QIRC finds Appellant was a ‘worker’ pursuant to the WCRA, despite there being no record of his employment

13 March 2023

Despite there being no record of employment, the QIRC finds a 92 year-old appellant was a ‘worker’ for the purposes of the WCRA, owing to the detailed evidence regarding the nature of his employment, key areas of the employment site and photographs of him and his workmates.

In issue

  • The Appellant sought to appeal a decision of the Workers’ Compensation Regulator (the Regulator) dated 17 November 2021 which confirmed an earlier decision of the Insurer to reject his application for compensation. The sole issue for determination in the appeal was whether the Appellant was a ‘worker’ within the meaning of section 11 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).

The background

The Appellant was 92 years old at the time of the appeal. He was born, and currently resides in, Italy. In 1948, the Appellant travelled to Sydney, Australia where he claimed to have obtained employment. In 1950, he travelled to Mount Isa, Queensland, and claimed he was offered and subsequently accepted employment with a mining company.

It was accepted between the parties that the Appellant was diagnosed with silica related dust fibrosis on 26 May 2020, and on 21 September 2021, he lodged a worker’s compensation claim with the Insurer. On 9 June 2021, the Insurer rejected the application on the basis that the Appellant was not a ‘worker’, and the Appellant sought a review of the Insurer’s decision. On 17 November 2021 the Regulator confirmed the Insurer’s decision on the basis that the Appellant was not a ‘worker’.

The decision on appeal

The evidence comprised an affidavit and oral evidence from the Appellant and a Human Resources Officer (HR Officer) from the current mine operator.

The mine has been operated by 3 different entities since the Appellant’s employment, and the HR Officer’s evidence dealt with the nature of the historical records that the current mine operator had in its possession and the records that were held by previous operators. The HR Officer advised that the Appellant’s employment records could not be found on the electronic database, noting the database had been changed twice and only held records dating back to the 1970’s. It was therefore unsurprising that the Appellant’s records could not be found on the electronic database. The HR Officer also advised that the Appellant’s employment records could not be located in the physical paper files or the microfiche cards, which dated back to the early 1950’s, however confirmed that the records were not complete for several reasons, including that historically paper files were not kept beyond 20 years.

The HR Officer also advised that she:

  1. Was not aware of the practice in 1950 with respect to how the original mine operator offered employment to workers;
  2. Was aware that it was standard practice for the original mine operator’s employees to live at their Barracks in the 1950’s; and
  3. Was not aware as to whether the mine operator paid its employees a weekly wage during the relevant period.

The Appellant’s evidence described the nature of his employment, and he was also able to provide quite detailed evidence with respect to the work he performed at the mine. The Appellant also provided several photographs which he said were of him and workmates, in or around the mine site. Relevantly, several of the photographs showed the Appellant allegedly at the Mount Isa pool, lying on grass outside of the barracks where he lived, and standing outside the mess and other key areas at the mine site. The Appellant advised that after approximately 4 years of working at the mine, he decided to return to Sydney. He remained in Sydney for a few months and then returned to Italy, where he still lives today.

The Regulator argued that the Appellant’s evidence was unreliable on the basis that there was an absence of corroborating evidence and because of his failure to recall the names of workmates during his cross-examination.

In that regard, the Commission said despite the length of time between the Appellant executing his statement and the giving of his oral evidence, his oral evidence (after some exploration and clarification by the Regulator’s counsel), was largely consistent with his statement and he was able to, on the whole, provide consistent evidence with respect to his time in Australia, relationships made, the nature of the work he performed whilst employed in Sydney and on the Snowy Mountains Hydro Electric Scheme, his arrival in Mount Isa and meeting a man who suggested he find work at the mine site. The Appellant also gave consistent evidence with respect to how he ended up working at the mine, the nature of the work he performed, his accommodation and the recreational activities he engaged in whilst there.

The Commission also noted that some of the HR Officer’s evidence supported the Appellant’s evidence, particularly with respect to the accommodation at the mine site.

Further, the Commission said that, due to the practice of not keeping the paper files for more than 20 years, it could not be satisfied that the employer’s records dating back to the 1950’s were complete. It followed that the absence of the Appellant’s employment records did not necessarily support a conclusion that he was not employed by the employer. The Commission found that the significant passage of time was a reasonable excuse for the Appellant’s failure to produce any pay slips or evidence regarding his weekly pay whilst employed.

Ultimately, the Commission accepted the Appellant as a truthful witness and accordingly, found that he was a ‘worker’ within the meaning of section 11 of the Act. The matter was returned to the Regulator for further consideration on the basis that the Appellant is a ‘worker’.

Implications for you

This decision demonstrates that unless definitive evidence can be led establishing that a person was not employed by an employer, provided the person’s own evidence is credible it will likely be preferred to support a finding that a person is a ‘worker’ within the meaning of section 11 of the Act.

Del Bono v Workers’ Compensation Regulator [2022] QIRC 453

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