Federal Court Rules Claimant Was Employee From July 1995 to Oct 1996

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – termination of employment – jurisdiction - whether applicant an employee employed by the [COMPANY] Legislation Amendment Act 1996 (No. 60 of 1996) Industrial Relations Act 1988 (Cth) – s 170ED(1) Workplace Relations Act 1996 (Cth) - ss 170EA, 347

[NAME] (1959) 101 CLR 298 - cited [NAME] v [COMPANY] (1986) 160 CLR 16 - considered

[NAME] v [NAME] (1947) 1 DLR 161 - cited

[NAME] v [COMPANY]. (1955) 93 CLR 561 - cited Bank Voor Handel en Scheepvaart N.V. v Slatford (1953) 1 QB 248 - cited

[APPELLANT] v [NAME]) [APPELLANT]

VI 2768 of 1996 Judicial Registrar [APPELLANT] 31 July 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 2768 of 1996

BETWEEN: [APPELLANT]

Applicant

AND: [NAME] ([APPELLANT]

[COMPANY] registrar: RYAN

DATE OF ORDER: 31 JULY 1998

[APPELLANT]

THE COURT:

(1) declares that the applicant was employed by the [COMPANY] from 1 July 1995 to 31 October 1996

(2) orders the matter be set down for hearing of submissions on

(a) the second jurisdictional issue of presence or absence of termination at the initiative of the employer (b) the further conduct of the proceeding if the proceeding continues (c) the substantive issue of valid reasons for termination if such are asserted (d) whether the proceeding if continued is by way of further evidence and submissions or by submissions only and reliance on evidence already given.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VI 2768 of 1996

BETWEEN: [APPELLANT]

Applicant

AND: [NAME] ([APPELLANT]

[COMPANY] registrar: RYAN

DATE: 31 JULY 1998

PLACE: [APPELLANT] FOR JUDGMENT

THE APPLICATION These are Reasons for Judgment on a preliminary jurisdictional issue in an application for relief in respect of termination of employment. The application was lodged in the Australian Industrial Relations Commission on 18 November 1996. For reasons outlined below, the matter was not listed for a substantive hearing prior to 26 May 1997. The Workplace Relations and Other Legislation Amendment Act 1996 (No. 60 of 1996) amended the Industrial Relations Act 1988 (Cth). The transitional provisions from schedule 6 of the Act provide that the Workplace Relations Act 1996 as amended by the schedule does not apply to a termination of employment occurring before the commencement of the schedule if an application was made in respect to that termination under s 170EA of the Workplace Relations Act as enforced at any time before that commencement. This application for relief in respect of termination of employment is therefore being heard by the Federal Court of Australia under the Workplace Relations Act as in force prior to the commencement of the schedule.

