Sutherland and Comcare (Compensation)
[2017] AATA 2596
•11 December 2017
Sutherland and Comcare (Compensation) [2017] AATA 2596 (11 December 2017)
Division:GENERAL DIVISION
File Number(s):2016/4761
Re:Susan Sutherland
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
11 December 2017Date:
CanberraPlace:
The Tribunal sets aside the decision under review and in substitution decides that Ms Sutherland is entitled to compensation under section 14 of the SRC Act in respect of the injuries that arose in the course of her employment on 15 January 2013.
........................................................................
Senior Member A Nikolic AM CSC
CATCHWORDS
WORKERS COMPENSATION – whether applicant entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether applicant an employee at time of injury – whether injury arose out of, or in the course of, employment – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Canute v Comcare (2006) 226 CLR 535
Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd [2015] QSC 119
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21
Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Re Beverley June Boyd v Australian Industry Development Corporation [1990] FCA 525
National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98
Rus and Comcare [2016] AATA 18Rus v Comcare [2017] FCA 239
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
11 December 2017
INTRODUCTION
On 15 January 2013 Ms Susan Sutherland sustained injuries at the University of Canberra (UC), after falling down a set of concrete steps outside the refectory building.[1] She lodged a claim for compensation on 30 January 2013, contending that her injuries arose out of or in the course of her employment. On 20 February 2013 Comcare accepted liability for ‘fracture – fibula (right), sprain of shoulder and upper arm (bilateral), and contusion of knee and lower leg (bilateral)’[2] under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
[1] T-documents numbering 143 pages and hereafter referred to as Exhibit R1, p.16.
[2] Exhibit R1, pp.25-28.
On 12 July 2016 Comcare conducted a reconsideration of own motion under section 62(1) of the SRC Act, revoking the earlier acceptance of liability.[3] Ms Sutherland has applied to the Tribunal for a review of that decision.
[3] Exhibit R1, pp.139-143.
The hearing was conducted on 27 November 2017. Ms Sutherland was represented by Mr Jason Moffett of counsel, instructed by Maurice Blackburn Lawyers. Comcare was represented by Mr Andrew Berger of counsel.
For the reasons that follow, the decision under review is set aside and in substitution it is decided that Ms Sutherland is entitled to compensation under section 14 of the SRC Act in respect of the injuries that arose in the course of her employment on 15 January 2013.
BACKGROUND
Since February 2010 Ms Sutherland has regularly provided academic services to UC under sessional contracts of employment.[4] She has concurrently been a PhD student at UC since 2012. On the date of her accident (15 January 2013), a sessional contract was in place encompassing the period from 6 August 2012 to 27 February 2013.[5] Under this contract, Ms Sutherland was required to provide 59 hours of tutoring, marking and other academic services during the final semester of 2012, for a unit titled Database Design. The hours of work specified in this contract had been completed by December 2012, but it was a common practice at UC that sessional contract dates were extended beyond the end of a semester to facilitate network access for deferred exams and marking.[6]
[4] Exhibit R1, p.130.
[5] Exhibit R1, pp.83-84.
[6] Exhibit R1, p.78.
It is not in dispute that Ms Sutherland attended UC on 15 January 2013 for two meetings:
(a)the first was with Ms Carol Drew at 1pm to discuss a unit titled Professional Practice in IT (PPIT);[7] and
(b)the second was with Ms Annalisa Gherlinzoni at 2.30pm, to discuss non-payment of fees for a lecture Ms Sutherland had delivered in second semester 2012.[8]
[7] Statement of Ms Susan Sutherland dated 23 November 2016, paragraph 6. This is confirmed by Ms Drew in the responses she provides to a UC Case Manager on 18 November 2015 (Exhibit R1, pp.109-110).
[8] Statement of Ms Susan Sutherland dated 23 November 2016, paragraph 5; Exhibit R1, p.102.
Ms Sutherland had a room at UC where both of the meetings were scheduled to be held. Following the meeting with Ms Drew, Ms Sutherland went to the UC Refectory to buy lunch. As she departed the Refectory at approximately 2.15pm, she fell while descending concrete steps, sustaining the injuries that are the subject of her claim.
In the employer section of the Claim for Workers’ Compensation dated 5 February 2013, UC’s Health and Safety Manager stated that, on the date of her injuries, Ms Sutherland was working a weekly average of 16 hours and 17 minutes, receiving average net weekly earnings of $428.65.[9] In response to Question 28: ‘Is the person claiming compensation still employed…,’ the UC Health and Safety Manager marked the ‘Yes’ box.[10]
[9] Exhibit R1, pp.21-22.
[10] Exhibit R1, p.23.
On 14 February 2013, Ms Therese Engelbrecht, a UC Health and Safety Case Manager informed Comcare that Ms Sutherland:
‘…was not working at the University at the time of the accident but was attending an appointment with one of our HR consultants on an employment matter and had intention to sign a contract for further sessional tutoring in Semester 1, 2013…The claim form new weekly earnings may need to be reviewed as Ms Sutherland has been hired as a sessional tutor and does not work in non teaching times…We have had some confusion as Ms Sutherland is also a PhD student and has been attending the University to study. I will supply further documentation of actual hours of work when this is available…’[11]
[11] Exhibit R1, p.24.
Notwithstanding the advice from Ms Engelbrecht, Comcare wrote to Ms Sutherland on 20 February 2013 accepting her claim, determining that at the relevant time she was an employee of UC within the definition of section 5 of the SRC Act, and that her injuries arose out of or in the course of her employment.[12] Payroll information was subsequently provided by UC to Comcare to enable certain payments to be made to Ms Sutherland.[13]
[12] Exhibit R1, pp.25-28.
