George Dowton v The Salvation Army
[2003] NSWWCCPD 24
•2 October 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | George Dowton v The Salvation Army [2003] NSW WCC PD 24 |
| APPELLANT: | George Dowton |
| RESPONDENT: | The Salvation Army |
| INSURER: | NRMA Workers Compensation (NSW) Pty Ltd |
| FILE NO: | WCC2555-2002 |
| DATE OF DECISION: | 2 October, 2003 |
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron |
| DECISION UNDER APPEAL: | Application for Leave to appeal against the decision of an Arbitrator that the Appellant was not a worker within the meaning of section 4 of the Workplace Injury Management and Workers Compensation Act 1998; Respondent not liable for claim for weekly compensation pursuant to section 40 of the Workers Compensation Act 1987. |
| DATE OF DECISION UNDER APPEAL: | 5 March, 2003 |
| HEARING: | Determined on the papers |
| REPRESENTATION: | Appellant: Slattery Thompson |
| Respondent: Sparke Helmore | |
| ORDERS MADE ON APPEAL: | The Appeal is not allowed. The decision appealed against is confirmed. No order is made as to costs. |
THE APPEAL
On 26 March, 2003 George Dowton (‘the Appellant’), lodged an ‘Application to Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of the Commission constituted by an Arbitrator, dated 5 March, 2003. The Respondent to the appeal is The Salvation Army (‘the Respondent’) and the Insurer is NRMA Workers Compensation (NSW) (No. 2) Pty Ltd, (‘the Insurer’).
The issues in dispute before the Arbitrator were summarized in the Arbitrator’s Statement of Reasons for Decision, as follows:
·Was the Applicant a worker? [Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)]
·Was the claim made within time? [the 1998 Act]
·Did the Applicant receive an injury arising out of or in the course of employment? [Workers Compensation Act 1987 (‘the 1987 Act’)]
·For what period was the Applicant partially incapacitated? Did any incapacity arise from factors other than the injury? [the 1987 Act]
·In respect of any period of partial incapacity for work:
(a)what is the weekly amount which the Applicant would probably have been earning but for the injury had he continued to be employed in the same or comparable employment? [the 1987 Act ss 40(2)(a)]
(b)what is the average weekly amount the Applicant would be able to earn in some suitable employment from time to time after the injury? [the 1987 Act ss 40(2)(b), (3), 42, 43, 43A (definition)]
THE DECISION UNDER REVIEW
The Certificate of Determination issued by the Commission on 5 March, 2003 sets out the decision of the Arbitrator as follows:
The Respondent is not liable for the Applicant’s claim for weekly compensation pursuant to s 40 of the Workers Compensation Act 1987.
In arriving at that decision, the Arbitrator found that the Appellant was not a worker, as defined under section 4 of the Workplace Injury Management and Workers Compensation Act 1998.
THE ISSUES IN DISPUTE ON APPEAL
The issue in dispute in the appeal is whether there was an intention to create a legal relationship (a contract of service) between the parties and therefore, whether the Appellant was a worker within the meaning of section 4 of the 1998 Act.
JURISDICTION TO HEAR THE APPEAL
Before proceeding with the appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides as follows:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The Arbitrator’s decision was made on 5 March, 2003 and the Certificate of Determination was issued on the same date. The appeal was lodged within 28 days of that decision, that is, on 26 March, 2003, in compliance with section 352(4) of the 1998 Act.
The amount of compensation in issue is comprised of weekly benefits claimed since November, 1989 to date and consequently, the amount is at least $5,000. The Appellant is not precluded by section 352(2)(b) of the 1998 Act simply because the Arbitrator made no monetary award: Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5.
Leave to appeal against the decision of the Arbitrator is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“354 Procedure before Commission
(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.”
The Appellant indicated in his submission under cover of a letter dated 2 April, 2003 that the matter should proceed by way of oral hearing. The Respondent stated in its submission under cover of a letter dated 28 April, 2003 that “the matter may be suitable for determination on the papers, particularly on the basis that the Applicant does not have any grounds for appealing this decision.”
The matter came before me in August, 2003 and on 26 August, 2003 I gave a direction that the Appellant should provide any final submissions that he wished to make and serve them on the Commission and the Respondent, no later than Monday 8 September, 2003. I further directed that the Appellant should include in those submissions, the reasons why the appeal may not be dealt with on the papers, pursuant to section 354(6) of the 1998 Act. I also directed that the Respondent should respond if desired, by filing with the Commission, its response to any such submissions and by serving a copy on the Appellant, no later than Monday 15 September, 2003.
