Butcher v The Workers' Compensation Board of Queensland [1997] ICQ 7 (1997) 155 QGIG 121

GOVERNMENT INDUSTRIAL GAZETTE 121 ()tJEENSl ,AND INDUSTRIAL courn WORKERS' CO'v!PEN,',/\ f!ON ACT I , i l C32 o/ JUSTrC!' ck JERSEY PRES!DENT JUDG!\1ENT fhe Bppelktnt 1.vas employed in the }h.n vcy f'ull/ from January ! 985 until I\1ay i 993, v,'ht;:n her tennin.ateJ. On l O December f 903 the of her re- inst:Hcmcnt She cnnicncL"I that :-h\: H...'turned con~equen(e, on 7 NZ,1vt.:rnb-er 9t)J_ T'hc ,nan.s..tge:-'s father, f/i: Taylor. in the ahsenct: uf hi,,:; son. effrch\·dy then her to .~\~ :-.he pu.1 1t in her t'\·1dence:.-- happ] -:.ee n1c, and he \'Y a:-i qni1e Dhrt,pr \Vhh and told n-ie :hat ht d!dn'i ,,vant rne in th1..' office, ::md tfl:1t there ,v~:, nci -- 1 of 2 -- QUEENSLAND GOVERNMENT INDUSTRlAL GAZETTE 9 May, 1997 She m st:Jte of devnstation. Her case \VJS that she developed a rcsuiwn! 0,dju~trnent disorder with anxiety and d ..~pressiorL being :in "injury;' suffered in consequence of ernpioyment ar Harvey \Vorla Tn1vel The respondent Board rejected her claim on the basis th;H he,r absence fiorn work was not the re'-;ult of '·injin~/' V./ithln the V/orkers' C,·1m110;.sarwn 1990, She referred the 8ounfs dismis,al of the claim to an lndw;irial i\1agistrare The Magi."itrate conduckd th~t she was a '\vorker ', but he not satisfied rhnt there wus n sufficient connecilon between the injury and toe employment to render it co1npensablc. On appc::11 to rne, the appellant contended thai the !v1agisrrate tTred in concluding that he;- condition did not arise out nf emp!oyment, or in the courq~ nf emp\oyrncnt. \Vith emμloyment bemg a significanr contributing factor l) H 1f-,,rkcrs · Compo?sution Act J 99(}_)_ This appeal is by way of re-hearing, and the Bnard raised - as wa.½ its entitlerncn1 an mterior p01m, challengi1:g the fvL1gis1r~ite':-., finding that the appelbnt was a '\vorkcr'' as at 7 November !f the Bo<lrd succeeds in demonstrating that the I\1agistrate erred hi;;; de.!t:n11ination on !hat issue, then rhe appeal ncce:-,_s;,ari]y faib. The appc.llant's emit!ement to he paid czm1pen~ation the H'orkers' Comprnsaiion Au 1990 dcpt:'.nded upon her being a ;'workern a•; at th{:. tane she was in_Jured (s,88), that is, 7 November 1994 A "'worker'" is one who works. as relevant, " ... under a contr.::1c!. of service whether ora1 or written, express or implied'' (s.5) The present issue is -.,.vhether, at November 1994, J. contra.ct cf :--.en 1 lce ~ubsisreJ betv/een the appellant and Scarmwze Pt_v Ltd (the conip,my trndmg a, Harvey World Travel), To exarnme thi~ issue, one must firq note the rdevant foct~- The Commis~ion\ order on i O December l 99J tbar the appeliant be reinstated from a date ro be determined by the :ippellam's former employer in consultation with her, or failing agreement, a~ directed by the C0ram1ssion That order re~ulte<l from the clrz:umsLu1:::e that 1.hc appe.Hant di~co\'ered .. fo!Iowiog her employn1cnr that she was pregnant. Con~equentl y p;inicuiar date for con1mcncemem oft ht' reinstated employment could not, ar IO December 1993, be ,rk·cified The appellant gave birlh 10 her child on 8 .ianu~uy 1994 1t may ne!r an interpretation of the ~ituation if 1 now ~et uui the Cormni,¾sion's onk-r :mcl related c ..;phuwtion in exrenwr- ''Accordingly, pursuant to the po\vers given to under 175 )(:.1) of the Au !he Corrnni:~sion orrler.~ the crnolover to n.'instate J\1c•, Fu:mct''.S Aor.e But,:_:her into her previous positi{;n ;l'-< officz'. supcni,;;rn without prejudice 10 the former ernpioymcnt conditions frorn date 10 he ck~~ennincd in CGn~ultntion \vith \:hs Butcher er. m the evt:nt ihat tht'.fC is ;H., agreement to be determined hy the Commission. The Cornnu:.,ion makes this unu:-.ually frn.mL"d order for the fol\o\ving rca~ons Shortly after her termination by Scamn,1z.e Pty. LtJ. fvhs Bu1cher discovered ihat she was pregnant. fhis p1Tgnancy fr)Howed ,1 number of unsuccessful attempts and sevt~raJ rniscarriages Thi: timing of Nir.,;, Burcher's pregnancy i.:, such th~1t she i:;. hkdy to give birth earl) in the nev,/ year :ind it \VOuid be inappropriate in aH of the ci:curnsianct:s for 1hc Cominiss:mn to detenninc a date upon which \1rs Butcher should resume cmployrnen~ because rhe Cornrnissinn cannot place It.self in the n1ind vf r,-fr\ Butcher a:>, h(nv she \\'OU1J hav;;; ,m•·,•,v,c,<,;,,c the i~;:.ue of her ccntinued ful!