Mills v Complete Hospitality Training
[1996] IRCA 227
•29 May 1996
DECISION NO: 227/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - Termination not at initiative of employer
Industrial Relations Act 1988 ss.170CC, 170EA
Industrial Relations Regulations - Regulation 30B
CASES:
Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545
Sgobino v State of South Australia (1987) 46 SASR 292
Licensed Clubs Association of Victoria and Anor re Christine Higgins (1988) AILR 497
Siagian v Sanel (1994) 1 IRCR 1
Apesma v Skilled Engineering (1994) 1 IRCR 106
Grout v Gunnedah Shire Council (1994) 1 IRCR 143
KEITH GRAHAM MILLS -v- COMPLETE HOSPITALITY TRAINING
No. VI-6096 of 1995
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 29 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-6096 of 1995
B E T W E E N :
KEITH GRAHAM MILLS
Applicant
AND
COMPLETE HOSPITALITY TRAINING
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 29 May 1996
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-6096 of 1995
B E T W E E N :
KEITH GRAHAM MILLS
Applicant
AND
COMPLETE HOSPITALITY TRAINING
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 29 May 1996
REASONS FOR JUDGMENT (EX TEMPORE)
The Applicant claims unlawful termination. He seeks compensation. He claims that:
he was employed on a part-time basis by the Respondent from 11 September 1995 to 24 November 1995
he last worked for the Respondent on 10 November
the Respondent had contracted to employ him on what he describes as a permanent part-time basis
the Respondent had made representations that led him to believe his employment as a sessional trainer was permanent and would be full-time from early 1996
The Court notes that:
the Applicant, in his application, describes the work performed for the Respondent as “sessional trainer (Job Search Program)”
the Applicant, in an Australian Taxation Office Employment Declaration (Exhibit A7) completed and signed by him on 1 or perhaps 11 September and completed by the employer on 19 September describes the basis of his employment as “part-time”
the Applicant, in a loan application (Exhibit A8) completed on 30 September, describes his occupation with the Respondent as sessional trainer and declares his net weekly “take home” pay to be $460
the Applicant worked as a sessional trainer for 24 days between 11 September and 10 November and conceded this to be the extent of his employment as a sessional trainer in that period although he claims that he did other work of a less formal nature during that period, examples being telephone conversations with students and advice and work on the on-going development of job search components in the Respondent’s courses
the Applicant is recorded by the Respondent as having worked as a sessional trainer for 24 days; five days in September (11-15 September); twelve days in October (9-13 October, 16-20 October, 30 and 31 October); and seven days in November (1-3 November and 6-10 November)
on 2 October 1995 (Exhibit R1) the Applicant signed a document entitled “Teacher Employment Contract” which reads:
“JOB CLASSIFICATION: Job Search Trainer
COURSE: Job Search
COMMENCEMENT DATE: 9th October 1995
COMPLETION DATE: 13th October 1995I hereby declare and am in agreement that I am employed by Complete Hospitality Training on a daily basis for contracted courses.
I understand that my remuneration is paid to me on a weekly basis at the rate of $120.00 per day, plus 5% Superannuation and I am covered by Workcare.
I accept that either myself or Complete Hospitality Training reserve the right to amend scheduled rosters according to demand and availability of courses.
I also understand and accept my hours of work, duties and responsibilities as defined to me by the Course Co-Ordinator.
Signed: Date: 2nd October 1995
Print Name: KEITH MILLS”
(vii)the contract (Exhibit R1) relates only to employment in a specific job search course for 5 days (9 to 13 October) but the principal of the Respondent’s training facility, Ms Angelique Eccleston-Peet, gave evidence which suggests that, at about this time (October 1995), all sessional trainers were asked to sign one short term employment contract, allegedly to demonstrate to the sessional trainers the casual nature of the employment and gain commitment from them to casual employment on a daily basis on terms in line with those outlined in Exhibit R1. While this part of the evidence of Ms Eccleston-Peet was vague and unsatisfactory and her evidence overall will later be the subject of further comment, the Court is satisfied that most sessional trainers were employed on a casual basis and paid at a daily rate
(viii)the Respondent, through Ms Angelique Eccleston-Peet, appears to have outlined possible involvement by the Applicant in six courses between 30 October 1995 and 19 January 1996 (Exhibit A4) and the Applicant states that occurred at an interview on a Wednesday or Thursday after 16 August
the Applicant, in Exhibit A2 (notes attached to Age advertisement 12 August) has recorded interviews with Ms Eccleston-Peet as occurring on Monday 21 August, Wednesday 30 August and Wednesday 6 September
The Court records that the Applicant presents as a very genuine, 59 year old man who (in Exhibit A1) described 40 years experience in the printing, packaging, manufacturing, distribution, hospitality, sports and tourist industries. In evidence the Applicant attributed his retrenchment from a position of purchasing officer - administration with a major wine maker as related to a diagnosis, at that time, of cancer. The Applicant was unemployed from 1991 to 1994 but in that period he completed a series of short courses including:
Special Employees Gaming Course,
Advanced Bookkeeping,
Taxation for Small Businesses,
Computer Training,
Hospitality Course at Bensons Hospitality College,
Career and Life Planning Course at the Mature Age Centre, Preston
The Applicant has also listed his 1995/96 employment as including Christmas work with Myer at Greensborough, Placement Support Work with the Finance Sector Union of Australia and sessional training with the TAFE College Stawell and with the Respondent.
