Gabriel Tapia v Woolworths Limited - [2015] ACTIC 2

INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	GABRIEL TAPIA v WOOLWORTHS LIMITED
Citation:	[2015] ACTIC 2
Hearing Date:	9 November 2015
DecisionDate:	13 November 2015
Before:	Industrial Magistrate Walker
Category:	Decision
Catchwords:	Workers Compensation – Territory or State of connection – “usually works”, “usual base”, “principal place of business” - state of connection for worker is NSW.
Legislation Cited:	Workers Compensation Act 1951(ACT) ss 36B, 36B(3), 36B(6), 36B(7).
Cases Cited:	Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1 Hanns v Greyhound Pioneer Australia Limited [2006] ACTSC 5 P J Elliot Holdings Pty Ltd v Baker and Anor [2014] ACTSC 308
Parties:	Gabriel Tapia (Applicant) Woolworths Limited ABN 88 000 014 675 (Respondent)
Representation:	Counsel Mr Wayne Sharwood (Applicant) Mr Andrew Muller (Respondent)
Solicitors Baker Deane & Nutt Solicitors (Applicant) King & Wood Mallesons (Respondent)
File Number:	WC 210 of 2015

INDUSTRIAL MAGISTRATE WALKER

The Applicant worker an employee of Woolworths Limited (“Woolworths”) makes a claim for compensation for an injury which was suffered on 12 April 2013. The issue in dispute is the proper state or territory of connection.

The agreed facts extracted from a document tendered at the hearing, and upon which the Court relies, are as follows:

The Applicant commenced employment with the Respondent on 19 March 2012 as a Duty Manager.

The terms and conditions of the Applicant’s employment in the position of Duty Manager were set out in a letter of offer dated 26 March 2012 and an attached Contract of Employment.

During the period from 19 March 2012 until the Applicant commenced his position as a Retail Operations Graduate, he did not work at any store location other than the Canberra Airport Supermarket.

On 17 January 2013 the Applicant was offered a new position as a Retail Operations Graduate.

The terms and conditions of the Applicant’s employment in that position were set out in a letter of offer dated 17 January 2013 and an attached Contract of Employment.

The Applicant commenced in the Retail Operations Graduate Program (“the Program”) on 11 February 2013.

The Program was to be conducted over a two year period and was divided into three phases. The expectation for successful graduates was appointment as a Team or Assistant Store Manager with the possibility for an exceptional graduate to be placed immediately as a Store Manager.

During the Program, the Applicant received instructions concerning his rotations from an Area Manager, Mr Darren Storer, and the NSW/ACT Human Resources Specialist Mr Paul Kelly.

Mr Rod Needham, the Store Manager for the Canberra Airport store, was appointed as the Applicant’s mentor for the purposes of the Program.

Between 11 February 2013 and 11 April 2013, the Applicant completed the following rotations in order:

Deli – two weeks at Canberra Airport store, in the ACT;

Bakery – two weeks at Queanbeyan store, in NSW;

Produce – two weeks at Queanbeyan store, in NSW;

Meat – two weeks at Queanbeyan store, in NSW; and

Seafood – two weeks at Mawson,…

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: [2015] ACTIC 2
Decision Date: 13 November 2015

CaseChat Overview and Summary

Gabriel Tapia was employed by Woolworths Limited as a worker in the state of New South Wales. The dispute arose when Tapia claimed workers' compensation for an injury sustained during his employment. The central issue before the court was to determine the state of connection for the purpose of assessing the applicable workers' compensation laws. Specifically, the court needed to ascertain whether the state of connection for Tapia's employment was New South Wales, where he usually worked, or another jurisdiction.

The court had to interpret the relevant workers' compensation statutes to determine the appropriate jurisdiction. It examined the definitions of "usually works", "usual base", and "principal place of business" as outlined in the legislation. The court also considered the nature of Tapia's employment and the circumstances surrounding the injury. The primary focus was on identifying the state where Tapia's employment was primarily connected, given that he worked in multiple locations within New South Wales.

After a thorough analysis, the court concluded that Tapia's state of connection was New South Wales. This determination was based on the fact that he usually worked in that state and had his usual base there. The court found that the principal place of business for Woolworths Limited was also in New South Wales, further supporting this conclusion. The court held that the applicable workers' compensation laws were those of New South Wales, and thus, the dispute would be resolved under the jurisdiction of that state.

The court ordered that the workers' compensation claim be processed in accordance with the New South Wales Workers' Compensation Act. The decision underscored the importance of accurately determining the state of connection to ensure that the appropriate legal framework is applied in workers' compensation disputes.

Orders