Jeremy Richard Armitage v Legal Aid Commission of Western Australia
[1995] IRCA 106
•17 March 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - abolition of public service position - Public Sector Management Act 1994 (W.A.) - Redeployment and Redundancy Regulations - failure to consult applicant - unfair - Abolition of office did not constitute termination of employment.
Industrial Relations Act 1988, S170EA, S170EE
Mann v Capital Territory Health Commission [1982] 2 IR 29
Turner v Sawdon & Co [1901] 2 KB 653
Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647
Hughes v Western Australian Cricket Association [1986] 19 FCR 10
Slonim v Fellows [1984] 154 CLR 505
Perks v Willet [1974] 22 FLR 274
Australian Journalists Association v Wright Prospecting [1980] 60 WAIG 2291
Transport Workers Union v Mount Newman Mining Company [1989] 60 WAIG 1036
Marriott v Oxford and District Co-Op Society Limited (No 2) [1969] 3 WLR 984
Siagian v Sanel Pty Ltd [1994] 122 ALR 333
Association of Professional Engineers, Scientists and Managers Australia (A.P.E.M.S.A.) v Skilled Engineering Pty Ltd; and Others [1994] 122 ALR 471
JEREMY RICHARD ARMITAGE V LEGAL AID COMMISSION OF WESTERN AUSTRALIA
No. WI-437/94
Before: Ryan JR
Place: Melbourne
Date: 17 March 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY Matter No WI-437/94
B E T W E E N: JEREMY RICHARD ARMITAGE
Applicant
AND: LEGAL AID COMMISSION OF WESTERN AUSTRALIA
Respondent
RYAN JR
MINUTES OF ORDER
17 MARCH 1995
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY Matter No WI-437/94
B E T W E E N: JEREMY RICHARD ARMITAGE
Applicant
AND: LEGAL AID COMMISSION OF WESTERN AUSTRALIA
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 17 MARCH 1995
THE APPLICATION
The applicant is a lawyer who has spent the last sixteen years in senior positions in the Legal Aid Commission of Western Australia.
He has sought remedy for unlawful termination of employment. The application is unusual in that while his position of Assistant Director Legal Services was abolished in early October 1994 the applicant has continued to attend at his workplace and he continues to receive the level of salary paid to him as Assistant Director, Legal Services.
There is absolutely no doubt that the office he occupied from March 1988 to October 1994 is, like Monty Python’s parrot, defunct. It is no more. It has ceased to be.
The crucial question is whether the employment of the applicant has been ended at the initiative of the employer in such a way as to bring the termination, if it be a termination, within the jurisdiction of Division 3 Part VIA of the Industrial Relations Act 1988.
THE APPLICANT’S CAREER 1971 TO 1994
The applicant was admitted as a barrister and solicitor of the Supreme Court of Western Australia on 16 March 1971 and his name was entered on the Register of the High Court on 26 October 1991.
From March 1971 to August 1973 he was a solicitor in the Deputy Crown Solicitor’s office of the Commonwealth Attorney General’s Department in Perth. From August 1973 to April 1974 he was solicitor in charge of the Crown Solicitor’s Office in Canberra. From 1974 to January 1978 he was solicitor in charge of the Fremantle Office of the Australian Legal Aid Office.
In 1978 certain employees of the Australian Legal Aid Office were given the right of election to join the staff of the Legal Aid Commission of Western Australia. The applicant elected to take up that option and in July 1978 he was appointed as solicitor in charge of the Family Law Section of the Legal Aid Commission of Western Australia
In January 1979 he was appointed as Branch Head (later Assistant Director) of the Family and Civil Law Branch of the Legal Aid Commission of Western Australia. In January 1984 he was appointed as Assistant Director of the Family Law Division. In March 1988 he accepted the invitation of the then Director of Legal Aid to transfer to the position of Assistant Director, Legal Services Division.
THE RESTRUCTURE
On 22 September 1994 the present Director of the Legal Aid Commission of Western Australia, Ms Carol Bahemia, informed the applicant that she had decided to carry out a restructure and that his position as Assistant Director, Legal Services was being abolished. It is clear that the Director had made the decision to abolish the office in or before August 1994. Indeed on 11 August she wrote to the Director of the Australian Office of Legal Aid and Family Services and stated that the abolition would take effect on 1 September 1994.
