Aktypis v Resources Network International (WorkCover)

[2008] VMC 23

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

WORKCOVER DIVISION

X00627507

B E T W E E N

PETER AKTYPIS

Plaintiff

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RESOURCES NETWORK INTERNATIONAL PTY LTD

Defendant

MAGISTRATE:   B.R. Wright


WHERE HEARD:   Melbourne


DATE OF DECISION:   30 September 2008

MEDIUM NEUTRAL CITATION:                 [2008] VMC023

APPEARANCES
Mr. M. O’Loghlen QC and Mr. M. Cvjeticanin (instructed by Arnold Thomas Becker) appeared for the Plaintiff.
Ms. M. Florenini (instructed by Dibbs Abbott Stillman) appeared for the Defendant.

REASONS FOR DECISION

Accident compensation – Rejection of claim – Whether injury arising out of or in the course of employment – Injury while at fitness session at employer’s client premises – Accident Compensation Act s. 82

HIS HONOUR

Mr Aktypis claims worker's compensation payments for a back injury which occurred on 4 April 2007 in a fitness session at work premises.  The defendant (“RNI”) denies liability to pay that compensation on the basis the injury was not work related in that it occurred outside his employment. Mr. Aktypis was engaged as a senior health safety and environment (“HSE”) consultant. 

It was the nature of RNI's business to provide various types of consultants to other companies, and for those consultants to work at third party premises.  One of those companies was CSR Gyprock (“CSR”), which contracted with RNI to supply consultants to advise on a major upgrade to its manufacturing plant.  At the relevant time there were five RNI consultants on site at CSR premises in Yarraville, one of whom was Mr Aktypis.

Substantially his duties were at CSR, which was designated as his "key responsibility". He signed an offer of employment dated 23 January 2008 with RNI.  He performed those duties mainly at CSR, although he did work at other times from home.

The other four RNI employees at CSR were mainly other engineers.  There was no hierarchy among them as to responsibility.  They were each responsible individually to the CSR project manager, a Mr Vanderway, or a Mr Lane, who was a project director at CSR.  Otherwise they would report to Mr Scibberas, the managing director at RNI.

Mr Aktypis gave evidence that he also did some work on behalf of RNI for Mallia Brothers.

Viva voce evidence in this matter was given by Mr Aktypis, Mr Scibberas, and an investigator, Mr Rampal.

Mr. Aktypis’ background was as an engineer, obtaining a degree at Swinburne in 1993.  He regarded himself as a professional engineer specialising in HSE management issues.  He had been working in Perth when he saw an RNI advertisement for the CSR position.  This was an additional RNI position at CSR.  The initial consultancy deed between CSR and RNI was due to expire at the end of March 2007.

He said that both he and RNI were keen to ensure that the consulting work at CSR continued beyond March 2007.  He said that his interest was to "curry favour" with the people at the “highest level” at CSR, and that this was in the interests of both RNI and himself.  He said that he was not privy to the negotiations about the continuation of the consultancy agreement in about March 2007.  Mr Scibberas had come out and dealt with the CSR people personally in that regard, and did not discuss the matter at all with Mr Aktypis. 

In fact Mr Aktypis did not know of any other details of the original and varied consultancy agreements.  He said that he and other RNI consultants suspected that the agreement was being renegotiated because of Mr Scibberas’ presence there at the time dealing with the CSR people personally, though not discussing the issue with them.

Despite this Mr Aktypis said he had a dual role at CSR, both to do his HSE consultancy work and develop more work for RNI at CSR.  He said that he was employed because of his marketing experience, and that marketing was a condition of his employment.

He pointed to the original job advertisement, stating the need "for a HSE manager willing to participate in the further development of the company's growing professional reputation and client base".  He also referred to the offer of employment stating "you may be required to undertake further marketing and business development activities for RNI, including attendances at various meetings and reviews located at RNI's St Kilda office".   Further, he was to "project a pleasant and helpful attitude to customers at all times".

Beyond this there was no other written reference to marketing as it pertained to Mr Aktypis, that is in either the job advertisement or in the offer of employment.

He later helped prepare a job description for his job, which did not mention marketing.  However this appears to have been more of a generic job description of a HSE manager, rather than his specific roles and duties at RNI.  He particularised his marketing activities as consisting of marketing meetings at RNI’s St Kilda Towers office, and taking a senior manager at CSR, Mr Bob Stacey, out to lunch.

He was asked to arrange this lunch by Mr Scibberas as his desk was next to Mr Stacey's desk.  However this lunch took place in May, well after the injury.