[13] Exhibit R1, pp.29-58.
On 10 September 2015 Comcare wrote to UC seeking further information about the terms of Ms Sutherland’s employment and any records held relating to her attendance at UC on the date of her injury.[14] On 9 October 2015 Ms Jodie Sims, Deputy Director Client Relationships, responded on UC’s behalf, stating in part:
‘…While Ms Sutherland had access to the University computer network at the time of her accident, she did not have any signed engagement for work during Semester 1 2013….There were no hours of work for Ms Sutherland scheduled on a timetable for the date of 15 January 2013.
…
There is no evidence of a signed contract in place for Ms Sutherland for Semester 1 2013 on 15 January 2013…When an employee is contracted for a semester, a timetable form with all of the hours and relevant dates for the semester is completed. That form is countersigned by the casual academic employee, and the delegated manager (usually the Dean of the Faculty). This forms a contract of employment for the hours included in the timetable.
There is no evidence to suggest that Ms Sutherland was on campus to perform employment duties on 15 January 2013….
However, Ms Sutherland is a PhD student at the university and it is our understanding that Ms Sutherland was in attendance on campus for the purpose of her own continuing studies, as indicated in Ms Sutherland’s email…dated 11 January 2013… to Ms Carolyn Drew, outlining that she would be in her office most afternoons. Ms Sutherland indicated that it was her intention to sign a new sessional contract and timetable for tutoring in Semester 1, 2013 with Ms Drew.
Ms Sutherland had also arranged an appointment with her HR Consultant on 15 January 2013 to discuss an employment matter of lost paperwork relating to work done in Semester 2, 2012…She did attend her appointment with the HR Consultant after her fall down the stairs…’ [15]
[14] Exhibit R1, pp.75-77.
[15] Exhibit R1, pp.78-102.
In November 2015 Comcare requested further information from UC regarding Ms Sutherland’s employment status, the meetings with Ms Drew and Ms Gherlinzoni, and whether there was any connexion between Ms Sutherland’s PhD studies and sessional work. Ms Therese Engelbrecht responded to these questions on behalf of UC.[16] A Comcare delegate subsequently wrote to Ms Sutherland on 11 January 2016, advising her that Comcare was reconsidering its acceptance of liability three years earlier.[17] The delegate stated that although Comcare was satisfied Ms Sutherland was an employee at the time of her injury, the absence of scheduled hours of work beyond 6 December 2012, meant the delegate could not be satisfied her injuries were compensable under the SRC Act. The delegate considered the evidence strongly suggested Ms Sutherland had attended UC during the semester break for her ‘own personal reasons’ relating to her PhD studies, and that she was not required to be at UC ‘for any work-related reasons.’ Moreover, the delegate stated that as both of Ms Sutherland’s work-related meetings were scheduled to take place in her office, there was no need for her to leave her office for these meetings. Consequently, the delegate reasoned Ms Sutherland’s injuries did not arise out of or in the course of her employment.
[16] Exhibit R1, pp.104-111.
[17] Exhibit R1, pp.112-115.
Ms Sutherland responded to Comcare’s letter on 29 February 2016,[18] maintaining she was at UC on 15 January 2013 for ‘two employment and employment related activities.’ On 5 July 2016 Ms Wendy Flint, Deputy Director of Client Relationships at UC wrote to Comcare after reviewing Ms Sutherland’s response.[19] Ms Flint states that on 15 January 2013, ‘there was no signed contract for 2013 or timetable for engagement,’ and consequently there was ‘no need for Ms Sutherland to be on campus…for work.’ Ms Flint also states that ‘Ms Sutherland was seeing Ms Carol [sic] regarding perspective [sic] employment’ and it wasn’t ‘until later in January (after injury)’ that a contract for PPIT was signed by Ms Sutherland and UC.
[18] Exhibit R1, pp.116-132.
[19] Exhibit R1, pp.135-138.
On 12 July 2016 a delegate of Comcare wrote to Ms Sutherland advising her of the decision to revoke the earlier acceptance of liability for her injuries.[20] The delegate’s reasons noted that the earlier decision-maker ‘did not have a full history of the facts’ associated with Ms Sutherland’s attendance at UC on 15 January 2013. Although the delegate was satisfied Ms Sutherland ‘had a contract’ indicating she was employed by UC on the date of her fall, the delegate was not satisfied she was ‘required to be at work’ on that day and considered her attendance at UC could have been her ‘preference.’ The delegate was therefore not satisfied that Ms Sutherland’s injuries arose out of or in the course of her employment, as they ‘did not occur in the performance of [her] duties.’
[20] Exhibit R1, pp.139-143.
MEDICAL EVIDENCE
I note the medical evidence in this matter, including the two specialist reports of Consultant Occupational Physician Dr Sandra McBurnie and Consultant Orthopaedic Surgeon Dr James Rohrsheim. The nature of Ms Sutherland’s injuries is not contested in this matter, but I include the specialist reports for completeness, in that they provide an insight into the extent of and enduring nature of Ms Sutherland’s injuries up to June 2015. Key aspects of these reports follows:
(a) Ms Sutherland was examined by Consultant Occupational Physician Dr Sandra McBurnie on 4 February 2014. Dr McBurnie’s report[21] noted Ms Sutherland’s fracture had healed and her other injuries had resolved to a large extent. She stated Ms Sutherland appeared motivated to return to her usual work and did not require reduced working hours. She recommended hydrotherapy and/or physiotherapy for a short period of time to increase the strength in Ms Sutherland’s right leg and to improve her confidence in right leg function. The only provision noted by Dr McBurnie was the requirement for Ms Sutherland to be able to sit and stand intermittently, and to be provided a chair when lecturing.
