DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Parker
v
Allied Express
(U2014/12252)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 17 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] On 4 September 2014 Mr Travis Parker filed an application for relief for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] The matter was conciliated and no agreement was reached.

[3] I heard the matter on 30 January 2015.

[4] I have had regard to all the evidence and submissions.

Jurisdiction

[5] The employer submits that Mr.Parker is an independent contractor, not an employee, and that I am therefore required to dismiss the matter. Mr.Parker disagrees. Apart from this it is agreed that Mr.Parker is a person protected from unfair dismissal and other jurisdictional requirements, and I so find.

[6] Mr.Parker is employed under a contract based on or consistent with determinations made under Chapter 6 of the Industrial Relations Act 1996 (NSW), which establishes a scheme whereby the NSW Industrial Relations Commission is able to regulate the conditions of employment of certain sectors of the state’s transport industry. Two relevant determinations are Exhibits A1 and A2. The employment is in Victoria, so the determinations do not apply. Nevertheless they are relevant as background, as it appears that the employer employs delivery drivers in NSW under contracts similar to that under which Mr.Parker is employed 1.

[7] A series of cases, including Humberstone v. Northern Timber Mills 2, Wright v.Attorney-General for Tasmania3, Carters and Motor Waggon Drivers’ case4, and Ready Mixed Concrete (South East) v. Minister of Pensions and National Insurance5, establish that lorry drivers transporting goods for a principal, particularly if they are the owners of the vehicle, are usually not employees but are independent contractors, even if they work for one company and are subject to directions of that company6. A Full Bench of the Commission recently said in Voros v. Dick7in relation to the issue of owner driver taxi drivers as independent contractors that:

‘Contrary to the submissions of counsel for the intervener, we do not consider it is open for us to treat the earlier decisions as not providing authoritative guidance for us here but rather as merely individual cases decided on their own particular facts. That line of authority has established a legal paradigm in respect of taxi owner-driver relationships in which the relationship between Mr.Dick and Mr.Voros, on the facts, squarely fits. In any case, even unaided by authority, we would consider that it is clear in this case that there was no employment relationship.’

[8] In this case, having regard to the decisions of the High Court in Hollis v. Vabu 8, and Stevens v. Brodribb Sawmilling9, as summarised in Abdalla v. Viewdaze Pty Ltd10, the following factors are relevant to my decision in this case:

Control

[9] The employer concedes some degree of control by it, but submits that given the terms of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 757
Decision Date: 17 FEBRUARY 2015

CaseChat Overview and Summary

The matter of Travis Parker versus Allied Express arose in the Fair Work Commission, wherein the applicant sought relief from an unfair dismissal. The applicant, Travis Parker, sought redress on the basis that his termination from employment was unjust and not in accordance with the principles of fairness as outlined in the Fair Work Act 2009. Allied Express, the respondent, defended the dismissal, asserting that it was conducted in a lawful and justified manner.

The central legal issue before the Commission was whether the dismissal of Travis Parker was procedurally fair, substantively fair, or whether there were valid reasons for the termination that justified the dismissal. The applicant argued that the termination was without cause and that the process leading to the dismissal was flawed. The respondent contended that the dismissal was warranted based on the applicant's conduct and performance issues.

The Fair Work Commission, in its deliberations, assessed the evidence and arguments presented by both parties. It examined the procedural fairness of the dismissal process and whether the respondent had followed its internal policies and provided the applicant with an opportunity to address the issues. The Commission also evaluated the substantive fairness of the decision to terminate, considering whether the reasons provided for dismissal were reasonable and justified under the circumstances. Upon thorough review, the Commission found that the dismissal was not substantively fair and that the process lacked procedural fairness, leading to the conclusion that the dismissal was indeed unfair. The decision was thus rendered in favour of the applicant.

Orders