Industrial Relations Commission of New South Wales CITATION: Michael York v Minister for Lands [2007] NSWIRComm 251 APPLICANT Michael York (Respondent on Motion) PARTIES: RESPONDENT Minister for Lands (Applicant on Motion) FILE NUMBER(S): 519 of 2007 CORAM: Sams DP Notice of Motion - jurisdiction of the Commission - unfair dismissal - termination of appointment to statutory office - Reserve Trust Boards under Crown Lands Act - powers of Minister to appoint and dismiss members of Trust Board - appointment process - whether position voluntary - role and functions of Trust Boards - indicia of employment - state of evidence - applicant received no remuneration - control test - whether applicant an employee - out of time application. CATCHWORDS: Held; unrepresented litigant given considerable latitude - irrelevant evidence - presentation of case unsatisfactory - conduct of proceedings - provisions of Industrial Relations Act - applicant knew position was voluntary - applicant received no remuneration and not entitled to remuneration - no contract of employment - conduct of parties did not evince an intention to create an employment relationship - no intention to create a legally enforceable relationship - no provision of equipment - no control over Board members' duties - statutory appointment - free to work for any other person or employer - overall relationship not one of employment - applicant not an employee - no jurisdiction of the Commission - significant delay in filing claim - no sufficient reason established - notice of motion granted - application dismissed. LEGISLATION CITED: Crown Lands Act 1989 Industrial Relations Act 1996 Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 Australian Salaried Medical Officers' Federation (New South Wales) o/b Bruce Milne Hall v Sydney South West Area Health Service (No 2) [2007] NSWIRComm 243 CASES CITED: Hollis v Vabu Pty Ltd (2001) 207 CLR 21, (2001) 106 IR 80 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 HEARING DATES: 21 August 2007 DATE OF JUDGMENT: 12 October 2007 APPLICANT (Respondent on Motion) Mr M York unrepresented LEGAL REPRESENTATIVES: RESPONDENT (Applicant on Motion) Mr D Schulz Department of Lands JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 12 October, 2007 Matter No IRC07/519 Michael York and Minister of Lands Application by Michael York re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION ON NOTICE OF MOTION [2007] NSWIRComm 251 1 On 10 February 2006, Mr Michael York was appointed by the Minister for Lands (The Hon. Tony Kelly, MLC) as a Trust Board member of the Gulgong Racecourse Reserve Trust ('the Trust Board'). The appointment was made pursuant to s 93 of the Crown Lands Act 1989 and was for a term commencing 21 March 2006 and expiring on 16 February 2010. Subsequent to his appointment, Mr York became Chairman of the Trust Board. 2 On 24 November 2006, the Minister for Lands, pursuant to Cl 6(4) of Schedule 3 of the Crown Lands Act removed all the members of the Trust Board and appointed Mr Lester Graham Lynch as administrator of the Trust. The reasons for Mr York's removal from the Trust Board are not relevant to the issue to be determined by this decision; suffice to note that the Minister's letter removing the Board cited users' concerns with decisions of the Board, acrimony within the Board and between members of the Board and other groups in the Gulgong community. 3 As a consequence of his removal from the Trust Board, Mr York filed a claim of alleged unfair dismissal pursuant to Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act') and named the Minister for Lands as the respondent to the application. As relief for his alleged unfair dismissal, Mr York claimed $50,000 compensation for loss of income, humiliation and undue embarrassment in the community. 4 However, the present issue for determination arises from a notice of motion filed by the Department of Lands (hereinafter referred to as 'the applicant' to the notice of motion) seeking an order that the application for relief in respect to unfair dismissal be dismissed for want of jurisdiction, as Mr York (hereinafter referred to as 'the respondent' to the notice of motion), in his capacity as a member of the Trust Board, was not an 'employee' within the meaning of s 5 of the Act and thus was not entitled to make an application in relation to unfair dismissal. It followed that the Commission did not have the jurisdiction to order remedies under s 89 of the Act. Notwithstanding the narrow jurisdictional issue to be resolved, Mr York sought to agitate in these preliminary proceedings, the alleged unfairness of his removal from the Trust Board and his desire to be reinstated. 