Noble v Petuha
[2025] NSWPICPD 5
•23 January 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Noble v Petuha [2025] NSWPICPD 5 |
APPELLANT: | Lisa Maree Noble |
RESPONDENT: | Tete Petuha |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W7642/23 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 23 January 2025 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 23 February 2024 is revoked. 2. The matter is remitted to a different non-presidential member to deal with any outstanding matters consistent with these reasons. I note these may include interest, funeral expenses and dependency. |
CATCHWORDS: | WORKERS COMPENSATION – ‘Worker’ – intention to enter legal relations – application of Dietrich v Dare (1980) 54 ALJR 388; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr R Brown, counsel | |
| Everingham Solomons Solicitors | |
| Respondent: | |
| Mr S Harris, solicitor | |
| Moray & Agnew Lawyers | |
DECISION UNDER APPEAL: | Noble v Petuha [2024] NSWPIC 79 |
SENIOR MEMBER: | Ms K Haddock |
DATE OF MEMBER’S DECISION: | 23 February 2024 |
INTRODUCTION AND BACKGROUND
Hannah Marsland-Howard (the deceased) lived with her mother, Lisa Maree Noble (the appellant) and her brother, Joshua Howard (Joshua). Tete Randell Petuha (the respondent) was a shearing contractor who operated a team of shearers in the northern tablelands of New South Wales and elsewhere. Joshua was employed by the respondent as a roustabout and wool presser.[1] On 3 June 2022, there was a discussion between the respondent and the deceased when the respondent visited the house that she shared with Joshua. The respondent asked the deceased whether she wanted to try out doing some work with him. She replied, “Yes”.[2]
[1] Joshua’s statement 12/9/23, Application in Respect of Death of Worker (ARD), p 3.
[2] Respondent’s statement 6/7/22, ARD, p 6, [17].
On the morning of 8 June 2022 the deceased, working in a team under the supervision of the respondent, carried out the duties of a roustabout at a shed on a property located near Walcha. She had not been to the work site prior to that day.[3] The working day went from 7.30 am to 5 pm, the lunch break was taken from noon to 1 pm.[4] At lunchtime that day the deceased and Joshua (who was working in the same team at the shed) were passengers in a car being driven from the property to the Walcha township. The vehicle in which the deceased was travelling collided with a truck. The deceased and the driver of the vehicle were killed in the collision; Joshua suffered significant injuries.
[3] Respondent’s statement 6/7/22, ARD, p 7, [18].
[4] Joshua’s statement 12/9/23, ARD, p 4, [11].
The issue in the current proceedings is whether the deceased was a ‘worker’ in the employ of the respondent at the time of her death. She was 16 years of age. There was a reference in the evidence, regarding the arrangement in place on 8 June 2022, to the deceased being involved in a ‘work trial’. The respondent relied on the decision of the High Court in Dietrich v Dare,[5] in contesting whether the deceased was a ‘worker’ when she sustained her fatal injury.
[5] (1980) 54 ALJR 388 (Dietrich v Dare).
The respondent conceded that, subject to the issue regarding ‘worker’, the circumstances of the fatal injury to the deceased were such that s 11 of the Workers Compensation Act 1987 (‘Recess claims’) had application. Although other issues were raised in earlier dispute notices, the only ‘liability’ issue ultimately contested at the hearing was whether the deceased was a ‘worker’ at the time of her fatal injury.[6]
[6] Letter from the respondent’s solicitors dated 16/1/24; Noble v Petuha [2024] NSWPIC 79 (reasons), [16].
The claim is brought by the appellant, the mother of the deceased, seeking the relevant death benefit pursuant to s 25 of the 1987 Act, an amount of $862,350 as at 8 June 2022. The Application also indicates that Joshua may have been dependent.
The matter was listed for hearing on 30 January 2024. Mr Brown of counsel appeared for the appellant and Mr Harris, solicitor appeared for the respondent. Oral submissions were made by the legal representatives and the Senior Member reserved her decision.
