Robert Ristevski v Imv Plastics Pty Ltd
[1995] IRCA 708
•30 November 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-1188 of 1995
B E T W E E N :
ROBERT RISTEVSKI
Applicant
AND
IMV PLASTICS PTY LTD
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 30 November 1995
REASONS FOR JUDGMENT (Ex Tempore)
The applicant claims that:
he was recruited to work for the respondent on a full time permanent basis
his landlady, Mrs Nadia Stojanovska told him that permanent work was available with the respondent and arranged for her father to take him to the respondent's factory
he was working night shift 11 pm to 7 am on the nights of 14, 15 and 16 December 1994
early in the morning of the third day of his work, that is, Saturday morning, 17 December, he cut his left hand with a scalpel while trimming plastic
he telephoned his parents after sustaining the cut in the early hours of 17 December and his father and his friend, Robert Curnovski attended the workplace and took him to Preston and Northcote Community Hospital where sutures were inserted in the cut
at about lunchtime on the day on which the applicant had sustained the injury he and Mr Curnovski attended the workplace and saw Mrs Voltan, the wife of Mr Ivo Voltan, the owner and director of the respondent company
Mrs Voltan told the applicant to come back in half an hour and he and Mr Curnovski returned half an hour later and saw Mr Voltan who yelled at the applicant and told him to piss off and told him that he had only hurt himself a little but that he, the applicant wanted money
he was holding what he described as "the certificates", but that Mr Voltan did not want them.
Robert Curnovski gave evidence in support of the applicant. There are two significant inconsistencies between the evidence of this witness and the evidence of the applicant. Mr Curnovski stated that some time after midnight on a day which he cannot recall, although at one stage he suggested it might have been 17 December, 1994, the applicant and his father knocked on his door and that he took the applicant to hospital, but told the applicant's father that it was not necessary for him to attend. Mr Curnovski also deposed that later the same day he and the applicant attended the workplace with what he called certificates and that Mrs Voltan told them, the boss, Mr Voltan was busy on a machine but that the applicant, Robert, went up to Mr Voltan and Mr Voltan refused to accept the certificates and told the applicant to "piss off".
The Court notes that Mr Curnovski gave evidence that he did recall that this was 17 December, that he does not know what day of the week it was, but he knows it was 17 December because he had another appointment on that day. In response to questions from the Court, the respondent being unrepresented other than by Mr Voltan who presented the respondent's case, Mr Curnovski said that:
the applicant went into an office and he was behind the applicant and heard him talk to Mrs Voltan
Mrs Voltan said her husband was busy if they wanted to wait
Mrs Voltan did not call her husband and that he and the applicant waited and waited and then went into the factory
the applicant said that Mr Voltan was down on a machine and pointed him out
he, Curnovski went up to Mr Voltan and said, "my friend wants to talk to you". He, Curnovski, thinks that the applicant said words to the effect of: I have got some papers if you want to look and that Mr Voltan said: I am not interested; I do not care, piss off.
The different versions of who went to the hospital and from where and what happened at the workplace when the applicants and Curnovski returned with what both describe as certificates, are matters of considerable significance in assessing credibility in a case in which there are stark differences in evidence given by witnesses for both parties. The first fundamental difference is that Mr Ivo Voltan states that the accident occurred in the second shift in the morning of Friday, 16 December, not in the morning of the third shift, Saturday, 17 December (Exhibit A2). The hospital WorkCover certificate supports Mr Voltan's evidence and is dated 16 December and refers to the injury sustained on 16 December. Exhibit A4, the WorkCover claim, signed by the applicant on 19 January 1995 and in the form of a statutory declaration by him, also indicates that he was injured and ceased work at 3.30 am on 16 December 1994, not about that time on 17 December 1994.
The second fundamental difference is that Mr Voltan refers to an approach to him by Mr Curnovski in the next week on what he thought was Tuesday, 20 December, but which he concedes was another day, but nevertheless in the week commencing Monday, 19 December.
