Tang v D and Y Export

[2014] VMC 26

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

Case No. E10950593

KUONG BUON TANG	Plaintiff
v
D & Y EXPORT PTY LTD	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7, 8 & 9 OCTOBER 2014
DATE OF DECISION:	30 OCTOBER 2014
CASE MAY BE CITED AS:	TANG v D & Y EXPORT

REASONS FOR DECISION

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Catchwords: Factual dispute – worker alleges he sustained injury to his left big toe which subsequently required amputation as a consequence of an incident occurring on 2 April 2011 arising out of or in course of his employment – Claim rejected pursuant to s 109 on grounds that he was not employed by defendant and incident did not occur at employer’s premises - Claim Dismissed.  

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D O’Brien	Slater & Gordon
For the Defendant	Mr M Gray	Lander & Rogers

HIS HONOUR:

1       Mr Tang is 40 years of age and alleges that he sustained an injury to his left big toe whilst employed by the defendant as a labourer on 2 April 2011. As a consequence of developing gangrene, his left big toe was amputated on 14 February 2012. Mr Tang lodged a Workcover claim form dated 19 January 2012 which was rejected by the defendant on 16 February 2012 pursuant to s 109 of the Act on the grounds that he was not a worker within the meaning of the Act and the alleged incident and injury did not occur at its scrap metal yard on 2 April 2011.

2       The defendant also relied on the special defences contained in s 102 and s 103 of the Act but it is not necessary for me to consider the application of those defences as a result of the conclusions I have reached on the evidence presented.

3       Mr Tang gave evidence through the assistance of a Vietnamese interpreter and he called evidence from his friend, Mr Si Tan Ho in support of his claim. The defendant called evidence from Mr Dung Duc Nguyen (“Johnny”) and his wife, Mrs Yen, who are the joint owners of the business and Mr Anil Balu who is employed by it as a Supervisor.

4       Ultimately, the determination of the claim relied on the credibility of the witnesses who were called to give evidence and whether Mr Tang was able to discharge the onus of proof of satisfying the court that he was in fact employed by the defendant company on the said date and sustained injury arising out of or in the course of that employment.

5       Mr Tang gave evidence that he was born in Cambodia and arrived in Australia via Vietnam in 2002. He said that he first met Mr Nguyen when they both worked at a chicken factory and became friends. He told the court that he started working for Mr Nguyen in his scrap metal business in Sunshine in October 2010 and that they socialised outside of work hours including him visiting Mr Nguyen’s house on at least one occasion where he was introduced to Mrs Yen. He said that his duties required him to assist in loading scrap metal into containers by hand or by use of a forklift truck. He told the court that he worked under the supervision of “Ali”, being Anil Balu. Mr Tang said that customers would visit the premises and sell their scrap metal which would be weighed and put into bins and then containers which would then be collected by truck and transported locally or overseas. He said the customers were paid cash for the metal by Mrs Yen who worked in the office on site. During evidence in chief, he told the court that he would generally work five days a week, Monday to Friday from approximately 6 or 7 a.m. to 4 or 5 p.m. and that he would not be required to work overtime. He said that he was paid cash in an amount of $650-$700 on a weekly basis by Anil or Mrs Yen. He said it did vary depending on “how hard I worked”.

6       Mr Tang told the court that he sustained injury to his left big toe on 2 April 2011 when the “arm” (tine) of the forklift truck which Anil was driving came loose and fell onto his foot. Mr Tang gave evidence that Anil drove him to Dr Pham at St Albans Family Doctors Clinic who advised him to go to the Sunshine Hospital. He said that because of the injury, Anil had to carry him into the doctor’s surgery and the hospital. Mr Tang gave evidence that because his English is poor Anil informed the doctors at the hospital what had occurred. He said that whilst he was at the hospital Mrs Yen visited him and when he was discharged later that day he was driven home by Anil. Mr Tang told the court that his toe subsequently became infected which resulted in it being amputated.

7       Mr Tang gave evidence that he remained unfit for work until November 2012 when he managed to obtain employment for a period of 9 months with Westcom and was eventually dismissed because the boss thought he was “too slow”. Mr Tang said that this was due to the pain he was experiencing in his left foot.

