Dickinson v The Tropical Fruits Incorporated
[2006] NSWWCCPD 331
•1 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dickinson v The Tropical Fruits Incorporated [2006] NSWWCCPD 331
APPELLANT: Joanne Rose Dickinson
RESPONDENT: The Tropical Fruits Incorporated
INSURER:GIO Worker Compensation (NSW) Ltd
FILE NUMBER: WCC4105-06
DATE OF ARBITRATOR’S DECISION: 22 June 2006
DATE OF APPEAL DECISION: 1 December 2006
SUBJECT MATTER OF DECISION: Intention to enter legal relations; existence of a contract; obligation of Arbitrator to call oral evidence; procedural fairness
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Bourke Love McCartney Young
Respondent: Rankin & Nathan
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 June 2006 is confirmed.
No order as to costs of the appeal or of the Arbitration proceedings.
BACKGROUND TO THE APPEAL
On 18 July 2006 Joanne Rose Dickinson (‘the Appellant/Ms Dickinson’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 June 2006.
The Respondent to the Appeal is The Tropical Fruits Incorporated (‘the Respondent’).
The Respondent is an incorporated gay and lesbian social club that holds dance parties for gays and lesbians in the Northern Rivers area of NSW. It has been in operation since it was formed in 1988. It is a non profit organisation whose purpose is to overcome isolation of gay and lesbian people in the area where it operates. As part of its social calendar it organises and runs several major dance parties through the year. One such event was held on New Years Eve on 31 December 2003 (‘the party’).
The Respondent is managed by a voluntary committee consisting of a chairperson, secretary, treasurer, event co-ordinator, editor, bar co-ordinator, work crew co-ordinator, media co-ordinator and ordinary co-ordinator. None of these people are paid employees.
For the purpose of running the dance parties various members and non members volunteer to provide their time to the Respondent free of charge.
Ms Dickinson first became associated with the Respondent in approximately February 2000. It is not clear when she became a member but it is agreed that she was a member as at 31 December 2003. On the evening of the party she volunteered to be a car parking attendant for the Respondent at the Lismore Showground (the venue for the party).
Volunteers were contacted by the work crew co-ordinator or by Georgina Benham (‘Ms Benham’), the Respondent’s events co-ordinator, and asked if they wished to be involved. Shifts were then worked out and the volunteer’s duties would be explained. When they arrive at the event they check into a work crew area and they are given an identification armband and instructions as to their specific duty and shift times. At the end of their shift the volunteers can, if they wish, attend the party free of charge. They are not provided with event tickets. It was agreed at the Arbitration that the value of the work performed by Ms Dickinson on the night of her accident exceeded $10.00.
Whilst engaged as a volunteer parking attendant for the Respondent on the evening of 31 December 2003 Ms Dickinson was struck by a car sustaining injury to her back. Her claim for compensation was declined and on 16 March 2006 an Application to Resolve a Dispute (‘the Application’) was registered with the Commission seeking lump sum compensation in the sum of $8,750.00 in respect of a 7% whole person impairment said to have resulted from the incident on 31 December 2003.
The issue in dispute is identified in the Respondent’s Reply as whether the Appellant was a worker or a deemed worker pursuant to the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The matter proceeded to a hearing before a Commission Arbitrator on 19 June 2006. In an ex tempore decision the Arbitrator found in favour of the Respondent.
