Jussy v Mailton Holdings Pty Ltd (Ruling)
[2012] VCC 1477
•8 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
WORKCOVER DIVISION
Case No. CI-10-03863
| BILMA DEVI JUSSY | Plaintiff |
| v | |
| MAILTON HOLDINGS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 November 2011 | |
DATE OF RULING: | 8 October 2012 | |
CASE MAY BE CITED AS: | Jussy v Mailton Holdings Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1477 | |
RULING
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Preliminary point – whether plaintiff is a “worker” employed by the defendant at relevant time
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED – Dietrich v Dare (1980) 30 ALR 407; Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197; Cameron v Hogan(1934) 51 CLR 358; Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92; Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210; Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
RULING – the plaintiff was a “worker” within the meaning of the Act employed by the defendant at the relevant time.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Arnold Thomas & Becker |
| For the Defendant | Mr R G W Lawson | Thomsons Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Bilma Devi Jussy, claims compensation pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”) for personal injury suffered by her on or about 14 March 2008 arising out of or in the course of her employment with the defendant, Mailton Holdings Pty Ltd. The defendant denies liability to pay any compensation.
2 The plaintiff alleges that on 14 March 2008, she was employed by the defendant and acting in the course and scope of her employment when she suffered injuries to her low back and referred pain as a result of falling on some stairs at the premises of the defendant. She further alleges that such injuries have resulted in incapacity for employment and for medical and like expenses to be incurred by reason of the injuries.
3 There is no issue that on 28 March 2008, the plaintiff served a Claim for Compensation as prescribed by the provisions of the Act on the defendant[1] and that by letter dated 29 April 2008, the agent of the defendant advised the plaintiff that the claim was rejected.[2]
[1]See Exhibit 2
[2]See Exhibit 3
4 The rejection letter asserts, amongst other matters, that the plaintiff was not a “worker” within the meaning of the Act employed by the defendant on 14 March 2008. Although other issues are in dispute, I was informed by the parties the major issue was whether or not the plaintiff was a worker employed by the defendant at the time she allegedly fell on the stairs. The parties requested that this issue be heard as a preliminary issue.
5 I raised with the parties, particularly counsel for the plaintiff, whether there was any risk that in the event that I ruled that the plaintiff was not a “worker” employed by the defendant at the relevant time, there was the potential for the plaintiff to fall “between two stools” if a common law claim was made against the defendant as an occupier rather than an employer.
6 After some general discussion, the plaintiff wished to pursue the application and, accordingly, I ruled that I would decide such issue as a preliminary question pursuant to Rule 47.04 of the County Court Civil Procedure Rules 2008.
7 Evidence was given by the plaintiff; Ms Julijana Krisa, who described herself as a supervisor employed at the premises of the defendant; and a Mr Danial Coelho, who described himself as a director and effectively the owner of Bernard’s Bakery, which is the business carried on by the defendant at premises situated at 33 Wesley Court, Keysborough. The parties tendered various materials.[3]
[3]See Annexure A
The Evidence of the Plaintiff
(a) The background of the plaintiff
8 The plaintiff is a forty-five year old (born in 1967) married woman with three children aged twenty-four, twenty and twelve. She was born in India and migrated to Australia in or about July 1986 to join her husband, who already was in Australia.
9 After her arrival in Australia, the plaintiff was employed by a variety of companies performing mostly process work, production line work and fruit picking. Such jobs included:
(a)She commenced work with Johnson Tiles in 1987 as a full-time machine operator on the production line, and remained there until the birth of her first child;
(b)After being off work for about a year, she returned to work at Kenworth Trucks as a full-time process worker involved with parts assembly. She remained there for about a year and was put off because there was not enough work;
(c)She then worked for SGE International assembling syringes and remained there for about eight months until the birth of her second child;
(d)After being off work for four or five months, she went fruit picking in the Griffith area during the season;
(e)She then worked at Hunter Packaging performing casual work five days a week, eight hours a day, and was involved in packing margarine containers and dip containers, after which she was involved in asparagus picking near Canberra;
(f)She was then employed at Moss Products performing process work involving checking of handles and packing them. She performed such work for about eighteen months up until the birth of her third child;
(g)After a “couple of years off work”, during which time she travelled to India, and completed a Certificate III in Aged Care;
(h)She commenced work with Broughton Lea Nursing Home in Canterbury as a full-time carer for about six or seven months. She ceased working there because the work involved “very heavy lifting”;
(i)She then was employed by Lockwood performing assembly work for about two years on a casual basis.
(b)The circumstances causing the plaintiff to go to the premises of the defendant on 14 March 2008
10 The plaintiff gave evidence that she had developed a friendship with a Mrs Vinda Rai, who was recently arrived from India and who had a child at the same school as attended by one of the children of the plaintiff.
11 The plaintiff gave the following evidence:
Q: “What did you hear from her?---
A: Just Vinda Rye (sic) know Mandip Singh.
Q: Mandip Singh?---
A: Yes. Mandip Singh said, ‘My factory people need ladies – worker’, and that lady husband told my husband they need lady to work, ‘If your wife want to work she can start – go here six o’clock’.”
HIS HONOUR:
Q: “Did you know Mr Mandip or anything about Mr Mandip before this?‑‑‑
A: No.”
MR CVJETICANIN:
Q: Did you speak to Mr Mandip yourself?---
A: Not before.
Q: You didn’t speak. Did you have any contact with him by telephone?---
A: My husband did.
HIS HONOUR:
Q: “I want to understand. When this friend spoke to you and had talked about the prospect of a job with the bakery?---
A: Yes.
Q: How long was that before 14 March – the day - - - ?---
A: Very short notice – very short.
Q: Well, a day – a week?---
A: Just like a day.
Q: A day?---
A: Yes, not a week.
Q: So your friend spoke to you about a day or so you went on 14 March?---
A: Yes.”[4]
[4]T 33, L2-21
12 According to the plaintiff, Mrs Vinda Rai did not wish to take on the job because she cannot “speak much English”.
(c)The Plaintiff’s account as to what occurred when she attended the premises of the defendant on 14 March 2008
13 The plaintiff gave evidence that she attended the premises of the defendant on 14 March 2008 in the morning at about ten or fifteen minutes to six in order to meet “somebody” and to commence work at six. In particular, she gave evidence that she knew she had to be there at six o’clock to meet a “lady”.
14 The basis of her understanding to be there at that time and to meet a “lady” was, according to her, brought about by Mr Mandip Singh (an employee of the defendant) informing Mr Rai (husband of Mrs Vinda Rai) who in turn telephoned the husband of the plaintiff and informed him.
15 On entering the site of the defendant, the plaintiff noticed there was an office upstairs and she went to the side of the building and climbed the stairs and entered into what seemed to be part of the factory. The plaintiff then gave the following evidence:
Q: “Now I stopped you – you went in and you went upstairs into this, that you knew to be the factory. What happened then?---
A: Well, I met some lady, I don’t remember the name, and - - -
Q: You what lady, you saw a lady?---
A: Yeah, I didn’t - - -
Q: Did you find the lady or did the lady come to you?---
A: No, we – she was coming forward and I was walking in.
Q: Yes - - -?---
A: And I said to her, ‘Good morning, good morning, I’m the new lady to start work.’ She said, ‘Thank you, you come like a good time’, you know, and then gave me to cover my hair.
Q: What did she give you?---
A: The hair net.
Q: The hair net, yes?---
A: Yeah, and not much time between and then once I saw all the safety shoes I was not comfortable and I asked her can I ring – can I tell my husband to bring my safety shoes, and she said, ‘Don’t worry about it today and let’s go straight to work’ and - - -
Q: This conversation, was that taking place in the factory or where?---
A: Inside the factory, yes.”
MR CVJETICANIN:
Q: “You said it was inside the factory. Was it where people work or was it in some other area?---
A: Near the toilet room and the kitchen.
Q: The toilet room and the kitchen?---
A: Yes.
Q: And did you have a conversation with this woman about your jewellery?---
A: Yes, yeah, remove your jewellery, and I put my necklace in my bag and I left it in the toilet area.
Q: You left your bag in the toilet area?---
A: Yes.
