Suke Group Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Suke Group Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 149
APPLICANT:	Suke Group Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Hea Young Kim
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application under section 145(3) in relation to whether Suke Group Pty Ltd is liable to reimburse the Workers Compensation Nominal Insurer for payments it made to or on behalf of Hea Young Kim as set out in the notice dated 7 September 2022; conflicting evidence as to the identity of the employer of Hea Young Kim; Ermogenous v Greek Orthodox Community of SA Inc and Shao Wen Zheng v Guo Yong Yang applied; Held – finding made that the applicant has established that it was not the employer of Hea Young Kim as at the date of injury.
DETERMINATIONS MADE:	The Commission determines: 1. The Workers Compensation Nominal Insurer is not entitled to seek reimbursement of the payments it made to or on behalf of Hea Young Kim as set out in its notice dated 7 September 2022 issued pursuant to s 145 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Suke Group Pty Ltd, was served with a notice dated 7 September 2022 by the Workers Compensation Nominal Insurer (WCNI) seeking reimbursement pursuant to s 145 of the Workers Compensation Act 1987 (the 1987 Act) of payments it made to or on behalf of Hea Young Kim in the amount of $39,486.12 in relation to injury allegedly sustained on 22 March 2022.
Ms Hea Young Kim alleges her employer was Suke Group Pty Ltd, a company that did not have a policy of workers compensation insurance at the time of her injury.
Suke Group Pty Ltd denies it was the employer of Ms Kim. It operates a shop in Oxford St Surry Hills which commenced operation on 17 March 2022. It was at these premises that
Ms Kim alleges she was injured.
ASIC documents reveal that Suke Group Pty Ltd had an active ABN since 15 October 2020 and that Mr Seung Jin Lee is the sole director, secretary and shareholder.[1]
[1] WCNI Reply p 117.
Mr Lee’s wife, Ms Mi Sun Yeo, at the same time operated a sushi and salad take-away shop at Olympic Park called Suke Olympic Park (also known as Fishwave). At all relevant times that business had a workers compensation policy, number 212115801.
Suke Group Pty Ltd through Mr Lee, together with Ms Yeo, assert that Ms Kim was employed by Suke Olympic Park. Ms Kim disputes this.
The issue to be determined at this stage is confined to whether Suke Group Pty Ltd was the employer of Ms Kim on 22 March 2022.

PROCEDURAL HISTORY

This matter has had a lengthy procedural history that was outlined in the Certificate of Determination issued by me on 21 July 2023.
At the conciliation conference/arbitration hearing on 27 September 2023 the parties requested the Personal Injury Commission (Commission) to determine the issue of employment first. I agreed with this approach.
Mr Paul Macken, solicitor, appeared on behalf of the applicant instructed by Mr Lee and
Ms Yeo. Mr Daniel Stiles, counsel, instructed by Ms Browne, solicitor, represented the WCNI. Mr Butcher from the WCNI was also present. Ms Nicole Compton, counsel, instructed by
Ms Gorre-King from Littles Lawyers, represented Ms Kim, who was present. An interpreter arranged by the Commission was also present.

EVIDENCE

Documentary evidence

The parties agreed that of the documents filed only those listed below were relevant to the employment issue. There are repeated copies of some of the documents in the various bundles. I have considered all of the documents in making this determination:
(a)    Application to Resolve a Dispute (Application) and attached documents;
(b)    Application to Admit Late Documents filed by the first respondent dated
18 October 2022 attaching their Reply;
(c)    Application to Admit Late Documents filed by the first respondent dated
28 October 2022 attaching various annexures;
(d)    Application to Admit Late Documents filed by the second respondent dated
17 February 2023 attaching her Reply;
(e)    Application to Admit Late Documents filed by the applicant dated 20 July 2023 attaching various documents including statements from Ms Yeo dated
14 July 2023 and Mr Lee dated 14 July 2023;
(f)    applicant’s written submissions undated;
(g)    first respondent’s written submissions dated 8 March 2024, and
(h)    second respondent’s written submissions dated 13 March 2024.

Oral evidence

There was no oral evidence. The legal representatives made oral submissions which have been sound recorded. A written transcript (T) has been made from the sound recording.