Ms Dickinson seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 June 2006, records the Arbitrator’s order as follows:
“1.Award for the Respondent.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)“finding there was no intention between the parties to create the relationship of employer and employee, sufficient to attract the provisions of Schedule 1 Clause 2(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the Act) and to have the Claimant considered a ‘Deemed Worker’ for the purpose of the Act” (Appellant’s submissions paragraph 2.3);
(b)failing to correctly identity the ‘benefit’ received by Ms Dickinson in the bargain that created the relationship of employer and employee;
(c)failed to correctly identity the ‘value of the benefit’ received by Ms Dickinson in the bargain that created the relationship of employer and employee;
(d)failed to give proper weight to relevant facts pursuant to Rule 70 (b) of the Workers Compensation Commission Rules 2003 (see now Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) which are in identical terms to Rule 70);
(e)gave unnecessary weight to the terms ‘volunteer’ and ‘voluntary’ contained in witness statements;
(f)failed to give sufficient weight to the indicia of employment and the remuneration provided to Ms Dickinson “in lieu of work [sic]” (Appellant’s submissions paragraph 3 (b));
(g)failed to afford Ms Dickinson procedural fairness under Rule 70(b) and (c);
(h)denied Ms Dickinson procedural fairness under Rule 71(c) by not substantiating assumptions he made, and
(i)failed to give adequate reasons for his decision.
REVIEW
The nature of a review and the role and function of a Presidential Member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 79; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
The Appellant’s submissions fail to appreciate the issues on which this case turned before the Arbitrator. Those issues were identified by the Arbitrator at the very start of the Arbitration hearing. At page six line 25 of the transcript he said:
“…I think really what I’m going to have to find is whether or not there was consideration that was capable of forming a contract, and, as part of that also whether or not there was an intention to enter into that type of legal relationship. That’s ‑ the difficulty with this case is does being given free admission, is that a reward for a contract to perform work or is that something that occurs for the volunteers in an organisation who carry out their tasks, and it really comes down to what the worker intended. And, anyway, they’re questions I will answer with your assistance. I’d like to hear from you on that. Is that what you both feel what it is going to be for me to determine?
MR LOWE: Yes.
MR BOURKE: Yes.”
Therefore, the two issues identified by the Arbitrator, and agreed to by the parties’ legal representatives as being the relevant issues, were:
(a)whether there was any ‘consideration’ capable of supporting a contract, and
(b)whether there was any intention to enter into legal relations.
These issues were threshold issues that had to be determined before the Arbitrator could consider whether Ms Dickinson was a ‘worker’ or a ‘deemed worker’. They raised the most fundamental issue: was there a contract? That question is answered by deciding, among other things, whether there was an intention to enter legal relations.
Mr Bourke argued that “Ms Dickinson elected to carry out work for the Respondent and to be paid in sunscreen, beverages and entry to the dance party, all of which exceeded $10 in value and all of which establish her as being a deemed worker under Schedule 1” (transcript page nine line eight). This submission was not supported by the evidence.
The evidence from Ms Dickinson is in her statement dated 10 May 2005. She states that she was told by Ms Benham that she was to work in the grounds assisting with parking cars on New Years Eve. On the night she was given a portable radio, a small torch and a coloured wrist band to identify her (Appellant Worker’s statement, paragraph 10). On page eight of her statement she states:
“There was a period in the first couple of years I was actually paid for my work. After that I was not paid for the last couple of years. As Tropical Fruits is a non profit organisation I get free admission to the dance parties in lieu of my work.”
There is no mention in Ms Dickinson’s statement, or anywhere else in the evidence, about the formation of an agreement that could be described as a contract. There is no evidence of an offer and acceptance, or any consideration. Ms Dickinson’s statement makes no mention of agreeing to ‘work’ as a parking attendant in return for free admission to the party later that evening. It is not disputed that volunteers were entitled to attend the party free of charge but there is no evidence that the value of admission to the party represented the ‘consideration’ for a contract between Ms Dickinson and the Respondent.
Ms Benham’s statement deals with the process of organising the volunteers in some detail. She states at paragraph 11 of her statement:
“The process of involvement is that the Volunteers are contacted by the Work Crew Coordinator or myself and asked if they wish to be involved and then their shift times are worked out into a roster. Each Volunteer has their duties explained, together with the Occupational Health & Safety requirements and we provide sunscreen, long-sleeved shirts, hats, sunscreen [sic], road safety jackets, torches, food and beverages.”
