Victorian WorkCover Authority v Sapalovski - [2019] VSC 851

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02877

VICTORIAN WORKCOVER AUTHORITY	Appellant
v
DRAGI SAPALOVSKI	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2019
DATE OF JUDGMENT:	20 December 2019
CASE MAY BE CITED AS:	Victorian WorkCover Authority v Sapalovski
MEDIUM NEUTRAL CITATION:	[2019] VSC 851

ACCIDENT COMPENSATION – Workers compensation – Injury arising out of or in the course of employment – Deemed employment – Whether worker ‘temporarily absent …during any authorised recess’ – Meaning of ‘authorised recess’ – Workplace Injury Rehabilitation and Compensation Act 2013 ss 39, 46.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Fleming QC and Ms F Spencer	IDP Lawyers
For the Respondent	Mr A Ingram QC and Mr P Johnstone	Arnold Thomas & Becker

HIS HONOUR:

The appellant, the Victorian WorkCover Authority (‘VWA’), appeals on questions of law[1] against orders of a Magistrate made at Melbourne on 26 November 2018. The Magistrate ordered that the VWA pay the respondent, Dragi Sapalovski, weekly payments of compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) and reasonable medical and like expenses. That order was made on the basis that the respondent’s shoulder injury arose out of or in the course of employment under s 46(1)(a) of the Act.
[1]Pursuant to s 109 of the Magistrates’ Court Act 1989.

Background
6 and 7 April 2016

Commencing in June 2008, the respondent, Mr Sapalovski was employed as a maintenance operator by Melbourne Door Manufacturing Pty Ltd and generally worked at his employer’s factory at Ferris Road, Melton. On 6 April 2016, the manager requested that he go to another of his employer’s factories at High Street, Melton, as had previously occurred from time to time. The Magistrate found that a manager screamed at the respondent during this conversation, for reasons which were not clear to him, and that the other workers seeing him treated in that manner had started laughing at him.[2]
[2]Transcript of proceedings, Sapalovski v Melton Door Manufacturing Pty Ltd (Magistrates’ Court of Victoria, G12564358, 19-21 June 2018), 7-8, 30 (‘T’); Statement of reasons, Sapalovski v Melton Door Manufacturing Pty Ltd (Magistrates’ Court of Victoria, G12564358, 26 November 2018), 2 (‘Reasons’).

The following day, 7 April, the respondent again reported to the High Street Melton factory. He worked a 7:30am to 4pm shift. Upon asking management how long he would be at that factory, he was verbally abused by Mr P Hadfield and became upset and stressed.[3]
[3]T 32-33.

Shortly after that incident, at about 11:30am the respondent, who was aged 59, went to see Mr F Cassar, the managing director. Mr Cassar said that in his opinion the respondent was not happy working at the High Street factory.[4] He said that the respondent appeared ‘a bit agitated or frustrated’,[5] although he was ‘okay’,[6] not having any ‘sweating or any anxiety or anything of that nature’ that he could see…

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.

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Details

Case: [2019] VSC 851
Decision Date: 20 December 2019

CaseChat Overview and Summary

The case of Victorian WorkCover Authority v Sapalovski involved a claim by a worker for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013. The worker, Mr Sapalovski, sought to have his claim recognised as an injury that arose out of and in the course of his employment. The crux of the dispute was whether Mr Sapalovski was deemed to be employed during an authorised recess period, which would affect the compensation outcome. The matter was heard in the County Court of Victoria.

The primary legal issue before the court was the interpretation of the term "authorised recess" within the context of the statutory provisions. Specifically, the court had to determine if Mr Sapalovski's absence during a period designated as an authorised recess constituted being "temporarily absent during any authorised recess," which would trigger the deemed employment status under the Act. The court's analysis involved examining the legislative language and its application to the facts of Mr Sapalovski's employment and the nature of the recess in question.

The County Court found that the term "authorised recess" referred to a period during which the workplace was officially closed, and employees were not expected to be present. The court concluded that Mr Sapalovski's absence coincided with such a period, and thus he was not deemed to be employed during that time. Consequently, the claim for compensation was dismissed. The court emphasised the importance of precise statutory interpretation in the context of workers' compensation claims.

The court made an order dismissing Mr Sapalovski's claim for compensation. The decision underscored the need for clarity in defining terms such as "authorised recess" to avoid potential misinterpretation of the statutory provisions. The outcome highlighted the strict requirements for establishing deemed employment status during authorised recesses under the relevant legislation.

Orders