Guardian Group Australia Pty Ltd v Chhay
[2008] NSWWCCPD 98
•16 September 2008
| WORKERS COMPENSATION COMMISSION | ||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||
| CITATION: | Guardian Group Australia Pty Ltd v Chhay & Ors [2008] NSWWCCPD 98 | |||
| APPELLANT: | Guardian Group Australia Pty Ltd | |||
| FIRST RESPONDENT: | Hour Chhay | |||
| SECOND RESPONDENT: | John & Juliette Bechara t/as John’s Metal Roofing | |||
| THIRD RESPONDENT: | East India Company Pty Ltd | |||
| APPELLANT’S INSURER: | QBE Workers Compensation (NSW) Limited | |||
| SECOND RESPONDENT’S INSURER: | GIO General Limited | |||
| THIRD RESPONDENT’S INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||
| FILE NUMBER: | WCC382-08 | |||
| DATE OF ARBITRATOR’S DECISION: | 22 April 2008 | |||
| DATE OF APPEAL DECISION: | 16 September 2008 | |||
| SUBJECT MATTER OF DECISION: | Adequacy of reasons; credit issues and the application of Malco Engineering Pty Ltd v Ferreira & Ors (1994) 10 NSWCCR 117; exercise of discretion to permit cross-examination; ‘worker’ – formation of contract of employment. | |||
| PRESIDENTIAL MEMBER: | Acting Deputy President Michael Snell | |||
| HEARING: | On the papers | |||
| REPRESENTATION: | Appellant: | McCulloch & Buggy | ||
| First Respondent: | Taylor & Scott | |||
| Second Respondent: | Moray & Agnew | |||
| Third Respondent: | Sparke Helmore | |||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 22 April 2008 is confirmed. | |||
| The Appellant is to pay the costs of the other parties to the appeal. | ||||
BACKGROUND TO THE APPEAL
On 19 May 2008 Guardian Group Australia Pty Ltd (‘Guardian’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 22 April 2008. In the arbitral proceedings Guardian was the First Respondent Employer.
The Respondents to the Appeal are Hour Chhay (‘the worker’), John and Juliette Bechara t/as John’s Metal Roofing (‘John’s Roofing’), and East India Company Pty Ltd (‘East India’). In the arbitral proceedings these parties were the Applicant Worker, and the Second and Third Respondent Employers, respectively.
The worker is now 57 years of age, and has a dependant wife. He was employed by Guardian full-time as an asbestos removalist from 8 December 2000, and also for other short periods prior to that date. Guardian’s principal activity was asbestos removal, although it appears also to have done the work of “metal roof installing, small demolition works and industrial insulations”. This, like many aspects of Guardian’s operations, became controversial. The location of the work varied, depending on the sites where Guardian had jobs.
On Saturday 12 May 2007 and Sunday 13 May 2007 the worker was working at a building at 10 Raglan Street, Auburn, where he and others were stripping out timber from the interior of an old building. With the exception of one man, all of the people engaged in this work were ordinarily employed by Guardian. On 13 May 2007 a piece of timber on which the worker was standing broke, and he fell to the floor (estimates of the distance vary), fracturing his left ankle. Another worker drove him home, and he was then taken to Liverpool Hospital, where the lower leg was x-rayed and put in plaster, and he was discharged. Guardian’s Reply put the occurrence of injury in issue, but ultimately this was not seriously contested by any of the parties.
The worker lodged a claim form with Guardian, dated 6 June 2007. Guardian disputed the worker was working in its employ at the time of injury, and claimed he had been working for John’s Roofing. A claim form dated 15 June 2007 was lodged with John’s Roofing, which disputed the worker was working in its employ when injured. Ultimately multiple witness statements were put on, by both Guardian and John’s Roofing, each seeking to establish the worker was working in the employ of the other, when injured.
The worker instituted proceedings in the Commission matter number WCC6327-07, against Guardian and John’s Roofing. It appears to have been suggested, during the course of those proceedings, that East India (which owned the building at 10 Raglan Street, Auburn at the date of injury) may have been the worker’s employer when he was injured. Those proceedings were discontinued on 17 October 2007. The current proceedings were instituted on 21 January 2008, naming East India as an additional party.
Whilst there were also issues regarding the quantum of entitlement, the dominant issue was which of the three employers (if any) employed the worker at the time of his injury.
An arbitration hearing was held on 1 April 2008. All parties were legally represented. On the application of the worker’s counsel, some short oral evidence was given by the worker regarding his ongoing symptoms, and employment situation. He was briefly cross-examined by counsel for John’s Roofing, regarding his working capacity. Prior to this, counsel for Guardian made application to cross-examine more generally, on matters relevant to the employment issue. This application was opposed by counsel for the worker, and also the representative of East India. The arbitrator declined this application on the part of Guardian, on the basis that at the teleconference “there was no indication that there was to be any investigation of the broader merits of the matter through the leading of witnesses and the cross-examination of witnesses”.
The arbitrator then heard submissions and reserved his decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 April 2008 records the Arbitrator’s orders as follows:
“1. The Applicant sustained injury to his left ankle during the course of his employment with the First Respondent on 13 May 2007.
2. Award for the Second Respondent and the Third Respondent.
3. The First Respondent is ordered to pay weekly compensation to the Applicant at the rate of $710.68 per week from 14 May 2007 to 29 October 2007, pursuant to s. 36 of the Workers Compensation Act 1987 (“the Act”).
4. The First Respondent is ordered to pay weekly compensation to the Applicant at the rate of $363.35 per week from 30 October 2007, to date and continuing, pursuant to s. 40 of the Act.
5. The First Respondent is ordered to pay the Applicant’s medical, hospital and rehabilitation expenses, in relation to treatment of his left lower limb, upon production of accounts and receipts, pursuant to s. 60 of the Act.
6. The First Respondent is ordered to pay the Applicant’s costs as agreed or assessed.”
These orders were numbered “7” to “12” in the Certificate of Determination, I have adjusted the numbering. The Certificate of Determination was accompanied by 20 pages of reasons for determination.
ISSUES IN DISPUTE
The issues raised in the grounds of appeal are:
(i)Whether the arbitrator failed to have regard to all of the evidence in determining Guardian was the employer at the time of injury. The submissions on this point are critical of the arbitrator’s analysis of the witness statements in the matter, and the views on credit formed by the arbitrator. It is submitted the arbitrator could not “make a proper judgment in relation to the credibility” of witnesses, when none had their evidence tested through cross-examination. It is also submitted the arbitrator failed to refer to relevant evidence, being Guardian’s “job diary”;
(ii)whether the arbitrator failed to give adequate or sufficient reasons. The focus of the submissions in support of this ground again relates to the arbitrator’s analysis of the various witness statements, and whether he adequately exposed why he preferred some witnesses rather than others. It is also submitted the arbitrator failed to give adequate reasons for not paying greater regard to evidence that the work in which the worker was engaged when injured, was not asbestos removal, the work most commonly carried out by Guardian, and
(iii)whether the arbitrator erred in finding Guardian was the employer of the worker, at the time he suffered injury. The submissions on this point refer to various parts of the evidence that the arbitrator is said to have failed to have regard to, that are submitted to support Guardian’s argument it did not employ the worker at the time he was injured.
There is no challenge to the arbitrator’s assessment of the quantum of the worker’s entitlement.
Each of the respondents to the appeal submits the arbitrator’s decision should be confirmed.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
No party seeks to adduce fresh evidence. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by all 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.
LEAVE
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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The sum at issue exceeds the amount of $5,000 prescribed in section 352(2)(a), and the whole of the amount awarded is appealed against.
