Lalli-Cafini v Woolworths (Vic) P/L
[1996] IRCA 269
•28 June 1996
DECISION NO: 269/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - Employee or independent contractor.
Industrial Relations Act 1988 ss.170CA, 170CB, 170EA
CASES:
Stevens v Brodribb Sawmilling Company Proprietary Limited (1985-1986) 160 CLR 16
LALLI-CAFINI -v- WOOLWORTHS (VIC) P/L
No. VI-1182 of 1996
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 28 June 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1182 1996
B E T W E E N :
LALLI-CAFINI
Applicant
AND
WOOLWORTHS (VIC) P/L
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 26 June 1996
THE COURT ORDERS:
The Application is 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-1182 of 1996
B E T W E E N :
LALLI-CAFINI
Applicant
AND
WOOLWORTHS (VIC) P/L
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 28 June 1996
REASONS FOR JUDGMENT
The Applicant claims unlawful termination of employment. The matter was heard and determined on 26 June. The Applicant appeared in person. Mr Green appeared as Counsel for the Respondent.
At the conclusion of the hearing I dismissed the application and gave brief reasons for doing so. I also indicated that more detailed reasons would be provided in writing. These are those reasons.
The Applicant worked at Safeway in Highpoint as a Night Filler or Freezer Clerk from 14 November 1994 to 8 May 1995 when he resigned. The Applicant admitted in evidence that he did resign on that date from that position.
The Applicant also gave evidence that prior to his appointment as a Night Filler or Freezer Clerk he had worked for a Mr O’Neil who conducted deliveries for Safeway Highpoint on a contractual basis. The application for employment as Night Filler is dated 17 November 1994 and was tendered as Exhibit R1A. Details of the Applicant’s resignation on 8 May 1995 are included in an Employment Termination Report, Exhibit R10.
On 20 March 1995 the Store Manager at Highpoint, Mr Alan Webster, and an Assistant Manager (Mr Andrew Bushby) reported to the Industrial Engineering Department of Safeway the fact that an invoice had been received from the Applicant in relation to the completion of home deliveries for the week ending 13 March 1995. The memorandum (Exhibit R5) pointed out that the Applicant did not have a contract with the company, had previously worked for a contractor, Mr O’Neil, and was working at Highpoint during the night as a Freezer Clerk.
On 24 March 1995 the Applicant signed and dated a contract which was also stamped and initialled by Mr Webster. The contract provided for home delivery of items from Safeway Highpoint for an agreed price of $3 per home delivery with provision for variation on basic price for deliveries outside a 5km radius and for school orders and large items.
A Home Delivery Specification/Agreement was attached to the contract and provided that the delivery work be carried out in strict compliance with the terms and provisions of the specification. Lost or damaged goods were required to be paid in full by what was described as “the Delivery Company”. The deliverer (described as the “Home Delivery Company”) was required to be responsible to inform employees of the requirements in the contract and the specification. The specification stated that no Staff Discounts were permitted to the deliverer or to employees of the deliverer for the purchase of any goods from Safeway. The deliverer was required to show proof of a Public Risk Insurance Cover (not less than $1,000,000 cover) and was required to comply with all regulations and statutes of all Local, State or Commonwealth Authorities (e.g. Workcare, Payroll Tax, Income Tax etc). The hours of delivery service were stated to be as advised by the Store Manager and listed on the Agreement. The deliverer was required to provide a delivery vehicle which was to be road worthy with current Registration and Third Party Insurance. The Agreement was stated to be not transferable to another party without approval by the Safeway Home Delivery Manager and in the event that the delivery company ceased to operate the Agreement was to be retendered.
The contract and the attached Delivery Specification/Agreement was tendered as Exhibit R6 and the Applicant admitted that he signed and dated the Agreement and read the Agreement and the attached Specification but he denied that he was ever provided with a copy of either.
Mr Webster gave evidence that on 27 March 1995 he wrote a memo to the Applicant (Exhibit R7). The memo reads as follows:
“Home Delivery Contract
Delivery hours will be until 4:00 pm Monday - Saturday.
Deliveries to be made within 3 hours of purchase.
Delivery service must be available on Public Holidays if store is trading.
Responsibility of Home Delivery Contractor to ensure replacement driver is available if on holidays or sick.”
The Applicant signed the memo and he admitted in cross-examination that he accepted the terms of the contract and knew the terms under which he was engaged as a contractor.
