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Waterhouse v Workers' Compensation Regulator[2024] QIRC 115

Waterhouse v Workers' Compensation Regulator[2024] QIRC 115

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Waterhouse v Workers' Compensation Regulator [2024] QIRC 115

PARTIES:

Waterhouse, Amy

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2023/6

PROCEEDING:

Appeal against review decision of the Workers' Compensation Regulator

DELIVERED ON:

15 May 2024

HEARING DATES:

8 and 9 May 2024

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The orders contained in paragraph [70] of these reasons for decision

CATCHWORDS:

WORKERS' COMPENSATION –  ENTITLEMENT TO COMPENSATION –  INJURIES OUT OF JURISDICTION – TERRITORIAL CONNECTION – EMPLOYER: PLACE OF EMPLOYMENT  OR PRESENT IN JURISDICTION – appeal against review decision of Respondent –  Appellant's de facto partner was employed by a company and usually worked in Queensland  –  Appellant's de facto partner then worked in New South Wales for the same company –  on 6 July 2021, in New South Wales, the Appellant's de facto partner was involved in a single motor vehicle accident and suffered fatal injuries – Appellant applied for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 in respect of her de facto partner's death – application denied by WorkCover Queensland because the Appellant's de facto partner's employment was not connected with Queensland  – Respondent confirmed WorkCover Queensland decision on review – whether Appellant's de  facto partner's employment was connected with Queensland  within the meaning of s 113 of the Workers' Compensation and Rehabilitation Act 2003 – Appellant's de facto partner's employment was not connected with Queensland within the meaning of s 113 of the Workers' Compensation and Rehabilitation Act 2003 – review decision confirmed – parties to be heard about costs

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011, r 41

Workers' Compensation and Rehabilitation Act 2003, s 113 and s 558

CASES:

Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39

Covill v WorkCover Queensland [2022] QSC 171

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

APPEARANCES:

Mr M. Pope of Counsel instructed by Ms R. Derek of Derek Legal.

Mr P. O'Neill of Counsel directly instructed by Ms R. Matheson of the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Mr Benjamin Karl Kennan was employed by A&L Windows (Qld) Pty Ltd ('A&L'). From December 2014 to August 2019, Mr Kennan was employed by A&L as a Service Technician. During that time, he usually worked in Queensland. From August 2019 to March 2021 Mr Kennan worked as a Territory Manager for A&L in Queensland. From 29 March 2021, Mr Kennan worked for A&L as a Service Technician in New South Wales. On 6 July 2021, Mr Kennan was involved in a single motor vehicle accident in New South Wales. Mr Kennan died as a result of the injuries he suffered in that accident.
  1. [2]
    On 2 February 2022, Ms Amy Waterhouse lodged an application with WorkCover Queensland in respect of Mr Kennan's death. Ms Waterhouse described herself as Mr Kennan's de facto partner. By decision dated 8 November 2022, WorkCover Queensland rejected Ms Waterhouse's application on the basis that Mr Kennan's employment was not connected with Queensland within the meaning of s 113 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act').
  1. [3]
    By review decision dated 3 January 2023, the Workers' Compensation Regulator confirmed the decision made by WorkCover Queensland.
  1. [4]
    Ms Waterhouse, by notice of appeal filed on 23 January 2023, appeals against the review decision. Ms Waterhouse contends that, at the time of his death, Mr Kennan's employment was connected with Queensland within the meaning of s 113 of the Act. The Regulator contends there was no such connection.
  1. [5]
    The question for my determination is whether, at the time of his death, Mr Kennan's employment was connected with Queensland within the meaning of s 113 of the Act.
  1. [6]
    There is no dispute between the parties that this appeal is a hearing de novo, that Ms Waterhouse bears the onus of proof as to whether Mr Kennan's employment was connected with Queensland within the meaning of s 113 of the Act, and that the standard of proof is on the balance of probabilities.
  1. [7]
    For the reasons that follow, my determination is that at the time of his death, Mr Kennan's employment was not connected with Queensland within the meaning of s 113 of the Act.
  1. [8]
    The consequence is that the review decision will be confirmed.

