T7614
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Robert Ackerley and Minister for Public Sector Administration
Industrial dispute - termination of employment - termination of an employee from the Department of Education, Community and Cultural Development - termination valid - employment and termination notices unsatisfactory - notice period extended - order issued REASONS FOR DECISION This application was lodged by Robert Ackerley pursuant to section 29(1A) of the Industrial Relations Act 1984 (the Act), seeking a hearing in relation to a dispute with the Minister for Public Sector Administration, now the Minister Administering the Tasmanian State Service Act. The dispute related to the termination of his employment. When the matter came before the Commission for hearing in Launceston, Mr T Brady appeared for the applicant and Mr J O'Neill represented the Minister. As a preliminary issue the parties addressed the out-of-time factor of the application. Mr Brady explained that the matter had recently been the subject of an application by the Australian, Liquor, Hospitality and Miscellaneous Workers' Union, Tasmanian Branch, No. T7432 of 1997, which had resulted in an interim decision by Commissioner Watling on 6 February 1998 by which he disqualified himself from further hearing the matter and referred the application back to me for reassignment. On 16 March 1998 I dismissed the application as the applicant had advised, in the interim, that it wished to withdraw its application. Mr Brady asserted that the union withdrew from those proceedings without Mr Ackerley's authority. Mr O'Neil did not contest those submissions and indicated a willingness to allow the matter to proceed. I accept the explanation for the delay in making application and formally extend the time in accordance with the discretion given to the Commission by the provisions contained in section 29(1B) and section 21(2) of the Act. It appears that Mr Ackerley had been employed as a School Attendant at the Invermay Primary School from 22 July 1997, replacing another employee, Mrs Hancock, who was on sick leave. Mr Ackerley's employment was to continue until the employee returned from leave. Mr Ackerley's letter of appointment was dated 11 September 1997.1 On 24 September 1997 he signed a document2 accepting the conditions set out in his letter of appointment which included a provision that "employment may be brought to an end at any time by the giving of one (1) week's notice by either party". Mr Ackerley was informed on a number of occasions during Mrs Hancock's absence that further sick leave certificates had been received and he was asked by the principal if he was willing to continue working. In each case he had indicated he was prepared to do so. In late October Mr Ackerley became aware that Mrs Hancock had resigned due to ill health and that the position would be advertised in accordance with the Department's standard procedure. The resignation was effective from 31 October 1997 and the vacancy was advertised the following day. It was alleged that the school's principal encouraged Mr Ackerley to apply for the position and that Mr Ackerley had been left with the impression that making an application was a formality, although later in cross examination Mr Ackerley conceded there "were no guarantees of anything". However he felt there was a precedent in that the Department had in the past automatically filled positions in such circumstances by appointing the relieving person. In any event, Mr Ackerley responded to the advertisement and he was subsequently given an interview. This occurred on 27 November. On Friday, 28 November 1997 the principal wrote to Mr Ackerley informing him that he was not the candidate selected for the job.3 Mr Ackerley claimed the letter was handed to him on a Friday evening and he was asked if he "would continue to work on" until the selected candidate commenced. He agreed so to do. The principal could not remember when she asked Mr Ackerley to continue. Mr O'Neill, acting on behalf of the Director (Human and Personnel Services), was unaware that the school principal had written to Mr Ackerley informing him he had been unsuccessful with his job application. On Thursday 11 December 1997 Mr Ackerley spoke with Mr O'Neill by telephone and he was advised that his employment would cease at the close of business on the following day. At that time Mr Ackerley raised the question of payment in lieu of notice and he was told he would be paid a week's pay in accordance with his "contract of employment". On the same day the school newsletter, the Invermay News, was published which contained a paragraph, in a letter from the principal, informing parents that:
