Sandra Eldridge v Kemblawarra Child and Family Centre

MEAGHER JA : The appellant, Miss Eldridge, appeals against a judgment of Moran CCJ dismissing her application for an award.

The facts are more than a little unusual. Miss Eldridge was a teacher, apparently specialising in kindergarten and pre-kindergarten teaching. She obtained her graduate diploma in Melbourne in 1977. In 1985 she was appointed as the Director of the Respondent. She held that position for a year or so. She then left, and was self-employed between 1987 and July 1995. At that time, she returned to employment with the respondent on a casual basis. A new director (Mrs Rawlings) was appointed in October 1995. Miss Eldridge gave up working for the respondent in March 1996, but in June 1996 she recommenced working for the respondent. On 20 December 1996 the Respondent wrote to her offering a 12 month contract commencing 13 January 1997. Negotiations as to the terms of that contract had been proceeding for some time.

On 26 November 1996 she was injured whilst playing a game called “chasings” in the school playground.

The most striking thing about the respondent is that it was always in a state of financial turmoil. Its funding was always running out. To cope with this situation it either made it a term of its contracts with its employees that they work for certain periods without pay or it employed voluntary labour.

On about 30 August 1996 one such crisis occurred and its funding became exhausted.

Thereafter Miss Eldridge worked on a voluntary basis for the rest of the year. It was during this period that the accident occurred.

His Honour dismissed Miss Eldridge’s claim on the basis that she was, at the time of injury, a volunteer and not a worker.

Her case was that at some time, probably in June 1996, she contracted with Mrs Rawlings to work until the end of 1996 at the Respondent Centre, on pay if money were available, without pay if the money ran out.

The respondent’s case was presented in evidence by Mrs Rawlings, who said that there was a contract to work until the money ran out, but no other contract.

His Honour’s finding was thus on a question of fact, and even if perverse (which I do not think it was) is non-appellable.

An alternative submission for Miss Eldgridge, viz. that at some time after August 1996 there was an agreement between the parties that Miss Eldridge would work until the end of the year, and be paid if money were available. Reliance was placed on some scraps of evidence. For example, in the cross-examination of Mrs Rawlings, the following passage occurs: “Q: She knew, you say, she was not going to get any money and you did not pay her any money. “A: Yes, if we had the money we would have paid her.”

This alternative submission was also rejected by his Honour, who held that in the latter part of 1996 there was no intention in the parties to enter into legal relations. That is another finding of fact, and one fatal to the appellant’s case.

The appeal should be dismissed with costs.

SHELLER JA: I agree with Meagher JA.

FITZGERALD JA: This appeal was conducted on the basis that it was necessary for the appellant to prove that, at the time when she was injured, she was employed by the respondent under a contract of service and not working for the respondent as a “volunteer”.

The trial judge held that the appellant had failed to prove the contract which she alleged.

I agree with Meagher JA, for the reasons given by his Honour, that the appeal should be dismissed with costs.