9
[Extract from Queensland Government Industrial Gazette,
dated 17 August, 2007, Vol. 185, No. 16, pages 338-347]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal
Big Issue in Australia Limited AND Q-COMP (First Respondent) and Kenneth Craig Hill (Second Respondent) (WC/2006/97)
DEPUTY PRESIDENT SWAN / 10 August 2007DECISION
This is an application lodged by Big Issue in Australia Limited (Big Issue/appellant) against a decision issued by Q-COMP pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
Mr Kenneth Hill was the subject of a successful workers' compensation claim against Big Issue.
In December 2006, Q-COMP issued its reasons for setting aside the insurer's decision and stated in its correspondence to Mr Hill, under "Decision Summary" the following:
"In all the circumstances of the case, I am satisfied that:
1. You qualify as a 'worker'.
2. You sustained a personal injury, namely a stress reaction.
3. Your injury arose in the course of your employment and your employment was a significant contributing factor to your sustained injury.
4. Your injury did not arise out of reasonable management action undertaken in a reasonable way.
Therefore I conclude that the exclusionary provisions do not operate to exclude you from the receipt of compensation in accordance with section 32(5) of the Act.
My decision is to set aside the decision by WorkCover. Therefore, my decision is that your claim is one for acceptance.".
Mr Hill, as a party to the proceedings, represented himself. Both Q-COMP and Big Issue were represented by Counsel.
This decision relates to the discrete question of whether Mr Hill was a "worker" pursuant to s. 11 of the Act. For the claim that Mr Hill was a "worker" to be successful, it had to be established that Mr Hill was a "worker" on the date of 9May 2006 when an "incident" had occurred around which the original successful application was centred.
Schedule 2, Part 1 of the Act states:
"Part 1 Persons who are workers
1. A person who works under a contract, or at piecework rates, for labour only or substantially for labour only is a worker.
2. A person who works for another person under a contract (regardless of whether the contract is a contract of service) is a worker unless -
(a) the person performing the work -
(i) is paid to achieve a specified result or outcome; and
(ii) has to supply the plant and equipment or tools of trade needed to perform the work; and
(iii) is, or would be, liable for the cost of rectifying any defect in the work performed; or
(b) a personal services business determination is in effect for the person performing the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60.
3. A person who works a farm as a sharefarmer is a worker if -
(a) the sharefarmer does not provide and use in the sharefarming operations farm machinery driven or drawn by mechanical power; and
(b) the sharefarmer is entitled to not more than 1/3 of the proceeds of the sharefarming operations under the sharefarming agreement with the owner of the farm.
4. A salesperson, canvasser, collector or other person (salesperson) paid entirely or partly by commission is a worker, if the commission is not received for or in connection with work incident to a trade or business regularly carried on by the salesperson, individually or by way of a partnership.
5. A contractor, other than a contractor mentioned in part 2, section 4 of this schedule, is a worker if -
(a) the contractor makes a contract with some one else for the performance of work that is not incident to a trade or business regularly carried on by the contractor, individually or by way of a partnership; and
(b) the contractor -
(i) does not sublet the contract; or
(ii) does not employ a worker; or
(iii) if the contractor employs a worker, performs part of the work personally.
6. A person who is party to a contract of service with another person who lends or lets on hire the person's services to someone else is a worker.
7. A person who is party to a contract of service with a labour hire agency or a group training organisation that arranges for the person to do work for someone else under an arrangement made between the agency or organisation and the other person is a worker.
8. A person who is party to a contract of service with a holding company whose services are let on hire by the holding company to another person is a worker.".
Evidence was given on behalf of Big Issue by Mr B. Pennings, formerly Vendor Support and Distribution Manager of Big Issue in Brisbane, Ms A. Sweetman, Office Administrator for Big Issue, based in Melbourne, and Ms G. Pidutti, National Vendor Support Manager and Melbourne Vendor Support Distribution Manager, also based in Melbourne. By agreement between the parties and with the consent of the Bench, the last two witnesses gave their evidence via telephone.