The threshold issues in section 352 are satisfied, and I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
The worker’s statement dated 20 July 2007, attached to the Application to Resolve a Dispute (‘the Application’), relevant to the employment issue, states that, since coming to Australia in 1992, he has “not had any other employment”, apart from that with Guardian. Mr Chhean had been his “full time supervisor at Guardian for about the past 4 or 5 years”. He said on Friday 11 May 2007 he was at Guardian’s workshop packing up in the afternoon, when Mr Chhean rang Mr Bennett (a manager/estimator in the employ of Guardian) and spoke to him in English, which the worker could not understand. Mr Chhean then told the worker, in Khmer, “We have to go to work at Auburn this weekend. When we get there a European man will tell us what to do.” It was “usual practice” that Mr Bennett and Mr Chhean would ring each other at the end of each shift, to find out where to go the following day. The worker was told to start at 7am (his normal time), and nothing was mentioned about being paid in other than the usual way, which was on Thursday or Friday, at Guardian’s head office. Guardian normally paid him $200.00 per day, if he worked on weekends. The worker “generally worked every Saturdays (sic) but only some Sundays”.
The worker, Mr Chhean, and two others travelled to the Auburn site on Saturday morning, in two cars. The worker was wearing overalls supplied to him by Guardian, and took his own hammer, together with a pinch bar owned by Guardian. This was his normal practice. The European man at the site spoke to Mr Chhean. Mr Chhean then told the worker, together with the others in the team, what had to be done. The worker never spoke to the European man, and did not know who he was. Mr Chhean told them when to take breaks, and when to finish. The worker used the pinch bar and hammer to demolish timber fittings in the building. This situation continued on Sunday 13 May 2007, until the worker’s fall. Mr Chhean then drove the worker home, after which he attended hospital. After his release from hospital, he drove with his son and daughter to Guardian’s Cabramatta workshop to report the injury. He expected either Mr Bennett or a supervisor named Michael to be there, as they lived in a residence adjoining the workshop. The worker’s daughter reported the injury.
Later on the afternoon of 13 May 2007 Mr Chhean visited the worker at home, and gave him $400.00 cash, saying it had been given to them by the European man. Mr Chhean said he had told Mr Bennett of the injury. The worker travelled with his adult daughter to Guardian’s office on Monday 14 May 2007, and he reported the injury to Mr Lim (who had been a director of Guardian). On Thursday 17 May 2007 a Guardian labourer visited the worker and gave him money, being his “weekly pay from Cameron”. The following Thursday there was no weekly pay. The worker’s wife rang Guardian’s office, and was told there would be no further wages, as he had not been working for Guardian when he had the accident. Mr Lim’s older sister referred the worker’s wife to “John’s Metal Roofing”. The worker states “I had never heard of John’s Metal Roofing and it had always been my belief I had been working for Guardian when I had my accident.” Additionally, he did not know Mr Bechara, first meeting him at a meeting at union offices on 6 June 2007.
The worker describes ongoing difficulties in arranging compensation. He says Mr Bennett visited him at home on 13 June 2007, gave him a cheque for $1,500.00, and asked him to sign a document. The worker said he wanted his daughter to translate it, as neither he nor his wife read English. When she did so, the document was an agreement to pay back the sum of $1,500.00 before 31 December 2007. After being advised by his solicitor and the union, the worker returned the cheque and unsigned document to Guardian. He was not paid workers compensation. He underwent surgery on 25 May 2007 to have a “metal pin installed” in the fracture.
There were statements from Mark Bennett, Guardian’s manager/estimator, dated 15 June 2007, 6 November 2007 and 11 March 2008, on which it relied. There was also a statement of Mr Bennett, a copy of which is attached to the Reply filed by John’s Roofing, which is likely to be an unsigned version of a statement dated 22 June 2007, referred to in the statement of 6 November 2007. Guardian also relied upon statements of Cameron Lim dated “6 & 13 September 2007”, 3 October 2007 and 11 March 2008. Mr Lim states he was a director of Guardian until March 2007, and has since been a director of other companies. His father also was a director of Guardian until March 2007. Since March 2007 the sole director of Guardian has been his sister, Silvia Hay. The general thrust of the statements of Messrs Bennett and Lim was that the job on which the worker was injured was not a job Guardian had contracted to do. Their statements of 11 March 2008 add little of relevance to the earlier ones, relating to an attendance by them, after the worker’s accident, at the Auburn site, at the request of Mr Bechara, to quote for removal of asbestos.
Mr Bennett’s original statement of 15 June 2007 says John (Bechara) (a principal of John’s Roofing) contacted him on 10 May 2007 requesting the telephone number of Tork Chhean (a supervisor in Guardian’s employ). He told Mr Bennett that Mr Chhean had “done some work for him on occasions for cash”, and asked Mr Bennett to pass on a message to Mr Chhean.
The unsigned statement was, on its face, prepared in the course of an investigation by investigators engaged by “Suncorp/GIO”, which is the insurer of John’s Roofing. It is an attachment to a factual investigation report of Maurice J Kerrigan & Associates, that formed part of the Reply of John’s Roofing. It does not appear any objection was taken to the use of statements attached to that report, notwithstanding they were unexecuted. Mr Bennett describes the principal activity of Guardian as asbestos removal, but says it also did metal roof installing, small demolition works and industrial insulations. He states “at the time of his (the worker’s) injury he was not acting in his capacity as a Guardian employee and instead was ‘moonlighting’ for John Bechara, the proprietor of ‘John’s Metal Roofing’.” It again refers to a telephone conversation with John Bechara in the week preceding 13 May 2007, although says Mr Bechara sought the telephone numbers of not only Mr Chhean, but also Keary Poch and Am (or “Arn”), a former employee. Mr Bechara is stated to have said, on the telephone, that these people did “some cash work for me from time to time”. Mr Bennett denies Mr Bechara asked him to send Guardian staff to work at any site, and says the only job Guardian ever did for John’s Roofing, according to Guardian’s records, was in April 2004. Mr Bennett records being told that the worker said (according to Mr Lim) that he had been paid $400.00 cash by Mr Chhean, on the afternoon of his injury, for his work on the weekend of 12 and 13 May 2007. Mr Bennett states Mr Chhean attended at Mr Bennett’s home unexpectedly on the afternoon of Sunday 13 May 2007, and told him the worker had “hurt his foot”. Mr Bennett “assumed (the worker) must have had an accident at his home”. It is said on the morning of Monday 14 May 2007 the worker, his wife and adult daughter, attended the office of Guardian, and spoke to Mr Lim.
Mr Bennett states Mr Chhean, on 14 May 2007, told staff at Guardian’s office that he, Mr Bennett, had arranged for the workers to attend the Auburn site. Mr Bennett says “I suspect he made up that lie because he was scared he might get sacked.” Mr Bennett goes on to assert he was telephoned by Mr Bechara on 15 or 16 May 2007, suggesting Guardian invoice Mr Bechara for the weekend work, so the worker’s injury “could be claimed on Guardian’s workers comp insurer…Cameron (Lim) said he wouldn’t go along with it”. The statement says Mr Chhean was not dismissed, although says Guardian was contacted by a union official to discuss a complaint by Mr Chhean of ‘unfair dismissal’. There are references to various meetings involving the union, in one of which Mr Chhean is said to have admitted “doing occasional cash work for John Bechara on weekends, dating from well before the Auburn site where (the worker) was injured”. At another such meeting, Mr Bechara is said to have “admitted that he had engaged (the worker) and the others and paid them cash”.
Mr Bennett’s statement deals with a request by the union that Guardian pay $5,000.00 to the union’s trust fund, so the union could pay it to the worker. It is said that Mr Lim gave Mr Bennett a cheque for $1,500.00 and “a separate written agreement drafted by Guardian’s solicitor” to give to the worker. “The purpose of the cheque was simply to help (the worker) out financially.” The cheque and agreement were later returned by the worker, “on the advice of the Union”.
Mr Bennett’s third statement, dated 6 November 2007, is attached to Guardian’s Reply. It says it should be read in conjunction with the two earlier statements. It says:
“4. My two statements are somewhat inconsistent. The facts of the matter are essentially as contained in my original statement of 15 June 2007.
