Robyn Susan Strecker v Metropolitan Cemeteries Board
[1995] IRCA 620
•22 November 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - series of back-to-back short fixed term contracts - whether CASUAL EMPLOYEE - whether SPECIFIED PERIOD CONTRACT - whether purpose of contract was to avoid employer's obligations under Industrial Relations Act - whether termination at initiative of the employer - TERMINATION OF EMPLOYMENT CONVENTION - COMPENSATION
INDUSTRIAL RELATIONS ACT 1988 Ss 170CC, 170DC, 170DE, 170EA
INDUSTRIAL RELATIONS REGULATIONS 1989, REG. 30B(1)(aa), 30B(2), 30B(1)(c), 30B(3)
D'Lima v Board of Management Princess Margaret Hospital for Children (unreported, IRCA No. 407/95, Marshall J, 25 August 1995)
Ferry v Minister for Health, Western Australia (unreported, IRCA No. 408/95, Marshal J, 25 August 1995)
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233
Andersen v Umbakumba Community Council (1994) 126 ALR 121
The Association of Professional Engineers, Scientists and Managers Australia v Skilled Engineering Pty Ltd (1994) 122 ALR 471
O'Neill v Australian National University (unreported, IRCA No. 486/95, Linkenbagh JR, 29 August 1995)
Siagian v Sanel Pty Ltd (1994) 122 ALR 333
ROBYN SUSAN STRECKER -v- METROPOLITAN CEMETERIES BOARD - WI 95/1733
BEFORE: BOON JR
PLACE: PERTH
DATE: 22 NOVEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1733
BETWEEN: ROBYN SUSAN STRECKER
- Applicant
AND: METROPOLITAN CEMETERIES
BOARD
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 22 NOVEMBER 1995
THE COURT ORDERS THAT:
The respondent pay to the applicant for the unlawful termination of her employment, compensation in the sum of $435 per week for the period 16 June 1995 to 3 November 1995, being a total of $8,700, within 14 days of the date of this order.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95 /1733
BETWEEN: ROBYN SUSAN STRECKER
- Applicant
AND: METROPOLITAN CEMETERIES
BOARD
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 22 NOVEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation for the alleged unlawful termination of the applicant's employment with the respondent. The applicant alleges that the Act was breached in a number of ways. In the first place, it is said that there was no valid reason for the termination within the meaning of Section 170DE of the Industrial Relations Act. Further, the applicant says that she was not given an opportunity to respond to allegations against her performance or conduct within the meaning of Section 170DC of the Act.
The respondent does not contend that there was a valid reason for the termination or that the applicant was given an opportunity to respond to allegations made against her. It has, however, raised a number of special defences as follows:
The application discloses no reasonable cause of action:
(a)The applicant's contract of employment with the respondent expired by effluxion of time;
(b)The respondent did not terminate the applicant's employment within the definition contained in Article 3 of the Termination of Employment Convention, Schedule 10 of the Industrial Relations Act;
(c)Section 170EA of the Industrial Relations Act applies only to terminations of employment within the definition of Article 3 of the Termination of Employment Convention.
The applicant is excluded by Regulation 30B of the Industrial Relations Regulations from the operation of subdivision C of Division 3 of Part VIA of the Industrial Relations Act:
(a)The applicant's contract of employment with the respondent was entered into after 16 November 1994 and was for a specified period of less than six months;
further and/or alternatively
(b)the applicant was a casual employee engaged for a short period within the mean of sub-regulation 3 of Regulation 30B of the Industrial Relations Regulations."
The main thrust of the applicant's argument in response to these defences was that although the employment of the applicant was expressed to be under a series of fixed term contracts, it was in reality for one continuous period. Further, it was said that a main purpose of the engagement in this way was to avoid the employer's obligations under the Act within the meaning of Regulation 30B(2) of the Industrial Relations Regulations. The arguments of each side will be dealt with further on in these reasons for judgment.