BACKGROUND TO THE APPLICATION On 12 November 1996, [APPELLANT] lodged an application for relief in respect of termination of employment. The application: · identified the employer as [NAME] ([COMPANY] · indicated an authorised representative namely Mr [COUNSEL] of [COMPANY] · described the applicant's occupation as Manager/[NAME] · referred to the employment as starting on 1 July 1995 and ending on 31 October 1996 · listed the remedies sought as "reinstatement, compensation and damages for wrongful termination of employment". Soon after, on 16 November 1996, [NAME] [APPELLANT] lodged an application for relief in respect of termination of employment. The application: · identified the same employer · indicated the same solicitor as authorised representative · referred to the same period of employment · listed similar remedies sought, namely "reinstatement, compensation and damages" · described the work performed as "secretarial – clerical". On 26 November 1996 [NAME] of the firm, [NAME] [NAME] [NAME], filed Notices of Employer's Appearance in respect of each application. On 10 December 1996 Commissioner [NAME] issued separate certificates certifying that the Australian Industrial Relations Commission had been unable to settle either matter by conciliation and that the parties had not elected to have either matter dealt with by consent arbitration. As a result, on 16 December 1996, a Deputy Industrial Registrar in the Victoria Registry of the Australian Industrial Registry referred both applications to the Industrial Relations Court of Australia under sub-section 170ED(1) of the Industrial Relations Act 1988. Both applications were listed for Directions Hearing in the Industrial Relations Court of Australia on 4 February 1997. Mr [COUNSEL] appeared for both applicants and Mr [COUNSEL] appeared for the employer. Both matters were adjourned by consent to a date to be fixed on the understanding that police action was pending. By letter dated 2 June 1998 Mr [APPELLANT], now of the firm [APPELLANT] & [APPELLANT], successor to [COMPANY], advised the District Registrar of the Industrial Relations Court of Australia that police action had been completed and he requested both matters be relisted for hearing. On 19 June Mr [NAME] [APPELLANT] of [APPELLANT] & [APPELLANT] wrote to the Listings Manager of the Federal Court advising that "police action has been completed by the withdrawal of the charges". He also requested that the matters be relisted for hearing. The District Registrar had already acted on the earlier letter of 2 June and Mr [APPELLANT]'s letter of 19 June crossed with Federal Court letters of that date which advised the solicitors of all parties of a Directions Hearing in the Federal Court on 6 July. On 24 [[COMPANY]], solicitors, advised that they now acted for the [COMPANY]. By affidavit sworn 30 [NAME] of [[COMPANY]] deposed that his firm had no knowledge of the Federal Court proceedings until advised by facsimile on 22 June by the solicitors on the record, [COUNSEL]. On 6 July Mr [APPELLANT] appeared as counsel for both applicants and Mr [[COMPANY]] as counsel for the [COMPANY] in both applications. Both applications were set down to be heard together on 27, 28 and 29 July and mutual discovery of documents on which the parties proposed to rely was directed to take place by 22 July. During the hearing, commencing 27 July, it became apparent that the [COMPANY] had substantially complied with the order for discovery but that the applicants were a little late in providing discovery. [APPELLANT] and [[COMPANY]] appeared again for the respective parties. Counsel sought and were granted a little time prior to trial during which discussions as to possible settlement and as to the issues in contest presumably took place. The matters remained unresolved and when both matters were called on for hearing Mr [APPELLANT] advised that the application of [APPELLANT] would not be proceeding and "would be withdrawn". [ADDRESS] indicated that a Notice of Discontinuance should be filed in respect of the application but rejected an application for costs made on behalf of the [COMPANY] under s 347 of the Workplace Relations Act 1996. [ADDRESS] of its own motion and with the support of counsel for the [COMPANY] also considered whether Mr [APPELLANT] as a party to the proceeding had caused the [COMPANY] as another party to the proceeding to incur costs because of an unreasonable act or omission in connection with the conduct of proceeding following the referral to the Industrial Relations Court of Australia. The only possible unreasonable act or omission, in my view, was the very late withdrawal of Mr [APPELLANT]'s application. However, counsel's assurance was accepted that detailed conferences had taken place with Mr and Mrs [APPELLANT] on Wednesday 22 July and Saturday 25 July and, in the circumstances, the Court was not satisfied that the very late notice of withdrawal of Mr [APPELLANT]'s application amounted to an unreasonable act or omission in the conduct of the proceeding. INITIAL HEARING CONFINED TO JURISDICTION – WAS THE APPLICANT EMPLOYED BY THE [COMPANY]? The [COMPANY] has conceded that Mr [APPELLANT] was employed from the inception of the company on 1 July 1995 until 31 October 1996 and that he was responsible for the day to day operations of the company. The [COMPANY] asserts that the employment of Mr [APPELLANT] was terminated for valid reasons relating to misconduct. However, the [COMPANY] has never conceded that Mrs [APPELLANT] was employed and Mr [COUNSEL] as the solicitor then acting for the [COMPANY] stated in the Notice of Employer's Appearance filed in the Commission on 26 November 1996 that "on the basis of instructions from a Director of the employer … the employee is not actually employed to perform any services to the employer and is only recorded as an employee to allow her husband, RC [APPELLANT], to split his income". The jurisdictional issue of employment is the only issue dealt with in these Reasons for Judgment. [ADDRESS] was concerned that splitting the jurisdictional and substantive issues might be an inefficient use of Court time given the likelihood that a decision in favour of jurisdiction, and therefore in favour of the applicant, might lead to a recall of some or all of the witnesses called for a further hearing of any substantive issues which might remain on foot. This concern was exacerbated when it became apparent that there may be a second jurisdictional issue as to the absence or presence of termination at the initiative of the employer. However, counsel for the applicant objected to the admission into the hearing of the first preliminary issue of any evidence which might be relevant to substantive issues but could not be sustained as relevant to any preliminary issue. Given the position taken on behalf of the applicant the hearing has been confined to the preliminary jurisdictional issue of employment.