5. In paragraph 11 of my second statement of 22 June 2007 I said that I told Cameron Lim my first contact with John Bechara was on 10 May 2007. That was incorrect. Paragraphs 11 to 13 of that earlier statement need to be clarified.
6. When I gave my statement to the investigator about John Bechara, I tried to down play my involvement in the workers going to work for Bechara as the Directors were concerned about Guardian’s exposure in the incident.”
Mr Bennett then says he “had contact with him (Mr Bechara) over the years”. He described a telephone conversation during the week prior to the worker’s injury, in which Mr Bechara told him he had been using some Guardian workers for weekend work over the years, a fact Mr Bennett said he was previously unaware of. Mr Bechara told him “I have had a communication problem with Tork (Chhean), can you contact him and tell him that I have got work on the weekend in Auburn.” Mr Bennett says Mr Bechara gave him the address, and said he needed “about half a dozen guys”. Mr Bennett rang Mr Chhean on the Friday, telling him of the conversation with Mr Bechara. Mr Bennett says there was no suggestion Guardian was to be paid in connection with this arrangement.
Mr Bennett’s third statement says if Guardian workers did weekend overtime, the additional hours would form part of their weekly wage, “there certainly has never been any suggestion of cash payments”. He describes contact with Peter Martelli of Dyno Dig. He says Mr Martelli told him Mr Chhean quoted a job on his own behalf, while Mr Chhean was still employed by Guardian. The statement also states that two Guardian employees, Yung Sour and Son Seth, told him they had previously done weekend jobs for John Bechara for cash.
Mr Lim’s statement of “6 & 13 September 2007” indicates the worker worked one or two Saturdays per month, and Sundays rarely, as overtime with Guardian. He says Guardian had once contracted to work for John’s Roofing, in 2004. He says it was on Monday 14 May 2007 that he first learned of contact between Mr Bennett and Mr Bechara during the previous week. Mr Bennett told Mr Lim he had simply provided Mr Bechara with Mr Chhean’s mobile telephone number. Mr Lim said when the worker attended the Guardian office on Monday 14 May 2007, he accepted the Workcover medical certificate and Liverpool Hospital letter, as he took his word he had been working on a Guardian job when injured. It was not unusual for workers to be working on jobs arranged by Mr Bennett, unbeknown to Mr Lim. Mr Lim says “We have never sub-contracted work that does not involve asbestos removal work.” Mr Lim describes meetings and contact with a union, leading to Mr Bennett, on behalf of Guardian, giving $5,000.00 to the union. It is said the worker has not refunded any part of this $5,000.00.
Mr Lim made a second statement dated 3 October 2007. It sets out the procedures he says were customarily followed when Guardian quoted for asbestos removal work. It responds to some statements made by others in connection with the worker’s claim for compensation. It disputes Guardian has done more than a single asbestos removal for John’s Roofing, that being the occasion in 2004. It says:
“j) In respect to allegation made by our workers who stated that I personally force them to sign statements, it was untrue, as these days I am hardly involve with the operation or Guardian business. Even though I am in the same office of Guardian, but I am very busy with other business operation. I also travel to oversea countries lots. When those workers who are involved in the Hour Chhay accident signed their statement, I was not around office; I didn’t even know that there are statements made by those workers.
k) What I have heard is that Julie La, the office worker, drafted a brief statement, explained the content to those workers and they are all happy to sign them.
I have set out excerpts of the above statements of Messrs Bennett and Lim in some detail, as it is a central plank in Guardian’s argument on appeal, that the arbitrator erred in the weight he attached to them, and his analysis of the credit issues. Guardian also relied upon a statement of Peter Martelli dated 7 November 2007. He says Guardian did some asbestos removal work for him in about 2005. At the conclusion of the work Mr Chhean approached him and offered to do work on weekends for cash. He describes Mr Chhean quoting unsuccessfully for two asbestos removal jobs, on the basis they would be performed for cash on weekends.
The statements referred to in the passage from Mr Lim’s statement quoted at [34] above, are short statements of Neang Long, Keary Poch and Mr Chhean, all executed on 1 June 2007. Each states “I was employed directly by John’s Metal Roofing on Saturday 12th and Sunday 13th May 2007, for works at 10 Raglan Street Auburn NSW 2144”, and confirms being paid $400.00 for such work. Mr Chhean’s statement says he also received $1,200.00 “from John” to distribute to the other workers. These short statements also were attached to Guardian’s Reply.
Guardian’s Reply attached statements from other witnesses. That of Seth Son is dated 10 December 2007. He worked for Guardian as an asbestos removalist. He says when he did
weekend work for Guardian, he was paid $200 per day cash, normally by Julie in the office. He was not working at the Auburn site where the worker was injured. Mr Son states he once did work on a weekend with Mr Chhean at a house in the Blue Mountains, for a client known as John who ran a roofing company. He could not confirm this person was Mr Bechara. Mr Son thought he was working for Guardian at that time, and says “During the time I have been employed by Guardian, I have never knowingly, worked for another company.” However after the job in the Blue Mountains Mr Chhean gave him cash and said the job was being done “directly for John”.
A statement of Sour Yung, also an asbestos removalist, is dated 16 January 2008. He says he never worked for another company while employed by Guardian. He says Guardian had done work for Mr Bechara on two occasions, jobs at Riverstone and Parramatta. On both occasions he and the worker worked on these jobs. It is not suggested these were other than normal jobs undertaken by Guardian. Mr Yung says he also worked on the Blue Mountains job referred to by Mr Son. He states the “John” involved was Mr Bechara, and he was paid cash for that work. He says he thought he was working for Guardian on the Blue Mountains job, until he was paid in cash.
A statement of Mr Chhean, undated and unsigned, is attached to the Replies of both Guardian and John’s Roofing. He states on Friday 11 May 2007 he was working, with his crew, on a job at Dee Why, when he was telephoned by his “boss Mark Bennett”. Mr Bennett told him he wanted him to work on the weekend, he did not say where. At the end of the shift Mr Chhean and his crew (including the worker) returned to the Guardian workshop at Cabramatta. There he received another call from Mr Bennett, who said “I want you to work at Auburn tomorrow on an important job.” Mr Bennett gave him the address, and said “Take five staff with you.” Mr Chhean asked if he should take all of their gear, and Mr Bennett replied “No, just take pinchbars and hammers”. Mr Bennett said someone would be at the site to tell them what had to be done, and they would have to work Saturday and Sunday. Mr Chhean asked the three members of his crew from that day (which included the worker) to come, and they all accepted. Mr Chhean says he picked up the worker and drove him to the site, arriving about 7am. They took pinchbars and hammers owned by Guardian. A man on site, not previously known to Mr Chhean, told him the work involved removal of internal wooden panelling and shelving. They worked eight hours on the Saturday, and returned at 7am on the Sunday, resuming the same work. The worker had his injury some time between 9am and 10am, Mr Chhean did not witness it. He drove the worker home, and returned to the site. Later in the day the worker rang him to advise his ankle was broken. Regarding payment, Mr Chhean says:
“When the man at the site told me that I and the other two could go home he gave me $1,600 cash for the work we had done, $400 for each of us. I had not expected him to give me money and I hadn’t asked for it. I thought it was a Guardian job, not a private job. I have never done any private jobs while I’ve been employed by Guardian.”
Mr Chhean also says he called in to Mr Bennett’s house on his way home, to inform him of the worker’s injury. Mr Bennett said he already knew about it, as the worker had called in on his way home from hospital. The statement continues:
“15. Mark then said to me ‘You have to tell anyone that Hour (the worker) was injured when he fell over at his own home, not working for Guardian.’ I thought that was strange and I told Mark (Bennett) I would not tell lies. I did not tell Mark about the $1,600 the man had given me.
