TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Australian Liquor, Hospitality and Miscellaneous Workers Union
Tasmanian Branch
(T9012 of 2000)

and

Classic Video Pty Ltd
trading as Video City

Industrial dispute - termination of employment - part time and/or casual employee - dual contracts of employment considered - no valid reason for termination - order of reinstatement.

REASONS FOR DECISION

On 26 May 2000, the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch (the applicant), applied to the President, pursuant to s.29 of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Classic Video Pty Ltd trading as Video City (the employer) arising out of the alleged unfair termination of employment of Ms Paula May Sutherland (the employee).

On 15 September 2000, the Acting President convened a hearing at 'Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania, before me, to commence on Friday 6 October 2000 at 10:30am.

At the commencement of proceedings Mr P Tullgren appeared for the applicant and Mr T Ewing appeared for the employer.

The applicant commenced with a brief overview of the dispute following upon which the employer then sought to have the application dismissed on the ground that, as the applicant organisation had failed to adhere to the Reference of Disputes provisions of clause 26 of the Miscellaneous Workers Award, the application was void ab initio.

Proceedings adjourned after which issued a "Reasons for Interim Decision" which, in part, directed the parties, pursuant to section 21 (2) (n) of the Industrial Relations Act 1984, to provide any written submission that they might be disposed to make in the matter of R v Watling R J Ex parte Huon Food Processors Pty Ltd by no later than the close of business on Monday 9 October.

The matters raised by the applicant and the employer in their responses were duly taken into account in forming a ruling which was given at the outset of resumed proceedings on 12 October. On that occasion I ruled that I had jurisdiction to hear and determine the application and my reasons for so concluding were incorporated into the record of proceedings on that day. I now confirm that finding.

The employee was successful in gaining a position of casual library attendant with the employer (Exhibit E1) commencing on 30 December 1995 and thereafter working on numerous occasions until 14 May 2000.

Her employment details were verified by Exhibits E5 (Time Sheets) and E6 (Pay History Details) being documentation tendered by the employer relevant to her employment in the period 1995 to 2000, variously undertaken at a number of the employer's libraries, namely Glenorchy, Moonah, New Norfolk, Rosny, Howrah, Kingston and Sandy Bay.

There was no dispute that during her employment she was paid the award rate of pay, together with casual loading of 331/3 % for all hours worked, and last performed work for the employer on 14 May 2000.

Further, it was not disputed that on 17 May 2000 she was requested to report to the Moonah library for the purpose of returning the Sandy Bay library key which she held. It was in the course of so doing that she claimed that she was informed by Ms Maree Hay that there were "no hours allocated" (p.13) and/or "no hours available" (p.13) for her.

Again, it was not contested that some time after 17 May she entered a library of the employer to be informed that she had been classified as an ex-employee and, as such, banned from entering any employer library for a period of three months.

Mr Tullgren submitted that Ms Sutherland was an employee who held dual contracts of employment with the employer, being a casual employee and a part time employee.

The applicant further submitted that if I found that at all times her employment had been that of a 'casual employee' then it was still possible to consider an unfair dismissal claim on the grounds that her employment was regular and that the employee had an expectancy of continuing employment.

Mr Tullgren submitted that the events of 17 May at the Moonah library at which Ms Sutherland was informed by Ms Hay of 'no more hours' available or allocated to her was a termination at the initiative of the employer and that the reason advanced, being 'no more hours', was not a valid reason for terminating a part time employee.

On the contrary, Mr Ewing rejected the proposition that Ms Sutherland was, at any time during her employment, employed other than as a casual employee and during his cross examination of Ms Sutherland made the following submission;

"The union seeks the remedy of the commission based on the fact that this employee was dismissed. Their argument is that she was a part time employee. We maintain and will maintain and will show that she is in fact a casual and that her termination was in accordance with her conditions of work, namely, she was a casual, a true casual, and therefore it is not a case of a wrongful dismissal but this goes to a very fundamental meaning of what a casual is and I wish to establish the fact that she is a casual. If she is a casual, the union's submission will fall" (p.18).

and during submission, the following:

