AVS Security Pty Ltd v Workers Compensation Nominal Insurer (iCare)
[2021] NSWPIC 21
•15 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AVS Security Pty Ltd v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 21 |
| APPLICANT: | AVS Security Pty Ltd |
| FIRST RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| SECOND RESPONDENT: | Abdalla El Hassan |
| THIRD RESPONDENT: | AVS Corporate Australia Pty Ltd |
| MEMBER: | Ms Jacqueline Snell |
| DATE OF DECISION: | 15 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The applicant sought review of Notice to Reimburse issued under s 145(1) of the Workers Compensation Act 1987; the applicant sought orders that (a) the injured worker was not employed by the applicant at the relevant time or at all and (b) the applicant is not liable for the amount in the Notice to Reimburse; Held – the orders sought by the applicant are refused. |
| DETERMINATIONS MADE: | 1. The applicant’s claim for an order that the second respondent (being the injured worker, Abdallah El Hassan) was not employed by the applicant at the relevant time or at all is refused. 2. The applicant’s claim for an order that it is not liable to reimburse the first respondent (being the Workers Compensation Nominal Insurer (icare)) the sum of $492,668.35 being the sum specified in the Notice to Reimburse issued under s 145(1) of the Workers Compensation Act 1987 dated 15 September 2020 by the first respondent is refused. |
STATEMENT OF REASONS
BACKGROUND
AVS Security Pty Ltd (AVS Security), the applicant in these proceedings was registered on 13 May 2010 and traded under the name “AVS Security”. AVS Security seeks review of the Notice to Reimburse issued under s 145(1) of the Workers Compensation Act 1987 (1987 Act) dated 15 September 2020. Specifically AVS Security seeks the following orders:
(a) that the injured worker, Abdalla El Hassan (Mr El Hassan) was not employed by AVS Security at the relevant time or at all, and
(b) AVS Security is not liable for the amount in the Notice to Reimburse dated 15 September 2020 or at all.
The Workers Compensation Nominal Insurer (icare) (the Nominal Insurer), the first respondent in these proceedings seeks reimbursement of $492,668.35 in respect of compensation benefits paid for and on behalf of Mr El Hassan, the second respondent in these proceedings. The Nominal Insurer maintains Mr El Hassan was employed as a security guard by AVS Security at the time he sustained injury as the result of an assault occurring at the Royal Oak Hotel, Parramatta (the hotel) during the night of 29/30 August 2017. AVS Security maintains the employer of Mr El Hassan at the time of injury was AVS Corporate Australia Pty Ltd (AVS Corporate Australia), the third respondent in these proceedings.
These proceedings proceeded to Arbitration hearing on 18 February 2021. Joe Nasr, solicitor (Mr Nasr), appeared for AVS Security. Lachlan Robison of counsel appeared for the Nominal Insurer instructed by Katt Faapito, solicitor. Eraine Grotte of counsel appeared for
Mr El Hassan instructed by Jasmine Ang, solicitor. Stuart Grant of counsel appeared for AVS Corporate Australia instructed by Loren Rich, solicitor. Brook Murphy, from EML was also present.
ISSUES FOR DETERMINATION
The parties agree that the issue in dispute was whether or not Mr El Hassan was a worker employed by AVS Security at the time he sustained injury.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) s 145 Application and attached documents (Application);
(b) Application to Admit Late Documents dated 23 October 2020 lodged by the first respondent with the Reply (R1 1 – AALD);
(c) Application to Admit Late Documents dated 20 November 2020 lodged by the first respondent and attached documents (R1 2 – AALD);
(d) Application to Admit Late Documents dated 16 December 2020 lodged by the second respondent with the Reply and attached documents (R2 – AALD);
(e) Application to Admit Late Documents dated 13 January 2021 lodged by the first respondent and attached documents (R1 3 – AALD);
(f) Application to Admit Late Documents dated 11 February 2021 lodged by the first respondent and attached documents (R1 4 - AALD), and
(g) third respondent’s Reply and attached documents (Reply).
Oral evidence
Neither party sought leave to adduce oral evidence or cross examine any witnesses. Mr Nasr and all counsel made oral submissions, and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Review of evidence
A brief review of the evidence follows.
Customer Tax Invoice
Customer Tax Invoice No 60043 dated 4 September 2017[1] was issued by AVS Corporate Australia to the hotel. It covered the period Monday 28 August 2017 to Sunday 3 September 2017, and invoiced the hours of work undertaken by Mr El Hasan on 28 and 29 August 2017. It also invoiced the hours of work undertaken by a Sarfaraz Naseem Khan on 30 and 31 August 2017 and 1 and 2 September 2017.
[1] Application at page 16.
Master Licence Certificate
The Master Licence Certificate issued to AVS Corporate Australia[2] had an expiry date of 11 December 2018. The Nominated Person on the certificate was David Nassif (Mr Nassif).
[2] Application at page 17.
Text Messages
Text messages provided by Mr El Hassan between Mr El Hassan and John Tannous
(Mr Tannous) during the period 14 August 2017 and 4 September 2017[3] in which Mr Tannous confirmed Mr El Hassan’s shifts during the first week of his employment and in which he subsequently liaised with Mr El Hassan following the assault during the night of 29/30 August 2017.
[3] R1 1 – AALD at page 1.
Worker’s injury claim form
Mr El Hassan completed a worker’s injury claim form dated 14 September 2017[4]. In this form Mr El Hassan named his employer as AVS Security and named the entity that paid his wages at the time he was injured as AVS Security.