EMPLOYMENT HISTORY PRIOR TO ESTABLISHMENT OF [COMPANY] The applicant and her daughter, [NAME] [APPELLANT], gave evidence for the applicant. Mrs [APPELLANT], Mr [APPELLANT] and Mr [APPELLANT] gave evidence for the [COMPANY]. The evidence establishes that [NAME] [APPELLANT] was employed on secretarial, bookkeeping and office management duties, first by the predecessor to [NAME] ([COMPANY] and then by [NAME] ([APPELLANT]. The predecessor to [NAME]) was [APPELLANT] [COMPANY] trading as [NAME] [APPELLANT] and [NAME] were the Directors and hence the name [APPELLANT] [NAME]. The company, [NAME] ([APPELLANT] was formed on and from 1 July 1995. The Directors were Mr [APPELLANT], Mr [NAME] and Mr [APPELLANT]. The evidence suggests that Mr [NAME] wife, [NAME], also played some part in the business conducted by [NAME]). Mrs [APPELLANT] was employed as a replacement for [NAME] [APPELLANT]. Ms [APPELLANT] gave evidence that she was dismissed by her father and was the recipient of an order for compensation in an action for unlawful termination of employment. Mrs [NAME] is the mother of Mrs [NAME] and mother-in-law of Mr [NAME]. This somewhat tangled web of family relationships may have led to certain informalities in the documentation of employment and business relationship. The vagueness and uncertainty of the evidence of Mrs [APPELLANT] (and to a lesser extent Ms [APPELLANT]) as to when and how either or both entered an employment relationship with [APPELLANT] [COMPANY] trading as [NAME] as to the formality of any possible employer/employee relationship between Mrs [APPELLANT] and [NAME]) may be in part the result of these family relationships and in part the result of family disputes which appear to have arisen.

THE FAILURE TO CALL MR [APPELLANT] Mr [APPELLANT] did not call Mr [APPELLANT] to give evidence as to the employment of Mrs [APPELLANT]. Mr [APPELLANT] was not called to give evidence and Mr [[COMPANY]] asserts that an inference should be drawn that he would not have given evidence favourable to the applicant and indeed would have given evidence adverse to the applicant. I have concluded that the failure to call Mr [APPELLANT] in respect of the preliminary issue leads to a reasonable inference that, if called, he may have given some evidence adverse to the overall interests of the applicant. I am not satisfied that the failure to call Mr [APPELLANT] on the preliminary issue leads to a reasonable inference that he would have given evidence adverse to the applicant on that preliminary issue. It is possible, perhaps not probable but possible, that Mr [APPELLANT], if called, might have given evidence which was neither favourable nor adverse on the preliminary issue but adverse on some other jurisdictional or substantive issue. It is possible that potential adverse evidence on another issue was seen to outweigh potential favourable evidence on the employment issue. It is possible that Mr [APPELLANT] might give adverse evidence on any or all issues but I am not satisfied that it is reasonable to draw an inference, adverse or favourable, in respect of the preliminary issue because of a decision not to call Mr [APPELLANT] at this stage of the proceeding: [NAME] (1959) 101 CLR 298.

EVIDENCE OF ACTIVITIES UNDERTAKEN BY MRS [APPELLANT] Mrs [APPELLANT] stated that her duties included: · taking telephone calls when her daughter was unavailable · taking telephone calls before or after her daughter and later [NAME] were on duty especially before 9.00 am and after 3.00 pm · collecting mail from Altona · running errands · sometimes doing the banking · travelling once a week to get cheques signed · giving quotations · taking orders.

