22 March 2021. He presented on 5 August 2019 complaining of a left knee injury at work on 19 July 2019 while carrying tools down some stairs. No prior left knee history was reported. He opined that the persistent left knee pain was a direct consequence of the complex meniscal tear seen on the MRI of 6 August 2019. Also, the knee injury and stress had exacerbated his pre-existing anxiety and depression. His condition prevented him from doing work involving: bending, lifting, twisting or stooping; kneeling, squatting or crouching; walking up inclines or down inclines; prolonged sitting, walking or standing. He could not resume his pre-injury duties. He presented with a persistent limp.

Dr Mollah provided a third report dated 18 June 2021 after viewing the surveillance films (accompanied by a letter of instructions from Mr Ahmadi’s solicitors, tendered into evidence). The instructions provided that the work activity in the June film was to pay a rental debt and been done after taking four Tramadol. Dr Mollah stated that his previous opinions were not altered by viewing the film. In his opinion, Mr Ahmadi’s temporary ability to perform cleaning duties, unhindered after four Tramadol tablets, was consistent with his own clinical experience with him.

Dr Ikram Nizam opined in a letter of 29 August 2019 to Dr Mollah that a left knee arthroscopy was needed.

Monash Health Discharge Summary dated 1 February 2021 related to discharge after a left knee arthroscopy and partial meniscectomy the same day.

A/Prof. Max Esser, orthopaedic surgeon, provided an initial medico-legal report of 29 September 2020 to Mr Ahmadi’s solicitors. A history of the slipping incident on 19 July 2019 was obtained. Mr Ahmadi complained of pain and stiffness including, locking of his knee, difficulties bending and restrictions in walking. He reported taking tramadol, about two tablets per day, which helped. On examination, he walked with a slight limp. Diagnosis was a small tear of the medial meniscus which was consistent with the incident described. Arthroscopy was reasonable treatment. The prognosis was good and he did not think there would be any significant degenerative changes in the long term with a slight increase risk of degenerative change. In response to specific questions as to physical limitations, Mr Ahmadi had reported discomfort with bending, lifting, twisting, stooping, kneeling, squatting or crouching, prolonged walking or standing and walking up and down steep inclines was uncomfortable.

A/Prof. Esser then provided a supplementary report dated 25 May 2021 after viewing the surveillance films (accompanied by a similar letter of instructions from Mr Ahmadi’s solicitors as sent to Dr Mollah also tendered into evidence). His conclusion after viewing the films was that Mr Ahmadi had a virtually normally functioning left knee and was able to manage quite well on the roof with a high-pressure hose. He considered that post-arthroscopy, there were no operative findings that would impair his ability to return to most work as a labourer in a building site. He opined that this was confirmed by the film about which he made detailed observations of the films including:

· In the June film, Mr Ahmadi (while on the ground) walked quite normally, squatted almost on his heels then getting off the ground with what appeared to be normal knee function. He put on the yellow over-trousers on with normal flexion of right and left knees.

· On the roof, he stood on the sloping ridge with one foot on either side, stooping to get access to other parts of the roof and appeared to have no specific problems with his left knee which was often in a position of almost 40 degrees flexion. He walked confidently up the wet roof and was bending and leaning over. He seemed to have a normally functioning left knee throughout and was confidently using both lower limbs and maintain his balance and get his knee out to full extension .

· The May film showed him walking normally along the footpath with reasonably normally function.

MEDICAL EVIDENCE TENDERED BY THE DEFENDANT

Mr Michael Dooley, orthopaedic surgeon, provided a medico-legal report dated 28 May 2020. Ongoing left knee pain and restrictions was reported following the slipping incident on 19 July 2019. There was an altered gait. The diagnosis was of a soft tissue injury to the knee joint that involved tearing within the medial meniscus. Arthroscopy was reasonable and he would then be able to return to work as cladding installer. Mr Ahmadi appeared to present as a sensible and genuine historian with no evidence of exaggerating his presentation.

Mr Dooley provided a supplementary report of 19 March 2021 after viewing the films. He noted observations of Mr Ahmadi in the June film walking and squatting on the ground without difficulty and then his activity on the roof. The film showed functioning at a far greater level than he described when seen on 26 May 2020. His overall presentation and restrictions reported at that time were not consistent with the presentation in the films.

