Pope v Montedeen Pty Ltd [1997] IRCA 236

DECISION NO:236/97 INDUSTRIAL RELATIONS COURT OF AUSTRALIA INDUSTRIAL LAW - termination of employment - termination of employment arrangement at initiative of employee - employee or independent contractor Workplace Relations Act 1996 ss.170CA, 170CB, 170DE and 170EA CASES: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 POPE -v- MONTEDEEN PTY LTD No. VI-1610 of 1996 Ryan JR Melbourne 4 August 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1610 of 1996 B E T W E E N : DAVID POPE Applicant AND MONTEDEEN PTY LTD trading as DELTA CAR TRUCK RENTALS Respondent MINUTES OF ORDERS Judicial Registrar Ryan 4 August 1997 THE COURT ORDERS: 1. That the application be 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-1610 of 1996 B E T W E E N : DAVID POPE Applicant AND MONTEDEEN PTY LTD trading as DELTA CAR TRUCK RENTALS Respondent Ryan JR

Melbourne

4 August 1997

REASONS FOR JUDGMENT This is an application for compensation in a claim of unlawful termination of employment. At the conclusion of the hearing I indicated that an initial assessment of the evidence suggested that the employment relationship was not that of employer and employee and that the employer did not initiate the ending of the relationship whatever that relationship might have been. The bulk of the evidence, including much of the evidence of the Applicant, suggests a loose and undefined arrangement between September 1995 and March 1996 whereby the Applicant acted as a consultant. If that was so, the present claim of unlawful termination of employment would fail for lack of jurisdiction. It is not necessary to make a finding on that issue. The Applicant has failed to demonstrate that the relationship with the Respondent, if it were a relationship of employer and employee, was ended by the Respondent at the initiative of the Respondent as employer. The overwhelming weight of the evidence is that the Applicant brought the relationship to an end. In the circumstances, the Applicant's claim lacks jurisdiction and must be dismissed. The Applicant gave evidence on his own behalf. The Respondent called four witnesses