WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd

In the case of WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd, the respondent, who had previously served as the Archbishop of the Autocephalous Greek Orthodox Church in Australia, sought a pro rata payment for accumulated annual leave and long service leave from the appellant, Cleary Bros (Bombo) Pty Ltd. The central legal issue before the court was whether the respondent was an employee at common law of the appellant. The Industrial Magistrate, a single judge of the Industrial Relations Court, and the Full Court of the Industrial Relations Court had all previously held that the respondent was indeed an employee. The appellant now appealed to the Supreme Court, arguing it had an appeal as of right under the Industrial and Employee Relations Act 1994, or alternatively seeking an extension of time to apply for leave to appeal.

The court considered the jurisdictional provisions of the Industrial Act and the specific circumstances of the appeal. The appeal was based on the alleged absence of a contract of employment and the corresponding entitlement to annual and long service leave. Given the nature of the appeal, the court determined whether it was “based on an alleged excess or deficiency of jurisdiction,” as specified in the Act. The court found that the appeal did not hinge on jurisdictional issues but rather on the substantive determination of the employment contract. Consequently, the appeal was not as of right but required leave, which the appellant had not timely applied for.

In conclusion, the court held that there was no contract of employment between the respondent and the appellant, nor any legal entitlement to annual or long service leave. The appeal was allowed, the Full Court's order was set aside, and the Industrial Magistrate's order was also set aside, dismissing the respondent's claim for payment in lieu of annual leave and long service leave. The court also noted the need to further consider the issue of costs in light of the proceedings in the Industrial Relations Court.