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Tsakiris v Active Pools and Spas Pty Ltd

Tsakiris v Active Pools and Spas Pty Ltd

Case [2025] NSWPIC 243 3 June 2025

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tsakiris v Active Pools and Spas Pty Ltd [2025] NSWPIC 243
APPLICANT:	Jordan Tsakiris
RESPONDENT:	Active Pools and Spas Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	3 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether applicant was a worker; considered and applied Stevens v Brodribb Sawmilling Co Pty Ltd, Malivanek v Ring Group Pty Ltd, and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3); indicia of employment to be considered within context of overall relationship between the parties; Held – applicant failed to discharge onus in establishing he was a worker in the employ of the respondent.
DETERMINATIONS MADE:	The Commission determines: Findings 1. The applicant has not discharged his onus in establishing he was a worker, employed under a contract of service, at the time of his injuries on 18 January 2024. Orders 2. All additional documents filed by the parties are introduced into the proceedings. 3. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained significant injuries on 18 January 2024 when his skin became contaminated with concrete while cutting and shaping a pool on behalf of the respondent.
The dispute concerns whether the applicant was engaged by the respondent as an employee and thus working under a contract of service or was a contractor working under a contract for service.

ISSUES FOR DETERMINATION

The parties agree the only issue requiring determination is whether the applicant was a worker when undertaking activities with the respondent on 18 January 2024.
The applicant did not argue before the Personal Injury Commission (Commission) that he was a deemed worker in accordance with schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Further it was agreed, that if the applicant succeeded on the issue of worker, he would be entitled to an award for weekly compensation and medical expenses as claimed in the application with the claim for lump sum compensation to be ultimately referred to a Medical Assessor.
I am grateful to the parties for limiting the issues requiring determination to the real issues in dispute between them.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference and arbitration hearing before me on
19 May 2025 by MS Teams. Mr James McEnaney of counsel appeared for the applicant instructed by Mr Kasturi. The applicant was in attendance. Mr Stiles of counsel appeared for the respondent instructed by Ms Chaplin. Mr Say of the respondent’s insurer was also in attendance.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tsakiris v Active Pools and Spas Pty Ltd

Details

AGLC: Tsakiris v Active Pools and Spas Pty Ltd [2025] NSWPIC 243
Case: [2025] NSWPIC 243
Decision Date: 3 June 2025

CaseChat Overview and Summary

In the case of Tsakiris v Active Pools and Spas Pty Ltd, the primary dispute revolves around the eligibility of the applicant, Tsakiris, to receive workers' compensation under the Workplace Injury Management and Workers Compensation Act 1998. The applicant, who had been involved in an incident while performing services for Active Pools and Spas Pty Ltd, sought to establish that he was a worker within the meaning of the Act, thereby entitling him to compensation for his injuries. This matter was brought before the court to resolve the specific legal issues surrounding the definition and application of the term "worker."

The court was tasked with determining whether Tsakiris met the criteria to be classified as a worker under the Act. This involved an analysis of the indicia of employment, which needed to be considered within the context of the overall relationship between Tsakiris and Active Pools and Spas Pty Ltd. The court referred to several key precedents, including Stevens v Brodribb Sawmilling Co Pty Ltd, Malivanek v Ring Group Pty Ltd, and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3), to guide its interpretation of what constitutes employment. It examined factors such as the degree of control exerted by the respondent over the applicant, the method of remuneration, and the nature of the working relationship.

Upon thorough examination, the court concluded that the applicant had not successfully demonstrated that he was a worker in the employ of the respondent. The court found that the evidence did not sufficiently establish the presence of all the necessary indicia of employment. Consequently, the court held that Tsakiris had failed to discharge the burden of proving his status as a worker under the Act. The court's reasoning was grounded in the specific circumstances of the case and the application of the relevant legal principles.

As a result of the court's determination, the applicant's claim for workers' compensation was dismissed. The court found that Tsakiris did not meet the statutory definition of a worker, and therefore, he was not entitled to compensation under the Act. This decision highlights the importance of a comprehensive analysis of the employment relationship when assessing eligibility for workers' compensation.

Orders