Drive Recruit Pty Ltd v Back [2013] NSWWCCPD 32

Drive Recruit Pty Ltd v Back [2013] NSWWCCPD 32

Concurrent employment; casual employment; essential features of a contract of employment; calculation of current weekly wage rate, average weekly earnings, and probable earnings; ss 42(7), 43(1)(e) and (f) of the 1987 Act; ability to earn; entitlement to weekly compensation; assessment of evidence; partial incapacity; orders inconsistent with the findings made; non-compliance with Practice Direction No 6; unsatisfactory written submissions by appellant; appeal unnecessarily protracted by appellant’s conduct; costs on appeal

He first worked for Select as a labourer/driver on 2 November 2008 doing furniture removals, work he continued on a casual basis for two or three days per week until sometime in the week ending 12 December 2008. Though it was not known exactly how many hours or days he worked for Select, it was agreed that he earned $2,642 between 2 November 2008 and 12 December 2008. Because he wanted to work five days per week, he started similar work with Drive on 15 December 2008, with the intention of continuing to work for Select.

On 16 December 2008, his second day with Drive, Mr Back injured his non-dominant right shoulder while lifting a washing machine. He reported the injury, was certified unfit, and did not return to work. It was agreed that he earned $371 for his two days’ work with Drive.

Mr Back’s shoulder symptoms did not resolve and he had surgery on 22 September 2010. He was certified fit for suitable duties on 3 March 2009.

Drive’s insurer, CGU Workers Compensation (NSW) Ltd, accepted liability for the injury and paid voluntary weekly compensation at the rate of $336 per week until 15 July 2011. It stopped payments on the ground that Mr Back had a capacity to earn more than his pre-injury earnings with Drive.

Mr Back alleged that, at the time of his injury, he was engaged in concurrent contracts of employment with Drive and Select, and that his earnings were his combined earnings with both employers (ss 42(7) and 43(1)(b) of the 1987 Act). This gave a figure of $811 per week, which was arrived at by adding his average weekly wage with Select ($440) (calculated by using an estimate of the hours worked multiplied by an hourly rate of $20) added to his $371 for two days’ work with Drive. It was argued that $811 was his current weekly wage rate, average weekly earnings and his probable earnings but for injury.

1. 
   as at 16 December 2008, Mr Back had concurrent employment with Select and Drive;
   
2. 
   but for his injury, Mr Back would have continued to work for Drive and Select whenever he was offered work;
   
3. 
   Mr Back sometimes worked 11.5 hours per day with Select and sometimes 10 hours per day. Taking an average of 10.75 hours at $20 per hour gave average earnings of $215 per day or $430 per week (for a two day week) with Select;
   
4. 
   Mr Back’s “total average weekly earnings” with both employers was $747 per week, which figure was also his probable earnings but for the injury, and
   
5. 
   Mr Back’s ability to earn was nil, and he was entitled to the maximum statutory rate payable to an injured worker with no dependants, which amount was proper in the circumstances, and there was no reason to exercise her discretion.
   

1. 
   finding that Mr Back was engaged in concurrent employment with Select and Drive at the time of the injury;
   
2. 
   her calculation of probable earnings but for injury;
   
3. 
   determining that Mr Back had no ability to earn;
   
4. 
   her assessment of the medical and vocational evidence;
   
5. 
   determining Mr Back to be entitled to compensation of $381.40 per week from 3 March 2009 to 31 March 2009 and 1 April 2009 to 21 September 2009, and
   
6. 
   determining Mr Back to be entitled to compensation of $747 per week from 22 September 2009 to 14 December 2010.
   

1. 
   There are four essential features of a contract of employment (The Modern Contract of Employment, Ian Neil SC and David Chin, 2012, Lawbook Co, (Neil and Chin)). Those features are discussed in detail at pages 1–3 in Neil and Chin and may be summarised as follows:
   

1. 
   there can be no employment without a contract (Lister v Romford Ice & Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555 at 587);
   
2. 
   the contract must involve work done by a person in performance of a contractual obligation to a second person (Abdalla v Viewdaze (2003) 122 IR 215 at [23]). That is because the essence of a contract of service is the supply of the work and skill of the worker (Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 at 404–405);
   
3. 
   there must be a wage or other remuneration, otherwise there will be no consideration (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515), and
   
4. 
   there must be an obligation on one party to provide, and on the other party to undertake, work. The obligation required to constitute a contract of employment is that:
   

2. 
   Without more, the mere act of “registering” for work with two labour hire companies, as Mr Back did, did not create concurrent contracts of employment with those companies. It merely meant that Mr Back was available to accept such offers of work as those companies may have made. Select regularly offered Mr Back work between 2 November 2008 and (about) 10 December 2008. He accepted those offers by attending at the time and place directed. On each occasion he attended, a contract of employment was created and he was paid for the work done. Drive offered him no work until 15 December 2008 [30].
   
