Senior v Lower North Metropolitan Health Service Board of Mnanagement
[1996] IRCA 342
•26 Jul 1996
DECISION NO: 342/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1017 of 1996
B E T W E E N:
MARILYN RUTH SENIOR
Applicant
A N D:
LOWER NORTH METROPOLITAN HEALTH SERVICE BOARD OF MANAGEMENT
Respondent
REASONS FOR DECISION
26 July 1996 RITTER JR
INTRODUCTION
This is an application under section 170EA of the Industrial Relations Act 1988 ("the Act").
The applicant was employed by the respondent as a food service attendant at the Osborne Park Hospital. The applicant alleged that her employment with the respondent was terminated on either 22 or 24 December 1995. During her employment, the applicant was employed via a series of short-term written contracts. Most of these contracts were for a two week period from Monday of one week to Friday of the next. The contracts generally described Ms Senior as a temporary employee, but in some instances she was described as a casual employee.
Ms Senior's employment with the respondent commenced on or about 13 March 1992. The period of her employment concluded, according to the applicant, on 24 December 1995. Following the filing of this application IN the Court on 5 January 1996, the applicant was employed to do further work for the respondent. The applicant did further work over a five week period before having to stop working due to a back injury which she received in an accident at work, on or about 9 February 1996.
Due to this injury, the applicant does not seek reinstatement. The respondent agrees that reinstatement would be impracticable in all the circumstances of the case. Therefore, if there has been an unlawful termination of employment, the relevant remedy to consider is that of compensation. The parties have agreed that the maximum amount of compensation that can be awarded by the Court pursuant to section 170EE(3) is the sum of $6,562.66. This represents the remuneration that the applicant could have earned if she remained in employment with the respondent for the six months following the alleged termination of employment.
The respondent's primary defence is that there was no termination of employment. The respondent contended that the Court therefore had no jurisdiction to entertain the application under section 170EA of the Act. The respondent argued that the applicant's employment was brought to an end by the effluxion of time.
In their closing written submissions, the respondent correctly submitted that the onus is upon the applicant to establish that the termination was at the initiative of the respondent: Stephanoski v Whisky Soda, unreported, IRCA 117/94, 15 February 1995, Millane JR. Therefore, this is the first issue which needs to be determined.
The applicant was the only witness called in support of her case. The respondent called two witnesses, being Ms Janelle Smith, the leading hand in the catering section of the respondent at Osborne Park Hospital, and Ms Mary Kroeber, the Deputy Director of Nursing of the respondent, whose responsibilities included the Osborne Park Hospital.
THE EMPLOYMENT OF THE APPLICANT
As stated, the first issue to determine is whether there was a termination at the initiative of the employer because it is only if there was such a termination that the Court has jurisdiction.
The applicant was employed under a series of contracts, each of short duration. These contracts relevantly spanned the period 12 March 1992 to 24 December 1995, which is the date on the applicant's case that was the final date of employment of the applicant with the respondent. There was, however, subsequent to this, four additional contracts of employment covering the period 8 January 1996 to 18 February 1996. The injury of the applicant when at work, described above, occurred on or about 9 February 1996.
The applicant was not continuously working with the respondent between the period 12 March 1992 and 24 December 1995. There were a number of breaks in the work that was done. A schedule containing the contract dates, total hours and type of contract, as noted on the contract of employment, was attached (with some amendments, of which I was advised by counsel prior to the hearing) as Schedule 1 to the respondent's Summary of Facts. Schedule 2 comprised the contract dates, total hours and type of contracts of employment between the respondent and the applicant from 8 January 1996 to 18 February 1996. With the consent of the applicant, both schedules were received as exhibits. For ease of reference these schedules, incorporating the amendments which Mr Lundberg, for the respondent, advised me of at the commencement of the hearing, have been annexed to the judgment as Annexure 1 and Annexure 2 respectively.
The respondent, in its closing written submissions, set out a number of the more significant "breaks in employment" and the number of days of these so-called breaks in employment. These were as follows :
"Break in Employment No. of Days
14 August 1992 to 4 September 1992 20 days
20 November 1992 to 1 December 1992 9 days
2 December 1992 to 18 December 1992 16 days
28 March 1993 to 12 April 1993 14 days
23 Mary 1993 to 5 June 1993 11 days
26 September 1993 to 14 October 1993 17 days
30 November 1993 to 16 November 1993 15 days
3 December 1993 to 3 January 1994 30 days
29 January 1994 to 15 February 1994 15 days
21 March 1994 to 16 May 1994 56 days
16 October 1994 to 13 November 1994 16 days
19 December 1994 to 11 January 1995 21 days
5 March 1995 to 3 April 1995 26 days
28 May 1995 to 13 June 1995 14 days
13 June 1995 to 27 June 1995 13 days
15 October 1995 to 30 November 1995 14 days"
Mr Kelly, for the applicant, in his written submissions, did not take issue with the factual correctness of the above table. There was some evidence, which will be referred to later, which attempted to explain the "breaks in employment". In any event, however, Mr Kelly pointed to the fact that from 27 June 1995 until 24 December 1995, Ms Senior worked continuously at the hospital. Mr Kelly submitted that despite the fact that Ms Senior signed a series of documents during her employment with the hospital, there was continuous employment, in particular from 27 June 1995 onwards. Mr Kelly submitted that I should find that the contracts of employment were a "mere administrative convenience", as found by Marshall J in D'Lima v Board of Management, Princess Margaret Hospital for Children (unreported), IRCA 407/95, 25 August 1995.