"If the commission rules that she is casual, then she is as has been termed in some of the text books, a true casual of which notice of one hour is required, and therefore the argument concerning unfair, unjust dismissal does not arise". (p.70)

He further submitted:

".... if you rule that Ms Sutherland is a part time employee, then it follows whether she was unfairly, and harshly, unjustly dismissed. The company will hold the view that if you rule that she is a part time employee, the company will hold the view that she was unfairly dismissed. (p.70)

In my opinion, the principal issue to be determined is whether or not there was a termination at the initiative of the employer and, if found there was, to then determine whether there was a valid reason for that termination based upon either the capacity or conduct of the employee, or based upon the operational requirements of the business.

A secondary consideration is whether the employee was a part time or a casual employee, or whether, as Mr Tullgren said, she had dual contracts of employment the subsistence of which, he asserted, is not unusual. On this latter point, the employer responded:

"I don't think you can wear two hats in the one company" (p.19);

and

"...one cannot suggest that you can be employed as a casual and as a part timer".(p.68)

Much of the oral evidence dealt with establishing whether or not Ms Sutherland was, or considered herself to be, or whether she was told she was, a part time employee. This was in addition to her claim to have also been a casual employee. It also dealt with the extent to which, if at all, she held herself out to be a part time employee in relation to discussions she had with the employer's two witnesses. The evidence further touched upon the policy of the employer relative to the non employment of part time employees. In addition, questioning was directed to establishing Ms Sutherland's knowledge of employment conditions for part time employees, including her knowledge of the award provisions relevant to part time and casual employees.

The views, understandings, beliefs, knowledge or policies of the parties, whether reduced to writing or otherwise, on these questions, are not in my view determinative of her mode of employment. At best, they may be indicative. Put another way, irrespective of whether an employer classifies an employee as a casual, pays the employee as a casual and those arrangements are acceptable to the employee it is still at least arguable as to whether or not that the employee is a casual. The issue is to be decided by having regard to the actual employment arrangements and whether such arrangements can be reasonably concluded to have derived from the award.

Tendered by way of contested evidence were Exhibits E3 and A2 which both purported to be the Time Sheet signifying the rostered hours applying at the Sandy Bay library as observed by Ms Sutherland. A2 was claimed by the employee to be a copy of the Time Sheet that she photo copied in the week preceding the cessation of her employment and which showed her hours under the classification heading of 'Part Time'. A2 was tendered not only to rebut Exhibit E3 but to bring into question the veracity of E3.

Exhibit E3, tendered by the employer was also a photo copy which listed the employee's hours under the classification heading 'Casual'. There were some similarities between the two documents but it was the submission of the applicant that Exhibit E3 was in essence a concoction, submitted to mislead the Commission, and of such a serious nature that the matter warranted referral to the relevant authority.

During cross examination Ms Sutherland denied having seen Exhibit E3 and during re-examination agreed that exhibit A2 was the document applying to her at the Sandy Bay library. She personally denied having any hand in forging or cutting and pasting in order to produce exhibit A2.

Mr Ewing did not seek leave to further cross examine Ms Sutherland on her assertions regarding exhibit A2. Nor did he make any submission concerning the submissions of the applicant on the issue, choosing only to rely upon the existence of E3 as the Time Sheet relevant to Ms Sutherland.

Mrs Clark gave evidence concerning preparation of rosters including by whom, how and where. She indicated that she had undertaken to type up the rosters on a computer at both the Moonah and Sandy Bay libraries. The computerised roster, she said, was not subject to any form of security or protection and added that other people who had access to the "support office" (Head Office) could have had access to the computers and therefore to the rosters and could have changed them.

By way of submission Mr Tullgren stated that Ms Sutherland worked at the Sandy Bay library and not at Head Office and I think, by inference, that she could not have accessed the computer and hence the rosters.

As to this issue, I am unable to make a positive finding as to which, if either, was the Time Sheet signifying the rostered hours applicable to her employment at Sandy Bay. I was not assisted in my deliberations on this issue by the fact that the exhibits were photo copies.

