Veronica Ellen May v The Australian Capital Territory
[1996] IRCA 28
•13 February 1996
DECISION NO: 28/96
CATCHWORDS
TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - CASUAL EMPLOYEE - CONTRACT OF EMPLOYMENT - EMPLOYMENT RELATIONSHIP -VALID REASON - PROCEDURAL FAIRNESS - HARSH UNJUST OR UNREASONABLE - DISCRETION TO AWARD COMPENSATION - CIRCUMSTANCES OF THE CASE
Industrial Relations Act, 1988 Sections 170 DB DC DE DF EA EE
Industrial Relations Regulations Regs. 30 B and BC
APESMA V. Skilled Engineering Pty. Limited (1994) 122 ALR 471
VERONICA ELLEN MAY V. THE AUSTRALIAN CAPITAL TERRITORY
NO. AI 1264 of 1995
Court: Judicial Registrar Linkenbagh
Date: 13 February 1996
Place: Canberra
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY NO. AI 1264 of 1995
VERONICA ELLEN MAY
Applicant
THE AUSTRALIAN CAPITAL TERRITORY
Respondent
MINUTES OF ORDER
13 February 1996
The Court orders that:
That the respondent is in breach of Sections 170 DC and 170 DE of the Industrial Relations Act, 1988.
That no amount of compensation or damages be paid to the applicant.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the
Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY NO. AI 1264 of 1995
VERONICA ELLEN MAY
Applicant
THE AUSTRALIAN CAPITAL TERRITORY
Respondent
JUDICIAL REGISTRAR LINKENBAGH
CANBERRA
13 FEBRUARY 1996
This is an application under Section 170 EA of the Industrial Relations Act, 1988. The applicant was employed from 10 March 1994 to 18 July 1995 as a Kitchen Hand/Diet Maid mostly at the premises known as Watson Hostel in Canberra. The Hostel is conducted by the Department of Health and provides residential accommodation for about 40 mentally ill persons. Occasionally the applicant worked at the Hennessy House which is a similar establishment.
The respondent is empowered to engage persons for "temporary employment on a casual basis" by Section 110 of the Public Sector Management Act, 1994, and the Section also provides that such employment shall not be taken to be employment for a fixed term. The relationship between the applicant and the respondent is evidenced in part by a Contract, which is Exhibit 3, and it is entitled "Contract of Casual Employment". It provides for "casual employment with ACT Health" "in accordance with" Section 110 in the GSO 2 Classification at Hennessy House and gives details of the annual salary and other entitlements. The words "casual" and "temporary" apparently have the same meaning in this context and nothing to the contrary was put to me.
The contract also provides:
"You will be employed as a casual on an "as needs" basis. This means you have no long term arrangement with ACT Health (no tenure) and your casual employment will not be extended as any new contract is considered to be a new period of employment. There is no guarantee of further employment, or future employment and you are required to confirm your continued availability for casual employment on the register when your contract terminates. However, in order to meet operational requirements, your services may be terminated at any time and without notice. You may wish, for your own reasons, to terminate the engagement before its completion."
There are no other provisions relating to the termination of the employment. The contract is incomprehensible in its terms and without reference to the actual practice which was adopted I am unable to determine its meaning. It was in fact the third similar document the applicant had signed since 10 March 1994, although the other two were expressed to be for six months, a provision which is contrary to the provisions of Section 110 (2). The second and third contracts were signed after the date on which they are expressed to commence, suggesting that the contracts, such as they were, may have been more a formality intended to satisfy the terms of the Act, than negotiated employment contracts. The reality was that the applicant worked for the Department continuously, on a part-time basis, for varying shifts and numbers of hours each week, and she was paid on an hourly rate. Her shifts were notified to her by the management of the hostel and her time sheets for 1995 confirm the ad hoc, on-call basis of the employment. The least number of hours worked was nine, and the highest number was sixty hours and thirty minutes, in any fortnight, the latter being in the last fortnight worked before the termination. The applicant asserted that the average was forty-one hours a fortnight.
Regardless of the terms of the contract, I have no doubt that the management of the Hostel and the applicant understood the essential details of the actual employment arrangement. There was a pool of persons available to work, and the management provided work to members of the pool by contacting them and offering them shifts. If the person contacted was unavailable, then the shift was offered to another member of the pool. Once a shift was accepted then the person was expected to work. Subsequent inability to attend work was to be notified as early as possible so that another person could be brought in to do the shift. That was particularly important, because the duties involved the provision of meals for the residents, who live by a routine in which meal times are significant daily events. The period of notice to work a particular shift varied from a week or so down to less than twenty-four hours.
The applicant asserted in her evidence that she was rostered on some shifts permanently in 1995. The time sheets which are Exhibit B do not support that assertion, but do support a finding that the applicant had an expectation of some employment in each fortnight, and the number of hours actually worked in 1995 support a finding that the applicant worked on a regular and systematic basis for at least six months. The applicant is not therefore excluded from making this claim by the provisions of Regulation 30 B of the Industrial Relations Regulations. I do not agree with the submission of Mr. Bayliss that The Regulation imports an intention in advance. Many employment arrangements have characteristics which vary with the passage of time and the development of the employment relationship. The point in time at which the Regulation 30 B tests are to be applied must be the time of termination, when all the facts are known and all the characteristics of the relationship can be identified.