Mr Kelly also submitted that even if the contract of employment came to an end by the effluxion of time on 24 December 1995, which was disputed, "termination of employment" should be construed to mean "termination of the employment relationship", as the Full Court has suggested in Mohazab v Dick Smith Electronics (1995) 62 IR 200 at page 205.
TERMINATION OF EMPLOYMENT - THE LAW
In National Territory Education Industry Union v Edith Cowan University, unreported, IRCA 313/96, 16 July 1996, I considered the law on termination of employment in the context of the Act and an argument that there had been no termination of employment but simply a contract of employment that had come to an end by the effluxion of time.
Set out below are some principles of law, as stated in that judgment, which are relevant to this case:-
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 provides that the object of the Division is to give effect or further effect to the Termination of Employment Convention (set out as Schedule 10 to the Act) and the Termination of Employment Recommendation, 1982, known as Recommendation No. 166, which is set out as Schedule 11 to the Act.
In a number of cases, judges of the Court have also considered the objects of the Act: see Aitken v CMETSWU, WA Branch (1995) 63 IR 1 at page 6 per Lee J; Grout v Gunnedah Shire Council (1994) 1 IR 143 at 160 per Moore J; and Burazin v The Blacktown City Guardian, unreported, IRCA 660/95, 15 December 1995, Madgwick J at page 19, relevant passages of which are quoted at pages 13 - 14 of the Edith Cowan University case.
Given the text, context and objects of the Act, the expression "termination of employment at the initiative of the employer" should be construed to mean the termination of the employment relationship. This principle is supported by Mohazab; the judgment of Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 1 IR 1 at 17 - 19; the fact that a majority of the High Court in Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 422 at 432 indicated that there was a distinction between the contract of employment and the employment relationship, and the judgment of the Full Court in Grout v Gunnedah Shire Council (1995) 62 IR 150 at 156.
The Court, in a number of cases, has 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. At pages 32 - 39 of the Edith Cowan University case, I analysed the decisions of Minister for Health v Ferry, unreported, IRCA 117/96, 4 April 1996, Full Court (Wilcox CJ, North and Madgwick JJ); D'Lima v Board of Management, Marshall J (cited above); Strecker v Metropolitan Cemeteries Board (1995) 62 IR 109, a decision of Boon JR; Scally & Ors v Management of Sir Charles Gairdner Hospital, unreported, IRCA 130/96, 4 April 1996, Boon JR; and Dadey v Edith Cowan University, unreported, RD Farrell JR, 8 July 1996. Each of these decisions, with the exception of Dadey, was sought to be distinguished by the respondent. I will consider this submission to the extent necessary to decide this case later in my judgment.
Where an employee is employed pursuant to a contract of employment and there is a federal industrial award which governs the employment relationship, the contract of employment is, to use the words of the majority in the High Court in Byrne & Frew, "altered" by the award: see page 425 and the other quotations from the High Court judgment in Byrne & Frew at pages 45 - 47 of the Edith Cowan University case.
In this case, the applicant's employment was governed by federal industrial awards. Of particular relevance, according to the applicant, was the Western Australian Government/Australian Liquor, Hospitality and Miscellaneous Workers Union (ALHMU) Redeployment, Retraining and Redundancy (Interim) Award, 1994 (the "RRR Award").
The respondent submitted that the RRR Award has no relevance to the present case.
As can be seen from the above review of the law, the question to be asked, given the argument of the respondent, is whether the employment relationship between the applicant and the respondent was terminated at the initiative of the respondent.
The Full Court, in Mohazab, whilst not providing an exhaustive statement of the law on when a termination will be at the initiative of the employer, mentioned the following as being indicative of a termination of employment at the initiative of the employer:
1.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(205);
2.The act of the employer results directly or consequentially in the termination of the employment (205);
3.The employment relationship is not voluntarily left by the employee (205);
4.Had the employer not taken the action it did, the employee would have remained in the employment relationship (205); or
5.What was the critical action, or what were the critical actions, that constituted a termination of employment (page 205, relying on the judgment of Wilcox CJ in APESMA v David Graphics Pty Ltd (1994) 1 IR 106).