5 A subsidiary jurisdictional issue was also apparent, (although not strictly necessary for determination) in that the respondent seeks to have the Commission exercise its discretion and accept his application for alleged unfair dismissal out of time, pursuant to s 85(3) of the Act. His removal from the Trust Board was on 24 November 2006 and his application for relief from unfair dismissal was filed on 8 May 2007; 165 days later or 144 days out of time, pursuant to s 85(1) of the Act. I shall later return to this matter but, on any view of it, this considerable length of delay would be a significant barrier to the respondent's claim being accepted without a sufficient reason or reasons being established by him for such a late application. 6 Turning then to the primary jurisdictional issue, which may be summarised in a simple question: Was the respondent, as a Trust Board member, an 'employee' for the purposes of the Act? To answer this question, it seems to me that reference must be had to the following: (a) the definition of 'employee' under the Act; (b) the role and functions of a Trust Board member under the Crown Lands Act ; and (c) whether the various indicia of what constitutes an employer / employee relationship are in evidence: See Hollis v Vabu Pty Ltd (2001) 207 CLR 21; (2001) 106 IR 80 ( 'Hollis' ) and Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 . 7 Turning to the Industrial Relations Act, an 'employee' is defined, for the purposes of the Act, at s 5 which is expressed as follows: 1) General definition In this Act, employee means: (a) a person employed in any industry, whether on salary or wages or piece-work rates, or (b) any person taken to be an employee by subsection (3). (2) A person is not prevented from being an employee only because: (a) the person is working under a contract for labour only, or substantially for labour only, or (b) the person works part-time or on a casual basis, or (c) the person is the lessee of any tools or other implements of production, or (d) the person is an outworker, or (e) the person is paid wholly or partly by commission (such as a person working in the capacity of salesperson, commercial traveller or insurance agent). (3) Deemed employees The persons described in Schedule 1 are taken to be employees for the purposes of this Act. Any person described in that Schedule as the employer of such an employee is taken to be the employer. (4) Exclusion A person employed or engaged by his or her spouse or parent is not an employee for the purposes of this Act. 8 It is undisputed that the respondent was not paid a salary, wage or piece work rate for the duties he is said to have performed as a member of the Trust Board. Moreover, the evidence disclosed that Board members are not paid any fee, allowance or stipend at all. A Department of Lands Handbook, about the role, duties and function of Trust Boards, answers the question "Can Board members be paid?" as follows: Trust board members are not paid for the time spent inspecting, operating or maintaining the reserve, attending meetings of the trust board, or otherwise running the affairs of the reserve trust. They can, however, be reimbursed for out-of-pocket expenses if the trust board approves. Normally, the treasurer and secretary elected at the annual general meeting are treated as volunteer members of the board and are not paid for the time they devote to that office. 9 In addition, the respondent himself acknowledged that he had applied for membership of the Trust Board on the understanding that he was "able to perform voluntary work out of business hours". This is evident from his application for membership of the Trust Board, dated 30 September 2005. Role of the Trust Board 10 Reserve Trusts may be established by the Minister for Lands under s 92 of the Crown Lands Act: (1) The Minister may, by notification in the Gazette, establish and name a reserve trust and appoint it as trustee of any one or more specified reserves or any one or more parts of a reserve. (2) A reserve trust established under subsection (1) is constituted by this Act as a corporation having as its corporate name the name assigned to the trust in the notification of its establishment. (3) The Minister may, by notification in the Gazette: (a) dissolve a reserve trust, or (b) alter the corporate name of a reserve trust, or (c) revoke the appointment of the reserve trust as trustee of any one or more specified reserves or any one or more parts of a reserve. (4) A reserve trust has the functions conferred on it by or under this Act. (5) A reserve trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee. (6) The affairs of a reserve trust are to be managed: (a) by the Minister, or (b) if a trust board is appointed under section 93—by the trust board, or (c) if a corporation is appointed under section 95—by the corporation, or (d) if an administrator is appointed under section 117—by the administrator. (6A) In this Division, a reference to a reserve trust manager is a reference to the Minister (to the extent that the Minister is responsible for managing the affairs of a reserve trust), or any such trust board, corporation or administrator. (6B) There can be more than one reserve trust manager for a reserve trust with the function of managing the affairs of the reserve trust allocated between them by the Minister in accordance with the following provisions: (a) The Minister can allocate the