Paulino v Microantenna Services Pty Ltd [1996] IRCA 548

DECISION NO:548/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether there was a relationship of employer and employee - whether there was termination at the initiative of the respondent Industrial Relations Act 1988 ss.170DB, 170DC, 170DE(1) CASES: Price v Grant Industries Pty Ltd (1978) 21 ALR 388 Stevens v Brodribb Sawmilling Company Proprietary Limited (1985-1986) 160 CLR 16 Re: Porter; Re Transport Workers Union of Australia (1989) 34 IR 179 Mohazab v Dick Smith Electronics Pty Ltd (No 2), (1995) 62 IR 200 Rheinberger v Huxley Marketing Pty Ltd (unreported, Moore J, No. NI 2064R of 1995, 16 April 1996) FERNANDO MANUEL PAULINO v MICROANTENNA SERVICES PTY LTD No. VI 5184 of 1995 Before: Judicial Registrar Millane Place: Melbourne Date: 15 November 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5184 of 1995 B E T W E E N : FERNANDO MANUEL PAULINO Applicant A N D MICROANTENNA SERVICES PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 15 November 1996 THE COURT DECLARES THAT: 1. On 29 September 1995 there existed between the applicant and the respondent a relationship of employer and employee. AND THE COURT ORDERS THAT: 2. The applicant's application is otherwise dismissed. 3. There be liberty to each party to apply to the Court on reasonable notice on the question of the costs in this proceeding. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5184 of 1995 B E T W E E N : FERNANDO MANUEL PAULINO Applicant A N D MICROANTENNA SERVICES PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 15 November 1996 REASONS FOR JUDGMENT In this case the applicant seeks compensation alleging that on 29 September 1995 the respondent terminated his employment as an antenna installer in contravention of Division III Part VIA of the Industrial Relations Act 1988 and, in particular, sections 170DE(1), 170DB and 170DC of the Act. Initially the hearing proceeded by way of Notice of Motion, it being argued by the respondent that it was appropriate to deal first with a preliminary jurisdictional question; namely, whether there was a relationship of employment during the relevant period. Substantial affidavit material was filed by the respondent seeking summary judgment because it was alleged that the applicant was an independent contractor. Having been taken through the affidavit material and, after hearing argument from both sides, I determined that there was a prima facie case or triable issue to be heard. Accordingly, the hearing proceeded on the basis of the affidavit material already filed, with a right of cross-examination and the leading of any further evidence. It was the respondent's position at hearing that if it did not succeed on the preliminary argument it further denied termination at its initiative. BACKGROUND By a written agreement entered into on 9 December 1994 (Exhibit R9) the respondent was appointed by Australis Media Limited (referred to by its brand name "Galaxy" throughout this proceeding) as an authorised installer of Galaxy's antenna and satellite dishes for customers of Galaxy's subscriber television service in prescribed areas. This agreement contains a number of provisions relevant to the issues argued by the parties in the proceeding before the Court. The provisions include the following: "3.0 INSTALLER'S OBLIGATIONS The Installer shall: 3.1 Engage sufficient staff and/or approved sub-contractors to meet AML's projected requirements of the Installer from time to time for installations of Equipment 3.2 Ensure that all persons involved in the performance of work orders issues by AML have been properly trained and certified in the manner set out in AML's Procedures Manual for Installers, as published from time to time (the "Procedures Manual") 3.3 Ensure that all installations and other work carried out at the direction of AML shall be performed in a good and workmanlike manner having regard to the performance and quality requirements set out in the Procedures Manual and generally so as to ensure the enhancement of AML's reputation in the marketplace 3.4 Comply with the requirements of AML as set out in the Procedures Manual, the terms of which shall be deemed to be incorporated into this agreement. ... 3.8 Not subcontract any installation work order received from AML other than to a subcontractor approved by AML at the time the work order is performed ... 7.0 APPROVAL OF SUB-CONTRACTORS 7.1 In the event the Installer wishes to enter into a sub-contract arrangement for the performance of the whole or part of its obligations under this agreement, AML agrees that it will not unreasonably withhold consent to such arrangement provided:

7.1.(1) The Installer makes the request in writing

7.1.(2) The Installer is able to establish to the satisfaction of AML that the sub-contract

7.1.(3) Will be legally bound to observe substantially the same obligations and responsibilities to the Installer as does the Installer to AML under this agreement

7.1.(4) Is able to satisfy the experience, quality and performance requirements specified by AML for Installers

...

