Coll v Shire of Yarra Ranges
[1996] IRCA 399
•8 Jul 1996
DECISION NO: 399/96
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4112 of 1995
B E T W E E N :
COLLEEN MARY COLL and
AUSTRALIAN SERVICES UNION
Applicants
AND
SHIRE OF YARRA RANGES
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 8 July 1996.
REASONS FOR DECISION ON SEPARATE QUESTION
At the trial of these proceedings under Part VIA of the Industrial Relations Act (“the Act”) the Court has agreed to determine as a separate question under Order 29 whether the first applicant (“the applicant”) is excluded from the jurisdiction by the operation of s170CC of the Act and Regulation 30B(1) of the Industrial Relations Regulations (“the Regulations”). The specific question is whether when the applicant’s employment ceased with the respondent on or about 1 August 1995 she was “engaged under a contract of employment for a specified period of time pursuant to Regulation 30B(1)(a) or (aa)”.
The history of the applicant’s engagement with the respondent.
It is common ground that the respondent is the legal successor to the Shire of Lilydale (“the Shire”). The latter was one of four shires, or parts thereof, that were amalgamated to form the respondent effective December 1994.
Between 1984 and 1986 the applicant worked on a permanent full time basis with the Shire, although her employment was broken by a period of maternity leave. She ceased work in 1986 but returned as a casual administrative officer in December 1991. On 27 April 1992 she was offered (Exhibit R4) a temporary part time (19 hours per week) position as an Administrative Officer with the Local Development Department of the Shire. It was for the period 30 March 1992 to 30 March 1993. The position was a “job-share” position. The incumbent had taken maternity leave. The offer was in the terms just mentioned and stated that “employment will generally be in accordance with the Victorian Local Authorities Interim Award, 1991” (“the Award”). By letter of the same date (Exhibit R6) the applicant accepted the offer.
In July 1992 the officer who the applicant was “job-sharing” with went on maternity leave, and the applicant assumed the duties of the position on a full time basis. She continued full time until 10 September 1993 when that officer returned from her maternity leave. In the meantime, in early 1993 the first officer who the applicant had relieved in the position resigned. The position was thus that when the applicant’s temporary position was due to expire in March 1993, she continued to be employed on a full time basis until September 1993 when she reverted to part time.
She continued in the part time position until 8 April 1994. On that day the Chief Executive Officer of the Shire attended her office and advised her that there had been some sort of reshuffle and she was advised “don’t come to work the following week”. She was contacted by her supervisor the following Tuesday and asked to resume her position as an administrative officer from the following Monday 18 April 1994. She resumed that position on a casual basis and did the same duties. She was not paid for the week she did not work. On 27 April 1994 the applicant was offered (Exhibit R8) the position of “Temporary Administrative Officer - Brand 3D for the period 18 April 1994 to 30 September 1994”. This offer was withdrawn and a further offer (Exhibit R9) for the same position for the period 25 April 1994 to 30 September 1994 was made to her in a letter dated 4 May 1994. That offer also provided that she would be paid “in accordance with the Victorian Local Authorities Interim Award 1991 (Part C)”. The applicant accepted this offer of employment for that period by letter dated 4 May 1994 (Exhibit R10).
Clause 32 of the Award required the Shire to notify the relevant union of persons appointed to positions “temporary in nature for a specified period of time”. On 12 May 1994 the Personnel Officer of the Shire advised the second applicant pursuant to Clause 32 of the Award that “two people [including the applicant] have been employed temporarily until a permanent position can be filled”.
On 8 June 1994 the applicant was advised by letter (Exhibit R12) by the Manager, Corporate Services of the Shire that he wished to “confirm our discussion that your previous temporary part time position with Council ceased on 8 April 1994”. The applicant’s evidence was that she thought the writer was tidying up the paperwork.
On 23 September 1994 the applicant’s manager confirmed “the continuation of (her) temporary employment” for six months until 31 March 1995 on the same conditions as previously except that the pay would now be on Band 4A (Exhibit R13).
In late March and early April 1995 the applicant was indisposed with a medical condition and not at work. On 27 March her supervisor at the respondent, Ms Castieau, wrote to her manager Mr Welsh (Exhibit R14) asking that her employment status “be resolved as a matter of urgency”. On 6 April 1995 the applicant was advised by Mr Ian Gibb, the Corporate Manager, Development Services of the respondent that “your temporary term of employment has been extended on an interim basis for a further two month period”. The letter went on to state that “all current conditions of employment will remain and it is hoped that at the end of this expiry period that Management will further review your employment situation.” (Exhibit R15).