ANALYSIS

Legislative Framework

The burden of proof lay with the plaintiff to establish that he was a ‘worker’ within the meaning of s3(1) of the Act. This was either on the basis of performing work under a contract of service or as an individual deemed to be a worker under the Act.

Section 4(3) provides that the intepration provisions regarding persons deemed to be workers or employers are contained in Part 1 of Schedule 1. There, the governing provision for contractors is Clause 9, in particular cl.9(1) and 9(5).

However, cl.9(2) provides that cl.9(1) does not apply ‘in respect of a contractual arrangement if the Authority determines that, in providing services to the principle, the contractor is carrying on an independent trade or business’.

Once the plaintiff had discharged the burden of proof regarding the threshold ‘worker’ question, he needed to establish injury in the course of or arising out of employment in accordance with s.39(1) of the Act.

The plaintiff also needed to establish that he was incapacitated for pre-injury employment and any such incapacity resulted from or was materially contributed to by his injury pursuant to s.160 of the Act.

Legal Principles

In deciding whether someone may be an employee or an independent contractor, it is ‘the totality of the relationship between the parties which must be considered’ in accordance with the principles in Elezac Pty Ltd v Shirreff.[1] The relevant factors included:
[1] [2011] VSCA 405

(a) the degree of control;
(b) whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c) whether or not the person engaged can set their own hours of work;
(d) the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
(e) whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f) whether or not the person engaged employs employees and/or conducts his business in partnership;
(g) whether or not there is a power to delegate (send someone else to perform the work); and
(h) whether or not the person engaged considered the relationship as one of independent contractor[2].

[2] Ibid at [30]

Of course, as Court of Appeal observed in Eastern Van Services v VWA[3], there are many common features to both contractual arrangements and whilst it did not ‘serve to identify a bright line test’ or dictate which side of the line a given set of facts fall, it was perhaps useful to articulate in a broad sense the different nature of the two relationships[4].
[3] [2020] VSCA 154
[4] Ibid at [27] to [29]

The Court of Appeal went on to observe that the distinction between an employee and an independent contractor is ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own’.[5]
[5] Ibid at [30] referring to a passage endorsed by a majority of the High Court in Hollis v Vabu Pty Ltd [2001] HCA 44

After setting out some general precepts, The Court of Appeal then held (omitting citations) that ‘the correct method is to examine and weigh various indicia or criteria in a multi-factorial analysis. Inevitably, those matters will be inter-related and do not carry a fixed weight. Although the relationship is contractual, the inquiry is to the nature of the contract, which involves a question of substance rather than nomenclature. Relevant factors include the terms of the engagement, the nature, extent and use of control, the degree of integration into the business of the principal, the method of remuneration, the use of the hallmarks of business by the person engaged, including the provision of capital, tools and equipment, invoicing, the incurring of expenses and the taxation treatment of income and outgoings[6].
[6] Ibid at [36]

On the question of control, the Court of Appeal also had this to say:
Although a measure of control is the hallmark of an employment relationship, it does not follow that principals are not able to maintain control over independent contractors without the contractual relationship becoming one of employment.[7]
[7] Ibid at [102]
As for the taxation arrangements of parties to the contractual arrangement, the Court of Appeal observed: “A conscientious approach to regulatory compliance on the basis of a particular approach should not be deprecated as showing no more than one view of the relationship. In many cases, a party will have deliberately chosen the particular type of arrangements for his or her own reasons and ought bear the consequences of that election’. [8]
[8] Ibid at [163]
Turning to the operation of the deeming provisions in Clause 9, and specifically the interpretation of cl.9(2), I am guided by the principles in BSA v VWA[9].
As for how the phrase ‘independent trade or business’ is to be interpreted, it is to be given ‘an ordinary English meaning. It has resonance with expressions that have been used in determining in other contexts whether a person performing work for another does so as an employee under a contract of service or as an independent contractor under a contract for services’.[10]
On what is meant by ‘independent’ in this context, MacLeish JA held also that given the purpose of the definition was ‘to decide whether a person should be deemed to be a worker … it is appropriate to apply a definition that addresses the nature of the relationship between the principal entity and the contractor with whom that individual is connected in one of the ways described in cl 9(1)(c). On that basis, and recognising always that it is necessary to apply the statutory language rather than any gloss, ‘independent’ in my opinion here refers to a contractor’s trade or business which is not subject to control or subordination by the principal and which does not depend on the principal for its existence in the relevant period. …[11]
[9] [2018] VSCA 265 at 75 – 77]
[10] Ibid at [76]
[11] Ibid at [76]