Before the commencement of the hearing of this matter the respondent made an application under Order 20 Rule 2 for an Order that the proceeding be dismissed as no reasonable cause of action was disclosed. It was said by Counsel for the respondent that the Summary of Facts filed on behalf of the applicant disclosed that this Court had no jurisdiction to deal with the matter. I indicated that I was not satisfied on the basis of the Summary of Facts alone that this was so. The hearing of this matter therefore proceeded and the application under Order 20 became absorbed into the overall hearing of the substantive matters in this case.
BACKGROUND
The applicant, Ms Strecker, was at all relevant times aged 22 years. Ms Strecker is a qualified horticulturalist and had previously worked in Sydney for a local council for four years as an apprentice and one year as a qualified horticulturalist. Ms Strecker's husband is in the navy. In November 1994 Ms Strecker and her husband moved from Sydney to Perth as Ms Strecker's husband was transferred to service in Western Australia.
The respondent, the Metropolitan Cemeteries Board, operates several cemeteries in the Perth metropolitan area, including the Karrakatta Cemetery.
In February 1995 Ms Strecker responded to a newspaper advertisement in the West Australian newspaper calling for applications for the position of Horticulturalist with the respondent at the Karrakatta Cemetery. On 14 February 1995 Ms Strecker completed and submitted to the Metropolitan Cemeteries Board an application for the advertised position. On 21 February 1995 Ms Strecker was interviewed by a panel consisting of three of the respondent's officers, namely Melissa Wrightson, Paul Hartley and Margaret Lindsey. The position of horticulturalist was described to Ms Strecker at the interview. A number of questions were asked of her. Ms Strecker said that she was told that there was a three month probationary period, and that the position would more than likely be permanent after that. She said that they did not mention the fact that it was a fixed term contract which was being offered.
Ms Strecker said that she felt comfortable during the interview and was not nervous. She said it was her first interview since she had arrived in Perth and that she felt comfortable because the interviewers were nice people and the surroundings were pleasant. Ms Strecker said that Melissa Wrightson told her that it was a probationary period at the end of the interview. She was shown a duty statement. Ms Strecker knew that the interviewers were writing things down but she didn't know if they had any other papers.
A few days after the interview Paul Hartley telephoned Ms Strecker to say that she had the job. She was asked to start as soon as possible and agreed to commence on the following Monday. Ms Strecker subsequently received a letter dated 24 February 1995. The letter reads as follows:
"Dear Mrs Strecker
TEMPORARY POSITION OF HORTICULTURALIST
I am pleased to offer you an appointment to the above position.
Please note that your appointment with the Metropolitan Cemeteries Board will be on a temporary basis for a period of one (1) month. The period of your appointment will be from Monday 27 February 1995 to Friday 24 March 1995 inclusive. At the conclusion of this period, a review will be undertaken with regard to your employment status.
Your hours of duty will be eight hours per day to be worked between 7.00 am and 4.30 pm, Monday to Friday (start times may vary dependent upon seasonal and/or public interest factors). You will be entitled to one rostered day off approximately once a month. As previously discussed with you, you may be required to work overtime on occasions.
You will be required, as a condition of your employment, to wear a uniform. The uniform will be provided by the Metropolitan Cemeteries Board at no cost to you. Uniform maintenance/cleaning costs are borne by individual employees.
Conditions of service are in accordance with the provisions of the Cemetery Boards - Western Australian (Consolidated) Award, 1993. The position of Horticulturalist is classified as Level 3.1 under the provisions of the Award and as such your salary rate will be $870/fortnight.
Documentary evidence of your age and status as a permanent resident of Australia will be required to be presented upon commencement. You are also requested to sign the attached duplicate of this letter and to complete the attached forms and return them to Melissa Wrightson, Co-ordinator Corporate Services at Karrakatta Cemetery as soon as possible to signify acceptance of this offer. If you have any queries regarding the completion of these forms or require further information in relation to our superannuation plan, please feel free to contact either Paul Hartley (Acting Co-ordinator Grounds - Karrakatta) or Melissa Wrightson.