3. 
   The only conclusion open on the evidence was that, as at 16 December 2008, Mr Back was employed under a contract of service with Drive but had no contract of service with Select. This was confirmed by Mr Back’s evidence that, if Select required him, he would receive a text message to ring in to get the details about the job. When he did that, he could either accept it or reject it. The text message was effectively an offer of work [34]. It followed that the Arbitrator erred in finding that Mr Back was employed under concurrent contracts of service at the time of his injury [35].
   
4. 
   Mr Back was clearly a casual worker within the terms of s 43(1)(e). He was a worker whose contracts of service were mainly for separate periods, each of which was of not more than five days in the same industry. He had several serial or successive short-term contracts of employment rather than two concurrent contracts [36].
   

5. 
   The Arbitrator’s finding that the current weekly wage rate, average weekly earnings and probable earnings but for the injury were $747 was not properly explained and was wrong. The only way she could have arrived at that figure was by adding $430 to $317. That result was not supported by the evidence and was not a figure urged by either party. While it may well be that the error resulted from a “slip”, it was not open to correct that error on appeal under the slip rule. The matter had to be properly considered in light of the submissions made on appeal [46].
   
6. 
   In any event, even if $747 (or $811) was the correct figure for probable earnings but for injury and for average weekly earnings, it was not the correct figure for the current weekly wage rate because it had failed to calculate the “prescribed proportion”, as required by s 42(1)(d) in circumstances where (as in this case) there is no evidence of the award rate. The prescribed proportion is 80 per cent of the average weekly earnings. It followed that Mr Back’s earnings must be re-determined [47].
   

7. 
   The employer’s medical evidence (from Dr Blue) was that Mr Back was not significantly incapacitated for work. Dr Blue based his opinion on his assessment that Mr Back presented with contrivance, particularly in view of his hands being calloused. He thought Mr Back was fit to work as a general farm-hand, avoiding excessive lifting, as a retail assistant without restriction, and as a general labourer and a truck driver. He was unable to work as a heavy furniture removalist [77].
   
8. 
   The Arbitrator gave Dr Blue’s evidence less weight than the medical evidence tendered by the worker because she did not think that the state of the worker’s hands was an indication that he had been involved in activities outside his restrictions. She also noted that there was no evidence that the worker was doing more than he had disclosed [78]. These findings were open and disclosed no error [79].
   
9. 
   The Arbitrator was perfectly entitled to take into account the fact that Dr Blue had not discussed with the worker the tasks required in the alternative jobs identified as being suitable. Whether the job options identified were suitable required consideration of the physical and intellectual requirements for those jobs. Dr Blue’s failure to discuss those matters with Mr Back was directly relevant to the weight to be given to his report [80].
   
10. 
    The Arbitrator was well aware that Mr Back had been performing unpaid work on his father’s farm and referred to that fact in her decision. Counsel made no submission at the arbitration in this regard and it is not an error to fail to deal with an issue never put (Brambles Industries Ltd v Bell [2010] NSWCA 162 (Bell)) [81], [100].
    
11. 
    The submission that the Arbitrator erred in accepting Mr Back’s evidence at “face value” was baseless and was rejected. The Arbitrator had the opportunity of hearing and seeing Mr Back give oral evidence and she accepted him to be a “truthful”, “honest” and “forthcoming witness”. In light of those findings, it was open to her to accept his evidence [83].
    
12. 
    Whether the vocational assessor consulted Mr Back’s nominated treating doctor, Dr Perera, was not determinative. The fact remained that, as the Arbitrator noted, Dr Perera did not provide a detailed report in which he discussed the physical and intellectual requirements of the various job options suggested, but merely expressed his approval in a summary “tick box” faxed to the insurer that included no examination of the issues. In addition, as the Arbitrator further noted, his opinion pre-dated the opinion from Dr Roberts, orthopaedic surgeon, that Mr Back’s progress was slow and that he should seek alternative careers. These factors entitled the Arbitrator to give his opinion “very little weight” and her conclusion disclosed no error [85].
    
13. 
    The Arbitrator was not obliged to “adopt” Dr Perera’s evidence as to the suitability of the light duties recommended. Even if she had, that would not have resolved the case because she was required to determine the availability of that work and Mr Back’s prospects of obtaining and retaining such work (Summerson v Alcan Australia Ltd [1994] NSWCC 24; 10 NSWCCR 571; Akawa Australia Pty Ltd v Cassells (2003) 25 NSWCCR 385; Mangion v Visy Board Pty Ltd [1991] NSWCC 1; 8 NSWCCR 175; Cowra Shire Council v Quinn (1996) 13 NSWCCR 175; Nominal Defendant v Livaja [2011] NSWCA 121). She assessed Mr Back’s prospects of obtaining and retaining such work as “virtually nil” [86].
    
