IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER:			ERCA 35 OF 2019

BETWEEN:	

PROFESSIONAL STEEL STRUCTURE & ROOFING
APPELLANT

AND:	

LABOUR OFFICER on behalf of SULUVENUSI LOBOLOBO
RESPONDENT

Appearances:				Mr. R. Dayal for the Appellant.
No Appearance for the Respondent.
Date/Place of Judgment:		Thursday 18 May 2023 at Suva.
Coram:					Hon. Madam Justice Anjala Wati.

A.	Catchwords:
Workmen’s Compensation Claim (“WCC”) – Whether the claim by worker was brought within time – Whether it was due to the worker’s misconduct that he suffered injury as alleged by the employer and the Permanent Impairment of the Worker.
B.	Legislation:
1.	The Workmen’s Compensation Act Cap. 94 (“WCA”): ss. 13 and 14.

Cause
1.	The employer has appealed the decision of the Employment Relations Tribunal (“Tribunal”) of 4 December 2019 on its findings that the worker had suffered personal injury arising out of and in the course of his employment. As a result it had ordered the employer to pay to the worker compensation in the sum of $6,772.15 and minimal costs of $75 within 28 days.

2.	In form of background facts, Mr. Suluvenusi Lobolobo was employed as a Carpenter. On 3 May 2013, he was working on the roof of a two storey building when he slipped and fell on the ground. He suffered injuries due to the fall. 

3.	On 26 March 2018, the labour officer filed a claim on behalf of the worker under s. 5 of the WCA. The application claimed that the worker suffered a personal injury by accident arising out of and in the course of his employment. The claim was defended and the tribunal found in favour of the worker. Aggrieved at the findings, the employer appealed.

Grounds of Appeal

4.	The employer has raised 5 grounds of appeal. It is averred that the tribunal has erred in law and in fact in: 

•	Holding that the worker’s failure to comply with s. 13 of the Workmen’s Compensation Act Cap. 94 (“WCA”) did not constitute a bar to the bringing or commencement of the proceedings.

•	Failing to properly consider the requirements of s. 5 of the WCA when it held that it was not the employee’s willful misconduct which attributed to his injuries.

•	Failing to properly consider the requirements of s. 9 of the WCA in holding that the employee’s whole impairment was 15%.

•	Holding that the employee had suffered 15% whole person impairment when there was insufficient, unreliable and/or no independent and/or reliable corroborative evidence to support such a finding.

•	Failing to properly consider the requirements of s. 13 of the WCA as to notice of accident and application for compensation when holding that the proceedings for recovery is maintainable.

Law and Analysis

5.	The issues on appeal surrounds s. 13 of the WCA, whether the worker suffered injury as a result of his misconduct and the percentage impairment.

6.	Let me first deal with s. 13 of the WCA. The counsel for the employer has not clearly stated in his submissions to the Court why he is raising an issue under s. 13 of the WCA. No issue arising under the said provision was raised before the tribunal. This has deprived the worker from addressing the issue in the tribunal to vindicate his rights. I find it improper that the employer is raising a statutory defence on appeal and that too without specifying what under s. 13 is the issue. I do not think that it is fair to allow this ground of appeal. Be that as it may, for the sake of completeness, let me very quickly cast my mind to the grounds of appeal surrounding s. 13 of the WCA.

7.	Collectively, the grounds of appeal surrounding section 13 appears to contend that the worker had not complied with the provision of giving of the notice within the time period stated in s. 13 resulting in him being barred from bringing a claim for compensation for his injury. It also appears to suggest that the time limitation for the bringing of claim ought to be 12 months. 

8.	S. 13 of the WCA reads as follows (there are some subsequent amendments which are not applicable to this case):

“13. Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given by or on behalf of the workman as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within twelve months from the occurrence of the accident causing the injury or, in the case of death, within twelve months from the time of death:

Provided that –

(a)	The want of, or any defect or inaccuracy in, such notice shall not be a bar to the maintenance of such proceedings if it is proved that the employer had personal knowledge of the accident or had been given notice of the accident from any other source at or about the time of the accident, or of it found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake or other reasonable cause;

(b)	The failure to make a claim for compensation within the period above specified shall not be a bar to the maintenance of such proceedings if it is proved that – 

(i)	That the failure was occasioned by mistake or other good cause; or
(ii)	The employer failed to comply with the provisions of subsection (1) or (2) of section 14,
so, however, that no proceedings for the recovery of compensation shall be maintainable unless the claim for compensation is made within a period of six years from the date of the accident”.

