Reality Bites – Court deems House Rules contestant a network employee

Nov 2019 | Insurance

A recent ruling by the New South Wales Workers’ Compensation Commission (Commission) has found that a contestant on the television program ‘House Rules’ was legally an employee of the Seven Network, entitling the contestant to compensation pursuant to s 60 of the Workers Compensation Act 1987 (Act) as a result of a psychiatric injury (injury) she sustained whilst appearing on the show.

Background

On 11 September 2016, the applicant and Ms Taylor applied for House Rules and were subsequently invited to film some pieces to camera, take promotional photographs, attend a physical and a psychological assessment (the latter conducted over Skype) before being advised they had been selected for the show on 28 September 2016.

The applicant and Ms Taylor each signed an agreement prepared by the respondent, which provided that the applicant was to be paid $500 per week together with a further allowance of $500 per week during her time as a contestant on the show.

The contestants moved to Sydney on 26 November 2016. They arrived on set on 1 December 2016, and according to the applicant she and Ms Taylor were isolated from the other teams, all of whom were couples. The applicant stated she felt ‘harassed and bullied’ during the filming which was not only condoned by the producer but rather aggravated and even encouraged. After witnessing Ms Taylor be physically assaulted and subsequently complaining, the applicant was threatened that both contestants would be portrayed negatively.

The applicant claimed that both contestants were portrayed as ‘bullies’ and discovered months later that the reveal footage shown to the other teams only contained negative comments about their renovation work and none of the positive things they had said. After the episode was aired, the applicant was subjected to online abuse on the Channel Seven Facebook page, including receiving threats of violence.

The applicant claimed she felt anxious leaving her home for fear of being recognised, had regular incidents of negative reactions from complete strangers and felt nauseous when faced with reminders of the show.

The applicant has been fearful for her safety following the physical threats and alleges that she has been unable to obtain work due to her portrayal as a ‘bully’. After the episode had aired, the applicant said she wanted to kill herself and started drinking more alcohol in an attempt to self medicate her injury.

Issues

1. Whether the applicant was a worker or deemed worker

The contract between the applicant and respondent provided that she would engage in home renovations, which was the basis for the respondent’s show. In doing so, she not only gave up her time, but had to relinquish her other employment and relocate to where the respondent directed her during the course of filming. The Commission was of the view it was incorrect to characterise the relationship as one devoid of any service provision by the applicant.

The respondent had a great deal of control over the applicant’s activities whilst engaged on the show. She had to make herself exclusively available to the respondent, had to carry out tasks set for her by the respondent, only use tools given to her and was at all times made aware she was representing the show and the respondent.

The Commission had regard to the fact that the respondent had set the rate of remuneration, exclusive use of the applicant, the power to veto the applicant wearing certain clothes and ultimately the applicant’s activities were an integral part of the show which were undertaken for the benefit of the respondent’s business. As such, the relationship between the applicant and respondent was categorised as that of employee and employer.

2. Whether the applicant suffered an injury pursuant to s 4 of the Act

The Commission accepted evidence that there was editing of the footage from the program in such a selective manner as to portray them in a certain negative light. The breakdown in the applicant’s relationship with other contestants, together with the impact of her portrayal on television and social media was the explanation for the onset of the applicant’s psychological injury.

3. Whether her employment with the respondent was a substantial contributing factor to her injury pursuant to s 9A of the Act or alternatively the main contributing factor to the aggravation, exacerbation and/or acceleration of a disease (s 4(b)(ii) of the Act)

The Commission noted the respondent was made aware by the applicant of hateful comments posted on its social media platforms, that it did not take steps to either remove those comments or to close off the comments on its own posts. The failure to do so was a factor to which the applicant had reacted and which had contributed to her injury. The main contributing factor to the onset of the applicant’s injury was the respondent’s evidence that the other contestants regarded the applicant as a bully.

The Commission was satisfied on the balance of probabilities that the applicant’s employment with the respondent was not only a substantial contributing factor to her injury, but was the main contributing factor to its development. There was no suggestion of any relevant pre-existing psychiatric history.  

It was apparent from an examination of the medical material in this matter that every practitioner aside from one had found the applicant to be suffering from a major depressive episode attributable to her employment with the respondent.

4. Whether the medical treatment undertaken by the applicant was reasonably necessary as a result of any work injury (s 60 of the Act)

The dispute in relation to the reasonable necessity of medical expenses arose due to the denial by the respondent of both an employment relationship and injury. There was no criticism of the actual treatment modalities of the applicant’s practitioners. Given the findings on liability, the Commission found in favour of the applicant in her claim for s 60 expenses.

Decision

  1. The applicant was a worker employed by the respondent within the meaning of s 4 of the Act;
  2. The applicant suffered a psychological/psychiatric injury in the course of her employment with the respondent, with a deemed date of injury of 17 May 2017;
  3. The matter was remitted to the Registrar for referral to an approved medical specialist to determine the level of permanent impairment; and
  4. The respondent was to pay the applicant’s reasonably necessary s 60 expenses upon production of accounts, receipts and/or Medicare Australia Notice of Charge.

Conclusion

Despite the applicant’s contract explicitly stating there was no employment relationship, the NSW Workers Compensation Commission found the applicant was legally an employee of the respondent. We expect the same outcome would occur in Queensland and await the outcome of similar judgments with interest.

This decision is a good example of courts looking beyond strict contractual terms and considering additional factors between the parties (such as the level of control, dress code, ability to freelance etc. – as set out in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1), which continues the recent trend of courts and tribunals finding employment relationships in non-traditional work settings. These principles ought to be kept in mind by insurers when considering coverage under general liability/public liability policies and whether the exclusion clause for employers liability is invoked.

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