Severino v Tsaousidis
[2018] VMC 2
•26 FEBRUARY 2018
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.G10651924
| RUI LUIS CARRASCALAO SEVERINO | Plaintiff |
| v | |
| MICHAEL TSAOUSIDIS | Defendant |
---
MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 29 & 30 JANUARY & 1 FEBRUARY 2018 – (Written Submissions Filed on 9 February 2018) |
DATE OF DECISION: | 26 FEBRUARY 2018 |
CASE MAY BE CITED AS: | SEVERINO V TSAOUSIDIS |
MEDIUM NEUTRAL CITATION: | [2018] VMC002 |
REASONS FOR DECISION
---
Catchwords: whether plaintiff a ‘worker’ pursuant to s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 – credibility of witnesses in issue.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Zaparas Lawyers |
| For the Defendant | Mr Seeman | Russell Kennedy |
HIS HONOUR:
1 Mr Severino is aged 45 years and sustained back injuries on 20 October 2015 which rendered him incapacitated for employment until 1 March 2016. He alleges that on 20 October 2015, he was employed by the defendant and was tasked with securing corrugated roofing on a building on the defendant’s property at Bass Highway, Corinella. He gave evidence that as he stepped onto a ladder to get off the roof, the ladder slipped causing him to fall a distance of approximately 3 metres onto timber decking.
2 The defendant denies that Mr Severino is a ‘worker’ within the meaning of the Act and in the alternative contends that if he is a ‘worker’, he was not employed by the defendant on the day in question and therefore he did not sustain an injury which arose out of or in the course of his employment.
3 Mr Severino gave evidence as did Ms Chester, a paramedic employed by Ambulance Victoria, who attended the scene of the incident on 20 October 2015. Mr Tsaousidis gave evidence denying that he employed Mr Severino. The court also heard evidence from Mr Johns who Mr Severino alleged was working with him on 20 October 2015. The parties tendered numerous documents, medical reports and photos of the building where the incident occurred and written submissions were filed.
4 Mr Severino gave evidence that he has worked in the horse racing industry over many years at various horse racing stables in Victoria, New South Wales, South Australia and the Northern Territory. He admitted to being banned as a horse trainer in the Northern Territory for a period of 12 months in 2009 as a result of race fixing. He said that he then moved overseas before returning to Australia in late 2013 where he once again obtained employment in a number of horse racing stables until September 2015.
5 Mr Severino gave evidence that he then had difficulty finding work but as the racing industry is a ‘tight knit’ community, he approached the defendant in early October 2015 as he knew that he was involved in the industry and had properties at Corinella, close to where he lived. He told the court that the defendant offered him work performing various odd jobs on the three properties he owned. He said this work included; mowing lawns, fixing fencing, collecting rubbish, burning material and securing roofing on a building on the defendant’s property at Bass Highway, Corinella. He said that he had registered as being unemployed with Centrelink and provided them with details of earnings he received. A Centrelink Consumer Record dated 11 January 2018 was tendered which recorded that he was employed by Michael Tsafoudis and received $550 on 5 October 2015.
6 Mr Severino told the court that the defendant offered him $50 cash for a half days work and $100 cash for a full day’s work. He said that the defendant would either ring him or speak to him in person each time he wanted him to work the following day. He gave evidence that he was required to put 5000 screws into the existing roof iron on the building over a period of 3-5 days. He said that initially he and another person, whose name he could not recall, performed the job on the first day, that he did it on his own on the second day and that he and Andrew Johns worked on the roof on 20 October.
7 Mr Severino gave evidence that the defendant provided all of the equipment that he worked with which included; screws, hammers, drills, line strings and the ladder from which he fell. He said that prior to performing the job the defendant showed him how he wanted the job done and that prior to commencing that task, Mr Tsaousidis, Mr Johns and he cleaned the inside of the building.
8 He told the court that on 20 October at approximately 9.50 a.m., as he stepped on to the ladder to get off the roof, the ladder slipped causing him to fall a distance of approximately 3 metres onto the timber decking below. He told the court that he was transported by Ambulance to the Dandenong Hospital where he remained as an inpatient for 6 days and was then transferred to the Kingston Rehabilitation Centre where he remained for a number of weeks. He gave evidence that he moved overseas in March 2016 and was unable to work as a result of the back injury sustained in the fall between 20 October 2015 and 1 March 2016.