16. After leaving Mark’s place I went to Hour’s and gave him his $400 share that the man at Auburn had given me. I had earlier given Ree and Neang their $400 each.
17. For the rest of the week Mark hardly spoke to me and I found out later that Mark told Guardian’s big boss, Cameron Lim, that Hour and me and the others had been doing a cash in hand private job when Hour was injured. That was wrong and I got sacked on the following Thursday, 17th June (should be 17th May), by Julie Lim, Cameron’s sister who also works for the company. She didn’t tell me why I was sacked but just asked me to return my company car keys and my mobile phone.”
The statement then describes the intervention of the union on Mr Chhean’s behalf. It also describes a meeting involving Messrs Chhean, Bennett and Lim on 23 May 2007 in Mr Lim’s office, which Mr Chhean says he secretly taped, and that he retained the tape. At this meeting Mr Chhean was offered his job back. He also says at this meeting Mr Lim told him the site of the worker’s injury was “John Bechara’s job”. Mr Chhean says he knew Mr Bechara “from several jobs I had done for him”, but this was the first time he had heard Mr Bechara mentioned in connection with the site at Auburn. Mr Lim told Mr Chhean the man who paid $1,600.00 at the site was Mr Bechara’s brother.
Mr Chhean states that on 1 June 2007 he attended Guardian’s office to collect his pay, when Julie Lim gave him the short statement referred to at [36] above, and asked him to sign it. “I can’t read any English and when I asked Julie what it was she told me that it was about taking $400 from the man at the Auburn job. She didn’t mention anything about John Bechara but I signed it and dated it.” After the statement was translated by his daughter, he described it as “totally incorrect as John Bechara never paid me anything, it was the other man who I didn’t know who gave me the $1,600.”
There is a statement from Keary Poch, an asbestos remover and one of the people working at the Auburn site. He states:
“5. I was told to attend the Auburn factory by Tork Chhean on the afternoon of Friday 11 May 2007. Earlier that day we had worked at Dee Why and then returned to our workshop at Cabramatta. Tork got a call from Guardian’s manager, Mark Bennett, while we were at the workshop and Mark told Tork the address at Auburn. I was with Tork when he received the call from Mark and Mark said the job at Auburn was ‘urgent’. I know this because Tork had his phone on loudspeaker.
6. We were told to work at Auburn on both days of the weekend and the only tools we needed were hammers and pinchbars because the work didn’t involve asbestos removal. The only work I had previously done with Guardian was asbestos removal but I thought I was working at Auburn for Guardian and that I would be paid by Guardian.”
…
14. Tork (Chhean) came to my home later that morning about 10.30am and gave me $400 in cash, which he said the European had given him for the two days I worked at the Auburn factory.
…
18. Today I have been shown a one page letter which I signed and dated on 1 June 2007. Cameron Lim, Guardian’s boss had asked me to sign it when I went to the office to collect my pay that day (1.6.07). I don’t read English at all well and Cameron told me the letter said that I had received $400 cash from John for working on the weekend of Hour’s accident. I felt pressured by Cameron to sign it and so I did and I didn’t ask him who ‘John’ was.
19. Today the letter has been read to me and I’ve been told it says that I was employed directly by John’s Metal Roofing on Saturday 12th and Sunday 13th May 2007. I know John from Johns Metal Roofing but I don’t know his surname. I worked at his sites, as an employee of other asbestos removal companies, many years ago before I commenced employment with Guardian in 2005. I have never done any work for John since I started working for Guardian and I never saw him at the Auburn site.”
Another of the workers from the Auburn site, Neang Long, gave a statement that is annexed to the Reply of John’s Roofing. Paragraphs 4, 5 and 6 are identical to those paragraphs of Mr Poch’s statement (quoted in part in the preceding paragraph). There are substantial similarities between the two statements. Paragraphs 17 and 18 of Mr Long’s statement read:
“17. Today I have been shown a one page letter which I signed and dated on 1 June 2007. Cameron Lim, Guardian’s boss, had asked me to sign it when I went to the office to collect my pay that day (1.6.07). I don’t read English very well and Cameron told me the letter said that I received $400 cash for working on the weekend of Hour’s accident. I felt pressured by Cameron to sign it so I did.
18. Today the letter has been read to me and I’ve been told it says I was employed directly by John’s Metal Roofing on Saturday 12th and Sunday 13th May 2007. I have never heard of John’s Metal Roofing. I have been asked today if I know John Bechara and my answer is that I have never heard of him.”
The factual investigation report of Maurice J Kerrigan & Associates, on which John’s Roofing relied, also refers to contact with Joe Costanza. East India, which owned the factory site at Auburn, is described as “Mr Costanza’s company”. He refused to be personally interviewed or to provide a statement, but spoke with the investigator by telephone. He said he purchased the factory “in late April/early May 2007 and verbally engaged Mr Bechara to carry out various roofing and other works”. Mr Costanza was “good friends” with Mr Khalifeh, who “volunteered his help with the stripping and Mr Costanza gave him a set of keys to the building. He (Mr Costanza) left it to Mr Bechara to organise everything associated with the requested works at the factory.” Mr Costanza was also good friends with Mr Bechara, whose services he had engaged on other occasions.
Mr Khalifeh also refused a personal interview, but spoke to the investigators by telephone. He said he assisted with organisation of the stripping as a favour to Mr Costanza. Mr Bechara organised the attendance of the men on site at Auburn. Mr Khalifeh discussed the scope of the work with Mr Chhean, and then left it to him to supervise the other workers. He said at around lunchtime on Sunday 13 May 2007 the workers were finishing early as it was Mothers Day. “Mr Chhean asked him for $2,200 wages, which took him by surprise because he wasn’t expecting to pay them as he assumed Mr Bechara had organised payment with their boss. He tried unsuccessfully to contact Mr Bechara so he attended a nearby ATM to obtain his cash limit, which, together with the money he had on him amounted to $1,600. Mr Chhean was happy to accept that amount and then left the premises…He subsequently contacted Mr Bechara that same night (Sunday 13 May 2007) to advise him of the Claimant’s accident and the moneys he had paid Mr Chhean. Mr Bechara undertook to reimburse him when he was paid for the job by Mr Costanza.”
Wage records from Guardian, covering the period around 13 May 2007, are not consistent with Guardian paying any sum to the worker by way of wages, over and above normal earnings, in respect of overtime during the weekend of 12 and 13 May 2007.
DISCUSSION AND FINDINGS
The first ground of appeal is that the arbitrator failed to have regard to all of the evidence, in determining Guardian was the worker’s employer at the time of injury. In the submissions this ground is described as one that the arbitrator failed to have regard to the weight of the evidence. The submissions suggest the following strands to this argument:
(i)The arbitrator “selectively analysed” the statements of Mr Chhean and Mr Bechara. He failed to identify inconsistencies;
(ii)in particular it is submitted that Mr Chhean said “he had a tape recording of conversations he had with a number of his supervisors and managers of the Appellant’s company which corroborate many of the allegations made by him in his statement”. It is submitted a Direction for Production was issued to Mr Chhean for the tape recording, and he failed to produce it. It is submitted the arbitrator failed to make reference to this. Guardian refers to Malco Engineering Pty Limited v Ferreira & Ors (1994) 10 NSWCCR 117 (‘Ferreira’), in submitting the entirety of Mr Chhean’s evidence would need to be considered in light of the “failure to comply with that direction”;
(iii)there were significant inconsistencies between the versions of various witnesses. Oral evidence was not called from these witnesses. The arbitrator was “unable to make a proper judgment in relation to the credibility of those witnesses particularly having regard to the fact that none of the witnesses evidence was able to be tested through cross-examination.”;
(iv)Mr Martelli, on whose statement Guardian relied, “had no alignment to any of the parties”. His statement ought to have caused the arbitrator “some concern in relation to the evidence provided by Mr Chhean”. The arbitrator’s reasons do not indicate why he did not prefer the evidence of Mr Martelli to that of Mr Chhean, and
(v)it is submitted the arbitrator failed to have regard to Guardian’s ‘job diary’. This indicated Guardian did not have work arranged for the weekend of 12 to 13 May 2007. It also indicated the worker was injured on 13 May 2007 while working at “Johns Metal Roofing site”.
