--- Magistrate B Wright. Melbourne REASONS FOR DECISION ---

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1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE X MARCUS NICOLAIDIS Plaintiff v MEDIA V PTY LTD Defendant --- MAGISTRATE: Magistrate B Wright WHERE HELD: Melbourne DATE OF HEARING: DATE OF DECISION: 30 September 2009 CASE MAY BE CITED AS: Nicolaidis v Media V Pty Ltd REASONS FOR DECISION --- Catchwords: Accident Compensation Pre-Injury Average Weekly Earnings Casual Employee Injury on Second Day of Employment Accident Compensation Act s.5a --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr J Fitzpatrick Arnold Thomas Becker For the Defendant Ms B Knoester Herbert Geer

2 HIS HONOUR: 1 The defendant has accepted liability for injuries suffered by the plaintiff in a motorcycle accident on 12 November 2007 which occurred in the course of his employment with the defendant. The plaintiff Mr Nicolaidis seeks an increase in his pre-injury average weekly earnings ( PIAWE ) from the initial assessed rate of $280, being 14 hours at $20 per hour. 2 There was no dispute between the parties that the ordinary time rate of pay was $20 per hour. Through his counsel the plaintiff sought an increased weekly rate as at the date of injury. He has assumed the burden of proof. 3 The basis for the application is that 14 hours was not the appropriate "normal number of hours" per week pursuant to s.5a of the Accident Compensation Act ( the Act ). 4 In opening it was put that the number of hours worked by a fellow worker, Ricardo Guitierrez was a proper guide. Initially, Counsel submitted that the normal number of hours per week was "at least 32 hours per week". However, in the plaintiff's closing address it was put that the rate was 32.5 hours on the same basis as set out above. Later in his closing address counsel amended his claim to be 24.5 hours. The 32.5 hours reflected the hours worked by Mr Guitierrez in the week from 16 November to 22 November 2007 and 24.5 hours was the number of hours worked by him in the period from 10 November to 13 November The plaintiff was employed as a casual Vespa scooter driver towing large advertising signs around the Melbourne area on a trailer. There were two to three, or maybe even four, riders in a convoy at all relevant times. Mr Guitierrez was a friend of the plaintiff and in fact started work on the same date as him on a similar basis 6 The plaintiff was employed on 10 November 2007 after discussion with a Mr :JAG 1 DECISION

3 Luke Cantwell who was then the manager of the defendant's Victorian operations. He was told by Mr Cantwell (according to him) that the work was casual, that the company had plenty of campaigns booked and that there would be plenty of work. Mr Nicolaidis also brought along his older friend Mr Guitierrez who was interested in working for the defendant in the same capacity as well. 7 The plaintiff said that Mr Cantwell told him that he and Mr Guitierrez could ride together and thus work the same hours. This was the basis of counsel's submission that Mr Guitierrez was an appropriate comparison as set out in counsel's oral and written submissions. 8 It was common that Mr Nicolaidis worked eleven hours, despite initially being supposed to work ten hours, on Saturday 10 November He did not work on the Sunday and worked three and a half hours on the following Monday. On that day he had an accepted work related accident in which he injured his right ankle. The pay records show 14.5 hours worked by him in total, that is up to the time of his injury. He has not worked for the defendant since. 9 There appears to have been some difficulty in diagnosis in that a fracture to his right foot was not initially picked up. He said that on the day after the accident he went back to work and he was fired "on the basis he was a learner rider". However, in his claim form and Newstart Separation certificate completed at about the same time, he said that he had been fired because "P plates not suitable" and "not enough experience on P plates". He agreed that these statements were in his own handwriting. It was possible on the defendant's evidence that in fact he was sacked about 16 November Nothing hinges on this date. 10 In his evidence the plaintiff was confused as to what motorcycle licence he had at the time of the accident. He produced a learner's permit which had expired on 13 October However, he has a probationary motorcycle :JAG 2 DECISION