8       In cross examination, it was eventually revealed by Mr Tang that he was in receipt of New Start benefits from Centrelink whilst he was allegedly working with the defendant. His evidence was to the affect that he worked with Westcon until September 2010 and then worked with the defendant from October 2010 to December 2010 and then recommenced in late February 2011. He initially told the court that he only received Centrelink benefits for one month when working for the defendant but later conceded he continued to receive Centrelink benefits between February 2011 and November 2012 when he returned to work with Westcom. He agreed that he knew it was “wrong” to be working and to be in receipt of Centrelink benefits and blamed the defendant for not “reminding” him that it was “wrong” and to tell Centrelink that he was working permanently. He also said that when he started work with the defendant he was on probation and was worried that if the job ended he would be without income if he told Centrelink he was working.

9       In cross examination, Mr Tang confirmed that he only worked Monday to Friday and did not perform overtime. When he was informed that 2 April 2011 was a Saturday he said; “Now I just remembered”. Mr Tang explained his confusion by telling the court that his English was not good and that he was not clear on which day the accident happened but he now knows it happened on a Saturday. When he was asked whether he was working on Saturday 2 April 2011 he said; “I cannot remember”. He then told the court that sometimes he would not work Monday to Friday and sometimes he would work on Saturday as it depended on whether he was rung by Anil to inform him that they needed him to work. He also said that “sometimes in the afternoon I came to help Ali”. Mr Tang said that when he did work he and Anil could not communicate very well so Anil would simply point to what he wanted him to do.

10      Mr Tang said that he was not paid by the hour but per container that he and Anil filled. He said they would be paid $600 per container which they would divide between them. He estimated they would fill on average 3 containers each week. He said that he did not fill in any tax forms with the defendant because they did not ask him to do so and did not pay any tax on the money he was paid. In answer to a question from the court Mr Tang said he did not bank any of the money he received as he used it to pay rent, debts and living expenses.

11      In cross examination, Mr Tang said he could not recall if Anil drove him to the doctor’s surgery or to the hospital as he had previously told the court. He told the court that he cannot remember if it was Anil or a cousin of Mrs Yen (Tung Tran) who drove him to the doctors and hospital and from the hospital to his home after he was discharged.

12      Mr Tang denied that he only attended the employer’s premises to visit Mr Nguyen, to drink coffee, socialise and on one occasion, to discuss a possible business venture involving exporting scrap metal to Vietnam.

13      When questioned as to the reason the medical records at the hospital where he was admitted at 1.34 p.m. record different histories, those being, at 1.40 p.m. “Pt was at work and metal wt approx 150 kg fell onto L foot” and then a history taken at 1.59 p.m. recorded; “dropped a 20-30 kg metal pipe onto foot at 1 p.m. at home”, he said that Mrs Yen told him to say that because the defendant would otherwise get in trouble from Workcare. He told the court that he was able to communicate directly with Dr Pham as he spoke Vietnamese but Tung Tran spoke to the doctors at the Hospital on his behalf. The report from Dr Pham  record a history taken at 1.28 p.m; “Accident at work, something fell on his feet”.

14      Mr Tang was also questioned but could not answer why he told Mr Reid, General Surgeon, who examined him on behalf of the defendant on 13 February 2012 and 15 September 2014 and Mr Brearley who examined him on behalf of his lawyers on 12 September 2014 that he had not worked since the injury notwithstanding his evidence that he worked at Westcom between November 2012 and August 2013.

15      Mr Ho gave evidence that he is a friend of Mr Tang and on occasions, during weekdays and on weekends, he attended the defendant’s premises to visit Mr Tang or to sell car batteries and receive cash payment for them from Mrs Yen. He told the court that when he visited the premises he saw Mr Tang performing ‘odd jobs” including sorting out metal parts and putting metal parts into containers. He said that he saw Anil and Mr Nguyen at the premises and on one occasion visited Mr Nguyen’s house with Mr Tang for social purposes.