I am advised that no submissions have been received from either party, pursuant to the directions given.
Having regard to Practice Direction Number 1 of 2003, the submissions that have been made by both parties, the documents that are before me, and the absence of any reasons being advanced that I should not do so, 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 of this matter.
EVIDENCE AND SUBMISSIONS
The Appellant gave sworn oral evidence in the proceedings before the Arbitrator. The evidence is summarized at pages 5-7 of the Arbitrator’s Statement of Reasons for Decision, as follows:
“Mr Dowton gave evidence that he was an alcoholic, and had been for many years. He indicated that for the past seventeen years he had been a ‘dry drunk’, in that he had not had a drink, but that he still considered himself an alcoholic. He had worked during the seventies as a school cleaner for the Government. In 1988 he was put on sickness benefits for his alcoholism.
He entered an alcohol rehabilitation program run by the Salvation Army in Townsville. On or shortly after the 30/10/89, he took a letter of introduction from Captain Colin Alley in Townsville to the addressee Captain Max Hale, in Dangar, near Newcastle. That letter indicated that the Applicant had been ‘for some time off and on both participating in the Rehabilitation Alcohol and Drug Bridge program and as a Dayworker in the Sheltered Workshop.’ The letter indicated a need for spiritual counselling, and that the Applicant ‘would like accommodation at the hostel and to work at the Workshop.’
The letter has [sic] received stamp on it with a hand written date 6/11 and the Applicant presumed this to be the day he arrived. He moved into the hostel and within a day or so he entered the program in Newcastle. The program, as Mr Dowton described it, included infrequent (at most twice weekly) counselling, some trips to and from Alcoholics Anonymous (AA) meetings, room and board at the hostel, and work at the Salvation Army shop. He was not paid for this work.
Mr Dowton described the dormitory accommodation as being much less than the room and bed, he expected, and of a lesser quality than he could have purchased himself on the open rental market. He felt ripped off and ‘verbally abused’ by staff. All his DSS payment went to the Salvation Army.
Each day, he worked from 9-5 as an off-sider on the Salvation Army vehicle, picking up and delivering donations. After two to three weeks of the program, the injury occurred. The Applicant was standing on the back of the vehicle, and the driver told him to lift a heavy sack of papers. He asked the driver to wait as he [sic] Applicant stated his belief that the alcohol he had consumed had taken the calcium out of his bones, and for that reason, as he lifted, his back went out.
He reported the incident in the sign-on book at the shop. He ‘did not want to kick up a fuss’, and the next day he went to a doctor. He also had X-rays taken at Newcastle Hospital. He went back to work in the shop, but not as an off-sider. He could not recall any time off, although he ‘bludged a bit’.
Following the injury, he was unable to do manual work, and believed, because of hints and suggestions, that if he did not do the heavy work he would have to leave the program. He did not seek treatment for his back, nor did he see a solicitor. At the time he thought one could not take action against the Salvation Army. Also, he was ashamed of himself, his alcoholism, and his evidence was that was this stopped him getting legal or medical advice.
Soon after the injury, he formed a relationship with someone in Cairns, and moved up there in early January, 1990. He saw a doctor there, for his alcoholism and his back, which hurt ‘in a minor way’. He could not recall any medication at the time. After a while, he ‘sat in front of a board’ and was put on a disability pension. (His written statement indicates the pension was granted on 27/9/1990).
While in Cairns he worked in a voluntary capacity at a soup kitchen on the weekend, and in a voluntary capacity at St Vincent de Paul during the week. He worked seven days a week for a year or more, then went to work for the Endeavour Foundation, also as a volunteer.
He did not know why he waited twelve years to make a claim, it was ‘just one of those things’, as well as the embarrassment. He took action as his back was getting worse. He indicated that he had tried to get archival records for his claim from the doctor in Cairns and the Hospital in Newcastle, but was unable to afford the fees.
In answer to a question as to whether he could still do the work of an off-sider, the Applicant gave evidence of a subsequent injury to his back, when he fell off a train, on or about 11/9/1996. Following that accident, he saw a solicitor, attended a hearing at the Downing Centre, and was awarded $7500.00. Before the accident, he was working as a volunteer 5 or 6 days a week, but the accident aggravated his past injury and following it he had to cut down his days of volunteer work.
In answer to a question as to what stopped him doing paid work, he indicated ‘my back, and being an alcoholic’. He gave further evidence that he had been told by his higher power to do volunteer work as a way of showing appreciation for AA. He still attends AA meetings as therapy, he remains scared he could take a drink.
