Workcover/Commercial Union (S andk Papanestoras) v Panagaris [2000] SAWCT 193

4 At the hearing the parties relied upon the Arbitration evidence which was tendered as part of Exhibit A1. Certain other documents, relevant to the calculation of average weekly earnings, were also tendered (Exhibits A2 and R1).

5 The facts are not contentious and can be summarised as follows; The worker was only briefly employed by Mr Papanestoras. He commenced on 3 September 1997 and his last working night was 19 September 1997.

6 The worker agreed to drive Mr Papanestoras' taxi from 6.00 pm to 6.00 am on Wednesday, Thursday, Friday and Saturday nights. Remuneration was agreed at 50 per cent of the takings for each shift. During the employment period the worker was paid for nine shifts. The taxi was not available on Saturday 5 September and the worker was not available on Thursday 18 September.

7 The worker's earnings during the employment period were as follows:

8 These details demonstrate that Wednesday and Thursday nights were less remunerative than Friday and Saturday nights. During the employment period the worker worked three Wednesdays, two Thursdays, three Fridays and one Saturday. By the date of injury the worker had already notified his intention to resign as from the end of October.

9 Prior to the employment with Mr Papanestoras the worker had been engaged as a taxi driver for about three years. He had worked for one particular owner from about March 1996 until the owner's taxi was repossessed in about August 1997. During this period his shifts were predominantly the quieter nights of Monday to Wednesday, and this was reflected in his earnings.

10 Following the rather abrupt cessation of that employment the worker placed an advertisement for night shift driving in the Yellow Cabs Taxi Computer Ads. He had a number of enquiries as to his availability and commenced employment as a driver for a Mr Ayetkin a few days after the advertisement was posted. He worked for Mr Ayetkin between 12 August and 23 August, a total of seven night shifts. The arrangement was shortlived because Mr Aytekin's personal circumstances changed and it was no longer convenient for him to employ the worker. As soon as that employment came to an end the worker sought an alternative position with Mr Papanestoras who had also previously responded to his advertisement. His earnings with Mr Ayetkin were as follows;

11 During this period the worker worked one Monday, two Tuesdays, two Wednesdays, one Friday and one Saturday. These details confirm that Fridays and Saturdays are more remunerative than other shifts.

12 Mr Britton, counsel for the worker, submitted that the following additional matters are relevant to the calculation of the worker's average weekly earnings. Firstly, when the worker commenced work with Mr Papanestoras he was actively pursuing work for as much as six night shifts per week, particularly Friday and Saturday nights because, having recently separated from his wife, his financial circumstances had changed. This was said to be supported by the evidence that he worked five nights in one week for Mr Aytekin just prior to commencing the work with Mr Papanestoras. Secondly, although he had given notice to Mr Papanestoras, there was abundant work in the taxi industry at that time and, had it not been for his injury, he would have easily found alternative employment upon his resignation. This was said to be supported by the ease with which he obtained the work with both Mr Ayetkin and Mr Papanestoras, and a letter from the Taxi Industry Training Centre dated 18 August 1999 that the worker would be able to obtain such shifts. I interpolate here that as this letter speaks of the employment situation in August 1999, some two years after the commencement of the incapacity, I disregard it.

13 Mr Britton submitted that, on a proper application of s 4 of the Workers Rehabilitation and Compensation Act 1986 as amended (`the Act'), and bearing in mind his prospects of additional shifts, the worker's average weekly earnings should be set at $481.28 per week, being the amount which he earned for one week's work with Mr Ayetkin. Alternatively, the submission was put that his average weekly earnings should be $447.46, which was arrived at by averaging his earnings for particular shifts during the period of his employment with Mr Papanestoras.

14 Mr Walsh, counsel for the respondent, submitted that the notional weekly earnings had been correctly assessed at $311.07. He submitted that this figure is greater than would be achieved by simply averaging the worker's weekly earnings over the preceding 12 months. He also submitted that the worker's method of calculation would result in his unjust enrichment because it overlooks his past earning history, his recent resignation, that he had no immediate prospects of work past the end of October, and the contingencies of the industry including the irregularity of Saturday night work, the lack of permanence of the work, the difficulty obtaining 4 night shifts per week and vehicle breakdowns and the like.

