Dawson v Dwyer Building Services Pty Ltd
[1996] IRCA 300
•08 July 1996
DECISION NO: 300/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - independent contractor or employee - termination at the initiative of the employer - VALID REASON - issue not opened on by the respondent - failure of respondent to discharge its burden of proof
Industrial Relations Act 1988 ss.170DB, 170DE(1), 170EA, 170EE(3)
Income Tax Assessment Act 1936
CASES:Australian Mutual Provident Society v Chaplin & Another (1978) 18 ALR 385
Stevens v Brodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16
Re: Porter; Re Transport Workers Union of Australia (1989) 34 IR 179
MICHAEL JAMES DAWSON - v - DWYER BUILDING SERVICES PTY LTD
No. VI 4709 of 1995
Before: Judicial Registrar Millane
Place: Melbourne (heard in Warrnambool)
Date: 8 July 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4709 of 1995
B E T W E E N :
MICHAEL JAMES DAWSON
Applicant
AND
DWYER BUILDING SERVICES PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 8 July 1996
THE COURT DECLARES THAT:
The termination of the applicant’s employment by the respondent on 16 August 1995 contravened Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $3,840.00 gross by way of compensation pursuant to section 170EE(3) of the Industrial Relations Act 1988.
The respondent pay to the applicant the sum of $414.00 gross damages.
The payments made pursuant to Orders 2 and 3 above be made within 21 days of the date of these Orders and that such payments are payable less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936 and actually paid to the Commissioner of Taxation.
There be liberty to each party to apply to the Court on reasonable notice on the amount payable pursuant to Order 4 of these Orders.
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 4709 of 1995
B E T W E E N :
MICHAEL JAMES DAWSON
Applicant
AND
DWYER BUILDING SERVICES PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne (heard in Warrnambool)
Date: 8 July 1996
REASONS FOR JUDGMENT
The applicant seeks compensation alleging that on 16 August 1995 the respondent terminated his employment in contravention of Division III Part VIA of the Industrial Relations Act 1988 (the Act). The compensation sought is limited to the period between 16 August 1995 and 10 October 1995 ($3,840.00 gross) from which date the applicant obtained new employment earning a weekly sum in excess of the rate he was paid by the respondent. He also makes a claim in the Court’s accrued jurisdiction for the sum of $414.00 gross representing 34.5 hours of labour at the rate of $12.00 per hour, an amount he alleges he was under paid during the period worked from 17 July 1995 and in particular for the days worked on 14, 15 and 16 August 1995 when he received no payment at all.
The applicant bore the initial onus of proof insofar as it was alleged by the respondent that the applicant was an independent contractor. Alternatively, if he was engaged pursuant to a contract of service it was alleged that there was no termination at the initiative of the respondent because the applicant left the work site on 16 August 1995 and did not return. On the accrued jurisdiction claim is was contended by the respondent that the applicant did not work the overtime alleged and, when he left the respondent’s work site, he owed the respondent some 16 hours in deductions for work which required redoing. It was alleged further that there was an agreement to the effect that at the end of the contract works these deductions would be adjusted against the contract sum owed to him. Insofar as the accrued jurisdiction claim is concerned the respondent did not issue any cross-claim. In the event that the Court determines that there was a relationship of principal and independent contractor, the absence of a cross-claim to defeat the claim for payment for performance of the contract is fatal to the respondent’s defence of this claim. If the applicant was an employee, deductions for poor performance or poor workmanship can not, generally speaking, be offset against wages.
The applicant gave evidence and called a contractor at the work site, Raymond Alexander Andrew (Andrew). Paul Gerard Dwyer (Dwyer) a director of the respondent company, which is a building services company run by Dwyer, his siblings and his father, gave evidence on behalf of the respondent. The only other person to give evidence on behalf of the respondent was John Christopher Dwyer (John Dwyer) who is also a director of the respondent company and at the relevant time was the project manager for the job the applicant was working on between July and August 1995.
BACKGROUND
The applicant is a carpenter and joiner who did his apprenticeship whilst in the army. From 12 May 1995 following his discharge from the army he sought employment and jobs as a carpenter. On 24 June 1995 he placed the following advertisement in a local newspaper (Exhibit A6):
“QUALIFIED carpenter. Specialising in pergolas, patios
and ferneries, also landscape gardening, lawns, edges etc.
No job too small. Phone 62 7468 for free quote.”
