T6778
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Community and Public Sector Union and Minister for Public Sector Administration
Industrial dispute - termination of employment of teacher aide from the Department of Education, Community and Cultural Development - extension of time granted - termination unfair - matter relisted to hear parties re remedy REASONS FOR DECISION This application, lodged by the Community and Public Sector Union (State Public Services Federation Tasmania) (the CPSU), notified the Commission of an industrial dispute between the union and the Minister for Public Sector Administration "relating to the unfair termination of employment of long-term temporary employee, Marie Oakley, by the Department of Education, Community and Cultural Development". Mrs Oakley was a teacher aide at the New Norfolk High School. Mr O'Neill, for the Minister for Public Sector Administration, raised some preliminary points for consideration by the Commission prior to the commencement of the applicant's case proper. These were that
Ms Strugnell, for the CPSU, said that, as to remedy the applicant sought reinstatement to her previous position but if such a resolution was not possible the applicant would seek an order for payment of compensation consistent with the ILO Convention concerning termination of employment at the initiative of the employer. I am satisfied that, in this particular case, given the relationship between the CPSU and the Department on such issues over a long period of time, that the Department was not put at a disadvantage by the failure of the applicant to specify the remedy sought, and I indicated to the parties that I was prepared to accept the application as worded. As to the date of termination and the claim that the application was out of time, Ms Strugnell argued that by agreement with the Department of Education, Community and Cultural Development (the Department) a teacher aide register was maintained which "technically" did not come into operation until the commencement of the school year. Therefore since the first offer which was rejected, was made on 7 February 1997, the application lodged on 21 February 1997 was in time. If an application had been lodged within 14 days of the end of the school year, viz. 20 December 1996, Ms Strugnell argued that would have pre-empted the possibility of Mrs Oakley continuing in her employment. She said:
I informed the parties that I would rule on the question of extension of time at the completion of the matter. Both parties indicated that they would address the alternative job offers in their substantive submissions. Ms Strugnell submitted that teacher aide employment commenced in Tasmania in 1973. Apart from two, no other teacher aides are permanent employees for the purposes of the Tasmanian State Service Act. They are paid from funds allocated to schools on an annual basis and the school principals and business managers allocate priorities to be met from the budget including the payment of teacher aides. Prior to 1989 teacher aides "simply continued in their positions with no advice received from the department ... in relation to their terms and conditions of employment".2 Between 1989 and 1992 letters of appointment were written to teacher aides. Since 1992 the Department had issued teacher aides with contracts of employment in the form of letters of appointment. Since 1992 teacher aides have been treated as if they were temporary employees engaged in accordance with section 38 of the Tasmanian State Service Act, Ms Strugnell said. It was submitted that in 1993 the teacher aide register was established, after discussion between the CPSU and the Department, to "ensure" that the skills and experience of teacher aides were maintained in the system and to prevent the "exploitation of teacher aides". It was said the register also "prohibits any sort of termination of employment of teacher aides where a position is also going to continue in the next year".3 Ms Strugnell said:
and further
Ms Strugnell questioned whether a school principal had the "delegated authority" to terminate employment given that the letters of appointment received by teacher aides were issued from the Department's human resources area. Ms Strugnell tendered copies of letters to Mrs Oakley from the Department informing her of her appointment as a temporary teacher aide. They were as follows:
Ms Strugnell said there had been no "administrative documentation" in respect of the 15 years Mrs Oakley had been at the school prior to 1989. Ms Strugnell drew the Commission's attention to the retrospective nature of some of the letters of appointment, the duplication created by the new contract of 17 July 1992, and the requirement that two weeks' notice be given to bring to an end the period of employment. Ms Strugnell submitted that Employment Instruction No. 1 of 1996 issued on 14 May 1996 contained the requirement that
She tendered a copy of Administrative Instruction No. 29 of 28 August 1992, dealing with Temporary Employment in the Tasmanian State Service and addressed the four categories to which temporary employment must be limited. They were
