Industrial Relations Commission of New South Wales CITATION: Dee Donavan and Blaze on Stage Pty. Ltd. [2004] NSWIRComm 1128 APPLICANT PARTIES: Mr. Dee Donavan RESPONDENT Blaze on Stage Pty. Ltd. FILE NUMBER: 5385 of 2004 CORAM: Tabbaa C CATCHWORDS: Unfair Dismissal - Independent Contractor - Sole Trader - employee - Entertainment Industry LEGISLATION CITED: Entertainment Industry Act 1989 Industrial Relations Act 1996 Clarke v Custom Security Services Pty. Ltd. (1996) 40 AILR 3-438 CASES CITED: Hollis v. Vabu Pty. Ltd. [2001] HCA 44 Stevens v Brodribb Sawmiliing Company Pty. Ltd. (1986) 160 CLR 16 No. F.C. 86/001 HEARING DATES: 02/03/2004; 03/30/2004 DECISION DATE: 12/30/2004 Applicant appeared in person Mr. R. Berry, Solicitor REPRESENTATIVES: DECISION: - 44 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: TABBAA, C. 30 December, 2004 Matter No. IRC 5385 of 2004 DEE DONOVAN and BLAZE ON STAGE PTY. LTD. Application by D. Donovan re: unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996. ………………………………………………………………………………………………… D E C I S I O N 1 The applicant filed a claim under Section 84 of the Industrial Relations Act, 1996 on 29 September, 2003 alleging that the respondent had unfairly dismissed him on 04 September, 2003. The applicant contended that he had been employed from 15 April, 2002 until his dismissal as a professional Entertainer. 2 The file was allocated on the same day and was set down for conference and directions on 21 October, 2003. Two threshold issues were identified during those proceedings. Firstly, the claim had been filed out-of-time and, secondly, the Respondent contended that the applicant had been engaged as an independent contractor. The claim was unable to be resolved on that occasion and a filing schedule was directed in relation to the first threshold issue. 3 At the hearing held on 07 November, 2004, the Commission was advised that the applicant had miscalculated and in fact he had filed his claim within the 21 days. The Respondent confirmed that the parties were agreed that the 04 September dismissal date was factually incorrect. The conversations that Mr. Donovan alleged constituted a "dismissal" occurred on 09 and 11 September, 2003. As the claim had been filed on 29 September, 2003, the application was clearly filed within time. 4 The time was utilised in attempting further conciliation of the claim. Those attempts were also unsuccessful and a filing schedule was issued in relation to the second threshold issue - whether the applicant had been engaged as an employee or an independent contractor and, should the Commission find in the Applicant's favour, the merits of the claim. 5 The matter was set down for hearing on 03 and 04 February, 2004. The hearing commenced on 03 February, 2004 at which time Mr. Dee Donovan entered an appearance on his own behalf and called evidence from: Dee Donovan Applicant David Callan Friend Pamela Miller Referee Philip Miller Referee 6 Mr. R. Berry, Solicitor, entered an appearance on behalf of the Respondent and called evidence from: John Bogie Retired Entertainment Manager - Ryde-Eastwood Leagues Club Tanya Sullivan Managing Director of Respondent firm Gregory Hayes Entertainer/Promoter Melinda Hutchison Entertainer Chris McCarthy General Manager - Ryde-Eastwood Leagues Club Harlan Bestwick Entertainment Manager - Ryde-Eastwood Leagues Club 7 The listing was vacated on 04 February when the applicant presented himself at the Emergency section of a Hospital to attend to an urgent medical condition. The matter was eventually listed for continuation of the hearing on 30 March, 2004. 8 BACKGROUND 9 Briefly, Mr. Donovan contended that he had been approached by Ms Tanya Sullivan, Managing Director of Blaze on Stage Pty. Ltd., and offered part-time weekly employment on a permanent basis with the Ryde-Eastwood Leagues Club at West Ryde (the "Club"). The position offered training, which he accepted over a period of several days, to work on a series of weekly in-house promotions. 10 He stated that he had been concerned about the alleged requirement for him to issue invoices under his trading name for work carried out on five promotions for varying hours three days per week every week. He had been required to include GST. He had used that system of payment when engaged to perform as a variety entertainer but not in the context described above. Nevertheless, he alleged that he had reluctantly acquiesced to that request over the 18 months of that contract. 11 Approximately six months prior to his dismissal, two promotions had been taken away from him and offered to someone else. He did not accept the reason he was given that it was because management of the Club was unhappy with his performance. He believed that it was because Ms Sullivan wanted to provide another male entertainer she had been managing with additional work. 12 On 09 September, 2003 Ms Sullivan allegedly telephoned him and terminated his services at the Club without explanation. There were two other calls over the next two days offering limited performances at the same venue. During those discussions, he had allegedly indicated that he considered his termination unfair and that he ought to have received at least one month's notice or payment in lieu. He had further allegedly indicated that he might have to contact the Industrial Relations Commission. That statement had allegedly resulted in his employment being terminated forthwith. 13 It was contended on behalf of the Respondent that Ms Sullivan was licensed under the Entertainment Industry Act as a Venue Consultant and Entertainment Industry Agent. That Act, it was explained, was designed to clarify the legal positions of the various players in that industry. The Respondent further relied on the Workplace Injury Management and Workers' Compensation Act, which, it was alleged, deemed the employer of an entertainer as being the venue or the party that was benefiting from the performance. Finally, correspondence was tendered from the Club directing the Respondent to remove the Applicant from their promotions at that venue because of complaints from staff and patrons of the Club. THE EVIDENCE The Applicant's Case 14 The applicant tendered a statement in the proceedings dated 21 October, 2003, as amended, and 15 January, 2004 (Exhibits D1 and D2 respectively). 15 Mr. Donavan stated that he was a professional entertainer of 42 years' standing. His name was John O'Connor, professionally known as Dee Donavan, trading as Dee Donavan Enterprises. He explained that there were many facets to the entertainment business - promotional, variety work and television work. On and off over a period of several years, he had accepted engagements from the Respondent as a freelance variety entertainer to perform on stage. On those occasions, he had exercised complete control over every aspect of his presentations and provided his own tools of trade. 16 On 12 April, 2002, Ms Tanya Sullivan offered him permanent part-time employment at the Ryde-Eastwood Leagues Club. He had jumped at the offer of regular employment and accepted the offer. He was to be paid weekly by the Respondent company. His duties included work on a series of weekly in-house promotions for which he received two (2) days' training (13 and 14 April) arranged by Ms Sullivan. 17 A man who had conducted promotions at the Club for many, many years, had trained him. He was trained in the system that was already in place and which had to be strictly adhered to. The applicant tendered a Safety Corrective Request Form (Exhibit D3). He had filled in the section under the heading "To Be Completed By Employee" and signed it on 23 April, 2002. He described it as an in-house risk assessment form. He was quite clear that he was never an employee of the Club. The Respondent informed him that he had to comply with the Club's in-house arrangements relating to safety management. 18 He contended that, apart from his role as host of each of the promotions, he was given no say in how the promotions were presented and worked. Ms Sullivan of the Respondent company had dictated every aspect - including starting and finishing times, breaks taken, and so on. He rejected as immaterial the suggestion that the Respondent was merely passing that information on as an agent of the Club insisting that she had been the employer. He contended that every aspect of his work had been subject to control by Ms Sullivan. Mr. Donavan tendered documents (Exhibit D4) setting out a list of instructions for the various promotions he undertook - Clairvoyant, Let's Go Shopping, and Bingo. Also tendered was correspondence from Ms Sullivan to the Promotions Team dated 04 August, 2003 (Exhibit D5) attaching the Promotions Roster for the following week. He stated that he had received such rosters most weeks. 19 As the said engagement was different in nature to previous engagements in that it was regular on-going employment, he had questioned Ms Sullivan about the responsibility for employment tax and benefits. Her response was that, as usual, they were his responsibility and she asked him to invoice her, including GST, under his trading name of Dee Donavan Enterprises. Although he believed that the present engagement was better categorised as that of an "employee", he wanted to retain that engagement and so he felt obliged to accept her decision. In his opinion, Ms Sullivan had a volatile nature and, from experience, was aware that she was prone to outbursts of anger. He had not received any of the entitlements that he would have been entitled to receive as an employee. 20 He maintained that he had worked diligently and professionally throughout the following 18 months. He believed that he had been popular with staff and members alike and ran each of the five (5) promotions in accordance with the requirements laid down for him. He worked on the Monday, Tuesday, Wednesday, Friday and Saturday of each week on a regular basis. 21 In his statement, Mr. Donavan stated that he had worked on those five promotions for twelve (12) months prior to being relieved of two (2) because management was not happy with his work. During evidence-in-chief, he stated that it was a period of six (6) months prior to being relieved because management wanted a change. There was no mention made, during his evidence-in-chief of the Club's management being unhappy with his performance. During further cross-examination on 30 March, Mr. Donavan conceded that after six months he was told by Ms Sullivan that the management of the Club was not happy with his work. 22 He had acquiesced without demur for fear of losing the other three (3) promotions even though it was his personal belief that the explanation was untrue. He believed that the real reason was that Ms Sullivan wanted to provide another male entertainer she was personally managing with more work. 23 He was left with bookings on Monday, Wednesday, Friday and Saturday of each week. Ms Sullivan later relieved him of the Wednesday promotion which she gave to a lady she was also managing because that entertainer was not getting enough of the promotions. 