In submissions, there was consensus between Counsel as to the relevant legal principles. However, an issue on which Counsel diverged related to the meaning of ‘relevant period’ in cl.9(6). This was for the purposes of the deeming test in cl.9(1). The definition provides as follows:

"relevant period", in relation to services provided under a contractual arrangement referred to in subclause (1), means—
(a) the financial year in which those services are, or are to be, provided; or
(b) if those services are, or are to be, provided in 2 consecutive financial years—
(i) the 12 month period beginning on the date on which those services are first provided pursuant to the contractual arrangement; or
(ii) the 12 month period ending on the date on which those services cease, or are to cease, to be provided; …

Counsel for Mr Ahmadi submitted that an individual ought not fall by the wayside because of pure arithmetic in any given year. On a reading of the whole of Clause 9, the ‘relevant period’ related only to that period during which the services were provided under the contractual arrangement. In Mr Ahmadi’s case, that was between May and August of 2019.
On the other hand, Counsel for Spectrum submitted that, under either limb of sub-paragraph (b), the length of the ‘relevant period’ was no less than 12 months. In support of that submission, Counsel referred the Court to the following passage in the Explanatory Memorandum to the WIRC Bill 2013:
The definition of relevant period has been changed … to clarify the operation of the definition where a contractual arrangement relates to two consecutive financial years. Where there are competing relevant periods or if the worker is captured by more than one relevant period, the period that gives the worker the greatest benefit will be used. The definition continues the previous intent that the relevant period should be 12 months. This is considered to be an adequate length of time over which the true working relationship between the contracting parties can be ascertained[12].
[12] Explanatory Memorandum at p.329

I accept the submission of Counsel for Spectrum. It is plainly Parliament’s intent that the ‘relevant period’ for the purposes of Clause 9 is for a period of not less than twelve months. The discretion in terms of determining the period most beneficial to the worker arises in terms of making a finding as to when the twelve-month period commenced - either on the date of commencement of the contractual arrangement or the date of it ending.
Accordingly I must reject the submission of Mr Ahmadi’s Counsel on that point.
There was no dispute that the 47-day period fell over two consecutive financial years: the years ending 30 June 2018 and 30 June 2019. A decision as to the ‘relevant period’ was therefore governed by sub-clause (b) of the definition. As for deciding the start date of the relevant period in this case, I will return to that as part of my findings later in these reasons.

I now turn to submissions, the evidence and my findings.

Credit of the Plaintiff

Before I make findings on the threshold ‘worker’ question, I must consider the plaintiff’s credit. That is because Mr Ahmadi and Mr Ali were the only witnesses to give viva voce evidence and, unsurprisingly, their accounts differed as to the nature of the contractual arrangement between them.

As in so many cases, the credit of the plaintiff was of central importance.[13] Whilst Mr Ali’s credit was a significant matter, it was Mr Ahmadi with whom the burden of proof rested. Mr Ahmadi needed to persuade me that his evidence was credible and reliable on the disputed issues.
[13] The Court of Appeal has confirmed this many times, most recently in Johns v Oaktech Pty Ltd. [13]

A key issue in the case was the extent to which Mr Ahmadi’s credibility was impugned by the films, particularly the June film - not only in terms of his evidence regarding his symptoms and work capacity, but more broadly as a witness of truth.

In assessing video surveillance in a case of this kind, I am required to see it, in addition to the intrinsic content, in the overall contextual setting[14].This was in accordance with Church v Echuca Regional Health, per Ashley JA. I accept Counsel for Mr Ahmadi’s submission in that regard.
[14] [2008] VSCA 153 at [66]

I find that the May film was of comparatively limited evidentiary weight given its brevity (a minute and two minutes). On my viewing of the May film, I accept on the first date (26 May 2020) Mr Ahmadi is seen walking with a slightly altered gait and the context of the film was following attendance at a medico-legal examination with Mr Dooley at which he also presented with an altered gait. A few days later (on 29 May 2020), he is walking, slowly but apparently normally, into a shop and standing while being served. I note that A/ Prof. Esser opined after viewing it that Mr Ahmadi walked with reasonably normal function.