The Senior Member’s decision and accompanying reasons were issued on 23 February 2024. The Senior Member concluded that there was no intention to create legal relations. The legal relationship was dependent on the work trial being successful for both parties, and there then being agreement to enter into a contract of employment.[7] The Senior Member concluded the deceased was not a ‘worker’ employed by the respondent at the time of her death. There was an award for the respondent. The appellant appeals against that determination.
[7] Reasons, [103]–[104].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3, the documents that are before me and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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 requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE SENIOR MEMBER’S REASONS
The Senior Member noted the parties’ agreement that the ‘liability’ issue be determined first. If the appellant succeeded the parties would attempt to resolve the claim for interest.[8] The Senior Member summarised the statements of the appellant,[9] Joshua[10] and the respondent.[11] She noted Joshua’s statutory declaration dated 14 September 2024 [sic], in which he stated he did not wish to claim to have been dependent on the deceased, nor to seek independent legal advice in this regard.[12] The Senior Member summarised the parties’ submissions.[13] The Senior Member said:
“The respondent suggested that the deceased try the work of a shedhand or roustabout,[14] to see if she liked the work, and was capable of performing it. He would pay her for her work. If she did well, and, it is assumed, she wished to work for him, he would, as Mr Howard stated, ‘take her on full-time’. The deceased, of course, was killed during her lunch break on the first day she attended the worksite.”[15]
[8] Reasons, [19].
[9] Reasons, [23]–[31].
[10] Reasons, [32]–[47].
[11] Reasons, [48]–[69].
[12] ARD, pp 29–31.
[13] Reasons, [70]–[87].
[14] The parties variously employ the spellings ‘rouseabout’ and ‘roustabout’, both of which are available alternatives. In this decision the spelling ‘roustabout’ is adopted.
[15] Reasons, [90].
The Senior Member quoted from the decision of Roche DP in Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson[16] in which the Deputy President summarised the “four essential features of a contract of employment”. She quoted from the Deputy President’s reasons, where he said that the “very essence of a contract of service, namely, the obligation on one party to provide, and on the other party to undertake, work, is missing”.[17] The Senior Member summarised the facts in Dietrich v Dare. She said that the High Court there held that there was “no contract of any type. There was no obligation on Mr Dietrich to do anything pursuant to the agreement, which was viewed as a trial.” The Senior Member quoted a passage from the plurality in Dietrich v Dare, which had been relied upon by Truss J in Drzyzga v G & B Silver Pty Ltd,[18] which included the following:
“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 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, that 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.”[19]
[16] [2013] NSWWCCPD 49 (Thompson).
[17] Thompson, [34], quoted in the reasons, [92].
[18] [1994] NSWCC 12; 10 NSWCCR 191.
[19] Dietrich v Dare, 390.
The Senior Member described the deceased’s circumstances on 8 June 2022 as “analogous to those in which Mr Dietrich came to be engaged in doing some painting for Mr Dare”. The Senior Member reasoned:
“100. The arrangement between the deceased and the respondent was that [the deceased] was asked if she would like to ‘try it out’. The work trial was, as the respondent stated, to see if she liked the work and was able to perform it.
101. There was no obligation on the deceased to perform the work of a shedhand/roustabout, or any work at all. Had she decided, once the tasks expected of her were explained, or at any time before, that she did not want to proceed, or did not want to complete the day’s work, she was not obliged to do so. She could have left the worksite at any time.
102. Similarly, had the respondent changed his mind about giving the deceased a work trial, there would have been no obligation on him to proceed with it. I place no weight on the fact that he gave the deceased a lift to the worksite. That is an entirely neutral matter.
…
104. As the respondent submitted, legal relations giving rise to a contract of employment would not have been created unless and until the work trial had been successful for both parties, and they agreed to enter into a contract of employment. Until that happened, there was no contract of employment. There was no mutuality of obligation.”
The Senior Member concluded there was no binding contract between the parties at the date of the deceased’s death, the deceased was not a ‘worker’, there was an award in favour of the respondent.[20]
[20] Reasons, [105]–[106].
