Chen v Q-COMP [2012] QIRC 464

CITATION: Cui Ling Chen AND Q-COMP (WC/2011/284) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 – s. 550 - appeal to commission Cui Ling Chen AND Q-COMP (WC/2011/284) COMMISSIONER BROWN 21 November 2012 DECISION [1] This matter was first heard in December 2011. The resultant decision was appealed, and by decision dated 16 May 2012, President Hall upheld the Appeal of Ms Cui Ling Chen (the Appellant) and remitted the matter to the Commission to be heard and determined according to law. [2] That the Appellant suffered an injury, a serious hand injury, at the factory occupied by a business named, Good Luck Noodles. That much is not contested. What is in issue is whether the Appellant was a "worker" as defined in the Workers' Compensation and Rehabilitation Act 2003 (the Act), at the time of the injury. [3] The Appellant is, and was at the time of her injury, the estranged wife of Mr Fernandes Chang-Castillo, the owner of the business, Good Luck Noodles. [4] In his decision on the 1Appeal, President Hall stated at paragraph 9: "Because the matter is to be remitted, I have refrained from dealing with many of the matters argued on Appeal. It would be wrong to poison the well. However I cannot refrain from stressing that the case is not whether Ms Chen was performing work but whether she was performing work as an employee." The definition of "Worker" "The Act at Division 2 Workers 11 Who is a worker (1) A worker is a person who works under a contract of service. (2) Also, schedule 2, part 1 sets out who is a worker in particular circumstances. (3) However, schedule 2, part 2 sets out who is not a worker in particular circumstances. (4) Only an individual can be a worker for this Act…" [5] To succeed, the Appellant must satisfy the Commission that, on the balance of probabilities, she was a worker at the time of the accident. In addition to the Appellant and Mr Fernandes Chang-Castillo, evidence was also provided by a Mr Cameron Bulow (called by the Appellant) and Ms Lui Ai Xiang and Mr Suman Swant Singh (for the Respondent). [6] By agreement between the parties, and because of the absence overseas of Mr Bahjinder Singh, the evidence given by him in the first hearing (December 2011) was admitted into evidence (Exhibit 7) for consideration as evidence in this hearing. [7] According to her evidence, the Appellant and the owner of the business, Good Luck Noodles were, at one stage, married. They had separated in about May 2008 after which two of the couple's three children resided with the Appellant and the other, the eldest, with Mr Chang-Castillo. According to the Appellant, there was never any formal child support arrangements. [8] Mr Chang-Castillo at times would give the younger children money which the Appellant on occasions collected from Mr Chang-Castillo. The Appellant claimed to have requested employment twice with Mr Chang-Castillo in 2010. The first request being rejected and the second accepted thereby establishing she claimed an employment relationship which commenced on 5 July 2010. [9] She stated her hours were 9 am to 5 pm, Monday to Friday with a break at 3 pm to collect children. The rate of pay she said was $500.00 per week and this was agreed between her and Mr Chang-Castillo. 1 Cui Ling Chen AND Q-COMP (C/2012/3) - Decision <http://www.qirc.qld.gov.au> -- 1 of 6 -- 2 [10] Her evidence was that her tasks involved mixing, cooking and packaging the product using skills taught to her by Mr Chang-Castillo and having worked Monday 5 July to Friday 9 July 2010, she was paid the $500.00 on Saturday 6 July 2010. [11] She said there were no forms or paperwork completed by her on commencement of her employment. The Appellant claimed her husband asked her to sign a book acknowledging receipt of the $500.00. The book resembled a note book or student school book and the name of another employee "Bobby" was, she said, seen by her in the book. She wore a white paper hat provided to her by her husband and normal clothes, that is, no specific work attire or uniform. [12] The Appellant said she was hospitalised as a result of the injury for about two weeks and when released from hospital, asked Mr Chang-Castillo for a copy of the book which he told her was lost. [13] In cross-examination, the Appellant acknowledged being the Respondent to a Domestic Violence Order taken out around June 2008. She acknowledged also being angry to the