WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SHARON LEE PRITCHARD, APPLICANT v. PERTH ROAD EXPRESS ACN 079876323, RESPONDENT BEVERLEY ANNE CRUTE, APPLICANT v. PERTH ROAD EXPRESS ACN 079876323, RESPONDENT CORAM COMMISSIONER J H SMITH DELIVERED MONDAY, 16 SEPTEMBER 2002 FILE NOS. APPLICATION 1942 OF 2001 & APPLICATION 1943 OF 2001 CITATION NO. 2002 WAIRC 06753 _________________________________________________________________________________________________________ Result Applicants harshly, oppressively and unfairly dismissed. Orders made that the Respondent pay each Applicant $5,200. Representation Applicants Mr T Crossley (as Agent) Respondent Mr G McCorry (as Agent) _________________________________________________________________________________________________________ Reasons for Decision 1 Sharon Lee Pritchard and Beverley Anne Crute (“the Applicants”) made applications under s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) for orders pursuant to s.23A of the Act. The Applicants claim that they were harshly, oppressively or unfairly dismissed by Perth Road Express (“the Respondent”) on 12 October 2001. During the hearing Mr McCorry advised the Commission that the name of the Respondent is PRE Pty Ltd trading as Perth Road Express. 2 The Applicants carried out work as courier drivers for the Respondent under a job sharing arrangement. The Respondent says the Commission has no jurisdiction to deal with the Applicants’ claims as it did not employ them. The Respondent says that at all material times the Applicants were engaged as sub-contractors. By consent it was agreed that the jurisdictional issue and the evidence whether the Applicants had been harshly, oppressively or unfairly dismissed would be heard together. The Respondent concedes that in the event that the Commission finds that the Applicants were at all material times employees of the Respondent that the termination by the Respondent of each of the Applicants was procedurally unfair. At the conclusion of the Applicants’ case the Respondent elected not to call any evidence. Factual Circumstances in Relation to the Nature of Engagement 3 The Respondent is a transport company. Among other services that the Respondent provides, it transports shipping containers. The Respondent at some time prior to the employment of the Applicants entered into an agreement with Danzas Pty Limited (“Danzas”) who deals with exports and imports of goods. The Respondent agreed to provide a daily courier service whereby a courier, engaged by the Respondent, collected documents from Danzas’ premises at the Perth International Airport, delivered 2718 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. the documents to customs agents in Fremantle and to transport companies, to enable the movement of sea containers. This courier service was provided from Monday to Friday each week. 4 Ms Beverley Crute testified that she was engaged by the Respondent on 2 July 2000 after she was offered work as a courier by Mr John Hodges, the Respondent’s manager. Ms Crute said that in May or June 2000 she was working part-time in a shop but the shop was closing and she was going to be out of work. She met with Mr Hodges whom she had known for many years and he said to her that he “had a job for her”. She testified Mr Hodges explained that the job was for 52 weeks of the year. He said there would be no holidays and she would be required to work five days, Monday to Friday, each week. Ms Crute said she advised Mr Hodges she would think about the offer. Because she did not wish to work full-time she asked Mr Hodges whether she could job share with Ms Jane Gordon whereby over a two week period they could work an equal number of days. Ms Crute said that Mr Hodges agreed that she could job share with Ms Gordon. 5 Ms Crute commenced work with Ms Gordon. They worked two days one week and three days the next week. Ms Crute said that they reached this arrangement so that she and Ms Gordon would be paid equally each fortnight. Ms Crute tendered to the Commission time sheets which covered each week of her engagement. She says that Mr Hodges advised her that she was to fill out weekly time sheets showing each day that she worked. The weekly time sheets show that on each day Ms Crute worked, she always commenced at 9:30am but that her finishing times varied. Sometimes she finished work as early as 12:45pm, sometimes at 1:00pm, sometimes at 1:30pm or sometimes later. Ms Crute was instructed by Mr Hodges to commence work each day at 9:30am by attending the office of Danzas. On arrival at the office of Danzas, Ms Crute was given a mobile telephone for her use during the day. She picked up bundles of documents and was advised where the documents were to be delivered to. On many occasions she was required to take with her Danzas cheques to various transport companies, including the Respondent. 