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Accident Compensation Cases

Millin v Accident Compensation Corporation (DC, 29/11/12)

Judgment Text

JUDGMENT OF JUDGE RODERICK JOYCE QC 
Rodenck Joyce QC Judge
Reason for appeal 
[1]
The appellant was given cover by the Corporation for personal injury and paid weekly compensation on the basis that when he suffered that injury he was employed by a carpet laying firm. The injury date was 29 June 1998. 
[2]
In 2010-11 the Corporation came to the view that in fact the appellant had not been so employed on 29 June 1998. 
[3]
In the course of its then inquiries the Corporation first of all determined to cease to pay weekly compensation to the appellant and that decision was communicated to him in a letter dated 22 March 2011. 
[4]
That determination was expressed in these terms: 
“As you are aware, ACC in a letter dated 10 March 2011 requested you to provide us your income tax details for the period 1 April 1998 to 31 March 1999 or sign and return the IR 597 form for us to obtain information from the IRD. This request was made to confirm that the level of weekly compensation payments you are receiving as correct, 
ACC has decided to suspend your weekly compensation entitlement accordingly, This is because you have not complied with the request made under section 72 of the Accident Compensation Act 2001. As a result, ACC has suspended your entitlement to weekly compensation from 16 March 2011. …  ”
[5]
That was followed by a further determination communicated to the appellant in a letter dated 19 April 2011 which relevantly stated: 
“ACC has been considering your weekly entitlement to compensation. To be entitled to weekly compensation you must be an earner at the time of your injury of 29 June 1998. 
The IRD letter dated 14 March 2011, noted that your income details for 1998/1999 only has income tax details for accident compensation, ENZA Foods NZ Limited and CJ Hagen Limited. It did not provide us any information or income tax details for your employment with Craig Murphy. 
ACC has reviewed all the information including documentation provided by you and are of the opinion that you are no longer entitled to and in fact were never entitled to weekly compensation. 
ACC has suspended your entitlement to weekly compensation from 16 March 2011 …  ”
[6]
The appellant sought reviews of both determinations. That in respect of the 22 March 2011 determination was successful but that (the crucial) determination of 19 April 2011 was upheld on review and it is that decision that the appellant has appealed. 
Course of appeal hearing 
[7]
The appeal proceeded to a hearing on 16 April 2012 when the appellant appeared in person to prosecute his appeal. It became apparent that the appellant was struggling with some of the legal issues that arose. Also, through misadventure, Mr Tui's submissions for the Corporation had not reached the appellant before the hearing day. 
[8]
So after what was reduced to a part hearing I issued this minute: 
“This appeal was part heard today. I heard from (the appellant) in expansion and explanation of his submissions and from Mr Tui in response. However, through misadventure, Mr Tui's written submissions in response and the related documents to which he spoke had not reached (the appellant) beforehand. 
It was thus agreed that he should have until Monday 30 April to file and serve a written reply to those submissions and I confirm a direction accordingly: registry to monitor compliance. 
(The appellant) sought what amounted to a prohibition on publication of the Court's judgment when given on the Corporation's website or, at least, restriction to publication in terms that would not identify him. 
Given that his appeal is now confined to the Frucor issues and that that judgment will speak only of those, there is no justification (even reading ‘privacy’ in its wide as possible contextual sense) for an order of either kind and none is made. ”
[9]
On 17 April 2012 the appellant sought an extension of the time limit so specified saying that he wished to engage a solicitor to assist him and that the solicitor would not be able so to attend until mid May. An extension of time until 20 May 2012 was granted. 
[10]
The solicitor, Mr Schmidt, completed the submissions on 1 June 2012 and shortly afterwards provided a bundle of documents and other helpful materials. The appeal was subsequently rescheduled for 3 September 2012 when it was fully argued and the Court's decision reserved. 