Section 113 of the Workers' Compensation and Rehabilitation Act 2003

  1. [9]
    Section 113 of the Act provides:

113 Employment must be connected with State

  1. Compensation under this Act is only payable in relation to employment that is connected with this State.
  1. The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to employment that is connected with this State.
  1. A worker’s employment is connected with–
  1. the State in which the worker usually works in that employment; or
  1. if no State or no 1 State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
  1. if no State or no 1 State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.
  1. In the case of a worker on a ship, if no State or no 1 State is identified by subsection (3), a worker’s employment is, while on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than 1 State) the State in which the ship most recently became registered.
  1. If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if–
  1. the worker is in this State when the injury is sustained; and
  1. there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
  1. In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer.
  1. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
  1. Compensation under this Act does not apply in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker’s employment.
  1. In this section–

State, in a geographical sense, includes a State’s relevant adjacent area as described in schedule 4.

  1. [10]
    Section 113 of the Act was considered by Applegarth J in Covill v WorkCover Queensland.[1]  In respect of s 113(3) of the Act, his Honour stated:[2]
  1. [31]
    Section 113(3) is quoted above.  The meaning of "usually works" in s 113(3)(a) was discussed in Ferguson.  It and other authorities apply the ordinary meaning of "usually" in its statutory context to mean the place where the worker habitually or customarily works or works in a regular manner.  The State, if any, in which the worker "usually works" in that employment is not determined by deciding the State in which the worker spends the majority of his or her time.  The time spent in any particular State is still relevant.  The sub-section does not involve a mathematical test.
  2. [32]
    There may be no State in which the worker "usually works".  As was observed in Ferguson:

"The fact that a worker's time in employment is predominantly spent in one State does not necessarily mean that the State is the only State in which the worker "usually works". The worker will usually work in more than one State if the worker habitually or customarily works in a second State."

  1. [33]
    Section 113(6) provides that in deciding whether a worker "usually works" in a State, regard "must be had to the worker’s work history with the employer and the intention of the worker and employer.”  The singular word "intention" suggests a mutual or shared intention held by both the worker and employer, rather than a subjective intention held by one or the other.  Any mutual intention is a matter to which regard must be had.
  2. [34]
    The Act does not preclude having regard to other circumstances that are not mentioned in s 113(6) which may be relevant in the particular case.  For example, s 113 does not preclude having regard to the probability that the worker will be offered future work by the employer and the probability that the worker will accept such an offer.  The expected duration of a contract that applies at the time of injury may be relevant to ascertaining the worker’s employment.  So too may be the availability of future work there or in other places.  Expectations based on representations made by one party to the other may be relevant even if they do not constitute a contractual term or a binding legal promise.  Any pattern that emerges from the worker’s work history with the employer is relevant.  The likelihood or improbability that the employer will offer the employee work in the future, along with the likelihood that the employee will accept such an offer, may also be relevant in determining the relevant employment.
  3. [35]
    As to work history, s 113(6) of the Act does not provide that regard must be had to the worker’s work history with the employer over a certain period.  In the absence of a statutory framework that compels having regard only to a specific period prior to the date in question, it would appear to be a matter for the trial judge to work out, having regard to the particular circumstances of the case, what an appropriate frame of reference is.
  4. [36]
    In some circumstances, where there has been a lengthy employment relationship it may be possible to discern a pattern of work over a substantial period.  If the frame of reference is much shorter, then the same statutory element is applied in different circumstances.  If during the relevant period the worker worked in more than one State the ultimate issue would be the same.  It involves consideration of the work history and the expected future, if any, of the relationship.
  5. [37]
    In the circumstances of a particular case, where the matters to which regard must be had under s 113(6) and the matters to which regard may be had lead to the conclusion that there is no one State in which the worker "usually works" in that employment, then consideration is given to the State, if any, in which the worker is "usually based" for the purposes of that employment.  The meaning of "usually based" is discussed in Ferguson.  The statute contemplates there may be cases in which there is no State or no one State in which the worker is "usually based" for the purposes of his or her employment.  In that event, the cascading test requires consideration of the State in which the employer’s principal place of business in Australia is located.