It is not clear from the evidence or submissions whether the newsletter was in Mr Ackerley's hands before he contacted Mr O'Neill. By letter dated 16 December 19974 Mr O'Neill informed Mr Ackerley that his period of employment was to cease at the close of business on Friday,12 December 1997. Mr Ackerley said he had been employed by the Department on eleven separate occasions, for periods "ranging from four hours to weeks" since his termination on 12 December 1997. Mr Brady submitted there was no valid reason for Mr Ackerley's dismissal. He elaborated on that point by stating that the Department's policy relating to temporary employment, which was Tasmanian State Service policy, was that the contract of employment should specify a commencement and termination date. He was unable to provide evidence of the State Service policy or guidelines on temporary employment. Mr Brady said that the contract of employment provided that Mr Ackerley was to commence work on 22 July 1997 and continue in that position until the return of Mrs Hancock. Since Mrs Hancock was not going to return it followed, he argued, that Mr Ackerley should have continued in the job. He submitted that because the contract of employment was "open ended" in that it did not have a termination date, it stayed in place all the way through the advertising and selection process until Mr Ackerley was dismissed. Mr Brady referred me to the decision of a Full Bench of this Commission in a matter which resulted in the reinstatement of a similar employee, Mr Green, at the Glen Huon Primary School (the Green case).5 He submitted that Mr Ackerley applied for the advertised position and went through the interview process in good faith because he understood that to be the "Department's policy". At the same time, he said, "Mr Ackerley thought he had the job". Mr Brady said the notification that he had been unsuccessful was not a notice of termination and Mr Ackerley continued in the job after receiving the former letter. Mr Brady suggested that Mr Ackerley was overlooked for the job due to "one aspect of his personality" which he submitted was unfair. He claimed that management had not spoken to Mr Ackerley regarding his conduct or performance in respect of either his personality or skill at his job. He said the notice of termination was not provided until Mr Ackerley contacted Mr O'Neill. Mr Brady confirmed that his client sought reinstatement and he undertook to provide the Commission with Mr Ackerley's earnings during the intervening period. That information was provided by letter of 11 June 1998. Mr O'Neill called, as a witness, Mr Garwood, who was acting principal at the time of Mr Ackerley's initial engagement at the school. He said the "other school attendant" provided him with a list of people to contact to take the position in Mrs Hancock's absence. He started from the top of the list and Mr Ackerley's name was second. As Mr Ackerley was able to "come in at short notice" he was appointed. He said Mr Ackerley "worked satisfactorily". When asked to inform the Commission as to the normal process of engaging temporary employees, Mr Garwood said:
Transcript p.13 Ms Corbett, the principal, said that when she returned to work she had told Mr Ackerley that "we were glad he was able to come and assist us", and she asked him if he was willing to continue while "sick leave certificates came in".6 On the receipt of these certificates Ms Corbett, on a number of occasions, approached Mr Ackerley and asked him if he was happy to continue. When it became known that Mrs Hancock was to retire, Ms Corbett contacted the executive officer of the District Office to find out what procedure should be followed. She was told that since there was a vacancy the usual procedure for the filling of the vacancy had to be observed. She then told Mr Ackerley that the job would be advertised and he said he thought he would apply. In response to Mr Brady's cross examination, Ms Corbett said she had told Mr Ackerley that "there was formal process" that had to be undertaken to fill the vacancy, "not that it was a formality". She said it was not, in her experience, practice to give relief employees a permanent position in such circumstances. She said Mr Ackerley's work performance was satisfactory, but the interview panel was satisfied that the person selected at interview would do a superior job. Ms Corbett said she believed she would have had a conversation with Mr Ackerley about continuing to fill in "some time in the week after the letters" advising the results of the interview had gone out. Mr O'Neill submitted that Mr Ackerley was fully aware of his temporary employment status and that the position he applied for was "in no way" his job. As it was the position was advertised immediately and Mr Ackerley applied for the position. It was submitted that the Department could have terminated Mr Ackerley's employment from the day after Mrs Hancock's retirement. Mr O'Neill said that Mr Ackerley was provided with a letter of employment for a specified period of time which was until the return of Mrs Hancock. As Mrs Hancock did not return, he said, Mr Ackerley agreed to enter into another contract of employment until the appointment process was completed. Mr O'Neill argued that "in an ideal world, a second written contract of employment would have been issued". He submitted such an ideal world would lead to "excessive bureaucracy". Common sense prevailed, he said, and Mr Ackerley was invited, verbally, to enter a second contract of employment whilst the selection process was completed. Mr O'Neill submitted that this matter was unlike the Green case referred to by Mr Brady in that the employee involved in the latter case had been employed for 13 months, the last 11 of which were without a contract of employment. He said that employee could have had a reasonable expectation that the position was his because nothing was put to him which suggested otherwise. In the instant case Mr Ackerley's letter of appointment provided "clear intent" by the Department, he said. Further, he submitted there was no delay in advertising the position and Mr Ackerley was fully informed and therefore aware of his employment status. Findings The ILO Convention on the Termination