[4] R1 1 – AALD at page 9.
Company Search for AVS Security Pty Ltd
A company search for AVS Security as at 15 September 2020[5] demonstrated the entity traded as “AVS Security”. The principal place of business was recorded as 801A King Georges Road, South Hurstville, and that was the principal place of business at the time Mr El Hassan sustained injury. The current director and secretary was noted as Tony Michael (Mr Michael) and he was the director and secretary at the time Mr El Hassen sustained injury. Mr Nassif was noted as a previous director and secretary of the company. Mr Michael and Australian Admin Services Pty Ltd were shareholders of the company.
[5] R1 2 – AALD at page 132.
Company Search for E Hospitality Services Pty Ltd
A company search for E Hospitality Services Pty Ltd as at 12 February 2020[6] demonstrated the entity traded as “AVS Corporate Australia” and was under external administration. The company had previously been known as AVS Corporate Australia, being the name of the company at the time Mr El Hassan sustained injury. While the principal place of business was recorded as 11 Sutton Street, Blacktown, at the time Mr El Hassan sustained injury the principal place of business was Suite 2, 16 Cowper Street, Granville and a previous principal place of business had been 88 Parramatta Road, Granville. The current director and secretary was noted as Jacob Sartorious, and he was the director and secretary at the time Mr El Hassan sustained injury. Mr Michael, Mr Nassif and Mr Nasr were noted as having been previous directors and secretaries of the company. Mr Michael, Mr Nassif and Mr Nasr were also shareholders of the company.
[6] R1 2 – AALD at page 120.
Company Search for AVS Services Aust Pty Ltd
A company search for AVS Services Aust Pty Ltd as at 2 June 2020[7] demonstrated the entity traded as “APS Facilities Management”. The principal place of business was recorded as 20 Havelock Road, Bayswater VIC and that was the principal base of business at the time Mr El Hassan sustained injury. The current director and secretary was noted as Channel Magele, but Samantha Sleiman was the director and secretary at the time Mr El Hassan sustained injury. Mr Nassif was noted as having been a previous director and secretary during the period 7 May 2018 to 3 June 2019. Mr Nassif was also a share holder of the company.
[7] R1 2 – AALD at page 127.
Factual investigation report
Procare Investigations prepared a number of factual investigation reports.
The first factual report dated 20 December 2017[8] included comment that while Mr Tannous had been contacted on 14 December 2017 and indicated he would call the investigator back, he had failed to do so.
[8] R1 1 – AALD at page 19.
The report also included comment that while a message had been left on 14 December 2017 for Jane Ioana (Ms Ioana) who was the manager at the hotel at the time of Mr El Hassan’s injury, she had not responded. When the investigator attempted to contact Ms Ioana again on 19 December 2017, she spoke with “Natalie” who was the day manager. Natalie confirmed AVS Security was the usual providers of security guards for the hotel. When Ms Ioana contacted the investigator on 19 December 2017, although she said she was not able to provide a statement for four weeks, she said she would look for the “sign in books” for August 2017 and copy Mr El Hassan’s entries in the books. Ms Ioana recommended the investigator speak with Diana Mohandes-Barg (Ms Mohandes-Barg) who she said was a hotel employee also present at the time of Mr El Hassan’s injury.
The second factual report dated 25 January 2017[9] included comment that attempts to contact Mr Tannous remained unanswered and the investigator did not anticipate a response in light of Mr Nassif’s reported comment made under cover of email dated 27 November 2017 that AVS Security had never employed Mr El Hassan. This email of Mr Nassif is not before the Commission.
[9] R1 1 – AALD at page 21.
The report also included comment that when the investigator attended the hotel on 5 January 2018 she was told the sign in books were provided by AVS Security and a new book had recently been started. The investigator reportedly viewed the new sign in book provided by AVS Security, which appeared to have commenced on 3 January 2018. The sign in book was described by the investigator as a spiral bound company produced document with shift record sheets, shift log reports and incident reports. At the back of this current sign in book were licence details for three entities that reportedly appeared to be operated by “AVS” being, Logo Security Services, Infinity Security Group and Oz Wide Security Pty Ltd. The manager on duty at the time of the investigator’s attendance at the hotel later contacted the investigator to advise that she was unable to locate the “old” sign in book. She said “it had most likely already been collected by AVS Security”.
When the investigator met with Mr El Hassan, Mr El Hassan was reportedly unable to provide any documents that established he was employed by AVS Security, other than an envelope that had his name on the front and in which he was provided cash wages. This envelope had $230 written on an inside corner.
In his statement to the investigator dated 22 December 2017[10], Mr El Hassan relevantly said that when he sought employment in the security industry in late July/early August 2017, he randomly contacted AVS Security and was placed in contact with the operations manager, Mr Tannous. After a successful interview with Mr Tannous at an office in Granville,
Mr El Hassan read and signed the company policy and completed a Tax File Number declaration. Mr El Hassan was told by Mr Tannous he would be required to sign further documentation on the return of a staff member and he would then be placed on the payroll system. In the interim, Mr El Hassan would be paid in cash. Mr El Hassan said someone from AVS Security subsequently attended the hotel and Mr El Hassan completed a superannuation form for that person. Mr El Hassan said he was not provided with a uniform but was told by Mr Tannous to wear black trousers and shirt while working.[10] R1 1 – AALD at page 28.