The evidence

Ms Waterhouse's relationship with Mr Kennan

  1. [11]
    Ms Waterhouse was the only witness called for her case.
  1. [12]
    Ms Waterhouse met Mr Kennan in June 2011. After about 12 months, they began to cohabit. Eventually they had three children. Ms Waterhouse stated when she first met Mr Kennan, he said he had drug issues and that, over the years, she had seen him come in and out of drug use, some times worse than others.
  1. [13]
    In late 2020 and early 2021, Ms Waterhouse stated that Mr Kennan's drug use was problematic, he was using 'ice' (crystal methamphetamine), his drug use was affecting his work performance in that he was late for work, he was erratic and he was struggling to  keep on top of this work. Ms Waterhouse also stated that he was suffering from anxiety and depression. She stated his behaviour was impacting her relationship with him in that it was becoming difficult to have conversations with him, he would be away for days at a time and that he was not answering her calls. Further, at about that time, while Mr Kennan did not fully move out of the house in which they cohabited, there was a concern about him being around their children, resulting in Mr Kennan staying at other locations.
  1. [14]
    At all times material to this matter:
  • the General Manager of A&L, for Queensland and New South Wales, was Ms Amy Pierson; and
  • Ms Waterhouse was operating a business as a hairdresser, and one of her regular clients was Ms Pierson.

Mr Kennan's work history with A&L

  1. [15]
    Ms Waterhouse stated that when Ms Pierson attended Ms Waterhouse's salon, she had conversations with Ms Pierson about Mr Kennan. Because they spoke about Mr Kennan, Ms Pierson informed Ms Waterhouse that Mr Kennan had the skills to be a Service Technician for A&L.
  1. [16]
    As a consequence, from about December 2014, Mr Kennan commenced employment with A&L as a Service Technician.  Mr Kennan's duties in that position involved him dealing with warranty issues in respect of aftermarket work for the windows and screens that  A&L  installed. To perform that work, A&L provided Mr Kennan with a van and tools of trade. Mr Kennan, in that position, worked predominantly in Queensland apart from a period of time in 2016 when he worked in Victoria.
  1. [17]
    On the evidence before me:
  • the work in Victoria arose because there was a need for A&L to temporarily deploy Service Technicians to work there;
  • there was no amendment to the employment contracts between A&L and the Service Technicians (including Mr Kennan) who were temporarily deployed to Victoria and they returned to their substantive positions in Queensland when the work in Victoria was completed; and
  • A&L paid for the accommodation and meals for such Service Technicians (including Mr Kennan) whilst they were in Victoria and also paid for their travel back to Queensland, at intervals, for family purposes.
  1. [18]
    In August 2019, when still employed by A&L, Mr Kennan changed positions. From August 2019 to March 2021, Mr Kennan worked as a Territory Manager for A&L in Queensland. That position involved Mr Kennan being responsible for the sales of A&L products for a particular region of Queensland. Mr Kennan's region of responsibility, according to Mr Dallas De Havilland, A&L's Queensland Sales Manager and Mr Kennan's supervisor at that time (who gave evidence for the Regulator) was Brisbane West out to Toowoomba. On the evidence before me, Mr Kennan performed that work as Territory Manager solely in Queensland.
  1. [19]
    Mr De Havilland's unchallenged evidence was that after Christmas 2020, Mr Kennan's performance in the position of Territory Manager changed for the worst. Mr De Havilland stated that he was getting calls from Mr Kennan's customers, and that Mr Kennan's performance became worse dramatically, and very quickly, in that Mr Kennan was not giving him the paperwork he required and sometimes he would not see Mr Kennan for days. Mr De Havilland stated that Mr Kennan did not give him any reasons for the change in his work performance, other than stating to him that there had been a change in his life and he was partying heavily on the weekends.
  1. [20]
    The parties tendered an agreed trial bundle of documents ('the trial bundle'). Page 82 of the trial bundle was an email from Mr Kennan to Mr De Havilland sent on 17 March  2021, which stated:

Morning mate

I'm really sorry for letting you down especially for yesterday. Life is at the point where my anxiety is through the roof with no realistic place to live. I've spoken to the doctor this morning explaining what's happening in my life. He says the rest of the week off but can only give me the next two days and I'll need to call back Friday to get that day.

