Hayden v Brond [1996] IRCA 395

DECISION NO: 395/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - INDEPENDENT CONTRACTOR - no proof of contractual employment relationship Patricelli v Glenis Stephenson trading as L J Hooker Real Estate (Industrial Relations of Australia, Farrell JR, 18 December 1995, unreported) Colleen Ann Dorothy HAYDEN v Vicki Lee BROND WI 2615 of 1995 CORAM: MADGWICK J PLACE: PERTH DATE: 31 JULY 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. 2615 of 1995 BETWEEN COLLEEN ANN DOROTHY HAYDEN Applicant AND VICKI LEE BROND Respondent CORAM: MADGWICK J PLACE: PERTH DATE: 31 JULY 1996 MINUTES OF ORDER THE COURT ORDERS THAT: 1. the time be extended sufficiently to enable the application to be lodged; and 2. the application be dismissed.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. 2615 of 1995 BETWEEN COLLEEN ANN DOROTHY HAYDEN Applicant AND VICKI LEE BROND Respondent CORAM: MADGWICK J PLACE: PERTH DATE: 31 JULY 1996 EX-TEMPORE REASONS FOR JUDGMENT (Revised from transcript) MADGWICK J: This case has proceeded rather differently from the way it did before the learned Judicial Registrar. It is obvious that the applicant, Ms Hayden, is a person who has some severe emotional problems. There is some material to suggest that additionally she had a physical illness. I cannot see that there is any particular prejudice, certainly none insuperable, to the respondent if time is extended to allow her to make the application to have her case considered by the Court, and I would so extend it. A compassionate approach plays some part in this. The matter is an unusual one and one not necessarily to be governed by the general rules. The issue is one of a judicial discretion after all. For some time, perhaps a bit over three years, perhaps a bit over two - there is some conflicting material now placed before me - Ms Hayden, the applicant, performed the work of selling Sunday Times newspapers on a Saturday night in the Morley area. She had come by this work because she had had previous connections with the Sunday Times, having worked on several occasions casually as a production employee for those who produced the paper. She had arranged that her growing son, Craig, be in touch with the Sunday Times circulation department to secure work as a paper seller and he had that work. For various reasons it seems Craig was not very willing to continue with this work and Ms Hayden, the applicant, stepped into the breach, I gather, to keep the avenue of work open for her son if he should change his mind. For between one and two years Ms Hayden sold only about 60 papers per night. She was remunerated by being paid commission of 25 cents per paper. The system was that, at about 8 pm, papers would be delivered to a recognised drop-off point for her, and she would either collect them personally or she would leave her car at this point and they would be put in her car. When the papers had been sold, she would leave at a collection point any unsold papers, including any papers which were not complete and therefore not able to be sold, together with the proceeds thereof, less 25 cents per paper sold and a note accounting for any other papers. For example, she was entitled to two free papers and occasionally there may have been a paper missing from the number which supposedly had been dropped off for her. After that period she made suggestions to Ms Brond and Ms Brond's husband that it would be useful to try to sell the papers in a new shopping centre then opening in Morley, known as "the Galleria". Unbeknown to Ms Hayden, Ms Brond had independently made arrangements with the management of the Galleria to have access to it for a paper seller: she had arranged matters with the circulation department of the Sunday Times so that acquiring the Galleria as a distribution in her area would not offend any other person involved in sales and distribution of Sunday Times newspapers. Ms Brond had a contractual arrangement with the management of the Sunday Times whereby, for a fixed fee, she would arrange the delivery of papers to various sites or areas for sale by paper sellers such as Ms Hayden. Ms Brond would also pick up the unsold papers and the cash which would be left by people such as Ms Hayden at recognised collection points, deduct her fee from the moneys collected, and account for the balance of the money and the papers to the Sunday Times. Everybody seems to agree that ultimately it was the Sunday Times staff in the circulation department who had the say as to who might be a paper seller. Ms Brond seems not to have felt free either to change runs as between paper sellers or to introduce paper sellers to runs without getting the prior consent to her proposal of circulation department staff of the Sunday Times. She seems to have acted as an agent of the Sunday Times management for the minimal supervision, if that is the right word, of the paper sellers. For example, Ms Brond believed that, on an undue number of occasions, Ms Hayden would take a third newspaper but would account for it as missing, although on some other occasions she would account for it on her note as a third free paper. The