N and F Logistics Pty Ltd v Waitoa
[2021] NSWPICPD 14
•3 June 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | N & F Logistics Pty Ltd v Waitoa [2021] NSWPICPD 14 |
| APPELLANT: | N & F Logistics Pty Ltd |
| FIRST RESPONDENT: | Teleah Waitoa |
| SECOND RESPONDENT: | Laundry Logistics Management Pty Ltd |
| THIRD RESPONDENT: | Workers Compensation Nominal Insurer |
| FOURTH RESPONDENT: | Monica Waitoa |
| APPELLANT’S INSURER: | Uninsured |
| SECOND RESPONDENT’S INSURER: | Employers Mutual NSW Ltd |
| FILE NUMBER: | A1-4246/19 |
| PRINCIPAL MEMBER: | Ms J Bamber |
| DATE OF MEMBER’S DECISION: | 23 April 2020 |
| DATE OF APPEAL DECISION: | 3 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – Application for an extension of time; s 352(4) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act); r 16.2(5) of the Workers Compensation Commission Rules 2011; admission of late documents; application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 – consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 applied – principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied; burden of proof – Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 discussed – a decision should be given on the basis of issues that have been litigated in the course of the trial – Chanaa v Zarour [2011] NSWCA 199 applied; the obligation to notify a matter as disputed – ss 289 and 289A of the 1998 Act – Galstyan & Markaryan t/as Rite Price Hair Care v WorkCover Authority of NSW [2006] NSWWCCPD 130, Melides v Meat Carter Pty Ltd [2019] NSWWCCPD 48, Raniere Nominees Pty Ltd v Daley [2005] NSWCA 121; 5 DDCR 22; 66 NSWLR 594 distinguished |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J Hallion, counsel | |
| Kammoun Sukari lawyers | |
| First Respondent: | |
| Mr R Goodridge, counsel | |
| Schofield King Lawyers | |
| Second Respondent: | |
| Mr P Perry, counsel | |
| Lee Legal Group | |
| Third Respondent: | |
| Ms K Faapito, solicitor | |
| Hall & Wilcox | |
| Fourth Respondent: | |
| Mr R de Meyrick, counsel | |
| Caldwell Martin Cox | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused. |
INTRODUCTION AND BACKGROUND
This matter involves a claim for death benefits brought by Ms Teleah Waitoa (the first respondent) and Miss Monica Waitoa (the fourth respondent) in respect of the death of Mr Jeremy Waitoa. Mr Waitoa worked as a truck driver and drowned in a fatal accident when his truck hit a tree and rolled into a dam on 15 January 2019. The first respondent was married to Mr Waitoa and the fourth respondent was Mr Waitoa’s daughter from an earlier relationship.
The first respondent lodged a fatality claim form with the second respondent, Laundry Logistics Management Pty Ltd (LLM) on 1 February 2019. LLM disputed the claim in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). LLM disputed that it employed Mr Waitoa. LLM advised that, following investigations, it believed that Mr Waitoa was employed by N & F Logistics Pty Ltd (the appellant), which company was not insured in respect of its workers compensation liability. The appellant disputed that it employed Mr Waitoa, either at all, or on the date of the accident.
The first respondent commenced proceedings in the then Workers Compensation Commission against the Workers Compensation Nominal Insurer (the Nominal Insurer) as the appellant was uninsured. LLM was also nominated as a respondent, and the appellant was subsequently joined to the proceedings. It was alleged that LLM was either Mr Waitoa’s employer or a principal liable to pay compensation within the meaning of s 20 of the Workers Compensation Act 1987 (the 1987 Act). The fourth respondent was joined to the proceedings because she was dependent upon Mr Waitoa and entitled to a portion of the compensation payable.
The Senior Arbitrator (as she then was) determined that Mr Waitoa was employed by the appellant, who was uninsured, and ordered that the Workers Compensation Nominal Insurer pay the lump sum death benefit pursuant to s 25(1)(a) of the 1987 Act, which was to be apportioned between the first respondent and the fourth respondent. The Senior Arbitrator also ordered the payment of weekly compensation for the benefit of the fourth respondent, who was a dependent child within s 25(1)(b) of the 1987 Act and ordered that the appellant to reimburse the Nominal Insurer for the compensation paid.
The appellant appeals the Senior Arbitrator’s finding that the appellant was Mr Waitoa’s employer and was required to reimburse the Nominal Insurer for the compensation paid to the first and fourth respondents. No appeal was lodged in relation to the Senior Arbitrator’s findings in relation to apportionment or her finding that LLM was not a principal within the meaning of s 20 of the 1987 Act.
TRANSITIONAL MATTERS
After this case had been heard and determined and before the appeal in this matter was allocated to me, the New South Wales Workers Compensation Commission was abolished.[1] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020 (the 2020 Act), from 1 March 2021.[2] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the Arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, and the decision-maker involved in these proceedings became a principal member of the Personal Injury Commission. However, as at the time of the various orders made in the proceedings, the decision maker bore the title of Senior Arbitrator, in this decision she will be referred to by her former title of “Senior Arbitrator”.
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020.
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant seeks an oral hearing of the appeal. It submits that the Commission would be assisted by oral submissions in order to “clarify” the written submissions as the issues in the proceedings are “complex and voluminous.”[3] The first and fourth respondents also seek an oral hearing, but do not make submissions in support of their request. The second and third respondents are content for the appeal to be determined ‘on the papers’.
[3] Application – Appeal Against Decision of Arbitrator (appeal), [2.3].
A decision as to whether a matter ought to be determined on the papers of course requires a consideration of all of the evidence and submissions, and whether the parties have been afforded procedural fairness in order to address any issue arising from such evidence.[4]
[4] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43, [115]–[120] (per Tobias JA).
A review of the procedural history of this matter discloses that the appeal was non-compliant in respect of certain procedural issues, and the appellant was requested to comply. Both the first respondent and the fourth respondent were also requested to provide amended submissions in order to comply with Practice Direction No 6, which was in force at the time. The appellant’s submissions and the fourth respondent’s appeal submissions remain non-compliant. The appellant was also given the opportunity to respond to the submissions made by the respondents. The appellant filed additional evidence on 11 February 2021 seeking to address the reason for the delay in bringing the appeal. A delegate of the then Registrar provided the parties with the opportunity to address the additional evidence. The first three respondents complied. The fourth respondent provided submissions out of time, made no application for an extension of time to file those submissions, and those submissions were rejected.
All parties have had the opportunity to address in written submissions before me as to whether the Senior Arbitrator has, or has not, fallen into error. Parties to an appeal who have been given ample opportunity to make submissions in writing cannot rely on having the opportunity for an oral hearing in circumstances where their written submissions are non-compliant with the Commission’s practice directions or are inadequate because of their own omissions.
I do not accept that the issues raised in this appeal are voluminous or complex. The nature of each issue raised is not out of the ordinary and the issues pertain to matters that are frequently raised and dealt with in the Commission.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties as to whether the appeal can proceed to be determined on the basis of these documents, or whether an oral hearing is required. I am of the view that consideration of the merits of this appeal can be undertaken on the evidence before me and the submissions made on appeal. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to quantum in s 352(3) of the 1998 Act has been met.
Section 352(4) of the 1998 Act provides that an appeal can only be made within 28 days after the decision appealed against has been made. The Senior Arbitrator’s Certificate of Determination was issued on 23 April 2020. Time commenced to run from the following day.[5] The time expired for making the appeal on 21 May 2020. The appeal was lodged on 13 November 2020, well outside of the time frame prescribed by s 352(4) of the 1998 Act.
[5] Bielecki v Rianthelle Pty Ltd t/as Belfora [2008] NSWWCCPD 53, [45].
The appellant makes an application for leave to lodge the appeal outside of the time frame. The respondents filed submissions in relation to the extension of time. The appellant filed submissions in response on 11 February 2021 and attached new evidence, which it sought to adduce in order to explain the delay in lodging the appeal.