There is some confusion about dates in the evidence of the applicant and Ms Dodd, the main witness for the respondent. The applicant's memory could be said to be not the best, and I find Ms. Dodd's memory more reliable. They both say that they had a telephone conversation, following which no further work was offered to the applicant, and that was probably on 18 July, 1995. I accept the evidence of Ms Dodd that she had been "left in the lurch" too many times by the applicant, as a result of the applicant's telephoning at short notice to say that she could not attend for a shift which she had agreed to work. Ms Dodd gave evidence of a course of conduct by the applicant in that regard, which was supported by the evidence of one of the other Diet Maids, Mrs. Simpson. I accept also the evidence of the Receptionist at Watson Hostel, Ms. Russell, that the Hostel was "soft on options", with the result that the dissatisfaction with the applicant's absences from work and giving of late notice in respect of those absences was not communicated to the applicant as forcibly as it would have been.
By 18 July Ms. Dodd was concerned about the applicant's conduct in relation to her non-attendance for some shifts, and also there were other factors to do with the availability of other staff for work which caused Ms. Dodd to reconsider the rostering of the applicant for work. Ms Dodd needed what she described as "stability in the kitchen" and told the applicant that things were "not working out". The result of the conversation on 18 July was that Ms Dodd told the applicant that she could not use her any more, and the applicant formed the conclusion that her employment had been terminated. There was in fact no further contact between the applicant and Watson Hostel.
Mr Bayliss for the respondent argued that there had been no termination at all, that the contract of employment remained on foot, and that the applicant was simply not called in for work after the telephone call, that being, presumably, within the terms of the contract of employment. There is authority for the proposition that employment can come to an end while the contract of employment remains on foot. Justice Gray of this Court expressed that view in APESMA v. Skilled Engineering Pty. Limited (1994) 122 ALR 471 and this case is an illustration of that proposition. No more employment was offered, and no more work was done, but nevertheless the written contract, whatever its meaning may have been, was still on foot. The applicant was still one of the pool of persons who could be called in to work, but she was not called in, with the effect that her actual employment was terminated. That conclusion is supported by the evidence of Ms Dodd that she could not bring that contract to an end, as she had no authority to do so, that being a function of some other office of the Department. It is also supported by the evidence that about a month after 18 July the applicant was offered a shift by the management of Hennessy House, which the applicant declined as she believed her relationship with the respondent had been severed. Ms Dodd very effectively brought the employment to an end in fact. There was, therefore a termination at the initiative of the employer.
In considering whether there was a valid reason for the termination of the employment and whether, if there was a valid reason, the termination was nevertheless harsh, unjust or unreasonable, in circumstances such as exist in this case the Court must bear in mind that the employment relationship is a two-way street but must also consider whether the procedure followed by the respondent was fair. The applicant was well aware of the terms of the engagement, and that it could be terminated by either party. She must also have known of the need for her to be reliable in her attendance for shifts to which she had committed herself and that she had not been reliable in that regard. There was therefore a valid reason for the decision of the respondent not to offer her more work. If the amendments to the Act which came into effect on 15 January, 1995 applied in relation to Section 170 DE in this case, then I would have no hesitation in finding that although there was a valid reason for the termination of the employment it was not harsh unjust or unreasonable in all the circumstances of this case. However, those amendments do not apply, and because the respondent failed to warn or counsel the applicant about her shortcomings, and give her an opportunity to improve her conduct, I must find that the termination was harsh, unjust or unreasonable. I also find that the respondent is in breach of Section 170 DC of the Act.
The applicant submitted that the respondent was also in breach of Section 170 DF (1) (a) in that the termination was for reasons which included temporary absence from work because of illness. There is no evidence before me as to any illness of the applicant on which I could base a finding of a breach of that Section.
The amendments to Section 170 EE effected by Act No. 198 of 1995 do apply to this application. The discretion to reinstate or order compensation is widened by the amendments and I must take all the circumstances of the case into account in exercising that discretion.
The applicant is now employed by the respondent in another capacity and does not seek reinstatement. Because of the variable hours actually worked by the applicant it would be difficult to frame an Order which assured her of a comparative position and continuity of service. In all the circumstances that is not a practicable option. Considering all the circumstances of the case I do not propose to order compensation. I take into account the matters to which I have already referred and particularly note that the arrangement between the parties, whilst not documented adequately or accurately, was one which was very flexible. It was terminable by either party without notice. Further, the applicant enjoyed the right to refuse any shift offered to her, whilst the respondent could pick and choose as to what work was offered to the applicant. There is no evidence before me as to the applicant's future intentions as to working for the respondent in the capacity of a Diet/Maid and the terms of the contract are that her options are kept open. That was the deal struck by the parties and they must both bear the consequences, good and bad, which flow from such a loose arrangement. In all the circumstances it would be unfair to impose an Order for compensation on the respondent and such an Order might operate as a windfall to the applicant.
The applicant is not entitled to the benefit of Section 170 DB of the Act because of her status as a casual employee and the operation of the provisions of Regulation 30 BC of the Industrial Relations Regulations.
I therefore propose to make Orders which acknowledge the breaches of the Act by the respondent and give effect to the exercise of my discretion not to make an Order under Section 170 EE(3) and my determination that the applicant is not entitled to damages under Section 170 EE (5).
I certify that this and the preceding four pages are a true copy of my reasons for Judgment.
Maria Linkenbagh
Judicial Registrar
Solicitor for the Applicant: Mr. D. Sloan
Meyer Boettcher and Clapham
Solicitor for the Respondent: Mr. R. Bayliss
The Australian Capital Territory Government Solicitor
Date of Hearing: 17 January, 1996
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