point of attempting to hit Mr Chang-Castillo but failing. She accepted she would sometimes visit the factory between 2008 and July 2010 and argue with Mr Chang-Castillo but denied terminating the employment of an employee of Mr Chang-Castillo, namely Ms Lui. [14] Ms Chen acknowledged obtaining professional help over the period 2008 to early 2010 for depression emanating from what she believed to be her former husband's infidelity. Her feelings toward Mr Chang-Castillo had become more indifferent and her anger less in 2010 (T1 P69 L40-52). The Appellant denied arguing with her husband on the day of the accident [15] She claimed to lack recollection of alleged threats against her husband, said to have been made in 2011. She stated: "When I'm angry I can say something that – out of my mind. But I can't recall" (T1 P91 L49-50). [16] The Appellant outright denied saying to Mr Chang-Castillo words to the effect, that when she returned from China he'd already be dead (T1 P91 L52-57). [17] The Appellant claimed she didn't say this at the initial hearing of this matter and subsequently after having been read the transcript, stated she couldn't recall saying the words at the last hearing. Exhibit 6 in this proceeding is the transcript of the first hearing. This exhibit records the Appellant having given evidence that the words in question were said, [18] The Appellant stated that she requested a copy of the pay book, mentioned earlier and that Mr Chang-Castillo stated it was lost. [19] The Appellant claimed the purpose for which she sought access to the book, was to "lodge her tax return" (T1 P96 L53-56). She later added it was for informing Centrelink as she knew she wasn't returning to work. [20] Mr Cameron Bulow, a plumber engaged at material times in a business located in close proximity to the business of Mr Chang-Castillo, gave evidence of his observations. Mr Bulow had never been inside the factory of Good Luck Noodles and had never conversed with anyone from that business other than to say Good-day. [21] His evidence was that he'd seen the Appellant at Good Luck Noodles "quite a lot, but not everyday", he wasn't directly aware but became aware of the Appellant's accident and her having required transportation by ambulance. He said he'd seen the Appellant wearing "normal everyday" clothes and noticed her wearing a "hair- net" which he described as a "cloth type paper protector". [22] When asked if the hair-net was white or light blue, Mr Bulow answered; "I honestly couldn't say, yeah, because I never really took much notice" (T1 P52 L2-3). [23] At various times Mr Bulow described the headwear as a hair-net and at other times as a hat. Mr Bulow worked in the vicinity for 16 years and he agreed he couldn't say with any certainty exactly when it was that he saw the Appellant at the Good Luck Noodles premises (T1 P53 L1-2). [24] Mr Chang-Castillo's evidence confirmed he is the owner-operator of Good Luck Noodles, and had been some years including the period in question. He described the Noodle making process and the machinery involved. [25] His evidence included that he and his wife separated in 2008 after what he claimed, was violence perpetuated on him by his wife which resulted in the police issuing a domestic violence order against the Appellant. -- 2 of 6 -- 3 [26] He said that during the incident which preceded the separation and the issuing of the Domestic Violence Order, the Appellant was holding a knife. He claimed there were more than ten further incidents, some involving hitting with her hands, and at other times, with an object and most times this occurred at the factory. [27] Mr Chang-Castillo said that in about January or February of 2010, the Appellant came to the factory to "help", this was he said, prior to the commencement of the employee named Ms Liu. Mr Chang-Castillo stated that the Appellant subsequently told Ms Liu to stop working at Good Luck Noodles and she did. [28] According to Mr Chang-Castillo, the Appellant requested employment and he denied the request. His evidence conveyed by the interpreter was: "INTERPRETER: She asked me whether she could work in the noodle factory but I told her, no, I wouldn't allow her to come was because she would actually cause trouble. So that's why I would not allow her to come to work [indistinct]. And she still came from time to time - try to see whether Ms Liu has come back to work in the factory. She just like