Voluntary actions – vs – Contract of service

Kallis v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 70

The Deceased, Mr Dennis Bouletos, sustained an injury causing death on 16 June 2017 after falling from a height whilst undertaking maintenance work at premises owned by D & G Produce Pty Ltd and occupied by D & G Produce (NSW) Pty Limited.

At the time of his death, Mr Bouletos was the sole director and shareholder of D & G Produce Pty Ltd, a manufacturer of stock feed. In 2010, John Bouletos and Adam Waters set up D & G Produce (NSW) Pty Limited and took over the manufacturing business. The Deceased or D & G Produce Pty Ltd continued to own the premises including much of the plant and equipment and D & G Produce (NSW) Pty Limited paid rent.

Two of Mr Bouletos children, Koula Kallis and Maria Brunetto, sought death benefits under Section 25 of the Workers Compensation Act 1987. They contended that the Deceased was a worker employed by either Company at the date of his death.

D & G Produce Pty Ltd did not hold a policy of workers compensation insurance at the time of the Deceased’s death therefore the Nominal Insurer, iCare, was a party to the proceedings.

Both iCare and D & G Produce (NSW) Pty Limited denied the claim for death benefits on the basis that the Deceased was not a worker or deemed worker pursuant to Section 4 or Clause 2 of the Workplace Injury Management and Workers Compensation Act 1988.

Determinations/Reasons

The matter was heard in the Personal Injury Commission before Member Catherine McDonald on 2 March 2021.

The Applicant submitted that her father’s relationship with either Company was one of worker and employer and therefore there was an entitlement to compensation for his death on 16 June 2017. The Respondent submitted that the Deceased was performing the maintenance work on his own voluntary accord; therefore, he was not a worker and there was no entitlement to death benefits under Section 25 of the 1987 Act.

The Applicant submitted that the Deceased was the sole working Director of D & G Produce Pty and without him the Company could not function. It was submitted that there was a contract of service given the Deceased offered valuable work for valuable gain. Member McDonald considered that even though the Deceased was a Director that it did not mean that he was a working Director. She noted that the Deceased was not paid a salary.

Member McDonald considered the decision in Riverwood Legion & Community Club Ltd v Morse [2007] NSWWCCPD 88 which determined that mutuality of obligation is an essential requirement for a contract of service. The evidence submitted did not indicate that there was any obligation on the Deceased to perform the work and that he chose to do it.

In respect of whether the Deceased was a worker for D & G Produce (NSW) Pty Limited, Member McDonald reached the same conclusion. She considered there was no evidence to indicate that he was paid a wage or an allowance.

She noted that the indicia of employment set out in the decision of Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 were not relevant given there was no evidence supporting that there was an element of control or that he was paid any form of remuneration.

On the basis that there was no payment of remuneration or a contract of service, Member McDonald determined that the Claimant was also not a deemed worker with either Company.

Member McDonald issued a Certificate of Determination on 9 April 2021 making Awards for the Respondents.

Implications

Death benefits compensation will not be payable for actions considered to be voluntary and not under the obligations of a contract of employment.

Mutuality of obligation and remuneration are essential requirements for establishing a contract of service. Without a contract of service, it is likely that a there will be a finding that the injured person is not a worker or deemed worker pursuant to the Workplace Injury Management and Workers Compensation Act 1988.

Should you have any questions about a particular workers compensation matter, please telephone our workers compensation team on either (02) 4929 9333 or (02) 8297 5999.