In Laghaifar v Sealasash Window Renewal System Pty Ltd  TASSC 9, the Supreme Court considered the recurrent issue of whether the injured person was a worker for the purposes of the Workers Rehabilitation and Compensation Act 1988 (the Act).
Sealasash Window Renewal System Pty Ltd (Sealasash) disputed liability for Mr Laghaifar’s claim for workers compensation on the basis that Mr Laghaifar was not a worker.
Decision of tribunal
At first instance, the Commissioner outlined and identified the evidence leading to the conclusion that Mr Laghaifar was an independent contractor. In weighing up the evidence, the Commissioner determined that Mr Laghaifar had “not discharged the onus to show that he was engaged under a contract of service” and was not a worker.
Mr Laghaifar appealed the Commissioner’s decision to the Supreme Court on the ground that the Commissioner erred in law in finding that the he was not a worker for the purposes of the Act.
Decision on appeal
Justice Pearce noted that deciding whether a person is a worker or a contractor is often heavily focused on the weighing up of the factual evidence which concerns the circumstances of the relationship. However, Pearce J found that where several matters and indicia point to both the worker being engaged under a contract of service (i.e. as a worker) and a contract for service (i.e. as a contractor) it is important not to simply undertake a straightforward weighing up of each evidentiary factor as that may be misleading. Pearce J took a more holistic approach and considered the entirety of the evidence before him, including the personal circumstances of Mr Laghaifar prior to engagement of work, his development and advancement throughout the engagement of work, and the balance of the relationship between the parties at the time of the injury.
Accordingly, where the Commissioner regarded the issues of delegation to others, autonomy and direction of the worker as having little weight, Pearce J found these to be of considerable weight and necessarily determinative. As previous cases provide, it is the totality of the relationship between the parties which must be considered. Matters of delegation, autonomy and direction of the worker significantly reflect the balance, or in this case, the imbalance of the relationship of the parties that evolved up until the time of the injury.
Pearce J concluded that the first ground of appeal, that the Tribunal erred in law in finding that Mr Laghaifar was not a worker, was made out and the appeal was allowed.
This case is a reminder that when determining whether or not to dispute a claim on the basis that the person is not a ‘worker’ for the purposes of the Act, the Tribunal is likely to take a more holistic approach to assessing the relationship between the parties rather than one of simply balancing competing evidentiary factors.
It is necessary to consider all the circumstances of the injured person throughout the working relationship with the Employer and the circumstances at time of injury as this can reflect the engagement has evolved to become an employment relationship, or that there is a clear imbalance in the relationship with the result being that the injured person can be seen as a worker.
This article was written by Luke Taylor, Partner and Laura Paton, Graduate.
P: +61 3 6210 6215