24 He was left with the Monday ($100), Friday ($120) and Saturday ($80) bookings. He continued with those bookings right through until his termination. A promotion would last from approximately 11 am - 2.00 pm, with a break of one hour on the Friday and on the Monday it would be half an hour. He worked on Saturday mornings only. 25 Mr. Donavan stated in his statement that he had received his first call on the evening of 09 September. He was shocked by a call from Ms Sullivan who advised him, without any explanation, that his services were no longer required at the Club. He had expressed his disappointment to her and stated that his dismissal was unjust, unfair and unreasonable. A little while later, he had received another call from her during which he was told that he could perform another shift on Wednesday, 10 September, 2003. 26 On Thursday, 11 September, he received yet another call from Ms Sullivan who advised him that he could perform his shifts until the end of that week and finish up then. He pointed out that he was entitled to receive four (4) weeks' work or four (4) weeks' pay in lieu of notice. She had rejected that claim and upon being advised that he may have to contact the Industrial Relations Commission about her actions, she had become angry and terminated his employment forthwith. 27 During his evidence-in-chief, he stated that the first call had been received at approximately 8 pm on 04 September, 2003 at his home. He recalled that the conversation had been along the following lines: Sullivan: Dee, I hate to do this to you but I'm going to have to let you go. Donavan: Do you mean I'm fired? I'm being dismissed? Sullivan: Yes. Donavan: Can you tell me why? Sullivan: I don't have to give an explanation to you. Donavan: Look, I'm entitled to that, and the very least you should give me some idea as to why. Sullivan: I don't have to do that. Donavan: Well, look, I don't accept this. I do not accept this. I'm going to have to see further to it. 28 He stated that at that point he had mentioned referring the matter to the Commission to which she had responded: Sullivan: Well, look, if you can work another few days. 29 He did the Friday, Saturday and Monday promotions. On 11 September, he received another call from Ms Sullivan who advised him that his employment was terminated. The conversation had been very similar to the one on 04 September and had concluded with the applicant advising that he would be pursuing the matter as an unfair dismissal. He contended that he had not been given any opportunity to put forward any explanation nor had he been approached at any time during those 18 months and advised that his work was unsatisfactory in any way. He believed that the reason he had been relieved of his promotions on each occasion was self-interest - he discovered later that Ms Sullivan's mother had been offered part of his promotions. 30 He stated that, as a professional entertainer, he had been offended by her allegation that management of the Club had been disappointed with the standard of his performance. In response to his inquiry, the General Manager of the Club, Mr. Chris McCarthy, had stated that the termination of his contract had nothing to do with the Club. No mention had been made of any dissatisfaction with his performance. 31 He was emphatic that, throughout the period of his engagement at the Club, he had never been approached by anyone about the standard of his work. He had been dismissed without any explanation or opportunity to respond to any allegations against him and was refused financial compensation in lieu of notice. During further cross-examination on 30 March, he was insistent that nobody ever communicated to him at the time of his termination that his work was substandard. 32 He contended that the Members of the Artistes Answering Centre, with whom he had been registered for over 30 years, would attest to the fact that, as a gesture of good faith, which, ultimately, had not been appreciated, he had turned down a number of bookings offered for days when he had been regularly rostered at the Club. He tendered a facsimile from that Centre, dated 22 December, 2003, which set out bookings taken for him as at that date (Exhibit D6). Those bookings, he stated, were an indication of the bookings that were available to him on Mondays, Wednesdays and Fridays and which he had declined out of his loyalty to the Club and in favour of his regular bookings at the Club. The dismissal had therefore caused him financial hardship. When it was pointed out to him that the bookings were for December and it was to be expected that Entertainers would be booked out during that month, Mr. Donavan pointed out that the exhibit showed that bookings were made a month in advance and that he had experienced a vacuum between September when he was dismissed and late November. 33 Mr. Donavan concluded that he was seeking a month's wages in lieu of notice and a further fourteen (14) weeks' pay as financial compensation for loss of earnings over the period from week commencing 15 September, 2003 to 15 December, 2003, calculated on the basis of a weekly payment of $300 - a total of $5,400. 34 During cross-examination, Mr. Donavan stated that prior to calling bingo at the Club, he had little or no prior experience in bingo calling or promotional work at any Club. On occasions when he had filled in for someone else at another venue, the game had been set up for him and he had merely followed instructions. His experience was in the area of corporate functions. The Club had trained him in bingo and the various games. There were two sides to his persona - the variety entertainer and the employee. He insisted that he had not been booked by the Club as an entertainer and the fact that he was a variety entertainer of long-standing was not a relevant matter to his work as a bingo caller at the Club. He had merely been booked to host promotional sessions. He drew on his personality in the performance of that role. He disagreed that $50 per hour was a high rate for a host who claimed to have had no particular skills but he had agreed to do it for that price. He stated that the going rate was about $80 - $100 and the bingo caller had to set the board up, get the tickets out and call the game. 35 He confirmed that Zingo (Exhibit B1), a fastrack derivation of bingo, was his brainchild, which he had come up with in the last three (3) months of his employment. He had offered it to Ms Sullivan as an alternative to one of the bingo sessions. He believed that Bingo was a very monotonous game and he felt that Zingo would appeal particularly to younger patrons. It never came to fruition with anybody. 36 He could not recall to who else he had offered it but thought it would have been to "a few others" as he was in the business of promoting himself and had to open up some work for himself on days when he was not booked at the Club. Well, I promote myself in the sphere of variety entertainer primarily.... I do my promotions on my computer. I try to present it in a professional manner, in colour. It's mainly to do with my work as a professional entertainer. I would have sent this to Ms Sullivan to try and open up another day to provide work for myself and to probably better things, as I thought, there through a different game, a variation of this game of bingo....If I had offered it to a couple of people that's probably - I probably would have done that, just to provide work for myself, you know, because I had already been trained in calling bingo and it opened up pathways for me, but when I offered this to Ms Sullivan I honestly felt that it would be to our mutual benefit and it would enhance things at the club and maybe add a bit of variety. 37 On the proposal he had distributed, he had stated that "Zingo" would be "hosted" weekly by popular Award Winning Variety Entertainer "Dee Donavan" affectionately known in the Industry as "The Silver Baron". He denied that the words implied that he would be involved in the game or was peddling himself as a variety entertainer. It would have been remiss of him not to promote his name at every opportunity. 38 He agreed that the biography he distributed provided a cameo of his wide range of experience in the entertainment business (Exhibit B2). It was a compilation of his work and snippets from write-ups that he had accumulated over the years. He had not suggested that he was an employee whilst engaged as a variety entertainer because he considered himself to be an independent contractor in the performance of such roles. 39 The applicant confirmed that he had sent a letter dated 06 October, 2001(Exhibit B3) from Dee Donovan Enterprises to the Respondent attaching a brochure and advising of his most recent successfully produced shows and seeking bookings for the first quarter of 2002. The leaflet was designed to sell him as a variety artist. He had concluded the correspondence with an expression of gratitude for past work she had booked him for. He stated that he sent a similar letter to other agents. The applicant stated that he had been a sole trader for "many, many, many years" and had his correspondence sent to a post office box address as it was more convenient. 40 He had created a brochure of the cabaret show he had put together celebrating 38 years as a variety entertainer in 1999 (Exhibit B4). He explained that with the advent of home entertainment and the introduction of random breath testing, variety entertainment work was not as prevalent as it used to be and Entertainers have been forced to look to other forms of regular employment in order to survive. He had become innovative in trying to come up with ideas to support his family. 41 In his experience, there were generally more women than men attend bingo and other promotions. He was aware that he was very popular with ladies and had specialised in ladies day shows. He had distributed a brochure to agents promoting such a show with the aim of obtaining bookings (Exhibit B5). It had nothing to do with the fact that more women attended bingo sessions than men. He had been instructed by Ms Sullivan not to engage the audience in too much humour as they just wanted to get on with the game. 42 He confirmed that, of his own volition, he had put together a Super Fun Seniors Show (Exhibit B6) - a variety show catering for mature audiences. He had created it in 2001 for bookings in 2002. He had also come up with promotions such as Blackjack Funtime and Hollywood Starcards (Exhibit B7) to increase poker machine revenue and thereby provide employment for himself on a regular basis. 43 Mr. Donavan identified a tax invoice created by him operating as Dee Donavan Enterprises on 01 September, 2003 and addressed to the Respondent (Exhibit B8). He confirmed that he had forwarded weekly invoices to the Respondent for 18 months, as he had been required to do. The invoice quoted his ABN as a sole trader. He had claimed GST on the invoice and had forwarded it on to the Commonwealth. He confirmed that he invoiced all the venues he worked at, or the consultants he worked through, in the same manner. 44 One of the items invoiced was a promotion called Bucket Bonanza which the applicant denied was a form of entertainment. He described it as a poker machine promotion designed to be a revenue raiser. He claimed that no particular skill was required for the work he was undertaking - he merely used the training that had been provided to him by the Club. Other than smiling, he did not have to use the skills and experience he had obtained over the 40 years of entertainment to undertake his duties. 