National Tertiary Education Industry Union on behalf of Ms Lynn Fisher v Edith Cowan University
[1996] IRCA 313
•16 July 1996
DECISION NO: 313/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CLAIM OF UNLAWFUL TERMINATION - APPLICATION FOR SUMMARY DISMISSAL OF CLAIM - RELEVANT TEST UNDER O20 r 2(1) -
WHETHER TERMINATION AT INITIATIVE OF EMPLOYER - CONSIDERATION OF DISTINCTION IF ANY BETWEEN EMPLOYMENT RELATIONSHIP AND CONTRACT OF EMPLOYMENT - SERIES OF "BACK TO BACK" CONTRACTS - RELATIONSHIP BETWEEN CONTRACT OF EMPLOYMENT AND AWARD - WHETHER CONTRACT FOR SPECIFIED PERIOD - REASONABLE CAUSE OF ACTION DISCLOSED
Acts Interpretation Act 1901 (C'th) S 15AA(1)
Industrial Relations Act 1988 (C'th) SS 149, 170CA, 170CB, 170CD, 170EA, 170MC
Industrial Relations Act 1979 (WA)
Industrial Relations Court Rules, O20 r2(1)
Termination of Employment Convention 1982, Part I, Article 3
Industrial Relations Regulations, Regulation 30B
Edith Cowan University Act (WA) 1984
Academic Staff (Edith Cowan University) Award 1988
Universities and Post-Compulsory Academic Conditions Award 1995
Australian Post-Compulsory and Higher Education Academic Salaries (Consolidated) Award 1989
Edith Cowan University Academic Staff Certified Agreement 1995
Australian Industrial Relations Commission, Academic Staff (Edith Cowan University) Award 1988
Aitken v CMETSWU, WA Branch (1995) 63 IR 1.
APESMA v David Graphics Pty Ltd (1994) 1 IRCR 193.
APESMA v Skilled Engineering Pty Ltd (1994) 1 IRCR 106.
Andersen v Umbakumba Community Council (1994) 1 IRCR 457.
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 431.
Bolotin v The University of Melbourne, IRCA 650/95, Murphy JR, 6 December 1995, unreported.
Burazin v The Blacktown City Guardian, IRCA 660/95, 15 December 1995, Madgwick J, unreported.
Byrne & Frew v Australian Airlines Limited (1995) 131 ALR 422.
Christie v Qantas Airways (1995) 60 IR 17.
Christie v Qantas Airways, IRCA 257/96, Full Court (Spender, Gray and Marshall JJ), 14 June 1996, unreported.
Cooper v Darwin Rugby League Incorporated (1994) 1 IRCR 130.
Dadey v Edith Cowan University, WI96/1062, RD Farrell JR, 8 July 1996, unreported.
D'Lima v Board of Management, Princess Margaret Hospital for Children, IRCA 407/95, Marshall J, 25 August 1995, unreported.
General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 129.
Grout v Gunnedah Shire Council (1994) 1 IRCR 160.
Grout v Gunnedah Shire Council (1995) 62 IR 150.
Minister for Health v Ferry, IRCA 117/96, 4 April 1996, Full Court (Wilcox CJ, North and Madgwick JJ), unreported.
Mohazab v Dick Smith Electronics (1995) 62 IR.
O'Neill v Australian National University, IRCA 486/95, 29 August 1995, Linkenbagh JR, unreported.
Scally & Ors v Management of Sir Charles Gairdner Hospital, IRCA 130/96, 4 April 1996, Boon JR, unreported.
Siagian v Sanel Pty Ltd (1994) 1 IRCR 1.
Strecker v Metropolitan Cemeteries Board (1995) 65 IR 109.
McCarry G, "Employment Security", Chapter 8, Federation Press, McCallum, McCarry and Ronfeldt, Eds, 1994.
Pittard, MJ, " Employment Security, Chapter 2, Federation Press, McCallum, McCarry and Ronfeldt, Eds, 1994.
NATIONAL TERTIARY EDUCATION INDUSTRY UNION ON BEHALF OF MS LYNN FISHER v EDITH COWAN UNIVERSITY - WI 1061 of 1996
Before: RITTER JR
Place: PERTH
Date: 16 July 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1061 of 1996
B E T W E E N:
NATIONAL TERTIARY EDUCATION INDUSTRY UNION
ON BEHALF OF MS LYNN FISHER
Applicant
A N D:
EDITH COWAN UNIVERSITY
Respondent
MINUTE OF ORDERS
16 July 1996 RITTER JR
THE COURT ORDERS THAT:
The notice of motion of the respondent, filed on 4 July 1996, is dismissed.
The further hearing of this application be held at such time and in such manner as directed by the Court.
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
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1061 of 1996
B E T W E E N:
NATIONAL TERTIARY EDUCATION INDUSTRY UNION ON BEHALF OF MS LYNN FISHER
Applicant
A N D:
EDITH COWAN UNIVERSITY
Respondent
REASONS FOR DECISION
16 July 1996 RITTER JR
INTRODUCTION
This is an application under section 170EA of the Industrial Relations Act 1988 (the "Act"). The applicant is the union of Ms Fisher, who was employed by the respondent as a lecturer, level B, in Academic Dance Studies at the Western Australian Academy of Performing Arts ("the Academy"). This is an Academy of the respondent (see below). The application alleged that Ms Fisher's employment was terminated contrary to the Act on 31 December 1995, having commenced on 1 January 1993.
The application was listed for trial to commence on 8 July 1996.
However, the respondent filed a notice of motion on 4 July 1996, seeking an order that the proceeding be dismissed, pursuant to Order 20, Rule 2(1)(a) of the Industrial Relations Court Rules. The notice of motion was returnable at 10 am on 8 July 1996. By agreement between the parties, the notice of motion was, in effect, heard as a preliminary issue.
The respondent supported the notice of motion by an affidavit of Dr Geoffrey Gibbs. The affidavit states that it was sworn on "4 July 1967". This clearly appears to be a mistake and it should read that it was sworn on 4 July 1996. The applicant did not take issue with the fact that Dr Gibbs' affidavit was indeed sworn on 4 July 1996. In any event, Dr Gibbs gave oral evidence in addition to the affidavit evidence. During his oral evidence, he identified the affidavit which was sworn.
The applicant opposed the notice of motion and supported its position by an affidavit sworn by Ms Fisher and dated 5 July 1996.
At the conclusion of the evidence and submissions of the parties on 8 July 1996, I reserved my decision. The respondent sought and obtained leave to file further written submissions on 9 July 1996. These submissions were filed on that date.
ORDER 20 RULE 2(1)(a)
Order 20 Rule 2(1)(a) provides that "where in any proceedings it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding, no reasonable cause of action is disclosed, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding". The respondent's submission was that there was no reasonable cause of action disclosed by the application under section 170EA of the Act and that therefore the application generally ought to be dismissed.
The basis of the respondent's application was that the Court did not have jurisdiction under section 170EA of the Act because this was not an application to the Court in respect of termination of employment.
The test to be applied in determining an application under Order 20 Rule (1)(a) was held by Moore J in APESMA v David Graphics Pty Ltd (1994) 1 IRCR 193 at 197 to be that stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 at 129. There, Barwick CJ said:
"It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
At times the test had been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same."
THE FACTUAL BACKGROUND
Paragraph 2 of the affidavit of Dr Gibbs sets out the substance of the evidence that the respondent led in support of the notice of motion, and stated as follows:.
"(a)Ms Fisher commenced employment on 1 January 1993 as a Lecturer in Dance Studies in the School of Dramatic Arts at the Western Australian Academy of Performing Arts.
(b)Ms Fisher was engaged on a fixed term contract which expired on 31 December 1993. A new contract of employment was accepted on 1 December 1993 for the period 1 January 1994 for a period of one year. Now produced and shown to me and marked "GGI" are true copies of the contracts of employment for the 1993 and 1994 calendar years.
(c)On 9 December 1994 Ms Fisher signed a new contract which had been incorrectly drafted to operate for the period 1 January 1995 to 31 December 1997. Now produced and shown to me and marked with the letters "GG2" is a true copy of that document.
(d)On 15 December 1994 I wrote to Ms Fisher informing her that a drafting error had occurred and that her new contract of employment was to be for the period 1 January 1995 to 31 December 1995 in line with the letter from Frank Bates, Director Human Resource Management of 24 June 1994 that her contract would be extended for a period of one year. Now produced and shown to me and marked "GG3" is the letter of 15 December 1994 together with this attached letter dated 24 June 1994.
(e)On 13 January 1995 Ms Fisher accepted an amended contract of employment for the period 1 January 1995 to 31 December 1995. Now produced and shown to me and marked with the letters "GG4" is a true copy of that document.
(f)Ms Fisher was unavailable prior to that time because she was out of the country for the period 10 December 1994 to 8 January 1995.
(g)On 23 June 1995, Ms Fisher was advised by letter from the Dean of the School of Dramatic Arts, that her contract would expire at the end of the year and that in line with University and Academy Board policy, the position would be advertised and that she was encouraged to apply. Now produced and shown to me and marked "GG5" is a true copy of that document.
(h)The University advertised the position of Lecturer-Dance (Academic Studies) in the Western Australian on 16 September 1995. Now produced and shown to me and marked "GG6" is a copy of that advertisement.
(i)The selection panel determined that Ms Fisher was not the most meritorious applicant, and that an applicant from overseas was best suited to the position.
(j)Ms Fisher's employment with the Western Australian Academy of Performing Arts expired on 31 December 1995 by the operation of the terms of her contract.
(k)After having made all due and proper inquiries, I am not aware of any promises or representations of further employment having been made to Ms Fisher.
(l)It is therefore submitted that there has been no termination of employment at the initiative of the employer, Ms Fisher's contract of employment having expired through the effluxion of time.