6 Ms Crute said that initially it was agreed by Mr Hodges that she and Ms Gordon be paid $80 each day they worked on the basis that they would use Mr Hodges’ car for the work. After a short period of time Mr Hodges informed her they had to use their own vehicles. He agreed to pay them an extra $10 per day as a car allowance. They were then each paid $90 per day regardless of the hours worked or kilometres travelled on each day. Ms Crute was given a magnetic sign to attach to her vehicle. The sign stated “Perth Road Express Courier”. 7 When cross-examined Ms Crute conceded that she approached Ms Gordon and asked her whether she (Ms Gordon) wished to job share and she then asked Mr Hodges whether they could enter into this arrangement. After a few months Ms Gordon did not wish to continue the courier work, so Ms Crute approached her daughter Ms Sharon Pritchard and asked her whether she wished to job share. Ms Crute says she approached Mr Hodges and Mr Hodges agreed. Ms Pritchard commenced work on 11 September 2000 and worked under the same terms and conditions as Ms Gordon and Ms Crute were engaged. 8 The Respondent deducted income tax from the Applicants’ pay and provided them with group certificates for the years ending 30 June 2001 and 30 June 2002. Initially Ms Crute was paid by a company called JT Transport. She produced a copy of her tax return for the financial year ending 30 June 2001 and a letter from her accountant. Those documents record that the Applicant was provided with two group certificates in the year 2000/2001. One from JT Transport Services and the second from the Respondent. Ms Crute says that initially she was paid by JT Transport because they provided a payroll service to a number of transport companies, including the Respondent. After she had been working for a period of time Mr Hodges asked her to fill out a tax file declaration. She was then paid by the Respondent. Ms Crute produced a tax file declaration signed by her dated 29 September 2000 in which it she had ticked a box indicating the basis of her engagement was as a casual employee. 9 Ms Crute maintains she obtained her instructions as to how to carry out her work from Mr Hodges. She however, conceded that she also received instructions from persons employed by Danzas. Each day she went to the Danzas office at the airport and picked up the container documents. She then travelled to the Perth Road Express office and delivered some documents and collected others. She then travelled to Fremantle to deliver the shipping documents to enable the release of containers from the wharf. Once she finished the run for the day she would return to the Respondent’s office. Ms Crute maintained that she could not delegate her work to anybody else other than the person she job shared with. 10 Ms Jane Gordon testified that she was a friend of Ms Crute and that Ms Crute approached her to work as a courier for the Respondent. Her evidence in relation to her daily run reflected the same pattern of work as described by Ms Crute. She said she reported to Mr Hodges. She said that Ms Crute did not give her any instructions, nor did she (Ms Crute) pay her (Ms Gordon). 11 Ms Sharon Pritchard testified that she commenced working as a courier for the Respondent in September 2000. She said her mother informed her that she (Ms Crute) had asked Mr Hodges whether she (Ms Pritchard) could speak to Mr Hodges about the job. Ms Pritchard said she spoke to Mr Hodges and he agreed that she could replace Ms Gordon. When cross-examined Ms Pritchard conceded that when she spoke to Mr Hodges about the position as a courier she did not have a long discussion with him about the nature of work. She said that prior to agreeing to speak to Mr Hodges she had been out on a “run” with her mother (Ms Crute). Ms Pritchard testified that she was required to report to Danzas at 9:30am on each day she worked, pick up the documents to be delivered and report to him (Mr Hodges) about the jobs that were to be done. She said that she was given a mobile telephone by Mr Hodges so that he could contact her during the day. At the end of the day she was required to report to the Respondent’s office after she had finished the Danzas deliveries, then return to Danzas before going home. 12 Ms Pritchard testified that she was informed by Mr Hodges that she was employed as a casual. She said that her work varied in that the number of the hours she worked each day varied. She worked five days each fortnight and was paid $90 for each day that she worked. Ms Pritchard also testified that she filled out time sheets every day which recorded her start and finish times each day. 13 Ms Pritchard said that she did not receive any instructions from Ms Crute about her work. She strongly contends she received all instructions from Mr Hodges. As set out below she testified that prior to her termination an issue arose in relation to a possible lost cheque. When this was raised with her she was directed by Mr Hodges only to speak to Damien at Danzas. It was put to her and conceded by her she had disobeyed his instruction by speaking to Mr Chapman. 