Q: When this woman took you out where you were, where did she take you?---
A: She took me straight where is the cake coming from the oven.”[5]
[5]T 36, L19 – T 37, L18
16 On being taken to the area where the cakes were taken from the oven, the plaintiff was told by the “woman” that she (the plaintiff) was going to start work with the “gentleman” who was taking trays of cakes from the oven, removing the cakes from the trays and placing the cakes on a bread tray.
17 The plaintiff gave evidence that she commenced work at six and she answered “Probably, yes” when questioned whether it appeared to be the normal shift time of people commencing work at that time.
(d) The course of the work of the plaintiff that morning
18 After watching the gentleman remove the cake trays from the oven and then empty the cakes onto the table by tipping them upside down and placing them on the bread tray, the plaintiff commenced to perform the work of placing cakes which had been removed from their containers onto a bread tray where she stacked them.
19 The plaintiff described that the containers were coming out of the oven “very fast”. After the bread tray was filled with cakes, someone else would take it away.
20 The plaintiff gave evidence that she did this work “constantly” and “fast, very fast” for about three hours. In particular, the following evidence was given:
HIS HONOUR:
Q: “Just on that, so you’ve told me you started about 6 a.m. doing that work and you’ve just said you worked for about three hours – were there any breaks in those three hours, like morning tea or anything like that?---
A: No.
Q: So you worked continuously for the three hours?---
A: Yes.
Q: Yes?---
A: Not even toilet breaks or anything?”[6]
[6]T 40, L17-22
21 The plaintiff noted that there were other ladies in the same area performing icing work on the cakes. The plaintiff considered that the lady who she met initially was the “boss” of that area and the man who was taking the cakes out of the oven, was just another worker.
22 After performing that work for about three hours, she was moved by “the lady” to the icing work, which was a process line involved in the decoration and chocolate icing of cakes. Such work involved about ten workers on either side of the conveyor belt but she could not remember whether they were all men or women or a mixture, but does remember that the women did not wear a uniform, but wore hair guards and had safety shoes.
23 In particular, the plaintiff gave this evidence when queried as to why she was moved to the “icing area”:
HIS HONOUR:
Q: “Did she say why you were moved from the first area to the icing area? Why did that happen?---
A: The cake I put in the bread tray, is piling up, so she want my help to move more faster.
…
Q: Did the lady say anything about why she was moving you from one area to the icing area?---
A: She said, ‘We need your help’.”[7]
[7]T 42, L1-4; L11-13
24 When queried as to how long she performed that type of work:
Q: “And the work you were doing there, was it busy, or was it slow, or what was it?---
A: Very busy.
Q: Very busy?---
A: Very busy.
Q: How long did you work there for?---
A: Until the light off.
Q: Can you say how long that was?---
A: Light went 10.30.
Q: While you were working on the icing, on the decorating, did you see the supervisor again? That woman that you saw at the start? Did she come back to the - - -?---
A: She was there.
Q: She was there?---
A: She was there.
Q: Did she say anything to you?---
A: When the light off, or before?
Q: No, before the light went off, but while you were doing the icing?---
A: She – she offer me – sorry – she offer my (sic) overtime.
Q: What did she say, can you remember exactly?---
A: She said, ‘Are you available tomorrow?’, which is Saturday, and I said to her, ‘Yes, I am available Saturday.’”[8]
[8]T 43, L9-24
25 The plaintiff gave evidence that while she was doing the icing and decoration work, an elderly lady working in the area told the supervisor that she should be given an apron, which she was provided. Over the period from 6.00 am to 10.30 when the lights went out, the plaintiff was given no break at all and from her observation none of the other workers had any breaks because they were “too busy working”.[9]
[9]See T 44, L24
(e) When the lights went out at the premises of the defendant
26 The plaintiff gave evidence that when the lights went out at about 10.30 am, you could not see anything as there was no natural light. She gave evidence that the supervisor lady advised everyone in the area to come out slowly and to walk “like blind people”. As they were coming out, the supervisor woman indicated that they have a twenty-minute break and they were taken to the kitchen area where seemingly workers had their lunch and things like that. That room had windows and thus had light in the room.
27 When standing in that area, the plaintiff ate some food that she had brought for lunch and tea time and also she spoke to some of the other workers including Mandip Singh, after introducing herself.
28 After some time, the plaintiff and some other six or seven workers were directed by the supervisor to follow her to an area where a roller door could be opened to allow light into the work area. In particular, the following evidence was given:
Q: “Is the supervisor still there?---
A: Yes.
Q: Does she … anything to you or to the other workers that you can hear?---
A: She said come (indistinct) lady.”
HIS HONOUR:
Q: “Sorry, come?---
A: ‘Come (indistinct) worker and we do some work, open the roller door,’ and I didn’t like when she says that. And she said ‘you come as well’.
Q: How many ladies went with her?---
A: Probably we are six, seven together.
Q: Yes.
A: Yeah, and she – she said ‘follow me’ that’s what she said, and she was front we all was behind her. And it was so dark and I was just like that myself you know, not safe but God, just one step and I fell straight down on the second - - -
Q: And this was – where was this?---
A: Going down the stairs.
Q: Going down the stairs I see.”
MR CVJETICANIN
Q: “The stairs that you went down, was there any light in the stairs?---
A: Not at all.
Q: Did you have to open a door to get to the stairs?---
A: No.
Q: If there was light in the canteen, why wasn’t there light in the stairs?---
A: Is no windows and going down very few stairs is angle.
Q: You fell down?---
A: Fell straight down.”[10]
[10]T 48, L16 – T 49, L6
29 The plaintiff gave evidence that she was in pain after the fall and was unable to get up. After a few minutes, she was helped and brought back to the kitchen area, where she sat on a chair. She was experiencing pain in her back and ankle.
30 The plaintiff called her husband, who was working in the area (being a taxi driver), and he took her to the doctor for treatment. Her doctor gave the plaintiff a WorkCover claim form which was filled out by her daughter and signed by the plaintiff.[11]
[11]See Exhibit 2
31 The claim form was submitted and responded to by way of letter dated 29 April 2008 denying liability.[12]
[12]See Exhibit 3
(f) Subsequent events involving the plaintiff and the defendant
32 The plaintiff gave evidence that her husband tried to deliver the claim form at the premises of the defendant, after which, at a later time, the plaintiff and her daughter attended the premises of the defendant. In particular, the following evidence was given:
Q: “You went with your daughter?---
A: Yes. First my husband went to drop the form, they refuse. And then I went with my daughter, she drive for me, and gone in the factory and the office was upstairs, and she climbed the stairs she go – go in the office. And she said my mum’s name is Bilma Jussy, she go fell down we want to lodge some form. And the gentleman come down, he said to me – he said to me, you should refuse not to walk through the darkness.
Q: Sorry, you should what?---
A: He said – I said, ‘look, I got hurt you know, we shouldn’t be working in a darkness place’. He said to me, ‘you should refuse not to work dark place’.
Q: I see, I understand that bit, when you went to the factory, the office with your daughter?---
A: Yes.
Q: Did you at that time ask for any money for the hours you had worked?---
A: He didn’t want to talk with me - - -.”[13]
[13]T 55, L9-24
33 The plaintiff gave evidence that she expected to be paid for the work she undertook from about 6.00 am until the lights went out on 14 March 2008. She did not know what she would be paid a day, but she expected to be paid just as any other worker.
The Cross-examination of the Plaintiff
34 Under cross-examination, the plaintiff gave evidence that she had worked for Susan Day Cakes for a couple of days in the past. When asked whether she had any idea what the work may be with the defendant when she went there on 14 March 2008, the plaintiff gave evidence that she had no idea whether she would to have to stand all day, have any particular skills, and ultimately told the Court that she had “no idea what type of work they were going to be providing”.[14]
[14]T 61, L11, 12
35 She accepted that there were about sixty people working there on the day and although she was familiar with the process of using a clock card and taking tax file numbers and the like, no such process had occurred up to the time that she fell down the stairs.