Ms [APPELLANT] stated that her duties included: · acting as office manager · answering telephones · invoicing · filling out bank forms · "anything I was asked to do" · SEC paperwork · orders · quotes · superannuation and salaries. Ms [APPELLANT] describes her mother as her assistant and stated that Mrs [APPELLANT]'s duties included: · answering telephones · paperwork after hours and when Ms [APPELLANT] was unavailable · faxing paperwork after hours and when Ms [APPELLANT] was unavailable · collecting mail · obtaining cheques. Ms [APPELLANT] also stated that she "used [APPELLANT] to make decisions with" (i.e. she used her mother as a sounding board and adviser on certain matters). Mrs [NAME] was a direct and impressive witness. She stated that: · she was only aware of [NAME] [APPELLANT] being employed "by the wages' book" · Mrs [APPELLANT] would have answered the phone out of hours (i.e. Mrs [NAME] hours of 9.00 am to 3.30 pm) except when one phone was diverted to the truck at the direction of Mr [APPELLANT] · the two telephone lines could be accessed from both the house and the office and rang in both the house and the office · the mail was usually on her desk when she arrived and she could not say who collected it but it was possible that it was collected by Mrs [APPELLANT]. [NAME]'s evidence included the following "I paid wages and superannuation. There was no criteria. I worked it out myself. I paid [NAME] [APPELLANT] a wage. I just followed on from what [APPELLANT] had been doing. I always put it in an envelope marked "[NAME] and [NAME]" once a week and left it on the desk or gave it to [NAME]." I just followed on [NAME] wages' book. I just copied what [NAME] did. I carried on the same system as [NAME]. I am aware that superannuation and tax was taken out. Mrs [APPELLANT] was treated on paper as an employee. I do not know if [NAME] [APPELLANT] was an employee". Certain quite discrete and limited extracts from affidavits sworn by Mr [NAME] were admitted as evidence. The extracts were from an affidavit filed in proceedings described by Mr [NAME] in his later affidavit of 30 June 1998 as "Supreme Court proceedings issued by [APPELLANT] in relation to the affairs of the company" (i.e. the company being [NAME] ([[COMPANY]]). The extract tendered by the [COMPANY] (Exhibit R9) reads as follows: "I, [NAME] of [ADDRESS], Hoppers Crossing in the State of Victoria, Director, MAKE OATH AND SAY as follows:

7. Immediately before the Company began to trade [APPELLANT], [NAME] and I agreed as follows: (a) first, [APPELLANT] would be responsible for the day to day operations of the Company's business and the day to day management of the Company's financial affairs. I was to continue operating BMW; (b) secondly, the Company would employ [NAME] ("[NAME]") as a [NAME] to deliver and collect hired equipment, and to act as a general roustabout; (c) thirdly, for income splitting purposes, [APPELLANT]'s wife would be recorded as an employee of the Company, and [APPELLANT]'s salary would be split between the two of them; (d) fourthly, the telephone number 9369 7320 ("the telephone number") which was then connected to the [APPELLANT] property and had previously been used by [APPELLANT], but which was in [APPELLANT]'s name, would be paid for by the Company and would become the property of the Company;