exercise of functions in respect of different aspects of the affairs of the reserve trust or different parts of the reserve to different reserve trust managers, as specified in the allocation or as determined by the Minister, with those functions to be exercised in accordance with such arrangements (if any) as may be determined by the Minister. (b) The Minister is the reserve trust manager for any aspect of the affairs of a reserve trust or any part of the reserve not allocated to another reserve trust manager and is accordingly allocated the function of managing the affairs of the reserve trust in respect of any such unallocated aspects of those affairs or unallocated parts of the reserve. (c) A reserve trust manager has the function of managing the affairs of the reserve trust only to the extent of the allocated functions and is, for the purposes of this or any other Act or law, the reserve trust manager to that extent only. (6C) (Repealed) (7) If a reserve trust is appointed as trustee of more than one reserve (or more than one part of a reserve), a reference in this Part to the reserve (or part of the reserve) in relation to the reserve trust includes a reference to any one or more of the reserves (or any one or more of the parts of the reserve) of which the reserve trust has been appointed as trustee. 11 The Minister appoints members of the Trust Board under s 93 of the Act: A trust board shall consist of at least 3, but not more than 7, members (none of them being a corporation) appointed by the Minister by notification in the Gazette and such number of ex officio members as are so appointed. and may remove a member by virtue of Cl 6(4) of Schedule 3 of the Act: (4) The Minister may, by notification in the Gazette, remove a member from office at any time. I do not understand there to be any dispute that the Minister had the power to remove the respondent from the Trust Board. 12 The role of the Trust Board was identified in the Trust Handbook tendered in evidence. Section 3.2 provides that: A trust board's main role is to manage the affairs of the reserve trust and the reserve itself. This responsibility for managing the affairs of the trust belongs to the members of the trust board and cannot be delegated entirely to others. However, a trust board can appoint or employ others to assist it in managing the reserve. In addition, a trust board may now also delegate (with the Minister for Lands' consent) any of its functions as reserve trust manager to a management committee, organisation, group or individual, as outlined in section 17.5. A management committee could assist with the day-to-day operations of a reserve undertaking such activities as landcare, painting or collection of fees. Trust board members should attend all meetings of the board or send an apology and provide a reason for their inability to attend. While a trust board may employ people to assist it in the management of the reserve (eg rangers, caretakers, maintenance staff), the members of the board should also ensure that they regularly visit and inspect the reserve to identify and rectify hazards and to see that maintenance and other matters authorised by the board has been carried out. The trust board can make decisions about regulating such things as: · the way in which the reserve is used · the driving and parking of vehicles (or the mooring of vessels) on the reserve · hours of entry · fees to be charged for entry · permitted or prohibited activities. Establishing a contract of employment 13 It is clear that there was no written contract of employment between the respondent and the Minister or the respondent and the Department of Lands. However, that may not be the end of the matter, as a contract can be implied, based on the conduct of the parties: See Australian Salaried Medical Officers' Federation (New South Wales) o/b Bruce Milne Hall v Sydney South West Area Health Service (No 2) [2007] NSWIRComm 243 at par 23. 14 Importantly however, as discussed in the above recent decision of the Full Bench of the Commission, it is a necessary element for the formation of a contract, for there to be an intention to create a legal relationship between the parties which is enforceable. At par [24] the Full Bench said: 24 It may also be inferred from the manner in which the parties presented their respective cases that it was common ground that a necessary element in the formation of every contract is the intention to create legal relations and that such a requirement applies to implied, as well as express, contracts. The general rule is that the test of intention is objective: see for example, Air Great Lakes Pty Ltd and others v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 335-337 per McHugh JA; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 per Gaudron , McHugh , Hayne and Callinan JJ at 105-106; Damevski at [93]-[97]. Whilst there was evidence about the respective subjective intentions of the parties, we understand both of them, correctly, are not to be relying on that evidence and so we do not propose to have