On 23 September 1994 the applicant was present (as a member of the Executive of the Legal Aid Commission) when the Director outlined the details of the restructure and circulated a draft memorandum dated 21 September 1994 (Exhibit JRA1) which set out the restructure and the justification for it and included the following statements:
“Abolished are the position of Assistant Director, Legal Services Division”
“Mr Armitage will finalise his current projects this week and his employment with Legal Aid Western Australia will finish.”
By minute dated 23 September 1994 the Director invited certain staff members to a meeting on 26 September to discuss the restructure as outlined at the executive meeting and in the draft memorandum of 21 September.
MEMORANDUM 26 SEPTEMBER 1994
The memorandum to all staff from the Director of Legal Aid dated 26 September 1994 and headed:
“Restructure of Management Functions of Legal Aid Western Australia”
is the first official notification of the restructure.
The memorandum begins with a statement from the Director that she has “come to the view that Legal Aid Western Australia must restructure if it is to meet the challenges it currently faces”.
The Director states that, in her opinion, the Commission has been “hampered by difficulties in communication” and that there “has been much duplication of effort, as well as confusion and frustration in respect of roles and responsibilities”.
Attached to the memorandum was an organisation chart setting out the new structure which the Director claimed:
would facilitate internal communication
clarify responsibilities
increase accountability
make the executive “more relevant to staff” (whatever that may mean)
provide the executive with “the resources to progress initiatives in a united and cohesive manner and bring about the results we, as an organisation, are committed to achieve”
The memorandum, in paragraph 4 referred directly and bluntly to the abolition of two positions and a consultancy. The precise words are:
“abolished are:
. the position of Assistant Director, Legal Services Division;
. the Cost Consultancy; and
. the position of Solicitor in Charge, Community Resources”
Paragraph 7 identifies four persons who are to comprise an Executive Support Team. The applicant is not included in that team.
Paragraph 9 of the memorandum is as follows:
“I have given Mr Armitage and those persons directly affected by this restructure preliminary advice of this decision. May I place on record the very valuable contribution Mr Armitage has made to the work of Legal Aid Western Australia over the years. He has been instrumental in pioneering a number of exciting and informative strategies that have served as a model throughout the Legal Aid community. This restructure should not be taken to diminish in any way the value of his contribution.”
The final paragraph, paragraph 10, contains the following statement:
“This restructure has not been undertaken lightly and everyone affected by the decision has contributed to the discussion in respect of the implications of the implementation of the decision.”
THE ORIGIN OF THE RESTRUCTURE
It seems clear from the affidavit of the Director of Legal Aid that she formed the view that the Commission should be changed (but not restructured) almost as soon as she began as Director on 8 March 1993. She described the organisation as one which “had outmoded work practices and management styles”.
Nothing much appears to have happened in respect of restructure between March and October 1993 other than the Director, to use her own words, “embarking on the change process” in which she “engaged an external facilitator” .... and ...... “followed a process” ..... which she described as “quite familiar” to her.
As part of her affidavit she states:
“In October 1993 I didn’t have the slightest interest in restructuring the organisation.”
The Director was absent on maternity leave for five months until March 1994. In paragraph 7 of her affidavit she states:
“Upon my return, it became quickly apparent to me that no real advancement had been made on any of the plans. The changes I had asked for were not implemented; issues that I identified in the first months of my term as needing urgent change were in exactly the same state as they were a year previously. I saw nothing had changed.”
It is not at all clear from the affidavit what were the plans to which the Director was referring and about which she stated there had been no real advancement. It can be inferred from the early paragraphs of her affidavit that she wanted less secrecy and more accountability and co-ordination between the various sections of the organisation and that she hoped to achieve these aims through what she described as “the change process” and “an external facilitator”.
In any event, between March and May 1994 she states that she
“reflected on the situation at length .... (and on 5 May)..... assessed the issues facing the organisation with a consultant.”
In paragraph 9 to 20 of her affidavit the Director describes meetings between the consultant and the executive, her dissatisfaction with progress, her decision to restructure the organisation and steps taken to obtain advice from the Commonwealth Office of Legal Aid and Family Services and the Western Australian Public Service Commission. Paragraphs 9 to 20 read as follows:
The consultant shortly thereafter met the members of the Executive individually, to obtain their views of the way the Executive worked and on 13 May the Executive (minus one member) spent almost a full day with the consultant discussing the issues, my approach to management, how we would work as a team etc. We agreed this was the most important issue facing the Executive and that a discussion paper should be drawn developing our thinking and philosophies. It was also agreed that the Executive should meet without me to fully discuss the position. That meeting was held the following (sic) and apart from me asking for the discussion paper on a number of times, no further activity or agreement was progressed. Unfortunately that issue was not progressed in the way I would have hoped.
