D'Ortenzio, Angela v Telstra Corp

[1998] FCA 877

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - Workplace Relations Act 1996 (Cth), s 170CC, s 170ED, s 170DE - Workplace Relations Regulations (Cth), reg 30B - 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 (Cth) - whether termination at the end of the fixed term at the initiative of the employer - whether the employee was engaged for a specific task.

Workplace Relations Act 1996 (Cth): s 170CC, s 170DE, s 170ED
           Div 3 Pt VIA
Workplace Relations Regulations (Cth):  reg 30B(1)(aa), reg 30B(1)(b)

Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 - cited
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 - cited
Fisher v Edith Cowan University (No 2) (1997) 72 IR 464 - cited

ANGELA D’ORTENZIO v TELSTRA CORPORATION
SG 2 of 1998

FOSTER, MANSFIELD & GOLDBERG JJ
ADELAIDE
22 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 2 of 1998

BETWEEN:	ANGELA D'ORTENZIO Appellant
AND:	TELSTRA CORPORATION Respondent
JUDGES:	FOSTER, MANSFIELD & GOLDBERG JJ
DATE OF ORDER:	22 JULY 1998
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 2 of 1998

BETWEEN:	ANGELA D'ORTENZIO Appellant
AND:	TELSTRA CORPORATION Respondent

JUDGES:	FOSTER, MANSFIELD & GOLDBERG JJ
DATE:	22 JULY 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:
Introduction

On 1 November 1996 the appellant’s employment with the respondent was terminated. The appellant says that such termination was in breach of s 170DE(1) of the Workplace Relations Act 1996 (Cth) (“the Act”) and that it was unlawful. She applied to the court pursuant to s 170ED of the Act for reinstatement. On 7 May 1997 a judicial registrar of the Court found that the termination of the appellant’s employment by the respondent was in breach of s 170DE of the Act and ordered that the respondent reinstate the appellant on terms and conditions no less favourable than those on which she was employed immediately before the termination of her employment and that the respondent pay to the appellant remuneration lost by her, because of the termination of her employment, from 1 November 1996 until the date her re‑employment was reinstated (excluding a specified period).

On 28 May 1997 the respondent, pursuant to s 377 of the Act, filed a notice of motion to review the orders of the judicial registrar and the review came on for hearing before von Doussa J on 15 September 1997. On 11 December 1997 von Doussa J dismissed the appellant’s application.

On 15 January 1998 the appellant filed a notice of appeal which specified the following grounds:

“The termination was unlawful s170-DE Act

Farrell - judicial - order of reinstatement 30/5/97”.

On 19 January 1998 the respondent filed a motion to strike out the appeal and on 20 March 1998 the appellant filed an amended notice of appeal which set out the following grounds:

“Section 170DE(2) - 170DE(1) sch 2(4) 521 S 170DF(e)
Section 170D(1) as set out in the affidavit
Norman Waterhouse to bring Telstra ID card (return 1998)
Section 170CB(2) enforced by s. 170FA s 21 to Court”

On 1 May 1998 O’Loughlin J dismissed the respondent’s motion to strike out the appeal on the ground that a single judge does not have the power to dismiss a notice of appeal.

On 22 May 1998 the respondent filed a notice of motion seeking an order that the amended notice of appeal be struck out.  The respondent did not persist with that motion and the issue whether a single judge has the power to dismiss a notice of appeal to the Full Court is not before the Court.

Background to appellant’s claim

The appellant commenced employment with the respondent in the “pay‑by‑phone” section on 13 May 1993.  The terms of the appellant’s employment were outlined in a letter dated 14 May 1993 in the following terms:

“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) on an ad hoc basis.  This period of employment is subject to your conduct, diligence and efficiency being satisfactory.

Please note that as your employment is for a fixed term, you are not eligible for redundancy benefits, and this period of employment is not to be interpreted as an expectation of longer term employment.

Yours sincerely

...”

Apart from a period from 16 June 1995 to 31 July 1995 the appellant was continuously employed in the “pay‑by‑phone” section until 12 January 1996 under a series of contracts, each stated to be for fixed terms of employment of three months on terms substantially similar to those set out in the letter of 14 May 1993.

