Wisewould v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 47
•12 March 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wisewould v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 047 |
PARTIES: | Wisewould, Bradley v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/338 |
PROCEEDING: | Application for extension of time |
DELIVERED ON: | 12 March 2015 |
HEARING DATE: | 16 February 2015 |
MEMBER: | Deputy President Swan |
ORDERS : | 1. The extension of time is granted. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION -application for extension of time - special and unexpected circumstances relating to extent of and reasons for delay - no prejudice to Regulator if appeal proceeds - major prejudice to Applicant if appeal not heard. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 550(1)(a) Finance Sector Union v Commonwealth Bank (2001) 111 IR 241 at 266-267 Pitcher v Langford 142 at 149 Carmody v WorkCover Queensland [1998] 157 QGIG |
| APPEARANCES: | Mr C. Ryall, Counsel, instructed by Gayler Cleland Solicitors for the Applicant. |
Decision
The Applicant in this matter, Mr Wisewould, seeks an Extension of Time for the lodgement of his Appeal.
Section 550 of the Workers' Compensation and Rehabilitation Act 2003 sets out the time in which an Appeal must be filed and relevantly provides:
"Procedure for appeal
(1) The appeal must be made -
a.If the appeal is about a review decision - within 20 business days after the appellant receives the notice of the review decision -
....
(2) For subsection (1) the appellant may, within the period mentioned in the subsection, ask the respondent to allow further time to appeal."
The factors taken into account in considering whether to grant an extension of time include:
· the extent of the delay;
· the reason for the delay;
· prejudice to the Respondent;
· prejudice to the Applicant;
· enthusiasm for prosecuting the Appeal;
· merits of the Appeal[1].
[1] Carmody v WorkCover Queensland [1998] 157 QGIG.
The power to extend time is discretionary and whether the Commission grants the extension of time depends on the particular circumstances of each case.
In Steven Pearce v Q-COMP, Hall P stated that it was "appropriate to abandon the language 'extension of time' and to assert no more that [sic], the time limit at s 550(1)(a) of the Act may be waived on the grounds of substantial compliance or special circumstances."[2]
[2] Steven Pearce v Q-COMP WC/2010/64; see also Bundle v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 47.
Background to the Applicant’s claim
Mr Wisewould currently works as a batcher for Boral at Wheatstone Project on site at Chevron. Chevron is 1600 kilometres in the desert in the Pilbara in Western Australia.
Previously, Mr Wisewould had worked for Ross Frumento/Rossal Pty Ltd on and off for a few cane seasons and it's to this period of time that the Application applies.
In the 2012 cane season, he was contracted by Rossal Pty Ltd as a harvesting operator to drive its new John Deer Cane Harvester.
Towards the end of June 2013, Mr Wisewould attended a meeting with Ross Frumento, Sam Frumento, Leisa Girard and Denise Wakefield where Mr Ross Frumento proposed that Mr Wisewould pay the wages of the haul-out operators in his gang for the purpose of minimizing pay roll tax.
Mr Wisewould was concerned about this request, and enquired about how various insurances, including WorkCover would be paid. He was told that nothing would change because the insurances were covered by the Rossal Pty Ltd Employment Contracts. Mr Wisewould was told that there was a clause in the contract which said that Rossal Pty Ltd would be responsible for Workers' Compensation and liability insurances.
In the Schedule to the "Employment Agreement - Harvesting Employees, Clause 12 Insurance states:
· "The Company shall be responsible for Workers' Compensation and Public Liability Insurance"
Based upon those assurances, Mr Wisewould proceeded to enter into this arrangement whereby Rossal Pty Ltd paid the wages into his account and then the wages would be transferred to the accounts of the haul-out operators.
To process this, Mr Wisewould would provide a pass code to Leisa Girard so that she could access Mr Wisewould's account. Both Leisa Girard and Denise Wakefield did the book-keeping for the arrangement.
Prospective employees answered advertisements for work with Rossal Pty Ltd. Mr Ross Frumento conducted the interviews and he hired and fired employees on behalf of his company.
Rossal Pty Ltd had a harvesting contract with a group of cane growers. The Tully Mill paid weekly amounts depending on the tonnage harvested directly to Rossal Pty Ltd from the Canegrower's account.
Rossal Pty Ltd or Mr Ross Frumento owned all the machinery including harvesters, haul-out machines, trucks, utes etc. This evidence is supported by the unchallenged statements of Mr Dick Camilleri [Exhibit 2] and Mr Adrian Shepherd and also relates to paragraph 16 below.