Thereafter we held a second Planning Conference to pick up on some of the more long term, strategic issues facing the organisation, with a view to developing a strategic plan for endorsement by the Commission.
I entered into a Performance Agreement with the Commission in July 1994 in an effort to underline the importance of the changes that had to be achieved. It was becoming increasingly apparent that achieving any real results in terms of enhanced communication, effectiveness, work practice change or culture change was almost impossible as matters stood. A significant contributing factor was that lines of accountability for the delivery of results were not clear.
I reflected at length on the causes of this culture. Its effect was that the organisation was moribund. Key service providers did not communicate with each other to achieve agreed and endorsed organisational goals; a key section did not see itself as having anything to do with the organisation, my management style of talking to people at every level had the effect of blurring further the perceived lines accountability; cross sectional teamwork was non-existent. I couldn’t see the situation changing.
By about August 1994 I formed the view that a restructure was needed to progress the fundamental values of client focus, empowerment and accountability and communication. For issues to be resolved within the organisation, areas of conflict between sections needed to be discussed and resolved at the highest level.
Under the structure that existed, 3 of the 4 service delivery sections reported to the position of Assistant Director, Legal Services. The existence of that position created one unnecessary tier of management. The restructuring of this Division would put those positions directly responsible for service delivery on the Executive. In the final analysis the restructure was for all the traditional reasons organisations seek a “flatter structure”.
The effect of the restructure would be to abolish the position held by the applicant. I wanted to be in a position to discuss with him the various options he then had. I knew the applicant had redeployment entitlements to both the Federal and State Public Sectors. These accrued as he was initially employed by the Commonwealth before the Legal Aid Commission (“LAC”) was established. Upon its establishment, the LAC Act gave all former Commonwealth employees employment conditions equivalent to employees of the LAC, which was in effect the Government Officers Salaries, Allowances and Conditions Award (“GOSAC”). My understanding was that transitional provisions applied to the Applicant and he retained his rights in respect of the Commonwealth Public Service and gained new rights in respect to the State Public Sector.
I therefore contacted the Office of Legal Aid and Family Services (“OLAFS”), which is responsible for the federal management of Legal Aid and the WA Public Service Commission (“PSC” as it was at that time,) to find out the implications of abolishing the position of Assistant Director Legal Services.
The advice I received from OLAFS was that, upon the abolition of his position the Applicant was entitled to return to the Commonwealth, so long as he applied to do so within 28 days of his position being abolished. I was advised to negotiate an actual finishing up date with the Applicant. My advise was that if the Applicant decided not to return to the Commonwealth, he could then call upon his entitlements under the WA public sector provisions.
The PSC provided me with a copy of their re-structuring manual (Human Resource Management Principles Regulating Organisational Restructuring Public Service Commission 1991) and recommended that I consult with staff affected by the decision. They also advised, interalia, that the Applicant could be placed on the re-deployment list.
Shortly thereafter I met the Chairman of the Commission, Malcolm McCusker QC, and advised him of my proposal. Mr McCusker has been the Chairman of the Legal Aid Commission for 12 years.
I then reflected upon how to implement the restructure. I again took advice from the management consultant I worked with previously; we discussed the need for the restructure, the method of communicating it to staff and the appropriate level of any new positions created as a consequence of the restructure. Later, I mapped out a schedule of meetings for myself to ensure appropriate dissemination of information.”
THE ABOLITION OF THE OFFICE OF ASSISTANT DIRECTOR LEGAL SERVICES
The Court notes that the Public Service Commission recommended consultation with staff and that Clause 46 of the Government Officers Salaries Allowances and Conditions Award 1989 requires such consultation and that the Director took advice from the “consultant” on communication. Nevertheless, there was no real consultation with the applicant. The Director met him about 4 pm on 22 September and told him that she was “taking a draft restructure to the executive the following (sic) and that the effect of the restructure was that the position of Assistant Director would be abolished.”
There is no doubt from the Director’s evidence at the hearing that she had already made up her mind by August or earlier that the applicant’s position was to be abolished and as quickly as possible. The “draft” restructure was not put to the Executive as a draft for possible amendment, endorsement or rejection but as a fait accomplis. Nevertheless, the Deputy Director, Robert Lindsay and the applicant voiced their dissent to the action not only proposed but actually determined.
