Roland Leslie Fort v Toll Transport Pty Limited T/as Toll Priority
[2010] FWA 8648
•26 NOVEMBER 2010
[2010] FWA 8648 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Roland Leslie Fort
v
Toll Transport Pty Limited T/as Toll Priority
(U2010/3039)
COMMISSIONER SIMPSON | BRISBANE, 26 NOVEMBER 2010 |
Application for unfair dismissal remedy - jurisdictional objection- application dismissed
[1] This is an application by Mr Roland Fort (the Applicant) for an unfair dismissal remedy.
[2] The application was filed on 6 April 2010. Mr Fort’s employment was terminated by Toll Priority (the Respondent) effective from 30 March 2010.
[3] On 3 June 2010 the Respondent filed its response to the Application raising two jurisdictional objections to the Application. The first objection was on the grounds that the Applicant was at no time an employee of the Respondent or its predecessors as he was only ever engaged as a contractor. The second objection was on the grounds that on 9 April 2010 the Applicant entered into a Deed of Release with the Respondent that it pleaded as a bar to any proceedings brought by him arising out of the engagement.
[4] On 15 September 2010 directions were issued for a hearing date in Cairns on Friday 1 October 2010 and for the filing of submissions and witness statements by the Applicant on 21 September 2010, the Respondent on 28 September 2010 and the Applicants reply submissions on 30 September 2010. The matter was listed for a mention telephone conference on 17 September 2010 to address a request from the Respondent that the hearing be conducted solely to determine the jurisdictional objections raised by the Respondent.
[5] The Respondent agreed to hear evidence on the jurisdictional matters and the merits at the same time to avoid the potential time and expense of a second hearing in Cairns should the jurisdictional objections not be upheld.
[6] I listed a second mention telephone conference on the afternoon of 21 September 2010 at the request of the Respondent on the basis that the Applicant had failed to comply with the directions issued. The Applicant had forwarded correspondence requesting the production of documents and a list of the names of witnesses rather than submissions and witness statements in support of the Applicants case as required.
[7] At the conference on the afternoon of 21 September 2010 I decided to issue new directions affording the Applicant and Respondent additional time to provide submissions and witness statements, however stressing that the directions must be complied with and that I would not accept further material sought to be filed outside the new directions issued. While it was the preference of the Respondent not to proceed to hearing on 1 October 2010 due to the failure of the Applicant to comply with directions it agreed to do so.
[8] The Applicant did not make an application for an order requiring production of documents in accordance with s.590(2)(c) however it appears documents relating to at least the contractor engagement which was a matter of dispute between the parties were tendered by the Respondent and attached to the statement of Mr Bradley.
EVIDENCE
[9] At the hearing the Applicant represented himself and the Respondent was represented by Mr Damien Sloan, in-house Counsel for the Respondent.
The Applicant provided a signed statement 1 and gave evidence on his own behalf. Mr Roger Howe also provided a witness statement2 and gave evidence in the Applicant’s case. Certain parts of both witness statements were struck out following objections from the Respondent on the basis of relevance and hearsay.
[10] The Applicant had also intended to call Mr Glen Hine as a witness. The Respondent objected to the statement generally on the basis of relevance and hearsay. I made a ruling to strike out the statement on the basis that none of its content was logically probative of any matter required to be proved by the Applicant.
[11] The Applicant also intended to call Ms Gaille Byron as a witness but was unable to produce Ms Byron as a witness before the conclusion of his case on the day of the hearing. The Respondent had agreed to Ms Byron giving her evidence after the completion of the Respondents case if it was possible for her to be made available later during the hearing day but the Applicant was unable to locate this witness.
[12] The Respondent’s only witness was Mr Christopher Bradley.
The Applicant was advised on the 17 March 2010 that he was being terminated on the basis that the Respondent had lost a major contract. In the Applicant’s witness statement he devotes over five pages to describing events over a thirteen month period before 17 March 2010 stemming from an incident on 25 January 2009 where a carbon fibre interior window in his vehicle was smashed by another employee. How the window came to be smashed was not explored in any detail in evidence.
[13] The Applicant complained about this incident and gave evidence that he was told it was his responsibility to meet the cost of repairing the window. The Applicant gave evidence that the day after the incident he advised that he did not wish to perform airside duty until the matter concerning the smashed window was resolved. Ultimately the Applicant returned to performing this role but remained angry about having to meet the repair costs to his vehicle and generally how he regarded he had been unfairly treated by management within the Respondent.
[14] The Applicant gave evidence that on the morning of 17 March 2010 which was a few days after returning to work after a period of leave in New Zealand he was advised by Mr Bradley that the Respondent had lost all of the County Courier business and that he had to cut three jobs from the depot as the jobs were now redundant. Under cross examination the Applicant confirmed that he asked why he was chosen and Mr Bradley replied that it was a scanning issue. The Applicant in his witness statement disputes that scanning was a genuine reason for his being his selected.
