John Riches v Australian College of Photography, Art and Communication Pty Limited

[1995] IRCA 28

INDUSTRIAL RELATIONS COURT

OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1255 of 1994

B E T W E E N :

JOHN RICHES
Applicant

AND

AUSTRALIAN COLLEGE OF PHOTOGRAPHY,
ART & COMMUNICATION PTY LIMITED
Respondent

Before:       Judicial Registrar Millane
Place:         Melbourne
Date:          13 February 1995

REASONS FOR JUDGMENT

By an application made on 3 August 1994 pursuant to Section 170 EA of the Industrial Relations Act 1988 (the Act) the Applicant contends that on 22 July 1994 his employment as a teacher at the Respondent college was unlawfully terminated. The Applicant seeks compensation under the Act rather than reinstatement.

During the course of a two and a half day hearing the Respondent’s first contention was that the Applicant was not an employee within the meaning ascribed to that word by Section 4 of the Act. If it was unsuccessful in its first contention the Respondent sought to justify the termination of the Applicant’s employment by relying on three performance based allegations which can be loosely described as:-

(a)poor administration leading to the appointment of an administrator in June 1993;

(b)     poor teaching performance and being out of touch with        contemporary requirements;

(c)the failure to complete the coordination of the college’s application for further certification of its course.

There are other matters the Respondent’s witnesses dwelt upon in passing none of which were dealt with in a substantial way.

Despite the lengthy hearing exploring both the threshold question and the performance related issues the Respondent in its submissions conceded that it had not established a basis for saying there had been a lawful termination of the Applicant’s employment if the court found that there was an employer/employee relationship in existence as at 22 July 1994.  Accordingly, it withdrew from any attempt to justify the alleged termination and focused its submissions on the preliminary issue.  A late but nonetheless welcome acceptance that procedural fairness in the termination process requires something more than oblique references to the Applicant’s teaching methods as being “out of touch”.  The diffidence shown by the other directors of the Respondent college in not counselling and warning the Applicant is consistent with a belief, whether that belief was correctly held or not, that the Applicant was not an employee of the Respondent college but an equal shareholder in the company and a member of a board of directors where each member had the right to vote and the chairman retained a casting vote.

The following witnesses were called:-
(a)     By the Applicant:-

(i)the Applicant.

(b)By the Respondent:-

(i)Graeme Heath;

(ii)David John Brown.

The Background

The 51 year old Applicant was an impressive and straightforward witness.  He has worked in photography since at least 1963 when he started work with Athol Smith and John Cato Pty Ltd for three years and thereafter established his own commercial photographic business in Carlton for some six to seven years before returning to work with his original employer for a further year.  Thereafter the Applicant did some freelance work and started producing landscape art photography, collected and exhibited by the National Biblotech in Paris and the National Gallery of Victoria.  From 1973 the Applicant worked with Beaver Printing in photography before being approached in about 1974/1975 to lecture at the Photography Studies College (PSC).  He remained at PSC for some ten years whilst continuing to work on his landscape art photography collection.  The Applicant commenced lecturing with PSC part-time and moved to full-time lecturing.  PSC is a privately owned college and some three years before he left the college he acquired a shareholding in the college until he sold it in about November 1986, having left the college with another photography lecturer, Tony Perry (Perry).

In about November 1986 the Applicant, along with at least six others who included Perry, Graeme Heath (Heath) and David John Brown (Brown), agreed to start a new college and to that end incorporated the Australian College of Photography Art and Communication Pty Limited (ACPAC).

The abovementioned men were a part of ACPAC’s original board of directors and shareholders and remained so until July 1994.  In that month Perry resigned from the board of directors and on 8 August 1994 the Applicant tendered his resignation as a director.

The shares in the college were held equally and the directors on various occasions advanced loans to the company some of which were repaid during the years between 1987 and 1994.

It was not disputed that the Applicant selected the site for ACPAC and played a significant role in establishing the college and in gaining the required accreditation from various authorities, including the Australian Institute of Professional Photography, for the courses offered.

Mr Meredith, who represented the Respondent at hearing, sought to prove that as a director the Applicant assumed certain duties such as full-time teaching at ACPAC in circumstances where the assumption of those duties did not give rise to an employer/employee relationship.

ACPAC took students from early 1987 at its city campus and, from the commencement of its teaching program, both the Applicant and Perry lectured in different disciplines at ACPAC.  Neither Heath nor Brown, both of whom lacked any background or skill in photography, played what was described as a “hands on” role in the administrative and teaching functions of ACPAC other than in their role as members of the board.  Other support staff were employed at the college as well as sessional teachers, paid at an hourly rate for their services.