On 28 September the Director met the applicant. This appears to have been a brief and tense meeting. The Director deposes that she was hoping to discuss options “and how he (the applicant) would wind up his files etc”. The Director states the only words he (the applicant) could say were “put it in writing”.
The applicant deposes that the Director:
“wanted to agree a termination date effectively giving me two weeks notice. I informed her that once I received a letter from her outlining the position I would act in accordance with legal advice. In the meantime it was agreed that I would retain the use of my car, my secretary and office until such time as the matter was resolved.”
On 4 October 1994 the Director wrote to the applicant as follows:
“Dear Mr Armitage
EMPLOYMENT
As you are aware, the position of Assistant Director, Legal Services Division has been abolished with effect from 3 October 1994. Allowing for finalisation and handover requirements, you will not have a position with Legal Aid after 12 October 1994.
In light of the above, the following options are available to you:
You can apply for re-appointment to the Australian Public Service under the conditions of the Public Service Act and subsequent amendments. (I attach a copy of the relevant provisions for your information).
Please note that you are deemed to be covered under the second tier provisions.
If you wish to take up this option please let me know as a matter of urgency as there are certain procedures which you will have to follow in order to make the application for reappointment.
Accept severance in accordance with the Public Sector Management (Redeployment and Redundancy) Regulations 1994.
Seek registration for redeployment in accordance with the Public Sector Management (Redeployment and Redundancy) Regulations 1994.
Please let me know which option you wish to take by close of business 10 October 1994, so that I can put the necessary steps in place. Should I not hear from you by that date, I will have no option but to put option 3 into effect.
I confirm that you will have the use of the Commission car, your office, and secretarial support until 12 October 1994. Once I know what option you will be taking I shall advise you on this further.
Yours sincerely
Carol Bahemia
Director of Legal Aid”
THE APPLICANT’S RESPONSE TO ABOLITION OF OFFICE
On 7 October 1994 the applicant’s solicitors wrote to the Director and
(1) described her letter of 4 October as confirmation of a decision communicated orally to the applicant on 22 September 1994 and then to Legal Aid staff generally in a widely circulated minute dated 26 September 1994
(2)advised that the applicant did “not accept the appropriateness or the validity of (the) purported decision”
(3)categorised any attempt to implement the decision to abolish the position of Assistant Director, Legal Services as a contravention of Clause 47 of the Government Officers Salaries, Allowances and Conditions Award 1989
(4) informed the Civil Service Association of Western Australia Inc (the applicant’s union) and the Chairman of the Legal Aid Commission of Western Australia.
The Director never replied to the letter of 7 October but on 12 October she wrote to the applicant and advised him that she had been in contact with the Office of Mobility and was seeking to register the applicant with that office as a redeployee. The Director confirmed that the applicant’s duties as Assistant Director, Legal Services had ceased and that she would endeavour to find him suitable projects until such time as he was redeployed. The Director also advised the applicant that while he could remain in his current office until further notice the secretary assigned to him as Assistant Director Legal Services was to be reassigned to other duties and that the car assigned to him was to be reallocated elsewhere.
The letter of 12 October was delivered to the applicant on 13 October after the Director had concluded a meeting with representatives of the Civil Service Association of W.A. Inc.
On 18 October 1994 the applicant, his legal advisers and a union representative met the Chairman of the Legal Aid Commission and the Director of the Legal Aid Commission but nothing emerged from this meeting other than a confirmation from the Chairman that the restructure already implemented by the Director was supported by the Commission. Indeed, later that day at a meeting of the Commission motion 3069 was carried and reads as follows:
“The Commission notes and endorses the management structure introduced on 3 October 1994.”
The minutes indicate the Chairman and the Director reported on the meeting earlier that day with the applicant and his advisers. The relevant minute concludes as follows:
“With respect to Jeremy Armitage, the various available options were discussed.”
On 2 November 1994 the applicant and his legal and union advisers met the Chairman and the Director again. An offer was made on behalf of the applicant to accept the restructure and the abolition of the position of Acting Director, Legal Services on the condition that the applicant was redeployed or appointed to position of Manager, Community Resources Unit with the applicant to maintain existing salary and conditions. It seems that while this would have resulted in the applicant being paid about $2,000 more a year than the salary applicable for the position of Manager, Community Resources Unit, it would have amounted to a saving for the Commission of about $15,000 because the Commonwealth had agreed to continue a long existing payment of $17,500 annually to the Commission in recognition of the applicant’s on-going contribution to the work of the Child Support Unit of the Commonwealth Office of Legal Aid and Family Services.