The extension of time
At the time of lodgment of the appeal, rule 16.2(5) of the former Workers Compensation Commission Rules 2011 (the 2011 Rules) provided a presidential member with the discretionary power to extend the time for making an appeal.
Rule 16.2(5) of the 2011 Rules provides as follows:
“(5) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The rule applies in this case because the appeal was filed prior to the abolition of the 2011 Rules.
The appellant’s submissions
The appellant submits that it was not aware that the Certificate of Determination had been issued until 10 June 2020 (when it made enquiries to the Commission) because it was emailed to a former solicitor employed by the legal firm representing the appellant and access to that email address had been removed. The appellant explains that instructions were then provided to appeal the decision, and counsel was briefed to advise and draft submissions. The appellant asserts that the formulation of the grounds of appeal involved an “unanticipated protected [sic] process,”[6] and the preparation of the appeal involved collating documentation and formulating lengthy submissions.
[6] Appellant’s submissions in support of the application to extend time, [1.5].
The appellant advises that it seeks to have set aside the order pursuant to s 142B(2) of the 1987 Act made against it to reimburse the Nominal Insurer for the compensation paid by it. The appellant indicates that the Nominal Insurer has asserted a right to reimbursement. The appellant says that it has filed an application in the Commission disputing the Nominal Insurer’s right to recover, which remains pending.
The appellant refers to r 16.2(5) of the 2011 Rules and its substantive submissions and submits that exceptional circumstances exist and, if the Senior Arbitrator’s orders are allowed to stand, they would cause a substantial injustice by the serious financial and personal consequences that follow the Senior Arbitrator’s determinations. The appellant asserts that it was prejudiced because of the delay in receiving the Certificate of Determination, which meant that the time to appeal had already expired, and so it was never in a position to bring the appeal within the time required. The appellant says that it requested a transcript of the arbitration proceedings, which was received on 7 July 2020, following which counsel was briefed.
The appellant further refers in detail to the substantive matters raised in the appeal and submits that the appeal has merit. The appellant points to the fact that the Senior Arbitrator reserved her decision for three months, which is indicative of the complexity of the matter and such complexity was a factor in the further delay following receipt of the Certificate of Determination.
The appellant concludes that the case it presented to the Senior Arbitrator was supported by the Nominal Insurer. The appellant adds that the first and fourth respondents would not be prejudiced if the orders were set aside because liability for the payments already made to them and the future payments to be made would rest with LLM, so that they would not be adversely affected.
The respondents’ submissions
The first respondent opposes the granting of an extension of time to lodge the appeal. The first respondent refers to r 8.3 and 8.4 of the 2011 Rules, which provide for the address for service of documents and provide that a document is served by forwarding it to the email address that has been provided. The first respondent says that the burden rests with the party to be served to maintain an accurate address for service.
The first respondent points out that the appellant has not provided any evidence to support its assertions as to the reasons for the delay, such as why the firm could not access the email account to which the decision was sent. The first respondent asserts that there was an ongoing relationship between the director of LLM and the director of the appellant and there is no evidence as to whether or not the appellant became aware of the Certificate of Determination through that relationship. The respondent submits that the significant delay between becoming aware of the Certificate of Determination, as well as the failure to provide any evidence of the assertions made, should result in the application being rejected.
The first respondent submits that the circumstances described by the appellant do not constitute “exceptional circumstances” as that phrase has been interpreted in the relevant authorities. The first respondent contends that, applying those authorities, there is nothing out of the ordinary course or unusual, special or uncommon in any of the facts relied upon by the appellant.
The first respondent further refers to authorities relevant to what constitutes “demonstrable or substantial injustice” within r 16.2(5). The first respondent submits that, in the appeal, the appellant is attempting to argue matters that were not in issue before the Senior Arbitrator, namely “injury” and “death”. Further, the first respondent submits that the evidence does not support the appellant’s allegations of error and a factor that must be taken into account is that it is always necessary to take into account the prospects of success of the appeal when considering an application to extend time to appeal. The first respondent points to the evidence that was before the Senior Arbitrator and submits that, on the basis of that evidence, the appeal has no prospects of success, so leave should not be granted.
LLM opposes the granting of leave and also submits that the appellant has not adduced any evidence, such as a statutory declaration, to support its assertions that purport to explain the delay, so that no exceptional circumstances are established and no injustice to the appellant would arise if the time was not extended. LLM submits that Australian Traineeship System v Mabbett[7] is authority to say that if a legal representative does not inform the Commission that they are acting for a party, then that does not constitute exceptional circumstances.
[7] [2011] NSWWCCPD 1.
LLM contends that there is no adequate explanation for the delay, in circumstances where the appeal was not filed within 28 days of when the appellant did become aware of the Certificate of Determination, which 28 day period would have expired on 8 July 2020. Further, there is no explanation of what was meant by an “unanticipated” protracted process, and no explanation as to what the “complexity” was, which might have taken the circumstances out of those that are ordinarily or routinely encountered.
LLM submits that if leave is refused, then the decision will stand. LLM says that this will not lead to an injustice, because every determination of the Commission results in an outcome which is adverse to the interests of one or other of the parties. LLM concludes that, on the basis of its substantive submissions on the appeal, the appeal has no merit, and the application to extend time to appeal should be refused.
The third respondent acknowledges that the appeal was lodged out of time, but submits to any orders that may be made. The fourth respondent says that it does not concede that leave should be granted, but submits that it is a matter for the Commission as to whether the appellant has made out the circumstances in which leave ought to be granted.
Additional evidence
The appellant seeks to lodge documents in support of the application to extend time. The first document is a statement by Mr Ibrahim Kammoun, solicitor, dated 10 February 2021. Mr Kammoun advised that he was previously employed by Herald Legal and had carriage of this matter on behalf of the (now) appellant. He stated that he ceased that employment in December 2020, and from that date, did not have access to his email address or the general email account at Herald Legal.
Mr Kammoun said that he was then employed by Kammoun Sukari Lawyers (in which he was a partner) from 7 January 2021. He said that from that time, he resumed carriage of the appellant’s matter. It appears from the email correspondence attached to the statement that the date December 2020 should read December 2019, and the date January 2021 should read January 2020.
Mr Kammoun also advised that a Mr Mark An had worked at Kammoun Sukari Lawyers until January 2020.
The second bundle of documents were emails passing to, and from, the Commission and Mr Kammoun between 16 January 2020 and 24 June 2020, which were annexed to Mr Kammoun’s statement. The emails confirm that:
(a) there was some confusion as to who represented the appellant;
(b) Mr Kammoun had advised the Commission on 16 January 2020 that he acted for the appellant and that he practised at Kammoun Sukari Lawyers;
(c) the Certificate of Determination was issued on 23 April 2020 and was emailed on that day to Mr An at Kammoun Sukari Lawyers, and to Mr Kammoun’s old email addresses at Herald Legal, and
(d) the email attaching the Certificate of Determination was not sent to Mr Kammoun’s individual email address at Kammoun Sukari Lawyers.
The respondents were given the opportunity to make submissions in respect of the appellant’s application to admit this additional evidence.
The first respondent provided submissions on 16 February 2021. The first respondent asserts that there is still an absence of evidence to support the application for an extension of time, in that there was no evidence about office practices such as diary follow-ups and checking emails, or about whether the director of the appellant became aware of the Certificate of Determination through his association with the director of LLM. The first respondent submits that the lack of such evidence indicates that the application should be rejected. She points out that the decision was published in the Workers Compensation Independent Review Office’s case bulletin. She submits that even if the new evidence was accepted, it only explains the delay of two months and not the seven-month delay in filing the appeal. The first respondent says that, in addition, the appellant did not at any time comply with r 8.3(d) of the 2011 Rules, which requires a party’s legal representatives to notify the Commission and the other parties of any change of the address for service within two days of the change. The first respondent opposes the admission of the documents on the basis that they are of no probative value.
LLM opposes the admission of the late evidence and relies upon the first respondent’s submissions. The Nominal Insurer neither supports nor opposes the admission of the documents. The fourth respondent filed her submissions outside of the time fixed by the delegate of the then Registrar. The submissions were rejected by the Commission. The fourth respondent was invited to make an application to extend the time for filing those submissions, but failed to do so.