16      In cross examination, he said that he only sold batteries to the defendant on one occasion but did visit on at least two other occasions where he saw Mr Tang working. He told the court that he knew the names of Mrs Yen, Mr Nguyen and Anil because he spoke to them when he attended the premises. He also said that he has not attended the premises since Mr Tang ceased working there.

17      Mr Nguyen gave evidence through the assistance of a Vietnamese interpreter  and told the court that he and his wife, Mrs Pham Thi Minh Yen are the owners and directors of the defendant company. He said that he initially came to Australia in 1996 and set up the company in 2008. He gave evidence that he first met Mr Tang when they worked together at a chicken factory and became friends.

18      Mr Nguyen gave evidence that Mr Tang never worked for the company. He said they only employ Anil Balu, who is the Manager of the scrap metal yard. He told the court that Mr Balu is paid by cheque or electronic funds transfer only. He said that his business involves buying scrap metal from customers for cash and selling it in bulk to others. He said that Mr Tang would attend the yard once a week or once a fortnight for the purposes of a social visit only. He told the court that Mr Tang also visited him at his house and on one occasion brought his friend, Mr Ho. Mr Nguyen said the incident on 2 April was not reported to him and he is not aware of any occasion where a tine fell off a forklift at the yard. He said he first heard that Mr Tang sustained an injury to his foot when his wife told him a few days later. He said that since the injury Mr Tang has not attended the yard or visited him at his home. He told the court that Mr Tang had previously suggested that they enter into a business relationship involving exporting scrap metal to Vietnam but he did not agree with the proposal.

19      In cross examination, Mr Nguyen gave evidence that customers would attend the yard to sell copper, lead, zinc or iron and be paid in cash. He said the amount paid would depend on the type of metal and its weight. He said the customers would put the metal into the designated bins which would then be weighed on a scale. He said if they were large items a forklift would be used to lift the metal which would be operated by either him or Anil. He gave evidence that in 2011 the company had 4 employees consisting of he and his wife, Anil and “Varu”, a part time casual employee. Later, he recalled that his wife’s cousin, Tung Tran also worked in 2011 up to 20 hours per week.

20      When presented with Payment Summary documents of the business which indicated Mr Balu had earnings of $8,160 gross for the year ended 30 June 2011 and Tung Tran had earnings of $8,840 for the same period, Mr Nguyen had some difficulty explaining how Mr Tran, who he said only worked 20 hours per week, had greater earnings than Anil Balu who was employed on a full time basis as Manager. He denied there was a discrepancy in the documents or that not all employees are recorded in the accounts of the business. When questioned as to the reason he and his wife are not recorded as earning an income he said that the business is actually owned by a Family Trust in the name of their daughter, Julia Nguyen, with he and his wife being Trustees who are paid dividends as Trustees and not wages as employees. Mr Nguyen agreed that the company operates on a cash basis as customers are paid cash for their metal and that cash is kept on the premises which they access from the company bank account. He said that he advertises his business as “Cash for Scraps”. Mr Nguyen said that although he was friends with Mr Tang he was not aware of what work he did in 2011. He said that his wife visited Mr Tang in hospital because she was a friend. He denied the suggestion that Mr Tang was an employee of the company and was paid cash for the work he did. He also denied that the incident occurred at his yard and that he is denying the claim because of his concerns regarding Workcover. He said that he pays workcover insurance for his employees and they are covered.

21      Mrs Yen gave evidence that she works as the “bookkeeper” for the business. She said that she pays customers cash for their goods and pays the wages to the employees of the business. She said that sometimes they are paid by cheque and other times by electronic funds transfer. She gave evidence that Mr Tang has never been an employee of the company and never worked for her company. She said that her cousin, Tung Tran did work for them in 2011 but he has since returned to Vietnam where he resides.

22      Mrs Yen gave evidence that Tung Tran told her that Mr Tang injured his foot and asked her for permission to take him to the doctors. She said that later that day she visited Mr Tang in hospital but did not have anything to do with his admission or discharge. She denied requesting Mr Tang change his story as to how and where the incident occurred. She said; “Why would he listen to me, he is a grown person”. She said that Tung Tran was at the hospital when she visited but Anil was not. She also said that she did not help in transporting Mr Tang home after he was discharged from hospital.