The Commission rejected the offer at a special meeting on 8 November 1994. The minutes of the special meeting conclude as follows:
“The Director is to continue on the current course of action and advertise all positions for filling as soon as possible. Mr Armitage is free to apply for a position. The Chairman will advise Mr Armitage’s solicitors of the Commission meeting and the decision not to accept the proposal. He will advise that Mr Armitage is eligible to apply for the positions when they are advertised or to be redeployed within the State Public Service.”
REDEPLOYMENT MOOTED BUT NO ACTION TAKEN
On 7 November, the day before the special Commission meeting, the Director of Legal Aid wrote to David Grant, Director General, Ministry of Justice as follows:
“Dear David
I refer to our recent conversation and confirm that my Mr Jeremy Armitage, a legally qualified Class 2 officer, has recently been placed on the redeployment list.
His background would make him particularly valuable in assisting your office in the development and implementation of the Community Justice Centre strategy. I confirm he is available for an immediate secondment. Perhaps the best option at this stage is for the secondment to be for a 4 week period on the basis that Legal Aid Western Australia continues to meet his salary.
Yours sincerely
CAROL BAHEMIA
DIRECTOR OF LEGAL AID”
The Court notes that, despite the statement that the applicant had “recently been placed on the redeployment list”, there is no evidence that he had ever been registered for redeployment pursuant to Regulation 11 of the Public Sector Management (Redeployment and Redundancy) Regulations 1994.
On 28 November the Director sent copies of this letter to the members of the Commission. In an attached memorandum she stated, referring to the letter of 7 November:
“The following is a copy of correspondence which was circulated to you at our last meeting. We did not have an opportunity to discuss it.”
The Court notes from the minutes of the special meeting of the Commission on 8 November that the Commission had been scheduled to meet on 15 November and assumes that that was the meeting at which the letter of 7 November had been circulated but had not been discussed.
TRANSFER REJECTED
On 15 November 1994 the solicitors for the applicant wrote to the Director. This letter categorises the rejection of the proposal to transfer the applicant to the position of Manager of the Community Resources Unit as a decision of the Director rather than a decision of the Commission. The Court has concluded that while the Director was no doubt calling the shots the Commission endorsed the decision to refuse a transfer of the applicant to this new position.
The letter indicates that the applicant was prepared to consider an appropriate senior permanent position in the Ministry of Justice but was not prepared to consider a one month secondment to the Ministry until “other options in the Commission are properly explored”. The letter also indicated that the applicant was prepared to give serious consideration to other appropriate options within the Commission including redeployment as a solicitor in the Civil Law Section with no loss of salary and other salary entitlements.
THE APPLICANT’S POSITION OCTOBER 1994 TO FEBRUARY 1995
The position of Assistant Director, Legal Services was abolished probably on 3 October 1994 and certainly by 18 October when the Commission endorsed the restructure of 3 October.
From October 1994 to the hearing in February 1995 the applicant has continued to attend at the Perth headquarters of the Commission and to the extent that work is available for him he does it from the desk and the room he occupied when Assistant Director, Legal Services.
In her letter of 12 October 1995 the Director advised the applicant that she would endeavour to find him suitable projects until such time as he was redeployed. The inference then, and at the hearing in February 1995, was that redeployment will occur and will be to some position outside the Commission in a Western Australian Government Department or instrumentality. However it is also clear that as at 7 February 1995 no formal steps had been taken to put the redeployment process into effect and that the applicant has been in a sort of limbo since October 1994. He seems to have been given one minor project which occupied him for a few days and one other project of more substance which required several weeks work.
THE RESPONDENT’S SUBMISSION - NO TERMINATION, NO REMEDY
The respondent concedes that the position of Assistant Director, Legal Services has been abolished.
For the purposes of this determination the Court assumes that the abolition of the office was an act of the employer, the Legal Aid Commission of Western Australia. To the extent that the abolition of the office was an act of the Director of Legal Aid, the Court assumes it was an action taken on behalf of the Commission and was authorised by the Commission even if the authorisation took place after the event.
Section 20(2) of the Legal Aid Commission Act 1976 empowers the Commission to employ staff.