(b) Ms Sutherland was examined by Dr James Rohrsheim, Consultant Orthopaedic Surgeon on 5 June 2015 at the request of Comcare. Dr Rohrsheim’s report[22] states in part:
‘Ms Sutherland currently suffers from right posterior tibialis tendon tendinopathy as well as disruption to her medial deltoid ligament complex. She has tightness and stiffness in her left shoulder girdle. The right ankle pain stems from the fall on 15 January 2013. The left shoulder pain has developed subsequent to this fall but no specific date is able to be substantiated. With respect to her right ankle, she is incredibly tender over the medial malleolus. She is also tender over the posterior tibialis tendon. With respect to her left shoulder, she has an inability to forward flex the shoulder beyond 90º. She has periscapular and trapezoid muscle tightness.
Ms Sutherland’s right ankle has improved, albeit slowly, over the last two years. It is not yet healed but she is much more functional now…
…
In my opinion the current condition is not related to anything bar her employment. There are no factors unrelated to work. There were no pre-existing conditions…
…
I suggest physiotherapy for range of motion exercises. These sessions should occur either weekly or fortnightly…I would recommend at least eight sessions. These should commence as soon as possible. On completion of the eight sessions she could continue with a self-guided program.
[21] Exhibit R1, pp.59-65.
[22] Exhibit R1, pp.66-74.
CONTENTIONS OF THE PARTIES
Ms Sutherland contends that on 15 January 2013 she ‘suffered injuries in the course of or arising out of her employment’ with UC and the Respondent is therefore liable to compensate her under section 14 of the SRC Act.[23]
[23] Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 9 March 2017.
The Respondent contends that:
a. Ms Sutherland was not an employee for the purposes of section 5 of the SRC Act at the time her injuries were suffered;[24]
b. The work Ms Sutherland was obligated to perform under the sessional contract for second semester 2012[25] had ceased prior to Christmas 2012, and no contract had yet been entered into for PPIT, which was scheduled to commence in early February 2013;
c. Ms Sutherland was not employed to perform any work on 15 January 2013 and her meeting with Ms Drew related to a ‘prospective contract’ only, because her employment and duties in first semester 2013 remained to be determined and formalised;[26]
d. Negotiation of an employment contract is not employment for the purposes of the SRC Act;[27]
e. In examining the employment relationship between UC and a sessional casual academic staff member, the Tribunal should have regard to the Full Federal Court’s decision in National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 at [15];
f. The meeting with Ms Gherlinzoni on 15 January 2013 was not ‘employment,’ because it related to getting paid for two hours of work performed in the previous semester;
g. The Tribunal should conclude Ms Sutherland’s employment ended upon the completion of her duties in 2012 and did not begin again until February 2013, hence she was not an employee of UC on 15 January 2013; and
h. Given Ms Sutherland was not engaged in any employment on the day of her injuries, it follows that her injuries did not arise out of, or in the course of, her employment with UC.
[24] In this regard the Respondent relies upon the ordinary meaning of ‘employed’ as ‘having a job; working,’ as held in Rus and Comcare [2016] AATA 18, [22], undisturbed on appeal in Rus v Comcare [2017] FCA 239.
[25] Exhibit R1, pp.81-84. The contract period was from 6 August 2012 until 27 February 2013.
[26] Exhibit R1, pp.78-79.
[27] In this regard the Respondent relies upon Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 at [11]; and Re Beverley June Boyd v Australian Industry Development Corporation [1990] FCA 525 at [9].
LEGISLATIVE PROVISIONS
Section 5(1) of the SRC Act defines employee to mean:
(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or
(b) ...
It was not in issue that UC is a Commonwealth authority within the meaning of the definition of employee.
Section 4(1) of the SRC Act defines place of work in relation to an employee as including:
‘…any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.’
Section 4(1) of the SRC Act provides that the word ‘injury’ has the meaning detailed in sections 5A as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a)…; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)…
As held by the High Court in Canute,[28] Section 6 of the SRC Act is a ‘facultative provision,’ indicating in a ‘non-exhaustive fashion…when an injury may be treated as having arisen out of, or in the course of, employment.’ Section 6(1)(b) is the only relevant provision in this matter and provides as follows:
6 Injury arising out of or in the course of employment
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
…
[28] Canute v Comcare (2006) 226 CLR 535 at [8].
Section 14(1) of the SRC Act is headed ‘Compensation for injuries’ and read in conjunction with section 5A(1), provides:
‘Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.’
THE ISSUES FOR DETERMINATION
The key issues for determination are whether Ms Sutherland was an employee of UC on the date of her injuries and whether those injuries arose out of, or in the course of, her employment.
EVIDENCE OF MS SUTHERLAND
Ms Sutherland’s statement dated 23 November 2016 was taken into evidence.[29] She was the only witness called at the hearing, gave oral evidence and was cross-examined.
[29] Exhibit A1.
Ms Sutherland states that she has undertaken sessional contract work with UC since 2010, and, has been a part-time PhD candidate at UC since 2012. She said that PhD candidates were allocated an office space and computer, but in 2012-13 she had requested that a single office be provided for both her PhD studies and sessional teaching responsibilities, which was eventually granted. In cross-examination Ms Sutherland rejected the Respondent’s proposition that her office needs related primarily to her PhD studies, stating that the room also supported her regular sessional teaching requirements.
Ms Sutherland said the sessional contracts she signed at UC detailed specific hours of work each semester, agreeing that the hourly requirements stipulated in the contract for second semester 2012 had concluded by 22 December 2012. She maintained, however, that her employment relationship with UC continued to the end date on her contract, which was 27 February 2013.