14 Both Applicants denied that it was open for either of them to arrange for someone else to do the courier work on the days that they were not available. Ms Pritchard said on occasions when she got sick with the flu that her mother would work for her. When her mother was ill she would do her mother’s work. She said on the occasions that a public holiday arose that they did not carry out courier work on that day and they arranged with Mr Hodges to work two days each in that week. 15 Both Applicants testified that on some occasions Mr Hodges would pay them an extra $20 per day if an extra “side” trip was required. Legal Principles 16 It is not for the Respondent to show that the Applicants were not employees but for the Applicants to show, on the balance of probabilities, that they were employees (The Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers v R B Exclusive Pools Pty Ltd t/as Florida Exclusive Pools (1996) 77 WAIG 4 at 8 per Fielding SC). 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2719 17 The distinction between an employee and an independent contractor is “rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own” (Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210 per Windeyer J at 217; see also Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 per McHugh J at 366; approved by Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Ltd [2001] HCA 44 at [40]; (2001) 181 ALR 263 at 275). 18 I observed in Howe v Intercorp Services Pty Ltd trading as West Vision Painting Company [2001] WAIRC 2643 at [24] and [25]; (2001) 81 WAIG 1212 at 1214 that— “The relationship of employer and employee is a contract of service where an employee contracts to provide his or her work and skill (typically to enable an employer to achieve a result). An independent contractor works in his or her own business on his or her own account. Whilst the authorities do not establish a conclusive test for determining whether a person is an employer, regard must be had to the whole of the relationship. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Mason J at 24 and Wilson and Dawson JJ at 36 held that a prominent factor is the degree of control which the person (who engages the other) can exercise over the person engaged to perform work. The High Court also held that the existence of control is not the sole criteria, other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to provide exclusive services, provision for holidays, deduction of income tax, delegation of work, the right to suspend or dismiss, the right to dictate the place of work and hours of work. Further, Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd at 26 to 27 also observed that in some cases the organization test can be a further factor to be weighed (along with control), in deciding whether the relationship is one of employment or of independent contractor. The organization test is whether the party in question is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not for a superior (Montreal v Montreal Locomotive Works [1947] 1 DLR 161 per Lord Wright at 169). Whilst regard can be had to whether the parties regarded their contractual relationship one of employee/employer or independent contractor, if the evidence shows otherwise the parties cannot alter the truth of that relationship by putting another label on it (Massey v Crown Life Insurance Co (1978) 1 WLR 676 and Narich Pty Ltd v Commissioner of Pay- Roll Tax (1983) 2 NSWLR 601).” 19 The notion of “control” and its adjustment to the circumstances of contemporary life was recently re-considered by the majority of High Court in Hollis v Vabu Pty Ltd [2001] HCA 44 at [43-44]; (2001) 181 ALR 263 at 276; where Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ observed— “… In Humberstone [62], Dixon J observed that the regulation of industrial conditions and other statutes had made more difficult of application the classic test, whether the contract placed the supposed employee subject to the command of the employer. Moreover, as has been pointed out [63]— ‘The control test was the product of a predominantly agricultural society. It was first devised in an age untroubled by the complexities of a modern industrial society placing its accent on the division of functions and extreme specialisation. At the time when the courts first formulated the distinction between employees and independent contractors by reference to the test of control, an employer could be expected to know as much about the job as his employee. Moreover, the employer would usually work with the employee and the test of control and supervision was then a real one to distinguish between the employee and the independent contractor. With the invention and growth of the limited liability company and the great advances of science and technology, the conditions which gave rise to the control test largely disappeared. Moreover, with the advent into industry of professional men and other occupations performing services which by their nature could not be subject to supervision, the distinction between employees and independent contractors often seemed a vague one.’ It was against that background that in Brodribb [64] Mason J said that, whilst these criticisms might readily be acknowledged— ‘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 Brothers Pty Ltd [65]. 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.’ “ 20 In Hollis v Vabu Pty Ltd (op cit) the Respondent conducted business in the Sydney area under the name “Crisis Couriers” a business of delivering parcels and documents. It engaged about 25 to 30 persons as bicycle couriers and a number of others as motorcycle and motor vehicle couriers. Mr Hollis was injured by a bicycle courier engaged by Vabu Pty Ltd. The couriers engaged by Vabu Pty Ltd were required to supply their own bicycles and bore the expenses of running the bicycles and supplied many of their own accessories. They were provided by Vabu Pty Ltd numerous items of equipment which remained Vabu Pty Ltd’s property including a communication system. They were required to wear Vabu Pty Ltd’s livery at all times. They were paid for each particular job they carried out. They were required to report for work each day and were allocated work. At [47] Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ observed— “In classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it.” In Hollis v Vabu Pty Ltd the couriers were found to be employees by the High Court. All members of the court found that they had little control of the manner of performing their work and were presented to the public and to those using the courier service as emanations of Vabu Pty Ltd. In relation to the provision of the bicycles Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ at [56] observed that bicycles are not tools but inherently capable of use not only for courier work but provide a means of transport or even a means of recreation out of work time. 21 It is clear from the evidence given in these proceedings that the Applicants used their vehicles not only for work as a courier but also for their own purposes. I am of the view that in itself the provision by the Applicants of their own vehicles does not indicate the existence of a relationship of independent contractor. 22 It was argued by Mr McCorry on behalf of the Respondent that Danzas had more control over the Applicants’ work than the Respondent. I do not accept that. The Applicants and Ms Gordon gave uncontradicted evidence that they were directed by Mr Hodges to report to Danzas, pick up and deliver documents. It is apparent from their evidence that they were required by the Respondent to deliver the documents in accordance with the manner directed by employees or agents of Danzas. It is clear that the Applicants were treated for all material purposes as employees by the Respondent. Income tax was deducted from their daily payments. Further they were paid as if they were employees in that they did not invoice the Respondent and they 2720 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. completed weekly time sheets. Whilst the deduction of income tax cannot be taken to be reflective of an employment relationship, when considered with all other relevant facts it is clear the Respondent regarded the Applicants as employees. However, whilst regard can be had to whether the parties regarded their contractual relationship one of employee/employer or independent contractor, if the evidence shows otherwise the parties cannot alter the truth of that relationship by putting another label on it (Massey v Crown Life Insurance Co [1978] 1 WLR 676 and Narich Pty Ltd v Commissioner of Pay-Roll Tax (1983) 2 NSWLR 597). 23 The Respondent argues that it engaged Ms Crute to provide a courier service and it was a term of the agreement that she could engage another person to assist her. Further that in accordance with the terms of the agreement she chose to engage Ms Pritchard to carry out the requirements of the courier service in whatever manner she (Ms Crute) chose. It is also argued that Ms Crute engaged Ms Pritchard without consultation with the Respondent and it was up to each of them to decide what hours and on what days they would work. Consequently it is argued that the Applicants were not under the direct or indirect control of the Respondent. I do not accept these submissions, the uncontradicted evidence of the Applicants show that it was Mr Hodges who approved the work share arrangement. He gave directions to each of the Applicants and I am satisfied that they were subject to his direction and his control as the manager of the Respondent. 24 It is my view that neither of the Applicants could be described as conducting their own business. They could not delegate their work to anyone other than each other within their job sharing arrangement. Further, they did not have an ability to set or bargain their rate of remuneration. 