Al-Najle v KM Logistics & Services Pty Ltd
[2024] VMC 5
•23 April 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. N11358721
| Naddim AL-NAJLE | Plaintiff |
| v | |
| KM LOGISTICS & SERVICES PTY LTD | Defendant |
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MAGISTRATE: | Magistrate M A Hoare |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 February 2024 |
DATE OF DECISION: | 23 April 2024 |
CASE MAY BE CITED AS: | Al-Najle v KM Logistics & Services Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VMC 5 |
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WORKERS COMPENSATION – ‘Pre-injury Average Weekly Earnings’ - Dispute as to worker’s ‘ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury’ - Workplace Injury Rehabilitation and Compensation Act 2013, s. 153(2)(a).
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | - | Self-represented |
| For the Defendant | Ms C Kusiak | Minter Ellison |
HER HONOUR:
Introduction
Mr Al-Najle brings this proceeding disputing the calculation of his pre-injury average weekly earnings (‘PIAWE’) under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).
By notice dated 10 August 2021, the Agent (the WorkCover insurer for his employer) determined Mr Al-Najle’s PIAWE for his accepted right ankle injury (the injury) at the rate of $131.00 gross per week (the decision).
Mr Al-Najle had lodged a claim for compensation dated 28 March 2021 on KM Logistics & Services Pty Ltd (KML) for the injury accepted by notice dated 19 July 2021 (the claim).
Mr Al-Najle was legally represented up until 11 October 2023 when his former lawyers filed a notice of ceasing to act. Mr Al-Najle informed the Court at a Special Mention on 6 December 2023 that he was not able to arrange alternative legal representation and also that he wanted his case to proceed to a contested hearing.
Mr Al-Najle was self-represented at the hearing and gave oral evidence. For the defendant, the director of KML, Mr Kunal (known as Ricky) Minhas gave evidence as did a former employee of KML, Mr Gupta.
By agreement, the parties tendered documents from court books (prepared and filed at a time when Mr Al-Najle was legally represented). I have considered all the tendered evidence but will refer to it only to the extent necessary.
The dispute was a factual one requiring the Court to make findings about Mr Al-Najle’s employment arrangement with KML relevant to the question of the ‘ordinary earnings that the worker could reasonably have been expected to have earned in that employment’ pursuant to s.153(2)(a) of the Act.
Factual Background
I start by setting out the matters about which there was no dispute between the parties.
Mr Al-Najle had a past work history as a casual picker and packer which included some experience using a zipping machine. He had been unemployed for some time before starting with KML.
10 KML was a contractor providing logistics and transport services to a larger food logistics company.
11 KML had posted an ad online (on Gumtree) looking to hire individuals to perform casual work loading trucks at warehouse premises in South Oakleigh (the workplace). The individuals needed to have experience operating a loading device known as a zipping machine.
12 After seeing the KML ad, Mr Al-Najle telephoned Mr Minhas and they had a discussion by phone.
13 On Sunday 16 May 2021, by mutual arrangement, Mr Al-Najle first attended the workplace sometime in the morning. That date was also the date of the injury (which occurred at the workplace in the afternoon).
14 As at that, Mr Al-Najle lived in Lalor in northern metropolitan Melbourne.
15 Mr Al-Najle did not work again for KML after the injury and is currently unemployed.
Mr Al-Najle’s evidence
16 After being sworn in, Mr Al-Najle gave evidence including that:
a. In early 2020, shortly before covid lockdowns began, he returned to Melbourne from overseas. He could not recall applying for jobs other than the KML role as it was a tough time due to the pandemic. He recalled no other job interviews around the time.
b. When Mr Al-Najle telephoned Mr Minhas after seeing the online ad, they discussed: his past work history; what the loading job required; and the hours. They agreed on terms which were 4 days a week from 3:00 pm until 11:00 pm. He would have agreed to work 35 hours a week given the travel time.
c. The next day (a Sunday) Mr Al-Najle went to the workplace and started at around 9:00 am. The drive time between his home and the workplace was an hour and 45 minutes.
d. After he arrived at the workplace, he met with Mr Minhas who explained again about the hours, rate of pay and nature of tasks. Mr Minhas told him the hours were 3:00 pm to 11:00 pm four days a week and the days would be Sunday to Thursday. Mr Minhas had a contract ready for him to sign but, given it was a Sunday and the office was closed, it was agreed they would sign the paperwork the next day. However, no contract was signed because he did not return on the Monday due to the injury.
e. At a conciliation conference (before proceedings were issued), the Agent produced a contract with his name on it from March 2021 which was two months before he started.
f. KML was ‘making stuff up’.