It is an issue which appears to have arisen only in these proceedings and relevantly, after Ms Sutherland ceased employment. At worst, it is, in the view of the applicant a serious attempt to mislead the Commission; at best, in my view a mischievous attempt by some person or persons to create a document for the purpose of assisting to bolster the position of one of the parties to these contested proceedings. I intend to let the matter rest.

What I do say however, is that even were I to have found positively that one exhibit is to be preferred to the other, it is simply not to the point of determining the issue of her mode of employment. It is a consideration of all of the relevant facts surrounding the actual pattern of employment which I believe is crucial to deciding the mode of employment issue.

The applicant called Ms Sutherland to give evidence; the employer called two witnesses, Ms Mandy Lee Moore, a library attendant, and Mrs Teresa Jillian Clark, Acting Assistant Manager.

Ms. Paula May Sutherland

The evidence of Ms Sutherland is summarised under the headings of non rostered employment; rostered employment and termination of employment.

On commencement, Ms Sutherland was informed by Ms Hay that she was a casual and that the hours that she would be working were conveyed to her as

"...usually sometimes up to a week in advance of a casual roster which was altering hours each week". (p.11)

She expressed an expectation that she would be working every week and that she usually worked between 15 to 20 hours per week,

"....depending on full time staff whether or not they were sick or things like that." (p.11) and "..sometimes up to and above 30 hours a week" (p.12)

The casual hours were to her understanding

"... the hours that I was called in on and asked to fill in or to close or things like that.".(p.17)

She stated her availability for casual work was linked to her university commitments and that she was quite often rung at short notice to come in and work thus foregoing her university commitments on some occasions.

She asserted that although she was allocated part time hours, there was no reduction in the amount of time that she worked as a casual.

She further claimed that her casual hours diminished after the loss of some part time hours in April 2000.

In 1996 she claimed she was told by Cherie Stevenson, that she had been allocated part time hours being 4pm to 6pm Thursday at Sandy Bay.

Additionally, that in 1998 she was allocated further part time hours (4pm to 6pm Wednesday and 7pm to 10pm Saturday, both at Sandy Bay) and further part time hours at Sandy Bay in 1999 (7pm - 9pm Sunday) so that by December 1999 she was working all of the above hours, in accordance with a fortnightly roster.

She said that by agreement, she relinquished the Thursday position early in 2000 due to her university commitments; that the employer removed her from the Sunday position in April 2000 leaving her with a balance of five (5) hours part time employment per week (4pm to 6pm Wednesday and 7pm to 10pm Saturday).

It was those remaining part time hours (5) that she claimed to have had taken from her when terminated from her employment on 17 May 2000.

She asserted that Ms Hay referred to the hours as 'permanent part time' when she allocated them to her and that Ms Hay had consistently referred to the hours as such on subsequent occasions.

Termination of Employment

Her evidence was that as a result of a telephone call to her on 17 May she reported as requested to the Moonah library of the employer for the purpose of returning the key to the Sandy Bay library which she held in her possession. It was during the course of a discussion which followed with Ms Hay, the Acting Assistant Manager, that she claims that she was informed variously that "no hours available" (p.13) and "no hours allocated" to her. (p.13)

She gave evidence that she was unsuccessful in her attempts to obtain further details from Ms Hay concerning the reasons why her hours had been removed except for an admission by Ms Hay that it was not related to her work performance.

Concerning a question posed at that time by the employee to Ms Hay as to whether there had been a problem with her work performance, Ms Sutherland claims that Ms Hay responded as follows:

"(She) said it was fine; there had never been a problem with (my) work performance and that (she) appreciated everything (I) had done for the company". (p.14)

She further asserted that during her employment with the employer she had never received any written or verbal warnings or counselling concerning her work or on matters related to her work.

At no stage in proceedings did the employer challenge the evidence of the employee as to the events of 17 May surrounding her alleged termination; the alleged response of Ms Hay about the work performance of Ms Sutherland; the implementation of the temporary ban or the assertion of the employee that her performance or conduct had ever been bought into question in her 4 1/2 years.

