Brighthope v Rambler Tours Pty Ltd
[1996] IRCA 224
•08 May 1996
DECISION NO: 224/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - excluded employee - contract for specified period less than 6 months - contract for services - no application to exercise jurisdiction in associated matters
Industrial Relations Act 1988 ss.170CC, 170EA, 170ED,
S530, Regulation 30B
BRIGHTHOPE -v- RAMBLER TOURS PTY LTD
No. VI-5786 of 1995
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 8 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-5786 of 1995
B E T W E E N :
JAMES LEONARD BRIGHTHOPE
Applicant
AND
RAMBLER TOURS PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 8 May 1996
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-5786 of 1995
B E T W E E N :
JAMES LEONARD BRIGHTHOPE
Applicant
AND
RAMBLER TOURS PTY LTD
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 8 May 1996
REASONS FOR JUDGMENT (EX TEMPORE)
The Applicant claims unlawful termination of employment. In his application he states that he:
was employed by the Respondent from the 4 September 1995 to the 10 November 1995
is seeking by way of remedy $2,250 which he describes as “balance of agreed contract”
Mr Jon Nixon, a manager with the Respondent company, filed a notice of appearance and indicated therein that Mr Ron Brien of the Bus Proprietors Association (Vic) Incorporated was representing the Respondent.
Commissioner Hingley of the Australian Industrial Relations Commission certified on the 8 December 1995 that the Commission had been unable to settle the matter by conciliation. The Commission certificate indicates that the Applicant and Messrs Nixon and Brien appeared at the Conciliation Conference.
At the hearing today the Applicant appeared in person and Mr L W Maher appeared for the Respondent. The Respondent submitted that there were preliminary issues which needed to be addressed including:
an excluded contract of employment under Regulation 30B(1)(aa)
the possibility that there was no employer/employee relationship but rather a relationship of contract for services between the Respondent and what appears to be a partnership of the Applicant and another
the possibility that there is no intention to pursue a claim of unlawful termination of employment
In respect of the preliminary issues the Court heard from the Applicant who gave evidence and was cross-examined. Mr Maher then submitted that the claim was without jurisdiction and must be dismissed on that account.
Dealing with the third submission first, I am satisfied that, despite a number of equivocal comments from the Applicant, that he did intend to pursue a claim of unlawful termination of employment and that he genuinely expected that he was entering a relationship of employer and employee. I am not so certain that the Applicant now entertains the view that he did enter an employment relationship of any length but I believe him to be a genuine witness and, in general terms, a witness of truth.
It is clear he responded to an advertisement for a position of marketing promotions and coach driver advertised in The Age in August 1995. The advertisement provided for a negotiable salary and a job specification clearly contemplated an employer/employee relationship to be reviewed every three months (see Exhibit A3). However, the undoubted fact is that the Applicant drew up what he described as an employment contract. He concedes the contract was executed by him and Mr Nixon on behalf of the Respondent, and that apart from the insertion of a reference to variation of terms by mutual agreement, the contract as executed on the 4 September by him and Mr Nixon was in the terms he himself had drawn up. He urges the Court to treat the document as nothing more than a vehicle for a convenient payment of salary for what he describes as ”taxation purposes” in respect of a contract of employment which he states he entered prior to the 4 September 1995 and which was for an indefinite period.
On the basis of the Applicant’s own evidence I cannot do that. If there was a contract of employment between the Applicant and the Respondent it was only in terms of Exhibit A4 and was a contract clearly excluded under Regulation 30B(1)(aa) being entered after the 16 November 1994 and for a specified period of less than twelve months.
The application before this Court is an application under S170EA of the Industrial Relations Act. It must be dismissed. If there was such a contract of employment then the Court must and does dismiss the claim on those grounds.
Furthermore, on the Applicant’s evidence, despite what he may have planned, the arrangement appears to have been one whereby the Respondent contracted with a partnership for the provision of services and therefore the application is without jurisdiction on those grounds. In other words there was no employer/employee relationship between the Applicant and the Respondent. Again, if that be the case, the application is without jurisdiction and must be dismissed. The Applicant cannot have his cake and eat it.
If the applicant individually or as a member of a partnership has a claim of breach of contract, and the Court cannot express a view on that, it cannot be pursued in this Court given that the Court has before it only a claim under S170EA of the Act. There was no application made for leave to pursue a claim in the associated jurisdiction of the Court pursuant to S430 and had such a claim been made today it is unlikely that the Court would have considered granting leave in respect of a matter commenced on the 17 November 1995.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 3 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 20 May 1996
The Applicant appeared in person.
Mr L W Maher instructed by John Pastro and Co for the Respondent.
Date of hearing: 8 May 1996
Date of judgment: 8 May 1996
0
0
0