John Ferry v Minister for Health

[1995] IRCA 201

C A T C H W O R D S

INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - worker employed on temporary basis under contract - series of contracts - award - whether termination at initiative of the employer - whether jurisdication.

INDUSTRIAL RELATIONS ACT 1988, SS 170CC
INDUSTRIAL RELATIONS COURT REGULATIONS, Reg 30B(1)(b)

Siagian Pty Ltd v Sanel Pty Ltd (1994) 122 ALR 339

APESMA v Skilled Engineering Pty Ltd (1994) 122 ALR 471

Grout v Gunnedah Shire Council (1994) 125 ALR 355

Public Service Appeal Board ex parte Public Service Commissioner No. 1728 (1993)

R v Social Services Secretary ex parte Khan (1973) 1 WLR 187

ALHMWU v Royal Perth Hospital 74 WA1G 1978

Sir Charles Gairdner Hospital v ALHMWU 74 WA1G 2319

Public Service Appeal Board v Public Service Commissioner (1994) A1LR 331

Civil Service Association of WA Inc v Public Service Commission (1993) 73 WA1G 1845

Pacific Waste Management Pty Ltd v Satey (1993) 51 1R 339

Stephens v Nowra Bomaderri Meals on Wheels Services Inc (1994) A1LR 251

JOHN FERRY v MINISTER FOR HEALTH - WI 94/641 of 1995

Judicial Registrar:     RYAN JR
Place:                Perth
Date:                 26 April 1995

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA            )
WESTERN AUSTRALIA             )
DISTRICT REGISTRY             )  No. WI 94/641

BETWEEN  JOHN FERRY
  -    Applicant

MINISTER FOR HEALTH
  -    Respondent

MINUTE OF ORDERS

JUDICIAL REGISTRAR:   RYAN JR

PLACE:              PERTH

DATE:               26 APRIL 1995

THE COURT ORDERS THAT:

1. The application is dismissed.

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

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA            )
WESTERN AUSTRALIA             )
DISTRICT REGISTRAR            )   No. WI 94/641

BETWEEN         JOHN FERRY
  -    Applicant

MINISTER FOR HEALTH
  -    Respondent

BEFORE:   RYAN JR

PLACE:    PERTH

DATE:     26 APRIL 1995

EX TEMPORE REASONS FOR DECISION

The Australian Liquor, Hospitality and Miscellaneous Workers Union has lodged an application for remedy for unlawful termination of employment on behalf of the applicant John Ferry.

The applicant worked at Heathcote Hospital for sixteen specific periods from 8 January 1993 to 18 November 1994.  He did not work at the hospital for 5 months from 17 February 1993 to 1 July 1993 or for 2 months from 8 October 1993 to 8 December 1993, or for 1 month from 26 February 1994 to 28 March 1994.

Apart from those breaks he worked on a reasonably regular temporary basis as an orderly or ward assistant and occasionally as a linen room attendant for sixteen specific periods, and each period constituted a separate contract of employment.  Some periods were worked at the main campus hospital and some at Moss Street.  For fourteen of these periods the applicant signed separate contract of employment all of which specified the periods and dates of employment.  In thirteen of the fourteen written contracts of employment the final paragraph of the contract reads as follows:

The employee understands and accepts that upon expiry of this contract, or any further temporary contract, entered into by the parties, the employee has no guarantee of appointment to a permanent position within the hospital.

The court is satisfied, from the applicant's own evidence, that he understood this clause and willingly signed the contracts and accepted the terms of each of the contracts.  The fourteenth and last written contract, was for the period 28 August to 8 November 1994, which was the second last period of employment by the applicant at the hosptial.  His contract, like all its predecessors, was stated in the contract to be in accordance with the terms and provisions of the Hospital Workers (Government) Award.  This is a State award.  The consolidated award is published in 73 WAIG at 2240 and was exhibit A1.  Paragraph 4 of the fourteenth and last written contract reads as follows:

As detailed above, your period of employment with the hospital will terminate with effect from 8 November 1994.

The applicant signed this contract on 14 September 1994 and added in his own handwriting the following clause:

I accept this offer of employment on the basis that it will not prejudice my claim for permanent employment under the redeployment general order.

The reference was clearly a reference to, and was accepted by the respondent as a reference to, order number 1059 of 1993 Western Australian Government Employees Redeployment Retraining and Redundancy General Order 74 WAIG 552, which was exhibit A2.

There were two periods when the applicant worked at Heathcote Hospital but did not sign contracts.  Nevertheless, both periods constituted temporary employment under contract of employment.  The applicant gave evidence that he willingly worked at the hospital during both periods and was paid to do so and understood on each occasion that the employment was for a finite period.

The first of these periods was the third-last period of employment with the hospital.  The contract covered the period 1 July 1994 to 24 August 1994.  The applicant was provided with a written contract but he did not sign the contract or return it to the hospital.  Nevertheless, he willingly worked for that period and was paid to do so.  The final period of employment was from 8 November 1994 to the closure of the hospital on 18 November 1994, and that was not a written contract of employment.  Again, however, the applicant willingly worked for this period and was paid to do so and he gave clear evidence that he understood that this last period of employment, commencing 8 November 1994, was to be of short duration and was to conclude with the closure of the hosptial.  This period of employment, the final period of employment, ended eleven days later on 18 November.

The last contract of employment was a contract for a specified term in that it was a contract to work from 8 November until the closure of the hospital.  The precise date on which the hospital was to close was not specified but it was known that the closure was imminent.  The applicant knew that this was a very short term contract.  He knew and confirmed on oath that he knew that his final term of employment from 8 November would only be to the closure of the hospital.