Otherwise the applicant left his name and contact number at various building sites in the hope of being employed as a carpenter. He did not gain any work from the date of his discharge from the army until he was engaged to work at the respondent’s work site from 17 July 1995.
According to Dwyer he saw the newspaper advertisement on 25 June 1995 and contacted the applicant on the telephone number given, leaving a message for the applicant, which call was subsequently returned by the applicant.
Dwyer told the Court that his company contracted with the Shire of Corangamite to repair and rebuild the sea wall at Port Campbell. Fifty metres of the wall required repair and a further fifty metres had to be removed and replaced with new timber. The contract with the Shire required the work to be performed within a limited period and, according to Dwyer, contained a liquidated damages clause in the event that the contract ran over the specified period of some eight weeks or so. It was Dwyer’s evidence that the respondent tendered for contracts and if it was successful in obtaining a contract it engaged outside sub-contractors to perform the various parts of the job required to meet the respondent’s contractual obligations. It denied engaging full time or any employees to perform its contract works. The sea wall at Port Campbell was apparently no different to other jobs in that Dwyer and the respondent only set out to engage contractors to perform the job as sub-contractors to the respondent.
It was common ground that as a result of the initial contact between the two men the applicant attended the site at Port Campbell with Dwyer the day after their initial telephone conversation in late June 1995 being driven to Port Campbell by Dwyer and shown the job. On that date the applicant helped Dwyer measure up the site but was not paid for his attendance at the site. The discussion between the two men, both during the telephone conversation and when they first attended the site together, appears to have been confined to the hourly rate to be paid, which was agreed to be $12.00, and what the work involved. The day of the measuring up was agreed to be done without pay and the applicant claimed that Dwyer told him during their drive to and from Port Campbell, “We’ll give you, like, a 2-week trial period, see how you operate and that sort of thing and hopefully you’ll be part of the team once that time is up and we see how you do”.
The only other matters discussed prior to the written contract being entered into was that Dwyer alleges that he told the applicant he would work a 40 hour week and he was expected (and this is denied) to find his own way from Warrnambool to the site at his own expense.
It was not denied by the applicant that on 13 July 1995 he signed a pro-forma Master Builders’ Association of Victoria agreement (Exhibit A1) which on the face of the document refers to the applicant as “The Contractor” and bears the title “Labour & Equipment/Labour & Materials Contractor Agreement and Conditions of Contract”. This appears to be an agreement which for all intents and purposes is one commonly used to engage the services of independent contractors. The document refers to the “sea wall job” commencing on 17 July 1995 with a completion date of Friday, 28 July 1995. The contract price (or rate) is referred to as “$12.00-per hour” with “weekly progress payments”. Apart from these matters the written contract provided for the following matters:
“A. The work contracted for by the Contractor will be performed in accordance with the plans and specifications supplied by the Builder in a proper and workmanlike manner.
B. The work shall be commenced and completed by the dates stipulated, and to the satisfaction of the Builder in accordance with any Builder’s Schedule which may be included in this Agreement and the Contractor acknowledges that any work required to be done in the execution of this Agreement shall be performed by using this own plant and equipment in his own time to produce the required result.
C. The Contract Price as set out hereunder shall be payable to the Contractor in accordance with item 3 of the Schedule upon satisfactory completion of the work, subject to compliance with the Conditions of Contract hereof which forms part of this Agreement.
D. The work to be done by the Contractor or his delegates, is work pursuant or incidental to the trade or business regularly carried out by him in his own name or under a firm or business name and will not be sublet or assigned without the consent of the Builder.
E. The Builder, on receipt from the Contractor of a written account for payment for work satisfactorily completed at the stipulated stages, shall pay such account, less such retention sum as provided for under the Conditions of Contract, within seven (7) days.
Any payments not made within the required time will be subject to the payment of interest at the rate of ........ ..% p.a.
F. Variations Shall be allowed only by written agreement between the Contractor and Builder and no variation shall invalidate this Agreement.
G. All trade waste from the Contractor’s own work and materials supplied shall be removed, and any untidiness resulting from such work shall be made good by the Contractor under the direction of the Builder or his representative.”