On viewing of the June film myself (of just over an hour’s duration), Mr Ahmadi is seen carrying out activity requiring considerable physical agility and nimbleness, in moving around on a sloping roof while he used a high-pressure hose. His movements on the ground and on the roof appear confident, fluid and unrestricted. He is seen squatting, crouching, walking on an inline all apparently without any problems with his left knee. On his own evidence, he did this for an extended number of hours over two days (considerably longer than the hour or so of the film).

In examination in chief, Mr Ahmadi’s evidence was of having persistent and debilitating left knee symptoms including ‘severe pain’, stiffness and clicking. He described pain that is ‘always 7 or 8 out of ten, sometimes 4 out of ten’. He described ‘horrible pain’ when his knee locked and that he could not tolerate twisting, squatting and crouching

Counsel for Mr Ahmadi submitted that while the June film while ‘not an attractive look’, it had to be considered in its context. In particular, Mr Ahmadi had a financial imperative to do the work to pay off a debt he had no other means of paying. Moreover, he gave evidence that he could carry out the work only because of medication masking his knee pain (having taken four Tramadol) and by pushing himself. Finally, it was submitted the work was light (holding a hose) and of only two days’ duration.

Those contextual matters (as put to him in the solicitors’ letter of instructions) were accepted by the treating GP Dr Mollah, who did not alter his previously held opinions. Dr Mollah had previously opined that Mr Ahmadi’s knee condition would preclude him from activities like squatting, crouching and walking up an incline. Nevertheless, it was the conclusion of Dr Mollah that a ‘temporary ability to perform cleaning duties, unhindered after four tramadol tablets, was consistent with his own clinical presentation’.

Of course, Dr Mollah’s opinion (nor that of any of the medical practitioners) was untested by cross-examination.

Weighing the whole of the evidence and allowing for the contextual matters referred to previously, I am unable to accept Dr Mollah’s opinion. In my view, it is likely that Dr Mollah’s opinion was informed or influenced by his clinical relationship with his patient.

Rather, I prefer the opinions of the orthopaedic specialists, A/Prof. Esser and Mr Dooley, that Mr Ahmadi’s activity on 3 June 2020 was consistent with normal left knee function with normal flexion and extension. A/Prof Esser had the same contextual matters put to him as Dr Mollah. A/Prof Esser provided an extremely detailed description regarding the range of movements, flexion and extension. Similarly, Mr Dooley, after viewing the films, noted a function at a far greater level than when seen by him just four weeks earlier on 26 May 2020. On that occasion (as I noted previously), he attended with an altered gait and described pain and restrictions.

Overall, therefore I find that Mr Ahmadi’s credit as a truthful witness was impugned by the June film. I must reject Counsel for Mr Ahmadi’s submissions to the contrary.

In my opinion, Mr Ahmadi’s evidence as to nature and extent of his ongoing left knee symptoms was not truthful. When cross-examined about his activity in the films, it seemed to me that Mr Ahmadi was defensive and argumentative. For example, he said (more than once) the activity of standing and walking on a steeply inclined roof was ‘easy’ and that everyone could do it. I find that evidence not only entirely unpersuasive, but extraordinary given the nature of the activity shown. I am simply not persuaded, again given the apparently physically challenging nature of the activity, that the taking of Tramadol was a satisfactory explanation.

126 In terms of Mr Ahmadi’s credit as a witness more generally, and having the benefit of observing him while he was giving evidence, his answers frequently lacked directness and credibility. His answers, at times, were exaggerated or embellished on disputed matters and seemed intended to mislead the Court in order to advance his interests. Some examples were as follows:

· He initially denied, under cross-examination, having asked Mr Ali about getting his cousin in to do some of the Hebel work. When pressed further, he then said he didn't know and couldn't remember.

· In cross-examination, he initially denied being an experienced Hebel installer who could and did work without supervision. Later he agreed that he could do the work without Mr Ali being there.

· His denial of knowledge of the WorkCover system in spite of an accepted claim in 2017 with CMPT for which he was off work for three months.

Accordingly, I must reject the submission of Mr Ahmadi’s Counsel that he was a credible witness whose evidence on disputed matters ought to be preferred to that of Mr Ali.

It was further submitted by Mr Ahmadi’s counsel that Mr Ali was not a witness of credit. His account was evasive and frequently embellished. For example, he said Mr Ahmadi refused work with Spectrum eight to ten times.

