D'Ortenzio v Telstra

[1997] IRCA 148

DECISION NO:148/97

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - whether fixed term contract - whether valid reason - reinstatement

WORKPLACE RELATIONS ACT 1988,             S.170DE(1)              

Fisher v Edith Cowan University Full Court, 2 April 1996, unreported

D’ORTENZIO v TELSTRA

SA96/1176

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  7 MAY 1997

IN THE INDUSTRIAL RELATIONS COURT      )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SA96/1176

B E T W E E N:

ANGELA D’ORTENZIO

Applicant

AND

TELSTRA

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR L FARRELL
PLACE:  ADELAIDE
DATE:  7 MAY 1997

THE COURT ORDERS THAT:

1. The Respondent reinstate the Applicant on terms and conditions no less favourable than those on which she was employed immediately before the termination of her employment within 21 days

1. The Respondent pay to the Applicant remuneration lost by the Applicant because of the termination of her employment from 1 November 1996 until the date her employment is reinstated, excluding the period from 7 March until 18 April 1997 within 21 days.

1. For the purpose of calculating her  leave entitlements the applicant is to be regarded as being continuously employed from  1 November 1996 until the date of her reinstatement.

NOTE:    Settlement and entry of Orders is dealt with by Order 36 of the            Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT      )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No.SA96/1176

B E T W E E N:

ANGELA D’ORTENZIO

Applicant

AND

TELSTRA

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL
PLACE:  ADELAIDE
DATE:  7 MAY 1997

This application comes before the Court pursuant to Section 170ED of the Workplace Relations Act. The Applicant claims that her employment was terminated unlawfully. She seeks reinstatement.

The Applicant is 42 years old. She was employed by the Respondent on a series of contracts from 13 May 1993 until 1 November 1996 as an administrative officer. Each contract was for a period of approximately 6 weeks. Other than the period from 16 June 1995 until 31 July 1995, the Applicant was employed continuously. Initially she was employed in the “Pay by phone” area of the Respondent on a part time basis. She ceased work in the Pay by phone area in January 1996.

The Applicant was offered a full time position in the “Winback” area of the Respondent  by a letter dated 15 January 1996. The letter states  “....your employment is subject to satisfactory work performance. Your employment may be extended depending on the business requirements of Telstra.....You will be employed under terms and conditions of employment as provided for under Federal Award and company policy....” The Winback program was a specific project that involved processing customer applications for transfer from other service providers to direct billing by Telstra whilst computer software was being developed to automate this process. The  term of the fixed term employment referred to in that letter was 15 January 1996 to 12 April 1996. The Applicant was offered further fixed term employment  for the following periods 13 April 1996 to 31 July 1996, 1 August to 27 September 1996 and from  28 September 1996 to 1 November 1996.

In relation to the final contract the Applicant did not sign the letter of 27 September 1996 indicating her acceptance of the offer. She amended the letter by hand and then signed it on 23 October 1996.  The Applicant’s amendments to that letter were never agreed to by anyone for or on behalf of the Respondent. Mr Mike De Garis, Customer Services Manager indicated orally to the Applicant that the handwritten amendments were not acceptable and that her  contract would terminate on 1 November 1996. The Applicant has not worked for the Applicant since 1 November 1996. 

Since approximately one week after 1 November 1996 the Respondent has engaged at least 40 people on agency agreements in the Winback area.

THE CONTRACTS
The Applicant gave evidence about the contracts that the Respondent provided to her. Her evidence was that they were rarely provided to her prior to the date which appeared on them and usually they were provided to her after the date that she signed them. This evidence was disputed by the Respondent, however it was entirely consistent with the evidence of Mr De Garis regarding the contracts that the Applicant signed whilst she worked in Winback.

The first contract in the pay by phone area stated that:
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 May 1996 to 16 June 1996 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 is not to be interpreted as an expectation of longer term employment.   
The contract had a space for the Applicant to sign and date. She dated the document 8 June 1996. No other date appears on the document. The subsequent contracts in the pay-by-phone area are all in the same terms and all are dated by the Applicant a few days after they are stated to commence.

The second contract in the Winback area dated 24 April commences, “I am pleased to offer you an extension to 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 - that no redundancy benefits are available to fixed term employees - that the offer of employment is subject to satisfactory Conduct, Diligence and efficiency - that the period of employment may be terminated at any time should any of the above conditions not be satisfactorily met. You will continue to be employed under terms and conditions of employment as provided for under Federal Award and Company Policy. A summary of primary employment conditions for your information has been previously provided. Fixed Term employees are ineligible for other internally advertised vacancies......”