The applicant was also provided with a Contractor Day Report book which he was told by Dwyer, and this is not contested, to complete at the end of each day and hand it into the respondent at the end of the week. The book (Exhibit A3) contains a schedule to enable a contractor to describe the task performed, the date and the duration of the task. Despite the request to hand in the document at the end each week the applicant told the Court that he did not do this because in the time he worked with the respondent he was not asked for it and in any event he was paid each Friday a payment equivalent to an 8 hour day for a five day week. The rate of pay was $384.00 nett per week (see Exhibit A2). Exhibit A3, the Contractor Day Book, shows that the applicant recorded 42 hours work between 17 July 1995 and 21 July 1995. The next week was a three and a half day week because Dwyer’s wife had a baby on 25 July 1995 and the workers were instructed not to attend the site on that day or attend the next day until 2.00pm. For the three and a half day week the applicant recorded 30.5 hours to 27 July 1995. For the weeks between 30 July and 4 August, and 7 August and 11 August 1995 the applicant recorded 43.5 and 45 hours work respectively. In the last week worked between 14 and 16 August 1995 inclusive the applicant claims to have worked 21 hours before his employment was summarily terminated.
In addition to the contract and the Contractor Day Report book the applicant, at the request of the respondent, took out private insurance cover and completed tax documents allowing the respondent to deduct prescribed payments at the rate of 20% of its payments to the applicant for the work performed.
It is the applicant’s case that regardless of the terms of the written contract and any other matters which would normally indicate a relationship of principal and independent contractor, the true nature of the relationship was that of employer and employee. That is to say that whatever the intentions were of each party when entering into the written contract, what emerged in reality was a relationship of employer and employee.
The applicant does not say that the written contract is not his document. What he does say, however, is that he wanted employment. He had none from the date of his discharge from the army and the completion of his apprenticeship and when he had the opportunity to work for the respondent he did what was asked of him in completing the documents provided to him for signing. He also obtained the insurance as requested and completed the taxation forms before executing the agreement at the respondent’s office on 13 July 1995.
Generally speaking, where there is a written agreement which on the face of the agreement defines the nature of the relationship anything said or done before or subsequently by the parties should not be relied on to offer a construction of the contract inconsistent with the written agreement. Of course this general approach is not without exception as was indicated by the Privy Council in its decision in Australian Mutual Provident Society v Chaplin & Another (1978) 18 ALR 385 where it was accepted by their Lordships that the written contract may be “... amended or varied by subsequent actings of the parties, as well as by the written amendments expressly contemplated by cl 5 of Section 1. It is therefore proper to consider the subsequent actings, so far as they have been relied on by counsel in argument or by the learned judges of the Supreme Court, for the limited purpose of seeing whether they have had the effect of varying the written agreement.” (see page 392 of their Lordships’ decision).
Insofar as evidence was given of matters leading up to the entering into of the contract no issue was raised by the respondent concerning the parol evidence rule and the admissibility of evidence regarding the parties intentions and conduct prior to the signing of the agreement. For instance, the applicant relied on the representation made to him by Dwyer that the two weeks referred to in the contract was a trial period and if he was acceptable he would become part of the “team”, which statement he understood to mean that he would become an employee working on a full time basis for the respondent.
As can be seen from the conduct of the parties subsequent to entering into the written agreement the agreement was varied to such an extent that it could hardly be said that the relationship between the parties bore much resemblance to that of a principal and independent contractor or that the conduct of the parties subsequently conformed with the spirit of the written agreement.
The applicant described in some detail the work performed by him over a period of nearly five weeks’ work he alleges was performed under the strict supervision and instruction of Dwyer. He brought some of his own carpentry tools to the site each day however most of the equipment including chain saws, shovels and planes were supplied by the respondent as well as all the materials used to repair and construct the sea wall. He was not given any plans or any specific task to complete prior to entering into the agreement. Rather, each day and throughout each day, he was instructed by Dwyer on what to do, how to do it and where to do it; exercising no independent judgment concerning the task to be performed and the method of performing each task. Not all of the tasks were ones pertinent to his skills as a carpenter and joiner. In fact, much of what he did under Dwyer’s direction appeared to be general labouring duties including loading and unloading Dwyer’s truck with materials and equipment and digging and excavating around the sea wall preparatory to repairing and replacing the various parts of the wall. Each day the applicant made his way to Dwyer’s home at the time designated by Dwyer and was driven to the site where he helped set up the respondent’s tools for the day and received direct instructions from Dwyer on what task he was to perform and how he was to perform it. At the conclusion of each task Dwyer was informed and inspected the work and then instructed the applicant on the next task to be performed. For instance, to commence with the applicant and Dwyer’s apprentice were required to remove the sea wall post and wire fence and that involved the physical removal of the items, the rolling up of the wire and the stacking up of material behind the surf club before reporting to Dwyer for instructions on the next task.