7.2 In the event that AML has reasonable grounds to believe that an approved sub-contractor no longer satisfies the requirements of clause 7.6.(1), 7.6.(2), 7.6.(3), 7.6.(4), 7.6.(5) (sic) AML shall have the right to withdraw its consent to the sub-contract arrangement with that sub-contractor

...

9.0 GENERAL PROVISIONS

...

9.4 This agreement (including the Procedures Manual, amendments and updates to the Procedures manual, as issues from time to time and written work orders issued pursuant to this agreement) constitutes the whole agreement between the parties and supersedes any prior arrangements or understandings, except in relation to any work orders placed on the Installer prior to this agreement where there was an express agreement contrary to the terms of this agreement"

One of the reasons for setting out the abovementioned provisions in some detail is that they demonstrate the obligations placed on the prime contractor, the respondent, and how those obligations directly impinged on the contractual relationship the respondent then entered into with its installers engaged by it to perform the installation work it undertook as prime contractor.

One of the arguments advanced by the respondent in this case was that the requirements for accreditation and the training courses the applicant was obliged to attend in order to achieve and maintain accreditation as an installer of Galaxy products, as well as the requirement to comply with Galaxy installation methods and procedures, were requirements imposed not by the respondent but, by Galaxy. Putting to one side any privity of contract argument it is clear that the respondent was obliged by the terms of its agreement with Galaxy to, for instance, ensure that its employees and sub-contractors were trained and certified in accordance with Galaxy's "Procedures Manual" (Exhibit A1) and, more importantly, they were required to comply with the requirements set out in the procedures manual deemed to be incorporated into the agreement between Galaxy and the respondent. The procedures manual contains an outline of Galaxy's procedures and standards and was one of the documents provided to the applicant by Galaxy when he commenced his training course. Throughout the period between January 1995 and September 1995, when the applicant performed installation work, he was provided by the respondent with Galaxy documents and updated material concerning the installation work and how it was to be undertaken.