she was the boss coming around to make sure whether Ms Liu is around or not; and when she came, I stopped her coming into the factory, but she said the factory is mine so that's why she just pushed in.". (T2 P26 L42-51) [29] Mr Chang-Castillo acknowledged giving his wife $500.00 in July 2010, which he claimed was in response to a request by the Appellant in order to assist with the payment of school fees and other family related expenses (T2 P27 L24-25). Mr Chang-Castillo recalled that on the day of the injury, he was out doing deliveries. He stated: "I remember that I closed to door and when I was out in delivery no-one was in the factory" (T2 P27 L31-35) [30] He recalled the Appellant arrived at the factory around nine or ten am and argued with him prior to him departing the factory. Mr Chang-Castillo recalled threats having been made to him by the Appellant around December 2011, including a threat to his life. [31] Mr Chang-Castillo said he employed Mr Bathjinder Singh, also known as "Bobby" as required. Bobby worked mostly nights but some day shifts and was an employee in July 2010. His evidence was Bobby and another employee, Mr Suman Swant Singh, also known as "Ricky", would both record their working hours in the "Book" and sometimes, but not always, would sign acknowledging payment which was made in cash, usually weekly unless lack of funds caused payment to be delayed. Mr Chang-Castillo didn't provide employees with pay slips. According to Mr Chang-Castillo, the Appellant only did packaging when she came to help in early 2010. Caps, whilst provided for hygiene purposes, weren't always worn by employees and at the time in question, July 2010, things were busy, "Bobby and Ricky" were employed to help, and Mr Chang-Castillo didn't want the Appellant there for fear she'd ask either of them to leave as she had with Ms Liu. [32] Mr Chang-Castillo reaffirmed his claim to have twice refused the Appellant's request for employment and denied having taught her to use the machines and also denied requesting she sign the "book". [33] Mr Chang-Castillo recalled the day of the injury of 14 July 2010 saying the Appellant was yelling at him. The Appellant was positioned near the door which was inside the factory and was following him around, but ultimately, at the point in time when Mr Chang-Castillo was about to leave to do the deliveries, she was outside the factory. [34] It was put to Mr Chang-Castillo that he had told WorkCover in his letter of Appeal that he couldn't get her "out of my factory so I just left her there" (Exhibit 7). He replied: "INTERPRETER: Yeah, when she was there she actually tried to follow me everywhere when I was doing my packing on the truck, yes, she did actually get into the factory for a little while but she just followed me everywhere, but when I actually went to deliver then she was close to the rubbish tin and then she was still accusing me at that time, but I just left because I couldn't ask her to leave and I was in a hurry to go to do the deliveries. And it was true that she was probably inside the factory for a little while is because she's been following me everywhere when I was preparing for the delivery, yes" (T2 P61 L28-37). When asked again about his statement to WorkCover he replied: "INTERPRETER: I did mention that but you actually have to know the time frame that I was talking about. So I did agree that I did say that but it doesn't mean that it's for the whole time" (T2 P62 L27-30). [35] Mr Chang-Castillo said he initially told the Appellant, the book was lost, whilst not actually knowing this to be true. The book he claimed was actually lost at a later time. -- 3 of 6 -- 4 [36] In her evidence, Ms Liu Ai Xiang (Ms Liu) stated she was an employee of Good Luck Noodles in early 2010 for two or three months. She worked as required starting around 8 am and concluding at 4 pm whilst sometimes working until 9 or 10 pm, when her second job didn't interfere and her services were required. [37] She completed no employment forms and claimed to have been told not to come back to work by the Appellant and didn't return after that shift. She recalled the Appellant and Mr Chang-Castillo fighting while she was at the factory. This occurred once and involved the police coming to the factory. She believed the Appellant was present when they arrived. [38] The evidence of Mr Suman Swant Singh (Ricky) was that he was an employee of Good Luck