That will allow me to get a semi permanent roof over my head and give me the stability to focus and concentrate on work and personal life.

This is not ideal and understand I'm jeopardising my job. However me working this week would have lost me my job.

I realise I don't have the sick pay to cover that time off but that is a stress I'll deal with next week.

The conversation between Ms Waterhouse and Ms Pierson on 19 March 2021

  1. [21]
    At this time, Ms Waterhouse was operating her hair dressing business from her home.
  1. [22]
    Ms Waterhouse's evidence in chief was that:
  • at this time, Mr Kennan was using ice heavily;
  • on 19 March 2021, Ms Pierson attended Ms Waterhouse's hair salon and, at Ms Pierson's volition, Ms Pierson said words to the effect of: 'What are we going to do about Ben?', 'We will put him on a performance review and he will fail', 'How about New South Wales? We need a Service Technician in New South Wales and he could go there to sort himself out';
  • there was no conversation about how long Mr Kennan would be working in New South Wales; and
  • Mr Kennan was in the house (from which the hairdressing salon was being conducted at that time) and she (Ms Waterhouse) spoke to Mr Kennan about 'Ms Pierson's proposal' and while he was apprehensive, he thought it would be a good idea.
  1. [23]
    Ms Waterhouse gave no evidence that:
  • after this conversation with Mr Kennan, Ms Pierson was still at her house or in the salon; and
  • she (Ms Waterhouse) reported to Ms Pierson what Mr Kennan had stated to her.
  1. [24]
    Ms Waterhouse then stated that Mr Kennan left Queensland on 25 March 2021 and travelled to New South Wales in a motor vehicle (a Commodore)  supplied by A&L. In relation to this issue, the Regulator called evidence from Ms Libby Young, A&L's Operations Manager who worked in New South Wales at the time Mr Kennan travelled from Queensland to New South Wales. Ms Young's evidence (unchallenged on this point) was that the Commodore was for her use while she waited for A&L to supply her with a new vehicle as part of her employment contract.
  1. [25]
    In cross-examination, Ms Waterhouse's evidence about these events was:
  • Ms Pierson came into the salon on that Friday (19 March 2021) for a hair appointment;
  • Ms Pierson told her that Mr Kennan's time in New South Wales would be '… like the Victoria situation' and when it was put to her that no such topic was mentioned, her evidence was that there was such a conversation;
  • Ms Pierson told her that there was a vacant position in New South Wales (for A&L) as a Service Technician and that position would be a good fit for Mr Kennan;
  • she could not remember if she mentioned to Ms Pierson that Mr Kennan was suffering from anxiety; and
  • she would have had a lot of conversations with Mr Kennan about the logistics of his move to New South Wales.
  1. [26]
    Ms Waterhouse's evidence in cross examination also was that it was very possible that, in early 2021, she stated to Ms Pierson that Mr Kennan was 'couch surfing'.
  1. [27]
    Ms Pierson gave evidence on behalf of the Regulator.
  1. [28]
    Ms Pierson's evidence was that in about late 2020 and early 2021, she was informed that there were problems with Mr Kennan's work performance and, at that time, she had discussions with Ms Waterhouse about Mr Kennan in which she (Ms Pierson) was told by Ms Waterhouse that their relationship (Ms Waterhouse and Mr Kennan's) was not good and that Mr Kennan was not living with Ms Waterhouse.
  1. [29]
    Ms Pierson's evidence was that she thought the New South Wales position would be less stressful for Mr Kennan.
  1. [30]
    Ms Pierson's evidence about the conversation on 19 March 2021 was that she had a conversation with Ms Waterhouse on that day and she said to her (Ms Waterhouse) that A&L had a permanent vacancy in New South Wales for a Service Technician.
  1. [31]
    In cross-examination, Ms Pierson:
  • said that she did not recall saying 'What are we going to do about Ben?' and did not recall saying that she 'Did not want to performance manage Ben';
  • denied that she said she was going to performance manage Mr Kennan because she was not his manager;
  • when it was put to her that she said the Service Technician position in New South Wales would be 'good for him', she stated that she did not recall using that language;
  • when it was put to her that she said it would be 'like Victoria' she stated that she would not have said that; and
  • she did not recall Ms Waterhouse leaving her to talk to Mr Kennan.