This passage deals with the general routine with volunteers rather than the events on and leading up to 13 December 2003. Ms Dickinson’s statement makes no mention of receiving any equipment other than that set out at paragraph [27] above.
In respect of the party Ms Benham states at paragraph 13 of her statement:
“Joanne Dickinson contacted myself as Chairperson and Event Coordinator to request that she be placed on work crew for the New Years Eve Event for 2003/2004, and as a result of that request I rostered her on duty for the Parking Crew shift starting at 7.00pm and finishing at 9.30pm.”
She added at paragraph 14:
“As a member, Joanne Dickinson was aware of our club practice that Volunteers after their shift attend the event free of charge. No Event Ticket was given to Joanne Dickinson as payment for the Volunteer Duty.”
After quoting the above passages the Arbitrator then considered whether there was a contract. At page 21 line four he said:
“Did the applicant do this work only because she was going to receive a free ticket? In other words, was there a concluded negotiation that, ‘I will only work’ ‑ at least, ‘Would you work for us?’ ‘Yes, I will.’ ‘This is the work we would like you to do.’ ‘What will I be paid?’ ‘Your pay will be so much in money or in lieu thereof a free ticket,’ or was the free ticket or free entry consequential on members helping out a voluntary organisation?”
Reference was then made to the evidence of Gordon Haynes, a former executive member of the Respondent’s committee of management. Mr Haynes said in his statement of 5 April 2005 that Ms Dickinson “worked – as did other members of TTF – in an unpaid, voluntary capacity”. The reference to ‘TTF’ is a reference to the Respondent.
The Arbitrator held that the above evidence was:
“…not enough to satisfy the technical legal requirement that there was an intention to create a legal employer/employee relationship. There was no context of entry in lieu of wages, but there’s evidence that free entry was provided to any member who provided their services as a benefit and that was provided as a benefit to those members who helped out with volunteering.” (transcript page 21 line 40)
On the question of whether the free entry to the party was ‘consideration’ for a “bargain under which the Applicant agreed to provide services” (transcript page 21 line 57) the Arbitrator held that Ms Dickinson had not discharged the onus of establishing that there was an intention to create a legal relationship and, therefore, there was no contract of employment (transcript page 22 line five).
The Arbitrator’s conclusion discloses no error of fact, law or discretion. It is supported by the evidence and by authority.
In Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 (‘Teen Ranch’) the applicant was injured whilst working as a volunteer with a non-profit Christian organisation which conducted camps for teenagers. He received accommodation, meals and use of the camp facilities but no wages, altruism being the substantial motive for his work. He was injured while horse riding with teenagers from the camp and was awarded compensation by the trial judge. On appeal the Court of Appeal held that as there was no intention to enter legal relations there was no contract and the applicant failed. At 201 Handley JA said:
“The real question is whether the arrangements between the parties evidenced any intention to enter into legal relations. Such an intention is essential. See Greig & Davis The Law of Contract Sydney, Law Book Co, 1987, chapter 5 and Carter & Harland Contract Law in Australia (2nd ed) Sydney, Butterworths, 1991, chapter 4. The volunteer was cross examined on this matter. He said that once ‘you’ had told the camp you were coming for a particular week or weekend ‘there would be the moral obligation…but no legal obligation’. He later agreed that when he volunteered for a particular week or weekend there was no intention in his mind to enter into any legal obligations. These answers were clearly admissible and although not conclusive, were entitled to considerable weight. See Pitcher v Langford (1991) 23 NSWLR 142.
Family, social, and domestic arrangements do not normally give rise to binding contracts because the parties lack the necessary intention. See Balfour v Balfour [1919] 2 KB 571. There are other arrangements which attract the same principle. Thus in Cameron v Hogan (1934) 51 CLR 358 (which in some respects merits reconsideration by the High Court) the majority at 370-371 said of voluntary associations:
‘They are for the most part bodies of persons who have combined to further some common end or interest which is social, sporting, …religious… or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.’”