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Member erred in fact and law by finding that the deceased was not a worker at the time of her death. (Ground No. 1)
(b) The Member erred in finding the facts analogous to Dietrich v Dare (1980) 54 ALJR 388. (Ground No. 2)
APPELLANT’S SUBMISSIONS
Ground No. 1
The appellant submits the Senior Member found “the requisite intention to create legal relations would not have occurred until after the successful completion of the so called ‘work trial’.” She submits this involved “the assumption that the agreement was for future work, it ignores the presence of short term casual work that was undertaken by the deceased on 8 June 2022 prior to her passing” (underlining in original). The appellant submits that at the time that the deceased commenced work the parties had the necessary intention to form the contract.
The appellant refers to Hamzy v Tricon International Restaurants[21] and WorkPac Pty Ltd v Skene.[22] The appellant quotes the following passage from Hamzy:
“The essence of casualness is the absence of a firm advance commitment as to the duration of the employee’s employment for the days (or hours) the employee will work.”[23]
[21] [2001] FCA 1589; 115 FCR 78 (Hamzy).
[22] [2018] FCAFC 131; 264 FCR 536 (Skene).
[23] Hamzy, [38].
The appellant quotes the following passage from Skene:
“[A] casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer.”[24]
[24] Skene, [172].
The appellant submits that, from when the deceased commenced work on 8 June 2022, “there existed the necessary intention to enter into legal relations to form a contract for at a minimum short term casual employment”. The appellant submits this submission is supported by the following:
(a) the respondent, before making the offer of employment, had formed the view that he required additional workers for his shearing business;
(b) the deceased accepted the offer of work;
(c) the respondent determined the pay by reference to the relevant award, the Pastoral Award, which only applies to employees;
(d) the deceased attended on the relevant day and performed the duties of a shedhand and roustabout, and
(e) the deceased was treated as a member of the wider workforce, being provided with tools, supervision and breaks.
The appellant submits this position is supported by s 15A of the Fair Work Act 2009 (Cth). The appellant submits that, at the time of the deceased’s fatal injury, she was working under a contract of service and was a ‘worker’.[25]
[25] Appellant’s submissions, [18]–[20].
Ground No. 2
The appellant submits the Senior Member’s reasoning on whether there was an intention to enter legal relations rested on her finding, at [99] of the reasons, that the parties’ relationship was analogous to that in Dietrich v Dare. The appellant submits this was erroneous,[26] and identifies factual distinctions between the two cases:
(a) In Dietrich v Dare the work performed (repainting a house) was unnecessary and was performed solely as a trial to test the putative worker’s ability, with his physical restrictions, to perform it. In contrast, the work performed by the deceased in the current matter needed to be performed as part of the respondent’s business obligations.[27]
(b) The worker in Dietrich v Dare approached the putative employer with a request for work. In the current matter the respondent required workers and set about procuring the deceased for a particular role.[28]
(c) The pay rate in Dietrich v Dare was below market rate. In the current matter the respondent had formed the view that he would pay the deceased in line with the appropriate award. It is submitted this was consistent with viewing her as an employee.[29]
(d) In Dietrich v Dare very minimal work was performed prior to the injury occurring. In the current matter the deceased worked at least half a shift before her injury.[30]
[26] Appellant’s submissions, [21].
[27] Appellant’s submissions, [22].
[28] Appellant’s submissions, [23].
[29] Appellant’s submissions, [24].
[30] Appellant’s submissions, [25].
The appellant submits that, in Dietrich v Dare, the High Court concluded the worker was not under an obligation to perform any work. The reasons of the plurality referred to the parties’ belief that the putative worker’s pre-existing injuries were likely to prevent him performing the relevant work. This is submitted to have affected the formation of the relationship, the putative worker asked the employer, who did not require help, for work. The appellant submits the finding that Dietrich v Dare was analogous to the current matter was erroneous, and infected the reasoning process, resulting in error.[31]
RESPONDENT’S SUBMISSIONS
[31] Appellant’s submissions, [26]–[27].
Ground No. 1
The respondent’s submissions quote from his statement dated 6 July 2022 at [16] to [18] and [23].[32] The respondent submits the arrangement’s “non-binding nature as a work trial was clearly stated”. Paragraph [23] said:
“Her work experience was really just to see if she liked the work and whether she was capable of performing the tasks involved. I did not know how she would go, but she actually did really well.”