Background 
[11]
What follows (which is taken from Mr Schmidt's summary) is not, so I understand, in dispute: 
The appellant has cover for a spinal injury suffered on 29 June 2008. After this injury he applied for and was granted weekly compensation, originally on the basis that he was working on a casual yet full time at the time basis for a friend. 
Many years later ACC reinvestigated the claim and changed its mind about weekly compensation entitlement. The Corporation now asserted that the appellant had not been working for the friend on a full time basis but merely as a casual worker. 
ACC accepted that he worked and was paid, but asserted that he was not paid the sum detailed on the employer declaration but instead some lesser sum. 
The focus on the question of the appellant's entitlements in June 2009 turned to the fact that shortly before the accident the appellant had finished working for a fruit packing company called Frucor. 
Relevantly, he had begun work for Frucor on Monday, 16 February 1998 and finished that work on Saturday, 20 June 1998. This added up to 18 full weeks of work on account of which he was paid $13,130.60. 
In the three weeks prior to the ending of his employment with Frucor his pay was as follows: 
▪ 
1 June 1998 to 7 June 1998 
$916.50 
▪ 
8 June 1998 to 14 June 1998 
$992.88 
▪ 
15 June 1998 to 20 June 1998 
$1,069.25 
The last payment from Frucor (on the cessation of his employment) was $2,139.09 which included $787.84 of holiday pay, plus two days of statutory holidays owed at $282. The holiday pay of $787.84 represented exactly six percent of his earnings of $13,130.60. 
Consequential contention 
[12]
Mr Schmidt's written submissions then proceed in these terms: 
“[15]
Counsel submits that by operation of logic the payment for one day of statutory holiday would therefore be $141. 
[16]
The employer confirms that the hourly rate was $11.25. That is the rate at which the appellant was deriving earnings from his employer. 
[17]
Although his last three weeks pay average around $970, his average pay over the whole period is $727,47 ($13,130.60 divided by the 18 weeks). 
[18]
The appellant worked shift work for most of the time he was with Frucor. These were long shifts from 6.00 am to 6.00 pm, Monday to Sunday. 
[19]
While there is no specific evidence on the issue it will be the case that Frucor paid an ACC employer levy based on the total payroll of the staff the company employed. This levy is charged on (an) annual basis and has been part of the scheme since its inception. The payroll is the total number of all payments made to employees upon which PAYE is paid in a year, including amounts paid for annual and statutory holidays. 
[20]
It will also be the case that the appellant, like all persons who receive PAYE wages, is paid ACC levy on the payments made by Frucor. ”
[13]
Mr Schmidt proceeded on the basis that the Corporation relied upon s 390 of the Act to revoke the original decision that had recognised an entitlement to weekly compensation, thus submitting that it had the burden of proving that it was properly “satisfied”1
| X |Footnote: 1
Here he called in aid ACC v Bartels [2006] NZAR 680Has Litigation History which is not known to be negative[Blue]  
that the appellant was not covered by the deemed employee extension. If there was even just a doubt about whether he was a deemed employee the Corporation could not be “satisfied” that there had been an error, was his submission. 
[14]
Mr Schmidt then referred to s 3 of the Act — the purpose provision — in terms emphasising its subcl (b) which includes as a purpose: 
“Ensuring that, during their rehabilitation, claimants receive fair compensation for loss from injury, including fair determination of weekly compensation and, where appropriate, lump sums for permanent impairment. ”
[15]
He made this reference because in his submission it was particularly appropriate where the appeal involved what he called “the first substantive determination of a statutory provision that has remained largely unchanged since 1992”
[16]
He was referring to s 44 of the 1992 Act2
| X |Footnote: 2
That applicable to this case. 
which I will now set out: 
“44. Extension of entitlement to compensation for loss of earnings 
(1)
Where a person has ceased to be an employee, the person shall be deemed to continue to be an employee for the purposes of this part of this Act if — 
(a)
The person has been an employee within 14 days before the commencement of the incapacity; and 
(b)
The person has been an employee for a continuous period of not less than 12 months immediately before that 14 day period; and 
(c)
But for the incapacity, the person would have been an employee within three months after the commencement of the incapacity. 