As to the first aspect, he had meetings at the St Kilda Towers office of RNI with Mr Scibberas, which he estimated to be almost monthly.  Not all of these meetings were for marketing, according to him, but for other purposes as well, such as occupational health and safety meetings, preparing a business development plan, and for other reasons.

Importantly, he was paid, or should have been paid, for those meetings by RNI.  Under cross-examination he conceded that there were no such formal meetings before his injury, but maybe some informal ones for which he was not paid.  Also he had lunch with Mr Stacey and Mr Scibberas well after his injury at CSR.  Again, he was paid for his time at the lunch with Mr Scibberas and Mr Stacey, with Mr Scibberas paying for the lunch as well.

Mr Scibberas denied that the plaintiff had any formal or informal marketing role at RNI, especially as it related to CSR.  He said that the reference to marketing in the offer of employment was to give notice that specific assistance may be required from time to time for formal presentations.  This was not requested in Mr Aktypis' case.  He denied any mention of marketing in any pre-employment discussions with Mr Aktypis, save for the formal presentation aspect which I have already referred to.

It would appear that the post injury meetings at the St Kilda Towers office related to the Mallia Construction issues mainly.  Mr Scibberas pointed out that he did not request Mr Aktypis' assistance with marketing beyond the matters I have raised, as he (Mr. Scibberas) was responsible for that issue on behalf of RNI.

He disagreed that Mr Aktypis was developing strategies for bringing or pushing business at CSR, or had any such role at all.

The other matters raised by Mr Aktypis in the job advertisement and the offer of employment do not assist me in the determination of this case in that they only go to the requirements of any employee in any job, tend to state the obvious, and can really be seen in most job advertisements.

Mr Aktypis was paid at an hourly rate, had flexible hours, and would fill in timesheets each week.  There was no real clock card system.  The template timesheet would be filled by him detailing job, start and finish times, dates and any breaks in working hours.

Turning now to the circumstance of the injury itself, Mr Aktypis was injured when taking part in a fitness session class in a meeting room on the CSR premises.  The session was conducted by a personal trainer, arranged and paid for by CSR.

He said that he was invited to attend the session by a Ms Suey, the project administrator at CSR.  Mr Aktypis found out about the fitness session from Mr Kusel, a fellow RNI employee at CSR.  Mr Kusel and another RNI employee, Mr Heaele, took part in some of the fitness sessions before.

In cross-examination Mr Aktypis said that his primary motive to attend the session was to build relationships with CSR employees for the purposes of RNI.

Another motive was general fitness.

He said that he communicated his intention to go to the fitness session to Mr Scibberas about one to two weeks before the session.  He said that Mr Scibberas had "no objection" (to use Mr Aktypis' own words) to his taking part.  Mr Aktypis said it was his own decision to take part. He was not asked or encouraged to attend by Mr Scibberas.

Mr Scibberas said that he did not know of any such training sessions, or the involvement of any of his employees until after the claim form was lodged by Mr Aktypis.

Mr Aktypis agreed that after the injury Mr Scibberas told him that he was not aware of the fitness sessions prior to Mr Aktypis' injury.

Mr Aktypis's statement, first raised in cross-examination, as to notifying Mr Scibberas of his interest in the fitness sessions is interesting. In opening this case senior counsel for the plaintiff, in referring to paragraph 4(d) of the Defence alleging the defendant's non-awareness of the plaintiff's participation in the program, said that this was "perhaps so, but the defendant was aware of other RNI employees taking part".

I note that no other RNI or CSR employee was called by either party. Mr Scibberas said he was not aware of other employees taking part. He said that after the injury he did not believe that he could tell Mr Kusel and Mr Heale not to take part in the fitness sessions as it was in their time and on their own accord. He told them not to over exert.

The fitness sessions were held on Wednesdays at about 4.00 p.m.  They were one-on-one sessions between the personal trainer and each participant.

On 21 March 2007, which was the first day Mr Aktypis took part, he clocked off at four o'clock according to his payslip and later returned to work at five o'clock, working until 6.30 p.m.  He did not claim pay for the one hour session.

On that day Mr Kusel took part as well, together with one or two CSR employees, whose names Mr Aktypis did not remember. They apparently worked in the sales area.  Mr Aktypis did not deal with them in his HSE consultant capacity role or otherwise.

He next attended a session on 4 April 2007, on which date he was injured.  The pay records again show he clocked off at about 4.00 p.m. to attend the session.

