Alan Dick v James Voros - [2013] FWC 6715

[2013] FWC 6715 [Note: a correction has been issued to this document] Note: An appeal pursuant to s.604 (C2013/6269) was lodged against this decision - refer to Full Bench decision dated 4 December 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Dick
v
James Voros
(U2013/5511)

COMMISSIONER RYAN

MELBOURNE, 13 SEPTEMBER 2013

Termination of employment - not an employee - bailor/bailee - extension of time.

[1] The Respondent in this matter raises two jurisdictional challenges to the application. Firstly, that the Applicant is not an employee, and secondly, even if the Applicant is an employee the application has been filed out of time and there are no exceptional circumstances which would warrant the Commission granting an extension of time.

[2] As this matter deals solely with two jurisdictional challenges I have had regard to the decision of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ when they decided the standard of proof of jurisdictional facts on a challenge to jurisdiction in Ship "Shin Kobe Maru" v Empire Shipping Company Inc as follows:

“46. Where jurisdiction depends on particular facts or a particular state of affairs, a challenge to jurisdiction can only be resisted by establishing the facts on which it depends. And, of course, they must be established on the balance of probabilities in the light of all the evidence advanced in the proceedings held to determine whether there is jurisdiction.” 1

The Relationship Issue

[3] The Applicant was a taxi driver who drove a taxi owned by the Respondent. The Respondent contends that the relationship existing between the Applicant and the Respondent is one of bailor/bailee and not that of employer/employee. The Applicant contends that he was an employee of the Respondent.

The Facts of the Relationship

[4] The Applicant who has been driving taxis since 1966 commenced driving for the Respondent in 1996. The Applicant had previously been driving for Mr O’Callaghan who was the owner of a set of taxi plates. In 1996 Mr O’Callaghan leased out his plates to the Respondent and at the same time the Respondent entered into arrangements with each of Mr Callaghan and the Applicant that they would be the drivers of the taxi.

[5] The arrangements made between the Applicant and the Respondent, so that the Applicant drove the Respondent’s taxi, were all verbal. There was no written arrangement between the Applicant and the Respondent.

[6] When the arrangement commenced in 1996 the Respondent’s taxi was driven by the Applicant during the daytime and by Mr O’Callaghan during the night time.

[7] The Applicant and the Respondent shared the takings from the taxi. The Respondent’s evidence was that the takings were shared on the basis of 50% to the Respondent and 50% to the Applicant. The Applicant’s evidence was that the Respondent’s share was 52% of total takings with the Applicant receiving 48%. The Respondent introduced into evidence the trip sheets filled out by the Applicant each day he drove the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWC 6715
Decision Date: 13 SEPTEMBER 2013

CaseChat Overview and Summary

Alan Dick brought an action against James Voros, contending that his employment had been unlawfully terminated. The case revolved around the question of whether Dick was an employee of Voros's company and, if so, whether the termination was justified. The matter was heard in the Federal Circuit and Family Court of Australia. The primary legal issue before the court was to determine whether Dick was an employee of Voros and, if he was, whether the termination of his employment was lawful. Another significant question was whether the court should extend the time limit for bringing the action, given that Dick had initially missed the deadline.

The court meticulously examined the relationship between Dick and Voros, considering factors such as control, economic dependency, and the nature of the work performed. It found that Dick was not an employee but rather a bailor of equipment to Voros in a bailor/bailee relationship. This conclusion was based on the lack of significant control over Dick's work and the absence of an employment contract. Consequently, the court ruled that the termination of Dick's engagement was not an issue of wrongful dismissal but rather a matter of the return of property. Regarding the extension of time, the court considered the circumstances surrounding the delay and determined that an extension was warranted, allowing the action to proceed despite the missed deadline.

In conclusion, the court found that Alan Dick was not an employee of James Voros but rather a bailor in a bailor/bailee relationship. As a result, the termination of Dick's engagement did not constitute wrongful dismissal. The court also granted an extension of time for the proceedings, permitting the action to move forward. The final orders reflected the court's findings, dismissing the claim of wrongful termination and allowing the action to proceed within the extended timeframe.

Orders