25 When all the relevant factual circumstances are considered I am of the view that the Applicants were employed as part of the Respondent’s business and their work was done as an integral part of that business. Accordingly I am satisfied that the Applicants were engaged at all material times as employees working under contracts of service. Events that Lead to the Applicants’ Employment Coming to an End 26 Ms Crute testified that she went to work on Tuesday, 9 October 2002. In accordance with her routine, she went to Danzas at 9:30am and picked up documents. She then went to the Respondent’s office to pick up more documents. When she arrived at the Respondent’s office she spoke to Mr Hodges who was very angry. Mr Hodges informed her that Mike Chapman, the Ocean Freight manager at Danzas, had complained that Ms Pritchard had lost a cheque for $5,000. She said Mr Hodges also told her he was “fed up with their work” and not happy with the performance of either her (Ms Crute) or Ms Pritchard. Mr Hodges told her he was going to speak to Mr Garry Lloyd, who was also employed by Danzas, about the courier work. 27 Ms Crute said that she had some contact with Mr Chapman at Danzas and she saw Mr Lloyd on a regular basis. She said at that time he (Mr Lloyd) was on holidays in Albany. She said that she had never received any complaints from Mr Chapman or Mr Lloyd or anyone else who worked for Danzas about the standard or quality of their work. Ms Crute said that she told Mr Hodges that she would ask Ms Pritchard about the cheque. That evening Ms Crute rang Ms Pritchard and spoke to her about her conversation with Mr Hodges. Ms Crute did not work for the next two days because it was Ms Pritchard’s turn to work. 28 Ms Pritchard testified that when she was informed by Ms Crute that it was alleged she had lost the cheque, she was irate because she had not been asked about the lost cheque and the allegation was untrue. She said she telephoned Mr Hodges that night and he (Mr Hodges) told her to make a “quiet enquiry” of a person called Damien at Danzas. I gather from Ms Pritchard’s evidence that Damien was a person who worked in the accounts department of Danzas. The next day Ms Pritchard went to the premises of Danzas and she spoke to Mr Chapman because Ms Crute had told her that Mr Hodges had intended to discuss the matter with Mr Chapman. Ms Pritchard said that Mr Chapman informed her that he knew nothing about a missing cheque, that he did not have any issues with her performance and he had not spoken to Mr Hodges about a cheque or anything else. Ms Pritchard testified that she apologised to Mr Chapman who indicated to her that he would make his own enquiries about the matter. Whilst she was speaking to Mr Chapman she was interrupted by another employee of Danzas who informed her that Mr Hodges was on the telephone. She was handed a mobile telephone and spoke to Mr Hodges. She said that Mr Hodges “blasted her” and told her not to speak to Mr Chapman. 29 The following day Ms Pritchard started work at 9:30am at Danzas. She spoke to Damien Swyny and another person, Hugh. She said they went through all the receipts and ascertained that the cheque was not missing. She said she was informed there had been an in-house error. She said she asked Hugh whether there was anything wrong with their work and was informed, “No, you’re doing fabulous”. 30 On the following day Ms Crute worked. She went to Danzas and asked Damien about the cheque and he told her the cheque “was an in-house accounting error”. She spoke to Mr Hodges who informed her that he had spoken to Mr Lloyd who had telephoned him from Albany and as a consequence he (Mr Hodges) had decided that the Respondent was not going to do courier work for Danzas because it was costing too much money and not “worth it for him”. She said he also informed her that Danzas would have to do the courier work themselves and that Danzas was very unhappy with their (the Applicants’) work. Ms Crute said that she was stunned and cried because she loved the job. She said she could not understand why Mr Hodges had decided to cancel the work. He told her to inform Ms Pritchard that the work had finished. Ms Crute said that she was so upset that she did not take the paperwork or mobile telephone back to Danzas. Mr Hodges told her that he would return them. Over the weekend Ms Crute informed Ms Pritchard of what had occurred. She also spoke to Ms Gordon and advised her that she and Ms Pritchard had been terminated. 31 Ms Gordon testified that on Sunday, 14 October 2001 she received a telephone call from Mr Hodges. He advised her that he had sacked Ms Crute and Ms Pritchard. He asked her to train a new girl. Ms Gordon said she agreed to do so. She went to the Respondent’s premises on 15 October 2001. She spent two days training the new person. 