Timothy James Kiernan v Q-COMP

Date of decision: 29 October 2009, Vice President Linnane

Mr JJ Wiltshire of Counsel, instructed by Murphy Schmidt Solicitors for the appellant

Mr Geoff Stenson of Counsel, directly instructed by Q-COMP

Key words – Trolley collector - 28 – physical– appeal allowed –

s11 (1) A worker is a person who works under a contract of service

Head Note

Timothy Kiernan (Appellant) lodged a Notice of Claim for damages for injuries sustained to his right hand. At the time of the injury, the Appellant was working as a trolley attendant at Morayfield Shopping Centre.

WorkCover Qld (Insurer) rejected the claim for damages on the basis that the Appellant was not a “worker” pursuant to section 11 of the Act. Q-COMP subsequently confirmed the Insurer’s decision as it could not be satisfied that there was a contract of employment between the Appellant and either of the alleged employers.

The Appellant lodged two appeals in the QIRC against the decision of Q-COMP. The first notice of appeal includes an assertion by the Appellant that Albarouki Pty Ltd (now Starlink International Services Pty Ltd) was his employer at the time he sustained an injury. The second notice of appeal includes an assertion by the Appellant that Mr Sarhan was his employer at the time he sustained an injury.

Vice President Linnane stated that the credibility of witnesses was an issue in the proceeding. She determined that the Appellant’s evidence was the most credible of witnesses. She found the evidence of the other witnesses unreliable and that they had a vested interest in a finding that they were not the employer of the Appellant.

VP Linnane stated that the following factors pointed towards a relationship of worker and employer:

• the Appellant performed work as a trolley collector for at the least, a few days, and at the most, two weeks. The evidence of the Appellant and Mr Sarhan is that the Appellant performed trolley collecting work prior to 20 September 2004
• the Appellant performed this work in a shirt with Albarouki on it which was provided to him, wore a safety vest provided to him and did not supply any materials whatsoever
• Mr Sarhan exercised control over the manner in which the Appellant performed his duties, that is, he was shown how to collect the trolleys and where to deliver them
• he filled in a record of starting and finishing times each day he worked and
• the Appellant had worked relatively consistently for the employer once he was offered the position.

Ultimately, VP Linnane was satisfied that the necessary elements of a contract existed. In finding that the Appellant was a “worker”, VP Linnane did not make a finding as to whether Starlink or Mr Sarhan was the employer of the appellant.