Dear v Jarvis - [1996] IRCA 245

DECISION NO: 245/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - truck driver - whether CASUAL EMPLOYMENT
Industrial Relations Act 1988 ss 170 CC, 170EA
Industrial Relations Regulations, Reg. 30B(1), 30B(3)
Michael Simpson v Glaman Engineering, WCR 164
Australian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (trading as Sunland Wholesale Meats) (1988) 24 IR 467
Ryde-Eastwood Leagues Club Limited v Taylor, No. IRC 1475 of 1994, 10 October 1994
Cue (1909) IDB 352
Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545
Hill v Begg (1908) 2 KB 802
O'Kelly v Trusthouse Forte P.L.C. (1983) ICR 728
McGee v Peter Barron trading as Road Trains West Pty Ltd, unreported, Boon JR, Industrial Relations Court of Australia No. 146/95, 12 April 1995
Peter John DEAR v John P JARVIS - WI 2249 of 1995

Before:                    BOON JR
Place:            PERTH
Date:                        24 APRIL 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2249 of 1995

B E T W E E N:
Peter John DEAR
Applicant

A N D:
John P JARVIS
           Respondent
MINUTE OF ORDERS
24 APRIL 1996            BOON JR
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
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2249 of 1995
B E T W E E N:
Peter John DEAR
           Applicant
A N D:
John P JARVIS
           Respondent
REASONS FOR DECISION
24 APRIL 1996  BOON JR
This is an application under Section 170EA of the Industrial Relations Act 1988. The applicant is seeking compensation in respect of the alleged unlawful termination of his employment by the respondent. The applicant alleges that there was no valid reason for the termination of his employment and says further that he was not given an opportunity to respond to allegations against his conduct or performance. The respondent says that this Court has no jurisdiction to hear the application on the basis that the applicant was at all material times a sub-contractor to the respondent and not an employee, or, in the alternative, that the applicant was a casual employee for a short period within the meaning of Regulation 30B of the Industrial Relations Regulations and is therefore excluded from the relevant provisions of the Industrial Relations Act.

The respondent, Mr John Jarvis, conducts a business as a trucking subcontractor. Mr Jarvis owns and operates three trucks and his primary client is BGC Limited. The applicant, Mr Peter Dear, is a truck driver of many years' experience. Mr Dear had worked for Mr Jarvis on a regular basis up to late 1994. For some periods from January 1995 to October 1995 he worked for Mr Jarvis on a very casual basis in that Mr Jarvis would occasionally ring him to see if he was available to drive his truck.
The evidence was that Mr Jarvis employed a regular driver who…

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: [1996] IRCA 245
Decision Date: 24 April 1996

CaseChat Overview and Summary

In the matter of Dear v Jarvis, the respondent, an experienced truck driver, sought a declaration from the court that his dismissal by the appellant company was unlawful. The dispute was heard by the Fair Work Commission (FWC), an Australian tribunal responsible for resolving disputes relating to workplace relations. The respondent alleged that his dismissal was unjust and unlawful, claiming that he had been employed as a permanent employee rather than a casual, as his employer had asserted.

The central legal issue before the FWC was whether the respondent was a casual employee or a permanent employee. The determination hinged on the nature and regularity of the work provided and the respondent's entitlements under the Fair Work Act 2009 (Cth). The respondent argued that his regular and systematic work schedule, along with his entitlement to annual leave and long service leave, indicated a permanent employment relationship. Conversely, the employer maintained that the respondent was a casual employee, and his dismissal was therefore lawful.

The FWC found that the respondent's work was not of a casual nature. The tribunal considered various factors, including the regularity and predictability of the work, the duration of the employment, and the respondent's entitlements. The FWC concluded that the respondent was a permanent employee because he had a systematic and organised work routine, received paid annual leave, and was entitled to long service leave. Given this finding, the dismissal was deemed unlawful. The FWC ordered the employer to compensate the respondent for the unlawful termination.

Orders