Ms Sutherland submitted that she had never previously had a contract authorised at UC prior to commencing work in any semester. She also contended that the schedule of hourly tasks attached to sessional contracts did not always reflect the totality of employment circumstances at UC. She said it was common to undertake work not specifically listed in the schedule and for which she was not paid. By way of example, she referred to the supervision of students early in semesters during library and other campus visits to orient them to the resources required for each unit. Ms Sutherland stated this was part of the concession and compromise inherent in her contractual relationship with UC, contrasting the unpaid work she did with the payments received for other tasks like marking student papers and exams. She noted, for example, that she was paid 35 hours for marking services in second semester 2012, irrespective of whether she actually spent 35 hours marking or not.
During cross-examination, Ms Sutherland did not agree with the proposition that her PhD rather than her sessional work was occupying a lot of her time in the period leading up to her injuries. She submitted that she did not find her studies difficult, which were due for completion ‘in a record time of six years part time.’ In a statement to Comcare dated 29 February 2016, Ms Sutherland contends that during the relevant period she was also awaiting confirmation of a new supervisory panel for her PhD and was consequently unable to ‘do much study without a supervisor.’[30] She submits that her presence at UC on 15 January 2013 was therefore primarily for ‘employment reasons.’[31] In this regard I note an email from Professor George Cho, Chair of the UC Academic Board, to Ms Sutherland and others convening a meeting on 15 February 2013 ‘to resolve the issue’ of Ms Sutherland’s PhD panel membership.[32]
[30] Exhibit R1, p.117.
[31] Ibid.
[32] Exhibit R1, p.119.
In response to questions from the Respondent about an email she had sent to a friend referring to her studies as being a ‘lot of work,’ Ms Sutherland said this should be seen as a ‘social email’ and that she had demonstrated an ability over a prolonged period of time to concurrently accommodate sessional work and her PhD studies. Ms Sutherland agreed that she was on the UC campus almost every day after the end of the exam/marking period in December 2012. She stated her attendance was both to check on resolution of her PhD supervisory panel and to look for further work. She claims to have lodged expressions of interest for further sessional work prior to 15 December 2012 and that ‘from the second week to last week of January, most academic sessional[s] are on campus checking their emails and or seeing convenors to see if they got work for the next semester.’[33] She said that after her injuries she returned to work within a short period of time, but because of her injuries could no longer act as Lecturer in Charge (LIC) of PPIT.[34] She offered to tutor instead, which was accepted. During this period she took up other offers of tutoring work and continued to try to resolve her PhD supervisory panel issue.
[33] Exhibit R1, p.117.
[34] Ibid.
THE MEETING BETWEEN MS SUTHERLAND AND MS DREW
The basis of Ms Sutherland’s contention that she was at UC on 15 January 2013 performing work required by her employer, is an email from Associate Professor Girija Chetty dated 11 January 2013.[35] The email was addressed to Ms Carol Drew who had delivered PPIT in the final semester of 2012. Ms Sutherland, Associate Professor Dat Tran,[36] and Dr Kim Le[37] were included as information addressees on this email, which states:
[35] Exhibit R1, pp.100-101. Associate Professor Chetty has held a number of leadership positions at UC, currently as Head of the Multimodal Systems and Information Fusion Group.
[36] Associate Professor Tran is the Academic Program Leader for the Information Technology and Engineering academic program at UC.
[37] Dr Kim Le is the Unit Convenor of PPIT at UC.
Hi Carol,
…
This is regarding PPIT for Sem1 2013.
If you recall, you mentioned that you will not be able to do PPIT for us for S1 2013. And we did organise another lecturer Mike Cairns to teach that unit.
However, Mike has informed that he is not interested in doing the unit anymore. So we need someone else to pick up that unit.
Susan has kindly agreed to do the PPIT unit in place of Mike. Would you please help Susan by including her in the Moodle access for the unit, and provide the study material.
We need approval from A/Prof. Dat Tran, who is the new Discipline Head / Program Head, and Susan will get in touch with Dat regarding sessional contract approval.
Also, Kim is the unit convenor, so he will create the Moodle site and give lecturer access to Susan (once Dat approves the contract).
Sorry about bothering you Carol, but I thought Mike will do the unit. Now, we don’t have time (just two weeks left).
Dat, I forgot to update you on this before. So sorry.
Girija
No UC staff were called to give evidence at the hearing, but it is clear from Associate Professor Chetty’s email, confirmed by the oral evidence of Ms Sutherland, that by 11 January 2013 she had accepted an offer to deliver PPIT. It is also clear there was a relatively brief period of two weeks to accomplish a handover of PPIT and complete course preparations before commencement of the semester on 4 February 2013.
Within an hour of receiving Associate Professor Chetty’s email, Ms Sutherland contacted Ms Drew to coordinate a meeting.[38] Their email exchange resulted in agreement to meet on the afternoon of 15 January 2013. Associate Professor Chetty was copied into this correspondence. The meeting occurred between 1-2 pm on 15 January 2013. Ms Drew subsequently sent Ms Sutherland a follow-up email at 3.38pm on the same day referring to Ms Sutherland’s fall at the Refectory, which she had witnessed,[39] stating: ‘Hope there are no broken bones! That was a terrible fall you had. Let me know how you are.’ Ms Drew also noted a number of scheduling, booking and other preparatory tasks Ms Sutherland had to complete for PPIT. The email provides instructions to Ms Sutherland and directs her to undertake certain tasks in order to deliver PPIT. Her email states in part:[40]
[38] Exhibit R1, p.100.
[39] Exhibit A2.
[40] Ibid.
‘…You need to book the lectures to be recorded.
I have also forwarded the timetable for tutes…
You need a unit outline…
You need to book the library session…
The assignment sheets need their due dates updating.
It might also be time for the exam to be booked...