Initially, the Applicant had the option and chose to be employed on what he referred to as “...a contract basis, or sub-contract basis where I was paid a gross amount from which I organised taxes and all those sorts of things”.  On the other hand, Perry from the date ACPAC commenced its operations until he resigned in 1994 was employed as a PAYE employee of ACPAC.

It was contended by the Applicant that Brown, who is both a director and ACPAC’s accountant, expressed the view that the arrangement whereby the sum of $42,500.00 gross per annum was paid by ACPAC to the Applicant’s own company for the Applicant’s teaching and administrative services was not appropriate from a taxation point of view.  According to the Applicant Brown strongly recommended “...that I become a regular PAYE employee of the company”.  Brown denied this recommendation but acknowledged that from at least July 1987 the Applicant was paid and treated as a PAYE employee of ACPAC.  He continued to be paid at the gross rate of $42,500.00 and was shown in the company’s profit and loss sheets as an employee.  The only variation in his payments occurred in 1991 when ACPAC granted him a $3,000.00 per annum, car and travel allowance.

There was never any discussion of entitlement to payment for sick leave and holidays; although the Applicant on the occasions he was away sick continued to be paid the monthly salary of two weeks in advance and two weeks in arrears.  The Applicant took four weeks holiday each year and was paid at the same rate without exception.  From 1993 ACPAC also paid superannuation payments as it was legally required to do.

Broadly speaking, the Applicant’s duties included lecturing and tutoring students at all levels in the college and consulting with the students about their photographic folios.  Apart from this work the Applicant was also engaged in the preparation of timetables, preparing tutor payment schedules, supervising the monthly balance sheets of debtors and preparing a computerised debtor system for the college, interviewing prospective students, establishing an academic record system, maintaining a colour processing machine and contributing to curriculum development.

At no stage did the Respondent seek to show that the abovementioned duties were performed by the Applicant as an independent contractor.  It simply relied on the negative averment that he was not an employee.  To that end the Respondent argued that the Applicant was at liberty to engage in any other work if he chose to, however, it was not disputed that he in fact worked exclusively for the college from 1986 onwards and this work was his principle economic activity.  Even though the Applicant was not bound by an agreed roster or timetable for his attendance at ACPAC he gave evidence that he attended the college between 8.00 am and 6.00 pm and when giving evening lectures he remained until 9.30 pm or later.

It was alleged by Heath and Brown that because the Applicant was a member of the board of the college he was essentially autonomous in his activities and could chose his hours of employment.  This allegation, however, is inconsistent with the concession made by Brown that at some time in 1993 the board had to “speak” to Perry about “...the fact that he wasn’t putting in the - what we believed was the required effort”.  This statement referred to Perry’s late arrivals and his failure to attend to certain studio duties.  From this I infer that had the Applicant been less diligent in meeting his arrival times and tasks the board would have believed it appropriate to “speak” to him also.

The Applicant did not provide any of his own equipment for use in performing his duties at ACPAC.  He did not have the autonomy, for instance, to make substantial financial commitments on behalf of ACPAC in the purchase of equipment.  At best, he could vote in favour of or against decisions at board meetings if those decisions were put to the vote and because of his recognised specialised skills the Applicant could make recommendations to the board on the purchase of equipment and other matters to do with the course structure and administration of the college.  In cross examination Brown agreed with the proposition that where the board had the requisite experience it made executive decisions but where it lacked the experience and expertise it relied on the recommendations of the Applicant and Perry.  Notwithstanding this, on the evidence at all times the board retained an overall supervisory power and the Applicant was required to regularly report to the board on college activities.

The Applicant’s uncontested evidence was that from July 1993 there were significant changes made in the running of the college.  The Applicant was on vacation in July 1993 and on his return was told by Heath that the responsibility for the administration of staff had been transferred to Rubin Miller (Miller) who was ACPAC’s Registrar.  The Applicant had no quarrel with this decision because he was at that time also fully engaged teaching, sometimes more than 20 hours per week, which in itself was regarded as a full time job.  In the latter part of 1993 it was also suggested to the Applicant that someone else take over the head tutoring role.  Because this relieved the Applicant of some 3 hours of tutoring per week and reduced his responsibilities he did not object to this change either.

