FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – motion to set aside declarations and orders made by Judicial Registrar – whether applicant worked for respondent for less than six months – whether applicant was a casual employee – whether applicant has remedy under Regulation 30B of Workplace Relations Regulations

Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) (Cth)

Workplace Relations Regulations (formerly Industrial Relations Regulations) (Cth), Reg 30B

CHARLES MARLIN v

CRYSTAL CARWASH CAFÉ

NI 4491 of 1995

O’CONNOR J

SYDNEY

28 SEPTEMBER 1998

THE COURT ORDERS THAT:

1.                  The declarations and orders made by Judicial Registrar McIlwaine on 15 January 1998 be set aside.

2.         The application be dismissed with costs.

NOTE:             SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

REASONS FOR JUDGMENT

This matter concerns a Notice of Motion filed on behalf of the respondent moving the Court to set aside the declarations and orders made by Judicial Registrar McIlwaine of the Industrial Relations Court on 15 January 1998 and to have the matter reviewed by a Federal Court Judge.

BACKGROUND

On 20 November 1995 the applicant filed an application in the Industrial Relations Court claiming unlawful termination of his employment as a “car washer” by his former employer, the respondent, under Division 3 Part VIA of the Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) (Cth) (“the Act”).

The matter was listed before the Australian Industrial Relations Commission for conciliation but without success and was then referred to Judicial Registrar McIlwaine for determination.

On 15 January 1998, Judicial Registrar McIlwaine delivered his reasons for judgment in this matter making declarations and orders in favour of the applicant.

EVIDENCE AND SUBMISSIONS

The hearing before Judicial Registrar McIlwaine had lasted a period of 5 days and the parties agreed that a substantial part of the evidence given in that proceeding should be tendered in these proceedings.  The applicant tendered four additional affidavits:

-           Affidavit of Charles Anthony Marlin dated 12 June 1998;

-           Affidavit of Charles Anthony Marlin dated 2 July 1998;

-           Affidavit of David Marlin dated 19 June 1998; and

-           Affidavit of Steven Lewis Fullerton  dated 22 July 1998.

The respondent tendered two additional affidavits:

-           Affidavit of Anthony Sahade dated 28 June 1998; and

-           Affidavit of Maroun Anjoul dated 29 June 1998.

The respondent’s principal submission in this matter was that the applicant was a casual employee and had worked for the respondent for less than six months.

If that were accepted, the applicant would have no remedy because of the operation of Reg 30B of Workplace Relations Regulations (formerly Industrial Relations Regulations) (Cth) (“the Regulations”).

I therefore propose to consider that issue first.

The applicant deposed that he began working at the Respondent’s business “in April or May 1995” (EX A, Page 1).  He said he did not fill in any paperwork and was paid in cash.  He said he became full time in May and a “week or two” later he was asked to fill out a job declaration form.   He said he was “paid according to the number of days I worked, a number of which were half days”.   He said that his employment was terminated on 6^th November 1995.

Mr Anthony Sahade, Managing Director of the respondent company said that he had two classes of employees employed at the business – full time and casual.   He said Charles Marlin was a casual employee who had been employed in June 1995.   He relied on an attendance book and pay sheets (records of business of the respondent) to support his evidence that the applicant commenced work on 11^th June 1995 and his last day was 28^th October 1995.

In evidence, also, and relied on by the respondent was an employment declaration form signed by Charles Marlin dated 14^th May 1995 and in which a boxed section had been ticked indicating that Charles Marlin was a casual employee.  Mr Marlin had no recollection of marking the form in that way although he identified his handwriting on the form.

Mr Sahade said that, initially, Mr Marlin was a good worker but later his attitude changed and he swore, was insolent and he would spin the wheels of the customers’ cars and play “chicken” with other workers when driving the clients’ cars.   He also said he came to work “hungover” and smelling of alcohol.  He was, eventually, forbidden to drive the customers’ cars.   However, he said, Mr Marlin ignored this direction.   On 28^th October 1995 after an angry customer protested at the manner in which the applicant drove his car, the applicant swore at everyone including Mr Sahade, and left the workplace.  He returned on 6^th November 1995 only to finalise his pay and enquire about group certificates.

The applicant admitted in cross-examination that he swore at his employer and had been ordered not to drive cars which he had ignored because the employer tolerated everyone doing it.   He also agreed that he was employed on the basis that he was asked, from day to day, to “turn up”.  He agreed he was not paid for time he did not work.  He said, however, that he had worked until 6^th November and had been sacked after a dispute with Mr Sahade about his wages not being paid into a nominated bank account.