THE EMPLOYMENT RELATIONSHIP
Earlier, I have given a basic outline of the employment relationship between the applicant and the respondent. It is now necessary to turn in more detail to that.
Ms Smith had the job of rostering the non full time, non permanent employees. Ms Senior was considered to be a non permanent, non full time member of the kitchen staff by the respondent. There were nine others in a like position. There were also a number of full time permanent employees. Ms Smith rostered them to fill five positions which were permanently vacant, and other positions which became vacant from time to time, due to absences from work by the full time employees on sick leave, annual leave, workers compensation, etc.
As stated, the applicant alleges that the termination of the employment relationship occurred on 24 December 1995. This was at the end of a period of employment that was effected by an employment contract dated 12 December 1995. The contract stated that the term of employment governed by the
contract was from 11 December 1995 to 24 December 1995, inclusive. In its terms, the document offered a temporary appointment as a hospital worker within the Hotel Services Department as a Level One employee. The document said that the offer "in no way implies the expectation or otherwise of continued employment beyond the period described above and therefore unless this appointment is formally extended, your employment with this hospital will cease on the above date without further advice from me." The offer of employment was signed by Mr Greg Sims, the Administrative Officer of Hotel Services. The document was accepted by the signature of Ms Senior, and dated 12 December 1995.
The contract also contained the following, "Should you wish to resign during the contract period, you will be required to give two weeks' notice." The contents of this sentence are somewhat bizarre, given that the contract of employment was expressed to be for a term of only two weeks.
The contract said that the conditions of service applicable to the position were those of the Hospital Services (Government) Award, a copy of which was available via the personnel officer. The contract said that, in summary, the conditions of the award provided a base salary of $410.86 per fortnight, of which two hours would accrue towards days off; penalties paid as earned and specified in the award; a 40½ hour fortnight as rostered; and pro rata annual leave to be paid where applicable.
The argument of the respondent would have me consider this contract of employment as a separate individual contract of employment between Ms Senior and the respondent. Such an argument may have validity in a situation where there is simply one contract of employment between an employer and employee: see the Edith Cowan University case at page 52, point (8).
As in the Edith Cowan University case, the respondent's submission ignores the fact that the employment relationship involved more than the final contract of employment. In this case, it commenced in March 1992 and concluded, on the applicant's case, on 24 December 1995. The employment relationship could have continued if the employer had offered further contracts of employment which had been accepted by Ms Senior. From Ms Senior's evidence, which I accept on this point, she would have accepted further contracts of employment, if offered, in 1996. Indeed, she did accept three such contracts of employment in 1996.
Therefore, as in the Edith Cowan University case, the Court should focus on the facts and circumstances relating to the alleged non-employment of the applicant after 24 December 1995, rather than simply find that the contract of employment ended because of the effluxion of time. As stated in the Edith Cowan University case, page 50, point (2), it is erroneous, in my opinion, to focus simply on the final contract of employment in determining whether there has been a termination 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. In this regard, I differ from the view of Linkenbagh JR in O'Neill v Australian National University, unreported, IRCA 486/95, 29 August 1995. This was one of the cases which was relied on by the respondent in this case.
THE FIXED TERM CONTRACT CASES
The respondent also relied on a "clear line of authorities which showed that the ending of a fixed term contract by effluxion of time is not to be regarded as a termination by, or at the initiative of, the employer or a dismissal". The cases cited in support of this proposition were Cliffs Western Australian Mining Co Ltd v Association of Architects, Engineeers, Surveyors and Draftsmen of Australia (1978) 58 WAIG 486; Pacific Waste Management Pty Ltd v Saley (1993) 51 IR 339; Ex Parte Wurth; re Tully (1954) 55 SR (NSW) 47; and Krajewski v University of Adelaide (1993) 50 IR 57. Helpfully, Mr Lundberg provided the Court with copies of each of these decisions.
None of these decisions involved the construction of the expression "termination of employment at the initiative of the employer".
In the Cliffs Western Australian Mining case, the Court was considering a submission that in every contract of employment, there is an implied term that the employee will not be unfairly terminated. The Industrial Appeal Court of Western Australia held that such a term is not to be implied. It was in this context that Wickham J held that if a contract of employment is for a set term, and the term is allowed to expire, the contract is at an end and the reasons why on either side it has been allowed to expire are irrelevant. This statement of law focuses entirely on the termination of the contract of employment, as opposed to the relationship of employment. The judgment of Wallace J, at page 487, reflects a similar analysis. Brinsden J agreed with the reasons of Wickham J.