It is consistent with the performance of its obligations to Galaxy that, in its turn, the respondent when contracting with installers to perform installation of Galaxy products, made it an express or implied term of the contract entered into with the applicant, other experienced electricians and any antenna installers engaged by the respondent from approximately December 1994, that they undertake the Galaxy training course, obtain certification from Galaxy and work for the respondent in compliance with the requirements of Galaxy set out in its manuals as well as those Galaxy requirements notified to the installers by Galaxy through the respondent from time to time until 29 September 1995. In support of the Notice of Motion application, the respondent filed three further affidavits from three of its "sub-contractors", each of whom make it clear that they were required by the respondent to complete the Galaxy training course and, during 1995 they were required to undertake the satellite dish installation course and this was in order to perform this kind of installation. I found the attempt by the respondent to suggest that the Galaxy requirements were not its requirements of its putative installers extraordinary given the provisions of its own agreement with Galaxy and, further, given the unlikelihood of an experienced installer who refused to undertake the accreditation course or follow the manuals as updated from time to time obtaining and keeping work with the prime contractor. The witness for Galaxy confirmed that from his company's point of view the prime contractor risked breaching its contract with Galaxy if there was a failure to comply with the terms of that contract, which included the requirement that any employees or sub-contractors engaged by the prime contractor must be accredited and comply with Galaxy procedures. In its decision in Price v Grant Industries Pty Ltd (1978) 21 ALR 388, the Full Court at page 393 of their joint judgment express the difference between a contract of service and a contract for services in the following way: "... It would appear that the essence of a contract which creates the relationship of employer and employee is that it is a contract for the supply of work and skill of a man. On the other hand the essence of a contract which creates the relationship of entrepreneur and independent contractor is that it is a contract under which the contractor performs his obligations not by the performance of work but by producing an end result, albeit the end result is a consequence of the performance of work, and that such performance was something contemplated by the parties. The phrase "contract of service" expresses clearly enough the critical element of a contract so described, namely that what is to be supplied is service. But to speak of a contract for services does not with the same clarity indicate that what is to be supplied is not service per se but the end result of some activity. It was said by Latham CJ in Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 396: "If the work done by one person for another is done subject to the control and direction of the latter person as to the manner in which it is to be done the worker is a servant and not an independent contractor. If, however, the person doing the work agrees only to produce a given result but is not subject to control in the actual execution of the work he is an independent contractor"." The applicant is an electrician by trade who, prior to December 1994, conducted his own business as an electrician; part of which business included the installation of antennae and satellite dishes. He was then the sole proprietor of the business F.M.P. Building Services or F.M.P. Building Maintenance as it is sometimes referred to in the documents before the Court. It appears that both before and after the applicant commenced to perform work for the respondent he traded under a business name and made payments under the prescribed payments systems (see Exhibit R2 to R6 inclusive). It was not disputed by the applicant at hearing that when he was contacted by the respondent in about December 1994 and attended the home of Pasquale Laguda (Laguda), one of the respondent's directors, he did so believing that he was being asked to sub-contract to the respondent to perform installation work. Because of this understanding this is not a case where an individual worker who has been asked to provide services is saying that he did not appreciate that when he contracted with the respondent they were both purporting to contract on the basis that the applicant was to perform sub-contracting work for Galaxy's prime contractor. The applicant's case is that in reality the contract entered into, even though it purported to be one between a principal and a sub-contractor, was in fact a contract of service and this was so despite many of the terms being compatible with a contractual arrangement for services. The applicant and Laguda were the principal witnesses at hearing, both adopting the contents of their affidavits filed with the Court. My impression of the applicant as a witness was that at times he tailored his evidence to advance his case. An instance of this is when he told the Court that he commenced his new employment with Optus Administration Pty Ltd on 9 January 1996. Indeed, his counsel opened his case telling the Court that this would be the evidence called. Upon being recalled to the witness box towards the conclusion of the hearing, at the request of the respondent's counsel, the applicant produced a group certificate from his new employer apparently showing payments of income from 20 November 1995. He then told the Court that he had only attended Optus for a briefing for three days in November 1995 before commencing his duties in January 1996; subsequently conceding that he was paid as an Optus employee from at least November 1995. After the abovementioned evidence was given and after submissions had commenced, the respondent was granted leave to reopen its case and call further evidence pertaining to the applicant's employment since leaving the respondent. The applicant through his counsel consented to the tendering in evidence of a further bundle of copy documents obtained from Optus by the respondent's instructing solicitors on the last day of hearing (Exhibit R15). An affidavit was also filed by the respondent's solicitors deposing to conversations with Optus personnel concerning the applicant's application for employment. The documents contain copy letters of appointment and application material and together with the Affidavit show that the applicant was offered employment with Optus following an application on or about 29 August 1995 and an interview on 26 September 1995, which interview took place three days prior to the