Tasmanian Production Veterinary Services Pty Ltd T/As Tasmanian Production Vets v IP [2025] TASCAT 149

1. In support of its s 81A referral the employer relied upon:
   • The claim for compensation, signed by IP as the worker on 28 March 2025, and by IP as the employer on the same date.
   • The initial workers compensation certificate of capacity dated 27 March 2025, which certified the worker to have no current capacity for any work, but did not indicate any period of incapacity, instead estimating the time to return to any work would be six weeks from the date of the certificate.
   • Letter of dispute to IP dated 18 June 2025.
   • Extract of business name details of TPV from the Australian Securities and Investment Commission (ASIC) database dated 17 June 2025.
   • A statement of Mr Greg Sanders, Workers Compensation Technical Principal for the insurer dated 17 June 2025.
2. Apart from details in relation to things such as the date of injury and the circumstances surrounding the injury, what can be taken from the claim form is:
   • The claimant completed both the 'worker section' and the 'employer section' of the claim form.
   • The details of the email address for IP provided in the worker's section of the claim form and the email address provided for IP as Director in the employer's section of the claim for are the same, as well at the respective contact mobile phone numbers.
   • The residential address for IP is the same as the employer's business address.
   • In the employer's section of the claim form the employment details for IP include that at the time of injury she held the position of head veterinarian, was a full time, permanent, direct employee and at the time of injury the following applied:
   • Normal weekly earnings - $2,500.
   • Ordinary time rate of pay - $65.70
   • Average hours worked each day - 9.5
   • Average days worked each year - 38
3. In the notice of dispute, which was personally served on the worker on 18 June 2025, the solicitors for the employer advised the claimant of the dispute, provided her with a copy of the s 81A referral and advised:

Your employer's reasons for disputing liability are explained in the s 81A referral. In short, your claim is being disputed because of the unilateral nature of your employment relationship as you have purportedly employed yourself and contract of employment services are bilateral in nature.

4. The ASIC business name details printout noted the holder of the business name Tasmanian Production Vets to be Tasmanian Production Veterinary Services Pty Ltd.
5. The statement of Mr Sanders relevantly contained the following:

Tasmanian Production Veterinary Services Pty Ltd trading as Tasmanian Production Vets (ABN 25 676 474 294) has a workers compensation insurance policy with Zurich. > > Based on the information Zurich has obtained, I note as follows:

(a) [The claimant] is the sole owner of Tasmanian Production Vets.

(b) [The claimant] purportedly started "working" for Tasmanian Production Vets on 1 February 2025.

(c) [The claimant], being the sole owner of Tasmanian Production Vets, decides her duties.

(d) [The claimant] gives herself instructions about her responsibilities and the work to be done at Tasmanian Production Vets rather than receiving instructions from another person.

(e) [The claimant] does not have a contract of service with Tasmanian Production Vets.

(f) [The claimant] also confirmed to Zurich: I am the sole owner and employee of Tas Production Vets so I have not made an employment contract.

(g) [The claimant] does not get paid a salary or wages.

(h) Tasmanian Production Vets does not have any payslips for [the claimant].

(i) [The claimant] does not receive any wages from Tasmanian Production Vets.

(j) [The claimant] does not receive any superannuation from Tasmanian Production Vets.

(k) We have no evidence to suggest that [the claimant] accrues annual leave or long service leave or leave of any sort.

(l) Rather, [the claimant] continues to receive income from her previous employer... who has continued to pay [the claimant] following her resignation from that employment in September 2024 in lieu of a lump sum payout of her leave entitlements.

(m) Accordingly, to my knowledge [the claimant]'s only income is from her previous employer, and she receives no wages from Tasmanian Production Vets.

(n) I consider that [the claimant] has a unilateral relationship with herself as she is the sole owner of Tasmanian Production Vets, and she has employed herself.

As such, Zurich contends that [the claimant] is not a 'worker' under the Tasmanian workers compensation legislation.

Indemnity policy and use of name

Under our indemnity policy with Tasmanian Production Vets, we are entitled to use Tasmanian Production Vets' name in any legal proceedings.

