Oostra and Others and ANF v Spastic Society of Victoria Ltd

[1995] IRCA 125

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1479-1484 of 1995

BETWEEN:

OOSTRA & OTHERS & ANF
Applicant

AND

SPASTIC SOCIETY OF VICTORIA LTD
Respondent

REASONS FOR JUDGMENT

31 March 1995  Judicial Registrar Staindl

Anneke Oostra, Eileen ("Jan") Jellef, Diane Ryan, Mary Burns, Jocelyn Traill and Felicity Farmer ("the applicants") are nurses.  They were employed by the Spastic Society of Victoria Ltd ("the respondent") at Rattray‑Wood House in East Malvern.

On 25 March 1994 four of the applicants were handed a letter dated 22 March 1994 in the following terms:

"Dear

The Spastic Society of Victoria wishes to advise you of its intention to discontinue your position at Rattray‑Wood House, effective from 30 June 1994.

This has come as a result of Health and Community Services refusal to fund nursing position in their current format.

The Society intends to employ a health educator to service all Residential programs in the future.

It is with regret that I have to inform you of this information and thank you for your years of loyal service to the organisation.

Yours sincerely,

Diana Heggie
General Manager Residential Services"

The persons handed letters on this day were Jan Jellef, Diana Ryan, Jocelyn Traill and Felicity Farmer.  It is conceded that Anneke Oostra received her copy of this letter prior to 30 March 1994.  Mary Burns did not receive her copy until after that date.

Division 3 of Part VIA of the Act was part of the provisions introduced by the Industrial Relations Act 1993.  This division commenced operation on 30 March 1994.  It is therefore critical to decide in respect to five of the applicants the effect of the letter dated 22 March.  Two questions arise out of this letter:  firstly, was it a "written notice of termination" within the meaning of subsection 170EA(3) of the Act?  Secondly does this letter operate to constitute a termination of employment?

On a first reading of the letter of 22 March it may be thought surprising that it could be argued that it does not constitute written notice of termination.  However, the applicants rely on evidence subsequently given on oath by the author of the letter.  This evidence was given in proceedings in the Employee Relations Commission of Victoria where the present applicants had also filed applications pursuant to s.38 of the Employment Relations Act 1993 (Vic.) which provides a remedy in respect to dismissals which are harsh, unjust or unreasonable.  More will be said about these proceedings in due course.

The evidence of Ms Heggie indicates that in terminating the employment of the applicants she attempted to comply with the provisions of the relevant award relating to redundancy.  It was conceded by both sides that the Nurses (Victorian Health Services) Award 1992 applied to the employment of the applicants.  Clause 37 of that award deals with redundancy and makes detailed provision for discussions to occur prior to terminations of employment.  Ms Heggie gave evidence that she held such discussions in early April, i.e. after the letters dated 22 March had been given to the applicants.  Furthermore Ms Heggie stated that even after these letters were sent she had not closed her mind entirely to the possibility that the redundancies should not occur.

The applicants therefore argue that the letter of 22 March is not a written notice of termination.  They draw attention in particular to the use of the word "intention" in the first sentence of the letter as indicating a desire or state of mind only:  it does not indicate that a decision had been made to the effect stated in the letter (of the applicant's employment being discontinued on 30 June 1994).  The applicant's also point to the second sentence where reference is made to the refusal to fund nursing positions in their current format.  It was submitted that changes to the nursing positions may have meant that the employment of the applicants did not need to be terminated.

In my view the letter does constitute a written notice of termination.  The use of the word “intention” is perhaps unfortunate, but is insufficient to alter a reasonable interpretation of the letter as being a notice of termination of employment.  The second sentence really only gives a reason for the dismissals:  whether or not the reason is correct does not alter the fact of the dismissals.  Furthermore the last sentence of the letter, which expresses regret at this action and thanks the employee for her loyal service to the organisation, clearly contemplates that the employment of the applicants is to cease.

It seems to me that the evidence given subsequently by Ms Heggie does not assist the applicants.  The letter must be viewed at the time it was received by the applicants and not in light of evidence given some months later.