(2)
Where an employee is entitled to receive any payment on ceasing employment and earner premium is payable3
| X |Footnote: 3
It was not suggested that nonesuch was payable on the sum in question. 
in respect of that payment, that person shall be deemed to continue to be an employee for the purposes of this Act for so long as those payments constitute earnings by virtue ofsubsection (4)(a) of this section. 
(3)
Subsection (1) of this section shall not apply in any case where the effect of subsection (2) of this section is to extend the person's status as an employee for more than 14 days after the employment ceases. 
(4)
Where this section applies: 
(a)
The person concerned shall be deemed to be deriving earnings at the same rate as that person derived earnings while in employment immediately before the employment terminated; and 
(b)
For the purposes of calculation of weekly earnings, the date of commencement of incapacity shall be deemed to be the last date of employment. 
(5)
Nothing in this section shall cause any personal injury suffered by a person who is deemed to continue to be an employee under this section to be regarded as a work injury. ”
(Emphasis added) 
[17]
Mr Schmidt then noted (as indicative of a reasonably consistent - but now more sophisticated — continuation of that statutory approach) the like provision in the current Act. This is found in clause 43 of Schedule 1 and is in these terms: 
“43. Weekly earnings of employment ended before commencement of incapacity 
(1)
Subclause (2) applies to a claimant who, before his or her incapacity commenced, has ceased to be in employment. 
(2)
The claimant is deemed to continue to be in employment and have earnings from that employment for the purposes of this schedule for the longer of — 
(a)
28 days from the date he or she ceased to be in employment, if he or she — 
(i)
Had been in employment within 28 days before his or her incapacity commenced; and 
(ii)
Would have been an employee within the period specified in subclause (3) after the date on which his or her incapacity commenced, but for the incapacity; or 
(b)
The period for which payments that the claimant is entitled to receive on ceasing employment and on which earner levy is payable constitute earnings under subclause (4). 
(3)
For the purposes of subclause (2)(a)(ii), the period is, - 
(a)
Unless paragraph (b) applies, 3 months if the claimant had entered into an employment agreement, or had arranged to enter into an employment agreement, before the incapacity commenced; or 
(b)
12 months if — 
(i)
The claimant was employed in seasonal employment with the same employer as he or she had been employed in the 2 seasons before the claimant's incapacity commenced; and 
(ii)
The employer confirms that the claimant could reasonably have expected to be re-employed in the season after the claimant's incapacity commenced. 
(4)
A claimant, who is deemed by subclause (2)(b) to continue to be in employment, is also deemed to be deriving earnings at the same rate as he or she derived earnings while in employment immediately before he or she ceased to be an employee, a self-employed person, or a shareholder — employee, as the case may be. 
(5)
For the purposes of calculating the claimant's weekly earnings, the date his or her incapacity commenced is deemed to be the last date on which the claimant was in employment. 
(6)
Unless the personal injury is a motor vehicle injury, a work-related personal injury, or a treatment injury, payments under this clause come from the Earners' Account. 
(7)
In this clause — 
‘Employee includes an employee who is on unpaid leave that is not unpaid parental leave. 
Employment means employment as — 
(a)
An employee; or 
(b)
A self employed person; or 
(c)
A shareholder — employee. ’”
[18]
Mr Schmidt submitted that the operational (and material in this case) parts of the two sections remained the same — the Corporation had first to determine the amount of payments received on the termination of employment (upon which employer premium was payable) and then how long the person was deemed to be an employee, this by an analysis of the rate at which earnings were being derived immediately before the employment ended. 
[19]
The submission was that determining (for the purpose of extended or deemed cover) the period of time to which the payment related involved the exercise of a discretion of a “prescribed” kind that would in large part turn on the nature of the payment in issue, as no specific calculation methodology or formula had been provided. 
