Pope v Montedeen Pty Ltd

[1997] IRCA 236

DECISION NO:236/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - termination of employment arrangement at initiative of employee - employee or independent contractor

Workplace Relations Act 1996 ss.170CA, 170CB, 170DE and 170EA

CASES:

Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16

Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200

POPE -v- MONTEDEEN PTY LTD

No. VI-1610 of 1996

Ryan JR
Melbourne
4 August 1997

INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-1610 of 1996

B E T W E E N :

DAVID POPE
Applicant

AND

MONTEDEEN PTY LTD
trading as DELTA CAR TRUCK RENTALS
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan        4 August 1997

THE COURT ORDERS:

1. 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-1610 of 1996

B E T W E E N :

DAVID POPE
Applicant

AND

MONTEDEEN PTY LTD
trading as DELTA CAR TRUCK RENTALS
Respondent

Ryan JR

Melbourne

4 August 1997

REASONS FOR JUDGMENT

This is an application for compensation in a claim of unlawful termination of employment.

At the conclusion of the hearing I indicated that an initial assessment of the evidence suggested that the employment relationship was not that of employer and employee and that the employer did not initiate the ending of the relationship whatever that relationship might have been.

The bulk of the evidence, including much of the evidence of the Applicant, suggests a loose and undefined arrangement between September 1995 and March 1996 whereby the Applicant acted as a consultant. If that was so, the present claim of unlawful termination of employment would fail for lack of jurisdiction. It is not necessary to make a finding on that issue.

The Applicant has failed to demonstrate that the relationship with the Respondent, if it were a relationship of employer and employee, was ended by the Respondent at the initiative of the Respondent as employer. The overwhelming weight of the evidence is that the Applicant brought the relationship to an end. In the circumstances, the Applicant’s claim lacks jurisdiction and must be dismissed.

The Applicant gave evidence on his own behalf. The Respondent called four witnesses

• Catherine Lando, secretary

• Pamela Fielden, payroll officer

• Mario Salvo, Managing Director

• Julie Davidson, Clerk

It is not necessary to detail the evidence given over four days. A great deal of time, perhaps an inordinate amount of time, was spent on the circumstances surrounding the raising and payment of cheques. The butts recording cheques dated from 15 September 1995 to 27 March 1996 were tendered as Exhibits R1 to R11 and Exhibit A7. A final cheque, cashed by the Applicant and made out to D and L Fencing in the sum of $3,005.08 was tendered as Exhibit A5.

The Court has concluded that between 15 September 1995 and 19 March 1996 fifteen cheques were made out to painting, plumbing, fencing, building, surveying and building supply firms. Cheques were made out in that form at the request of the Applicant and, at his request, most or all were made out to cash and were cashed by him or on his behalf.

The cheques represented payments to the Applicant for services provided by him. By and large, the cheques were made out on a fortnightly basis between September 1995 and March 1996. Most represented payments of a little over $500 a week (eleven being for $1,078, two for $1,075 and two for $1,000).

The Applicant was employed by the Respondent from late February 1995 to early September 1995 to “build and develop a corporate division in conjunction with the General Manager Corporate”. It is conceded that the Respondent terminated the employment in early September 1995 but that termination is not the subject of this application. Mr Salvo stated that the Applicant was not attracting sufficient corporate clients. The Applicant has a different view but it does not really matter except that the Applicant believes that he had earned but never received a bonus which he claims was part of the employment contract.

The bonus issue is not a matter of moment either except that the general tenor of the Applicant’s evidence, and certain evidence from the Respondent witnesses, suggest that the Applicant’s primary grievance is not an alleged unlawful termination of employment on 28 March 1996 but the Respondent’s failure to acknowledge the bonus as due and payable.

After the termination of employment in September 1995 the Applicant continued to provide services for the Respondent. For a few days he washed cars. Thereafter he seems to have worked under a loose arrangement whereby he provided undefined services. The Applicant claims he really worked as manager of the Corporate Division but I do not accept that to be the case. It is contrary to the evidence of all four Respondent witnesses.

As I have already indicated, both at the conclusion of the hearing and earlier in this judgment, I am not persuaded that the Applicant worked as an employee after the termination of the employment in September 1995. The weight of the evidence, the evidence of the Respondent witnesses, the documentary evidence and even the evidence of the Applicant himself, suggest that the Respondent permitted the Applicant to provide undefined services as a consultant. The Applicant was able to come and go as he pleased. Invoices for his services were rarely if ever raised. Despite evidence from the Respondent of receipt of a few invoices, no documentary evidence to that effect was produced.

If it had been necessary to determine whether the Applicant was an employee or independent contractor, and if it had been necessary to apply the tests outlined in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16, the preponderance of the evidence would probably have led to a conclusion that the Applicant was not an employee. It is not necessary to decide that issue.

To succeed in a claim of unlawful termination of employment, indeed to attract the jurisdiction, the Applicant must establish the employment was terminated at the initiative of the employer: Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

The Applicant has failed to discharge that onus. The evidence of all Respondent witnesses supports a conclusion that the Applicant and the Respondent had a loose arrangement whereby the Applicant provided undefined services as a consultant. The arrangement may not have been appropriate or proper on the part of either the Applicant or the Respondent in terms of taxation obligations. It is not necessary for the Court to reach a conclusion on that aspect of the arrangement and a conclusion could not be reached without further investigation. However, the Applicant has failed to establish that the arrangement was that of employer and employee.

Even on his own evidence, had it been alone and uncontested, the Applicant would not have satisfied me that he was employed by the Respondent after September 1995. Furthermore, such a conclusion would be contrary to the evidence of the four Respondent witnesses and contrary to the documentary evidence.

The Application fails for lack of jurisdiction and is dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. 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 3 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:          
Dated:  4 August 1997

Solicitors for the Applicant:           McDonald Murholme

Mr D P Martin, Counsel for the Applicant on the first three days.

Mr A McDonald, Counsel for the Applicant on the last day.

Solicitors for the Respondent:      Kempson & Co
Counsel for the Respondent:                 Mr G A Devries

Date of hearing:  15 and 16 August 1996,
  9 September 1996 and
  29 November 1996

Date of judgment:  4 August 1997