Congratulations on your appointment. We look forward to your active participation as a member of the Metropolitan Cemeteries Board team in the future.
Yours sincerely
J L (John) Holman
Planning and Technical Services Manager"
Ms Strecker signed the bottom of the letter as requested.
Towards the end of her first month of employment Ms Strecker was handed a letter by her supervisor, Peter Davis. The letter was dated 22 March 1995 and read as follows:
"Dear Robyn
TEMPORARY POSITION OF HORTICULTURALIST
We wish to advise you that your temporary position of cemetery worker will be extended for a further month from Friday, 24 March 1995 to Thursday, 20 April 1995.
The conditions of your employment during this period will continue as per your original letter of appointment and as per the provisions of the Cemetery Boards - Western Australia (Consolidated) Award 1993.
We would like to thank you for your efforts to date and look forward to your further participation as part of the Metropolitan Cemeteries Board team in the following month.
Yours sincerely
J L Holman
Planning and Technical Services Manager"
Ms Strecker said that she would have received this letter on the Wednesday or Thursday before Friday 24 March 1995. Her evidence was that she was normally given the letters before the term expressed in the letter expired, on the pay day. She said "They gave it to me on Thursday so we wouldn't have to finish on Friday". 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. The only other difference from the earlier extension letters is that the letter of 15 May 1995 contained a further paragraph as follows:
"We hope you will increase your efforts made to date and look forward to your further participation as part of the Metropolitan Cemeteries Board team in the following month."
Mr Davis told Ms Strecker when he handed her the letter that she should increase her efforts at supervision, and Ms Strecker sought to do so during her final month of employment. Ms Strecker received a final letter dated 9 June 1995. She is certain that she received that final letter before the date stated on the top of it. Mr Davis asked her to come into his office. He told her that the head people had been harping at him to keep her on or put her off. Ms Strecker was extremely upset during the interview and started crying. The final letter reads as follows:
"Dear Robyn
TEMPORARY POSITION OF HORTICULTURALIST
We wish to advise you that your employment with the Metropolitan Cemeteries Board in the temporary position of Horticulturalist will end of Friday 16 June 1995 at the conclusion of your current contract.
We would like to thank you for your participation in our team and hope you have gained useful experience within our working environment. We trust that this knowledge and experience can be applied to your chosen career path.
Yours sincerely
G J FREER
Acting Manager Operations"
During cross examination Ms Strecker said that she signed the bottom of the letter dated 27 February 1995 because it told her to sign it. She read the letter and understood it. She did not ask anyone any questions about what was contained in the letter and she agreed that there was nothing about any of the letters which led her to believe that her position was anything but temporary.
In re-examination she said she was never given the choice of being a full time worker. She was never given an indication that her employment would end until she was called in for her final interview with Mr Davis on 14 June 1995. Ms Strecker's evidence was that the termination of her employment caused her some financial hardship. She also doesn't feel as confident as she used to when she applies for other positions. She feels low and gets angry easily as she is so bored at home.
James Mitchell, who has been employed by the Metropolitan Cemeteries Board as a gardener for seven years also gave evidence. He said that the work of horticulturalists at the Karrakatta Cemetery is not seasonal and there is a reasonably steady volume of work. He said that after the Award restructuring came through several years ago there seemed to be a change in that some workers now are on short term contracts. The only seasonal work relevant to the gardens at the Cemetery is that in summer they need extra people to do watering. The respondent then employs young people, normally students, for some weeks to do the extra watering. Mr Mitchell said that after Ms Strecker finished work with the respondent she was replaced by another horticulturalist by the name of Julian Hart.
Melissa Wrightson gave evidence that she was employed by the respondent between March 1992 and May 1995. Her ultimate position with the respondent was Co-ordinator of Corporate Services. She also worked in another position in the Human Resources Department for some time. In her position as Co-ordinator of Corporate Services she was largely responsible for the human resources functions of the Board, namely the employment of staff, workers' compensation, human resources policy and occupational health and safety. Ms Wrightson interacted with other areas of the respondent's staff to discuss their requirements. She had primary responsibility for recruiting and interviewing applicants for vacant positions.
