Workcover/Mercantile Mutual (Australian Medical Deputising Service) v Goh and Goh

4 The compensating authority appeals this decision, contending that the learned Deputy President erred in finding that an Operations Manual ("the Manual") that AMDS made available to new locums formed part of the contract between the parties; that he also erred in interpreting the terms and conditions in the Manual as indicating a significant degree of control or ultimate authority over the deceased in the performance of his work; and that he further erred in putting undue, if not exclusive, emphasis on the Manual and the element of control in finding the existence of a contract of service. It was the compensating authority's contention that if all the relevant criteria were properly considered, the only possible conclusion was that the deceased had not been in an employment relationship with AMDS.

5 A significant portion of the learned Deputy President's judgment (par 4 - 12 inclusive) addressed the issue of the Manual's status, and whether its terms formed part of the agreement between the deceased and AMDS. The learned Deputy President then concluded:-

"These matters considered, I find the Manual formed part of the terms and conditions of the contract between the parties. The details therein were intended by the parties to create rights and obligations which were legally enforceable. I reject suggestion by the respondent's witnesses to the contrary. The purpose of the Manual is quite evident from its text."

6 These were findings of fact based on the evidence from which, it is apparent, the learned Deputy President found the terms of the Manual to be compelling.

7 Mr Luke for the appellant submitted that there was no evidence that the deceased intended to be bound by the terms of the Manual. Without Dr Goh, and without the respondent's witnesses being able to give any insight into his specific induction into AMDS, the available evidence as to the terms and conditions of Dr Goh's engagement was necessarily limited.

8 There was, however, the Manual. There was also the evidence of Dr Schloeffel, a director of AMDS, who said that the Manual was provided to the deputising doctors (AB 234); that they were normally given to the doctors a week or so before they did their first shift in order that they could familiarise themselves with them (AB 305) and that Dr Goh, to his knowledge, was treated no differently to any other doctor.

9 The question is whether this evidence was capable of supporting the learned Deputy President's finding that the Manual formed part of the contract between the parties. In our view it was. In the absence of evidence of any written contract, or any other source from which the specific terms and conditions of the deceased's employment might be gleaned, the general directions given in the Manual to all deputising doctors in relation to work procedures and the requirements of them, provided an insight into the terms and conditions of the deceased's employment. The directions, more often than not expressed in mandatory form, dealt with matters that one might expect to be encompassed within an employment contract and be regarded as expressing enforceable obligations.

10 Mr Luke next submitted that it was not in any event open to the learned Deputy President to have found that the Manual commanded the doctors to perform their work in a certain way or, in the language of the learned Deputy President, to have found that the Manual demonstrated that AMDS had to a significant degree a right to control the deceased in the performance of his work. The Manual was, Mr Luke contended, no more than a "guide book".

11 The learned Deputy President dealt with this aspect at par 13 - 28 inclusive of his judgment, referring to several directives in the Manual and noting that these not only dealt with matters of importance to the running of the service but used "not the language of request, but the language of command. That assumed a right to command".

12 It cannot in our view be said that this interpretation of the terms of the Manual was not open on the evidence. The best that can be said from the appellant's viewpoint is that other reasonable minds might have come to a different conclusion. That, however, is insufficient to demonstrate an error of law: South Australia Police Department v Barber [2001] SAWCT 100.

13 Mr Luke next submitted that the learned Deputy President put undue, if not exclusive, emphasis on the Manual and the significance of the right to control to the exclusion of other established criteria. It is not apparent, however, that the learned Deputy President overlooked any relevant indicia. His judgment refers to various indicia suggestive of one or other relationship, and describes a process of "due consideration of the indicia pro and con" before concluding that "the preponderance here establishes that the deceased was in a contract of services with the respondent".

14 Referring to the relevant principles to be applied, the learned Deputy President cited an earlier decision of his in Cooke v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Port Augusta Fire Equipment Services) and Department for Administrative and Information Services (Fire Equipment Services South Australia) [2001] SAWCT 110. Perusal of his judgment in that decision reveals a similar approach:-

"While these indicia together with the exclusivity of the services may stand out among the various indicia related above, the correct approach is that no one indicia leads to any necessary inference. What has to be considered is the `totality of the relationship', Stevens v Brodribb at 29."

15 No misunderstanding or misapplication of the law has been demonstrated.

16 It cannot be said that there was no evidence to support the ultimate finding made by the learned Deputy President. That being so, we have no right to interfere.

17 It is not the Full Bench's role to re-evaluate the evidence and substitute its own findings for those reached at first instance should it happen to disagree with them. The Full Bench's function and powers on appeal were correctly described in South Australia Police Department v Barber [2001] SAWCT 100:-

"64 In our view the history of the relevant legislation, the dispute resolution process that parliament has seen fit to create, and the terms of the Act itself, indicate that parliament envisaged that the trial presidential member alone is charged with the duty of finding the facts and applying the law to the facts as found. We think parliament intended for the Full Bench's role to be limited to determining whether there has been a misunderstanding of legal principle, or an error as to the proper construction of the Act or of some other legislative enactment. If none of these matters are involved, we think that parliament's intention is for the Full Bench to let the decision made below stand. In other words, if there was some evidence to support the findings made or some basis to conclude that the findings did or did not fall within the relevant statutory provision, that has not been shown to have been misunderstood by the trial presidential member, the Full Bench has no right to interfere with the result.

65 By giving pre-eminence to the findings and conclusions reached at first instance, parliament is making it clear to the parties that if they take a matter to trial, absent an error of law, the decision of the presidential member will be final and that this is a factor that will have to be taken into account in deciding whether or not to make or accept or reject an offer of compromise."