Mr Kennan's position as a Service Technician for A&L in New South Wales

  1. [32]
    Ms Pierson's evidence was that:
  • Mr Kennan applied to be permanently appointed to the position of Service Technician in New South Wales;
  • Mr Kennan resigned from his Territory Manager position, that position was then no longer available to him, and that position was then advertised (as vacant) and someone was appointed to fill the position;
  • A&L provided accommodation for Mr Kennan, in New South Wales, for the first 8 to 10 weeks of his employment, after which he was responsible for his own accommodation; and
  • Mr Kennan's transfer to the Service Technician position in New South Wales was permanent.
  1. [33]
    Ms Pierson also stated that she had never had a conversation with Mr Kennan, either just before March 2021, or after that time.
  1. [34]
    Mr De Havilland's evidence was that while he was not sure if it was face to face or on the telephone, at the time he received the email from Mr Kennan on 17 March 2021 (referred to earlier in these reasons), he had a conversation with Mr Kennan where he said to Mr Kennan that his position was untenable and that he then referred to the vacancy in New South Wales for a Service Technician. Mr De Havilland stated that position was a permanent role and that he asked Mr Kennan to consider that position given his personal situation. Mr De Havilland said that Mr Kennan stated that it was the best opportunity to get his act together.
  1. [35]
    Page 39 of the trial bundle is Mr Kennan's letter of resignation, dated 22 March 2021, from his Territory Manager position. Mr De Havilland's evidence was that the Territory Manager position, left vacant by Mr Kennan's resignation, was advertised as vacant and was permanently filled by an internal appointee. Further, Mr De Havilland said that, as a result, there was no role for Mr Kennan in Queensland in sales and Mr Kennan's resignation finished his role as Territory Manager.
  1. [36]
    This evidence of Mr De Havilland was unchallenged.
  1. [37]
    Page 40 of the trial bundle was a letter of offer of appointment, dated 26 March 2021, by Jeld-Wen, the parent company of A&L, to Mr Kennan for the position of Service Technician in New South Wales.
  1. [38]
    Ms Katrina Fisher, Jeld-Wen's HR Operations Consultant in March 2021, gave evidence for the Regulator. Ms Fisher stated that she prepared the letter of offer dated 26 March 2021. Ms Fisher also stated that the position of Service Technician in New South Wales was a permanent position.
  1. [39]
    Pages 41 to 50 of the trial bundle is a copy of the contract of employment entered into between A&L and Mr Kennan for the position of Service Technician in New South Wales. It was electronically signed by Ms Pierson, for A&L, on 26 March 2021 and was actually signed by Mr Kennan on 31 March 2021 ('the contract').
  1. [40]
    Ms Fisher's evidence was that she prepared the contract.
  1. [41]
    The contract relevantly provides:
  • the commencement date of the employment was 29 March 2021 and the employment '… would continue until the employment is terminated.';
  • for no period of probation;
  • the principal place of employment, unless otherwise reasonably requested by A&L, was '… Heatherbrae, NSW';
  • Mr Kennan's normal hours of operation were Monday to Thursday from 6:30 am to 3:00 pm and on Friday from 6:30 am to 12:30 pm; and
  • the governing law of the contract was the '… State of N.S.W.'.
  1. [42]
    In cross-examination, Ms Waterhouse's evidence was that:
  • she was not aware that Mr Kennan had resigned as Territory Manager in Queensland;
  • she was not aware that someone had replaced Mr Kennan in his position of Territory Manager in Queensland;
  • she was not aware that, because of Mr Kennan's resignation from his position of Territory Manager in Queensland, he could not go back to that position;
  • she was not aware that the offer of appointment to Mr Kennan was for a permanent position for A&L in Heatherbrae, New South Wales; and
  • she was not aware that the contract provided that the commencement date of the employment (in New South Wales) was 29 March 2021 and that the employment would continue until the employment was terminated.
  1. [43]
    There is no dispute that A&L provided a motor vehicle for Mr Kennan to travel from Queensland to New South Wales so as to take up the Service Technician position in New South Wales. Ms Pierson's evidence was the same as Ms Young's in that the vehicle provided to Mr Kennan, for that travel, needed to be delivered to Ms Young.
  1. [44]
    Ms Young's evidence was that:
  • the Service Technician position in New South Wales at Heatherbrae had been vacant for about six months and A&L had trouble filling that vacancy; and
  • Mr Kennan's position at Heatherbrae involved him attending at the A&L office each day to obtain his daily run sheet and work materials.
  1. [45]
    The Regulator also called evidence from Ms Lenice Norris, who, at the material time, was employed by A&L in the position of HR Business Partner.
  1. [46]
    Ms Norris' unchallenged evidence was that Mr Kennan's acceptance of the offer of appointment to the Service Technician position in New South Wales (at Heatherbrae) resulted in a permanent change to his employment by A&L, the consequence of which was that his Territory Manager position in Queensland would no longer be available to him because he had resigned from that position. Ms Norris also contrasted that situation involving Mr Kennan, to an A&L employee temporarily seconded or temporarily transferred to another State where such an employee would always go back to their substantive position after the temporary secondment or transfer ended.
  1. [47]
    Ms Waterhouse's evidence was that when Mr Kennan was in New South Wales, she was in daily contact with him, and that he visited Queensland on 20 May 2021 and on one other later occasion for one of their children's birthdays.