The submissions in support of grounds of appeal 2 and 3 are in many respects similar to ground 1. The submissions supporting ground 2 predominantly refer to an alleged lack of reasons by the arbitrator for preferring those witnesses he accepted, rather than Messrs Bennett and Lim (and to a lesser extent Mr Martelli). The same point is made about the lack of cross-examination. Guardian also raises the fact that its work mainly involved asbestos removal, and the work on which the worker was injured was not “the normal sort of work” Guardian undertook. The submissions supporting ground 3 additionally refer to there being no evidence Guardian paid for the work on which the worker was injured, and to the fact Guardian’s usual processes in relation to a site were not undertaken, in respect of the Auburn site. Guardian also submits payment for the work was made by Mr Kalifeh, who was acting as agent for East India, which owned the site. It was East India that benefited from the work being undertaken.
In its concluding submission Guardian states “the Arbitrator has failed to consider the other relationships surrounding this particular matter and failed to analyse the possibility that the worker was employed by a party other than the Appellant.” This led to the erroneous finding that Guardian was the “relevant employer”.
Was There a Contract of Employment with John’s Roofing or East India?
It was common ground the worker was employed full-time by Guardian, and had been since approximately 2000. This included periodic overtime work on weekends, in addition to normal weekday work. Mr Chhean had been the worker’s supervisor for some years before May 2007. Guardian does not argue the worker’s employment with it had been terminated prior to 13 May 2007. As at that date, there was a subsisting employment relationship between Guardian and the worker. Rather Guardian seeks to establish a positive case that some further contract of employment had been entered into between the worker and another entity, and the worker was at the Auburn site in the course of his employment with such other entity.
The worker’s simple evidence regarding how he came to be at the Auburn site is described at [21] to [23] above. He was in the course of his employment with Guardian on the afternoon of Friday 11 May 2007, when his usual supervisor, also an employee of Guardian, took a telephone call in English, which the worker could not understand. The supervisor then told the worker in Khmer “We have to go to work at Auburn this weekend. When we get there a European man will tell us what to do.” The worker was told to start at 7am (his usual time), and was not told the pay arrangements would be any different to usual, that is on Thursday or Friday at Guardian’s head office. He attended at the site with his supervisor, and two others, being people he customarily worked with at Guardian. There was another man there, who the worker did not know, and did not speak with. The worker took his instructions from his usual supervisor, who told him when to take breaks and when to finish. This situation continued until the worker had his fall on Sunday 13 May 2007.
The evidence of the worker, set out in the preceding paragraph, is not contradicted by other material. The statements of Messrs Bennett and Lim deal with many things, but the worker’s version of how he came to be working at the Auburn site is not contradicted. On the basis of that material, one would readily conclude the worker was in the course of his employment with Guardian, when injured on 13 May 2007. Is there anything in the material that would lead to a conclusion this was not so, and the worker had entered into a contract of employment with some other person or company, pursuant to which he attended the Auburn site on 12 and 13 May 2007?
The creation of a contract of employment would, as a prerequisite, require an intention to enter legal relations on the part of both the worker, and the person or entity with which he contracted. In Lindeboom v Goodwin & Anor (2000) 21 NSWCCR 297 (‘Lindeboom’) Campbell CJ at [25] quoted (with approval) the following broad rule, from D.W. Greig and J.R.L. Davis, The Law of Contract, 1987, regarding whether a contract is formed:
“As will be explained in more detail in the next chapter, in the formation of a contract the courts have been concerned with appearances. Is it possible to infer from the conduct of the parties that agreement has been reached? In employing this objective approach, the judges sought to exclude an examination of the actual intention of the parties, preferring to rely upon evidence of the outward manifestations of that intent. ‘It is not the subjective thing known as meeting of the minds, but the objective thing, manifestation of mutual assent, which is essential to the making of a contract’ (Benedict v Pfunder 237 NW 2 (1931) at 4).”
In the same judgment Campbell CJ at [25] quoted the following passage, with approval, from Jones v Padavattan [1969] 1 WLR 328, describing it as a “useful statement as to how the objective assessment is to be made”:
“Did the parties intend the arrangement to be legally binding? This question has to be solved by applying what is sometimes (although perhaps unfortunately) called an objective test. The court has to consider what the parties said and wrote in the light of all the surrounding circumstances, and then decide whether the true inference is that the ordinary man and women, speaking or writing thus in such circumstances, would have intended to create a legally binding agreement.”
A number of the statements in evidence refer to the belief of various people regarding who they were working for on 12 and 13 May 2007. Such evidence, applying the passages from Lindeboom quoted above, is of little assistance in considering whether there was a contract between the worker and some entity other than Guardian, pursuant to which the worker carried out the work.
The statements of Mr Bennett deal in some detail with dealings between he and Mr Bechara. Their general thrust is to seek to establish the Auburn job was being conducted by John’s Roofing, rather than Guardian. They do not touch upon the dealings between the worker and Mr Chhean, which led to the worker being present at the Auburn site. They cast no doubt upon the worker’s version regarding how he came to be at the site, as set out at [52] above. Mr Bennett’s statements (particularly that of 6 November 2007) are generally consistent with him telephoning Mr Chhean on Friday 11 May 2007, and furnishing him with an address for the Auburn site. This is consistent with the statements of the worker, Mr Chhean, Mr Poch and Mr Long (discussed in more detail below), regarding what occurred on Friday afternoon.
Mr Lim’s statements are silent regarding the dealings between the worker and Mr Chhean, which led to the worker being engaged in the work in which he was injured.
The statement of the supervisor, Mr Chhean, is consistent with the worker’s version. It does not suggest Mr Chhean said anything to the worker that could amount to an offer of employment on behalf of John’s Roofing, or anyone else. Indeed Mr Chhean said “I thought it was a Guardian job”. If this is accepted, it renders it unlikely Mr Chhean would have said anything to the worker that would represent an offer to carry out the work for some entity other than Guardian.
Statements from the other two asbestos removers who attended the Auburn site, Messrs Poch and Long, also are not inconsistent with the worker’s version of events. Both of these people describe being at the Guardian workshop at Cabramatta on the afternoon of Friday 11 May 2007, when Mr Chhean took a telephone call from Mr Bennett on “loudspeaker”. Each heard Mr Bennett give Mr Chhean an “address at Auburn”, and describe the job as “urgent”. These men were then “told to work at Auburn on both days of the weekend” Neither describes any mention, by Mr Chhean (or anyone else) of any other entity offering to employ him over the weekend to do the work.
Thus the statement of the worker is consistent with him carrying out the work on which he was injured, in the course of his employment with Guardian. The evidence does not support the contention some other entity offered work to the worker, who then accepted the offer, to carry out the activities on which he was injured. This particular aspect of the worker’s statement was unchallenged by other evidence in the case. There is no evidence to suggest the worker was aware, before carrying out the work, of the existence of East India, or its role as owner of the Auburn site. The worker also said:
“I had never heard of John’s Metal Roofing and it had always been my belief I had been working for Guardian when I had my accident. I’m unable to say whether I had previously worked at any sites controlled by John’s Metal Roofing as I merely attend sites that I’m told by Tork (Mr Chhean). I never speak with any clients at sites as Tork does so.
I’ve been asked today by the GIO appointed investigator if I know John Bechara, the boss of John’s Metal Roofing, and my reply is no; I’m able to say this because I met him for the first time at a meeting in CFMEU’s Lidcombe office on 6 June, 2007, as discussed later in this statement.”