[32] ARD, pp 6–7.
The respondent also refers to Joshua’s statement, in which he said the deceased “had never performed Roustabout work in the past”. The respondent submits this evidence supported the Senior Member’s correct finding that there was no mutuality of obligation and therefore no contract of employment. The respondent submits the principles in Dietrich v Dare were correctly applied.[33]
[33] Respondent’s submissions, [7]–[11].
The respondent refers to the appellant’s reliance on the decisions of Hamzy and Skene. The respondent submits it is difficult to see the relevance of these authorities. Hamzy dealt with regulations under the Federal Workplace Relations Act 1996 dealing with termination of employment. Skene dealt with entitlements to annual leave under the Fair Work Act 2009 (Cth). In each case the issue was whether a worker was entitled to protection under those Acts where he had been engaged in intermittent casual employment over various periods. The respondent submits that neither case is relevant to formation of a contract of service in the context of a work trial. The respondent submits s 15A of the Fair Work Act is irrelevant to the present matter, where no offer of employment was made by the respondent to the deceased. It is submitted that Ground No. 1 should fail. [34]
[34] Respondent’s submissions, [12]–[16].
Ground No. 2
The respondent quotes part of the passage from Dietrich v Dare set out above at [12]. The respondent submits he was in need of more workers. “The deceased, however, was only 16, had no experience as a roustabout and indeed, already had a traineeship with ‘Elders’.” It is submitted that, as in Dietrich v Dare, both parties needed to evaluate their respective positions. The deceased needed to see whether the nature of the work suited her and was to her liking. It “would presumably have led to the relinquishment by her of her traineeship”. The respondent needed to see whether the deceased was capable of carrying out the work to a satisfactory standard having regard to her age and lack of experience.
The respondent submits the finding that the facts were analogous to Dietrich v Dare was “clearly correct” and this ground is not made out.[35]
[35] Respondent’s submissions, [17]–[21].
THE NATURE OF THE APPEAL
The appeal is brought pursuant to s 352 of the 1998 Act, subsection (5) of which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[36] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[37] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[38]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’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 [Member] was wrong.
(c) It may be shown that [a Member] 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 [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[39]
[36] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[37] (1966) 39 ALJR 505, 506 (Whiteley Muir).
[38] [1996] HCA 140; 140 ALR 227.
[39] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[40]Their Honours said there was no error in a Presidential Member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[41]
[40] [2020] NSWCA 54 (Hill).
[41] Hill, [20].
In Northern NSW Local Health Network v Heggie[42] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[42] [2013] NSWCA 255; 12 DDCR 95, [72].
CONSIDERATION – GROUNDS NOS. 1 AND 2
The appellant’s case failed because of the Senior Member’s finding that she had not established one of the necessary requirements for the formation of a contract of employment, an intention to enter legal relations, was present. Both grounds go to this issue and it is convenient to deal with them together.
The decisions in Hamzy and Skene do not relate specifically to whether the essential ingredients were present for the formation of a contract of employment, but rather deal with the rights of casual employees, relating to termination and annual leave. The point the appellant seeks to make is found in the following passage from Skene:
“In contrast, a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. That characteristic, drawn from Hamzy, is what White J referred to in more general terms in South Jin at [71] as ‘any commitment by the employer or the worker to ongoing employment’. In our view, what is referred to in Hamzy as the ‘essence of casualness’, captures well what typifies casual employment and distinguishes it from either full-time or part-time employment.
The indicia of casual employment referred to in the authorities – irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability – are the usual manifestations of an absence of a firm advance commitment of the kind just discussed. An irregular pattern of work may not always be apparent but will not necessarily mean that the underlying cause of the usual features of casual employment, what Hamzy identified as the ‘essence of casualness’, will be absent.”[43]
[43] Skene, [172]–[173].
In Ermogenous v Greek Orthodox Community of SA Inc[44] the High Court discussed the requirement that there be an intention to enter legal relations. The plurality said:
“‘It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.’ To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet ‘[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts’.
Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the ‘intention to create contractual relations’ requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”[45] (omitting footnotes)
[44] [2002] HCA 8; 209 CLR 95 (Ermogenous).
[45] Ermogenous, [24]–[25].
In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting[46] Gordon J said:
“Of course, the general principle against the use of subsequent conduct in construing a contract wholly in writing says nothing against the admissibility of conduct for purposes unrelated to construction, including in relation to: (1) formation – to establish whether a contract was actually formed and when it was formed …”.[47]
And:
“As explained, when an oral contract or a partly oral, partly written contract is in issue, recourse to conduct may be necessary to identify the point at which the contract was formed and the contractual terms that were agreed. In relation to the latter, ‘[s]ome terms may be inferred from the evidence of a course of dealing between the parties’, ‘[s]ome terms may be implied by established custom or usage’, and ‘[o]ther terms may satisfy the criterion of being so obvious that they go without saying’. But in each of these cases, the question is whether the particular term ‘is necessary for the reasonable or effective operation of the contract in the circumstances of the case’. In this way, even where the contract has not been reduced to a complete written form, the admissible evidence is limited to identifying those matters – formation and terms – objectively and for those limited purposes.”[48] (omitting footnotes)
[46] [2022] HCA 1; 275 CLR 165 (Personnel Contracting).
[47] Personnel Contracting, [177].
[48] Personnel Contracting, [190].
The statements of both Joshua and the respondent are relevant to formation of the contract.
Joshua’s statement
Joshua’s statement is dated 12 September 2023.[49] He was present when the respondent and the deceased discussed the prospect of her working for the deceased. He stated that the respondent “asked [the deceased] to come in for a paid trial day and, if she did well, [the respondent] would take her on full-time”. Joshua said the deceased worked as a shedhand (or roustabout) on the morning of 8 June 2022, at the Ruby Hills work site, he believed she worked under the respondent’s supervision. He said the deceased had never done such work before. Joshua said all equipment (a broom and paddles to collect the wool) was provided to the deceased by the respondent. The deceased was required to work the same hours as everyone else, 7.30 am to 5 pm, with breaks of 30 minutes at 9.30 am and 3 pm, and 1 hour at 12 noon.[50]
[49] ARD, pp 3–4.
[50] Joshua’s statement 12/9/23, ARD pp 3–4, [4], [8]–[11].
The respondent’s statement
The respondent’s statement is dated 6 July 2022.[51] He knew the deceased from his association with Joshua, who worked with his team. The respondent was “getting very busy” and needed more workers. On Friday 3 June 2022 the respondent was at Joshua’s house, as was the deceased. The respondent asked the deceased what she was doing since leaving school and she said she had a traineeship with Elders. The respondent asked the deceased if she wanted to try doing some work with him and she said “Yes”. The respondent stated that the deceased “commenced performing work experience for me on 8 June 2022 as a shedhand/roustabout”. The respondent said she “was to be paid for her work experience”. The respondent stated: “Her work experience was really just to see if she liked the work and whether she was capable of performing the tasks involved. I did not know how she would go, but she actually did really well.”
[51] ARD, pp 5–13.
The respondent said the deceased “was shown what needed to be done when she started and she picked the requirements of the task up very quickly so I was impressed with her ability to get the job done”. The respondent confirmed the deceased “was entitled to the same breaks as everyone else at the site”. The respondent said that he drove past the scene of the deceased’s accident when returning to the work site at “around 12.45pm or 12.50pm”. He stated: “it appeared that they had been heading away from the job site, back into town, when the accident occurred”.
There is a further statement of the respondent dated both 29 June 2022 (in its title) and 6 July 2022 (where it is executed).[52] It includes “As for Josh’s sister, Hannah, she had literally only just started with us on work experience, on the same day as the accident, as a Shed Hand/Roustabout.”[53]
[52] Reply, pp 13–22.
[53] Reply, p 16.
