Fiji Employment Tribunal

[1] This is an application for workers’ compensation arising out of an injury suffered by Semesa Tuibure, whilst engaged within the employ of the Respondent Employer. The claim for compensation was commenced in October 2015 and it is unfortunate that it has taken such a lengthy period of time for it to reach a conclusion.

[2] On several occasions when the matter was listed, there was no appearance for the Employer, after which it was represented by Counsel who sought to have the application ‘struck out’, asserting that it was ‘out of time’. That application was dismissed by way of Ex Parte decision given on 7 August 2018, at which time a Costs Order was issued against the Employer. At the date of this decision, the Order of that date has not been complied with and on 1 February 2019, when the matter was called for Closing Oral Submissions of the parties, Mr Dayal advised that he sought to withdraw from the case, because of professional and ethical reasons^[1]. Whilst Mr Dayal remains on the record, the Tribunal has decided to quickly determine the matter in order that what is a rather simple claim, is now allowed to conclude and give the injured worker some finality of outcome.

[3] Put simply, at the time of the workplace accident, the Worker was operating a ‘soap stamping machine’, that is used in the manufacturing of soap products for domestic and commercial use. In effect what transpired, was whilst undertaking the stamping of the soap products, the hydraulic press dropped unexpectedly and crushed the right wrist and hand of Mr Tuibure. At the time of proceedings, the disfigurement to the Worker was quite obvious to the human eye and the medical reports contained within the Disclosures provided by the Applicant, reinforce the extent of the functional impairment.

[4] The Employer in correspondence has responded to the claim as follows^[2]:-

• That the Worker was not paying full attention whilst working;
• That it is claimed he is “slow and a half minded person”;
• That because he returned to work following the accident, demonstrates that the Worker had a personal agenda to pursue;
• That regard should be had to the assistance provided to the Worker post injury.
  

The Evidence

Dr Tikoinayau

[5] The first witness to give evidence on behalf of the injured Worker was Dr Tikoinayau, an Occupational Physician providing services within the Ministry of Labour. Dr Tinoinayau’s evidence is that:-

• The Worker was injured on 11 April 2013 and was assessed by him on 24 October 2014;
• When assessing the injuries and Impairment of the Worker, he had regard to his scarring, the range of hand and wrist movement, the degree of residual swelling and stiffness;
• Based on his assessment the Worker was suffering a whole body impairment of 33%.
  

[6] During cross examination, Dr Tikoinayau explained the TEMSKI assessment model used for evaluating whole body impairment and spoke of his reliance on the medical information available from the CWM Hospital, that was the initial treating location following the incident, when calculating the final WBI score.

Ms Madhu Lata
[7] Ms Lata was the Labour Officer responsible for the investigation of the workplace injury and compensation claim. According to the witness, the Employer failed to report the workplace injury as required within 14 days and thereafter was required to provide relevant pay records pertaining to Mr Tuibure. The witness stated that the medical view of the treating CWM practitioners, was that a permanent assessment of the injuries sustained, should not take place until 18 months after the incident. Following the permanent impairment being completed, a Claim for Compensation was forwarded to the Employer, who disputed the claim. During cross examination, the Labour Officer clarified the process that gives rise to the commencement of a claim and confirmed that she herself did not attend the workplace to inspect the moulding machine, nor did she earlier physically examine the injuries to the Worker.
Mr Semesa Tuibure
[8] Mr Tuibure told the Tribunal that he commenced working with the company Organic Earth in 2012 and was involved in both soapmaking and mixing of vinegar for sales. The witness stated that:-

(i) He had given a Statement to the Ministry on 2 March 2015;
(ii) Was stamping soaps on the day of the accident around 3 o’clock in the afternoon; that when he was operating the machine he pressed on the panel for the stamp press to lift and it did not go up. When pressed the second time, the press did go up but it unexpectedly came down quickly, crushing his hand.
(iii) There was no supervisor present at the time, nor was he wearing any form of personal protective equipment.
(iv) Following the accident, the witness said he was taken to the Lami Health Centre, where he underwent surgery and remained in the hospital for a week.

[9] In cross examination, the witness stated that:

(i) He did not have any qualifications to work the soap or moulding machine;
(ii) That he had no written contract with the Company;
(iii) Denied that he was employed only to mix vinegar;
(iv) Was given only minor instructions how to ‘press’ the soap;
(v) Agreed that he was paid by the company after the accident for the period 17 April 2013 to 21 February 2015;
(vi) Returned to work when he was fit to do so and remained there for six months, initially so as to train a new worker on how to operate the moulding machine, however was released when the Company became aware that he was pursuing entitlements for workers’ compensation.