Mr El Hassan said he was required to sign into the “visitor book” on his arrival each night at the hotel and to report to Ms Ioana. He said his duties consisted of patrolling the hotel premises and to be around in case of trouble. No other security guards were rostered on with him.
Following his first night of work, Mr El Hassan said he was paid cash wages. Following his first week of work, Mr El Hassan attended the office in Granville to collect his cash wages, and after the following week of work, Mr El Hassan again attended the office in Granville to collect his cash wages.
On the night he sustained injury, Mr El Hassan said he commenced work at 10pm, which was his normal time to commence work. He signed the visitor book and commenced work. During the night an altercation arose with a small of group of drinkers, which resulted in
Mr El Hassan sustaining injury and being transported by ambulance to Westmead Hospital, where he was assessed and discharged.
When Mr El Hassan attended his general practitioner “ a couple of days after being in hospital” he was issued with a WorkCover Certificate of Capacity, which he scanned through to AVS Security “straight away”, he subsequently received a telephone call from Mr Tannous in which Mr El Hassan was advised he was not covered for workers compensation benefits.
In his statement to the police on the night he sustained injury[11], Mr El Hassan said he was currently employed as a security officer with AVS Security, working from Monday to Saturday at the hotel.
[11] R1 1 – AALD at page 42.
When the investigator met with Ms Mohandes-Barg on 20 January 2017, she was able to view an entry dated 29 August 2017 in an incident book that was relevant to the assault in which Mr El Hassan sustained injury. While Ms Mohandes-Barg initially said she would forward a copy of this entry together with a copy of her police statement and the video that the investigator viewed on Ms Mohandes-Barg’s mobile phone, she subsequently declined to do so.
In her statement[12], Ms Mohandes-Barg confirmed the security guards employed at the hotel each night of the week during her 11 month period of employment at the hotel were provided by AVS Security, with Mr Tannous being one of the main contacts at AVS Security. She said the security guard arrangements were generally made by Rebecca Walsh (Ms Walsh), who was the daughter of the owner of the hotel. While Ms Mohandes-Barg said the guards usually wear an AVS supplied shirt with insignia, she could not recall if Mr El Hassan was wearing a uniform on the night he was assaulted.
[12] R1 1 – AALD at page 37.
Ms Mohandes-Barg confirmed both she and Ms Iona were present at the time Mr El Hassan sustained injury. She confirmed too that after the hotel closed that evening she and Ms Iona went to visit Mr El Hassan, taking him his personal effects. Ms Mohandes-Barg thought Ms Iona gave Mr El Hassan some cash so as to enable him to take a taxi home from the hospital.
The third factual report dated 18 November 2019[13] provided comment relevant to any contract there may have been between AVS Security and the hotel. While the investigator was ultimately able to speak with Ms Walsh, she advised that with her father’s passing the operational side of the hotel business was essentially run by her brother, Ben Kane
(Mr Kane), who was overseas at that time. Ms Walsh cautioned there were issues regarding accessing her deceased father’s documents associated with the hotel. As at the date of reporting no information had been provided by Mr Kane relevant to any contract between AVS Security and the hotel and Ms Walsh was of very limited assistance to the investigator, in that she reportedly merely told the investigator the hotel would generally engage a security guard with a phone call with the hours required and AVS Security would send a guard. At the time of meeting the investigator Ms Walsh told the investigator the hotel was still engaging security guards through a “derivative” of AVS Security.[13] R1 1 – AALD at page 45.
The fourth factual report dated 9 January 2020[14] canvassed the real difficulties the investigator experienced in obtaining information from Mr Kane, with a text message received from Mr Kane in which he advised records sought would need to be sought by subpoena.
[14] R1 1 – AALD at page 48
The fifth factual report dated 5 November 2020 [15] canvassed the investigations made relevant to Mr El Hassan’s claim for work injury damages. The hotel is reported as having now been demolished and the investigator reported being unable to liaise with any relevant witnesses, which he nominated as Mr Tannous, Mr Michael, Mr Nassif, Mr Nasr, Mr Sartorious, James Bilias (identified as accountant for AVS Security) and Ms Ioana.
[15] R1 2 – AALD at page 136
The sixth factual investigation report dated 25 November 2020[16] canvassed further investigations made relevant to Mr El Hassan’s claim for work injury damages. The investigator reported that on 10 November 2020 she was contacted by Mr Nasr, with Mr Nasr confirming in an email[17] he was acting for AVS Security under instruction from Mr Michael and was instructed to provide the following information in response to specific questioning:
(a) AVS Security has never employed Mr El Hassan;
(b) AVS Security has no knowledge of the details of any incident or nor alleged injuries other than those disclosed in the various proceedings previously and currently before the Commission;
(c) AVS Security has never provided security services or any services whatsoever to the hotel or any other venue or premises in NSW, and
(d) other than the items provided to which these current proceedings relate, AVS Security has no other documents.
[16] R1 3 – AALD at page 1.
[17] R1 3– AALD at page 6.
In a subsequent email later that same day[18] also in response to specific request, Mr Nasr wrote “For completeness I should add that Mr Tannous is not and has never been employed by AVS Services Pty Ltd”.
[18] R1 3 – AALD at page 4.