Earlier this year, Ms Wrightson was notified that the respondent had a need for a horticulturalist. Ms Wrightson brought together a selection panel and she and the members of that panel sat down and discussed the position to be filled. To make the interviewing process fair, each member of the panel had a series of questions to be asked of each interviewee. Each member of the panel was allocated certain questions to ask the applicants. During or immediately after the interview each member of the selection panel would grade each interviewee on various selection criteria.
Ms Wrightson said that at the interview with Ms Strecker she discussed the conditions of employment. She wanted to make it clear that they were not employing someone in a permanent capacity. Ms Wrightson's evidence was that she did not say that Ms Strecker would be on a three month probationary period, and she maintains that she did not mention the word 'probation' at all. Ms Wrightson was clear in her evidence that there was no offer of permanent employment.
Ms Wrightson's evidence was that the Metropolitan Cemeteries Board would offer short term contracts of employment in situations in which it could not guarantee a person permanent employment. A number of factors were relevant to the respondent in deciding on a short term contract of employment. These factors included the organisational requirements of the respondent, any special short term projects, and whether any employees were absent from their usual positions on long term workers' compensation because of a work related injury.
Ms Wrightson said that following the appointment of a temporary employee on a one month contract, approximately two-and-a-half weeks into the month she would contact the department the person worked for to see if there was an ongoing need for that person. If there was, she would prepare a letter extending the contract for a month or a letter of termination for signature by one of the operations managers. Ms Wrightson said that this letter would usually go out in the third week of the month. She would hand the letter to the operational staff and they would discuss it with the short term employee and hand them the letter. Ms Wrightson herself did not have knowledge of the time of the delivery of the letter to the employee.
During cross examination, Ms Wrightson said at the time Ms Strecker was employed there was no intention on behalf of the respondent for her to be employed on a short term rolling contract. Ms Wrightson did not remember the reason for putting Ms Strecker on a short term contract. She said that it was obvious that the respondent didn't know what would happen in the future and whether or not it would need Ms Strecker in the long term. She said that a whole lot of organisational decisions needed to be made.
Ms Wrightson's evidence was that at the time Ms Strecker was employed there were no horticulturalists on workers' compensation waiting to return to the workforce. She said that if, as a result of her inquiries, it was found that there was a need to have the employee on a continuing basis the monthly contract would be renewed on a continuous basis to ensure there was someone filling the position without a break. There were discussions at the end of each month regarding the renewal of the contract and it was not a foregone conclusion.
Ms Wrightson said the respondent did not have a policy that employees would start to be employed on fixed term rolling contracts.
Paul Hartley, a former leading hand of the Karrakatta Cemetery, gave evidence that his duties were to oversee the workings of the gardeners and other horticulturalists. He was a member of the interview panel for the position filled by Ms Strecker. His evidence was that at no stage during the interview did any member of the interview panel give Ms Strecker an indication of the prospects of long term employment.
Mr Hartley said that he was the Acting Co-ordinator and Leading Hand and as part of his job he oversaw the workings of Ms Strecker's position. He had to see how she was going in the job and supervise her. Mr Hartley said that there was a month by month revision of the contract. At the end of the month he and the other leading hand were asked if Ms Strecker was going alright workwise. They then decided if she was to be employed for another month and they would see how she went. Mr Hartley's evidence was that they thought it was more beneficial for her to prolong the contract month by month to see how she was going in the job. They had to assess her month by month to see how her work performance was. Mr Hartley said that the Cemetery had a certain number of people allocated to them and this number depended on the workers' compensation cases. From the time Ms Strecker was initially employed, Mr Hartley said that from there on it was just an assessment of her work performance and the duties carried out. Mr Hartley said that Ms Strecker was not brought on for any specific task or project but to fill a position previously taken by someone else. Mr Hartley also confirmed that there was no horticulturalist on long term workers' compensation at the time. Further, he confirmed that the workload of horticulturalists remained fairly steady throughout the year.