45 It was noted that centred across the foot of the invoice was a reference to a web site. The applicant confirmed that he had set it up as a reference for agents to determine his abilities both from a variety and from a promotional point of view. He pointed out that prior to his commencement at the Club, he had not given promotions much thought. Since his commencement, he realised that he needed to be creative to survive in that industry. 46 The applicant confirmed that he had been obliged, as a variety entertainer and for general work within Clubs, to take out a public liability insurance cover, dated 19 August, 2003, with Duck for Cover in Melbourne (Exhibit B9). It was likely that entertainers would not be engaged by the Clubs without such a cover. He seemed to recall that Ms Sullivan had asked the entertainers to look into the issue and, if he had handed her a copy of the policy, he would have done so at her request as she would have wanted to confirm its currency. He conceded that some acts took a chance and did not obtain cover. He felt it was prudent to do so and there had not been any pressure placed on him in that regard, "I just took it up because I felt it was the right thing to do". 47 He could not recall ever being sick during those 18 months and he had not taken a holiday for the last five or six years. He confirmed that he had not sought leave or payment for annual leave from the Respondent over the 18 months of his engagement at the Club. Yet he insisted that it was never clear to him that the arrangement being proposed to him was intended to be one of a contractor. Berry: How does that make sense, when you say that you never claimed holidays? Donavan: It was the arrangement we had. We were to look after our own business that way. Q. Isn't that the point, though, Mr Donavan, that's the arrangement that you had? A. No. Q. That you were a contractor? A. No, not at all. It was a totally different thing. I was to be offered regular employment per se, a regular job every week, it was told to me - every week and, as I said, at that time I had six of them, six promotions. I welcomed it. I didn't want to question it too much, because I was afraid. I mentioned earlier that Ms Sullivan can be quite volatile sometimes, and I didn't want to rock the boat. I was offered this employment; I accepted it. I didn't question it. I was told to invoice, and I did. I also realised I was responsible for my own tax problems, and so I took care of that myself. It was my responsibility. Q. Did you ever claim superannuation from Blaze on Stage? A. No. Q. Why not? A. No. As I said, this was skirted around. In the earlier piece, when we had the meeting, the original meeting, there was a lot said, a lot of things, and-- Q. Do you recall anything that was specifically said, or do you just have a general recollection that lots of things were said? A. I have a general recollection. I mean, it is quite a while ago. We were all excited about getting this amount of work - all of us - and a lot of things were said, and we - I can't recall exactly what was said at the time, but I know there was implied - it certainly was implied - that it was going to be regular employment for us and it would be every week, and we felt good about that. It was-- Q. You're putting a lot of emphasis in your answers on the regularity of the work. A. Of course, because that's exactly what happened. I was regularly employed. Q. What I'm trying to understand is, if you were given that bingo calling work on an irregular basis, would that have constituted an employment contract? A. I don't think so. It was the regularity of it that, in my mind, constituted employment, a line of employment. It was more than the regularity: it was the regularity; it was the control factor, and it was all of that. You know, a famous judge, a High Court judge, said that you mustn't call a rooster a duck; you can call it if you want to but, at the end of the day, a rooster is a rooster and a duck is a duck.... What I'm saying is you can label it anything you want, yet what is fact is the fact that I was regularly employed. I did have regular employment every week for 18 months--and that's got to constitute employment. Q. If we look at it from a general business proposition, Mr Donavan, why should my client, the respondent, be encumbered with the notion that you're an employee because she gives you regular work as a contractor? A. Yes. Q. Why does that make any difference? A. It makes a big difference from the control factor, the regularity of it. Every single week I had this work to look forward to. The control factor-- Q. Isn't that a risk you take in any business---that, if you put all your eggs in the one basket, perhaps if that supply of work is cut off, your business will suffer. A. If you're an employee, yes. What constitute an employee are a regularity, the control factor and being dictated to in every aspect of it. That is a - constitutes an employee, not an independent contractor. An independent contractor is totally different. Q. ... You said that you had regular work. Were you able to swap your shifts with other workers? A. Very, very irregularly. When we started, I spoke to Tanya, Ms Sullivan, about some bookings that I already had in my book previous, and she said, "You can honour those." After a certain period of time, I felt it wasn't - I didn't take any bookings. I put a blanket over the Artistes Answering Centre from Monday, Wednesday to Friday and Saturdays, and I would not accept bookings because I felt I was appreciative of the fact that I was getting regular work at the club, and I didn't want to-- put the club in a position that I was chopping and changing and taking my own work. So the few bookings I did were in the earlier part, not in the latter part. From a certain point, you'll find if you check the invoices that I had a full line of work, and I could have accepted jobs for more money than $100 for the show, and I didn't. Q. In those early days, when you did swap, what arrangement did you make? Did you contact Tanya Sullivan, or-- A. I simply rang Tanya, and I said to her, "Look, I have a booking in - I have a particular club I have to do. It's maybe a daytime thing. I've had it from before you employed me and may I do it?" She said, "All right. We'll put one of the other people in your place." I didn't abuse the fact. It's not in my nature to do that. 48 He felt that it was a concession that she had been willing to make in the earlier part of his engagement with the Club but knew that "it would not have sat well with her" if he had accepted another booking elsewhere at a time when he was rostered on for a promotion at the Club. He could not recall requesting, during the latter part of his engagement at the Club, to work elsewhere but if he did, it would have been an exceptional circumstance and he did not abuse it. He could not recall any occasion when she had refused his request although she had been annoyed about the commitments he had already made prior to commencing the engagement at the Club. 49 He confirmed that during his 18 months at the Club, he had taken other bookings of his variety show but he was limited to those times when he was not rostered on at the Club. 50 Mr. Donavan initially stated that Ms Sullivan had supplied all the equipment he required to undertake the promotions at the Club - the sound system, the bingo board and books, the clairvoyant board and so on. Upon further cross-examination, he conceded that the equipment was owned by the Club but insisted that Ms Sullivan had dictated its use. When he did the Clairvoyant show, the previous Entertainment Manager of the Club had suggested to him that if he wore a cape it would enhance the promotion. He had bought a cape and was re-imbursed directly by the Club. 51 He was required to wear a wine-coloured vest and had been issued with a name badge for identification purposes. The badge did not carry his name but that of the Respondent firm. 52 Ms Sullivan had attended his performances every now and then, maybe once or twice a month. He was not quite sure as it varied. However, it was obvious that she was not there to socialise. She gave directions, opinions, informed them on new occurrences and kept tabs on promotions to ensure that they were being undertaken her way. She commented on tardiness and cautioned them about punctuality, "There was always that degree of control". He stressed that he had been diligent with regards to his timekeeping. 53 Mr. Donavan was reminded that he had made an issue out of the fact that he had never received any complaints about his performance. He repeated that he had received compliments from the staff and the patrons about his performance, including from Mr. Harlen Bestwick, Entertainment Consultant with the Club. He conceded, however, that there was one occasion when he had been questioned about a bingo session. Everything had run smoothly until approximately two (2) months prior to his termination. He had arrived at the Club to conduct the bingo session. He picked up the sealed box, which had arrived from the Printer, split it open and handed the cards to Melinda, his assistant, to distribute. As it turned out, there was a printer's error in the packaging and multiple winners came up. Although the situation had been completely beyond his control, he had received the blame for it. Apparently, it had happened once before. A Director of the Club, Keith Agate, reported it to management and Mr. Harlen Bestwick spoke to him about it for the first time. He had explained that it could not possibly have been his fault as he had no jurisdiction over bingo cards. It was not unreasonable to assume that there would be multiple winners at any bingo promotions because of the printing of the numbers on the cards. Obviously, Mr. Bestwick had not accepted his explanation. 54 In relation to the letter of complaint lodged against him by Margaret McCutcheon, he dismissed that complaint as coming from a lady who did not have much credibility. That was evidenced by the fact that a reply had not been forwarded until about a month or six weeks after its receipt. She was well known amongst management and staff as an habitual complainer about every single thing. 55 He stated that he could not honestly remember whether Ms Sullivan actually told him, during each of the three occasions, that work was being taken from him, that management were not happy with his work or whether she had merely stated that she had to replace him because management wanted a change. If his work had been inferior, he would not have been kept on week after week for 18 months by a professional club. He could easily have been replaced by the Agency. 56 Mr. Donavan agreed that even if he were successful in his application, he could not be returned to a host employer that did not want him. However, he could not accept that management of the Club did not want him. He was convinced that they were quite happy with his work. He explained that the Club was giving evidence against him in the proceedings because it had a vested interest in the outcome - a finding against the Respondent would open up a Pandora's box in the Entertainment industry. He insisted that he had not been provided with any reason for his dismissal. 