36 The plaintiff gave this evidence when queried about any concerns about what her hours of work would be or her rate of pay:
Q: “But when you first walked into the factory were you interested in about knowing what your hours of work would’ve been, what time you finished or perhaps more so, what you were going to be paid? Where they concerns of yours?---
A: Not much conversation, not much.
Q: Sorry, not much?---
A: Not much of given information, no.
Q: From what you tell me, no information was given, but what I am going to ask is from your – when you walked into the factory and saw the supervisor were you worried about how much you were going to be paid or what your hours of work were going to be?---
A: I was worried - - -
Q: And if you were, did you say anything to the supervisor about that?‑‑‑
A: I was worried a lot and I was just waiting, as is very early, office not open, six o’clock starting work, and tea time I probably ask if they give me the employer’s form and tax file number but that time never come.”[15]
[15]T 64, L2-18
37 She denied that the regular starting time was 7.00 am and reasserted that she had been told to be there at 6.00 am as relayed by Mandip Singh to her husband.
38 She accepted that the office and the canteen were upstairs at the premises of the defendant but could not remember whether the supervisor that she met initially was Julijana Krisa.
39 The plaintiff denied that the woman who she initially spoke to at the premises of the defendant queried whether she wanted to go home and change shoes before commencing. Furthermore, she denied that the first job given to her on the morning was the icing work rather than the de-panning and stacking of the cakes.
40 It was put to her by counsel for the defendant that what was occurring when she was performing this work was to allow an opportunity to see whether “this sort of work suited you” and also to see whether the bakery considered her suitable for the work. In particular, this evidence was given:
Q: “I suggest to you that what was occurring was that you wanted the opportunity to see whether this sort of work suited you, the person who might become your employer, the bakery – had the opportunity to see whether you were suitable?---
A: She already offering me this overtime while I was - - -
Q: Who’s she?---
A: She.
Q: But you dispute that this is just an opportunity firstly for you to see whether the work was suitable for you?---.”
HIS HONOUR:
Q: “See, what’s being put to you – listen very carefully to these questions – what’s being suggested to you is that the work that you did to the extent you did it on that morning?---
Was just a trial, just to see whether you could that sort of work or as far as you’re concerned you had actually started work for that company?---
A: Yes.
Q: The last one?---
A: Yes.”[16]
[16]T 73, L20 – T 74, L5
41 When queried about her suffering back pain “over many, many years” the plaintiff gave evidence that she never claimed a workplace injury and that she had back pain after her third pregnancy. Furthermore, she accepted that prior to 14 March 2008, she had an x‑ray and a CT scan of her back.
42 The plaintiff also gave evidence that she could not enter the office part of the defendant’s premises at six o’clock in the morning as it was locked and would not open until about nine o'clock.
43 When it was put to the plaintiff that the work that she undertook on the morning of 14 March 2008 was a “trial”, the plaintiff stated:
A: “If was trial, she should be offering me early morning, the hair net, the apron, and she should check my safety shoe, then she should be taking me to look around the factory. Not to start the job.
Q: I suggest that your recollection is faulty when you say you started on the job turning the cake tins first. I suggest to you the job you had – she said, ‘This one job here, it is removing the cakes from the conveyor line’. Could you be wrong about the order in which you tried these things?”---
HIS HONOUR:
Q: “Are you saying the icing is first?”---
MR LAWSON:
Q: “Yes?---
A: Icing first?”
HIS HONOUR:
Q: “What’s being suggested to you is that rather than doing the tip out the cake job and then doing the icing job, you did the icing job first, and you did the tip out the cake job second. Is that right?---
A: No, that’s not correct.
MR LAWSON:
Q: “I suggest that because it was holding the process up when you were removing the cakes from the conveyor – my learned friend doesn’t understand the question, I’ll put it better. I suggest you were taken off that job because you weren’t managing it?---
A: That’s not right.
Q: No?---
A: That’s not right.”[17]
[17]T 103, L13 – T 104, L5
44 It was put to the plaintiff that she had a conversation with the supervisor after the lights had gone out in the canteen. In particular, this evidence was given:
Q: “See I suggest to you that there was a conversation there, but just ---
A: Bunch of ladies and woman all wondering what will happen how long the light be off. And they find out light can be bit longer, don’t know, hour or half an hour, or more than that as we did not have a break from 6.30 to 10.30 and they said, ‘let’s go have a 20 minute break’.
Q: Just listen, I suggest to you that Julijana, the supervisor, said words to the effect, that she asked you whether you liked the work, words along those lines. You said, well, I’ve liked what I saw but I’d like to see more of the factory.
A: I did not say that.
Q: You sure?---
A: No, nothing been asked, no.
Q: I suggest to you at that stage you still weren’t going to commit yourself to working there?---
A: That is not right, working half a day in their factory and you want me to look at the factory? What you want me look in the factory?”[18]
[18]T 105, L26 – T 106, L15
45 The plaintiff was also questioned about the conversation she subsequently had with the man at the premises of the defendant when she tried to submit her Claim for Compensation. I refer to the following evidence:
Q: “Listen to me please, you’re being asked another question, now what’s been suggested to you is the conversation with the man, he was more concerned about you walking without having proper shoes on. Was there any conversation about that?---
A: He said, ‘you’re not wearing safety shoes’. And I said to him, ‘the lady said, ‘don’t worry for the day’’.
Q: So there was some conversation about that with the man?---
A: Yeah, he said ‘you’re not wearing’ – first he said ‘you shouldn’t walk in the darkness’, and the second he said, ‘you was not wearing safety shoes’.”[19]
[19]T 110, L13-22
46 The plaintiff did not accept that the man she met at the premises of the defendant when she tried to submit the Claim for Compensation also stated that she was not employed by the company at the time of the alleged injury.
47 The plaintiff accepted that in prior jobs she had not actually started working until they had her personal details such as her full name, address and tax file number and maybe even her bank account for payment of wages. Thereafter followed this evidence:
Q: “Yes, and every job has involved that information in one way or the other?---
A: Only that job I did on 14 March, that job first time since I been here.”
HIS HONOUR:
Q: “Well, tell me, what did you expect when you started, as you say, work on that morning - - -?---
A: Yes.
Q: You wouldn’t even have known what the knock-off time was, did you?---
A: No, not really.
Q: You didn’t know whether it was a nine day fortnight or something like that, you had no idea about that, would you?---
A: No idea, no.
Q: And you certainly didn’t know how much you were being paid an hour or week, that’s right, isn’t it?---
A: Yes.
Q: When did you expect this information, the filling out the form as it were, saying where you lived and your tax file number and whatever else, when did you expect that was going to happen?---
A: Tea time, tea break time.
Q: What, morning tea?---
A: Morning tea, yes.
Q: Why did you think it was going to happen then?---
A: When I start the work, not enough time, while working, can’t talk, like you have to do the work - - -
Q: That might be right but that was something you believed, no one told you that though did they, or did they?---
A: No.”[20]
[20]T 113, L9-30
48 The plaintiff also accepted that the words that she was to start immediately were “never used”. The plaintiff gave evidence that her residence was about a twelve-minute walk from the premises of the defendant and she also considered that if she started at six in the morning, she would be home when her youngest son, who was then about eight, would arrive home from school.
49 Counsel for the defendant put a series of questions as to whether in truth, the plaintiff only attended the premises of the defendant to see if the work was suitable and the conditions suitable. This evidence ensued:
HIS HONOUR:
Q:“I think he’s asking you this, and this is really that, were you going to start work on that morning from 6 a.m. or whatever or where you going on that morning just to have a look at the job to see whether it fitted in with you, whether it fitting in with maybe looking after your child or fitted in with any problems you have with your back or anything or were you going there to start work on that morning?---
A:Look, one thing if I look for work not six o'clock – not six o’clock in the morning, so I went as if I will be working there.”[21]
[21]T 116, L29 – T 117, L7
50 The plaintiff denied that the trip she undertook to India in May 2008 was a “planned trip” – rather, such trip was brought about by a death in her family.