[20]
In effect (so he submitted) each case had to be determined on its own facts and that was sensible because the types of payments that could be made to employees, or received or earned by self employed persons and shareholder employees, would vary. The key points were whether levy was paid on the amount and the nature of the payment. Examples of payments upon which levy either was or might be paid were backdated pay, holiday pay or redundancy payments. 
[21]
He went on to observe that usually employees work five days a week, but (he then asserted) earner and employee premia were calculated on the basis that such funded cover for work and non work injuries on a continuous basis seven days a week, 365 days a year. 
[22]
Thus it would make sense to conclude that a person owed a week's holiday (five days) should have cover for the seven days because the employer and employee had paid sufficient levies to fund a week's cover. That would reflect the reality of how the scheme had functioned since its introduction in 1974 — a scheme meant to reflect the original Woodhouse continuous cover model. 
[23]
Mr Schmidt said that that approach was behind the guidance provided by Judge Beattie in Verma4
| X |Footnote: 4
Verma v ACC 208/04 
which had determined that weekends were not included when assessing the length of a period covered by holiday pay. The last date of deemed employment would be the day when a person's holiday pay would normally be regarded as ending. “If the person had still been employed, what day would they have been expected to return to work?” — was the question to be asked. 
[24]
On this approach a person owed three weeks' holiday would be covered for three calendar weeks starting on the Monday following him or her leaving work (assuming that was on a Friday) and ending on the Sunday 21 days (or three calendar weeks) later. 
[25]
If a person left work during the working week the three weeks holiday owed would run for 21 days (or three calendar weeks) from the day after they left, e.g. a person who left on a Tuesday with that holiday pay entitlement would be covered from the following day, being a Wednesday, until (and including) the Tuesday three weeks afterwards. 
[26]
Mr Schmidt argued that on the Verma approach it became necessary to estimate the rate at which earnings were derived immediately before the employment ended and that exercise should be done “constructively”, in other words consistently with the purpose of the section. Here, where the only payments concerned were holiday pay, the questions to be determined were: 
[i]
How many days of holiday pay fairly reflect the six percent payment Mr Millin received? And 
[ii]
What period of time would that number of holidays normally cover? 
[27]
Setting out to answer his own questions, Mr Schmidt submitted that given that (a) the appellant's holiday pay on leaving employment ($787.84) was more than his average weekly income of $729.47; (b) that his earnings were significantly higher in the latter part of his employment; and (c) that his holiday pay calculated out at six percent of his gross earnings, the most straightforward way of calculating how many days the $787.84 payment of holiday pay corresponded was to apply the six percent statutory standard applicable at the time5
| X |Footnote: 5
The holidays provisions have since been increased to four weeks leave for employees with holiday pay calculated at eight percent of gross earnings for casual employees. 
[28]
The appellant had worked for Frucor for 18 weeks and the six percent holiday pay he received represented 1.08 weeks of holiday (six percent of 18 weeks is 1.08 weeks). This was a calendar week figure but if one wished to convert it to working days it was simply a matter of multiplying by five, thus 1.08 weeks equally 5.4 working days, a figure that he proposed should be rounded up to six working days. 
[29]
As an alternative methodology for calculating the number of days of holiday owed, the $141 figure could be used as a divisor and by this calculation the holiday payment of $787.84 represented 5.6 days of holiday ($787,84 divided by 141 equals 5,6) which also should be rounded up to six working days. 
[30]
In those terms the appellant would be entitled to six days of holiday which, it was suggested, was not surprising because 18 weeks full time work was a little more than a third of the year. 
[31]
Then applying Verma the six days would begin on Monday 22 June 1998 and go through to the following Monday, 29 June 1998, the day of the injury. 