The Pacific Waste Management case was a decision of the Full Commission of the Industrial Relations Commission of New South Wales. It involved an appeal from a decision of Commissioner McMahon. The Full Commission considered a jurisdictional question. This related to section 245 of the Industrial Relations Act 1991 (NSW) which provided that the relevant part of the Act only applied to the dismissal, or threatened dismissal, of an employee for whom any conditions of employment were fixed by an award or agreement. The applicant in that case was covered by an award, but the question was whether he was dismissed (see page 342). The question as to whether somebody has been dismissed may bear of a different answer from the question of whether the employment relationship has been terminated at the initiative of the employer. In Mohazab at page 207, the Court said that "it cannot be assumed that decisions concerning other legislative formulations or cases concerning constructive dismissal are to be applied without qualification when considering the provisions of Division 3".
At page 346 of Pacific Waste Management, the Full Commission said that they were satisfied that the applicant had not been dismissed. The Commission said that it was not established that there was a relationship of employer and employee in existence at the time when the employer had declined to offer further casual work, in the circumstances of that case. The Commission said that there was no evidence that the employer was bound in any way to offer further work or that the employee had any obligation to accept such work. Accordingly, the Commission found that there was no former position from which the employee could be dismissed and no former position to which he could be reinstated.
The Commission relied on the construction of the word "dismissed" in the case of Smith v Director-General of School of Education (1993) 51 IR 204 at 219. In that case, the Full Industrial Court referred to the Oxford English Dictionary (2nd Ed) (1989) definition of "dismissal" which included the definitions, "to send away or remove from office, employment, or position; to discharge, discard, expel". The Court said that "it seems to us that it is in that defined sense of an employee being sent away from employment, that unfair dismissal cases in industrial jurisprudence have been concerned". The Commission said that they had no difficulty in accepting the ordinary meaning of "dismissal" suggested in Ex Parte Wurth; re Tully as "the termination of services by the employer without the employee's consent; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal".
In the Pacific Waste Management case, the Full Commission decided that the contract of employment came to an end in accordance with its terms on a particular day after which, of his own accord, the employee was unavailable and did not enter into any further contracts of employment for the balance of the relevant week. Thereafter, the employee was offered no further employment.
Whilst the Pacific Waste Management case has some superficial similarity to the case before the Court, the decision is affected by a fundamental difference between the piece of legislation being considered by the Full Commission, and the Industrial Relations Act 1988. One Act deals with a dismissal, the other with a termination of employment at the initiative of the employer. In my opinion, the latter has a potentially wider ambit in the field of a cessation of employment after a series of fixed term contracts.
As stated, the respondent also relied on Ex Parte Wurth; re Tully. I have referred to this decision in passing, in an above quotation from the judgment of Smith v Director-General of School of Education, as quoted in the Pacific Waste Management case.
In Ex Parte Wurth; re Tully and Ex Parte Wurth; re Craig, decided and reported together, it was held firstly that an annulment by the Public Service Board under section 32 of the Public Service Act, 1902 (New South Wales) of the appointment of an officer on probation did not constitute a dismissal within section 10(1)(c) of the Crown Employees Appeal Board Act, 1944 - 1952, and therefore such an officer had no right of appeal under the latter Act; and secondly, that the failure by the Public Service Board to re-employ, under section 44 of the Public Service Act, 1902, an officer employed in pursuance of that section did not amount to a dismissal within section 10(1)(c) of the Crown Employees Appeal Board Act, 1944 - 1952, and no right of appeal under the latter Act therefore arose.
In this context, the Supreme Court of New South Wales considered the meaning of the word "dismissal". It can again be seen that the statutory text and context considered in that case is quite different from that before the Court. Further, and in particular, Ex Parte Wurth; re Tully and Ex Parte Wurth; re Craig were decided in 1954, some nine years before the Termination of Employment Recommendation, 1963, which was referred to in the preamble to the Termination of Employment Convention, to the effect that:
"significant developments have occurred in the law and practice of many members states on the questions covered by that recommendation and, considering that these developments have made it appropriate to adopt new international standards on the subject, particularly having regard to the serious problems in this field, resulting from the economic difficulties and technological changes experienced in recent years in many countries . . ." the member states decided upon the adoption of certain proposals upon the termination of employment at the initiative of the employer, and determined that the proposals take the form of an international convention.
Therefore, citing a 1954 case on the meaning of a different word from that used in the Act is not likely to be of much assistance in the construction of the Act, with all due respect to Mr Lundberg.