The applicant returned to work at the beginning of May 1995. On 9 May 1995 Ms Castieau again wrote to her managers asking that given the applicant’s periods of employment the respondent should “now confirm her employment status as a “permanent part-time” staff member”. (Exhibit R17).
On 16 May 1995 the applicant received a letter (Exhibit R18) from Mr Welsh in the following terms :
“Further to recent discussions this letter is to advise you that your current term of temporary employment has been extended till 1st August, 1995 or until a permanent structure has been finalised, whichever comes sooner.
At the termination of your temporary employment date or when a permanent structure is finalised your positions (sic) will be reviewed in the context of the permanent structure.
Accordingly, I have advised your team leader of the above information, however, should you require further assistance regarding the above, please do not hesitate to contact me.”
On 23 May 1995 the Human Resources Officer of the respondent advised Ms Castieau that as the applicant had a “contract with us with a specified end date, this is to be regarded as the date she ceases employment with the respondent” (Exhibit R19). The letter noted that if work requirements dictate the temporary appointment may be extended.
On 6 July the applicant sought 12 months maternity leave commencing on 7 August (Exhibit R20). On 28 July the second applicant was advised by the respondent that its request to have the applicant reclassified as permanent was declined as she had a clear letter of appointment for each period of employment in accordance with Clause 32 of the Award. The second applicant was advised that the applicant’s employment would terminate on 1 August (Exhibit R21). On the same day the applicant arrived home from work and was advised that her request for maternity leave had been refused and that her employment had ended (Exhibit R22).
Restructuring with the respondent
The respondent led evidence from two of its senior managers, Mr Ian Gibb, the Corporate Manager, Planning and Environment, and Mr Trevor Welsh, the Manager, Planning/Approvals. Their evidence was directed to giving a factual background to the applicant’s employment status. Following the amalgamation of the shires in 1994, the respondent during most of 1995 was establishing a new permanent organisational structure. The new structure was settled from the top down and replaced an interim management structure put in place soon after the amalgamation.
An important feature of the position of the respondent during 1995 was the pressure on management to downsize the management structure and staff numbers, as well as to implement a new amalgamated structure. In evidence were the Minutes of an Industrial Relations Consultative Committee (“the Minutes”) (Exhibit R1). The Committee met regularly as the industrial issues associated with the pressure to put in place a new structure and achieve cost savings were addressed.
Before amalgamation occurred some of the shires had not been filling vacant positions, except on a temporary basis. Thus when amalgamation occurred the respondent inherited staff in a number of different categories - permanent, temporary and casual. Under an industrial agreement permanent staff were the only ones who were to be eligible for redundancy packages. Further, in filling positions in the new structure, permanent staff were to have preference. Only when a position was not able to be filled from this group would temporary and casual staff have the opportunity to apply for the position.
The applicant’s duties put her well down the staffing hierarchy. The Level 2 Corporate Manager positions, including that of Mr Gibb, were filled in June 1995. The Level 3 Management positions, including that of Mr Welsh, were filled in July 1995. The permanent structure of the respondent was finally in place by October 1995.
In the early months of 1995 there was pressure on management to shed temporary staff. This is recorded in the Minutes. By April and May the permission of the CEO was required for any temporary staff member’s fixed term contract to be extended. It was in these circumstances that the interim managers Messrs Gibb and Welsh obtained the extension of the applicant’s contract in the terms set out in letters to her of 6 April 1995 (Exhibit R15) and 16 May 1995 (Exhibit R18). In cross-examination the applicant’s immediate manager, Mr Welsh, conceded that the end dates of the two contracts were properly regarded as milestones or benchmarks for a further review of the applicant’s position. The applicant’s duties were in a service delivery capacity and a need for the applicant’s services remained. Mr Welsh’s evidence was that in May 1995 no-one knew with certainty that the permanent structure would be finalised by August 1995. It was his position that the applicant was remaining employed on the terms of the letter of 16 May 1995 until the permanent structure was finalised. When looking at the position in May 1995 his view was that in August 1995 the applicant’s position would be extended until the permanent structure was established. It was business as usual until the permanent structure was finalised. Further, there was work available for her in August, although at that stage some areas of work were being hived off from that particular section.