The Court is impressed with the Applicant’s apparent courage, resilience and determination to find work again after a very serious illness which, in effect, left him unemployed from part of 1991 through to September 1995.
However, as an Applicant for compensation for alleged unlawful termination of employment, he is confronted with a huge, indeed an insuperable hurdle. S170CC excludes specified employees from the operation of specified provisions of Division 3 of Part VIA if the exclusions are permitted by paragraphs 2, 4 or 5 of Article 2 of the Termination of Employment Convention and provided such exclusions are limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of Article 2.
Regulation 30B(1)(d) reads as follows:
“subject to subregulation (2), for the purposes of S170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part IVA of the Act:
(d)a casual employee engaged for a short period within the meaning of subregulation (3)”
Regulation 30B(3) reads as follows:
“(casual employees engaged for a short period) For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:
(a)the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and
(b)the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer”
I am satisfied that in this case the Applicant’s employment bore many of the indicia of casual employment set out in the authorities cited by Mr Reinehr including, Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 551 to 555, Sgobino v State of South Australia (1987) 46 SASR 292 and Licensed Clubs Association of Victoria and Anor re Christine Higgins (1988) AILR 497.
In respect of Regulation 30B(3) the Applicant was not engaged by the Respondent during a period of at least 6 months, or for a sequence of periods of employment during a period of at least 6 months. He was engaged for 24 days in a period of less than 3 months.
Furthermore, there is no real evidence that the Respondent, at its initiative, terminated the Applicant’s employment in the terms set out in Siagian v Sanel Pty Ltd, Apesma v Skilled Engineering Pty Ltd and Grout v Gunedah Shire Council (1994) 1 IRCR at 1, 106 and 143 respectively. The Court notes that the Applicant himself concedes that on 24 November Ms Eccleston-Peet never, at any stage used the word “termination” and never said the Applicant’s services were terminated. Ms Eccleston-Peet is adamant she never terminated the Applicant. Mr Stebben, the Respondent’s Managing Director, also denies termination. He gave evidence that he heard Ms Eccleston-Peet’s part of the telephone conversation on 24 November.
The Applicant’s diary entries of 24 and 27 November do not support termination (Exhibit A10).
Those entries read as follows:
“Friday 24 November 1995
Angelique advised today Nicky (i.e. Ms Nicole Garr) will be doing job search next week.”
The diary entry for Monday 27 November reads as follows:
“Nicky will be taking the job search course this week.”
Indeed, the Applicant’s written notes in pencil (Exhibit A12) did not suggest termination either although they do go closer.
The Applicant gave evidence that he made a pencil note, which is part of Exhibit A12. He is not absolutely clear that he made that note on 24 November, although he suggests he probably did write the note about an hour after his conversation by telephone with Ms Eccleston-Peet.
The note reads:
“Telephone call late Friday 24th Nov and told you are not required for the Job Search Program for Monday 27th and all other Job Search Program
Reason given NICOLE GAAL who is a full time employee has no work. She will be doing Job Search”
The Court noted that the opening words “telephone call last Friday 24th Nov” did not clearly indicate a record made on 24 November. The Applicant has not written “telephone call today” or “telephone call late today”. He has used the words, “late Friday 24 Nov”. These words are at least as consistent, or more consistent, with a note written some time later and the record he did make is not particularly consistent with the Applicant’s own notes in his diary on 24 and 27 November.
In letters and telephone discussions with the Respondent via Ms Eccleston-Peet after 24 November the Applicant never mentioned or alleged termination of employment.
Even if the Court had evidence of such a termination at the initiative of the employer, I am not satisfied that the Applicant would have had a reasonable expectation of continuing employment by the employer. I believe the Applicant had very definite hopes of continuing employment. The Applicant is highly motivated to work and he is to be commended for that but I am not satisfied the circumstances as prescribed by the evidence presented a situation in which the Applicant could have objectively entertained a reasonable expectation of continuing employment.
Although I have found that the Applicant’s expectation of continuing employment was not, in objective terms, reasonable, I have found the Applicant to be, in general terms, a witness of truth. On the other hand, the major evidence for the Respondent from Ms Eccleston-Peet was imprecise, evasive and unimpressive. By way of example, although it is not of assistance to the Applicant, I accept that he prepared the substance of the Job Search module or manual virtually in its entirety. All Ms Eccleston-Peet did was to tidy up the format and possibly the spelling.
Be that as it may, I find that the application lacks jurisdiction, firstly, because the Applicant was an excluded casual employee engaged for a short period within the meaning of Subregulation (3) and, secondly, because there is no adequate evidence that the Respondent terminated the Applicant’s employment.
The application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 6 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 30 May 1996
Solicitors for the Applicant: Ms G Hedberg
Counsel for the Applicant: J N Zigouras and Co
Solicitors for the Respondent: Mr John Reinehr
Counsel for the Respondent: Kahn & Clahr
Date of hearing: 27 and 29 May 1996
Date of judgment: 29 May 1996
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