23      In cross examination, Mrs Yen could not explain why her name was recorded on the Discharge Summary form of Mr Tang at the Sunshine Hospital as the Patient Contact or whether the mobile telephone number recorded was hers at the time. She agreed that Tung Tran rang her to tell her that Mr Tang had sustained an injury and said that Tung Tran told her that Mr Tang had an accident at his home and requested that she help and sought permission to take him to the doctors. When questioned as to the reason he would need permission she said it was because she was his older cousin, he respected her, he lived in her house and he was only 20 years of age. She denied he contacted her and sought her help because Mr Tang was injured at her workplace. She denied that Mr Tang ever worked for the company, sustained the injury at the yard or that she paid him cash for his work. Mrs Yen said that Mr Tang did drop in to the yard from time to time for a coffee and a chat because he was a friend of her husband. She said that he has not visited the yard since the injury and she has not seen him since that date.

24      Anil Balu gave evidence that he has been employed by the defendant as Operations Manager for a period of 5 years. He denied that Mr Tang was employed by the company or that he sustained injury to his left foot at the yard on 2 April 2011. He denied; driving Mr Tang to the doctors surgery or to the hospital, waiting at the hospital with him, or driving him home. Mr Balu said he was never paid cash by his employer and used to be paid his wages by cheque but now he is paid by electronic funds transfer.

25      In cross examination, he said that Mr Tang did attend the yard once or twice per week in the afternoon or evening to visit Mr Nguyen. He said he could not recall if he ever attended on weekends. When questioned regarding his statement to an investigator that he had said that Mr Tang “attended socially and mainly on weekends” he agrees he must have said that but could not remember if that occurred. Mr Balu said he could not remember when Mr Tang ceased visiting the yard but when it was put to him that he had told the investigator that Mr Tang continued to visit between April 2011 and October 2011 but he “showed no signs of injury”, he agreed that he must have said that. He denied that; Mr Tang worked for the company, that he was his supervisor, that he would call Mr Tang when he wanted him to work or that he took him to the doctors surgery or the hospital. He denied being paid his wages in cash, could not recall his weekly earnings in 2011 but said he now receives approximately $800 net per week.

Conclusion

26      Mr Tang bears the onus of proving on the balance of probabilities that he was a “worker” within the meaning of the Act and sustained injury to his left foot on Saturday 2 April 2011 in the course of his employment with the defendant. He has failed to do so.

27      I did not find Mr Tang to be a convincing witness. He changed his evidence on more than one occasion when its accuracy was tested under cross examination. He initially told the court that he only worked for the defendant between Monday and Friday. When told that 2 April 2011 was a Saturday, he then said that he remembered that he also worked on weekends when requested to do so. He was adamant that Anil drove him to the doctors surgery and hospital following the injury and when it was put to him that Anil would deny the allegation he then recalled that it may have been Tung Tran.

28      Although Mr Ho said he saw Mr Tang performing “odd jobs” at the yard on three occasions, this evidence in combination with his own evidence is not enough to substantiate his claim that he was employed by the defendant  and was injured at its premises on 2 April 2011. This is so when compared to the consistent and unwavering evidence given by Mr Nguyen, Mrs Yen and Anil Balu that he was never employed and did not sustain the injury at the scrap metal yard on 2 April 2011. Mr Tang was unable to adduce any other evidence, be it from customers of the business or any documentation to substantiate his allegations.

29      I have reached my conclusion with some reservation after acknowledging that Mr Tang was prepared to give evidence incriminating himself[1] in the commission of offences to support his assertion that he was employed by the defendant at the time he sustained injury and after having reservations as to the veracity of the evidence given by the defendant’s witnesses.

[1] For which a Certificate was granted pursuant to s 128 of the Evidence Act 2008.

30      Ultimately, I have concluded that Mr Tang has failed to prove on the balance of probabilities that he sustained injury to his left foot on 2 April 2011  whilst employed with the defendant on 2 April 2011. His claim will be dismissed.