Ms. Mandy Lee Moore

Ms. Moore recalled a discussion with Mr Ewing in which he stated that the employer never employs part time employees. She also stated that in speaking with employees regarding a possible enterprise agreement, Ms Sutherland had expressed a view that she wished to stay under current conditions, being casual. Ms Moore considered her to be a casual employee and furthermore had not had any discussions with her concerning the belief of the latter that she was a part time employee.

Mrs. Therese Jillian Clark

Mrs Clark stated that the policy of the employer was not to employ part time employees; nor in her experience had the employer actually departed from that policy. She also stated her understanding of Ms Sutherland being employed as a casual. She stated that the issue of part time employment had not been broached by Ms Sutherland with her during any dealings that between them.

Mrs Clark stated that she had a good relationship with Ms Sutherland.

Concerning the work of Ms Sutherland with the employer, Mrs Clark recalled Ms Sutherland having commented on a particular occasion that "she enjoyed the job and she loved the job". (p.39)

It was the evidence of Mrs Clark which confirmed that Ms Sutherland was quite often called in at short notice and that it was her (Mrs Clark) who on some occasions had rung Ms Sutherland to assess her availability to come into work at short notice.

On questioning from the Bench, Mrs Clark responded, in broad terms, that in relation to the roster for 'casuals' that once an employee had indicated availability to work particular hours, that the question of the employee's continued availability would not be questioned unless the employer subsequently intervened otherwise, or the employee advised the employer of their unavailability (as in the case of sickness where employees are required to ring and notify the employer of non attendance).

In short, as I understand it, there was an assumption on the part of the employer of the availability of the employee unless notified to the contrary.

As to Ms Sutherland's employment pattern, Mrs Clark acknowledged that some of it was regular, particularly Wednesday and Saturday, and that some of it was not. She concurred that Ms Sutherland may have had a general expectation that the work (Wednesday and Saturday) may have continued and furthermore, that Ms Sutherland had fairly consistent start and finish times.

Exhibits E 5 (Time Sheets) and E.6 (Pay History Details).

The employer tendered exhibits E5 (Time Sheets) and E6 (Pay History Details). At the time of tendering E.5, Mr Ewing stated:

"......I'd now like to pass up another exhibit, and that's the entire time sheets for Paula Sutherland for the time she commenced work with us until the time she ceased work". (p.21)

However post the proceedings, a review of the exhibits revealed that a number of time sheets had not been included - specifically those for the fortnights ending Sunday 24/3/96; 28/7; 7/9; 5/10 and 14/12/97; 8/2; 8/3; 22/3; 28/6; 12/7 and 26/7/98; 8/8; 31/10 and 14/11/99.

Further, with regard to Exhibit E6 (Pay History Details), the tendered documentation did not include pay history details for all pay periods between 13/7/97 to 14/6/98 inclusive.

Attachment to Reasons for Decision

Some of the entries contained in these exhibits have been extracted and incorporated into the Attachment to this decision. Conclusions arising from consideration of these exhibits, particularly E5, are expressed elsewhere in this decision.

The Attachment covers the hours worked by Ms Sutherland commencing with the fortnight ending Sunday 23 March 1997 and concluding with the fortnight ending Sunday 14 May 2000. In order to contain the Attachment to a manageable size the break periods identified in E5 have not been replicated.

Under column heading "F/N Ending" in descending order are entries Week 1 - A and Week 1 - B and Week 2 - A and Week 2 - B .

'A' represents those hours which Ms Sutherland said were the 'part time' hours she was allocated and worked according to the roster; 'B' represents the 'casual' hours which she stated she worked in addition to the 'part time' hours.

The Attachment concentrates in particular on the hours undertaken at Sandy Bay namely, 4pm to 6pm Wednesday; 4pm to 6pm Thursday; 7pm to 10pm Saturday and 7pm to 9pm Sunday and have for convenience been placed adjacent to Week 1 - A and Week 2 - A respectively.

All other hours worked have been placed adjacent to Week 1 - B and Week 2 - B respectively.

