In the recent decision of Mehran Samiimi v Q-Comp1 the District Court heard an appeal by a worker against his conviction for fraud whilst in receipt of workers’ compensation benefits.
The worker lodged an application for compensation on 24 March 2011 as a result of an injury to his right ankle and he returned to work on suitable duties which were said to accommodate his injury. A further suitable duties plan was executed on 25 July 2011, however, by 2 August 2011 the worker was not attending the workplace and could not be contacted.
On appeal His Honour Justice Robin QC noted that the employer had obtained extensive surveillance of the worker which revealed:
- On 21 August 2011 the worker was observed working in and nearby a mobile food van bearing several signs advertising products for sale at a Rotary event. He was observed carrying boxes and buckets as well as adjusting a food warmer.
- The worker was also observed cooking with tongs whilst wearing an apron and gloves over a number of hours before he assists with packing up the van and other items at the end of the day.
- On 3 September 2011 at a Muslim religious event the worker was observed unloading boxes and other items from a trailer, moving a barbeque, making kebabs, placing them on the barbeque and it was noted that he ‘works without stop for some five hours’2 before again helping to pack up this equipment.
His Honour noted that at first instance the Magistrate was satisfied that the surveillance footage was sufficient to establish that the worker had contravened section 533 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the Act’) by engaging in a ‘calling’ whilst in receipt of benefits. He noted Schedule 6 of the Act defined 'calling’ in this way:
Calling means any activity ordinarily giving rise to the receipt of remuneration or reward including self-employment or the performance of an occupation, trade, profession, or carrying on of a business, whether or not the person performing the activity received remuneration.
His Honour also noted that because the worker was in receipt of periodic compensation payments on the basis of medical certificates declaring him unfit for work, he fell within the ambit of section 136 of the Act which provided that within 10 business days of his return to work or engagement in a calling he was obliged to notify the insurer of the same.
On appeal the worker submitted that ‘not every person that cooks food can be said to have engaged in a calling’, that his activities were unpaid and of a charitable nature such that when viewed in context they did not amount to activities 'ordinarily giving rise to the receipt of remuneration'. Lastly, the worker submitted that Q-Comp did not lead evidence to prove that this activity would ordinarily give rise to remuneration. His Honour disposed of that argument succinctly and held:
I am unable to understand what evidence the prosecution might have called to supply the asserted gap in their case. If a procession of Rotarians or religious leaders came along saying that they invariably or sometimes made payment, or that they never made or heard of payment, what would that prove? I cannot think of any other category of potential witnesses who would be helpful, such as food van owners or operators.3
Ultimately, His Honour held that taking into account the duration of the cooking activities undertaken by the worker that there was sufficient evidence to consider the activities as ones ‘ordinarily giving rise to the receipt of remuneration or reward’ irrespective of any special context in which it was performed.
The worker also submitted on appeal that if there be a conviction, he should not be obliged to repay compensation payments paid to him because there was no evidence to prove what monies had been paid to him as a result of his ‘cooking’. His Honour noted section 537(3) was mandatory in requiring repayment of ‘all amounts of compensation’ paid to the worker ‘as a result of the commission of the offence’. He held that had the worker provided notice under section 136 payments would have ceased.
Accordingly, the conviction was maintained as was the order that the worker repay the entire amount of compensation paid to him by the insurer.
This case serves as a timely reminder that receipt of remuneration is not determinative of whether a worker has engaged in a calling whilst in receipt of worker’s compensation benefits.
To access the judgement please click here.