Consideration
The admission of additional evidence in an appeal is governed by s 352(6) of the 1998 Act. It provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
That is, the Commission can only grant leave in circumstances where:
(a) the evidence was not available to the party seeking to adduce the evidence or could not reasonably have been obtained before the proceedings at first instance, or
(b) the failure to grant leave would cause substantial injustice in the case.
The emails both pre-date and post-date the Senior Arbitrator’s determination. The evidence sought to be adduced clearly was not relevant to the issues for determination by the Senior Arbitrator and thus were not obtained for that purpose. In the circumstances, the first limb of s 352(6) of the 1998 Act does not apply, so it is necessary to assess whether a refusal to admit the documents would cause the appellant substantial injustice.[8]
[8] CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501.
The statement and the emails go to explain, to some extent, the delay in filing the appeal within the 28 days following the date upon which the Certificate of Determination was issued. The documents establish that the solicitor was not directly emailed the decision and it may very well be the case that the solicitor was in fact unaware that the decision had been issued. That is, however, not sufficient to show that the appellant itself was unaware during that period, and nor does the evidence explain the protracted delay after the appellant and his solicitor did become aware of the decision.
I have discussed the merits of the application for an extension of time and determined that there is nothing exceptional, unusual or special about the circumstances surrounding the extensive delay between the issue of the decision and the appeal being filed. The reasons for the delay are largely unexplained and not supported by evidence. In those circumstances, there is nothing compelling about the evidence that would result in a different conclusion. There is therefore no injustice to the appellant if those documents are not admitted and I decline to admit them.
The appellant asserts that there are exceptional circumstances for the delay in lodging the appeal.
Whether there are exceptional circumstances, and whether the party seeking an extension of time can show demonstrable or substantial injustice would occur if leave was not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[9] Exceptional circumstances are circumstances that are out of the ordinary course or unusual, special, or uncommon.[10] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together, are seen as exceptional.[11]
[9] Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce) per Allsop P (Beazley and Giles JJA agreeing), [8]–[10].
[10] Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 (Yacoub) per Campbell JA, [66].
[11] Ho v Professional Services Review Committee No. 295 [2007] FCA 388, [26].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd,[12] Basten JA summarised the factors to take into account in a consideration as to whether to extend time. Those factors are:
(a) the extent and reasons for the delay;
(b) the prejudice to the appellant if leave was not granted;
(c) the prejudice to the respondent by the delay, and
(d) the prospects of success of the appeal.
[12] [2014] NSWCA 34, [9].
Deputy President Roche applied those factors in Power v NSW Logistics Pty Ltd t/as Hi-Trans Express,[13] in which the Deputy President set out the considerations relevant to the Commission exercising its discretion to extend the time to appeal.
[13] [2015] NSWWCCPD 20 (Power).
The delay in this case was approximately six months, which is substantial. The reasons provided for the delay beyond July 2020, when the appellant was armed with the decision and the transcript of proceedings, and had briefed counsel, are largely unexplained, other than by broad generalised assertions unsupported by any evidence. There is no evidence from the appellant’s counsel, who appears regularly in this jurisdiction, as to why the formulation of the appeal grounds and the preparation of the submissions took over four months to finalise. None of the alleged factors relevant to that period, whether considered individually or together, constitute exceptional circumstances.
I am also required to consider whether a refusal to extend the time to lodge the appeal would cause the appellant a substantial injustice, which requires an assessment of the merits of the appeal. In order to make that assessment, it is necessary to review the evidence, the Senior Arbitrator’s reasons for the determination, and the grounds of appeal.
THE EVIDENCE
The first respondent’s evidence
The first respondent provided a statement dated 13 June 2019.[14] She said that she was in a relationship with Mr Waitoa when he commenced employment with the appellant on 28 May 2018. She said that in February 2019 or thereabouts, she was advised by “Neil”, the director of the appellant, that Mr Waitoa’s employment had been transferred to LLM in October 2018. She said that she had heard that LLM and the appellant also alleged that Mr Waitoa’s employment was transferred to LLM on 1 January 2019. The first respondent was of the belief that both of those propositions were incorrect. She believed that Mr Waitoa’s employer had always been the appellant and that he had never been employed by LLM.
[14] Application in respect of the Death of a Worker (ARDW), pp 36–38.
The first respondent attached a copy of a contract of employment between Mr Waitoa and the appellant, Mr Waitoa’s payslips and a screen shot of Mr Waitoa’s bank statements. The first respondent pointed out that:
(a) she had never received a payslip for the period after 7 January 2019, but the payslip for the period between 31 December 2018 and 6 January 2019 showed that the appellant was nominated as the employer;
(b) the bank statements recorded that Mr Waitoa’s wages deposited into the bank account between 24 December 2018 and 15 January 2019 were paid by the appellant;
(c) the screen shot showed messages passing between Mr Waitoa and “Neil” on 11 January 2019 and 14 January 2019 in relation to:
(i)replacement of a badly worn truck tyre;
(ii)conversations between the two men as to the dangerous state of the tyre, and
(iii)arrangements to have it replaced, which was ultimately organised to occur on 15 January 2019.
The first respondent queried, if Mr Waitoa was no longer employed by the appellant, why were Mr Waitoa and the appellant discussing the need to replace the tyre. The first respondent commented that if Mr Waitoa’s employment had changed from the appellant to LLM, this was something which Mr Waitoa would have told her about.
The first respondent indicated that she did not believe that the appellant was telling the truth. She said that the owners of the appellant and LLM were friends and had agreed to say that Mr Waitoa was employed by LLM because the appellant did not have workers compensation insurance.
The first respondent provided a further statement dated 16 August 2019 detailing matters relevant to her claim for dependency.[15] As the first respondent’s dependency on Mr Waitoa is not in issue on the appeal, it is not necessary to review that evidence.
[15] ARDW, pp 62–67.
The employment contract
The employment contract was annexed to the ARDW,[16] and to the first respondent’s statement. The contract was dated 1 June 2018. The contract nominated the appellant as the employer and was signed by “JW Waitoa”. The employee’s name was identified as “Jeremy Wharekaponga.”
[16] ARDW, pp 2–15.
The contract set out the obligations of each party to the contract, together with details of how much and when the employee would be paid. It made provision for superannuation and other benefits and contained clauses relevant to termination of the agreement, non-competition practices and confidentiality. In particular, the contract specified that any amendment or modification of the contract was only to be binding if it was evidenced in writing and signed by each party.
Further documentary evidence
The first respondent’s payslips were also in evidence, which were issued bearing the name of the appellant and were directed to “Jeremy Wharekaponga,” covering the period from 5 November to 6 January, with no reference to the year of payment.[17]
[17] ARDW, pp 16–21.
The mobile telephone screen shot referred to by the first respondent was annexed to her statement and also annexed to the ARDW.[18] That evidence is consistent with the first respondent’s observations about the matters recorded in that document.
[18] ARDW, p 26.
Mr Waitoa’s birth certificate,[19] marriage certificate[20] and the death certificate[21] recorded Mr Waitoa’s first names as “Jeremy Wharekaponga” and his surname as “Waitoa”.
[19] ARDW, p 1.
[20] ARDW, p 22.
[21] ARDW, p 25.
Evidence of Mr Tai Tan Vo
Mr Tai Vo, director of LLM, provided a statement to LLM’s investigator’s dated 20 May 2019.[22] Mr Vo stated that Mr Waitoa was employed by LLM and this had been the case since 1 July 2017. Mr Vo said that Mr Waitoa was employed as a driver and his manager was Mr Neal Qian.
[22] LLM’s Reply to Application to Resolve a Dispute (LLM’s reply), pp 8–9.