The Evidence of Julijana Krisa
51 Ms Julijana Krisa was called on behalf of the defendant. She gave evidence that she had been employed by the defendant, known as Bernard’s Bakery, for about eight years and as at the time of the plaintiff attending the premises of the defendant, she had been a supervisor for about two years. Prior to being a supervisor, she had worked in what she referred to as the “depositing” section (that is, where the cakes are removed from the containers) and at the icing and packing section. She continued to be employed by the defendant as a supervisor.
52 She described the premises of the defendant to be a two storey building with the food production area being on the ground floor, and on the first floor there was situated the office administration and the canteen. The defendant makes such things as cakes, muffins, cupcakes, and presently was making some kind of garlic bread. The premises of the defendant is not a retail outlet and according to Ms Krisa, mainly sells to supermarkets.
53 There is also a bakery section in the food production area beyond the depositing and icing area. Ms Krisa, although not knowing precisely, considered that maybe fifty to sixty people worked at the premises of the defendant being involved in office work and food processing. Of those “maybe thirty five were involved in food production”.
54 Ms Krisa described herself as being the supervisor of the cake line which involved the depositing and the icing of the cake. There is another supervisor responsible for the baking area.
55 Ms Krisa described the operations undertaken in the cake line as follows:
“It’s like – it’s starting by mixing. Then we have another task is like the depositing, you know, in cake tins. Then from there the cake going on cooking then on a cooling down then the – on a de-pan. And after that, when the cake is cold enough to be iced, then it’s going on a icing. From the icing the cake going on a belt, on a conveyor and travelling to the end. Then the person dome the cake, then (indistinct) it’s going for packing in boxes, so … .”[22]
[22]T 134, L10-18
56 She estimated that there would be about twelve or thirteen people working in the cake line, of whom maybe nine or ten were women. She described herself as a hands-on supervisor and would perform various tasks when women were on toilet breaks or the like. She acknowledged that different jobs required different skills and with her experience some workers are better at some things than others.
57 When queried as to the regular starting time in the morning, Ms Krisa initially stated that she was “not quite sure like back then”, but at the moment was starting at 6.00 am and had been doing that for one-and-a-half years. Later, she stated that back in March 2008, there was normally a seven o’clock start, but it could vary on whether the defendant was busy or something urgent had to be performed.
58 She accepted that the hours of work could be a “bit unpredictable” depending on how busy the defendant was or how many cakes had to be iced. On a normal working day, workers worked for eight hours and have a morning tea break at approximately one-and-a-half hours after commencement of work and a lunch break for half-an-hour. There is no afternoon tea. In particular, she gave evidence that in relation to the morning tea break, production ceased and all the group would go for the tea break, after which everyone came back together. Ms Krisa gave evidence that she determines at what time the break occurs.
59 When questioned about whether she had a recall of the plaintiff attending on 14 March 2008, the following evidence was given:
Q: “Now, if we could take you back to 14 March 2008. Do you recall Mrs Bilma Jussy?---
A: Well, hardly. I know her name, you know, yeah.
Q: There’s been evidence that she met – she couldn’t recall your name, but she met a supervisor early in the morning in the canteen. Do you recall that?---
A: No, I – I met her in the canteen, yeah.
Q: At about what time was that?---
A: Sorry, but I can’t say.
Q: Had you started work?---
A: It’s – I can’t remember exactly. It was like seven – I can’t remember exactly the time now, in this time, like I can’t say exactly.”
HIS HONOUR:
Q: “You might not remember the precise time but was it at around the beginning – it was towards the beginning of the shift, or was it midday or was it - - -?---
A: No, no, no, it was morning, but exactly the time, no, I am not sure any more. I just can’t remember, it’s seven or 7.30, or - - -
Q: But it was your recollection that somewhere between seven, 7.30 – assuming that was the starting time at 7 o’clock?---
A: Yeah.
Q: Do you normally arrive before the regular starting, being the supervisor?---
A: Yes, half an hour.
Q: And what have you got to do during that time?---
A: Well, I just say before, I preparing the packing staff and make sure, you know, everything is – you know, right place, so we can start up when the group arriving.
Q: Getting back to the meeting with Ms Jussy – at some time between seven and 7.30 did you meet her in the canteen?---
A: Yes.
Q: And did you have – it’s the lady sitting in court, so to avoid any confusion?---
A: Yeah.
Q: Does she look familiar to you?---
A: Well, yeah, now – how I saw her, but it was like, only just a – only just like a couple of hours, and you know, I – I didn’t saw her any more, like you know? Never ever again.
Q: We’ll get on to what happened during the morning?---
A: OK.
Q: Do you recall having a conversation with her when you first met her? I know it’s difficult - - -?---
A: No.
Q: - - - just do the best you can?---
A: Well, she was waiting in the canteen and I come in a canteen and I ask her one ‘Are you the lady who is connected with Mandip?’ because I was told someone gonna come. And even didn’t know her name. And then she said, ‘Yeah, I am’, and then I tell her, ‘I gonna walk through with you to downstairs, but before we go downstairs, I'm gonna let you know what kind of job you’re doing downstairs and what you will need to know about this job.’ And I ask her at this time, like did she ever work in a food industry, so did she have any – any – like a knowledge about handling the food. Because it’s a very important and she said ‘no’.
Then I started telling her what kind of uniform we’re wearing, what she need to have, and she could now work with use – so the pants, the top, the apron – we get sometimes from the bakery, the aprons. But sometimes also we buying, because they get very easily like – you know, broken. Then I let her know she need to have the – the working shoes, because we working on a production downstairs. And need – you know, it’s danger to don’t wear it, because sometime the things can happen – like the pallet can fall over or you just drop the bucket on your feet. And you know, something can – something can go wrong.
And how I take a look on her feet – she didn’t have the working shoes. And I tell her she can’t go downstairs because she doesn’t have the right shoes. And then said – like, she gonna be very careful, how she gonna work. And I said, ‘All right, but in – like that, you’re gonna be responsible for your deeds, because I, my duty is to tell you, but when you – when you don’t do like that, then it’s your responsibility’.
So she didn’t have the uniform, she didn’t have anything. I give her the apron.
Q: Was there any discussion about going home at that stage?---
A: I mention her, but you know, usually people who coming to our place to do the job, they’re living in Springvale. So I asked her, ‘Is any possible to go home and change that shoes, or someone to bring you?’ and she said ‘no’, she gonna be all right like that.
Q: Now, in your position as supervisor, do you have any authority to engage people to put them to work?---
A: Of course not.”[23]
[23]T 141, L5 – T 143, L22
60 Ms Krisa gave evidence that she was told the day before by one of the managers, Greg Carey, that a lady:
“… gonna come over to take a look the job, what we doing, and then she gonna be happy there, then he gonna give her the – the job”.[24]
[24]T 143, L30 – T 144, L2
61 The manager also told her that the person was going to be arriving approximately fifteen minutes before the start of the shift.
62 Ms Krisa gave evidence that as far as she was concerned, the purpose of taking the plaintiff downstairs and talking about the clothing was that from experience, some people just cannot handle the job – perhaps because of the cooking smells and the heat generated by the ovens.
63 Ms Krisa acknowledged that there was no paperwork undertaken in relation to the plaintiff on that day.
64 Ms Krisa described how she took the plaintiff downstairs to the production area and in particular, the icing area, where she told other workers that the plaintiff would like to see how we do the job and what we are doing here. Ms Krisa stated that contrary to the evidence of the plaintiff, the plaintiff commenced work in the icing area and was positioned at the end of the line where she had to remove the iced cake and put it onto one side. Ms Krisa described such work as involving a quick process and to her observation, the plaintiff did not cope with such operation. Ms Krisa noted that this is nothing unusual as after a couple of days people get used to the process.
65 However, on making the observation that she was not coping with that process, she was taken away from the icing area to the de-panning of the cakes. Ms Krisa estimates that the plaintiff was working for about fifteen to twenty minutes in the icing area.
66 Ms Krisa also gave evidence that at the time the plaintiff attended the premises, the defendant was missing someone on the line and they needed an extra person. She accepted that there was a position to be filled.
67 When queried as to how long the plaintiff performed the de-panning of the cakes, the Ms Krisa initially could not answer, but when pressed by the Court, she stated that it may have been for one hour or an hour-and-a-half.
