Labour Office v A.K. Shankar Kava Pounding [2012] FJET 50; ER Workmen's Comp.25.2009 (8 February 2012)

IN THE EMPLOYMENT
TRIBUNAL AT SUVA

ER Workmen's Comp. No. 25 of 2009

BETWEEN :

THE LABOUR OFFICER (for and on behalf of Mohammed Hanif of Omkar Road, Nasinu)
APPLICANT

AND:

A. K. SHANKAR KAVA POUNDING (of Lot 6, Lalita Bhindi Street, Vatuwaqa)
RESPONDENT

Appearances:
Ms. Lanieta & Ms. S. Khan for the Applicant
Mr.Vinesh Maharaj for the Respondent

RULING ON COMPENSATION CLAIM

Background

1] This is a case where the respondent employer (hereinafter referred to as the "employer") is reluctant to pay the amount of $1,690 claimed as compensation for the injuries sustained by the applicant workman (hereinafter referred to as "the workman") whilst employed by the employer on the ground that the amount claimed has already been paid as wages during the time of the injury when the workman was not working and the payment of the loss suffered by a client as the result of the injuries from the accident.

2] The ground of opposition raised by the employer is that it had already paid $900 to the injured workman in full salary whilst the law requires him to pay only 2/3 of the usual weekly earnings. Furthermore, the employer stated that it had compensated one of its customers by the payment of $700 for the damage caused to its yaqona by the blood of the workman from the injuries.

3] The Labour Officer dragged its feet on this case and even went to the extent of entertaining the position of the employer. The hearing of this case was held on 9th November 2010

Hearing

4] At the hearing Doctor Alan Biribo and Labour Inspector Madhu Lata gave evidence for the workman whilst Mr A. K. Shankar the Managing Director and his employee Mr. Vimal Prakash gave evidence for the employer.

5] Doctor Biribo in his evidence stated that he had spent a total of 6 years as a surgeon at the Colonial Memorial Hospital and he was familiar with the case. That on 6th August 2007 the workman Mohammed Hanif was referred to him with injuries to the right hand. He amputated the right index finger at the metacarpophalangeal joint due to devitalizing crush injury with the temporary incapacity of 10%. The workman was hospitalized and discharged on 11th August 2007 to resume duties on 26th March 2008.

6] Ms. Madhu Lata in her evidence told the Tribunal that the accident was not reported and that she handled the investigation of this case and that she calculated the compensation payable based on the 10% permanent incapacity amounting to $1,690. Ms. Lata further told the Tribunal that she served the claim on the employer on 28th April 2008 and on 17th June 2008 the employer wrote to the Ministry of Labour protesting that he had paid the full salary of the workman for the time he was out of work instead of the 2/3 weekly earnings as required by law, and that he had compensated a client when his yaqona was damaged by the blood from the workman's injuries. In the same letter the employer asked that he would like to have a meeting with the workman and the Ministry as in his own words.."do not wish to deprive him(the workman) of his rights."

7] Under cross examination Ms. Lata stated to the Tribunal that the employer did not report the accident as required by the Workmen's Compensation Act but that the employer came to the office on 22nd August 2007. As to the meeting suggested by the employer, Ms. Lata told the Tribunal that Labour Officer Dalip Chand guided them towards a settlement and towards that end, they wrote to the Permanent Secretary for Labour.

8] Mr. A. K. Shankar is the Managing Director and he told the Tribunal that he paid the workman full salary during the period of injuries and was thinking of giving him an extra $2,000. He further stated that he did not terminate the workman but paid him until the injuries stabilized. Mr. Shankar said that he asked one of his workers to call the workman Mr. Hanif Mohammed but he refused to come to work as he was painting his house. As to the failure to report the accident, he admitted that he was unaware of the need to report it.

9] Under cross examination Mr. Shankar stated that he was present at the worksite during the accident and he confirmed that there had been some minor injuries in the past. He also confirmed that the OHS people had passed the machines and that there is a safety policy in place, As to the manning and operation of the machines there are no hard and fast rules as everyone knows the machines and how to operate them. Mr. Shankar continued that he need not authorize anyone.

10] Mr. Vimal Prakash is a welder and pounder and gave evidence for the employer that on the day of the accident he was working with the workman; sitting side by side watching the pounding of grog and using a stick to shift the grog during pounding. Mr. Prakash then told the Tribunal how he saw blood on the workman's hand and that was the reason why he switched the machine off. Mr. Prakash added that the workman was supposed to be using tools and he did not know the reasons for the injuries.

11] Under cross examination Mr. Prakash said that the correct procedure is to off the machine before taking out the kava that has been pounded and that the OHS officers came to visit after the accident.

Statutory Provisions

12] Section 5 of the Workmen's Compensation Act Cap 94 provides that an injured workman has a right to compensation provided he proves on the balance of probability three elements namely:

(a) that the workman suffered personal injury by accident;

(b) that personal injury by accident arose out of the employment; and

(c) that the personal injury by accident occurred in the course of employment.

What constitute Personal Injury by accident?

The Tribunal looked at the case laws submitted by the parties and the evidence before it and is satisfied that the personal injury by accident to the workman was unexpected and not designed by the worker as per ASHTON-LEWIS J in FIJI INDUSTRIES LIMITED and ATECA DRETIREWA (Civ. App.15/92)

Did the injury arise out of employment?

THE WORKMEN'S COMPENSATION ACTS 1925 to 1938 by WILLIS 32 ED defines the term to mean...arising out of the work which the man is employed to do and which is incident to it- in other words, out of his service." From the evidence he was sitting side by side with Mr. Vimal Prakash when he sustained the injuries and the Tribunal holds that the injury arose out of his employment.

Did the injury occur in the course of employment?

From the evidence the deceased workman was sitting with Vimal Prakash shifting the kava during the pounding process when the accident happened resulting in the injuries.. The question of whether that was in the course of employment is answered by the evidence that the workman was employed as a pounder. Such situation is covered in the case of St. HELEN'S COLLIERY CO. v HEWITSON (1924) where it was said that "a workman is acting in the course of employment when he is engaged in doing something he was employed to do; when he is doing something in discharge of a duty to his employer, directly or indirectly imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word employment as here used covers and includes things belonging to or arising out of it."

Analysis

13] The employer did not provide any defence and he was expecting the Permanent Secretary to take into consideration the amount already paid by him when deciding on the amount of compensation. The law is very clear, that no agreement can be made to settle outside the legal entitlement of the workman.

Ruling on Compensation
14] The Applicant has proved its case under section 5 of the Workmen's Compensation Act and the Respondent is hereby ordered to pay compensation to the amount of $1,690.00 to the workman Mr. Mohammed Hanif.

DATED at Suva this 8th day of February, 2012

Sainivalati Kuruduadua
Chief Tribunal