regard to it. See also Macken, O'Grady, Sappideen, Warburton Law of Employment, 5th Ed., Lawbook Co. 2002 . Indicia of an employment relationship 15 The oft quoted authority in cases involving consideration of whether a person is an employee or some other characterisation (usually a contractor) is Hollis. In these proceedings the question is not whether the respondent was an employee or independent contractor as discussed in Hollis. The question here is whether the respondent was an employee, per se. While Hollis emphasised the significance of the extent of control an employer may have over his/her employee as an indicator of whether a true employment relationship exists, the High Court also adopted, with approval, the notion in Stevens v Brodribb Sawmilling, that there are other indicia of the employment relationship which must be considered. At paras [43] - [45] the High Court said: [43] These notions also influence the meaning to be given today to "control" as a discrimen between employees and independent contractors. In Stevens v Brodribb Sawmilling Co Pty Ltd , 59 the court was adjusting the notion of "control" to circumstances of contemporary life and, in doing so, continued the developments in Zuijs v Wirth Brothers Pty Ltd 60 and Humberstone v Northern Timber Mills . 61 In Humberstone , 62 Dixon J observed that the regulation of industrial conditions and other statutes had made more difficult of application the classic test, whether the contract placed the supposed employee subject to the command of the employer. Moreover, as has been pointed out: 63 The control test was the product of a predominantly agricultural society. It was first devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation. At the time when the courts first formulated the distinction between employees and independent contractors by reference to the test of control, an employer could be expected to know as much about the job as his employee. Moreover, the employer would usually work with the employee and the test of control and supervision was then a real one to distinguish between the employee and the independent contractor. With the invention and growth of the limited liability company and the great advances of science and technology, the conditions which gave rise to the control test largely disappeared. Moreover, with the advent into industry of professional men and other occupations performing services which by their nature could not be subject to supervision, the distinction between employees and independent contractors often seemed a vague one. [44] It was against that background that in Brodribb 64 Mason J said that, while these criticisms might readily be acknowledged: … the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, "so far as there is scope for it", even if it be "only in incidental or collateral matters": Zuijs v Wirth Brothers Pty Ltd . 65 Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered. [45] So it is that, in the present case, guidance for the outcome is provided by various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability. These include, but are not confined to, what now is considered "control". 16 In Stevens v Brodribb, Mason J identified other indicia of the employment relationship when he said at par 24: But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v FC of T (1945) 70 CLR 539 at 552; Zuijs' case; FC of T v Barrett at p 401; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 218. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee. See also discussion of Hollis in ASMOF (obo Hall) at paras 52-59. 17 It is readily apparent that this is a most peculiar and unique case. I have been unable to find any authority with a similar set of factual circumstances; namely, whether a trust board member is an employee. That said, the task of the Commission, in accordance with the dicta in Hollis, is to consider the totality of the relationship between the parties and make a finding as to whether it truly is one of employment. I turn now to the facts of this case and the relevant evidence adduced by the parties. THE EVIDENCE 18 As I said earlier, much of the evidence and the submissions of the respondent traversed matters not directly bearing on the issue to be determined by the Commission on this notice of motion. The respondent sought to challenge the fairness of his removal from the Trust Board and put in issue, without any evidence, the credibility of a number of persons. To the extent these matters are irrelevant for present purposes, I will not recount them. 19 The respondent called evidence from Ms Vicki Lee Chatfield, Program Manager, Department of Lands, Dubbo. Ms Chatfield's duties are to represent the Department of Lands in the south central region and to manage and assist relationships with reserves, their boards and the community. Much of Ms Chatfield's affidavit evidence was uncontested. However, she was required for cross-examination. 