-tirne crnpJoyment .J.nd/or an Jpplication foi rn.arerniry leave t.rndcr the (\nnmis;.;ion ·s ~1nternlty Leave de.cision dated ! 2 .tvb.rch l 9:qo and puhlished in the Quei:.;nshmd Government Indusuja_J Gazette dated 22 ~A arch !980, No 25. foiir.Vi 698••700. Had she not been unfairly tcnninated, i\.frs Butcher \vould have been :.tbk to z.:omJnue in emplo_yrnent and t.o 1nake ,1 consitkred dec1sion as v,rhether or not she chose to resign - in 0rdl~f to start her f~rnily - Zlr apply for mJternity ieave Such occurrence could h;Jve occurred at any !inv~. and it is not pos:;;ible for eJthe1 ~mployer nr the Cornm1~~ion to detern1ine \Vhich of the:-.c cour:-;e:s of action ;v1rs Buu.:hcr· rnight h:1vc detcrn1irK"d to follO\V, nnr the riming of ~uch occuirence. Indeed, an_y qrn.• ..;twn to \fr~ Bulcher ;.1hout this issue and what sh,~ would h:rve don!:'. h~HJ she rcmoined in employment would only have inYited conjecture on her pan. It ,:s :'-impiy nol po-:.:sih!e to n.:-crca:e historJ Hoi.,vcveL ha\ ing reg<.ird rn tht:~ ~latcrnity Lea vs: dc.ci'.ion, there can he ~OffK' certa1niy to the fin~d d:.ne upon which ;\,1rs Butcher would been required to n-.·surnc duty after the birth ht! i::hiid. /\ccordingiy, the Conuniss?on indlCntc~ f{'.l both p;irties that in the event that !'Yfrs, Rutchcr detern1in.::::; that she does not to resurn2 employment •:virhln iv..-elvc ( 12) months from the date of the birth of her child she may dee in'->tead to receive p.velve ( l 2) V/eeks of pay ai the 1)1· 55c;x_95 Such an1ounr hJ.s been determined \vith no scientific preciseness. It is ~imply designed tu be a reasonable rc.compe.n::;e tv!r~ Butcher fc>r loss of wages hetween the date of dismissal and the dDte of her possible resmnption of emp!oyrnent in circun1stances where no-one could have determined when she might have cho,en, or have been advised, to proceed on n1aternity ieave or to have resigned her empioyrnent. In the event thar !vfrs Rutcher d,;__1t:~s decide to return to ernployrnent within twelve rnonths fr01n the date of the birth of her child rhe period bet ween 9 May l 99, and 9 December 199 3 shai l be regarded as continuouf-. service for aH purpo;.;es The Comrnls;;ion order~, accordingly The folknving events may be hriefly recorded. On 2g February 1994, the representative ~dvised the ernployer that the appellant \\'ished to return to work on .30 tvl::iy l 994 There was no rcspo.n;Se, and 24 fv1arch 1994, the appdlant\ Union representative wrote another lcuer seekrng a response. The en1ployer re~porH.1cz1 on 26 April I 994, ngrceing thar the appellant resume work at l-L30 am. un 30 f\iay. She did not howevt•r th~n resume empk1yment. Th.ere 1,.vas subsequent agree1nent that ;-;;he return to v.-ork on I ! foiy 1994, but that did not eventuate either. Then on 24 Octoher ! 994, the appellant's representmi ve advis,;<l her readiness to recommence employment on 7 November 1994, She appeosed at the employer's premises slmnly bek1re 8.30 a.m. on that day, expt:;cting to resurne duties, Rut the ernpioyer was not of the same hence Mr Dudley Taylor's statement to her In fact, on 4 November i 994, the e1npluyer's m.anager had \vrirten to the appeHant\ represemat!ve saying that 7 Novernbt~r \Vas not suitable, but that the ilppeJiant \VOt1ld be- "n1ure than wekorne to comrncnce work on 21 Nowmber 1994'' i\s ir turned out, the appelhmt\ Umon representative did not receive that kfter, in i-he .;ense of opening it and reading lt, until 7 No\·ernber, The Magi<.trnte conclud;:.d th:,! the appd!ant should be characterised a, a ''worker" as at 7 Novernher ! 