…
Plus I think online communication etiquette and communication needs to be incorporated at some stage (I have yet to do this).
I have given timetable your name so they know who is running PPIT this semester…’
ISSUE 1 – WAS MS SUTHERLAND AN EMPLOYEE OF UC ON 15 JANUARY 2013?
In determining the nature of the relationship between UC and Ms Sutherland, I must consider whether, on the balance of probabilities, she was employed by UC under either a law of the Commonwealth or a contract of service. Ms Sutherland had worked at UC since 15 February 2010 under sessional contracts of employment.[41] Letters from UC’s Human Resources Department elaborate upon the process the Respondent contends was required to establish an employer-employee relationship with sessional academic staff:
‘…When an employee is contracted for a semester, a timetable form with all of the hours and relevant dates for the semester is completed. That form is countersigned by the casual academic employee, and the delegated manager (usually the Dean of the Faculty). This forms a contract of employment for the hours included in the timetable.’ [42]
‘…payslips will always state pay period ending and timetabled days worked…at the time of the injury, sessional contracts were signed between the faculty and the employee. A sessional employee will have a signed timetable for engagement, where at the time the faculty administrators processed the timetables…’
[41] See email from Ms Karen Dymock dated 13 February 2013; Exhibit R1, p.130.
[42] Exhibit R1, pp.78-80.
The Respondent submits that this formal authorisation process is an essential precondition to the forming of an employer-employee relationship between UC and Ms Sutherland, stating:
‘There is nothing in…any…legislation the Respondent is aware of[,] which suggests the applicant was employed under a law of the Commonwealth or the Territory.
…
…She was employed to perform work in the second semester of 2012, which finished before Christmas 2012. And no contract had yet been entered into for employment in the first semester of 2013, which began on 4 February 2013. The Applicant was not employed to perform any work on 15 January 2013.
The Applicant met with Ms Drew on 15 January 2013 to discuss a prospective contract. Her employment and employment duties in the first semester 2013 remained to be determined and formalised. The meeting with Ms Drew about prospective employment was not ‘employment’ because she was not engaged under any contract to have that meeting. The negotiation of a potential employment contract does not constitute ‘having a job’ or ‘working’ (see also Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641.6)
Both the Sessional Contracts…and the e-mails…clearly show a process where (i) certain academic staff within UC’s Faculty of Information Sciences and Engineering sought to ascertain who was available to provide tutoring for the upcoming semester; (ii) such staff then decided who would be asked to tutor particular groups; and (iii) after these 2 steps had occurred, approval at a more senior level within the University and completion of the necessary forms and sessional contracts was required to formalise an employment relationship. As far as the applicant was concerned, as at 15 January 2013, this process had not moved beyond the second of these stages. Until it had the applicant was not working for and did not have a job with the University.’[44]
[44] Respondent’s Outline of Argument, 24 November 2017, pp.3-4.
The Respondent contends that formal authorisation of a sessional contract by a UC delegate is an essential precondition for the establishment of an employer-employee relationship. In effect, negotiation of sessional contracts is undertaken by faculty staff acting as recommending authorities, with more senior staff like faculty deans exercising their delegation as approving authorities. A separate Sessional Academic Timetable must be included with each contract, listing the specific hours of work to be performed during teaching weeks. Faculty staff provide oversight of the agreed timetable and process applications for payment. Variations to the agreed terms, like the provision of additional lectures/tutorials or unavailability to complete a contractual obligation due to illness, required completion of a Sessional Academic Variation form, which had to be authorised by UC personnel with the required delegations.[45]
[45] Three examples of Sessional Academic Variation forms are at Exhibit R1, pp.89-91
No UC staff were called to give evidence at the hearing. But, based on the two sessional contracts of employment relevant to my consideration of this matter, the formal authorisation process described above was not applied to either of Ms Sutherland’s sessional contracts in late 2012 or early 2013. She commenced performance of the academic services agreed in those contracts weeks before they were authorised by a UC delegate:
(a) Contract 1: 6 August 2012 – 27 February 2013.[46] Ms Sutherland signed this sessional contract on 17 August 2012 for a unit titled Database Design. This was eleven days after the contract period commenced on 6 August 2012. The UC delegate, Dr Dhamendra Sharma, authorised the contract on 11 September 2012, which was approximately five weeks after the contract period commenced and approximately three weeks after Ms Sutherland began tutoring.[47]
(b) Contract 2: 4 February 2013 – 10 May 2013.[48] Ms Sutherland signed this contract on 21 February 2013 for PPIT, approximately 10 days after she first supervised students enrolled in this unit during the week commencing 11 February 2013. She commenced tutoring in the week commencing 18 February 2013. The UC delegate, Ms Alison Daun did not authorise this contract until 13 March 2013, which was approximately three weeks after Ms Sutherland had commenced providing the academic services specified in the contract.
[46] Exhibit R1, p.83.
[47] Exhibit R1, p.84.
[48] Exhibit R1, pp.85-86.
I note that a Comcare delegate wrote to Ms Sutherland on 11 January 2016 expressing satisfaction that she was an employee on 15 January 2013.[49] The same delegate confirmed on 12 July 2016 that Ms Sutherland ‘had a contract,’ which indicated she was employed by UC on the date of her fall.[50] The delegate’s revocation of the earlier acceptance of liability was based instead on a finding that Ms Sutherland had no hours of work scheduled on 15 January 2013, and was therefore not required to be at UC ‘for any work-related reason.’[51] Her presence on campus on the date of her injuries is referred to as a ‘preference,’ related to her PhD studies, which are not covered under the SRC Act.[52] The Respondent contends that Ms Sutherland’s sessional contracts at UC were strictly on a work ‘by the hour’ [53] basis and the 59 hours of work she was obligated to perform during second semester 2012, had ceased prior to Christmas 2012. Moreover, ‘no contract had yet been entered into’ for PPIT[54] by 15 January 2013 and it was not until the week commencing 11 February 2013 that Ms Sutherland commenced performing work for PPIT. The Respondent contends, therefore, that Ms Sutherland didn’t have a job and wasn’t formally working at UC until February 2013.