57 Mr. Donavan wrote to Mr. Chris McCarthy, the General Manager of the Club on 12 September, 2003 (Exhibit B11) wherein he stated: It is also of personal concern to me that in the 18-month period of employment at your C lub three promotions were taken from me by Tanya and on every occasion I was informed by her that the management was not happy with my work. 58 He insisted that he lost the three promotions on one occasion. When questioned about the use of the words "and on every occasion", he explained that the first occasion occurred six (6) months after commencement of his employment and the second occasion had culminated in his dismissal. He agreed that it was communicated to him from the very first occasion that management had concerns about his work but he did not believe that to be true and put it down to "just words", a "fabrication" on the part of Ms Sullivan. He had a feeling, but acknowledged that he had no hard evidence, that management was blamed for a decision fuelled by self-interest on the part of the Respondent. His only evidence was the fact that, up to that point, he had not received any complaints about his work, he was being complimented on the good job he was doing and he had built up the crowd and then Ms Sullivan replaced him with a man she was managing. He accepted as logical that ordinarily a replacement would be appointed to fill a void. 59 Later during cross-examination, he stated that he had erred in his letter to Mr. McCarthy and insisted that he had only been advised of management's displeasure on one occasion - six months after commencement of his employment when he lost three promotions. He was seeking to confirm whether his dismissal was the result of the Club management's decision or resulted from a personal agenda on the part of Ms Sullivan. 60 He emphatically denied that Ms Sullivan had advised him, on 09 September, words to the effect that "Due to ongoing negative feedback, combined with a major complaint made recently with regard to Monday night bingo, I have been instructed to replace you as host." 61 He pointed out that if he was to be phased out of the roster over the following few weeks he would not have sought redress for unfair dismissal. He denied that he had warned her that she did not know what she was dealing with. He insisted that he would not readily accept his dismissal and asked for an explanation and for a month's pay in lieu of notice - both of which had been denied. Upon threatening to take his claim to the Commission, Ms Sullivan had advised that he could work the next three days which he did. On the third day, a Wednesday, she had called and bluntly stated, "You're finished and that's it." He denied that she had called him on 11 September and offered him Friday and Saturday promotions, but not Mondays, over the next two weeks. He denied as absolutely incorrect the evidence of Ms Sullivan that he had said to her that he would work Friday and Saturday, 12 and 13 September "but that's it, and I'll be taking you and the club to the cleaners." He further denied her subsequent call during which his final comments to her had convinced her that it would be best that he not do the Friday or Saturday promotions as he was obviously not going to be representing her agency or the Club in a positive light. 62 He confirmed that he told Ms Sullivan that he had recorded their conversations without her consent. He did that with all his calls as protection when entering into verbal contracts over the telephone. eeHHHe 63 In his Statement (Exhibit D7), Mr. David Callan attested to the fact that he first knew the applicant in his capacity as a writer of a column on Variety Entertainment for the Daily Telegraph. He would unhesitatingly include the applicant amongst the top six leading variety entertainers in Australia. He contended that his peers respected the applicant for "his probity and reliability". 64 In a joint statement tendered by Pamela and Philip Miller (Exhibit D8), Mrs. Miller stated that she and her husband and friends residing in the Ryde area attended the Club over the previous 12 months to play Bingo and to participate in promotions. She admired the manner in which he presented the games and entertained the crowd and, in particular, his treatment of the older participants. It was obvious to her that he was very popular and that a number of regular patrons had queried his absence and received no explanation from the Entertainment Manager. She was aware that some patrons had been contemplating signing a petition seeking his return. For their part, the Millers telephoned Mr. Donavan and on discussing his dismissal from the Club, he had requested them to submit a witness statement. They no longer frequented the Club as a result of their annoyance over the treatment that had been meted out to him. The Respondent's Evidence 65 Mr. John Bogie tendered a statement in the proceedings (Exhibit B10) in which he stated that he had retired from the Club on 01 July, 2003 after 33 years of employment. The last position he held for 13 years was that of Entertainment Manager and his responsibility extended to the running of all the promotions at the Club and the booking of all of the entertainers. 66 He had become aware of Mr. Donavan upon his promotion to Entertainment Manager as the latter had provided performances at the Club on an irregular basis. 67 The Club's accountant had experienced problems in obtaining tax file numbers from individual entertainers and arranging for payment to be made to them immediately upon conclusion of a performance. While attempting to find a simpler solution to the problem, Mr. Bogie approached Ms Sullivan and asked if she was willing to arrange payment of the performers. As she was willing to do so, he had asked her to book the whole Club and commenced to use the services of the Respondent firm during the five (5) years prior to his retirement. He had been impressed with her honesty in an industry renowned for its "dog eat dog" mentality. He had acquainted her with the various performers who had been engaged by the Club until that point in time, including the applicant. In addition, he had warned her about some of the performers, including the applicant. In particular, he mentioned to her that the applicant was someone the Club called upon if it experienced difficulty in obtaining other performers. That was because his routines were dated - his act was a mix of comedy and music and centred on Irish gags. 68 As a registered venue consultant pursuant to the Entertainment Industry Act, the Respondent provided performers for the slots required by the Club. The schedule of entertainment activities was worked out by the Club's Entertainment Manager and the Respondent was relied upon to supply the entertainers for those activities. 69 After the respondent took over responsibility for booking performers, he had observed the applicant performing at the Club from time to time, particularly doing poker machine and bingo promotions - both of which were designed to increase patronage of the Club. 70 Approximately two years ago, several Directors of the Club and their wives told him in no uncertain terms to "get rid of him" meaning Mr. Donavan. They complained about the manner in which he undertook promotion work stating that he was not focused and tended to get patrons offside. 71 Approximately 12 months' ago, the General Manager of the Club, Chris McCarthy, told him that he had to get rid of the Applicant as he was costing the Club money. There were too many complaints about him in the Sunday afternoon promotion. Mr. Bogie assured him that he would tell Ms Sullivan that the applicant was no longer wanted. Mr. Bogie was already aware of a double-payment of a $150 prize in a poker machine promotion as a result of the applicant's failure to wait the requisite five (5) minutes to allow the winner to claim the prize before calling out another winning name. He had instructed Ms Sullivan to replace the applicant in the Sunday afternoon promotion and that had been done. 72 From his observation of the bingo promotion on perhaps a dozen occasions, he formed the view that the applicant had a very casual attitude, which resulted in a lack of attention to detail, which, in turn, had cost the Club financial losses. He had personally observed him, on one occasion, continue to call numbers after patrons had declared that they had all the numbers. That had resulted in the Club having to pay out 6 or 7 people instead of just one winner. He had personally received 6 or 7 complaints from resentful patrons of both sexes regarding inconsistencies in his conduct of the bingo promotion. Sometimes he would not wait long enough for winners to claim prizes before declaring another winner and on other occasions he was more lenient. In his experience it was unusual to receive complaints about acts at the Club and therefore the number of complaints received about the applicant was considered to be very negative feedback. One patron said to him words to the effect, "He is bloody hopeless. He buggers everything up and he doesn't seem to care". 73 He had also received complaints from performers who had worked alongside him. Melinda commented to him that "I won't be coming back [to the Club] if Dee Donavan is still working here. He has no idea of PR. I do not like the way he speaks to me. He gives all the women orders". He recalled another performer, Maree Montgomery, saying to him that the applicant "is a bloody headache to work with". 74 Approximately nine months' ago, Mr. McCarthy told him that Mr. Donavan "had to go". He assured Mr. McCarthy that he would deal with the matter but because of a combination of pity and pressure of work, he had let the matter slide for a while. Finally, he told Ms Sullivan that she had to get rid of the applicant because there were too many complaints about him. He told her to tell him that the Club no longer required his services. He recalled that she had been concerned about how he would react to the news as he was "a pretty aggressive person". He advised Ms Sullivan that it would be prudent to finish him up as soon as possible as a person like that could "cause more problems by hanging around and blackening [her] name". 75 In hindsight, he wished he had spoken directly to the applicant about the quality of his work or the complaints received from patrons and dismissed him before he retired. For a month after his retirement, he had avoided visiting the Club as a patron during Mr. Donavan's promotions for fear that patrons would still lodge complaints with him and he no longer wanted to get involved. 76 During cross-examination, Mr. Bogie agreed that when he first commenced as Entertainment Manager, he had a coffee with the applicant and congratulated him on his work. He pointed out, however, that the applicant had started off alright for about six weeks and then his performance deteriorated. 77 He insisted, despite the applicant's protests, that the applicant had undertaken a Sunday promotion. 