Mr Ross Frumento told Mr Wisewould and fellow workers what to do and had control over the harvesting operation.
In mid-August 2013, Mr Ross Frumento telephoned Mr Wisewould asking him to collect Mr Colin Kirstenfeldt from the Feluga Hotel. Mr Kirstenfeldt had answered an advertisement in the paper for haul-out operators. He had been interviewed by Mr Ross Frumento and was then placed in Mr Wisewould's gang.
Mr Kirstenfeldt was involved in an accident on 12 September 2013.
Each cane season, Mr Wisewould and other workers signed a separate employment arrangement with Rossal Pty Ltd. For the 2013 season, Mr Wisewould recalled signing an employment agreement with Rossal Pty Ltd.
Mr Wisewould submitted an unsigned and undated proforma Rossal Pty Ltd Employment Agreement (Harvesting Employees) [Exhibit 1 "A"]. He recalled that other employees had signed this agreement with Rossal Pty Ltd as well.
The Reasons for Decision of the Workers' Compensation Regulator related to Mr Kirstenfeldt's accident where it was found that:
· "Mr Kirstenfeldt is a 'worker' in accordance with section 11 of the Act.
· The evidence before me indicates that you (Mr Wisewould) are his employer, rather than Rossal Pty Ltd.
· Mr Kirstenfeldt sustained a personal injury.
· The personal injury arose out of Mr Kirstenfeldt's employment.
· Mr Kirstenfeldt's employment was a significant contributing factor to the injury."
Applicant's claim
The extent of the delay and the explanation for the delay
The Regulator issued its decision on 21 May 2014. The Applicant says he did not receive this decision until a lengthy period after its release. Under normal circumstances, twenty business days would have expired on 17 June 2014. The Appeal was lodged on 24 November 2013. On this scenario the delay was just under 6 months.
The explanation for the delay was as follows:
· The Regulator's decision was sent by e-mail.
· Mr Wisewould says that he was regularly working away from home and at the time the decision was sent he was working in a place where he could not receive emails. Mr Wisewould said he had occasionally seen emails from WorkCover to him on a different email address.
· Mr Wisewould missed the email from the Regulator when he irregularly checked his emails.
· Mr Wisewould said he became aware of the decision in or about October 2014. The WorkCover records show that he spoke about the decision to them in late October 2014.
· Mr Wisewould said that once he had knowledge of the decision, there was no significant delay in his taking action to deal with the matter.
Prejudice to the Respondent
The Respondent does not cite any prejudice it believes it would suffer if the Appeal was allowed to proceed.
Prejudice to the Applicant
The prejudice to Mr Wisewould is that he would unjustly be liable for an amount in excess of $150,000 should he not be permitted to proceed with his Appeal.
Enthusiasm for prosecuting the Appeal
Save for the period of delay, Mr Wisewould has taken every opportunity to put the case he wishes to put if an Appeal is allowed. He states that he is not the injured worker's employer and he has engaged Solicitors to pursue this application and the Appeal.
Merits of the Appeal
Mr Wisewould submits that Section 11 of the Act defines a worker to be a person who works under a contract and, in relation to the work, is an employee for the purposes of assessment for PAYG withholding tax under the Tax Administration Act 1953 (C'wlth), Schedule one, part 2-5.
The first element of the definition imports the common law as it relates to employment. In Golden Plains Fodder Australia Pty Ltd v Millard [2007][3], Gray J (with whom David J agreed) sitting as a member of the Full Court of the Supreme Court of South Australia summarised the law in so far as it relates to attempting to determine who is a particular employee's employer as follows:
"Where there is an issue of identifying the employer of an employee when there might be two (or more) possible employers, courts have adopted the approach of resolving the issue by the application of the principles developed for determining whether a person was an employer at all."[4]
"The touchstone is the practical reality of the relationship. Courts have consistently emphasised that in determining whether a relationship between parties is one of employment or independent contract, the court should focus on the practical reality of the relationship."[5]
"The totality of the circumstances surrounding the relationship of the various parties, including conduct subsequent to the creation of the alleged employment relationship, is relevant."[6]
"Documentation created by one or more of the parties describing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of the relationship. The documentation may have been brought into existence for other purposes, for example, for tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties' relationship"[7].
