Marston v Ausdoc Group Limited
[1995] IRCA 277
•30 May 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1859 of 1995
B E T W E E N
MARSTON
Applicant
A N D
AUSDOC GROUP LIMITED
Respondent
Before: Judicial Registrar Chancellor
Place: Melbourne
Date: 30 May 1995
REASONS FOR JUDGMENT (EX TEMPORE)
Revised from Draft Transcript
In this notice of motion the respondent seeks the dismissal of the application on the basis that the applicant was a casual employee within the meaning of Regulation 30B of the Industrial Relations Regulations and is therefore not entitled to the protection of the Act. The respondent also seeks an order that costs be awarded against the applicant pursuant to section 347.
The application was lodged 3 March 1995 by the applicant in person. The applicant attended at the conciliation of this matter on 4 April but has not attended at any subsequent proceedings. He was advised by this court of a directions hearing on 16 May but failed to attend on that date. At that stage, solicitors, Ryan Carlisle thought that they may be appearing on his behalf but subsequently advised that this was not the case.
The respondent had issued a notice of motion on 12 May and it was listed for hearing on 23 May before Judicial Registrar Murphy. At that time there was some problem concerning service of the notice of motion. Subsequent to that date, personal service was attempted on 22 and 23 May without success. The notice of motion was posted to the applicant's address for service on 23 May 1995 and an affidavit of service is on the court file. The solicitor acting for the respondent has attempted to contact the applicant by telephone in the past few days but without success. The applicant has been called outside the court today but there has been no appearance. In the circumstances, I am satisfied that the notice of motion has been served and pursuant to order 19, rule 5, I am entitled to proceed to deal with the notice of motion in the absence of the applicant.
Having read the affidavit in support of Alan Anthony Johnson sworn on 12 May 1995, I find that the applicant was employed on a casual basis and paid at the rate of $12.45 per hour pursuant to the Transport Workers Award. His employment commenced on 16 November 1994 and he was not rostered on after about 16 February 1995 at which date his casual employment ceased. He was informed in a telephone conversation of 16 February that he would no longer be rostered and effectively his employment was terminated by the respondent at that time. I find that he is a casual employee within the meaning of Regulation 30B and therefore falls outside the protection of the act.
The application is therefore dismissed.
In relation to the question of costs, I note that the applicant engaged solicitors prior to the lodging of the application and by letter dated 17 February 1995 from Shatin Bernstein, solicitors, a demand was made on the respondent with respect to the termination of employment. The solicitors for the respondent wrote to Shatin Bernstein confirming their instructions that the applicant was a casual employee and was not entitled to seek relief pursuant to section 170EA of the Industrial Relations Act and also outlining valid reasons for the cessation of employment.
That letter indicated that any proceeding would be strenuously defended and orders for costs sought against the applicant pursuant to section 347 of the Industrial Relations Act 1988. Given that the applicant had ample warning of the problems with his case prior to the issue of the application, I am satisfied that the application was commenced without reasonable cause and I propose to order that the applicant pay the respondent's costs to be taxed by the Registrar.
THE COURT ORDERS THAT:
That application is dismissed.
2..The applicant pay the respondent’s costs to be taxed by the Registrar.
I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor.
Associate:
Dated:
No appearance for the Applicant
Solicitors for the Respondent: Sly & Weigall
Counsel for the Respondent: Mr L. Jones
Date of hearing: 30 May 1995
Date of judgment: 30 May 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CASUAL EMPLOYMENT - COSTS
Industrial Relations Act 1988 ss.170 CC, 170 EA, 347
Industrial Relations Regulations - Regulation 30B
CASES:
MARSTON -v- AUSDOC GROUP LIMITED
No. VI 1859 of 1995
Before: Judicial Registrar Chancellor
Place: Melbourne
Date: 30 May 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1859 of 1995
B E T W E E N
MARSTON
Applicant
A N D
AUSDOC GROUP LIMITED
Respondent
MINUTES OF ORDERS
Judicial Registrar Chancellor 30 May 1995
THE COURT ORDERS THAT:
That application is dismissed.
2..The applicant pay the respondent’s costs to be taxed by the Registrar.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI1859 of 1995
BETWEEN
MARSTON
Applicant
AND
AUSDOC GROUP LIMITED
Respondent
Before: Judicial Registrar Chancellor
Place: Melbourne
Date: 30 May 1995
CORRIGENDUM
On page 3, for Counsel for the Respondent, delete the word
“Mr L. Jones” and insert in lieu “Mr L.A. Johns.”
Associate:
Dated: 23 August 1995
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