DECISION NO: 187/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether termination at the initiative of the employer - no case submission made by respondent - by consent respondent not put to its election - whether casual employees Industrial Relations Act 1988 s.170CC Industrial Relations Regulations reg. 30B(1)(b), 30B(1)(d), 30B(3)(a) CASES: Protean (Holdings) Ltd (Receivers and Managers Appointed) and Others v American Home Assurance Co [1985] VR 187 TAMER ARSLAN - v - LABOUR LINQ PTY LTD No. VI 5243 of 1995 AND TIMUCIN UCLER -v- LABOUR LINQ PTY LTD No. VI 5244 of 1995 Before: Judicial Registrar Millane Place: Melbourne Date: 19 April 1996 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5243 of 1995 VI 5244 of 1995 B E T W E E N : TAMER ARSLAN Applicant and LABOUR LINQ PTY LTD Respondent AND TIMUCIN UCLER Applicant and LABOUR LINQ PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 19 April 1996 THE COURT ORDERS THAT: 1. The applications of Tamer Arslan and Timucin Ucler are dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5243 of 1995 VI 5244 of 1995 B E T W E E N : TAMER ARSLAN Applicant and LABOUR LINQ PTY LTD Respondent AND TIMUCIN UCLER Applicant and LABOUR LINQ PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 19 April 1996 REASONS FOR JUDGMENT In separate proceedings issued against their common employer, the applicants on 13 October 1995 alleged unlawful termination of their employment as storemen at Dimmeys Department Store between 15 August 1995 and 13 October 1995. They bring their claims pursuant to Division 3 Part VIA of the Industrial Relations Act 1988 (the Act). At hearing the principal areas of argument between the parties centred on whether each applicant was employed by the respondent as a casual employee engaged for a short period within the meaning of subregulation 30B(3) of the Industrial Relations Regulations and, further, whether the applicants' employment was terminated at the initiative of the employer because of a request made by each applicant to have their names removed from the register of employees maintained by the respondent whose principal business is to provide casual employees for businesses as and when requested. Because of the issue concerning termination at the initiative of the employer the applicants bore the initial onus of proof and were required to run their case first. Each applicant gave oral evidence. At the end of the applicants' case counsel representing each of the parties indicated to the Court that, by consent, the parties sought a ruling from the Court on the applicants' cases and, in particular, two issues; the first being whether they were casual employees and by reason of the evidence given by them precluded from the benefits of the Act having regard to section 170CC of the Act and Regulation 30B of the Industrial Relations Regulations; and the second being whether or not there was termination at the initiative of the respondent. The request made was an unusual but genuine one in circumstances where the evidence given by both applicants indicated very little prospect of success on either of the principal issues. This being apparent, counsel for both parties were asked by the Court whether the respondent sought to make a no case submission at this stage of the proceedings with both parties being directed to the decision of the Full Court of the Supreme Court of Victoria in Protean (Holdings) Ltd (Receivers and Managers Appointed) and Others v American Home Assurance Co [1985] VR 187. In that decision the Full Court set out in some detail the matters to be considered where a submission that there is no case to answer is made on any issue before the Court. In his decision at pages 237 and 238, Tadgell J. said: "When, in the course of a trial by a judge sitting alone, a party indicates that he desires to submit that he has no case to answer upon a contested issue, he is really inviting the Judge to rule that he should not have to adduce evidence, or further evidence, on that issue in order to have it finally decided in his favour. Usually, but not inevitably, the invitation will be issued at the end of the evidence called against the party desiring to make the submission (whom I shall call "the moving party") and before that party calls any evidence on the relevant issue in answer to that of the other party (whom I shall call "the respondent party"). It might be issued after the moving party has called some but not all of his evidence. The judge is entitled, for reasons that seem appropriate to him, to decline out and out to entertain such a submission at the stage at which he is asked to do so. Normally, however, the Judge would not feel justified in refusing outright to hear a submission of no case if to hear it would carry the prospect of justly facilitating the disposition of the litigation. Usually there would be three courses open to him, short of refusing altogether to entertain the submission, namely:- 1. He might decline to entertain the submission at that stage unless the moving party were to elect before making it not to call any evidence, either generally or on the issue on which the ruling was sought; or 2. He might allow the submission to be made without putting the moving party to any election at that stage but leaving, until he heard it, the question whether or not he would rule on it without requiring an election to be made; and having heard the submission, and any answer to it by the respondent party, he could either rule on it or not, perhaps requiring an election to be made as a prerequisite to his doing so; or 3. He might indicate that he would both entertain the submission and rule on it without requiring an election to be made by the moving party. ... In deciding which course to follow the Judge will be guided by the nature of the case, the stage it has reached, the particular issues involved and the evidence that has been given. The imposition of a requirement that the moving party make an election before the Judge entertains the submission, or before he rules on it, will depend on the just and convenient disposition of the litigation. The imposition of such a requirement is not a right of the respondent party, for the fate of the submission of the moving party, once made, is in no sense dependent on election or no election. This is so because the question the Judge will need to consider if he rules on the submission does not alter according as to whether or not an election is made. The question will be whether the respondent party, carrying the onus of proof of the issue the subject of the submission, has failed to discharge it. If the moving party succeeds the issue on which the ruling is made will ordinarily cease to be a live issue, for it will have been finally decided against the respondent party; and this whether or not the moving party has made an election. If the submission fails, the moving party having made an election, the issue will equally cease to be alive for it will have been decided that the respondent party has not at that stage failed to discharge his onus, and no further evidence will be capable of being called upon it. Only if the moving party fails in the submission, not having made