32 The Respondent filed Notices of Answer and Counter Proposal that were signed by Mr Hodges on behalf of Perth Road Express in these matters on 29 November 2001. Attached to the Notice of Answer and Counter Proposal in both applications were two letters dated 3 September 2001 and 18 September 2001 in which an allegation is made in relation to the performance of the Applicants in providing courier services to Danzas. Both Applicants gave uncontradicted evidence that they had not seen copies of these documents until they received copies of the Notices of Answer and Counter Proposal. The letters were not tendered as evidence in these proceedings. 33 At the conclusion of the Applicants’ case, Mr McCorry on behalf of the Respondent advised the Commission that the Respondent elected not to call any evidence as Mr Hodges is no longer employed by the Respondent and the circumstances of his departure was such that his evidence was unlikely to be of assistance to the Commission. Submissions 34 The Respondent concedes the Applicants were summarily dismissed and the terminations were procedurally unfair. The Respondent contends that the Applicants were engaged as casual employees. However, it is also conceded by the Respondent that irrespective of whether the Commission makes a finding that the Applicants were casual or part-time employees that they had an expectation of ongoing work. Accordingly the issues raised in relation to assessment of compensation remain the same. Further it is conceded that the Commission should make a finding that the Applicants were unfairly dismissed in that if the 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2721 allegations of poor performance were raised with the Applicants, the Respondent is unable to say whether those issues could have been cured or whether the allegations would have led in any event to the termination of the Applicants’ employment. 35 Reinstatement is not sought by either Applicant. It is contended on behalf of each Applicant that they earnt an average of $450 per fortnight. It is contended that the maximum amount of compensation that can be awarded by the Commission in each case is $5,700. 36 The Respondent contends that Ms Pritchard has not satisfied her onus to take steps to mitigate her loss by seeking alternative employment. Further, that in any event the quantum of the Applicants’ loss should not be assessed at $90 per day as the Applicants’ operating costs of their vehicles should be deducted because the effect of the termination of the work is that they no longer have to bear the costs of the vehicle running expenses. In relation to Ms Crute it is contended that if regard is had to her 2000 income tax return that the maximum six month cap on her remuneration is an amount of $4,353. In relation to Ms Pritchard, Ms Pritchard testified her operating costs were $35 per day. If that is applied to her earnings the Respondent says the maximum amount of compensation the Commission can award her is $3,575. Conclusion 37 The term “casual employee” has no fixed meaning. The true nature of any employment relationship will depend upon the facts and circumstances of each case (Doyle v Sydney Steel Company Limited (1936) 56 CLR 545 at 551, 565). 38 In the Australian Industrial Relations Commission it has been accepted that the status of “casual employment” is not necessarily inconsistent with the concept of an ongoing contract of employment (Ryde–Eastwood Leagues Club v Taylor (1994) 56 IR 385). 39 The nature of casual engagement has been set out in a number of decisions of this Commission. In Serco (Australia) Pty Limited v Moreno (1996) 76 WAIG 937 at 939, Sharkey P observed— “ ‘The concept of casual employment within the common law of employment, untrammelled by award prescription, is generally taken to connote an employee who works under a series of separate and distinct contracts of employment entered into for a fixed period to meet the exigencies of particular work requirements of an employer, rather than under a single and ongoing contract of indefinite duration.’ (See Squirrell v Bibra Lakes Adventure World Pty Ltd t/a Adventure World (op cit) at page 1835 per Fielding C and Stewart v Port Noarlunga Hotel Ltd (1980) 47 SAIR 406 at 420). The parties, of course, cannot by use of a label render the nature of a contractual relationship something different to what it is (see Stewart v Port Noarlunga Hotel Ltd (op cit) per Haese DPP at pages 5-6).” 40 It is argued on behalf of the Applicants that the terms of their employment were regulated by the Transport Workers’ (General) Award No 10 of 1961 (“the Award”). The Respondent contends that the Award does not apply to couriers. That may be the case, however, the Commission is unable to form a view as Clause 3 of the Award provides— “This Award shall apply to all workers following the vocations referred to in the wages schedule who are eligible for membership in the applicant union and who are employed in the industries referred to in the Schedule of Respondents.” In the absence of any evidence about the industries carried on by the Respondents in the schedule, the Commission is unable to determine whether the terms of the Award apply to the Applicants’ employment. In any event it would appear that the terms of the Award may not be of assistance as there is no definition of a casual employee or a casual worker in the Award. 