D'Ortenzio, Angela Gabrielle v Telstra

FEDERAL COURT OF AUSTRALIA

Industrial Law - termination of employment - fixed term contract - extensions to the term of the contract - claim that termination was without a valid reason contrary to Division 3, Part VIA of the Workplace Relations Act 1996 - whether termination at the end of the fixed term at the initiative of the employer - whether the employee was engaged for a specific task - whether a main purpose of the employee’s engagement under a fixed term contract was to avoid the employer’s obligations under Division 3.

Workplace Relations and Other Legislation Act (1961) (Cth) s 16
Workplace Relations Act 1991, ss 170CC, 170EA, 170ED, 170DE
Workplace Relations Regulations 30B

Fisher v Edith Cowan University (1997) 72 IR 464 applied

Matter No. SA96/1176R of 1997

ANGELA GABRIELLE D’ORTENZIO v TELSTRA

VON DOUSSA J
ADELAIDE
11 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SA96/1176R  of   1997

BETWEEN:	ANGELA GABRIELLE D'ORTENZIO APPLICANT
AND:	TELSTRA RESPONDENT
JUDGE:		VON DOUSSA J
DATE OF ORDER:		11 DECEMBER 1997
WHERE MADE:		ADELAIDE

THE COURT ORDERS THAT:

1. The orders of the Judicial Registrar made on 7 May 1997 be set aside.

2. The application by Angela Gabrielle D’Ortenzio be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SA96/1176R of 1997

BETWEEN:	ANGELA GABRIELLE D'ORTENZIO APPLICANT
AND:	TELSTRA RESPONDENT

JUDGE:	VON DOUSSA J
DATE:	11 DECEMBER 1997
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

By notice of motion filed on 28 May 1997 the respondent in these proceedings, Telstra Corporation Limited (“Telstra”) seeks review under s 377 of the Workplace Relations Act 1996 (“the Act”) of a decision of a Judicial Registrar delivered on 7 May 1997. The jurisdiction of this Court to conduct the review arises by operation of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).

The proceedings were commenced by application filed in the Australian Industrial Relations Commission under s 170EA(1) of the Act by Angela D’Ortenzio (“the applicant”). The applicant alleged that her employment had been terminated unlawfully by Telstra on 1 November 1996. The proceedings were referred to the Court pursuant to s 170ED(1).

The evidence at trial
The primary facts adduced into evidence before the Judicial Registrar were, for the most part, common ground.  Indeed, a statement of agreed facts was filed which largely covers the circumstances and terms of the applicant’s employment.  The applicant commenced employment with Telstra in the “pay by phone” section on 13 May 1993.  That section of Telstra’s operations concerned the processing of telephone transactions by customers wishing to pay telephone accounts by credit card.  The engagement of the applicant was outlined in a letter dated 14 May 1993.  The letter read:

“Dear Angela

ADVICE OF PERIOD OF FIXED TERM EMPLOYMENT

I am pleased to offer you a period of fixed term employment, the reason for which is to provide relief in the Pay-by-Phone area, as an Admin Officer 1 from 13/05/93 to 16/06/93 on a salary of $19663 p.a. (+15% loading)…