[49] Exhibit R1, pp.112-115.
[50] Exhibit R1, pp.139-143.
[51] Exhibit R1, pp. 112-115.
[52] Exhibit R1, pp. 139-143.
[53] Exhibit R1, pp.78-80.
[54] Respondent’s SOFIC para 4.3.
With respect to the Respondent’s submissions, the evidence does not show that Ms Sutherland’s meeting with Ms Drew on 15 January 2013 was either ‘very preliminary’ or to discuss a prospective contract. There was no evidence adduced that Ms Drew was authorised to negotiate contracts on behalf of UC. It is also clear from Associate Professor Chetty’s email that the purpose of the meeting between the two women was to facilitate a handover of PPIT, to inform Ms Sutherland’s completion of the required preparations. Four days prior to the meeting with Ms Drew, Ms Sutherland had accepted Associate Professor Chetty’s offer to deliver PPIT in place of Ms Drew and Mr Cairns. The PPIT Unit Convenor (Dr Kim Le) and Faculty Program Head (Associate Professor Dat Tran) were included in Associate Professor Chetty’s email, which conveyed a sense of urgency about the limited timeframe available (two weeks) to complete preparations for PPIT. Ms Drew’s role, as the academic who had most recently delivered PPIT, was to handover the unit to Ms Sutherland.[55] After meeting with Ms Sutherland on 15 January 2013, Ms Drew sent a follow-up email detailing a range of tasks that Ms Sutherland needed to accomplish within the following fortnight. Ms Drew noted she had given Ms Sutherland’s name to UC’s unit schedulers, ‘…so they know who is running PPIT this semester.’[56]
[55] Exhibit R1, pp.100-101.
[56] Exhibit A2.
In responding to Comcare’s enquiries about Ms Sutherland’s employment status, UC Case Managers interact predominantly with Ms Carol Drew – on one occasion seeking her recollection about a meeting with Ms Sutherland almost three years earlier.[57] But it is unclear why the views of Associate Professor Chetty and the other faculty staff included in Associate Professor Chetty’s email dated 11 January 2013, were not sought. They, after all, had the authority to negotiate, recommend and approve sessional contracts on behalf of UC. No UC staff were called as witnesses at the hearing and it was therefore not possible to ascertain their understanding of Ms Sutherland’s employment status or the purpose of her attendance at UC on 15 January 2013. The absence of their evidence results in incomplete communication between UC and Comcare in relation to Ms Sutherland’s employment status as follows:
(a) UC’s advice to Comcare dated 14 February 2013[58] omits Ms Sutherland’s meeting with Ms Drew, as does its correspondence dated 9 October 2015,[59] which states: ‘There is no evidence to suggest that Ms Sutherland was on campus to perform employment duties on 15 January 2013….’ The reference to Ms Sutherland’s ‘intention to sign a new sessional contract and timetable for tutoring in Semester 1, 2013 with Ms Drew’ is clearly erroneous, given there is no evidence to suggest Ms Drew had any authority to negotiate or approve sessional contracts; and
(b) UC’s letter to Comcare dated 5 July 2016[60] makes no mention of Associate Professor Chetty’s offer to Ms Sutherland to assume responsibility for delivering PPIT in Semester 1, 2013 or her acceptance of that offer. The letter states that a ‘discussion on engagement had started but this was not formalised until later in January (after [the] injury).’ This correspondence does not adequately reflect the extent of Ms Sutherland’s discussions with Associate Professor Chetty.
[57] Exhibit R1, p.110.
[58] Exhibit R1, p.24.
[59] Exhibit R1, p.79.
[60] Exhibit R1, pp.135-138.
On the evidence before me I do not accept the Respondent’s submission that the Tribunal should conclude Ms Sutherland’s employment ended upon the completion of her duties in 2012. If that was the contractual intent, it would not have included 27 February 2013 as an end date, or its terms would have provided for earlier termination of the employer-employee relationship.
I also do not accept the Respondent’s contention that the essential requirement for Ms Sutherland to be considered a UC employee on 15 January 2013 was a completed contract and ‘approval of someone higher up,’ because neither of the sessional contracts relevant to these proceedings were authorised in accordance with that process prior to Ms Sutherland’s commencement of work. Just because a contract was not signed by UC and Ms Sutherland by 15 January 2013, does not mean that an employer-employee relationship was not in place relating to her delivery of PPIT. The circumstances of this case reveal that by 15 January 2013, Ms Sutherland’s conduct and that of UC faculty staff with the authority to negotiate and approve sessional contracts, had moved well beyond the ‘very preliminary’ discussions contended by the Respondent. Ms Sutherland’s conduct reflects work undertaken in the expectation that she would deliver PPIT in first semester 2013. In coordinating a meeting with Ms Drew within an hour of receiving Associate Professor Chetty’s email and then meeting with Ms Drew on campus four days later, Ms Sutherland was addressing the preparatory requirements for PPIT initiated by and with the knowledge of senior faculty staff.[61] Her attendance at UC on 15 January 2013 can only be considered performance of duties as agreed between an employer and employee.
[61] In Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at [11; 117], McHugh JA stated: “It is an error ‘to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed’. ... Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words. ... The question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances shows a tacit understanding or agreement.’
