Are you a volunteer, employee or something else?

Background

Lynette Weiland[1] (Weiland) had a long association with SA Basketball. She played as a junior and then progressed to various roles in the organisation, including referee co-ordinator, referee coach, court supervisor and also the position of court table commissioner.

Weiland was injured in a fall at the entrance to an arena where she was to perform the duties of a referee coach. The question arose about entitlement to compensation for her injury.  This turned on whether she was in the course of employment when injured.  This depended on whether she was working under a contract of service pursuant to a legally enforceable contract.  Basketball SA regarded her as a volunteer and her involvement in the nature of a hobby.

She received money from Basketball SA for each of her roles. For referee co-ordination and score table commissioner she had a fixed honorarium of $500 per season for each role.  As a referee coach or court supervisor, she received payment calculated on hours and games for which she was engaged.

Volunteers and employees

The Judge observed that Basketball SA is a not-for-profit organisation whose object is to promote the sport of basketball. Volunteering is a common attribute of the workforce of such associations, but this association did not rely exclusively on volunteers.  It also had employees.

The Judge distinguished between the applicant’s volunteer and employed roles. referee co-ordination and score table commissioner were volunteer roles. The honoraria were ‘genuinely gratuitous and were not intended to be a quid pro quo for the work done’.

Court supervisor and referee coach were employed roles where there was a direct correlation between the work done and the payment. The Court commented:

In connection with her roles as referee coach, she was paid $15 per game for junior games and $20 per game for senior games. Each game would take about an hour. In connection with her role of court supervisor she was paid $12 per hour plus $1 per game. She would supervise multiple games at a time. On any given night she might supervise 15 games over five hours and therefore be entitled to $75 for the night. When she worked as referee coach and court supervisor she was paid cash when she completed her duties. It is common ground that no tax was taken out in connection with any of the money Ms Wieland received from Basketball SA and that she did not declare any of the money as income for taxation purposes.” (at [4])[2]

The case referred to the following indicia of employment (as distinct from volunteering):

  • correlation between the making of the payments and the undertaking of the duties. A lump sum honorarium not intended to be a quid pro quo was indicative of volunteering.  An hourly or piece rate was indicative of an employee;
  • resemblance to a casual rate of pay;
  • regularity of work;
  • expectation of payment; and
  • serious incursion into leisure time.

Outcome

The Judge observed that, in a volunteer relationship, there is no intention for there to be a quid pro quo – one provision for another or mutuality of obligation.

He found that the applicant was performing the work of referee coach pursuant to a contract of service in the expectation of payment. Therefore, for the purpose of the Return to Work Act 2014 (South Australia), she was an employee and was accordingly entitled to compensation.

Implications

Establishing the status of volunteer, employee or other relationship is becoming a more fraught undertaking by non-profit organisations.

As this case illustrates, one person may fulfil multiple categories, depending upon the context.

Legislation is tending to include volunteers as workers or employees where workplace health and safety is involved and it is thus important to determine a person’s status so appropriate insurance can be maintained.

[1] Wieland v Return to Work SA [2018] SAET 190

[2] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAET/2018/190.html

2019-09-18T13:18:54+00:00September 18th, 2019|