The contractor Andrew was also at the site with his excavator removing sand around the sea wall and much of the labour performed by the applicant in the period alleged involved him in excavating the sand in that area with a shovel to assist the machine excavations as well as digging a trench for a storm water drain. These were all tasks performed under the direction and instruction of Dwyer. At the end of the day he was told by Dwyer when to pack up the tools, the time of this varied according to the instructions received by him and he was driven back to Dwyer’s home. By reference to the record kept by the applicant he worked in excess of the 40 hour weeks he was paid for. He alleged that when he asked Dwyer about being paid for overtime he was told that they would talk about this but these further discussions never eventuated before his dismissal. This meant that the applicant only received payment for 40 hours worked for the three weeks he worked in excess of 40 hours. In the second week when Dwyer’s wife had a baby the applicant was told when he arrived at Dwyer’s house that morning there would be no work that day and to attend at 2.00pm the following day. He was only paid for the 30.5 hours worked that week (see Exhibit A4). For the last three days worked he received no pay at all.
It was alleged by Dwyer that the applicant had agreed to travel to and from the site at his own expense and had asked for a lift which Dwyer had agreed to give him. Whilst the applicant conceded that he was not claiming travel expenses, he denied any specific discussion on or arrangement with Dwyer to that effect, pointing out that he was instructed to be at Dwyer’s home at an early hour each day and complied with that instruction. From time to time on the way to the site he was required to load the respondent’s truck and attend to collecting materials for the works. The incident on 25 July 1995, when the applicant arrived for work only to be told that there would be none for the day because Dwyer’s wife was having a baby, underscores the applicant’s argument that he was acting in response to instructions given. He had no other work on foot at the same time and he did not have work to attend on that day or the following morning while he waited for further instructions from the respondent as to when he could recommence work at the site.
THE WITNESSES
The applicant impressed me as a straight forward witness who held an honest belief that he was employed by the respondent and, after a two week trial period, was a permanent employee on the respondent’s team. It was not the applicant’s case that the respondent did not also hold an honest belief that the applicant was engaged as an independent contractor. However, notwithstanding this belief it was alleged that on balance the indicia pointed to a relationship that was one of employment.
The respondent’s case and witnesses lacked credibility and, ultimately, plausibility. Dwyer produced to the Court extracts from diary entries he alleged were made contemporaneously and as part of the site works documents. On hearing his evidence and reading some of the extracts (see Exhibit R1) I was struck by the way in which the entries appeared to tell the respondent’s story in the third person and really appeared to be written in the form of a statement or instruction prepared for this proceeding or earlier proceedings in the Magistrates’ Court where Dwyer was charged with intentionally causing injury to Andrew on 16 August 1995. That charge was heard on 8 March 1996 with the following order being made (Exhibit A7):
“Without conviction, fined $50.00 with $1142.18 costs,
Stay to 8/5/1996”
As a witness Dwyer was, simply put, evasive and unwilling to provide direct answers to questions where he perceived some risk to his version of events. There was also a lack of consistency in the evidence given. For instance, he asserted that the applicant was at liberty to attend the site and continue to work presumably as an independent contractor on 25 July 1995 during his wife’s confinement and in doing so ignored his own diary entry for that date which says (Exhibit A8):
“Tue/25/7/95 Seawall Port Campbell.
7am Paul informed Mick, Jason & Ray Andrew there would be no work on site today as Pauls wife having baby.
5pm Mick, Jason & Ray were informed to be on site 2pm Wed/26/7/95. 2.30pm Paul picked up left over nails washers & drill bits from AGs x 2 makita chainsaws from Roe Motorcycle.
9.36pm Connor Robert Dwyer born at W.D.B.H.”
It was contended by the applicant that each week he was paid by Dwyer on a Friday when they reached Dwyer’s home. He did not have to submit any invoice or entries from the Contractor Day Report book and other than for the week interrupted by Dwyer’s domestic events he received payment for a 40 hour week with a representation by Dwyer that they would talk about the overtime owed to him. He took this to be an acknowledgment of the additional hours he worked. Dwyer was vague in the evidence he gave as to how he made up the pay each week suggesting that the applicant had told him that he had lost the Contractor Day Report book in the first week. In response Dwyer asked the Court to accept that Dwyer told the applicant that because they had a contract they would continue with the contract and he would be paid for a 40 hour week.