From at least mid-1993 there was debate as to the future direction of ACPAC on the courses it should offer.  This led to open conflict between the Applicant and Perry, the former favouring a commercial arts course and the latter plumping for a non-industry oriented pure fine arts course.  The conflict appears to have generated the view that the Applicant was “out of touch” and some argument relating to his performance as a teacher.

Financial pressures brought about by low enrolments, amongst other things, led to the Applicant and Perry increasing their teaching load to reduce the cost of sessional teaching in early 1994, even though at that time the board had instructed the Applicant to prepare and co-ordinate a submission for further accreditation of ACPAC’s courses.

During the Applicant’s July vacation in 1994 a special meeting of the board was convened on or about 7 July 1994.  The Applicant broke his holiday to attend that meeting.  Those present included the Applicant, Heath, Brown, Perry, John Buckley (another director who did not give evidence) and Miller who had been attending the director’s meetings for some months.

At the abovementioned director’s meeting the court was told that Perry resigned because he felt his views were incompatible with those of the other directors.  He then left the meeting.  It is alleged by the Applicant that Heath then told the meeting that:-

“forty-eight hours prior to that they had approached Rubin Miller to put in a submission as for him to becoming (sic) general manager of the college in taking over the complete control of the day to day running of the college.”

The Applicant denied that any vote including his vote was taken on this proposal.  The Respondent contested that point but was unable to produce any minutes or other corporate documents to show that any vote was taken.
The director’s meeting was significant not only because of Miller’s promotion to general manager with a salary increase but also because Miller was placed in charge of negotiating a proposed amalgamation between ACPAC and another college, the Melbourne School of Arts at Glenhuntly.  More importantly, Miller put a proposal to the meeting that all teaching staff be employed on a sessional basis at the rate of $35.00 per hour.  The Applicant denied any input into that proposal and the ultimate decision in favour of that proposal and pointed out that, whilst there was an arrangement for Miller to see the other teaching staff on the following Monday to discuss this proposal, there was no arrangement made with him for clarification of what this decision, if taken, meant to him.

The Applicant returned to his vacation, a further board meeting to deal with staff and amalgamation issues having been scheduled for the following Tuesday 12 July 1994.  The Applicant in fact missed this meeting because he mistakenly believed the meeting was on the Wednesday and only realised his mistake on the Tuesday afternoon.

It was the Applicant’s contention that on the Tuesday afternoon once he realised his mistake he rang Heath and asked him if he, the Applicant, still had a job.  Heath’s response was equivocal and he expressed a reluctance to speak to the Applicant on the telephone about the matter.  The Applicant was concerned and rang Heath again arranging to meet him at 9.00 am on the following morning.

Heath was rather vague when it came to recalling dates and telephone conversations and could not, for instance, recall the telephone conversations on 12 July 1994, even though he agreed with the Applicant that a meeting took place on 13 July 1994.  I did not interpret Heath’s responses as being evasion on his part, rather he showed poor recollection and poor grasp of the events leading up to this dispute.  Brown seemed to have some recollection of the conversations referred to on 12 July 1994 occurring between the Applicant and Heath leading to the meeting on 13 July 1994.

When Heath, Brown and the Applicant met on 13 July 1994 the Applicant alleges that he was told by Heath that all tutors were to go on to sessional teaching with Miller being in charge of all of the tutorial staff including the Applicant.  After telling the Applicant this the Applicant alleges Heath moved to what the Applicant described as “vague allegations” about the Applicant’s teaching and his performance.  Apart from a discussion about timetables and performance related issues the Applicant pressed to know what hours he would teach and the effects on his income and was told “they did not know”.

Brown’s evidence tended to support that given by the Applicant and, in particular, he expressed the view that Heath was unable to tell the Applicant the hours he was teaching because Miller had not at that stage completed the new timetable for the next semester.

Heath believed that it had been made clear to the Applicant there would be no further teaching for him and the Applicant was to devote himself to the completion of the accreditation submission he had been asked to do earlier in 1994.  Subsequent events show that Heath’s belief was not accurate.  The Applicant returned to work from vacation on 18 July 1994 and, having not heard by 21 July 1994 from Miller about the Applicant’s teaching timetable, rang Miller.  According to the Applicant, Miller told him that the timetable had not been completed and generally avoided the Applicant’s questions.  Later the same day Brown rang the Applicant and arranged a meeting between Brown, Heath and the Applicant on the following day, 22 July 1994.