Krajewski v University of Adelaide (No. 1) involved proceedings under section 31 of the Industrial Relations Act 1972 (South Australia) for re-employment. There was a preliminary issue as to whether the applicant was dismissed from her employment so as to give rise to a cause of action against the respondent, pursuant to section 31 of the South Australian Industrial Relations Act. Whilst this section of the Act was not set out in the judgment of Stanley J, it is clear from the judgment that the section required a dismissal from employment to found jurisdiction in the Commission. The question considered by Stanley J was therefore a different one from that before the Court.
At page 61, Stanley J reviewed the evidence, both documentary and oral, and concluded that the applicant had been employed under a separate and distinct contract each year. His Honour held that once the fixed term contract for the 1992 year had expired when the applicant completed the work given to her for that year, the contract came to an end in accordance with its terms. His Honour further held that the neglect or refusal of the university to offer the applicant employment for the 1993 year did not result in the university dismissing her (page 61). At page 62, his Honour held that the employer did not, by its own action, bring the contract of employment to an end. His Honour therefore held that the university did not dismiss the applicant and that the Commission did not have jurisdiction under section 31 of the Industrial Relations Act to hear the application filed. The application was accordingly dismissed.
There are at least three important points of distinction from that case to the one before the Court. The first is that Stanley J was considering whether the employer brought to an end the contract of employment, rather than the relationship of employment. The second is that the Court was considering the question of dismissal, rather than the termination of employment at the initiative of the employer. Thirdly, it is clear from the review of the evidence which concludes at page 61 that his Honour was making findings of fact and law based on the particular evidence which was before the Court in that case.
Therefore, I do not consider the Krajewski case to be either binding or particularly helpful to the question which is before the Court.
The question which the Court must consider is, as stated above, whether an action or actions of the employer brought to an end the relationship of employment between the applicant and the respondent. As held in the Edith Cowan University case, a failure to offer further employment can, in some circumstances, amount to a termination of the employment relationship by an employer. This conclusion is supported by the cases of D'Lima, Ferry, Strecker and Scally, even though the facts of those cases may not be on all fours with that before the Court.
WHETHER TERMINATION IN DECEMBER 1995?
As stated earlier, it was the applicant's case that the employment relationship concluded on 24 December 1995 which was the last day covered by the employment contract which commenced on 11 December 1995. 22 December 1995 was, in fact, the last day worked by the applicant prior to the Christmas break. The submission that the applicant terminated the employment relationship at this time meets the difficulty that the applicant worked for the respondent again in 1996.
By a contract which is undated, but said to cover the period 8 January 1996 to 21 January 1996, the applicant is stated to have been employed for 4½ hours over that period. Secondly, the applicant was employed on what was described as a fixed term contract from 22 January 1996 to 4 February 1996. This contract was accepted in writing on 22 January 1996. It was stated in this contract that the applicant would work a 40 hour fortnight as rostered. Finally, by a contract said to cover the period from 5 February 1996 to 18 February 1996, the applicant was to work a 36 hour fortnight as rostered. This contract appears to be unsigned by Ms Senior. As stated earlier, Ms Senior was not able to work throughout this entire period because of the accident at work which occurred on or about 9 February 1996.
The applicant has lodged a worker's compensation claim in relation to the injuries received in this accident. As stated in the respondent's supplementary summary of facts, liability for the claim was accepted by the respondent's insurer on or about 18 March 1996. The applicant has received worker's compensation payments weekly for the period commencing 12 February 1996.
In the applicant's summary of facts, it was stated that "the last day worked for the applicant before the termination was 22 December 1995. On that day, she was told by Mr Greg Sims, Human Resources Manager, that there was no further work for her in the foreseeable future. There was no further discussion.
In the applicant's closing written submissions, it is stated that "Ms Senior's unchallenged evidence was that she wanted to continue working at the hospital after 24 December 1995. The hospital made a decision to end the employment relationship on that date. This decision was conveyed to Ms Senior and other employees at the hospital at a meeting with Mr Sims and Mrs Smith. In these circumstances, it is clear that the employer initiated the termination".
Later in the written submissions the applicant asserted that "the respondent from 24 December 1995 determined that Ms Senior's job was no longer required because of a downturn in demand". The applicant also submitted that "the fact that Ms Senior was offered and accepted further employment with the respondent in the year following the termination is of no relevance".
The submissions do not explain why it is submitted that such further employment is of no relevance. It seems to me prima facie inconsistent with a suggestion that the employment relationship was terminated in December 1995 that the applicant was offered and accepted further employment with the respondent from January 1996. This is especially so, given that there were other gaps in the periods of work that the applicant did for the respondent, as set out in the schedules referred to earlier in my judgment.