4 licence which currently expires on 25 September Neither counsel took me through the relevant licensing provisions as they existed at the time. 11 In any event, he did not hold a full licence at any time and probably was on a probationary licence at the time of his injury as set out in his own claim form and Newstart Separation certificate. Both Mr Harrison, the operations director and Mr Pausler, the manager who replaced Mr Cantwell, stated that it was always company policy to only employ motorcycle riders on full licenses. They said that one of the reasons that Mr Pausler replaced Mr Cantwell was that this policy was not enforced by Mr Cantwell. 12 They said that Mr Cantwell was a poor record keeper and administrator which was the reason for his dismissal. To an extent this is corroborated by the plaintiff as he agreed that Mr Cantwell was replaced by Mr Pausler when he himself was dismissed. Also, at that time there was no indication of any workers compensation claim or even apparent significant injury to the plaintiff. 13 Mr Nicolaidis did not produce any evidence or witness as to whether the defendant did in fact employ riders who did not have full licences. Mr Guitierrez appears to have had a full licence at all relevant times. Plaintiff's counsel said that I should not accept the defendant's evidence of that company policy as nothing had been produced in writing. Also, he said that Mr Pausler at one stage in his evidence said that he would "probably not have employed the plaintiff", as opposed to "certainly not as he later corrected himself. 14 Despite those submissions I find that it was always the defendant's policy to only employ motorcycle riders on full licences and accordingly the plaintiff probably should not have been so employed in the first place. As Mr Harrison said, this was one of the reasons for sacking Mr Cantwell. Such a policy has a ring of sense to it. Certainly, one could understand why a company would require motor cycle riders to have a full licence to tow a large advertising :JAG 3 DECISION

5 billboard on a trailer from a low powered Vespa scooter, both for Occupational Health and Safety and insurance reasons. 15 With that finding in mind I must now consider the question of the plaintiff's PIAWE for the purposes of the Act. As I stated before, this was assessed at $280 being 14 hours at $20 per hour. However, it was agreed by all that his pre-injury hours of employment were in fact 14.5 hours. I will discuss that aspect in more detail later. 16 The defendant says that simply this case is resolved by looking at s.5a(1), (3) and (6)(d), especially s.5a(1). It submits the PIAWE is calculated by multiplying the agreed ordinary time rate of pay of $20 by the normal number of hours per week which it had previously determined was The difficulty in this case is that the plaintiff was injured on his second day of employment. Therefore, s.5a(3) covering periods of employment of less than four weeks must be considered. This requires a consideration of what the plaintiff "could reasonably have been expected to have earned in that employment but for the relevant injury at the worker's ordinary time rate of pay for the worker's normal number of hours per week (emphasis added). 18 Of course, the worker was employed on a casual basis. It was agreed by the defendant that if he had not had the accident, he would have worked ten hours in total on Monday 12 November. This was on the basis that he and Mr Guitierrez were due to work ten hours that Monday. In fact, he was told, and agreed to work 21 hours in total on the Saturday and Monday on the basis that he worked 11 hours on the Saturday and agreed to work 10 hours on the Monday. 19 The plaintiff's counsel's written submission that there were 20 fixed or agreed hours is wrong. It was in fact 21 hours. 20 In order to ascertain the correct normal number of hours per week, I must :JAG 4 DECISION

6 now consider ss.5a (6)(d). Section 5A(6)(c) is not applicable as there is no evidence of any applicable award at all. 21 Section 5A (6)(d) states that if the normal number of hours per week is "not fixed for the worker's work under the terms of the worker s employment," the normal weekly number of hours shall be deemed to be the average weekly number of hours worked by the worker during the relevant period under subs.(1) (emphasis added). 22 Of course sub-sections 6(c) and 6(d) are not mutually exclusive. The terms of employment can be fixed other than in an applicable award, for example by express agreement between the parties. 23 The only evidence (which was in fact agreed) was that a total of 21 hours was to be worked by the plaintiff as at the time of the injury. That was the only period that was specifically agreed or fixed, that he worked or should work (see, Ball v. Victorian WorkCover Authority, Supreme Court, unreported, per J D Phillips J., delivered 11 July 1995, at p.15). 24 Both parties refer to Ball v. VWA which involved a piece work ($50 per bin) avocado picker who only worked for three hours. In that case there was no agreement that Mrs Ball was to work for any period of time. Indeed, the main issue was the calculation of her wage having regard to the piece rates agreed to be paid. It was not a case really involving hourly rates and/or agreed hours. I shall discuss that case in more detail later. 25 Plaintiff's counsel submitted that I should use Mr Guitierrez' hours, whether they be 24.5 or 32.5, as a guide to what would reasonably the plaintiff would have expected to earn but for the injury. That causes a number of problems as to calculation even if that argument is correct, which I do not believe it to be anyway. 26 I note that Mr Guitierrez did not in fact work at all on the week commencing 23 :JAG 5 DECISION

