Twohill v Mental As Anything Touring Pty Ltd & ors [2008] NSWIRComm 17

Industrial Court of New South Wales

CITATION: Twohill v Mental As Anything Touring Pty Ltd & ors [2008] NSWIRComm 17 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT: David Francis Twohill

FIRST RESPONDENT: PARTIES: Mental As Anything Touring Pty Ltd SECOND RESPONDENT: Martin Edward Murphy THIRD RESPONDENT: Andrew Macarthur Smith

FILE NUMBER(S): 4627 of 2005

CORAM: Marks J

CATCHWORDS: S106 proceedings - unfair contract - permanent members of a band - applicant excluded from band without notice or reasons - no evidence that applicant was warned his conduct may lead to exclusion from the band - applicant and individual respondents established company - sole directors and shareholders of company - band functioned and operated through corporate entity - applicant asserts he was an employee of the company - regular payments made to each permanent band member from company - group certificates labelled recipients as employees - respondents regarded band members as partners - employment relationship established - contract of employment attended with little formality - implied provision for termination - failure to demonstrate conduct which justified summary dismissal - contract found unfair - appropriate period for notice of termination is six months - sufficient culpable association of individual respondents - contract varied from inception - respondents jointly and severally liable

LEGISLATION CITED: Industrial Relations Act 1996 ss105 and 106 Partnership Act 1892 ss1, 2, 25, 26, 32 and 35