Noodles, having commenced in 2009 and left in 2011. He worked mainly four hour shifts either, morning or afternoon as required. He said he witnessed the Appellant and Mr Chang-Castillo verbally fighting and once before the Appellant's accident, he witnessed the Appellant hit Mr Chang-Castillo with a "wooden, steel stick" used for mixing (T2 P84 L10-14). He said he didn't see the Appellant ever come to the factory and "help" (T2 P86 L1-2). [39] The parties agreed the transcript evidence of Bahjinder Singh, also known as Bobby, which was given at the first hearing of this matter, would be admitted as evidence in this proceeding. The copy of the transcript was admitted as Exhibit 5. [40] Bobby worked for the Respondent at material times having commenced, he said, in about February 2010. He work as required and at various time worked in the morning, afternoon or evening. He said Ms Chen came to the factory many times and Ms Chen and Mr Chang-Castillo would "fight" and his evidence was that according to information given to him by Mr Chang-Castillo, they fought over money. Later in cross-examination Bobby said it was Ms Chen that told him of the subject of the argument. Bobby's evidence was that he wasn't present at the factory when the injury occurred. [41] In cross-examination, Bobby stated that the boss, Mr Chang-Castillo had told him Ms Chen didn't work there nor had Bobby seen her working in the factory. He recalled the existence of a pay book in which entries relevant to his employment were recorded and which he signed as required. Mr Singh stated Mr Chang-Castillo told him he'd lost the book. Bobby also stated he had told his boss he didn't want to give evidence however, he was giving evidence because his boss told him he had to (T1 14 November 2011 P103 L51-53). [42] I accept the Respondent's submissions as to the onus of proof resting with the Appellant, and the issue requiring proof being, that the Appellant was a worker in the terms of the Act at the time of the injury. [43] I further accept the Respondent's submissions regarding the value of Mr Bulow's evidence. I don't have concern regarding his evidence that he saw the Appellant wearing some type of headwear but I don't regard this as being supportive of the Appellant's claim to have been a worker. Mr Bulow couldn't recall when it was he saw the Appellant so dressed and it was Mr Chang-Castillo that the Appellant did help in the factory in early 2010. Mr Bulow didn't say he saw the Appellant so dressed or in the driveway the day of the accident and his evidence was he didn't see inside of the factory. I don't regard Mr Bulow's evidence as evidence the Appellant was a worker in July 2010 though, it certainly isn't evidence she wasn't. [44] The Respondent attacked the credibility of the Appellant as a witness citing issues the conflict between the evidence of Ms Liu and the Appellant, regarding the police attending the factory after the domestic violence order, the threats made to Mr Chang-Castillo in late 2011 and the Appellant's reasons for requesting the (wage record) "book" from Mr Chang-Castillo. [45] Dealing firstly with the book. I have some concerns with the evidence of both the Appellant and Mr Chang- Castillo on this point. The Appellant for her part said she wished to access the book or in later evidence, a photocopy of it, in order to prepare for her tax return. She asked for it on the journey home from hospital in a vehicle driven by Mr Chang-Castillo. Her answer to the question regarding the reasons she wanted the book when she requested it was "I need to – lodge my tax return at that time" (T1 P96 L53-56). This answer was restated (T1 P97 L1-10) and supplemented by the Appellant expressing reservations as to whether Mr Chang- Castillo would give her a group certificate. When in cross-examination, Mr Rashleigh suggested the Appellant may have wanted the information for Centrelink purposes, the Appellant added "it's also for the convenience of me to report to Centrelink". [46] The tax return would have been due for lodgement some 12 months later. It seems to me unlikely, that such a time frame would prompt the request at that particular time. I don't accept the truthfulness of this answer. [47] I don't have difficulty accepting the Appellant asked Mr Chang-Castillo for the book, however, her evidence regarding the reasons for asking were implausible and, in my view, that evidence is unreliable. -- 