Sandra Eldridge v Kemblawarra Child and Family Centre

[1999] NSWCA 395

CITATION:	Sandra Eldridge v Kemblawarra Child and Family Centre [1999] NSWCA 395
FILE NUMBER(S):	CA 40775/98
HEARING DATE(S):	14/9/99
JUDGMENT DATE:	28 October 1999
PARTIES :	Sandra Eldridge v Kemblawarra Child and Family Centre
JUDGMENT OF:	Meagher JA at 1; Sheller JA at 14; Fitzgerald JA at 15

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	14008/97
LOWER COURT JUDICIAL OFFICER:	Moran CCJ

COUNSEL:	Appellant: J.D. Hislop QC\ G.R. Graham Respondent: A .Katzman S.C.
SOLICITORS:	Appellant: Rishworth Dodd & Co. Respondent: Hickson Wisewoulds
CATCHWORDS:	Employment contract- whether employee or volunteer - Workers Compensation Act 1926
ACTS CITED:	Workers Compensation Act 1926
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40775/98

MEAGHER JA

SHELLER JA

FITZGERALD JA

Thursday, 28 October 1999

Sandra ELDRIDGE v KEMBLAWARRA CHILD AND FAMILY CENTRE

EMPLOYMENT CONTRACT-WHETHER EMPLOYEE OR VOLUNTEER-WORKERS COMPENSATION ACT 1926

The appellant had been employed by the respondent for several years. The nature of employment tended to be sporadic as the respondent centre suffered from continuing financial crises.
The appellant rejoined the respondent centre as a casual employee in July 1995. In October 1995 a new director was appointed to the centre. The appellant then ceased working for the centre, but recommenced employment in June 1996. In August 1996 the centre suffered a funding crisis and could no longer afford to pay the appellant. The appellant continued to offer her services to the centre. After some lengthy negotiations the respondent wrote to the appellant offering her employment for a 12 month period to commence on 13 January 1997.
On 26 November 1996 the appellant was playing “chasings” at the centre when a child collided with her and she injured her back.
The appellant claimed under the Worker’s Compensation Act. This was contested, the centre arguing that at the time of the accident the appellant was not an employee but a volunteer. The trial judge found in favour of the respondents.
On appeal the appellant argued that the circumstances surrounding the centre’s financial position meant that fully employed staff would often be required to work without pay. A valid employment contract could therefore be inferred from her being at the centre.
Held:. The trial judge’s decision was based on the factual (not legal) evidence before him and so was non-appellable.
The court found there had been no intention of either party to enter legal relations at the end of 1996. The contract was due to begin in early 1997 so at the time of the accident the appellant was only a volunteer at the centre.

ORDER

1. Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA: 40775/98

MEAGHER JA

SHELLER JA

FITZGERALD JA

Thursday, 28 October 1999

Sandra ELDRIDGE v KEMBLAWARRA CHILD AND FAMILY CENTRE

JUDGMENT

1   MEAGHER JA: The appellant, Miss Eldridge, appeals against a judgment of Moran CCJ dismissing her application for an award. 2   The facts are more than a little unusual. Miss Eldridge was a teacher, apparently specialising in kindergarten and pre-kindergarten teaching. She obtained her graduate diploma in Melbourne in 1977. In 1985 she was appointed as the Director of the Respondent. She held that position for a year or so. She then left, and was self-employed between 1987 and July 1995. At that time, she returned to employment with the respondent on a casual basis. A new director (Mrs Rawlings) was appointed in October 1995. Miss Eldridge gave up working for the respondent in March 1996, but in June 1996 she recommenced working for the respondent. On 20 December 1996 the Respondent wrote to her offering a 12 month contract commencing 13 January 1997. Negotiations as to the terms of that contract had been proceeding for some time. 3   On 26 November 1996 she was injured whilst playing a game called “chasings” in the school playground. 4   The most striking thing about the respondent is that it was always in a state of financial turmoil. Its funding was always running out. To cope with this situation it either made it a term of its contracts with its employees that they work for certain periods without pay or it employed voluntary labour. 5   On about 30 August 1996 one such crisis occurred and its funding became exhausted. 6   Thereafter Miss Eldridge worked on a voluntary basis for the rest of the year. It was during this period that the accident occurred. 7   His Honour dismissed Miss Eldridge’s claim on the basis that she was, at the time of injury, a volunteer and not a worker. 8   Her case was that at some time, probably in June 1996, she contracted with Mrs Rawlings to work until the end of 1996 at the Respondent Centre, on pay if money were available, without pay if the money ran out. 9   The respondent’s case was presented in evidence by Mrs Rawlings, who said that there was a contract to work until the money ran out, but no other contract. 10   His Honour’s finding was thus on a question of fact, and even if perverse (which I do not think it was) is non-appellable. 11   An alternative submission for Miss Eldgridge, viz. that at some time after August 1996 there was an agreement between the parties that Miss Eldridge would work until the end of the year, and be paid if money were available. Reliance was placed on some scraps of evidence. For example, in the cross-examination of Mrs Rawlings, the following passage occurs:

“Q: She knew, you say, she was not going to get any money and you did not pay her any money.
“A: Yes, if we had the money we would have paid her.”

12   This alternative submission was also rejected by his Honour, who held that in the latter part of 1996 there was no intention in the parties to enter into legal relations. That is another finding of fact, and one fatal to the appellant’s case. 13   The appeal should be dismissed with costs. 14   SHELLER JA: I agree with Meagher JA. 15   FITZGERALD JA: This appeal was conducted on the basis that it was necessary for the appellant to prove that, at the time when she was injured, she was employed by the respondent under a contract of service and not working for the respondent as a “volunteer”. 16   The trial judge held that the appellant had failed to prove the contract which she alleged. 17   I agree with Meagher JA, for the reasons given by his Honour, that the appeal should be dismissed with costs.

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