4pm to 6pm Thursday

The evidence of Ms Sutherland variously at pages 11,12 and 27, and submission of the applicant at p.51 and p.55 of transcript was to the effect that she commenced to work part-time hours in 1996, being 4pm to 6pm Thursday at Sandy Bay. However, my review indicates that she is mistaken in her belief. Exhibit E5 reveals that she did not perform work on any rostered 4pm to 6pm Thursday hours in 1996; the first occasion being Week 1 of the fortnight ending Sunday 23 March 1997. She ceased working these hours on 17 February 2000, relinquishing it, by agreement, due to university commitments.

In the fortnightly periods commencing 9 March 1997 and concluding 20 February 2000 there were a total of 154 weeks. There were no time sheets tendered for 13 fortnights leaving 128 weeks for which time sheets are available for the purpose of ascertaining her employment pattern.

The information discloses the following:

4pm to 6pm Wednesday

The evidence of Ms Sutherland variously at pages 11,12 and 27, and submission of the applicant at p.51 was to the effect that she commenced to work these rostered part-time hours in August/September 1998, being 4pm to 6pm Wednesday at Sandy Bay. However the time sheets indicate that she worked the 4pm to 6pm hours on alternate weeks only commencing Wednesday 5 August 1998 up to and including Wednesday 16 September 1998. The fortnight ending 4 October 1998 was the first occasion that she worked these rostered hours in consecutive weeks and it is from this fortnight that I have commenced the review. She ceased working these hours on 10 May 2000 (being the last rostered fortnight that she worked).

In the fortnightly periods commencing 21 September 1998 and concluding 14 May 2000 there were a total of 86 weeks. There were no time sheets tendered for 3 fortnights leaving 80 weeks for which time sheets are available for the purpose of ascertaining her employment pattern.

The information discloses the following:

The evidence of Ms Sutherland variously at pages 11,12 and 27, and submission of the applicant at p.51 was to the effect that she commenced to work these part-time hours in August/September 1998, being 7pm to 10pm Saturday at the Sandy Bay library. The time sheets indicate that she worked some of these hours in the three fortnightly periods in the lead up to the fortnight ending 20 September 1998 but it was in this particular fortnight that she worked these part time rostered hours on consecutive weeks. It is from that fortnight I commenced the review. She ceased working these hours on 13 May 2000 (being the last rostered fortnight that she worked for the employer).

In the fortnightly periods commencing 6 September 1998 and concluding 14 May 2000 there were a total of 88 weeks. There are no time sheets available for 3 fortnights leaving 82 weeks for which time sheets are available for the purpose of ascertaining her employment pattern.

The information discloses the following:

7pm to 9pm Sunday

The submission of the applicant at p.51 of transcript were to the effect that Ms Sutherland commenced to work these rostered part-time hours in December 1999, being 7pm to 9pm Sunday at the Sandy Bay library. E5 indicates that the first occasion that she worked these rostered hours on consecutive weeks was in the fortnight ending 9 January 2000 and it is from this fortnight that I commenced the review. She ceased working these hours on 9 April 2000 thereafter not being allocated any more rostered hours covering this period, although Ms Sutherland stated in evidence, as is borne out by E5 that she did "fill in" for these hours on 7 May 2000.

In the fortnightly periods commencing 27 December 1999 and concluding 16 April 2000 there were a total of 16 weeks for which all time sheets are available to establish the pattern of employment.

The information discloses the following:

The Submissions

The Applicant

Mr Tullgren for the applicant commenced his submissions with a consideration of the Articles of ILO Convention 158 concerning Termination of Employment at the Initiative of the Employer, and in particular Articles 4 and 7-10 relevant to the applicant's claim that Ms Sutherland was unfairly terminated from her employment.

He tendered a number of authorities which dealt with the meaning of "valid reason" in the context of Article 4 and summed up that point by submitting that the evidence showed that there was not a valid reason based upon the conduct or performance of Ms Sutherland to justify termination. Other authorities were tendered in support of his submission that the termination "was harsh, unjust and unreasonable". (p.63).

He contended that the reason given by Ms Hay to the employee of 'no more hours' constituted a termination at the initiative of the employer and further submitted that the decision by the employer was an "...unjustified insistence upon a change in the nature of the employee's contractual performance or obligations". (p.56).