Peter Davis was a former leading hand in the Operations Department at Karrakatta Cemetery. He has a Horticultural Trades ticket. At the time of Ms Strecker's employment, he was Acting Co-ordinator of Operations. Mr Davis gave evidence that he along with the other Co-ordinator would discuss the suitability of an employee at the end of each month to decide whether or not they would continue that contract. The matters he took into account in making that decision were basically whether Ms Strecker was fulfilling the position adequately for that month. The other considerations he had in mind were whether or not she got along with her fellow workers and her general attitude to work. Mr Davis said he a few concerns about Ms Strecker's performance towards the end of the third month of the contract. He said that at the end of the third month he expressed some concerns to Ms Strecker regarding her relationship with a couple of other employees and told her to improve her work delegation. He said that he was willing to extend the contract for another month to enable her to improve her performance. Mr Davis said that before Ms Strecker was employed, another horticulturalist had left but it was never explained to him whether or not Ms Strecker was filling that position.
THE PROVISIONS OF THE AWARD
Ms Strecker's letters of appointment stated that the conditions of service were in accordance with the provisions of the Cemeteries Board - Western Australian (Consolidated) Award 1993. A copy of that Award was made available to this Court. The Award sets out many conditions of employment including provisions for accident and sick leave, annual leave, casual employment and periods of notice to be given by the employer to an employee to terminate contracts of service.
In relation to the provision of notice, clause 6 of the Award sets out that the period of notice to be given by the employer to an employee to terminate the contract of service shall in the case of a period of continuous service of one year or less be one week. Paragraph (v) of clause 6 excludes employees engaged for a specified period of time.
Paragraph (a) of clause 16(a) of the Award states:
"A casual employee is one employed and paid as such. A casual employee for working ordinary time shall be paid per hour the weekly total Award rate prescribed herein, divided by 38 for the work performed, plus twenty per cent".
The initial letter of appointment of Ms Strecker stated that the position of horticulturalist is classified as Level 3.1 under the provisions of the Award and that as such her salary rate would be $870.00 per fortnight. Clause 28 of the Award sets the total wage for an employee at Level 3.1 as $435.00 per week, which is consistent with ordinary employment, not casual employment.
Counsel for the respondent did not provide an argument to support that part of the respondent's special defence that the applicant was a casual employee engaged for a short period within the meaning of paragraph 3 of Regulation 30B. Nowhere in the letters of appointment does it state that Ms Strecker was engaged as a casual employee. Further, she was not paid as such under the provisions of the Award, and I therefore reject any suggestion that Ms Strecker was a casual employee within the meaning of Regulation 30B.
WAS THE APPLICANT ENGAGED UNDER A CONTRACT OF EMPLOYMENT FOR A SPECIFIED PERIOD OF TIME?
Paragraph (1) of Regulation 30B states in part as follows:
"30B(1) [excluded employees]
Subject to sub-regulation (2), for the purposes of Section 170CC of the Act, the following employees are excluded from the operation of subdivisions B, C, D and E of Division 3 of Part VIA of the Act: ....
(aa)An employee engaged under a contract of employment for a specified period of time, being a contract that was entered into on or after 16 November 1994, if the specified period is less than six months; .....
(c)An employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires:
1.is determined in advance; and
2.is reasonable, having regard to the nature and circumstances of the employment .... "
Paragraph (2) of Regulation 30B states in part as follows:
"30B(2) [employee engaged under contract]
Sub-regulation (1) does not apply to an employee engaged:
(a)under a contract of a kind referred to in paragraph 1(a) or (aa); .....
if a main purpose of the engagement under a contract of that kind is, or was at the time of the employee's engagement, to avoid the employer's obligations under subdivision B, C, D or E of Division 3 of Part VIA of the Act."