The Dwyer brothers alleged that the applicant collected his money each week from the respondent’s office at Woodford. Further, John Dwyer attempted to corroborate his brother on certain matters relating to an alleged agreement with the applicant to deduct monies from the money paid to the applicant at the completion of the contract ostensibly for work that had not been performed properly and required redoing and for which the applicant was paid each week.
The respondent’s case on the lastmentioned matter was not a credible one. What the Dwyer brothers asked the Court to accept is that they paid the applicant each week for 40 hours irrespective of any deduction they said he agreed to have made against his entitlements for redoing work that was not done properly in the first instance, the exception being that in the week the applicant worked less hours because he was told not to attend work, he was only paid for the 30.5 hours worked. They had no way of knowing precisely how many hours the applicant would work to complete the contract and alleged that in any event the applicant had been overpaid $96.00 even if one allowed for non-payment of both the amounts owing to him over the last two and a half days he worked as well as the overtime claimed.
The respondent’s allegations on the abovementioned matters lacked plausibility. If anything, the allegations seemed to have been contrived in a rather ham-fisted attempt to meet the applicant’s claim for both overtime payments and the last two and a half days worked. Bearing all these matters in mind I have not accepted the respondent’s witnesses’ evidence and reject such evidence where it conflicts with the applicant’s on the principal issues before the Court.
EMPLOYER / EMPLOYEE RELATIONSHIP
This relationship is one which must be determined on the facts. The leading authority on this question is contained in the High Court decision in Stevens v Brodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16. At page 24 of that decision Justice Mason (as he then was) says:
“... A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it: Zuijs v. Wirth Bros. Pty. Ltd. (30); Federal Commissioner of Taxation v. Barrett (31); Humberstone v. Northern Timber Mills (32). In the last-mentioned case Dixon J. said:
“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of this work resided in the employer so that he was subject to the latter’s order and directions.”
But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty. Ltd. v. Federal Commissioner of Taxation (33); Zuijs’ Case; Federal Commissioner of Taxation v. Barrett (34); Marshall v. Whittaker’s Building Supply Co. (35). Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”
In summary the factors relevant to determining the proper characterisation of the relationship of employer/employee referred to by the High Court in the Stevens case include:
(a) the mode of remuneration;
(b) the provision of maintenance of equipment;
(c) the obligation to work;
(d) the hours of work;
(e) the provision of holidays;
(f) the deduction of income tax;
(g) the delegation of work by the putative employee; and
(h) the degree of control over the employee.
The abovementioned list is not an exhaustive one as many other factors may be relevant on a case by case basis. Indeed, it is often a very difficult task to choose between the competing concepts because the relationship under consideration has features compatible with either or both relationships. This concern was highlighted by His Honour Justice Gray in his decision in Re: Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 at page 184 where he says:
“A court determining whether a particular relationship is that of employment or of some other kind can therefore only resort to the process of balancing all of the factors, or as they are called in Stevens and other cases, the “indicia”. In truth, the result may be a matter of impression. It is unfortunate that this is so. It should not be necessary for people to obtain a decision of a court, in order to know the true nature of their relationship. Unfortunate or not, that is the case. Although the parties are free, as a matter of law, to choose the nature of the contract which they will make between themselves, their own characterisation of that contract will not be conclusive. A court will always look at all of the terms of the contract, to determine its true essence, and will not be bound by the express choice of the parties as to the label to be attached to it. As Mr Black put it in the present case, the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck.”
In the present case looking at the entirety of the contract as it emerged it was one where the respondent exercised complete and exclusive control over the work performed, the manner in which it was performed and the times and places the applicant was required to attend to perform the work. He was paid for the hours worked and believed he had an understanding that at the end of his two week trial if his work was acceptable he would join the respondent as a full time employee. This belief was reinforced when at the end of the second week Dwyer asked him to stay on which he did.
Balancing all of the abovementioned factors I have come to the conclusion that this was a relationship of employment even though the respondent went to great lengths to characterise it as one of principal and independent contractor.
THE TERMINATION
If unsuccessful on the first jurisdictional issue, the respondent argued that the applicant’s employment had not been terminated. Instead he had resigned or departed voluntarily following an altercation between Dwyer and Andrew, which altercation was eventually the subject of the charge being brought against Dwyer in the Magistrates’ Court.
