Mathy Hyder v Department of Health and Community Services

[1996] IRCA 75

DECISION NO:   75/96

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether SPECIFIED PERIOD CONTRACT - whether termination at the initiative of the employer - whether termination for VALID REASON of CONDUCT OR PERFORMANCE - whether termination HARSH UNJUST OR
UNREASONABLE -  COMPENSATION

Industrial Relations Act 1988, ss 170EA, 170DE(1), 170DE(2), 170EE, reg. 30B(1)(aa)

D’Lima v Board of Management Princess Margaret Hospital for Children (unreported, Marshall J, Industrial Relations Court of Australia, 25 August 1995)
Ferry v Minister for Health, Western Australia  (unreported, Marshall J, Industrial Relations Court of Australia, 25 August 1995)
Andersen v Umbakumba Community Council (1994) 1 IRCR 457
Mohazab v Dick Smith Electronics Pty Ltd (unreported, Full Court Industrial Relations Court of Australia, 28 November 1995)

MATHY HYDER v DEPARTMENT OF HEALTH AND COMMUNITY SERVICES
VI 4003 of 1995

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  12 MARCH 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4003 of 1995

B E T W E E N:

Mathy HYDER
Applicant

A N D

DEPARTMENT OF HEALTH AND COMMUNITY SERVICES
Respondent

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The respondent pay to the applicant compensation in the sum of           4,571.40

1. The time for payment is twenty one days from the date of this order.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4003 of 1995

B E T W E E N:

Mathy HYDER
Applicant

A N D

DEPARTMENT OF HEALTH AND COMMUNITY SERVICES
Respondent

REASONS FOR DECISION

12 March 1996  PARKINSON JR
This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as an Intellectual Disability Services Officer at its community residential units (CRUs), at Walpole Street, Rosebud and Mashie Court, Dromana. She was employed on a regular basis on a series of short term contracts. The contracts were for periods of employment ranging in length from one month to nine months. The following are the dates of the contracts:
Walpole Street:
-          5 September 1993 to 11 December 1993
-          20 March 1994 to 25 June 1994
-          26 June 1994 to 17 September 1994
-          7 August 1994 to 17 September 1994
-          18 September 1994 to 24 June 1995
Mashie Court:           
-          25 June 1995 to 22 July 1995.
The contracts also varied in their form and as to their terms and conditions. All of them were however terminable on notice periods of between two weeks and four weeks by either party.

The initial employment agreement entered into by the applicant specifically provided that the employment did not effect permanent employment status. This is, in my view, a reference to the provisions of the Public Sector Management Act 1992 (Vic) which makes provision for employment of persons within the public sector, with various rights and entitlements being dependant upon status as temporary, permanent or exempt employees. The provisions in the agreement on their face characterise the employment in this case as “ temporary”.

That may well be the case for the purpose of all things done pursuant to the Public Sector Management Act. However, the issue in these proceedings is whether or not such an employee is precluded from bringing this action as a result of the operation of Reg. 30B(1) (aa) of the Act, or whether the circumstances could be described as not being termination of employment at the initiative of the employer. It was argued for the respondent that as a result of the operation of the contracts there was no termination of employment at the initiative of the employer, but rather an inevitable termination as a result of effluxion of time.

The circumstances of the employment are that as each contract expired the applicant was provided with a new document to sign.  This occurred either prior to the expiration of the agreement or, on occasions, after expiry. Since the applicant commenced her employment, she had been engaged on a regular roster at the Walpole Street CRU and had, on an ongoing and continuing basis, participated as a regular employee of the unit. Save for a temporary transfer to Mashie Court CRU during the course of a disciplinary inquiry, the applicant had a regular employment relationship with Walpole Street CRU. The evidence of the applicant was that she had expected that her contract would continue to  be renewed having regard to the history and the usual course of events at the unit, not only in relation to her employment but also that of other employees. I am satisfied that it was a reasonable expectation of the applicant that her employment would be continued.