There are other conflicts (and they are marked), between the evidence of Ivo Voltan and the applicant and Mr Curnovski. I need not enumerate them but for one other crucial difference. The essence of this case is the claim of the applicant that he was dismissed from a permanent position without notice, without warning, without valid reason and for a prohibited reason under section 170DF, being either temporary absence because of injury under subsection 1(a) or absence because of physical disability, or termination because of physical ability under subsection 1(f).
Mr Voltan, however, gave evidence that it was a very short term casual engagement, explained to the applicant in advance by him and that such an engagement was completely consistent with the operation and seasonal nature of the staple work undertaken in the respondent's factory. The Court agrees with Mr Frazzetto, counsel for the applicant, that in respect of this issue of the permanent or casual nature of the employment, the evidence of the other respondent witness, Mrs Nadia Stojanovski is the lynch pin. The Court does not accept her evidence is necessarily the lynch pin in respect of all aspects of the case, but it is reasonable to so categorise her evidence in respect of whether or not the applicant was excluded from jurisdiction as a casual employee engaged for a short period pursuant to section 170CC and regulation 30B.
The Court found Mrs Stojanovski an impressive, direct, consistent witness of truth. The Court found absolutely no inconsistency in her initial description in terms of English of 2 to 4 days of casual employment offered to the applicant by Mr Voltan through her and her firm adherence under cross-examination to the position that she offered the applicant the opportunity of 3 days casual employment and did so on the invitation of Mr Voltan. As in many cases where there are conflicts of evidence between the witnesses of the applicant and witnesses of the respondent, and in this case significant conflicts in the evidence of the two applicant witnesses, the Court must on the balance of probabilities, express a preference.
In this case the Court unhesitatingly accepts the evidence of both respondent witnesses in preference to either and both applicant witnesses. The Court draws no unfavourable inferences from the absence of the respondent’s time sheet for the applicant or Mr Voltan's diary or from the fact that Mrs Voltan could have given evidence and did not. This is not a case in which the Court would conclude that the inference should be drawn that Mrs Voltan's evidence would not assist the respondent. The respondent is unrepresented other than by Mr Voltan himself. This is a world of hard practical reality. Mr Voltan and his wife are the sole directors of the respondent company. There is a business to be run.
The Court has concluded that the applicant was a casual employee, excluded from jurisdiction pursuant to section 170CC and regulation 30B. The Court has assess the nature of the employment in accordance with the criteria outlined in Andison v Woolworths Limited, an unreported decision of Moore J on 8 August, 1995, (NI 522 of 1994) and Forbes v Ori Enterprises Pty Limited, an unreported decision of this Court, Millane JR, 14 November 1995, (VI598 of 1995).
The order of the Court is that the application under section 170EA for compensation and initially for reinstatement and compensation is dismissed for lack of jurisdiction.
MINUTES OF ORDERS
THE COURT ORDERS:
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 4 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 30 November 1995
Solicitors for the Applicant: Patrick Robinson & Co
Counsel for the Applicant: Mr R Frazzetto
Mr Ivo Voltan, respondent, appeared for himself.
Date of hearing: 30 November 1995
Date of judgment: 30 November 1995
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - Casual employee engaged for a short period.
Industrial Relations Act 1988 ss.170EA, 170CC, 170EA
Industrial Relations Regulations - Regulation 30B
CASES:
Andison v Woolworths Limited, (unreported), Moore J, NI 522 of 1994, 8 August, 1995
Forbes v Ori Enterprises Pty Limited, (unreported), Millane JR, VI598 of 1995, 14 November 1995.
ROBERT RISTEVSKI -v- IMV PLASTICS PTY LTD
No. VI 1188 of 1995
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 30 November 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1188 of 1995
B E T W E E N :
Robert Ristevski
Applicant
AND
IMV Plastics Pty Ltd
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 30 November 1995
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.
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