I do not accept that submission. Indeed, my overall impression of Mr Ali was that he was a generally credible and cooperative witness. In cross-examination, he made numerous, appropriate concessions against interest. Examples were:

· He was happy with Mr Ahmadi’s work and there would have been ongoing work as long as the work kept coming in from the builders; Spectrum had plenty of work which came from volume builders;

· In terms of hiring individuals, he could turn the tap on, when busy, and off, when not;

· He was better educated and spoke English more proficiently than Mr Ahmadi and also that his Hebel qualifications were superior to those of Mr Ahmadi;

· If the individuals he hired wore the ‘high-viz’ shirt, it was good branding for Spectrum.

For these reasons, and weighing the whole of the evidence, to the extent there were factual matters in dispute, I prefer Mr Ali’s evidence to that of Mr Ahmadi.

Whether Mr Ahmadi was a ‘worker’

Counsel for Mr Ahmadi submitted that the evidence overwhelmingly supported a finding that he was a ‘worker’. The following matters were relied upon:

a. Mr Ahmadi worked exclusively for Spectrum for the 47-day period. There was no evidence to substantiate him working for anyone else during the 47-day period.

b. The work with Spectrum was ongoing and of a consistent nature. In that way, it differed from the short-terms jobs he performed before starting with Spectrum. The ongoing, consistent nature of the work was supported by Mr Ali’s own evidence of Spectrum receiving work from ‘volume builders’ and from CSR, the manufacturer of Hebel panels.

c. Mr Ali was the boss and master. He maintained a high level of control over Mr Ahmadi. He set his pay. He set his hours of work and Mr Ahmadi needed approval to start later because of where he lived.

d. It was Mr Ali who arranged the work and dealt with the builders. Mr Ahmadi had little control over the arrangements. He was given instructions by way of site-plans and maps. Mr Ali monitored and checked Mr Ahmadi’s work on site and via the photographs Mr Ahmadi sent him. Mr Ahmadi had to report any mistakes in the work performed.

e. Mr Ahmadi had no real means of declining work. The only evidence of him doing so was for family reasons.

f. All tools and equipment were provided by Mr Ali.

g. Mr Ahmadi wore a uniform provided by Spectrum with Spectrum’s logo and contact details. He was told to wear it by Mr Ali who derived the benefit from his business’s hallmark being displayed

h. Mr Ahmadi, having registered an ABN, had to provide tax invoices to Spectrum for his labour. He did that at Mr Ali’s request, not his own tax agent. That, it was submitted, was hardly the ‘conscientious approach’ referred to in Eastern Van[15].

i. Mr Ali was articulate, savvy and, on his own evidence, highly skilled at Hebel installation. He collected a large team of mostly migrant workers.

[15] Ibid at [163]

Further, it was submitted by Counsel for Mr Ahmadi that Eastern Van was entirely distinguishable on its facts, being ‘light years away’ from this case. In the contractual arrangement with RACV, Mr Barca was a highly skilled motor mechanic with his own van and whereas Mr Ahmad was a labourer without tools or equipment.

Rather, it was submitted, the Court should follow the High Court decision of Hollis v Vabu Pty Ltd[16]. There were compelling similarities on the facts. In Hollis, the plurality held that the idea that the bicycle couriers were ‘running their own enterprise [was] intuitively unsound’[17] as they were not providing skilled labour or labour requiring special qualifications. The couriers had little control over their work arrangement and were assigned weekly rosters. The couriers wore a uniform showing the principal’s logo.
[16] (2001) 207 CLR 21
[17] Ibid at [48]

Accordingly, it was submitted, Mr Ahmadi was a ‘worker’ as all indicia were satisfied: control, supervision, exclusivity, method of pay, hours, uniform, tools, subordination, lack of independence and inability to work elsewhere. As for Mr Ahmadi suggesting he bring his cousin in to work, that was a mere ‘thought bubble’ and in no way supported the case for the defendant.