Presently, he is not sure what work he is capable of. He is still doing volunteer work helping customers to chose [sic] furniture but he will have to ‘give it away soon’. He cannot lift the furniture any more as it aggravates his back. At his age, being an alcoholic, he did not believe he could obtain paid work. Also, he preferred volunteer work, to give back to the community that helped him.”
Documentary evidence that was before the Arbitrator, and that is before me in this appeal, is listed in paragraph 13 of the Arbitrator’s Statement of Reasons for Decision, as follows:
For the Appellant
·Statements of George Michael Dowton dated, 10/12/02 and 12/12/02.
·Medical report dated 14/1/02, of Dr. V. Maniam, the Appellant’s treating doctor.
·Medical certificates from Dr. Maniam, dated 3/5/02, 14/6/02 and 28/8/02.
·Invoice from Dr. Maniam, dated 29/8/02.
·Letter from Colin Alley to Max Hale, regarding the Appellant, dated 30/10/89 [together with a copy of that letter marked “received” and with “6/11” endorsed thereon – as referred to elsewhere in the Arbitrator’s Statement of Reasons for Decision].
For the Respondent
·Medical report of Dr. P. Isbister, the Respondent’s Consultant Orthopaedic Surgeon, dated 28/11/02.
·Letter from WorkCover to Sparke Helmore dated 16/10/02 regarding the Appellant.
·Computer printout from the Compensation Court of NSW regarding a file search regarding the Appellant.
Written submissions were made in the appeal by the Appellant and the Respondent, and may be summarized as follows:
The Appellant
(1)There was an express and/or implied contract to work, between the parties;
(2)Correspondence from the Respondent to the Appellant that was before the Arbitrator, is documentary evidence of the acceptance by the Appellant of the offer to work when he attended the Respondent’s office in Newcastle;
(3)“On page 13 of judgement arbitrator found consideration”;
(4)There was an intention to create a legal relationship on the basis that the worker was paid for his services; the accommodation was dormitory style accommodation and the worker was paid the same monies for this as when renting his own flat (the inference is that he was paying for the service of rehabilitation by work); the worker was transferred to light duties by the Respondent when he was injured (the inference to be drawn is that the worker was not told to leave but was transferred to light duties so that the rehabilitation program could continue, and the Appellant left because he considered that the services provided were not adequate, following his injury).
(5)The worker was obliged to work in order to obtain the rehabilitation service and was not told to leave when he was injured, as the Respondent considered that it was legally obliged to provide the services as long as the Appellant undertook some kind of work.
The Appellant provided copies of the letter dated 30/10/89 from the Respondent, that was before the Arbitrator and a copy of that letter endorsed “Received 6/11”. The Appellant submitted a copy of Teen Ranch Pty Ltd v Brown (1990), 11 NSWCCR 197, upon which he relies.
The Respondent
(1) The Certificate of determination issued on 5 March, 2003 and the Statement of Reasons for Decision, are sound.
(2)The Arbitrator considered all of the issues, determined the matter before her, and made an order that the Respondent is not liable for the Applicant’s claim for weekly compensation, pursuant to section 40 of the 1987 Act.
(3)The Respondent relies upon the Appellant’s own evidence, in that he conceded that his DSS payment was forwarded directly to the Respondent and in return, he received accommodation, food, and rehabilitation for alcohol dependence, which included spiritual counselling as well as attending a sheltered workshop.
(4)The Respondent relies upon the decision of Teen Ranch Pty Ltd v Brown (1990), 11 NSWCCR 197, in which the Court of Appeal found that voluntary work for a religious organization did not constitute a binding contract or an intention to create legal relations. Further, the Salvation Army letter of 30 October, 1989 from Colin Alley to Max Hale is evidence of no other matter than that the Appellant was admitted to the rehabilitation program and would occasionally work in a sheltered workshop. The evidence that the Applicant intends to rely upon is insignificant and insubstantial and does not support the existence of a contract of employment. The Appellant has raised no new issues that were not considered by the Arbitrator and dealt with in her Statement of Reasons for Decision.
(5)The Appellant relies, in part, on the Arbitrator’s comment in the third paragraph on page 13 of her Statement of Reasons for Decision:
“While I accept Mr Livers’ submission that his client worked and paid his DSS payment in order to benefit from the Bridge Program, and that therefore consideration existed, I do not regard this, in itself, is evidence of a contract of service. It is equally evidence to support the submission made by Mr Natsia, that the Applicant was paying for a service the Salvation Army provided.”
The Arbitrator qualified this statement by saying that there had been no evidence of an intention to create legal relations or that the Appellant entered into a contract of service.
