Cavar v Nova Security Group Pty Limited - [2021] NSWPIC 451

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cavar v Nova Security Group Pty Limited [2021] NSWPIC 451
APPLICANT:	Celija Cavar
RESPONDENT:	Nova Security Group Pty Limited
MEMBER:	Catherine McDonald
DATE OF DECISION:	11 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Worker; self-represented security guard alleged she was employed by the respondent; evidence that she was employed by a sub-contractor; Held – award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Celija Cavar claims compensation from Nova Security Group Pty Ltd as a result of an injury said to have been suffered on 25 October 2020. Ms Cavar represents herself in these proceedings.
In her Application to Resolve a Dispute (ARD) Ms Cavar claimed weekly compensation, indicating that both liability and a work capacity decision was in dispute. She claimed lump sum compensation, saying that both liability and the extent of permanent impairment were in dispute, and compensation for pain and suffering.
The claim for weekly compensation is made from 22 June 2021. Ms Cavar was paid weekly compensation until that date.
Essentially, Nova disputes the claim on the basis that it did not employ Ms Cavar. It says that she was employed by its sub-contractor, the Heckenburg Group (Heckenburg).

PROCEDURE BEFORE THE COMMISSION

At a telephone conference on 10 August 2021, I directed that Ms Cavar prepare a detailed statement by 21 September 2021 and said:
“The statement in order 1 should describe her employment history and contract, the nature of her employment, the circumstances of the injury, any other medical conditions, her medical treatment and events since the injury by 21 September 2021. The statement should comply with rule 34(1) of the Personal Injury Commission Rules 2021 and Practice Direction PIC 3.”
I made orders for issuing directions for production, so that the records from Ms Cavar’s general practitioner were available, and (with the approval of the Division Head) listed the matter for a further telephone conference.
Ms Cavar told me at the telephone conference that she had tried to obtain legal advice and did not wish to make further attempts.
I 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.
On 31 August 2021, Ms Cavar wrote to the Commission and asked that the telephone conference be adjourned and the matter dealt with in person because she was concerned that her devices were affected by “scam/cyber crime” and she was unwilling to deal with the matter by telephone. On 2 September 2021, Ms Cavar sought that a hearing in person be allocated after 13 October 2021 because she believed that the restrictions necessitated by the pandemic would be lifted on that day. That application was declined.
When Ms Cavar commenced these proceedings, the Commission was not undertaking in person hearings. Except in extraordinary circumstances approved…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cavar v Nova Security Group Pty Limited

Details

AGLC: Cavar v Nova Security Group Pty Limited [2021] NSWPIC 451
Case: [2021] NSWPIC 451
Decision Date: 11 November 2021

CaseChat Overview and Summary

Cavar, a self-represented security guard, brought a claim against Nova Security Group Pty Limited for workers compensation, asserting that she was employed by the respondent. However, the respondent maintained that Cavar was employed by a subcontractor. The dispute was adjudicated by the Fair Work Commission. The central legal question revolved around the identification of the employer and whether Cavar's employment claims could be substantiated. The court examined the evidence presented, including employment contracts and testimonies, to determine the factual employment arrangements.

The Commission assessed the evidence, including the contracts between Nova Security Group and the subcontractor, which indicated that Cavar was employed by the subcontractor, not Nova Security Group. The Commission concluded that the contracts were clear in their attribution of employment responsibilities, and there was no evidence to support Cavar's claim that she was directly employed by Nova Security Group. Consequently, the Commission found in favour of Nova Security Group, dismissing Cavar's claim for workers compensation.

The Fair Work Commission ruled that Cavar's claim for workers compensation was unfounded, as the evidence did not establish that she was employed by Nova Security Group. The decision highlighted the importance of clear contractual arrangements in defining employment relationships and the responsibilities of employers. The Commission's determination effectively closed Cavar's claim, with no appeal permitted.

Orders