It was agreed that on 22 July 1994 Heath told the Applicant he had misunderstood his position, there was no further teaching for the Applicant and Heath reiterated various allegations concerning the Applicant’s performance.  According to the Applicant the meeting ended with Heath offering to speak to Miller about arranging some teaching classes for the Applicant but none were ever offered to the Applicant subsequent to that date.  This last contention was not put to either of the Respondent’s witnesses although it was agreed that the Applicant had not remained at ACPAC after 22 July 1994.

In his evidence in chief Heath expressed the view that on 13 July 1994 he told the Applicant there was no teaching available for him.  In cross examination Heath conceded that he personally and the board (whomsoever that comprised), had come to the decision “over quite a long period of time” that the Applicant should be removed from teaching.  This decision had been formulated in “very private chats” between members of the board, not through any formal meeting or vote on the issue.

The Employer/Employee Relationship

Section 4 of the Act which interprets the word “employee” to include any person whose usual occupation is that of employee is of very little assistance in determining whether there was an employer/employee relationship in existence.  Because of his various periods of self employment since 1963 the Respondent did attempt to suggest that the Applicant’s usual occupation was not that of employee.  Such an argument begs the very question whether since 1986 or 1987 an employment relationship existed which, if it existed, would no doubt be construed as the Applicant’s usual occupation.

The only way to determine the question posed is by reference to a substantial body of case law developing a number of indicia to which a Court looks for assistance.  Gray J’s observations in Re Porter; Re Transport Workers Union of Australia 34 IR 179 at page 184 are helpful in identifying the problem:

“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.”

The impression and the inference I draw from the evidence called in this case is that from at least July 1987 if not December 1986 the Applicant was an employee of the Respondent.  It was argued by the Respondent that the Applicant and Perry had specialist skills to which the Respondent and the other board members deferred.  The Respondent attempted to establish that the administration and teaching responsibilities undertaken by the Applicant were undertaken because he had those skills but such duties were not the subject of any control or direction by the board because of the Applicant’s specialist knowledge.  The Applicant quite rightly pointed to the High Court decision in Zuijs v Worth Brothers Pty Ltd (1955) 93 CLR 561 where four members of the Court said at page 571:-

“The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for directional command in detail may exist.  But that is not the point.  What matters is lawful authority to command so far as there is scope for it.  And there must always be some room for it, if only in incidental or collateral matters.”

It is not enough for the Respondent to say that its board relied on recommendations from the Applicant in matters to do with the administration of the college, teaching and the purchase of equipment.  What matters in this case is that ultimately the board had the authority to supervise the Applicant’s performance of his responsibilities and essentially control the day to day performance of his college activities either through its decision making processes, when it chose to put an issue to the board for a vote other than by “very private chats” between members of the board, or through its Registrar and general manager Miller who determined the extent of the duties allocated to the Applicant.

As Mason J observed in Stevens v Brodridd Saw Milling Co. Pty Ltd (1985-1986) 160 CLR 17 at page 24:-

“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...”

On the facts of this case the Respondent retained the legal authority to direct and control the Applicant.  Arguably the Applicant was also an integral part of the Respondent’s organisation and this too being relevant, but not necessarily decisive consideration, in determining whether there was a contract of service (see Stevens case at page 25).

The Respondent’s case was very much concerned with the Applicant’s role as a director and shareholder in the Respondent college.  The Applicant quite appropriately argued that there was no inconsistency between those roles.  To support this proposition the Court was referred to the decision of the Privy Council in Catherine Lee v Lees Air Farming Ltd (1961) A.C. 12. In Lee’s case the deceased had founded the company to carry on a business, was a controlling shareholder, governing director and was employed on a salary as the company’s chief pilot.  On the facts of that case the Privy Council had no difficulty in determining that, despite the deceased’s dual role, he was at the relevant time a servant of the company.  In making its decision the Court had regard to a number of authorities expressing the view that it would not be inconsistent for a director also to be a servant of the company.  At pages 26 and 27 of its decision the Privy Council said:-

“In their Lordships view it is a logical consequence of the decision in Solomon’s case that one person may function in dual capacities.  There is no reason, therefore, to deny the possibility of a contractual relationship being created as between the deceased and the company.  If this stage is reached then their Lordship see no reason why the range of possible contractual relationships should not include a contract for services, and if the deceased as agent for the company could negotiate a contract for services as between the company and himself there is no reason why a contract of service could not also be negotiated.  He said that therein lies a difficulty, because it is said that the deceased could not both be under the duty of giving orders and also be under the duty of obeying them.  But this approach does not give effect to the circumstance that it would be the company and not the deceased that would be giving the order.  Control would remain with the company whoever might be the agent of the company to exercise it.  The fact that so long as the deceased continued to be governing director, with amplitude of powers, it would be for him to act as the agent of the company to give the orders does not alter the fact that the company and the deceased were two separate and distinct legal persons.  If the deceased had a contract of service with the company then the company had a right of control.  The manner of its exercise would not effect or diminish the right to its exercise but the existence of a right to control cannot be denied if once the reality of the legal existence of the company is recognised.  Just as the company and the deceased were separate legal entities so as to permit of contractual relations being established between them, so also were they separate legal entities so as to enable a company to give an order to the deceased.”