A particular issue was the applicant’s application for maternity leave. Mr Gibb gave evidence that he was aware that the applicant had applied for maternity leave in July. He was also aware that the respondent took the view that the applicant was not entitled to maternity leave because she was a temporary employee. It was his evidence that the decision not to extend her employment had nothing to do with her application for maternity leave, but it was due to staffing changes, changes in workload, firming up the shape of the new structure and the need to downsize. Mr Welsh was not aware that a decision had been taken that the applicant was not entitled to maternity leave until after she had left. He said it was a coincidence that one section of the respondent was terminating the applicant’s employment in the letter dated 28 July 1995 while he was arranging to obtain the services of other employees, by extending their hours, to undertake the work that the applicant had been doing.
The employment status of the applicant.
Counsel for the respondent submitted that the applicant’s employment status was determined by the letter of 16 May 1995. It was submitted that anything that happened prior to 4 May 1994 was irrelevant. At that time the applicant had accepted a position for a definite term. That term had then been extended until it was finally extended by the letter dated 16 May 1995 until 1 August 1995.
Counsel for the applicant had two submissions. The first was that the applicant had a contract of employment of indefinite duration that was linked to the provisions of the Award. He maintained that the Award had been expressly incorporated into the contract in the initial 27 April 1992 contract (Exhibit R4). He submitted that at the expiration of the fixed term in that contract the Award provisions continued to apply and that the applicant became a permanent employee of the respondent. He submitted that the contract of employment had not ceased on 8 April 1994 when the applicant was asked not to come to work the next week. He further submitted that the subsequent letters did not alter the true nature of the relationship between the parties which had effectively been continuous since 1991. He maintained that it was artificial to characterise the applicant’s position as “temporary” as she had continued to effectively discharge the same duties over the entire period of her employment.
Clause 37 of the Award provides for part time employment. Clause 22 of the Award provides that employment can be terminated upon the giving of certain periods of notice. It was the submission of Counsel for the applicant that the purported termination of the employment relationship by Mr Stevenson, the CEO of the Shire, on 8 April 1994 was ineffective as he had failed to give the applicant the required or any reasonable notice of termination. It was submitted that the resumption of the employment relationship a couple of days later, in what would be a proper period of notice, meant that the employment relationship remained on foot and unchanged. He submitted that the letters exchanged between the parties subsequently were of no legal effect and that the employment agreement between the parties remained of a permanent part time employee pursuant to Clause 37 of the Award. That clause and Clause 22 required the employment to be terminated with the required notice.
In my view the proper way to characterise the employment status of the applicant is that she was originally employed for 12 months in a temporary capacity as recognised in Clause 32 of the Award. The actual employment agreement refers to the Award and says that “employment will be generally in accordance with (the Award)”. When the person the applicant was temporarily replacing resigned from her position and the period of the original temporary employment ended on 30 March 1993, I am satisfied that at that stage the applicant became a permanent part time employee of the respondent’s predecessor, the Shire.
The position from April 1994 is, however, different. By virtue of the High Court decision in Byrne v Australian Airlines Ltd (1995) 131 ALR 422 the Award is not automatically incorporated into the contract of employment. It was open to the parties to renegotiate their employment agreement in April 1994 without reference to the Award. I am satisfied that the respondent on 8 April 1994 purported to terminate the applicant’s employment by an inadequate period of notice. Indeed it appears that it gave her no notice. It was in breach of Clause 22 of the Award. The actions, however, had the legal effect of ending the employment relationship because the repudiatory conduct was accepted by the applicant. What happened was the converse of the events considered by the Full Court in Gunnedah Shire Council v Grout (1995) 62 IR 150, but the legal principles outlined there remain applicable.
I am satisfied that the applicant accepted the respondent’s repudiation of her contract of employment and then accepted a new offer of employment with the respondent. This offer was the subject of an agreement evidenced by the letters of 4 May 1994 (Exhibits R9 and R10). What happened was confirmed by the Shire on 8 June 1994 (Exhibit R12). The applicant did not protest about that confirmation. The 4 May 1995 letters did not expressly, or even impliedly, incorporate the terms of the Award into the agreement. The only part of the Award that was incorporated into the contract was to set the wage rate. The position is thus in strong contrast to the agreement of 27 April 1992 (Exhibit R4). From 4 May 1994 I am satisfied that the applicant was employed on a series of fixed term contracts that must be given legal effect. It follows that I reject the primary submission of Counsel for the applicant and accept the submission of Counsel for the respondent that anything that happened prior to April 1994 is irrelevant to the legal characterisation question here.