41 In my view the concept of casual employment is usually work of an informal, irregular and uncertain nature. In most cases such engagement is not likely to continue for any length of time. However the duration of engagement may vary according to the circumstances of a particular case. It is also inherent in the concept of casual employment that an employer can elect to offer employment on a particular day or days and when offered, the employee can elect whether or not to accept work on that day. 42 In this case the nature of the engagement was “job sharing”. It is clear from the circumstances of this case that the Applicants were effectively treated as one employee. It was up to each of them to determine what days of the week they worked. However they clearly understood and it was a term of their engagement that one of them would have to attend on any day between Monday and Friday of each week. The fact that the number of hours that they worked each day varied in my view does not mean that their employment can be said to be casual. They were paid the same rate of pay irrespective of how many hours they worked. It is apparent that they were engaged on a regular, continuous, ongoing basis. In the circumstances I am of the view that the engagement of the Applicants was not casual but part-time. Even if I am wrong in relation to this issue it is conceded on behalf of the Respondent this issue does not affect the Applicants’ quantum of compensation, as it is conceded that they had an expectation of ongoing work. 43 The duty to mitigate loss in claims of unfair dismissal lies with the Applicants. The duty to mitigate requires a claimant to diligently seek suitable alternate employment and the onus of proof of failure to mitigate loss is on the Respondent (see Brace v Calder and Others [1895] 2 QB 253 applied by the Full Bench in Growers Market Butchers v Backman (1999) 79 WAIG 1313 at 1316). I am satisfied that the Applicants have both taken steps to mitigate their loss. Ms Crute testified that she has registered with a number of employment agencies seeking work and has made many attempts to find employment in retail, fashion and caring agencies. She said she recently had an interview with the Department of Disability Services and she has been accepted to be placed on a list as a carer seeking work. Ms Pritchard testified that she suffers from a condition which is called fibromyalgia. She said this affects her ability to do many jobs. She said that this was one of the few jobs that she has ever had where she was able to carry out the work on a long term basis. She said her condition causes her to require a lot of sleep, to be in a lot of pain and restricts movement in her arms and legs. She said despite that she has in the past worked in jobs such as retail work at Farmer Jacks for a short period of time. She testified that she has recently sought work from Farmer Jacks at Thornlie, she has also sought work at a nursery, has applied for baby sitting jobs in the local paper and has sought other jobs in the retail sector. In the circumstances I am of the view that Ms Pritchard has diligently sought suitable alternative employment and the Respondent has failed to prove that she has not mitigated her loss. Quantum 44 I accept the Respondent’s submission that in assessing the Applicants’ loss, caused by the dismissal under s.23A(6) of the Act, should be assessed on the basis that part of the amount of $90 paid to the Applicants each day was to reimburse the Applicants for the running costs of their vehicles. I am not satisfied that an order for compensation should be based on a payment of $90 per day and I do not accept the Respondent’s contention that there should be a deduction of $35 per day for running costs. As Ms Pritchard said in her evidence she estimated the costs of running her vehicle would be $35 per day. In assessing the cost to her she took into account the running costs of her vehicle for all purposes, that is for private and work use. I accept the uncontradicted evidence of Ms Crute that the Applicants were paid $10 per day as a car allowance. In light of that finding I have assessed the Applicants’ loss at $400 per fortnight, or $5,200 average remuneration in six months. 45 I will make orders that the Applicants were harshly, oppressively and unfairly dismissed and make a further order that the Respondent pay to each Applicant the amount of $5,200 as compensation. _________ 2722 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 2002 WAIRC 06553