[9] In re-examination, the Worker confirmed that he was given instructions to mix vinegar and stamp soap by Ms Geeta Reddy, the owner of the business. Mr Tuibure said that he was taught how to operate the machine by Ms Reddy herself. When questioned by the Tribunal, the Worker stated that after the incident, a co-worker by the name of ‘Wais’, had advised that it was discovered that one of the wires from the machine was broken.

Case of the Employer

[10] The only witness called to give evidence for the Employer, was the Director Ms Geeta Reddy. According to Ms Reddy, she was responsible for the operator training for the Moulding Machine and that in part, she relied upon a video that was supplied by the manufacturer. Ms Reddy explained that her company in Fiji was a supplier of vinegar to the hotel industry and said that whilst her business had once many staff, that at the time of hearing it was now reduced to 3 persons. The witness described the soap making process and the fact that the moulding machine was reliant on hydraulics and the stamp activated by a foot pedal.

• [11] In relation to the incident in question, the Company Director advised that she was overseas at the time and that the HR/Operations Manager advised her that Mr Tuibure had been operating the machine without instructions. Ms Reddy indicated that the Worker was ultimately told to stop coming to work due to ongoing absenteeism. During cross examination, the Company Director was challenged as to the details provided by the Employer in the filling of the Form LDC 1, that stated Mr Tuibure was a “soap moulder”. Ms Reddy claimed that this was incorrect. The witness re-emphasised that the Worker was not authorised to operate the moulding machine and stated that “employees in Fiji can do anything”. When asked, by Ms Kadavu who would be the person issuing instructions to workers in her absence, the response was, “the Operations Manager... I can’t recall”. The witness denied that there was a faulty wire found after the incident and stated that she had no records of machinery maintenance for the moulding machine. The witness said that she did not have an occupational health and safety report prepared following the incident, nor did she know what the Operations Manager was doing on that day.
  

Other Issues

[12] At the completion of the hearing, Dr Tikoinayau was asked to recalculate his WBI score for the Worker, as the Tribunal had understood that based on the calculations set out, it was a lesser amount than 33%. The recalculated figure was made at 23% and this formula is thereafter reapplied to the claim as follows:

23% WPI x 260 weeks @ $140 per week = $8372

Plus 40% for 4 digit injury = $3348.80

Total Amount of Claim= $11,720.80

Was the Worker a Workman for the Purposes of the Act?

[13] Section 2 of the Workmen’s Compensation Act 1964 defines workman to mean:

any person who has, either before or after the commencement of this Act, entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, or otherwise, whether the contract is expressed or implied, is oral or in writing, whether the remuneration is calculated by time or by work done, and whether by the day, week, month or any longer period:

Provided that the following persons are excepted from the definition of "workman":-

(a) a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business, not being a person employed for the purposes of any gamrecreation and engaged or paid through a club;

(b) an outworker;

(c) a member of the yer's familfamily dwelling in the employer's house or the curtilage thereof; or

(d) any class of pe whomMinisayr may, by order, declare not to be workmenrkmen for the purposes of this Act.

[14] The Tribunal is satisfied that at the relevant time that Mr Tuibure was a workman for the purposes of Section 2.

Was the Respondent the Employer of the Worker ?

[15] Section 3 of the Act, reads:

"employer" includes the Government and any body of persons corporate or unincorporate and the personal representative of a deceased employer, and, where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the workman whilst he is working for that other person; and in relation to a person employed for the purposes of any game or recreation and engaged or paid through a club, the manager, or members of the managing committee of the club shall, for the purposes of this Act, be deemed to be the employer;

[16] There is no doubt that the Employer was captured by the definition at Section 3 of the Act.

Did the Worker Suffer a Personal Injury by Accident For the Purposes of the Act?

[17] Section 5(1) of the Workmen’s Compensation Act 1964 provides as follows:

If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workmen, his employer shall, subject as hereinafter provided be liable to pay compensation in accordance with the provisions of this Act ....

[18] It appears well accepted that there are three requirements to satisfy Section 5(1) of the Workmen’s Compensation Act 1964.^[3] These are:-

• (i) Personal injury by accident;
• (ii) Arising out of employment;
• (iii) In the course of employment.
  

Did the Worker Suffer A Personal Injury by Accident?