I have considered the decisions of Marshall J in D’Lima v Board of Management Princess Margaret Hospital for Children, unreported, Industrial Relations Court of Australia, 25 August 1995 and Ferry v Minister for Health, Western Australia, unreported, Industrial Relations Court of Australia, 25 August 1995, and the judgment of von Doussa J in  Andersen v Umbakumba Community Council (1994) 1 IRCR 457. In my view there are compelling similarities between the circumstances of the applicant and the facts of those cases. In particular it is noted that the applicant, whilst employed upon a “contract”, was entitled to notice of termination of the employment. This is inconsistent with there being a contract in the nature of fixed term, which expires of its own force. See: Andersen at 463.

The employment of the applicant was regulated by the operation of an interim award of the Australian Industrial Relations Commission, known as the Health and Community Services (Nursing, Health Care and Associated Groups) Interim Award 1994.  That award provided for various steps to be taken prior to the termination of a person’s employment, and it also provided for periods of relevant notice.  In Ferry Marshall J discussed the operation of a relevant award, and in particular notice periods prescribed by such an award, on the employment.  His Honour concluded that such an employment relationship is not one that ceases by effluxion of time or without initiative of the employer.

It is apparent from the terms of the agreement and, in my view, the historical dealings between the parties in this employment that “neither side could know with any certainty when the period of the contract of employment might come to an end”: Andersen at 463. I agree with the submissions for the applicant that the circumstances of this case fall squarely within those discussed by the Full Court in Mohazab v Dick Smith Electronics Pty Ltd, unreported, Industrial Relations Court of Australia, 28 November 1995, wherein their Honours said (at 12): 

an important feature is that the act of the employer results directly or   consequentially in the termination of the employment and the     
           employment relationship is not voluntarily left by the employee.

I am satisfied that there was a termination of the employment at the initiative of the employer.  I am satisfied that the employment ceased as a result of conduct of the employer, both by the letter of 18 July 1995 (exhibit R2) and by its conduct in failing to continue the employment, and not as a result of the expiration of the contract. 

Having decided the jurisdiction issue, I now turn to consider the merits of the proceeding. The applicant had been the subject of an internal disciplinary inquiry. That inquiry was established pursuant to the Public Sector Management Act and considered allegations made against the applicant. The Board of Inquiry had powers to recommend that various penalties be imposed on the applicant, ranging in degree of seriousness from termination of employment to a reprimand or warning. As a result of that inquiry, the applicant was issued with a reprimand as to her conduct and a fine. The matters which were the subject of the inquiry were not canvassed in these proceedings in any detail, nor was the court asked to have regard to those matters as founding the basis for the termination of employment. The respondent relied upon operational requirements as being the reasons for the termination of employment.

The applicant was transferred from her usual location at Walpole Street               and her usual roster during the course of the internal inquiry.  This is in accord with the procedures in the Regulations applicable to the Service.  She was transferred to Mashie Court CRU.   During the period of the transfer she raised a number of issues in relation to her continuing entitlements to certain hours of work during the transfer period.  There were a number of discussions between the respondent and  the applicant and her union at that time in relation to these complaints.

On 18 July 1995, one day after the Secretary had accepted the recommendations of the board of inquiry and imposed a reprimand, (exhibit A13 and exhibit R5), and days before the applicant’s most recent contract expired, the respondent’s Regional Manager of Accommodation Services, Mr John Gray, informed the applicant that her employment with the respondent was terminated (exhibit R1).  The notice to this effect relied upon the expiration of the short term contract, and gave the applicant two weeks pay in lieu of notice of the termination of her employment.  

The respondent’s evidence was that during the period of the applicant’s transfer the staffing arrangements at Walpole Street CRU, her previous place of work, were altered.  In the course of these alterations, a number of staff at Walpole Street obtained increased working hours. As a consequence of these alterations, the hours allocated to the applicant no longer existed. The respondent submitted that the employees at the workplace had agreed to this arrangement and that to bring the applicant back to that workplace and disrupt it would  be impracticable.

There are a number of  unsatisfactory aspects to this approach. Firstly, the applicant had only been temporarily removed from the Walpole Street unit to enable the enquiry to take place. It was understood that she was not to be disadvantaged in any way as a consequence of the transfer. There were significant alterations  made to the work roster at the unit without discussion or consultation with the applicant merely because she was “not there at the time”.   The applicant remained entitled to be treated for future purposes as a member of staff at the unit and ought to have been included in the process of consultation and distribution of hours available, as were all of the other employees, including a number of employees on short term contracts of the same type as the applicant.  The applicant lost the hours of work available as a result of the respondent failing to take her into account in its considerations of the appropriate future work arrangements.