The respondent argues that the applicant is excluded from the operation of subdivision C of Division 3 of Part VIA of the Industrial Relations Act because of sub-paragraph (aa) of Regulation 30B(1). It is said that the applicant's contract of employment with the respondent was entered into after 16 November 1994 and was for a specified period of less than six months. Counsel for the respondent put forward the proposition that all parties have an absolute freedom to contract, providing that the contracts entered into are not illegal. It was said that the motives for entering into a contract are irrelevant, and that motive is colourless. It was said that if the respondent wanted to enter into a certain type of contract it is free to do so, provided the contract is not illegal or breaches the Award. It was submitted that the reasons for entering into a fixed term contract can't be open to question. It was further submitted that in the case of Ms Strecker, the respondent was clear that the reason it was offering a temporary contract was based on operational requirements. It was said that the respondent could not extend the offer of permanent employment, and that the respondent cannot be forced to offer permanent employment if no permanent jobs are available to be offered.
Although I agree that an employer cannot be forced to offer permanent employment if this is contrary to its operational requirements, I consider that the arguments put forward by counsel for the respondent in relation to contracts of employment are too simplistic. Although many of the ordinary rules of contract do apply to employment contracts, this matter has to be seen in the context of the provisions of the Industrial Relations Act and the Industrial Relations Regulations. It is clear from paragraph (2) of Regulation 30B that this Court is able to look behind the expressed intentions of the parties.
It was further submitted by the respondent that what happened at the interview was not binding on the respondent as there was a contract in writing entered into subsequently by the parties. The letters which conveyed the terms of the contracts were clear in that they stipulated the temporary nature of the appointment and that it was clear that it was not an open ended term. It was submitted that it was also clear that the applicant understood the terms of the letters. Counsel for the respondent further argued that at the end of each term of employment the situation was actively reviewed by the respondent and that it was not some vague term which ran automatically. In the third week of each term the situation was reviewed and if the applicant was needed and if the applicant's performance was satisfactory the contract was extended for a further month. The respondent argued that the decisions reached by the decision makers were conveyed to the applicant prior to the expiry of each successive term.
Counsel for the respondent distinguished the decision in D'Lima v Board of Management Princess Margaret Hospital for Children (unreported, IRCA No. 407/95, Marshall J, 25 August 1995) and Ferry v Minister for Health, Western Australia (unreported, IRCA No. 408/95, Marshall J, 25 August 1995). It was said that in those cases, wherein Marshall J decided that contracts which purported to be successive contracts for a specified period of time were in fact for a period of continuous employment, were different from the present case as they were treated by each respondent as continuing past the purported expiry date. In each of those cases, the respondent continued to treat the applicant as an employee notwithstanding the fact that the period of employment stated in the written contract had expired. It was submitted that the respondent in the present case at no time had an intention to offer permanent full time employment to the applicant. Further, it was said that the applicant throughout the period of employment was under no apprehension that the employment was permanent. The respondent pointed to the evidence of the applicant when she said that the employers always gave her the letter extending the contract before the day of expiry of the previous contract so that she knew she did not have to finish on the Friday on which the previous contract was due to expire. According to counsel for the respondent, in the D'Lima case it was clear that the method of engagement of the employee was random and unbusiness-like and that when one contract would reach an end Ms D'Lima carried on coming to work and was paid without a break.
Counsel for the applicant submitted that the D'Lima and Ferry cases could not be distinguished in this way and that they were binding on this Court. It was said that those decisions make it clear that the Court can look behind what purports to be a series of fixed term contracts to what is in reality a continuous period of employment. It was submitted that the fact that the employer ensured that the contract would continue with no break made it clear that the contract of employment was continuous. It was said that the contract in this case was dressed up to avoid liability under the Industrial Relations Act.
It was said that this reasoning was confirmed by cases on the reasonable probation periods. It was submitted that the case of Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 was relevant as the present case had an arrangement which had some elements of a probationary period extending beyond that which was reasonable as set out by Wilcox CJ. It was said that to allow contracts of this nature would frustrate the requirements of Regulation 30B in relation to probation. In the present case the four monthly revisions of the applicant's work performance was in excess of what is considered reasonable under the Act. The provisions of Regulation 30B in relation to reasonable probationary periods could be frustrated by a series of fixed term contracts.
