IBRAHIM v GOLDMARK JEWELLERS PTY LTD and ANOR [1995] NSWCA 203

IBRAHIM v GOLDMARK JEWELLERS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy ACJ, HANDLEY JA and ROLFE AJA 19 July 1995, 19 July 1995 [1995] NSWCA 203

WORKERS COMPENSATION — whether worker employed. MASTER AND SERVANT — whether worker employee or self employed.

The appellant, an expert jeweller and goldsmith, given the choice elected to work for the respondents on piece work rates rather than wages. He used precious stones and metals which remained the property of the companies, worked to their designs, and in accordance with their priorities. He mainly worked at the companies' premises, and when he did, wore the companies' uniform. He also did a substantial amount of work at home, kept his own hours, did some work for others, and was paid differing amounts at irregular intervals based on the work he had produced. He lodged tax returns on the basis that he was a self employed contractor. The Judge in the Compensation Court dismissed his claim for compensation on the basis that he was a worker. Held: Dismissing the appeal. The trial Judge was correct.

ORDER

Appeal dismissed with costs. Kirby ACJ I will ask Handley JA to give the first judgment.

Handley JA This is an appeal by an unsuccessful applicant from a decision from McGrath CCJ, Chief Judge of the Compensation Court who had entered an award for the respondent.

The applicant was engaged, to use a neutral word, by the respondent to work as a jeweller in its premises producing rings for sale to the jewellery trade in Sydney. When initially contacted by the appellant he was offered by the company a choice of working for wages or at piece rates. He chose to work at piece rates.

After working for the respondent companies for some months he experienced an episode of considerable pain whilst engaged in diamond setting at the companies' premises which forced him to give up regular work for the respondent companies and, this in due course, led to his claim for workers compensation.