4 of 6 -- 5 [48] It wouldn't be helpful for me to speculate as to the reasons for the request or the timing of the request specifically while driving away from the hospital having been discharged following a serious injury, but the reasons given varied and with respect to tax, this reason was implausible. [49] I believe the Appellant was prepared to fashion her answers in a way that was convenient to her case. That's not to suggest the evidence of Mr Chang-Castillo was convincing. He admitted misleading the Appellant by saying the book was lost when, to his knowledge it wasn't. He then claimed it really was subsequently lost. [50] On his evidence, in July 2010 the Appellant's reason for asking him for the book, was in order to put her name in it for the two weeks in question (T2 P66 L20) concern over of which caused him to falsely claim it was lost. Mr Chang-Castillo initially, a number of times denied that the employee "Bobby" had requested the book (T2 P68 L1 to T2 P69) and that he'd failed to provide it. He subsequently changed his response to accepting that "Bobby" had requested the book and "may" have told him it was lost. On this point, the evidence shows Mr Chang-Castillo was duplicitous in his response to his wife, duplicitous in his response to Bobby and dissembling in his evidence in this proceeding. [51] My difficulty is that I am not able to rely on the evidence of either in relation to the book and even if the book was available, it might not solve anything, as Mr Chang-Castillo's evidence, not admitted by the Appellant, is that she was seeking it in order to place false entries in the book. [52] It was common ground, the burden of proof rests with the Appellant. I accept a book existed, however on the available evidence, I don't believe the Appellant has met the level of proof to establish on the balance of probabilities, there were entries in the book which would have supported her claim to have been a worker. [53] Regarding the evidence of Mr Bahjinder Singh ("Bobby") and Mr Suman Swant Singh ("Ricky"). Ricky's evidence was that his shifts varied, his hours were limited to 20 hours per week and he'd never seen the Appellant working at Good Luck Noodles. Bobby's evidence was along the same lines. Both worked variable hours and hadn't seen the Appellant performing as a worker. This evidence while not assisting the Appellant doesn't disprove her claim. It was the evidence of Mr Chang-Castillo that the Appellant helped by working, with Mr Chang-Castillo's consent, doing packaging in early 2010. Neither Ricky nor Bobby claimed to have seen her then yet she was working there then according to Mr Chang-Castillo. While their evidence doesn't establish the Appellant was working there in July 2010, it wasn't proof she wasn't. [54] Regarding the conflict said to exist between the evidence of Ms Liu and the Appellant with respect to police attending the factory following an argument between the Appellant and Mr Chang-Castillo. The evidence of Ms Liu was that the Appellant left the factory "after the police came". The Appellant's evidence was she didn't see the police at the factory but the Appellant acknowledged having been contacted by police while she was at the dentist and asked by them if she was at the factory. [55] I don't regard the differing recollections as important to the issue of credibility however its supportive of the evidence that the relationship between the Appellant and Mr Chang-Castillo was fiery and involved arguments between them within earshot of others. [56] The Appellant's evidence regarding the existence of a Domestic Violence Order involved a straight forward acknowledgement of its existence and an acceptance of Mr Rashleigh's assertion that, she was charged with breaching it. In my view there were no issues arising from the Appellant's Domestic Violence Order evidence which impacted negatively on her standing as a witness. [57] The Appellant was not forthcoming with her responses to questions regarding threats of violence against Mr Chang-Castillo in late 2011. Mr Rashleigh submitted this was evidence of a prior inconsistent statement. When compared with the evidence given in the earlier hearing. The Appellant claimed to generally lack recollection of either the threats or what she said in the previous hearing. Other than to note Appellant's demeanour seemed evasive. I make no the finding on this point. [58] I place no importance