Relevant to Mr Nasr, the investigator incorrectly noted that he was a former director of AVS Corporate Australia, with a listed address of 88 Parramatta Rd, Granville being the same listed address for AVS Security and also referred the reader to public news searches regarding Mr Nasr “and previous issues relating to honest conduct”. In this factual report the investigator also made reference to instructions provided by the solicitors acting in defence of Mr El Hassan’s claim for work injury damages that the Particulars of Claim nominate AVS Services Aust Pty Ltd as the defendant rather than AVS Security. The investigator made reference to a number of AVS connected businesses “which appear to go in and out of administration with interchanging Directions and Managers” being AVS Security Pty Ltd, AVS Corporate Australia Pty Ltd, E Hospitality Services Pty Ltd, AVS Services Pty Ltd, AVS Australian Venue Security Services Pty Ltd, AVS Group of Companies Pty Ltd, AVS Group Australia Pty Ltd “and so on”.
The seventh factual report dated 7 January 2021[19] canvassed the investigator’s contact with Mr Nasr, which resulted in Mr Nasr having declined to make a statement due to conflict. Mr Nasr denied he had any connection with an entity that employed Mr Tannous or
Mr El Hassan. While he said there was a connection between AVS Corporate Australia with the hotel, he had no documentation evidencing the connection, other than it would seem Invoice No 60043. Mr Nasr also said AVS Security did not hold a master security licence.
[19] R 1 4 – AALD at page 6.
Event Refence No 284938594
The Event Reference No 284938594[20] detailed the assault occurring at the hotel during the night of 29 and 30 August 2017 which resulted in injury to Mr El Hassan. While Mr El Hassan is identified as a security guard, no reference is made as to identity of his employer.
[20] R1 2 – AALD at page 148.
Medical evidence relevant to Mr El Hassan
Medical evidence relevant to Mr El Hassan[21] demonstrated that relevant to the injury he sustained in the assault, Mr El Hassan initially attended Westmead Hospital by ambulance. Following his discharge, he subsequently consulted with his general practitioner Dr Rahman on 4 September 2017 and was issued with a WorkCover Certificate of Capacity[22]. The hospital records note Mr El Hassan as working as a hotel security guard at the time of injury but make no mention as to the identity of his employer. Likewise the WorkCover Certificate of capacity notes Mr El Hassan as working in security at the time of injury but makes no mention as to the identity of his employer. None of the certificates issued by Dr Rahman make mention of the identity of Mr El Hassan’s employer and nor do his clinical records.
[21] R1 2 – AALD at pages 1-79.
[22] R1 2 – AALD at page 11.
Mr El Hassan was referred to Dr McKechnie, neurosurgeon, relevant to his complaint of back pain, and when last reviewed by Dr McKechnie on 29 April 2020[23], he had been referred for further MRI with a view to Dr McKechnie discussing treatment options. At no time in his serial reporting does Dr McKechnie make mention of Mr El Hassan’s employer at the time of injury. Likewise in his reports dated 10 January 2018 and 9 February 2018[24], Mr El Hassan’s treating physiologist makes no mention of Mr El Hassan’s employer at the time of injury.
[23] R1 2 – AALD at page 52.
[24] R1 2 – AALD at page 58-60.
Mr El Hassan was also referred to Dr Stevens, psychiatrist, with Dr Stevens providing diagnosis in terms of PTSD resulting from the assault. At no time in his reporting[25] does Dr Stevens make mention of Mr El Hassan’s employer at the time of the assault.
[25] R1 2 – AALD at page 69-76.
ASIC statutory report by a liquidator to creditors relevant to E Hospitality Services Pty Ltd
The ASIC statutory report by a liquidator to creditors relevant to E Hospitality Services Pty Ltd[26] was prepared by Vincent Pirina and was provided to creditors on 26 February 2020. Mr Pirina outlined E Hospitality Services Pty Ltd was incorporated in 23 October 2009, traded as a security and labour hire business that serviced the hospitality industry, and had ceased to trade on or around November 2017. Failure of the business was attributed to action commenced by Revenue NSW relevant to unpaid payroll tax approximating $2,685,000 and the company’s poor financial control including lack of records. The Small Employer Declaration of Actual Wages prepared by Najette Michael, who is noted to be the wife of Mr Michael, for the periods of insurance between 1 July 2013 and 30 June 29014, 1 July 2014 and 30 June 2015 estimated wages for security services for the relevant periods of insurance at only $8,000.
[26] R1 2 – AALD at page 91.
Financial documents relevant to Mr Al Hassan
Payment summaries relevant to Mr El Hassan that were produced in response to a Notice for Production issued by the solicitors representing the Nominal Insurer demonstrated that for the financial year ending 2018[27], being the financial year during which Mr Al Hassan sustained injury, he received income from the Department of Human Services and the Nominal Insurer.
[27] R1 3 - AALD at page 23.
Mr El Hassan’s income tax return for the financial year ending 2018[28] described
Mr El Hassan’s main salary and wage occupation as “security guard” but demonstrated that he received no income other than from the Nominal Insurer and the Department of Human Services.[28] R1 3 - AALD at page 32.
Mr El Hassan’s Commonwealth Bank statement for the period 21 April 2017 to 20 October 2017[29] being the period during which he said worked with AVS Security did not demonstrate any monies being paid into or out of this account during the period during which he said he worked with AVS Security.
Submissions
[29] R1 3 – AALD at page 57.
