King v The Heat Group Pty Ltd - [2018] ACTIC 2

INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	King v The Heat Group Pty Ltd
Citation:	[2018] ACTIC 2
Hearing Date:	2 July 2018
DecisionDate:	12 July 2018
Before:	Magistrate Theakston
Decision:	The Australian Capital Territory is the Territory or State of Connection for the applicant.
Catchwords:	WORKERS COMPENSATION – Territory or State of connection – meaning of ‘usually based’ – whether or not Applicant was usually based from home office
Legislation Cited:	Workers Compensation Act 1951 (ACT) s 36B
Cases Cited:	Avon Products Pty Ltd v Falls [2018] ACTCA 21 Carrodus v Total State Food Brokers Pty Ltd (Unreported, ACT Magistrates Court, Walker CM, 2 September 2016) Ferguson v WorkCover Queensland [2013] QSC 78 Fisher v Tony Innaimo Transport Pty Ltd [2015] ACTSC 1 Rahimi v MDS Tiling Pty Ltd & Ors [2018] ACTIC 1
Parties:	Sharon Leanne King (Appellant) The Heat Group Pty Ltd (Respondent)
Representation:	Counsel Mr A Anforth (Applicant) Mr S Whybrow (Respondent)
Solicitors Elringtons Lawyers (Appellant) King & Wood Mallesons (Respondent)
File Number:	WC 334 of 2017

MAGISTRATE THEAKSTON:

Background

Distributors of goods often employ staff to manage the supply, display and promotion of their products within merchants’ stores. Ms King was employed by The Heat Group Pty Ltd for that purpose. In late 2015, she developed an injury to her right hand and wrist as a result of her work. Ms King has made an application for arbitration under the Workers Compensation Act 1951 (ACT).

The single issue to be resolved is which jurisdiction is connected to Ms King’s employment, and more precisely where, if anywhere, was Ms King usually based when employed by The Heat Group.

Facts not in dispute

The evidence in this matter was consistent and not challenged. I summarise the same below and make findings accordingly:

(a)At all material times, Ms King’s home was within the Australian Capital Territory. Ms King moved between homes, but remained living in the ACT.
(b)In 2012, Ms King commenced working for The Heat Group as a merchandiser. She worked four days a week on a casual basis. That role involved attending various stores, in which The Heat Group’s cosmetic products were offered for sale. At the stores she would assemble and maintain stands of merchandise, including the prominent promotional paraphernalia. That was done in accordance with detailed directions from her manager.
(c)The stores included Priceline Pharmacies, Kmart, Target, Big W, Myer, David Jones, and Coles and Woolworths Supermarkets. The vast majority of these stores were located in the ACT, but some were located in NSW at Queanbeyan, Goulburn and Bega.
(d)Every four to six weeks, The Heat Group would send to Ms King’s home, directions about changes to the stands and new promotions. Those directions would be in a hardcopy form of ‘planograms’ on A3 paper. For a brief period those directions were sent by email.
(e)The Heat Group also sent to Ms King’s home a range of other material that related to her role. That material included product teasers, stripping for…

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: [2018] ACTIC 2
Decision Date: 12 July 2018

CaseChat Overview and Summary

In the Industrial Court of the Australian Capital Territory, Sharon Leanne King applied for arbitration under the Workers Compensation Act 1951 (ACT) following an injury she sustained during her employment with The Heat Group Pty Ltd. The central issue before the court was to determine the jurisdiction connected to Ms King's employment, specifically where she was usually based for the purposes of her employment. The court considered the relevant considerations outlined in s 36B(7) of the Act, including the place from which the worker routinely receives day-to-day instructions, the place where the worker attends to collect material for the purposes of their employment, and the place where the worker reports for administrative, human resource, and other issues related to their employment with the employer.

The court found that Ms King's home served as her base for the purposes of her employment, as it was the location from which she routinely received instructions, collected materials, and carried out various employment activities. While Ms King spent a significant amount of time away from her home, the court held that her home was more than a convenient place for her to carry out part of her duties; it was a necessary staging point for her role. The court rejected the respondent's submission that Ms King had no particular office she attended on a day-to-day basis and that she worked across two jurisdictions. The court concluded that the Australian Capital Territory was the Territory or State of Connection for the applicant.

In conclusion, the court made the following declaration: "The Australian Capital Territory is the Territory or State of Connection for the applicant." This decision sets a precedent for determining the jurisdiction connected to an employee's role when they work from home or have multiple locations where they perform their duties.

Orders