994 because of the~e feature~, t~1krn the submission of Mr lrwrn who appeared the re,pondent >- "• up to this poin1_ she hxl shuwn her intent!on \v;:;s to return ta work; • \he had not ;it any stage ind!c.ated that she did nut \Vi\h 1.u res;nme en-1ploynient; • she did not deer to rei.::eive 12 \veek,;' payments: • she had decided ro retur.o to cn1p!oyn1ent within ! 2 rnunth:... and therefor\·: 9/5/91 - 9/l 2/93 wa~ c(mtinuou~ :-:;en'ice • in her rnind and !hat of O'Donr:eH (her n.:pre-.;enr:itive'l a" at 8. l Sa.m_ on 7/ l l/94 fr: their rnindt; the dear election to return to Vh)fk had been transmitted to the busmess and accPpti.:d by it: • :-he return to 1vvork -on 7/ l i/94." i\·11 irwin submitted that the J'vfagistrate erred, and he relied on these aspect...; us rni!i1.ating .against the existence of a contract of service·-·- "'• she had not worked at the business (or for it) m the l month, ,nter 915/93; the only contract that she had -.,vith the husinc-::;s during thiYt p~~rioti wa.-,; 1egar<ling conccs~ionaJ travel; during the period she did not draw wage, or accrue s.ick kave or other en1:lnen1ents connected ·v,,ith ernployrnent; her fin--,t attendance nt !.he office wa-" on 7/1 U04 .. on which .:x:ca:;ion she arrived before what had previously been her normal t.tarting t.irne; • she v..:as there for no rnore than 5 rr.tinutes.; \VOrk: :.o and did no actual the bu5,iness h:1d advi,;.;ed her agent the Union pnor to her auendm1cc on 7/1 t/94 that her crnployment could reconm1ence from 21/1 l/94,''. h dear to rny mind that as at 8.20 a.m./8.JO a.ni. on 7 Novcrnbei l 994. there \vns no contracr of ernployment betwee11 the vppellant and her fonner simply because they had not to thai stagt: re~tched :1 to \vhen she shL 1uld resHnw her dutie~,. The Commi.:;~ion's; order that she be reinstated 1 ;from a date to he deterrnincd ln consu!tDtion tor] de1ermined by the Commission'", As at 7 November 1994,, ,he procc:,, of corhnltatlon had not led 10 an ugreed date for the reinstattrnent uf the empioyn1e·m relationship. In the rrind of the appellant, the date to 7 Novernher. in the rnind of her f(Hmer ernployer_ hov.'e\·ei, that \tas un:icceptabk, 21 November berng acceptable, Tbc former employer had not rnformed the. appellant that 7 Nove111t,er wa:,; acceptable. The part.its plainly were therefore not ad idem a1, to the date hx resun:iprion of the relationship. () , 1997 QUEENSLAND GOVERN!v1ENT INDUSTRIAL GAZErrE H fi".J!Ji:,v,/:-;, necessarily, ihat no contract of service (e1nployment) existed t,c•f\¾,\:en the appellant and her fr1n-ner ernployer at 7 November 1994 Mr Hornc:nan-\Vren, who appeared for the appellant, pointed out that reio;-;tute1nent orders of the Cornrr1ission v.rould norn10.Hy operate irnmcdiawiy. The fact however, that this one diJ not The reinstntcinent it forc~hado\vcd had not in fact eventuated by the tirne of the aHeged injury, ln rnv opinion. therefon::-, the circurnstances relied vn by the t\-1agistrate- could iwt· ·iav/ have warranted the conclusion that as at 7 November 1994 a contrJct of service existed between the parties. The oniy reasonable view of the evldence is that as at rhat. date, there was bet \Veen the parties an absence Gf consensus on lhc point on which the Commi~sion\ order made the reinst:Ht.:ment depend. appeal rnust theret:')re he dismissed h is not necessary that I n11ing1., on the other poinb The question of cost~ 1\ re:-.erved t\vcnty-cighth day of /\pnL 1997 < JERSEY, President Mi Hmneman, Wren (inmucted hv Quinn & Scaumi) for the Appellalll Mr rvLP irv,:in (in:-.1ructed by Vandaleur and Todd as town agents for WorlC:over Queensland) for the Re•,pondent Op,c_;ativc Date: N/A JudgrrJcrii -· Frances Anne Butcher A,\JD \Yorkers' Compens::uion Boa:·d of Quc·.c.n.~land Rekase.d: 28 April ! 997 ########################################################## 123 -- 2 of 2 --