(m)It is further submitted that Ms Fisher's application does not concern a termination of employment within the scope of Division 3 of Part VIA of the Industrial Relations Act, and that accordingly the application should be dismissed, pursuant to Order 20, Rule 2(1) of the Rules of this Honourable Court."
The affidavit of Ms Fisher confirmed that she had been employed by the respondent on contiguous one year contracts from 1 January 1993 until 31 December 1995 as a lecturer, level B, in Academic Dance Studies at the Academy. Ms Fisher exhibited to her affidavit offers of employment from the Director of the Academy dated 23 December 1992, 19 November 1993, 27 October 1994 and 14 December 1994 respectively.
In paragraph 3 of her affidavit, Ms Fisher deposed to the fact that on or about 23 June 1995, she was advised by Mr Ord, Dean of the School of Dramatic Arts, that her position as a lecturer in Dance Studies would be re-advertised for a further period of three years. Ms Fisher exhibited a memorandum to her from Mr Ord dated 23 June 1995 in which Mr Ord stated that, "obviously, I would strongly encourage you to apply" for the position which was to be advertised.
Ms Fisher deposed to the fact that on or about 16 September 1995 she found out that the Academy had advertised in the Weekend Australian a range of academic positions, including the lectureship in Dance Studies. There were also advertised other positions. With respect to all of the advertised positions, the Academy was offering one to three year contracts commencing 1 January 1996 and levels of salary at either lecturer level A or lecturer level B status.
Ms Fisher applied in writing for the position in Dance Studies, having first obtained the selection criteria and duty statement for the position. In reply to her application, Ms Fisher received a letter from Dr Gibbs, the Director of the Academy, advising her that she had been short-listed for an interview. The "short-list" was a "short-list" of two. The other applicant was an overseas applicant who was interviewed by telephone.
Ms Fisher attended at an interview with the selection committee on 30 October 1995. On 31 October 1995, she received a letter from Dr Gibbs of that date which advised that she had been unsuccessful in securing the position. The letter from Dr Gibbs indicated that another position would be available in "the not-too-distant future". A copy of the letter was exhibited to the affidavit as Exhibit F.
On 6 November 1995, Ms Fisher wrote to Professor Stihl concerning the selection processes and outcome for the position she had applied for in Dance Studies. Ms Fisher received further correspondence from the respondent on 30 November 1995, being a letter from Mr Mungano, the Director of the Human Resources Division; and a memorandum from Dr Gibbs to Mr Mungano dated 16 November 1995. These documents denied there was anything wrong with the selection process. Ms Fisher's employment ceased with the respondent on 31 December 1995, the end of the term of her one year contract commencing 1 January 1995.
Ms Fisher asserted that on 31 December 1995 her employment with the university had been terminated.
THE JURISDICTIONAL QUESTION
As stated earlier, the respondent asserts that this is not a case where the court has jurisdiction under section 170EA(1) of the Act. Section 170EA(1) states that "a person ('the employee') may apply to the Court for a remedy in respect of termination of his or her employment." The expression "termination of employment" is not defined in section 170EA.
The expression is defined in section 170CD(4), but the definition in that subsection is expressly stated as being its meaning solely for the purposes of section 170CD. Section 170CD concerns the exclusion of employees not employed under award conditions whose wages exceed a particular amount. Section 170CD(4) provides that in the section, "termination of employment" means a termination of employment that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application under section 170EA was made to the Court before that commencement." Therefore, this definition only gives meaning to the expression "termination of employment" for timing purposes for the application of section 170CD.
Section 170CB states that "an expression has the same meaning in this division as in the 'termination of employment' convention." The expression "termination of employment convention" is, in section 4 of the Act, defined to mean "the Termination of Employment Convention, 1982, a copy of the English text of which is set out in Schedule 10" to the Act.
Article 3 of Part I of the Termination of Employment Convention states that, for the purpose of the Convention, "the terms 'termination' and 'termination of employment' mean termination of employment at the initiative of the employer." Therefore, due to section 170CB of the Act, this definition of the expression "termination of employment" applies when that expression is used in section 170EA of the Act.
The respondent's notice of motion brings into question the meaning of this definition in the context of the factual situation of the applicant's cessation of employment with the respondent.
EDITH COWAN UNIVERSITY
The Edith Cowan University is established and incorporated by the Edith Cowan University Act (WA) 1984 (as amended). Section 24(1) of the Edith Cowan University Act states that the "Western Australian Academy of Performing Arts shall be deemed to have been established as an Academy of the university under that name on the day that the" Edith Cowan University Act came into operation. This date was 1 September 1984: see Government Gazette dated 24 August 1994, page 2567, and section 2 of the Edith Cowan University Act.
Section 24(2) of the Edith Cowan University Act states that the council of the university (the governing authority of the university, pursuant to section 8 of the Edith Cowan University Act) may make statutes for the control and management of the affairs and concerns of the Academy. Without limiting the generality of the foregoing, section 24(2) states that the council may make statutes, amongst other things, constituting the board of the Academy.
Dr Gibbs said in his evidence that a board of the Academy had been constituted and had regular meetings. The respondent tendered as Exhibit A the minutes of a meeting of the board of the Academy dated 30 May 1995. In that meeting, the board resolved that "all staff contracts which terminate in December 1995 be subject to open advertisement". The respondent asserted, and it was not contested, that the advertisement of the position which Ms Fisher applied for occurred as a consequence of the resolution referred to.
Section 31 of the Edith Cowan University Act concerns the appointment of academic and other staff.
This section reads:
"(1)Subject to this Act and any relevant award or agreement in force under the Industrial Relations Act 1979 -
(a)the Council may appoint the academic and other staff of the University and other officers and engage employees for the University and may suspend or terminate the employment of any person so appointed or engaged;
(b)the terms and conditions of employment of the staff, officers and employees of the University, including the salary or wages payable, are such terms and conditions as the Council determines.
There was no evidence as to any relevant terms and conditions of Ms Fisher's employment, as determined by council and referred to in section 31(1)(b) of the Edith Cowan University Act, although the amended offer of appointment signed by Ms Fisher on 13 January 1995 contained some conditions of employment.
There was also no evidence of any awards under the Industrial Relations Act 1979 (WA) as being applicable to Ms Fisher's employment.
The applicant tendered as Exhibit 1 the Academic Staff (Edith Cowan University) Award 1988, an award of the Australian Industrial Relations Commission. The respondent agreed that this award or its predecessor award applied throughout the period of Ms Fisher's employment.
The applicant tendered as Exhibit 3 the Universities and Post-Compulsory Academic Conditions Award 1995. Again the respondent agreed that this award was applicable to the employment of the applicant, although the award, by clause 4, only came into operation on 11 May 1995. The respondent also admitted that the Australian Post-Compulsory and Higher Education Academic Salaries (Consolidated) Award 1989, applied to the applicant's employment with the respondent for the relevant periods of the applicant's employment with the respondent for which the award was operational.
The applicant also tendered as Exhibit 4 the Edith Cowan University Academic Staff Certified Agreement 1995 which was certified as an agreement pursuant to section 170MC of the Act. The agreement was stated as coming into force from the first pay period commencing on or after 15 December 1995. Therefore this agreement only had effect for the last two weeks of the employment of the applicant with the respondent.
TERMINATION OF EMPLOYMENT AT THE INITIATIVE OF THE EMPLOYER - THE ISSUE
The respondent submitted in its written submissions that "the relevant contract of employment in this case is the final contract which was agreed between the applicant and the respondent to run from 1 January 1995 to 31 December 1995. That contract came to an end due to the effluxion of time and for no other reason."
Therefore, the respondent submitted, there was no termination at the initiative of the employer, and no jurisdiction in the court under section 170EA of the Act.
As stated above, this submission raises the question of the meaning of "termination at the initiative of the employer".
THE OBJECT OF THE ACT
Section 15AA(1) of the Acts Interpretation Act 1901 (as amended) states that "in the interpretation of the provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."
In the instance of Division 3 of Part VIA of the Industrial Relations Act 1988, the object is expressly stated in section 170CA. This states that :
"170CA(1) The object of this division is to give effect, or give further effect, to :
(a) the Termination of Employment Convention; and,
(b)the Termination of Employment Recommendation, 1982, which the general conference of the International Labour Organisation adopted on 22 June 1982 and which is known as Recommendation No. 166, and a copy of the English text of which is set out in Schedule 11."
As set out earlier, the definition of "Termination of Employment Convention" ("the Convention") appears in section 4 of the Act. The Convention is, as stated, reproduced as Schedule 10 to the Act.
The preamble to the Convention provides that significant developments in the law and practice of member states, since 1963, have made it appropriate to adopt new international standards.
Part I of the Convention concerns the methods of implementation, and the scope and definitions contained within the Convention. Part II concerns standards of general application. Division A of Part II deals with justification for termination. Article 4 provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity of the worker or based on the operational requirements of the undertaking, establishment or service. This article is reflected in section 170DE of the Act. Division B is about the procedure prior to or at the time of termination. Division C is about the procedure of appeal against termination. Article 8, clause 1 provides that a worker who considers that his employment has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.
Article 9, clause 1 states that the bodies referred to in Article 8 of the Convention shall be empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified.
Division D refers to periods of notice, and Division E refers to severance allowance and other income protection.
Part III of the Convention is about supplementary provisions for termination of employment for economic, technological, structural or similar reasons.
Part IV involves "final provisions".
Recommendation No.166, which is Schedule 11 to the Act, is entitled, "Recommendation concerning termination of employment at the initiative of the employer."
Part I clause 2(2) provides that a member may exclude the following categories of employed persons from all or some of the provisions of the recommendation:
(a) workers engaged under a contract of employment for a specified period of time or a specified task;
(b) workers serving a period of probation or qualifying period of employment, determined in advance and of reasonable duration;
(c) workers engaged on a casual basis for a short period
Regulation 30B of the Industrial Relations Regulations excludes some of these employees from the operation of the Act.