Secondly, the evidence does not satisfy me that there was any imperative to change the roster arrangements at the units, other than the imperative of removing any hours available to the applicant. The roster arrangements at the original place of work remained at the same or at a slightly lesser level than those when the applicant was located there. The roster at the unit the applicant was located when the employment was terminated was altered subsequent to the employment being terminated, but still provided for the need to engage additional relief workers to fill hours of work available at the time the applicant’s employment was terminated. 

Thirdly, the applicant was entitled to expect that she would return to the Walpole Street unit  at the conclusion of the inquiry. She was also entitled to expect that the penalty imposed would be determined by the Secretary or his delegate on the recommendation of the inquiry, and that that would be the end of the matter.  In this case I do not accept that the reason for termination of employment related to the operational requirements of the respondent. I am satisfied that the reason for the termination related to the circumstances of the internal disciplinary charges against the applicant and the applicant’s asserting her entitlements in relation to her conditions of transfer. In this matter the applicant had a history of ongoing employment with the respondent, which had been regularly renewed. That history altered after the complaints referred to above had been made. There is a contemporaneity about the termination of the employment and the complaints with which the respondent has not adequately dealt in these proceedings. Its evidence as to the roster changes and reallocation of hours in my view only identified that various deliberate steps were taken by the respondent in the region to deny the applicant ongoing employment.  I have earlier found that I do not accept that there was any bona fide operational requirement in this regard, and in the absence of an alternative explanation for the termination of the employment, I am entitled to have regard to the timing of the various decisions which affected the applicant’s ongoing employment.

I am not satisfied that the respondent had a valid reason for the termination of the applicant’s employment. I therefore find that the termination of employment was unlawful.

In view of my findings herein I do not intend to deal in any detail with the matters arising under s170DE(2). It is sufficient to say that the respondent failed to give the applicant any opportunity to be heard in relation to the termination of her employment. In view of this it is my view that the termination was harsh and unjust. The respondent failed also to consider any alternatives to terminating the employment of the applicant and, notwithstanding the tumultuous circumstances of the recent months of the employment, failed to give her any forewarning that the employment may be terminated. These factors also constitute the termination as harsh, unjust and unreasonable.

Remedy - S170EE
The applicant did not pursue her application for reinstatement.  The evidence in the proceeding was that the applicant was anxious about any return to work with the respondent as a result of the circumstances of the termination of her employment.  The applicant has obtained other work, at least on a regular but casual basis with another unit. This work arrangement commenced in November 1995. It is likely that she will continue to obtain work from that source. I am satisfied that an order for reinstatement would in such circumstances be impracticable.  I am satisfied that the applicant is entitled to compensation as a result of the loss suffered since the termination of the employment for a period of 10 weeks from the date of termination. I have accounted, in coming to this period, for the notice already paid of two weeks. I am satisfied that having regard to the relations between the parties, the circumstances of the employment and the dissatisfaction that the applicant had expressed with various roster arrangements, together with the notice period already paid, that this is a reasonable period to anticipate that the employment would continue. Whilst the termination payment included various allowances, including sleep over, I am not satisfied that these amounts ought be included in the compensation amount when the disability to which they are attributed has not in fact occurred. The amount of compensation is to be calculated by reference to the applicant’s ordinary time fortnightly earnings which I am satisfied to be the ordinary rate of pay for 65  hours per fortnight of $ 761.90. The applicant is entitled to compensation in the sum of $ 4,571.40. Any amounts earned by the applicant were earned after the period for which compensation has been allowed and are not therefore taken into account.

The orders of the court shall be:

1. That the respondent pay to the applicant compensation in the sum of     4,571.40

1. The time for payment is twenty one days from the date of this order.

I certify that this and the preceding eight (8) pages
are a true copy for the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  12 March 1996

APPEARANCES

Solicitors for the applicant:  Maurice Blackburn & Co
Solicitor appearing for the applicant:  Ms M Chambers

Counsel appearing for  the respondent:                 Mr T Ginnane

Dates of hearing:  18 & 19 December 1995