Discussion
Consistent with the passage from Ermogenous quoted above, it is necessary to engage in an objective assessment of the state of affairs between the parties, in determining whether an intention to enter legal relations is established. The statements of Joshua and the respondent are largely consistent. Both refer to the conversation between the respondent and the deceased. The respondent’s statement said he asked the deceased “whether she wanted to try it out [working with him] and she said ‘Yes’.”[54] The respondent’s statement did not specifically indicate that he used a term such as a ‘work trial’ or ‘work experience’ in his conversation with the deceased. His statement did, in multiple places, use the term ‘work experience’ to describe what the deceased was doing on 8 June 2022 (see paragraphs [16], [19], [20], [23], [24] and [25]). Joshua’s statement indicated the respondent used the terms ‘paid trial day’ and ‘work experience’ when discussing the matter with the deceased. The respondent’s solicitor, at the commencement of his submissions before the Senior Member, said:
“… there’s no suggestion that this was ‘work experience’ in the true meaning of that word. I think that was just inadvertent use of that terminology in part of the respondent’s statement.”[55]
[54] Respondent’s statement, Reply, p 6, [17].
[55] Transcript of hearing, 30/1/24 (T), T 11.16–19.
The evidence permits a distinction to be drawn between what was said by the respondent and the deceased going to whether the there was an intention to enter legal relations in respect of the day that she carried out work, 8 June 2022, as opposed to the respondent’s consideration of offering the deceased longer-term employment. The appellant’s submissions at first instance involved an argument that ‘casual employment’ can include irregular work patterns. The point made by the appellant’s submissions dealing with Ground No. 1, is that the work performed by the deceased on 8 June 2022 could potentially constitute “short term casual employment”, even if it was irregular. It was not dependent on the outcome of any work trial.
Joshua’s statement is consistent with the above proposition:
“On 8 June 2022, the day of the accident, Hannah had commenced work for Tete. I recall Hannah commenced that day due to a verbal conversation between Hannah and Tete, which I was present for, in which Tete asked Hannah to come in for a paid trial day and, if she did well, Tete would take her on full-time. Tete described this trial as ‘work experience’ but explained that he would pay her for her work.”[56] (emphasis added)
[56] Joshua’s statement, [4].
The above passage is consistent with:
(a) the deceased attending work on 8 June 2022 in performance of an oral agreement of 3 June 2022;
(b) the agreement being to work for the day;
(c) the agreement being that the respondent would pay the deceased for that day’s work, and
(d) the respondent intending to then employ the deceased on a full-time basis if she “did well” on the trial.
The subsequent actions of the parties were consistent with such an agreement. The deceased attended at the shearing shed where the respondent’s team was working on 8 June 2022. She and Joshua were driven there by the respondent and arrived between 7 am and 7.30 am, 7.30 am being the start time.[57] The deceased worked at the shearing shed for the period up to lunchtime. There is no suggestion that the deceased, prior to lunchtime, left the workplace or took breaks outside the regular breaks that applied to all workers at the site. The respondent referred to the regular breaks of 30 minutes for each of morning tea and afternoon smoko and one hour for lunch. The respondent said the deceased was “entitled to the same breaks as everybody else at the site”.[58] She worked under the respondent’s supervision. The respondent said the deceased “was to be paid for her work experience however we never got that far”.[59]
[57] Respondent’s statement, 6/7/22, Reply, p 19, [61]–[62].
[58] Respondent’s statement, 6/7/22, ARD, p 8, [32].
[59] Respondent’s statement, 6/7/22, ARD, p 7, [20].
Joshua’s evidence is not challenged as being inaccurate. The contract at issue was oral. It is consistent with the passages from Personnel Contracting quoted at [35] above that there can be recourse to the conduct of the parties in considering whether a contract was formed, when, and the contractual terms that were agreed. The conduct of the parties on 8 June 2022 was consistent with the existence of a contract, formed on 3 June 2022, as described in Joshua’s statement. At first instance the appellant’s case was put in the following way:
“In terms of the formation of the contract member, what we have is on 3 June, 2022 an offer by the respondent for [the deceased] to work for him and an acceptance on that same day for that to occur. They are the first two elements of the contract. Work started on 8 June, 2022 and there was an obligation on the part of [the deceased] to work that day and in consideration for that work the respondent was to pay [the deceased] at the rate of $45 per run or approximately $180 for the day. We say that that is a consideration element of the contract.