A significant degree of evidence from the appellant went to establishing that a tripartite contract between Vodafone Australia Foundation Pty Limited (Vodafone), Big Issue and Mr Hill never eventuated because of Mr Hill's intransigence around the terms of the contract. As well, and particularly because of the incident which occurred on 9May 2006 around which Mr Hill makes his claim, the appellant's evidence centred upon the week commencing 8 May 2006.
While I have found that there was no contract on foot between the tripartite parties (for reasons outlined later in this decision), there is little doubt that Mr Hill believed that a contract (albeit an oral contract) did in fact exist and it was for this that he was paid during the week commencing 8 May 2006. For reasons outlined later in this decision, I have found that Mr Hill was engaged as a "worker" during the week in question but that the work performed was not related to the Vodafone contract.
Mr Hill presents as an intelligent person who also suffers from a disabling mental disorder. Mr Hill was assisted by the Bench to the extent that he gained a general understanding of Court processes and the giving and taking of evidence. Mr Hill was able to represent himself adequately during the hearing but like any self-represented person, he was uncomfortable with and unaware of legal proceedings and concepts and this, coupled with his disorder, made the experience a very trying one for him.
Evidence
Evidence for the appellant
Benjamin Pennings
· In his previous position with Big Issue, Mr Pennings was responsible for managing the Brisbane office and all employees, vendors and volunteers.
· As from November 2005, Mr Pennings reported directly to Ms Pidutti and she reported directly to Mr Persson, General Manager of Big Issue situated in Melbourne.
· Big Issue is a non-profit organisation directed mainly towards assisting "homeless and other marginalised people" gain remunerative employment. One way of achieving this goal is through the "vendor" program where vendors buy a copy of the Big Issue magazine for $2.00 and sell it to the public for $4.00.
· Vendors are not employees of Big Issue.
· Occasionally, funding is received by Big Issue for the express purpose of employing someone and this person is usually a vendor. The funding is usually of a set amount with Big Issue determining the wage to be paid and the period of time during which the person would be employed.
· Within the Queensland office of Big Issue, some employees were engaged as casuals, one was a permanent part-time employee and Mr Pennings was the only full-time employee.
· Mr Hill became known to Big Issue around May 2005. He worked as a vendor.
· In October 2005, funding was received from a company sufficient to permit Mr Hill to work for a fixed period of time from 24 October 2005 to 24 April 2006.
· When that contract expired, Mr Pennings sought another contract for Mr Hill.
· In March 2006, Mr Hill was a winner in the national "Vodafone Award" which permitted 4 persons to work for their favourite charity or non-profit organisation for one year.
· Mr Hill chose Big Issue as the organisation for which he wished to work.
· At the time of the expiration of his first contract (ending 24 April 2006) and prior to finalising the contract for the Vodafone work, Mr Pennings sought to obtain work for Mr Hill and was successful in placing Mr Hill in a Queensland Senator's office.
· Mr Pennings stated that because of the unique situation in which Mr Hill found himself (the hiatus which occurred with the end of the first contract on 24 April 2006 and the commencement of the new contract sometime in the near future), when Mr Hill left Big Issue to work for the Queensland Senator, there was no farewell celebration held for Mr Hill.
· After 24 April 2006, Mr Hill attended the office of Big Issue. Mr Pennings stated that Mr Hill's name was not on the roster at any time between 10 April 2006 and 24 April 2006 when he was on annual leave.
· Mr Pennings stated that if Mr Hill had come into the office at any time after 24 April 2006, then he did so on a voluntary basis. Mr Pennings had presumed that Mr Hill's presence in the office may have been connected to his writing articles for the Big Issue magazine.
· Around the period of 8 May 2006, Mr Hill and Mr Pennings were involved in discussions about the contract which had been offered by Vodafone to Mr Hill.