14. 
    The submission that the Arbitrator erred in failing to take into account Mr Back’s employment history was not sustainable. First, counsel for the appellant made no submission at the arbitration about Mr Back’s employment history in the retail industry and the Arbitrator did not err in not referring to a matter that was not put (Bell) [87]. Second, the submission was completely without merit in any event. The evidence dealing with Mr Back’s retail experience was found in two reports, neither of which indicated why he had ceased work in the retail industry as an assistant butcher after one month [88]-[89]. Mr Back did not deal with it in his statement and he was not cross-examined about it. In these circumstances, it was difficult to see what useful submission might have been made about Mr Back’s “retail experience”. Mr Back’s other “employment history” was with Select and Drive in jobs that he was unfit to perform [89].
    
15. 
    With respect to the position of customer service assistant, which the rehabilitation provider had also assessed as suitable for Mr Back, the Arbitrator accepted Mr Back’s evidence that, as a result of his (intellectual) disability, he would have difficulties using a computer, with customer service, and with handling cash. These reasons provided a valid basis for the Arbitrator’s conclusion [90].
    
16. 
    The Arbitrator was satisfied that Mr Back could not realistically work in the positions identified by the vocational assessors for any length of time and that he had very little chance of securing employment in those areas given his limitations with driving and steering, and his lack of customer service experience. That finding was also open and disclosed no error [94].
    
17. 
    Alleged inconsistencies in Mr Back’s evidence were not identified in Drive’s submissions, and the submission that the Arbitrator erred by failing to take them into account was therefore unpersuasive and unhelpful [95].
    
18. 
    The fact that Mr Back is left-hand dominant was of limited relevance to his capacity to earn and, though counsel did refer to it at the arbitration, as no particular submission was made about it, the Arbitrator did not err in not dealing with it [96].
    
19. 
    The Arbitrator referred to and considered the evidence of the physiotherapist. As the Arbitrator accepted Mr Back as a truthful witness, it was not necessary for her to say more about that evidence. As there was no evidence of “abnormal illness behaviour”, Drive’s submission that the Arbitrator failed to have regard to this was misleading and false [97]-[98].
    
20. 
    The submission that the Arbitrator failed to take into account “the absence of evidence in relation to [Mr Back] job seeking” was based on a false assumption that there was no evidence on that point. That submission was incorrect and misleading [99].
    
21. 
    The absence of a record in Dr Ting’s (Mr Back’s current treating doctor) clinical notes that he complained about his right shoulder since he moved to Queensland in November 2011 was not the subject of submissions at the arbitration and could not be the subject of complaint on appeal (Bell) [101].
    
22. 
    The submission that Mr Back’s evidence was “unreliable and insufficient” to support a finding that he had no ability to earn ignored the fact that the Arbitrator accepted Mr Back’s evidence as to the restrictions caused by his injury, which made him unfit for his pre-injury employment, and accepted the difficulties he experienced in obtaining employment because of his intellectual disability, difficulties that had not prevented him from obtaining employment with Select and Drive [102].
    
23. 
    While the Arbitrator erred in making an award of partial incapacity in circumstances where she found Mr Back had no capacity to earn, it was not open on appeal to substitute a finding of total incapacity because such a finding in the present case, where Mr Back had a theoretical capacity to perform some activities, depended on an assessment of his ability to earn in the labour market reasonably accessible to him and an application of the principles in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; (1996) 25 NSWCCR 206. It was not possible to conduct that assessment on appeal because there was very limited evidence of Mr Back’s attempts to obtain employment in Queensland [106].
    

24. 
    As the matter had to be re-determined, it was not necessary to deal with the submissions on the calculation of weekly compensation in any detail. However, it was noted that the Arbitrator erred in making an award under s 36, between 22 September 2009 and 14 December 2010, because it exceeded 26 weeks. As Mr Back had been awarded compensation under s 36 for the 11 weeks from 16 December 2008 to 2 March 2009, he was only entitled to compensation under that section for a further 15 weeks [109].
    

25. 
    The general conduct of the appeal and, in particular, the failure to comply with Practice Direction No 6, was unsatisfactory [112]. The disposition of the appeal was unnecessarily protracted because of the appellant’s conduct. Though the appellant succeeded on the concurrent employment issue, it was ordered to pay the respondent worker’s costs of the appeal [117].