He traced the employment history of Ms Sutherland with the employer and advanced the view that in accordance with the Miscellaneous Workers Award her employment arrangements made her a part time employee.

Authorities were provided dealing with the issue of "casual employee" in respect of which he concluded that, as the employee had averaged 15 to 20 hours per week as a casual employee, then she could not be considered to be a 'true casual' as referred to by Mr Ewing.

He asserted that Ms Sutherland had two contracts of employment, one as a casual employee and one as a part time employee and that the subsistence of these dual contracts was not unusual.

In turning to the views of the parties as to what they thought their employment arrangements were, he relied upon the High Court judgment in Doyle v Sydney Steel to submit "..that it does not matter...... what the parties might think, it is what the law says and, in this case what the award says".(p.58).

As to remedy, it was the view of the applicant to the effect that because of (1) the 'capricious sacking' and subsequent events including the ban imposed upon the employee and the issue of exhibits E3 and A2 and (2) the time that has elapsed, reinstatement was impractical and a remedy by way of compensation to be more appropriate. The authority he cited for the remedy of compensation was Nicholson v Heaven & Earth Gallery Pty Ltd - Industrial Relations Court - 1994 -Wilcox CJ - ALR at 233.

The Employer

Mr Ewing tendered authorities for the purpose of establishing that Ms Sutherland was a casual employee.

Mr Ewing challenged the claim of the employee and applicant that she was, in addition to being a casual employee, also a part time employee and contested the claim of the applicant going to the 'concurrency' of dual employment contracts.

The position of the employer was that Ms Sutherland was at all times a casual employee and in support of that position stated (1) that the employer had a policy of not employing part time employees; (2) that Ms Sutherland had applied for a position of casual library attendant (Exhibit E1); (3) that she had signed an employment declaration certificate testifying that she was a casual employee (Exhibit E2); (4) that she completed all of her time sheets identifying herself as a casual (Exhibit E5), (5) that she had not sought to have applied to her the award entitlements which extend to part time employees, and (6) that for all of her time of employment she was paid the award casual loading of 331/3 %

As to remedy, the principal position submitted by the employer was that Ms Sutherland should be reinstated on the grounds that the relationship has not been damaged; that the employee had a amicable disposition toward the acting assistant manager and that there was nothing in the evidence to suggest that the relationship cannot be restored.

Findings

The following findings have been arrived at after a consideration and weighting of all of the evidence, submissions, exhibits and authorities.

During the course of their respective submissions, both the applicant and the employer referred to the Miscellaneous Workers Award as the award governing the employment of Ms Sutherland.

The parties made reference to the part time and casual definitions of the award and I have commenced my deliberations on this particular issue with a consideration of those definitions.

Clause 7 of the award - Definitions - provides in part:

Regarding the words "and shall not include an employee as defined in sub-clause (a) hereof" in the definition of "Casual employee" there are no sub clause headings attaching to any one of the four definitions to which the word "hereof" seemingly should relate. The four definitions are sequentially "Casual employee", "Part time employee", "Union" and "Show Day". Logically therefore, the words "..and shall not include an employee as defined in sub-clause (a) hereof" can only mean reference to "Part time employee" - hence, a "casual employee", it would appear, cannot by definition be a part time employee i.e "..one who engaged to regularly work for less hours per day or week than those prescribed for a full time employee".

To clarify the intention of the award makers a review of the award history reveals that the Miscellaneous Workers Award, No. 3 of 1992 (Consolidated) at clause 7 Definitions under the heading For the purposes of all Divisions prescribed definitions set out as follows -

(a) 'part-time employee'

(b) 'casual employee'

(c) 'Union'

(d) 'Show Day'.

Those definitions were expressed in precisely the same terms that now appear in the current award. The removal of the sub headings occurred as a result of proceedings in matter T5307 of 1994 which led to the making of the Miscellaneous Workers Award No. 1 of 1995. This award, perhaps by way of oversight, retained reference in the "casual employee" definition of the words "..and shall not include an employee as defined in sub-clause (a) hereof" which has carried forward into the present consolidated award being the Miscellaneous Workers Award No.1 of 2000.