While performing a repetitive sitting and standing exercise with a medicine ball, he felt a pain to his back.  On that day the only participants were Mr Kusel and another non-RNI contractor, a Mr Piper.  There were no CSR employees taking part with the personal trainer there on that day according to Mr Aktypis.  After the pain occurred he said that he sat down and watched the others.  He told Mr Piper and Mr Kusel about his injury.  He then said that he returned to his office, worked until 5.30 p.m., checking his emails and then turning off his computer.

His pay records, based on his own template timesheet, do not show him returning to work after 4.00 p.m., which is when he attended the training session.  Mr Aktypis said that his times were incorrectly entered by him in that it does not show him working after the training session at 5.30 p.m. 

Mr Aktypis was cross-examined on the basis of a signed statement dated 27 June 2007 he had made to an investigator, Mr Rampal at the premises of Probe Investigations.  Mr Rampal said that he had a template form of statement and filled it in as he interviewed Mr Aktypis.

There were a number of crucial differences between the contents of that statement and the oral evidence of Mr Aktypis.  In particular there is no mention of any motive, primary or otherwise to "curry favour" or “foster work relationships with CSR employees” or others in the statement.  Further, in the statement there is a sentence stating that he "did not originally request from my employer RNI to participate in this physical activity".

Mr Aktypis also took exception to the sentence in the statement that it was voluntary to attend the training sessions.  He said that this was an "error” in the statement. 

This was surprising in that this case proceeded on the basis that his participation was voluntary as opposed to the result of any direct suggestion or encouragement by Mr Scibberas for the plaintiff to take part.

Counsel for the defendant did not follow up on this allegation as to the word "voluntary" in the statement.  However in cross-examination it was put to Mr Rampal, who agreed, that Mr Aktypis used the word in the sense of being “not compulsory”.  This did not clear up Mr Aktypis's objection though. 

In any event Mr Aktypis said that the statement about voluntariness and permission, together with other parts in the statement as to which he did not elaborate, were errors, and that he signed the statement "under duress", to use his own words.  He said that he was “pressured” (again to use his own words) to sign the statement by the investigator, as Mr Rampal had another appointment to go to. He also said that Mr Rampal had inserted some of the information in the statement before the interview.

Mr Rampal denied any pressure on Mr Aktypis to sign the statement, and said that if Mr Aktypis was not prepared to sign the statement it would have been sent to the Victorian WorkCover Authority unsigned.  He denied putting any information into the statement in advance.

I turn now to my findings of fact in this case.

Overall, I found Mr Aktypis' evidence to be an unsatisfactory and many parts of his evidence hard to accept.  He was evasive in giving answers on crucial questions put to him in cross-examination. It was necessary for me on several occasions to remind him to actually answer questions.  Further, his evidence became more forceful and adamant in a number of aspects as his cross-examination proceeded. 

For example, in his evidence-in-chief he stated that he had two motives in intending the class, being to foster relations and for personal fitness.  In cross-examination he emphasised that his primary motive was the building of a relationship with CSR and project team employees.  He exaggerated the importance and significance of his actual job with RNI at the CSR premises, especially as it related to any marketing role. I do not accept that evidence as being truthful.

Despite the importance of such a statement (as to motive), it did not form part of his signed statement.  Further, in this signed statement he said that he did not request permission from his employer to participate.  Such a statement corroborated Mr Scibberas’ evidence.

Also, Mr Aktypis stated in his own evidence before me that Mr Scibberas told him after the injury that he did not have any prior knowledge of the CSR fitness  sessions.

I reject Mr Aktypis' evidence that he was under any duress or pressure to sign his statement by Mr Rampal.

Having observed his evasiveness and reluctance to properly answer simple questions asked of him in the witness box, I have difficulty in accepting that he responded to any duress or pressure to sign the statement.  Also, as a qualified and experienced HSE consultant engineer working on projects such as the CSR project being valued up to $100m, I do not accept that he would be prone to any duress or pressure to sign an incorrect statement by the mere statement that the investigator was late for an appointment.

I find that the signed statement did accurately represent his interview with Mr Rampal and the statements made by him therein.  Overall I am not satisfied that on all the evidence that Mr Aktypis' decision and motive to accept the invitation to participate in the fitness sessions had anything to do with a desire to "curry favour" or "foster relationships" with any CSR/RNI or other employees or contractors or otherwise "develop work" for RNI.  Without meaning any disrespect to Mr Aktypis, he is a person who is obviously physically unfit and overweight. 

It was not the sedentary nature of his employment that necessitated the participation in the training sessions, it was his general lack of fitness and other exercise.

