Jakmax Pty Ltd v Taylor

Case [2017] NSWWCCPD 24
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Jakmax Pty Ltd v Taylor [2017] NSWWCCPD 24
APPELLANT: Jakmax Pty Ltd
FIRST RESPONDENT: Shane Taylor
SECOND RESPONDENT: Workers Compensation Nominal Insurer
INSURER: Uninsured
FILE NUMBER: A1-1608/16
ARBITRATOR: Ms J Bamber
DATE OF ARBITRATOR’S DECISION: 29 November 2016
DATE OF APPEAL DECISION: 18 May 2017
SUBJECT MATTER OF DECISION: Employment connected with the state of NSW; s 9AA of the Workers Compensation Act1987; application of the “usually based” test; challenge to factual findings concerning injury and incapacity
PRESIDENTIAL MEMBER: President Judge Keating
HEARING: On the papers
REPRESENTATION: Appellant: Goldbergs Lawyers
First Respondent: Slater + Gordon Lawyers
Second Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:

1.   The Arbitrator’s determination of 29 November 2016 is confirmed.


INTRODUCTION

  1. The appellant challenges the Arbitrator’s findings on three grounds. Firstly, that the worker sustained an injury in the course of his employment. Secondly, that the worker’s employment was connected with the state of New South Wales. Thirdly, that the worker has had no current work capacity since 23 April 2015.

  2. In particular, this appeal concerns the application of s 9AA of the Workers Compensation Act 1987 (the 1987 Act) and the “usually based” test to determine whether the worker’s employment is connected with the state of New South Wales.

  3. The worker was a sales representative for a company based in Victoria. After accepting the role, the worker re-located from his home in Victoria to Casino in New South Wales where he resided. The worker received stock at his home in Casino from the employer, for the purpose of his employment. The worker also received stock in other location or locations. He travelled an area from northern New South Wales to southern Queensland in undertaking the duties of his role.

  4. For the reasons discussed below, the Arbitrator was correct to conclude that the worker usually resided in New South Wales.

BACKGROUND

  1. From 31 March 2014 until 12 December 2014, Shane Taylor, the first respondent, was employed as a sales representative with Jakmax Pty Ltd (Jakmax), the appellant. Mr Taylor was required to “travel, service and sell/deliver stock” across northern New South Wales and southern Queensland. He was provided with a work van, iPad and mobile phone.

  2. On 12 December 2014, Mr Taylor was dismissed from his employment. However, on that same day he was informed by Jakmax that arrangements had been made for his work van and any stock remaining in his possession to be collected from his rented accommodation in Casino. On 13 December 2014, in the course of loading the work van with the remaining stock, Mr Taylor allegedly sustained an injury to his lower back. The mechanism of injury is the subject of dispute.

  3. At the time of the alleged injury, Jakmax was uninsured in New South Wales for liability under the relevant workers compensation legislation.

  4. Mr Taylor lodged claims for compensation in respect of his injury in the state of Victoria, Queensland,…

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Jakmax Pty Ltd v Taylor [2017] NSWWCCPD 24
Case
[2017] NSWWCCPD 24
Decision Date

CaseChat Overview and Summary

In the case of Jakmax Pty Ltd v Taylor, the dispute arose from an application by the employer, Jakmax Pty Ltd, to review a decision of an Arbitrator concerning the employment status of an employee, Mr. Taylor, and the subsequent entitlement to workers compensation. The matter was heard in the New South Wales Supreme Court. The employer sought to challenge the Arbitrator’s finding that Mr. Taylor was employed in connection with the State of New South Wales, which had implications for the application of workers compensation laws.

The central legal issues before the court were whether Mr. Taylor’s employment was sufficiently connected to the State of New South Wales to trigger the application of the Workers Compensation Act 1987, and specifically section 9AA. This section pertains to the “usually based” test, which determines if an employee’s workplace is located in New South Wales. Additionally, the court was required to assess the validity of the Arbitrator's factual findings regarding the nature of Mr. Taylor’s injury and the resulting incapacity.

In delivering the judgment, the court examined the evidence and the reasoning of the Arbitrator. The court found that the Arbitrator’s determination, which confirmed Mr. Taylor was employed in connection with New South Wales and thus subject to the Act, was supported by the evidence. The factual findings concerning the injury and incapacity were also upheld, as the Arbitrator had adequately considered the medical evidence and the circumstances of the incident. Consequently, the court dismissed the employer’s challenge and upheld the Arbitrator’s decision.

The court’s final orders confirmed the Arbitrator’s determination of 29 November 2016, rejecting the employer’s application to review the decision. The employer’s contention that the employee was not sufficiently connected to New South Wales, and hence not subject to the Workers Compensation Act 1987, was not upheld. This outcome ensures that Mr. Taylor’s entitlements under the Act are maintained, as originally determined by the Arbitrator.

Orders

Orders of the court

1. The Arbitrator’s determination of 29 November 2016 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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