Case for Corporation (Frucor its agent) 
[32]
Mr Tui began (in terms of his written submissions) with the rather blunt proposition that the appellant now relied upon a “somewhat opportunistic” argument that the deeming provisions of s 44 extended his employment to 29 June 1998. That contention was (he submitted) without legal foundation and in any event unsupported by the evidence. 
[33]
He then turned to the matters of uncontested fact. The Corporation had received an ARC 3 Employee Earnings Certificate from Frucor advising that the appellant had been employed as a seasonal worker from 6 February to 20 June 1998. 
[34]
Back in 1998, and in order to calculate the quantum of weekly compensation, the Corporation had sought and obtained previous earnings information for the appellant for the 52 week period from 30 June 1997 to 29 June 1998. 
[35]
At the time, and on the basis of information from the carpet layer, it had accepted that the appellant was an earner in permanent employee on the accident date. So it had calculated and thereafter paid weekly compensation. 
[36]
Mr Tui then reviewed the sequence of events referable to matters including the contentious carpet laying work issue and the efforts of the Corporation to obtain from the appellant more and better information concerning his overall earnings (and thus work) position. 
[37]
This had led to it being agreed (as Mr Schmidt had confirmed6
| X |Footnote: 6
See [8] above. 
that the appeal (and thus the issue of weekly compensation entitlements) be confined to the Frucor and s 44 situation. 
[38]
A written statement had been obtained from Neil Fleury, the commercial manager of the company formerly known as Frucor, a gentleman who had then been in that role with that entity for four years and its finance manager for seven years before that, 
[39]
His uncontested statement was to the effect that: 
The appellant had been a seasonal worker between first, 30 June 1997 and 16 October 1997 and secondly, 16 February 1998 and 20 June 1998. 
During the busy period in 1998 the packaging department worked a six day roster and 12 hour shifts. 
The busy period was March to August of each year. 
That department worked 8 hour shifts and a five day roster until after Easter when the work increased and staff worked 12 hour shifts and a six day week. 
The final pay to the appellant of $2,139,09 included $787,84 for holiday pay and $282 for two statutory days (see below) owed to him. Holiday pay was calculated at six percent of gross earnings for the period of 1998 employment. 
During that period he earned $13,130,60 plus six percent holiday pay of $787.84 giving total earnings for this period of $13,947 including the statutory days of Easter Friday and Easter Monday. 
For the pay week 1 to 7 June 1998 he received $916,50 gross taxable earnings and for the following 8 to 14 June week $992.88 gross taxable earnings. 
The holiday pay of $787.84 was less than one week gross taxable earnings as it was based on an hourly rate of $11.25 and it paid the appellant up to 27 June 1998. 
[40]
Paul Jones who had worked with the appellant in the packaging department (and in 1998 was his supervisor) had also made a formal and uncontested statement which included that: 
During the busy period in 1998 the packaging department worked a six day week and 12 hour shift. 
The 12 hour shift was from 6.00 am to 6.00 pm and he recalled that the appellant would arrive at 5.55 am and depart at 6.05 pm. 
The packaging department worked a six day week being Monday to Saturday. 
[41]
Mr Tui confirmed the reliance of the Corporation on s 390 and acknowledged that it had been required to apply the legislation in force at the time of the original decision, namely the 1992 Act, 
[42]
Pursuant to ss 37, 37A, 39 and 40 of that Act a claimant had been entitled to weekly compensation where the claimant was incapacitated as a result of a personal injury and an earner immediately before the incapacity commenced — that italicised term being one that (as the Court is well aware) has long been interpreted in strictly literal terms, 
[43]
In Ryan7
| X |Footnote: 7
Ryan v ACC CIV 2005-404-5967 High Court Auckland, 15/5/06 Simon France J 
the High Court had said that whilst it did not think “immediately” added anything to the earlier test of “at the time of” it was nevertheless a word that reinforced the fact that time was of the essence. One must be an earner at the time of the personal injury. Thus, said Mr Tui, the question here (i.e. on the present appeal) was whether (with attention on s 44) the appellant was an earner immediately before 29 June 1998. 