applicant leaving the respondent. The letter of offer from Optus dated 3 October 1995 provides for three months probationary employment to commence from 20 October 1995. The Affidavit suggests that notwithstanding the date of the letter of offer, the applicant was advised in September 1995 that his application for employment with Optus had been successful. The documentary evidence contained in Exhibit R15 and the Affidavit evidence were admitted without objection even though their contents clearly contradict the evidence of the applicant on a number of significant matters. The first is the contradiction of his evidence concerning his post-termination employment activities and the period of remunerative employment engaged in. The second contradiction is that the application for employment form, apparently completed by the applicant, contains details of full time employment with, amongst other things, references to employment with JTC Electrics from 1991 to "current" and FMP Services from 1985 to "current". Indeed, a matter of contention between the parties was the issue of whether the applicant was entitled to and did perform any work for other entities during the currency of his work with the respondent as well as engage an assistant for the performance of some of his installation work. Both in his affidavit material and his oral evidence, the applicant confirmed that at various times he was assisted in the performance of his installation work by others including an electrician referred to as Jack Cuffe or Cusse. Otherwise he denied working himself for anyone else during the period he worked with the respondent. It was alleged by the applicant that he did not pay Cusse or anyone else to assist; although he conceded that he invoiced the respondent for two technicians on the days that Cusse or others worked with him; allegedly retaining the money himself instead of paying the other person for the assistance given. The documents provided by Optus name Jack Cusse JTC Electric Services as a referee. The abovementioned matters make it more probable than not that the applicant did obtain assistance with his work from time to time and, despite his evidence to the contrary, paid some fee to at least Jack Cusse who assisted him on numerous occasions. The evidence contained in the documents also leads to the conclusion that it is more probable than not that at least as at both the date of his application and interview with Optus the applicant was also performing services for JTC Services and FMP Services for reward apart from the work performed for the respondent. A further conclusion that can be drawn from the documents is that prior to any alleged termination at the initiative of the respondent, the applicant had already actively sought and been offered alternative full time employment. Therefore, the discussions between him and Laguda on 29 September 1996 should be considered in this context. THE CONTRACT The applicant carries the burden of proving that at the relevant time he was an employee of the respondent. Apart from the question of whether the Galaxy requirements were in fact terms of the contract entered into between the applicant and the respondent, there was not a significant dispute about the other terms of the oral contract entered into in about December 1994. Having accepted that the so-called Galaxy requirements were in fact terms of the contract in the sense that the applicant had a contractual obligation to the respondent to comply with these requirements, the remaining question for the Court is how the contract should be characterised given the many indicia pointing variously to matters consistent with either an employment relationship or a sub-contracting arrangement. The seminal authority on the issue of whether a contract is a contract of employment is the decision of the High Court in Stevens v Brodribb Sawmilling Company Proprietary Limited (1985-1986) 160 CLR 16. Three passages from that decision are appropriate for consideration in this case. The first two are those contained in the decision of Justice Mason (as he then was) where he says at pages 24 and 28 respectively: "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. Federal Commissioner of Taxation (33); Zuijs' Case; Federal Commissioner of Taxation v. Barrett (34); Marshall v. Whittaker's Building Supply Co. (35). 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. ... The traditional formulation, though attended with some complications in its application to a diverse range of factual circumstances (Federal Commissioner of Taxation v. Barrett (47)), nevertheless has had a long history of judicial acceptance. True it is that criticisms have been made of it. It is said that a test which places emphasis on control is more suited to the social conditions of earlier times in which a person engaging another to perform work could and did exercise closer and more direct supervision than is possible today. And it is said that in modern post-industrial society, technological developments have meant that a person so engaged often exercises a degree of skill and expertise inconsistent with the retention of effective control by the person who engages him. All this may be readily acknowledged, but 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 Bros. Pty. Ltd. (48). 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." The third passage is that contained in the joint judgments of Justices Wilson and Dawson at pages 36 and 37 where their Honours say: "In many, if not most, cases it is still appropriate to apply the control test in the first instance because it remains the surest guide to whether a person is contracting independently or serving as an employee. That 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: Montreal v. Montreal Locomotive Works (75). This has led to the observation that it is the right control rather than its actual exercise which is the important thing (Zuijs v. Wirth Bros. Pty. Ltd. (76)) but in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd. v. Federal Commissioner of Taxation (77), a case involving a droving contract in which Dixon J. observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract. The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance." In his decision in Re: Porter; Re Transport Workers Union of Australia (1989) 34 IR 179, His Honour Justice Gray illustrated in a graphic way the difficulty confronting the Court in attempting to balance all the competing factors when he recorded at page 184 of his decision the following observation: "...In truth, the result may be a matter of impression. It is unfortunate that this is so. It should not be necessary for people to obtain a decision of a court, in order to know the true nature of their relationship. Unfortunate or not, that is the