Guardian’s Reply attaches statements of two other asbestos removers, Mr Son and Mr Yung. These indicate a group of about seven or eight Guardian employees did a weekend job in the Blue Mountains some years prior to 2007. Those involved included Mr Chhean and the worker. Mr Son described the job as being for “John, who ran a roofing company”, although Mr Son did not recognise the names “John’s Metal Roofing” or “Mr John Bechara”. Mr Yung recalled he received cash for the Blue Mountains job, and it came from Mr Bechara. Mr Yung also recalled doing two jobs in the course of his employment with Guardian, for Mr Bechara, “at Riverstone 3-4 years ago”, and at Parramatta “about 1-2 years afterwards”. Mr Chhean was the supervisor on one of these jobs. The worker worked on both of these jobs. These statements establish that over a period of years (the date of the Blue Mountains job is uncertain) Guardian employees, including Mr Chhean and the worker, did three jobs in which Mr Bechara was the client. On one of these cash payments were made. Mr Bechara, in an unexecuted statement referred to in more detail below, did say that when he saw the worker at a meeting in a union office after the accident, he recognised him from sites where Guardian had worked for him in the past.
The statement of Mr Lim dated 3 October 2007 says there was only a single job undertaken by Guardian for Mr Bechara, this being in 2004.
Bearing in mind the worker’s limited English language skills, and his tendency not to speak to clients on site (understandable given the language problems), the statements of Messrs Son, Yung and Bechara are not, in my view, inconsistent with the worker saying he had never heard of John’s Metal Roofing, until the name was raised by Mr Lim’s sister on 24 May 2007, well after the accident ([37] of the worker’s statement). Those statements are not inconsistent with the worker saying he had not met Mr Bechara before a meeting at a union office subsequent to the accident.
An unexecuted statement of Mr Bechara was also attached to Guardian’s Reply. He said the Auburn site had been purchased by “Joe Costanza”, and he (Mr Bechara) was asked to attend the site by Charlie Kasileh, a mutual friend. Mr Costanza, who Mr Bechara knew “casually”, wanted Mr Bechara to “do some roofing” on the building. Mr Bechara says he did not start his work at the site until “mid June 2007”. Mr Bechara stated he told Mr Kaliseh of “the Guardian group”, in response to a query regarding whether he knew of anyone who could assist in gutting the building. He said he had used Guardian on approximately an annual basis over the previous seven or eight years. His contact there was “their Estimator, Mark Bennett”.
Mr Bechara says he made contact with Mr Bennett, and then had Mr Kasileh telephone Mr Bennett. Mr Bechara’s statement, if accepted, indicates the dealings between he and Mr Bennett were always on the basis Guardian would be contracted to do the work. Mr Bechara assumed he would be invoiced by Guardian for the work, a cost he could pass on to Mr Costanza. Mr Bechara’s statement also says he was told, by Mr Kasileh on the afternoon of Sunday 13 May 2007, that Mr Chhean had asked Mr Kasileh for cash to pay for the work.
Much of the evidence in statement form was of limited relevance to the real issue run by Guardian, in defence of the claim. The statement of Mr Martelli indicates Mr Chhean held himself out to Mr Martelli as being available to organise weekend workers for cash. It says Mr Chhean quoted for two jobs, unsuccessfully. It has no direct relevance to the job site at Auburn where the worker was injured. Mr Martelli did not know the worker, or Mr Bechara. As the arbitrator said at [55] of his reasons, “The evidence of Mr Martelli, Mr Son and Mr Yung does suggest that Mr Chhean had an interest in performing ‘cash in hand’ work on weekends, but the evidence in relation to what occurred in May 2007 does not establish any such arrangement between Mr Chhean and Mr Bechara.”
Guardian advanced the argument at the arbitration hearing, that Mr Chhean either employed the worker, or acted as an agent on behalf of John’s Roofing or East India, in one of those entities employing the worker, on the weekend in question. Clearly, on any of the evidence, Mr Chhean did not disclose to the worker that he was acting as an agent for John’s Roofing or East India. However, if the fact was that Mr Chhean contracted with the worker to employ him, whilst acting as agent for an undisclosed principle, the worker would have rights against the agent (Mr Chhean) or the undisclosed principle: Baldwin v Sankey [1973] WCR 144. Mr Chhean was not a party to the Application.
The only evidence that bears directly upon what passed between Mr Chhean and the worker, leading to the worker being on site at Auburn, is in the statements of the worker and Mr Chhean. There is nothing in those statements that would lead to the conclusion Mr Chhean made an offer of employment to the worker, which the worker accepted, to create a contract of employment. The description of the conversation, at [10] of the worker’s statement, is consistent with the worker being directed to attend at the Auburn site in the course of his employment with Guardian. There is a plethora of evidence going to matters such as dealings with the union, and business arrangements between the various parties. However the creation of a contract of employment, over and above the existing contract between Guardian and the worker, would require evidence that, viewed objectively, would lead to the conclusion there had been offer and acceptance, whether or not through the activity of Mr Chhean as an agent. There is no such evidence.
The evidence does not establish the worker attended at the Auburn site to carry out work, after contracting with John’s Roofing, East India, or any entity other than Guardian. The evidence does not establish the worker knew of the existence of John’s Roofing or East India, prior to attending the Auburn Site, and sustaining his injury. Accordingly, I have formed the same view as the arbitrator, that the worker was in the course of his employment with Guardian, at the time he sustained injury.
Other Issues Raised on the Appeal
Whilst the above finding is sufficient to dispose of the appeal, it is appropriate I deal briefly with various other matters raised in the appeal.
(i) Failure to Permit Cross-Examination
The first is the submission the arbitrator erred, in not allowing the application by Guardian’s counsel to cross-examine the worker, on his statement and related matters (the application is to be found at T3.45). Clearly this was a matter within the discretion of the arbitrator. In Aluminium Louvres & Ceilings Pty Limited v Zheng (2006) NSWCA 34; (2007) 4 DDCR 358 (‘Zheng’) Bryson JA said:
“An assessment of whether the Arbitrator's decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
In Electrolux Home Products Pty Limited v Richey & Anor [2006] NSWWCCPD 242 I dealt with circumstances in which refusal of an application to cross-examine could amount to a denial of procedural fairness. Consistent with Zheng (and subsequent decisions such as Tan v National Australia Bank Ltd [2008] NSWCA 198), I concluded a consideration on review, of the exercise of an arbitrator’s discretion, was not subject to the principles in House v The King (1936) 55 CLR 499.
The arbitrator’s reason for refusing the application was that it had not been raised, at the time of the telephone conference, “that there was to be any investigation of the broader merits of the matter through the leading of witnesses and the cross-examination of witnesses”. It is apparent there were inconsistencies between the various witness’ statements.
However ultimately, in my view, most of the factual disputes went to matters that were peripheral to the real issue, which was whether there was evidence to support the conclusion a fresh contract of employment had been formed, between the worker and some entity other than Guardian, pursuant to which the worker was working at the Auburn site. The only evidence that bore directly on this came from the worker and Mr Chhean. The statements of the other workers on site, Messrs Poch and Long, were relevant to some extent, in that they were consistent with the worker’s version of what transpired on the afternoon of Friday 11 May 2007.
The transcript does not suggest any other potential witnesses were at the arbitration hearing, apart from the worker, available for cross-examination. This is understandable, if the issue of cross-examining witnesses had not been raised in advance, as appears to have been the situation. Thus whatever credit issues may have existed, going to witnesses other than the worker, could not have been ventilated. There was no application to cross-examine witnesses other than the worker, and no application for an adjournment, which would probably have been necessary if the attendance of other witnesses were to be arranged. Guardian’s submissions complain the arbitrator could not properly assess the credit of various “witnesses on behalf of each particular party”.
