Michael Patrick Meehan v City of Tea Tree Gully

[1995] IRCA 693

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - independent contractor

INDUSTRIAL RELATIONS ACT 1988, s.170EA

MICHAEL PATRICK MEEHAN -V- CITY OF TEA TREE GULLY

No. SI 95/1343

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  21 DECEMBER 1995

INDUSTRIAL RELATIONS COURT             )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY           )

No SI 95/1343

B E T W E E N:

MICHAEL PATRICK MEEHAN

Applicant

- and -

CITY OF TEA TREE GULLY

Respondent

MINUTES OF ORDER

BEFORE:JUDICIAL REGISTRAR  FARRELL

PLACE  :           ADELAIDE

DATE             :           21 DECEMBER 1995

THE COURT ORDERS THAT:

1. 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  )
SOUTH AUSTRALIA DISTRICT  REGISTRY          )

No. SI 95/1343

B E T W E E N:

MICHAEL PATRICK MEEHAN

Applicant

- and -

CITY OF TEA TREE GULLY

Respondent

BEFORE         :          JUDICIAL REGISTRAR FARRELL

PLACE                      :ADELAIDE

DATE             :21 DECEMBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant claims that he was employed by the Respondent as a Cleaner and that his employment was terminated unlawfully. He seeks reinstatement.

The Applicant is a day worker employed by the Respondent for many years.  In later 1994, following the absence of another employee because of a work related injury, he entered a separate arrangement with the Respondent whereby he cleaned its offices in the evening.  In July 1995 the Respondent notified him that the arrangement was coming to an end. 

The Applicant represented himself ably in these proceedings.  He well understood the need to establish that a relationship of employer and employee existed with the Respondent in relation to his cleaning work.  He gave evidence as did Mr Barber for the Respondent.

I set out the factual matters in summary form:-

1. There was no formal arrangement between the parties.

2. The Applicant was paid at a rate higher than the relevant award.

3. Although an hourly rate was struck, there was no variation what the Applicant was paid except when problems with an alarm arose.

4. The Applicant used the Respondent’s materials and equipment.

5. There was no supervision of the Applicant.

1. The Applicant was paid for the cleaning work upon a cheque requisition being presented to the Respondent.  No tax was deducted from the money he was paid for the cleaning work.

2. On a number of occasions the Applicant was assisted by a friend of his to perform the work with the consent of the Respondent, however, the Respondent made no payment to that person.

In my view this final factor is entirely inconsistent with an employer-employee relationship between the Applicant and the Respondent.

Having considered the abovementioned matters, on balance I am of the view that the relationship between the Applicant and the Respondent was not that of employer and employee.  In these circumstances I have no jurisdiction to hear the matter and the Application is accordingly dismissed.

I certify that this and the preceding page is a true copy of the reasons for my judgment.

DATE OF HEARING             :          6 December 1995

FOR THE APPLICANT          :          Himself

FOR THE RESPONDENT      :          Mr Colgrave