The second question concerns the date of the termination of employment.  With respect, I adopt what was said by Gray J in APESMA v Skilled Engineering Pty Ltd 122 ALR 471 where he refers to the time limit to be found in S 170 EA. He states:-

“That time limit is conditioned on receipt by the employee of written notice of termination.  The time allowed is 14 days, although provision exists for the court to allow a further period.  Written notice might be for a long period.  It would be strange if an employee who had received written notice was expected to make an application within 14 days, when the notice had not expired, and could not be given a remedy at the time of commencement of the proceeding (or even at the time when the court tries the proceeding), because the “employment had not been terminated”: s 170 EE(1).  If the giving of notice is regarded as the termination, and as giving rights immediately it occurs, the difficulty vanishes.  The giving of notice is the unilateral exercise of a right by a party to a contract.  A notice is not capable of being withdrawn by the party giving it, without the consent of the other party.  Such consent may create new contractual rights.  If notice is not withdrawn by consent, it operates inexorably to bring the contract to an end, as long as it is notice in accordance with the contract and is not in contravention of any external provision with legislative force:  see Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 457-9 and the authorities there cited.  Thus, in general, notice given by an employer will inevitably bring the contract of employment to an end at the expiry of the notice.  There is nothing more the employer can or needs to do to produce this result.  It is therefore appropriate to view the giving of notice as the “termination” for the purposes of ss 170 EA and 170 EE of the IR Act.”

This means that the giving to the applicants of the letter of 22 March brought to an end their contracts of employment.  This occurred prior to 30 March 1994 and according is not a “termination” for the purposes of s 170 EA.

Mary Burns did not receive her copy of the 22 March letter until after 30 March.  Application is made by her for an extension of time.  It is convenient to briefly set out a timetable of relevant events.

Early April 1994  Ms Burns received letter dated 22 March 1994.

15 June 1994 Application filed in this Court pursuant to S 170 EA.

30 June 1994       Ms Burns ceased working for the respondent.

7 July 1994         Application filed in Employee Relations Commission of   Victoria.

26 July 1994       Application filed in this Court discontinued.

3 August 1994 -

10 February 1995 Hearings in Employee Relations Commission.

8 February 1995  Application filed in this Court.

There has been 10 months between the receipt of the letter of termination and the filing of the current Application.  During this time an earlier application was filed in this Court and subsequently discontinued.  Substantial time and cost has been devoted to the hearing of Ms Burns’ application (and associated applications) in the Employee Relations Commission.

In my view an applicant who asks for a further period pursuant to s 170 EA needs to demonstrate a reason for the delay. It may be that in a case where a lengthy period of notice is given following a written notice of termination, then a further period would readily be allowed to the end of the period of notice. In my view the fact that an applicant had continued working for the employer would be a relevant consideration in allowing a further period. In this case, an extension of time would be allowed until 30 June 1994 on this basis. However since that time an application has been pursued in the Employee Relations Commission and in my view represents significant prejudice to the respondent if this application were to be allowed.

In my view the application to extend time and the application pursuant to s 170 EA should be dismissed. No order as to costs should be made: I do not find that the proceedings in the case of Ms Burns or the other applicants were instituted without reasonable cause.

Accordingly I will order that the applications filed in each of the matters pursuant to S 170 EA are dismissed.

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

Associate:

Dated:               31 March 1995

Solicitors for the Applicant: Counsel for the Applicant:	Ryan Carlisle Thomas Mr S. Howells
Solicitor for the Respondent: Counsel for the Respondent:	Freehill Hollingdale & Page Mr T. Ginnane
Dates of hearing:	24 March 1995
Date of Judgment:	31 March 1995

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - written notice of termination - date of termination of employment - extension of time - prejudice to respondent - applications dismissed.

Industrial Relations Act 1988, ss. 170 EA

Cases:   Apesma v Skilled Engineering Pty Ltd 122 ALR 471

OOSTRA & OTHERS & ANF -v- SPASTIC SOCIETY OF VICTORIA LTD

NO. VI 1479-1484 of 1995

Before:  STAINDL JR

Place:    MELBOURNE

Date:     31 MARCH 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1479-1484 of 1995

BETWEEN:

OOSTRA & OTHERS & ANF
Applicant

AND

SPASTIC SOCIETY OF VICTORIA LTD
Respondent

MINUTES OF ORDER

31 March 1995  Judicial Registrar Staindl

THE COURT ORDERS THAT:

The applications in VI 1479, VI 1480, VI 1481, VI 1482, VI 1483 and VI 1484 are dismissed.

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