Mr Vo provided a further statement dated 13 December 2019.[23] Mr Vo referred to Mr Qian’s brief period of employment with LLM in June and July 2017. He said that a new opportunity arose in September 2017 for LLM to contract with About Linen Pty Ltd t/as South Pacific Laundry (SPL). He said that in about September 2017, he contacted Mr Qian and suggested that he set up a company, which would sub-contract to LLM and provide the same logistics support to LLM that Mr Qian had done when employed by LLM, for the purpose of servicing the contract with SPL. Mr Vo said that he told Mr Qian that LLM would pay a monthly commission, less LLM’s employee’s wages and other disbursements incurred by Mr Qian’s company. He said Mr Qian agreed to set up a company and was to start in October or November 2017.
[23] Application to Admit Late Documents (appellant’s AALD), pp 1–7.
Mr Vo advised that LLM also offered Mr Qian an appointment as a director of LLM in about July 2018, which Mr Qian accepted. Mr Vo said, however, that he could not recall allocating any work in the nature of director’s duties to Mr Qian, as the former director, Mr Michael Wang, continued to do that work.
Mr Vo reported that the new business opportunities that arose for LLM led to an expansion of the trucking fleet, which caused LLM to undergo cashflow problems and required LLM to reduce the commission paid to the appellant to $11,000 per month and, in part, deferred.
Mr Vo said that, in about mid-2018, Mr Waitoa was employed and that he approved for Mr Waitoa to perform work in Port Macquarie as an employee and that he would be paid at the same rate as other LLM employed drivers. Mr Vo indicated that, because of LLM’s cashflow problems, the appellant would pay Mr Waitoa. Mr Vo asserted that the appellant received no benefit from the arrangement and that it was purely to assist LLM. Mr Vo asserted that the arrangement was one of convenience and was not intended to change the real situation that Mr Waitoa was an employee of LLM, who was responsible for providing work to Mr Waitoa as well as paying Mr Waitoa’s salary, which LLM reimbursed to the appellant.
Mr Vo said that, in about August or September 2018, the driver who was employed by LLM to service the Foster line was suspected of irregular conduct and was to be replaced. Mr Vo said that Mr Waitoa filled that position at the suggestion of Mr Qian. Mr Vo reported that just prior to November 2018, LLM, because of cash flow issues, came to an arrangement to pay the appellant the commission quarterly rather than monthly and to defer repayment of past amounts owed until March 2019. Mr Vo indicated that Mr Qian was not happy with the arrangement, but reluctantly agreed.
Mr Vo stated that during November 2018, the appellant paid Mr Waitoa and two other drivers their wages and LLM was to reimburse the appellant, on top of the commission. Mr Vo reported that at times he would direct the appellant to pay other drivers because of LLM’s financial position.
Mr Vo explained that the arrangement between LLM and the appellant was different in relation to Mr Waitoa because the agreement for the appellant to pay Mr Waitoa was intended to be on a short term basis and because Mr Waitoa wanted to be paid as an employee. Mr Vo pointed out that Mr Waitoa was to be paid superannuation and other entitlements, so there was no benefit to the appellant to employ him or other drivers, and there was no incentive to do so, or for profit to be made by the appellant.
Mr Vo asserted that, when Mr Waitoa returned from leave in December 2019, the arrangement reverted to the former agreement but Mr Qian was unhappy about that, so Mr Vo agreed that LLM would pay Mr Waitoa directly and the appellant would continue to receive commission from the sub-contractors. Mr Vo said he was informed by Mr Qian that Mr Waitoa had consented to that arrangement and Mr Waitoa commenced with LLM on 7 January 2019.
Mr Vo stated that on 15 January 2019, he learned about Mr Waitoa’s death. He said that on the following day, he and Mr Qian visited the first respondent, at which time Mr Qian volunteered to attend to payment of Mr Waitoa’s wages that were due, and appeared to undertake a transaction on his mobile telephone. Mr Vo said that after they left the first respondent’s home, Mr Qian asked that the appellant be re-imbursed for the wages paid. Mr Vo indicated that on the following morning, he completed a wage payslip in Mr Waitoa’s name, which he gave to Mr Qian. Mr Vo said that because of its financial position, LLM had still not paid the appellant all of the commission to which it was entitled.
Mr Vo referred to an investigation report undertaken in the matter and denied that he ever said that Mr Waitoa was in the employ of LLM as at 1 January 2019. He asserted that Mr Waitoa’s employment commenced on 7 January 2019.
Evidence of Mr Fei (Neal) Qian
Mr Qian also provided a statement to LLM’s investigators.[24] Mr Qian stated that he had been a director of the appellant since September 2017. He said that Mr Waitoa was employed by LLM, which was a company to which the appellant sub-contracted. Mr Qian said that Mr Waitoa had previously performed work for the appellant as a delivery driver, but at the time of his death, Mr Waitoa was not employed by the appellant.
[24] LLM’s reply, pp 11–12.
Mr Qian provided a further statement on 22 October 2019.[25] Mr Qian advised that he came to Australia in December 2014 on a student visa and attended La Trobe University until March 2017, following which he graduated with a master’s degree in accounting. He said that while he was studying, he worked part time as a logistics manager in a warehouse. Mr Qian stated that Mr Vo contacted him in about May 2017, offering him a job as a fleet manager in Sydney with a newly incorporated company, LLM, which he accepted. Mr Qian advised that Mr Vo and a Mr Michael Wang were the directors of LLM and Mr Vo was the sole director of a company called Maverick Distributions Pty Ltd (Maverick), which owned 50% of the shares in LLM.
[25] Appellant’s Reply to Application to Resolve a Dispute (appellant’s reply), pp 1–18.
Mr Qian said that LLM had an agreement with SPL to pick up and deliver hotel laundry. He said he managed that operation, which included coordinating 6–7 truck drivers and he also drove a truck from time to time.
Mr Qian advised that in about June 2017, SPL required all contractors who provided services to them to be incorporated. Mr Qian said that in early August 2017, he left his employment with LLM because of visa issues. He reported that in early September 2017, Mr Vo offered him work in the Port Macquarie area, again in respect of a contract with SPL, for which he would be paid a commission monthly. The offer was that Mr Qian could use LLM’s trucks, but the drivers’ salaries and the running costs of the trucks would be deducted from the commission. Mr Qian said that Mr Vo advised him to form a company and run everything through the company. Mr Qian advised that he considered the arrangement to be that he would be a sub-contractor to LLM, performing an administrative role of organising rosters, and that he would not be responsible for payment of the drivers or truck maintenance. He said he set up a company known as N & F Logistics Pty Ltd (that is, the appellant), using an online website, with him as the sole director. He commenced services to LLM in about October or early November 2017, organising trucks and drivers provided by Maverick through LLM, although LLM began to purchase its own trucks to add to the fleet. Mr Qian said that the appellant would meet all the costs, such as wages, fuel and truck hire in the event of a breakdown, and the appellant would be reimbursed by LLM. He operated remotely, entirely from Melbourne. LLM paid the appellant a commission of $11,000 per month, which was lower than the amount agreed, but had been accepted by the appellant because LLM was having cash flow problems. Mr Qian advised that all training and instructions about how to perform the truck driving and loading duties were provided by LLM.
Mr Qian stated that initially, LLM would only use drivers on a sub-contract basis but then began to employ the drivers directly, which was of no concern to the appellant. Mr Qian listed some of the expenses paid for by the appellant, which included the costs of truck repairs and payment to sub-contracting drivers, and said that he would report those costs to LLM, along with wages paid to LLM drivers, truck rentals, registration and insurance.
Mr Qian reported several changes of arrangement between the appellant and LLM, which resulted in the appellant paying two drivers as sub-contractors, for which the appellant would be paid a percentage commission. Mr Qian said that he then entered into an arrangement, as requested by Mr Vo, to engage Mr Waitoa, whereby the appellant would pay directly to Mr Waitoa an hourly rate, either as an employee or subcontractor, and the appellant would be reimbursed by LLM. Mr Waitoa commenced in June 2018 on a full-time basis working 40 hours per week as an employee. The arrangement was an oral agreement. Mr Qian stated that the appellant would pay Mr Waitoa and the appellant would be reimbursed monthly by LLM although, at times, LLM could not meet the payment. Mr Qian asserted that the appellant did not received any monetary benefit from Mr Waitoa’s services.