Ms Strugnell submitted that Mrs Oakley did not fit in any of these categories. Mrs Oakley was called to give evidence. She testified that she had been employed at the New Norfolk High School for 23 years and had not been employed elsewhere during that period. She said that from 1974 when she commenced at the High School until 1989 the school bursar had told her that her employment would continue and that there had been no notification from the Department in that period. Although from 1992 the letters of appointment required the appointee to return a slip indicating acceptance or otherwise of the offer of appointment, she had done so only in 1992. She said the slips "never meant anything"6 and there had been no response from the Department. She had not sent a copy of her birth certificate to the Department as requested in 1995 and 1996 and again there had been no response from the Department.7 She said that although the documents indicated she was a temporary employee, she thought that "... after 23 years it was just an ongoing situation of returning to employment".8 She said she did not class herself as a temporary employee. She said she had trained as a first aid officer, with financial assistance from the Department every three years. She received computer training in "library assistance" at the instigation of the librarian in the October of her last 12 months of employment. Mrs Oakley said that on 11 December 1996 (later under cross examination she conceded that it might have been on Wednesday, 4 December) she had been called to the principal's office, the acting principal and the bursar were present, and she had been told that "because of costs to their budget" they could not afford her in the coming budget year, that is 1997. Under cross examination Mrs Oakley also recalled that another reason for employment not being offered for 1997 was that teacher librarians' workload was being moved "back into the library full time in 1997". She said she applied to be included in the teacher aide register but received no response in relation to her registration. On 2 January 1997 she said she received a hand written note advising her that her long service leave entitlements calculated from 18.2.74 had been deposited in her bank account. At that stage she assumed that the Department was terminating her employment, but, she said she had received no other documentation from the Department. Ms Strugnell asked Mrs Oakley what her feelings were at that time and she replied:
She said she regarded her employment as ongoing and "... just returned each year for 23 years..."10 In relation to the offers made subsequent to the end of the 1996 school year, Mrs Oakley said she had been offered 15 hours per week for five weeks as a library aide at the Ouse District High School which was rejected, and a position at Westerway Primary School for 2 hours per day for 5 days per week for seven weeks which was also rejected. It was submitted that the time and cost of travel for these short daily periods of work were such as to make acceptance of the offers unreasonable in terms of cost effectiveness. That they were for 5 and 7 weeks only also affected Mrs Oakley's decision not to accept them. Ms Strugnell submitted that letters of appointment were "purely administrative documentation" and that Mrs Oakley's employment history was the important factor. Mrs Oakley had not been employed in accordance with the Administrative Instruction issued in accordance with the Tasmanian State Service Act. She submitted that Mrs Oakley's work was continuing to be done by someone else because of the restructuring for 1997. Ms Strugnell questioned the capacity of the principal, if authority had not been delegated, to effect the termination of Mrs Oakley's employment and the way in which the Department treated employees such as Mrs Oakley who have long term employment. She said all that Mrs Oakley received after working for 23 years with the Department was a "handwritten note saying, here is your long service leave payout". Ms Strugnell tendered as an exhibit (CPSU.5) a summary of categories of separations and entitlements available under the Employment Rationalisation Processes. Ms Strugnell submitted that Category 5 was the most relevant to Mrs Oakley. That category applies to employees aged 55 years and over who are not contributors to the RBF or an approved superannuation scheme. It was in the following form:
Ms Strugnell sought the reinstatement of Mrs Oakley to her position at New Norfolk High School; if that was impracticable a payment "in line with the employment rationalisation programme payments" would be "minimum compensation", she said. Mr O'Neill submitted that the decision not to employ Mrs Oakley beyond December 1996 was not unfair because
Mr O'Neill said the contract for 1996 stood alone; it had a finite finishing date. Mr O'Neill submitted that the Department was not required to give Mrs Oakley two weeks' notice unless the contract of employment was to be terminated prior to the end of the contract. Mr O'Neill said the Teacher Aide Register had been developed to ensure that teacher aides who had been employed for at least one term in the previous school year and who
were given priority employment consideration where a teacher aide vacancy occurred in a school or college. He said a school or college could "not appoint a teacher aide from outside that register without the express permission of the department's human resources branch"11. The register had the approval of the Commissioner for Public Employment and "since its inception, the endorsement of the CPSU". Mr O'Neill said the register recognised that teacher aides have their hours varied from year to year and that in some instances no hours were available. The register had been put in place for the protection of teacher aides in that "they have first priority of employment as against outside persons seeking to become teacher aides."12 Mr O'Neill refuted the submission that the register extended the contract of employment from the close of school in December to the start of school in February. Mr O'Neill submitted that if Mrs Oakley had accepted either the position at Westerway or Ouse she would have been "gainfully employed" in 1997 and then would have been able to be included in the 1998 register even though the employment might have been only 5 or 7 weeks and not a full term as mentioned in the employment instruction. Mr O'Neill said it was not the normal practice to pay long service leave immediately to eligible teacher aides "who were terminated at the end of the contract"13 because "if further employment occurs the long service leave continues to accrue". 