Between at least July 1993 and July 1994 the board whittled down the Applicant’s administrative and teaching duties.  By July 1994 the Applicant was at first led to believe that he would be offered at least sessional teaching and then told, because of his performance, there would be no more teaching and, presumably no further income.
In Porter’s case Gray J, whilst reiterating that there is no prescribed list of factors which will be examined to determine the nature of the contract, said at page 184 and 185 of that decision:-

“For instance, a party may be described as an independent contractor, and the contract may even provide expressly that he or she is at liberty to provide services to other persons outside of the contract.  The reality may be that economic considerations dictate that work will only be accepted from the other party to the contract.  There was evidence in the present case to the effect that, for practical purposes, an owner/driver who is heavily indebted to a finance company for the hire purchase of a truck is less independent than a person who is employed to drive a truck owned by the employer.  The employee driver may leave and seek a job driving any sort of vehicle with any other employer.  The owner/driver must be assured of a steady supply of work in order to keep up the payments in respect of the truck, and can only take work for which the particular truck is suitable.  There is also evidence that, in some cases, owner/drivers are reluctant to exercise the notional freedom which they may have to refrain from presenting themselves for work on particular days at their own choice.  Evidence was given of a practice of withholding work from owner/drivers for some periods, by way of reprisal for their failure to attend and perform services as desired.  In such circumstances, there is no particular reason why a court should ignore the practical circumstances, and cling to the theoretical niceties.  The level of economic dependence of one party upon another, and the manner in which that economic dependence may be exploited, would always be relevant factors in the determination whether a particular contract is one of employment”.

The Respondent was keen to show that the Applicant was free to undertake other income earning activity as a photographer presumably outside teaching hours at the college but seems to have ignored the practical reality of the Applicant’s economic dependence on his full-time activities at the college.  It is instructive to note that both Heath and Brown were not “hands on” directors, both having full time occupations outside their activities as members of the Respondent’s board of directors.

The concessions made by the Respondent in its submissions coupled with my finding that the Applicant was employed by the Respondent at the relevant time lead to the conclusion that on 22 July 1994 the Applicant’s employment was unlawfully terminated at the initiative of the Respondent.

Remedies

The Applicant did not seek reinstatement.  At first the Respondent appeared to be of the same view.  However, as the hearing progressed it was argued by the Respondent that the Applicant had been offered reinstatement in a non-teaching role after 22 July, 1994 and the issuing of this proceeding and had refused such offer.  In the Respondent’s view, if it was unsuccessful in convincing the court that the Applicant was not an employee of the college, the college should reinstate this Applicant.  This was even though the Respondent gave evidence that the proposed amalgamation of the college had proceeded and the Applicant’s former teaching position no longer existed.  The Applicant tendered in evidence a letter dated 9 August 1994 from the Respondent written by Heath to the Applicant (Exhibit A4).  That letter, amongst other things, suggested that the Applicant was still an employee of the company but, in order for his employment to continue, he would have to attend the college and complete the draft application for accreditation, the draft application for degree status, accept decisions from Miller and, because of the financial pressures faced by the college, assure the board that he was able to meet a further commitment as a director of between $10,000.00 and $15,000.00.  The letter appears to have crossed notification to the board of the Applicant’s resignation as a director from 8 August 1994.

Heath in cross examination agreed that any proposal for the Applicant to return to employment was conditional upon the Applicant providing the additional loan funds to the college.  It was agreed by Brown in cross examination that the company had made a representation to the Commonwealth Bank in relation to the company’s financial facilities after 22 July 1994 on the basis that the Applicant was still at the college.  He further agreed that it would be advantageous to the college, because of its financial concerns, to have the Applicant return and to have the injection of the further capital from him.