Part II of the recommendation concerns standards of general application. It includes such matters as justification for termination, procedure prior to or at the time of termination, procedure of appeal against termination, time off work during the period of notice, certificates of employment, and severance allowance and other income protection.
Part III is about supplementary provisions concerning the termination of employment for economic, technological, structural or similar reasons.
In accordance with section 15AA of the Acts Interpretation Act and section 170CA of the Act, a construction of the Act which promotes the objects of the Termination of Employment Convention and Termination of Employment Recommendation, referred to above, should be preferred to one that does not.
In a number of cases, judges of this Court have also considered the objects of the Act.
In Aitken v CMETSWU, WA Branch (1995) 63 IR 1 at page 6, Lee J said that :
"The object of [Division 3] is to institute a level of practice in the management of labour which will tend to preserve the worth of the asset that labour represents. Underlying the provision is the awareness of Parliament that legislative intervention for the protection of employees is in the public interest in an economy that is subject to international influences which tend to promote less security in employment and to demand more flexibility of the use and skills of labour."
In Grout v Gunnedah Shire Council (1994) 1 IRCR 143 at page 160, Moore J said that "Division 3 is intended to provide employees with a statutory remedy in the event of termination. It constitutes, in this respect, beneficial legislation that should be construed liberally much in the same way as workers compensation legislation has been construed." On the same page, his Honour said "A principal purpose, if not the sole purpose, of Division 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment."
In Burazin v The Blacktown City Guardian¸ unreported, IRCA 660/95, 15 December 1995, Madgwick J stated at page 19 :
"As this case and many others in this Court show, the lot of many non-unionised workers in this country, even white-collar workers, even in workplaces a long way from dark Satanic mills, was one of great inequality, vis-a-vis their employers: liable to sudden and disproportionate precipitation into the relative poverty of unemployment at the prerogative of an arrogant management offended by a single incident, with a dearth of practicably enforceable rights. The enactment of provisions such as those found in the Termination of Employment Division of the Industrial Relations Act was therefore sorely needed and curiously overdue in a nation that esteems itself, justly in some other respects, as the home of the 'fair go'."
Lee J, in Aitken, at page 6, referred to the chapter by Ms MJ Pittard, entitled "The Age of Reason : Principles of Unfair Dismissal in Australia", in Employment Security, Federation Press (1994). At page 39, Ms Pittard concludes that "the new law of Termination of Employment has brought significant changes in security of employment to most Australian workers. It heralds a new era in protection of employees and job security".
THE AUTHORITIES RELIED ON BY THE RESPONDENT
In her oral submissions, Ms Long, for the respondent, relied on three authorities:
O'Neill v Australian National University, unreported, IRCA 486/95, 29 August 1995, Linkenbagh JR.
The Judicial Registrar's ex tempore judgment, as edited from the transcript, was on a notice of motion of the respondent for the application to be dismissed because there was no reasonable cause of action disclosed.
The Judicial Registrar found that on the evidence before her, the applicant was engaged in work for the university on a series of contracts from 4 July 1980. The present contract was initially for a term of three years, commencing 29 April 1990, but the term was extended by a letter dated 4 February 1991 for a period of two years. The contract would then have expired on 29 April 1995. In October of 1994, following a request from the appellant for an extension, the university extended the term to expire on 30 October 1995. The Judicial Registrar said that "whilst the applicant has been employed on what might be seen to be an uninterrupted basis since 1980, in fact, the nature of her employment relationship with the university has been determined from time to time throughout the period by the terms of contracts negotiated between the parties." At the same page (page 1) the Judicial Registrar stated that "there is no doubt in my mind that the intention of the parties in this employment relationship was that the employment was to be for fixed periods of time, determined from time to time."
At page 2, Linkenbagh JR said she had been referred to a number of authorities (not set out, other than, in a separate context, Croduscia v The University of Adelaide, Industrial Commission of SA, Stanley J) which "are all to the effect that the expiry of the contract of employment by the effluxion of time does not constitute termination of employment by the employer." The Judicial Registrar then cited the judgment of Gray J in APESMA & Anor v Skilled Engineering Pty Ltd (1994) IRCR 106 and held that "there has to be an act of the employer to give the ending of the employment the appropriate characteristics which bring it within the ambit of the legislation." Crucial to her decision, Linkenbagh JR then said :
"In this case, the contract is to come to an end at the end of October 1995 by the effluxion of time. No act is required on the part of the employer or has been done on the part of the employer to cause the ending of the employment on that date and it is therefore not possible on that basis to say that the employment is to be terminated at the initiative of the employer."
Linkenbagh JR made the order sought in the notice of motion and dismissed the substantive application.
The portion of the judgment quoted immediately above indicates that the Judicial Registrar was concerned as to whether "the contract" of employment was to come to an end, at the end of October 1995, by the effluxion of time. The Judicial Registrar referred to the fact that there was no act on the part of the employer to cause the end of the "employment" on that date; and, therefore, it was not possible to say that the "employment" was terminated at the initiative of the employer. It appears from the passage of the judgment quoted that Linkenbagh JR treated the cessation of the contract of employment as synonymous with the cessation of the employment of the applicant.
Andersen v Umbakumba Community Council (1994) 1 IRCR 457. In that case, von Doussa J considered the expression "contract of employment for a specified period of time" as contained in the then Regulation 30B(1)(a) of the Industrial Relations Regulations. In the case before his Honour, there was an employment contract said to be for a fixed term from 5 April 1993 to 4 April 1995. However, the contract provided that either party to the contract could bring the employment relationship to an end on two weeks' notice, and there was a right of the employer, under the agreement, to bring the employment to an end on payment of two weeks' salary. His Honour therefore observed that "the cessation date merely records the outer limit of the period beyond which the contract of employment will not run" (page 463).
His Honour commented that it was significant that the rights to terminate the contract of employment were not conditioned on a breach of any term of the contract. His Honour said that "different considerations may apply for a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation containing a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as a contract of employment for a specified period of time, notwithstanding the possibility that on breach of its term by one side or the other, it may sooner come to an end". However, in the case before him, his Honour said that the unqualified rights to terminate without reason made it clear that the contract could not be so characterised.
The Andersen case does not directly concern the matters which are the subject of this decision.
Cooper v Darwin Rugby League Incorporated (1994) 1 IRCR 130. This was a decision of Northrop J on a notice of motion seeking the dismissal of the applicant's claim on the ground that the applicant was not entitled to the remedies conferred by the Act because the applicant was engaged under a contract for a specified period of time, being three years. This case was decided on 20 September 1994 in relation to a termination of employment that took place on 7 April 1994. Therefore, this case concerned Regulation 30B(1) of the Regulations before it was amended by SR1994 No. 386, Regulation 4, which commenced on 16 November 1994. The main difference between the Regulation that applied in Cooper's case and the present regulation, for present purposes, is that an employee was excluded from the operation of subdivisions B, C, D and E of Division 3 of Part VIA of the Act if an employee was engaged under a contract of employment for a specified period of time, irrespective of whether that contract was entered into before 16 November 1994. (This was the same situation as in Andersen above.)
At page 133, Northrop J stated that the word "termination" was ambiguous. His Honour said that :
"Essentially, the word 'terminate' means 'bring to an end', but of itself the word is not determinative of how the end is brought about. It is neutral in this regard. In the context of the employment of an employee, the termination of the employment of the worker may be brought about at the initiative of the employer, at the initiative of the employee, by involuntary act, the death of the employee, or by agreement between the employer and the employees. It is in this context that when used in Part VIA of the Act and in the Convention, the terms 'termination' and 'termination of employment' are limited to termination of employment at the initiative of the employer. Thus, the right conferred by section 170EA of the Act on a person to 'apply to the Court for a remedy in respect of termination of his or her employment' is limited to an employee whose employment has been terminated by the employer and, one may add, without the consent or agreement of the employee."
At page 133, his Honour referred to an argument that the employment in the case before him would be terminated by the effluxion of time on the expiration of the contract.
His Honour reviewed the contract and said that it "is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant as employee. On this construction of the contract of employment, the applicant is not a worker engaged under a contract of employment for a specified period of time . . ." . His Honour therefore concluded that the applicant was not excluded under section 170CC, from the operation of the relevant parts of Division 3 of Part VIA of the Act.
It can be seen that the case before Northrop J was quite different from that before the Court presently.
Therefore, of the three cases cited by Ms Long in her oral submissions, only O'Neill's case is directly on point.
In her written submissions, Ms Long also cited Bolotin v University of Melbourne, unreported, IRCA 650/95, 6 December 1995, Murphy JR and Christie v Qantas Airways, the decision of the Chief Justice reported at (1995) 60 IR 17, and the Full Court decision which is unreported, IRCA 257/96, 14 June 1996 (Spender, Gray and Marshall JJ).
In Bolotin, Murphy JR considered a "jurisdictional issue" that there was no termination at the initiative of the employer. Mr Bolotin was on 1 March 1971 offered an appointment at the university which was stated to be subject to the statutes of the university. Clause 3(1) of a relevant statute provided that each professor (the position which Mr Bolotin held) "shall hold his office until the end of the calendar year" in which the age of 65 is reached. Mr Bolotin had reached 65 in 1995 and therefore "as far as the respondent is concerned, as a result of the statute, ceased to hold his position on 31 December 1995" (page 2). By letter dated 29 June 1995, Mr Bolotin had advised the university that he intended to remain in his present position beyond 31 December 1995, purportedly under section 170DF(1)(f) of the Act. The university did not accept that and the applicant issued proceedings. After a review of some decisions on the meaning of "termination at the initiative of the employer" and mention of O'Neill, Murphy JR said, "The only conclusion that can be reached is that there has not been, nor will there be, a termination of the applicant's employment at the initiative of the employer. The agreement between the parties will terminate at the end of this year. There will be no action by the university that will cause this to occur. It will occur by the effluxion of time . . . this was in effect a fixed term contract. The term was fixed at the date the parties entered into it. Neither party need take any further action to terminate it." (pages 4 and 5). Murphy JR also held that correspondence by the university reminding Mr Bolotin that the employment was coming to an end did not effect a termination of employment.