[15] The Applicant said that he inquired of Mr Bradley how much notice would be given and he states that Mr Bradley advised that it would be mid to late the following week and it would be in writing as soon as it was known.
[16] The Applicant in his statement also made reference to factors indicative of employment as compared to independent contracting and that it was his view that he had been an employee not an independent contractor. The Applicant did not seek to elaborate on this argument in his witness statement or to any significant degree in oral evidence.
[17] At no point in his nine page witness statement did the applicant make any reference to a “Deed of Release” which was signed by the Applicant and tendered by the Respondent as an attachment to the statement of Mr Bradley. 3
[18] Under cross examination the Applicant agreed that when his vehicle was ‘out of action’ the Respondent allowed him to use one of the Repondents vehicles, and that when he injured his back and was not working the Respondent offered him work in the office to operate the radio and cover fleet calls. 4
[19] The Applicant gave evidence that CV Hair Supplies was a partnership business that he had in Victoria. 5
[20] The Applicant agreed that it was his signature on a document attached to the statement of Mr Bradley 6which was an agreement between Rush Couriers Pty Ltd as Trustee for the Maurie Roshier Family Trust ABN 47 919 211 208 and CV Hair and Beauty Supplies. This agreement is a subcontracting agreement that in clear terms established a contract for service between the parties.
[21] The Applicant agreed that he began working with Rush Couriers Pty Ltd in 2006. He agreed that at that time he provided services to Rush Couriers Pty Ltd through CV Hair and Beauty Supplies. He agreed that the Respondent acquired Rush Couriers Pty Ltd in about 2007. 7
[22] The Applicant agreed that he continued to perform work for the business, albeit now for the Respondent rather than Rush Couriers Pty Ltd in accordance the contract he had signed. 8
[23] He agreed that he rendered weekly tax invoices, had to provide his own vehicle, and had to retain his own ABN number in order to continue to work. He agreed that he later presented the Respondent with a new entity called Roland L Fort ABN 76883261065 and that entity became a subcontractor to the Respondent. 9
[24] The Applicant acknowledged that it was his signature on a new subcontractor or agent form dated 7 April 2009 shown to him, 10 and his handwriting on a new subcontractor checklist,11 and his handwriting on an Emergency Contact Details form.12 13
[25] The Applicant identified an example of a tax invoice that he issued on the Respondent 14 and that he rendered weekly tax invoices on the Respondent.15
[26] It was put to the Respondent that the invoices were paid in gross amounts. His response was that there was no GST billed on the invoices. This point was not clarified. 16
[27] He agreed that he was not paid for annual leave or sick leave and was required to provide a van and ensure that it was registered and insured comprehensively and also for public liability insurance. He also agreed that a schedule of fees shown to him 17 reflected the basis on which he was paid by the Respondent.
[28] The Applicant also agreed that it was his signature on a subcontractor or agent change form shown to him. 18
[29] Mr Fort agreed that he engaged in correspondence with the Respondent either through Mr Robert Pemporath or Mr Steven Bell in which he raised concerns about the way he had been treated in connection with the termination. He agreed that Mr Bell flew from Brisbane to Cairns to meet with him to discuss his grievances and as a result of that, Mr Bell on behalf of the Respondent, agreed to make a payment to him.
[30] The Applicant agreed he meet Mr Bell at around 11am or 12 midday on 9 April 2010 and that he was accompanied by Ms Demi Nikiten and at that time the Applicant agreed that he signed a Deed of Release and he identified his signature on the Deed of Release. 19
[31] The Applicant toward the closing stages of his oral evidence proposed to produce additional new material which I ruled against on the basis that the directions order had already previously been amended to accommodate the Applicant’s failure to comply.
[32] Mr Howe’s contract with the Respondent was terminated at the same time as the Applicant. Mr Howe gave evidence as the second witness for the Applicant alleging that he was told by a former work colleague who he did not identify that Mr Bradley had made comments to the effect that the depot operates better because he got rid of three drunks.
[33] Mr Howe agreed under cross examination that he did not drink, had never heard Mr Bradley call him a drunk and Mr Bradley would have no reason to call him a drunk. 20 In the circumstances I am not prepared to afford this evidence any weight.
[34] Mr Christopher Bradley was the only witness called for the Respondent and provided a witness statement with 18 attachments. The Applicant raised with Mr Bradley the fact that the letter provided by the Respondent that was dated 17 March 2010 was not distributed until 26 March 2010. Mr Bradley stated that this was a clerical error. Incorrect advice was also provided about the intended date of termination. While these errors were unfortunate in the circumstances and distressing for the Applicant they did not add weight to the Applicant’s case.