In her evidence in-chief, the applicant spoke of a meeting just before Christmas 1995 in which the supervisor, Mr Greg Sims, said to Ms Senior and about six other "casual" staff in the kitchen that there would be no work over Christmas because the respondent was filling the vacant positions with permanent staff. In her cross-examination, Ms Senior said that at this meeting they were told they would not work over the Christmas break because the "permanent girls would take up the vacant positions and they would contact us when they needed further work". Ms Senior said that she did not consider the conversation significant at the time. She agreed that she had not worked over the Christmas period in some previous years and therefore this was not unusual. She also agreed that the hospital's needs decreased during that time. (This will be explained later.) However, Ms Senior did say that she thought there was work which could be done by casuals during that period. Ms Senior also said that she was told by Ms Smith before Christmas in the kitchen that it was the applicant's turn to stand down. In the applicant's evidence in-chief, she said that the expression "stand down" was used to mean that a non-full time member of the kitchen staff would be told that they were not going to work for a period so that it could not be suggested that such employees were permanent employees. After the relevant period, the employee was then given further work. On the applicant's evidence in-chief, this explained many of the gaps in the periods of work done by the applicant for the respondent.
If the applicant was told by Ms Smith that it was her turn to stand down in December 1995, on the applicant's case this is not consistent with a termination of the employment relationship. It simply means that there would be another gap in the applicant's work for the respondent.
No other witness was called by the applicant to give evidence about the meeting prior to Christmas 1995.
Ms Smith, in her evidence, said that there were lots of meetings in December 1995 to discuss privatisation and whether the permanent and temporary staff would have jobs. Regrettably, there was no clarification of this evidence and, in particular, whether privatisation was going to or did lead to the permanent cessation of the employment relationship of the applicant and the respondent. Ms Smith described the expression "stand down" to mean that a contract had finished and then, unless another contract of employment was available for an employee, they would stand down. When asked in-chief whether she understood the expression "standing down" to be also used in a situation where "temporary or casual staff" were told there was no work for them for a period because otherwise there would be a "problem" with them becoming a permanent employee, Ms Smith said that she was aware of this but that the "temporary girls" did have continual work. She said that the situation that Ms Senior described applied about two years ago, but that the "temporary girls" were now allowed to work continually. Ms Smith said that she did not understand "stand downs" to apply to the issue of not attaining permanency from July 1995. She said that if someone was not employed for a period of, say, six weeks, then this may be because there was not enough work for the non-permanent employees, such as a ward being closed or none of the permanent employees being on holidays or sick leave, etc.
Ms Smith said that the catering section of the hospital had less work at Christmas time because there was fewer patients at the hospital. She explained that at Christmas 1995 there were two wards closed down and also fewer daily patients. She said that the effect of this was that there was not enough work for the non-permanent employees in the kitchen.
She then agreed that before Christmas, the "casual and temporary" employees were advised that they were not working over the Christmas period. She said that she mentioned to these employees "on a friendly basis" that there would be no work until after the Christmas period; that there was no work for such employees until January or February when wards reopened. She explained that the reason why she did not ask Ms Senior to work in the period immediately after 24 December 1995 was that there were not many patients in the hospital; in her words, there were only a "few patients".
In cross-examination, Ms Smith said that she did not recall telling Ms Senior in the kitchen prior to Christmas that it was her turn to stand down, but that this was probably correct. She said this was because she told the employees of the arrangement for Christmas.
Ms Kroeber, the Deputy Director of Nursing of the respondent, gave evidence about the fluctuating operational requirements of the hospital throughout the year. She said that the needs of the hospital during Christmas time were significantly decreased. There was a number of reasons for this, including surgeons and anaesthetists taking leave, other staff also taking leave and therefore certain wards closed down. She also said that maternity patients often went home during this period and took advantage of a visiting nursing scheme at home. A number of maternity patients left the hospital before the maximum three days of admission for a maternity patient.
Ms Kroeber was asked the effect of the decrease in hospital activity on the needs of the hospital for "casual and temporary" staff. She explained that there was a significant reduction in hospital activity and there was little need to "call in" such employees because the permanent full-time staff generally covered this workload. Ms Kroeber identified a document which was tendered as Exhibit B which provided a summary of the areas which were closed in December 1995 and January and February 1996. This included wards 5 and 6. Ward 6 was a surgical ward which was closed until 8 January 1996 when it partially re-opened and then fully re-opened on 16 January 1996.
Ms Kroeber was not cross-examined.
Having reviewed the evidence, in my opinion the applicant's submission that there was a termination of the employment relationship effected by the employer in December 1995 cannot be sustained. This is because the employer, through Ms Smith and Mr Sims, did not, on the evidence, convey to the applicant in December 1995 that there was going to be a cessation of the employment relationship. The employer was simply informing Ms Senior that it was unlikely that she would be required to work for the respondent over Christmas 1995. There was going to be another gap in the applicant working for the respondent. This is understandable, given the operational requirements of the hospital, as explained by Ms Kroeber. This situation occurred annually. In 1993, Ms Senior did not work at the hospital from 3 December 1993 to 3 January 1994. In 1994, Ms Senior did not work from 19 December 1994 to 11 January 1995.