68 Ms Krisa accepted that the plaintiff continued to do the de-panning job until the blackout, which she recalled, but was unable to say at what time the blackout occurred.
69 When queried as to how long someone may be trying out the job, Ms Krisa replied:
“Well usually the manager come over and, you know, like ask them are they happy with, um---.”[25]
[25]T 152, L 2-3
70 Furthermore, Ms Krisa informed the Court that at no time during that morning did the plaintiff ever say that she did not like the job or she wanted to stop.
71 After the blackout occurred, Ms Krisa agreed that the workers were directed to the canteen and at that time she had a conversation with the plaintiff. The following evidence was given:
Q: “In the canteen did you have a conversation with Ms Jussy?---
A: Yes. I ask her how she find the job and then she said, ‘It’s all right’ but she want to see a little bit more, like, you know from the working.”[26]
[26]T 153, L3-6
72 Later in her evidence, when queried about taking various workers down the stairs (at which time the plaintiff fell), the following evidence was given:
Q: “You went down to where there was going to be light?---
A: Yes.
Q: Because of the roller door going up. And when you took your section down, that included Mrs Jussy, did it?---
A: No, she didn’t go downstairs. She fell on the stairs.
Q: I know, but when you started to go downstairs - - -?---
A: Yeah.
Q: - - - to take your section, that included her?---
A: Yeah.
Q: Yes, I understand?---
A: Because she – she said like she want to see it. I tell her, you know, in the canteen before we go downstairs – then she like the job or she don’t like the job, when she went to go home, she can go home. But she said ‘I will stay because I want to see a little bit more’. I forgot to tell you that.
Q: Tell me, normally when did the man from upstairs come down normally to speak to workers who have just started, was it morning tea? Was it just after they started? When did that happen?---
A: Excuse me, what kind of man?
Q: The man who gives the form and fills in the details?---
A: OK. Well they coming a little bit later on from – from us, the people from the office.
Q: What time do they normally?---
A: Nine o’clock.
Q: Why hadn’t the person come at nine o’clock on that day?---
A: Well, I don’t know.[27]
[27]T 155, L14 – T 156, L4
73 Ms Krisa said the manager’s name was Greg Carey, who is no longer working with the defendant, having left the defendant some six months prior to the hearing of the matter.
74 Under cross-examination, the Ms Krisa accepted that on occasion many Indian workers were employed by the defendant and a lot of workers obtained employment through friends of other workers or contacts with workers. Furthermore, when pressed as to whether the shift could have commenced at 6.00 am back in March 2008, she ultimately stated:
“I can’t remember. I – I can’t be positively sure. Like you know, for any question now. It could be, but it could be like – you know, from seven o'clock now. I can’t say it.”[28]
[28]T 158, L7-10
75 She further confirmed that someone was arriving on that day who had a connection with “Mandip” and that she had been told by Greg, the manager, that someone was arriving on that day. She also confirmed that the defendant needed “workers”. In particular, the following evidence was given:
Q: “Let me put it another way. If she liked the job, she’d get the job?---
A: Yeah, why not? Everyone have opportunity to – to try it, and you know.”[29]
[29]T 158, L27-29
76 Ms Krisa also gave the following evidence as to the circumstances surrounding the plaintiff performing the work on that day:
Q: “And when she was doing that work, she couldn’t just come and go as she liked, she had to be there?---
A: Yeah, I – I go with her and take a look how she doing, and you know, like ask her if she handling the job, or you know, what she thinking. But I was there, I – I’m all the time, you know, around. So she – she was not there by – by herself. So my duty is to – to go and check up on them, you know, how they are doing. And - - - .”
HIS HONOUR:
Q: “You’re the supervisor, as you described, and the supervisor of that area. But from the time that she was performing those activities, you were supervising not only her, but obviously your area. Is that correct?---
A: Yeah, yeah, the same place, yeah.
Q: The other 12 workers or so, is that right?---
A: Yeah, altogether, yeah.
Q: Yes. And only answer this if you can. Did she form part of that team at that stage?---
A: Well, she was doing the job – that task over there and - - - .”[30]
[30]T 160, L3-20
77 Ms Krisa gave evidence that she did not have a conversation with the plaintiff about overtime but could not remember whether she asked the plaintiff to do overtime on the weekends. Furthermore, when the lights went out, Ms Krisa was happy for the plaintiff to start working there and be one of the members of her team.
78 Later, when pushed about overtime, Ms Krisa gave evidence that the defendant worked on weekends when they were busy and obviously, it was necessary to have workers to work on a Saturday. Ms Krisa gave this evidence:
Q: “You probably would [ask the plaintiff about overtime on Saturday]?‑‑‑
A: Yeah.
Q: Whether she’s available to do work on Saturday?---
A: Yeah.
Q: So that may be right? Or you just don’t remember?---
A: I don’t remember exactly for this week. Like, it’s happened on – you know, over – like, did we work on Saturday on Sunday, I can’t remember. But then in cases like that and we would work Saturday and then she gonna accept the job and she like, I don’t see the reason why I don’t ask her. Like - - -
Q: No, there’s no reason not to. I’m just asking whether that was likely to have occurred?---
A: Yeah, yeah.”[31]
[31]T 163, L23 – T 164, L2
79 Under re-examination, Ms Krisa said it was not her decision whether or not take on a worker, that was a decision undertaken by the manager and the manager would ask her opinion. Furthermore, the following evidence was given:
HIS HONOUR:
Q: “OK, I understand. Just I want to ask this though. If a worker comes to the job and let’s say they try out the job for whatever period of time and they say they want the job and they’re filling in a position on production which you need, what reason can you put to the court that a manager would not take the person on if you say they’re doing the job OK?---
A: I would say that when that person is like maybe rude with the people, you know around. Or maybe – for sure it’s not like – you know, like the fastness and the training he will get.
Q: No, what I - - -
A: In the future. But it have to be something like very, very bad with that person, you know.”
80 Later Ms Krisa gave this evidence:
Q: I understand that, and that’s what I'm really saying to you. What I'm really asking you is that if you’re happy enough with them, and the person wants to do the job, a manager would take them on?---
A: Of course. We give the chance to the people to - - - .”[32]
[32]T 164, L25 – T 165, L5; T 165, L19-23
The Evidence of Danial Coelho
81 Mr Danial Coelho gave evidence on behalf of the defendant and described himself as a director of the defendant and the owner of Bernard’s Bakery, which he commenced some twenty-six or twenty-seven years earlier.
82 He described the premises of the defendant to be a two storey property with administration, canteen and toilets upstairs and production downstairs. As at March 2008, the defendant employed approximately sixty to seventy people, of which about five were in administration and the balance involved in production and distribution.
83 He recalled being at the premises of the defendant on 14 March 2008 and that there was a power failure, which he estimated to have occurred at about 9.00, 9.30 am in the morning.
84 Mr Coelho described the system in place to interview and employ people. He stated:
“OK, we employ a lot of people from friends to friends, a lot of people coming in and they say, ‘I've got a friend looking for a job’, so that’s one system, like people recommending other – other people, but normally we – people come into the office, there’s a form to be filled up, we call employment form, where on the top it’s like a position that they apply for, like baker, pastry cook, general hand, cleaner, driver and then we got all the details underneath where, you know, driver license, address, phone number a then a bit of the job history, where you worked before, how many and the length of time you employed in the previous two or three jobs.”[33]
[33]T 167, L20 – T 168, L1
85 Mr Coelho was then asked what the procedure is where an existing worker might know someone who is suitable. Mr Coelho stated:
“They still have to come and come to the office and introduce himself or herself and saying that he’s looking for a job, if is – normally they say ‘I heard about this job – offer of a job going on’, and then we go through like the interview process.”[34]
[34]T 168, L25-29
86 In circumstances where potential workers hear about jobs through word of mouth, Mr Coelho accepted that sometimes these people wish to familiarise themselves with the work before they decide to take it on.
87 When asked what was the starting time for the production workers back in March 2008, Mr Coelho gave evidence that there has been a few changes from season to season but traditionally it is seven o’clock, although that could change on short notice where there is extra work or promotions to be undertaken.