Section 20(1) provides that the Commission may classify the positions to be held by staff and define duties to be performed.
Section 21 provides that subject to any relevant award under the Industrial Relations Act 1979, the terms and conditions of members of the staff are such terms and conditions as the Commission, after consultation with the Public Service Board, determines.
Section 19 provides that the Director shall, subject to the Commission, administer the scheme of legal assistance, provide legal services to assisted persons, arrange and supervise the provision of such services by practitioners who are members of the staff and do all things that are necessary or convenient to be done for or in connection with the performance of their functions.
The respondent’s position is straightforward. Mr Hooker put that position as follows.
“The abolition of the office of Assistant Director, Legal Services, did not end the applicant’s employment relationship or his contract of employment.
There has been no termination of the employment of the applicant.
The Director of Legal Aid has sought to apply the Public Sector Management (Redeployment and Redundancy) Regulations 1994. There has been no breach of the contract of employment. Even if there has been a breach of the employment contract there has been no termination of employment. Even if there has been a breach of the Government Officers Salaries Allowances and Conditions Award 1989, (which is denied), such a breach does not give rise to a termination of employment let alone a termination at the initiative of the employer.”
Mr Hooker cited a number of cases in support of the proposition that there was no breach of the contract of employment and no termination of employment occasioned by a failure to provide and continue to provide work of a particular nature. The cases cited included:
1.Mann v Capital Territory Health Commission [1982] 2 IR 29
2.Turner v Sawdon & Co [1901] 2 KB 653
3.Collier v Sunday Referee Publishing Co Ltd [1940] 2 KB 647
4.Hughes v Western Australian Cricket Association [1986] 19 FCR 10
5.Slonim v Fellows [1984] 154 CLR 505
THE APPLICANT’S SUBMISSION - ABOLITION OF OFFICE IN THIS CASE CONSTITUTES AN UNLAWFUL TERMINATION OF EMPLOYMENT
Mr Le Miere argues that the cases cited by Mr Hooker deal with whether or not a term is to be implied into a contract of employment that the employer will provide the employee with work of a certain quantity and standard. He makes the point that at the end of the day it is a question of fact as to whether or not a term is to be implied into a contract. He seems to rely more on cases in England and Australia which indicate that a change of duties, even by consent, will often be correctly categorised in law as the termination of an existing contract and the commencement of a new one and not simply a variation of the terms of an existing contract. For that proposition he relies on cases cited in Macken, McCarry and Sappideen, The Law of Employment (3rd edition) 186-189 and on recent cases in this Court which deal with the employment relationship and the contract of employment.
Mr Le Miere referred in particular to:
Perks v Willet [1974] 22 FLR 274
Australian Journalists Association v Wright Prospecting [1980] 60 WAIG 2291
Transport Workers Union v Mount Newman Mining Company [1989] 60 WAIG 1036
Marriott v Oxford and District Co-Op Society Limited (No 2) [1969] 3 WLR 984
Siagian v Sanel Pty Ltd [1994] 122 ALR 333
Association of Professional Engineers, Scientists and Managers Australia (A.P.E.S.M.A.) v Skilled Engineering Pty Ltd; and Others [1994] 122 ALR 471
In Perks v Willert the claimant in proceedings before the Australian Industrial Court had been employed to manage a butcher’s shop for the respondent and was so employed for a fortnight. At the expiration of this period the claimant was told, on 48 hours notice, that he would cease to manage the shop but would be transferred to another shop where he would be employed in a position other than that of manager.
The Court held that the employment of the claimant as manager was terminated by his employer without the claimant’s consent and Smithers J held that an employee engaged to serve in a particular classification under the award is employed in that classification and any attempt to engage him for some other classification is a termination of the first mentioned particular employment.
Perks v Willert is not strictly speaking a case of unjust dismissal or unlawful termination but a claim for payment of wages in lieu of notice and for penalties sought and imposed for breach of award. It would be unwise to extract too much from a case in which all three judges expressed concern because the defendant was not represented and did not appear at the hearing and as Joske J said:
“We have not had a full argument on this matter from both sides”
I do not find the case of any assistance in determining whether the abolition of a particular office has ended the employment of a lawyer who has worked for twenty years as a public servant, the last 16 in the Legal Aid Commission of Western Australia.
The A.J.A. case in Perth in 1980 was another breach of award with a claim for payment in lieu of notice. The Industrial Magistrate held that the downgrading of a journalist was in effect a termination of services for the particular grade concerned and he considered an employee in those circumstances was entitled to the benefit of notice of termination.