FINDINGS AND REASONS

The available evidence about which entity employed Ms Kim at the time she was injured is often contradictory.
A document headed “Letter of Engagement” which appears to be dated 18 March 2022 is in the WCNI’s reply. The document is not actually addressed to anyone. It says it is an offer of employment as a salad maker with “Mi sun Yeo trading as Suke sushi and poke” with a start date 18 March 2022. At [1.4] it is stated “you will be required to perform your duties at Suke Olympic Park”. It says the pay is $23 per hour for 10 hours per week, a total of $230. At the end of the document it is typed “signed by Mu Siun Yeo” and a faint signature and date appears underneath.[2] Because the document is not signed by Ms Kim nor even addressed to her, I find I cannot give weight to the document. I have given further reasons for this finding below.
[2] WCNI Reply p 85.
The Certificate of Capacity dated 31 March 2022, which is signed by Ms Kim, has the employer’s name as “Suke Olympic Park 04665933623 shop 5/10 Dawn Fraser Ave, Sydney Olympic Park, NSW 2127”.[3] This certificate was issued by Dr Mohamed El-Rouben. Subsequent certificates issued by Dr Hajeong Lee do not have the employer details filled out.[4]
[3] Second respondent’s Reply p 7.
[4] Second respondent’s Reply pp10 to 48.
On 1 April 2022 Ms Yeo rang icare and a file note was made in the “WCA Claims Management System”. It records that,
“ER advised she has 2 policies, one for the Homebush Office and one for the City office (Surry Hills)
IW was injured at the City office on 22 March 2022 and the policy was taken out on 27 March 2022
ER advised she was told by icare the policy for the Homebush office could not be used for the City office
CM advised unable to comment to comment on the reasons the policy was taken out for the City office separate to the Homebush one.”[5]
[5] WCNI Reply p 1. This reply has two sets of pagination as counsel referred to the number in the middle of the foot of the page I will use this set of pagination and not the numbering on the right bottom corner of the pages.
On 4 April 2022 at 10:25am Brooke Bolton, the icare case manager (CM), entered a file note into the WCA Claims Management System about contact with the worker, who goes by the name of Karen.[6] Included in this note is the following:
“Karen advised ER is Husband and wife team with 2 business locations- Husband has ABN for the curry [sic] hills/city location and the Wife has an ABN for the poke bowl take away in Olympic Park.
CM asked Karen to confirm which business she is employed to work at and or if she is required to work at both and how this is managed with her ER’s.
Karen confirmed she works for the wife ER in Olympic Park but was often tasked to work in the city store and this where the injury occurred.
Karen asked CM if she will be covered for her injury if her ER is uninsured”
[6] AALD 28 October 2022 p 186.
This file note confirms that the CM explained the uninsured scheme to Ms Kim.
The note also includes the following:
“CM asked if she receives payslips
Karen said no”
On 4 April 2022 icare rang the contact on file Mi Sun Yeo however, the file note states a gentleman answered and said he was aware of the claim. He spoke limited English and asked for the information being sought by the CM to be sent for review and completion. This note was entered into the system by Brooke Bolton.
On 4 April 2022 at 11:01:28am Brooke Bolton who is identified as “icare, Case Manager, Claims Support Services” sent an email to Ms Yeo forwarding a s 141 request for information form.[7] The notice is dated 4 April 2022 and addressed to Ms Yeo. In a table the “named employer” is stated as “Suke Group Pty Ltd”. It is stated that they have not been able to identify that the named employer had a workers compensation policy in place in New South Wales as at the nominated date of injury. The letter attached the s 141 notice headed “Notice to Suspected Employer” which is addressed to Suke Group Pty Ltd Shop 12 55-73 Oxford Street Surry Hills NSW 2010 and included a questionnaire to be completed.
[7] WCNI Reply p 4 and ff.
On 4 April 2022 at 4:40pm Mr Lee sent the WCNI an email in which he sets out a timeline and states,
“I realised that I had not registered for icare only after I received her [Ms Kim] phone call. The reason I had not registered for icare was because I was very busy due to the work regarding the opening of a new shop. Please understand that I had no intention of not covering for workers insurance , and it was a simple mishap on my behalf.”[8]
[8] WCNI Reply p 17.
On 8 April 2022 there was a phone call between Mr Lee and Ms Bolton recorded in a file note on the WCA Claims Management System.[9] The note includes “ER full name- for updating the claim details and s141 notice- Mr Seung Jim Lee”. Earlier in the file note it is stated that “ER enquired about s141 notice because is addressed to his wife but has his business name on it”. It was advised that the notice would be corrected and re-sent. It is also recorded that “ER expressed concerns on taking out a policy after DOI and asked if there is any way this can be considered because he always intended on taking out a policy and mentioned the worker usually worked with his wife at her store.”
[9] WCNI Reply p 16.
A letter dated 7 April 2022 from Ms Bolton is addressed to Mr Lee at the Surry Hills shop. It refers to the employer as Suke Group Pty Ltd and notifies of provisional liability for Ms Kim’s claim.[10]
[10] WCNI Reply p 41.
On 13 April 2022 Ms Bolton received a telephone called from Minsun, a broker for the employer. The file note of this conversation states that he said the worker’s employment was just casual “no contract had been in place given the 3 days she had only worked there for”. The note records that the broker said “why don’t you just help this employer- they want the claim put under their existing policy for their other store (for which there is a policy) and it is such a sad situation they are in.” The CM explained that they are separate entities with separate ABNs. Ms Bolton sent an email to Minsun referring to their phone call and sending a link with information.[11]
[11] WCNI Reply p 21.
On 14 April 2022 Minsun rang WCNI again and asked could the claim be transferred to
Ms Yeo’s entity who has the workers compensation policy. He was asked if the worker was supplied with payslips and he replied she was and that the employing entity ABN shows it was the wife’s company, that is Ms Yeo.[12] The payslip for the period 14-20 March 2022 and payment date 25 March 2022 lists Suke Olympic Park and its address and ABN.[13] There are similarly worded payslips for the periods 21 March- 27 March 2022 with payment date
1 April 2022 and for 28 March – 3 April 2022 with payment date 8 April 2022.[14] However,
[12] WCNI Reply p 22.
[13] WCNI Reply p 38.
[14] WCNI Reply pp 90-91.
Ms Kim in her statements, set out below, denies she received payslips. She also had denied receiving payslips in the phone call with Ms Bolton on 4 April 2022, as set out above.
In Ms Kim’s National Australia Bank statement on 25 March 2022 there is a credit payment of $220 from “Mr Seung Jin Lee Karen Suke Karen”. On 1 April 2022 there is a payment of $439 from “Mr Seung Jin Lee Karen Suke” and on 4 April 2022 $46 from the same payer. On 11 April 2022 $439 is credited from “Suke Suke Karen”. On 19 and 26 April 2022 $439 is credited from “Seung Jin Lee Hea Young Kim Suke”. On 9 May 2022 $439 is credited from “Seung Jin Lee Kim Suke”.[15]
[15] WCNI Reply p 96 and Second respondent’s Reply p 189.
On Ms Kim’s Individual Tax Return 1 July 2021 to 30 June 2022 under the heading “Income 1 Salary or Wages” the details of the WCNI are set out and also ABN 23 649 851 529 with Payer’s Name is “Mi sun Yeo” with gross payment as $1,140 and tax withheld as $42.[16]
[16] Second respondent’s Reply p 196.
On 26 April 2022 there is a file note by Ms Bolton that the broker Min Sun telephoned and wanted confirmation whether the payslips had been reviewed and if the claim could now be managed under the wife’s current workers compensation policy.[17]

[17] AALD 28 October 2022 p 183.