In about December 1995 the appellant applied to the respondent for a position to work in its “winback” program in the Service Provider Service Centre which was a program designed to process applications from former Telstra customers who now wished to transfer back to Telstra.  The respondent had a backlog of applications and it decided to engage the services of about 60 fixed term employees for approximately three months to process the backlog.  The appellant’s application was successful and it was explained to her, and she understood, that the full‑time position on offer involved employment for a specific project that was intended to be short term.  The appellant accepted the position even though it was only a three month position as she felt that it would improve her chances of eventually gaining permanent employment.  The appellant’s employment in the winback position was evidenced by a letter of 15 January 1996 in the following relevant terms:

“I am pleased to offer you fixed term employment with Telstra in the Service Provider Service Centre as an Administrative Officer Grade 1, for a period of 3 months from Monday 15 January 1996 until Friday 12 April 1996 inclusive, commencing at 15 Ayliffes Rd St Mary’s.

...

Your period of employment may be extended depending on the business requirements of Telstra.

...

Could you please indicate your acceptance of this offer of fixed term of employment by signing the attachment and returning it to me today to enable personnel records to be correctly processed.”

The attachment to the letter signed by the appellant on 15 January 1996 was an acknowledgment of the terms and conditions set out in the letter.

At the time this letter was sent there was still current between the appellant and the respondent a fixed term contract for part‑time employment in the “pay‑by‑phone” section as the appellant had on 22 December 1995 confirmed in writing her acceptance of an offer for fixed term employment from 18 December 1995 to 15 March 1996 in the “pay‑by‑phone” section.  However, upon her transfer, that employment was relinquished in favour of employment in the new position but the appellant was told that the “pay‑by‑phone” position would remain open to her for three months so that she could return to it if her employment in the winback program came to an end in that time.  It did not.  The appellant knew that the position in the “pay‑by‑phone” area would remain open only for three months and that thereafter she knew that the position would not be available to her.  She observed before the primary judge:

“You had to take chances”.

The respondent anticipated that the catch up of the back log of applications from former Telstra customers to transfer back to Telstra could be accomplished within three months but the initial fixed term contracts with persons employed on the winback program were granted to 12 April 1996 to allow a margin.  In the events which occurred it became necessary to extend the winback exercise beyond that date. 

Shortly before 12 April 1996 the respondent approved the extension of the engagement of the fixed term of employees and the appellant received a letter dated 24 April 1996 offering her extended employment to 31 July 1996 which she accepted.  That letter was relevantly in the following terms:

“I am pleased to offer you an extension of your Fixed Term employment as an Administrative Officer Grade 1 to undertake the task of processing applications for winback from Service Provider customers.  The task is expected to be completed by 31 July 1996 and therefore the period of this contract extension is Saturday 13 April 1996 to Wednesday 31 July 1996.

...

Your employment is subject to an understanding:

·that no further period of employment is to be expected.

...

Could you please indicate your acceptance of this employment contract extension by signing the attached copy of this letter and returning it to your immediate manager.”

A further extension of the program became necessary and the appellant was granted a further fixed term contract from 1 August 1996 to 27 September 1996 which was again extended to 1 November 1996.

The primary judge found that as the expiry date of the period of employment extended to 27 September 1996 approached, the employees subject to the contracts were informed of the respondent’s desire to further extend their contracts and they were told that their contracts would not be extended beyond 1 November 1996.  The appellant continued working until 1 November 1996 and has not worked with the respondent since that date.  Within a few days after 1 November 1996 the respondent re‑engaged some of the fixed term employees who had ceased work on 1 November 1996 but the appellant was not one of those re‑engaged.

The final period of employment of the appellant from 28 September 1996 to 1 November 1996 was subject to an offer contained in a letter dated 27 September 1996 which offered the appellant “an extension of your Fixed Term employment” for five weeks from 28 September 1996 to 1 November 1996.  The letter was not delivered to the appellant until some time after 28 September 1996 and on 23 October 1996 she signed the foot of the letter where directed under the notation “I accept the offer of employment under the conditions stated” but she altered the terms of the offer by deleting the stipulated five week period and substituting in her own hand “12 months from 28 September 1996 to November 1997 with right to renew”.  This alteration was not accepted by the respondent and after the letter was returned the appellant was informed that the contract would come to an end on 1 November 1996 at the expiry of the period of her fixed term of employment that had been offered.

In 1993 the respondent had entered into a number of enterprise agreements covering different sections of its operations with the Community and Public Sector Union, SA, Adelaide (“the CPSU”) and the arrangements it made in relation to employment in respect of its winback program was communicated to the CPSU in accordance with these agreements.  Correspondence between the respondent and the CPSU in evidence before the learned primary judge made it clear that the appellant’s fixed term contract would end on 1 November 1996.