case. Although the parties are free, as a matter of law, to choose the nature of the contract which they will make between themselves, their own characterisation of that contract will not be conclusive. A court will always look at all of the terms of the contract, to determine its true essence, and will not be bound by the express choice of the parties as to the label to be attached to it. As Mr Black put it in the present case, the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck." This is a case where the respondent at all times retained power to exercise a considerable degree of control over the performance of the installation work even though it is apparent that it did not always rigorously pursue or enforce the Galaxy marketing, installation and performance standards. The matters relied on by the applicant to substantiate his characterisation of the contract include the following factors. The requirement to complete training courses both before and during the period the applicant worked with the respondent to gain accreditation and the opportunity; for instance, to install satellite dishes were one factor. The marketing, procedures and installation manuals are replete with instructions and directives to installers on each and every step to be taken in their relationship with the customer and in the performance of the installation itself. The installers were told they were "the face" of Galaxy and would be seen by customers as employees. Because of this they were required to wear Galaxy uniforms and were directed on matters to do with their personal hygiene, appearance and any additional items such as the wearing of ear-rings. Whilst the respondent was indulgent in the enforcement of these dress requirements it did in fact enforce minimum requirements and had the power to insist on the wearing of the full uniform. There were quality control inspections or monitoring of work which led, on one occasion, to rectification work being performed at an installation site attended by the applicant. On the evidence of Galaxy's witness that company received in the order of a 75% response from the installers to its feedback questionnaire, which document was provided to the applicant and other installers by the respondent for completion. It was clearly understood by the applicant that he was required to complete this questionnaire even if the respondent did not ultimately press the issue of completing and returning the documents to it. Because of Galaxy's requirements the applicant and other installers were required to purchase equipment which they did through the respondent. However, the materials to be installed were supplied to the applicant by the respondent as stock with the requirement that he perform a monthly stocktake and record various matters to do with the supply and the use of the stock. Apart from performing the installation the applicant was also required by the respondent to collect money from the customers and return that money to the respondent the following morning. It was accepted by both parties that delegation of the performance of the installation tasks could not occur because an installer required accreditation to install Galaxy products. Where the parties diverged was on the matter of the use of assistants. In view of my earlier observations and the evidence given in Court, I am inclined to the conclusion that the applicant did regularly use assistants without any interference from the respondent and because he charged the respondent for this, it is likely that these people were paid by the applicant for their help. Therefore, the inability to delegate to any person other than an accredited installer, a factor consistent with a contract of service, must be weighed against the opportunity the applicant had to arrange for and pay his own helpers, which is a matter indicative of a relationship of prime contractor and subcontractor. There was some dispute as to the hours worked and any requirement to be available Monday to Saturday for eight hours each day. The evidence supports a conclusion that the applicant worked regularly with a number of days off in the first half of the year and in the period from July 1995 to the end of September 1995 he, along with the other installers, went onto a roster system which provided for them to work on alternate days. This was said to have come about by reason of a shortage of work. I accept that the evidence demonstrates that the roster system was applied generally to the installers and I accept further that the evidence does not support the finding that the applicant was in any way discriminated against in the application of this system. The applicant may have wished to work more hours and more days per week, nevertheless the evidence supports the finding that he was not required to be available every day and was free to pursue other work if he chose to. The initial representation by Laguda to the effect that there would be enough work for the installers from Monday to Friday, reflected an expectation qualified by a further representation that availability of this work was subject to Galaxy allocating sufficient work to the prime contractor. It was not denied by the respondent that the installers were directed not to perform any other work for customers whilst wearing Galaxy attire and performing the Galaxy installations. Apart from inhibiting their opportunity to pursue their other business interests, the direction supports the applicant's claim that he was expected and required to be attired in a Galaxy uniform when performing installation functions. Although the applicant relies on having complained to Laguda about the failure to pay him superannuation payments, I am satisfied that the respondent denied any liability to pay the sum. The claim that he was entitled to superannuation payments only came about after the applicant decided that he was really being treated as an employee. The fact that he raised this issue during the currency of his work for the respondent only confirms that by May 1995 he had reached the conclusion that he was really an employee and because of this should have received the benefits usually paid to an employee. In addition to some of the matters already referred to, an indicium significant in determining what relationship exists is the method of payment of remuneration. The applicant was paid after submitting invoices and his pay was calculated on a scale of fees determined by the respondent who then deducted PPS payments. The applicant did not receive any annual leave, sick leave or superannuation entitlements and, along with the other installers, was advised to obtain his own insurance before he commenced working with the respondent. He did not follow this advice because he said he could not afford the premium. After the respondent