Mr Frank Marturano, now Store Manager, Franklins, Brunswick, but in January 1995, Duty Manager, Highpoint Safeway, gave evidence that on 8 January 1996, in the course of a telephone conversation with the Applicant, he read the contents of the memo (Exhibit R7) to the Applicant word for word and gave special emphasis to the last paragraph of that memo.
Mr John Romley is currently an Assistant Manager at Safeway Preston. On 8 January 1995 he was the relief Assistant Manager at Highpoint Safeway. He gave evidence that between 12 and 12:30 pm on 8 January 1995 he was called to the front of the store and was introduced to the Applicant’s wife, Mrs Christine Lalli-Caffini. Mrs Lalli-Caffini indicated that she was undertaking deliveries that day for her husband. She requested an advance of $200 to pay for a rental car for deliveries and stated that if the payment was not made the rental car would be reported as stolen at 4:00 pm.
Mr Romley indicated that, in his view, it was not company policy to make such a payment and that he would not do so without the authorisation of the Store Manager, Mr Webster. Mr Romley stated that at about 1:00 pm the Applicant telephoned him and repeated the request for an advance of $200 and that he repeated the response he had given to the Applicant’s wife. A conversation ensued in relation to the Applicant’s bank accounts in which Mr Romley states:
he suggested that the Applicant draw a cash cheque for the $200
the Applicant repeated his request for a cash advance
the Applicant also stated that if he did not receive a telephone call authorising an advance by 4:00 pm there would be no deliveries undertaken by him on behalf of Safeway on the next day.
Mr Romley and Mr Marturano both gave evidence that at about 3:30 pm on that day the Applicant’s wife approached them both and wanted to know whether Mr Webster had telephoned in relation to authorisation of the advance. Both gave evidence that at about 4:00 pm Mrs Lalli-Caffini repeated her inquiry and that at this stage she seemed somewhat upset.
Both Mr Marturano and Mr Webster gave evidence that about 5:30 pm the latter telephoned the former and indicated that an authorisation for an advance would not be given.
Mr Marturano states that at this stage he tried on a number of occasions to contact the Applicant and later in the evening got in touch with him by telephone and told him that an advance would not be authorised. An argument of a heated nature seems to have occurred during this telephone conversation in which Mr Marturano claims the Applicant indicated that he would not be doing deliveries the next day or until further notice. It was at this stage that Mr Marturano read to the Applicant the complete contents of the memo written by Mr Webster on 27 March and signed by the Applicant on that day, i.e. the memo setting out delivery hours and conditions (Exhibit R7).
At this stage in the telephone conversation, Mr Marturano claims that the Applicant complained about the alleged behaviour of Mr Romley earlier in the day in inappropriately addressing Mrs Lalli-Caffini as “love”. Mr Romley, in his evidence, denied that he addressed Mrs Lalli-Caffini in these terms. The Applicant, in his evidence and in his cross-examination of Mr Romley, suggested that Mr Romley had treated his wife inappropriately and had addressed her in inappropriate but unspecified terms. It was not necessary for the Court to take these allegations any further. It is not necessary for the Court to determine whether Mr Romley addressed Mrs Lalli-Caffini in inappropriate terms. However, the Court notes that the Applicant did not call his wife to give evidence. There was, therefore, no substantiation of the allegation and a vigorous denial of the allegation by Mr Romley.
Mr Marturano gave evidence that about 30 minutes after this telephone conversation the Applicant telephoned him and spoke in abusive terms in respect of Mr Romley and was told by Mr Marturano to ring Mr Webster the next morning. Mr Marturano states that the Applicant then indicated that he was working the next day as a casual tiler and would not be available before 6:00 pm. The Applicant gave evidence that he requested the telephone number of Mr Webster at this stage. Mr Marturano declined to give it to him and confirmed this in his evidence.
Mr Webster gave evidence of:
the Applicant’s employment as a Freezer Clerk
Mr Bushby’s signature on the memo of 20 March (Exhibit R5)
a delivery contract signed by the Applicant on 24 March and initialled by Mr Webster himself
his authorship of the memo setting out certain conditions of the delivery contract (Exhibit R7)
his affidavit sworn 20 April 1996 and filed in the Court on 26 April 1996 which affidavit he adopted in his evidence (Exhibit R1)
his confirmation of relevant evidence given by Messrs Romley and Marturano
After giving evidence of the advice given to him by Mr Romley on 9 January 1996, (which evidence is also set out in paragraphs 11 to 13 of the affidavit), Mr Webster gave evidence which is completely consistent with the terms of paragraphs 14 to 16 of his affidavit.