It was further submitted that it was clear evidence that the only issue relating to the extension of the applicant's contract of employment was her work performance. She took over from a full time employee and has now been replaced by a full time employee.
In the alternative, it was submitted by the applicant's Counsel that this contract was not for a fixed term just because only the outer limit of the contract was fixed. Clause 6 of the Award provided for a period of at least one week's notice to be given by the employer to an employee to terminate the contract of service. This Court was referred to the case of Andersen v Umbakumba Community Council (1994) 126 ALR 121, in which von Doussa J said at page 126:
"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 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 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."
In the present case paragraph (v) of clause 6 states that the period of notice in that clause shall not apply in the case of, amongst other things, employees engaged for a specific period of time. It was argued that because of the Ferry and D'Lima decisions, paragraph (v) of clause 6 does not apply because the applicant was engaged for successive periods of time and it was clear that paragraph (v) was not intended to apply to successive periods. It was said that a proper interpretation of that provision was that one week's payment in lieu of notice was to be made by the employer.
I have carefully considered the arguments of both Counsel in this matter, and the evidence. The only conflict of evidence in this case was over the question of whether or not Ms Strecker was advised at the interview that she would be on three months' probation. It is not necessary for me to decide that question here. I should say that I have no reason to doubt the credibility of any of the witnesses who appeared before this Court. I find, on the evidence, that Ms Strecker was employed continuously by the respondent from 27 February 1995 to 16 June 1995. Although I bear in mind the distinctions raised by counsel for the respondent, it does not appear to me that his Honour Justice Marshall decided the D'Lima and Ferry cases primarily because the written contracts in those cases were allowed by the respondents to expire without consequence to the applicants. His Honour appears to have decided those cases on the basis of the whole of the evidence and the existence of award provisions similar to the provisions of clause 6 of the Award in the present case.
Further, I infer that a main purpose of the engagement of Ms Strecker under the written contracts purporting to be for successive specified periods of time was to avoid the employer's obligations under subdivisions B, C, D or E of Division 3 of Part VIA of the Act within the meaning of paragraph (2) of Regulation 30B. I make this inference from the following:
(a)The respondent employed someone in the position of horticulturalist prior to Ms Strecker's period of employment.
(b)The respondent has employed another person in the position of horticulturalist since Ms Strecker's period of employment with the respondent ended.
(c)The period of employment of Ms Strecker by the respondent was in reality continuous in that there were no breaks in between the successive written contracts.
(d)There was evidence that the work of horticulturalists at the Karrakatta Cemetery was not seasonal but was relatively continuous throughout the year.
(e)Ms Wrightson's evidence was that employees were engaged under successive contracts under three circumstances: namely, where the respondent's operational requirements were such that they would only need someone on a temporary basis; they needed to fill a position temporarily because an employee was off on long term workers' compensation; or an employee was needed for a specific project. In this case, there was no evidence that the respondent in fact needed a horticulturalist only on a temporary basis. Further, the evidence was that Ms Strecker was not employed to temporarily fill the position of someone on workers' compensation or to complete a specific project.
(f)Although Ms Wrightson said that decisions whether or not to extend a contract of employment were made on the basis of the respondent's requirements, it is clear from the evidence of the two people who actually made the decisions, Mr Hartley and Mr Davis, that the only considerations they took into account were whether Ms Strecker's work performance was satisfactory and whether she got on with her fellow employees. There was no evidence that the decisions were made on the basis of the operational requirements of the respondent.
(g)If Ms Strecker's employment had been extended for one more month, it would have been more difficult for the respondent to argue that it was excluded by the provisions of Regulation 30B because the employment would no longer have been for a period of less than six months.
In these circumstances, I draw an inference that although Ms Strecker's employment was in reality continuous, it was set out in the letters to be five successive fixed terms to avoid the employer's obligations under the Industrial Relations Act.