78 He argued that the bingo caller maintained control over the distribution of the bingo tickets that were furnished by the printer because it said on the carton, "Use the books in the bundles in numerical order." On the occasion in question, the Queensland printers had sent out a Sydney representative who examined the tickets and concluded that it was not the printer's fault as the tickets had been picked up and used in non-numerical order, "There was no printing problem... The ... problem was how they were distributed in the Club." 79 He had discouraged the patrons from putting their complaints in writing by assuring them that he would look into it. That was because he had been reluctant to cause the applicant any grief. In addition, it was Club policy not to clog up the system with written complaints. They were to receive them, note them and if they built up, take action. Had he known that he was required to provide written proof, he would have visited the Club and got those patrons to sign statements. 80 He agreed that Melinda was a housewife who assisted the applicant and others in the promotions. 81 He responded that he had been loath to discuss the complaints about her performance with him because: I know entertainers and I know the problems their ego causes. If they're told something, then they get hot under the collar and they get quite aggressive about it all. I'm out of the business now, it doesn't worry me... Yes, in a normal work relationship of people that I worked with in that club - the staff - yes, I did sit down and speak with them. In a case like you - in a case like a lot of other performers - what I generally took was a position - I wouldn't book them again to save any trouble, because if you got stuck into them they could easily go round and cause trouble for you, get up a petition against you - which we've had happen there - and they make up a story about how you've treated them so badly. And that's the going thing-- 82 Ms Tanya Sullivan tendered an affidavit and a further statement in the proceedings (Exhibits B12 and B13 respectively) in which she stated that she was the Managing Director of the respondent company which she founded eight (8) years ago. Blaze on Stage Pty. Ltd. was a licensed Venue Consultant and Entertainment Industry Agent as required by the Entertainment Industry Act 1989. 83 The role of the respondent firm was to co-ordinate the entertainment and promotions program for a number of different venues. It sourced the appropriate entertainers from its data base of performers, comperes, and promotions hosts for the specific show or function and then arranged for the performers to attend as was required by the venue. 84 All the performers and promotional hosts were required to submit to the Respondent tax invoices relating to each performance and were paid accordingly. No-one was paid a wage. 85 Eight years' ago, the applicant had forwarded to her, by mail, promotional material offering himself as a Promotions Host and including games he had devised for Club promotions. There were occasions when she was able to arrange a lot of placements for the applicant and other occasions when placements had been irregular. 86 The respondent firm had commenced assisting with the co-ordination of entertainment at the Club approximately five (5) years ago. As the relationship between the Agency and the Club developed, the Agency was provided with increased responsibility ultimately programming all of the entertainment and assisting with publicity and editorial for advertising in the journal. All entertainment suggestions were submitted for approval by the Board of the Club, Mr. McCarthy and Mr. Bestwick and sometimes the Agency was directed to alter the line-up of a show, change the date or alter a promotion. 87 In April 2002, the Agency began sourcing entertainers for promotions at the Club, including Bingo. It was required to co-ordinate hosts and assistants. As that was a new concept for the Agency, she had contacted those who represented themselves as experienced with that particular style of presentation. The promotional material mailed out to the Agency by Dee Donavan Enterprises represented the applicant as a promotions host. 88 A telephone call to Mr. Donavan determined that he was more than happy to become involved. He informed her that he was very well equipped to handle the role, particularly Bingo. As the current host of the promotion was retiring in a couple of weeks, they had arranged to go to the Club to meet him and to watch one of the bingo games. She recalled being assured by Mr. Donavan that he would have no problems as he had "called bingo and hosted other promotions for years". They had watched a couple of the other promotions during that week, just to familiarise themselves with the system. She denied therefore that what they did could be categorised as training of Mr. Donavan to undertake the work that he did at the Club. It was fair to say that Mr. Donavan was simply observing what the prior practices at the Club were. 89 The applicant was one of a number of promotional hosts and assistants rotated as required by the outline of the Weekly Promotions Schedule provided at the Club. Although their allocated sessions were quite regular, there were often changes due to unavailability of some hosts or owing to a direction from the venue. 90 Ms Sullivan was emphatic that at no time had she trained the applicant with regard to those promotions. In addition, the Agency had not exercised any control over the manner in which the Applicant had performed his services at the Club during those placements. 91 Ms Sullivan stated that the applicant had not previously asserted that he was an employee of the respondent firm and had not previously requested the statutory entitlements that an employee would normally be entitled to receive. 92 He had been free to, and had indeed, accepted work at other venues through other agencies. 93 Approximately six months ago, she had been advised by Mr. Bogie that he had received numerous complaints about the applicant's performance as a Promotions Host. As the Club was in need of hosts capable of calling Bingo, it was agreed that he would continue with that promotion but would be replaced on other promotions. When that decision was communicated to him he had merely responded with words to the effect that he was very disappointed and had not made any assertions. 94 She had ceased placing him at that Club when Club Management instructed her to seek an alternative host following receipt of major complaints from patrons and staff about the poor standard of his performance and overall attitude. She had personally received complaints about him from two members of the Promotions team who indicated to her that "they did not wish to continue doing promotions if Dee was involved because he is condescending and has a terrible temper". 95 Ms Sullivan wrote to Mr. Bestwick on 11 September, 2003 (Annexure to Exhibit B13): .....As you are aware, over the past 12 months, there have been numerous complaints made with regard to Dee from both patrons and members of the promotion's team. When the initial complaints occurred, John Bogie asked me to only feature Dee on a couple of promotions and not utilise him too frequently. At that time I adjusted the roster accordingly. The team rotate on a casual basis, and although we aim to maintain a regular roster, there are occasional changes. As you know, over the past month, we have been receiving negative feedback with regard to Dee's services as a host. Not only is he neglecting some of his responsibilities which are vital to ensure the smooth running of the promotion, it seems that he does not interact as a 'team player' and this is distressing other members of the Promotions team. Thus affecting the positive atmosphere expected to be presented by the group. 96 In relation to Exhibit D3, Ms Sullivan explained that the document had not emanated from the Agency. The Club had required all contractors and employees to attend an Occupational Health and Safety Day. Those request forms had been handed to the Agency for the purpose of noting just who assessed risk levels within the club. 97 In relation to Exhibit D4, those notes were taken when a few of them had gone to observe the games and promotions that were already in place as it was all new to them. She identified them as notes that had been kept by either Mr. Donavan or one of the other hosts or assistants, probably with the assistance of the person who had hosted the promotions prior her Agency taking on that responsibility. 98 She disagreed with the evidence of the Applicant that she had dictated commencement and finishing times, the nature of the promotions and so on. The Club determined the weekly promotions and the times they should be on. That was already set in concrete at the time the Agency took on the responsibility for hosting the promotions. Whilst a couple of games have changed, the Agency's role was to provide appropriate hosts and assistants to make those games work. Messrs. Bogie and Bestwick prepared the schedule in Exhibit D5. 99 During cross-examination, Ms Sullivan confirmed that she had provided the promotions team with a weekly roster (Exhibit D9) on which the starting and finishing times were fixed by the Club. 100 She had first met Mr. Bogie when he was coordinating the entertainment at the Club and when she began her Agency, he started to book some shows through her. Since then he had retired and she still utilised his services both as a drummer and also as a carpenter. He was currently undertaking paid carpentry work to the Agency's office. 101 She could not recall, without referring to her records, whether the applicant had been engaged on Sunday promotions or not. 102 She confirmed that she had spoken to the applicant and informed him that management was unhappy with his work. She did not believe she would have responded, on 09 September, that she did not have to provide an explanation as she had already made him aware that management had directed her to remove him. She denied stating that she did not have to pay notice pointing out that she had advised him that the roster would be altering over the following two weeks. 103 Ms Sullivan confirmed that the equipment used in the promotions had been provided by the Club. 104 Invoices were paid within 10 working days following the performance date. In the main the applicant had invoiced her weekly but there were occasions when he had invoiced her for a period of a couple of weeks, depending on other jobs, because he had often been booked for gigs other than promotions at the Club. Ms Sullivan insisted that they had been paid per promotion although they were paid for all the promotions undertaken in that week. 105 During re-examination, the Respondent tendered an application to continue the licence to the NSW Department of Industrial Relations as an Entertainment Industry Agent/Manager and Venue Consultant and a document from that Department confirming payment of the corresponding fees (Exhibit B13). It was confirmed that as at September 2003, the Respondent was a registered Venue Consultant and Entertainment Industry agent. 106 In response to questions from the Bench, Ms Sullivan explained that the Club had provided the specifications - for example the promotions roster, the hours and times - and sought submissions from interested agencies. The Respondent had obviously provided a good price for the provision of hosts and assistants to fill those time slots as she had been successful in obtaining the contract. The Club was already aware of her credibility as she had been associated with it for a few years. She had two assistants working with each host and attempted to keep the assignments regular although she did slot in another host if the rostered host had another engagement. 