(6)The Respondent disagrees with the Appellant’s submission that the only legal issue outstanding is whether there was an intention to create legal relations.
(7)It is agreed that the Appellant admitted himself into the Respondent’s drug and alcohol rehabilitation program on a number of occasions. The Appellant’s evidence was that he was free to come and go as he pleased. A short time after the alleged injury, the Appellant left the Bridge Program in Newcastle and went to Cairns.
(8)The Appellant was not obliged to work in order to obtain rehabilitation, as he claimed. The Appellant’s “work” at the sheltered workshop was part of his rehabilitation program. In any event, the Appellant gave evidence that he was doing volunteer work on two or three days per week, at the time of the hearing before the Arbitrator. This suggests that he is not experiencing any incapacity for employment.
(9)The Appellant’s alleged injury with the Respondent was not as significant as the incident described in 1996 when he fell from a train. Any incapacity that he suffers at the present time is a result of this incident.
(10)Leave to appeal should be denied as the amount of compensation in issue on appeal is less than $5,000 and “in fact 100% of the award is appealed against.”
The Respondent indicated that it relied on the report dated 28 November, 2002 from Dr. Isbister and the decision in Teen Ranch Pty Ltd v Brown, (1990) 11 NSWCCR 197.
NATURE OF APPEAL TO A PRESIDENTIAL MEMBER
Before proceeding to a consideration of the evidence and the findings of the Arbitrator, it is useful to outline briefly, the nature and scope of an appeal to a Presidential member. Section 352(5) of the 1998 Act provides that an appeal under this section is to be by way of review of the decision appealed against.
An outline of the nature of an appeal to a Presidential member is set out in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7 at paragraph 18, as follows:
“A Presidential member has a specific and limited role in the review of a decision of the Commission constituted by an Arbitrator. It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47, 31 August, 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission [constituted by a Presidential member] to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesh v Maunz [2000] HCA 30 (3 August, 2000)).”
DISCUSSION AND FINDINGS
While other issues were in dispute between the parties, before the Arbitrator, the issues in this appeal are whether there was an intention to create a legal relationship between them, being a contract of service, and whether the Appellant was a worker within the meaning of section 4 of the 1998 Act. The Arbitrator did not proceed beyond the point where she found that no contract of service existed and that the Appellant was not a worker employed by the Respondent, within the meaning of that section.
The essential facts are not in dispute and are substanially, as set out above. A close consideration of the evidence does not disclose, in my view, anything to support an intention to create legal relations that amounts to a contract of service of employment, between the parties. The Appellant, an alcoholic, sought and obtained assistance from the Salvation Army through the Bridge (rehabilitation) program and undertook counselling, obtained spiritual and other guidance and support, received hostel-style board and lodging, attended Alcoholics Anomymous and worked in the Salvation Army sheltered workshop. If there was a contract of service, it was for a rehabilitation service provided by the Salvation Army to the Appellant, from which the Appellant was free to withdraw (and indeed he did so) at any time. There is no evidence that the Appellant was other than a participant in the Respondent’s rehabilitation program. I agree with the Arbitrator therefore, that he was not employed by the Respondent under a contract of service. The Arbitrator’s view is summarised by her at page 13 of her Statement of Reasons, as follows:
“The Applicant simply arrived with a letter of introduction and requested entry to the program. He commenced straight away, and left of his own volition some seven weeks later. There were no indicia of employment. In my view, work done as part of such a program was done simply to fulfil the requirements of the program, which was designed, and entered into by the Applicant, for rehabilitation.”
Both parties cited Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 which in my view, was correctly applied by the Arbitrator in this matter. The Appellant in the instant matter was not employed by the Salvation Army for the purpose of obtaining the benefits he derived. His work at the sheltered workshop was incidental to and part of, the rehabilitation program into which he entered of his own free will, and for which he paid, by directing his “DSS” payments to the Respondent. This is consistent with the decision in the case cited.
Section 4 of the 1998 Act, provides inter alia, that:
“worker means a person who has entered into or works under a contract of service or apprenticeship with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).”
Having regard to the evidence, I find that the Appellant did not enter into nor did he work, under a contract of service for the Respondent at any relevant time, therefore he is not a “worker” as defined by the section. It follows that the Respondent is not liable for payment of workers compensation, as claimed by the Appellant.
DECISION
On the evidence, no error of law, fact or discretion has been made by the Arbitrator. The appeal is not allowed. The decision appealed against is confirmed.
COSTS
No application or submissions have been made in relation to costs. No order is made as to costs.
Gary Byron
Deputy President
I certify that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission.
Registrar
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