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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union and The Minister Administering the Tasmanian State Service Act 1984
Industrial dispute - alleged harsh, unjust and unreasonable termination of employment - expiry of fixed term contract - no intervention of Commission - file closed REASONS FOR DECISION On 25 September 2000 The Community and Public Sector Union (State Public Services Federation Tasmania) (CPSU) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the Tasmanian State Service Act 1984 (the Minister) arising out of the impending termination of Ms Leanne Payne from the Legal Aid Commission of Tasmania. On 29 September 2000 the A/President convened a hearing before myself at Hobart to commence at 9.30am on Tuesday 10 October 2000. When the application came on for hearing Mr Chris Buza of the CPSU appeared for the applicant. Mr Ken Read, a legal practitioner, sought leave to appear for the Minister. This application was opposed by Mr Buza. After hearing submissions I determined that leave to appear would be granted to Mr Read. From initial inquiries it was apparent that conciliation proceedings were unlikely to be productive and as a consequence the matter proceeded immediately to hearing. Mr Read foreshadowed that he would be contending that the Commission lacked jurisdiction to hear the application. However he took the unusual step of suggesting that the Commission would be advantaged by hearing an outline of the application before hearing argument on the jurisdictional question. As a consequence Mr Buza proceeded to present the case for the applicant. Ms Payne was employed by the Legal Aid Commission from 20 January 1999 until 2 October 2000. Over that period there were several items of correspondence and events which impacted in some way on the character of Ms Payne's employment relationship with the Legal Aid Commission. For convenience I have chosen to place these documents and events into two separate categories. The grouping which I will describe as Category 1 are those documents which unambiguously describe the nature of Ms Payne's employment contract or contracts. Category 2 documents and events are those which in some way may have modified the clear intent of Category 1 correspondence, or alternatively, created in the mind of Ms Payne a reasonable expectation of ongoing and probably permanent employment. I will deal with each in turn. Category 1 On 27 January 1999, David Vickery, Acting Manager, Human Resources, Department of Justice and Industrial Relations, wrote to Ms Payne in the following terms1:
The next significant event is a letter dated 7 February 2000 to Ms Payne from Michael Dwyer, Resources Manager, Legal Aid Commission, in the following terms2:
As a consequence Ms Payne continued in her role until receipt of correspondence dated 30 June 2000 from Norman Reaburn, Director of Legal Aid, expressed in the following terms3:
It is common ground that Ms Payne signed this letter indicating acceptance of the offer. Whilst I had some initial concern that Mr Buza was asserting that this may have been signed under some level of duress4, I am now satisfied that this was not the case. Category 2 Taken in isolation the three Category 1 letters of appointment are relatively straightforward and point to three separate but contiguous contracts of employment, the last of which ends by the effluxion of time on 2 October 2000. Mr Buza however argued vigorously that there was a series of events and additional correspondence, described in part as "... ambiguities and carelessness ..." which combined to cast considerable doubt as to proper employment status of Ms Payne. For convenience I have summarised these events as follows:
Mr Buza submitted9:
Submissions of the Applicant Mr Buza argued that the final period of employment, i.e. from 3 July 2000 to 2 October 2000 could not be separated from the totality of Ms Payne's employment with the Legal Aid Commission. He said that11:
And later12:
Mr Buza submitted that this principle [of looking at the totality of the employment history] was well established in this Commission. In support of this Mr Buza referred to a number of earlier cases including Green13, Oakley14 and McCrossen15. Mr Buza summarised Ms Payne's employment history in the following terms16:
Mr Buza concluded by submitting that Ms Payne was unfairly dismissed on 2 October 2000 and sought reinstatement in a position on not less favourable terms than that in which she had been previously employed. The Jurisdictional Argument Mr Read submitted, that by the offer and acceptance of the position detailed in the letter to Ms Payne dated 30 June 2000, Ms Payne was employed on a fixed term contract which expired on 2 October 2000. As such there was no termination at the instigation of the employer, and if there is no termination, there is no jurisdiction for the Commission to make an order. Mr Read referred to a High Court decision in the case of State of Victoria v Commonwealth of Australia17. At page 173 their Honours said:
Mr Read then referred at length to Saarinen's case18 in the Supreme Court of Tasmania. He said that there were parallels between Saarinen and the case at hand in that in both instances the employment contract ended at the expiration of a fixed term. Mr Read referred to the majority decision led by Underwood J. He referred to the following extract at page 178:
Mr Read interposed that that was precisely the submission he was putting to this Commission. The majority decision went on to dismiss the appeal which Mr Read interpreted as authority for the proposition that the expiration of a fixed term contract does not give rise to a termination, hence there is no "industrial dispute" within the meaning of the Act and, it follows, no jurisdiction for this Commission to act. Returning to the facts of this case Mr Read provided the somewhat colourful description of the circumstances when Ms Payne's contract came to an end19:
