Ibrahim Yahya Abdullah v Australia Post

[1995] IRCA 370

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - EMPLOYMENT CONTRACT - SPECIFIED PERIOD CONTRACT - CASUAL EMPLOYMENT.

Industrial Relations Regulation 30B

IBRAHIM YAHYA ABDULLAH -v- AUSTRALIA POST

No. NI 1143  of 1995

COURT:      LOCKE JR
PLACE:       SYDNEY
DATE:         10 AUGUST 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 1143 of 1995

BETWEEN:

Ibrahim Yahya ABDULLAH
Applicant

AND:

AUSTRALIA POST
Respondent

BEFORE:     LOCKE JR
PLACE:       SYDNEY
DATE:          10 AUGUST 1995

REASONS FOR JUDGMENT

On 10 October 1994, the applicant, Ibrahim Abdullah was appointed by Australia Post, the fourth mail night sorter at Lane Cove Post Office.  The appointment was effective from 10 October 1994.  The terms of the appointment are contained in form described as a Temporary Employment Contract which was executed  by the applicant and another person on 13 October 1994 (exhibit "B").  This document states that the employment is for a specified period of time, that is from 10 October 1994 to 10 January 1995, thus the time of commencement and the time of completion are unambiguously identified by a term in the contract.

The applicant's employment with the respondent was terminated on 9 January 1995 and he claim that this was done unlawfully. Accordingly, he seeks reinstatement and compensation under the Industrial Relations Act 1988 (the Act).

The respondent argues that the applicant is excluded from the operations of Division 3 Part VIA of the Act because he falls into one of the categories of employees disqualified under the Act from initiating applications.  The relevant regulation being 30B(1)(a) which reads:

"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)      An employee engaged under a contract of employment, a contract that was entered into before 16 November 1994."

Secondly, the respondent argued that if the Court found it was seized with jurisdiction to hear and determine the matter, then there was a valid reason for terminating the applicant on the grounds of his physical incapacity resulting from a previous existing injury which had not been exacerbated during his work time with the respondent.    

The applicant is thirty four years of age and since finishing with Australia Post has had intermittent casual employment of which he was unable to give evidence with any particularity.

Appearing in person, the applicant submitted that  the Court did have jurisdiction to determine the matter on the basis that he had been told by Messrs Taylor and Nemes, (the delivery controller) the latter being the Postmaster, he had a permanent job, inter alia, and what was said to him vitiated the agreement of 13 October 1995.

Two points come to mind so far as this allegation is concerned.  Mr Peter Ruben Burn, the respondent's Human Resources Manager for the Sydney Region gave evidence that all temporary employees were required to contract within the terms of exhibit "B" - that evidence was unshaken and uncontroverted.

That being so, it was intended that the contract was to be wholly in writing as far as the respondent was concerned, thus, any representation made by persons tending to add to, vary or contradict exhibit "B" would be done so acting outside the scope of his or her authority and would have no effect.

This officer also gave evidence that it was Australia Posts practice to employ persons on short term contracts and the number of persons so employed varies with the particular time of the year, the Christmas period being the peek time for the employment of additional workers.  It is to be noted that was the period the applicant was so employed.

In addition to the Temporary Employment Contract (exhibit "B"), Australia Post also employed permanent staff, and this was by way of Probationary Contract of Employment which was reviewed after six months.

So, had the applicant been appointed a permanent staff member (and in a position especially created for him) the appropriate method would have been by way of agreement just described.

Finally, Mr Burn said that it is not the policy of Australia Post to create a position for a specific person.

Not one iota of Mr Burns evidence was controverted.

Mr Michael Dewar, respondent's Human Resources Manager, Chatswood, at the period relevant to these proceedings, gave evidence that he was responsible for all matters relating to the employment of the applicant at Lane Cover Post Office.  He gave evidence of the nature of the duties to be performed by the applicant including the weights he would be required to lift - bags and trays which may weight between 10 kg - 16 kg.  He also gave evidence the applicant had been employed on a temporary basis and I accept this evidence.

Giving a explanation as to why the applicant was not medically examined until 4 January 1995, he attributed the reasons as being threefold.

(i)       The difficulty in obtaining medical appointments;

(ii)      The activity of the Christmas period;

(iii)Australia Post from time to time re-employs people for specific periods and a medical examination at this point precludes having to undergo another in the event that person returns to work with this postal establishment.

The applicant did not contest this evidence, nor did he call any witnesses in aid of his case.  He explained he could not afford to pay their wages for the day.  This may well have been so.

Despite being disadvantaged by lack of legal representation, the applicant presented as a very articulate and worldly man.  Having left school at 14 years, he had worked in various places in Australia.  He hitch hiked around Indonesia and returned to school to study for matriculation.  He does not appear to be a person who would sign something contrary to his perceived interest.

In spite of these obvious assets, he failed to satisfy the Court that he was other than an employee of Australia Post for a specific period.  His evidence lacked the ring of truth on his point.  In the same category falls assertions that he was given a contract about Christmas time for a period of six months.  His evidence on this point was vague, generalised and did not fit the description of those particular contracts of employment described by Mr Burn in his evidence and previously mentioned. 

Overall it is my opinion that the respondent's version of what occurred is more likely than that of the applicants.  I do have some uneasiness about Mr Abdullah credit worthiness.  On the other hand I see no reason to doubt what fell from the respondent's witnesses.  It is indeed difficult to resist the unambiguous terms of exhibit "B" duly executed.

Giving evidence as to this alleged later contract, the respondent's Human Resources Manager for the Metropolitan Sydney Region, said he had made search and inquiry as to the whereabouts or existence of such a document with negative results.  No evidence was found of any December Contract. 

Mr Burn's evidence was unshaken on this point and it must be found that the applicant has not discharged the onus he bears on this point.

Findings

1. The applicant was accordingly an employee to whom Regulation 30B(1)(a) applied and was excluded from the operations of subdivisions B and C of Part VIA of the Act.  The application must be dismissed.

In such circumstances no other matter falls to be decided.

I certify that this and the proceeding five (5) pages are a true copy of the Reasons for Judgment of Judicial Registrar Locke.

Associate:     Caroline Sternberg
Date:              10 August 1995

Appearances:

Applicant:  In Person

Counsel for Respondent:    Mr Davoren

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY

No. NI 1143 of 1995

BETWEEN:

Ibrahim Yahya ABDULLAH
Applicant

AND:

AUSTRALIA POST
Respondent

BEFORE:     LOCKE JR
PLACE:       SYDNEY
DATE:          10 AUGUST 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.