Ms Kim’s statements

Ms Kim gave a statement to the WCNI’s investigator which has a date on the first page
[18] WCNI Reply p 99.
24 June 2022 but was signed by her and dated 4 July 2022.[18] It is witnessed by her solicitor Sally Lim. At [7] she says she is employed by Suke Group Pty Ltd as a kitchen hand. She repeats this at [24] she says she started work on 18 March 2022 part-time to work two days per week for a total of 21 hours per week. She says she was supervised by Mr Lee. She describes her duties and injury. She says the net income which the employer agreed to pay her was $483 per week. She says she gave the employer her tax file number.
Ms Kim gave the WCNI’s investigator another statement which was signed and witnessed on 5 August 2022.[19] At [9] she says she was interviewed for the role by Mr Lee about two or three weeks before she started there. She says she was interviewed by him via phone and then she went in person to see him at the shop inside the shopping centre at Oxford St. At [10] she says she was advised by Mr Lee by telephone that she had obtained employment before she met him at Oxford St. At [11] she says she thought her employer was Mr Lee. She says when she went to the shop at Oxford St before her commencement date she was introduced to Ms Yeo. At [12] she says she had never spoken to Ms Yeo during the job interviews and prior to being given the position.
[19] WCNI Reply p 132.
At [13] she says she was never told she was to work at Olympic Park. She never went there. She says Mr Lee contacted her to advise the shifts and times she was to work. At [17] she states at work she was instructed by both Mr Lee and Ms Yeo. Mr Lee instructed her as to how to make salads and Ms Yeo how to prepare vegetable, chop and store ingredients.
Ms Kim has given another statement dated 17 February 2023.[20] In this statement Ms Kim relates the circumstances about her injury on 22 March 2022 at around 5pm. She says the chef and a sales lady were present, but Mr Lee was not there. She says she continued to work until 8.30pm when her shift was over. She says the sales lady suggested she should sit for a while and that she was limping because she had pain. In these reasons I will not summarize details about her injury and treatment because, at the parties’ request, I am only dealing with the issue of employment.
[20] Second respondent’s Reply p 1.
At [9] of her statement she says she was employed by Suke Group Pty Ltd as a kitchen hand, on a part time basis two days per week, working a total of 21 hours. She says she never received any written employment contract. At [10] she says she never received any payslips.
Ms Kim says she was interviewed for the role by Mr Lee about two or three weeks before she started working. The interview was conducted by telephone. He also informed her by telephone that she got the job. She says she then visited the Fishwave shop at Surry Hills prior to her formal commencement date and she was introduced to Ms Yeo.
She says she believed her employer was Mr Lee and she never spoke to Ms Yeo during the interview process. She says her place of employment was Fishwave Surry Hills and she was contacted by Mr Lee to advise her of her shifts.
She says Mr Lee instructed her how to make the salads and Ms Yeo occasionally trained her in preparing vegetables and how to store and chop ingredients. At [15] she says her wage was paid by Mr Lee by way of EFT.

Ms Yeo’s statements

Ms Yeo gave the WCNI’s investigator a statement which she has signed and is witnessed and dated 29 June 2022.[21] She says she is self-employed as a sole trader and runs a sushi and salad takeaway at Olympic Park called Suke Olympic Park also known as Fish Wave. She says the Suke premises at Oxford St Surry Hills is registered under Suke Group Pty Ltd and her husband Mr Lee is the director of that company. She says that they “are partners in family” and she works at the Oxford St shop on a daily basis. She says she is responsible for the staff there. She says they employ two people there and they commenced that business on 17 March 2022. She says her husband handles the marketing and day to day operations and they work together as a husband-and-wife team as partners.
[21] WCNI Reply p 105.
At [9] she says she hired Ms Kim to work at both Fish Wave and Suke Group Pty Ltd. She says she trained her at the Surry Hills shop and she directed Ms Kim on a day-to-day basis. She says Ms Kim only worked for three days and she had not done any work at Fish Wave Homebush. Ms Yeo says she prepared a contract for her in Ms Yeo’s name but she never had Ms Kim sign it. She says she has a workers compensation policy and that Suke Group Pty Ltd has a policy, which came into effect on 27 March 2022. She says they are two separate policies.
Ms Yeo says the chef, Jung Hun Baek, told her that Ms Kim had mentioned that she hurt herself but he did not see it happen. She says her husband got a call on the following Saturday 26 March 2022 in which Ms Kim said she was injured and would like to claim WorkCover. At [24] Ms Yeo says “Initially Hea Young Kim submitted a claim against my policy for Fish Wave at Olympic Park but she worked at Oxford Street”.
At [32] Ms Yeo says she trained Ms Kim, and she also paid her and issued payslips. She says she believes she is staff of Fish Wave, even though she worked at Suke Group in the city when she was injured.
Her solicitor has filed a further brief statement from Ms Yeo dated 14 July 2023.[22] She refers to her statement dated 29 June 2022 and she says not all of that statement is accurate. She says she requires the use of an interpreter and her English is quite poor. Ironically, this statement does not have a statement from an interpreter to state it has been interpreted to her. She states,
“4. Paragraph 8 is not quite accurate, I do operate Fish Wave at Olympic Park and am assisted in this by my husband. My husband and I jointly run Suke Group Pty Ltd but I am not a Director of that company. I worked at various times at both Fish Wave and at the Surry Hills business and I am responsible for staff at these businesses although my husband and I do all these things together.
5. Paragraph 9 of that Statement is mainly correct. The Claimant was employed by Suke Olympic Park but my husband and I elected to train her at the Surry Hills store because that was less busy than Fish Wave having only just opened. Our intention was to have her work at Fish Wave but also at the Surry Hills store if and when it became necessary. The Claimant was paid by Suke Olympic Park because that was the business that employed her.”
[22] AALD 20 July 2023 p 2.
Ms Yeo also states that the claim was submitted for the Olympic Park business and policy because that was the employer, even though the claimant was doing training in the Oxford St business.
Ms Yeo refers to both her and her husband having difficulties speaking English and with written communication they would handwrite what they wanted to send to the claims manager and they had their accountant translate it to English and they would send it. They did not have the skills to check the translation was correct. She points to an error at 2.1 of the icare request for information. I am assuming this is the document seeking particulars of the suspected employer.[23] This document asks, “what is the name of the employer?” the answer given is,
“Suke Group Pty Ltd
Mi Sun Yeo
ABN; 23 649 851 529
Who is the actual employer”
[23] WCNI Reply p 31.