1. The employer says firstly that the fact that the claimant may identify the relationship between herself and Tasmanian Production Vets as an employer/worker relationship is not determinative of the nature of that relationship.
2. Secondly, the employer says the relationship between any employer and a worker is by necessity a bilateral contract involving two parties. On the face of the materials before the Tribunal it is reasonably arguable that there can be no bilateral contract of employment in this case in reality because the claimant and the employer are effectively the same. As the claimant is the sole office holder and director of the employer, she is the employer's 'controlling mind'. The employer says this submission is supported by the claim documentation, where the claimant filled out both the worker and employer sections of the claim form.
3. The employer says that it is an essential element of any contract, including a contract of service that consideration must move from one party to the other, which cannot occur whether the parties are one and the same.

1. The claimant concedes that she is in control of Tasmanian Production Vets, but notes that a company is a legal entity in its own right, and although the claimant is an office holder of the company in question, she is engaged in employment as a worker for the purposes of the Act.
2. The claimant says that her position is supported by the results of the business name search relied upon by the employer which discloses that the holder of the business name in question is a separate legal entity to herself.
3. In relation to the assertion that the claimant does not receive any wages from the employer, the claimant says that the question of whether or not she receives wages from the employer is not a matter to which the Tribunal ought to attach any significance. Counsel for the claimant submitted that it is one thing for a person to work for an entity, and it is another thing for the entity to be in a position to pay for that work. The claimant says it is not strictly necessary for a weekly or fortnightly payment of wages to be established for there to be a contract of employment. It was also submitted that there may be an implied contract or an oral contract on foot but that the question of timing of payment and the nature of payment are an issue to be determined for another day. The claimant says that the employer's evidence that it understands no wages have been paid does not displace the primary nature of the relationship between the claimant and the employer, which the claimant says is that of a company office holder and a working director.

1. The test for whether a reasonably arguable case exists was set out by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90 (St Helens Oysters), as follows:

The very notion of a "reasonably arguable case", like the very notion of a "prima facie case", precludes a final determination of a disputed question of fact ... On the face of s 81A, a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weakness in the claim that, following a contested hearing it may be rejected.

2. An alternative formulation was set out by Estcourt J in Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2 at [17]:

... what the employer is required to prove is not that there is no liability under s 25 of the Act, but only that there exists, on the evidentiary material the employer relies upon in the s 81A proceedings, a reasonable chance that the worker will be unable to discharge the onus of proof that will ultimately rest with the worker ...on a final hearing of the workers claim.

3. The terms 'worker' and 'employer' are defined in s 3 of the Act, relevantly as follows:

Worker: means any person who has entered into or works under a contract of service ...with an employer whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, or is oral or in writing. > > Employer: means the person with whom a worker has entered into a contract of service...

4. There is no doubt that a director of a company may be also an employee of that company, engaged under a contract of service, and therefore a worker for the purposes of the Act. St Helens Oysters is a case in point. A final determination of the issue of whether a company director is also a worker would turn on the facts of each particular case.
5. The undisputed evidence relied upon by the employer in support of the s 81A referral is that there is no written contract of service between the claimant and the employer. Although counsel for the claimant referred to the possibility of an oral contract being in existence, in the circumstances that would seem highly unlikely. That leaves the possibility that there is an implied contract of service on foot between the claimant and the employer.
6. The undisputed evidence is also that
   • the claimant is the sole owner and director of the employer
   • the claimant receives no salary or wages from the employer in exchange for her labour
   • the claimant does not receive any superannuation payments from the employer
   • the claimant does not accrue leave of any kind.
   • The employer does not give the claimant any payslips
7. Receipt of wages and superannuation, provision of payslips and accumulation of leave are things that would usually be suggestive of the existence of a contract of service between an employer and a worker.
8. Counsel for the worker alluded to the possibility of the claimant receiving, at some time in the future, payment for the work that she has undertaken for the employer. There was no evidence of any specific arrangement of that nature between the claimant and the employer, but I observe that as a general proposition, an arrangement that the claimant would receive funds from the employer at an unspecified time in the future would not tend to suggest the existence of an employer/worker relationship between the parties.
9. I am satisfied that the employer has established that there is a reasonable argument that the claimant is not a 'worker' within the meaning of the Act. It follows that there is a reasonably arguable case to dispute liability for the claim for compensation.

1. Because I am satisfied that a reasonably arguable case exists, I order, pursuant to s 81A(3)(c) and (d) of the Act that weekly payments of compensation and the cost of benefits payable under Division 2 of Part VI are not to be paid by the employer.