AVS Security’s submissions
Through Mr Nasr, AVS Security said an assumption had been made, initially by the investigator tasked with carrying out investigations, that AVS Security was the entity that was carrying out the security services at the hotel. There was however no direct evidence before the Commission that AVS Security was the actual entity providing the security services to the hotel. There was before the Commission a number of company searches, but there is absolutely no evidence AVS Security carried out a business in NSW. Mr Nasr said he raised this in light of the information before the Commission that there were at least two other entities with the AVS name that held security licences and at least one of them had an invoice that was provided to the hotel for the security services provided by Mr El Hassan.
Mr Nasr referred to the various company searches that were before the Commission, and pointed out there was no addresses relevant to AVS Security that indicated it operated at any time from or had a business established in Granville. Mr El Hassan said he visited an office in Granville which was consistent with addresses in company searches relevant to the other two AVS entities, whereas the only address before the Commission relevant to AVS Security was an address in South Hurstville. There was a common director, Mr Michael, who was relevant to both the AVS Security and AVS Corporate Australia, but that of its own did not establish the two entities were related.
Mr Nasr accepted the only evidence before the Commission on which AVS Security relied in establishing there was another relevant entity, was the invoice issued for security services provided on the evening of the assault in the name of AVS Corporate Australia. The bank account details of AVS Corporate Australia were noted on the invoice, and further, Mr Nasr said, was that there was a master licence that belonged to AVS Corporate Australia that was current at the time Mr El Hassan sustained injury.
Mr Nasr accepted Mr El Hassan thought he was employed by AVS Security, which led to the assumption AVS Security was the entity carrying out the security services at the relevant hotel but pointed out the “AVS Security Book” at the hotel listed three other entities as having had master licences attached to that security book, none of who were AVS Security.
The Nominal Insurer’s submissions
Through Mr Robison of counsel, the Nominal Insurer referred first to AVS Security’s complaint there was no direct evidence Mr El Hassan worked for AVS Security. He pointed out there was no evidence before the Commission that AVS Security did not have a security licence, and in the event that issue was to be seriously litigated he said one would have thought AVS Security would have conducted a search of the relevant register to confirm that particular position. Mr Robison referred to the AVS Security’s “quite extraordinary statement” that AVS Security and AVS Corporate Australia were not related. He said of that, “one would have to wonder rhetorically, how did the applicant have in its possession the invoice that is apparently the high water mark of the case unless it was intimately related with the company apparently issuing that invoice”. In terms of Mr El Hassan’s understanding as to who he was employed by, Mr Robison said AVS Security cannot contrive to avoid such understanding with comment that Mr El Hassan went to the address associated with company A rather than company B while conceding a commonality of directorship between the two companies. Mr Robison pointed out that attending a meeting with a direction of a company at one address does not mean the director is not conducting a business in respect of the other company. Relevant to the AVS Security’s criticism of the investigation, Mr Robison said the Commission did not sit in review of the investigator. Rather the Commission considers all of the relevant evidence and forms an appropriate view.
Mr Robison summarised the pleaded basis for relief under s 145 of the 1987 Act, and noted:
(a) There was no statement from anyone who is a director or manager of AVS Security to support any of the allegations made by AVS Security. There was no evidence AVS Security had no employees in NSW. There was no evidence where AVS Security does or does not trade. There was no evidence about who AVS Security does or does not employ. There was no evidence about who it does or does not know. Mr Robison made comment the Jones v Dunkel [30] inference “which looms over this case” was perhaps unprecedented in his career.
(b) There was no explanation as to how it was AVS Security came into the possession of the tax invoice allegedly issued by AVS Corporate Australia. He said, on the balance of probabilities, AVS Security obtained the tax invoice because AVS Security is a single operation with different entities. The tax invoice did not mean Mr El Hassan was not employed by AVS Security. It was rather convenient too the only tax invoice tendered in these proceedings was in respect of the hotel and in respect of the period of time during which Mr El Hassan sustained injury.
(c) Regarding the documents relevant to insurance premiums, AVS Corporate Australia disclosed wages of about $8,000, which was totally inconsistent with the AVS Corporate Australia being a security company providing ongoing security services to what was at the time a reasonably large hotel in Parramatta, and accordingly it was much more probable those services were being provided by AVS Security.
(d) The investigation material demonstrated Mr Tannous was entirely unhelpful in assisting the investigation process. The investigator asked Mr Nasr to provide a statement and he declined on the basis it would be inappropriate for him to be a witness as he was acting for AVS Security. This served to bolster the Jones v Dunkel problem AVS Security had.
[30] [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel).
Mr Robison argued that while certain allegations had been put forward by AVS Security by way of email, nothing was attested or the subject of statutory declaration. The allegations made by AVS Security were not supported in any way remotely approaching acceptable evidence expected by the Commission and there was no persuasive basis put by AVS Security to the Commission that would enable disturbance of the status quo.
Mr El Hassan’s submissions
Through Ms Grotte of counsel, Mr El Hassan addressed the question of employment with reiteration of what Mr Robison had submitted on the issue. Ms Grotte said Mr El Hassan also adopted the submissions made by Mr Robison “in a general sense” relevant to the state of the AVS Security’s evidence. Ms Grotte submitted there was no actual evidence before the Commission to displace the evidence of Mr El Hassan, which was that he was employed by AVS Security.
Ms Grotte referred to the statement provided by Mr El Hassan, which she confirmed was an important document before the Commission. Ms Grotte referred to Mr El Hassan having undertaken a google search for security companies, having found “AVS Security” and having made contact with the operations manager in accordance with what he saw on the relevant website. Mr El Hassan subsequently drove to AVS Security’s office in Granville where he met with Mr Tannous, and was provided with work. He worked on a few occasions prior to the night of 29/30 August 2017 when he worked at the hotel, was assaulted and injured.