In response to the other questions, they give the particulars of both entities but assert Mi Sun Yeo is the employer except in response to question 2.1 where they state “Suke Group: Yes Mi Sun Yeo; No.”
In answer to 3.1 asking for comments, it is stated,
“We believe that this claim should go
against Mi Sun Yeo/policy
no;212115801 because Hea Young
Kim was initially employed by Mi Sun
Yeo, trained by Mi Sun Yeo, paid by Mi Sun Yeo.”
Unfortunately, the copy of the document is not signed or dated.

Mr Lee’s statement

Mr Lee has provided a statement dated 14 July 2023.[24] He states that he and his wife have operated the business known as Fish Wave at Olympic Park and the business is operated in his wife’s name as a sole trader but they both work to carry out all operations of that business.
[24] AALD 20 July 2023 p 3.
He says prior to 2000 the business had been going reasonably well so he registered a company called Suke Group Pty Ltd and it was his intention to try to set up a type of franchise for Fish Wave shops. I find this reference to the year 2000 is probably a typographical error and the correct year is 2020 because the ASIC documents, referred to at [4] above, have the date of 15 October 2020 as the incorporation date.
Mr Lee says he did not advance the franchise idea due to the effect COVID-19 had on their business. He says he continued to work with his wife in the Olympic Park store. He says generally he would handle marketing and day to day operations and his wife would look after staff, including their training.
He states in early 2022 they decided to open up another Fish Wave shop in Surry Hills. He said they were going to run it the same way as the Olympic Park store but because of the franchise idea he operated it through the company he had registered in 2020. He said they regarded it a continuation of their partnership.
He states the Surry Hills shop utilized casual staff and it was their intention for it to be open for both lunch and dinner. At [6]-[7] he states,
“We arranged to hire Hea Young Kim with the intention of having her work at Olympic Park once she was sufficiently familiar with the job. We spoke to several people who were interested in the job and I cannot recall whether it was I or my wife who initially spoke to Ms Kim. We generally require casual staff to be flexible and to work either at Olympic Park or Surry Hills depending on what the requirements are and this was the same arrangement with Ms Kim.
My wife and I agreed that she should start at the Surry Hills location because it was much less busy than Olympic Park and it would be easier for her to train at that place. As it was she only worked for 3 days under the direction and supervision of my wife. The only recollection I have of giving any instruction to Ms Kim was to briefly show her how to make a certain salad.”
Mr Lee says the same bank account was used for both stores and they were both authorized to use it. He says for the brief period Ms Kim was employed she was paid by the Olympic Park business.
He says that he and his wife do not speak much English. They arranged the insurance of the business through a broker and they asked the broker to interact with the claims manager regarding Ms Kim’s claim. He said when they wanted to write something to the insurer, they would handwrite it and have the accountant translate it and they would send that to the insurer without further checking it.

Applicant’s submissions

Mr Macken submitted that Mr Lee has given evidence in his statement that he and his wife operated the business at Olympic Park and they operated Suke Group Pty Ltd, although his wife was not a director of that company. It is asserted that Ms Kim was employed by the Olympic Park business and when she was at the Oxford St business both Mr Lee and
Ms Yeo supervised her and they regarded this as part of her training and the intention was for her to work in the Olympic Park business. Mr Macken submitted the location of the injury is probably irrelevant because the question of employment is determined by the intention to form legal relations.
Mr Macken submits that Mr Lee has made it quite clear that it was not his intention on behalf of Suke Group Pty Ltd to form any employment relationship with Ms Kim, because she was employed through the Olympic Park store.
Mr Macken argues that Ms Kim’s evidence is essentially neutral on the question of employment and her evidence is she was working at Surry Hills and did not know anything about Olympic Park and she was supervised by Mr Lee and Ms Yeo.
He adds that Suke Group Pty Ltd denies employment and the other entity, the business at Olympic Park, admits employment. Mr Macken submits other evidence supports the contention that the business at Olympic Park was the employer, that is the payslips and letter of engagement. In relation to the payslips, Mr Macken submitted they are from entity Suke Olympic Park in the period 14 to 20 March 2022 and subsequently. Mr Macken submitted that the letter of engagement is dated 14 March 2022 and that is four days before Ms Kim’s start date on 18 March 2022. He said it has not been suggested that this was somehow fabricated or altered to suit the company. Mr Macken submits all the records corroborate the view of Ms Yeo and the applicant, that Ms Kim was employed by Suke Olympic Park.
Mr Macken submits that Suke Group Pty Ltd is not the employer and therefore the payments made by WCNI to Ms Kim as set out in the s 145 notice are not recoverable against Suke Group Pty Ltd.

