Damevski v Giudice [2003] FCAFC 252

Damevski v Giudice [2003] FCAFC 252

On an objective assessment of conduct and intention, the evidence established that Mr Damevski continued to provide services to Endoxos in the same manner as before, and that Endoxos retained control over his work, directed his duties, provided equipment, and determined his pay, with MLC/AICA acting merely as a paymaster. Therefore, a contractual employment relationship between Mr Damevski and Endoxos subsisted after 19 August 2001, and the Commission erred in law in finding otherwise. Accordingly, relief by writ of certiorari and mandamus was warranted.

Parties
Applicant: Riste Damevski; First Respondent: The Honourable Justice Geoffrey Michael Giudice, President of the Australian Industrial Relations Commission, The Honourable Dr Alexander John Nicholas Blain, A Deputy President of the Australian Industrial Relations Commission, Peter Ashby Lawson and Gareth Simon Graham Grainger, Members of the Australian Industrial Relations Commission; Second Respondent: Endoxos Pty Limited
Jurisdiction
Australia
Judgment Date
13 November 2003
Procedural Posture
Application for Prerogative Relief / Appeal After Remittal From High Court
Outcome
Application allowed; decision of the Commission quashed and matter remitted for determination in accordance with law.
Legal Topics
Termination of Employment, Prerogative Relief, Employment Relationship, Contract Formation, Jurisdictional Fact, Labour Hire Arrangements
Industrial Law Employment Law Administrative Law Termination of Employment Prerogative Relief Employment Relationship Contract Formation Jurisdictional Fact +1 more

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Parties

Riste Damevski

Applicant

The Honourable Justice Geoffrey Michael Giudice, President of the Australian Industrial Relations Commission, The Honourable Dr Alexander John Nicholas Blain, A Deputy President of the Australian Industrial Relations Commission, Peter Ashby Lawson and Gareth Simon Graham Grainger, Members of the Australian Industrial Relations Commission

First Respondent

Endoxos Pty Limited

Second Respondent

Procedural Posture

Application for Prerogative Relief / Appeal After Remittal From High Court

Legal Issues

  1. 1 Whether applicant had a contractual relationship with Endoxos Pty Limited
  2. 2 Whether Mr Damevski was an employee of Endoxos at the time of termination
  3. 3 Whether the Commission erred in law by finding no employment relationship

Ratio Decidendi

On an objective assessment of conduct and intention, the evidence established that Mr Damevski continued to provide services to Endoxos in the same manner as before, and that Endoxos retained control over his work, directed his duties, provided equipment, and determined his pay, with MLC/AICA acting merely as a paymaster. Therefore, a contractual employment relationship between Mr Damevski and Endoxos subsisted after 19 August 2001, and the Commission erred in law in finding otherwise. Accordingly, relief by writ of certiorari and mandamus was warranted.

Court Disposition

Application allowed; decision of the Commission quashed and matter remitted for determination in accordance with law.

Orders

  • A writ of certiorari issue to the Australian Industrial Relations Commission, removing into this Court and quashing the decision of the Full Bench of the Commission of 13 September 2002 in Matter No C2002/2307.
  • A writ of mandamus issue to the Commission, directing it to hear and determine Matter No C2002/2307 in accordance with law.