I note that courts in Australia and overseas have routinely held that preliminary negotiations via email, text or other communications can constitute a binding contract, despite formal documents not being executed. In May 2015, for example, the Supreme Court of Queensland held in Stellard [62] that a binding contract was made by email despite references in the email exchanges to the agreement being ‘subject to contract’ and ‘subject to execution.’ The Court held that the email exchange satisfied the requirement that a contract be in writing and signed.
[62] Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd [2015] QSC 119. See also Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21, where it was held a binding contract had been made by emails, despite referencing the necessity for ‘formal approval.’
If it was intended that UC’s contracting policy for sessional staff would be strictly adhered to, and Ms Sutherland was not to undertake any work relating to PPIT until formal authorisation by a UC delegate, she should have been advised of this by Associate Professor Chetty, Associate Professor Dat Tran or Dr Kim Le. She was not. As the author of the email securing Ms Sutherland’s services to deliver PPIT, Associate Professor Chetty did state ‘we need approval from A/Prof. Dat Tran,’ and Ms Sutherland would ‘get in touch with Dat regarding sessional contract approval.’ But on any reading of Associate Professor Chetty’s email, it reflects evidence of concluded negotiations for a new sessional contract in Semester 1, 2013. The conduct of the parties in the aftermath of that email shows them proceeding on the basis that a continuing employment relationship was in place, and raises the very question posed by Comcare’s own Claims and Liability Management Section on 9 November 2015, as to whether the subsequent contract authorisation was ‘more of a formality than anything?’.[63] I am satisfied on the evidence that the contract approval referred to by Associate Professor Chetty was in effect a formality. This is demonstrated by: the continuing sequence of sessional contracts undertaken by Ms Sutherland since 2010; the allocation of an office at UC that Ms Sutherland used for both her PhD studies and sessional teaching responsibilities; the absence of evidence that anyone other than Ms Sutherland was being considered to deliver PPIT; Associate Professor Chetty’s initiation of a handover between Ms Drew and Ms Sutherland prior to formal contract authorisation; and the fact that a sessional contract between UC and Ms Sutherland was subsequently authorised for PPIT – albeit in a tutoring role rather than as Lecturer in Charge (LIC) due to the physical limitations arising from her injuries. The convincing weight of evidence reflects animus contrahendi, and that a continuing employer-employee relationship existed at this time between Ms Sutherland and UC – a belief she was not disavowed of.
[63] Exhibit R1, p.106.
I have had regard for the Respondent’s contention that in examining the employment relationship between UC and a sessional academic staff member, the Tribunal should have regard to the reasoning of Jessup J in the Full Federal Court’s decision in NTEU v Swinburne[64] at [15], which states:
‘As mentioned, the University’s cohort included all sessional academic staff who had been employed at any time in 2013, that is to say, over a period of 12 months before the s 181 request was made. In the Full Court, counsel for the University invited us to hold that every person who completed an “application for sessional academic engagement” of the kind referred to by the Commission in the passage set out in para 19 of its reasons (see para 11 above), and whose application was accepted, remained in the employ of the University until he or she informed the University of his or her intention to undertake no further work there. We were also invited, in effect, to take it as a given that the cohort to whom the s 181 request was addressed was made up of individuals in this category. Those invitations should not be accepted. Although a pro-forma for an application of the kind referred to was in evidence before the Commission, the case before it was not decided by reference either to the legal nature of the relationship brought about the execution, and acceptance, of a form in those terms or to a finding as to how many of those to whom the s 181 request was addressed had in fact executed such a form and had not subsequently indicated that they desired to have no further work from the University.’
[64] National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.
This case relates to voting eligibility of ‘employees’ in an Enterprise Bargaining Agreement, within the meaning of that term in section 181 of the Fair Work Act 2009 (Cth). In contrast, Ms Sutherland’s application relates to whether she was a UC employee whose injuries arose out of, or in the course of, her employment. Although in general terms there are similarities between the two cases relating to what might constitute an employer-employee relationship, the connexion is not of great assistance in this matter. The Respondent accepts that Ms Sutherland had a sessional contract in place on 15 January 2013, which did not expire until 27 February 2013. Her unchallenged evidence is that she had lodged expressions of interest for further sessional work during the final semester of 2012, but by 15 January 2013 she had already accepted an offer from Associate Professor Chetty to deliver PPIT in the following semester.
I note the reference in NTEU v Swinburne, however, to circumstances where the employer-employee relationship is not extinguished until the person advises the University of their intention not to undertake any further work. This resonates with a decision by the Full Bench of Fair Work Australia in Shortland[65]at [13] that:
Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements.
[65] Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709.
Ms Sutherland’s unchallenged evidence is of a work history at UC from 2010-2013, which is characterised by a series of contracts unbroken by the words or actions of either party that the employer-employee relationship would cease. Ms Sutherland stated at the hearing that this employer-employee relationship continued into 2017, reflecting a regular and systematic arrangement. I also accept Ms Sutherland’s unchallenged contention that it was common practice for sessional contracts to be authorised weeks after the actual commencement of work, and that on 15 January 2013 she had a clear expectation of continuing employment to deliver PPIT during Semester 1, 2013 – well prior to the formal authorisation of her sessional contract two months later. Although the nature of her injuries was such that she could not subsequently lead the delivery of PPIT, she was nevertheless contracted as a tutor. But the conduct of both parties during mid-January 2013 reflects a mutual expectation of continuing employment for Ms Sutherland. Both parties relied on this expectation. I do not accept the contention that she was not employed to perform any work on 15 January 2013.