The parties' contentions and submissions

  1. [48]
    Ms Waterhouse contends that, at the date of his death, Mr Kennan's employment was connected with Queensland because:
  • Mr Kennan's move to New South Wales was on a temporary basis, by agreement between her and Ms Pierson, for the purposes of improving Mr Kennan's mental health and drug addiction and that Mr Kennan was to return to work in Queensland when his mental health improved and his drug addiction was controlled;
  • the contract stated Mr Kennan's place of employment was in New South Wales but his employer was based in Queensland and '… his Award was held under the A&L Windows Queensland Enterprise Agreement 2021'; and
  • Mr. Kennan was paid '… by the Queensland based employer', his accommodation '… was paid by the Queensland based employer' and his car '… was supplied by the Queensland based employer.'
  1. [49]
    Ms Waterhouse submits that:
  • but for her evidence about the 19 March 2021 conversation she had with Ms Pierson, she would not have appealed the review decision;
  • on the review of the documentary evidence, Mr Kennan's move to New South Wales was on a permanent basis;
  • there were two scenarios in the case, either:
  1. -
    there was an agreement between her and Ms Pierson to send Mr Kennan to New South Wales to help him recover from his problems and return to Queensland when he recovered; or
  2. -
    A&L sent a drug addicted employee away from his family on a permanent basis; and
  • if the Commission accepts Ms Waterhouse's evidence that Ms Pierson said to her the move to New South Wales would be '… like Victoria', then the other issue was the operation of s 113(7) of the Act.
  1. [50]
    On the last point concerning s 113(7) of the Act, as I understand Ms Waterhouse's submission, the contention is that:
  • because of the beneficial nature of the Act and the wide construction that must, therefore, be given to it, as the accident which resulted in Mr Kennan's death occurred within a 6 month period of Mr Kennan's transfer to New South Wales, the temporary arrangement was for six months or less; and
  • therefore, s 113(7) of the Act would apply.
  1. [51]
    The Regulator relevantly contends that in respect of s 113(3)(a) of the Act:
  • at the time of his death, Mr Kennan usually worked in New South Wales;  and
  • the contract was not a temporary arrangement but involved a permanent transfer to New South Wales. 
  1. [52]
    The Regulator submits that:
  • there was no evidence that A&L sent Mr Kennan, as a drug addicted employee, away to New South Wales because there is no evidence that anyone from A&L knew of Mr Kennan's drug problems and that proposition was never put to any of the witnesses called by the Regulator;
  • at its highest, Ms Waterhouse's case is that there was an informal discussion between her and Ms Pierson about such a temporary transfer to New South Wales for Mr Kennan;
  • in respect of the application of s 113(7) of the Act, Ms Waterhouse gave no evidence about the length of time of the temporary arrangement she said she agreed with Ms Pierson for Mr Kennan to work in New South Wales;
  • in respect of the application of s 113(6) of the Act, there is no evidence of any direct discussion between Mr Kennan and anyone from A&L about Mr Kennan temporarily transferring to New South Wales; and
  • the evidence of all of the witnesses called by the Regulator was that Mr Kennan's move to New South Wales, to work for A&L in the Service Technician's position, was a permanent move.
  1. [53]
    The Regulator then submits that s 113(3)(a) of the Act applies because:
  • the evidence establishes that, in respect of Mr Kennan's new role as a Service Technician based at Heatherbrae, the only State in which Mr Kennan worked was New South Wales;
  • in that role, Mr Kennan was working five days a week, Monday to Thursday from 6:30 am to 3:00 pm and Friday from 6:30am to 12:30 pm;
  • during the period Mr Kennan worked in New South Wales, from 29 March 2021 to 6 July 2021, the only time he returned to Queensland was for one weekend to visit his family; and
  • in light of all that evidence, s 113(3)(a) is engaged and the State that was connected to the employment of Mr Kennan, at the time of his accident, was New South Wales.

Mr Kennan's employment was not connected with Queensland at the date of his accident and death