The submissions before the primary judge

The respondent submitted before the primary judge that the relevant termination provisions of Div 3 of Pt VIA of the Act did not apply to the appellant by virtue of s 170CC and reg 30B of the Workplace Relations Regulations (Cth). Section 170CC provides that the regulations may exclude specified employees from the operation of specified provisions of Div 3 of Pt VIA of the Act relating to termination of employment. The relevant provisions of reg 30B provide:

“30B(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act.

(a)      ...

(aa)an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into on or after 16 November 1994, if the specified period is less than 6 months;

(b)an employee engaged under a contract of employment for a specified task;

(c)...

(d)...

30B(2)            Subregulation (1) does not apply to an employee engaged:

(a)       under a contract of a kind referred to in paragraph (1)(a) or (aa); or

(b)under a contract of a kind referred to in paragraph (1)(b) (being a contract that was entered into on or after 16 November 1994);

if a main purpose of the engagement under a contract of that kind is, or was at the time of the employee’s engagement, to avoid the employer’s obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act.”

The respondent submitted that as the appellant’s employment contract expired on 1 November 1996 there was no termination with the initiative of the respondent, that reg 30B(1)(aa) applied as the relevant fixed term contract was for a period of less than six months and that the appellant was excluded from the operation of the relevant provisions of Div 3 of Pt VIA of the Act by reg 30B(1)(b) as her employment in the winback program was for a specified task. The appellant’s submission was that she worked under a continuous contract of employment which ran effectively from the commencement of her employment in the pay‑by‑phone section. In the alternative she submitted that reg 30B(1)(aa) could not apply as for the period of 15 January 1996 until 1 November 1996 the appellant worked under one contract extended from time to time so that the total period exceeded six months, that is outside the limitation referred to in reg 30B(1)(aa). It was also submitted that the appellant was not engaged under a contract of employment for a specified task so as to come within the exclusion in reg 30B(1)(b).

Findings of the primary judge

The primary judge found that the appellant did not work under one continuous contract of employment from the commencement of her work in the “pay‑by‑phone” section through to 1 November 1996 but rather worked pursuant to separate contracts of employment.  His Honour found that on 12 January 1996 the contract of employment in the “pay‑by‑phone” section was terminated by mutual agreement and that the appellant commenced employment pursuant to a new contract of employment in the winback program on 15 January 1996.  There was evidence before his Honour on which he could make these findings and the Court is satisfied that he did not err in making them.  He directed himself correctly in determining whether a new contract had replaced an old contract:  Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567.

Accordingly his Honour found that the new contractual terms which governed the employment of the appellant from 15 January 1996 were set out in the letter of 15 January 1996.  His Honour found that that employment was for a fixed term but that the contract contemplated that the period of employment might be extended and he found that the letters of 24 April 1996, 1 August 1996 and 27 September 1996 were each expressed to be offers of “an extension to your Fixed Term Employment”.  His Honour found that the appellant accepted an oral offer to extend her contract of employment from 28 September to 1 November 1996 by continuing to work in her job on and after 28 September 1996.  He found that the offer of that extension had been accepted before the appellant received the respondent’s letter of 27 September 1996 which confirmed in writing the offer earlier made to her orally and that the appellant’s amendment to the text of the letter had no legal effect as a variation sought to be achieved by the amendment.

His Honour concluded that the contract which commenced on 15 January 1996 was extended for further periods, and on three occasions, so that from 15 January 1996 until 1 November 1996 the appellant worked under one contract of employment in the winback section and as that period exceeded six months reg 30B(1)(aa) had no application.  Notwithstanding those extensions, his Honour found that on each occasion the contract continued to be a fixed term contract.

His Honour also found that the appellant and the other fixed term employees working in the winback section were:

“truly engaged as temporary employees to fulfil a task understood by both Telstra and the employees at the time to be one of limited duration.  At the expiration of the fixed term, as extended to 1 November 1996, the employment came to an end because the term expired.”

His Honour pointed out that the provisions of Div 3 of Pt VI of the Act applied to an applicant where the applicant’s employment has been terminated at the initiative of an employer: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 203. His Honour also held that where the employment comes to an end because the term has expired there has not been a termination of employment at the initiative of the employer citing Fisher v Edith Cowan University (No 2) (1997) 72 IR 464, 470. His Honour did not regard the case before him as one where there was in fact a termination at the initiative of the respondent.