The above principles are applicable in the present matter. The arrangements between the parties did not evince “some clear positive indication” that legal relations were contemplated (per Handley JA in Teen Ranch at 202B). There is no evidence that Ms Dickinson performed car parking duties in consideration of or in return for free admission to the party. There was no obligation on her to perform those duties. Therefore, the Arbitrator was correct to find that there was no contract of employment between Ms Dickinson and the Respondent. The arrangement between Ms Dickinson and the Respondent did not involve any contractually binding promise by her to perform any work for the Respondent, either as an employee or as an independent contractor (see Dare v Dietrich (1979) 37 FLR 175 at 185). Therefore, Ms Dickinson could not be either a ‘worker’ or a ‘deemed worker’ under the terms of the 1998 Act.
The Appellant’s arguments are misconceived and fail to acknowledge the fundamental issues in the case: was there a contract and was there an intention to enter into legal relations. The Arbitrator did not fail to correctly identify the ‘benefit’ the Appellant received. That ‘benefit’ did not create the relationship of employer and employee. Without evidence of an intention to create legal relations, the ‘benefit’ created nothing. It was merely a reward or gift in return for volunteering to help out. The fact that the help given by Ms Dickinson provided a benefit to the Respondent is of no consequence in the absence of evidence of an intention to enter legal relations.
The Appellant’s reliance on Rule 70(b) is also misconceived. The relevant provision is now contained in identical terms in Part 15 Rule 15.2 of the Rules which provides:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in
dispute,
(c) evidence based on speculation or unsubstantiated assumptions is
unacceptable,
(d) unqualified opinions are unacceptable.”
The Arbitrator did not ‘inform himself’ on any matters in the present case. He relied on the evidence and submissions presented by the parties. Both parties were legally represented at the Arbitration hearing. The Arbitrator based his decision on the fact that he was not satisfied that the evidence established an intention to create legal relations between Ms Dickinson and the Respondent. That finding was open to him and I agree with it.
The Appellant relies on Savage v Programmed Maintenance Services Pty Ltd (2001) 22 NSWCCR 670 and Qantas Airways Ltd v Campisi [2005] NSWWCCPD 13. In each of those cases it was conceded that the parties’ had entered legal relations. The issue was whether those legal relations established a relationship of employer and employee, or one of independent contractor. They provide no assistance in resolving the issues the Arbitrator had to decide.
I reject the Appellant’s submission that the Arbitrator failed to give sufficient weight to the ‘indicia of employment and the remuneration provided’. The Arbitrator found that there was no intention to enter legal relations and, therefore, no contract. The ‘indicia of employment’ (such as ‘control’) do not assist in determining if a contract exists in the first place. In Teen Ranch Handley JA noted at 201A:
“…the existence of control by the Ranch and its acceptance of the volunteer cannot assist in determining whether or not there was any contract at all.”
The Appellant’s argues that she was denied procedural fairness under Rule 71(c) (now Part 15 Rule 15.3 of the 2006 Rules). That Rule provides:
“The Commission is to take such measures as are reasonably practicable to:
(a) assist the parties to any proceedings to understand the nature of the
proceedings and the legal implications of any assertion made in any
documents or otherwise in the proceedings, and
(b) explain to the parties any aspect of the procedure or any decision or
ruling made by the Commission in relation to the proceedings, and
(c) ensure that the parties have the fullest opportunity practicable to have
their case in the proceedings considered without compromising the
objectives of the Commission, and
(d) ensure that the parties have the opportunity to explore settlement in the
proceedings.”
It is submitted that the Arbitrator was in error for not seeking oral evidence from Ms Dickinson in respect to:
(a)her state of mind and intentions with respect to the working relationship with the Respondent;
(b)whether she would have worked for the Respondent if the remuneration by way of admission to the dance party had not been provided, and
(c)substantiating the understanding of the term ‘volunteer’ used in her statement.
It is also submitted that the Arbitrator was in error in not seeking oral evidence from Mr Gordon Haynes who was present at the Arbitration hearing.