9.	The employee had suffered injury on 3 May 2013. The claim was filed on 26 March 2018. The claim was not filed within 12 months but within 6 years. Was it mandatory for the worker to have filed his claim within 12 months? 

10.	 The claim states that the employer was given notice of the accident on 19 August 2013. S. 13 requires that notice of the accident should be given to the employer as soon as practicable after the accident and before the worker leaves employment. The proviso in s. 13 (a) states that “the want of, or any defect or inaccuracy in, such notice shall not be a bar to the maintenance of such proceedings if it is proved that the employer had personal knowledge of the accident or had been given notice of the accident from any other source at or about the time of the accident, or of it found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake or other reasonable cause”.

11.	 When the accident happened, it happened when the other workers were present including 2 Foremen, Mr. Shalendra Chand and Mr. Esava Doudouvono. The accident happened at the workplace and therefore within the knowledge of the employer. The employer therefore already had notice of the accident from his Supervisors.

12.	 Since the employer had notice of the accident, it should have then complied with s. 14 (1) of the WCA. It did not. S. 14 (1) of the WCA states:

“14(1) Notice of an accident, causing injury to a workman of such a nature as would entitle him to compensation under the provisions of this Act shall be given in the prescribed form to the Permanent Secretary by the employer of such workman as soon as practicable, but in any event not later than fourteen days, after the happening thereof.

(2) When the death of a workman from any cause whatsoever is brought to the notice of, or comes to the knowledge of his employer, the employer shall, within one week thereafter, give notice thereof in the prescribed form to the Permanent Secretary. Such notice shall state the circumstances of the death of the workman if they are known to the employer.

13.	 The employer should have given notice of the accident to the Permanent Secretary within 14 days but it gave the notice on 9 July 2013 as evidence by the received stamp of the Ministry for Labour. The notice by the employer under s. 14(1) of the WCA was given to the Permanent Secretary before the notice was given by the worker to the employer under s. 13 of the WCA. This in itself indicates that the employer had knowledge of the accident. How did it otherwise fulfill its obligation before the worker acted under s. 13 of the WCA? When the employer did not comply with the time period for the giving of the notice to the Permanent Secretary, the worker had 6 years to bring the claim. It is not argued that this claim was not brought within 6 years. 

14.	The 12 months limitation period to bring the claim will only apply if the employer had complied with the provisions of s. 14(1) of the WCA in giving to the Permanent Secretary notice of the accident causing injury within the time prescribed by law. The appeal surrounding s. 13 has not merits.

15.	Mr. Dayal also argued that the worker’s misconduct attributed to his injury. It was argued that the worker should not have climbed the roof at 8.30am as it was the policy of the employer that no one will access the roof until 10.00am each day. The counsel also contended that the worker should have worn safety belts and boots to avoid the accident.

16.	Let me see what the evidence was in relation to the time for accessing the roof, the wearing of the safety boots and the safety belts. I will take the evidence as summarized by the tribunal. There is no contention that the evidence summarized by the tribunal is not correct.

17.	The worker’s evidence was that he had been working at the Fiji National University location. The building he was working on was approximately 60 meters in length. He stated that his boss, the Director Mr. Santok Singh had been hassling them and ordering them like animals. The worker said that he was afraid of Mr. Singh for that reason.

18.	On how the accident happened, the worker testified that the day before the incident, he had been instructed to tag all the joints so that the roof does not fly. The worker agreed that he had taken off his boots when on top of the roof because it was too shiny. He said that the roof supervisor Mr. Shalendra Chand always took off his boots.

19.	 The worker also testified that he worked only for a limited time following the accident. He could not due to the pain he experienced to his hand. He used to do fishing with his brother in Nabowalu. He also did some work for 3 months with China Railways. He had to cease work due to the pain in his hands.

20.	In cross-examination, the worker stated that there was no prayer session on the day of the incident because of the need to complete the tasks early so he could go to Suva with his Director. He said that he could not work on the roof on the day in question with his safety boots, and so had to take them off. The worker claimed that he had purchased his own safety boots and that it was not the employer who had provided him with one as contended by it. The day he fell, he was walking along the apex of the roof. He claimed that his safety boots were more slippery than bare feet. The distance that he fell was estimated at 12 meters. 