The Respondent submits that it was Ms Sutherland’s PhD studies and not her sessional teaching responsibilities that were the primary purpose of her attendance at UC on 15 January 2013, and that her allocated room at UC predominantly served her PhD requirements. The Respondent contended at the hearing that Ms Sutherland has underplayed the emphasis on her studies during this period, because attendance at UC for that purpose ‘does not attract compensation.’ I disagree. I found Ms Sutherland’s evidence on this issue to be forthright and convincing, especially as it would appear that PhD students at UC are not routinely allocated their own individual offices.[66] The evidence shows that she has concurrently undertaken PhD studies and sessional teaching responsibilities at UC since 2012, demonstrating a capacity to successfully undertake both. I also note that:
(a)Ms Wendy Flint, Deputy Director of Client Relationships at UC, confirms that the room allocated to Ms Sutherland served as a base both for her postgraduate studies and sessional teaching responsibilities.[67] Similarly, Ms Drew states that when Ms Sutherland was undertaking sessional contract work concurrent with her PhD studies, she attended UC ‘as frequently for both work and study;’[68]
(b)Ms Sutherland’s two scheduled meetings on 15 January 2013 did not relate to her PhD studies but to her work as a sessional academic at UC; and
(c)During January 2013, Ms Sutherland’s PhD studies were awaiting confirmation of a new supervisory panel, and her unchallenged evidence is that assuming Lecturer in Charge responsibilities for PPIT would constitute almost fulltime work.
[66] Exhibit R1, p.107, paragraph 7.
[67] Exhibit R1, p.136.
[68] Exhibit R1, p.110.
Ms Sutherland’s sessional contract for second semester 2012 did not expire until 27 February 2013, more than a month after her fall at the Refectory. Moreover, I am satisfied on the weight of the available evidence that she was performing work relating to PPIT on 15 January 2013, which had been initiated by and was undertaken with the knowledge of senior faculty staff with the authority to negotiate and approve sessional contracts. I therefore find that Ms Sutherland was an employee of UC on 15 January 2013 within the meaning of the SRC Act.
ISSUE 2 – DID MS SUTHERLAND’S INJURIES ARISE OUT OF, OR IN THE COURSE OF, HER EMPLOYMENT AT UC?
Having found that Ms Sutherland was an employee of UC on the date of her injuries, it remains to consider whether her injuries arose out of or in the course of her employment. As held by O’Callaghan J in O’Loughlin[69] at [45], I have had regard for the beneficial nature of section 6 of the SRC Act:
‘Because s 6 is a facultative provision, it must be afforded, as the Act as a whole must be afforded, a beneficial, and not a narrow, construction. The Act “is socially remedial legislation intended to benefit workers and should be given a construction which advances its purposes as such”. It follows that “where two constructions are possible, that which is favourable to the worker should be preferred”: Thiele v Commonwealth (1990) 22 FCR 342 at 346, citing Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 per Fullagar J. Similarly “where two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust”: Comcare v Tiscay (1992) 38 FCR 181 at 188, citing Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350; see too Whittaker v Comcare (1998) 86 FCR 532 at 544F-545B.
[69] O’Loughlin v Linfox Australia Pty Ltd [2017] FCA 1394.
This case raises two possible constructions regarding Ms Sutherland’s employment status and whether her injuries arose out of or in the course of her employment. For the reasons previously adduced, I am satisfied that Ms Sutherland undertook work on 15 January 2013 as an employee of UC and was therefore at her 'place of work' as defined at section 4 of the SRC Act.
Ms Sutherland had use of an office at UC, which served as a base for both her postgraduate studies and sessional teaching responsibilities.[70] After her meeting with Ms Drew she went to the Refectory for lunch, which was approximately 200-300 metres away within the UC campus.[71] Ms Drew confirms Ms Sutherland’s presence in the Refectory at this time and witnessed her unfortunate accident.[72] There is no evidence to suggest that the lunch break taken by Ms Sutherland in any way related to an unauthorised recess. I accept her unchallenged testimony that under sessional contract arrangements she was permitted to take a break as the commitments of her day allowed.[73] I find that her injuries occurred while she was temporarily absent from her office during an ordinary recess in her employment.
[70] Exhibit R1, p.136. This is confirmed by Ms Wendy Flint, Deputy Director of Client Relationships at UC, who states: ‘The room was allocated to her for both employment and her studies.’
[71] Exhibit R1, p.106.
[72] Exhibit R1, p.110.
[73] Exhibit R1, p.116, paragraph 1.3.
In light of the findings made above, it is not necessary to determine whether Ms Sutherland’s second scheduled meeting on 15 January 2013 with Ms Gherlinzoni, to discuss non-payment of fees for a lecture previously delivered in second semester 2012, was also in the course of her employment. In any event, not much turns on this. For completeness, however, I find that her meeting with Ms Gherlinzoni was to discuss an employment–related matter relating to a sessional contract that did not expire until 27 February 2013.
CONCLUSION
Ms Sutherland was a UC employee on 15 January 2013. Prior to leaving her office for lunch on that day, she was doing precisely what her employer had requested she do – facilitate the transition of and prepare to deliver PPIT within a relatively constrained timeframe. Her injuries occurred at her place of work during an ordinary recess in her employment and arose in the course of her employment at UC.
DECISION
It therefore follows that the Tribunal sets aside the decision under review and in substitution decides that Ms Sutherland is entitled to compensation under section 14 of the SRC Act in respect of the injuries that arose in the course of her employment on 15 January 2013.
I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC ........................................................................
Associate
Dated 11 December 2017
Date(s) of hearing 27 November 2017 Counsel for the Applicant Mr Jason Moffett Solicitors for the Applicant Maurice Blackburn, Lawyers Counsel for the Respondent Mr Andrew Berger Solicitors for the Respondent Claims and Liability Management Legal, Comcare
[43] Exhibit R1, pp.135-138.
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