On the contrary, Counsel for Spectrum submitted that the weight of evidence was overwhelmingly against a finding of an employee/employer relationship. The following matters were relied upon:

a. The amounts paid by Spectrum to Mr Ahmadi included no deductions of income tax, no accrual of entitlements such as sick leave and no employer superannuation contributions.

b. Mr Ali’s evidence was of Spectrum offering Mr Ahmadi work as it came up and subject to the flow of work from the builders. Mr Ali was entirely frank about Spectrum’s dependency on the builders as being the reason for needing to ensure he was not hiring employees.

c. Mr Ali may not have checked that Mr Ahmadi had his own insurance, but his evidence of expecting that Mr Ahmadi would arrange that himself based on his experience as an individual contractor before starting Spectrum.

d. There were no set hours other than the widely standard start time on building sites of 7 am. Mr Ahmadi set his own hours, coming later and finishing as he wished.

e. Mr Ahmadi was skilled and experienced in cladding work. He given no training because he required none. That was apparent from the three-day work trial which Mr Ali said was ‘all good’.He was provided with minimal supervision because he knew how to do the work.

f. There was no effective control over the way he did the work.

Having considered submissions, I now turn to my findings. As noted previously, I am required to examine and weigh the indicia in a multi-factorial analysis as to the nature of the contract between Mr Ahmadi and Spectrum. Weighing the whole of the evidence, including my previous findings in relation to Mr Ahmadi’s credit as a witness, I make the following findings of fact:

a. After being a salaried employee of CMPT between 2012 and 2018, Mr Ahmadi took a considered path involving deliberate steps to alter his employment circumstances. He registered an ABN, obtained a building industry ‘white card’ and started posting ads via Facebook. Via Facebook, he had held out his availability for jobs in welding, cladding and Hebel installation.

b. From the time of registering his ABN in August 2018, Mr Ahmadi did jobs for which he rendered tax invoices to other contractors. Examples of these invoices, such as that to Unique Fabrication, were tendered into evidence. They were in similar form to those rendered to Spectrum.

c. He gave evidence of wanting to work in the building industry to make more money than as an employee of CMPT. He described proactively moving on from, and between, between contractors based on what rate of pay he could negotiate.

d. At the outset of the contractual arrangement with Spectrum, both Mr Ali and Mr Ahmadi gave evidence of there being a negotiation as to the daily rate. I find that was on the basis that Mr Ahmadi did not have all the required tools and that, otherwise, Mr Ahmadi would have borne the costs of the tools.

e. Mr Ahmadi was skilled in working with Hebel panels and other building activities. I do not accept as truthful his evidence that he required detailed instruction and supervision. He had advertised his ability to do the work. Mr Ali’s evidence was his work of it being ‘all good’ after the initial trial.

f. In terms of day to day, I prefer Mr Ali’s evidence that instructions given to Mr Ahmadi related to ‘what to do’ on jobs (such as where the panels were to go on what parts of the building and so on) rather than ‘how to’ install the panels themselves.

g. I find that Mr Ahmadi largely set his own hours arriving after the usual start time on building sites. While it is true that he let Mr Ali know about this, I prefer Mr Ali’s evidence that there were no prescribed break times or finish times. I accept Mr Ali’s evidence that his focus was on the progression of the jobs and not the hours themselves. It is true that Mr Ali said he would follow up Mr Ahmadi if he was not on site by 8 am, however again I find that related to progression of the work Spectrum itself was contracted to perform for the builders. As Mr Ali said in evidence, ‘What mattered was that the job was done’.

h. Mr Ahmadi declined jobs when it did not suit him. The language he used was not ‘may I’ but ‘I cannot’. As for the frequency with which he declined work, I prefer as more credible Mr Ahmadi’s evidence that this was more than twice and closer to 8-10 times. Where not by text, he was informed by phone or in person.

i. In terms of exclusivity, whilst it is true there was no evidence of Mr Ahmadi accepting or performing other jobs within the 47-day period, there was evidence of payments from other contractors during that time. For example, on 17 June 2019, his bank records showed a deposit into his bank account of $1,000 from Golden Solid. Mr Ahmadi said they were payments for work done before starting with Spectrum. However in light of my finding that Mr Ahmadi was not a reliable witness, I attribute minimal weight to that explanation which may or not have been the case. On the other hand, I accept as credible Mr Ali’s evidence that Mr Ahmadi (indeed all the individuals he hired) were free to do other jobs. His evidence was persuasive in terms of his willingness to keep offering jobs to Mr Ahmadi even after he declined work. He also said at a number of points that he had ‘a lot of subbies’ and it made no difference to him.

j. Mr Ahmadi did not himself employ others (one of the relevant factors referred to in Elezac[18]. However, I accept Mr Ali’s evidence that Mr Ahmadi asked more than once about whether his cousin could come in and work with him. I agree with Counsel for Spectrum that the fact that did not occur is not as important as the fact that he considered himself at liberty to bring in other labour.