With due respect to Mr Kelly, I do not accept the submission that the periods of work that the applicant had with the respondent in 1996 were irrelevant. In my opinion, they were evidence of the continuing nature of the employment relationship between the applicant and the respondent. The fact that the applicant has not worked for the respondent since February 1996 has been, at least in part, because she has been physically unable to do so because of the injuries received at work. Ms Senior is being paid worker's compensation, although this is now less than the amount she would have received if she was still working, because of the lack of payment of penalty rates; although she may benefit from section 84AA of the Workers Compensation and Rehabilitation Act (Western Australia) 1981 (as amended). If the employment in 1996 was shown to be solely for the purpose of defeating the applicant's application to this Court, the case may have been decided differently.
But, on the evidence, I do not find that there has been a termination of employment at the initiative of the employer on either 22 December 1995 or 24 December 1995. This was because the employment relationship did not end on either of those dates but continued in at least January and February 1996. The application will therefore be dismissed.
OTHER ISSUES
Although it is strictly not necessary to do so, I wish to make some observations about some of the other matters raised in this case.
I do not accept the respondent's argument that each individual contract of employment simply expired by the effluxion of time and that therefore if an employee is not re-engaged after the expiration of the term of a final individual contract, there is necessarily no termination of employment at the initiative of the employer. As set out in the Edith Cowan University case, this is an inaccurate perception of the law.
Furthermore, it does appear that the contracts of employment were merely for the administrative convenience of the respondent. In so far as the contracts purported to reflect the fact that an individual employee was only going to be employed for the period covered by the contract, they were, at least at times, misleading documents. For example, Ms Smith gave evidence that in early December 1995, she had to find a replacement for a full-time employee called Sylvia who was taking leave. She said that the period that Sylvia was going to be away was three weeks. She said that she spoke to Ms Senior and asked her if she would like to work for the respondent continually for this three weeks period. Ms Senior agreed with this. Despite this arrangement, Ms Senior was presented with and signed fortnightly contracts of employment. These contracts purported to cover a two weekly period, even though the applicant then knew that she was going to be employed for three weeks. Therefore, the contracts of employment were not an accurate representation of the true factual situation.
Indeed, with respect to Ms Senior filling in for Sylvia, Ms Smith said that this period of work commenced on 4 December 1995. This was part-way through the contract of employment which supposedly covered the period from 27 November 1995 to 10 December 1995. This contract of employment was in the form of the respondent making an offer of a temporary increase in hours of employment for Ms Senior. The document said that at the end of the contract period, unless formally extended, the applicant would revert to her substantive hours of employment. There was no formal extension of this document. The next contract of employment was that covering the period from 11 December 1995 to 24 December 1995, which has been described earlier.
Ms Smith agreed in her cross-examination that sometime before 4 December 1995, Ms Senior was aware that she had a three week position to fill. She therefore knew that her employment would not end on 10 December 1995, because she had been offered another position. This evidence shows that the respondent's argument that each individual contract expired by the effluxion of time is not an accurate assessment of the evidence. Ms Smith said that she did not know why two week period contracts were used.
Ms Smith's evidence was that contracts were used to fill five permanent vacant positions, in addition to absences of permanent employees on annual leave, absence on worker's compensation, etc. Her evidence was that she had a roster for the nine employees in the same situation as Ms Senior. It is clear that the employment of each employee who signed contracts of employment did not, as a matter of course, terminate when the supposed term of the contract ended. I therefore reject the submission in the respondent's closing written submissions that the employment contracts did in fact govern the applicant's employment with the respondent.
In paragraph 19 of the respondent's closing written submissions, it is suggested that where there is a decrease in operational needs of an employer and this leads to a termination of employment, the operational needs will be the "critical action" leading to the termination of employment in such a case, not the action(s) of the employer. This is clearly incorrect as a matter of law. If an employer is, due to a decrease in work, faced with a decision to reduce staff and the employer decides to reduce staff, and terminates an individual, the critical action is the decision of the employer to terminate the particular employment of the individual. The position is analogous to that in Ferry, where the Full Court did not hold that it was not the closure of Heathcote Hospital which led to the termination of the employment relationship, but the decision by the employer not to continue to employ the particular employee, subsequent to the closure of that hospital.
The respondent asserted that the RRR Award was not relevant to an employee employed by a fixed term contract. The applicant submitted that whether or not the final contract of employment expired on a particular day, the RRR Award required the employer to continue to employ Ms Senior.