WAS THE TERMINATION AT THE INITIATIVE OF THE EMPLOYER?
Section 170EA subsection 1 states that:
"A person ('the employee') may apply to the Court for a remedy in respect of termination of his or her employment".
Article 3 of the Termination of Employment Convention states that:
"For the purpose of this Convention the terms 'termination' and 'termination of employment' mean termination of employment at the initiative of the employer".
The respondent submits that Section 170EA of the Industrial Relations Act applies only to terminations of employment within the definition of Article 3 of the Termination of Employment Convention. It was said by the respondent that the applicant's contract of employment with the respondent expired by effluxion of time and that the respondent therefore did not terminate the applicant's employment within the definition contained in Article 3 of the Termination of Employment Convention. It was argued on behalf of the respondent that the case of The Association of Professional Engineers, Scientists and Managers Australia v Skilled Engineering Pty Ltd (1994) 122 ALR 471 applied in that there has to be an act by an employer to give an ending to the employment within the scope of the convention. It was also said by the respondent that the case of O'Neill v Australian National University (unreported, IRCA No 486/95, Linkenbagh JR, 29 August 1995) applied. In that case the applicant was engaged to work for the Australian National University on a series of contracts between 4 July 1980 and 30 October 1995. Linkenbagh JR held that whilst the applicant had been employed on what might seem to be an uninterrupted basis since 1980, in fact, the nature of her employment relationship with the University was determined from time to time throughout the period by the terms of contracts negotiated between the parties and that the contract expired by effluxion of time, and not at the initiative of the employer. In the present case I have already indicated that in my view the applicant was in fact engaged on a continuous basis, and that a main purpose of the successive written contracts of employment was to avoid the obligations of the employer under the Industrial Relations Act.
Paragraph 2 of Regulation 30B would be unworkable if I was to now hold that the applicant cannot bring an application under Section 170EA because the termination was not at the initiative of the employer but happened because of effluxion of time. In any event, I refer to the dicta of Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at 351 where his Honour stated:
"Bearing all these matters in mind, and given that the Courts have sometimes recognised the possibility of a difference between a termination of employment and a termination of the contract of employment, it seems preferable to treat the words 'termination of ........ employment' in Division 3 of Part VIA of the Industrial Relations Act as including any act that brings to an end the employer-employee relationship, whether or not the act, or any acceptance of it, so brings to an end the contract of employment".
In this case, the evidence shows that the respondent did not simply allow the fixed term written contracts to expire by effluxion of time. Before the term of each written contract was due to expire, the respondent actively considered whether or not Ms Strecker's employment was to continue. 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 the letter of 9 June 1995. I find that in this case there was a termination at the initiative of the employer within the meaning of Article 3 of the Convention.
WAS THERE A BREACH OF THE PROVISIONS OF THE INDUSTRIAL RELATIONS ACT?
The respondent did not argue that there was a valid reason for the termination within the meaning of Section 170DE of the Act. The onus of proof is on the respondent and it did not discharge that onus. Further, there is evidence that Ms Strecker was not given an opportunity to respond to allegations made against her within the meaning of Section 170DC of the Act. On this basis I find that the respondent breached both Section 170DE and Section 170 DC of the Industrial Relations Act.
THE APPROPRIATE REMEDY
Ms Strecker gave evidence that she has been unemployed since she finished work with the respondent on 16 June 1995. Ms Strecker was not seeking reinstatement as she was confident of finally obtaining alternative employment. She expected to hear that she had been successful in obtaining another position on the evening of the day of the hearing. In these circumstances, I am satisfied that reinstatement would be impracticable. I order that the respondent pay compensation to the applicant at the rate of $435 per week for the period 16 June 1995 to 3 November 1995, being a total of $8,700, within 14 days of the date of this order.
I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Counsel for the applicant: Mr M Bennett
Solicitors for the applicant: Dwyer Durack
Counsel for the respondent: Mr T A Creewel
Solicitors for the respondent: State Crown Solicitor
Hearing date: 3 November 1995
Judgment date: 22 November 1995
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