88 Mr Coelho gave further evidence in relation to the procedure for someone to be employed by the defendant and whether an induction process and manual explaining certain matters would be available. Mr Coelho stated:
“Yes. Normally all the – all the employment is done by me, because I’m the one who – who accept – although I ask – like the supervisors, or I ask a friend, if he’s recommended by a friend – I ask some questions. I say, ‘Look, is a good worker, is not a good worker’. But then, the first interview is done by me. And then by quality – I got a lady – two now, but at the time it was only one – she does the induction. Because I – I mean it could take up to one hour to go through all the – you know, the pros and what you can do in the food – the food bakery or food premises. So they – they normally do it.”[35]
[35]T 170, L29 – T 171, L 9
89 Mr Coelho produced an induction manual which was tendered into evidence.[36]
[36]See Exhibit A
90 Although Mr Coelho was unaware that the plaintiff had arrived at six (or seven) and commenced some production work, he was aware from his operations manager the day before that the defendant was “a bit busier”. Mr Coelho accepted that the defendant was looking to take on one or more people because of the extra work. Mr Coelho had no conversations or dealings with the plaintiff on 14 March 2008 and became very preoccupied with the blackout which disrupted production.
91 On the assumption the plaintiff indicated that she liked the job and that she continued after the power failure and she was comfortable performing the job, Mr Coelho was asked whether there was any additional decision making process that would have to be considered. He gave the following evidence:
“When we fill up that form, as a rule for me – normally I ring one – so if they list say three companies, I just pick one, and I ring that company, and say, ‘Look, that such and such person worked for you, can you tell me if they good, no good, if they got any – cause any problems?’ – As I don’t ring them all, normally I pick one and I ring one. That’s what I normally do.”[37]
[37]T 173, L24-31
92 Mr Coelho accepted that he had a conversation with the plaintiff approximately a week after the fall down the stairs when she attended the premises of the defendant. He was asked:
Q: “And what was your attitude? Did you tell her what you thought about her making a claim as a worker?---
A: I told her – I said, ‘Look, you’ – ‘I don’t consider you as an employee of the company because of the way things developed, so I'm not prepared to accept or sign that form’.”
HIS HONOUR:
Q: “Way what things developed? What things are you referring to? You said in your answer you don’t consider her to be an employee of the company and then you went on to say, ‘the way things developed’. What things are you referring to there?---
A: Oh, the – you know, like the way, ’cause I was very upset and she coming in through the back door first of all. As a normal person if I heard that job is available in any place, or even in this tribunal I’ll go to the reception and ask questions. I present myself and say, ‘Here I am. I heard that there’s a job available. I want that job. What I need to do from here?’ Not to go through the back door where – I mean, it’s a food factory. I don’t like anyone to come through the back door and just ‘Here I am. I'm the one who’s ready to start work today’.”[38]
[38]T 174, L26 – T 175, L14
93 When queried as to why Ms Krisa would allow the plaintiff to go into the workplace and work for, on the evidence, anything from two-and-a-half to three-and-a-half hours on a production line, Mr Coelho stated:
“Probably assumed all the procedures was done before and ---”.[39]
[39]T 177, L9-10
94 When queried about the number of hours that the plaintiff worked on that morning, whether it be from 6 am to 10.30 am or 7.00 am to 9.30 am, Mr Coelho stated:
“I mean, I don’t think it should happen that way, it probably went longer than what is supposed to because normally to see a job over a couple of hours is probably enough.”[40]
[40]T 178, L22-25
95 Mr Coelho accepted that if she had been working three hours or more, such is “more than sufficient” to ascertain whether she would have liked the job or not.
96 Under cross-examination, Mr Coelho accepted that he spoke to an investigator in relation to the assessment of the claim on 5 May 2008, and a statement was prepared for him on that date, which he signed as being true. He was taken to the statement and in particular, the part where he stated:
“The power was off from 10.30.”
97 Mr Coelho gave evidence that the plaintiff would have been paid award wages if she had been employed by the defendant. Mr Coelho was also taken to that part of the statement where he noted that the plaintiff was
“… just observing the job on that day.”
98 When it was put to him that the plaintiff was not just observing, she was actually working on the line as part of the team, he stated that he did not agree with that. Later, he explained that his concept of observing was actually performing some of the work to see whether the particular person can actually perform the task.
99 Mr Coelho confirmed that if the plaintiff had been employed by the defendant, she would be paid wages pursuant to the award.
100 Mr Coelho was queried about the procedure undertaken by Mr Greg Carey and Ms Krisa on the day the plaintiff attended the premises of the defendant:
Q: “Was it normal procedure for Greg Carey to tell Julijana that a new worker – a prospective new worker would be coming say tomorrow morning? Is that normal?‑‑‑
A: If he’s a new worker coming, yes. He’ll inform the supervisor, yes.
Q: And on this day the new worker was Mrs Jussy, and she’s attended in the morning?‑‑‑
A: Well, you need to stop there for a second. Because the – the new worker – but has to be done – I need to rephrase that – has to be – like if – if the supervisor needs a new person – I call the new worker – the first step – they don’t come to me, they’re going to Greg, this Greg Carey. He’s no longer there, but at the time was like that.
So then Greg Carey to me and say, ‘We need a new person on that line’ or that line or that line. And then the word starts to go around. Normally I – I even say to my – because I got people there working for me for 17 years. I come to some of them, I say, ‘Do you know anyone who wants a job in this particular area?’ and if they – I mean this Mandip – maybe through Greg or through the area that we are looking for – or that particular area, we need – actually it was more than one area, because one – another – a mixing area, which is prior to icing, he needs one too, he needs another person. And actually I heard someone say, ‘Oh, I want that new person for me if they start’. So that’s what Greg[’s] involvement is. But it has to come through me, you know, and you do all the – and the right steps.”
HIS HONOUR:
Q: “Just on that – this particular worker, you knew in general terms that someone had to be on this line?‑‑‑
A: Not that particular day, no, I didn’t know.
Q: Then how did Mandip - - -?‑‑‑
A: I knew that someone was coming on that particular day but for interviewing, talking about it - - -.”
101 He was further queried:
Q: “If Mrs Jussy – let me put it this way. If Julijana thought that Mrs Jussy could do the job, and Mrs Jussy said ‘I can do the job’, then she’s hired. Isn’t that right?‑‑‑
A: If – if the opinion is positive, yes, definitely.”[41]
[41]T 184, L14 – T 185, L15; T 186, L20-24
Other Evidence
102 The defendant tendered the clinical notes of two treating general practitioners of the plaintiff, Dr Cheah[42] and Dr Nadesan.[43] Part of the case of the defendant, so it was submitted, was that the plaintiff had a pre-existing low-back condition and consistent with the position of the defendant, she was trialling the work at the premises of the defendant on 14 March 2008 to whether she could cope with such work.
[42]See Exhibit 4
[43]See Exhibit 5
103 A perusal of the notes of Dr Cheah reveal:
(a)On 25 March 2003, the plaintiff complained of low-back pain and it was noted that she had an x‑ray undertaken in 2002;
(b)On the same date, the plaintiff underwent a CT scan of her lumbar spine which was reported to show:
“Predominantly mild severity disc changes at multiple levels without significant neve (sic) root compression or canal stenosis.”
104 A perusal of the notes of Dr Nadesan reveal:
(a)On 8 August 1994, the plaintiff complained of back pain on and off with difficulty with bending, although the pain was not radiating;
(b)On 26 February 2002, the plaintiff complained of low-back pain;
(c)In September 2002, the plaintiff complained of back pain on and off for two months;
(d)On 15 September 2004, the plaintiff complained of back pain for three days;
(e)On 20 September 2004, the plaintiff complained of back pain, better than before and not radiating to the legs;
(f)On 21 September 2004, the plaintiff reported that her back pain was “not too bad”;
(g)21 June 2005, the plaintiff reported she fell down while in the shower dressing and experienced back pain;
(h)On 24 June 2005, she again confirmed she had some back pain but not radiating to the legs;
(i)On 21 July 2005, she reported that the back pain was “not bad”;
(j)On 13 July 2005, she underwent an x‑ray which seemingly reported “no abnormality”.[44]
[44]Given these notes are in handwriting, I am unable to say whether this is necessarily an exhaustive list of the complaints of back pain.