While this was an oral contract to work until the occurrence of a specified event, the closure of the hospital, it was not a contract for a specified period of time excluded by section 170CC and regulation 30B(1)(a), because the ending of the contract was determined by a specific event and the date of that event was not specified. This final contract may have been excluded from the requirements for termination of employment and from the jurisdiction of this court, under regulation 30B(1)(b), in that the applicant may have been an employee engaged under a contract of employment for a specified task, the specified task being to work as an orderly for a short period until the closure of the hospital.

However, counsel for the respondent never asserted that the final short term contract was excluded under regulation 30B(1)(b), and with an oral contract and a lack of evidence, that it was for a specified task, I would not and do not find that the contract was excluded under regulation 30B(1)(b).

However, I do find that this was not a termination of employment at the initiative of the employer, such as would attract the jurisdiction of this court under a Division 3 Part VIA of the Industrial Relations Act 1988: see Siagian Pty Limited v Sanel Pty Limited (1994) 122 LR 339, at 371, which is authority for the proposition that to attract jurisdiction to Division 3 Part VIA, the employment relationship must be ended by the employer.  APESMA and Skilled Engineering Pty Limited (1994) 122 ALR 471 at 482 is authority for the proposition that termination refers to what is done by an employer attempting to bring about the end of the employment and that the legislative intention is to permit applications under Division 3, if an employer has done some act terminating or purporting to terminate the employment. Both Siagian and APESMA have been followed in numerous decisions of this court, including by Moore J in Grout v Gunnedah Shire Council (1994) 125 ALR 355 at 372.

Counsel for the applicant cited Grout in support of the proposition that Division 3 constitutes beneficial legislation which should be construed liberally.  The court certainly does not dissent from that proposition.  However, no interpretation, be it ever so liberal, can create jurisdication where it does not exist.  If termination of employment is brought about by a particular event and the parties willingly enter a contract of employment which provides for the contract to be terminated on the occurrence of that event, and both parties acknowledge that this was intended and understood, that is not a termination at the initiative of the employer, it is a termination by agreement between consenting parties to the agreement. 

Counsel for the respondent cited Western Australian authorities dealing with similar issues. 

The Full Court of the Supreme Court dealt with dismissal from employment and appeals against decisions, determinations or recommendations by an employer that an employee be dismissed pursuant to section 80I(1)(e) of the Western Australian Industrial Relations Act in the Metaxas case:  Public Service Appeal Board ex parte Public Service Commissioner No 1728 (1993) 24 May 1994 at page 8.  In this unreported decision Rowland J, with Franklin J concurring, stated:

The verb "dismiss" can be used transitively or intransitively; it is used in 80I(1)(e), in my view as a transitive verb.  In the terms of section 80I(1)(e) a decision, determination or recommendation must be a positive act by the employer.

See R v Social Services Secretary ex parte Khan (1973) 1 WLR 187 per Buckley LJ AT 191 and also see Lord Denning at 189 to 190.

Metaxas was followed by the Full Bench of the Western Australian Industrial Relations Commission in ALHMWU v Royal Perth Hospital 74 WAIG 1878 at 1879, and Sir Charles Gairdner Hospital v ALHMWU 74 WAIG 2319 at 2320.  Both cases, like this case, involved a series of short term sequential contracts, each for a finite period. 

In Sir Charles Gairdner Hospital, the Acting President of the Commission at 2330 states:

It constituted a contract of employment for a finite term, which employment came to an end with the expiry of that term, as indeed was expressly and unequivocally indicated to be the case by the contract itself.  In the circumstances Ms Fox was not dismissed from her employment rather it (sic) was terminated by agreement through the effluxion of time.  The decided cases make it abundantly clear that such a method of termination does not constitute a dismissal from employment in the ordinarily accepted sense.

In my view, although the facts are not identical, the principles outlined in Public Service Appeal Board v Public Service Commissioner (1994) AILR 331 and in the Civil Service Association of Western Australia Incorporated v Public Service Commission (1993) 73 WAIG 1845, which are consistent with the decided authorities in other states, lead inextricably to the conclusion that Ms Fox cannot be said to have been dismissed from her employment.  See too Pacific Waste Management Pty Limited v Saley (1993) 51 IR 339.  See also Stephens v Nowra Bomaderri Meals On Wheels Service Incorporated (1994) AILR 251.

Since it cannot be said that Ms Fox was dismissed from her employment it follows that it cannot be said that she was unfairly dismissed therefrom.

Given the conclusion I have reached, it is not necessary for me to deal with any possible breach of the hospital Workers (Government) Award or with unfairness which might emerge from such a breach or with the prohibition of contracting out under section 114 of the Western Australian Industrial Relations Act 1979.

It is also not necessary or indeed within the jurisdiction of this court to deal with the general redundancy order cited earlier and tendered as exhibit A2, and with the Western Australian Government ALHMWU  Redeployment, Retraining and Redundancy Interim Award 1994, WO189 AS print L6335, tendered as exhibit A3.  Any actual or contemplated applications in respect of the State award, section 114, the interim federal award or the general order are for other forums in other places.  I would, however, agree in respect of the last two issues (the general order and federal interim award) with the comments and qualifications of the Acting President of the Commission in both the Sir Charles Gairdner and the Royal Perth Hospital cases.

The order of the court is as follows:

(1)the application under section 170EA lacks jurisdiction and is dismissed.

I certify that this and the preceding 11 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate:

Date:

Counsel for the Applicant:       Mr D Kelly
Representative for the Applicant:   Australian Liquor,
  Hospitality &
  Miscellaneous
  Workers Union

Counsel for the Respondent:      Mr R Hooker
Solicitors for the Respondent:     Australian
  Government
  Solicitor

Date of Hearing:   26 April 1995

Date of Judgment:  26 April 1995