Clifford v McCorp Pty Ltd
[2006] NSWWCCPD 28
•24 February 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Clifford v McCorp Pty Ltd [2006] NSWWCCPD 28
APPELLANT: Bruce Clifford
RESPONDENT: McCorp Pty Ltd
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC12754-04
DATE OF ARBITRATOR’S DECISION: 3 March 2005
DATE OF APPEAL DECISION: 24 February 2006
SUBJECT MATTER OF DECISION: ‘Worker’, sections 4 and 9 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: D. La Rosa, Izzo and Co
Respondent: Rankin Nathan Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
BACKGROUND TO THE APPEAL
Bruce Clifford claims lump sum compensation, for 30% to 40% permanent impairment of his back, which he alleges occurred during his employment with McCorp Pty Ltd as a bricklayer on 22 January 1992. Mr Clifford alleges that a cement mixer fell on him causing the injury.
His employer has denied liability for the claim on the basis that Mr Clifford was a ‘sub-contractor’ and not a ‘worker’ for the purpose of any entitlement to workers compensation.
On 30 August 2004 Mr Clifford’s ‘Application to Resolve a Dispute’ was registered in the Workers Compensation Commission. The matter went before a Commission Arbitrator who, on 3 March 2005 determined that McCorp Pty Ltd was not liable to pay Mr Clifford compensation. The Arbitrator accepted McCorp’s argument that Mr Clifford was working as a sub-contractor at the time the injury occurred.
On 5 April 2005 Mr Clifford lodged an ‘Appeal Against Decision of Arbitrator’. The appeal was filed five days late, however at the time Mr Clifford was not legally represented. He has since obtained legal representation.
Leave is granted to extend the time for filing of the appeal to 5 April 2005 (section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
McCorp Pty Ltd is the Respondent to the appeal. The relevant insurer is GIO Workers Compensation (NSW) Limited, which acted for and on behalf of the employer in the Commission proceedings.
There is only one issue in dispute in the appeal, namely: did the Arbitrator err in finding that Mr Clifford was not a ‘worker’ for the purpose of claiming workers compensation?
FRESH EVIDENCE
Mr Clifford argues that a witness, Mr McKenzie, should be called to give oral evidence in the appeal. Mr McKenzie did not give oral evidence before the Arbitrator and therefore this submission is an application for ‘fresh evidence’ on appeal.
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No. 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
The Arbitrator addressed the issue of Mr McKenzie’s evidence in his reasons for decision. He expressly stated that he had not “relied on the statement by Mr McKenzie for any of the conclusions that I have drawn in coming to my decision”.
The issues to be determined, both by the Arbitrator, and on appeal, do not turn on Mr McKenzie’s evidence. They are questions of law concerning the onus of proof of Mr Clifford’s case and the indicia to be considered in determining whether he is a ‘worker’ to whom the workers compensation legislation applies. A substantial injustice will not be caused to Mr Clifford if fresh evidence, in the form of oral evidence from Mr McKenzie, is not permitted on appeal.
Leave to give fresh evidence on appeal is refused.
ON THE PAPERS REVIEW
Mr Clifford requested an oral hearing and that oral evidence be taken from Mr McKenzie. A statement from Mr McKenzie was in evidence before the Arbitrator.
McCorp Pty Ltd consent to the determination of the appeal on the papers.
I have before me all of the evidence and submissions that were before the Arbitrator, plus all additional submissions filed in the appeal. I also have a copy of the transcript of the arbitration hearing held on 25 February 2005.
I am satisfied that the interests of justice do not require the holding of an oral hearing and, as stated above, that I do not need to hear oral evidence from Mr McKenzie in order to review the Arbitrator’s decision.
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the 1998 Act).
DID THE ARBITRATOR ERR IN FINDING THAT MR CLIFFORD WAS NOT A ‘WORKER’ FOR THE PURPOSE OF CLAIMING WORKERS COMPENSATION?
The Arbitrator gave a considered set of written reasons for decision. He notes in the reasons that he gave Mr Clifford considerable “indulgences by way of preparation for the case” because he was unrepresented. Formal service of documents was dispensed with and an additional telephone conference was held. Mr Clifford was also assisted by Commission staff, to ensure that he understood the nature of the proceedings. This is all consistent with the Commission’s ‘Access and Equity Service Charter’ which is addressed, among other things, to the concerns of self-represented litigants.
The Arbitrator correctly identified the issue at the heart of the dispute, namely, what was the nature of the relationship between Mr Clifford and Mr McKenzie, on behalf of McCorp Pty Ltd. The facts of the case are set out at length by the Arbitrator and are not repeated here. The Arbitrator’s summary of the facts is consistent with the evidence that was before him - and indeed reads in a much more coherent and considered way than the evidence that was presented. The Arbitrator made a number of relevant findings of fact, that were open to him on the evidence. They were that:
· Mr Clifford and Mr O’Flynn originally intended to tender for the job of bricklaying on a site in Caringbah or Taren Point but Mr O’Flynn later withdrew.
· SOS Bricklaying was not a party to Mr Clifford’s quote for the job.
· Mr Clifford’s ‘quote’ for the work evidenced an intention to sub-contract the bricklaying work contracted to McCorp Pty Ltd.
· The terms of the quote “postulated employment wages for at least three workers - two bricklayers and a labourer”.
· Mr Clifford took out various ‘cover notes’ for workers compensation insurance in the period following the alleged injury.
· Mr Clifford agreed in cross examination that “. . . the Respondent [McCorp Pty Ltd] did not pay him any money at all, that the Respondent had no control over the hours which he worked, that the materials provided at the job were provided by Mr Greaney and that the Respondent did not provide any tools. The Applicant [Mr Clifford] agreed that no arrangements were made as to whether the Applicant could take any holidays or not and that under the terms of the quote other labourers could be hired, and indeed were used”.
The Arbitrator identified the correct law and addressed the indicia that should be considered in determining whether Mr Clifford was a ‘worker’ or ‘sub-contractor’. The leading case is Hollis v Vabu (2001) 22 NSWCCR 428 (not Barboo as cited in the Arbitrator’s reasons). The Arbitrator’s task was to balance the evidence of the indicia in favour of an employment contract with that pointing to any other type of relationship (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16). A reading of the Arbitrator’s decision demonstrates that this was exactly what he did. His conclusion was open to him on the evidence and should be confirmed.
DECISION
The decision of the Arbitrator is confirmed.
Dr Gabriel Fleming
Deputy President
24 February 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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