Mr El Hassan told the police following the assault “I’m currently employed as a security officer with AVS Security”.
Ms Grotte also referred to the statement provided by Ms Mohandes-Barg, who was a casual bar attendant at the hotel and who had been working for 11 months by January 2018. Ms Mohandes-Barg said:
“AVS Security has supplied security guards to the hotel while I have been employed here. Rebecca Walsh, the hotel owner’s daughter, normally arranges this with John Tannous of AVS. We have a sign-in book for the guards which is supplied by AVS in which they enter time in and time out each night. It also has an incident log and daily running sheet incorporated into it. I don’t know where the book is. AVS might have taken it”.
Ms Mohandes-Barg detailed when it was Mr El Hassan commenced working at the hotel, his general duties as a security guard at the hotel and what transpired on the night of the assault resulting in injury. Ms Mohandes-Barg also canvassed the hotel’s own incident book entry for night of the assault but never provided it to the investigator.
While the owners of the hotel initially indicated to the investigator they would be co-operative of her enquiry, they have not been at all co-operative and there has been complaint made to SIRA regarding the noncompliance of direction issued directly to Mr Cain.
Ms Grotte confirmed Mr El Hassan’s view there was no supportive probative evidence of any kind before the Commission to support submissions made by AVS Security.
AVS Corporate Australia’s submissions
Through Mr Grant of counsel, AVS Corporate Australia adopted the submissions of both the Nominal Insurer and Mr El Hassan. Mr Grant said there were a number of things wrong with this particular matter that would concern the Commission. He referred to the fact there was no statement from anyone to explain the number of issues that have arisen in these proceedings. He said the application made by AVS Security and the evidence provided in support of the application “is flimsy, to say the least”.
Mr Grant referred to the application itself in which AVS Security said it did not know
Mr El Hassan. Mr Grant said that this was a pretty extreme comment to have made bearing in mind the relationship between the AVS Security and AVS Corporate Australia. He pointed out there seemed to be a number of companies all carrying the name AVS that were interconnected. He mused as to why these companies existed and what they did. He questioned whether they were all in security, and noted there was no explanation from anyone as to what these companies did.
Mr Grant canvassed the AVS Security’s reliance on the tax invoice which carried the name of AVS Corporate Australia, which he pointed out was dated 4 September 2017 being a date after the assault took place during the night of 29/30 August 2017. He said when coupled with other evidence, the invoice might be viewed with some suspicion. Mr Grant noted the tax invoice contained other information that was not explained. While the tax invoice referred to Mr El Hassan, it also referred to another worker altogether, about which nothing was known at all, including who employed him and what part he played in all of this. There were no documents before the Commission that demonstrate the employment status of that particular worker either.
Relevant to the statement provided by Mr El Hassan, while Mr Grant reiterated
Mr El Hassan’s submissions relevant to the steps associated with the him securing his
role with AVS Security, he noted Mr El Hassan also said he filled out a tax file document, which was not before the Commission. Mr Grant also referred to Mr El Hassan having said someone from AVS Security came to the workplace and requested he sign a superannuation form, a document which again was not before the Commission. Mr Grant noted
Mr El Hassan was directed by someone named “John” to work at the hotel, with obvious inference that this person was Mr Tannous as there was no other “John” mentioned elsewhere in these proceedings. Following the assault there were short messages between Mr Tannous and Mr El Hassan, particularly about returning to work, and there was also a telephone call from Mr Tannous to Mr El Hassan in which Mr El Hassan was advised there was no workers compensation insurance available to assist him. Mr El Hassan subsequently became aware from his solicitor the CEO of AVS Security had advised there was no record of Mr El Hassan having been employed by AVS Security. Mr Grant said with no explanation having been provided as to the accuracy of the Mr El Hassan’s statement, it stood uncontradicted and should be accepted.
Relevant to the claim form provided by Mr El Hassan that was dated 14 September 2017, Mr Grant submitted one would have thought AVS Security would have said on receipt of it that it did not employ the Mr El Hassan, it is another company altogether. But AVS Security did not do that, and there is no explanation as to why not. Perhaps the reason was AVS Security knew full well that it employed Mr El Hassan and was “just wondering at this point, where do we go to from here?”.
Relevant to the evidence of Ms Mohandes-Barg, Mr Grant had a couple of things to add. Ms Mohandes-Barg referred to AVS Security employees wearing shirts with AVS Security on them when they were working at the hotel. Ms Mohandes-Barg also referred to the sign in book that was reportedly perhaps collected by the AVS Security. It seemed this sign in book had now disappeared. Where had it gone? Why wasn’t it in evidence? The inference is that the sign in book doesn’t help AVS Security’s position in this matter. Relevant to the sign in book, Mr Grant referred to the fact that that it appeared to have had three other companies connected with it, which might infer that there were a number of people undertaking security work for one or other entities controlled by AVS Security
Relevant to the police statement, this reiterated Mr El Hassan’s position that he understood himself to be employed by AVS Security.
Relevant to the wage declaration that revealed wages of $8,274 for the year, this would translate to a very low premium. There has been no explanation as to who was paid these wages. Was it Mr El Hassan?