Relevant Legal Principles
105 Section 82(1) of the Act states:
“(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
106 Section 5(1) of the Act defines “worker” to mean, at the relevant time:[45]
[45]The definition of “worker” was subsequently amended by Act No 80/2010 (s17(8))
“(a) A person (including a domestic servant or an outworker) who has entered into or works under a contract of service or apprenticeship or otherwise with an employer whether by way of manual labour clerical work or otherwise and whether the contract is expressed or implied is oral or in writing;
(b) A person under this Act is deemed to be working under a contract of services;
(c) A person who under this Act is deemed to be a worker;
(d) …
(e) … .”
107 The authorities would suggest that there must be a clear intention by the parties to enter into a legal relationship and form a binding contract before there can exist a contract of service.
108 I refer to the High Court decision of Dietrich v Dare[46] wherein the High Court dismissed an appeal by a putative worker who alleged that a contract of service existed between him and the putative employer. The appellant, who was unemployed, entered into a trial arrangement expected to last only a matter of hours, under which he was to paint the outside of the respondent’s house. If he proved capable of doing the work, an arrangement was to be worked out later between them. According to the respondent, the house did not really need painting at the time, but the respondent was prepared to have the work done in order to help the appellant, who had had difficulties with alcohol and other physical afflictions.
[46](1980) 30 ALR 407
109 During the period, materials were supplied by the respondent and the appellant was to receive initially payment at the rate of $2 an hour. Shortly after the appellant had begun work on the trial basis, he fell off a ladder and suffered personal injury.
110 A majority of the Court (Gibbs, Mason, Aickin and Wilson JJ; Murphy J dissenting) held that the appeal should be dismissed on the basis, inter alia, that the appellant had not entered into a contract of service with the respondent. In particular, the majority were of the opinion that the trial arrangement lacked the mutuality of obligation that was essential to the formation of such a contract which is necessarily of its nature bilateral. The majority noted that the resolution of the issue depended on the inferences to be drawn from the circumstances attending the relationship between the appellant and respondent at the time of the accident.
111 In particular, the majority stated:
“Nor are we persuaded that the arrangement gave rise to a contract of service. It seems to us that the arrangement lacked the element of mutuality of obligation that is essential to the formation of such a contract. A contract of service is of its nature a bilateral contract. It may be conceded that merely to say that the parties had agreed upon a trial does not necessarily rule out its formation. The answer in that respect will depend upon the detail of the arrangement. In particular, the answer will be affected, among other things, by the discovery in the arrangement of the assumption by the ‘worker’ of an obligation to perform some work, it being the purpose of the trial to determine whether the work is performed in a satisfactory manner. But in the present case we cannot discover an obligation on the appellant to perform any work at all.”
112 It is to be noted that the majority of the Court comment that a “trial” of work does not necessarily rule out the formation of a contract of service – it depends on the details of the arrangement and whether there is an obligation on the putative worker to perform some work.
113 Such an approach was later exemplified in Teen Ranch Pty Ltd v Brown[47] wherein Handley JA affirmed that proof of intention was essential in worker’s compensation cases. He referred to Cameron v Hogan[48] to emphasise that unless there was some clear positive indication that the parties had contemplated the creation of legal relations inter se, there was no enforceable contract.
[47](1995) 11 NSWCCR 197
[48](1934) 51 CLR 358
114 I also refer to the New South Wales Court of Appeal decision of Cudgegong Soaring Pty Ltd v Harris[49] wherein the issue was whether there was a legally enforceable contract of service between an appellant flight club and the respondent, who was a founding member of the club which was incorporated on 9 August 1983. Later, when the club began operating from Gulgong, the respondent became its chief flying instructor and carried out voluntary work in that capacity.
[49](1996) 13 NSWCCR 92
115 However, in 1989, after the engineering business of the respondent failed, he moved and lived at the appellant’s airfield and accepted the position as resident caretaker and was permitted to build a permanent annexe in which to live. In 1993, the respondent was injured when testing a glider at the appellant’s airfield.
116 The main issue argued: was there a legally enforceable contract of service and, in particular, had the parties intended to enter into a legal relationship? Between the parties, no agreement of any description existed.
117 The Court of Appeal held that a contract of service did exist, looking at the totality of the evidence. Sheller JA stated:
“The existence of the necessary intention to create legal relations must be determined objectively. Traditionally courts have presumed that family, social and domestic agreements are not intended to be binding (Balfour v Balfour [1919] 2 KB 571 at 578-579) whereas commercial arrangements are … I do not think these considerations assist in the present case. If indeed the respondent agreed with the appellant to live on the site as the caretaker in return for being allowed to construct an annexe and live in it rent free, I can see no justification for presuming that, because the individuals concerned were friends and all members of the club, it was not intended to make a binding arrangement. Whatever the informality of the discussions, the evidence was that the respondent moved into the annexe and performed the duties of a caretaker and …[Chief Flying Instructor] and the appellant allowed him to live in the annexe rent free.”[50]
[50]Cudgegong (op cit) at page 6 of the judgment (paragraph [10])
118 Later, Sheller JA also referred Teen Ranch Pty Ltd v Brown,[51] noting that there must be an intention by the parties to enter into a legal relationship. He stated:
“… [however] … In this case the respondent, once the arrangement was made, no longer attended at the airfield voluntarily. He enjoyed rent free accommodation in return for his service as the permanent caretaker.
The respondent's evidence, which his Honour accepted, was that he was asked whether he would take a position on the airfield as caretaker and … [Chief Flying Instructor]. If he had had to pay rent he would not have taken the position.”
[51]op. cit.
119 I also refer to the decision of Ormwave Pty Limited & Anor v Smith.[52] In that matter, the respondent (Smith) had commenced employment with Captain Cook Cruises on 7 March 1987 and was seriously injured when assaulted in March 1991 when on the way home from work and was off work until December 1991. In early January 1992, Captain Cook Cruises refitted and renamed its vessel for the purpose of it being chartered to the appellants (Ormwave) who were to operate it out of Cairns. The new operation was conducted by Captain Cook Cruises pursuant to a management agreement between it and the appellants.
[52][2007] NSWCA 210
120 Smith crewed the vessel to Cairns. The management agreement provided that Captain Cook Cruises would engage employees as agent for the appellants for the new operation. There was evidence that Captain Haworth, the principal of Captain Cook Cruises, had told Mr Smith that if he sailed with the vessel up to Cairns, he would be employed in Cairns on the renamed vessel.
121 In September 2004, Smith lodged a Claim for Compensation under the New South Wales provision against both Captain Cook Cruises and the appellants for various injuries he sustained due to the nature and conditions of his work on the vessel.
122 Beazley JA, with whom Santow and Ipp JJA agreed, stated:
“The appellants then submitted that there was no identifiable offer of employment in the discussions between the parties that constituted an offer of employment. It is not necessary, in determining whether a contract has been formed, to identify either a precise offer or a precise acceptance, nor a precise time at which an offer or acceptance could be identified.”[53]
[53]See paragraph [68] of the judgment
123 The Court referred to, with apparent approval of various comments of Ormiston J in Vroon BV v Foster’s Brewing Group Ltd,[54] wherein, a page 81, he stated:
“…I am prepared to accept … that agreement and thus a contract can be extracted from circumstances where no acceptance of an offer can be established or inferred and where the most that can be said is that a manifestation of mutual assent must be implied from the circumstances. In the language of para 22(2) of the Second Re-statement on Contracts: ‘A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined’.”
[54][1994] 2 VR 32
Analysis of the Evidence
124 It is for the plaintiff to establish, as a matter of probability, that she had entered into a contract of service with the defendant and that she was in the course of such service when she suffered her fall on 14 March 2008.
125 The defendant submits that no such contract of service existed and in particular, there was no intention by the parties to enter a legal relationship and thus form a contract of service, and furthermore, there was lacking the element of mutuality, as described by the High Court in Deitrich v Dare.[55]
[55]op. cit.