Findings I turn firstly to the jurisdictional question. I accept that in a perfect world, whereby a stand alone fixed term contract with an unambiguous expiry date has been freely entered into under ideal circumstances, the authority of Saarinen must prevail. There is no termination at the instigation of the employer and hence no industrial dispute within the meaning of the Act. In such a clear cut case, there would be no role for the Commission. In the instant case, if we were dealing with the 3 July 2000 to 2 October 2000 contract alone, and there were no other events or circumstances which might in some way colour the agreed contractual terms, the Saarinen principle would apply and I would refrain from further hearing the application. However such is not the case and I accept the submission of Mr Buza that the proper course is to look at the totality of the employment relationship between Ms Payne and the Legal Aid Commission. Indeed Saarinen contemplates circumstances whereby the expiry of the term of a contract may not terminate the employment relationship. Mr Read offered as an example the expiry of one annual contract after many years of such annual contracts in the context of the "adequate safeguards" provisions of the ILO Convention. A further example might be a situation whereby an Award or Statute impacts in some way on what might otherwise appear to be a straightforward fixed term contract. In cases such as this Saarinen will invariably be relevant consideration on the ultimate merits of the application. It would however, in my view, be rarely used to dismiss an application on jurisdictional grounds without a merit consideration of all the circumstances pertaining to the employment relationship. I turn now to this broader consideration. I should indicate from the outset that I have reviewed only the documentation and undisputed facts. In the absence of evidence I am unable to place any weight on assertions going in particular to the environment in which Ms Payne may have been working. The overall consideration is whether, in all the circumstances, Ms Payne could have reasonably reached a view that her employment circumstances had the character of permanence about it. There were aspects of the documentation which did give rise to a degree of uncertainty. The first substantive offer [letter of 27 January 2000] contained a material difference to the offer which actually created the employment relationship [letter of 10 December 1998] and was subsequently found to be made without authority. The e-mail from Roland Browne dated 12 November 1999 may have clouded the previously unambiguous expiry date of the then existing contract. It was also quite extraordinary that the letter of 30 June 2000 made no reference to the quite explicit offer in the 29 June 2000 letter. There were also a number of short periods for which no explicit contract appeared to be on foot. I refer in particular to the contract which was to expire on 19 January 2000, was allowed to run on without adequate explanation, and it was not until 7 February 2000 that a new contract was put in its place. On the authority of the Green case, allowing fixed term contracts to simply run on may well alter the employment status of an individual. The real test is however, whether the overall character of the employment changes as a consequence. It is not appropriate in my view, that minor over-runs, whether or not as a result of administrative oversight or defect, should be construed as creating a situation which is simply not open on the facts. I accept the submission of Mr Read that a fixed term contract may terminate on the occurrence of an event rather than a date in the calendar. This was certainly the case with Ms Payne. Her first contract may have ended on the return of Alanna Robertson from maternity leave, and in the second contract, when Alanna Robertson had used the residual of her leave without pay. I should say, however, that such "events" must have a reasonable prospect of actually happening within a realistic time frame. An expiry date which turns on an "event" which is so open ended so as to not be reasonably contemplated, may well vitiate an otherwise fixed term contract. I have not, however, formed the view that the contracts relating to Ms Payne fall into this latter category. There are two aspects of this case which I consider pivotal. The first is that at all material times the fact that Ms Payne was employed at the Legal Aid Office was directly connected to the absence of Alanna Robertson, and for no other reason. In the first instance Ms Payne provided relief for maternity leave and then leave without pay. In the final contract Ms Payne provided coverage whilst the vacancy occasioned on the resignation of Ms Robertson was advertised and filled. Secondly, it was always very clear that the position, previously held by Alanna Robertson, would be advertised when she ultimately resigned. This is quite explicit in the e-mail of 12 November 1999 and the correspondence of 29 and 30 June 2000. On the material before the Commission, I am unable to conclude that Ms Payne could reasonably have formed the view that her employment status had assumed the character of permanence. I do, however, have no difficulty in concluding that Ms Payne had a reasonable expectation of a successful application when the position was advertised. No questions had been raised as to her competence in a relieving capacity, and if I am to accept the submissions of Mr Buza, a large number of former temporary positions had been filled by the incumbents when advertised as permanent positions. This of course is an entirely different issue. The merit principle apparently has widespread, indeed probably universal acceptance and this Commission is precluded by statute from dealing with appointments. Even if it were not so proscribed, I would not ordinarily consider it appropriate for a tribunal such as this to stand in the shoes of a properly constituted selection panel. I conclude that Ms Payne's period of employment came to an end on 2 October 2000 as the result of the expiry of a fixed term contract. Further, nothing has been put that leads me to the conclusion that any unfairness justifying the intervention of the Commission was evident. Accordingly I close the file.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A3 |