9 During cross examination, Mr Severino told the court that he worked for the defendant for a period of approximately 7-11 days, some of which were half days. He estimated that he earnt approximately $1,000 in wages over this period. He agreed that one of the tasks he performed was clearing blueberry bushes with Adam Mitchell.
10 He agreed that he could have ceased working with the defendant at any time and also agreed that his arrangement with the defendant was on a ‘day to day’ basis. He disputed that he was not asked by Mr Tsaousidis to work on 20 October 2015 and disputed that the only reason he was present on the day was to accompany Mr Johns who attended for the purposes of inspecting a slasher that was in need of repair.
11 Mr Severino denied that in February or March 2017 he offered Mr Johns 30% of any WorkCover benefit he received in exchange for providing a ‘favourable’ statement on his behalf. He told the court that he left Australia in early February that year and had no contact with Mr Johns at that time. A poor copy of what is suggested to be extracts from his Passport was attached to written submissions filed with the court and appears to indicate that he was in China on 12 February 2017.
12 Ms Chester, a Paramedic, gave evidence that she attended the property on 20 October 2015 and observed Mr Severino laying on his back or side on a deck and was told by others in attendance that he had fallen when the ladder gave way. She was also told that they were trying to contact his “boss”. She could not recall whether it was Mr Severino or one of the others in attendance who told her that he was injured whilst “working”.
13 Mr Tsaousidis gave evidence that he owns five properties including; a 5 acre industrial site at Officer, a 160 acre farm at Bass, a 120 acre cattle farm at Bass, a 40 acre farm that he purchased from Adam Mitchell and a 59 acre property, where the incident occurred which was previously used as an Amusement Park. He told the court that he first met Mr Severino 3-4 years ago. He told the court that on 20 October 2015, he did not know why Mr Severino was on his property but was later told by Mr Johns that Mr Severino was with him when he attended to inspect a slasher at Mr Tsaousidis request. He told the court that Mr Johns had also told him that both he and Mr Severino got on the roof of the building to look at the work Mr Tsaousidis had done on it the day before. Mr Tsaousidis gave evidence that he was the only person who worked on the roof and he performed that task over a 3 day period. He told the court that Mr Severino did help Adam Mitchell clean up his property where he allowed Mr Mitchell to reside but that was a private arrangement between them as ‘mates’. He gave evidence that he received a telephone call from Mr Severino on 20 October telling him that he had fallen off a ladder. Mr Tsaousidis said that he asked him why he was on the ladder but Mr Severino did not respond and when he subsequently attended the property Mr Severino said to him; “will you look after me?” Mr Tsaousidis told the court he did not know what Mr Severino meant by this.
14 In cross examination, he agreed that all of his properties require ongoing maintenance some of which he does himself and that he also gets others to help. He agreed that he said to a WorkCover investigator on 17 November 2015: “for some reason Mr Johns climbed up a ladder on my house”. When questioned as to what reason Mr Johns gave for climbing up the ladder, Mr Tsaousidis said that he told him that he wanted to “see how many screws I had put in”. When told that he had said to the Investigator on 17 November; “I do not know why Andrew would have climbed up the ladder or why Rui would have then followed him up the ladder”, Mr Tsaousidis replied by telling the court that Mr Johns had told him the reason after he had made the statement to the Investigator. He denied that he employed either Mr Severino or Mr Johns to work on the roof of the building on his property.
15 Mr Johns gave evidence after a Warrant of Apprehension was executed following his failure to answer a Subpoena. An Affidavit sworn by him and prepared by the defendant’s lawyers dated 7 April 2017 was tendered. He told the court that he has known Mr Severino and Mr Tsaousidis for approximately two years. He said that he attended the defendant’s property on 20 October 2015 as the defendant had asked him the day before to inspect a slasher to see whether he could fix it. He told the court that Mr Severino drove him to the property as he was unlicensed. He said that he decided to have a look at the roof of the building as he knew that Mr Tsaousidis had been working on it. He told the court that Mr Severino followed him up the ladder onto the roof and then he heard the ladder fall and observed Mr Severino lying on the deck below complaining of back pain. Mr Johns gave evidence that Mr Severino rang an ambulance and he rang Mr Tsaousidis who arrived approximately 15-20 minutes later.
