Hill v BSG Bakeries Pty Ltd
[1997] IRCA 114
•08 April 1997
DECISION NO:114/97
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - undefended application - family dispute - deliberate delay in determination - contract for services or contract of service - preparation and execution of document of release
Workplace Relations Act 1996 ss.170CC, DE, EA.
HILL -v- BSG BAKERIES PTY LTD
No. VI-4921 of 1995
Before: Ryan JR
Place: Melbourne
Date: 8 April 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-4921 of 1995
B E T W E E N :
PHILIP HILL
Applicant
AND
BSG BAKERIES PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 8 April 1997
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-4921 of 1995
B E T W E E N :
PHILIP HILL
Applicant
AND
BSG BAKERIES PTY LTD
Respondent
Before: Ryan JR
Place: Melbourne
Date: 8 April 1997
REASONS FOR JUDGMENT
The Applicant seeks compensation in a claim of unlawful termination of employment. He was a driver with the Respondent company. The Respondent is a bakery and distributes products interstate. The primary duties of the Applicant were those of an interstate truck driver.
The Respondent filed a notice of appearance but otherwise did not participate in the proceedings. The Australian Industrial Relations Commission issued a Certificate indicating that it had been unable to settle the matter. There is no indication on the Certificate as to whether or not the Respondent participated in a conciliation conference.
The hearing proceeded as an undefended matter with the Applicant represented by Counsel. Several aspects of the hearing were unusual including:
the “family” relationship between the parties, with the Applicant and his wife giving evidence of an apparent breakdown in the employment relationship with the proprietors and managers of the Respondent business, who were the father and brother of the Applicant’s wife
evidence of payments made to the Applicant, or to his wife, which payments could be construed as settlement or part settlement of the Applicant’s claim and/or a dispute of which the Applicant’s wife gave evidence. She stated that the dispute was between her brother and herself and related to what she considered unfair treatment of her husband (the Applicant) after he broke his leg
evidence of negotiations between the Applicant and the Respondent which were capable of leading, and may have led to, a relationship between the Respondent and Applicant of principal and independent contractor
evidence of a document (Exhibit A4) which bears some of the hallmarks of a release and which document appears to be signed by the Applicant and the managing director of the Respondent company
the real possibility that the matter had settled or would settle and that a determination by the Court was likely to damage (or exacerbate existing damage) to the personal and professional relationships between the Applicant and his wife on the one hand and the proprietors of the Respondent company on the other.
For all those reasons, and particularly because of the last aspect, a determination was deliberately delayed.
On 12 September 1996 the Court directed that the above aspects be put in writing to the solicitors for the Applicant and that the solicitors be advised that if a determination was still sought it was proposed to list the matter for a further Directions Hearing which would involve, initially, only the Applicant and/or his legal representatives. The Directions Hearing was suggested on the basis that it would allow clarification of certain matters outlined in (ii) to (v) above.
It would seem that the solicitors for the Applicant experienced some difficulty in obtaining instructions from their client. Indeed, on 25 October the solicitors filed a Notice of Withdrawal but on 19 November filed another Notice of Appointment as solicitor. The Court has received no further formal advice from the solicitors since the filing of the Notice of Appointment of solicitor on 19 November although it is understood that there were instructions to or from the Applicant in relation to the possible production of relevant financial information, e.g. bank records. In the circumstances the Court proposes to determine the matter on the basis of the evidence before it.
The Court is not satisfied that the Applicant was in an employee/employer relationship with the Respondent at the time when the Applicant alleges termination of his employment occurred.
If there was a termination of the Applicant as an employee, the Court is of the view that Exhibit A4 would have led and may have led to a settlement of the Applicant’s claim on the conditions set out therein. The Court is not satisfied that the claim was not settled in accordance with the terms in the release (Exhibit A4) and, as previously indicated, is not satisfied that the Applicant was an employee at the time of the alleged termination.
Given the doubts about jurisdiction and a real possibility that the claim in any event has settled, I propose to dismiss the application.
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 2 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 8 April 1997
Solicitors for the Applicant: Ryan Carlisle Thomas
Counsel for the Applicant: Mr Oliver
Date of hearing: 18 March 1996
Date of judgment: 8 April 1997
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