Industrial Relations Commission of New South Wales CITATION : Raschke v Griffiths [2001] NSWIRComm 282 PARTIES : Nicholas Raschke Gary Griffiths FILE NUMBER: IRC4444 of 2001 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - physical altercation between applicant and respondent in the workplace - jurisdiction uncertain - contractor or employee Misconduct of applicant found - relief refused LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 09/14/2001 DATE OF JUDGMENT: 11/09/2001 APPLICANT Mr J Quinn Solicitor of Lockhart Quinn LEGAL REPRESENTATIVES: RESPONDENT Mr Gary Griffiths JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 9 November 2001 Matter No IRC 4444 of 2001 NICHOLAS RASCHKE & GARY GRIFFITHS Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm282 1 This matter was subject to arbitration proceedings on 14 September 2001 consequent upon earlier proceedings which determined that the matter could not be settled by agreement between the parties and which gave rise to directions for the filing and serving of statements of evidence. 2 On hearing Mr J Quinn, Solicitor of Lockhart Quinn, appeared on behalf of Mr Raschke, the applicant. Mr G Griffiths, the respondent employer, appeared on his own behalf with Ms M Griffiths. 3 Mr Quinn brought evidence from the applicant. 4 Mr Griffith relied upon the information contained in his affidavit and was subject to cross examination thereto. THE EVIDENCE 5 The applicant deposed that he was employed as a motor vehicle detailer by the respondent from 16 March 2001, the date upon which the respondent acquired the business from the former owner, Mr Ivan Baronet. The applicant's association with Mr Baronet commenced on 26 October 2000. 6 The applicant asserts that he was engaged pursuant to the Vehicle Industry Repair Services and Retail (State) Award (295 IG 280) and was paid $267.50 per week for the work undertaken as a car detailer. 7 The respondent asserts that the applicant was not an employee but a contractor paid on a piece work arrangement, and accordingly has no basis upon which to bring the present application. 8 The applicant deposed that on commencement of engagement with Mr Baronet he was instructed to carry out the work in a prescribed order and to log his name against the vehicle detailed with an indication of the work done by him. At the end of each week the figures were collected and he was paid accordingly. The applicant deposed that there was an obligation upon him to attend at 8.00 am each morning and to be available to carry out the required work. 9 The applicant deposed that he and a colleague, identified as Mr Duane Nichols, worked together and each received the sum of $12.60 per vehicle detailed, with an additional $10 for each vehicle buffed and polished and $5 for each vehicle washed. The applicant's evidence is that if he worked alone he received double the above amounts. 10 The applicant's evidence is that all materials and equipment were provided by Mr Baronet. Mr Baronet would give instructions as to the type of work to be undertaken and would, on occasion, direct work to be redone if he was not satisfied. 11 The applicant's evidence is that whilst engaged by Mr Baronet, he was paid on a weekly basis less taxation instalments. He deposed that he provided Mr Baronet with a tax file number and at no time had Mr Baronet sought from him an ABN (Australian Business Number). 12 The applicant's evidence is that following acquisition of the business by Mr Griffiths, he was paid by cheque, taxation was not deducted from his earnings, and he was advised he would need to provide an ABN which he subsequently obtained on 1 May 2001. 13 Exhibit 4 is the ABN registration of the applicant as a sole trader issued by the Australian Taxation Office (ATO). 14 The applicant deposed that he was informed by the respondent in or about April 2001 that he would be responsible for his own workers compensation. His evidence is that the respondent continued to provide materials and equipment and that a uniform consisting of a shirt with the words "Anytime Detailing and Distribution" embroidered upon it was said to be forthcoming but was not provided. 15 Pay dockets attached to exhibit 1 show details of the date, type and registration number of motor vehicle, work carried out, and the total amount paid to the applicant in accordance with the rates deposed by him in his evidence. 16 The applicant's evidence is that to his knowledge and belief neither the respondent nor Mr Baronet paid a superannuation guarantee levy on his earnings. 17 The applicant's evidence is that on acquisition of the business by the respondent he was required to be at the business premises from 8.00 am to 5.00 pm, though he went home if there was no work to be carried out, remaining on call to return if work became available. The applicant deposed that he worked beyond 5.00 pm on occasions. 18 The applicant deposed that two weeks prior to the termination of his employment the respondent informed him that he required invoices to be provided in respect to the work carried out. 19 The applicant's evidence is that subsequent to the respondent taking control of the business both Mr Nichols and himself were subject to criticism on a regular basis and an increased insistence on work being redone. 20 The applicant deposed that the respondent issued standing instructions that all vehicles were to be buffed and that suggestions from himself that some vehicles required only a hand polish were not accepted. 21 The applicant's evidence is that on 8 June 2001 he arrived at work at approximately 8.00 am to commence work on the detailing of six vehicles. His evidence is that at around 3.00 pm the respondent criticised the polishing on the bonnet of a Ford Festiva and required rectification work to be undertaken. The applicant deposed that Mr Nichols was then hand polishing the vehicle's bonnet to rectify the problem, which he drew to the respondent's attention. The applicant's evidence is that the respondent put to him that the difficulty was that the client had been informed that the car was ready and it would now take another half an hour. An exchange between the applicant and the respondent then escalated during which the applicant contends the respondent grabbed him by his left elbow to which he objected. The respondent then informed him that he was fired and to leave, saying to him, "That's it, you're fired. Just get your shit and go. Go and come back Tuesday." 