126 The defendant asserts that no contract of service had been entered into by the parties, but rather, the plaintiff was provided an opportunity to trial and sample the work and working conditions, during which time the defendant had an opportunity to consider her suitability for such work.
127 Before making any findings of fact, it is apposite to say something of the credibility of the witnesses. After a consideration of all the evidence, I found the plaintiff to be essentially a witness of credit, making some allowance for her understanding of English. Counsel for the defendant submitted that the plaintiff was not a reliable witness and was vague, unresponsive and not prepared to make truthful admissions that may be against her interests. In particular, he referred to the evidence surrounding the questioning of her in relation to her previous back condition.
128 I do not accept such submission, and although accepting that the plaintiff became annoyed when questioned about this aspect, her annoyance was based on such back pain being related in part to childbirth, and that she had never made a claim for compensation in respect of that back condition. Furthermore, she admitted that she undergone an x‑ray and CT scan of her low back prior to her commencement of activity with the defendant.
129 Whereas I found the plaintiff to have a consistent recall of events, I found the witness, Julijana Krisa, somewhat unreliable due, I consider, largely to the effluxion of time. Examples of her unreliability were her attempts to ascertain the starting time of the shift on the day the plaintiff attended and her initial denial, and later partial admission, that she may well have asked the plaintiff about working overtime the following Saturday morning. Sometimes, I gained the impression that she consciously or unconsciously was attempting to maintain the line of her employer.
130 I did not find Mr Danial Coelho a compelling witness and ultimately gained the impression that if the fall had not occurred on 14 March 2008, there would have been no issue that the plaintiff was employed on that day.
131 I make the following findings of fact:
(a)The plaintiff came to attend at the premises of the defendant on 14 March 2008 after she was advised through a network of friends that a job was available at the premises of the defendant. Both Julijana Krisa and Mr Coelho accepted that one of the ways workers were obtained for the defendant was through contacts already working for the defendant.
(b)Again, through such network of friends, she was advised to attend fifteen minutes before the commencement of the shift at 6.00 am on that day. I do find that the shift commenced at 6.00 am on that day and reject any suggestion to the contrary.
(c)Consistent with the evidence of Mr Coelho, the office part of the premises of the defendant did not open until 9.00 am and, when the plaintiff arrived at 6.00 am, she was expected by the supervisor, Julijana Krisa, who was employed by the defendant as a supervisor. She gave clear evidence that she expected a worker to arrive before the commencement of the shift and had been advised of this situation by one of her then managers, Greg Carey.
(d)The lights went out at the premises of the defendant at 10.30 am consistent with the evidence of the plaintiff. In this respect, I note that Julijana Krisa had no recollection as to the time that the lights went out and the evidence of Mr Coelho, at least initially, was that the lights went out at 9.00 to 9.30 am on that morning. Such assertion is inconsistent with his signed statement made on 5 May 2008, some seven or eight weeks after the occurrence of the incident.
(e)The plaintiff attended the premises with a clear intention to commence work and had no intention to “observe” the work for any period, much less for a period of four-and-a-half hours from 6.00 am to 10.30 am when the lights went out. She had brought food with her on that day for her lunch and breaks and, as she commented, why would she go at 6.00 am to observe rather than start work?
(f)The plaintiff, after being provided a hairnet and being required to remove any jewellery, was taken to the factory, where she commenced work de-panning cakes continually for about three hours, after which she was transferred to the icing area because she was needed there. I consider that the plaintiff’s recall of those events would be more reliable than that of Julijana Krisa who, as she stated, could not remember all the events which occurred some number of years ago.
(g)Throughout such period of time that she performed the work in the de-panning and icing area, the plaintiff was performing such work under the control and supervision of her supervisor and performing the same type of work as other workers in that division.[56]
[56]See Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
(h)The plaintiff volunteered to get her husband to bring her work shoes to the premises of the defendant but was advised by Julijana Krisa not to “worry about it today” but rather go straight to work.
(i)The commencement of the activity by the plaintiff on that day was in circumstances where the defendant was intending to employ at least one or two people in that area to assist on the lines.
(j)During the morning, the plaintiff made no suggestion whatsoever that she wished to cease work, was not enjoying the work or did not wish to perform the work. Furthermore, I find there was no discussion between the plaintiff and any person associated with the defendant that any worked performed by the plaintiff on that morning was a “trial”. Counsel for the defendant makes reference in his submissions to the following evidence:
Q: “Say you were starting work in the morning at 6 a.m. and say the lights hadn’t gone out, and you had morning tea at whatever time. Do you think you would’ve continued on at that job? Could you do it?‑‑‑
A:I was thinking in my mind what place I am, you know – no break, no – no break.”[57]
I consider that that piece of evidence has to be construed in the context of the questions immediately before and after that evidence. I gained the clear impression that the plaintiff was there to work in a factory notwithstanding she was not clear as to what her precise duties would be.
(k)On any view of the evidence, the plaintiff either worked from 7.00 am (as suggested at one stage by Julijana Krisa) to 10.30 am, a period of three-and-a-half hours; or alternatively, as I so find, from 6.00 am to 10.30 am, a period of four-and-a-half hours.
(l)During her period of work, no one from management approached the plaintiff during that period of time and at no time was any documentation signed or any discussion held about the terms of employment, although it was usual for a manager to come down from the office at about 9.00 am on past occasions.
(m)The plaintiff accepted that she would be paid like any of the other women, and that she would be performing full-time work, although there had been no discussion of these precise matters.
(n)When the plaintiff attended the premises of the defendant with her daughter after ceasing work, Mr Coelho was more concerned, as asserted by the plaintiff, that she was walking on dark stairs without appropriate shoes. I tend to the view that the thrust of the conversation was in relation to this matter, rather than anything to do with not being employed.
[57]T 73, L 8-13
132 I do not accept the evidence of Julijana Krisa that during the period of time in the canteen following the blackout (which commenced at 10.30 am), that the plaintiff said that she “will stay because I want to see a little bit more”. I consider such a conversation to be inherently unlikely given the time that the plaintiff had been working with the defendant.
Conclusion
133 After a consideration of all the evidence, I rule that the plaintiff was a “worker” within the meaning of the Act employed by the defendant at the time that she fell on the stairs on 14 March 2008. It can be inferred from the circumstances attending the relationship between the plaintiff and the defendant at the time of the accident, that a contract of service existed between the parties. To adopt the words of Ormiston J in Vroon BV v Foster’s Brewing Group Ltd,[58] I am satisfied, as a matter of probability, that there was a manifestation of mutual assent between the parties.
[58]op. cit.
134 I consider that the period of time that the plaintiff “worked” goes well beyond any reasonable time that one may consider appropriate for a “trial”. Rather, the plaintiff was under the actual control of a supervisor of the defendant performing meaningful work for, on my findings, four-and-a-half hours prior to going upstairs after the blackout. For reasons which are unclear, the defendant did not utilise its normal system of sending a manager down at a round 9.00 am to attend to the formalities of her being employed.
135 I consider that when all the circumstances surrounding such relationship are viewed objectively, there was the necessary intention to create legal relations; on the one part for the plaintiff to offer her services to perform work on the production line, and on the other part, the need of the defendant to have a worker to perform such work for which it would have been willing to pay award wages consideration.
136 I should add, it is hard to imagine that the plaintiff would not have been entitled to wages for the work she performed for four-and-a-half hours on that morning. Given all the circumstances, I do not consider it in any way conclusive against the plaintiff that no formal interview had taken place between management and her, or indeed details of address, tax file number et cetera had been given by the plaintiff. It was expected that at some time during the day that would have occurred.
137 I seek the assistance from the parties as to what orders they seek and the further disposition of this proceeding.
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Annexure A
1 The plaintiff tendered the following material:
Exhibit 1A – an accident report for identification purposes only
Exhibit 2 – Worker’s Compensation Form dated 28 March 2008
Exhibit 3– Letter to the plaintiff from Gallagher Bassett (agent of the defendant) dated 29 April 2008
Exhibit 4– Notes of Dr Cheah
Exhibit 5– Medical notes of Dr Nadesan.
2 The defendant tendered the following material:
Exhibit A – Induction Manual.
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