[44]
Mr Tui re-structured the question in more fact-specific terms so as to be whether the appellant's employment with Frucor was to be treated as extended under s 44 of the 1992 Act to 29 June 1998 on account the payments made to him on the termination of this employment. 
[45]
He noted that s 44(2) provided that in the case of an employee entitled to receive any payment on ceasing employment and earner premium is payable in respect of that payment that person is deemed to continue to be an employee for so long as those payments constitute earnings by virtue of subs (4)(a), subs (4) reading: 
“Where this section applies: 
(a)
The person concerned shall be deemed to be deriving earnings at the same rate as that person derived earnings while in employment immediately before the employment terminated; and 
(b)
For the purposes of calculation of weekly earnings, the date of commencement of incapacity shall be deemed to be the last date of employment. ”
[46]
He went on to submit that it was clear on the evidence from Frucor that the appellant had worked six days a week Monday to Saturday in the period prior to the termination of his Frucor employment on 20 June 1998. He had received holiday pay of $787.84 on termination and (as was not contested) had suffered his injury at midday on Monday, 29 June 1998. 
[47]
The submission then was that the payment on termination did not extend the employment to 29 June, rather and on the evidence available, two calculations were possible: 
On the basis of the written statement from Mr Fleury the holiday pay payments would have extended the appellant's employment to Saturday 27 June, still 2 days short of the material date 29 June. 
Alternatively the holiday payment extended the appellant's employment to Friday 26 June, thus 3 days short of that date; Mr Tui here offering this analysis - 
Section 44(4)(a) required the holiday pay payment to be calculated at the rate received by the appellant immediately before the employment terminated. 
In his final week with Frucor he received earnings of $1,069.25 and in the week prior $992.88, These figures (for a six day week) amounted to $178.21 per day and $165.48 per day respectively. 
Applying these figures to the holiday payment of $787 gave 4.4 days and 4.76 days respectively. 
The result was that the holiday pay payments extended the appellant's employment to 26 June 1998; 
Thus however one looked at it the deemed employment of the appellant did not extend to Monday 29 June 1998. 
[48]
I interpolate here that I find the alternative approach susceptible to the same kind of criticism that Mr Tui levelled at Mr Schmidt's various endeavours to extrapolate formulae by means of “reverse engineering” arithmetic. To the Court, Mr Tui's stronger point was the first, based as it was strictly on Mr Fleury's uncontested evidence of how the payment was in fact made up. 
[49]
What Mr Fleury said was that: 
“The holiday pay at $787.84 was less than one week gross taxable earnings and based on an hourly rate of $11.25 the holiday pay would have paid the defendant up to the 27 June 1998. ”
There was no evidence that Mr Fleury's evidence here betrayed a calculation (or a means of arriving at the amount in question) that was flawed. And here I particularly remind myself that Mr Fleury had spent four years as Frucor's finance manager. I acknowledge that those were years subsequent to the events but it may be taken (in the absence of any contrary indication) that Mr Fleury was a competent witness on this topic. 
[50]
Responding otherwise to the arguments for the appellant, Mr Tui rehearsed the submission that the various and varied analyses of the payments received were premised on no better than unwarranted by any evidence assumptions, in fact relied on mere speculation, In contrast, the submissions for the Corporation reflected the actually available from Frucor information, and were consistent and reasonable in light of the legislation. 
[51]
Mr Tui argued that the appellant could not rely on Verma for at least two reasons: 
On the basis of the facts in Verma the holiday pay extended the appellant's employment to the day of the injury but here, and at best, such extended to a date clearly falling short of the injury date. 