He did not seek and was not paid for his time participating in the fitness sessions.  He specifically stopped his billable hours at 4.00 p.m. on each of the two days he attended.  On his own admission he was, or was entitled to be, paid for other attendances for any marketing or other sessions at the RNI St Kilda Towers premises, as well as for attending the lunch with Mr Stacey.

I got the distinct impression he was very careful in submitting correct time and pay details otherwise.  I would have thought that if he had “communicated his intention” to attend the fitness sessions (to use his own words) with Mr Scibberas, which evidence I do not accept, he would have at least discussed the question of some payment or other allowance for attending.

He gave no evidence of any prior knowledge that any CSR person of relevance was attending the classes, let alone those at the "highest level" (to use his own words).

He was told of the existence of the classes by a fellow employee, and later invited by Ms Suey from CSR.  Again, I would say that if he was motivated to “curry favour” or “foster relationships” or similar primary motive, he would at least have made some enquiries as to who was attending the classes and whether it was worthwhile for him to attend the classes.  He did not explain how attending such fitness sessions would have advanced any such fostering of relationships, especially as no relevant CSR staff attended.

The sessions were not group sessions with a trainer, but were rather “one on one” sessions with the trainer conducted at the same time and place with other individuals.

Further, on the first day there were only two CSR sales staff present, and indeed none present on the second day.  On the second day there was one other non-RNI contractor present, as well as Mr Kusel. Mr. Kusel was an RNI engineer not in any position of authority over Mr Aktypis and working separately to him.

In submissions it was put that it was not for Mr Aktypis to know who was to be attending the sessions.  However I disagree with that in view of his express primary motive to take part in order to “curry favour” and “foster relationships”.

If he was so concerned to build up his employer's relationships and business at RNI there may well have been other more constructive ways of doing so.  He attended no other social functions at CSR.  He said that his only other efforts at “fostering relationships” was in attending two occupational health and safety meetings, which I would have thought were part of his HSE brief anyway. There was no other “mingling” despite that evidence by him.

Overall Mr Aktypis's evidence conflicted in a number of aspects with that of Mr Scibberas.  Where there was such conflict I prefer the evidence of Mr Scibberas.  I was impressed by his evidence, which was measured, convincing, and overall more credible than that of Mr Aktypis.  Mr. Scibberas made appropriate and reasonable concessions at times. 

I prefer and accept the evidence of Mr Scibberas that he had no knowledge whatsoever of the fitness program at CSR, let alone Mr Aktypis' intention of taking part.  I further accept his evidence that Mr Aktypis had no marketing duties or expectations apart from further and specific paid aspects such as the Mallia project.  I do not accept Mr Aktypis's evidence that he was given the job because of any marketing experience.

Mr Scibberas took the whole role in developing and extending the consultancy agreement with CSR.  Even Mr Aktypis admitted that his only knowledge of the expiry of the first consultancy agreement was a suspicion shared amongst the other RNI employees at CSR based on Mr Scibberas' increased attendances then at CSR.

I would have thought that if Mr Aktypis had any marketing role at all he would have at least been told by Mr Scibberas of the expiry of the first consultancy agreement at the end of March 2007.  Further, at best on Mr Aktypis' own evidence his only activities to “curry favour and foster relationships” were as I have discussed above, namely the fitness classes, two other OHS meetings at CSR and a later paid lunch. 

Although it was not part of the plaintiff's closing submission, the plaintiff cross-examined Mr Scibberas to a considerable degree that Mr Kusel was the “nominated expert” for the performance of the first consultancy deed, presumably to emphasise the participation of Mr Kusel in the training sessions as well.

However I accept Mr Scibberas' evidence that was not the intention of the defendant (that Mr. Kusel was to be the only nominated expert) and that was one of the reasons why the new rates for the different RNI employees were included in the variation deed.

I do not accept that the inclusion of Mr Kusel as the “nominated expert”, even in the variation deed, takes the matter any further.  Given Mr Aktypis agreed that there were four to five RNI employees at CSR in different descriptions and working separately with no hierarchy, I do not accept that it was Mr Kusel's role, express or implied, to invite approve or encourage Mr Aktypis' participation in the fitness class on behalf of RNI.

In this case it was not disputed by RNI that Mr Aktypis hurt his back in the training classes on 4 April 2007, and that he had at least one day off work and has incurred more than $5000 for related medical and like expenses as a result.