16 Mr Johns told the court that neither he nor Mr Severino were employed to work for Mr Tsaousidis that day. He said he only attended for the purposes of inspecting the slasher and Mr Severino attended because he asked him to drive him. He also told the court that he, Mr Severino and Adam Mitchell had cleaned up the property in the weeks prior to 20 October on the understanding that they could stay on the property. He said that they were not paid by Mr Tsaousidis for the work they had done.
17 Mr Johns gave evidence that in February or March 2017 Mr Severino asked him to make a statement “in his favour” and in return he would give him “30% of any payment”. He told the court he immediately declined the offer but later he had considered “helping him” as he had a disagreement with Mr Tsaousidis and was upset with him. He said he had also become upset with Mr Severino’s lawyers who had planned to visit him and obtain a statement but they had gone to his old address at his parents’ place which he believed indicated that they were unprofessional.
18 During cross examination, Mr Johns told the court that Mr Tsaousidis arranged for him to look at the slasher because Mr Tsaousidis was not competent in mechanical matters or when using tools. He agreed that he was contacted by Mr Severino’s lawyer, Mr Hatzis, on 5 January 2017, for the purposes of making a statement and they had a discussion for approximately 20 minutes. He agreed that at the conclusion of the phone discussion arrangements were made for him to sign a statement. He agreed that he made no mention in that telephone discussion of any incentive offered by Mr Severino to provide false evidence. Mr Johns told the court that he did not mention it because it had not yet happened. He also agreed that he told Mr Hatzis that both he and Mr Severino were working for Mr Tsaousidis on the day in question. Mr Johns confirmed that he rang Mr Hatzis on 6 January 2017 and told him he would no longer make a statement because he was angry that he had attended his parents’ house.
19 Mr Johns disputed the suggestion that both he and Mr Severino were working on the roof on 20 October and they were paid ‘cash in hand’ for that work. He admitted that he has a past criminal history dating back to 1992 which has included dishonesty offences, breaching court orders and driving offences. He denied that he has given false evidence to the court or that his oral statement to Mr Hatzis was truthful. He also said that he has no reason to lie for either Mr Severino or Mr Tsaousidis.
Medical Evidence
20 A medical report of Dr Lee from the Wonthaggi Medical Group dated 18 January 2016 indicates that Mr Severino sustained fractures at L3/4 and possibly L5 as a consequence of the fall on 20 October 2015. Dr Lee considered Mr Severino to be unfit for all work at that stage but would be fit for light duties.
21 Mr Dooley, Orthopaedic Surgeon, assessed Mr Severino on 24 October 2016 on behalf of the defendant’s lawyers. He noted the results of the CT Scan referred to by Dr Lee and also noted that Mr Severino was continuing to complain of intermittent lumbar spine pain. He opined that he was fit to continue his normal occupation as a horse trainer in Inner Mongolia and that he did not require ongoing orthopaedic treatment.
Conclusion
22 The issue for determination is whether or not Mr Severino is a ‘worker’ within the meaning of s 3 of the Act. This requires findings as to fact and law.
23 It is not in dispute that he sustained a back injury on 20 October 2015 in the manner alleged which resulted in incapacity for employment.
24 The factual issue involves a determination as to whose evidence I should accept as being truthful. This task is made more difficult by the fact that the evidence revealed that both Mr Severino and Mr Johns have a past history of dishonesty and Mr Johns has not only provided differing accounts of what occurred but also attempted to avoid his obligation to give evidence at the hearing. Ultimately, the court must decide the factual dispute on the evidence presented as to whether to accept the version of events as given by Mr Severino or that given by both Mr Tsaousidis and Mr Johns bearing in mind that ultimately the burden of proof lies with Mr Severino.