Dwyer and his representative made several attempts to revisit the issue of whether Dwyer had been the victim or the perpetrator of the attack which occurred on 16 August 1995. However, the certified extract of the Magistrates’ Court order was tendered in evidence (Exhibit A7) and was relied upon by the applicant. It was of no assistance to the Court in determining whether the termination of the applicant’s employment was at the initiative of the respondent to hear evidence as to whether Andrew or Dwyer threw the first punch. What was relevant and agreed to by the witnesses is that there was a fight between Andrew and Dwyer. On observing this the applicant approached them and Dwyer spoke to the applicant after which the applicant left the site and did not return.
Broadly speaking, Andrew corroborated the applicant’s version of events insofar as the applicant says that he approached the two men when he saw Dwyer punching Andrew who was lying in the sand. The applicant called out to Dwyer to leave Andrew alone at which stage Dwyer “... stormed up to me and stood toe to toe and asked me if I wanted to have a go as well”. The applicant declined to take up the challenge and he was then told to get back to work. The applicant responded by telling Dwyer he would not stand by and “watch what was happening”. It was then that the applicant was ordered off the site by Dwyer. He did as he was told to and on the next day attended the respondent’s offices at Woodford to collect his pay. On that occasion he was told by John Dwyer that the respondent would not be paying him.
Dwyer alleges that when the applicant approached him he “shaped up” to Dwyer. This apparently meant that the applicant invited a fight and was told not to be silly and to go back to work. The applicant and Andrew denied Dwyer’s allegations indicating that Dwyer acted in an aggressive and hostile manner towards the applicant and abused him roundly before he left the site. It is more probable than not that as a result of his encounter with Andrew, which incidentally left Andrew with three broken ribs, Dwyer was further enraged by the applicant’s interference in suggesting that he leave Andrew alone. Because of this it is again more likely than not that Dwyer acted in a threatening manner towards the applicant; ultimately telling him to leave the site when the applicant questioned his actions. This conduct amounted to a repudiation of the contract of employment, which repudiation was accepted by the applicant when he left.
Accordingly, my finding is that the applicant’s employment was terminated at the initiative of the respondent.
The respondent did not open on any issues other than the jurisdictional issues although it did make a belated attempt after the applicant’s evidence-in-chief had been given to introduce performance related issues. This evidence was not admitted on any question related to the contravention of Division III Part VIA of the Act being confined to the matters to do with the accrued jurisdiction claim and the alleged agreement to deduct monies at the end of the contract period for time spent on rectifying defective work.
The respondent did not meet or discharge the burden of proof pursuant to section 170DE(1) of the Act and therefore my finding is that it contravened that section of the Act.
REMEDIES
The applicant now resides in Sydney and has been gainfully employed since 10 October 1995 in a job as a carpenter earning more than he was paid by the respondent. His present employment and domicile are matters which immediately show that reinstatement is impracticable.
On the question of compensation his claim is a limited one for $3,840.00 gross. He made no claim for damages pursuant to section 170DB of the Act, there being no evidence of notice given or compensation paid in lieu of notice at the date of termination. However, his principal claim for compensation encompasses the one week’s notice he would otherwise have been entitled to. According, the order I make is one for payment of the compensation sought as there is no reason to believe that the applicant would not have continued his labouring cum carpentry duties as instructed by the respondent for the seven or so weeks claimed even if that involved him in working at other contract sites.
I am further satisfied that there was discussion relating to overtime payments with the original agreement being for payment at a rate of $12.00 per hour. The applicant produced his records to the Court and they show 34.5 hours outstanding; that is to say, a total of $414.00 gross salary less any tax payable. Accordingly, there should be an order made for payment of this sum.
MINUTES OF ORDERS
THE COURT DECLARES THAT:
The termination of the applicant’s employment by the respondent on 16 August 1995 contravened Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $3,840.00 gross by way of compensation pursuant to section 170EE(3) of the Industrial Relations Act 1988.
The respondent pay to the applicant the sum of $414.00 gross damages.
The payments made pursuant to Orders 2 and 3 above be made within 21 days of the date of these Orders and that such payments are payable less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936 and actually paid to the Commissioner of Taxation.
There be liberty to each party to apply to the Court on reasonable notice on the amount payable pursuant to Order 4 of these Orders.
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 seventeen (17) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 8 July 1996
Solicitors for the Applicant: Desmond Dunne & Dwyer
Counsel for the Applicant: Mr S. Wood
Solicitors for the Respondent: V G Peters & Co
Appearing for the Respondent: Mr V. Peters
Date of hearing: 13 & 14 May 1996
Date of judgment: 8 July 1996
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