apparent reason for this was that one of the uses of the free papers was to provide a small token of reward to the management of the staff of those retail establishments who would agree to sell papers on behalf of the paper seller, and, at that time in the Galleria, there were three such establishments. Hence, it was logical that Ms Hayden should wish to offer the kindness of a free copy of a paper to the third establishment. Ms Brond says that she warned and upbraided Ms Hayden about this practice. Ms Hayden however was not easily persuaded of the justice of the position contended for by Ms Brond. I mention it, not because it has any particular significance in my decision, but to illustrate the kind of matter in relation to which Ms Brond would involve herself on behalf of the Sunday Times. Ms Brond had no personal interest in this third newspaper because she took her fixed fee out of the money due to the Sunday Times and the few cents' cost involved in the third free newspaper was met by the Sunday Times. Evidently, the circulation department had a policy that each paper seller was, however, only to be allowed two free papers. There are some indications that Ms Brond did regard herself as exercising "authority" over Ms Hayden. For example, after the parting of the ways, Ms Brond wrote to Mr Wilson of the Sunday Times newspaper circulation department, "concerning Ms Colleen Hayden, a seller for the Sunday Times on Saturday evenings" and referring to Ms Hayden's complaint that she had been unfairly dismissed on 8 July 1995 - of which I will say more later. Ms Brond says: "I dismissed Ms Hayden for refusing to carry out her duties which is to sell newspapers due to the fact I demoted her back to her original stand as I was not happy with the sales at the Galleria Shopping Complex and other reasons, one of which is her constantly defying my authority ... We agreed, in conjunction with the Sunday Times, to reinstate Ms Hayden under the guidelines set out in a letter dated 15 July 1995 which was signed by Ms Hayden in agreement to the conditions of which a copy was forwarded to you." The letter continued: "On 12 August 1995 she again defied my authority by entering the Galleria Shopping Complex and selling papers within which is (sic) stated clearly in the letter dated 15 July 1995 that she is not permitted anywhere in or around the shopping complex. In light of the fact she now has on two occasions deliberately refused to carry out her duties as instructed, we are of the opinion we were justified in dismissing Ms Hayden for the above reasons as our position is to increase the sales for the Sunday Times to the best of our ability." The references to July concern the removal of Ms Hayden from the relatively lucrative Galleria site. Ms Brond's stated reasons for this are as set out in the letter from which I have just quoted. Ms Brond's evidence is that, before changing the arrangements at the Galleria concerning Ms Hayden, she had discussed it with and had got the approval of the circulation department of the Sunday Times. Ms Hayden was very unhappy with the proposed changes and complained to the circulation department. She apparently complained that she should have had a written warning of some sort and the circulation department suggested that written arrangements be made in future. In consequence, Ms Brond prepared a letter dated 15 July 1995, and required Ms Hayden to sign it, whereby Ms Hayden acknowledged that "as an employee for the Sunday Times" she was "employed to sell papers on Saturday evenings in the Morley vicinity except for the Galleria Shopping complex" and other distribution points. Ms Brond, on 14 August, had delivered to Ms Hayden a letter in the following terms: "I'm writing in regards to our written agreement on 15 July 1995 after your selling points were changed due to myself not being satisfied with the selling capability of the Galleria Shopping complex and other reasons. We signed these terms with both parties in total agreeance of what was required. On Saturday, 12 August 1995, you completely defied this by entering the Galleria Shopping complex and selling your papers. Consequently, your services are no longer required." Ms Brond says that she did in fact act on her own authority in relation to this but it was after having discussed the matter with the circulation department in advance. Her other letter of 15 July addressed to the Sunday Times had been merely confirmatory of discussions which she had had with them. There is no indication that Ms Brond paid Ms Hayden out of her own funds. It is not clearly shown that the ultimate decision to "hire and fire" was that of Ms Brond rather than that of full-time employees of the Sunday Times organisation. In the mass of written material which Ms Hayden asked me to read, and which I did read, there are indications that Ms Hayden herself considered that she was in contractual relations with the Sunday Times organisation. For example, she says at one point (it has been flagged for convenience), in complaining of the letter of 14 August: "It doesn't even state the company [for whom] I worked for 3 years." In the same