William Brian Kinsella v Axis Financial Planning Services Pty Ltd and Individual Financial Planning
[1995] IRCA 9
•18 January 1995
CATCHWORDS
INDUSTRIAL LAW -Termination of Employment - Complaint of unlawful termination of employment in contravention of Division 3 of Part VIA of the Industrial Relations Act - whether there was a relationship of employer and employee - costs.
INDUSTRIAL RELATIONS ACT 1988 ss 170EA, 170DE, 170EE
WILLIAM BRIAN KINSELLA -v- AXIS FINANCIAL PLANNING SERVICES PTY LTD AND INDIVIDUAL FINANCIAL PLANNING
No. W1 359 of 1994
BEFORE : Judicial Registrar Farrell
PLACE : Perth
DATE : 18th January 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
No. W1 359 of 1994
B E T W E E N:
WILLIAM BRYAN KINSELLA
Applicant
- and -
AXIS FINANCIAL PLANNING SERVICES PTY LTD AND INDIVIDUAL FINANCIAL PLANNING
Respondent
MINUTES OF ORDER
BEFORE : Judicial Registrar Farrell
PLACE : Perth
DATE : 18th January 1995
THE COURT ORDERS THAT:
The Application is dismissed.
There be no Order as to costs.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
No. W1 359 of 1994
B E T W E E N:
WILLIAM BRYAN KINSELLA
Applicant
- and -
AXIS FINANCIAL PLANNING SERVICES PTY LTD AND INDIVIDUAL FINANCIAL PLANNING
Respondent
REASONS FOR JUDGMENT
BEFORE : Judicial Registrar Farrell
DATE :18th January 1995
PLACE : Perth
The Application is made pursuant to S. 170EA of the Industrial Relations Act 1988 in respect of the Applicant’s employment with the Respondents. The Applicant sought an Order declaring that the termination of his employment contravened Division 3 of Part VIA of the Industrial Relations Act 1988. He sought an Order claiming reinstatement (although during the course of the hearing he conceded through his counsel that reinstatement was not practicable in the circumstances). He also sought an Order for compensation.
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The Respondents argued that the applicant was not an employee and that he was an “independent contractor”.
At the outset of the hearing the Applicant made an Application for an adjournment of this matter. However, before I had decided the issue and following an indication from the counsel for the Respondent that he would seek costs should the matter be adjourned, the Applicant withdrew his application for an adjournment.
The Applicant and a director of each of the Respondent Companies gave evidence.
As described by the parties, the Applicant was engaged as a “minder” by the two Respondents commencing on the 4th July 1994. The position carried with it a written job description which was tendered into evidence. The Applicant was paid a weekly amount of $250.00, described as a retainer. He was also to receive a percentage of commissions earned by the Respondents.
His duties were essentially those of an Office Manager. He worked at the Respondent’s premises, he used their equipment. He did have a degree of flexibility in the performance of his duties. However the nature of the relationship
was essentially that of employer and employee and I reject the argument by the Respondent that the Applicant was an independent contractor.
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On the 12th August 1994 the Applicant attended a meeting with the two Respondents during which he presented them with a document seeking to alter the payment structure. (The proposed pay structure provided him with a salary higher that his “retainer”, but with reduced commissions). It had become apparent to him that the amount he could reasonably expect to earn by way of a percentage of commissions was much lower than what he had been led to believe. The respondents deferred the decision regarding the changed pay structure. A further meeting was arranged for the 19th August 1994 and it was following that meeting that the Applicant’s employment came to an end. What happened at that meeting was in dispute between the parties.
The Applicant gave evidence that the Respondents advised him that they were unable to continue paying him at all. Both of the Respondent witnesses gave evidence that they had told the Applicant that they were unable to agree to the proposed pay structure. I preferred the evidence of the Respondents in relation to what happened at the meeting on the 19th August 1994.
The Applicant tendered into evidence a short undated statement prepared by the Director of the First Respondent, Mr Welch. The document recited the details of the Applicant’s service with the Respondents and then went on to say “Due to the position being no longer available for Mr Kinsella we have decided that the requirement for his services are no longer required”. I accept the evidence of Mr
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Welch that the document came into existence at the request of the Applicant to assist him to obtain Social Security benefits and not because it represented the true situation between the parties.
I find that the Applicant terminated the employment relationship with the Respondent. The Application is therefore dismissed.
During the course of his submissions Counsel for the Respondent sought an Order for costs pursuant to Section 347 of the Industrial Relations Act on the basis that the Applicant had brought his claim vexatiously or without reasonable cause. He referred to documents prepared by the Applicant during negotiations and forwarded to the Directors of the First Respondent. Whilst the documents evince a certain amount of bluff on the part of the Applicant they do not amount in my view to anymore than an attempt by the Applicant to resolve the issues between himself and the Respondents. It is to be noted that the issue of unresolved commissions although not forming part of this claim remained outstanding until shortly before the hearing. In all the circumstances of this case I am not prepared to make an Order for costs against the Applicant.
I certify that this and the preceding 3 pages are a true copy of my Reasons for Judgment.
Signed:
Dated:
Counsel for the Applicant : Mr G Wells
Counsel for the Respondents : Mr J Hogan
Hearing Date : 15 December 1994
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