of Employment at the Initiative of the Employer provides that "the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service". Simply put, the applicant's case was that Mr Ackerley's contract of employment, as set out in his letter of employment, was open-ended; that because Mrs Hancock had resigned her job it was his; and that there was a Full Bench decision to support the claim. The employer's argument can be distilled to two contentions, the first that the contract of employment was for a finite period, and the second that it was the normal operational requirement of the State Service that when positions are vacant they are filled following advertisement and a selection process based on merit. At no stage did the employer contend that Mr Ackerley's employment was terminated because of his capacity or conduct. Dealing first with the employer's second contention, I do not accept the employer's submission that the State Service procedure of advertising Mrs Hancock's old position and selecting a replacement employee on the basis of merit can be regarded as `operational requirements of the service' as referred to in the ILO Convention. That issue was dealt with in the Green case and the Full Bench rejected a similar contention. I will deal now with whether the contract of employment was for a finite period or whether it was open-ended. Mr Ackerley's letter of appointment only provided that he was to be employed until the return of Mrs Hancock from leave. Given those terms the contract of employment was, to some extent, open-ended. But it is clear to me the contract was constructed and worded in the belief that Mrs Hancock at some stage was going to complete her leave and return to work. To that extent the contract was of a finite or limited duration, although no precise conclusion date was specified. Notwithstanding the lack of a precise conclusion date I do not consider, in the circumstances of this case, that those terms, as open-ended as they might be, can or should be construed as representing Mr Ackerley's unconditional and on-going appointment to the position in the event that Mrs Hancock failed to return. The critical point in this matter arose when Mrs Hancock decided to retire because of her ill-health. Mr Ackerley's original, and only, contract of employment was in force at that time. Ms Corbett, the employer's representative at the school, told Mr Ackerley that the job would be advertised and that he could apply for it if he wished. He said he would apply and it was submitted he thought he had the inside running. His evidence, however, contains an acknowledgment that no guarantees were given to him that he would be successful and it seems clear to me that he understood that to be the case. Mr Ackerley was asked by the employer's representative to continue to fill in during the selection process which he agreed to do, and after he had been informed that his application was unsuccessful, he was asked, and he once again agreed, to work on until the successful applicant commenced duty. Mr Ackerley's original contract of employment was still in force. As an aside, I do not accept Mr O'Neill's claim that the letter from Ms Corbett to Mr Ackerley, informing him that he had been unsuccessful in his application for the job, was a letter terminating his employment. The implication was there but the letter did not specifically terminate his employment. That exercise was eventually carried out by way of the letter from the Department dated 16 December 1997, effective from the close of business on 12 December 1997. I will discuss this aspect of the Department's procedure later. Given my view that the contract of employment was limited I am unable to accept the applicant's argument that because Mrs Hancock did not return to her job the words in Mr Ackerley's letter of appointment entitled him to fill the position in an ongoing capacity, nor do I consider it reasonable that Mr Ackerley should have thought the job automatically belonged to him given the conversations he had with the school principal. Having said that I consider the letter of employment should have been worded more clearly to avoid any possible misinterpretation after the event. However, I am satisfied in these particular circumstances, that Mr Ackerley's letter of employment provided for only a limited period of employment and that it was appropriate, when it became known that Mrs Hancock was not going to return from leave that the Department should take action to fill the position in accordance with its normal procedure. I have considered the competing submissions as to whether the decision of the Full Bench in the Green case established a precedent which should be followed in this matter. Although there are similarities in the two cases there is one important difference which, in my opinion, distinguishes this case from the Green case. Mr Green was employed for a period of some 13 months. His letter of appointment was specifically for a period of some 7 weeks from 27 October 1994 to 12 December 1994. His letter of appointment did not state or infer that he was being employed in some other employee's position. Subsequently Mr Green was retained in the job for approximately twelve months. He received no further letter of appointment even though his temporary period of employment had expired. As I understand that decision the Full Bench considered that Mr Green had entered into a second contract of employment for an undefined period from 