In Christie v Qantas Airways Ltd, before Wilcox CJ, one of the arguments of the respondent was that the employment of Mr Christie was not terminated by the employer. The respondent argued that the employment came to an end by effluxion of time, the contract of employment between it and Mr Christie being limited to the period before his 60th birthday (page 18).
The Chief Justice reviewed Mr Christie's "entitlement to claim" under the Act and found (page 21) that the original contract between the respondent and Mr Christie contained no condition as to the duration of his employment. The employment was to continue indefinitely, subject to the possibility of termination by a party, pursuant to a particular clause of the contract. The Chief Justice then considered whether there was a variation of the original contract so as to include a term requiring Mr Christie to retire at age 60 or any other particular age. The Chief Justice found that there was no such variation. His Honour concluded on this issue that Qantas failed to demonstrate that Mr Christie's employment came to an end through effluxion of time (page 22). On the contrary, it was "apparent" to his Honour from the letters of the respondent that Mr Christie was forced to cease work on his 60th birthday because Qantas insisted that he comply with its policy "that pilots retire no later than upon reaching the age of 60 years". The Chief Justice held that, "by this insistence, Qantas terminated Mr Christie's employment on account of his age; so the outcome of his case depends on the availability to Qantas of the defence stated in section 170DF(2)" (page 22). The Chief Justice concluded that the defence was made out and the claim by Mr Christie was dismissed.
Mr Christie appealed. The appeal was heard by a Full Court, consisting of Spender, Gray, and Marshall JJ. The Court, by a majority (Spender J dissenting) allowed the appeal. The Court set aside the order of the Chief Justice that the proceeding be dismissed and made a declaration that the respondent had contravened section 170DF(1)(f) of the Act by terminating the employment of Mr Christie by reason of his age. (Qantas has applied for leave to appeal to the High Court.)
Gray J said that he did not believe it was necessary to determine the question of whether the Qantas policy of retiring pilots at age 60 became a term of Mr Christie's contract of employment. At page 10, Gray J said that he was prepared to assume that the appellant became bound by his contract to retire when he attained the age of 60. His Honour then said that "by enforcing that term against the will of the appellant, the respondent initiated the termination of his employment" (page 10).
Marshall J, in a separate judgment, reviewed the documents and evidence relevant to Mr Christie's contract of employment. At page 25, his Honour concluded that, "I therefore agree with the Chief Justice that the Court had the jurisdiction to entertain Mr Christie's application. Mr Christie's contract of employment did not end with the lapse of time. Rather, it was terminated by Qantas at the initiative of Qantas."
The way in which both the Chief Justice and Marshall J considered the submission of Qantas may lend some support to the respondent's argument. It seems to have been assumed, in the factual context of the case before them, by both the Chief Justice and Marshall J, that if the "contract of employment" "lapsed with time" (to use the words of Marshall J), the Court would not have had jurisdiction to entertain the application.
In his dissenting judgment, Spender J, at page 4, said that he was of the opinion that there was no termination by Qantas of Mr Christie's employment. Spender J was of the view that the agreement between Qantas and Mr Christie was not for "open-ended" employment with Qantas. At page 11, Spender J described as the "plain contractual position" that the employment with Qantas would extend to the date of Mr Christie's 60th birthday but would not extend beyond that day. Therefore, Spender J held that Mr Christie's employment with Qantas came to an end on the date of his 60th birthday, being 21 September 1994 (page 12).
At page 13, Spender J said that the Industrial Relations Act did not have the effect of re-writing the contractual relationship between Mr Christie and Qantas so as to convert the contract of employment which would come to an end at a known fixed time into a contract of indefinite duration. His Honour therefore held that there was no termination by Qantas of Mr Christie's employment, and no cause of action open to Mr Christie under Division 3 of Part VIA of the Act.
In her written submissions, Ms Long asserted that in the judgments of Wilcox CJ, Spender J and Marshall J, their Honours adopted an analysis consistent with the approach taken in Bolotin, assuming in the instance of the Chief Justice and Marshall J, that there had been a contractual term that the employment would end when Mr Christie attained the age of 60. Ms Long also asserted that the judgment of Gray J was consistent with the approach taken by the respondent in the present proceedings, except for his Honour holding that the contractual retirement provisions referrable to age can no longer be enforced. Ms Long submitted that all four judges involved in Christie adopted analyses consistent with the assumption that a contract containing a valid term whereby it has an outer date, so that it expires by effluxion of time, ceases at that time without an act of termination at the initiative of the employer.
I will consider this submission later in this judgment. It is sufficient for present purposes to note that, at least in some respects, the factual situation in Christie was quite different from that before the Court. Firstly, in Ms Fisher's instance, there was no allegedly agreed retirement age. Secondly, the employment, which commenced on 1 January 1993, continued until 31 December 1995 via a series of contracts. The third of these contracts was the one which expired on 31 December 1995. Prior to the expiration of this contract of employment, Ms Fisher applied for a position which was to commence on 1 January 1996. The respondent decided that Ms Fisher would not be offered this position on 31 October 1995; that is, two months prior to the expiration of her contract of employment.
THE APPLICANT'S SUBMISSION
The applicant submitted that what was relevant was the termination of the employment relationship, not the cessation of a particular contract of employment. The applicant therefore submitted that the respondent's construction of the expression "termination of employment at the initiative of the employer" was an incorrect construction of that expression in the context of the Act and the factual circumstance before the Court.
In this regard, the applicant cited the authority of Mohazab v Dick Smith Electronics (1995) 62 IR 200, a decision of the Full Court (Lee, Moore and Marshall JJ). The Court stated, at page 203, that their "present task" was to construe the expression "termination at the initiative of the employer" as it appeared in the Convention and determine whether there was such a termination in relation to the employment of the applicant in the case before them. The Court cited with approval the decision of von Doussa J in Andersen, in so far as it dealt with the construction of the Convention.
At page 204, the Court referred to the definitions of "initiative" in the New Shorter Oxford Dictionary and the Concise Macquarie Dictionary. These definitions included "the action of initiating something", "an act setting a process or train of events in motion", and "an introductory act or step".
At page 205, the Court then said that :
"These definitions reflect the ordinary meaning of the word 'initiative'. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment' : Siagian v Sanel (1994) 1 IRCR1 at 19; 54 IR 185 at 201."
Later, on page 205, the Court said that, "plainly 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. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship." This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (1994) 1 IRCR 106. His Honour referred to the situation of an employee who resigned because 'he felt he had no other option". His Honour described those circumstances as: ". . . a termination of employment at the instance [of] the employer rather than of the employee". And at p5, his Honour said: "I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment."
In Mohazab at page 207, the Court decided that the "critical action", to use the expression of the Chief Justice in the David Graphics case, in the case before them, was the threat that the employer would ask the police to charge the employee with an offence unless the appellant resigned from the employment of the respondent. Therefore, "the termination of the appellant's employment was not at his initiative. It was a resignation obtained by the respondent by an ultimatum designed to achieve that objective."
The Mohazab case, whilst factually quite different, is authority for the proposition that what is encompassed by the expression "termination of employment" in section 170EA of the Act is the termination of the employment relationship between the employer and employee.
TERMINATION OF THE EMPLOYMENT RELATIONSHIP
In Mohazab, the Full Court cited with approval the judgment of Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 1 IRCR 1. In that case, the Chief Justice had to consider a submission that as an employee was told by his employer on 29 March 1994 that his services had been dispensed with, Division 3 of Part VIA of the Act had no application as the termination of employment took place prior to 30 March 1994, the date of commencement of Part VIA. His Honour held that the contract of employment came to an end only when the applicant accepted the breach of his contract of employment as a repudiation of the contract. The Chief Justice held that this occurred on 31 March 1994. However, the Chief Justice held that the "termination of employment" included any act that brings to an end the employer/employee relationship, whether or not the act or any acceptance of it, also brings to an end the contract of employment.
At pages 17-19, the Chief Justice listed several difficulties in confining the words "termination of employment" to a situation where there has been a termination of the employee's contract of employment. In summary, these were as follows :
Such a construction would significantly limit the operation of the Act, and in an arbitrary and technical way. This is because the remedies available under section 170EE would be unavailable to employees who terminate their contracts of employment by accepting an employer's breach of the contract. His Honour said that if this was the meaning of the expression "termination of employment", it would give the Act an arbitrary operation, and make the Act's application a highly technical exercise. The Chief Justice said that "it would be necessary in every case to make a nice analysis of the contractual position".
The Chief Justice said that the construction suggested (that of termination of the contract) was difficult to reconcile with the Court's power to order an employer to reinstate the employee.
His Honour said that in a case where an employer had breached the contract of employment by unlawfully dismissing an employee, but the employee (wishing to retain the employment) had not yet accepted the breach as a termination of the contract, the Court would be unable to intervene.
His Honour said that it was important to bear in mind the context in which the words "termination of employment" are used. His Honour said that the statute is concerned with the practical matter of industrial relations. "An unfair dismissal can give rise to an industrial relations problem, whether or not it is accepted by the employee as a termination of the contract of employment. Few dismissed employees would be equipped to analyse their contractual situation." (page 19).
Gray J, in APESMA v Skilled Engineering Pty Ltd (1994) 1 IRCR 106, expressly decided not to follow the approach of the Chief Justice in Siagian v Sanel. This was because Gray J respectfully disagreed with the Chief Justice as to the continued existence of any distinction between the relationship of employer and employee, and the contract of employment, if indeed such a distinction ever existed (page 113). His Honour said "no useful purpose" was served by attempting to revive the distinction between the relationship of employer and employee and the contract of employment, if it ever existed (page 115). Gray J also disputed that some of the four difficulties which Wilcox CJ identified in Siagian and which are set out above, were actually difficulties that would be encountered in the application of the Act.