Workers Compensation Nominal Insurer’s submissions

Mr Stiles submitted that if one considers the contemporaneous records it seems clear that there was an intention for the claim to be made against Suke Group Pty Ltd and once it became apparent that it did not have a policy of insurance, then attempts were made to shift liability to the related entity which did have a workers compensation policy.
He referred to the following evidence:
(a)    The file note of 1 April 2022,[25] which is a record of a telephone call from Ms Yeo;
[25] WCNI Reply p 1. The pagination is confusing counsel has used the number in the middle at the foot of the page, not the number in the right hand corner of the bottom of the page.
(i)Mr Stiles submitted that Ms Yeo advised she had two insurance policies, one for the Homebush office and one for the city office. It is noted in the file note that the worker was injured at the city office on 22 March 2022 but the policy was taken out on 27 March 2022.
(b)    Letter from WCNI to Ms Yeo dated 4 April 2022;[26]
[26] WCNI Reply p 4.
(i)he submits that this letter lists the employer’s name as Suke Group Pty Ltd and the letter confirms that that entity had no workers compensation policy as at the date of injury.
(c)    Email from Mr Lee dated 4 April 2022 to icare uninsured.[27] In which Mr Lee states:
[27] WCNI Reply p 17.
“I realised that I had not registered for icare only after I received her [Ms Kim] phone call. The reason I had not registered for icare was because I was very busy due to the work regarding the opening of a new shop. Please understand that I had no intention of not covering for workers insurance , and it was a simple mishap on my behalf.”

Mr Stiles submits in this email Mr Lee sets out a timeline and refers to Ms Kim as an employee and Mr Lee did not assert that Ms Kim was not employed by Suke Group Pty Ltd. It was submitted that Mr Lee is acknowledging he should have had a policy to cover her injury.
(d) File note of conversation with the worker, Ms Kim, on 7 April 2022 at 4:49pm;[28]
[28] AALD 28 October 2022 p185.
(i)Mr Stiles submits this file note is relevant because it states, “worker confirmed she does not receive payslips and was only employed in this role for 3 days prior to DOI”.

(e) File note dated 8 April 2022 about a phone call with the employer confirming they always intended to take out a policy for the Surry Hills business.
(f) File notes of conversations with the broker;
(i)Mr Stiles referred to these file notes, which I have summarised earlier in these reasons. He submitted that the case manager was told there were payslips but Ms Kim had advised the case manager the day before she had not received payslips.

(g) Ms Yeo’s statements:
(i)Mr Stiles submitted that Ms Yeo says in her statement dated 29 June 2022 that she directed Ms Kim to work at the Surry Hills store, that she trained her and paid her and issued her with payslips. He notes that Ms Yeo confirms that when Ms Kim was injured she rang Mr Lee. And in her recent statement Ms Yeo says they intended for Ms Kim to work at both stores, yet Ms Kim says she was never told that she would be working at Olympic Park/Homebush store.

(h) Ms Kim’s statements:
(i)Mr Stiles submits that contrary to Mr Macken’s submission, Ms Kim’s evidence is not neutral as she says she was employed by Suke Group Pty Ltd and in her statement dated 5 August 2022 Ms Kim states she always believed Mr Lee was her employer and she never spoke to Ms Yeo about an interview or prior to getting the job and she was never told she would be working at the Olympic Park/Homebush store. Also, she says her wage was paid by Mr Lee.

(i) Mr Lee’s statement:
(i)Mr Stiles noted that Mr Lee said workers had to be flexible to work at both stores and Ms Kim was paid by the Olympic Park bank account but he does say that there only is one bank account used by both stores.

Mr Stiles says facts such as Ms Kim being interviewed by Mr Lee, Mr Lee setting her shifts and times, Mr Lee paying her, she called Mr Lee to report her injury, it was not suggested to her she would work at Olympic Park/Homebush store, the bank records have Mr Lee’s name and Suke, Ms Kim’s evidence of her belief that Mr Lee was her employer are all facts supporting that Mr Lee, the director of Suke Group Pty Ltd employed her.
He submitted that the payslips and employment agreement were not given to Ms Kim and they could be given very little weight.
Mr Stiles also submitted that the file note of the conversation with Mr Lee confirms that it was a simple mishap that Suke Group Pty Ltd did not have a workers compensation policy.

