Fed Consulting Services Pty Ltd v Ilija Gelo - [2013] ACTMC 3

FED CONSULTING SERVICES PTY LTD v ILIJA GELO

[2013] ACTMC 3 (26 March 2013)

WORKERS COMPENSATION – Workers Compensation Act 1951(ACT) s 36B – Territory or State of connection – meaning of “works in the employment” – whether any habitual or customary work-related activity sufficient to constitute employment connection – things done which are insubstantial or merely incidental to the employment may not support conclusion that the worker usually works in a jurisdiction for employment connection test.

Workers Compensation Act 1951 (ACT)

Avon Products Pty Ltd v Magrit Falls [2010] ACTCA 21
Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5
Hatzimanolis v ANI Corporation Limited [1992] HCA 21
Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281
Taboritha Consultants Pty Ltd v Knight [2008] WADC 78

No. WC 272 of 2012

Magistrate: Morrison
Magistrates Court of the ACT

Date: 26 March 2013

IN THE MAGISTRATES COURT OF THE       )
  )          No. WC 272 of 2012
AUSTRALIAN CAPITAL TERRITORY            )

BETWEEN:FED CONSULTING PTY LTD
Applicant

AND:ILIJA GELO
Respondent

REASONS FOR DECISION

Magistrate:  Morrison
Date:   26 March 2013
Place:  Canberra

By agreement between the parties the question to be determined by me in these proceedings is limited to that of determining the Territory or State of connection for the purposes of section 36B of the Workers Compensation Act 1951.
It is not in dispute that the worker, Mr Ilija Gelo is both a director and an employee of the employer FED Constructions Pty Ltd. I refer to it as the Company in these reasons. Mr Gelo described himself as an owner of the company and I see from exhibit R4 that he holds one of two ordinary shares which have been issued. He said that the Company had been operating for 31 years.
Mr Gelo says that he personally holds a building licence and that the company also holds a building licence. As I understood his evidence, both he and the company in fact held 2 licences each – one issued in New South Wales and one issued in the ACT. There was no cross-examination of Mr Gelo as to the reason for him or the company holding a New South Wales licence, the costs involved in doing so or what if anything was required of him or the company by way of actually performing building work, holding insurance or indeed anything else in order to hold and maintain or renew such a licence in either New South Wales or the ACT.
Mr Gelo gave his evidence through an interpreter although it was apparent, unsurprisingly for a man in his situation, that he understood some of what was being asked of him without requiring the services of the interpreter.
My assessment of Mr Gelo’s honesty and reliability as a witness was to some extent made more difficult because of the involvement of the interpreter. I hasten to add that this is not a criticism of the interpreter who appeared to be competent and to have a…

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.

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Details

Case: [2013] ACTMC 3
Decision Date: 26 March 2013

CaseChat Overview and Summary

Fed Consulting Services Pty Ltd sued Ilija Gelo, a former employee, for unpaid wages and other entitlements under the Workers Compensation Act 1951 (ACT). The dispute centred on the determination of the jurisdiction that had the connection to the employment for the purposes of workers compensation. The case was heard and determined by the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the mere presence of the employee in the jurisdiction of the ACT, performing activities that were insubstantial or merely incidental to the employment, was sufficient to establish the necessary employment connection under the Act. Specifically, the court needed to determine if the employee's presence in the ACT, even if it was habitual or customary, could be considered as "working in the employment" of the employer in that jurisdiction. The court also had to assess whether these activities were significant enough to establish an employment connection or if they were merely peripheral to the employment.

The court held that the mere presence of the employee in the ACT, performing activities that were insubstantial or incidental to the employment, was not sufficient to establish an employment connection for workers compensation purposes. The court emphasised that for an employment connection to exist, there must be a habitual or customary work-related activity that is significant to the employment. The court found that the activities performed by the employee in the ACT were not sufficiently substantial or integral to the employment to establish the necessary connection. Consequently, the court ruled in favour of the defendant, determining that the ACT did not have the required employment connection for the purposes of the workers compensation claim.

As a result of the court's decision, Fed Consulting Services Pty Ltd's claim against Ilija Gelo was dismissed. The court's ruling clarified the threshold for establishing an employment connection under the Workers Compensation Act 1951 (ACT), providing guidance for future cases involving jurisdictional disputes over workers compensation entitlements.

Orders