15 Mr Walsh relied upon Port Gawler Offroad Hire Park v Dunn Print A44/1994, to establish that it is appropriate to take such contingencies into account. To that extent he said that two recent decisions inconsistent with Dunn were decided in error; Loades v WorkCover Corporation/Mercantile Mutual (SA) Ltd (McLaren Hills Vineyard Contractors) (2000) SAWCT 16 and Casey v WorkCover/Mercantile Mutual Workers Compensation (SA) Ltd (Minson Constructions Pty Ltd) (2000) SAWCT 67. Mr Walsh said that in Dunn the Workers Compensation Appeal Tribunal regarded it as appropriate to take into account certain contingencies as to the likely availability of work in setting the worker's average weekly earnings whereas he submitted that Casey suggests that it is inappropriate to take into account the worker's immediate past employment record in setting average weekly payments, and Loades suggests that it is inappropriate to take into account the worker's future employment prospects in that task.

16 In my view there is no relevant inconsistency between these authorities because each was decided on its own facts and applied different subsections of s 4. Whereas Dunn concerned the setting of average weekly earnings for a worker who, although not working full time at the date of incapacity, sought to have his average weekly earnings assessed as if he was a full time employee pursuant to s 4(5) of the Act, both Casey and Loades involved the setting of notional weekly earnings in respect of workers whose respective injuries occurred in the course of short term employment which had been preceded by a lengthy period of unemployment.

17 The statutory formula contained in s 4 requires that the worker's average weekly earnings be "the average amount that the worker could reasonably be expected to have earned for a week's work if the worker had not been disabled". In setting that amount in Casey it was not relevant to take into account the particular worker's previous longstanding unemployment or to infer that, had he not been injured, he would have difficulty obtaining remunerative employment in the future. It was not relevant because s 4(7) expressly provides that where a disabled worker's employment is covered by an award or industrial agreement, his average weekly earnings shall not be less than the weekly wage to which he was entitled pursuant to that award or industrial agreement. The facts of Casey establish that such an award applied and accordingly the setting of his average weekly earnings was achieved by application of that statutory directive. Hence in the particular factual context and applying s 4(7) the worker's previous longstanding unemployment was not relevant.

18 Similarly, in Loades, when faced with the task of setting average weekly earnings for a worker who was employed as a casual with fluctuating hours over a short period of time, such that it was not possible to arrive at a fair average, the Tribunal applied the statutory requirement contained in s 4(2)(b)(ii) and used the average weekly earnings of three other comparable employees to set the worker's average weekly earnings. Again, as the Act provided this alternative approach to setting average weekly earnings the worker's future earning prospects were not relevant.

19 As the statutory directive in s 4 is concerned with the future, the setting of average weekly earnings will always require an estimate to be made. Of necessity, the first source of the estimate will be the worker's weekly earnings at the time of the commencement of incapacity. Other sources providing comparable weekly earnings or relevant award rates will be relevant if the worker's weekly earnings do not fairly reflect what he could reasonably be expected to earn for a week's work had he not been disabled.

20 I agree with Gilchrist DP in Loades, that it is not helpful to focus on contingencies as if the task is akin to determining future loss of earning capacity. Both parties sought to rely on such contingencies. Mr Britton favoured a view of the future where the worker could expect to work six nights a week. Mr Walsh favoured a view of the future where the worker, having resigned, would have trouble obtaining other employment. Whilst the task is a prospective one, it is best to start with what is known about his earnings to estimate what he could reasonably be expected to earn for a week's work had he not been disabled.

21 The worker may well have been a taxi driver for the last three years but the relevant earnings for the purpose of the task are his weekly earnings as a taxi driver for Mr Papanestoras. In that context it is reasonable to assess his average weekly earnings on the basis that he would have continued to work four shifts per week as that was the arrangement at the relevant time. It is also reasonable to estimate what he could reasonably be expected to have earned if he had not been disabled on the basis that those shifts would continue to be Wednesday through to Saturday. His previous employment with Mr Ayetkin confirms a movement away from his previous pattern of working the quieter nights of Monday to Wednesday with its corresponding lower remuneration.

22 The shortness of the period of employment does make it difficult to make an assessment of average weekly earnings and there is no evidence of comparable earnings of other relevant taxi drivers. Nevertheless, in the circumstances, a fair average is obtained by averaging the amount earned for all shifts with Mr Papanestoras and then multiplying by 4 to represent four shifts per week . The total earned with the relevant employer was $933.25. The average of each shift was therefore $103.69 which when multiplied by four shifts per week gives a total of $414.76.

23 This is the appropriate amount at which to set the worker's average weekly earnings. I vary the variation of the disputed decision by deleting reference to $311.07 per week and substituting the amount of $414.76 per week.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.