Here, we are not dealing with a downgrading in the sense of diminution of salary although the applicant has in practical terms been downgraded in status, in terms of worthwhile employment and in terms of access to a car, secretarial services and staff reporting to him. Nevertheless, I do not find the A.J.A. case of particular assistance in determining whether Mr Armitage has had his employment terminated. The finding in A.J.A. was one of termination of services in a particular grade as a journalist. This is quite different to a possible termination of employment of a career public servant.
Mount Newman Mining was an unsuccessful appeal to the full bench of the Western Australian Industrial Relations Commission against a Commissioner’s decision that applicant unions had failed to discharge the onus to show that a transfer (or dismissal) of an ore truck driver from driving to non-driving duties because of negligent driving was, in the circumstances, unfair. The case was cited as an example of a finding that the offer of an alternative position (in that case several offers) was “a purported termination of his contract and the offer of a new one in a different occupation”. The circumstances there may have amounted to a purported termination of contract but the case is not of assistance in the circumstances here of a senior public servant who as at 7 February 1995 was still being paid the same remuneration he had received in a position now abolished.
In terms of termination allegedly flowing from a change of duties, the applicant perhaps places more reliance on Marriott and on the Australian cases which take a similar approach. Marriott involved a change of duties with reluctant consent for a short time. Marriott was employed as a foreman by the respondents for seven years. They then found they had not enough work for him and his position became redundant. They offered him a position of supervisor at a reduced wage. He protested and tried to obtain work elsewhere. The respondents informed Marriott in writing that his wages would be reduced. Again he protested but did not leave at once. His wages were reduced and some three or four weeks later he left for another job. The Court of Appeal held that the contract had been terminated even though Marriott continued to work for the respondents on the other duties. It was said to be clear from the circumstances, including Marriott’s protests, that he had not accepted the changed terms, even though he had continued to work for the respondents for some weeks while he found another job.
Macken, McCarry and Sappideen at 187 cite several Australian cases which take a similar approach and at 188 the learned authors state:
“Unless the initial contract allows it we suggest that an agreed change of job or a regrading would almost always amount to a termination of the existing contract and the commencement of a new one by consent. In the absence of a contract allowing it, the employer cannot force changes on an employee. An attempt to do so will involve the employer in a breach of contract.”
PUBLIC EMPLOYMENT AND THE PUBLIC SECTOR MANAGEMENT LEGISLATION
The Court notes that neither Marriott nor any of the Australian cases cited in Macken involve public employment. Mr Le Miere has conceded that a change of duties will not always result in a termination of employment and it is important to consider the nature of the contract of employment and the employment relationship in this case, a case of a lawyer who has worked in a series of professional positions first with the Commonwealth Government and then for 16 years in the Legal Aid Commission of Western Australia.
Part 6 of the Public Service Management Act 1994 and the Public Sector Management (Redeployment and Redundancy) Regulations 1994 do not apply to terminations of employment. Regulation 4 excludes from eligibility for redeployment or voluntary severance an employee -
(a)who retires or is retired from his or her employment on the grounds of ill health
(b)whose employment in the public sector is terminated because of misconduct or substandard or unsatisfactory performance
(c)who is dismissed for disciplinary reasons under Division 3 of Part 5 of the Act
(d)whose employment ceases on the expiry of the term of his or her contract of employment
The whole structure of the Redeployment and Redundancy Regulations is predicated on the basis that an employee whose office, post or position in a department or organisation is abolished remains an employee.
Regulation 6 clearly contemplates and assumes (and I think correctly) that the abolition of the office, post or position does not lead to a termination of employment or an ending either of the contract of employment or the employment relationship.
The whole scheme contemplates redeployment, a continuation of employment by transfer within the department or organisation (Regulation 5), by transfer to another department or organisation (Regulation 7), or by the direction of the Minister where the Minister is satisfied suitable employment has been offered and refused or redeployment has been hindered or obstructed (Regulation 13).
Voluntary severance under the Regulations requires an employee to resign in writing (Regulations 15, 16 and 17). The scheme is clearly one which proceeds on the basis that an abolition of office does not lead to termination of employment or to the ending of the employment relationship.
It is not clear what is to happen if a suitable office or position is not located. Unlike the Victorian Public Service Management legislation there does not appear to be a power to terminate in such circumstances. In Victoria, if a suitable position is not located, the Chief Executive Officer of the department or organisation can terminate the employment of an officer who is surplus to requirement and must in those circumstances provide a targeted separation payment calculated as set out in the legislation.