Counsel for the applicant’s second submission was that the final fixed term contract of the applicant as confirmed in the letter of 16 May 1995 (Exhibit R18) was not excluded under Regulation 30B(1)(a) or (aa). He relied on the decisions Anderson v Umbakumba Community Council (1994) 1 IRCR 457 and Cooper v Darwin Rugby League Inc.(1994) 1 IRCR 130. In Anderson (above) von Doussa J was dealing with the contract for a fixed period that contained a provision that gave either party to the contract the right to bring it to an end on two weeks notice, and the right of the employer to bring the employment to an end without notice on payment of two weeks salary. At 462 von Doussa J said:
“A “specified period of time” is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not a description used in the Regulation.
A contract of employment to run throughout a nominated number of days, weeks, or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time.”
Here, the evidence was that at the time of the making of the contract, neither party could specify when the permanent structure would be finalised. The contract could thus be said to extend at most until 1 August 1995, but it could cease sooner upon a specified event, the timing of which was, at the date of the contract, uncertain. The reasoning in Anderson (above) supports the submission by Counsel for the applicant that because there is more than one possible duration of the contract, it cannot be said to be a contract for a “specified period of time”.
This analysis is consistent with the decision in Cooper (above). The contract there was, except in the case of misconduct, for a three year period. The contract, however, gave either party the right to terminate the employment on one month’s notice at any time during the three year period. At 134 Northrop J said :
“In my opinion, the contract of employment is for a specified period of time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant, as employee.”
Here, the finalisation and timing of the “permanent structure” was in the control of the employer. When that event occurred, the respondent was in a position to end the contract and thus the contract would terminate prior to 1 August 1995. The respondent has specifically reserved the right to end the contract prior to the expiry of the term. The reasoning in Cooper (above) therefore also supports the applicant in this proceeding. The decisions in Minister for Health v John Ferry (Wilcox CJ, North & Madgwick JJ, 4 April 1996, unreported) and Ferry v Minister for Health, Western Australia (1995) 64 IR 28, are not of direct assistance to either party here as it was common ground in that case that the final short term contract of the applicant to work in the hospital was not excluded under Regulation 30B(1)(a). Further, in contrast to the applicant here, the applicant in that case at all times asserted that he was entitled to, and was found to be entitled to, the benefit of an award that gave certain rights and entitlements in a redundancy.
The decision in D’Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19, was relied on by the applicant. The facts there were somewhat similar in that the applicant was engaged on a series of contracts of short duration. It was held, at 25, that “in substance, and in truth” the employment was continuous and subject to an award provision requiring the giving of two weeks notice of termination. There was uncontested evidence that the short term contracts allegedly evidenced by written documents were seen by employees as a mere formality, and in any event they were expressed to be made under the conditions of the relevant award.
Here I am satisfied that the original 4 May 1994 agreement (Exhibit R9) and the extensions on 23 September 1994 (Exhibit R13), 6 April 1995 (Exhibit R15) and 16 May 1995 (Exhibit R18) were documents of a different character than those considered in D’Lima (above). I am satisfied that, in contrast to the position there, the parties did intend that the letters would govern their legal relationship. Further, although the matter was not addressed by either of the parties, I should indicate that I am satisfied that there is no suggestion here that the provisions of Regulation 30B(2) apply. Cf Strecker v Metropolitan Cemetries Board (1995) 64 IR 109.
Counsel for the respondent relied on the decision in Aneja & APESMA v Hume City Council (Murphy JR, 13 March 1996, unreported). The position in that case is distinguishable from that here because in that case each of the extensions of the contract of employment were for specified or identifiable periods of time. The contractual arrangements therefore did not have the ambiguity that is evident in this case in the letter of the respondent dated 16 May 1995.
Counsel for the respondent did not submit that either of the letters of 4 May 1994 (Exhibit R9) or 23 September 1994 (Exhibit R13) governed the relationship of the parties in July 1995. It follows that the applicant is not excluded by the operation of Regulation 30B(1)(a).