7 November as he was on leave. Would the plaintiff have worked that week anyway? That is uncertain. There is nothing to indicate one way or the other. 27 Also, Mr Pausler said that in his capacity as manager he does not fix two riders to always work together anyway. Work is uncertain in any event. I accept Mr Pausler's evidence in that regard. Whether or not Mr Cantwell promised that the two could have ridden together is not to the point. Mr Cantwell was sacked and it was then Mr Pausler's decision. 28 In any event there was no evidence that the work would have been available for the two together at all times anyway. 29 More importantly, the plaintiff's submission is not borne out by the fact that Mr Nicolaidis was dismissed because he did not have a full licence, as I have referred to and accepted above. Thus, under his terms of employment, the only fixed hours were 21 hours and there was no other figure. Further, he could not reasonably have expected to earn any more weekly earnings, for the other further reasons that I have explained. 30 As Mr Nicolaidis' hours were fixed at 21 hours pursuant to the terms of his employment, s.5(6)(d) is not relevant in the sense that the hours had been fixed under the terms of his employment. Thus, it is not necessary to consider s.5a(6)(d) any further. Whether or not the plaintiff could have claimed an extra six and a half hours wage for the period as a casual worker that he did not work on the date of injury is irrelevant for the purposes of s.5a. 31 If in fact he had been employed on a 38 hour week basis, for example as a motorcycle repairer to work 38 hours on the basis of an award or express agreement and been injured on his first day, he would have been entitled to rely on the 38 hours for his PIAWE. 32 If he had been a full time repairer and was injured on the second day, it would not matter whether or not he had been employed under an award for 38 hours :JAG 6 DECISION

8 or a fixed agreement for 38 hours. He would normally be entitled to claim on the basis of 38 hours. 33 At best, the argument relating to Mr. Gutierrez as a proper comparison is speculative. I am unable to say that any discussion between Mr Cantwell and the plaintiff as to the amount and terms of future work was in any fixed. The plaintiff has failed to satisfy me appropriately in this regard anyway. 34 If I am wrong as to my interpretation of s.5a(6)(d) then I still find that Mr Nicolaidis has been incorrectly paid on the basis of pre-injury weekly earnings of $280. If it is necessary to consider the number of hours worked by him during the relevant period under sub-s.(1) then that period was in fact 14.5 hours and not 14 hours. In Ball v. VWA, Justice J D Phillips pointed out that the relevant period in s.5a(1) is in fact the previous 12 months and it is necessary to consider the actual hours worked in that period (see, p.12 and p.15). 35 I sought further submissions from counsel as to whether 14.5 hours should be treated as 14.5 or in fact be rounded down or up to the nearest whole figure. Certainly, looking at the situation from an industrial point of view 14.5 hours of employment should be paid as such and in fact Mr Nicolaidis was actually paid $290 and not $280 which was the figure used by the VWA for PIAWE purposes as at the date of the injury. 36 Certainly for indexation of PIAWE purposes, s.100(4)(a) requires any calculated amount be rounded to the nearest whole dollar which begs the question of what to do with the figure in which the dollar includes an exact 50 cent figure as in the present case. 37 I received further submissions from counsel to what should be done if the normal number of hours is not a whole figure. Perhaps not surprisingly counsel were unable to refer to any specific precedent. However, they did refer to some dicta in the judgment of Justices Brennan and Gaudron in :JAG 7 DECISION

9 Catlow v. ACC 167 CLR 543 at p.544 in which the learned justices calculated the normal amount of hours per week in that case at 37.76, that is not a whole figure and used that figure for the purposes of the necessary average weekly earnings. Thus, they accepted a fraction could be used. 38 Thus, if I am incorrect in my finding that the normal number of hours is 21 in this case then the determination of 14 is incorrect anyway and should be 14.5 in those circumstances. I will make the appropriate orders ORDERS: 39 The orders will be:- 1. Determine the plaintiff's pre-injury average weekly earnings to be $ The defendant to pay the plaintiff weekly payments of compensation as at the applicable rates from 13 November 2007, the amounts of which are reserved. 3. The defendant to pay the plaintiff's costs on Scale D including reserved costs, two hours conference, one refresher and brief to take judgment, amounts reserved. 4. Liberty to apply re s.114e and leave to the parties to apply generally. :JAG 8 DECISION