17 Mr Al-Najle was then cross-examined and the following evidence was adduced:
a. As well as the phone discussion with Mr Minhas, there were text messages ‘back and forth’ about a start date, although he could not recall further specifics of the ad nor what was discussed. They definitely covered the hours, the pay rate and what the job involved. He denied asking Mr Minhas if he could be paid cash in hand.
b. The travel time was an hour and a bit depending on traffic and not exactly an hour and 45 minutes. He disagreed it would be reasonable to travel some distance to his first job in a long time, given his extended period of being unemployed as well as the impact of covid on finding work, saying it would be a $30 tank of petrol.
c. When it was put to him, Sunday to Thursday was in fact five days, he said, ‘well, four days - Sunday to Wednesday’.
d. When it was put to him the job hours were only four hours (not 3:00 pm to 11:00 pm), he said it would ‘obviously make no sense’ for him to drive an hour and 20 minutes to make $100’ and ‘any sane person would reject that’.
e. As for the hourly rate, that was agreed at around the $27/$28 mark or $27 ‘point something’ but not $25, that was for sure.
f. He denied there was no formal contract given to him on 16 May 2021, he was shown a contract by Mr Minhas which stated 3:00 pm till 11:00 pm four days a week at a rate of $27 per hour or in that vicinity. He had not seen that contract since, which had then ‘vanished’, and the contract then produced by KML or the Agent at conciliation had ‘appeared out of nowhere’.
18 Regarding the claim form, under cross-examination he gave the following evidence:
a. he had completed and signed the claim form including the declaration it was true and correct.
b. As for why he would have ticked the box ‘trainee’, that was ‘a good question’. However, being new to ‘all this’; he hadn’t known what to tick so there may have been an error or two. He ought to have ticked part-time or casual. When asked whether he agreed he worked on 16 May 2021 as part of a trial and that was why he ticked ‘trainee’, he couldn’t see how it could have been a trial when they had agreed on pay rates and so on. He completed the form as correctly as he could at the time given he had no access to any paperwork nor would Mr Minhas take his calls.
c. As for ‘usual working hours’, he had ‘no clue’ as to why he wrote ‘NA’ meaning ‘not applicable’ in front of the days and hours as follows: ‘N.A, Sunday – Thursday 3-11 pm’.
d. As for why he put ‘NA’ regarding his ‘usual pre-tax hourly rate’ and ‘usual pre-tax weekly earnings, he hadn’t worked for some time before and wasn’t too clear on tax arrangements or how to calculate pre-tax figures. It was only now he saw his mistakes in putting ‘NA’ and had only learned today that ‘pre-tax’ meant ‘gross’.
e. He was a ‘normal human being’ who made ‘rookie mistakes’ on the claim form because he didn’t know how to fill it out; such forms would normally be filled out by a manager.
Mr Minhas’ evidence
19 Mr Minhas, director of KML, had been in the role for ten years. KML was a contractor providing transport and logistics services to a larger contractor (‘Superior Foods’).
20 The online ad he posted was a brief one, stating: the role; the salary of $25 per hour; the hours being four hours on a Sunday; and his contact details.
21 KML did the loading work on a Sunday because the contractor (Superior Foods) was required to deliver supplies to food outlets such Hungry Jacks and Domino’s early on a Monday. Those businesses needed weekly supplies delivered to their outlets at the start of the working week being Monday. The trucks were loaded on Sundays and deliveries occurred in the early hours of Monday. In early 2021, he had between 5 and 8 employees or sub-contractors in transport and/or loading roles. He had hopes or plans for expansion of work to include more contracts which would then mean being able to offer work.
22 Once individuals responded had to the ad, he short-listed three people after having phone discussions with them; one was Mr Al-Najle due to his past experience using a zipping machine.
23 During the phone discussion with Mr Al-Najle, it was agreed he would attend on the Sunday (16 May 2021) at around 11:00 am (as did two others he spoke with). The arrangement was $25 an hour for four hours on a Sunday. They also discussed Mr Al-Najle’s prior relevant work history. He asked if he could be paid cash and Mr Minhas said no.
24 Mr Minhas arranged to meet the individuals including Mr Al-Najle at 11.00 am on Sunday in the car park of the worksite. He intended to show them the tasks and, once he felt comfortable with how they worked, they would have been hired.