Ms Kim’s submissions

Ms Compton submitted that the Commission should be aware Ms Kim does not have English as her first language and she says there needs to be caution as to whether the two potential employers had a level of understanding of the English language to understand what they were doing. However, she does not point to any particular issue.
Ms Compton submitted that the bank statements utilised the name of Mr Lee however, she says that there is evidence that both Mr Lee and Ms Yeo worked at both venues.
She submitted that Ms Kim’s statement makes it clear it was Mr Lee who employed her but she did meet Ms Yeo at the Surry Hills shop and she provided her with some training.
Ms Compton states that with respect to Ms Kim it does not necessarily matter who she was employed with. She discusses various parts of the evidence to illustrate the uncertainties in the case.
She argues that at the time Ms Kim was interviewed the Surry Hills business had not started operation. She submits “if the employer was not inexistence at the time upon which this employment contract started, that may well be an issue…when there was a contract of employment.” She then suggests as the Olympic Park business was operating for longer, that was the entity able to form the employment relationship. However, I cannot accept this argument. The ASIC records clearly show the legal entity Suke Group Pty Ltd commenced on 15 October 2020. Just because the Surry Hills shop did not open until after Ms Kim was interviewed does not mean Suke Group Pty Ltd could not have employed her. Ms Compton has not referred to the ASIC records at all.

Applicant’s submissions in reply

Mr Macken submits because Ms Kim was only there three days before she was injured you would not expect her to know what the longer term arrangement was. He argues that fact that Ms Kim said she did not know she was going to be working at Olympic Park is of no probative value in terms of determining who the employer is.
He says Ms Kim dealt with both Mr Lee and Ms Yeo and they both interacted with her in various ways. He submits she says she was employed by Mr Lee and he argues Mr Lee is not the company. He said Ms Kim quite properly told the investigator that she did not know the name of her employer. He submits there is nothing to suggest that Mr Lee would not be able to employ people on behalf of the business at Olympic Park, because he and his wife, Ms Yeo, operate that business together.
Mr Macken submits the question is, what is the intention to form legal relations? He said the argument by the WCNI that the fact that Suke Group Pty Ltd took out a workers compensation policy on 27 March 2022 is significant, is explained in the file note of
1 April 2022. Ms Yeo had advised the claims manager that she had been told they could not use the policy for the Olympic Park shop and that is why they took out the policy on
27 March 2022. He says there is nothing sinister about that.
Mr Macken urges the Commission to exercise great caution relying on the file notes because all of the witnesses have said in their statements that they do not speak English well.
He submits all of the evidence, objective and subjective, is that Olympic Park was the employer. Mr Macken submits that the fact that Ms Kim received a phone call from Mr Lee before engaging her in employment is not unusual as Mr Lee works with his wife in the Olympic Park business. They both oversaw her work at Surry Hills. He submits that none of the evidence that the WCNI made submissions about diminish the evidence that the intention was for Ms Kim to be employed by the Olympic Park business.
As to the employment agreement, Mr Macken says it was given to the investigator a relatively short time after the claim was made and Ms Yeo freely stated that she had not given it to Ms Kim. He said no one has submitted that it is a recent invention or a fabrication.
In relation to the bank account from which payment to Ms Kim was made, Mr Macken submitted the evidence is that it was a joint account. In regards to the payslips, it was submitted that it is not surprising that Ms Kim did not receive them as she had only worked for three days and she had not been back to the workplace. It was submitted that the only objective evidence and the subjective evidence supports the finding that Suke Group Pty Ltd did not employ Ms Kim.
Mr Macken submitted that the fact that if it was the case that Mr Lee and Ms Yeo had not communicated clearly to Ms Kim that she would be working at Olympic Park is not instructive of anything in the circumstances where she had only worked for three days and was in training.
Mr Macken referred to the evidence from Ms Yeo as “objective evidence”, that she says she employed Ms Kim as well as the documents stating this. He said to find that the payslips and employment agreement is not compelling evidence the Commission would have to find this evidence is a fabrication and this is not tenable on the evidence.
I raised with Mr Macken that it seems an important matter when one is applying for a job as to the location they will be working and Ms Kim says she did not know about the Olympic Park/ Homebush store. He submitted that she did not know either about the entity Suke Group Pty Ltd either and she did not know about the interrelationship between Mr Lee and Ms Yeo operating more than one business. He also submitted if they said we want you to work at the Olympic Park/Homebush store that she did not want to travel there and she could not be compelled to as she was a casual employee.
Ms Compton clarified that Ms Kim said she was never told she was to work at Olympic Park and her understanding that she was only to work at the Surry Hills store. And she did not say she did not know about the Olympic Park Store.
Mr Stiles confirmed he never submitted that the payslips and employment agreement were fabrications, just that they are not really relevant as Ms Kim did not receive them. He says Ms Kim in her statement says she was employed by Suke Group Pty Ltd.