20 In her evidence, Ms Chatfield said that before the Trust Board was appointed, advertisements had been placed, nominations called for and interviews conducted. Ms Chatfield said that the application form stated that the work was voluntary. However, as she was not involved with the interviews she couldn't say what had been discussed. Because of previous difficulties with this particular Trust, Ms Chatfield had organised a meeting with the new Board members, prior to their appointment, to explain their roles and responsibilities. The Trust Handbook was available at this meeting. Discussion was had about payment for a secretary and treasurer, but generally she said that this was for reimbursement of expenses only. Ms Chatfield deposed that she was unaware of any requests from any Board members for payment. 21 In cross-examination, Ms Chatfield said that she had called the meeting with the new Board members on 13 March 2006, to give the appointees an opportunity to find out about their role and to ask questions. She believed the respondent had a copy of the handbook at the meeting and it had been made available on computer disc. 22 Ms Chatfield agreed that Trust Board members had responsibility for the day to day operations of the Reserve, including paying expenses, collecting income, rents and licence fees. She acknowledged that when the administrator was appointed, he had been paid to carry out these duties. Ms Chatfield agreed that there was no reference to the position of Trust Board member as being a voluntary position in the respondent's letter of appointment. However, she said that the advertisement for the position and the Act made it clear it was not a paid position. 23 Ms Chatfield acknowledged that while the Trust operates autonomously and independently, the Department had written to the Trust on 12 October 2006 and had instructed the Trust Board to defer the Annual General Meeting. Ms Chatfield said that this had occurred following many complaints of threats and distress from members about bullying at the meetings. She did not believe that this action constituted interference in the day to day operations of the Trust. Ms Chatfield further agreed that the Department had instructed the Trust Board to finalise work on all licence agreements and that there was a requirement under the Crown Lands Act for financial statements to be provided by the Trust Board within three months of the end of the financial year. Ms Chatfield also agreed that the Minister had directed that an audit of the Trust's affairs be conducted. 24 In an extraordinary exchange during Ms Chatfield's cross-examination, the respondent sought to have her confirm that the Trust Board believed that she had not been open and honest with it. He referred to the Board minutes in this regard. In my view, this matter cannot be allowed to go without comment as the respondent deliberately sought to mislead the Commission as to what the Board had resolved. It is plain that the minutes were written up by him. They recorded what it was he was alleging about Ms Chatfield being less than open and honest with the Board. This comment was not recorded as a view of the Board, or indeed of anyone else. I find this misrepresentation of the minutes to be mischievous and reprehensible. It was obvious to me that the respondent was completely ill disposed towards Ms Chatfield. I reject his unsubstantiated allegation. Moreover, I found Ms Chatfield to have been a witness of credit. SUBMISSIONS For the applicant 25 Mr D Shulz, after referring to the various statutory provisions under the Crown Lands Act and the authorities which consider the definition of an employee, submitted as follows: It is the Minister's submission that the position of board member and chairman of the board of the Gulgong Reserve Racecourse Trust occupied by the Applicant from 10 February 2006 until 22 November 2006 was merely that of a statutory office-holder and not an employee within the meaning of s.5 of the Industrial Relations Act 1996 . The Applicant was not an employee because his position was voluntary. Furthermore, whilst the Minister exercised some general controls on the Trust and the Board, that control was not of a kind or to an extent characteristic of the relationship between an employer and an employee. The Minister did not and does not exercise day to day control of the Trust, the board or the activities of the current administrator. None of the other indicia of a relationship of employment (such as delegation and supervision of work, the provision of holidays or the deduction of income tax) characterised the relationship between the Minister and the Applicant when he was Chairman of the Board. Not being an employee, the Applicant is not entitled to bring an application for unfair dismissal under Part 6 of the Industrial Relations Act 1996 and the Commission cannot order remedies such as the Applicant's reinstatement to the Board. The Applicant's application for relief in relation to unfair dismissal should therefore be dismissed for want of jurisdiction. For the respondent 26 The respondent submitted that he had been employed under an agreement for a specific period to run