· No agreement had been reached between the three parties (Vodafone, Big Issue and Mr Hill) because Mr Hill had not agreed to what he viewed as a change to his original understanding with Vodafone.
· From 8 May 2006, Mr Pennings stated that he had spent a considerable amount of time discussing the issue around the contract with Mr Hill, but to no avail. He also stated that Mr Hill came and went from the office as he saw fit.
· An incident occurred in the Big Issue office on 9 May 2006 between Mr Hill and a vendor of which Mr Pennings became aware.
· Mr Pennings had hoped that Mr Hill could have commenced his employment under the Vodafone contract on 8May 2006 as he was sure that Mr Hill had finished his work with the Queensland Senator and Mr Pennings was worried about Mr Hill's financial situation.
· During the week commencing 8 May 2006, Mr Pennings determined to grant to Mr Hill an "ex gratia" payment based on the rate of pay Mr Hill would have received from Vodafone had the contract been finalised.
· After a discussion with Ms Pidutti, Mr Pennings stated:
"... we decided to give him an amount calculated arbitrarily on the rate of 35 casual hours. We picked the figure of 35 out of the air. Although Mr Hill had been in and out of the office that week, speaking to me about his contract for large amounts of time, our discussions hadn't occupied anywhere near that amount of time.". [Exhibit 8, para 68.]
· Mr Pennings said that he had advised Mr Hill that the payment made to him was on an ex gratia basis.
· Discussions around the contract with Vodafone continued until Friday 12 May 2006.
· On Monday 15 May 2006, Mr Pennings spoke to Ms Pidutti in Melbourne and advised her that Mr Hill had been behaving inappropriately at the workplace and he stated that Ms Pidutti told him that she had given Mr Hill "an oral and written direction not to attend the Big Issue's office until further notice". [Exhibit 8, para 86.]
· By Thursday 18 May 2006, upon believing that the situation with regard to Mr Hill had become untenable, the offer of employment (in relation to the Vodafone contract) had been withdrawn.
Anouska Sweetman
· In early April 2006, Ms Sweetman had a discussion with Mr Hill advising him that he needed to take his annual leave before the first contract ended otherwise he would lose his leave loading.
· Mr Hill's termination pay covered the period until 24 April 2006.
· In May 2006, Ms Sweetman was instructed by Ms Pidutti "to process a payment to Mr Hill which was the equivalent of 35 casual hours work or $791.88 (gross)". [Exhibit 10, para 19.]
· Ms Sweetman said she was not aware of the circumstances under which the payment had been made to Mr Hill at that time, but sometime after she says she was advised by Mr Pennings and Ms Pidutti that the payment was an ex gratia payment "to tide him [Mr Hill] over until his Vodafone contract could start". [Exhibit 10, para 21.]
· Ms Sweetman had worked for Big Issue for the previous 12 months and up until that time, each payment she had processed for casual or part-time staff had been accompanied with a timesheet signed by the local manager. This was not the case for Mr Hill's payment.
Gemma Pidutti
· Reference was made to Mr Hill's first contract.
· "During the period of Mr Hill's fixed term employment, I did not, at any stage, guarantee that Big Issue would offer Mr Hill ongoing employment or extend this contract.". [Exhibit 9, para 16.]
· Reference was made to the Vodafone Award which had been won by Mr Hill.
· No contract ever eventuated between the parties because Mr Hill did not agree to the terms contained in the draft written contract.
· During the week commencing 8 May 2006, Ms Pidutti was aware that discussions were ongoing with Mr Hill for the purpose of finalising the contract.
· Concern had been expressed by Mr Pennings to Ms Pidutti about Mr Hill's behaviour at the Big Issue office and on 16 May 2006, Ms Pidutti stated that "given that we knew him to be a vulnerable person with no income other than a small pension, Big Issue decided to give him one-off ex-gratia payment as a sign of goodwill". [Exhibit 9, para 55.]