k. Whilst both said Mr Ahmadi wore the Spectrum high-viz’ (displaying a hallmark of the business as per Eastern Van[19]), I prefer Mr Ali’s evidence that it was not mandatory but rather his attitude was ‘if they wear it, it’s good for me, if they don’t, it’s up to them’. In any event, as per Eastern Van, there is nothing inherently compatible with a contractor being integrated with a uniform and it is not of itself determinative[20].

l. Mr Ahmadi’s income tax return for year ending 30 June 2019 is evidence of deliberately chosen alteration of his affairs in declaring both salary income from his CMPT employment as well as declared business income with claimed deductions for clothing and tools.

[18] Ibid at [30]

[19] Ibid at [36]

[20] Ibid at [91]

Finally, I find that Mr Ahmadi’s integration into the Spectrum business was in the loosest sense only. I accept as credible Mr Ali’s evidence that he essentially had a pool of available of ‘subbies’ (as he called them) who were ‘greedy for money’ so it didn’t make much difference to him if one of them such as Mr Ahmadi accepted a job for Spectrum or not.

I must reject the submission of Mr Ahmadi’s Counsel that the facts of this case are compellingly similar to the bicycle couriers in Hollis[21] who were on weekly rosters. In contrast, Mr Ahmadi not only negotiated his own terms with Mr Ali but, as I have found, also retained a much higher liberty in his day to day work.
[21] Hollis v Vabu Pty Ltd [2001] HCA 44

As for the extent of supervision or control, there was broad direction in relation to when and where the work was to be carried out and the rest was up to Mr Ahmadi. I find that Mr Ali was checking the result, not dictating the manner of the work. As the Court of Appeal observed in Eastern Van, principals are entitled to check on the quality of work of independent contractors as they are paying for it and ‘it does not follow that principals are not able to maintain control over independent contractors without the contractual relationship becoming one of employment’[22].
[22] Ibid at [102]

Based on these findings on the evidence, both in terms of weighing those indicia and as a matter of substance, I find that Mr Ahmadi was not a ‘worker’ in the primary sense. I find that the plaintiff has failed to discharge the burden of proof on this question.

Essentially for the same reasons, I find that Mr Ahmadi was carrying on an independent trade or business. Mr Ahmadi’s unequivocal evidence as to the purpose of the initial and following Facebook posts was ‘to get jobs and do jobs.’ He called for jobs in a range of skilled trades including the installation of Hebel panels. After his first post, he put up another post to get more jobs. His evidence was he would change jobs if ‘the money was not enough’.

For these reasons, I find he was certainly carrying on an independent trade or business before starting with Spectrum.

For the reasons set out previously, I find that within the 47-day period, he had not become integrated into the Spectrum business to the extent that he had stopped carrying on an ‘independent trade or business’ within the meaning of clause 9(2).

Accordingly, I find that Mr Ahmadi was carrying on an independent trade or business after 22 May 2019 and continued to do so over the 47-day period. The only real reason he carried out work for Spectrum for a longer period and more consistently than for the previous contractors was because he was happy with the daily rate he had negotiated with Mr Ali. In my view, Mr Ahmadi’s insistence under cross-examination, that: ‘No, I didn’t have any business, I am labour’, was entirely self-serving and intended to mislead.

Given my finding that Mr Ahmadi was ‘carrying on an independent trade or business’ in accordance with clause 9(2), it follows that clause 9(1) does not apply.

However, for completeness, I turn now to Mr Ahmadi’s remuneration for the relevant period.

It was not disputed that, in the event the Court had found Mr Ahmadi was not ‘carrying out an independent trade or business,’ then the onus was on the plaintiff to establish that he satisfied the requirements under clause 9(1).

Counsel for Mr Ahmadi submitted, that on an application of Clause 9 read in its entirety, the requisite 80% test was satisfied on the evidence in accordance with clause 9(1)(c) and (d). That is because according to Mr Ahmadi’s bank records deposits from Spectrum between June 2019 and August 2019 amount to $10,480 against a total gross income for the period of about $11,000. That equates to over 87% received from the defendant in that.

However, as I stated previously in these reasons, the ‘relevant period’ as defined in clause 9(6) is not less than 12 months, that is either 22 May 2018 to 22 May 2019 or August 2018 to August 2019.