supplied stock, some equipment and some of the initial uniform requirements the applicant was responsible for the provision of his own van and tools and was otherwise responsible for the provision and upkeep of his uniform. Lastly, the respondent relied on the express intention of the parties in contracting on the basis that the applicant would be a subcontractor. Undoubtedly, this was an important consideration. However, as with the other indicia it must be balanced against all the factors operating in the relationship. As the authorities set out indicate, by applying a label to the relationship the parties cannot create that relationship if the label is at odds with the terms of the contract and its true characterisation. My conclusion on the evidence is that despite the respondent's efforts to convince me to the contrary, the factors governing the relationship on balance point to a relationship of employment. THE TERMINATION On 29 September 1995 there was a verbal altercation between the applicant and Laguda. By that time the applicant was openly dissatisfied with the amount of work he was getting on the roster system and that dissatisfaction appears to have led to both the seeking of alternative employment with Optus and the verbal exchange with Laguda on 29 September 1995. It was Laguda's evidence that when the applicant came in on the morning of 29 September 1995, Laguda was on the telephone. He was approached by the applicant who complained loudly about the lack of work. When questioned by Laguda about what his problem was the applicant responded by saying he could do his own work and make more money. Laguda responded to this by inviting the applicant to "unload his truck" because he would not roster the applicant for work any more. The applicant took up the invitation and returned the respondent's equipment. The applicant's oral evidence was that he believed that because he had raised issues concerning matters such as the payment of superannuation, he was being victimised on 29 September 1995 when he arrived to find that he had not been rostered on for any jobs that day. As I have already indicated I have accepted the respondent's evidence that it had a roster which covered all its installers for the period when there was less work to distribute. I am not satisfied that the applicant was discriminated against in any way concerning the allocation of this work or because of his complaints some months earlier about the respondent's failure to pay superannuation payments for its installers. The applicant alleges that when he met with Laguda he commented on the roster, then left and was followed by Laguda to the carpark where Laguda asked the applicant what his problem was and also asked "Don't you like doing this?". When the applicant replied "... this is bullshit and immature ..." Laguda responded by saying "... you are fucking sacked, empty your vehicle". During the lengthy hearing the applicant's evidence in a number of areas was challenged and found to lack consistency and plausibility. The evidence to do with his post-termination employment is a more serious example of a lack of candour on his part which I interpret as an attempt to advance his claim for compensation. Given the unsatisfactory nature of his evidence on a number of matters, I am inclined to accept Laguda's version of events on the last day the applicant worked. The question then is whether, objectively speaking, the acts of the employer initiated the termination. Voluntariness is a matter requiring some close consideration in determining this question because the applicant had alternative employment when he challenged Laguda and was, in effect, invited to leave if he did not like the work situation. That invitation alone is not evidence of an intention by the respondent to bring the relationship to an end. In its decision in Mohazab v Dick Smith Electronics Pty Ltd (No 2), (1995) 62 IR 200 the Full Court of the Industrial Relations Court of Australia treated the expression, "termination at the initiative of the employer" as one referring to a termination brought about by an employer and not agreed to by the employee. The Full Court expanded on this view by saying at pages 205 to 206 of the joint decision: "... plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship." When discussing the observations of the Full Court in his decision in Rheinberger v Huxley Marketing Pty Ltd (unreported, Moore J, No. NI 2064R of 1995, 16 April 1996), His Honour Justice Moore explained at pages 14 to 15 of his decision that: "... it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct." I am not satisfied that in this case an invitation by the employer to an employee to leave if the employee expresses dissatisfaction with the work system is objective evidence of an act on the part of the employer intended to and leading to termination. The more appropriate characterisation of the parties behaviour is that the applicant was dissatisfied with the roster system and the job in general and when his complaint about there not being enough work on 29 September was not met, he decided to leave because by then he had alternative employment available. In the event that I am not correct in my analysis of the facts and there was termination at the initiative of the respondent; not to mention a failure to discharge the burden the respondent carries of showing that there was a valid reason for termination, I would not have been disposed to make any order for compensation for the period between 29 September 1995 and 20 October 1995. This is because I am not satisfied that the applicant discharged the onus he carried of showing that there was a loss during that period and such a loss was causally linked with the unlawful termination. Therefore, the only amount payable, had there been termination at the respondent's initiative, would have been the one week's compensation in lieu of notice representing the statutory minimum payable pursuant to section 170DB of the Act. The order I propose to make is that the applicant's application is otherwise dismissed. MINUTES OF ORDERS THE COURT DECLARES THAT: 1. On 29 September 1995 there existed between the applicant and the respondent a relationship of employer and employee. AND THE COURT ORDERS THAT: 2. The applicant's application is otherwise dismissed. 3. There be liberty to each party to apply to the Court on reasonable notice on the question of the costs of this proceeding. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 15 November 1996 Solicitors for the Applicant: Goulopoulos, Shiels & Mangopoulos Counsel for the Applicant: Mr J. Bourke Solicitors for the Respondent: Phillips Fox Counsel for the Respondent: Mr B. Lacy Date of hearing: 28 & 29 March 1996 and 7, 8 & 9 August 1996 Date of judgment: 15 November 1996