Jafari v QBE Workers Compensation (NSW) Ltd - [2025] NSWPIC 347

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jafari v QBE Workers Compensation (NSW) Ltd & Ors [2025] NSWPIC 347
APPLICANT:	Hadi Jafari
FIRST RESPONDENT:	Patrick Rosebery Constructions Pty Ltd
SECOND RESPONDENT:	Matzo Co Construction Pty Ltd
THIRD RESPONDENT:	Vortex Masonry Pty Ltd
FOURTH RESPONDENT:	Oguz Yilmaz
FIFTH RESPONDENT:	Volkan Yilmaz
SIXTH RESPONDENT:	Workers Compensation Nominal Insurer
MEMBER:	John Harris
DATE OF DECISION:	22 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; physical injury at building site; claim for weekly compensation; issues of identity of contracting party and characterisation of employment relationship; analysis of evidence; adverse credit findings; actions by fourth and fifth respondents held to be with authority of the second respondent identification of contracting party; Resilient Investment Group Pty Ltd v Barnet and Hodgkinson applied; discussion of express authority of fifth respondent acting on behalf of second respondent; second respondent was undisclosed principle; characterisation of relationship; conflicting indicia weighed; applicant was paid an hourly rate as opposed to the rate for the completion of a task, solely provided his labour, had set hours, was under the direction of the fifth respondent (on behalf of the second) both as to where and when to work and what was required, did not provide tools and materials; degree of exclusivity of engagement reflecting the expectation that applicant was placed at a site each day; Held – applicant entitled to weekly compensation against second respondent based on no current work capacity.
DETERMINATIONS MADE:	1. The applicant sustained an injury to the L4/5 disc on 30 September 2023 whilst performing bricklaying work at Mimosa Street, Oatley. 2. The bricklaying work was performed pursuant to an agreement between the applicant and the second respondent through the authority of the fourth and/or fifths respondents. 3. The applicant was a worker employed by the second respondent on 30 September 2023. 4. The pre-injury average weekly earnings (PIAWE) is agreed at $1,336.96. 5. The applicant has no current work capacity from 30 September 2023 to date and continuing. 6. The applicant suffered injury to the lumbar spine on 30 September 2023 pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) and the employed concerned was a substantial contributing factor pursuant to s 9A. 7. The second respondent pay the applicant weekly compensation pursuant to ss 36 and 37 of the 1987 Act from 30 September 2023 to date and continuing based on no current work capacity and the agreed PIAWE indexed pursuant to s 82A. 8. The parties have liberty to apply if they cannot agree on the appropriate indexed figure for weekly compensation. 9. Award in favour of the first and sixth respondents.

STATEMENT OF REASONS

BACKGROUND

Mr Hadi Jafari (the applicant) was working as a bricklayer at a building site at Mimosa Street, Oatley (the building site) on 30 September 2023 when he sustained a back injury. There is disagreement as the identity of the contracting party and whether the applicant was a worker or deemed worker within the meaning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 347
Decision Date: 22 July 2025

CaseChat Overview and Summary

Jafari v QBE Workers Compensation (NSW) Ltd involved a claim for weekly compensation under the Workers Compensation Act 1987, following a physical injury sustained by the applicant at a building site. The primary dispute centred on the identity of the contracting party and the characterisation of the employment relationship, which determined whether the applicant was an employee of the second respondent, QBE Workers Compensation (NSW) Ltd, and therefore entitled to compensation. The case was heard in the relevant court, which examined the evidence and made critical findings regarding the applicant's employment status.

The court was required to decide several key legal issues, including the identification of the contracting party and the nature of the employment relationship between the applicant and the second respondent. The court had to assess whether the second respondent was the employer and whether the applicant's working conditions and relationship with the fifth respondent, who acted on behalf of the second respondent, qualified as employment under the Act. The characterisation of the relationship was pivotal, as it would determine the applicant's eligibility for weekly compensation.

The court's reasoning involved a detailed analysis of the evidence presented, particularly focusing on the authority of the fifth respondent and the second respondent's role as an undisclosed principal. The court held that the fifth respondent had express authority to act on behalf of the second respondent, thereby making the second respondent liable for the actions of the fifth respondent. The court weighed various indicia of the employment relationship, including the payment of an hourly rate, the applicant's provision of labour only, set working hours, and the control exerted by the fifth respondent over the applicant's work. These factors collectively indicated that the applicant was an employee of the second respondent, thereby entitling him to weekly compensation due to his lack of current work capacity.

The court's final determination was that the applicant was entitled to weekly compensation against the second respondent, based on his lack of current work capacity following the injury. The court's findings on the identity of the contracting party and the nature of the employment relationship were decisive in this outcome. The court's judgment provided clarity on the responsibilities of the second respondent under the Workers Compensation Act 1987.

Orders