The reality is the application related to a single witness, the worker. The worker’s evidence, on the crucial issue of whether a further contract of employment was formed, was not the subject of contradiction by the statements of other witnesses, who had knowledge of relevant conversations involving the worker. I am not of the view the arbitrator was wrong in declining the application to cross-examine the worker. It would probably have added little of genuine relevance, and would have extended the hearing time. It also would have had the potential to be unfair, as the employer interests would have had an opportunity to cross-examine the worker, but other witnesses would not have been available to be cross-examined.
(ii) The Direction to Mr Chhean and Its Consequences
Guardian’s submissions raise an issue regarding a Direction for Production issued at its request, to Mr Chhean, for a tape recording, and the consequences of its non-production. It is submitted application of the decision of the Court of Appeal in Ferreira would result in “the entirety of the evidence of Mr Chhean” being considered in light of his failure to comply with that Direction.
The Commission issued a Direction dated 27 February 2007 giving Guardian leave to secure the issue of a Direction for Production, requiring Mr Chhean to produce the tape recording referred to at [19] of his statement. It was directed that any party intending to rely upon the tape recording should file and serve a transcript of it, by 24 March 2008. Issues regarding admissibility were to be determined at the arbitration hearing on 1 April 2008. A Direction for Production was issued on 28 February 2008, at the request of Guardian, for production of the tape recording. The tape was returnable pursuant to the Direction, by 17 March 2008. The transcript of the arbitration hearing is silent as regards the tape recording. No submissions were made critical of Mr Chhean’s credit, due to an alleged failure to comply with the Direction.
The Commission file does not include a Certificate of Service, certifying service of the Direction upon Mr Chhean. The submissions in opposition to the appeal, on behalf of the worker, were prepared by counsel who appeared for him at the arbitration hearing. The relevant submission states:
“…it is the recollection of counsel for Mr Chhay that there was never any call, at least formally, for any production. That recollection is that it was the Arbitrator who enquired as to whether any person was aware of the tape having been produced. No one was so aware. Further, no one sought to adjourn the case – even on a pro tem basis to allow, for example, a call to be made to Mr Chhean. Similarly, Mr Chhay is not aware of any evidence that Mr Chhean had ever been served with any direction to produce, or, if he had, such service was technically competent. The recollection of counsel for Mr Chhay is then that the question of the tape was rarely, is (sic) ever, mentioned during the rest of the arbitration process.”
Guardian has not filed any submission in reply, taking issue with this description of what happened. The description also is consistent with the transcript, save the transcript does not suggest there was even an informal raising of the issue, during the arbitration hearing. It is conceivable the issue could have been raised informally during the conciliation phase of the hearing, at a time when the matter was not being sound recorded.
Thus there is no evidence Mr Chhean was validly served with the Direction for Production. Even if he had been, there could have been a variety of reasons why the tape was not produced, that would not reflect adversely upon Mr Chhean. It may have been destroyed or mislaid, this is simply unknown, the question not having been formally raised during the arbitration hearing. It does not appear any attempt was made by Guardian to enforce compliance with the Direction, pursuant to sections 357, 359 and 360 of the 1998 Act.
Thus the factual basis is not established to ground this submission, regarding the credit of Mr Chhean.
Even if it were, the factual situation on which Guardian purported to rely is readily distinguishable from that in Ferreira. Ferreira involved a worker who had told deliberate lies. In such circumstances it was held the trial judge had to assess his evidence with great care, where it was not independently supported (per Handley JA at 118). The situation is quite different to a failure by a witness to comply with a Direction for Production, for unknown reasons.
(iii) The Nature of the Work at the Auburn Site
The submissions of Guardian also raise the fact the normal business of the company was asbestos removal, and the work on which the worker was engaged when injured did not involve asbestos removal. This in my view is of little significance. Mr Bennett’s second statement, attached to the Reply of John’s Roofing, states that although asbestos removal was the “principal activity” of the company, it also carried out “metal roof installing, small demolition works and industrial insulations”. The type of work in which the worker was engaged when injured was not inconsistent with it being in the course of his employment with Guardian.
There is a potentially related submission, that Guardian’s “normal processes” were not followed in respect of the Auburn site. Such processes are described in Mr Lim’s statement of 3 October 2007. This is submitted to be significant, in considering whether the work at Auburn was being undertaken by Guardian. The normal processes described relate to asbestos removal. They include lodging a work permit application with Workcover for asbestos removal, and obtaining such approval before carrying out the work. The job in which the worker was engaged when injured did not involve asbestos removal. It would be understandable that the processes for work not requiring a permit from Workcover would be less formal. It is also relevant that two witnesses, Messrs Long and Poch, who heard Mr Bennett speak to Mr Chhean on Friday 11 May 2007 on speakerphone, heard Mr Bennett describe the Auburn job as “urgent”. This also could explain why the job was arranged with less formality than was usual.
(iv) The Job Diary
Guardian also refers to its “job diary”, which accompanied an Application to Admit Late Documents lodged on 31 March 2008. The dairy does not have any job entry in it for the weekend of 12 and 13 May 2007. Someone has written into the page for Sunday 13 May 2007 “Hour – Accident at John’s Metal Roofing site”. The entries for other pages in the diary consist of the location of a job, beneath which names are written of workers (one would infer working at the nominated site).
The entry for 13 May 2007 is of little persuasive weight. It could have been written in at any time. By 15 or 16 May there was an issue, according to both Mr Bennett and Mr Lim, regarding whether Guardian or some other entity was carrying out the work at Auburn on which the worker was injured. It is also curious that 13 May 2007 is the only entry in the diary that describes an event, rather than simply listing workers’ names beneath the location of a job.
The lack of a job entry for 12 and 13 May 2007 also is of little persuasive weight. There are very few entries in the job diary for weekends. This contrasts with the statements by a number of workers that weekend work was not uncommon. The worker said he worked every Saturday but only some Sundays (at [13]), Mr Long said he had worked “a lot of weekends” for Guardian, Mr Poch said the same, Mr Yung said most overtime is done at “weekends, probably once every fortnight, sometimes only the Saturday, sometimes the Sunday as well”. Mr Lim’s statement dated 6 and 13 September 2007 says the worker “only worked on average, 1 or 2 Saturday’s per month, and rarely a Sunday”. That part of the copy job diary put into evidence covers the period 1 January 2007 to 6 August 2007. The only entries for weekend work are for Saturdays on 17 March 2007, 24 March 2007, 9 June 2007, 16 June 2007, 23 June 2007 and 30 June 2007, a total of six days over approximately seven months. The contrast between the contents of the diary, and the statements of a number of workers (and Mr Lim), leaves significant room for doubt regarding whether such weekend work is necessarily recorded. An additional factor would be the question of who records the diary. Mr Lim, in his statement of 6 and 13 September 2007 says it was “not unusual” for Mr Bennett to arrange Guardian jobs, that workers would attend, “unbeknown” to Mr Lim (at [9]).
(v) The Adequacy of the Arbitrator’s Reasons
Guardian also submits the arbitrator failed to give adequate reasons for preferring other witnesses, to Messrs Bennett and Lim. The nature of an arbitrator’s duty to give reasons was dealt with by Byron DP in Jennifer Tyack formerly t/as Country Kidz v Cain [2007] NSWWCCPD 119:
“102. The Arbitrator must not only note the relevant evidence and give reasons for findings made, but where the evidence is disputed, he must give a clear explanation of the reasons why some evidence is preferred over other evidence (Mayne Group Limited v Mikhail [2006] NSWWCCPD 249 at [41]. See also, Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134, and Hume v Walton [2005] NSWCA 148). The Arbitrator did not achieve that in his Statement of Reasons for Decision, as outlined above.
103. In the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [64], Kirby J said:
“The more significant the decision the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation ... Especially is this so where the legislature has recognized the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person.”
104. The duty to give reasons in the Commission is prescribed by statute at section 294(2) of the 1998 Act and at Rule 15.6 of the 2006 Rules.”
The worker’s submissions refer to Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247, and Nominal Defendant v Clancy [2007] NSWCA 349.