25 After considering the evidence presented and the demeanour of the witnesses when giving evidence, I have determined that the evidence given by Mr Severino has ‘a ring of truth’ about it. I make this finding for the following reasons:
a. Mr Severino has given a consistent account of what occurred by reference to the WorkCover Claim Form lodged by him and dated 28 October 2015, 8 days after the event, the history given to Dr Lee on 25 November 2015 and to Mr Dooley on 24 October 2016 and his evidence in court;
b. The evidence of Ms Chester that she was told that he was injured whilst ‘working’ and that they were trying to contact his ‘boss’;
c. The evidence of Mr Tsaousidis that when he attended the property Mr Severino said to him; “will you look after me?” There would be no basis for this question other than Mr Severino believing that Mr Tsaousidis was accountable for what had occurred;
d. The asserted disclosure by Mr Severino to Centrelink that he received $550 on 5 October 2015 from his employer, ‘Michael Tsafoudis’. Whilst I am unable to make findings as to the date of disclosure of the alleged earnings from the document itself, I am prepared to accept his evidence as being truthful that the disclosure was made in October 2015. Accepting the truthfulness of his evidence, it appears to me that it would be against his interests to do so at that time, if in fact he did not receive that income;
e. The failure of Mr Tsaousidis to disclose in his statement to the WorkCover Investigator on 17 November 2015 that he had worked on the roof over the 3 days prior to the incident and his assertion that he had no idea why either Mr Johns or Mr Severino would have climbed the ladder onto the roof. His failure to mention that fact to the Investigator and his denial of knowing why they got onto the roof is implausible given that Mr Johns told the court that he was aware that Mr Tsaousidis had been working on the roof;
f. Despite the denials of Mr Johns and Mr Tsaousidis, it is more likely than not that it was Mr Johns and Mr Severino who performed the roofing work having regards to; Mr Tsaousidis age, Mr Johns past experience as a roof tiler as stated by him in his Affidavit dated 7 April 2017, and, that it is more likely than not that Mr Tsaousidis would engage others to do maintenance work and other tasks on the 4 large rural properties he owns than performing them himself particularly if he is not very competent with tools and equipment;
g. It is implausible that Mr Tsaousidis relied on the generosity of family or friends to perform all of the maintenance work on his 4 rural properties without paying others to assist from time to time;
h. I find that Mr Johns was not a credible and honest witness. He initially supported Mr Severino’s version when interviewed by Mr Hatzis on 5 January 2017. He then refused to confirm this version by signing a written statement because he became upset with Mr Hatzis over what he considered was his unprofessional conduct in attending his parents’ house to sign his statement. According to the evidence he had no incentive to lie for Mr Severino at that time because the ‘alleged bribe’ did not occur until February or March 2017. His explanation for being prepared to lie at that time was due to a ‘disagreement’ he had with Mr Tsaousidis. He did not provide any detail of that ‘disagreement’. He then provided a different version of what occurred and made a serious allegation of bribery against Mr Severino in his Affidavit on 7 April 2017 which he repeated in his evidence to the court. A person who is prepared to lie and who admits to doing so to suit his or her particular circumstances at the time has no credibility. Additionally, he has a past criminal history of dishonesty which included the use of counterfeit currency.
i. Furthermore, Mr Johns attempted to avoid answering a Subpoena to give evidence. The court was informed that arrangements were made for him to attend and give evidence on 30 January. He failed to appear and his attendance on 1 February only occurred after a Warrant of Apprehension was issued and executed on 31 January with him being bailed to appear on 1 February. His explanation to the court that he failed to attend because he had ‘family issues’ and ‘other things on his mind’ is not accepted by me as truthful. He is a witness without credit and whose evidence I place no weight.
j. Despite the submission by the defendant, I do not draw any adverse inference against Mr Severino for his failure to call Adam Mitchell to give evidence. Mr Mitchell may have confirmed that Mr Severino was paid by Mr Tsaousidis or that he was not paid or he may have had no knowledge whatsoever of any ‘agreement’ between them.
26 Having accepted the evidence of Mr Severino that he was paid cash by Mr Tsaousidis to perform tasks on his property which included his attendance on 20 October 2015 to attach the roof sheeting, the next issue to determine is whether the circumstances of their arrangement is sufficient to amount to Mr Severino being classified as a ‘worker’ in accordance with s 3 of the Act.
27 Mr Severino submitted that he meets the statutory definition of a ‘worker’ as defined in s 3(1) of the Act on the basis that:
a. He entered into a casual employment agreement with the defendant in early October 2015;
b. The terms of the agreement were that he would provide his labour at the request of the defendant and in return he would be paid $50 per half day and $100 for a full day, being up to 8 hours;
c. In the 3 days leading up to 20 October 2015 he was directed by the defendant to fit corrugated iron sheets to the roof of a building situated on the defendant’s property;
d. The defendant provided all the necessary equipment required to perform the task which included; drills, roofing screws, line strings and a ladder; and
e. The defendant directed him as to how he wanted the job performed.