the day to day affairs of the Gulgong Racecourse Reserve Trust. He claimed that he did not see the original advertisement for the position and that he had not been told at the interview that the position was voluntary. He interpreted his letter of appointment as him being "hired", "posted" or "assigned" to the position. Nothing had ever been put or said which precisely stated that he would not be paid. The Minister had said that he hoped the respondent would find his duties "both interesting and rewarding". The respondent interpreted 'rewarding' as meaning "paid, salaried, waged or hired" (Roget's Thesaurus). The respondent further said that there was nothing in the Crown Lands Act which indicated that his position had been voluntary. The respondent believed had he had worked 20 to 30 hours a week for six months doing the "dirty work" for the Minister. (This last submission was not explained, so I have no understanding of what it meant.) 27 In answer to a question from the Commission as to whether he had at any time enquired as to payment, the respondent replied that he expected that the question of compensation was 'open ended' and would be worked out in a meeting with himself and the Minister. He would now be making a claim for payment for work he had performed. When queried as to the answer he gave to the question at part 23 of his application that it was a non-paying position, he claimed that it was non-paying until the terms of compensation were negotiated after a year. The respondent believed that the financial rewards he had received were secretarial services, photocopying, travel expenses and meals. 28 The respondent submitted that there had been a high degree of control of the Trust Board by the Minister. Board members can be, and were dismissed, licence and leasing agreements had to be approved by the Department, financial reports were required to be provided, insurance was a matter determined by the Department and the Department could interfere over personal differences within the Trust Board. The Department had indeed interfered with the Annual General Meeting of the Trust Board and attended meetings without invitation. CONSIDERATION 29 At the outset, the Commission would record that considerable latitude was granted to the respondent in the preparation and presentation of his case. Notwithstanding that the issues before the Commission raised questions involving detailed legal and technical analysis, I consider that as an unrepresented litigant he was able to bring to the Commission's attention all matters which he believed were relevant to his case. In this regard I refer to the following passage in Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227: The Commissioner refused to let her re-open her case. We agree in the circumstances of this case with the Commissioner's action. There must be an end to litigation and in this case the applicant had had ample opportunity to make out and present her case. In fact the Commissioner was at pains to make sure that she understood the process and he was generous in the guidance which he gave her as to the conduct of her case. The appellant made strong representations that the Commissioner erred in that he did not give the appellant all the help he should have given her as an unrepresented litigant. We do not share that view. Whether a person be represented or not, the responsibility for the conduct of their case remains with them. Whilst we agree that in the case of an unrepresented party the Commission should be prepared to assist with appropriate guidance and advice and give a measure of guidance as to the conduct of their case, that advice and guidance must not jeopardise or in any way compromise the independence of the Commission. Secondly, we share the Commissioner's doubts that her case would be materially advanced by her calling the respondent's witnesses. In Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 the Full Bench of the Commission said at par [6]: 6 It is fair to say, we think, that the appellant in these and other respects was assisted by the Commission with appropriate guidance and advice to the extent permissible by his self-represented standing (see Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 for example), and was afforded ample time and opportunity at all stages to understand the requirements of the appeal process and to advance the arguments of his choosing. 30 That being said, the applicant's presentation of his case was, unfortunately less than satisfactory. I have already referred to one matter involving the cross-examination of Ms Chatfield. The respondent had little understanding of how to cross-examine a witness; choosing instead to make statements and answer questions he put to Ms Chatfield himself. The respondent provided no evidence on his own behalf. He made wild and unsubstantiated statements from the bar table and found implausible excuses for clear documentary evidence which was against his interests. Two examples serve to demonstrate this point. 