Ethel Adams v Australia Post
[1996] IRCA 23
•31 January 1995
DECISION NO: 23/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - whether termination on grounds of prohibited reason of age - whether termination at the initiative of the employer - APPLICATION dismissed.
INDUSTRIAL RELATIONS ACT 1988, Ss 170DF(1)(f), 170EA, 170HA
AUSTRALIAN POSTAL CORPORATION ACT 1989, Ss 41, 89
POSTAL SERVICES ACT 1975, S57
Siagian -v- Sanel Pty Ltd (1994) 122 ALR 333
APESMA -v- Skilled Engineering Pty Ltd (1994) 122 ALR 471
Christie -v- Qantas Airways Ltd and Allman -v- Australian Airlines Ltd, IRCA No 197/1995, Wilcox CJ, unreported, 12 May 1995
Byrne and Frew -v- Australian Airlines (1995) 131 ALR 422
Australian Liquor, Hospitality and Miscellaneous Workers Union -v- Commonwealth of Australia (1994) 55 IR 18
ETHEL ADAMS -v- AUSTRALIA POST - WI 1379/95
BEFORE: BOON JR
PLACE: PERTH
DATE: 31 JANUARY 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 1379/95
BETWEEN: ETHEL ADAMS
- Applicant
AUSTRALIA POST
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 31 JANUARY 1996
THE COURT ORDERS THAT:
The application be dismissed.
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 )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 1379/95
BETWEEN: ETHEL ADAMS
- Applicant
AUSTRALIA POST
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 31 JANUARY 1996
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988. The applicant seeks reinstatement and compensation in relation to the alleged unlawful termination of her employment by the respondent.
It is alleged that the respondent terminated the applicant's employment contrary to Section 170DF(1)(f) of the Act in that the employment was terminated for the reason of the applicant's age. The respondent says that the applicant's employment was not terminated at the initiative of the employer and that accordingly the termination of employment provisions of the Industrial Relations Act do not apply. If this court finds that the applicant's employment was terminated at the initiative of the employer, then the respondent says that the applicant's employment would have come to an end irrespective of the applicant's age by reason of the upgrading of the respondent's telephone system and the fact that the applicant's job would no longer exist.
THE APPLICATION FOR LEAVE TO APPLY OUT OF TIME
The applicant's employment with the respondent ceased on 17 June 1994. Her claim for a remedy was filed in this court on 31 March 1995. The applicant sought an extension of time within which to file her application. The respondent did not oppose the application. In the circumstances I consider it fair and reasonable that the applicant be granted leave, under Section 170EA(3)(b), to apply out of time.
BACKGROUND
The applicant, Ethel Adams, is a pleasant and attractive woman who is now 66 years of age. She started her employment with Australia Post on 17 November 1986. Ms Adams was employed as a switchboard operator and did general reception work at the General Post Office in Perth. Her duties involved taking calls from the public, answering queries from the public, directing calls, attending to the reception desk, taking overseas calls and answering post-code directory inquiries. Ms Adams' employment with Australia Post was on a permanent part-time basis. By all accounts Ms Adams carried out her functions effectively and efficiently. In 1992 she was judged "Internal Customer Service Officer of the Year" in Australia Post's 1991-1992 State Achievement Awards. Ms Adams said that she felt very proud to have been awarded that honour as the competition for the awards was open to many people.
Ms Adams was born on 18 June 1929. By letter dated the 6 May 1994, the Administration Manager for the State Communications Branch of Australia Post, Mr Abreu, wrote to Ms Adams in the following terms:
"Maximum Age Retirement (Age 65)
Dear Ethel
In accordance with our conditions of service, your retirement will be processed with effect from close of business 17.6.94.
It is necessary that we commence retirement actions some weeks prior to retirement particularly for superannuation purposes.
Therefore would you kindly complete the attached Tax File Number Notification Forms, Benefit Payment Request, Employment Declaration Form, and return to me at the earliest opportunity.
If you have any queries please contact me on 326 5222."
Ms Adams said that after receiving that letter she approached the manager of the Human Relations Department at Australia Post. She said that as she had no one to support her she needed a position with Australia Post because of her financial status. She asked management if she could work for Australia Post beyond the age of 65.
Australia Post offered Ms Adams temporary part-time employment as a switchboard operator from 20 June 1994 until 31 December 1994 on the basis that her salary, existing entitlements and the accrual of entitlements would continue until 31 December 1994. She was advised that the only real change which would take place would be that her status would be temporary part-time instead of permanent part-time. Ms Adams was advised that she could no longer be a permanent employee because she had exceeded the maximum retirement age of 65 years.
At around this time, Australia Post was involved in changing its telephone system. The GPO switchboard was to change its method of operation to CustomNet. By letter dated 23 December 1994, Australia Post advised Ms Adams that:
"It is probable that by the end of February 1995, the GPO switchboard will change its method of operation".