bundle, recounting an incident when apparently she had got her doctor to ring Ms Brond, she says Ms Brond had said to the doctor: "Ms Hayden was no longer employed by her company, the Sunday Times." And, further, she assigns supposed reasons for Ms Brond's "constructive dismissal" of her to Ms Brond's alleged, particular views about people who "were to be employed by the Sunday Times". Again in the same bundle, after a reference to the case of Patricelli v Glenis Stephenson trading as L.J. Hooker Real Estate (Industrial Relations Court of Australia, Farrell JR, 18 December 1995, unreported), she says that various delivery drivers were paid, in years gone by, "a better rate of pay than me from the Sunday Times Circulation Department through Sunday Times paper". In another bundle of documents which Ms Hayden asked that I read, in apparently answering the complaint that she had "encroached on other runs", she said: "There was no encroaching by me. They have encroached [first] on my sales job as the independent contractor Sunday Times seller on the best money sales and quickest in the Morley Shopping Centre". Obviously, Ms Hayden is hardly tutored in the law and it would be wrong to ascribe any particular significance to her use, for example. of the legal phrase "independent contractor". Nevertheless, the position does seem to be clear that the money proceeded from Sunday Times funds to a paper seller such as Ms Hayden and that she considered herself as in a contractual relationship with the Sunday Times but one which Ms Brond, by reason of the latter's relationship with the Sunday Times, had some authority to terminate. Certainly, Ms Hayden thought it appropriate to appeal to the Sunday Times circulation department about the two decisions, apparently, of Ms Brond, with which she was unhappy: namely, the taking away from her of the Galleria site in July and her final dismissal in August. It is for the applicant to establish that there was a contractual relationship of employment between her and the respondent. I am not satisfied that there was any contractual relationship between Ms Hayden and Ms Brond. This makes it unnecessary to determine just what the nature of the contractual relationship between Ms Hayden and the Sunday Times organisation might have been, but I formed no positive view that that relationship itself was one of employer and employee. It might also have been that of an independent commission sales agent for a principal. Ms Hayden sold papers for three years, in rain and cold as well as on balmy summer nights. She did not miss a Saturday night. Even with a few dollars worth of tips, for two hours or more work on a Saturday night, she was paid a pittance. That pittance improved to something a little more than a pittance for ten months. She was doing her best. She did not complain about encroachments on her run by other paper-sellers, mostly boys. There was some give and take. It seems that some other boys were introduced who were a bit keener on demarcation of runs or sites, and that they complained about her. It may also be that her emotional difficulties, if they then existed - and I think they probably did, judging from the early correspondence about the matter - would have made her a prickly and difficult character with whom to deal. If she did anything seriously wrong it was to encroach a little when she had been generous about encroachments on her own territory and when, after all, she was chasing only 25 cents a newspaper for herself, and in receipt of little more than a pittance. It hardly sounds like an offence warranting dismissal. She probably also told some small lies about the third free paper but she had, to my mind, a negotiable point. The establishments were selling papers on behalf of the Sunday Times as well as herself. If the Sunday Times had parted with $1.20, less her 25 cents, less also some small amount attributable to Ms Brond's services, for the sake of providing its ultimate customers with the ease of acquiring a copy of that organ of news and information, this hardly seems excessive. There had, as Ms Hayden points out, been no increase in her rate of commission over three years despite increases in the price of the newspaper. I have not considered the matter to finality but, on the material presented before me, the case seems to have been substantially different, as I repeat, from what was put before the Judicial Registrar. Ms Hayden's case as to harshness and injustice is not without merit. To the extent that that should be considered in extending the time for her to lodge her application I would take that into account too. I consider the matter no further. I think that the applicant regrettably must fail. The formal orders I make are that time is extended sufficiently to enable Ms Hayden's application in this matter to be lodged and the application is dismissed.

I certify that this and the preceding 8 pages are a true copy of the Ex Tempore Reasons for Judgment of His Honour Justice Madgwick. Associate: Dated: 31 July 1996 APPEARANCES Representative for the Applicant: Self Representative for the Respondent: Self Date of hearing: 31 July 1996