Mr Qian advised that Mr Wang, the other director of LLM, became busy and unable to perform work for LLM, so, at the request of Mr Vo, Mr Qian became a director of LLM on 1 August 2018, for which appointment he was not paid a salary. Mr Qian reported that he was then approached by Mr Waitoa, who said that he was applying for a home loan and needed payslips to provide to the bank. Mr Qian advised that, prior to this conversation, there was nothing documented between the appellant and the drivers, so from August 2018 he commenced issuing Mr Waitoa payslips, some of which he backdated to the previous periods worked.
Mr Qian said that in late September 2018, Mr Waitoa was transferred to Foster to fill a position which had previously been undertaken by a direct employee of LLM, and for which LLM, had always been responsible. Mr Qian reported that, at that time, LLM owed the appellant a significant amount of its commission and so he had conversations with Mr Vo about paying Mr Waitoa and another driver. Mr Qian reported several conversations thereafter between Mr Vo and himself, wherein payment of the commission owed to the appellant and payment to drivers was discussed.
Mr Qian said that the first respondent then contacted him, and advised that, because they were applying for a home loan, she and Mr Waitoa needed a letter from the appellant confirming that Mr Waitoa was employed by the appellant. Mr Qian said that he asked the first respondent to draft the letter, which she did, and, on 2 December 2018, he sent a signed copy of the letter back to the first respondent. Mr Qian stated that the first respondent then asked him to sign a draft contract of employment, which he signed and dated 1 June 2018 and returned to the first respondent by email.
Mr Qian asserted that, because of the significant amounts owed to the appellant by LLM, he contacted Mr Vo on 4 January 2019, who indicated that he would commence paying Mr Waitoa directly from the following Monday (7 January 2019). Mr Qian said that he discussed this with Mr Waitoa and then confirmed the arrangement with Mr Vo. Mr Qian stated that Mr Waitoa commenced his employment with LLM on 7 January 2019 but Mr Waitoa continued to discuss with him matters pertaining to his roster, truck and pay, including by way of text messages about the truck’s damaged tyre.
Mr Qian noted that Mr Waitoa had been killed in an accident while driving his truck on 15 January 2019. He said that, on 16 January 2019, he attended the first respondent’s home with Mr Vo and advised the first respondent that Mr Waitoa was owed some wages so he would pay her that money to help her with her expenses. Mr Qian said that he did not mention the transfer of Mr Waitoa’s employment to LLM. Mr Qian said that, as he and Mr Vo left, he advised Mr Vo that he would require re-imbursement of the wages. He added that, on 17 January 2019, Mr Vo provided him with a payslip directed to Mr Waitoa dated 7 January 2019.
Mr Qian advised that LLM had still not re-imbursed him for the payment of the wages given to the first respondent or paid the commission owing to him from LLM. Mr Qian referred to the first respondent’s statement and asserted that he had a conversation with the first respondent in February 2019 about Mr Waitoa’s employment being transferred to LLM on 7 January 2019. Mr Qian denied that he told the first respondent that Mr Waitoa’s employment was transferred on 1 January 2019. Mr Qian denied further assertions made by the first respondent in her statement, including that he and Mr Vo were friends and because of that friendship, Mr Vo was asserting that he employed Mr Waitoa.
Mr Qian confirmed his denial that Mr Waitoa was an employee of the appellant.
Mr Qian also gave oral evidence by way of cross-examination in the arbitral proceedings.[26] Mr Qian was asked about the appellant’s financial records, including:
(a) the appellant’s failure to produce invoices directed to LLM, which the appellant said were not required by the notice to produce issued in the proceedings;
(b) the entry in the profit and loss documents claiming $30,000 motor vehicle depreciation, in the context of the appellant owning only two motor vehicles;
(c) a claim in the profit and loss statements for $30,000 in respect of truck rentals as well as truck repairs and maintenance, which Mr Qian admitted included costs related to trucks owned by the appellant, and
(d) payment to Mr Qian from the appellant as salary payments.
[26] Transcript of proceedings (T), Waitoa v Laundry Logistics Management Pty Limited [2020] NSWWCC 128, T 29.12–80.8.
Mr Qian said that a written agreement for LLM to pay the appellant commission was drafted at the beginning of the arrangement but was not signed, however Mr Qian agreed to the arrangement. Mr Qian acknowledged that there was no written evidence recorded prior to Mr Waitoa’s death that showed that Mr Waitoa was not employed by the appellant. He said that he had called and texted Mr Waitoa to discuss employment arrangements, but Mr Waitoa did not respond.
Mr Qian admitted that prior to 7 January 2019, the appellant paid Mr Waitoa’s wages and that the bank account deposits showed that the appellant made payment to Mr Waitoa on 9 [sic, 16] January 2019. Mr Qian disputed that those two payments were salary and said that the payment made on 16 January was made by the appellant on behalf of LLM because of the family circumstances. Mr Qian further admitted that the appellant paid superannuation contributions on behalf of Mr Waitoa after Mr Waitoa’s death and that the appellant did not always generate an invoice for the reimbursements. Mr Qian said that most of the reimbursements were confirmed in an email to Mr Vo.
In response to the fact that Mr Qian organised for the damaged tyre to be fixed, Mr Qian stated that he was the person who managed all the transport.
Mr Qian was shown a letter dated 2 January 2018 (which he admitted should have been dated 2019), that bore the appellant’s letterhead, Mr Qian’s name, and his title of director of the appellant.[27] The letter was directed to “Dear Sir/Madam” and recorded:
[27] The appellant’s reply, pp 121–122.
“My name is FEI QIAN. I am the director of N&F Logistics Ply Ltd
I am writing this letter to clarify changes in Jeremy Waitoas pay. At the commencement of Jeremy’s contract he was being paid weekly but was taxed on the fourth pay due to accounting schedule.
In September Jeremy spoke to me about changing this. I agreed to change the
payment schedule. From approximately September until November I did not tax
Jeremy as I was still negotiating the changes with my accountant.
Changes in his income most recently are as a result of Jeremy making up the tax
from the time between September until November. Once this tax is made up Jeremy
will return to receiving $776.60 weekly after tax.
I hope this clarifies any concerns. Should you require further clarification, please
contact me.
Thank you.
Regards,
Fei Qian
Director
N&F Logistics Ply Ltd”.
Mr Qian confirmed that he signed the letter but said that he “wasn’t too sure” that it was correct. Mr Qian denied that he had been in negotiations with his accountant about Mr Waitoa’s pay and asserted that he did not write the letter. Mr Qian admitted that he did not hold a workers compensation insurance policy for the financial year 2018–2019, despite the profit and loss statement showing wages totalling $69,440.
Mr Qian agreed that, at one stage, the appellant employed Mr Waitoa and there was a contract of employment between the appellant and Mr Waitoa, which had been prepared and taken from a website. Mr Qian also agreed that he took no steps in regard to terminating Mr Waitoa’s employment in accordance with the contract.
Further questions were put to Mr Qian in relation to Mr Waitoa being offered work by the appellant either as a subcontractor or as an employee and Mr Qian agreed that Mr Waitoa wished to be an employee of the appellant. Mr Qian further agreed that he had directed Mr Waitoa to transfer from Armidale to Foster, and then advised Mr Vo of that action, but asserted that he had suggested the transfer to Mr Vo and the ultimate decision about the transfer was made by Mr Vo. Mr Qian confirmed that, when he advised Mr Vo that he was having financial issues, Mr Vo suggested that he would pay Mr Waitoa directly.
It was put to Mr Qian that, following that conversation, Mr Qian would be eager to cease paying Mr Waitoa. Mr Qian responded that he was thinking about stopping payment to Mr Waitoa, and the last payment he made was on 16 January 2019. Mr Qian explained that the payment on 7 January 2019 was for work Mr Waitoa had already performed. Mr Qian stated that it was true that he had a conversation with Mr Waitoa about Mr Waitoa’s future wages being paid by LLM but admitted that Mr Waitoa continued to perform work according to instructions from him.