  1. [54]
    I accept the Regulator's submissions. In my view, Mr Kennan's employment, at the time of his accident and death, was not connected with Queensland. This is because s 113(3)(a) of the Act applies in that the State in which Mr Kennan usually worked in '… that employment' was New South Wales.
  1. [55]
    In my view, there are four reasons why, at the time of his death, Mr Kennan's employment was not connected with Queensland within the meaning of s 113 of the Act.
  1. [56]
    First, there is a conflict in the evidence given between Ms Waterhouse and Ms Pierson about whether there was any sort of agreement that Mr Kennan's move to New South  Wales was temporary for the purposes of him overcoming his drug addiction. Indeed, Ms Waterhouse's evidence was that Ms Pierson said to her that Mr Kennan's time in New South Wales would be '… like Victoria'.
  1. [57]
    I need to be cautious about determining the credit of these witnesses solely by my observations of them when they were giving their evidence.[3] The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.[4] 
  1. [58]
    There is clear evidence, independent of the evidence given by Ms Waterhouse and Ms Pierson, which is apt to cast light on the probabilities of whether there was such a temporary arrangement as claimed by Ms Waterhouse. The evidence is:
  • the documentary evidence of Mr Kennan's formal resignation from his Queensland Territory Manager position on 22 March 2021;
  • the contract and its terms as I have referred to earlier, including that it was not expressed to provide for Mr Kennan's temporary or fixed term employment in New South Wales, but rather his ongoing employment until that employment was terminated;
  • the unchallenged evidence of Mr De Havilland and Ms Norris that Mr Kennan could not return to his Territory Manager position in Queensland following his resignation from that position;  and
  • the unchallenged evidence of Ms Fisher and Ms Norris that Mr Kennan's Service Technician position in New South Wales was permanent.
  1. [59]
    This evidence persuades me that Ms Pierson's account of the 19 March 2021 conversation should be accepted over that of Ms Waterhouse. Further, Mr Kennan's employment in New South Wales did not bear any of the hallmarks of the earlier temporary employment Mr Kennan had in Victoria. Further still, Mr Kennan's employment in New South Wales attracted the formalities of him resigning from his Territory Manager position and the execution of a new contract of employment. There is no evidence of similar formalities in respect of the time Mr Kennan worked in Victoria.
  1. [60]
    Secondly, having regard to s 113(6) of the Act, the evidence I have referred to above proves that the mutual intention of Mr Kennan and A&L was that Mr Kennan's transfer to A&L in New South Wales was permanent. This demonstrates that the State in which Mr Kennan usually worked at the time of his accident was New South Wales.
  1. [61]
    Even taking Ms Waterhouse's case at its highest, her case involves an informal arrangement brokered by her. However, for the reasons I have given above, the independently established evidence is directly inconsistent with Ms Waterhouse's evidence. Indeed, on Ms Waterhouse's own evidence in cross-examination, she did not know that Mr Kennan had formally resigned from his Territory Manager's role in Queensland and she was not aware that the offer of appointment to Mr Kennan was for a permanent position in New South Wales.