21.	The employer’s witness Mr. Shalendra Chand gave evidence. He stated that he was a former employee of Professional Street Structure and Roofing. He has his own business now, Buildsmore Construction in Nadi.  At the time of his employment, he was a Carpenter/Foreman. His responsibilities were to ensure that the work undertaken was done properly and that the employees were supplied with safety equipment including safety boots. He had to ensure that the working area was safe.

22.	Mr. Chand testified that the rule of the employer was not to access the roof of the building under construction until 10.00am each day, to minimize the surface moisture and possibility of slips. The working hours of the employees was 8.00am to 5.00pm.

23.	On the day of the incident, the employees were having a pre-start briefing. Mr. Chand said that when the worker saw the Company Director entering the site, he rushed onto the roof barefoot. Mr. Chand said that he stopped the worker and said to him words to the effect not to go then but to go after 10.00am and that the boss would not worry about the worker waiting around until that time.

24.	The worker was not wearing a safety belt and as soon as he climbed up on the roof, he slipped. He stated that as soon as they reached the worker, he got up holding his hand and saying that it was broken.

25.	Mr. Chand also stated that the company provided safety boots, glasses, harnesses, helmets and reflector jackets for its employees. The tribunal questioned the witness and it was stated that the worker was not wearing safety boots at the pre-start briefing and that he was barefoot. Mr. Chand claimed that this was not seen as unusual because he knew the worker was not going up the roof until 10.00am and so he did not expect the worker to be wearing safety boots at the time. 

26.	In response to a question why the worker did not respond to his direction not to go up on the roof, Mr. Chand said that the worker had told him that he will go because the boss was there. Mr. Chand claimed that on the day in question, between 8.00am and 10.00am, the worker had no other work to do and it was appropriate that he just wait around until the roof was dry. Mr. Chand further stated that as soon as the worker reached the roof, he slipped within 2 minutes and fell. He said that at the prestart safety briefing, there were 3 to 4 employees in attendance. He could only name one Esava.

27.	The worker challenged Mr. Chand in relation to his account of what transpired. The worker put to Mr. Chand that several days before the incident took place, he was advised by the Director that he was to go to Suva that day at 10.00am and that the roofing needed to be partially affixed prior to that time to avoid any possible wind and rain event. Mr. Chand did not accept that to be the case. 

28.	The tribunal records in its judgment that Mr. Chand conceded after some prevarication that he was not the company occupational health and safety officer. It was put to Mr. Chand that he himself had on occasions taken off his safety boots whilst working on the roof, Mr. Chand rejected that proposition. It was also put to him that there was no safety rope attached to the building in which a lanyard or belt hook could be affixed and Mr. Chand responded by saying that there was a rope and that safety belts were fitted with attachments for connecting to it.

29.	It was also put to Mr. Chand by the worker that he was not the only person who had accessed the roof that morning of the incident and Mr. Chand repeated several times that it was just the worker who had accessed the roof at that time. 

30.	When asked by the tribunal whether a safety incident report was provided to the Labour Officer, Mr. Chand claimed that a report had been completed. Mr. Chand stated that only the Company Director had to go to Suva on that day and not the worker.

31.	The employer had produced another witness. He was Mr. Esava Doudouvono. At the relevant time he was the Foreman Welding Fabrication. He had worked for the employer for over 20 years. Mr. Doudouvono testified that the worker had been his colleague at the relevant time.

32.	He said that following a brief prayer session and safety meeting, three workers including Mr. Lobolobo climbed up on the roof the morning of the incident. He said that Mr. Chand and he had both informed the three workers what was needed to be done that day. The workers were to fit roofing screws. 

33.	He stated that Mr. Chand and he had both asked the workers to climb up the roof and see if it was dry enough to work. The workers did so and returned to say that the roof was slippery. As a result they were told not to go up and wait until 10.00am. 

34.	The three workers went up onto the roof again approximately 30 minutes later. He said that he did not see whether the workers were wearing safety equipment when they climbed up onto the roof for the first time and on the second occasion he had gone inside the building so did not see them returning to the roof.

35.	He testified that he heard the workers shouting and when he went on top of the roof, two of the workers were on the roof and Mr. Lobolobo was on the ground. The worker had told him that he had taken off the safety boots when on top of the roof and that this was not normal procedure. The other two workers who were there on the roof have now left the company.