The arbitrator gave relatively lengthy reasons. He engaged in a careful analysis of relevant statements, and clearly expressed his reasons for not accepting the versions offered by Messrs Bennett and Lim. In my view his reasons were clearly adequate, and complied with his duty, both pursuant to statute and the general law. I would form the same conclusion, that where the evidence of other witnesses conflicts with that of Mr Bennett and Mr Lim, the other witnesses are to be preferred.
Of particular significance in Mr Bennett’s case, is his admitted preparedness to “downplay” his involvement in the workers attending the Auburn site, due to the concern of Guardian’s directors about the company’s exposure (the statement of 6 November 2007 at [6]). In his statement of 15 June 2007, Mr Bennett stated Mr Bechara rang him and asked for Mr Chhean’s telephone number, which he gave him. Mr Bechara said Mr Chhean had been doing some work for cash, and asked for a message to be passed on to Mr Chhean, which Mr Bennett did.
In his next statement, given to investigators arranged by the insurer of John’s Roofing, Mr Bennett described a single contact by telephone with Mr Bechara, on about 10 May 2007, when Mr Bechara asked for contact details of Mr Chhean and two other workers, and said these people did some cash work for him from time to time. He said Mr Bechara did not say why he wanted the contact details, and Mr Bennett denied Mr Bechara asked him to send staff to any site. That statement is silent as regards contact between Mr Bennett and Mr Chhean on Friday 11 May 2007. It says Mr Bennett was aware, prior to the conversation of 10 May 2007, that “some of Guardian’s staff did occasional ‘outside’ work on weekends”. Mr Bennett must, when giving this statement, have been aware it was of a formal nature, part of an investigation by the insurer of John’s Roofing into its possible liability in the matter.
In his next statement of 6 November 2007, Mr Bennett admits trying to “downplay” his involvement in what occurred, due to the concerns of Guardian’s directors. He then states he was contacted by Mr Bechara “early in the week” prior to the worker’s injury, seeking contact details for Mr Chhean and others. He says Mr Bechara rang again “a couple of days later”, and informed him some workers had been doing weekend work for cash. Mr Bennett says he told Mr Bechara he had not been aware of this. He says Mr Bechara then gave him the site address at Auburn, and said “he needed about half a dozen guys”. Mr Bennett says he telephoned Mr Chhean on Friday 11 May 2007, and told him Mr Bechara had work, and wanted half a dozen workers on Saturday and Sunday.
The inconsistencies between these statements, and Mr Bennett’s admission regarding his preparedness to “downplay” his involvement, lead to the conclusion his statements are not necessarily reliable. The arbitrator described the varying versions as revealing a “willingness to resort to deception”, a conclusion that, in my view, is justified in the circumstances.
Mr Lim’s credit, in my view, is seriously compromised by the various witness statements dated 1 June 2007 (referred to at [36] above), and his role in their execution. Messrs Chhean, Poch and Long set out their versions of how they came to sign these statements, at [42], [43] and [44] above. Each states he has a poor understanding of written English, that he felt pressured to sign his statement, and that he was misled as regards the content. Each was asked to sign his respective statement on 1 June 2007 when attending the Guardian office to collect his wages. Mr Chhean says it was Julie Lim (Mr Lim’s sister) who had him sign. Messrs Poch and Long each say it was Mr Lim who arranged for their statements to be signed.
Mr Lim responded to the workers’ allegations regarding execution of these statements, in his statement dated 3 October 2007. The passage is set out at [34] above.
The passage implies Mr Lim had so little involvement in the business that he would not have the time or inclination to involve himself in the witness statements. This is inherently implausible. Mr Lim’s statement dated 6 and 13 September 2007 indicates he discussed the matter with Mr Bennett on Monday 14 May 2007, the day after the accident. He spoke with the worker, who attended the office with his son and daughter, on the same day. He accepted a medical certificate and letter from Liverpool Hospital from the worker. He then further discussed the matter with Mr Bennett. On Tuesday 15 May 2007 he visited the worker at home, and discussed the matter with him. Mr Bennett’s second (undated) statement says that when Mr Bechara suggested Guardian should send John’s Roofing an invoice for the Auburn job, so the worker’s accident could be claimed on Guardian’s insurance, Mr Lim said “he wouldn’t go along with it.” Mr Lim subsequently attended two meetings at the union office to discuss the matter. He claimed to be concerned the union was intimidating Guardian’s clients. Mr Lim’s statement dated 11 March 2008 indicates he attended the Auburn site with Mr Bennett a week after the accident, to see the accident site and quote for asbestos removal work. It is clear Mr Lim retained an ongoing involvement in the day to day operation of Guardian.
In his statement dated 6 and 13 September 2007 Mr Lim says of the witness statements:
“I wish to add that I was not involved in the preparation or signing of the typed statements signed by Messrs Chhean, Neang Long, and Keary Poch, on the 31st May 2007. Apart from Mr Long, I understand that none of those workers, including Mr Chhay, can read English. They all speak and understand little English. They all speak Cambodian (Khmer), as do my sister and I, but we are competent in the English language, both reading and writing.”
It is clear someone drafted and typed these witness statements, and had the relevant workers sign them. Mr Lim concedes that, on his understanding, the workers had little ability in written English. The workers themselves say they either cannot read English, or cannot read it well. Whoever may have prepared them, having the workers sign such statements, when collecting their pay, was a cynical exercise. There is no apparent motivation, on the part of Messrs Poch and Long, to be untruthful regarding execution of the statements dated 1 June 2007. Each of them says it was Mr Lim who had him sign his statement. Mr Lim’s later explanation for why he would not have done so is implausible. I accept what Messrs Poch and Long say on this topic, in preference to Mr Lim’s version. This leads to a conclusion Mr Lim was prepared to manipulate workers with limited English, to protect the position of Guardian in the matter. It is consistent with the conclusion the evidence of Mr Lim is unreliable.
(vi) The Cash Payment By Mr Khalifeh
The evidence regarding the payment of cash by Mr Khalifeh to Mr Chhean, on Sunday 13 May 2007, is the subject of dispute. This is complicated by the fact that Messrs Khalifeh and Costanza refused to be formally interviewed or provide statements, and one is dependant upon the investigators’ description of what was said by each of them over the telephone (summarised at [45] and [46] above).
Mr Chhean said the man in charge of the site (Mr Khalifeh) gave him $1,600 cash, when he told the workers they could go home. Mr Chhean said he was not expecting it, and had not asked for it. Mr Khalifeh says Mr Chhean asked for money on the Sunday, and ultimately accepted what Mr Khalifeh could raise at short notice, $1,600. Mr Bechara says Mr Khalifeh rang him late on Sunday 13 May 2007, and told him Mr Chhean had asked for $1,600, which he had given him.
The arbitrator ultimately preferred the evidence of Mr Chhean on this point. The arbitrator noted Mr Khalifeh did not provide a statement, all four workers said they did not expect to be paid cash, and Mr Bechara said he expected to be invoiced by Guardian for the work.
The evidence on this point is unsatisfactory. As the arbitrator observed, there is nothing from Mr Khalifeh explaining his role, his understanding of the transaction, and his reasons for handing over the cash. There may have simply been a misunderstanding on Mr Khalifeh’s part regarding how payment was to be arranged, or what was said to him by Mr Chhean. In the circumstances, this is conjecture. Like the arbitrator, in the absence of a statement by Mr Khalifeh, I am not prepared to reject what Mr Chhean said on the topic.
DECISION
Having conducted a merit based review of the arbitrator’s decision (see State Transit Authority of NSW v Chemler [2006] NSWCA 249; (2006) 5 DDCR 287), I am of the view the arbitrator’s decision was correct. The decision of the arbitrator dated 22 April 2008 is confirmed.
COSTS
Guardian is to pay the costs of the other parties to the appeal.
Michael Snell
Acting Deputy President
16 September 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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