107 Mr. Donavan had forwarded a separate invoice for each venue. He was not occupied working five days per week for her Agency and she was aware that he was registered with, and received assignments from, other Agencies. 108 Mr. Gregory James Hayes tendered a statement in the proceedings (Exhibit B14 (i)) in which he stated that he was an entertainer and did promotional work. He was engaged through the Respondent to run the poker machine promotions at the Club. He did not work with the applicant on a regular basis but on occasion had swapped shifts with him. 109 He recalled standing in for the applicant on a Saturday so that he could attend another engagement at another Club. On another occasion, he filled in for him on a promotion called "Bucket Bonanza" at the Club. 110 He further recalled a telephone call from Ms Sullivan during which he was offered the Tuesday night poker machine promotion, the "Clairvoyant" because Mr. Bogie wanted the applicant off that promotion and wanted him to do it. He took the view at the time that the Club management merely preferred him above the applicant as he had not been advised of anything that the applicant had done wrong. 111 He had not previously observed the applicant perform the routine and there was no actual training from the Club itself. The person previously performing the routine filled the incumbent in on how it was to be conducted and "you do whatever and wing it". Mr. Donavan had trained him in that routine. 112 Mr. Hayes stated that he had been offered the Sunday night poker machine promotion. Ms Sullivan advised him that the Club management preferred him for that role despite the applicant demanding that promotion. She had commented to him that the Applicant can be very demanding and difficult. 113 Over time, he had become aware of complaints by senior management and patrons of the Club regarding the performance of the Applicant at the bingo promotions. He had also become aware that a fellow host, Melinda, had refused to work with him because he had been rude to her. 114 Mr. Hayes stated that he submitted tax invoices for work undertaken through the Agency and neither he nor his fellow performers considered themselves to be employees of the Respondent. It was an agency they were registered with for the purpose of obtaining engagements. His income tax returns recorded him as a sole trader. 115 Ms Melinda McHutchison tendered a statement in the proceedings (Exhibit B14(ii)) in which she stated that she had been engaged as an entertainer in the poker machine and bingo promotions held at the Club. 116 She stated that her in-laws had initially run the bingo promotions at the Club before she and the Applicant took over that promotion. She had accompanied the Applicant to the informal training provided by her father-in-law before the hand over. She emphasised that the Respondent had not provided any specific training. 117 As she had worked at the Club for a number of years prior to that, she was familiar with some of the patrons. She had received general complaints from some and comments from other patrons that they thought Mr. Donavan had been under the influence of alcohol as he continually made mistakes in calling out the numbers during the bingo promotions. Another patron, Margaret McCutcheon, had complained that the applicant had been rude to her. Whilst she had not told her exactly what was said, the gist of it was that "he had sort of ripped into her" and she had ended up in tears at the end of it. The patron had been very upset about it. That had not really surprised her because he often was abrupt with some of the women, and did not seem to know how to talk to a lot of them, considering that the patrons who participated in the bingo promotion were, in the main, quite elderly. 118 She had commented to the Applicant during one of the promotions that someone had mixed up the books knowing full well that it was the applicant's job to prepare the books in the right order. On that night, in addition to there being 4 or 5 runners up at a time, the bingo session was taking too long and patrons were whingeing. The applicant did not seem to be willing to solve the problem leading her to suggest that management was not going to be happy. At that, Mr. Donavan became very angry and she had walked out in despair. 119 When she arrived home that night, she had said to her husband that she found the applicant difficult to work with and she no longer wanted to work with him. Her husband basically reminded her that it was her choice whether she worked with him or not. She telephoned the Respondent to fill her in on what had happened as she knew the Club management would be complaining about his performance. She spoke to Ms Sullivan's mother, Margaret, and in the course of that conversation asked to be relieved of the Monday night bingo promotion which was the only promotion she did with the applicant at that time. She complained that she found him to be "rude, abrupt and defensive". They had probably worked together for about 3 - 4 months by that time and got on well except for that last evening together. 120 She agreed, during cross-examination, that during most of that time she had found him easy to work with. She agreed that the patron in question was a habitual complainer but pointed out that it was part of their job to deal with difficult people while providing a service. She pointed out that she had been working with her for 5 years and was able to get on with her as did the majority of the hosts. 121 She pointed out that a lot of patrons would comment to her with relief on days when he was not working. 122 She confirmed that she had never seen him drink alcohol nor had she seen him under the influence of alcohol. 123 Ms McHutchison believed that it was his fault that the tickets were mixed up on that night. She had asked him what was going on after a few games. He replied that the books had been mixed up. She had pointed out that he knew that he should have left them and gone on to the next lot of books. When she pointed out the extra cost to the Club, he had retorted with words to the effect, "Well, the club can afford it; that doesn't matter." When she asked what they were going to do about the complaining patrons, his response was that there was nothing he could do about that. His attitude had infuriated her as he was neither willing to talk about it nor solve the problem. She disagreed that it was the printer's fault: Q. .... So do you still feel that it was my fault, do you? That bingo tickets happened to be mixed up when you know that so many times - did I say to you sometime in the past that sometimes the printer could possible get things mixed up and that it was our-- A. I don't think that's what had happened. You can sometimes get a one-off book, but you don't get four or five people going out on every game all night. That's impossible. Somebody had mixed the books up and you were the one that got them out. Q. Somebody mixed the books up. The fact that I got them out, somebody mixed them up? A. Okay, so when you got them out did you get them out in order? Q. If somebody ... mixed them up, I was simply delivering them to the people, and then I'm not at fault. Would you agree to that? A. No, I think-- Q. You don't? A. Okay, did you get them out with all the numbers on top of them and they were in exactly the right-- Q. I'd been doing it, Melinda, for many months. You agree to that. I'd been doing it for many months, why should-- A. Well, I find that hard to believe. Q. Why should I deviate from the system? So there's several things - I put it to you-- A. You commented to me that the books were mixed up out the back, so you mustn't have got them out with the right number on them. When I said to you, "The books have been mixed up," you said, "Yes, they were all mixed up out the back. Someone's obviously mixed them up." Q. No, I was saying they were mixed up by the printer. They've been mixed up by the printer. It happened so many times in the past and you, for some reason or other took it personally and I reprimanded you. I put it to you that you were annoyed because of that because we got on fairly well together, you and I, and we never had a problem. After that night when I reprimanded you-- A. I don't remember that. Q. --about what I felt was an unprofessional approach, you took umbrage to it, and then the result is you are here now, as a witness. You've put things in it that are not quite nice. A. I don't want to be here. Q. I know, and I don't want to be here either. But you've just - I'll ask you again. When we worked together over the year, did I do a professional job? Yes or no? A. As in getting the books out? Q. No, in running the business...and treating people with respect? A. No, I think in bingo you did make quite a lot of mistakes when you were calling. Often you would make mistakes, and to a bingo player that's very hard when you're calling wrong numbers. Q. How many times do you think I did that? A. Most nights I would say. Q. Every - no-- A. A lot of nights. Q. Come on now, Melinda. A. Okay. Q. "Most nights" is elaborating. You're under oath, you know. A. I know. Q. And that's not true. A. I would say a great percentage of nights. Q. It's not true, you just said a moment ago-- 124 Mr. Christopher Anthony McCarthy tendered a statement in the proceedings (Exhibit B15) in which he stated that he was the General Manager of the Club and had held that position for the last 9 years. 125 He began to receive complaints shortly after Mr. Donavan commenced to undertake promotions at the Club 18 months ago. A number of those complaints were verbal and he had received one or two written complaints which were attached to his statement. The complaints were not simply an expression of disquiet resulting from a change of style from what patrons were used to. They related to errors being made by Mr. Donavan in terms of awarding prizes as that created a feeling of unfairness amongst patrons. He had observed Mr. Donavan on a few occasions for short periods but had not witnessed any particular problems. 126 Nevertheless, based on the complaints from patrons and the observations of a Director of the Club, Mr. Keith Aggett, a regular bingo player, he decided 12 months ago not to place Mr. Donavan on that work any more. He had spoken to Mr. Bogie who reported to him that Ms Sullivan had been instructed to "drop Dee". She had stated that it would be advisable to retain him in that role until a replacement could be found. He was aware that some promotions were taken away from the applicant at that time. 127 He was aware that further complaints were received by Mr. Bogie with respect to the applicant's remaining promotions. Those complaints had subsequently been passed on him for his information. 128 Mr. Bogie retired and was replaced by Mr. Bestwick. A few months' later, he was advised by Mr. Bestwick of the fundamental mistake made by the Applicant resulting in a loss to the Club of a significant sum of money. They had jointly decided to relieve the applicant of any further performances and that was communicated by Mr. Bestwick to Ms Sullivan. Ms Sullivan had subsequently reported to him, in detail, the conversation she had with the applicant during which she had concluded that it would not be appropriate for him to have any further shifts at the Club considering his attitude and his threat of legal action. He stood by the contents of the letter he had written on 17 October, 2003 in relation to that incident (Attachment B to Exhibit B15). 