Mary Caroline Smith and Kelinda

[1995] IRCA 272

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

NO. QI 276 /94

BETWEEN:
  MARY CAROLINE SMITH

Applicant

AND:
  KELINDA PTY. LTD.

Respondent

REASONS FOR JUDGMENT
(Delivered ex tempore - revised from the transcript)

BOULTON J.R.

The parties in this matter both appeared unrepresented.

The applicant is now 30 years old.  In about mid-November, 1994, she was interviewed for a position as a console operator at the Gladstone City Mobil Service Station, Gladstone.  At interview by the service station manager, a Mr. Hansen, she was handed an introduction document (ex. R4) designed to explain the duties and responsibilities of employees of the service station.  I will return to this document later in these reasons.

The applicant gained the position and commenced work on 25 November 1994.  At commencement, she was provided with a roster

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(ex. A1) by Mr. Hansen.  Her employment was terminated by him on 5 December 1994, she having last worked the day before.  In that period she had worked 9 days in all.

It is unnecessary for me to say anything about the circumstances which led to the applicant’s dismissal.

The real issue in the case was whether or not the applicant was a permanent or casual employee.  The applicant herself placed great store on the fact that she had worked a set roster, as evidence of permanent employee status.  The respondent, on the other hand, pointed to the fact that the applicant’s pay slips (ex. A2) showed that she was paid an hourly rate of $10.53 under the Vehicle Industry Repair Services and Retail Award (ex. R3), which rate was that then applicable to a casual console operator in Queensland.

The applicant agreed in evidence that she had signed an Employment Declaration Form (ex. R2) for the Australian Taxation Office in which she had ticked the word “Casual” as the basis of her employment with the respondent.  The respondent’s witness Mr. Hansen also swore that all 10 of the respondent’s then console operators were casual employees.

The alternative feature relied on by the applicant was a sentence appearing in the introduction document (ex. R4), which read:

Should we both agree to your employment, you will be asked to       sign and accept this agreement after a trial period of up to 50   hours.

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The applicant had, in fact, signed the agreement on the day of commencement of her employment.  The respondent’s director, a Mr.

Chesterman, conceded that having the applicant sign the document at the outset was obviously in conflict with the intent of this sentence.

The applicant took the sentence to mean that even if she had commenced employment as a casual (which was not conceded), after 50 hours and absent any dissatisfaction with her by her employer, she then became permanent.  While I sympathise with her in this, I accept the evidence that this was not so.  I am unable to conclude that she ever became other than a casual employee, engaged for a short period within the meaning of paragraph 30B (1) (d) of the Industrial Relations Regulations. That being so, she is excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Industrial Relations Act 1988.

Before I conclude, it may be helpful if the respondent is informed that it ought to give consideration to redrafting the introduction document, to make clear the nature of an employee’s employment and the fact, if that be the intent, that permanent status is not necessarily gained by an employee after the trial period of up to 50 hours.  It should also be careful about when it has an employee sign the document, if it afterwards wishes to rely on it for any purpose.

I will not say anything further about the circumstances of the applicant’s termination except that it would clearly have contravened the Act were the Act’s provisions able to be availed of by her.

In the circumstances, the only order I can make is that the application be dismissed.

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I certify that this and the preceding THREE (3) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

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Judicial Registrar

DATED:  4 April 1995

Applicant appeared in person

Respondent by its director Mr. Chesterman

Date of hearing:  4 April 1995

Date of judgement:  4 April 1995

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- Nicolson at 243.

I am satisfied that the respondent had a valid reason connected with the applicant’s conduct within the meaning of ss.17ODE(1) of the Act to terminate his employment.  I am not satisfied that the termination was harsh, unjust or unreasonable.

I am satisfied that the applicant was guilty of serious misconduct within the terms of para. 17ODB(1)(b) of the Act, such that the question of notice or compensation instead of notice does not arise.

Finally, on the question of extension of time for filing of the applicant’s application, I am prepared to extend the time to the actual date of filing, namely 31 August 1994.  I am influenced in this by the respondent’s inability to point to any prejudice resulting to it from the applicant’s delay, and the fact that the delay was not great, the applicant having received written notice of termination apparently on 27 July 1994.

I order that:

(1)  the time for the filing of the application be extended to 31 August   

1994;

(2) the application be dismissed.

I certify that this and the preceding SIX (6) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

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Judicial Registrar