Rahimi v MDS Tiling Pty Ltd - [2018] ACTIC 1

INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Rahimi v MDS Tiling Pty Ltd & Ors
Citation:	[2018] ACTIC 1
Hearing Dates:	9 and 10 April 2018
DecisionDate:	26 April 2018
Before:	Magistrate Theakston
Decision:	See [41]
Catchwords:	WORKERS COMPENSATION – choice of employer - Territory or State of connection – liability of principal for uninsured contractor’s injured worker
Legislation Cited:	Workers Compensation Act 1951 (ACT) ss 8, 11, 12, 13, 36B
Cases Cited:	Avon Products Pty Ltd v Falls [2009] ACTSC 141 Hanns v Greyhound Pioneer Pty Ltd [2006] ACTSC 5 Tapia v Woolworths Limited [2016] ACTSC 129 Workcover Authority of New South Wales v Billpat Holdings Pty Limited [1995] NSWSC 49 Yaraka Holdings Pty Ltd v Ante Giljevic [2006] ACTCA 6
Parties:	Nazir Rahimi (Applicant) MDS Tiling Pty Ltd (First Respondent) Chase Building Group (Canberra) Pty Limited (Second Respondent) Pamir Tiling Services Pty Ltd (Third Respondent) Employers Mutual NSW Limited (First Respondents Insurer)
Representation:	Counsel Mr A Muller (Applicant) Mr S Onitiri (First Respondent) Mr D Crowe (Second Respondent) Mr Y Qasemi (Director) (Third Respondent) Mr D Shillington (First Respondents Insurer)
Solicitors Slater + Gordon Lawyers (Applicant) HWL Ebsworth Lawyers (First Respondent) Bradley Allen Love Lawyers (Second Respondent) Self-Represented/Party in Person (Third Respondent) Hall & Wilcox (First Respondents Insurer)
File Number:	WC 318 of 2017

MAGISTRATE THEAKSTON:

Background

On 19 April 2016, the applicant was working on a building site at Kingston in the ACT. While mixing tiling adhesive, one of his trouser legs became entangled in the electric mixer. He attempted to remove his trousers from the device, but overbalanced and squeezed the trigger on the mixer. This caused his hand to become caught in the trouser material, which in turn causing a serious injury to his left thumb.

Consequently, the applicant applied for arbitration under the Workers Compensation Act 1951 (ACT) (‘the Act’).

A hearing was conducted to resolve a number of fundamental issues, namely:

(a)Was the applicant a worker for the purposes of the Act, and if so who was the applicant’s employer or contractor?
(b)Which jurisdiction is connected to the employment of the applicant?
(c)Is a principal contractor liable due to the applicant’s employer being uninsured?

Facts not in dispute

The following facts were not in issue and I make findings accordingly:

(a)In 1995, the applicant was born in Afghanistan. In 2013, he arrived in Australia as a recognised refugee without his immediate family.
(b)The applicant did not have any accredited employment skills. He had worked for three years, between the ages of 14 and 17, in Pakistan performing construction work. He had, and continues to have, limited English language skills.
(c)Mr Yazdan Qasemi was and remains the sole Director and Shareholder for Pamir Tiling Services Pty Ltd.
(d)Mr Medhat Eleisawy was and remains the sole Director and Shareholder for MDS Tiling Pty Ltd. MDS provides waterproofing, tiling and stone trade services to builders. Mr Robert Rae is employed by MDS as a project manager. His duties include running a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rahimi v MDS Tiling Pty Ltd

Details

AGLC: Rahimi v MDS Tiling Pty Ltd [2018] ACTIC 1
Case: [2018] ACTIC 1
Decision Date: 26 April 2018

CaseChat Overview and Summary

Nazir Rahimi, the applicant, brought an action against MDS Tiling Pty Ltd, Chase Building Group (Canberra) Pty Limited, Pamir Tiling Services Pty Ltd, and Employers Mutual NSW Limited, the insurer of MDS, seeking workers compensation for an injury sustained while working on a building site in Kingston, ACT. The key issues before the court were whether Rahimi was a worker for the purposes of the Workers Compensation Act 1951 (ACT), if so, who his employer or contractor was, which jurisdiction was connected to his employment, and if a principal contractor was liable due to his employer being uninsured.

The court found that Rahimi was indeed a worker under the Act, engaged in a contract of service with Pamir Tiling Services Pty Ltd, and not an employee of MDS Tiling Pty Ltd as he believed. The court determined that Pamir Tiling Services Pty Ltd was the applicant's employer, as he was engaged directly by Pamir and not by MDS. The Australian Capital Territory was found to be the Territory or State of connection for the applicant, as he usually worked in the ACT. Lastly, the court held that MDS Tiling Pty Ltd was liable to pay any compensation that it would have been liable to pay if the applicant had been employed by it, pursuant to s 13 of the Workers Compensation Act 1951 (ACT).

The court made the following declarations: (1) The applicant was a worker for the purposes of the Workers Compensation Act 1951 (ACT) and employed by Pamir Tiling Services Pty Ltd. (2) The Australian Capital Territory is the Territory or State of connection for the applicant. (3) MDS Tiling Pty Ltd is liable to pay to the applicant any compensation that it would have been liable to pay if the applicant had been employed by it.

Orders