The Applicant signed her acceptance to the offer on 21 May 1996. The last two contracts signed by the Applicant are in the same terms although they do not include any reference to or date on which the “task” is to be completed

IS THE APPLICANT EXCLUDED FROM THE JURISDICTION BY VIRTUE OF THE PROVISION OF THE ACT. (SECTION 170CC AND REGULATION 30BC)
The Applicant’s counsel argued that the facts in this matter demonstrate that the Applicant was in continuous employment  and therefore not excluded from the provisions of the Act by virtue of Section 170CC and Regulation 30BC.

It is clear from the decision of Fisher v Edith Cowan University Full Court, 2 April 1996, unreported, page 14, that it is necessary to look beyond the face of the contract to determine whether the employment relationship is excluded from the operation of the Act.

“The Recommendation and, therefore, the Convention recognize that
whilst on their face contracts of employment for a specified period
of time may provide for consensual termination of the employment
relationship by the effluxion of the period specified in the
employment contract, that termination may, in certain circumstances,
be a termination at the initiative of the employer. For example, if
an employer arranges for an employee to render service under
consecutive contracts of employment for specified periods of short
duration, where the nature of the employment is appropriate for a
contract of indeterminate duration, and the employee had no say in
the terms of the agreement, it may be said that the contract
served the purpose of the employer by providing additional control
over the employee. In such circumstances if the employment
relationship is terminated by the refusal of the employer to
"roll-over" the employment contract, the termination may be seen as
part and parcel of an initiative taken by the employer at the
commencement of the contract of employment to reserve that power.

By referring to "recourse to contracts of employment for a specified
period the aim of which is to avoid the protection resulting from
the Convention (and the Recommendation)", the terms of the Convention
and the Recommendation recognize that the use of such contracts may
be at the direction, and for the benefit, of the employer and that
entry into such a contract by an employee may not signify either
the intention or the desire of the employee to terminate the
employment relationship at the end of the period specified in the

employment contract”

In this matter the Applicant continued to work after the expiration of each of the contracts on 12 April 1996, 31 July 19996 and 27 September 1996. The written offer of an extension of the previous contract was made on each occasion after the expiration of the previous contract. In relation to the offer dated 27 September 1996, the Applicant did not accept that contract at any time.

In my view it is clear that the Applicant was in continuous employment at the time her employment was terminated.

WHETHER THE RESPONDENT HAD A VALID REASON FOR THE TERMINATION OF THE APPLICANT’S EMPLOYMENT.
There was no evidence of substance in this matter that could be relied on by the Respondent to establish that it had a valid reason to terminate the Applicant’s employment. The Respondent assumed it could bring the Applicant’s employment to an end without regard to the provisions of the Act on 1 November 1996 so it did.

It is my view that the termination of the Applicant’s employment by the respondent was in breach of Section 170DE of the Act.

The Applicant’s counsel argued that the Applicant should be regarded as a permanent employee, because she fits none of the other categories of employment that in accordance with the relevant award are available at Telstra. In my view although the Applicant has been terminated unlawfully it is not for me to adjudicate whether her status is that of a permanent employee under the Award. The role of the Court here is to determine firstly whether the Applicant is excluded from the provisions of the Act. Secondly, if she is not excluded, to determine whether the termination of her employment was unlawful and finally, if she has had her employment terminated unlawfully, to determine the appropriate remedy. 

REMEDY
The Applicant seeks reinstatement.  I am satisfied on the evidence before me that there is work available to the Applicant either in the Winback area or elsewhere at Telstra.  There was no evidence of substance as to why the Applicant could not return to work for Telstra. In my view reinstatement is appropriate in all the circumstances and is not impracticable.

Whilst I accept that the Respondent is in the process of reducing the overall number of employees there is no reason why the Applicant should be placed in a worse position than others who may ultimately choose or be selected for retrenchment.

I am satisfied on the evidence before me that the Applicant has taken reasonable steps to mitigate her loss.  I will make the appropriate order regarding remuneration lost by the Applicant. However in view of the delays in this matter concluding because the Applicant had failed to arrange for a witness to give evidence on the dates that the matter was listed for trial, the applicant is not entitled to the remuneration lost between 7 March and 18 April 1997. I will make the appropriate orders.

I certify that this and the preceding 5 pages are a true copy of the reasons for my judgment.

DATES OF HEARING  :          6 & 7 MARCH, 18 APRIL 1996
FOR THE APPLICANT                  :          MR HANNON
FOR THE RESPONDENT            :          MR COLGRAVE