Further submissions

As there were pieces of evidence that were not the subject of submissions, to deal with this I issued a direction for submissions dated 26 February 2024 as set out below:
“1.     The Commission is to provide to the parties the written transcript from the arbitration hearing on 27 September 2022.
2.     The following evidence was not the subject of submissions by any party:
(a)The taxation return of Hea Young Kim for the financial year ending 2022 lists Mi Sun Yeo as the payer of income and the payer’s ABN as 23 649 851 529. (Second respondent’s reply, p 196)
i)    Submissions are sought as to whether an inference can be drawn from this evidence that Ms Kim gave her accountant, who prepared the taxation return, the payslips from Mi Sun Yeo containing this information.
(b)The certificate of capacity from Dr Mohamed El-Rouben dated 31 March 2022 has the employer’s name as “Suke Olympic Park 04665933623 shop 5/10 Dawn Fraser Ave, Sydney Olympic Park, NSW 2127”. (Second respondent’s reply, p 7)
i)    Submissions are sought as to whether an inference can be drawn from this evidence that Ms Kim informed the doctor that her employer’s identity was Suke Olympic Park.
(c)The file note made by Ms Bolton, the case manager, on 4 April 2022 at 10.25 am includes “Karen confirmed she works for the wife ER in Olympic Park but was often tasked to work in the city store and this where the injury occurred.” (First respondent’s application to admit late documents dated 28 October 2022 p 187)
i)    Submissions are sought about this evidence.
(d)The s141(2) requirement to complete questions in Schedule A issued on 4 April 2022 response:
i)    at 1.16 refers to Suke Group employing 4 employees at the date of injury and Mi Sun Yeo employing 4 employees at the date of injury.
ii)   At 1.15 refers to gross wages paid by the employer for all employees as “Suke Group $21742 (2022FY) and Mi Sun Yeo $41420 (2022 FY).
(first respondent’s reply p 32)
3.     Submissions are sought about this evidence.
4.     The applicant is to provide the requested written submissions on or before 1 March 2024.
5.     The first respondent is to provide the requested written submissions including any response to the applicant’s submissions on or before 8 March 2024.
6.     The second respondent is to provide the requested written submissions and any response to the applicant’s and first respondent’s submissions on or before 13 March 2024.
7.     The applicant is to provide any submissions in reply on or before 18 March 2024.”
Mr Macken submits that the taxation return for Ms Kim for the financial year ending 2022 correctly identifies the income was not paid to her by the applicant, Suke Group Pty Ltd and is consistent with the submissions he made at the arbitration hearing.
In relation to the Certificate of Capacity he submits it correctly identifies the employer as being Suke Olympic Park and an inference can be drawn that Ms Kim informed the doctor that her employer’s identity was Suke Olympic Park.
Mr Macken submitted that the file note by the CM on 4 April 2022 supports the position advocated by him on behalf of the applicant.
In relation to the responses on the s 141 notice again he submits this is consistent with his position at the arbitration hearing and he notes that the wages paid in the financial year ending 30 June 2022 by Suke Olympic Park was double that paid by Suke Group and this is consistent with the applicant’s evidence.
Mr Stiles for the WCNI made submissions and Ms Kim’s legal representative said she agrees with those submissions.
In relation to the taxation return, WCNI submitted that no inference should be drawn that
Ms Kim did receive the payslips, noting her evidence denying the same. Mr Stiles submits that there is no group certificate in evidence and there is no evidence that the employer uploaded group certificate information direct to the Australian Taxation Office.

The WCNI’s submission about the medical certificate dated 31 March 2022, is that Ms Kim gave no direct evidence about what was said during the medical examination with Dr El-Rouben but the WCNI accepts that it would be open to draw an inference that she provided that information to the doctor.[29]
[29] There is a typographical error in this submission in 2b the reference in the first line should be to the first respondent.
In relation to the file note dated 4 April 2022 the WCNI submits that it should be given little, if any, weight because Ms Kim gave clear and definitive evidence that she was never told she was to work at Olympic Park.
Finally, in relation to the information in s 141 document, the WCNI submits it does not assist in determining who the employer was at the date of Ms Kim’s injury. It is submitted the information was supplied in the context of the claim being transferred to another policy.

