KINNA v GIBBS [1997] IRCA 61

KINNA v GIBBS [1997] IRCA 61

Considering the totality of the relationship, the applicant was an employee rather than a contractor because he was engaged to work full time for the project at $1,000 per week, provided with office facilities, required to make himself available, and subject to day-to-day direction by Mr Gibbs. Upon incorporation, McAllion Lloyd Pty Ltd assumed the role of employer by novation. The company's failure to pay the agreed wages caused the applicant's refusal to supply specifications, and the letter of 14 August effectively ended the relationship. The company initiated the termination and had no valid reason under s170DE(1), so compensation of four weeks' wages was appropriate.

Jurisdiction
Australia
Judgment Date
21 February 1997
Procedural Posture
Application for Remedy for Alleged Unlawful Termination of Employment Under S170 EA of the Workplace Relations Act 1996 / Final Decision and Orders After Hearing
Outcome
The application succeeded against the fourth respondent, which was ordered to pay compensation to the applicant.
Legal Topics
['unlawful Termination' 'employee or Contractor' 'contract of Service or Contract for Services' 'valid Reason for Termination' 'compensation']
['industrial Law' 'employment Law'] ['unlawful Termination' 'employee or Contractor' 'contract of Service or Contract for Services' 'valid Reason for Termination' 'compensation']

Case Brief

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Procedural Posture

Application for Remedy for Alleged Unlawful Termination of Employment Under S170 EA of the Workplace Relations Act 1996 / Final Decision and Orders After Hearing

Legal Issues

  1. 1 ['Whether the applicant was an employee or an independent contractor.' "Which respondent was the applicant's employer." "Whether the applicant's employment was terminated by the employer." 'Whether there was a valid reason for termination under s170DE(1) of the Workplace Relations Act 1996.' 'What remedy should be ordered under s170EE(2) of the Workplace Relations Act 1996.']

Ratio Decidendi

Considering the totality of the relationship, the applicant was an employee rather than a contractor because he was engaged to work full time for the project at $1,000 per week, provided with office facilities, required to make himself available, and subject to day-to-day direction by Mr Gibbs. Upon incorporation, McAllion Lloyd Pty Ltd assumed the role of employer by novation. The company's failure to pay the agreed wages caused the applicant's refusal to supply specifications, and the letter of 14 August effectively ended the relationship. The company initiated the termination and had no valid reason under s170DE(1), so compensation of four weeks' wages was appropriate.

Court Disposition

The application succeeded against the fourth respondent, which was ordered to pay compensation to the applicant.

Orders

  • ['The Fourthnamed Respondent pay to the applicant the sum of $4,000.00 within 21 days.']