  1. [62]
    Further, in terms of s 113(6) of the Act and the regard I must have to Mr Kennan's work history, the period of time I determine for that purpose is the period of Mr Kennan's work in New South Wales for A&L between 29 March 2021 and 6 July 2021. This is because, on the evidence before me, Mr Kennan formally relinquished his Territory Manager's role in Queensland and then contracted with A&L to take up permanent employment in New South Wales as from 29 March 2021.
  1. [63]
    Between 29 March  2021 and 6 July 2021, Mr Kennan worked solely in New South Wales. This demonstrates that the State in which Mr Kennan usually worked, at the time of his accident, was New South Wales.
  1. [64]
    Thirdly, as the Regulator submits, 113(7) of the Act could have no application even taking Ms Waterhouse' case at its highest. This is because, on Ms Waterhouse's evidence, there was no discussion between her and Ms Pierson about any specific period of time Mr Kennan would temporarily work in New South Wales.
  1. [65]
    Finally, as the Regulator submitted, there is no evidence any relevant manager or employee of A&L knew of Mr Kennan's drug problems. As such, there is no evidence to support the submission that A&L deliberately sent a drug addicted employee to New South Wales away from his family.

Conclusion

  1. [66]
    In this appeal, the onus was on Ms Waterhouse to prove, on the balance of probabilities, that Mr Kennan's employment with A&L, at the time of his death, was connected with Queensland within the meaning of s 113 of the Act.
  1. [67]
    For the reasons I have given, Mr Kennan's employment with A&L was not connected with Queensland at the time of his death.
  1. [68]
    The review decision of the Regulator is confirmed.
  1. [69]
    I will hear the parties as to costs.

Orders

  1. [70]
    I make the following orders:
  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent dated 3 January 2023 (Reference 63473) is confirmed.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Wednesday, 29 May 2024; and
  1. unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1] [2022] QSC 171.

[2] Citations omitted.

[3] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30]-[31] (Gleason CJ, Gummow and Kirby JJ).

[4] Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, [34] (Keane JA, McMurdo J [64] and Douglas J [65] agreeing).

Close

Editorial Notes

  • Published Case Name:

    Waterhouse v Workers' Compensation Regulator

  • Shortened Case Name:

    Waterhouse v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 115

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    15 May 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
4 citations
Jump To
Cite 1 - [2007] QCA 136
Cite 2 - [2007] QCA 136
Cite 3 - [2008] 1 Qd R 39
Cite 4 - [2008] 1 Qd R 39
Covill v WorkCover Queensland(2022) 11 QR 404; [2022] QSC 171
2 citations
Jump To
Cite 1 - [2022] QSC 171
Cite 2 - [2022] QSC 171
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
2 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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