Lindquist v Redland City Council - [2018] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Lindquist v Redland City Council [2018] QIRC 141
PARTIES:	Lindquist, Stephanie (Applicant) v Redland City Council (Respondent)
CASE NO:	TD/2018/4
PROCEEDING:	Application for Reinstatement
DELIVERED ON:	21 November 2018
HEARING DATES:	2 July 2018
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Black
ORDER:	Application dismissed
CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - jurisdiction - applicant engaged on a series of fixed term contracts - whether employment ended by the effluxion of time or at the initiative of the employer.
CASES:	Industrial Relations Act 1999, s 35 Industrial Relations Act 2016, s 315, s 317 D’Lima v Board of Management Princess Margaret Hospital for Children (1995) 64 IR 19 Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 Dale v Hatch Pty Ltd [2016] FWCFB 922 Anderson v Umbakumba Community Council (1994) 126 ALR 121
APPEARANCES:	Ms S Lindquist, self-represented. Mr S Blaney, for the Redland City Council.

Reasons for Decision

Introduction

Ms Stephanie Lindquist (the applicant) has applied pursuant to s 317 of the Industrial Relations Act 2016 (the IR Act) for reinstatement in employment with the Redland City Council. The applicant had been employed by the Council on a series of fixed term contracts between 19 November 2012 and 31 December 2017.

The respondent has submitted however that Ms Lindquist does not have an unfair dismissal remedy in circumstances where her employment was for a fixed period and has ended by the effluxion of time.

Facts and Circumstances

Applicant's employment arrangements

The applicant commenced employment with the respondent on 19 November 2012. She was employed under a fixed term contract with an end date of 22 November 2013. The applicant's first letter of employment (Exhibit 1) discloses that:
·The applicant was appointed for a limited term pursuant to s 35 of the Industrial Relations Act 1999;
·The applicant was appointed to the position of Director – Redland Art Gallery (CUL012);

·The commencement date of the contract was 19 November 2012 and the end date of the contract was 22 November 2013;

·The appointment was for the purpose of replacing an employee on maternity leave;

·That should the employee on maternity leave return earlier than 22 November 2013, the applicant would be given one months' notice of termination;

·The employment may cease in accordance with the notice of termination provisions specified in the Redland City Council Officers' Certified Agreement No. 1 2009 (the 2009 certified agreement);

·The applicant's employment was subject to the certified agreement, the Local Government Act 2009, the relevant award, and the code of conduct; and

·The applicant was required to perform all aspects of the position as referred to in an attached position description for the position of Director – Redland Art Gallery (Exhibit 2).

Section 35 of the Industrial Relations Act 1999 related to parental leave and provided:
(1) The employer must, before a replacement employee starts employment, give the replacement employee a written notice informing the replacement employee of—
(a) the temporary nature of the employment; and
(b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QIRC 141
Decision Date: 21 November 2018

CaseChat Overview and Summary

The matter of Lindquist v Redland City Council involved an application for reinstatement, with the applicant asserting that her employment had been unfairly terminated. The respondent, Redland City Council, argued that the employment had ended due to the natural expiration of the fixed term contracts. The case was heard in the Queensland Industrial Relations Commission. The central legal issue was whether the applicant's employment had ended due to the natural expiration of the fixed term contracts or if it was terminated at the Council's initiative. This determination was crucial in assessing whether the applicant was entitled to reinstatement under the Industrial Relations Act.

The court examined the nature of the contracts and whether they were entered into primarily to avoid the unfair dismissal provisions of the Industrial Relations Act. The evidence indicated that the contracts were for specific periods, each with a defined start and end date, and the applicant had accepted these terms in writing. The Council argued that the fixed term contracts were not an avoidance tactic but rather responses to specific circumstances, such as the return of another employee from maternity leave. The court found that there was no evidence to suggest that the Council was motivated by a desire to circumvent the unfair dismissal provisions. Therefore, the contracts were not void, and the applicant's employment ended with the expiration of the last fixed term contract.

Based on the evidence and the applicable legal principles, the court concluded that the applicant's employment had ended due to the natural expiration of the fixed term contracts and not by any initiative from the Council. Consequently, the application for reinstatement was dismissed, and no orders were made in favour of the applicant.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no material before me contradicting an expectation that Ms Bain would return to full time employment in early 2018, and the evidence established that Ms Bain did return to full time employment in January 2018. Evidence Evidence in support of the application was given by the applicant. The applicant's affidavits are in the evidence as Exhibits 1 and 2. The witnesses for the Council were:·Mr Zane Trow (Creative Arts Manager – Redland City Council); and Pursuant to s 315(1)(d) of the IR Act, an employee is excluded from the unfair dismissal provisions of the IR Act if the employee is engaged for a specific period, unless the main purpose of the specific period engagement was to avoid the employer's obligation in terms of unfair dismissals. The evidence does not support a finding that the respondent was motivated, in entering into the fixed term contracts, by a desire to avoid the unfair dismissal provisions of the IR Act. The applicant was engaged under at least two separate and distinct contracts of employment. The first contract (CUL012) was made pursuant to s 35 of the Industrial Relations Act 1999 and was specifically brought about by the absence from work on maternity leave of Ms Emma Bain. The contract covered the period 19 November 2012 to 9 October 2014. The second contract was made on 8 October 2014 (Position no. CUL106) for a term of one year. This contract was for a part-time position for three days a week which the applicant accepted in her outline of evidence (Exhibit 44) involved a job sharing arrangement with Ms Bain who had returned to work on 9 October 2014 for two days per week. This contract was extended on 8 October 2015 to 7 October 2016. The last contract extension entered into in October 2016 was a fixed term contract ending on 31 December 2017. In the case of both the 2012 and 2014 contracts and in the case of the contract extensions in 2013, 2015 and 2016, the applicant was informed in writing of the terms of the proposed employment arrangement. In every case the offer made clear that the employment was for a fixed term, and specified a start date and an end date for the term. In every instance, where correspondence was entered into between the respondent and the applicant relating to her contract of employment, the correspondence included a signed acceptance by the applicant of the terms set out. The acceptance was expressed in the following form:I am pleased to accept the position of Director – Redland Art Gallery (CUL012) on the above terms and I acknowledge that my employment is subject to the terms and conditions as set out in the Redland City Council Officers' Certified Agreement No. 1 2009, the Local Government Act 2009 along with the relevant industrial Award and Council's Code of Conduct and Polices as amended from time to time. The only variation to the terms of the acceptance given over time involved the inclusion of the current version of the certified agreement and the inclusion of a different position number once the applicant had commenced sharing the Director-Redland Art Gallery position with Ms Bain and a duplicate part time position was created (CUL106).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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