[19] Pathik J in The Fiji Sugar Corporation Limited v Labour Officer^[4] set out in detail what was to be meant by the expression “injury by accident”. Citing the 32^nd Edition of Willis’ The Workmen’s Compensation Acts 1925 to 1938, his Honour referred to the passage within that text, where the definition of accident was considered at page 8 and it is stated:

The word ‘accident’ does not necessarily involve the idea of something fortuitous and unexpected as formerly held. ..it includes injury caused by overexertion in the ordinary course of employment...

[20] His Honour further referred to the case of Fife Coal Co Ltd v Young^[5] where it was held by Lord Aitkin, that

It is necessary to emphasize the distinction between “accident” and “injury”, which in some cases tend to be confused... it is now established, however, that apart from external accident, there may be what no doubt others as well as myself have called internal accident (underline mine for emphasis)..... A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails while the man is doing his ordinary work, turning a wheel screw, or lifting his head. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is accident is at the same time injury, from which follows at once, or after a lapse of time, death or incapacity.

[21] Finally, Pathik J within his decision, referred to the case of Fiji Industries Limited v Ateca Dretirewa,^[6] where Ashton-Lewis J stated:

Thus it would appear that the law has developed to the point where there is now no requirement that the event causing the injury is unexpected or not designed, it being sufficient that the injury itself (ie the heart attack) is unexpected or not designed by the worker.

[22] Mr Tuibure suffered from a crush injury to his right wrist and hand. The medical opinion of the Assessor was that it was as a direct result of an accident arising out of the operation of a soap moulding machine. There is no conflicting medical evidence that has been provided by the Employer. The Tribunal has examined the Worker’s hand and it is clear that he now suffers a good deal of impairment and disfigurement as a result of this incident.

Was the Worker’s Injury Arising Out of Employment?

[23] In Travelodge Fiji Limited Suva v The Labour Officer for Karalaini Diratu^[7], Pathik J, sets out the relevant considerations when determining whether or not a worker suffered an accident arising out of employment. His Honour relied on Lord Sumner’s characterisation in L & YR v Highley^[8] to apply the following test:

".... Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or, conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was whereby in the course of that employment he sustained injury.......

The expression is not confined to the mere "nature of the employment" as formerly held in several cases, but it "applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment apply."

[24] The incident was clearly work related. The Employer’s own completion of the Form LCD1 described the Worker as a soap moulder. Mr Tuibure was operating the soap moulding machine, when he suffered an accident due to the machinery hydraulics apparently failing.

In the Course of Employment

[25] In Travelodge, Pathik J stated:

The two conditions which must be fulfilled before an accident can be said to have occurred "in the course of employment" are:

(a) the accident must have occurred during the employment of the workman and

(b) it must have occurred while he was doing something which "his employer could and did, expressly or by implication, employ him to do or order him to do"

[26] The Tribunal is satisfied that the crush injury was brought about during the employment of the Worker and that it occurred while he was undertaking work that his Employer required him to do.

Conclusions

[27] In conclusion, the Tribunal is satisfied that all of the elements to establish a claim are satisfied. Based on the circumstances of this case, the Worker is entitled to the compensation amount of $11,720.80, with an additional award of interest from the time of the initial demand being calculated from 23 February 2015. (To be calculated at 7.5% interest x 4 years).

[28] The result will mean that the Grievor is entitled to statutory compensation in the amount of $15,652.55. In addition, the Tribunal will summarily assess costs incurred, in what has been a frivolous act by the Employer in attempting to thwart its obligations, in the amount of $2,000.00.

Decision

[29] It is the decision of this Tribunal that:-

• (i) The Employer pay to the Labour Office, compensation for the injury suffered by the Worker in the amount of $15,652.55 within 21 days.
  
• (ii) The Employer should pay the Labour Office costs, summarily assessed in the amount of $2,000.00 within 21 days.
  

Andrew J See

Resident Magistrate

^[1] It is noted here that the Employer had at this point in time, failed to file any Closing Submissions.

^[2] See undated correspondence from Ms Radhka Sing as contained in the Disclosure Documents at Folios 32 and 33.

^[3] Raiwaqa Buses Ltd v Labour Officer [2011]FJHC174; HBA23.2008 (18 March 20a>
^[4] [1995] FJHC 39; Hba0010j.94b (17 February 1995)
^[5] (1942) AER HL 85 at 91
^[6] (Civil Appeal 15/92)
^[7] [1994] FJHC 180
^[8] (1917) AC 352 at 372