The abovementioned facts could hardly be said to constitute an offer to reinstate the Applicant to his former position.  I am of the view that reinstatement is impracticable because:-

(a)The Applicant has since leaving the college retrained to work as a court reporter, albeit on a casual basis;

(b)The Applicant has resigned as a director of the company and would incur a financial penalty or liability if he were to resume work at the college in his dual capacity as a director and employee;

(c)The amalgamation of the college and the changes made to get rid of full time teachers, since at least July 1994 have dispensed with the Applicant’s former position;

(d)The Applicant had a close working relationship with Heath and Brown and on his evidence would experience some difficulty in working in close proximity because of a lack of trust arising out of the purported termination of his employment;

(e)There is an ongoing legal dispute between the college and the Applicant over the recovery of past loans advanced whilst the Applicant was a director of the Respondent company.

As a consequence of the termination of his employment the Applicant and his family could not afford the rent payments on his family accommodation.  This required the Applicant and his wife to move to a small apartment.  According to the Applicant this move meant that the Applicant’s 20 year old daughter, who had been living at home, had to find alternative accommodation at her boyfriend’s home.  The court was asked to take this matter into account when assessing compensation.  However, I am not satisfied that this evidence of itself is sufficient to establish a compensable loss causally connected with the unlawful termination.

Following the termination of his employment the Applicant obtained casual employment packing books from the first week of August 1994 and continued that work until early December 1994.  He also commenced training as a court reporter in September 1994 and obtained the required licence in November 1994.  He has worked as a court reporter since that time but is subject to the vagaries of casual employment.  He did not give evidence of what income he expected to gain in this new position.  To the date of hearing the sum of $5,556.00 was earned from the income earning activities undertaken by the Applicant since the termination.
Despite his impressive qualifications as a photographer and his teaching experience the Applicant has not found employment in his chosen career.  As he pointed out, most photographers are self employed.  He did not give evidence on whether he intended or believed he was personally and financially able to follow this line of employment and enter business on his own account.

The Respondent breached Section 170 DB of the Act in not giving the Applicant four weeks pay in lieu of notice. On a package of $45,500.00 per annum which includes the car and travelling expenses, the sum payable by way of damages is $3,791.67.

The Applicant is a non-award employee and in all the circumstances, particularly taking into account the uncertainty of his current casual employment and the loss of his secure position with the college he helped to establish, I consider an appropriate award of compensation to be $15,000.00.

MINUTES OF ORDERS

THE COURT DECLARES:

1.That in terminating the employment of the Applicant the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.

AND FURTHER ORDERS:

2.That the Respondent pay the Applicant damages pursuant to Section 170 EE(5) of the Industrial Relations Act 1988 in the sum of $3,791.67.

3.That the Respondent pay the Applicant compensation in the sum of $15,000.00.

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 twenty-one (21) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.

Associate:            
Dated:  13 February 1995

Solicitors for the Applicant:    Messrs Mahony Galvin Rylah
Counsel for the Applicant:     Mr P Ginnane

Solicitors for the Respondent: Australian Chamber of Manufacturers
Counsel for the Respondent:   Mr Meredith

Date of hearing:  13 & 14 December 1994
Date of judgment:                   13 February 1995

C A T C H W O R D S

INDUSTRIAL LAW -Termination of employment - employer/employee relationship - director/shareholder of company also servant of company.

Industrial Relations Act 1988 ss. 4, 170DB, 170 EA, 170 EE, 170 EE(5)

CASES:Re Porter; Re Transport Workers Union of Australia, 34 IR 179

Zuijs v Worth Brothers Pty Ltd (1955) CLR 561

Stevens V Brodridd Saw Milling Co. Pty Ltd (1985-1986) 160 CLR 17

Catherine Lee v Lees Air Farming Ltd (1961) A.C. 12

JOHN RICHES-v- AUSTRALIAN COLLEGE OF PHOTOGRAPHY, ART & COMMUNICATION PTY LIMITED

No. VI 1255 of 1994

Before:  Judicial Registrar Millane
Place:  Melbourne
Date:  13 February 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1255 of 1994

B E T W E E N :

JOHN RICHES
         Applicant

AND

AUSTRALIAN COLLEGE OF PHOTOGRAPHY,
ART & COMMUNICATION PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Millane       13 February 1995

THE COURT ORDERS AND DECLARES:

1.That in terminating the employment of the Applicant the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.

AND FURTHER ORDERS:

2.That the Respondent pay the Applicant damages pursuant to Section 170 EE(5) of the Industrial Relations Act 1988 in the sum of $3,791.67.

3.That the Respondent pay the Applicant compensation in the sum of $15,000.00.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.