36.	The tribunal asked the witnesses some questions as well. On questioning, Mr. Doudouvono stated that the job of affixing the screws to the roof would take approximately one week. He further stated that on the first occasion the three workers were on the roof to examine it for dryness, they were on the roof for approximately 4 to 5 minutes. The second occasion they accessed the roof, it was only 10 minutes when the incident took place.

37.	In response to the cross-examination questions by the worker, the witness stated that the worker was required to go to Suva at 10.00am on the day of the incident and that he was unaware if any safety rope had been in place for the workers to attach safety belt or harnesses.

38.	In its findings, the tribunal viewed the evidence of the witness Mr. Shalendra Chand as untruthful. His evidence was rejected as being untruthful and deliberately misleading the tribunal. He was found to be perverting the course of justice by his untruthful evidence. The tribunal found that Mr. Chand gave the tribunal an impression that he was deliberately trying to mislead and cover up the conduct of the employer. The tribunal stated that this was almost evident when his evidence was contrasted against that of Mr. Doudouvono in relation to the number of workers who had climbed up onto the roof, the number of times they did so and the length of time in which the workers remained on the roof on those occasions. 

39.	The tribunal further found that Mr. Chand’s account of a barefoot worker being present at the pre-start meeting also seemed ludicrous. The tribunal stated that it is well aware through cases before it that Fiji National University has dedicated health and safety resources team and it is too far-fetched to imagine that they would countenance such conduct by their contractors. 

40.	The tribunal also stated that it believed that it more likely the case that the worker provided himself with the safety boots and that it was more likely that the boots the worker had in possession may not have been specifically designed for working on roofs and sloping surfaces. 

41.	The tribunal found that the evidence of Mr. Doudouvono was that three workers were told to climb the roof and check whether it was safe to work. The tribunal also referred to Mr. Doudouvono’s evidence that the worker’s had advised that the roof was slippery and approximately half an hour later all three workers returned on the roof to commence work. The tribunal found that Mr. Doudouvono was aware of the fact that all three workers had returned on the roof to work because in response to calls for help, he himself climbed up on the roof. 

42.	The tribunal did not accept that the workers were told not to recommence work when they did. The tribunal found that the claim by the employer that they were ordered to wait until 10.00 am to start as nothing more than a contrivance created by the employer as part of its case. The tribunal accepted that the worker was to leave for Suva at 10.00 am that day. The three workers were therefore following clear instructions of their supervisors.  They climbed the roof to perform their duties. 

43.	Mr. Dayal complained in the appeal that the tribunal failed to accept the evidence of tis witnesses that the worker was told not to access the roof at the time he did and that it was his misconduct in doing so. He further argued that it was the worker’s misconduct when he did not wear the safety boots and the belt. He should therefore be responsible for the injuries he sustained and not the employer. 

44.	I am surprised that Mr. Dayal expects the tribunal to believe and accept the employer’s version of the evidence in light of the contradictions in its own evidence. Firstly, there was contradiction in the employer’s evidence that the workers were told not to access the roof until 10.00am. There was clear evidence by the witness Mr. Doudouvono that the workers were told to go on the roof and check for dryness. They went first and came back because the roof was not dry. They went the second time. Three workers went together. They did so after half an hour of the first access. If it was the Company rule not to access the roof until 10.00am each day as contended by the employer’s witness Mr. Chand, then why were the workers sent in the first place to check for dryness? The supervisors should not have breached the rule by sending them before 10.00am. They were the ones who sent the workers on the roof before 10.00am.

45.	Further, when they accessed the roof for the second time half an hour later, why were they allowed to do so if it was not 10.00am? All the three workers accessed the roof and not only this worker which means that they were told to go and start work. No worker would be starting work early if they are told not to. The employer’s evidence was simply unacceptable and the fact that the workers were on the roof and allowed to work and not ordered to come down supports the worker’s version that there was no instruction not to climb the roof when they did and that they were to access the roof at 10.00am.

46.	Further, the worker had to leave for Suva at 10.00am. The foreman Mr. Chand who gave evidence denied this. The second witness of the employer Mr. Doudouvono accepted the worker’s contention as true. It was therefore open to the tribunal to make a finding that the worker had to return to Suva at 10.00am. If that was the case, then it makes no sense for the employer to contend and expect it to be accepted that the worker was to start work at 10.00am. When was he to go to Suva then? This means that he had to start work before 10.00am. 