On Mr Ahmadi’s evidence, he was paid by Spectrum the total sum of $10,480. His evidence also was that his gross income from services of the same class for the period August 2018 to 30 June 2019 (that is bricklaying, tiling welding, Hebeling and rendering) – that is ‘the additional work’ - was $31,614[23].
[23] Paragraph 10 of the Plaintiff’s Further Answers to the Defendant’s Interrogatories sworn 25 November 2020

Therefore, on either time-frame of the ‘relevant period’ as per clause 9(6)(b), I find that the 80% test was not met.

Accordingly, even if I am wrong as to where Mr Ahmadi was carrying on an independent trade or business, he has failed to establish that he satisfied the requirements under clause 9(1).

NATURE AND DIAGNOSIS OF INJURY OR CONDITION

I find that Mr Ahmadi suffered from a left knee injury involving a meniscal tear and moderate effusion. That diagnosis was confirmed on MRI on 6 August 2019 and by the orthopaedic surgeons, A/Prof Esser and Mr Dooley. As treatment of his left knee condition, he underwent arthroscopic surgery and partial meniscectomy on 1 February 2021.

For completeness, given Dr Mollah’s opinion, I note that there no consequential psychological injury pleaded at paragraph 6 of the Statement of Claim dated 6 April 2020 nor was it the subject of the claim lodged nor the notice. I therefore make not finding about it.

CAUSATION

There was no real dispute Mr Ahmadi suffered injury to his left knee on 19 July 2019 arising out or in the course of performing work for Spectrum on a building site. Mr Ahmadi reported the injury to Mr Ali. Indeed, in cross-examination, Mr Ali agreed to the proposition that Mr Ahmadi had suffered such an injury.

CAPACITY

In assessing the medical evidence on capacity, I am guided by the well-known principles set out in Pulling v Yarra Ranges Shire Council.[24] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[25]
[24] [2018] VSC 248 at [50] to [55]
[25] Ibid at [50]

Mr Ahmadi gave evidence that he could not carry out his pre-injury duties work after trying to resume work a few days after the injury. He also said he wanted to be working and that he did not believe that he could perform his pre-injury work of installing Hebel panels. His evidence was he could not have sustained the activity seen in the films on 3 June 2020 and that it was easier than the Hebel panel work.

However, given my finding that Mr Ahmadi was not a witness of truth, I give little or no weight to his evidence. He has failed to persuade me that his evidence was credible and reliable or to establish the reliability of the histories given to the medical witnesses, whose opinions, were premised on the accuracy of his accounts to them. That is what he needed to do in accordance with the principles in Johns v Oaktech Pty Ltd.[26]
[26] [2020] VSCA 10 at [76]

Mr Ali’s evidence was that, within a few days of the incident on 19 July 2019, Mr Ahmadi was climbing up and down ladders and working apparently normally and not with duties modified in any way.

As previously stated in these reasons, even after viewing the surveillance film, Dr Mollah apparently did not resile from his opinion that Mr Ahmadi had an ongoing incapacity for his preinjury employment. However, in his report of 22 March 2021, Dr Mollah elected not to comment on the questions put to him regarding restrictions on the basis he was not an orthopaedic specialist.

Again, for the reasons previously stated, I prefer the opinions of A/Prof. Esser and Mr Dooley that as of 3 June 2020 Mr Ahmadi had a normally functioning knee. A/Prof. also opined there no ‘operative findings that would impair his ability to return to most work as a labourer on a building site’.

Weighing the whole of the evidence, I find that the plaintiff has failed to discharge the burden of proof, to the requisite standard of probability, that he had an inability to return to his pre-injury employment beyond the first few days he did not attend work.

If I am wrong about that, any incapacity for pre-injury employment had certainly ceased by 3 June 2020.

CONCLUSION

For these reasons, I find that the plaintiff is not entitled to the relief sought.
Given my previous findings, I have not considered the additional statutory defences raised by the defendant.

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Citations

Ahmadi v Spectrum Cladding [2021] VMC 20

Cases Citing This Decision

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Cases Cited

7

Statutory Material Cited

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Elazac Pty Ltd v Shirreff [2011] VSCA 405

Eastern Van Services Pty Ltd v Victorian WorkCover Authority [2020] VSCA 154

Hollis v Vabu Pty Ltd [2001] HCA 44

[2021] VMC 20

10 December 2021