22 The applicant describes the subsequent events at points 58 and 59 of his affidavit of evidence (ex 1) in the following terms: 58. "I then picked up my belongings and as I was walking towards the front door of the business premises to leave I saw a movement on my right hand side. I turned and saw Wayne Griffiths. As I turned I was struck on the right side of the head. I recall that I put my hands up to stop Wayne Griffiths from punching me. The respondent then came from behind me and put his left arm around my throat. I tried to turn but tripped and fell but as I was falling I held on to the Respondent's shirt. I recall that the Respondent punched me repeatedly on the right side of the face as I was falling and I recall that Wayne Griffiths kicked me in the back as I was lying on the ground. 59. I recall that Duane then said something, following which the Respondent released his hold upon me and went to the office and his son Wayne went towards the back of the business premises. I recall that I abused both the Respondent and his son and at that time I was bleeding from the mouth." 23 The applicant contends that he then sought medical assistance and did not return to the workplace as he felt intimidated. 24 The respondent's evidence is found in exhibit 7. This evidence supports that of the applicant in respect to the rates of pay and the method of carrying out work. 25 The respondent contends that the applicant was a sub contractor, not an employee, deposing that he was asked to supply invoices consequent upon advice to the respondent from the ATO that without invoices he would be obliged to withhold 48.5 percent of payment and forward it to the ATO. 26 The respondent deposed that the applicant and Mr Nichols were primarily involved in detailing the exterior of vehicles, whilst others did the interior. 27 The respondent deposed that on 8 June 2001 a client telephoned him to ascertain the availability of a vehicle, identified as a Ford Festiva. He made enquiries of the applicant and was told the vehicle was ready, he then informed the client that the vehicle would be available in 10 minutes. The respondent deposed that he then went outside to complete the finishing touches when he noticed that the vehicle's bonnet had swirl marks upon it. The respondent's evidence is that when he raised this with the applicant he was met with a tirade of abuse and foul language and that he told the applicant to go home, calm down, and return on Monday; reassuring the applicant that he was not dismissed but to go home and calm down. 28 It is the respondent's evidence that the applicant became aggressive, swearing and throwing his arms about, leading him to inform him that his services were terminated, conceding that he placed his hand on the applicant's arm and told him to leave the premises. 29 The respondent deposed that the tirade of abuse and foul language continued, the applicant insisting that he remove his hand, which he did. The respondent deposed that the applicant walked away, stopped, turned around and offered more abuse. The respondent put that he then walked up to the applicant, put his hand on his arm again to escort him from the premises, at which point the applicant lashed out at him. The respondent deposed that he grabbed hold of the applicant at this point, lost his balance and both fell heavily to the ground. The respondent deposed that he suffered a cut to the forehead and bruising to his right elbow in the fall. 30 The respondent's evidence is that he held the applicant down; putting to him, "If I let you go will you just get out". He put that the applicant responded in the affirmative, though laced with abuse and foul language. He then released the applicant who left in a further tirade of abuse. SUBMISSIONS 31 In an outline of submissions Mr Quinn sets out in the following terms the basis of the contention that the applicant was an employee: The basis of the Applicant's contention includes consideration of the following matters: (a) Weekly wage paid- to Applicant; (b) Taxation deducted from earnings; (c) Materials provided by employer; (d) Instructions given by employer; (e) Employer had the right to direct how work was to be done and requested work to be redone on occasions; (f) Employer maintained the right to dismiss staff; (g) Employer directed hours of employment; (h) The Applicant's ability to work elsewhere was restricted; (i) All work carried out on employer's premises; (j) Employee unable to-employ others to carry out the work. 32 Mr Quinn relied upon the following cases to support his submissions: Stevens v. Brodribb Sawmilling Co Pty Ltd [1986] 160CLR16; Bacik Distributors Pty. Ltd. v. Kelly [1995] 12NSWCCR30; Humberstone v. Northern Timber Mills [1949] 79CLR389; Neal v. Atlas Products [BIC] Pty. Ltd. [1955] 94CLR41; Marshall v. Whittakers Building Supply Company [1963] 109CLR210. 33 Mr Griffiths relied upon his evidence, putting that the applicant was not an employee; that the applicant was the aggressor; and that it was not his intention to terminate his sub-contract arrangement with the applicant but to reconsider the matter with him by discussion in a less emotional environment the following week, which the applicant did not take up. CONSIDERATION 34 A threshold issue to be determined is that of jurisdiction, as to whether there did exist an employer/employee relationship. 35 Each of the factual grounds advanced by Mr Quinn have a precarious or non-existent foundation. 36 On balance, the circumstances of engagement do not support a finding that there existed an employer/employee relationship. 37 This is a complex and often difficult matter to resolve, made more difficult by the dearth of evidence advanced in this matter. 38 It is unnecessary in the circumstances of this matter to positively conclude the issue of jurisdiction and in my opinion unhelpful to do so. It is inappropriate that a matter so lightly argued be afforded the potential to enter jurisprudence. 39 Accordingly I move to consider the less complex issue of merit upon which the parties were better prepared and able to attend. 40 The circumstances of this matter reflect poorly upon the conduct of both parties. 41 The version of facts as to conduct advanced by the applicant reveal an unacceptable level of aggression on his part. 42 I find the evidence of the respondent to hold greater credibility than that of the applicant. 43 Having accepted the version of events put by the respondent, I am compelled to a conclusion adverse to the applicant, whom I find exhibited behaviour such as to render his discharge from engagement neither harsh, unreasonable nor unjust 44 In the absence of jurisdiction the application is without foundation. 45 In the event of jurisdiction I would decline relief and dismiss the application. 46 The orders sought are refused and the matter so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.