The suggestion by the appellant that payment for two statutory holidays further extended his deemed employment had no validity. In his final pay, the appellant had (on the Fleury evidence) been distinctly and specifically paid for two statutory holidays over Easter 19988
| X |Footnote: 8
See [39] above. 
and those dates could not return, as it were, to the front so as to “extend” his employment9
| X |Footnote: 9
I note from Verma its reference to Drake Personnel (NZ) Ltd v Taylor [1996] 2 NZLR, a case under the Holidays Act 1981 which in an allied way put paid to a second bite argument. I also note that that Act did not (as was pointed out by Mr Tui) appear to provide - such as did the succeeding 2003 Act - for “alternative holiday provisions” with the apparent capacity to give a two days for one benefit. 
Mr Schmidt's critique of the ACC approach 
[52]
Mr Schmidt's rejoinder was that: 
Although Mr Millin's employment agreement allowed the working of overtime and Saturdays when he was scheduled for work, the same did not apply when on holiday or once his employment agreement had ended. 
The deeming provision in the statute10
| X |Footnote: 10
Refers 44 supra. 
could not create a fictional obligation to work Saturdays, rather the purpose was to determine a period of time that would be the normal holiday period. 
An approach that aligned with s 11B of the Minimum Wage Act 1983 should be preferred, that defining a five day 40 hour working week as the standard11
| X |Footnote: 11
However this section permitted contracting out and it may be inferred from the Fleury/Jones evidence that such was the case at Frucor. There is certainly no evidence to suggest that it was operating illegally. 
. So once his employment had ended the appellant should be regarded as having Saturday and Sunday off; 
Anyway, and even to six days, there would have to be added the two statutory holidays that the appellant was owed, as levy12
| X |Footnote: 12
But again see [39] above, the 6th bullet point. 
would have been paid on these on him “ceasing employment”; and 
That would make for a total of eight days holiday (5.6 rounded to 6, plus 2), taking him through to 1 July 1998 i.e. two days after the accident. 
[53]
Mr Schmidt also renewed the submission that the appellant was safely covered by the holiday extension because on a straightforward application of Verma13
| X |Footnote: 13
Having read Verma I see it as a decision very much driven by the factual evidence that, in the end, was before the Court. 
he was a deemed employee for two days after the date of injury. In any event, a “fair” assessment of holidays was required and thus, he submitted, any doubt must go in the appellant's favour. 
[54]
In these terms the Corporation could not have been truly “satisfied” of an error; so the Court should hold that at the time of the incapacitating injury (and by virtue of the extension of entitlement provisions as discussed) the appellant was a deemed employee. 
Discussion 
[55]
Mr Schmidt urged a “fair” approach — that with reference to the 1992 statute — but of course that is neither the beginning nor end point for the construction of a New Zealand statute. Section 5 of the Interpretation Act 1999 says that the meaning of an enactment must be ascertained from its text and in light of its purpose, 
[56]
I recognise that in the accident compensation jurisdiction it has been said that a liberal or benevolent approach to the construction of its provisions may be in order, but it has also been recognised that that does not justify a departure from the meaning of provisions when that is plain and unambiguous. To me case law references to a liberal and benevolent approach reflect no more than the recognition of the importance, in light of s 3 of the 2001 Act, of a purposive approach. 
[57]
Section 44 can be identified as a provision there to recognise that for ACC purposes cessation of employment should be taken to occur in terms bringing into account holiday pay, or for that matter long service leave pay and - arguably at least - redundancy payments, so as not to unnecessarily disadvantage a worker. 
[58]
The rationale discernible is that to the extent of the period to which such payments relate, the claimant should be identified as if in paid employment. Were the position otherwise then, for example, someone who “took” redundancy would be penalised if injured by accident during the period of time to which the redundancy payment related and before entering into any another form of employment. 
[59]
Thus the question is whether in the circumstances of this case and on Monday 29 June 1998 Mr Millin was still within, if you will, that protective zone — that shaped and formed by s 44 in order to recognise that where there are payments to an employee (or receipts by someone who has been self employed) which are subject to levy, there should be a quid pro quo in (commensurate to that impost) ongoing cover terms. 

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