8. I make the following further comments in relation to [APPELLANT]'s affidavit: (a) Insofar as Company cheques are concerned: (i) On many occasions, I was asked by [APPELLANT] and by his daughter [APPELLANT] ("[APPELLANT]"), who was responsible for the Company's office administration between July 1995 and July 1996, to sign cheques: (x) which were blank; and/or (y) which had no accompanying statement or invoice; and/or (z) which were payments for [APPELLANT]'s personal accounts, as for example, private telephone bills; 8(e) Paragraph 26: [NAME] was formerly employed by the Company as an office manager/secretary. In that capacity, she carried out all of the secretarial and other office duties, save for a small number of duties which [APPELLANT]'s wife [NAME] carried out, namely answering some telephone calls and occasionally doing the Company's banking." The extract tendered by the applicant (Exhibit A6) also contains the extract above from paragraph 8(e) of the Wallace affidavit. The extract also contains paragraph 16(a) of the affidavit which reads: "16. I make the following further comments in relation to [APPELLANT]'s affidavit: (a) Paragraphs 30 and 31 Mr. [NAME] has never been an employee of the Company. He is in fact an employee of BMW. Since 31 October 1996 Mr. [NAME] and other employees of BMW have, at my request and at no cost to the Company, performed work, and in particular physical tasks for the Company." The general tenor of the oral evidence given by Mr [NAME] was that of a man who had adopted a position. That position was that Mrs [APPELLANT] was recorded on the books of the company as an employee but really was not an employee and that the whole arrangement was one in which a sum of money going to Mr [APPELLANT] in salary was notionally halved for the purposes of reducing his recorded taxable income. I have listed below from my notes a summary of certain aspects of the oral evidence of Mr [NAME]. These are not verbatim extracts from transcript. Transcript of the second day of the hearing was not available when these Reasons for Judgment were prepared. Nevertheless, the notes below are, in my view, a reasonably accurate summary of certain parts of the evidence. " agreement was an income splitting exercise by which [NAME] came on the books. Previous events had set it up. The same system was in operation in [APPELLANT] [NAME]. As far as I can ascertain [APPELLANT] basically helped out in the family business. It was coincidental that she brought the mail back. [NAME] [APPELLANT]'s wage was created by [APPELLANT]'s wage. If [APPELLANT] had no wage, [NAME] [APPELLANT] had no wage. There was no specific work or assistance designated, no designated tasks, no designated role. [NAME] [APPELLANT] benefited by half of [APPELLANT]'s wage to reduce Ron's tax. [APPELLANT] was dismissed on 31 October 1996 at a meeting. There was no role for [NAME] [APPELLANT] after the meeting. In my mind there was no job there for her, no work for her. [NAME] [APPELLANT] was not practically employed. There was no job for [NAME] [APPELLANT] in the company. There was no physical job." However, Mr [NAME] also gave evidence which suggests that the trappings of employment were erected for Mrs [APPELLANT] and some of his evidence is open to a conclusion that Mrs [APPELLANT] was employed, albeit on an informal, flexible basis. These aspects of his evidence support evidence from [NAME] [APPELLANT], [NAME] [APPELLANT] and [NAME], which evidence is clearly open to the conclusion that the applicant, Mrs [APPELLANT], was employed by the [COMPANY], [APPELLANT] (Vic). First, there are the following comments from the [APPELLANT] affidavit: "For income splitting purposes, [APPELLANT]'s wife would be recorded as an employee of the company. The telephone number 9369 7320 which was then connected to the [APPELLANT] property had been previously used by [APPELLANT], but which was in [APPELLANT]'s name, would be paid for by the company and would become the property of the company. [NAME] carried out a small number of duties, namely answering some telephone calls and occasionally doing the company's banking." Secondly, there is the following summary of oral evidence, again it is not verbatim but from my notes. "She did answer the phone on occasions – it is in the house. I know [NAME] sometimes did the banking. [NAME] prepared a Group Certificate. I assume he took out tax and yes superannuation was paid. We did everything that was necessary, legally, while she was on the books, to pay superannuation and tax. [NAME] [APPELLANT] did the banking before [NAME]. I can recall this on occasions. She got cheques signed. She came in her own car. She was not compensated for the wear and tear of the vehicle. We stopped [NAME] salary. We did not stop [APPELLANT] salary. The instruction was to stop [APPELLANT]'s salary. In my view, [NAME] [APPELLANT] did not have a job. I have not seen the wage records. I do not go into wages' books." The evidence of Mr [NAME] supports the proposition that any arrangement reached with Mr [APPELLANT] which involved Mrs [APPELLANT] was primarily an arrangement to split income. His evidence included the following. Again, the extract below is not verbatim. It is a summary taken from notes. "When [APPELLANT] and I started I would put out the toilets. I had nothing to do with office work. I have had nothing to do with the company for the last four years. [APPELLANT] [NAME] comes from an amalgamation of our names. We were paid the same, we cleared $500 each. Later, [NAME] suggested that [NAME] split his wage with [NAME]. [NAME] got the other half. [NAME] did the banking, she answered phones. The whole idea was to split the wage. I would say that she did that (answer the phones) before and after the splitting of the income. There was no discussion with [NAME] about employing [NAME]. We just discussed splitting income. I was party to the discussions leading to the sacking of Mr [APPELLANT]. [NAME] was never mentioned in the discussions. She was never advised of these discussions by me. She could have turned up the next day and said "what have I got to do?"."