129 Mr. McCarthy confirmed that what Ms Sullivan had told the applicant was correct - management was indeed not happy with his work throughout the period that the applicant did promotions work at the Club. The Club expected, and was entitled to, engage hosts who conducted promotions in a manner that generated goodwill at the Club. It was not concerned about the identity of the host so long as the promotions were conducted properly. It was pointed out that Mr. Donavan had been kept on at the Club longer than management would have liked and it was confirmed that it was at the directive of the Club, and not through any other motive, that the Respondent terminated his engagement at the Club. 130 During cross-examination, Mr. McCarthy responded that Ms McCutcheon was a very forthright person but he would not describe her as a habitual complainer. 131 He confirmed that there was a roster of promotions that had to be undertaken in the club and Blaze on Stage had been contracted to provide the personnel to run those promotions. 132 Mr. Harlen Edward Bestwick tendered a statement in the proceedings (Exhibit B16) in which he stated that he had taken over as Entertainment Manager in May 2003. It was part of his function to ensure that performers were provided with all of the materials needed to conduct their promotions and to deal with any issues arising relating to their work, including complaints. 133 One of the first tasks he had undertaken was to arrange for a lockable closet on the right hand side of the bingo room to store the bingo books, the markers and other tools required by the bingo caller. It was made clear to all the bingo hosts, including the applicant, that the books needed to be kept in proper order and monitored properly. Significant funds were lost to the Club on a particular night during the second half of 2003 when duplicate bingo books had been distributed resulting in about 5 - 7 patrons all having won the game. Mr. Aggett, a Director of the Club at that time, had witnessed the incident and reported it to him. Upon investigation, he had concluded that the only way such a mistake could happen was if the books were given out incorrectly. 134 He had taken the matter up with the applicant and was less than pleased with the outcome. The applicant had been unco-operative and overbearing. He had not accepted any blame for the error. He refused to listen and talked over people. 135 He confirmed that at different times he had spoken to Mr. Donovan about deficiencies relating to his performance. He had explained to him that there were issues that he wanted the applicant to address. 136 He rejected Mr. Donovan's assertion that he was never ever told by the club, prior to having all promotion work taken away from him, that there was a problem with his work. 137 During cross-examination, Mr. Bestwick rejected the proposition that a printing error had occurred, "The books are generated in a sequence of numbers, and if what you're saying is correct, we would have ongoing problems all the time. But we don't have ongoing problems.... It was negligent of handing out the books not in a sequence numbered order. They arrive at the club in a sequence number order. They are stored in the cupboard in a sequence number order. If they're just handed out from an open box, not in sequence, that's when this problem arises... Mr. Donovan, the books are stored in a locked cupboard. On that day the books you issued were from an open box sitting outside the back of the stage area,..." SUBMISSIONS 138 It was submitted on behalf of the Applicant that there was indisputable proof that control had been exercised by the Respondent establishing, in accordance with the principles laid down in Stevens v. Brodribb Sawmilling Company Pty. Ltd (1986) 160 CLR 16 No. F.C. 86/001, Clarke v Custom Securities Pty. Ltd. (1996) 40 AILR 3-438 and Garth v. Inner Space Wardrobes No. TI 1116 of 1995 that he had been engaged as an employee and not as an independent contractor. 139 It was pointed out that a master-servant relationship was clearly evident when consideration was given to the duration of service, the degree of control and direction by the respondent over his hours of work and days of employment, the receipt of regular weekly payments and the supply of his tools of trade. 140 It was emphasised that the applicant did not contest the right of the respondent to hire and fire. What was being contested was the fact that the dismissal was not affected according to law. He believed that due process had been blatantly ignored. No warning of unsatisfactory performance was given by the respondent or the club management. No reason for the dismissal was given to the applicant by the respondent. Lack of consultation must make the dismissal unfair. 141 The dismissal was affected by way of a hurried telephone conversation, with no pre-warning whatsoever. His request for reasonable compensation had been ignored resulting in his need for redress. Three formal offers of settlement made by him over the last few months to expedite the claim had been rejected. 142 But for his dismissal, he was certain that he would have had a reasonable expectation of continued employment at the club. The management of the Club had admitted that they did not at any time contact him personally or by letter indicating that they were unhappy with his performance at the club. 143 He accepted that reinstatement was impracticable because of loss of trust. The applicant was seeking monetary compensation of six months' pay. 144 It was submitted on behalf of the Respondent that the complicating factor was that there were three parties to the matter before the Commission. A great deal of the evidence before the Commission would point to the fact that if there was an employer/employee situation existing, then it was one between the Applicant and the Club, and certainly not between the Applicant and the Respondent. 145 The Commission's attention was drawn to the evidence relating to the Respondent's registration as an Entertainment Industry Agent and Venue Consultant. The Entertainment Industry Act 1989 defined "entertainment industry employer" as a person who employed any performer for the purpose of a performance. The Act further provided a definition for a "Venue Consultant" as being a person who acted on behalf of an entertainment industry employee, for a fee, and who arranged for a performance by a performer at a particular venue....(Exhibit B17). It was submitted that the respondent should be best categorised and understood as a "Venue Consultant". She was registered as such and participated in good faith in such an arrangement. 146 The evidence was clear that the promotions were performances required by the club. Mr. McCarthy testified that it was the Board of the Club which determined what performances were required. The Respondent was then directed to arrange for the entertainers to perform those roles. She had been directed to reduce the applicant's workload at the Club and ultimately to withdraw all his promotions at the Club. As venue consultant, she had no alternative but to heed that direction aimed at protecting the Club's interests following the receipt of numerous complaints. 147 It was pointed out that despite those directions, she had attempted to soften the consequences for the applicant. If Mr. Bogie had his way, the applicant would have been relieved of his promotions prior to his retirement. 148 Contrary to the applicant's assertions, the evidence before the Commission was that the Club determined when and at what time the promotions would be conducted. The Club also provided the materials required in the conduct of such promotions. 149 The decision in Stevens v Brodribb Sawmilling was of no assistance to the Applicant as the High Court held that the persons in question were independent contractors. That decision was of importance in that it set out a number of indicia to assist in the determination of the existence or otherwise of an employment relationship - one needed to consider the whole employment relationship and not be limited purely to the control test . 150 The various tests set out in Brodribb and in Hollis v. Vabu Pty. Ltd. [2001] HCA 44 included consideration of the degree of experience and skill which the asserted employee brought to the arrangement. The notion that the applicant did not bring any particular skill to the role of bingo calling was rejected. Mr. Donavan had promoted himself as an entertainer of many years' experience. Mr. Donavan conceded during cross-examination that he had previously called Bingo. In addition, Ms Sullivan gave evidence that he represented to her that he had plenty of experience of that in the past and that the promotion at the Club would present no problem to him. Mr. Donavan was a contractor who brought to that particular role his experience as an entertainer. He registered with Blaze on Stage and various other Agencies because he had the experience and the ability to earn his own living as an independent contractor. Mr. Donavan made his contract with the respondent by representing special expertise and ability. 151 Traditionally, a contractor would provide their own materials. In this instance, the venue had provided the materials and not the Respondent. 152 If the Respondent was exercising control, it was purely as the "meat in the sandwich". Ms Sullivan had been under the control and direction of the Club and had no alternative but to follow directions as the agent for the Club. The Club dictated when and where and how it wanted the performances conducted. The evidence clearly indicated that those promotions continued to be conducted in the same manner that they were performed before Blaze on Stage had any involvement. 153 It was conceded by the Respondent that the applicant was required to wear a badge identifying the Respondent. 154 The issue of most importance was that of the question of public policy. It was a very serious matter in the present case and was the reason why the respondent contested it to that degree. If the Commission were to find that Mr. Donavan had been an employee of Blaze on Stage, it would mean that suddenly the respondent would be foisted with many hundreds of employees. It would have enormous ramifications for her in terms of workers compensation insurance, in terms of liability to pay annual leave, superannuation, long service leave and so on. The list of obligations was enormous and given the paltry sum of money that Blaze on Stage received for each particular performance, it just would not be worth it. Her business and any business of like nature would be impractical with that obligation placed on it. 155 Regarding the issue of finance, Mr. Donavan had submitted tax invoices for the work that was completed in a way completely consistent with being a contractor. He was paid for each performance. He was not paid an hourly rate. There was no evidence that at any time he asked for payment of superannuation, or long service leave, or annual holidays, or any other payments that would suggest a financial arrangement other than that of a contractor. 