Mr Grant then turned to John Tannous, who he said “plays a big part in all this”. He was identified as the operations manager of AVS Security and there was no evidence before the Commission to say he wasn’t the operations manager of AVS Security. Mr Grant noted an email from Mr Nasr on the letterhead of Jeresyn Legal that said “Mr Tannous is not and has never been employed by AVS Services”. Mr Nasr doesn’t say Mr Tannous was not employed by AVS Security. Mr Grant suggested a starting point in all this would have been a statement from Mr Tannous, and there was none. Why?
Mr Grant noted too the hotel had been very uncooperative. He noted also the hotel still engaged security people from a derivative of AVS Security.
AVS Security’s submissions in response
Mr Nasr canvassed a couple of matters in response to the submissions made on behalf of the Nominal Insurer, Mr El Hassan and AVS Corporate Australia, with particular reference to submissions that he had been a director of both AVS Security and AVS Corporate Australia and that the two companies shared the same registered office at 88 Parramatta Road, Granville as he was not aware of evidence before the Commission to that effect.
He confirmed the wage declaration discussed by Mr Grant related to AVS Corporate Australia and not to AVS Security.
Mr Nasr noted too the suggestion that security services were still being provided to the hotel by an AVS entity and pointed out the hotel no longer existed and there was no evidence to that effect. Mr Grant at this point accepted the hotel no longer existed but said he understood the security services were being provided to the Northbridge Hotel, which is a hotel controlled by the same family who had previously controlled the Royal Oak Hotel.
Relevant to submissions made about the lack of relevant information put before the Commission by AVS Security, Mr Nasr pointed out that in circumstances where AVS Security suggested it was not Mr El Hassan’s employer and had nothing to do with providing security services at the hotel, how could AVS Security possibly have that relevant information to put before the Commission? With reference in particular to obtaining information from the hotel, Mr Nasr pointed out that the hotel had not responded to a Direction issued by the Commission and wondered what AVS Security could have done to obtain information in the circumstances.
As regards the email in which Mr Nasr had advised Mr Tannous had not worked with AVS Services, Mr Nasr said reference to “AVS Services” was a typographical error and should have read “AVS Security”. He said the typographical error was evident when this particular email was read in context with the other emails which responding to questions about AVS Security. Mr Nasr asked the Commission to accept there had been a typographical error.
Determination
In these proceedings, AVS Security seeks a review of the Notice to Reimburse issued under s 145(1) of the 1987 Act dated 15 September 2020 and seeks orders that (a) Mr El Hassan was not employed by AVS Security at the time he was injured or at all and (b) AVS Security is not liable for the amount in the Notice to Reimburse or at all.
Section 145 of the 1987 Act relevantly provides:
“(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was:
(a)in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time,
…
a notice requiring that person, within a period specified in the notice to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
...
(3) A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4) The Commission may hear any such application and may:
(a)Make such determination in relation to the applicant, and
(b)Make such awards or orders as to the payment of compensation under this Act or in respect of the injured worker concerned,
as the Commission thinks fit.”
Relevant to submissions made by counsel for the Nominal Insurer, Mr El Hassan and AVS Corporate Australia regarding the state of the evidence placed before the Commission by AVS Security, I am mindful the standard of proof that applies in the Commission was described by the Court of Appeal in Nguyen v Cosmopolitan Homes[31] McDougall J, with whom the other members of the Court agreed, said at [55]:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
[31] [2008] NSWCA 246.
I am mindful too of the explanation as to the standard of proof that applies to matters in the Commission that was provided by Dixon J in Briginshaw v Briginshaw[32] and comment by Bathurst CJ in Curtis v Harden Shire Council[33].
[32] [1938] HCA 34; 60CLR 336 at 361-362.
[33] [2014] NSWCA 314 at 20.
As to whether Mr El Hassan was employed by AVS Security in the role of security guard at the time he sustained injury as a result of the assault during the night of 29/30 August 2017, I consider it constructive to note that relevant to the workers compensation legislation, a “worker” who is entitled to receive benefits is relevantly defined in s 4(1) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in the following terms:
“ worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing”.
The essential feature of the definition in s 4 is the “contract of service” between the “employer” and the “worker”. Establishing a contract of service involves principles of contract law and in essence, if there is clear evidence a person offered services for reward, and the proposed employer accepted the offer on the basis that payment for those services would be made, there will be an intention to enter into legal relations, and a contract of employment will exist.
In his statement to the investigator Mr El Hassan explained that when seeking employment in the security industry during 2017, he randomly contacted AVS Security and was placed in contact with Mr Tannous who he said was the operations manager. Mr El Hassan said following successful interview with Mr Tannous at an office in Granville, he read and signed the company policy and completed a Tax File Number declaration. He said he was told by Mr Tannous he would be paid in cash, pending the return of a staff member after which he would be placed on the payroll system. Text messages between Mr Tannous and
Mr El Hassan during the period 14 August 2017 and 4 September 2017 demonstrated confirmation by Mr Tannous of Mr El Hassan’s shifts during the first week of his employment. Mr El Hassan said someone from AVS Security subsequently attended the hotel and he completed a superannuation form for that particular person. Mr El Hassan said he was required to sign into the “visitor book” on his arrival each night at the hotel (a book that I understand to be the sign in book, which was reportedly provided by AVS Security and subsequently collected by AVS Security). Mr El Hassan confirmed he was paid cash wages and that he attended the office in Granville in order to collect his wages. Following injury, and in response to him scanning through a WorkCover Certificate of Capacity to AVS Security, Mr El Hassan said Mr Tannous telephoned him to let him know he was not covered for workers compensation benefits. There is no evidence before the Commission that disputes the version of events described by Mr El Hassan in his statement and accordingly I accept Mr El Hassan has provided a credible history regarding his recruitment and engagement at the hotel as a security guard.