CONCLUSION Mr [[COMPANY]] sought comfort in [NAME] v [COMPANY] (1986) 160 CLR 16. [NAME] involved negligence, vicarious liability and the distinction between employee and independent contractor, there is much therein which is of assistance in determining whether a particular relationship is that of employer and employee. However, the distinctions there outlined can be no more than signposts to guide a determination as to the nature of any particular relationship. It is always prudent to commence such an assessment with the following comment of [NAME] JJ at 37: "… any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance." Attention then can usefully be given to the earlier comment at 36: "… the control test … is not now a sufficient or even an appropriate test in its traditional form in all cases because in modern conditions a person may exercise personal skills so as to prevent control over the manner of doing his work and yet nevertheless be a servant: [NAME] v. [NAME] [1947] 1 D.L.R. 161, at p.169. This has led to the observation that it is the right to control rather than its actual exercise which is the important thing ([NAME] v. [COMPANY].) [1955] 93 C.L.R. 561, at p.571." [NAME] in reverse order [NAME] JJ at 35 refer to Denning LJ in Bank Voor Handel en Scheepvaart N.V. v Slatford (1953) 1 QB 248 at 295 and to the observation that "the test of being a servant does not rest nowadays on submission to orders but "depends on whether the person is part and parcel of the organization". In [NAME] [NAME] said: "… it is in some cases possible to decide the issue by raising as the crucial question whose business it is, or in other words by asking whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior." I have no doubt that in this case at this time the business was that of the [COMPANY] and that Mrs [APPELLANT] was not carrying on business for herself or acting in a voluntary capacity as some voluntary, independent, unpaid assistant to her husband. In [NAME] at 24 [NAME] referred to a number of indicia including but not limited to: · the mode of remuneration · the provision and maintenance of equipment · the obligation to work · the hours of work · provision for holidays · deduction of income tax · delegation of work by the putative employee. In assessing the existence or non-existence of a relationship of employer and employee it is common to measure the actual circumstances against such indicia and to classify the indicia as favourable, adverse or neutral to the prevailing circumstances. However, it is not a numbers game. It is not a matter in a particular set of circumstances of classifying or assessing indicia as, for example, "3 against, 2 for and 3 neutral ergo no employment". In this case, I would classify the criteria of remuneration and taxation as significantly in favour of an employment relationship especially with deductions or payments of superannuation. The criteria of equipment, hours of work and holidays might well be neutral but at the end of the day I have no doubt that this was an employment relationship albeit a flexible, informal one. I have concluded that:

1. Mrs [APPELLANT] was an employee of [NAME] ([APPELLANT] from 1 July 1995 to 31 October 1996 and she had become an employee of [APPELLANT] [COMPANY] trading as [NAME] at some date I am unable to determine, a date some time prior to 30 June 1995.

2. The arrangements agreed by [APPELLANT], [NAME] and [APPELLANT] when [NAME]) was established led to a somewhat flexible employment arrangement but one nevertheless in which Mrs [APPELLANT] was paid a salary in cash equal to the salary paid to Mr [APPELLANT].

3. A key motivation, perhaps even the primary motivation, in employing Mrs [APPELLANT] was to reduce the income of Mr [APPELLANT] for income taxation purposes.

4. Superannuation payments were recorded and made on behalf of Mrs [APPELLANT] as an employee.

5. A wages' record was kept in the name of Mrs [APPELLANT].

6. A Group Certificate was issued in the name of Mrs [APPELLANT] as an employee. I have reached these conclusions on the general weight of the oral and documentary evidence and despite the fact that I found Mrs [APPELLANT] an unimpressive, inconsistent and at times contradictory witness. I do not accept the assertion of counsel for the [COMPANY] that the affidavit statement of Mr [APPELLANT] in respect of an agreement with Mr [APPELLANT] and [NAME] when the [COMPANY] was established demonstrates an absence of privity of contract between the applicant as employee and the [COMPANY] as employer. The description of the "agreement" in paragraph 7 of the [NAME] affidavit is neither evidence for or against a contract of employment with Mrs [APPELLANT]. Employment contracts are often oral, flexible and informal. Having decided the first jurisdictional issue in favour of the applicant, I will now take submissions on: 1. the second jurisdictional issue of presence or absence of termination at the initiative of the employer 2. the further conduct of the proceeding if the proceeding continues 3. the substantive issue of valid reasons for termination if such are asserted 4. whether the proceeding if continued is by way of further evidence and submissions or by submissions only and reliance on evidence already given. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan

Associate: Dated: 31 July 1998 Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the [COMPANY]: [[COMPANY]]

Solicitor for the [COMPANY]: [[COMPANY]] of Hearing: [APPELLANT], 27 and 28 July 1998

Date of Judgment: 31 July 1998