His Honour reviewed parts of the Convention and commented that the Convention focuses on what the employer has done to bring about the end of the employment. His Honour said that, "it is the employer's act or acts which is or are regarded as the 'termination'".
At page 116, Gray J said that the meanings of expressions in the Act being given the same meanings as in the Convention, and the form of the provisions of Division 3 of Part VIA of the Act, suggest that termination,
"refers to what is done by an employer attempting to bring about the end of the employment. The legislative intention is to permit applications under section 170EA of the IR Act, if an employer has done some act terminating or purporting to terminate the employment, irrespective of whether the Act is effective to bring about the termination without some further act on the part of the employee. The termination referred to in section 170EA and in section 170EE was the act of the employer. If the act of the employer is effective to terminate the contract of employment, remedies appropriate to that situation can be granted. If the contract remains on foot, the Court still has the power under section 170EE(1) to make such orders as it thinks appropriate in order to put the employee in the same position (as nearly as can be done) as if the employment had not been terminated."
His Honour said, at pages 116/117 that,
"the construction which I view as correct gives the greatest beneficial effect to the legislation. It absolves the court from determining difficult questions, such as whether a contract of employment, or some separate relationship of employer and employee, has been brought to an end. It also resolves the difficulties which the learned Chief Justice identified at 17-18 of his judgment in Siagian v Sanel Pty Ltd."
A major reason why Gray J differs from the judgment of the Chief Justice in Siagian is because Gray J was of the opinion that there was not, at least no longer, any distinction between the relationship of employer and employee and the contract of employment. Gray J did not, as is sometimes suggested in argument, advocate that one look solely at the termination of the contract of employment. His Honour simply referred to an employee bringing about the end of employment.
Subsequent to the decision of Gray J in APESMA v Skilled Engineering, the High Court, in Byrne& Frew v Australian Airlines Limited (1995) 131 ALR 422, has commented, to some extent, on the "distinction" between a contract of employment and the relationship of employment. This was in the context of an argument that an employee could claim damages for breach of contract, where an employer allegedly had breached a clause of a federal industrial award, which provided that termination of employment by an employer shall not be harsh, unjust or unreasonable.
In the judgment of the majority (Brennan CJ, Dawson and Toohey JJ), at page 431 and following, it referred to an argument by the applicant that on the basis of the decision in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, the purported termination of the contracts of employment, being in breach of the award, was illegal and void. The argument was that the appellants were entitled in those circumstances to treat their dismissal as a repudiation of their contracts of employment, to accept the repudiation as putting an end to the contracts, and sue for damages.
At page 431, their Honours quoted part of the decision of Dixon J in Automatic Fire Sprinklers at 471, in which his Honour referred to the relevant regulations in that case as not "making the relationship legally infrangible".
At page 432, their Honours said that :
"In speaking of 'the relationship', Dixon J had in mind the relationship of employer and employee as distinct from the contract of employment. It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship, notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson. As Latham CJ said, 'An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's case and Lucy's case.'
And as Dixon J said : 'There is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.'
In England, the position was for a time not so clear, although the view taken in Australia appears now to be accepted there. Of course, even if an employee who is wrongfully dismissed chooses to keep the contract of employment on foot, he or she cannot claim remuneration in respect of any period after the wrongful dismissal because the right to receive remuneration for services is dependent upon the services having been rendered. The employee is also under a duty to mitigate any damage. Moreover, a court will not, save in exceptional circumstances, order specific performance of a contract of personal service. The possible continuation of the contract of employment after a wrongful dismissal will, therefore, ordinarily be of no real significance as it will for all practical purposes be at an end.
There is no reason to doubt that in the present case the dismissal of the appellants by the respondent rightly or wrongly put an end to the employment relationship. In Automatic Fire Sprinklers Pty Ltd v Watson the majority felt constrained by authority to say that the regulation in question prevented that from happening. We are bound to say that we prefer the reasoning of the minority to the contrary on the point."
Their Honours concluded this part of their judgment by saying that the relevant clause of the award did not preclude the termination of the employment relationship, even if the termination amounted to a breach of the clause. The claim for damages failed.
There is nothing in the judgment of the majority of the High Court which indicates that there is no legal distinction between the contract of employment and the employment relationship.
In the judgment of McHugh and Gummow JJ at pages 452ff, their Honours discussed the Automatic Fire Sprinklers case. Their Honours stated that the precise issue identified by Dixon J and decided by the High Court in Automatic Fire Sprinklers made it unnecessary to determine the other principal issues in that case including "the distinction (if any) between the contract of employment and the employment relationship or status" (page 453). McHugh and Gummow JJ indicated that the outcome of the present appeal was such as not to call for further consideration of these matters. Their Honours, in a footnote, said that, "the recent decisions are collected in Siagian v Sanel (1994) 122 ALR 333 at 342-5. What the author identifies as the "elective" and "automatic" theories of termination of contracts of employment are analysed, with some reference to Automatic Fire Sprinklers and to the important question of the availability of equitable relief in such cases by McMullen, 'A synthesis of the mode of termination of contracts of employment' (1982) 41 Cambridge Law Journal 110 at 111-33." Therefore, their Honours did not further consider the question of any distinction between the contract and relationship of employment.
The position therefore is that a majority of the High Court in Byrne & Frew v Australian Airlines Limited has indicated that there can be a legal distinction between the contract and relationship of employment. If this is so, a principal reason why Gray J in APESMA v Skilled Engineering departed from the reasoning of Wilcox CJ in Siagian v Sanel, is removed.
Moore J, in Grout v Gunnedah Shire Council, at page 160, referred to the approach by Wilcox CJ in Siagian and Gray J in Skilled Engineering and said that, "on the approach of Wilcox CJ, it is necessary to ask, did the employer terminate the employment relationship, and on the approach of Gray J, it is necessary to ask whether the employer has done some act terminating or purporting to terminate the employment." His Honour decided that on either approach, the answer was the same in the matter before him and it was unnecessary for his Honour to express a preference between the two approaches. His Honour also said at page 160 that "a principal purpose, if not the sole purpose, of Division 3 is to provide an employee with a right to seek a remedy, in circumstances where the employee did not voluntarily leave the employment", a quotation which was cited with approval by the Full Court in the Mohazab case, at page 205
The decision of Moore J in Grout v Gunnedah Shire Council was set aside by the Full Court (Wilcox CJ, Spender and Beazley JJ) in Grout v Gunnedah Shire Council (1995) 62 IR 150.
At page 156, the Full Court set out the factual findings of Moore J. The Full Court said that "these actions terminated Mr Grout's employment, though not his contract of employment. They were actions that could properly be characterised as a termination at the initiative of the employer".
Therefore, this decision of the Full Court, together with that in the Mohazab case, indicates that the question of whether there has been termination of employment at the initiative of the employer is to be read as being a termination of the employment relationship at the initiative of the employer. The question still remains, however, whether the employment relationship was terminated by the initiative of the employer in the case of Ms Fisher.
THE BACK-TO-BACK CONTRACT CASES
A number of cases decided by the Court have considered the question of whether there has been a termination of employment at the initiative of the employer in circumstances where employment has not continued after a series of "back-to-back" contracts of employment.
Minister for Health v Ferry, unreported, IRCA 117/96, 4 April 1996, Full Court (Wilcox CJ, North and Madgwick JJ).
In this case, Mr Ferry was employed by the Minister as an orderly/ward assistant at Heathcote Hospital in Applecross. Mr Ferry's employment spanned the period from 8 January 1993 to 18 November 1994, but was not continuous over this period. In January and February 1993, he was employed under a series of short-term contracts relating to specific periods of time, from 48 hours to two weeks. Each short-term contract took the form of a one-page printed document signed by Mr Ferry and his immediate supervisor, Ms Kean.
Mr Ferry then did not work at the hospital after the end of February until 2 July 1993 when he was re-employed under a short-term contract which, together with successors, ran until 7 October 1993. There was then another gap in employment until 8 December 1993 when he was re-employed on a contract that expired on 25 February 1994. After a further gap, Mr Ferry was re-employed on a contract dated 31 March 1994, that was said to cover the period 28 March 1994 to 19 May 1994. On 17 May, Mr Ferry signed a further agreement for the period 20 May to 30 June 1994. On 1 July, Mr Ferry was asked to sign a further agreement for the period until 24 August 1994. After consultation with his union, he refused to do so. Nonetheless, he continued to work and was paid wages. This situation continued until after 24 August 1994. On 9 September 1994 Mr Ferry received a letter from the manager of the hospital, offering a fixed term appointment for the period 28 August 1994 to 8 November 1994. This he accepted without prejudice to his claims for permanent employment under a general order of the WA Industrial Relations Commission. Mr Ferry's employment did not terminate on 8 November 1994. On that date, Mr Ferry was told that he could continue to work at the hospital until the hospital closed. On 18 November 1994, the Minister closed the hospital and Mr Ferry's employment ceased.
The proceeding before the Full Court was an appeal from a decision of Marshall J. Marshall J had held (unreported, IRCA 408/95, 25 August 1995) that "the applicant was employed continuously by the respondent" during the period 8 January 1993 to 18 November 1994 (page 6). His Honour had "no doubt that the applicant was terminated at the initiative of the employer" (page 11).
On the appeal, the Full Court considered an argument that there was an agreement between the parties for the employment to terminate when the hospital was closed and that this was the event that brought Mr Ferry's employment to an end. It was submitted that it did not matter that it was the Minister who determined whether or not to close the hospital and if so, when. The reason for this, it was submitted, was that on 8 November when the agreement was made in respect of the last period of employment, both parties knew that the closure was imminent. The Full Court rejected this submission for two reasons. Firstly, their Honours said that the evidence did not establish an agreement to the effect contended for by the employer. Secondly, an agreement could not have legally undermined the terms of an applicable industrial award (the so-called RRR Award) which would have entitled Mr Ferry to continuing employment, pursuant to the terms of the award, even if Mr Ferry had agreed otherwise.