an election, will the issue stay alive, for the moving party will then remain entitled to call evidence upon it. Hence, if the respondent party fails, he will fail whether or not the moving party makes an election; and if the moving party's submission fails the respondent party will in no event be worse off than he was before the submission was made." It is clear from the abovementioned decision that where a no case submission is put to the Court it is open to the Court to proceed to rule on this issue without requiring the moving party to make an election, which might otherwise preclude that party from calling evidence on the issue ruled upon if such a submission is unsuccessful. It was indicated to the Court by counsel for all parties that the parties consented to the respondent not being put to its election if a no case submission was made to the Court. Given the abovementioned matters I proceeded to rule on the no case submission of the respondent without putting the respondent to its election and, as a consequence, informed the parties that neither of the applicants had discharged the burden of proof in showing that there was termination at the initiative of the respondent. Further, on the evidence given thus far, and the admissions made by each applicant in cross-examination that at all relevant times they were casual employees employed for a period of less than six months, they were obviously precluded from the benefits of Division 3 Part VIA of the Act. Because of the ruling made I proceeded to make orders that each application be dismissed, indicating to all parties that I would publish more fully my reasons for both the ruling made and the orders handed down in due course. THE FACTS Having heard the evidence of both applicants it appears that their claims were misconceived. Both young men are friends having been employed in various jobs prior to completing applications for employment with the respondent on 14 August 1995. The applications completed (Exhibit R2 and R5) show that the applicants previously worked for another agency and that work had been as casual employees at the Crown Casino. It seems that Ucler saw an advertisement in a newspaper, and brought this to the attention of his friend, Arslan. That advertisement had been placed by the respondent seeking casual employees for vacancies in the south eastern suburbs. After making arrangements to attend the respondent's premises to be interviewed, both men completed an "Applicant Card" setting out their work history, previous agency experience and other information to enable the respondent to ascertain what sort of work it could offer them. It is important to bear in mind that at no stage was it denied by the applicants that the respondent's business was simply that of employment agents and any work they performed was to be performed for a third party who engaged them through the agency. They were not employees of the third party at any stage, their time sheets being submitted to the respondent for payment at the appropriate hourly rate. It appears that during the course of discussions with both applicants the respondent informed them that there were two positions available for storemen with forklift driver certification at Dimmeys Department Store. Both men understood that at least at the start of their employment they were to be employed as casual employees by the agency, however, both expressed the belief that they were to become full time permanent employees of Dimmeys. This they said was because of representations made to them both by the respondent's employees and the staff at Dimmeys. The representations from the staff at Dimmeys were said to have been made during the time the applicants worked as storemen from 15 August 1995 to 10 October 1995 when their employment with Dimmeys ceased. It is apparent from the applicants' evidence and the concessions made by them, that they confused their position with the agency as casual employees and the prospect of full time permanent employment with Dimmeys if the store was happy with their work performance. On 10 October 1995 both men were informed by the respondent that they were no longer required to work at Dimmeys; that Dimmeys would be employing other casual staff and thereafter making a decision on whom to hire on a full time basis. Both were aggrieved by this decision, feeling that because they had worked regularly and performed well in the time they worked for Dimmeys, they should have been made full-time and permanent employees. They also felt that because of the comments made to them regarding full-time and permanent employment, their employment had been unlawfully terminated, again seeming to confuse their job with the employment agency with the job being performed for Dimmeys. On the facts it is quite clear that they failed to meet the requirements of Regulation 30B(1)(d) and 30B(3)(a) the relevant provisions of which are set out as follows: "30B(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act: (a) ... (b) ... (c) ... (d) a casual employee engaged for a short period within the meaning of subregulation (3). 30B(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; (b) ..." Insofar as the applicants carried the burden of showing that their employment was terminated at the initiative of the respondent, they failed to discharge this burden. Both men made a decision, the effect of which was to have their names removed from the respondent's register of employees available for casual employment. In doing this they may not have appreciated that it amounted to termination at their initiative rather than that of the respondent, however, their reason for taking this step was to enable them to obtain Employment Separation Certificates and apply for unemployment benefits. On the evidence it was also apparent that a further reason for the applicants withdrawing from employment with the agency was their belief that they had not been properly dealt with by the agency in respect to their employment at Dimmeys; believing at all times that they would eventually become permanent full time employees with the third party who was then contracting with the agency for the provision of their services. No issue was raised before the Court on whether or not the agency was an employer. Further, although the outline of the respondent's argument also raised an issue pursuant to Regulation 30B(1)(b); namely the allegation that the applicants were engaged under a contract of employment for a specified task, there was no opportunity or need to pursue this issue given my ruling on the no case submission. Considering the abovementioned matters and the evidence called by the applicants, the no case submission was successful and I made the orders set out below. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The applications of Tamer Arslan and Timucin Ucler are dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: ........................................... Dated: 7 May 1996 Solicitors for the Applicants: C V Kay & Co Counsel for the Applicants: Mr F. Davis Solicitors for the Respondent: Gilbert & Tobin Counsel for the Respondent: Mr S. Stuckley Date of hearing: 19 April 1996 Date of judgment: 19 April 1996