Herbert Howard Bolotin v The University of Melbourne

[1995] IRCA 650

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3990 of 1995

B E T W E E N :

HERBERT HOWARD BOLOTIN
Applicant

AND

THE UNIVERSITY OF MELBOURNE
Respondent

Before:           Judicial Registrar Murphy
Place:              Melbourne
Date:              6 December 1995

EX-TEMPORE REASONS FOR JUDGMENT

In this proceeding under Part VIA of the Industrial Relations Act (“the Act”) the Respondent has sought to have a jurisdictional issue determined at the commencement of the hearing of the matter.  The jurisdictional issue is that the Applicant must fail in his application because there has been no "termination at the initiative of the employer" as required under the Termination of Employment Convention (Schedule 10 to the Act).

Section 170CB of the Act provides that expressions in the Act have the same meaning as in the Convention.

The employment agreement between the parties.
The Respondent is established pursuant to an Act of Parliament as a body corporate.  That Act gives the Council of the Respondent the power to make statutes with respect to, inter alia, the employment of staff.
In March 1971 the Applicant was a member of the Department of Physics of the Argonne National Laboratory, Argonne, Illinois, USA.  On 1 March 1971 the Respondent offered the Applicant an appointment to the Chamber of Manufactures Chair of Physics.  The offer was stated to be subject to the "Statutes and Regulations of the University, in particular Statute 3.5, “The Professors”” (“the statute”).  By letter dated 10 March 1971 the Applicant accepted the position. 

Clause 3(1) of the statute at the time provided that "each professor shall hold his office until the end of the calendar year” in which he reaches the age of 65 years.  The statute in this respect remains in force unchanged to this day.  The Applicant turned 65 this year and as far as the Respondent is concerned, as a result of the operation of the statute, ceases to hold his position on 31 December 1995.

By letter dated 29 June 1995 to the head of his department, the Dean of Science Professor McKellar, the Applicant advised that on the basis of the provisions of section 170DF(1)(f) of the Act he intended to remain in his present position beyond 31 December 1995.

By letter dated 13 July 1995 the Respondent advised the Applicant that the policy of the University remained as set out in the statute and that academic staff appointed, as he was, pursuant to that statute retire from the University at the end of the calendar year in which they reach 65 years of age.  A short time after receiving that letter the Applicant issued these proceedings.

In other correspondence since the Applicant issued these proceedings the Respondent has indicated that it intends that the provisions of the statute relating to the retirement of the Applicant will take effect.

Is this a termination at the initiative of the employer?
The essential argument of the Respondent was that the employment agreement between the parties will cease by force of its terms on 31 December 1995 and there will thus be no termination of employment at the initiative of the employer as required under the Convention.

The Applicant's argument on the other hand was that the provisions of Section 170DF(1)(f) prohibited the termination of the Applicant's employment because of his age. He asserted that this provision over-rode the University statutes and in particular the statute. He further argued that the letters of the Respondent indicating that it intended to enforce the provisions of the statute that he retire showed that the termination of employment was at the initiative of the employer.

The issue of termination at the initiative of the employer has been considered in a number of cases in the Court.  In APESMA v Skilled Engineering Pty Limited (1994) 1 IRCR 106, at 115-116 Gray J said:-

“The Convention, therefore, focusses on what the employer has done to bring about the end of the employment.  It is the employer’s act or acts which is or are regarded as the “termination”.  As Art 10 illustrates, the employer’s act or acts are to be regarded as the “termination”, irrespective of their validity....The Convention covers all possibilities by focussing on the act of the employer, whether effective or not to bring about the end of the employment, and treating that act as the “termination”....The focus is thus on the employer's conduct, rather than on its effect.”

In Australian Liquor, Hospitality and Miscellaneous Workers Union v Commonwealth of Australia, (Moore J, 16 August 1994), the Court was dealing with a claim by an employee who was forced to retire at age 65 because of a retirement age set in a statute.  After considering the APESMA case (above), Moore J said:-

“In my view, the termination of the employment of Mr Simmons 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.”

In APESMA v David Graphics Pty Limited, (Wilcox CJ, 12 July 1995), the Court was dealing with a case where the critical actions of the employer took place before the commencement of the Act on 30 March 1994. Wilcox CJ said:-

“But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment....I agree that "end" and "terminate" often mean the same thing.  However this legislation is structured as a series of commands addressed to employers.  Many provisions of Subdivision B of Division 3 commence:  "An employer must not terminate an employee's employment unless".  These provisions address actions by employers that have the effect of terminating employment.”

In Mohazab v Dick Smith Electronics Pty Limited, (Lee, Moore and Marshall JJ, 28 November 1995) the matter was considered.  The Court said:-

“Consistent with the ordinary meaning of the expression in the Convention a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship....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.”

Similar conclusions as reached in these cases have also been reached in two other cases in the Court:  O'Neill v Australian National University, (Linkenbagh JR, 29 August 1995) and Phillips v Attorney-General's Department, (Ryan JR, 31 August 1994).

The decision in Christie v Qantas Airways Limited, (Wilcox CJ, 12 May 1995), is distinguishable from that under consideration here, in that in that case the policy that pilots were to retire at 60 appeared to have been implemented after the commencement date of Mr Christie's employment and in the decision Wilcox CJ said that “Qantas had failed to demonstrate that Mr Christie's employment came to an end through the effluxion of time”.