156 It was concluded that, other than the issue of the badges, every test applied by the High Court in Vabu fell squarely in favour of the respondent. 157 In the matter of the very complicated case of Stevens v Brodribb Sawmilling, a number of tests were applied. It was held in that personal injury case that a duty of care can be owed by someone, other than an employer, provided there was the requisite proximity. 158 In deciding whether the sawmilling company was an employer, it was determined that the person who was arguing that he was an employee and not a contractor provided his own truck and was paid on a contract basis. The evidence in that case was that the truck drivers were free to go and find other work and gainfully employ themselves. 159 It was submitted that there were a lot of parallels with this case. Mr. Donavan was simultaneously on the books of a number of different Agencies. He had stated repeatedly that his commitment and loyalty had caused him to reject other work in favour of his performances at the Club. However, that was a decision that he made in the course of running his own business. He realised that he would get more regular work at the Club than he may at other venues. The fact that the Respondent was able to provide him with a more regular flow of performances should not be used against the Respondent to find that somehow it had become an employer. At all times the applicant had been free to do what he wished. 160 The uncontested evidence of Greg Hayes was that the applicant would arrange to swap shifts with him from time to time to enable him to undertake engagements elsewhere. That was consistent with the reasoning in Stevens v Brodribb Sawmilling. 161 The respondent had, all through this case, repeatedly submitted that there was no merit and no basis to the application made by the applicant. The Respondent had incurred significant costs which had impacted on her business. On that basis, should the Commission find in favour of the respondent, then the Respondent wished to make a number of submissions on the issue of costs. 162 During cross-examination of the Applicant, a considerable period of time had been spent asking the applicant questions about his business. Issues such as insurance, invoicing, printed "with compliment" slips and a web site were all consistent with a fairly well organised business. He had a whole range of brochures that were related to his private business. One of those brochures in particular advertised a game called Zingo, which was a variant of his own creation on bingo. The purpose of that exercise was to, firstly, underline the fact that Mr. Donavan, having been involved in the Entertainment Industry for many years, had always conducted himself on the basis that he was running his own business to a very sophisticated level. He had not merely stumbled across that work in a naïve way without an awareness of his industry. Secondly, the argument he had put forward that he had no prior skills and experience in such promotions was so contrary to the evidence that he cannot be believed. 163 In response, it was submitted on behalf of the Applicant that the alleged lack of experience related to game shows only. 164 It was denied that he had any arrangement with Greg Hayes to swap shifts. It was contended that it was Ms Sullivan who had dictated any changes. CONSIDERATION 165 The Respondent had, at all relevant times, been registered as an Entertainment Industry Agent and as a Venue Consultant pursuant to the provisions of the Entertainment Industry Act 1989. 166 That Act defines an "Entertainment Industry Agent" as: A person who, for financial benefit, carries out any one or more of the following entertainment industry activities on behalf of a performer: (a) seeking or finding work opportunities for the performer; (b) negotiating the terms of an agreement for, and the conditions of, a performance; (c) finalising arrangements concerning the payment of the performer (d) negotiating arrangements relating to the attendance of the performer at a performance; (e) administering the contract of the performer with an entertainment industry employer, but does not include a person who carries out those activities solely as an employee of any such agent. 167 It further defines a "Venue Consultant" as A person who acts on behalf of an entertainment industry employer, for a fee or remuneration paid by any such employer, and who arranges for a performance by a performer at a particular venue, but does not include a person who arranges for a performance solely as an employee of a venue consultant or an employer. 168 The applicant had been registered with the Respondent over a period of several years and had accepted engagements as a freelance variety entertainer to perform on stage. 169 The Club had negotiated with the Respondent to act as venue consultant and book the whole Club. The Club had provided a schedule setting out the dates and times of the various promotions it required hosts for and it was left to the Respondent to select and supply the hosts for those promotions. To have a venue dictate when, where and at what time it required a performer would not have been new to Mr. Donavan as that would not be any different to engagements to perform on stage. In fact, in the proposal the applicant had prepared for Zingo (Exhibit B1), Mr. Donavan had suggested the duration of each game, the number of games, the time of day of each session and when to hold the breaks. 170 During the arbitration proceedings, the Commission had not been made aware of the number of performers registered with the Respondent. The difference between the one-off engagements and the contract with the Club was that the latter involved on-going engagements. It would appear that the fewer the persons the Respondent had registered with her and capable of undertaking the role of hosts and assistants, the more likely it would be that they would have regular and on-going engagements at that Club. 171 It was not disputed that the Club had provided what equipment was needed to conduct those promotions. In fact, it was management that had suggested a cape for use with the Clairvoyant poker machine promotion and the applicant had been re-imbursed its cost. The Respondent had not played any part in that matter. The Bingo tickets had featured a great deal in these proceedings and it was Club management that had them printed, delivered and stored in a location accessible to the host of that event. 172 Mr. Donavan gave evidence that although he felt that the engagement at the Club was better categorised as an employer/employee relationship, he had felt obliged to accept Ms Sullivan's decision to treat the engagement as one being performed by an independent contractor. That decision was made for two reasons. 173 Firstly, he was aware that Ms Sullivan had a volatile nature and was prone to outbursts of anger. That contention had not been tested before the Commission. Neither Ms Sullivan nor any of the witnesses provided by the Respondent had been cross-examined on that aspect. In addition, the applicant had not called any witnesses to support that contention. 174 Secondly, he stated that he had been obliged to accept her decision as he wanted to retain that engagement. Yet Mr. Donavan had gone to great lengths during the proceedings to point out that other engagements had been offered to him but he had not accepted many of them out of both loyalty to the Club and to the Respondent. 175 Mr. Donovan confirmed that Ms Sullivan had never refused a request to be relieved from a promotion at the Club in favour of work commitments elsewhere. On his own admission, he had not tested that point during the latter part of his employment. He confirmed that it was his choice not to accept other engagements even though, financially, he would have benefited more. Mr. Hayes gave evidence that he had swapped shifts with the applicant when the latter had other engagements elsewhere. Mr Donavan chose not to ask any questions in cross-examination to rebut that evidence. Indeed, Mr. Donavan had tendered a document addressed to the Promotions Team from the Respondent dated 04 July, 2002 (Exhibit D9) to which she had attached the standard weekly roster. She had invited the members of that team to notify her as a matter of urgency "if there is a week where you are unable to fulfil a particular time-slot... and we will make the necessary adjustments". 176 The applicant confirmed that he had operated as a sole trader for many, many years. He had his own business name, business postal address, letterhead, website and ABN number. Throughout the period of his so-called employment, he had prepared and distributed to the Respondent and to other Agents he was also registered with, promotional material "selling himself" as a variety artist. 177 The applicant had invoiced the Respondent weekly for promotions undertaken during that week. He had issued a separate invoice in relation to promotions at the Club. Ms Sullivan gave evidence that they were not wages employees - some assistants had participated in one promotion per week and others more. She had therefore paid them all per promotion and all invoices had been paid within 10 working days following the performance date. There was no evidence before the Commission, for example in the form of bank statements, to rebut the evidence of Ms Sullivan. 178 Mr. Donavan gave evidence that he had been directed to attend training sessions at 10 am on 13 and 14 April, 2002. The training was to be provided by the previous presenter who was about to retire. Ms McHutchison gave evidence that no specific training had been provided by the Respondent. She had accompanied the applicant to the informal training provided by the previous presenter (who happened to be her father-in-law). Mr. Hayes also gave evidence that no formal training had been provided to him - by either the Respondent or the Club. The routine was to obtain a briefing from the person previously performing the promotion and "you do whatever and wing it". He contended that he had actually been briefed by the applicant. The Applicant had chosen not to cross-examine either of the witnesses in relation to the issue of training. In addition, there was no evidence in the form of, say, payment records to indicate that he had been paid to attend training on the said days. 179 It was obvious from the promotions prepared and distributed by the Applicant that he relied on his lengthy experience and skills as an Entertainer to sell himself in the area of promotions. 180 The Respondent conceded that the applicant had been required to wear a badge identifying the Respondent as procuring the hosts for the promotions at the Club. DECISION 181 On balance, I accept the conclusion of Mr. Berry that, with the exception of the badges, every test applied by the High Court in Vabu fell squarely in favour of the Respondent. The Applicant had been engaged as an independent contractor when performing promotion work at the Club. 182 Having accepted that conclusion, there is no need for the Commission to consider the merits of the Applicant's claim. 183 Matter No. IRC 5385 of 2003 is hereby dismissed for want of jurisdiction. 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.