The fourth element is that of the intention to create legal relations. We say that’s evidenced by a number matters. The first is the intent or the view formed by the respondent on the 2 June, 2022. That is the evidence at paragraph 16 of the statement, namely that he needed additional workers to keep up with his business demands. So he formed a view that he needed to employ additional staff.
The second factor we say that shows the intention, is the agreement to pay remuneration to [the deceased] in the form of $45 per run.
The third piece of evidence that we say [evidences the intention] is the consideration to pay [the deceased] above the award rate. That demonstrates an understanding that [the deceased] at that point in time was covered by the award and therefore an employee under the award and therefore there was an intention to create the employment contract.
The fourth matter that we say evidences the intention is the fact that [the deceased] was a subject to the same conditions as all of the other workers onsite that day.”[60]
[60] T 4.22–5.21.
On this appeal, the appellant submits that on 8 June 2022 the respondent provided work and the deceased commenced work. It submits this established the necessary intention to enter legal relations to form a contract for “at a minimum short term casual employment”.[61]
[61] Appellant’s submissions, [17].
The reasons did not deal with the proposition that there was a discrete contract that governed the obligations of the parties on 8 June 2022. The reasons specifically rejected the proposition that the offer of a work trial involved an intention to create legal relations. I note the plurality in Dietrich v Dare said, of a contract of service, 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.” The appellant specifically submits, on Ground No. 1, that it was erroneous to assume the agreement was for future work, ignoring the short-term casual work undertaken by the deceased on 8 June 2022 before her fatal injury.
The Senior Member made findings regarding the arrangement between the deceased and the respondent as at 8 June 2022. At [101] to [104] of the reasons it was stated:
“101. There was no obligation on the deceased to perform the work of a shedhand/roustabout, or any work at all. Had she decided, once the tasks expected of her were explained, or at any time before, that she did not want to proceed, or did not want to complete the day’s work, she was not obliged to do so. She could have left the worksite at any time.
102. Similarly, had the respondent changed his mind about giving the deceased a work trial, there would have been no obligation on him to proceed with it. I place no weight on the fact that he gave the deceased a lift to the worksite. That is an entirely neutral matter.
103. I do not accept that there was any intention to create legal relations when the deceased was offered a work trial. The respondent did not know whether the deceased had any aptitude for the work. He ‘did not know how she would go’. As it transpired, she performed well, and he had planned to offer her full-time work, which she would not have been obliged to accept. That offer was, of course, never made.
104. As the respondent submitted, legal relations giving rise to a contract of employment would not have been created unless and until the work trial had been successful for both parties, and they agreed to enter into a contract of employment. Until that happened, there was no contract of employment. There was no mutuality of obligation.”
The findings at [101] to [102] reflect the Senior Member’s acceptance of the respondent’s argument that there was no contract of employment in place, due to the asserted absence of an intention to enter legal relations. They do not reflect the evidence regarding what was said or done by the respondent and the deceased on 3 and 8 June 2022. They are inconsistent with what transpired in the workplace on 8 June 2022 (see [45] above). The respondent actually drove the deceased (and Joshua) to the worksite for a 7.30 am start that morning. On the respondent’s evidence, the deceased worked under his supervision during the morning. She took the same regular work breaks as other workers. She did “really well” in performance of the duties.
The reasoning at [103] to [104] goes to whether there was an intention to enter legal relations, on the part of the deceased and the respondent, following a successful work trial. It refers to the respondent’s intention to “offer her full-time work” (which, of course, did not occur due to the fatal accident). An offer following a successful work trial could only have been made after such a trial. It is inherent in the reasoning that the focus on whether there was a contract of employment was not directed to the status of the parties’ relationship on 8 June 2022, which was the basis on which the appellant’s case was run. This involved error.