12 December 1994 in that he had offered himself for further employment and the employer by its acquiescence had accepted the offer. As a consequence the Full Bench considered it was reasonable that Mr Green should think the job was his. Mr Ackerley's circumstances are significantly different as I have already recited. Specifically, the difference is that Mr Green was given no indication that his employment in the position at the Glen Huon School was limited in any way, whereas Mr Ackerley's contract was limited and was to cease when Mrs Hancock returned from leave. Having considered the facts in this case and distinguished them from the facts of the Green case, I am satisfied that the employer had a valid reason to terminate Mr Ackerley's employment and I consider the termination was justified and that it was not unfair. The selection process was addressed by the applicant as being unfair to Mr Ackerley. Whilst there was no contention that Mr Ackerley's work was unsatisfactory, it is clear that the selection panel for the job at the Invermay Primary School felt that the person selected could do the job better than Mr Ackerley. However, having found the Department had a valid reason to terminate Mr Ackerley's employment and that it was entitled to fill the position in accordance with the normal State Service procedure, the Commission has no power to intervene in the appointment process, as the definition of `industrial matter' in the Act expressly excludes a matter relating to appointments from the jurisdiction of the Commission. Having determined that a valid termination occurred in the case of Mr Ackerley, I believe it is important that I make some observations about the documentation processes adopted by the Department when appointing and terminating the employment of temporary and relief employees. I consider, although no evidence was led on this subject, that it is well known and accepted that the administrative procedures of the Tasmanian State Service involving the filling of job vacancies, for other than short term relief purposes, generally require that a vacancy be advertised and an appointment made following a selection process based on the merit principle. There are exceptions to those circumstances, not applicable here, which I do not intend to canvas in this decision. Notwithstanding my belief that the practice is well known I consider that, in the interests of both employer and employees, all relief employees should be provided with written advice as to their employment status at the time of their engagement so there can be no confusion as to the period of intended employment and the process which might follow if the position were to become vacant on a long term basis. As a consequence I further suggest that verbal arrangements, such as those entered into with Mr Ackerley by the principal following Mrs Hancock's notice of retirement, should be confirmed in writing by the employer. The fact that those verbal arrangements were not confirmed in writing in this particular case does not damage, in my opinion, the employer's position in this matter but clearly, if a more informative system were to be introduced, the potential for misunderstanding would be substantially reduced. In addition, I consider that new employees generally should have the clear and unambiguous terms of their engagement provided to them on commencement rather than, as in this case, some 7 weeks after the event. I suggest the Department should closely review its procedures so that more timely and informative notices are provided to new employees. I turn now to the method by which Mr Ackerley was notified, formally, of his termination. Mr Ackerley was paid a week's pay in lieu of notice effective from 12 December 1997, obviously running up to and including 19 December 1997. The letter of termination was dated 16 December 1997. It seems to me that the earliest that the letter could have been received by Mr Ackerley at Launceston, if it was signed in Hobart on 16 December, would have been 17 December 1997, some five days after he finished work. The giving of notice signals an intention to terminate the employment relationship. It is not something that can be done retrospectively. Indeed the facts were put to me it would not have been difficult to come to the conclusion that Mr Ackerley would not have received any notice of his termination if he himself had not made contact with the Department. Given the extremely late formal termination advice, I consider it reasonable, in accordance with Article 11 of the ILO Convention, that the notice period of one week should apply with effect from the close of business on 17 December 1997, the earliest possible date of receipt of the letter. Such a finding extends the payment in lieu of notice to include the period up to and including the last working day for school attendants at the Invermay Primary School for the year 1997. Therefore, in full settlement of this industrial dispute, I hereby order, pursuant to section 31(1) of the Industrial Relations Act 1984, that the Minister Administering the Tasmanian State Service Act pay to Mr Robert Ackerley by 8 February 1999, compensation in lieu of notice for the days he would have worked after 19 December 1997, if he had been employed until the close of business on 24 December 1997. Such compensation to be calculated on the rate of pay applying to Mr Ackerley at the relevant time.
F D Westwood Appearances: Date and place of hearing: 1 Exhibit 1 |