25 Mr Al-Najle had arrived in his pyjamas or non-work-clothes.
26 Mr Minhas handed employment paperwork to all three individuals and then showed them to how to use the equipment. The employment contract contained a job description, the salary as stated in the ad of $25/hour for four hours a week.
27 As for the three individuals, Mr Al-Najle had not been hired because of the injury; but the others were. They remained under that arrangement of four hours on Sunday at a rate of $100 for some time. That was evidenced from KML pay records.
28 As for when Mr Al-Najle and Mr Minhas were first in contact, under cross-examination by Mr Al-Najle, Mr Minhas said it was no more than 2-3 days before 16 May 2021. As for when the job ad was posted, because of covid lockdowns, the job was advertised then there was a delay. The first time they met was on 16 May 2021.
29 When asked by Mr Al-Najle why a contract would have been produced at conciliation that had a date on it of 16 March 2021 with Mr Al-Najle’s name on it, Mr Minhas could not explain that. The job was supposed to start earlier, but things were delayed due to covid.
30 Under cross-examination, Mr Minhas denied there was any discussion either on the phone or at the worksite as to working days being Sunday to Thursday nor Sunday to Wednesday nor hours of 3:00 pm to 11:00 pm.
31 As for why no contract was signed on 16 May 2021, that was because Mr Al-Najle was not hired at that stage.
32 Under cross-examination, Mr Al-Najle then asked Mr Minhas why, if he was in his pyjamas and not hired, why he was there working when injured, Mr Minhas said he let him work the shift because he had travelled for an hour to get there.
Mr Gupta’s evidence
33 Mr Karan Gupta, employed currently as an operations manager with Coles Express, had worked for KML between May 2021 and July 2022. He was initially employed by KML as a loader then as a truck-driver. He applied after seeing the ad online and then, after a phone discussion with Mr Minhas, he attended the workplace on a Sunday in May 2021. Three or four other individuals also attended. Everyone was given induction paperwork and shown the zipping machine. His arrangement with KML for the loading work was to be paid $25 an hour for 4 hours’ work one day a week being a Sunday. That was the situation the whole time he worked as a loader with KML.
Analysis
34 Section s.153(2)(a) of the Act governs calculation of PIAWE for workers continuously employed for less than 4 weeks before the injury. That section provides for PIAWE to be calculated having regard to ‘the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury’ during the period of 52 weeks after the injury expressed as a weekly sum…’[1]
[1] The ’enhancement’ provision including in s.153(2)(b) did not apply in this case.
35 The burden of proof lay with Mr Al-Najle to establish, on the balance of probabilities, he had an entitlement to weekly payments based on a PIAWE higher than that calculated by the Agent.
36 A determination as to what the worker ‘could reasonably have been expected to have earned’ over the 52 weeks post-injury’ required the Court to conduct an objective assessment and factual findings based on the whole of the evidence. It was not, therefore, a question of what the worker may have subjectively expected regarding the employment.
37 I now set out a brief outline of submissions in the order in which they were given.
a. The case for KML
38 Counsel for KM submitted that, considered objectively on the whole of the evidence, Mr Al-Najle had failed to establish a credible basis for contending that he could reasonably have expected to earn more than $100 a week in the role with KML.
39 Mr Al-Najle’s evidence was not credible or reliable and the evidence of Mr Minhas ought to be preferred.
40 On the other hand, Mr Minhas’s evidence was persuasive regarding the operational needs of KML and was also supported by KML business records being the 2021 pay records of two comparable employees.
41 According to Counsel for KML, the Agent’s decision was correct regarding the PIAWE figure and, if anything, was an over-calculation and ought to have been $100 not $130.
b. The case for Mr Al-Najle
42 In his closing address, Mr Al-Najle largely re-stated his opening remarks to the Court.
43 Mr Al-Najle submitted he had been honest about the arrangement between himself and KML and his version should be accepted over that of Mr Minhas. In essence, on a consideration of all the circumstances including the travel time between the workplace and his residence in Lalor, he would never have agreed to a job that offered only four hours. The arrangement agreed between himself and KML was as just as he had told the Court which was that the arrangement was more than 4 hours a week and at a rate higher than $25.
44 Aspects of the case for KML were unexplained and showed KML was ‘making things up’: the actual contract from his attendance on 16 May 2021 was never produced and no explanation was given by KML regarding a contract produced at conciliation with a March 2021 date and his name on it. That made no sense as it was two months before he started.
c. Consideration
45 Whilst Mr Al-Najle was a self-represented plaintiff at hearing, the dispute before the Court was, as I said at the outset, a relatively simple factual dispute regarding two conflicting versions of what Mr Al-Najle’s ‘ordinary earnings’ would have been but for his injury.