Mr Qian said that the income received from LLM was the primary source of income for the appellant although some income was derived from SPL, as well as from occasional work performed by him such as house moving. Mr Qian confirmed that the agreement with LLM was that LLM would pay the appellant for the trucks and drivers, including the subcontractors employed by LLM, who he would pay and subsequently would be reimbursed by LLM. He further confirmed that he did have a conversation with Mr Waitoa about his employment being transferred to LLM.
It was also put to Mr Qian that the appellant made a payment of $2,122.86 [sic, $2,172.86] to Mr Waitoa on 9 January 2019. The transcript records that Mr Qian’s response was not transcribed but, according to the Senior Arbitrator, the sound recording disclosed that Mr Qian responded that he thought that it may have been a superannuation payment.
The Westpac Bank records
The Westpac Bank records of the account held jointly between the first respondent and Mr Waitoa for the period from 4 January 2019 and 29 January 2019 were annexed to LLM’s reply.[28] The records showed deposits described as:
(a) “NF Logistics salary,” paid on 7 January 2019 and 16 January 2019, each in the sum of $776.60;
(b) “Deposit-Salary Schl Payroll Doe” in the sum of $2,172.86 on 9 January 2019, and
(c) “Deposit-Salary Schl Payroll Doe” on 23 January 2019 in the sum of $2,218.60.
[28] LLM’s reply, pp 58–63.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator noted that the first issue for determination by her was whether the deceased was employed by the appellant or by LLM.
The Senior Arbitrator summarised the evidence before her, which included the deceased’s birth certificate and the written contract of employment. She indicated that she was satisfied that the signature and name of the employee recorded in the contract were those of the deceased. The Senior Arbitrator reviewed the terms of the contract, noting that the contract provided that any amendment or modification to the contract was required to be made in writing. She also noted that the contract provided that Mr Waitoa was to work 40 hours per week with a salary of $937.60 per week. The Senior Arbitrator observed that the reference to “compensation” to be paid to Mr Waitoa was an unusual term but thought it likely that it was a reference to reimbursement for work related expenses.
The Senior Arbitrator observed that there were other elements of the contract that supported its characterisation as an employment contract, such as the identification of the primary place of work.
The Senior Arbitrator summarised the contents of the information contained in the deceased’s payslips and the relevant entries in the bank statements which were jointly held by the deceased and the first respondent. The Senior Arbitrator observed that the deposits described as “Deposit-Salary Schl payroll” were payments of the first respondent’s salary as a school teacher. She also summarised the appellant’s financial records which were in evidence.
The Senior Arbitrator further referred to the mobile phone text messages passing between the deceased and Mr Qian on 11 and 14 January 2019, and the entry in the report of fatality claim form, which identified the deceased’s employer as LLM.
The Senior Arbitrator provided a detailed summary of the statement evidence from the first respondent, Mr Vo (director of LLM) and Mr Qian, as well as the oral evidence given by Mr Qian. The Senior Arbitrator discussed the following aspects of Mr Qian’s evidence:
(a) Mr Qian agreed that the appellant paid superannuation payments for the deceased;
(b) LLM had agreed to pay the deceased’s salary for work performed from 7 January 2019, and
(c) he believed that the payment of $2,122.86 [sic, $2,172.86] paid into the joint bank account was a superannuation payment.
The Senior Arbitrator pointed to the payslip identified by Mr Qian dated 17 January 2019, which was issued by LLM and directed to Mr Waitoa. She noted that the payslip covered the period from 7 January 2019 to 12 January 2019 and did not make reference to 14 and 15 January 2019. The Senior Arbitrator observed that on 14 January 2019, Mr Waitoa had clearly not received the pay referred to in the payslip from LLM because on that day, Mr Waitoa asked the appellant to pay him his wages in the text message directed to Mr Qian.
The Senior Arbitrator summarised the profit and loss statement for the financial year ending 30 June 2019.
The Senior Arbitrator noted in detail the submissions made by the parties. She referred to submissions made by the appellant at the arbitration that raised an issue as to whether the accident causing Mr Waitoa’s death had occurred in the course of his employment. The Senior Arbitrator concluded that, following a review of the procedural history of the matter, the issue had not been raised prior to the concluding submissions made by the appellant at the arbitration. She said that she had informed the appellant’s counsel that she considered that it was too late to raise such an issue.
The Senior Arbitrator also referred to the appellant’s submission that the payment of $2,172.86 was consistent with the deposit on 9 January 2019 being a one-off payment from the appellant to Mr Waitoa in relation to superannuation, marking the end of the employment relationship. The Senior Arbitrator considered that this was not supported by the evidence, which showed clearly that the deposit on that day was in respect of the first respondent’s wages and not a payment to Mr Waitoa, and the appellant’s submission was in error.
The Senior Arbitrator rejected the submissions put by the appellant that the contract should be put aside, and that payment made to the first respondent by the appellant on 16 January 2019 could have been an act of compassion, as could the two letters and the employment contract. She reasoned that it was clear that:
(a) the bank statements were consistent with the payslips;
(b) the birth certificate identified the name of the deceased, and
(c) the signature on the employment contract showed the correct initials and surname of the appellant, which indicated that the deceased had signed the employment contract.
Further, the Senior Arbitrator said that the submission put by the appellant that the evidence of conversations between the Waitoas and Mr Qian about obtaining documents to support a home loan was not challenged was not on point. She considered that seeking confirmation of employment in order to achieve that purpose, even though it was back dated, did not make the evidence of employment a sham. She added that Mr Qian’s evidence that Mr Waitoa’s employment was transferred to LLM just prior to Mr Waitoa’s death was inconsistent with Mr Qian’s evidence that Mr Waitoa had been employed by LLM from the beginning.
The Senior Arbitrator queried why the payslip from LLM covering the period 7 January 2019 to 12 January 2019 had not been issued at the end of that week. She further queried why there was no record of a payment to Mr Waitoa on 12 January 2019, or 14 January 2019, when the evidence showed that the arrangement was for Mr Waitoa to be paid weekly.
The Senior Arbitrator referred to the appellant’s submission that, because the contract required the deceased to “maintain” the truck, the contract could not be one of employment. The Senior Arbitrator considered that having to “maintain” the truck did not necessarily mean anything other than washing the truck.
The Senior Arbitrator observed that, if Mr Waitoa had been aware on 14 January 2019 that his employment had been transferred to LLM, Mr Waitoa would have approached LLM about getting his pay, rather than ask Mr Qian for it. The Senior Arbitrator rejected the appellant’s submission that the text message about being paid was ambiguous and said it needed to be read in the context of the subject matter of the email exchanges on 14 January 2019. She found that it was more likely than not that Mr Waitoa expected to be paid by the appellant.
The Senior Arbitrator added that she thought it extraordinary that, given Mr Qian’s qualifications in accounting, he would conduct such a casual arrangement as to verbally transfer Mr Waitoa’s employment when it was a matter of importance to Mr Waitoa that his employment was secure. This was particularly so when Mr Qian was aware that Mr Waitoa had elected to be an employee and not a sub-contractor. The Senior Arbitrator said that Mr Qian knew that Mr Waitoa was applying for a home loan and knew he had provided Mr Waitoa with a written contract of employment. Further, the provision of employment documents by the appellant to support Mr Waitoa’s home loan application was inconsistent with Mr Qian’s assertions that LLM was Mr Waitoa’s employer from the beginning. The Senior Arbitrator thought it appeared from their evidence that Mr Vo and Mr Qian had an acceptance that LLM was not Mr Waitoa’s employer from the outset because they both gave evidence that his employment was transferred.
