Ribeiro v Elmir Transport Pty Ltd - [2022] NSWPIC 464

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ribeiro v Elmir Transport Pty Ltd [2022] NSWPIC 464
APPLICANT:	Leonardo Jose Mariano Ribeiro
RESPONDENT:	Elmir Transport Pty Limited
Member:	Carolyn Rimmer
DATE OF DECISION:	19 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and section 60 expenses of the Workplace Injury Management and Workers Compensation Act1998; whether applicant was a worker or deemed worker; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, ZG Operations Australia Pty Ltd v Jamsek considered; in the absence of a written contract; consideration of the indicia of employment remains relevant; Held – applicant was neither a worker nor a deemed worker; award for the respondent.
determinations made:	The Commission determines: FINDING 1. The applicant has not discharged the onus of proof in relation to establishing that he was a worker or deemed worker. ORDERS 1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

On 30 September 2022, Leornado Jose Mariano Ribeiro (the applicant) lodged an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (the Commission). It is alleged that the applicant’s employer at the relevant time was Elmir Transport Pty Ltd (the respondent). The respondent’s workers compensation insurer at the relevant time was Employers Mutual Limited (the insurer).
The applicant alleged that on 5 July 2021 he fell from a truck owned by the respondent at a rubbish tip in Glenfield and suffered injury to his right leg. The applicant alleges that he was employed by the respondent as a worker or deemed worker.
The applicant notified the respondent of the injury and made a claim for compensation on the insurer as required.
The insurer in a letter dated 21 July 2021 provided the applicant with an injury management plan.
On 19 August 2021, the insurer issued a s 78 notice declining liability for the applicant’s claim for right revision anterior cruciate ligament reconstruction.
On 23 September 2021, the insurer issued a s 78 notice disputing the applicant’s entitlement to compensation for his injury on 5 July 2021. The insurer declined liability on the basis that the applicant was not a worker nor a deemed worker pursuant to the workers compensation legislation.
On 31 January 2022, the insurer issued a review notice maintaining the decision of the insurer dated 23 September 2021. The claim was declined on the basis that the applicant was not a worker as defined in s 4 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) and was not a deemed worker as defined in cls 1-19 of Schedule 1 of the 1998 Act.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration through a video platform, Teams, on 20 April 2022. The proceedings were sound recorded and a copy of the recording is available to the parties. The applicant was represented by Mr Phillip Perry, who was instructed by Mr David Pena of Sinclair of Colin Daly Quinn, Solicitors. The respondent was represented…

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.

Keep reading for free

Create a free CaseChat account to read Ribeiro v Elmir Transport Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWPIC 464
Decision Date: 19 August 2022

CaseChat Overview and Summary

The parties involved in the case were Ribeiro, the applicant, and Elmir Transport Pty Ltd, the respondent. The dispute centred around a claim by Ribeiro for weekly benefits and section 60 expenses under the Workplace Injury Management and Workers Compensation Act 1998. The primary issue the court needed to resolve was whether Ribeiro was considered a worker or a deemed worker under the Act, given the absence of a written contract between the parties. The court considered the case of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd and ZG Operations Australia Pty Ltd v Jamsek to determine the relevant criteria for classifying employment.

In its reasoning, the court noted that while the absence of a written contract complicated the classification of Ribeiro's status, the traditional indicia of employment were still pertinent. These factors included the nature of the work performed, the degree of control exerted by the respondent over the work, and the economic reality of the relationship. The court found that Ribeiro did not meet the criteria to be considered a worker or a deemed worker under the Act. Consequently, the court dismissed Ribeiro's claim, awarding the costs of the proceeding to Elmir Transport Pty Ltd.

The final orders of the court were clear and definitive: Ribeiro's claim for weekly benefits and section 60 expenses was dismissed. Additionally, the court ordered that Elmir Transport Pty Ltd recover its costs from Ribeiro. This outcome underscores the importance of establishing clear contractual relationships in employment arrangements, particularly in the context of workers' compensation claims.

Orders