I accept the applicant's submission that Ms Senior was not excluded from the operation of the award by Schedule A to the award. Clause 5(4) of the award defines redundancy as "a situation when a job performed by an employee ceases to exist or becomes surplus to requirements". If an employer decided not to continue to employ an employee because of a decrease in the operational requirements of the employer, then this could come within the definition of "redundancy" in clause 5(4) (see Minister for Health v Ferry). Further, if the notion of redundancy as defined by the RRR Award did not apply to an employee employed on a fixed term contract, there would be no need for the exclusion in Schedule A of the award of an employee where an agreement has been reached between the employee, employer and relevant union that the employee is only engaged for a defined period under a fixed term contract at the conclusion of which their employment shall cease.
CONCLUSION
For the reasons outlined earlier, the application will be dismissed. The reason for this is that I do not accept that there was a termination of the employment relationship by the respondent on 22 or 24 December 1995. I do not accept that the evidence supports the submission that there was a cessation of the employment relationship on 24 December 1995. This view of the evidence is supported by the fact that the applicant continued to be employed by the respondent in 1996 up to the time of her accident at work. It ought to be clear that this decision should not be taken as authority for the proposition that the employment of an employee, who is employed under a series of fixed term contracts, expires by the effluxion of time, rather than by the initiative of the employer, if the employer makes a decision not to continue to employ the particular individual after the expiration of one of the periods covered by a contract of employment. However, on the evidence in this case, such a situation did not occur.
I certify that this and the preceding 26 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 : 26 July 1996
APPEARANCES
Representatives for the Applicant: Mr D Kelly
ALH & MWU of Australia
Representatives for the Respondent: Mr M Lundberg
Crown Solicitor's Office
Dates of Hearing : 10 May 1996
Date of Judgment : 26 July 1996
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - hospital worker - series of "back to back" contracts of employment - whether TERMINATION AT INITIATIVE OF EMPLOYER - ongoing employment relationship
Industrial Relations Act (C'th) 1988, ss170CA, 170EA, 170EE(3),
Acts Interpretation Act, 1901, s15AA(1)
Western Australian Government/Australian Liquor, Hospitality and Miscellaneous Workers Union (ALHMU) Redeployment, Retraining and Redundancy (Interim) Award, 1994 (the "RRR Award").
Aitken v CMETSWU, WA Branch (1995) 63 IR 6.
Burazin v The Blacktown City Guardian, unreported, IRCA 660/95, 15 December 1995, Madgwick J.
Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 432.
Cliffs Western Australian Mining Co Ltd v Association of Architects, Engineeers, Surveyors and Draftsmen of Australia (1978) 58 WAIG 486.
Dadey v Edith Cowan University, unreported, IRCA WI96/1062, RD Farrell JR, 8 July 1996.
D'Lima v Board of Management, Princess Margaret Hospital for Children (unreported), IRCA 407/95, Marshall J, 25 August 1995.
Ex Parte Wurth; re Tully (1954) 55 SR (NSW) 47.
Grout v Gunnedah Shire Council (1994) 1 IR 160.
Krajewski v University of Adelaide (1993) 50 IR 57.
Minister for Health v Ferry, unreported, IRCA 117/96, 4 April 1996, Full Court (Wilcox CJ, North and Madgwick JJ).
Mohazab v Dick Smith Electronics (1995) 62 IR 205.
National Territory Education Industry Union v Edith Cowan University, unreported, IRCA 313/96, 16 July 1996.
O'Neill v Australian National University, unreported, IRCA 486/95, 29 August 1995, Linkenbagh JR.
Pacific Waste Management Pty Ltd v Saley (1993) 51 IR 339.
Siagian v Sanel Pty Ltd (1994) 1 IR 1.
Scally & Ors v Management of Sir Charles Gairdner Hospital, unreported, IRCA 130/96, 4 April 1996, Boon JR.
Smith v Director-General of School of Education (1993) 51 IR 204.
Strecker v Metropolitan Cemeteries Board (1995) 62 IR 109.
Stephanoski v Whisky Soda, unreported, IRCA 117/94, 15 February 1995, Millane JR.
SENIOR v LOWER NORTH METROPOLITAN HEALTH SERVICE BOARD OF MANAGEMENT - WI 1017 of 1996
Before: RITTER JR
Place: MELBOURNE
Date: 26 July 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1017 of 1996
B E T W E E N:
MARILYN RUTH SENIOR
Applicant
A N D:
LOWER NORTH METROPOLITAN HEALTH SERVICE BOARD OF MANAGEMENT
Respondent
MINUTE OF ORDERS
26 July 1996 RITTER JR
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
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