As a result, Australia Post offered Ms Adams further temporary part-time employment as a switchboard operator from 1 January 1995 until 3 March 1995. Ms Adams accepted that offer. A further extension of the part-time temporary employment up to 7 April 1995 was offered and accepted.
By letter dated 5 April 1995, Mr R F Finch, General Manager of Australia Post for Western Australia, wrote to Ms Adams as follows:
"Dear Ethel
I am writing to thank you for your services to Australia Post now that your time with us comes to a conclusion on Friday, 7 April.
On behalf of the Management Team in Western Australia, and your many friends in State Head Office, I wish to express our deep appreciation for excellent service you have provided us in your role as a Switchboard Operator.
I am acutely aware that you have served the Switchboard in a very professional and helpful manner since you joined us in November 1986. The high standards of your service were acknowledged by your colleagues in 1992 when you were judged as a state award winner, Internal Customer Service Officer of the Year, in our Annual State Achievement Awards.
It is through sustained efforts like yours that we can fulfil the objective of our Corporate Vision to achieve high quality service through the commitment of our people and help make Australia Post one of the best postal services in the world.
On behalf of Australia Post, I congratulate you on the quality of service you have provided and wish you every success with your future activities"
Prior to receiving that letter Ms Adams had applied for a position in the new customer inquiry unit which took over the services provided by the switchboard. The position she applied for was a part-time administrative officer, which was classified as one grade higher than the position she had been occupying. Ms Adams was unsuccessful in her application.
The change to CustomNet involved some reorganisation at the General Post Office. The evidence was that of all the staff at Australia Post who were affected by the re-organisation, only Ms Adams lost her job.
Mr Brian Thomas, the Manager of Personnel Services at Australia Post, gave evidence that Ms Adams' employment as a permanent officer had come to an end on her 65th birthday and that this was normal practice. In Ms Adams' case, her employment continued on a temporary basis until the CustomNet service was introduced. Mr Thomas said that Australia Post can employ someone over the age of 65 in a temporary capacity where there are special circumstances. This is what happened in Ms Adams' case. There was no provision for redeployment of Ms Adams or for offering her redundancy as she had attained the maximum retirement age under the award conditions and in keeping with the conditions of Australia Post as determined under the relevant statute. Mr Thomas said that although Ms Adams was interviewed for the position of administrative officer, technically she was not available for selection.
The relevant provisions of the award were tendered by consent by counsel for the respondent. Clause 36 of that award states as follows:
"STAFF
(a)(I)Australia Post may appoint a person as an officer, or transfer or advance/promote any officer within Australia Post, provided that such appointments, transfers or advancements/promotions are made in accordance with the provisions of this Award.
(II)An officer will be engaged on a full-time or a part-time basis, where prescribed by the relevant specific conditions of employment award/agreement.
(III)An officer may continue in the employment of Australia Post until attaining the age of 65 years but is entitled to retire from employment on or after attaining the age of 55 years.
(b)(I)Australia Post may engage persons as temporary employees; a temporary employee will be engaged on a full-time or part-time basis or as a casual or as a fixed term employee where prescribed by the relevant specific conditions of employment award/agreement.
(II)A temporary employee's engagement with Australia Post shall normally cease when he/she attains the age of 65 years, but he/she is entitled to retire from employment on or after attaining the age of 55 years.
(c)This clause is subject to Australia Post's right to change and employees status (including retirement) pursuant to the relevant Australia Post determinations, awards, industrial agreements and understandings reached with a claimant organisation.
(d)Salaries, although expressed as annual rates will, for the purposes of employment, be payable fortnightly."
Section 89 of the Australian Postal Corporation Act 1989 (the current legislation covering Australia Post) gives to Australia Post the right to determine the terms and conditions of employment of its staff. A determination was made under that section preserving all of the previous conditions of employment under the Postal Services Act 1975. Under Section 57 of the 1975 Postal Services Act an officer of Australia Post was permitted to continue in service until attaining the age of 65 years. A similar determination was made under Section 41 of the Australian Postal Corporation Act 1989 on 28 June 1989.
WAS THE TERMINATION AT THE INITIATIVE OF THE EMPLOYER?
In the case of Siagian -v- Sanel Pty Ltd (1994) 122 ALR 333, Wilcox CJ discussed the meaning of the words "Termination of......employment" in Division 3 of Part VIA of the Industrial Relations Act. His Honour said at page 351:
"It seems preferable to treat the words 'Termination of ........ employment', in Division 3 of Part VIA of the Industrial Relations Act as including any act that brings to an end the employer/employee relationship, whether or not the act, or any acceptance of it, also brings to an end the contract of employment"
.