However, as a result of my findings I must look at this case on the basis that the only connection with his RNI employment was that the fitness class took part at the premises of CSR in a period where he was not paid by his employer.  As stated, I reject the plaintiff’s evidence that there was any other work-related reason or motive for so attending the training class, apart from the fact that it was convenient for him to attend there in view of his general unfitness and otherwise lack of exercise.

RNI and its relevant staff did not have any knowledge of the fitness classes, or indeed the participation of its employees.  As Mr Scibberas stated  was something he could not prevent them doing afterwards in their own time, e.g. the same as if they had undertaken similar classes at night at a private gym.  There was no benefit or advantage to RNI in Mr Aktypis participating in the fitness classes. 

RNI did not pay for the classes or encourage the participation of Mr Aktypis.  On the balance of probabilities I do not accept Mr Aktypis' evidence that he did go back to his desk after hurting his back on 4 April to check his emails and turn off his computer.  He had done this after the previous fitness class, and was documented in his pay records.

Insofar as the latter day was concerned, he did not put any later hours in his pay record, did not disclose that information in his signed statement or relate that in any of his medical histories.

In view of my findings I must now consider the legal consequences as to the alleged work relationship between the circumstances of the injury and Mr Aktypis' employment by RNI.  Certainly I am assisted by the submissions of senior counsel for the plaintiff.

I agree with his submission based upon the dicta in Commonwealth v. Oliver 107 CLR 353, 364, adopting earlier High Court dicta in Whittingham v. West Australian Railways that "whether a worker's injury should be regarded as arising in the course of employment is a question of fact involving matters of degree in determining the sufficiency of the connection between employment and the thing done by the employee".

Earlier in Oliver it was stated at p.362 that "where an employee is upon his employer's premises with the employer's sanction during a break in his employment and is injured, what seems to be a very slight connection between what he was doing at the time of his injury and his employment is sufficient to bring the injury within the course of his employment". 

However, as pointed by Mr Justice Kyrou in Reid Stockfeeds v Lindhe [2008] VSC 304 at para. 17, “a nexus must be shown between the relevant activity and the work or service that the employee is required to perform, referring to that activity as being incidental to work or service".

In this case I do not find sufficient connection between the circumstances giving rise to the injury and the injury itself to make the injury work-related.

In this case I have already determined that Mr Aktypis ceased his hours of employment at 4.00 p.m. on the relevant date. I do not accept on the balance of probabilities that he returned to any work that day after ceasing work.  His working hours were flexible, and there were no normal or fixed completion hours (see Hatzimanolis v. ANI 173 CLR 473 at p.483). His ‘ordinary working hours’ had ceased at 4.00 p.m. prior to the fitness class on the evidence before me.

In any event the injury to Mr Aktypis was too remote from his employment, though he was invited to participate by his employer's client at the session in a meeting room on its own premises and at its own expense. 

I have already found that the fitness classes and the participation of at least Mr Aktypis and Mr Kusel was not known to RNI and not agreed to by it.  Mr Aktypis' participation was voluntary, not paid or entitled to be paid, and without any real or apparent benefit to RNI.

I specifically reject the submission that any desire to "curry favour", "foster relationships" or "develop business with CSR on behalf of RNI" played any part in the subjective decision by Mr Aktypis to take part, or objectively benefit RNI by his taking part.

As Mr Aktypis said, he needed to take part to get some fitness, and it was convenient for him to do so at the CSR workplace.  His participation was motivated by his general lack of fitness and lack of other exercise.  Although his work was sedentary this had no part to play in making his participation ‘in the course of employment’.

His participation was neither incidental, ancillary or consequential to work or sufficiently within the sphere of his employment to bring it within the course of employment (see Oliver supra, at p.356).

His participation in the fitness sessions was not reasonably required, expected or authorised in order for him to carry out his actual duties (see Henderson v. Commissioner of Railways 58 CLR 281 at 293).

On the facts I have found, the injury to Mr Aktypis did not occur in an interval or interlude in his employment. Thus, the dicta in WorkCover Authority v. Walling 16 NSWCCR 527 is not relevant to this case, despite the fact that I have found that RNI did not induce or encourage his attendance at the fitness sessions.

Finally, the injury did not arise out of his employment either for the reasons I have set out above.  His employment as such in that particular job did not cause or materially contribute to his injury.  Further, by merely attending a fitness class after hours at RNI’s client's own premises for personal reasons was too remote from his employment, and did not provide a sufficient link to his injury to make his injury work-related for the purpose of the Act (see Crowther v. Metropolitan Meat Industry Commissioners 38 NSWR 116,120).

The proceedings will be dismissed.

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