Determination

In Ermogenous v Greek Orthodox Community of SA Inc[30] the High Court stated at [25]:
“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)…”
[30] [2002] HCA 8: 209 CLR 95; 76 ALJR 465; 187 ALR 92, Ermogenous.
The Court considered the meaning of the word “intention” in this context and said,
“[i]t 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.”
Mr Macken relies on documents such as the payslips and letter of engagement as objective evidence. However, as I found above, the letter of engagement is not addressed to Ms Kim and was not given to Ms Kim. Therefore, I find it cannot be evidence of her intentions. It cannot be “an agreement” because Ms Kim was not cognisant of its contents. I find in these circumstances it would be unsound to rely upon this document.
Ms Kim has given clear evidence that she did not receive payslips. However, on her taxation return for the financial year ending 2022 Mi Sun Yeo and her ABN is listed as the payer of income.[31] This taxation return was prepared by a taxation agent who has made a declaration that it was prepared on information supplied by the taxpayer, that is Ms Kim.[32] Whether the accountant obtained this information from Ms Kim or from the Australian Taxation Office is not able to be determined on the evidence before me, however I find the fact that the accountant listed Ms Yeo and her ABN as employer is relevant evidence pointing to Ms Yeo being the employer. Ms Yeo’s ABN is different to the ABN of Suke Group Pty Ltd.
[31] Second respondent’s Reply p 186.
[32] Second respondent’s Reply p 200.
While Ms Kim’s bank records are before the Commission, bank records for Suke Group Pty Ltd and Ms Yeo are not in evidence. On Ms Kim’s bank records there is a record of payment from Mr Lee, with references to Ms Kim’s name and the word “Suke”. Given the payslips refer to “Suke Olympic Park”, I find I cannot infer that the word “Suke” in the bank statement necessarily refers to “Suke Group Pty Ltd”. Mr Lee is the sole director of Suke Group Pty Ltd but he and Ms Yeo have stated he is also involved in the running of the Suke Olympic Park business. I find that I cannot draw any inference that the references on Ms Kim’s bank records means the payment came from Suke Group Pty Ltd, particularly in light of the abovementioned tax return.
In Shao Wen Zheng v Guo Yong Yang & Ors[33] Roche DP dealt with an argument about whether a finding could be made that a worker was employed by an uninsured company when there was no direct evidence of the relationship between those entities. He stated at [81]:
“Where direct proof is not available it is possible to draw an inference from known facts. However, those facts must do more than ‘give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture’ (per Dixon J (as he then was), Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd (unreported, High Court, 27 April 1951), cited by Williams, Webb and Taylor JJ in Holloway v McFeeters [1956] HCA 25: 94 CLR 470 at 480-481). The law ‘does not authorise a court to choose between guesses’ (per Dixon CJ in Jones v Dunkel[1959] HCA 8; 101 CLR 298 at 305).”
[33] [2008] NSWWCCPD 144, Zheng.
Applying the principle above, I find it would just be conjecture for me to draw any inference one way or another about the references on Ms Kim’s bank statements as to the nominated payer denoting the employer.
The Certificate of Capacity dated 31 March 2022, which is signed by Ms Kim, has the employer’s name as “Suke Olympic Park 04665933623 shop 5/10 Dawn Fraser Ave, Sydney Olympic Park, NSW 2127”.[34] This certificate was issued by Dr Mohamed El-Rouben. In the written submissions the WCNI’s counsel stated that an inference could be drawn that Ms Kim gave the doctor this information. I find it is more likely than not on the balance of probabilities that the doctor was given this information about the employer by Ms Kim, so at least at that point in time she asserted Suke Olympic Park was the employer. I am strengthened in this conclusion because Ms Kim signed the certificate.
[34] Second respondent’s Reply p 7.
The file note made by Ms Bolton, the CM, on 4 April 2022 at 10.25am includes “Karen confirmed she works for the wife ER in Olympic Park but was often tasked to work in the city store and this where the injury occurred.” The reference to “Karen” is to Ms Kim, who it is noted is known by the name Karen. The reference to “the wife” is to Ms Yeo. I find this evidence is consistent with Ms Kim telling Dr Mohamed El-Rouben that she was employed by Suke Olympic Park. All parties agree that Ms Kim never physically worked at Olympic Park.
I find these two pieces of evidence are quite contemporaneous in time to the injury on
22 March 2022 and predate the statements given by Ms Kim. Ms Kim in her statements assert she was employed Suke Group Pty Ltd. However, she does not state how she was informed that this company was her employer.
The facts that Ms Kim was interviewed by Mr Lee, informed by Mr Lee she was successful and Mr Lee informed her of her shifts are facts that would tend to support Mr Lee being the employer of Ms Kim. As he was the sole director of Suke Group Pty Ltd the question arises did he undertake these steps in that role or part of his role at Suke Olympic Park. I find both scenarios are plausible and following Shao Wen Zeng it would be conjecture on my part to choose one over the other.
The final piece of evidence that I have considered is that Mr Lee says in his statement he set up Suke Group Pty Ltd to advance him franchising the Fishwave food stores business. He incorporated that entity, and it had a separate ABN to that of Suke Olympic Park. The information form filled out for WCNI at 1.16 lists in response to the question “What was the number of employees of the employer as at the claimed date of injury?” The answer is:
“Suke Group 4
Mi Sun Yeo 4”
I am not sure if this means each entity had its own employees and in answer to question 1.15 the gross wages paid in financial year ending 2022 was Suke Group $21,742 and Mi Sun Yeo $41,420. The WCNI submits I cannot draw inferences from this information as it was given in the context of trying to change the claim to the entity with the insurance policy. I accept that it would be unsound to draw any inference from this information as it does not point to who actually employed Ms Kim.
It may have been helpful to have before me the taxation returns of each entity to ascertain how each was financially structured. Both Mr Lee and Ms Yeo have given evidence there was only one bank account used by both entities.
It is very difficult to decide on the available evidence who the employer of Ms Kim was as at 22 March 2022. There were no applications made to cross-examine any of the persons involved so some of the inconsistencies have not been clarified. Obviously Mr Lee and
Ms Yeo have an interest in asserting the employer was Ms Yeo because she had a valid workers compensation policy whereas Suke Group Pty Ltd did not. Ms Kim’s counsel says she does not care who the employer is.
There are very few objective documents available. I find Ms Kim’s taxation return is compelling evidence that Ms Yeo was the entity who paid her wages and/or her tax. Whether the accountant obtained the information from Ms Kim or the Australian Taxation Office is not clear but obviously he obtained the information from a source and he was satisfied with the information to include it in the taxation return. The other piece of evidence not filled out by any of the parties is the medical certificate dated 31 March 2022. This clearly lists Suke Olympic Park as the employer. I consider it is very relevant that this was at an early point in time. The WCNI has submitted that I can draw an inference that Ms Kim informed the doctor who her employer was. I find that the only plausible explanation is that Ms Kim informed the doctor of this fact and therefore I draw an inference to that effect.
These two pieces of information have led me to treat Ms Kim’s later statement evidence with a degree of caution. I am not saying she is an untruthful witness but it does seem clear to me at an early point in time she thought Suke Olympic Park/ Ms Yeo was her employer. However, I was troubled by her evidence that she did not know she would have to work at Olympic Park as it seems to me if one is applying for a job a key fact is where you would be working. Yet this evidence does not sit easily with her conversation with the CM on
4 April 2022 where Ms Bolton writes that Ms Kim told her she worked for the wife at Olympic Park.
I find the applicant, Suke Group Pty Ltd, has established that they were not the employer of Ms Kim as at 22 March 2022. In coming to this finding, for the reasons set out above, I am satisfied that the available evidence establishes that the employer of Ms Kim was Ms Yeo. Therefore, I find that the payments made by WCNI to or on behalf of Ms Kim as set out in the s 145 notice are not recoverable against Suke Group Pty Ltd.

[2024] NSWPIC 149

21 March 2024