In his statement to the police Mr El Hassan said was employed by AVS Security and in his worker’s injury claim form he named his employer as AVS Security and named the entity that paid his wages as AVS Security. In her statement Ms Mohandes-Barg confirmed that during her 11 month period of employment at the hotel, the security guards engaged at the hotel each night of the worker were provided by AVS Security. She said too that Mr Tannous was one of the main contacts for AVS Security. Although she did not provide a statement, Ms Walsh reportedly told the investigator that the hotel would generally engage a security guard from AVS Security with a telephone call with the hours required. Natalie who was reportedly the day manager when the investigator attended the hotel on19 December 2017 also confirmed AVS Security was the usual providers of security guards for the hotel.
While it is clearly evident Mr El Hassan believed he was employed by AVS Security as a security guard at the time he sustained injury during the night of 29/30 August 2017 and Ms Mohandes-Barg, Ms Walsh and Natalie believed the security guards engaged at the hotel were provided by AVS Security, quite curiously the invoice before the Commission relevant to Mr El Hassan’s engagement at the hotel for 28 and 29 August 2017 was issued by AVS Corporate Australia rather than AVS Security. I consider it noteworthy however that the initial WorkCover Certificate of Capacity issued by Dr Rahman, which Mr El Hassan said he scanned “straight away” through to AVS Security was dated 4 September 2017, which is the same date of the invoice issued by AVS Corporate Australia referred, and there are no other invoices before the Commission that are relevant to Mr El Hassan’s engagement with the hotel.
Quite curious too is that while Mr Nassif (who Mr El Hassan described as the CEO of AVS Security but who was neither a director of AVS Security or AVS Corporate Australia at the time Mr El Hasson sustained injury but had previously been a director and secretary of both) reportedly advised under cover of email dated 27 November 2017 that AVS Security had never employed Mr El Hassan, this email is not before the Commission and there is no evidentiary statement in which Mr Nassif confirms such reported assertion. Although there is an email from Mr Nasr before the Commission in which he provided response to specific questioning that AVS Security had never employed Mr El Hassan and did not provide security services to the hotel, Mr Nasr wrote in that email he was instructed to provide that information by Mr Michael (who was the director and secretary for AVS Security) and I note there is no evidentiary statement from Mr Michael before the Commission in which he confirms such assertions.
Submission was made relevant to the rule in Jones v Dunkel, being the rule that arises where a party fails to call or otherwise tender evidence that would have been expected to have been favourable to that party. This rule merely permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles a trier of fact to more readily draw any inference available to be drawn from the tendered evidence[34].
[34] Manly Council v Byrne [2004] NSWCA 123
On the evidence before the Commission, with particular reference to the evidentiary statements provided by Mr El Hassan and Ms Mohandes-Barg, but noting there is no evidentiary statement/s to support contention by AVS Security that AVS Security did not employ Mr El Hassan and did not provide security services to the hotel, I am satisfied on the balance of probabilities that Mr El Hassan was employed by AVS Security and engaged at the hotel as a security guard at the time he sustained injury as a result of an assault occurring during the night of 29/30 August 2017.
While there is before the Commission an invoice issued to the hotel on 4 September 2017 by an entity other than AVS Security that is relevant to Mr El Hassan’s engagement at the hotel on 28 and 29 August 2017 I am curious as to how this invoice came into the possession of AVS Security (particularly in circumstances where it is submitted by Mr Nasr that there is no connection between AVS Security and AVS Corporate Australia and it is also submitted by Mr Nasr that AVS Security would not been able to obtain relevant information from the hotel), I am curious to the fact this invoice was issued on the same day Mr El Hassan scanned through his first WorkCover Certificate of Capacity to AVS Security, and I am also curious to the fact there are no other invoices before the Commission relevant to Mr El Hassan’s engagement at the hotel. No explanation to satisfy such curiosity has been provided by AVS Security and in the absence of any acceptable explanation by AVS Security to satisfy such curiosity, I am not satisfied the invoice (which Mr Nasr accepted was the only evidence before the Commission on which AVS Security relied in establishing there was another relevant entity) establishes to the required standard of proof that AVS Security did not employ Mr El Hassan at the time he sustained injury as a result of an assault occurring at the hotel during the night of 29/30 August 2017.
SUMMARY
AVS Security seeks review of the Notice to Reimburse issued under s 145(1) of the 1987 Act dated 15 September 2020. Specifically AVS Security seeks the following orders:
(a) that Mr El Hassan was not employed by AVS Security at the relevant time or at all, and
(b) AVS Security is not liable for the amount in the Notice to Reimburse dated 15 September 2020 or at all.
The claim made by AVS Security for an order that Mr El Hassan was not employed by AVS Security at the relevant time or at all is refused.
The claim made by AVS Security for an order that it is not liable to reimburse the Nominal Insurer the sum of $492,668.35 being the sum specified in the Notice to Reimburse issued under s 145(1) of the 1987 Act dated 15 September 2020 by the Nominal Insurer is refused.
Jacqueline Snell
MEMBER
15 March 2021
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