47.	I do not see how any presiding officer can accept the evidence of Mr. Chand when that was not supported by another Foreman. Mr. Chand was obviously dishonest in his evidence. 

48.	Mr. Dayal also stated that the worker was to wear safety boots and safety belts. The worker had accessed the roof without the safety boots. His version that the boots were more slippery was accepted by the tribunal as not being the right kind of boots for the roof. The tribunal had also accepted that the worker had made provisions for his own safety boots which were not the right kind to work on slippery roofs and sloppy surfaces. The employer did not provide any evidence that it had provided safety boots to the worker. The worker would have definitely signed for receiving safety boots. I find that if the worker was ordered to climb with the safety boots then when he presented barefoot during the prayers and short briefing he would have been ordered to go and wear his safety boots and stopped from climbing the roof. The worker would have had to listen to the supervisor. The employer had allowed the worker to access the roof barefoot. It should be responsible for that and it cannot be the worker’s misconduct if the employer did not provide the worker with safety boots.

49.	It was also contended by Mr. Dayal that the worker did not wear safety belts. The employer’s another witness Mr. Doudouvono had stated that he was unaware if there was a safety rope attached to the building to hook the safety belts. This supported the worker’s version. The other witness Mr. Chand was in anyway found to be dishonest in his evidence. He could not be viewed as a truthful evidence. It was open to the tribunal to therefore reject his evidence and find that there were no provisions for safety belts to be used.

50.	The employer could have proved from its incident report as to where on the roof the rope was attached for the safety belts to be hooked onto it. Photographic evidence was very necessary in the incident report and the employer should have made arrangements to prove its case. The employer was relying on its defence that the worker suffered injury due to his misconduct. If that was its version then all relevant evidence should have been produced in court.

51.	The other issue surrounding the appeal is the percentage injury that the worker had suffered. The employer is contending that there was no evidence of 15% permanent injury and that the claims, both the original and the amended one, had indicated that there was 5% injury.

52.	The tribunal had very clearly stated in its judgment why the assessment of 15% permanent incapacity was accepted by it. At page 2 of the judgment it stated as follows:

“Firstly, the Labour Office incorrectly set out within the particulars of its claim, that “the workman sustained injuries when an excess iron fell on his right hand while trying to fix villa board”. The Workman and the employer agree on the other hand, that the Worker was walking atop of the roof of a two storey building at the Fiji National University at Namaka, when he slipped and fell to the ground;

The Labour Officer was initially claiming 5 percent permanent impairment, giving it rise to a claim of $2,047.50;

In light of that significant error and for that fact that the Worker had fallen approximately 12 meters, on 21 March 2019, the Tribunal asked that the earlier medical report of the medical examiner be reviewed;

On 5 July 2019, leave was granted to the Labour Office to amend the claim, by taking into account the revised permanent impairment assessment calculated by the medical examiner, Dr. Rokobuli. The orthopedic surgeon assessed the whole person impairment (WPI) at 15 per cent, equating to an amount of $6, 142.50…”

53.	I cannot see any merit in Mr. Dayal’s argument. There is a clear indication in the judgment and the claim that the nature of the incident and injury recorded in the claim was incorrect. That gave rise to the tribunal to question the nature of the injuries sustained and to fairly ask for another medical assessment which was done and the WPI was worked out at 15 percent. The employer did not provide any contrary evidence and the tribunal had to accept the WPI assessed by the medical practitioner. I do not find any merit in the ground of appeal challenging the WPI.

54.	The entire appeal was based on unmeritorious grounds. Injured workers expect their compensation to be paid quickly. In this case the worker had been out of employment and he needed his compensation. This appeal had conveniently stalled his rights and he is not being paid any interest on the judgment sum as well. To that end costs to the worker is justified. 

Final Orders

55.	In the final analysis, I do not find that there are any merits in the grounds of appeal. I dismiss the same. The orders of the tribunal are upheld.  It ought to be complied with within 1 month.

56.	I also order costs against the employer in the sum of $5,000 to be paid to the worker within 1 month.

……………………………………………
Hon. Madam Justice Anjala Wati
Judge
18. 05. 2023
To:
1.	Bale Law for the Appellant.
2.	Ministry of Employment, Productivity and Industrial Relations for the Respondent.
3.	File: ERCA 35 of 2019.