14 Such payments, he said, were made after Term 1 or if the individual made contact with the Department indicating that employment was no longer sought. Mr O'Neill acknowledged that it would have been reasonable for Mrs Oakley to conclude that on receiving payment for long service leave that her employment with the Department had come to an end. Mr O'Neill said that there was no position available for Mrs Oakley at the New Norfolk High School and that the alternative relief being sought, viz. the "payment of a monetary amount, having regard for her total years of service with (the) department, effectively represents a claim for a redundancy payment, which we say cannot be sustained having regard for the contract of employment for 1996 and the finite nature of that contract."15 He tendered as an exhibit a copy of a decision of the Australian Industrial Relations Commission of 7 January 199716 in which it was found that an employment relationship of a series of contiguous, fixed term, temporary appointments with mutually agreed termination dates could not result in a termination being effected at the initiative of the employer. The employment conditions also clearly stated that the temporary employee concerned was not entitled to compensation as a result of termination of employment. Mr O'Neill said the case was relevant considering the finite date of the last contract of employment held by Mrs Oakley. Mr O'Neill said that principals had not been delegated the authority to hire and fire staff. He said that principals were consulted about the operational needs of a school prior to official advice being sent from the Human and Personnel Services Branch. Mr O'Neill said that at the completion of a teacher aide's work in December, pro rata annual leave and annual leave loading was paid based on the "pro rata circumstances" of the individual. Sick leave was accrued on a similar manner and accumulated from year to year. Ms Strugnell pointed out that teacher aides had access to maternity leave after two years of employment and also had access to leave without pay. She said that despite the argument that each year stood alone there was "a recognition of previous past service for those leave entitlements."17 Ms Strugnell submitted that the letters of appointment received by Mrs Oakley repeatedly contained expressions such as the "department trusted that she would continue to enjoy working with the department", and "trusted that her employment continued to be rewarding."18 She said that what happened was "that teacher aides are in effect stood down for school holidays" as there was "no work after that (December) date in a school until the school year recommences the following year."19 Ms Strugnell submitted that there "was a lot of difference between" the case referred to by Mr O'Neill involving employment between 28 March 1995 and 30 September 1996 and Mrs Oakley's circumstances involving employment from 18 February 1974 to 20 December 1996. Mr Payne, appearing with Mr O'Neill, said there were a number of full time clerical employees in primary schools, employed permanently who were effectively stood down in school holidays and paid for 42 weeks each year. If they were re-employed the following year, Mr Payne said, they were paid for the break as if it were annual leave. He agreed that teacher aides seemed to be in a different category to other employees not required to work in school holidays. He said that situation had stemmed from conditions attached to the original funding from the Federal government through the Schools Commission "where funding was made directly to schools who had the choice to employ teacher aides". Having heard the submissions and evidence presented in this matter I am satisfied that I should exercise the discretion given to the Commission by way of section 21(2)(m) to extend the time prescribed in section 29(1B) of the Act for an application to be made for a hearing in respect of an industrial dispute relating to termination of employment. In arriving at this position I have applied the principles governing such discretion which I have derived from the tests applied by Wilcox J (as he then was) in Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344,349. These tests have been described in previous decisions of the Commission, as constituted in this matter, and I will deal with them under headings only. Explanation of Delay I am satisfied, notwithstanding the confusion over the dates of the rejected offers prior to the start of the 1997 school year, and despite Mrs Oakley's statement in evidence that she thought her employment was terminated when she received the notice about her long service leave payment, that it was reasonable for the CPSU to believe that Mrs Oakley's employment was not terminated until the commencement of the school year, 13 February 1997. Mr O'Neill said the Department was still trying to find employment for Mrs Oakley in March 1997, and that payment of her long service leave entitlement early in January 1997 had been made too soon. In the circumstances it seems clear to me that at least from the union's and Mrs Oakley's points of view there was a chance she might continue with her employment with the Department from 13 February 1997, in which case the application dated 21 February 1997 is in time. Whether the real date of termination is 20 December 