28 The defendant submitted that even if the court accepts the evidence of Mr Severino, he does not meet the statutory definition of a ‘worker’ under the Act. The defendant submitted that:
a. The parties had no obligation to each other as Mr Severino could have ceased work at any time of his own choosing and therefore did not regard himself as an employee;
b. The defendant exercised very little control over the way in which the task was to be completed;
c. The defendant did not direct him in relation to the hours worked or task at hand;
d. Any arrangement was ad hoc and only required unskilled tasks to be performed;
e. There was no obligation for Mr Severino to work at all;
f. There was no arrangement between them as to an hourly rate, invoices provided or other documentation regarding payment, no tax deducted, superannuation arrangement, leave entitlements or payroll records;
g. There was no regularity of work or set hours of work and Mr Severino could come and go as he pleased;
h. There was no intention by either party to engage in or enter into an employment relationship.
29 The most relevant case law to assist in determining whether Mr Severino is a ‘worker’ within the meaning of the Act are Hollis v Vabu Pty Ltd[1] and Elazac Pty Ltd v Shirreff[2]. At paragraph 30 in Elazac, the Court of Appeal said; Whilst earlier authorities often regarded ‘control’ as the determinative factor in deciding whether someone was an employee or an independent contractor, later authorities have recognised that control (or, more particularly, the right to exercise control) is only one of a number of possibly relevant factors (albeit an important one) in determining the issue. Modern authority is to the effect that it is the totality of the relationship between the parties which must be considered. Relevant factors in determining the nature of the relationship between a person who engages another to perform work and the person so engaged include:
[1] [2001] HCA 44.
[2] [2011] VSCA 405.
(a) the degree of control which the former can exercise over the latter;
(b) whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c) whether or not the person engaged can set their own hours of work;
(d) the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
(e) whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f) whether or not the person engaged employs employees and/or conducts his business in partnership;
(g) whether or not there is a power to delegate (send someone else to perform the work); and
(h) whether or not the person engaged considered the relationship as one of independent contractor.
30 After considering the various factors set out in Elazac and after taking into account what was said in Hollis leads me to the conclusion that Mr Severino is a ‘worker’ within the meaning of the Act and is therefore entitled to compensation as a result of the injuries sustained on 20 October 2015.
31 In relation to the issue of control as set out in factor (a) in Elazac, I have noted that Mr Severino gave evidence that the defendant showed him how he wanted the roof iron to be secured. He was therefore under the control of Mr Tsaousidis in relation to the work method. There was also an element of control exercised by Mr Tsaousidis as to if and when he wanted Mr Severino to work, what tasks he wanted him to perform and the amount he would be paid for the services he provided.
32 In relation to factor (b), Mr Severino was providing his personal services to the defendant and all the necessary equipment and tools to perform the task were supplied by Mr Tsaousidis.
33 In relation to factor (c), the nature of engagement did not require identified or regular hours of work. The relationship was akin to Mr Severino being a casual employee who did not have set or established hours of work, but who was ‘on-call’. The existence of flexibility is not inconsistent with the relationship being one of employer/employee, particularly in circumstances where it is an ‘on-call’ situation. The important factor is that Mr Severino was available to perform the task required when he was requested to do so by the Mr Tsaousidis. The fact that he could have ceased work at any time of his choosing does not detract from there being an employee/employer relationship, particularly in circumstances where he would first notify Mr Tsaousidis if he was going to cease work as stated by him during the evidence he gave to the court.
34 In relation to factor (d), Mr Severino was paid according to the hours he worked, not his output or production.
35 In relation to factor (e), the absence of income tax deductions, superannuation entitlement, holiday pay and ‘normal’ employee entitlements is not conclusive to determine that an employee/employer relationship did not exist.
36 In relation to factor (f), the evidence did not disclose that Mr Severino engaged or employed others or that he had a partnership arrangement.
37 In relation to factor (g), there was no evidence that Mr Severino had any power to delegate.
38 In relation to factor (h), it appeared that Mr Severino considered the relationship to be one of employee/employer by virtue of the evidence he gave that if he chose to stop working he would first notify Mr Tsaousidis and when injured he immediately sought an assurance from Mr Tsaousidis that he would be “looked after”. Objectively, it would appear that he considered the relationship to be one of employer/employee.
39 On balance, after considering the totality of the relationship between Mr Severino and Mr Tsaousidis, I am of the opinion that Mr Severino is a ‘worker’ pursuant to s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 and is entitled to compensation as a result of the injury sustained by him on 20 October 2015.
0
2
0