I do not accept the submission of Counsel for the respondent that the applicant is excluded from the jurisdiction by reason of the operation of Regulation 30B(1)(aa). I propose to follow the reasoning in Anderson (above) and Cooper (above) and find that because the final term of the contract of employment between the parties as evidenced in the letter of 16 May 1995 (Exhibit R18) was, as discussed above, ambiguous and not certain at the time it was entered into, it was not for a “specified period of time”. The applicant is not excluded by reason of Regulation 30B(1)(aa).
6 August 1996.
EX-TEMPORE REASONS FOR JUDGMENT
ON SUBSTANTIVE APPLICATION
On 8 July I gave reasons for decision on a question; namely, whether the first applicant was excluded under Regulation 30B(1)(a) or (aa). I now give my reasons on the substantive application.
Counsel for the applicant argued that the respondent in terminating the employment of the applicant had breached ss170DB, 170DE and 170DF(1)(f) of the Act. Counsel for the respondent argued that there had been no termination at the initiative of the employer. It was argued by counsel for the respondent that the employment had expired through the effluxion of time. In Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 at 205, the Court said:
“It accords with the purpose of the Convention to treat the expression "termination at the initiative of the employer" as a reference to a termination that is brought about by an employer and which is not agreed to by the employee.
.......
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but 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.”
I have already found that the employment was not for a specified period of time under Regulation 30B.
Here the act that terminated the employment was the respondent's letter of 28 July 1995 (Exhibit R21). The employment did not terminate by the effluxion of time because the respondent terminated it by that letter, indicating that it would cease on 1 August. Another way to look at the matter is that the act which terminated the employment was the failure of the respondent to renew the temporary employment of the applicant. On either view, and given the evidence of the respondent that the "end dates" were in effect milestones to review the applicant's position in the context of the restructuring and new structure, it was the employer that “really terminated” the employment here. The respondent's submission that there is no jurisdiction is rejected.
Application of the Act.
The first submission of counsel for the applicant was that the termination of employment breached s170DF(1)(f) because a reason for the termination included the the first applicant's pregnancy. It was put to both Mr Welsh and Mr Gibb that the applicant's application for maternity leave was the reason for her termination of employment. They both denied this. The reason they gave why the applicant's employment was not renewed was that the permanent structure was shaping up and that the applicant as a temporary employee was not renewed as part of the shedding of temporary positions in the context of the new permanent structure.
They gave evidence of pressure to shed temporary staff and how the CEO had to approve the original extension of the applicant's temporary employment in May 1995. The Minutes (Exhibit R1) support their evidence of pressure to resolve the issue of temporary staff in the context of restructuring and a permanent structure. It was also the respondent's evidence that because the applicant was a temporary staff member, she was not entitled to maternity leave in any event.
When all the evidence relating to the restructuring, the status of the applicant as a temporary employee in the eyes of the respondent, and the respondent's denials that her application for maternity leave was a factor, I am satisfied that the respondent has discharged its onus of proof under s170EDA(2) that a prohibited reason was not a reason for the applicant's termination.
Valid Reason - s170DE.
Similar considerations apply in relation to whether the respondent had a valid reason to terminate the applicant's employment. It was common ground that the respondent was restructuring following amalgamation. That restructuring involved shedding temporary staff and the filling of permanent positions in a new structure. It was a logical response to that restructuring to terminate the applicant's employment. It was a logical response to shed temporary employees as part of a process of down-sizing prior to offering permanent employees first priority in positions in a new permanent structure. When the matter is looked at in this light, the respondent has discharged its onus of proof and has not breached s170DE(1) of the Act.
My finding that the respondent has not breached s170DE(1) of the Act is prefaced on a finding that the applicant was a temporary employee. Under the Award, employees can be temporary under clause 32 where they work in a position which is temporary in nature for a specified period of time. Here it was argued that my finding that the applicant was not excluded under Reg. 30B(1) meant that the applicant was a permanent employee. I do not accept that submission. Although the applicant is not excluded from the Act under Reg. 30B(1), I am satisfied she was a temporary employee for the purposes of the Award. This is clear from the chain of letters commencing in April 1994 that were in evidence. These letters must be considered in the factual context of restructuring following amalgamation within the respondent.