In Western Australia the regulations contemplate voluntary severance by written resignation but there is no provision for involuntary separation by termination.
FINDINGS
I have concluded that within the Western Australian scheme the applicant is still an employee of the Legal Aid Commission of Western Australia and will remain an employee of the Commission until and unless he has transferred to another department or organisation or resigns in writing or retires or is retired or is terminated because of misconduct or substandard or unsatisfactory performance or is dismissed for disciplinary reasons under Division 3 of Part 5 of the Public Sector Management Act.
If a suitable position is found for the applicant in another department or organisation and he willingly accepts transfer, or transfer is achieved by Ministerial direction, a question could arise as to whether such transfer constitutes a termination of his employment such as would open up the possibility of another application for remedy under Section 170EA of the Industrial Relations Act 1988 for unlawful termination of employment. The Court cannot deal with that hypothetical situation but my view is that such a transfer or redeployment would not constitute a termination at the initiative of the employer and would not invoke the jurisdiction of Division 3 of Part VIA of the Industrial Relations Act 1988.
In my view, the applicant entered into a contract of employment with the Legal Aid Commission of Western Australia when he elected to transfer to the Australian Legal Aid Office in 1978. Because of the special features of employment in Commonwealth and State Departments and instrumentalities, the contract of employment has continued while the applicant has worked in various positions in the Commission.
It is not necessary for me to deal with the possibility that there might exist in this case an employment relationship separate from the contract of employment. The Chief Justice of this Court made a distinction between the contract of employment and the employment relationship in Siagian v Sanel Pty Ltd [1994] 122 ALR 333. On the other hand, and also recently, Gray J has held such a distinction no longer exists if it ever existed - see Apesma v Skilled Engineering Pty Ltd and Others [1994] 122 ALR 471. It is sufficient for me to find that if there is such a relationship separate and distinguishable from the contract of employment, the relationship has continued while the applicant has worked in various positions in the Legal Aid Commission of Western Australia. It also follows from my findings that in this case the result is the same and there has been no termination of employment irrespective of whether reliance is placed on the analysis of Gray J in Apesma or Wilcox CJ in Siagian. The employer has not done an act terminating or purporting to terminate the employment (Apesma) and has not acted in such a way as to terminate the employment relationship (Siagian).
Having found no termination of employment in this case at the initiative of the employer this application must be dismissed.
In my view the applicant has been treated harshly. He was never consulted in the manner I believe the Public Service Commission of Western Australia requires or at the very least recommends. He was never consulted in the manner required by Clause 49 of the Government Officers Salaries Allowances and Conditions Award 1989.
Despite the written statement of the Director of the Legal Aid Commission that Mr Armitage has made: “a very valuable contribution to the work of Legal Aid Western Australia .... and .... has been instrumental in pioneering a number of exciting and innovative strategies that have served as a model throughout the Legal Aid community” one cannot but conclude that there is more to the abolition of the office of Assistant Director Legal Services than meets the eye.
It is also difficult to resist the conclusion that for reasons which have not been revealed a satisfactory working relationship between the Director and the former Assistant Director Legal Services was either never established or deteriorated before the former wrote to the Director of the Australian Office of Legal Aid and Family Services on 11 August 1994 (Exhibit A10) spelling out her plans to abolish the applicant’s office by 1 September 1994. Of course, despite such suspicions, the Court cannot reach such a conclusion. There is no hard evidence on which to base that supposition. In any event, it is not a supposition which is relevant to these proceedings. I will say that if Mr Armitage has made the contribution attributed to him by the Director of the Legal Aid Commission of Western Australia I cannot see why the Commission continues to decline to appoint him to the position of Director of the Community Services Unit or to some other suitable position.
ORDER
The application under Section 170EA of the Industrial Relations Act 1988 is dismissed.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 17 March 1995
Appearances:
Counsel for the Applicant : Mr Le Miere Q.C. and Mr Drake-Brockman
Solicitor for the Applicant : Dwyer Durack
Counsel for the Respondent : Mr Hooker
Solicitor for the Respondent : Peter Apostolos Panegyres, Crown Solicitor
for the State of Western Australia
Date of Hearing : 6 and 7 February 1995 (Perth)
Judgment : 17 March 1995 (Melbourne)
0
0
0