In the recent decision of the District Court in Huntley v IntelliLearn Pty Ltd [2016] WADC 32, Stavrianou DCJ addressed the question of the meaning of ‘employment’ in the calculation of Amount B, in clause 11 of Schedule 1 of the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act). The decision is of some importance in that it dealt with the status of casual employment for the purpose of the calculation of weekly earnings. In the case, the appellant, Ms Huntley, appealed Arbitrator’s Mengler’s decision on the basis that the arbitrator had erred in law in failing to take into account, when calculating weekly earnings, her earnings from a second, casual job.
Background
The appellant worked on a casual basis as an education consultant for the respondent, IntelliLearn Pty Ltd (IntelliLearn). She sustained an injury to her neck and left shoulder on 27 November 2014 in the course of her employment and made a claim for compensation. The respondent subsequently admitted liability for the injury pursuant to the Act.
On the day before and for 12 months prior to the injury, the appellant had worked as an agency nurse for Healthcare Australia (HCA). She worked 3-4 shifts per week, at various hospitals depending on the need for agency nurses. These shifts were booked in advance two to four weeks ahead of time. After the injury; however, the appellant was partially incapacitated and worked some, but not all, of her allocated shifts for HCA.
The appellant claimed that the calculation of weekly workers’ compensation payments for an injury sustained at one job should include entitlement to lost weekly earnings from her second job, which was casual in nature. This raised the question of the meaning of the word ‘employment’ in clause 11 of Schedule 1 of the Act.
Arbitration
At arbitration, Arbitrator Mengler had found that, on the date of injury, the appellant was under a contract of service for the respondent. However, he also found that the appellant’s shift work for HCA was ‘of a casual nature’ and that ‘she was not in that employment on the day of her injury’ [45]. In fact, he found that as the employment had been of a casual nature, there was no continuing contract of service (or any contract at all). As a result, he dismissed the applicant’s claims, holding that her earnings from HCA were not to be taken into account when calculating weekly payments.
District Court of Western Australia
Grounds for appeal
The appellant claimed that Arbitrator Mengler had erred in law by failing to take into account, when calculating the appellant’s entitlement to weekly payments under clauses 7(2) and 11(2) of Schedule 1 of the Act, the past earnings that the appellant had received from HCA.
The appellant claimed that using the ordinary meaning of the word ‘employment’, she had been in more than one employment at the time of her injury, and therefore the sum of average weekly earnings from both jobs should have been used for the calculation of weekly payments. She argued that the fact that the arbitrator had erred in law in failing to apply the relevant definition of Amount B in clause 11 of Schedule 1 of the Act was a ground for appeal [1.1], [3.1].
His Honour’s reasoning
Stavrianou DCJ agreed with the appellant’s argument that, when using the ordinary meaning of ‘employment’, the appellant had been employed by HCA. His Honour noted that the Act does not define or limit the scope of the word ‘employment’ [39], and that Arbitrator Mengler had erred in concluding that ‘for the purpose of the interpretation of Amount B ‘employment did not include an engagement of a casual nature’ ’ [34]. Stavrianou DCJ emphasised that the ordinary meaning of ‘employment’ would include casual work [35], and that it was irrelevant that the appellant’s employment by HCA was of a casual nature [36].
Conclusion
Stavrianou DCJ held that it was an error of law to limit the word ‘employment’ to contracts of service [38], [42], and that the appellant was employed by both the respondent and HCA at the time of injury. In doing so, the appeal was upheld and Arbitrator Mengler’s decision quashed.
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