46 I found Mr Al-Najle to be a confident and articulate advocate and witness in spite of his evidence suggesting otherwise (such as having learned something today about gross earnings, his reference to ‘rookie errors’ and apparent inability to explain why he completed the claim form in the way he had).
47 Weighing the whole of the evidence, particularly Mr Al-Najle’s evidence, I formed the impression that he was not a reliable or honest witness. His answers on key disputed matters were contradictory or inconsistent and, at times, exaggerated or contrived and self-serving.
48 A central assertion was that he would never have agreed to work only four hours a week given the travel time involved. His evidence about that was contradictory and unpersuasive. He initially said under oath the travel time was an hour and 45 minutes, then later altered his evidence to an hour and ’a bit’ and at yet another point referred to the travel time being an hour and twenty minutes.
49 Another example (relating to a key disputed fact i.e. the days of work) was Mr Al-Najle’s contention that the arrangement with KML was to be four days a week being Sunday to Thursday. When it was pointed out those days in fact comprised five days, he amended his evidence to the days being Sunday to Wednesday. At yet another point when questioned further about what the days were, he said, ‘now he thought about it’, he had made a mistake and maybe the Sunday was just the day they made arrangements and the usual days would then have been Monday to Thursday.
50 There were other examples of Mr Al-Najle’s evidence that were confusing, vague or inconsistent. For instance, it was unclear when the telephone discussion occurred relative to the date he attended the workplace (at one stage he said it was the day before, at another stage he appeared to suggest there was a gap of days or even weeks). Also, initially his evidence was the arrangement was made via the phone discussion, then later he referred to there being text messages back and forth which were not produced and were not mentioned previously.
51 His evidence was, as I have said, colourful and seemed contrived or exaggerated such referring to a contract that had ’vanished’, that he was a ‘normal human being’ who made ‘rookie errors’ and that it was KML who had ‘made things up’.
52 Based on his oral evidence and his presentation overall, I am unable to accept Mr Al-Najle’s assertion that his inconsistent answers or apparent errors on the claim form were explained by a lack of sophistication or ‘rookie errors’. I consider it more likely his version of his ‘ordinary earnings’ (that is, 3:00 pm to 11:00 pm four or five days week) was either wishful thinking or a deliberate attempt to mislead regarding the calculation of weekly benefits payable.
53 In Mr Al-Najle’s statement to the Agent’s circumstance investigator dated 10 June 2021 just a month after the injury (accepted by him as true and correct in a contemporaneous email), he said the hourly rate was said to be $27; however, tellingly, nothing was said about the expected days being either four or five days per week. Mr Al-Najle was unable to explain why that was so when asked about it.
54 I consider Mr Minhas’ evidence was generally credible. His evidence about requiring individuals to perform loading on Sundays had a ring of truth about it. I say that based on his evidence that KML’s arrangement with his major (indeed only) contractor was to load up food trucks for delivery to fast food outlets in the early hours of Monday.
55 KML’s case was also supported by contemporaneous documentary records being KML pay records for two comparable employees:
a. the first employee from 5 July 2020 to 20 June 2021 showed a consistent record of weekly earnings of four hours at $25 hour an hour;
b. the second employee from 16 May 2021 to 17 April 2022 showed, similarly, a consistent record of weekly earnings of four hours at $25 hour an hour.
56 As for Mr Gupta’s oral evidence, to my mind, that was of limited if any evidentiary weight regarding the question of what the arrangement was between KML and Mr Al-Najle.
57 I find that Mr Minhas’ hope of making arrangements with contractors other than Superior Foods was just that in 2021 and there is nothing in that hope to support a finding of expected ordinary hours of Mr Al-Najle being more than the four hours on a Sunday.
58 For these reasons, I make the following finding of fact:
a. The ordinary earnings that Mr Al-Najle could reasonably have expected to earn with KML was $25 an hour for four hours a week or $100 a week over the 52 weeks from 16 May 2021.
Conclusion
59 For the reasons stated I find that the plaintiff has failed to discharge the burden of proof that his PIAWE is higher than the $130 assessed by the Agent.
60 I would therefore dismiss the proceeding subject to hearing from the parties as to proposed final orders.
MAGISTRATE M A HOARE
23 APRIL 2024
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