"The payment of wages by a particular entity is not conclusive of the existence of an employment relationship.”[8]
"The beliefs of the employees as to the identity of the employer is admissible and is entitled to be given weight."[9]
[3] Golden Plains Fodder Australia Pty Ltd v Millard [2007] SASC 391.
[4] Finance Sector Union v Commonwealth Bank (2001) 111 IR 241 at 266-267.
[5] Pitcher v Langford (1991) 23 NSWLR at 149, 154-155 and 163.
[6]Romero v Auty (2001) 19 ACLC 206 at 10, 42 - 44.
[7] Pitcher v Langford 142 at 149.
[8] Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 119.
[9]Pitcher v Langford 142.
Together with Mr Wisewould's earlier description of the arrangement he said he entered into with Mr Ross Frumento, he stated that Mr Kirstenfeldt informed WorkCover at the outset of the claim in respect of his injury that Mr Ross Frumento employed him and there has been no evidence given that contradicts this point.
Mr Wisewould said that on Appeal the Commission would have to decide, having regard to the totality of the evidence presented to it on a fresh hearing, whether or not there was any employment contract between the injured worker and any party and identify the relevant party to the employment contract with the injured worker.
Mr Wisewould says that the best that could be done by the Commission at this time is to identify that there is evidence which if accepted would result in the Appeal being successful.
It has been submitted by Mr Wisewould that unless there can be shown that there would be any prejudice suffered by the Respondent if the Appeal were to continue, then it would be in the interests of justice that the Appeal be allowed.
It has been submitted that "There is no suggestion that the outcome of any appeal would be that the injured worker Mr Kirstenfeldt would be found not to have been a worker entitled to the substantial compensation he has received so far or even that he would be put to the trouble of having to prove his entitlement to compensation."
Cross examination by the Regulator
The Regulator conceded that Mr Wisewould had not received a hard copy of the Regulator's decision [T1-22].
In his Statement, Mr Wisewould said "I do not now recall when I first read the Reasons for Decision dated 21 May 2014. As set out below I was working out of town most of the time. I telephoned my solicitors after I saw the decision. They had told me that this was on 22 October 2014. I think this was less than a month after I first saw the decision."
The Regulator stated that if one worked back from the dates nominated by Mr Wisewould, then it could be assumed that he read the decision in September 2014 and then waited for just less than a month to contact his Solicitor.
Mr Wisewould's evidence was that from 9 June to 15 September 2014, he was working at the Amberley Airbase where one was unable to access emails because of security concerns, whilst on site.
Consideration of the Evidence
I have accepted that Mr Wisewould's evidence is credible given that his work situation made it extremely difficult for him to access his e-mail system.
With regard to the extent of the delay, on one version of events it could be that Mr Wisewould was out of time by one day. That would occur if Mr Wisewould became aware of the Regulator's decision on 20, 21 or 22 October 2014. The Application was filed on 17 November 2014, thereby if one relied upon 22 October 2014 as the relevant date of receipt of the decision, then he would have been one day out.
I have taken into consideration that Mr Wisewould said he had told his Solicitor that he first saw the decision in October 2014. Mr Wisewould's affidavit said "I think this was less than a month after I first saw the decision." When questioned on this by the Regulator, Mr Wisewould said "likely 2 days". Unfortunately, the word preceding "likely" was recorded by the court reporters as [indistinct]. I accept that the phraseology used could be interpreted in a number of ways. I have accepted Mr Wisewould's evidence on this point.
In gauging exactly how long the Application was out of time, it is accepted that Mr Wisewould travelled extensively in his job to remote areas of Australia and was, I accept, genuinely unable to access e-mails, over various periods of time.
In forming a view in this and in the exercise of my discretion, I propose to grant the application. I have taken into account the fact that there were special circumstances evident in this matter as it relates to Mr Wisewould receiving notification of the Regulator's decision. I have also accepted that Mr Wisewould acted promptly in notifying his Solicitor when he became aware of the decision. In these circumstances there is no significant time lapse on the part of Mr Wisewould between notification of the decision and action on his part to contact his Solicitor.
I have also taken into account that there would no prejudice suffered by the Regulator were the matter to proceed.
Further, it is clear that the injured worker, Mr Kirstenfeldt would not be affected in any way were the matter to proceed to hearing.
I have also taken into account that there would be a significant impact on Mr Wisewould if he was not permitted to have the matter fully ventilated in an Appeal.
It is also fair to state that if Mr Wisewould's evidence was accepted then his prospects of success were significant.
For these reasons I grant the Application.
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