JURISDICTIONAL ISSUES
[35] The Applicants case appears to be that he does not accept that the termination of his contract was a genuine redundancy. However before considering the merits of the argument I am required to address the jurisdictional objections raised by the Respondent. On the evidence in this matter it is clear that the Applicant entered into negotiations with the Respondent following the termination of his engagement. These negotiations were concluded at a meeting which occurred between 11am and 12 midday on 9 April 2010 during which Mr Fort signed a Deed of Release with the Respondent. 21 No evidence provided in the Applicant’s case prevents the Respondent from being able to rely on the Deed as a bar to hearing and determining this application.
[36] The Deed of Release states in clause 2(a).
“Fort releases and discharges Toll and the Associated Beneficiaries from all Claims which Fort has or which, but for this document, Fort could, would or might have or have had against Toll or an Associated Beneficiary at any time after the date of this document in respect of or arising out of, either directly or indirectly:
(i) the Engagement;
(ii) the terms and conditions of the Engagement; or
(iii) the Allegations...”
[37] At clause 3(a) the Deed reads as follows:
“Toll or any Associated Beneficiary may plead as an absolute bar in any court of law, arbitral tribunal or otherwise in response to any proceedings or Claim whatsoever brought by Fort arising out of, touching on or concerning the matters referred to or contained in this document..”
[38] The Application for Unfair Dismissal remedy was filed by the Applicant on 6 April 2010 so there can be no suggestion that the Applicant did not have within his knowledge this application at the time of signing the Deed of Release on 9 April 2010. There has been no evidence led that the Respondent did not fulfil the commitments it made in the Deed of Settlement. As stated the Applicant did not make any reference to the Deed of Release in his nine page witness statement.
[39] Even in the event that the Respondent could not rely on the Deed, and I find that the Respondent can, the evidence clearly indicates that the contractual relationship between the Applicant and Respondent was one of a contract for service and not a contract of service.
[40] The Applicant has provided very little evidence to meet the Respondent’s jurisdictional objection in regard to this issue. A person can only be protected from unfair dismissal if the person is an employee at the time of dismissal.
[41] When consideration is given to the traditional indicia for determining this question, while the evidence does not point entirely one way, it points more toward the Applicant being an independent contractor than an employee.
[42] The Respondent did not acknowledge any responsibility to repair the damaged window on the Applicant’s van and that it was the Applicant’s responsibility to meet the repair costs to his vehicle.
[43] The Applicant accepted that CV Hair Supplies was a partnership business that he had in Victoria and that CV Hair Supplies had a sub contracting agreement with Rush Couriers Pty Ltd. He also accepted that Rush Couriers Pty Ltd was acquired by the Respondent in 2007 and that he continued to perform work for the Respondent in accordance with the contract he had signed with Rush Couriers Pty Ltd.
[44] He accepted that he rendered weekly tax invoices, had to provide his own vehicle, retain his own ABN number and subsequently presented a new entity to the Respondent called Roland L Fort ABN 76883261065 and that entity became a subcontractor to the Respondent.
[45] The Applicant acknowledged that it was his signature on a range of documents tendered in evidence tending to prove that the relationship between the Applicant and Respondent was a contract for services, and that he was paid in gross amounts and did not receive paid leave.
[46] I have given consideration to all of the evidence in this matter and I find that both of the Respondent’s jurisdictional objections, the first being that it was entitled to plead a Deed of Release as a bar to the proceedings, and the second that the Applicant was not an employee at the time the contract was terminated are made out. On that basis I dismiss the Application.
COMMISSIONER
Appearances:
The applicant, Mr Fort appeared on his own behalf.
Mr Sloan, in-house Counsel for the Respondent.
Place and date of hearing:
2010
Cairns
October 1
1 Mr Fort’s statement tendered exhibit 1
2 Mr Howe’s statement tendered exhibit 2
3 Mr Bradley’s statement tendered exhibit 3 attachment CB 15
4 Transcript PN 170
5 Transcript PN 179-183
6 Mr Bradley’s statement tendered exhibit 3 attachment CB2
7 Transcript PN 197
8 Transcript PN198-199
9 Transcript PN 200-208
10 Mr Bradleys’ statement tendered exhibit 3 attachment CB 4
11 Mr Bradley’s statement tendered exhibit 3 attachment CB 5
12 Mr Bradley’s statement tendered exhibit 3 attachment CB 6
13 Transcript PN 215-219
14 Mr Bradley’s Statement exhibit 3 attachment CB 7
15 Transcript PN 220-221
16 Transcript PN 222 - 224
17 Mr Bradley’s statement tendered exhibit 3 CB 13
18 Mr Bradley’s statement tendered exhibit 3 CB 14
19 Mr Bradley’s statement tendered exhibit 3 attachment CB 15
20 Transcript PN 374-379
21 Mr Bradley’s statement exhibit 3 attachment CB 15
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