The Full Court therefore affirmed the decision of Marshall J.
D'Lima v Board of Management, Princess Margaret Hospital for Children, unreported, IRCA 407/95, Marshall J, 25 August 1995. In this case (decided on the same date as the judgment of Marshall J in Ferry), Ms D'Lima was engaged by the hospital as a cleaner. Ms D'Lima's employment commenced on 18 June 1993 and ceased on 11 December 1994. Ms D'Lima was employed under a series of fixed term contracts.
At page 9, Marshall J said that :
"In substance, and in truth, Ms D'Lima was employed continuously from 18 June 1993 to 11 December 1994 and during such employment requested and was granted leave without pay in March/April 1994. I reject unreservedly the submission of Mr Hooker [counsel for the respondent] that Ms D'Lima was employed on a series of fixed term contracts and that each contract expired on its own terms. Such a submission is totally at odds with the evidence. Further, from 18 June 1993 onwards, Ms D'Lima was subject to an award entitlement for two weeks' notice of her termination. In those circumstances, even assuming that each written form represents a stand alone contract, no-one can be certain as to when the contract will expire when it is entered into. See Andersen v Umbakumba Community Council (1994) 126 ALR 121, 126 (lines 29 to 42) where von Doussa J said : 'In the present case cl 3 and Sch 1 of the employment agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl 21(c) to bring the employment to an end on two weeks' notice, and the right of the employer under cl 21(d) to bring the employment to an end without notice on payment of two weeks' salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new agreement is entered into, pursuant to cl 29). Within the period stated in Sch 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates, neither side could know with any certainty when the period of the contract of employment might come to an end.'
I reject Mr Hooker's submission to the effect that Form 14 constituted a fixed term contract, starting on 31 October 1994 and ending on 11 December 1994. I find that Ms D'Lima's application is unaffected by Reg 30B(1) of the Industrial Relations Regulations which excludes from the Court's jurisdiction the consideration of an application under s 170EA of the Act from '. . . an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994'.
TERMINATION AT THE INITIATIVE OF THE EMPLOYER
I likewise reject the submission of Mr Hooker that the dismissal of Ms D'Lima was not a termination of employment at the initiative of the employer. The fact of the matter was that Ms D'Lima was continuously employed from 18 June 1993 to 11 December 1994 on which latter date her employment was terminated by the hospital. The practice of signing further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the Court to ignore the weight of strong countervailing factors indicating a continuous employment relationship. Mr Hooker described the relationship as 'relatively' continuous. I find no basis for the use of the adjective 'relatively' in that context.
If I may respectfully say so, this was a fairly robust approach by Marshall J. This is not, of course, to say that such an approach was other than correct in law and fact.
Strecker v Metropolitan Cemeteries Board (1995) 65 IR 109.
This was a decision of Boon JR. Ms Strecker was a horticulturalist who was first employed by the Metropolitan Cemeteries Board on a temporary basis for a period of one month from 27 February 1995 to 24 March 1995. Her letter of appointment stated that at the conclusion of this period, a review would be undertaken with regard to her employment status. Towards the end of the first month of employment, Ms Strecker was handed a letter by her supervisor, dated 22 March 1995, which extended her employment for a further month to 20 April 1995. Ms Strecker received an identical extension letter dated 10 April 1995 which extended the period of employment from Thursday, 20 April 1995 to Friday, 19 May 1995. Similarly, she received a letter dated 15 May 1995 in similar terms extending the period for a further month from Friday 19 May 1995 to Friday 16 June 1995. On 9 June 1995, Ms Strecker received a letter advising her that her temporary position would end on Friday, 16 June 1995. Ms Strecker's employment was governed by the provisions of the Cemeteries Board - Western Australia (Consolidated) Award 1993.
Boon JR had to consider whether Ms Strecker was engaged under a contract of employment for a specified period of time within the meaning of that expression in Regulation 30B.
Boon JR indicated that she thought Ms Strecker's case could not be distinguished from the decisions of Marshall J in Ferry and D'Lima and declined to follow the judgment of Linkenbagh JR in O'Neill v Australian National University. Boon JR distinguished the O'Neill case on the basis that in the view of Boon JR, Ms Strecker was in fact engaged on a continuous basis, and that the main purpose of the successive written contracts of employment was to avoid the obligations of the employer under the Industrial Relations Act. Accordingly, Boon JR found that there was a termination of employment at the initiative of the employer within the meaning of Article 3 of the Convention (page 120).
The Judicial Registrar said at page 120, "A decision, based primarily on Ms Strecker's performance, was made as to whether or not the employment relationship was to continue. The respondent acted to bring to an end the employer/employee relationship by making this decision and communicating it to the applicant by letter of 9 June 1995. I find that in this case there was a termination at the initiative of the employer ..."
Scally & Ors v Management of Sir Charles Gairdner Hospital, unreported, IRCA 130/96, 4 April 1996, Boon JR.
In this decision, Boon JR considered the termination of employment of three employees with the respondent. The evidence disclosed employees signing a series of contracts of employment where each new contract was given to them by people in the relevant department of the employer. In the case, for example, of Ms Thien-Soe, her employment ceased on 29 October 1995. Her employment originally commenced on 31 May 1993. On 9 October 1995, Ms Thien-Soe had been handed a letter, indicating that she had been employed on a fixed term contract for the period ending on 29 October 1995. The letter was written to advise that following the expiration of that contract, no further contract would be offered.
The respondent argued that there was no termination of employment at the initiative of the employer. The respondent argued that the contracts of employment simply ended by effluxion of time. Boon JR cited the D'Lima decision and found that the case before her could not be distinguished from the position in D'Lima. Boon JR therefore considered herself bound by the decision of Marshall J in D'Lima.
Boon JR also referred to the judgment of Marshall J in Ferry and the appeal to the Full Court in Ferry. The Full Court decision in Ferry was handed down on the same day in which Boon JR handed down her decision in Scally. Boon JR considered that the facts in the case before her were more like those in D'Lima than in Ferry. She concluded that the periods of employment of the applicant with the respondent were continuous and that the letter from the respondent to the applicant dated 9 October 1995 constituted a termination at the initiative of the employer.
Dadey v Edith Cowan University, unreported, RD Farrell JR, 8 July 1996.
This decision was handed down on the morning of the hearing of the notice of motion. The decision also involved the cessation of employment of an academic at the Academy. Mr Dadey was employed with the respondent as a lecturer in Dance (Classical) in the Academy. His employment commenced on 1 January 1993 and also continued until 31 December 1995. There was one contract of employment for three years.
The decision of RD Farrell JR was on a notice of motion filed by the respondent, seeking the dismissal of the application on the basis that there was no reasonable cause of action. This was supported on two fronts. The first was that the termination of Mr Dadey's employment was not a termination at the initiative of the employer. The second was that Mr Dadey was excluded from the operation of section 170EA of the Act by Regulation 30B(1)(a) of the Industrial Relations Regulations, because Mr Dadey was engaged under a contract of employment for a specific period of time, being a contract that was entered into before 16 November 1994.
With respect to the first submission, RD Farrell JR commenced his judgment by commenting that it was "well established that in sections 170EA and 170EE, termination of the employee's employment refers to a termination at the initiative of the employer, meaning an act done by an employer, terminating or purporting to terminate employment". RD Farrell JR cited APESMA v Skilled Engineering, Cooper v Darwin Rugby League and Mohazab v Dick Smith Electronics (Full Court).
RD Farrell JR referred to the argument of the respondent before him, based on O'Neill's case, that there was no termination at the initiative of the employer.
RD Farrell JR also referred to the judgment of Boon JR in Strecker and said that that judgment suggested "another possibility", in a case of back-to-back short-term contracts. RD Farrell JR quoted from that part of the judgment of Boon JR in Strecker, which has been quoted above.
RD Farrell JR then considered the argument that whilst Mr Dadey's contract of employment ended by effluxion of time on 31 December 1995, the employment relationship between Mr Dadey and the University was terminated because of the University's decision to offer the next contract for the position to someone else.
RD Farrell JR stated that the difference between the decisions in Strecker and O'Neill reflected a difference in construction of section 170EA of the Act. RD Farrell JR then referred to part of the judgment of Wilcox CJ in Siagian and the judgment of Gray J in APESMA v Skilled Engineering. Finally, RD Farrell JR referred to Mohazab and that part of the judgment of the Full Court where the Full Court "proceeded on the basis that the termination of employment relationship is what is comprehended by the expression 'termination of employment'."
RD Farrell JR concluded that he proposed to follow the approach in Siagian v Sanel and held that the University's decision not to offer a further contract of employment to Mr Dadey was an act done by the employer which resulted in the termination of the employment relationship. Therefore, he found that there was a termination at the initiative of the employer to which section 170EA and section 170EE of the Act applied.
The respondent submitted before me that this conclusion of RD Farrell JR, which appears at paragraph 33 of his judgment, was erroneous as a matter of fact and law and is, in any event, not binding upon me. The latter proposition is, of course, correct.
THE ALTERNATIVE ARGUMENT IN DADEY
Before leaving my consideration of Dadey, I would like to make some comments on the alternative argument that was put and decided upon by RD Farrell JR. This was the submission that Mr Dadey was an employee excluded by Regulation 30B in that he was engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994.
In the case before me, the respondent specifically did not rely on Regulation 30B. In the respondent's written submissions, after reference to the decision in Andersen v Umbakumba Community Council, Ms Long submitted that "Regulation 30B does not apply in Ms Fisher's case". This is because the respondent argued that the relevant contract of employment was the final contract which was agreed between Ms Fisher and the respondent, and which ran from 1 January 1995 to 31 December 1995. Therefore, this was not a contract entered into before 16 November 1994.