The Senior Arbitrator noted the inconsistency between Mr Qian’s oral evidence that he made the payment on 7 January 2019 because it was for work done, and his written statement, in which Mr Qian asserted that he had a conversation with Mr Waitoa on 4 January 2019 and told Mr Waitoa that LLM would pay him directly on the Monday and that Mr Qian would advise LLM how many hours Mr Waitoa had worked. The Senior Arbitrator said that the Monday would have been 7 January 2019, when the appellant, not LLM, paid Mr Waitoa, and the appellant again paid Mr Waitoa’s wages on 16 January 2019. The Senior Arbitrator referred to the appellant’s submission that she could not speculate as to why LLM did not pay Mr Waitoa. She said that she was not speculating in reaching her conclusion that, on the balance of probabilities, it was more likely that the appellant remained the employer up to the time of Mr Waitoa’s death.
The Senior Arbitrator referred to further discrepancies in the evidence of Mr Qian. She pointed out that:
(a) in his written statement, Mr Qian asserted that he told the first respondent to provide him with a written contract and he would sign it, yet in his oral evidence he was definite that he had obtained the employment contract on a website;
(b) he said in cross-examination that the appellant paid Mr Waitoa’s superannuation after the death, yet in further cross-examination asserted that the payment of $2,172.86 made on 9 January 2019 must have been a superannuation payment. The Senior Arbitrator observed that this evidence was wrong, and considered it odd in the context of Mr Qian’s accounting qualifications and legal responsibilities, and
(c) Mr Qian admitted that the contents of the letter dated 2 January 2019, in which he asserted that from September until November he did not tax Mr Waitoa as he was negotiating the changes with his accountant, was not true.
While Briginshaw does not establish a third standard of proof, in circumstances where a serious allegation requires proof, a more careful approach must be taken in reaching the necessary conclusion that the allegation is made out.
It is apparent from the Senior Arbitrator’s reasons that the she did not reach a conclusion that Mr Qian and/or Mr Vo were lying or that they had been involved in criminal conduct. Nonetheless, the Senior Arbitrator carefully analysed the evidence before her, gave sufficient reasons for accepting or rejecting that evidence and reached her conclusion in a manner consistent with that discussed in Briginshaw and Nguyen.
The Senior Arbitrator did not misdirect herself in relation to the principles in Briginshaw and nor did she disregard them. She clearly took into account the need to carefully analyse the available evidence before arriving at her conclusion that the evidence from Mr Qian and Mr Vo was unreliable. She did not go so far as to find that their actions constituted, or would likely constitute, criminal conduct. She took into account the need to look carefully at, and take care in assessing, the evidence.
The manner in which she dealt with the evidence discloses no error and, consequently, this ground of appeal has no merit.
Ground Four: The Senior Arbitrator erred in fact and law in drawing inferences favourable to the first respondent when they were not open to her
The appellant submits that the evidence against the transfer having not occurred was no better than equally balanced with the evidence that the transfer did occur, so that the Senior Arbitrator was in error to conclude that she was satisfied that Mr Waitoa’s employment was not transferred to LLM prior to his death.
The appellant refers to the Senior Arbitrator’s observations about the payslips. The appellant says that the absence of payment on 11 January 2019 is supportive of the fact that Mr Waitoa was no longer working for the appellant and the payslip issued by LLM on 17 January 2019 is also supportive of that fact. The appellant submits that this evidence rebuts the proposition that the transfer did not take place. The appellant asserts that Mr Qian was aware that LLM paid wages to their drivers fortnightly, which was an explanation as to why Mr Waitoa had not been paid on 12 or 14 January 2019.
The Senior Arbitrator dealt with the evidence about the payslip from LLM at [151] of her reasons. She observed:
“During Mr Hallion’s submissions I asked him about the payslip which says it is from LLM to Mr Waitoa covering the period from 7 to 12 January 2019. In Mr Vo’s statement he confirms it was issued after Mr Waitoa’s death. What is strange if it was for that period, and LLM has taken over the employment of Mr Waitoa for work done after 7 January 2019, why wasn’t the payslip issued at the end of that week and why had not LLM made payment to Mr Waitoa on 12 January 2019 or even 14 January 2019. Mr Qian in his conversation on 4 January 2019 with Mr Vo stressed that Mr Waitoa was to be paid weekly. So, he should have received a payment before 15 January 2019.”
The fact that LLM issued a payslip in favour of Mr Waitoa on 17 January 2019, which was two days after Mr Waitoa’s death, was not accompanied by any wages payment from LLM and was given to Mr Qian rather than to the first respondent, is of little evidentiary value. It is clear from the passage quoted above that the Senior Arbitrator took into account the appellant’s submissions about the payslip and gave appropriate reasons for rejecting those submissions.
Mr Qian’s evidence about the fortnightly payment of wages was based upon his knowledge of LLM’s business practices in mid-2017, which may or may not have continued to be the situation in early 2019. Additionally, Mr Qian’s evidence about the arrangement to transfer Mr Waitoa’s employment to LLM was that:
(a) Mr Qian assured Mr Waitoa that he was to be paid weekly;
(b) Mr Qian advised Mr Vo that that would be the case;
(c) Mr Vo agreed to commence paying Mr Waitoa on the Monday, which would have been 7 January 2019, and
(d) Mr Qian told Mr Waitoa that he would be paid on Monday.
If it was established that there was an arrangement to transfer Mr Waitoa’s employment, it was clear that Mr Waitoa was to be paid weekly and should have been paid by LLM on 7 January 2019.
The appellant further submits that the Senior Arbitrator erred by relying upon the written contract of employment, which required any variation or termination of the employment to be in writing. The appellant’s argument is that the contract came into existence for the purpose of assisting the first respondent and Mr Waitoa with their home loan application and not for the purpose of establishing an employment relationship. As the Senior Arbitrator pointed out, there were specific terms in the contract which were consistent with Mr Waitoa’s actual employment arrangements, such as his rate of pay and the involvement of SPL. It is apparent that, while the evidence points to the contract being drawn up well after Mr Waitoa commenced his employment, it was prepared on the basis that it reflected the actual arrangements. There is no suggestion that either party sought to mislead the home lender about those arrangements between the parties to the contract. The overarching significance of the contract document, however, is that the appellant was a signatory to the contract indicating that it was Mr Waitoa’s employer. Further, Mr Waitoa also signed the document, which pointed to the fact that Mr Waitoa considered that to be the case.
The Senior Arbitrator considered that the termination clause in the document, which required the termination to be in writing, had not been complied with, which was a further indicator that the transfer had not taken place. It was not the only observation about the contract and it was not the only factor upon which the Senior Arbitrator concluded that the transfer had not taken place. Even if the Senior Arbitrator was wrong to take into account the termination provision of the contract, the Senior Arbitrator’s other observations about the contract were sufficient to support her conclusion that the contract was an indicator that the purported transfer had not taken place. Any identifiable error on the part of an arbitrator must have affected the outcome.[50] The Senior Arbitrator did not err, therefore, in taking into account the evidence that LLM paid no wages to Mr Waitoa or in taking into account the employment contract.
[50] Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45, per Bathurst CJ, [92].
The appellant asserts that the Senior Arbitrator could not reject the evidence of Mr Qian on the basis of Mr Qian’s credibility, when Mr Qian was the only witness who could give evidence about the conversations between him and Mr Waitoa and the only evidence contrary to that was that of the first respondent, whose evidence only went so far as to say that Mr Waitoa would have discussed any transfer with her.
The appellant asserts that there was no cogent evidence about Mr Waitoa being involved in financial matters with the first respondent. The assertion is without basis. Mr Waitoa was referred to in the loan document, as was his employment (despite it erroneously classifying his employment as a public servant). The loan was approved, which leads to the inference that Mr Waitoa had signed, and was party to the agreement. Further, according to Mr Qian’s evidence (if accepted), Mr Waitoa expressed some concern about how a transfer of employment would affect his loan application. The appellant’s assertion is therefore not consistent with the evidence upon which he sought to rely.
The Senior Arbitrator rejected the evidence of Mr Qian on the basis of inconsistencies in his evidence which led her to conclude that his evidence was unreliable.