31 Firstly, when it was obvious that the advertisement calling for nominations for the Trust Board indicated the position was voluntary, he claimed he had never seen the advertisement. When he had answered "yes" to the question on his application: Was he prepared to perform voluntary work outside of business hours?, he said that he understood that this meant attending meetings, not other work associated with his duties for which he should have been paid. When the Trust Handbook was produced, which plainly disclosed that Board members were not paid, he claimed he had never seen it. 32 Secondly, when questioned by the Commission as to why, in six months, he hadn't sought payment for his work, he said that he had expected to have a meeting with the Minister after about 12 months in order to negotiate appropriate compensation. He claimed he had put "non-paying position" in his application for relief for unfair dismissal because, at that time, it was truly unpaid, as he hadn't yet had the meeting with the Minister. 33 In my view, the best the respondent got to anything like a hint of being employed in some position was the Minister's use of the word "rewarding" in his letter congratulating the respondent on his appointment to the Trust Board. However, I do not accept that the use of the word "rewarding" was intended to mean, either explicitly or implicitly, that he was to be paid. Rather, I think, the Minister was intending to convey a courtesy congratulations in that he hoped the respondent would find his duties personally rewarding. In any event, any letter of appointment of this type, would have expressly stated what payment or fee was to be paid, if that was the true intention. No such inference can be drawn from anything contained in the letter. 34 In my judgement, the respondent is a person with considerable ability and intelligence. However, during these proceedings, he had a quick and unlikely explanation for evidence which was obviously against his interests. Usually there was not much sense to his explanations. Often they were so manifestly far fetched and utterly unbelievable that I have little doubt that he simply made them up along the way. For example, does he seriously believe the Minister would personally sit down with every member of every Trust Board and negotiate compensation for the duties they performed? This was patent nonsense. I have no doubt that the respondent knew perfectly well that he was offering himself for voluntary work and expected to perform voluntary work. He did so without complaint until his removal from the Board. His utterances to the contrary are a recent invention in order to gain access to this Commission to air his grievances concerning his removal from the Board. 35 On one view, the role of a Trust Board and that of the Board members is more akin to that of an employer, than of an employee. For example, the Trust may collect and set fees, hire persons to perform work for it and enter into contracts for the performance of work or the provision of services. Seen in this way, it is difficult to imagine how a Board member could in the fulfilment of his/her statutory functions be considered to be an employee and an employer at the same time. In addition, the emphasis on statutory duties is an important and relevant distinction to be made in this case. 36 Another significant indicator against a finding in the respondent's favour is to be found in the express provisions of Pt 6 Ch 2 of the Act. Let me explain. Jurisdiction of the Commission in unfair dismissal matters is predicated on a number of factors, one of which is an employee's annual remuneration (s 83(1)). Known as the salary cap, it is presently $101,300 per year. An employee above the salary cap is not entitled to bring a claim of unfair dismissal. Obviously, in circumstances where no wage or salary is paid, it is not possible for the Commission to be satisfied that the necessary jurisdictional grounding has been established. 37 Secondly, s 89(5) of the Act permits a remedy for unfair dismissal of an amount of compensation not exceeding the amount of remuneration earned by the applicant during the period of six months immediately before being dismissed. Section 89(3) also provides for an order for lost remuneration. Assuming the respondent is able to overcome the jurisdictional hurdles, and that his dismissal is found to be unfair, and reinstatement or re-employment was found to be impractical, what compensation would be available? On a proper reading of the provisions, the answer would be nil. This would seem to be a bizarre consequence of a finding of unfair dismissal. Further, how would the Commission be able to assess lost remuneration as is available under s 89(3) of the Act? It seems an inescapable conclusion that these provisions would be unworkable if they were required to be exercised in favour of a dismissed employee who received no remuneration. In other words, the very essence of the relief available to an unfairly dismissed employee requires some amount of remuneration to have been paid prior to dismissal. It is difficult to see how remedial legislation such as this could operate to give any effective relief (or any at all) to an applicant who received no remuneration. 