Steve Smith and Korvest Ltd trading as Elite Built Australia

[1994] IRCA 29

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI  192 of 1994

B E T W E E N:  STEVE SMITH

AND:  
  KORVEST LTD (trading as) Elite Built Australia

NO APPEARANCE - CASUAL EMPLOYMENT

COURT:              MR J.A. RYAN, Judicial Registrar

PLACE:               MELBOURNE

DATE:                  26 AUGUST 1994

THE J.REGISTRAR:    On 22 April Steve Smith lodged an application under section 170E(EA) seeking remedy in respect of termination of employment.

On 16 May the respondent filed a notice of motion that the application filed on 22 April be struck out on the ground that the applicant was a casual employee engaged for a short period, within the meaning of regulation 30B(1)(d) (3) and accordingly excluded from the operation of subdivisionsB and C of Division 3 of part VIA of the Industrial Relations Act 1988.

The applicant had appeared in person at a directions hearing on 9 May.  Consent orders were made and the directions hearing adjourned to 30 May.   The applicant did not appear on 30 May, the directions hearing was adjourned to 4 July and the respondent's costs of the day were reserved.   The applicant failed to appear again on 4 July and the matter was adjourned to a date to be fixed and costs reserved. 

I am satisfied that the applicant has been duly served with the notice of motion and duly served with a notice of the return date today and have proceeded to hear the motion pursuant to order 19 rule 5 and I note that the applicant does not appear to have taken any steps to appear or to be represented or communicate in respect to these proceedings with the court or the respondent.  

I have noted in particular

(I)the affidavit of 16 May 1994 from Robert Roy Mckie, development and manager, of Korvest Ltd.

(ii)the employment agreement, exhibit RPM1, and the duties described therein and the casual nature of the employment described therein

(iii)the reasons for the casual employment in paragraph 5 of Mckie’s affidavit of 16 May 1994

(iv)the affidavit of 6 May 1991 of Joannes Maria Van Kollenberg and in particular paragraph 4 and the company policy in respect of casual employment and probationary periods and the method of calculation of the casual rates.

(v)exhibit HVK5, the letter of warning to the applicant employee of 7 February 1994

(vi)the letter of 1 March restating and reiterating the casual nature of the employment

(vii)the written notice of termination of 14 April 1994, exhibit HVK4

(viii)the admission that the employment, at least in the first three months, was casual and intended to be casual (applicant’s affidavit 21 May 1994)

(ix)the other claims in the applicant's affidavit of 21 May 1994 which are in direct conflict with affidavits filed by the respondent and particularly the affidavits of James John Robinson and Joannes Maria Van Kollenberg

(x)confirmation by Robinson of the casual nature of the employment.

All the evidence is consistent with the applicant being a casual employee and I propose to strike out the application for remedy under section 170E(a) and I do it on the basis that the employment was indeed casual within the meaning of regulation 30 B(1) (d) (3) of the Industrial Relations Regulations 1988 and accordingly excluded from the operations of subdivisions (B), (C), and (D), a division 3 of part VIA of the Industrial Relations Act 1988.

I certify that this and the preceding page is a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :

Date  :              7 September 1994

Appearances:

Counsel for the Respondent             :              S.W. Stuckey

Solicitor for the Respondent             :              Sly & Weigall

Date of Hearing  :              26 August 1994

Judgment  :