The appellant submits that, when the deceased commenced work on 8 June 2022, the parties had the necessary intention to form a contract. I accept this submission. It is consistent with the existence of a contract as discussed at [43] to [46] above. It is inherent in this finding that Ground No. 1 succeeds. The outcome is that the deceased was a ‘worker’ at the time she suffered her fatal injury on 8 June 2022. The appeal succeeds.
Ground No. 2 can be dealt with briefly in the circumstances. It challenges the finding of the Senior Member that the circumstances in the current matter were “analogous” to those in Dietrich v Dare. I accept that there was significant factual distinction between the two cases. There are bases on which the factual position in the current matter can be distinguished from that in Dietrich v Dare.
(a) In Dietrich v Dare the putative employer, Mr Dare, did not need to have his house painted, this being the relevant activity to potentially be undertaken by Mr Dietrich. The plurality said that the respondent “did not receive any assurance of benefit to which the payment of money could be related.”[62] Their Honours said “… in the present case we cannot discover an obligation on the appellant to perform any work at all.”
In the current matter, the respondent needed workers and raised with the deceased the question of whether she was interested in working with him. There was a genuine need on the respondent’s part, in his business operations, to engage employees as he was “getting very busy”. On 8 June 2022, the day the deceased worked, there were a number of shedhands performing different aspects of the roustabout/shedhand job – wool rolling, sweeping and picking up the fleece. The deceased predominantly performed the wool rolling task.[63] Unlike Dietrich v Dare, the work performed was real work which, from the respondent’s perspective, needed to be performed.
(b) In Dietrich v Dare the payment rate was $2.00 per hour, said to be “below the accepted rate for a carpenter [sic]”. The appellant in that matter said “I would have been prepared to accept anything at all”.[64] The plurality stated that if the trial had “proceeded to a satisfactory conclusion”, a contract would have emerged, including “provision for a realistic rate of remuneration”.[65] It is inherent in this that the rate discussed in connection with the trial in that case was unrealistically low. This is consistent with the fact that the work trial involved activity which was not of value to Mr Dare. In the current matter, the respondent was to pay the deceased $180 gross per day, which exceeded the Award rate for someone of the deceased’s age and experience.[66] It represented a realistic rate of remuneration for real work.
(c) In Dietrich v Dare Mr Dietrich suffered from a physical disability which made him “shaky or twisty, shoulders moving and general inability to keep still”. He also had a “problem with alcohol”. Mr Dietrich wished to “straighten himself out” and “upgrade his circumstances”. He was introduced to Mr Dare by the manager of a hostel, who wanted to see “if any work could be found for him”. Mr Dare’s motivation appears to have been charitable. In the current matter, the respondent was seeking to recruit workers for his shearing team because he had become “very busy”. The respondent in the current matter was seeking to recruit workers because his business needed them.
[62] Dietrich v Dare, 390G.
[63] Respondent’s statement, 6/7/22, Reply, pp 7–8, [26]–[29].
[64] Dietrich v Dare, 389C–E.
[65] Dietrich v Dare, 390F.
[66] Respondent’s statement 6/7/22, Reply, p 7, [20]–[21].
I accept the appellant’s submission going to Ground No. 2. The finding that the deceased’s circumstances in the current matter were analogous to those in Dietrich v Dare was, in my view, erroneous. The differences identified in the preceding paragraph relate to matters that were relevant to whether there was an intention to enter legal relations. Ground No. 2 is upheld.
CONCLUSION
The appeal is upheld.
The respondent’s challenge to a finding that the deceased was a ‘worker’ was based solely on the argument that there was not an intention to enter into legal relations, having regard to the decision of Dietrich v Dare. There is a finding that the deceased was a ‘worker’ in the employ of the respondent when she sustained the employment injury on 8 June 2022 which resulted in her death. The effect of this finding is that the appellant’s case succeeds.
DECISION
The Certificate of Determination dated 23 February 2024 is revoked.
The matter is remitted to a different non-presidential member to deal with any outstanding matters consistent with these reasons. I note the issue of interest remains outstanding. There may be sums that are recoverable pursuant to s 26 of the 1987 Act in respect of funeral expenses. It will be necessary for orders to be made regarding dependency.
Michael Snell
DEPUTY PRESIDENT
23 January 2025
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