1996, 13 February 1997 or some other date will become clearer as a result of my findings but I am satisfied that there is an acceptable reason for the delay, if any, in making the application. Other action taken by the applicant Whilst this aspect of the tests was not addressed specifically, Mrs Oakley had made application to be included on the Teacher Aide Register which indicates to me a serious desire to continue in employment with the Department as a teacher aide. Accordingly I find this test is in favour of the applicant. Prejudice to the other party The Department, through its delegated authority from the Minister for Public Sector Administration, is a large employer and in my opinion will not be unreasonably prejudiced by the delay which has occurred during a period which, for the great bulk of time involved, schools were closed. That is not to say I am unmindful of the fact that much administrative work relating to staffing of schools occurs during that time. In the circumstances I consider the question of whether there is prejudice to the Department is a neutral factor. Merits of the application Given the material put which is dealt with in detail later, there is an arguable case for consideration. Fairness as between others in like positions No evidence was put to me by either side that this was a factor that I should take into consideration and I therefore consider it a neutral factor in my deliberations as to extension of time. Given the explanation for the delay, and the potential merits of the applicant's case, time is extended pursuant to section 21(2)(m) of the Act to ensure that the application is properly before the Commission. Ms Strugnell was concerned that the Department had failed to apply Administrative Instruction No. 29 of 28 August 1992 correctly when it conferred the status of temporary on employees such as teacher aides and on Mrs Oakley in particular. Whether or not temporary employment status can be applied to teacher aides such as Mrs Oakley who are employed each year for fixed terms is a moot point and one on which I do not think I should rule, given that temporary employment is a condition of employment expressly provided for in the Tasmanian State Service Act 1984, but I feel I must make the following comments. If the categories of temporary employment in the Tasmanian State Service are those set out in Administrative Instruction No. 29 of 28 August 1992, I must agree with Ms Strugnell that Mrs Oakley does not seem to fit any of the four categories specified. It seems to me that -
Mr O'Neill did not address this aspect of Ms Strugnell's submission and accordingly I have come to the conclusion that the Department accepts the observations made by Ms Strugnell, which were similar to those I have set out above. Notwithstanding the comments I have made on the subject, it is for others to take whatever action is thought appropriate. From the submissions and evidence there is no dispute that Mrs Oakley commenced employment as a teacher aide at the New Norfolk High School in the 1974 school year. She was employed each subsequent year in the same or similar positions for all of the school years, excluding term breaks, until the close of the school year in 1996; in all for 23 consecutive years, less school holidays. Until 1989 it appears no attempt had been made by the Department to document this form of employment. School principals were permitted to exercise their discretion to employ teacher aides if they so wished, with funds from Schools Commission sources. It seems that no appointment letters were provided to staff between 1974 and 1989. From 1989 the Department commenced to document teacher aide employment as briefly described in the table above. One issue of concern is whether these annual letters of appointment advising Mrs Oakley that her employment was to be for a fixed term, exclusive of school term holidays, were sufficient to inform her that her employment was to conclude on the date set out in each of the letters. The facts of Mrs Oakley's employment history suggest that from 1990 to 1995 inclusive the concluding dates contained in the appointment letters indicated no more than that she would not be paid during the period from the close of school one year to the opening of school the next year. On 28 November 1989 she was informed that her temporary appointment was to be "extended from 19/2/90 to indefinite but not beyond 21/12/90", but she was back at school at the beginning of the school year in 1991. On 1 March 1991 Mrs Oakley was informed that her temporary appointment had been "extended from 21 December 1990 to indefinite but not beyond 20 December 1991", but she had started again in her old job from the beginning of the school year in 1992. In 1992 the first letter of appointment was dated 31 January and was effective from 17 February. Mrs Oakley was informed that her employment was "for a fixed period of tenure" not beyond 18 December 1992. This was confirmed by a second letter of appointment dated 17 July 1992 emphasising that her appointment was subject to section 38 of the Tasmania State Service Act 1984. But Mrs Oakley was re-employed in her old position the next year. In 1993 she started work on 15 February and her letter of appointment was dated 24 February. In 1994 she was informed by letter of 9 February 1994 that she was to commence on 16 February. But I have no doubt she expected that would happen. In 1995, she returned to work on 15 February but her letter of appointment was dated 22 February. She obviously knew her job was to continue. Mrs Oakley returned to work in 1996 on 14 February but her letter of appointment was dated 20 March. Again she obviously had an expectation of ongoing employment. Only