on the varying descriptions of the headwear given by Mr Bulow. I accept the evidence of "Ricky" regarding the Appellant hitting Mr Chang-Castillo with a stick. This is eye witness evidence and also supportive of other evidence of the occurrence of arguments. The witness is a person with no ongoing direct interest in any of the business of personal lives of the Appellant or Mr Chang-Castillo. His evidence is clear and given without any apparent guile. I also prefer the evidence of Ms Liu to the Appellant's evidence in relation to the reasons for departure of Ms Liu from Good Luck Noodles. Ms Lui was open and forthcoming in her evidence and also no longer connected with the business of Mr Chang-Castillo having left over two years ago. Mr Ricky Singh and Ms Liu were both independent witnesses. Their evidence, together with the evidence of "Bobby" Singh, supported a history of a rocky relationship between the Appellant and Mr Chang-Castillo and, depending on who's evidence is being considered there were a couple of fights or many as stated by Bobby. -- 5 of 6 -- 6 [59] The Appellant claimed she had a verbal contract with Mr Chang-Castillo to be employed at the rate of $500.00 per week. Mr Chang-Castillo concedes paying the Appellant $500.00 but states that this was a payment made to his ex wife in order assist with the expenses related to their children. He repeatedly denied having employed the Appellant in July 2010. Mr Chang-Castillo's evidence was that this amount whilst larger than earlier payments was made for the same reasons as the earlier payments to the Appellant namely to assist with family expenses and didn't amount to payment pursuant to an employment agreement. [60] It is unsurprising that the version of events regarding the day of the injury of 14 July 2010 conflict. For her part, the Appellant claimed to have been left to work in the factory while Mr Chang-Castillo did deliveries. Mr Chang-Castillo, in his evidence stated, the Appellant came to the factory, remonstrated with him and was standing near the rubbish bin "outside the factory" when he left to deliver goods. [61] Mr Morris, for the Appellant, submitted this evidence was inconsistent with an earlier statement to WorkCover made by Mr Chang-Castillo to the effect that he couldn't get her out of the factory "so he just left her there". Through the interpreter, Mr Chang-Castillo responded: "INTERPRETER: Yeah, when she was there she actually tried to follow me everywhere when I was doing my packing on the truck, yes, she did actually get into the factory for a little while but she just followed me everywhere, but when I actually went to deliver then she was close to the rubbish tin and then she was still accusing me at that time, but I just left because I couldn't ask her to leave and I was in a hurry to go to do the deliveries. And it was true that she was probably inside the factory for a little while is because she's been following me everywhere when I was preparing for the delivery, yes" (T2 P61 L28-37). [62] I don’t draw any conclusion from this evidence adverse to Mr Chang-Castillo. [63] I don't know whether the Appellant was, as Mr Morris submitted, "operating" the machine or merely at the machine uninvited when the injury occurred. Mr Morris submitted, correctly, in my view that only the Appellant and Respondent (presuming here he meant Mr Chang-Castillo) know the true state of affairs. [64] Both Mr Chang-Castillo and the Appellant gave, in my view, evidence convenient to their case and at times varied and unreliable evidence. With respect to the Appellant, this much was, to a point, conceded by Mr Morris in oral submissions (T2 P96 L19-20). [65] I accept the submissions of Mr Morris with respect to the importance of corroborative evidence. Having examined all of the evidence, I must say, I harbour a suspicion the Appellant could have been a worker engaged by Good Luck Noodles. However, having regard to the evidence available, the standard of proof has not been met. I am not satisfied, on the balance of probabilities, she was a worker as defined by the Act. [66] I dismiss the Appeal. [67] I reserve all questions as to costs. D.K. Brown, Commissioner. Hearing Details: 2012 11 October 12 October Released 21 November 2012 Appearances: Mr Morris, Counsel, instructed by Ms A. Walsh of MurphySchmidt Solicitors for the Appellant. Mr P. Rashleigh of Counsel, instructed by Q-COMP. -- 6 of 6 --