His Honour Justice Gray also discussed the meaning of those words in APESMA -v- Skilled Engineering Pty Ltd (1994) 122 ALR 471. Gray J said at page 482 of that decision:
"Both the requirement that expressions in Division 3 of Part VIA be given the same meanings as in the Convention and the form of the provisions of Division 3 therefore suggest that "termination" refers to what is done by an employer attempting to bring about the end of the employment. The legislative intention is to permit applications under Section 170EA of the IR Act if an employer has done some act terminating or purporting to terminate the employment, irrespective of whether the act is effective to bring about the termination without some further act on the part of the employee. The "termination" referred to in Section 170 EA and Section 170EE is the act of the employer. If the act of the employer is effective to terminate the contract of employment, remedies appropriate to that situation can be granted."
In Australian Liquor, Hospitality and Miscellaneous Workers Union -v- Commonwealth of Australia (1994) 55 IR 18, Moore J decided that compulsory retirement under Section 76 V of the Public Service Act did not constitute termination under the Division 3 Part VIA of the Industrial Relations Act. His Honour said at page 19:
"In my view, the termination of the employment of Mr Symons was not termination at the initiative of the employer but rather, as is submitted by the respondent, termination resulting from the operation of an Act of parliament. Accordingly the application to the Court is one that does not concern termination of the type to which the relevant legislative provisions are directed".
Counsel for the respondent made lengthy submissions in relation to the effect of the determination under Section 89 of the Australian Postal Corporation Act 1989. There was an alternative submission that as the award stipulated compulsory retirement at 65 years of age the termination of Ms Adams was not termination at the initiative of the employer within the meaning of Division 3 of Part VIA of the Industrial Relations Act 1988. Counsel for the applicant said that there was some conflicting authority as to whether the award forms part of the contract of the employment. He said that this would only be so if the award was valid. It was submitted on behalf of the applicant that because of Section 170HA of the Industrial Relations Act, any award that is inconsistent with the requirements of the Termination of Employment Convention does not have effect to the extent of the inconsistency.
It is my view that provisions of the award governing Ms Adams' employment are not inconsistent with the provisions of the Industrial Relations Act. As has been outlined above, the termination of employment provisions of the Industrial Relations Act only apply to terminations at the initiative of the employer. Whether or not the provisions of the award relating to compulsory retirement form part of Ms Adams contract of employment with Australia Post is not, in my view, relevant. The award provisions are binding upon both the employer and the employee and have the force of law. His Honour Chief Justice Wilcox, when considering other applications in this Court in relation to alleged age discrimination, considered the conditions covering the employment of the applicants. In the case of Christie -v- Qantas Airways Limited and Allman -v- Australian Airlines Limited, IRCA Decision 197/1995 unreported, Wilcox CJ said at page 12:
"Although he was at the time a member of AIPA and would have been bound by certified award, these letters do not appear to have been to be certified by the Commission."
Further, in the case of Byrne -v- Australian Airlines Limited and Frew -v- Australian Airlines Limited (1995) 131 ALR 422, Brennan CJ, Dawson, and Toohey JJ, said at page 427:
"In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor employee is there any need to convert those statutory rights and obligations to contractual rights and obligations".
In these circumstances, I need go no further than the reasoning of Moore J in the Liquor Union case (supra). The provisions of the award would in this case have a similar effect as Section 76V(1) of the Public Service Act. I find that in this case the termination was not at the initiative of the employer but rather a termination resulting from the operation of the award, which operates with statutory force.
The other branch of the respondent's argument related to a question of statutory interpretation and in particular as to the extent of the validity of Section 170DF(1)(f) of the Industrial Relations Act. I do not consider it appropriate for me to embark on that exercise, particularly in view of my finding in relation to the operation of the award provisions.
In these circumstances it is also not necessary for me to consider the respondent's argument that Ms Adams' employment would have come to an end irrespective of Ms Adams' age by reason of the up-grading of the respondent's telephone system and the fact that her job no longer existed. Several witnesses gave evidence on behalf of the respondent in relation to Ms Adams' application for the position of administrative officer. I reject any notion that Ms Adams' application for the position was considered in a bona fide manner. There were six applicants for the job and Ms Adams was placed equal fifth by the interviewing panel. I do not accept that there was any legitimate reason for this other than that the application was not seriously considered because, in Mr Thomas's words, Ms Adams was technically not eligible for the position as she was past retirement age. In my view, Australia Post should have been more frank with Ms Adams in relation to this and should have spared her the humiliation of going through the motions of applying for and being rejected for the position.
The appropriate order is that the application be dismissed.
I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon
Associate
Date:
Counsel for the applicant: Mr M Cuomo
Solicitors for the applicant: Warren Swain
Counsel for the respondent: Mr J R Brooksby
Solicitors for the respondent: Greenland Brooksby
Hearing date: 20 December 1995
Judgment date: 31 January 1996
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