A witness called on behalf of Mr Marlin, Mr Stephen Fullerton, gave evidence that he had introduced the applicant to the respondent’s business.    Mr Fullerton agreed he had commenced employment at the Crystal Carwash in April 1995 and Mr Marlin commenced “approximately 2^1/2­ months later”.   He said that he had, from the time he had commenced employment at the Carwash, always signed the attendance book and was not paid in cash.  Mr Marlin had on the other hand said that he worked for a time “off the books” and had not been required to sign the attendance book, and in that period, was paid in cash.   The respondent denied this.

Reg 30B of the Regulations, in force at the relevant time, states as follows:

 “30B.  (1)  Subject to subregulation (2), for the purpose of 170 CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D & E and Division 3 of Part VIA of the Act:

…

(d)       a casual employee engaged for a short period within the meaning of subregulation (3)

…

  (3) For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:

(a)               the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and

(b)               the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer”.

The applicant said he was employed in “April or May 1995”.   The tax declaration form bears two dates - 14^th May 1995 (under the applicant’s signature) and 24^th June 1995 at another place in different handwriting.  The pay records of the Respondent show that the applicant first appears as an employee for the week ending 17^th June 1995, the last record for hours worked by him the week ending 28^th October 1995.   The applicant challenged this and said he worked the following week and was terminated on 6^th November 1995.   The absence of records for this additional time was it was submitted by the solicitor representing the applicant, as a result of fraud by the respondent who, he submitted, subsequently altered the records.

Although this case had had a lengthy hearing before the Judicial Registrar, it concluded after a day of evidence, cross-examination and submissions before me.  I had the opportunity to hear oral evidence on a range of relevant matters from the applicant Mr Marlin, Mr Fullerton, Mr Sahade and Mr Anjoul and I had a number of the exhibits from the previous hearing including further affidavits and business records tendered in evidence.

The onus of establishing that he was in employment with the respondent for at least 6 months rests with the applicant.  The oral evidence given before me was, on this issue, often vague and to some extent, contradictory.  However there were a number of business records which corroborated some aspects of the oral evidence.  The main difficulty with the applicant’s evidence on this issue is that, on key points, his evidence is contradicted by a witness called on his behalf as stated before.  Mr Fullerton agreed that the applicant started work with the respondent two and a half months after he did and this would fix the starting time as in May, at the earliest.  The employment form, in the applicant’s handwriting, is dated by him as 14^th May.  I do not accept that the applicant worked for the respondent before this date.

Neither do I accept the submission put on behalf of the applicant that the pay records of the respondent were fraudulently altered to disguise the fact that the applicant worked at the respondent’s business until 6^th November.   I accept the evidence given on behalf of the respondent that the applicant left his employment on 28^th October and did not work after that day.   It follows from these findings that he was not employed for a period greater than 6 months.

It thus becomes necessary to decide whether the applicant’s employment was casual or full time.

Again the onus is on the applicant to prove the basis of his employment on the balance of probabilities.  The respondent submitted that it has always been the case that the applicant was a casual employee.  In support of this submission he referred to the transcript of proceedings before the Judicial Registrar where the applicant said:

“He [Mr Sahade] asked me each day to turn up day-to-day sort of thing.”

The respondent submits that the applicant may have misunderstood this to be full time employment because the records show he worked regularly.  The applicant conceded that he was treated in the way a casual employee would be - he was sent home when it was raining and when there was no work for him and significantly, he was not paid for this time.

The respondent also referred to the employment declaration form signed by the applicant which has the “casual” box ticked.   The applicant initially denied ticking this box.  When challenged, he said he had no memory of doing so.

As stated previously the evidence of the applicant was, in some respects, unsatisfactory.     His evidence was often vague about crucial matters and when specific, was substantially contradicted by a fellow worker and friend called on his behalf.  I have preferred the evidence of those witnesses which had corroboration from contemporaneous business records or other witnesses.  I find that the applicant was working for the respondent for the period 14^th May 1995 to 28^th October 1995 and that he was a casual employee who worked irregular hours on a day to day basis.

He was offered no further work after 28^th October 1998 when he left the premises of the respondent after an argument with his employer.  However it would make no difference to the conclusions I have reached if the actual date of termination was 6^th November 1995.

In the light of these findings the effect of Reg 30 of the Regulations deprives the applicant of a remedy under the legislation whatever the merits of his case.   The question of the manner of termination need not then be considered and I have not done so.

The application is dismissed with costs.

Associate:

Dated:              28 September 1998