This submission shows a misunderstanding of the Commission’s role and confusion about how Arbitration hearings are conducted. Nowhere in the legislation or the Rules is it suggested that an Arbitrator should conduct the proceedings on behalf of the parties. Whilst an Arbitrator has wider powers than most common law judges in terms of being allowed to inform himself or herself in certain situations, that power must be used sparingly and always with due compliance with the rules of natural justice (see Paul Segaert Pty Limited t/as Lidco v Narayan [2006] NSWWCCPD 296). That power does not remove from the parties’ legal representatives the obligation to properly prepare and present their clients’ case as they see fit. It does not cast on the Arbitrator a positive obligation or duty to request additional evidence. An Arbitrator may do that but is under no legal obligation to do so. An Arbitrator commits no error of law or discretion if he or she remains silent during an Arbitration hearing, though that would not be a model to be followed (Galea v Galea (1990) 19 NSWLR 263 at 282D referred to in Taumata v Movers & Shakers Pty Limited [2006] NSWWCCPD 240 at [65]). An Arbitrator will usually have an active role to play in the conciliation phase of the proceedings when the strengths and weaknesses of the parties’ cases will often be discussed.
However, the Arbitrator in the present matter did not remain silent. He identified the issues and asked the parties legal representatives if they agreed that they were the issues he had to determine. Both Mr Bourke for the Appellant and Mr Lowe for the Respondent agreed that the Arbitrator had correctly identified the issues (see paragraph [23] above) and proceeded to make lengthy submissions on the facts and the authorities. The issue about whether there was any intention to enter legal relations was always alive. It was not for the Arbitrator to seek oral evidence from either the Appellant or any of the other witnesses in the case. The evidence before him was the evidence the parties presented and the evidence on which the Arbitrator was asked to decide the case.
It was open to Mr Bourke to seek leave to call oral evidence if he wished. He made no application to do so and the hearing proceeded on the documentary evidence placed before the Arbitrator. I reject the Appellant’s submission that there was any denial of procedural fairness by the Arbitrator in not ‘seeking’ oral evidence. The fundamental principles of procedural fairness have been stated by Dr M Allars in Introduction to Australian Administrative Review (1990) at 236 to be:
“The three principles of procedural fairness are the hearing rule, the bias rule and the no evidence rule. The hearing rule, based on the maxim audi alteram partem, requires a decision-maker to give an opportunity to be heard to a person whose interest will be adversely affected by the decision. The bias rule, based on the maxim nemo debet esse in propria sua causa, requires a decision-maker to be disinterested or unbiased in the matter to be decided...The no evidence rule, which has developed comparatively recently, requires that a decision be based upon logically probative evidence.”
None of the above principles were breached in the present matter. No authorities have been cited by the Appellant in support of her argument that there has been a breach of the rules of procedural fairness. I reject the Appellant’s submissions on this issue. The Arbitrator clearly complied with all of the principles of procedural fairness and acted reasonably, properly and fairly.
Last, the Appellant submits that the Arbitrator provided insufficient and or inadequate reasons for his decision. It is not disputed that an Arbitrator has a statutory duty to give reasons in support of his or her decision (see Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1). However, to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.
The Appellant’s submission is that the Arbitrator’s reasons set out the evidence “but not the findings on the facts” (Appellant’s submissions, paragraph eight). I reject this submission. The Arbitrator identified the issues, set out relevant parts of the evidence, and found that the evidence did not satisfy the “legal requirement that there was an intention to create a legal employer/employee relationship” (transcript page 21 line 41). In my opinion the Arbitrator complied with his obligation to give reasons in that he explained why and how he reached his conclusion. I see no error of fact, law or discretion in his approach and I agree with his conclusion.
DECISION
The Arbitrator’s decision dated 22 June 2006 is confirmed.
COSTS
No order as to costs of the appeal or of the Arbitration proceedings.
Bill Roche
Acting Deputy President
1 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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