RD Farrell JR upheld the submission of the respondent in Dadey that Regulation 30B applied and excluded Mr Dadey's termination of employment from the operation of the Act. The reasoning of RD Farrell JR on this aspect of the case before him is at paragraphs 34 - 56 of his judgment.
RD Farrell JR referred to Andersen v Umbakumba Community Council and adopted the test of von Doussa J of the meaning of a contract for a specified period of time, as set out at page 462 of his Honour's judgment, as follows :
"A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment."
RD Farrell JR referred to the fact that in Andersen's case, the contract was held not to be a contract for a specified period of time because it conferred the unqualified right on either party to bring the employment to an end on two weeks' notice.
RD Farrell JR then considered clauses 16 and 17 of the Academic Staff (Edith Cowan University) Award 1988 which conferred rights to resign and to terminate upon an employee and employer respectively. The Judicial Registrar then considered whether the clauses had the effect of making the contract, in the case before RD Farrell JR, "similarly indeterminate" , as in the Andersen case, and therefore not a contract for a specified period of time. RD Farrell JR held that they did not.
RD Farrell JR came to this conclusion through the following process:
1.The Judicial Registrar considered that the respondent's right to terminate the appointments of staff members for grave professional misconduct or a wilful breach or continued neglect of duties could not have the effect of making the period indeterminate. RD Farrell JR referred to Andersen v Umbakumba Community Council at page 463 where von Doussa J referred to "an employer's right to terminate being dependent upon a breach of the contract by the employee" not being inconsistent with the contract being a contract for a specified period of time.
2.RD Farrell JR then considered whether the unqualified right to resign conferred on employees by clause 16 of the award "could be said to form part of Mr Dadey's contract". RD Farrell JR indicated that if so, "then it would have the effect of making the period of the contract indeterminate". RD Farrell JR then said (paragraph 42), "However, if Mr Dadey's right to resign derives solely from the award, it would not have the effect of making the period of the contract indeterminate. The fact that the award, in conferring that right, overrides the employee's obligations under the contract by force of statute, does not affect the proper characterisation of the contract of employment."
3.RD Farrell JR said that it is now clear that the terms of applicable awards are not automatically imported or implied into employment contracts. Here, the Judicial Registrar cited Byrne v Australian Airlines Limited.
4.RD Farrell JR then referred to the argument of the applicant that the terms of the award were implied as terms of the contract of employment or incorporated by reference in the contract. The Judicial Registrar determined the first limb of this argument against the applicant. He said, "It is not necessary for the reasonable and effective operation of the employment contract to imply a right to resign by notice into the contract." RD Farrell JR saw no basis on which the case before him could be distinguished from Byrne's case on that issue.
5.With respect to the incorporation by reference argument, and the fact that the award was listed as an award in the offer of appointment, attached to the offer of appointment and referred to in clause 8 of the offer of appointment, RD Farrell JR said that terms of the award being imported into the contract of employment due to the intentions of the parties had not been argued in Byrne. Further, RD Farrell JR held that the relevant clause of the offer of appointment did not suggest that the terms of the awards were to be incorporated into the contract of employment. RD Farrell JR held that "the mere fact that the existence of those awards is recognised and referred to in the offer of appointment is not enough in my view to indicate an intention to give the terms of those awards contractual force, in circumstances where the awards already have statutory force. Any argument to the contrary would have no firmer foundation than the 'crystallised custom' argument which was discussed and rejected in Byrne v Australian Airlines Limited."
6.For these reasons, RD Farrell JR held that on the evidence before him, he was not prepared to find that the terms of the award should be incorporated into the contract as contractual terms. The Judicial Registrar was therefore satisfied that the contract was a contract of employment for a specified period of time, and a contract that was entered into before 16 November 1994. Therefore, the Judicial Registrar found that Regulation 30B applied and that Mr Dadey was an employee excluded from the operation of the relevant provisions of the Industrial Relations Act.
With great respect to RD Farrell JR, I do not agree with his analysis of the combined effect of a contract of employment and an award in considering whether a contract of employment meets the description set out in Regulation 30B. Regulation 30B refers to a contract of employment for a specified period of time. The judgment of von Doussa J in Andersen indicates that a contract for a specified period of time is one where the time of commencement and the time of completion are unambiguously identified by a term of the contract.
The approach of RD Farrell JR in Dadey was to: (a) consider whether the relevant clauses of the award were terms of the contract; (b) decide that they were not; and (c) hold therefore that the contract of employment, was a contract for a specified period of time, there being no clauses in the contract of employment itself (unlike Andersen) which gave the employer or employee an unqualified right to terminate the contract before the expiry of its term.
In Andersen, von Doussa J did not consider the issue of a clause of a relevant award conferring on either the employee and/or the employer the right to terminate the contract for other than a breach of the contract. In my opinion, the judgment of von Doussa J in Andersen does not decide that only rights to terminate a contract of employment before the expiry of its term, which have their origin in the contract of employment itself, have the effect of making the contract of employment for other than a specified term. Von Doussa J does not consider the question of such a right having its origin in an award as opposed to the contract of employment itself. This was probably because the case before von Doussa J did not involve an award.
Clause 16 of the Academic Staff (Edith Cowan University) Award 1998 states in subclause (a) that "a staff member shall give six months' notice in writing, prior to resignation. Subclause (b) states that "in special circumstances, the council or its nominee may accept a lesser period of notice." Subclause (c) states that "resignation shall normally coincide with the conclusion of a teaching session or semester". The word "staff" is defined in clause 5 of the award to mean "the permanent, full-time, permanent part-time or fixed term, full-time academic staff of the Edith Cowan University, as determined by the council or its nominee". Clause 5 defines "Fixed-term, full-time staff" to mean "the fixed term, full-time academic staff of the Edith Cowan University, as determined by the Council or its nominee, who are non-permanent academic staff employed under contract for a specified period at the conclusion of which the appointment automatically lapses."
Due to the definition of "staff", clause 16 applies to the fixed term, full-time academic staff of the university. Clause 16 gives such a staff member an entitlement to resign upon the giving of six months' notice in writing, prior to the resignation. Therefore, as long as a full time, fixed term staff member complied with the notice provision contained in clause 16 of the award, they would not breach their contract of employment, (or at would at least have a good defence to such a claim) if they resigned prior to the completion any "fixed term" appointment. This is because of the nature of an award.
Section 149 of the Act provides that an award determining an industrial dispute is binding on the list of parties, persons, and entities set out in section 149 of the Act. This includes the parties to the industrial dispute who appear or are represented before the Australian Industrial Relations Commission in relation to the making of the award and extends to the other parties, entities and persons referred to in section 149(1)(b) - (f).
The nature of a federal award was considered by the High Court in Byrne & Frew v Australian Airlines Limited. That case concerned the clause of an award which was first made under the Conciliation and Arbitration Act (1904), the predecessor to the Industrial Relations Act.
At page 425, the majority said that "the award affected an alteration in the rights and obligations of the parties to the contract, but it did so by force of the Conciliation and Arbitration Act".
At page 426, the majority said :
"A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. The award regulates what would otherwise be governed by the contract. But award rates are imported as a statutory right imposing a statutory obligation to pay them. The importation of the statutory right into the employment relationship does not change the character of the right.
As Latham CJ points out in his judgment in Amalgamated Collieries of WA Ltd v True, the legal relations between the parties are in that situation determined in part by the contract and in part by the award. And as the judgment of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement."
Further, at page 427, the majority said:
"In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award. The contract may provide additional benefits, but cannot derogate from the terms and conditions imposed by the award and, as we have said, the award operates with statutory force to secure those terms and conditions. Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations" (footnote omitted).
Finally, at page 428, the majority said, "A term of an award derives its force, not from agreement between the parties, but from statute. That being so, if a contract of employment is made in reliance upon a provision of an award, it is not a reliance which requires the provision to be made a term of the contract because it already has statutory force."
In the judgment of McHugh and Gummow JJ at 454, their Honours said that "the present case is concerned with the operation and effect of the award, which draws its legal efficacy from the rather special provisions of the 1904 Act and now the 1988 Act". The reference to the 1904 Act and the 1988 Act was a reference to the Conciliation and Arbitration Act and Industrial Relations Act respectively. Their Honours continued that "it is well established that the award is made part of the law, not by its own force but by force of its adoption by the Statute, which makes the directions contained in it binding and enforceable law" (footnotes omitted).
Their Honours referred to section 149 of the Act and said that :
"An award made under the present statute or predecessor by the relevant arbitral body is given binding effect, pursuant to the provisions we have mentioned . . ." (footnotes omitted).
At page 458, their Honours mentioned that they had already "referred to the rather special juristic nature of the award".
In my opinion, based on the nature of an award as set out in the relevant passages from Byrne & Frew v Australian Airlines Limited, as cited above, if an award gives an employee an entitlement to resign on the giving of a set period of notice, prior to the end of the otherwise fixed term of a contract of employment, then it cannot be said that the time of completion of a contract is unambiguously identified by a term of the contract (to use the expression of von Doussa J in Andersen). Therefore such a contract of employment does not fit the description set out in Regulation 30B of the Act. If an award permits an employee, without breach, to terminate a contract of employment upon the giving of notice, it cannot be said, in my opinion, that the employee is engaged under a contract of employment for a specified period of time. The contract, even if, in its terms is for a specified period of time, has been "altered" (to use the adjective of the majority in Byrne at 425) by the award. This is therefore not a contract which has its time of completion unambiguously identified by a term of the contract. The award alters the contract and effects an ambiguity.