on one occasion, that was in response to the letter of appointment of 17 July 1992, did Mrs Oakley return the notice accepting her temporary employment. She was not asked to return the forms in 1993, 1994, 1995 or 1996, and there is no suggestion that her failure to do so affected her ongoing employment even though the forms required Mrs Oakley to acknowledge that her temporary appointment was "for a fixed term and (did) not provide for continuation of employment beyond the specified date". That Mrs Oakley did not return the slips acknowledging agreement with her terms of employment and the Department did not attempt to get that acknowledgement is of some interest but not of significant influence in my deliberations. As to the different views about the date upon which Mrs Oakley was told that her services would not be required in 1997, I make no finding as I consider the date of those discussions to be irrelevant. However the concluding date of Mrs Oakley's employment for the 1996 school year was known and accepted by all, including Mrs Oakley. What Mrs Oakley did not know, until early December 1996, was that she would not be required in 1997. The fact that the Acting Principal felt disposed to tell Mrs Oakley that she was not required in 1997 lends weight to the claim that Mrs Oakley had a reasonable expectation that her employment would be continued. Further, I think it is reasonable to conclude that Mrs Oakley would have been employed at the school in 1997 had it not been for impending cuts to budget. I accept the submission by Ms Strugnell that the work that Mrs Oakley used to perform is now being done by another or others and that Mrs Oakley's services became redundant as from the commencement of the 1997 school year. I agree with Ms Strugnell's submission that Commissioner Hingley's decision (Exhibit O.2) dealt with a set of facts and circumstances that is not comparable with this case and accordingly I do not accept that decision as providing precedent upon which I should determine this matter. Other features of this case which have had a bearing on my decision are -
Given the pattern of Mrs Oakley's employment at the New Norfolk High School, I have arrived at the conclusion that Mrs Oakley was effectively stood down from her employment during term holidays and at the end of each school year due to lack of work. It seems to me that the letters of appointment setting out the fixed term to be applied were designed to avoid the reality of the employment relationship and to avoid any costs which might attach to continuing employment. However the Department paid Mrs Oakley her long service leave entitlements; met annual leave and annual leave loading costs if the employee resumed work in the new school year; and sick leave entitlements were allowed to accrue; factors that, in my opinion, go against Mr O'Neill's claim that each letter of appointment stood alone due to the "finite" date contained in the letters. Having found that Mrs Oakley was regularly "stood down" from employment during term vacations and between school years, notwithstanding the letters of appointment, it follows that I consider Mrs Oakley was continually employed by the Department or the Minister from 1974 to the end of 1996. Let me say at this point that I have no in-principle objection to the effective standing down of teacher aides in circumstances such as these where both employer and employee are aware at the commencement of their employment relationship that there will be certain fixed periods (school vacations) when the employee's services will not be required and for which they will not be paid. I do not accept Mr O'Neill's submission that Mrs Oakley's employment was not terminated by the employer, and having considered the submissions and evidence I find that the actual termination date of Mrs Oakley's employment with the Tasmanian State Service was 20 December 1996, as per the letter from the Director of Human and Personnel Services dated 20 March 1996. I consider that it was reasonable for Mrs Oakley, because of her long period of employment at the High School to expect that she would be employed at the New Norfolk High School in 1997 and I have no doubt that Mrs Oakley wanted to continue her employment at the High School as she had done in similar circumstances for the preceding 23 years. That Mrs Oakley refused the offers of short term positions at Ouse and Westerway was, in my opinion, reasonable for the reasons given in evidence and submissions and the refusals do not assist the Minister in the defence of the claim that Mrs Oakley's employment was unfairly terminated from her employment at New Norfolk. In the event, with effect from the start of the 1997 school year, Mrs Oakley's position of teacher aide was abolished, her work allocated to others and Mrs Oakley was made redundant. Since a similar position has not been found for her and she has not been compensated for the loss of her job, I find that Mrs Oakley, who reasonably had an ongoing expectation of employment at the New Norfolk High School, was unfairly treated at the time of her termination. I make no finding in respect of the authority or the lack of authority for the Acting Principal to inform Mrs Oakley that her services were not required in 1997, but I recommend the Department take action to clarify the position for the future. This matter is relisted for further hearing on Monday, 21 July 1997, at 9.30 a.m., to allow the parties to address the Commission in more detail in relation to an appropriate remedy. In the meantime the parties are urged to meet to endeavour to negotiate a mutually acceptable resolution to the dispute.
F D Westwood Appearances: Date and place of hearing: 1 Transcript p.4 |