I am satisfied that the applicant's "position" was temporary in nature because it had never been confirmed under the new amalgamated structure which was still evolving as at May 1995. Once her employment had been terminated in April 1994, as I have earlier found, her position became temporary. She became a temporary employee pursuant to clause 32 of the Award. It follows from this that the applicant is excluded from the so-called G17 agreement (Exhibit R26) because she was not an employee "employed on a permanent basis". She was employed as a temporary employee and thus excluded under the terms of that redundancy agreement.
Given this finding, I am satisfied that the termination of her employment was not harsh, unjust or unreasonable and a breach of s170DE(2) of the Act. The applicant was temporary; she could not have had any expectation of permanency given the correspondence between the parties. The restructuring was continuing apace and this involved shedding temporary staff: the redundancy agreement with that did not include her. While this is unfortunate, it does not make the termination of her employment harsh, unjust or unreasonable, and I am not satisfied that she has discharged her onus of proof on this issue.
Notice.
Under s170DB(1) of the Act when employment is terminated notice must be given, or payment in lieu thereof. Here I am satisfied no notice of termination was given. At the time the applicant had been a continuing employee for over a year. She was entitled to two weeks' notice of the termination of her employment.
She had requested maternity leave commencing 7 August 1995. That request had been refused in the same letter that in effect terminated her employment. In fact she worked for one day of the week following her termination as a casual and was paid for that day's work. It is a matter of speculation as to whether had the employer given the applicant proper notice that was required under s170DB(1) the employment would have continued for the two week period that the employer was required to give. The respondent may have paid her out in lieu or the applicant may not have offered her services. I find it probable that the applicant would have worked over that period. It follows that the damages incurred as a result of the failure of the respondent to pay notice are one and two thirds weeks based on a fortnightly pay of $470.61 per fortnight. This amounts to $392.18. The respondent will be ordered to pay that amount to the applicant pursuant to s170EE(5) of the Act
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $392.18 pursuant to s170EE(5) of the Act.
Liberty to apply.
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 seventeen (17) pages are a true copy of the reasons for judgment delivered 8 July 1996 and 6 August 1996 of Judicial Registrar Murphy.
Associate:
Dated: 6 August 1996.
Solicitors for the Applicant: Ryan Carlisle Thomas
Counsel for the Applicant: Mr R Niall
Solicitors for the Respondent: Gary Katz & Associates
Counsel for the Respondent: Mr Gary Katz
Date of hearing: 28 June 1996 and 6 August 1996
Date of judgment: 8 July 1996 and 6 August 1996
C A T C H W O R D S
INDUSTRIAL LAW -UNLAWFUL TERMINATION OF EMPLOYMENT - EMPLOYMENT CONTRACT - SPECIFIED PERIOD CONTRACT -employee employed on a series of specified period contracts - final specified period contract containing ambiguity as to term - whether excluded from the JURISDICTION- VALID REASON - HARSH UNJUST or UNREASONABLE - failure to give NOTICE OF TERMINATION - whether employment terminated because of application for maternity leave.
Industrial Relations Act 1988 ss170DB, 170CC, 170DE, 170DF
Industrial Relations Regulations - Regulation 30B
CASES:Byrne v Australian Airlines Ltd (1995) 131 ALR 422;
Anderson v Umbakumba Community Council (1994) 1 IRCR 457;
Cooper v Darwin Rugby League Inc.(1994) 1 IRCR 130;
Minister for Health v John Ferry (Wilcox CJ, North & Madgwick JJ, 4 April 1996, unreported);
Ferry v Minister for Health, Western Australia (1995) 64 IR 28;
Aneja & APESMA v Hume City Council (Murphy JR, 13 March 1996, unreported).
D’Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19;
Gunnedah Shire Council v Grout (1995) 62 IR 150.
Strecker v Metropolitan Cemetries Board (1995) 64 IR 109
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
COLLEEN MARY COLL and
AUSTRALIAN SERVICES UNION
-v- SHIRE OF YARRA RANGES
No. VI 4112 of 1995
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 6 August 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4112 of 1995
B E T W E E N :
COLLEEN MARY COLL and
AUSTRALIAN SERVICES UNION
Applicants
AND
SHIRE OF YARRA RANGES
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 6 August 1996
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $392.18 pursuant to s170EE(5) of the Act.
Liberty to apply.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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