Given the inconsistencies in Mr Qian’s evidence, it was open to the Senior Arbitrator to find his evidence unreliable and to look to the objective evidence to assist her in her determination of whether the appellant had made out its case. Further, the inference drawn that the text messages lent support to the conclusion that Mr Waitoa was of the understanding that he remained in the employ of the appellant was also open to the Senior Arbitrator. Mr Waitoa messaged Mr Qian about the truck tyre repairs and about payment of his wages. While it might be available to argue that Mr Waitoa would approach Mr Qian, who was in charge of logistics, about the repairs, it is less logical that Mr Waitoa would directly ask Mr Qian for payment of his wages had he been aware that his employment been transferred to LLM.
The Senior Arbitrator’s finding in relation to the acceptance or otherwise of the evidence is a finding of fact. Questions of the acceptance of evidence and the weight it is to be given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[51]
[51] Shellharbour City Council v Rigby [2006] NSWCA 308.
In Raulston v Toll Pty Ltd,[52] Roche DP discussed what is required to disturb a finding of fact made by an arbitrator. He said:
“Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”[53]
[52] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[53] Raulston, [19] (sub-paragraph lettering omitted).
In Devries v Australian National Railways Commission,[54] Brennan, Gaudron and McHugh JJ said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based upon the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”[55]
[54] [1993] HCA 78; 177 CLR 472 (Devries).
[55] Devries, 479.
The Senior Arbitrator’s conclusions were not inconsistent with incontrovertible facts or glaringly improbable. The appellant’s submissions are not persuasive of error on the part of the Senior Arbitrator and this ground of appeal has no merit.
Ground Five: error of mixed fact and law in finding that the written employment contract dated 1 June 2018 was not a sham, such finding being against the weight of the evidence and against authority
This ground of appeal reiterates the same allegation of error as that asserted in Ground Four, focussing on the purported error by the Senior Arbitrator in accepting the contract of employment as evidence that the appellant was Mr Waitoa’s employer.
The appellant makes the same submission that it made to the Senior Arbitrator about the contract not bearing Mr Waitoa’s correct name. The Senior Arbitrator provided reasons for not accepting that argument, which included reference to Mr Waitoa’s full name in the birth certificate and the fact that the employee’s signature on the contract bore Mr Waitoa’s first two initials and his surname. The Senior Arbitrator’s reasons for rejecting that submission were logical and persuasive and the appellant has pointed to no error in the path of her reasoning.
The appellant asserts that neither party acted as though they were bound by the contract, and that the first respondent in particular acted contrary to the contract by lodging her claim against LLM. The first respondent was not a party to the contract. It is clear that the first respondent was advised by both Mr Vo and Mr Qian that LLM was the correct identity of the employer and that the claim was lodged through her solicitor. In the circumstances in which the first respondent lodged the claim, the fact that the claim was initially lodged with LLM is of no evidentiary value.
The appellant refers to the Senior Arbitrator’s discussion in relation to Mr Qian’s evidence about whether he or the first respondent generated the employment contract and asserts that it is irrelevant who generated the document. The submission is misplaced. The Senior Arbitrator referred to Mr Qian’s evidence about this fact when considering whether Mr Qian’s evidence could be accepted. His early evidence was that the first respondent had produced the document, but he subsequently gave evidence that he had found the document on the internet. This inconsistency was a factor appropriately taken into account in the Senior Arbitrator’s assessment of whether Mr Qian’s evidence was credible.
The appellant relies upon the purpose for which the employment contract was created to say that the Senior Arbitrator was wrong to take into account the terms of the contract. The appellant’s submissions and the Senior Arbitrator’s reasons for taking into account the employment contract are discussed above at [264]–[265] above. For the same reasons as those expressed in Ground Four, the appellant brings no persuasive argument that the Senior Arbitrator’s conclusion was inconsistent with incontrovertible facts or glaringly improbable and there is, therefore, no merit to this ground of appeal.
Grounds Six and Seven: error of fact and law in finding that a transfer of notional employment on 4 January 2019 did not take place due to it being inconsistent with the “objective facts” (Ground Six), and in finding the payment of salary on 16 January was by the appellant and not LLM (Ground Seven), such findings being against the weight of the evidence
The submissions and the Senior Arbitrator’s reasons for her conclusions about the transfer and the wages payments are discussed under Ground Four above.
As LLM submits, the concept put forward by the appellant that Mr Waitoa was “notionally” employed by the appellant is curious and whether a person is, or is not, employed depends upon an evaluation of the relevant indicia of employment. LLM points to Mr Waitoa being directed at all times by the appellant, which was a corporate entity in its own right. The appellant concedes that it was open to the Senior Arbitrator to find that Mr Waitoa was not paid by LLM or at all in the week preceding the accident, did not tell his wife about the transfer, and asked to be paid in a text message on 14 January 2019. The appellant argues that those facts were not sufficient to support the Senior Arbitrator’s finding in relation to the transfer.
Those facts were not the only matters relied upon by the Senior Arbitrator in reaching her conclusion that the transfer did not occur. Primarily, the Senior Arbitrator did not accept that Mr Qian’s evidence about the transfer was reliable. Her reasons are summarised at [99]–[113] above. Those reasons provided a sound basis for her satisfaction that the transfer had not occurred.
The appellant refers to the evidence from Mr Vo that he flew from Melbourne to see the first respondent after the accident because he was the employer of Mr Waitoa, and also the evidence of Mr Qian about the payment on 16 January 2019, and submits that the Senior Arbitrator failed to afford that evidence sufficient weight. The Senior Arbitrator provided substantive reasons as to why Mr Qian’s evidence was unreliable and considered the evidence about the payment on that date in the context of the whole of the evidence, which included that Mr Qian made the payment, and it was never reimbursed by LLM.
There is nothing to show that the Senior Arbitrator’s conclusions about these matters were not open to her on the evidence. There was no error in her approach and these grounds of appeal have no merit.
Ground Eight: error of law in making adverse findings as to the credit of Mr Qian and Mr Vo, with such findings being against the weight of the evidence
The appellant asserts that the use by the Senior Arbitrator of descriptors such as “inconsistent,” “extraordinary,” “incongruous” and “beggars belief” in relation to Mr Qian’s evidence meant that she was required to assess the evidence in accordance with “the Briginshaw standard.” I have discussed the application of Briginshaw in Ground Three of the appeal and the degree to which the Senior Arbitrator dealt with the evidence. There was no error on the part of the Senior Arbitrator.
The appellant points to the fact that the Senior Arbitrator took into account Mr Qian’s accounting qualifications in the context of the appellant’s business practices, which she considered fell short of the expected standard. The appellant does not establish how it was that the Senior Arbitrator erred by making that observation, in the context of Mr Qian having accounting qualifications, rather than having less sophisticated knowledge. The appellant also does not explain why Mr Qian’s ethnic background was relevant as an explanation for the casual manner in which the appellant’s business was run. Nor does the appellant point to error on the part of the Senior Arbitrator in reaching the conclusion that the evidence about the identity of the employer being LLM was inconsistent with the appellant holding out to the home loan provider that it was Mr Waitoa’s employer.
The appellant refers to the discrepancies in the evidence identified by the Senior Arbitrator yet asserts that the evidence of Mr Qian and Mr Vo was unchallenged. It is not open to the appellant to assert that the evidence of Mr Qian and Mr Vo was unchallenged. The Senior Arbitrator went to some lengths to identify the inconsistencies between that evidence and the objective facts and the reason that Mr Qian’s evidence was unreliable. I have discussed the manner in which the unreliable evidence was required to be dealt with at [268]–[273] above.
The Senior Arbitrator’s findings referred to by the appellant are factual findings. I have discussed the principles that apply in disturbing factual findings on appeal and why the Senior Arbitrator’s findings should not be disturbed. The appellant has not identified any error of the kind required and this ground of appeal has no merit.
CONCLUSION
The appeal has no merit. The appellant has failed to show that exceptional circumstances exist and that a failure to extend the time to appeal would cause a substantial injustice. I decline to extend the time to appeal.
DECISION
The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.
Elizabeth Wood
DEPUTY PRESIDENT
3 June 2021
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