As his Honour found that there was no termination of the appellant’s employment at the initiative of the respondent it followed that the provisions of Div 3 Pt VIA of the Act had no application to the appellant. He also concluded that the evidence supported the conclusion that the appellant was engaged under a contract of employment for a specified task so that reg 30(b)(1)(b) applied to the appellant.

The appeal

The appellant appeared before the Court in person and elaborated on her grounds of appeal.  Her amended notice of appeal did not in terms disclose any grounds of appeal or errors of law said to have been made by the primary judge.  The appellant filed a document which the Court accepted as an outline of her submissions and the submissions can be shortly summarised as follows:

(a)the appellant had been issued with a Telstra identification card which had endorsed on it her name, and the words and figures “DEC 1998”.  She made a counter offer for a two year contract which was accepted by Telstra by its issue of the ID card; 

(b)the appellant relied on the reasons set out in a statement of Katherine Coleman, an official of the CPSU, to which we shall return;

(c)the appellant relied on a facsimile communication from the Adelaide Casino as to her resignation from the employment;

(d)some of the staff on fixed contracts whose employment ended on 1 November 1996 were re‑employed a week or so later whereas the appellant was not so re‑employed;

(e)the appellant had been in continuous employment since 1993;

(f)there was a breach of s 170DE of the Act;

(g)she was dismissed at the initiative of the respondent and such termination was harsh, unjust and unreasonable within s 170DE(2) of the Act because other staff retained their employment;

(h)the appellant never accepted the last contract.

As the Court pointed out to the appellant in the course of her submissions the matter before the Court was an appeal on questions of law and the appellant needed to identify errors of law made by the primary judge.

We are satisfied that there was substantial evidence before the primary judge on which he could make the findings which he made.  We are satisfied that he made no errors of law in the findings of fact he made or in the conclusions which he based upon those findings.  The nature of the appellant’s employment was such that, in our opinion, not only was it open to him to find, but that he was bound to find, that there was no termination of the appellant’s employment at the initiative of Telstra but rather that her employment was terminated by effluxion of time as the result of the coming to an end of a fixed term contract.  We are also satisfied that it was open to the primary judge to find and he was bound to find that the contract of employment entered into on 15 January 1996 and extended from time to time until November 1996 was a contract for a specified task, that task being “the task of processing applications for winback from Service Provider customers” (letter 24 April 1996).

There was a full hearing before the judicial registrar at which the appellant was represented by counsel.  Evidence was called on her behalf at that hearing not only from herself but from other witnesses including the trade union officer Katherine Coleman.  Ms Coleman gave oral evidence and was cross‑examined and the written statement upon which the appellant now seeks to rely was not put in evidence before the judicial registrar or the primary judge.  We do not therefore think it appropriate to refer to, or to take into account, any of the circumstances in the written statement of Katherine Coleman.  In any event, those matters are not such as to assist the appellant in identifying any errors of law said to have been made by the primary judge.

We do not think that this is an appropriate case in which new evidence not before the judicial registrar or the primary judge should be admitted before the Court and no good reason has been advanced to us why we should do so.  The identification card though expressed to be valid until December 1998, is not a contractual document and we are satisfied that the primary judge’s finding as to the nature and terms of the contract entered into by the appellant should not be disturbed.  That finding is justified by the evidence before him.

We make the same observations about the letter from the Adelaide Casino.  It was not before the judicial registrar or the primary judge and it does not bear on any issue which can be raised before the Court on this appeal.

It is no ground of appeal that some of the staff on fixed contracts whose employment ended on 1 November 1996 were re‑employed whereas the appellant was not so re‑employed.

Although the appellant continues to submit that she never accepted the last contract, that is to say the contract for the period from 28 September 1996 to 1 November 1996, the primary judge did not accept that this was the correct position and there was evidence before him upon which he was entitled to reach this conclusion.  He made no error of law in this respect.

In conclusion we are of the opinion that the learned primary judge made no errors of law and that he was correct in his finding that the provisions of Div 3 Pt VIA had no application to the appellant, that the appellant was not dismissed at the initiative of the respondent and that in any event, reg 30B(b) applied to the appellant. Accordingly there was no breach of s 170DE(1) or s 170DE(2) of the Act.

The appeal will be dismissed. Having regard to the provisions of s 347(1) of the Act no order should be made as to the costs of the appeal.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:             22 July 1998

For the Applicant:	In person
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Norman Waterhouse
Date of Hearing:	21 July 1998
Date of Judgment:	22 July 1998