Those paragraphs conveniently set out the substance of that evidence and are as follows:
“14. At approximately 10:30 am I telephoned the Applicant to ascertain whether the Applicant would perform the home delivery service in accordance with the terms of the Lalli-Cafini Contract. I spoke to the Applicant’s wife and we had a conversation to the following effect:
Applicant’s Wife ‘Ron (the Applicant is doing casual work as a tiler. He does not have a car in his possession and would not be turning up for home deliveries until further notice’
.
Deponent ‘It is a condition of the Contract that Ron provide the delivery service as specified in the Contract or supply an alternative driver. Otherwise the Delivery Contract may be terminated.’
Applicant’s Wife ‘He won’t be there so do what you have to do.’
In the afternoon I spoke to the Applicant by telephone and we had a conversation to the following effect:
Deponent ‘You have breached the terms of the Delivery Contract by failing to provide the delivery service on 9 January 1996.’
‘Do you want the telephone numbers of other delivery contractors in the area in order to enable you to meet your obligations under the Contract.’
Applicant‘No I do not want the numbers’
Deponent ‘If you are unable to supply the home delivery service on Wednesday 10 January 1996 or beyond, the Delivery Contract will be terminated.’
Applicant ‘Well I am not turning up tomorrow. I have a casual job as a tiler and I get more money out of it. Its not worth it if I have to hire a car.’
Deponent ‘If you cannot supply the delivery service in accordance with the Delivery Contract, and have no intention of attending the premises to perform your duties, the Delivery Contract will be terminated immediately.’
The Applicant did not on any subsequent day or days return to the store, whether personally or otherwise, or advise that he was prepared to continue providing the delivery service in accordance with the terms of the Lalli-Cafini Contract.”
At the conclusion of the hearing I found that at no relevant time was there an employment relationship between the Applicant and the Respondent. True it is that the Applicant and the Respondent had had an employer/employee relationship but the Applicant resigned his employment and admitted that he had done so.
Thereafter, the Applicant stood as an independent contractor in his relationship with the Respondent. He performed deliveries for the Respondent under contract.
There is no substance in the Applicant’s claim that the Respondent’s failure to further “formalise the contract” on or after 13 July 1995 somehow voided the agreement signed on 24 March and placed the Applicant and the Respondent in an employer/employee situation.
In this respect the Applicant seeks to rely on a letter sent to him on 13 April 1995 (Exhibit R9). The letter was from Safeway Head Office in Mulgrave and read as follows:
“Dear Mr Lalli-Caffini
We are in receipt of your completed Home Delivery contract and Specification.
Our Company will not enter into a formal agreement of this contract for a period of 3 months from this date.
We will however accept the service on a week to week basis with either party giving 7 days notice for termination.
Bill McCausland”
The fact of the matter is that the Applicant continued to deliver on behalf of Highpoint Safeway pursuant to the contract until 8 or 9 January 1996.
There is also no substance in the Applicant’s claim that a staff discount card issued while he was an employee was evidence that he performed his delivery work as an employee rather than a contractor.
I agree with Counsel for the Respondent that, using the indicia in Stevens v Brodribb Sawmilling Company Proprietary Limited (1985-1986) 160 CLR 16, per Mason J at 24, 26, 27 and 29, the totality of the relationship points strongly to a contractor relationship and does not support the Applicant’s contention of an employer/employee relationship.
As I said at the conclusion of the hearing, I go further and find quite definitely that this was not an employer/employee relationship but a relationship in which the Applicant was an independent contractor delivering goods on contract for the Respondent. I rely, in particular, on the evidence, oral and documentary, and most particularly on the Applicant’s own admissions in evidence. I refer to the following passage in Stevens per Wilson and DawsonJJ at 36 and 37:
“The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of a person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.”
The Applicant quite openly stated his position in his brief closing submission:
“It was my belief that there was a chance of me not being a contractor.”
The Applicant was an independent contractor. The application lacks jurisdiction and accordingly it was dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
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 7 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 28 June 1996
The Applicant appeared in person.
Solicitors for the Respondent: Clayton Utz
Counsel for the Respondent: Mr Nicholas Green
Date of hearing: 26 June 1996
Date of judgment: 26 June 1996
Reasons for judgment: 28 June 1996
0
0
0