As stated, on this aspect, I respectfully differ from this aspect of the judgment of RD Farrell JR in Dadey v Edith Cowan University. I think that my opinion of the matter is supported by the judgment of Marshall J In D'Lima, in a passage which was quoted earlier in this judgment. Relevantly Marshall J said that, "from 18 June 1993 onwards, Ms D'Lima was subject to an award entitlement for two weeks' notice of her termination. In those circumstances, even assuming that each written form represents a stand-alone contract, no-one can be certain as to when the contract will expire when it is entered into." (emphasis added). As quoted earlier, Marshall J then cited with approval part of the judgment of von Doussa J in Andersen.
I make no observations on the correctness or otherwise of the rejection by RD Farrell JR, on the evidence before him, of the argument that the terms of the award were incorporated by reference into or implied terms of the contract. I do note that, as quoted above, the majority of the High Court in Byrne (at page 426) indicated that a provision in an award may also be made a term of the contract by agreement between the parties.
TERMINATION OF EMPLOYMENT AT THE INITIATIVE OF THE EMPLOYER - CONCLUSION
The respondent's argument has been set out earlier. The argument, put simply, is that where there is a contract of employment which in its terms is for a fixed term and the fixed term expires, the fact that there is then no contract of employment between the employer and the employee is not due to any action of the employer but is simply due to the effluxion of time. This submission has a simple logic about it. One can ask rhetorically, "How can it be said that employment is terminated at the initiative of the employer, when it is simply the effluxion of time which has led to the cessation of the employment?"
The respondent's arguments are supported by the O'Neill case and the Bolotin case, although the latter case is somewhat different factually. There, the cessation of employment occurred at the end of the year in which Mr Bolotin turned 65, because of a university statute which was expressly incorporated into the employment contract. Further, it could now be argued, based on the judgment of Gray J in Christie, that Bolotin was wrongly decided, as by enforcing the term of the contract against the will of Mr Bolotin, the university initiated the termination of employment (see page 10 of the judgment of Gray J in Christie).
Also in support of the respondent's submissions is the article by Ms Pittard, cited earlier, at page 23, where the learned author, in considering the expression "initiated by the employer" said this "means that where a fixed term contract naturally comes to an end by the effluxion of time, there will be no security of employment given in these circumstances; there has not been termination initiated by the employer."
In another chapter in Employment Security, entitled Demise of Tenure in Public Sector Employment by Mr G McCarry at page 161, the learned author says:
"Will the expiration of a fixed-term contract by effluxion of time constitute a termination of employment, whether the contract is an executive contract or one with a lesser functionary? The question is significant because the Convention says that 'employment . . . shall not be terminated' in impermissible circumstances and the Act uses the phrasing 'an employer must not terminate'.
This strongly suggests the need for some active steps by the employer, so that there will be no access to the new jurisdiction if a fixed-term contract is simply allowed to run its course and is not renewed, even if the employee had some expectation of renewal. If correct, this applies in the private and the public sector without the need for any regulation to be made.
However, in my opinion, the argument of the respondent, although having the support referred to above is, with respect, not sustainable in the particular circumstances of this case, for the following reasons:
The question to consider is whether the termination of the employment relationship was at the initiative of the employer. I make this statement of law based on Siagian v Sanel; the indication by the majority in Byrne v Australian Airlines Limited that there is a distinction between the employment relationship and contract; Mohazab (Full Court); Grout v Gunnedah (Full Court) and the approach of Marshall J in D'Lima and Ferry.
In my respectful opinion, the approach in O'Neill is erroneous in so far as it focuses solely on whether the final contract of employment had been terminated at the initiative of the employer. It is not the termination of the employment contract which is material for the purposes of the Act, but the termination of the employment relationship; although, in fairness to Linkenbach JR, it seems the two were synonymous in that case as there was no evidence of a decision by the employer not to continue the employment relationship. On this issue, the Judicial Registrar simply said that the applicant wanted to assert a reasonable and legitimate expectation of continuing employment based on the practices of the university. Linkenbach JR thought that any expectation of renewal was irrelevant. That situation is factually different from a situation such as the present, where the respondent has decided not to continue the employment relationship by failing to appoint Ms Fisher to the position she applied for.
In this case, the employment relationship between Ms Fisher and the respondent commenced when she first accepted the offer of an appointment to the position of a lecturer in Dance Studies at the Academy on 31 December 1992. The relationship of employment ceased on 31 December 1995. This was at the cessation of her final one year contract which commenced on 1 January 1995. The employment relationship could have continued. Ms Fisher applied in writing for position 721 advertised in Exhibit D to Ms Fisher's affidavit. She was interviewed for the position and was on a two-person shortlist. If she was the successful applicant, she would have commenced a one year to three year contract in January 1996. Ms Fisher was not the successful applicant. Dr Gibbs wrote to Ms Fisher on 31 October 1995 and advised her of that. If Ms Fisher had been the successful applicant, the employment relationship would have continued, albeit with a different contract of employment, on 1 January 1996 and following. It was the respondent's earlier decision, made on 31 October 1995, that meant that this did not occur.
It was, therefore, the decision of the respondent not to appoint Ms Fisher to the position for which she applied and which commenced on 1 January 1996 which led to the termination of the employment relationship. This decision, and hence the termination of the employment relationship was clearly that of the employer.
The decision by the employer was an act done by the employer which brought the employment relationship to an end. To use the words of Wilcox CJ in the David Graphics case, as cited with approval by the Full Court in Mohazab, it was the decision by the respondent not to appoint Ms Fisher to the position for which she applied which was the "critical action" which led to the termination of the employment relationship. Further, as stated by Moore J in Grout v Gunnedah, and the Full Court in Mohazab, Ms Fisher did not leave the employment relationship voluntarily. The failure to appoint Ms Fisher to the position commencing 1 January 1996 was the "principal contributing factor" which lead to the termination of the employment relationship, to use the words of the Full Court in Mohazab at page 205.
In my opinion, the judgments of Wilcox CJ, and Spender and Marshall JJ in the Full Court in Christie v Qantas do not constrain me to find in favour of the respondent's submission. In my opinion, the facts of this case are qualitatively different from those in Christie's. The Court, in that case, did not consider the issue of a decision by an employer not to continue the employment relationship when the employer could have chosen to do so by appointing the employee to a position for which they had reached a two person shortlist. The facts in this case are more analagous to those in D'Lima and Ferry, where Marshall J and the Full Court in the latter did find there was a termination of employment at the initiative of the employer. Further, other than Spender J, who was in the minority, no judge in Christie actually made a finding that there was no termination of employment at the initiative of the employer, in that case.
In this case the employment relationship could have continued if the respondent had appointed Ms Fisher to the position for which she applied. It decided not to do so. This terminated the employment relationship, at the initiative of the employer.
The respondent's submission ignores the fact that the employment relationship involved more than the final contract of employment. It commenced in December 1992 and could have continued if Ms Fisher had been appointed to continue her employment with the respondent in 1996. My finding may have been different if there was simply one fixed term contract, which expired without any possibility or prospect of the employment relationship continuing by way of a further appointment and contract of employment.
In my opinion, the construction of the Act which has been preferred in my judgment is most consistent with the object of the relevant division of the Act, the Termination of Employment Convention, and the judicial references to the objects of the Act, cited above, in the judgments of Aitken, Grout (per Moore J), Mohazab and Burazin. Therefore, such a construction is to be preferred, under the Acts Interpretation Act, than the narrower view that there was no termination of employment at the initiative of the employer because the employment simply ceased because of the effluxion of time.
THE NEW ZEALAND CASES
In its submissions, the applicant endeavoured to support its argument by reference to three New Zealand decisions, being Hadden v Victoria University of Wellington, 10 April 1995, WEC20/95; Trotter v Telecom Corporation of New Zealand Ltd, 21 October 1993, WEC29/93; and Smith v Radio i Ltd, 20 March 1995, AEC15/95. These were all decisions of the New Zealand Employment Court.
It has not been necessary for the purposes of this judgment to refer to these decisions.
NOTICE OF MOTION - CONCLUSION
It follows from what I have set out earlier in this judgment that I do not accept the respondent's submission that there is no reasonable cause of action disclosed by the summary of facts filed by the applicant, amplified by the affidavit of Ms Fisher and taking into account the affidavit and oral evidence of Dr Gibbs and the submissions of the respondent.
This means that the Court has jurisdiction to hear the application under section 170EA of the Act. This does not, of course, mean or indicate in any way that the applicant has any particular prospects of success with the application under section 170EA. All that this judgment does is determine that the Court has jurisdiction to hear the application under section 170EA.
Whether or not the termination of the employment relationship by the respondent was unlawful is a separate matter. This will, of course, depend on whether there has been a breach of any particular section of the Act, including sections 170DC and 170DE. These are not matters on which I have as yet considered any evidence.
However, following from what I have said above, the initial question for the purpose of section 170DE will be whether the respondent had a valid reason in failing to appoint Ms Fisher to the position she applied for, which would have commenced on 1 January 1996. This is because it was this action by the employer which effected the termination of the employment relationship.
The appropriate course at this stage is to deliver and publish this judgment and make directions for the timing of the hearing of evidence relevant to the application under section 170EA of the Act. The parties may wish to pursue the option of settlement negotiations or mediation, rather than simply proceed with the trial. I will hear further from the parties' representatives on this issue.
At this stage, therefore, the only orders that the Court need make are as follows:
The notice of motion of the respondent, filed on 4 July 1996, is dismissed;
The further hearing of this application be held at such time and in such manner as directed by the Court.
I certify that this and the preceding 55 pages are a true copy of the reasons for decision of Judicial Registrar Ritter as recorded in the transcript and revised by the Judicial Registrar
Associate :
Dated : 16 July 1996
APPEARANCES
Representatives for the Applicant: Mr N Hodgson
Mr W Claydon
Representatives for the Respondent: Ms S Long
Mr D Shelton
Mr B Cant
Dates of Hearing : 8 July 1996
Date of Judgment : 16 July 1996
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