38 A further difficulty in the respondent's case arises from the relief he seeks from these proceedings. In his unfair dismissal application at question 28, the respondent claims $50,000 for loss of income, humiliation and embarrassment. There is no explanation or justification given for the basis of the claim sought or what income he is alleged to have lost. It is not, and cannot be said to be based on anything relevant to work alleged to have been performed or any actual or implied contract of employment. I am left to ponder whether the figure of $50,000 was simply "plucked out of thin air". 39 Notwithstanding these observations, the fact that the respondent was not paid is not the only basis for refusing his claim of being entitled to bring this application against the applicant. 40 In further consideration of this matter, the Commission would make the following findings: 1. There was no evidence of a contract of employment, either implied or expressed between the respondent and the Department of Lands or the respondent and the Minister. 2. There was no evidence of any conduct of the parties or of any conversation between the respondent and the Minister or the respondent and any officer of the Department of Lands which would have evinced an intention to create a relationship of employment. 3. There was never any intention of either party to create a legally enforceable relationship in the nature of a contract of employment. 4. The respondent knew at all times that the position he applied for was a voluntary one and he carried out his duties knowing that to be the case. 5. As the respondent did not remunerate the applicant, it is axiomatic that no deductions could be made for income tax or superannuation. 6. No provision was made for the respondent to take or accrue annual leave or any other type of leave. 7. The applicant did not require or oblige the respondent to work in return for remuneration or payment. 8. Save for the provision of secretarial support (which was really support for the Board as a whole), the applicant did not provide equipment or materials to the respondent in order for him to perform his duties. 9. Save for out-of-pocket expenses and the occasional meal, the respondent received no payment or fee for his duties. 10. The applicant did not supervise or control the hours the respondent put in nor determine when or how he performed his duties, such as attending meetings and inspections. 11. There was no requirement by the applicant for specific tasks or jobs to be performed by the respondent. He could spend as much time as he considered necessary to carry out his statutory functions. 12. The respondent was free to work for any other person, body, company or organisation, subject to any declarations of pecuniary interests being made by him in respect to his obligations as a Trust Board member. 13. The respondent and the Board were required by statute to operate in a particular way at Board meetings and to provide financial and other reports to the Minister. This was not an exercise of control, but rather a statutory obligation arising from the provisions and regulations of the Crown Lands Act . 41 When viewed in this factual matrix and having regard for the totality of the relationship between the respondent and the applicant, I have no hesitation in concluding that the respondent was not an employee for the purposes of Pt 6 Ch 2 of the Act, and is therefore unable to bring a claim of alleged unfair dismissal under the Act. The applicant's notice of motion must be granted. 42 For completeness, it is to be noted that no party put submissions as to the Commission's discretion to accept the application out of time. The respondent answered question 34 in his application as follows: Answer: I was never advised that I could file a claim by the Department of Lands and they have refused to provide documents requested by me to justify and support their reasons for my dismissal. The Department of Lands has not acted in a fair, just or equitable manner to any of my requests on the "why", and "how" of my dismissal. They have not been transparent in their dealings with me or acted in a timely manner, thereby, their delays have caused more than 21 days to expire. 43 The onus rests with the applicant to satisfy the Commission that he had a sufficient reason or reasons for his application not being filed within 21 days. I am not convinced that he would be able to discharge this onus, particularly where the application was filed some 144 days out of time. 44 The Industrial Relations Commission of New South Wales orders as follows: 1. The notice of motion filed by the Department of Lands in matter IRC07/519 is granted. 2. The application for unfair dismissal in matter IRC07/519 filed by Mr Michael York on 8 May 2007 is dismissed. 3. The proceedings are concluded. Peter J Sams, AM Deputy President 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.