When all these decisions are applied to the facts before the Court the only conclusion that can be reached is that here there has not been, nor will there be, a termination of the Applicant's employment at the initiative of the employer.  The agreement between the parties will terminate at the end of this year.  There will be no action by the University that will cause this to occur.  It will occur by the effluxion of time.

The only possible action that could be relevant is the making of the statute governing retiring age.  Such an action, however, is akin to the statute considered in the Australian Liquor case (above). Further, the statute here was made both before the entry by the parties into the employment agreement and before the commencement of the provisions of Part VIA of the Act. The proper analogy here is that this was in effect a fixed term contract. The term was fixed at the date the parties entered into it. Neither party need take any further action to terminate it.

The Applicant further relied on correspondence exchanged between the parties as indicating that the Respondent was taking the initiative to give him notice that it was terminating his employment.  He referred to the fact that at one stage he had been asked for his plans for next year.  He argued that the Respondent should not have done this or even responded to his letters suggesting that he stay on.

The Court rejects this argument. The relevant correspondence of the Respondent cannot be construed as a notice of termination of employment. Rather it merely advises the Applicant of the provisions of the agreement between them and in particular the statute. Even the fact that the Applicant may have been asked his future plans or had an expectation that he would be able to continue after 31 December 1995, cannot, as a matter of law, extend the existing agreement between the parties. At all times the Respondent has indicated that it will abide by the relevant provisions of the statute. The statute has been materially unchanged from prior to the Applicant ascending to his chair. The parties are bound by its terms. The contract for the Applicant to hold the Chamber of Manufactures Chair of Physics ceases on 31 December 1995. The provisions of section 170DF(1)(f) cannot assist the Applicant because they are prefaced on a termination being at the initiative of the employer and this will not occur here. The Court has no jurisdiction to intervene. The Respondent succeeds on its jurisdictional argument and the proceeding must be dismissed.

Costs
Counsel for the Respondent sought costs against the Applicant in these proceedings.  The Court has to consider the comments of Northrop J in Heidt v Chrysler Australia Limited, (1976) 26 FLR 257, 272 when construing this provision. The comments were endorsed by the court in Thompson v Hodder (1989) 29 IR 339, 341 as follows:-

“It is apparent from these authorities that an applicant who has the benefit of the protection of section 347 will only rarely be ordered to pay costs of a proceeding in exceptional circumstances.”

The Court has considered that Linkenbagh JR in the decision of O'Neill (above), refused an application for costs against the unsuccessful Applicant in that matter in an analogous line of argument.  There appears to have been no order for costs made by Moore J in the Australian Liquor case (above), by Wilcox CJ in David Graphics (above), or by Ryan JR in Phillips (above).

The Court further notes that senior counsel for the Respondent submits that the law in relation to this matter, namely, “termination at the initiative of the employer” was, as at the date of the institution of this application, substantially settled.  The Court notes that since that date there has, however, been the decision in O’Neill (above) as well as the decision of the Full Court in Mohazab (above).

Having considered all these matters the Court is not prepared to categorise this proceeding as having been instituted either vexatiously or without reasonable cause, and therefore the application for costs is refused.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the application is dismissed.

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 six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:                   
Dated:  13 December 1995

Applicant in person.

Solicitors for the Respondent:           Messrs Phillips Fox
Counsel for the Respondent:  RRS Tracey, QC & T Ginnane.

Date of hearing:  6 December 1995
Date of judgment:  6 December 1995

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SPECIFIED PERIOD CONTRACT - duration of term referrable to age - duration set prior to commencing employment - whether termination at the initiative of the employer - COSTS - whether proceeding initiated without reasonable cause.

Industrial Relations Act 1988 ss.170CB, 170DF and 347.

CASES:APESMA v Skilled Engineering Pty Limited (1994) 1 IRCR 106

Australian Liquor, Hospitality and Miscellaneous Workers Union v Commonwealth of Australia, (Industrial Relations Court of Australia, Moore J, 16 August 1994)

APESMA v David Graphics Pty Limited, (Industrial Relations Court of Australia, Wilcox CJ, 12 July 1995)

Mohazab v Dick Smith Electronics Pty Limited, (Industrial Relations Court of Australia, Lee, Moore and Marshall JJ, 28 November 1995)

O'Neill v Australian National University, (Industrial Relations Court of Australia, Linkenbagh JR, 29 August 1995)

Phillips v Attorney-General's Department, (Industrial Relations Court of Australia, Ryan JR, 31 August 1994)

Christie v Qantas Airways Limited, (Industrial Relations Court of Australia, Wilcox CJ, 12 May 1995)

Heidt v Chrysler Australia Limited (1976) 26 FLR 257

Thompson v Hodder (1989) 29 IR 339

HERBERT HOWARD BOLOTIN -v- THE UNIVERSITY OF MELBOURNE

No. VI 3990 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  6 December 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 3990 of 1995

B E T W E E N :

HERBERT HOWARD BOLOTIN
Applicant

AND

THE UNIVERSITY OF MELBOURNE
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy       6 December 1995

THE COURT ORDERS:

1. That the application is dismissed.

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