I am satisfied that a person whom the evidence shows to be a part time employee cannot be considered to be a "casual employee" as defined in the award whilst performing that part time work. However, I do not rule out the possibility of whether an employee can be both a casual and part time with the same employer and hence the subsistence from time to time of dual contracts of employment as asserted by Mr Tullgren.

I have given consideration to the words 'casual' and 'regularly' being words used in the award definition of 'casual employee' and 'part time employee' respectively.

As earlier indicated, the award definition of 'casual employee' excludes a person who is defined under the award as a 'part time employee'. A 'part time employee' is defined in part as "..one who is engaged to regularly work..."

Therefore, if a person who regularly works is one who is specifically excluded from being a casual employee, then it is at least open to suggest that a casual employee must be a person who is employed irregularly.

In submission, Mr Tullgren tendered the judgement of the High Court of Australia in Doyle v Sydney Steel Employer [1936][56 C.L.R at 545] and quoted certain passages from the judgments of Starke J, Dixon J and McTiernan J.

From page 551 (Starke J)

"The description "casual worker" is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact for the Commission."

and from page 555 (Dixon J)

"But unfortunately what is casual employment is ill defined."

and from page 565 (McTiernan J)

"Now the term 'casual worker' is not capable of exact definition." McTiernan J then went on to quote from the judgement of Lord Justice Hamilton L.J. in Knight v. Bucknill: "I think that 'casual' is here used not as term of precision, but as a colloquial term."

"Each case is to be determined on its own facts, consideration being given not only to " the nature of the work but also the way wages are paid, or the amount of wages, the period of time over which employment extends, indeed all the facts and circumstances of the case" (Stoker v. Wortham, per Swinfren Eady M.R)."

Those passages together with the definitions in the current award have been borne in mind in arriving at my conclusions. In addition, regard has been had to matters such as (1) the regularity or otherwise of work; (2) the hours worked each week; (3) the existence or otherwise of a roster system applicable to the employee; (4) whether there was an expectation or otherwise of continued employment; (5) whether there was a requirement or otherwise to provide notice to the employer of an employee's absence; (6) whether there was an expectation or otherwise that work would be available, and (7) whether there were consistent starting and finishing times or otherwise, in order to ascertain the mode of employment.

Consideration of Exhibit E5

Conclusions in relation to the hours worked entries in Week 1 - B and Week 2 - B are that whilst Ms Sutherland has worked on numerous occasions I am unable to discern the emergence of any particular regularity of employment with respect to:

(a) the number of hours worked on any day or in any fortnight;

(b) the days of the week upon which work was undertaken;

(c) the venue at which work was undertaken, and

(d) the starting and finishing times

so as to form a view that the mode of her employment was anything other than intermittent, variable and lacking predictability. (The venue of work has not been incorporated into the Attachment but my observations are taken from my consideration of Exhibit E5).

There was no evidence to the effect that work undertaken in Week 1 - B and Week 2 - B was undertaken by the applicant in accordance with a roster; that is a roster prepared in advance that was applicable directly to Ms Sutherland. Doubtless, in filling in for other staff, as was the evidence of the casual nature of her employment, she would have worked rostered hours, but such hours would have been those applicable to those other employees whom she was temporarily replacing.

It seems to me that this work can be categorised as casual in that each period of work undertaken appears to have stood alone and was subject to separate contracts of employment, each lapsing according to its terms - there is no evidence to suggest that these separate arrangements were bought to an end by any intervention on the part of the employer - simply, that employment appears to have ceased at the conclusion of the period for which Ms Sutherland had been hired.

These casual work arrangements appear to be consistent with the award and the evidence given by Ms Sutherland and Mrs Clark. However any expectations of further casual engagements held by Ms Sutherland would need to have been balanced between her own availability and the availability of work, bought about by for example, the absence of other staff or the short term operational requirements of the employer.

A review of the entries for Week 1 - A and Week 2 - A indicate that she worked 4pm to 6pm Thursday at Sandy Bay in accordance with the roster applicable to her on 93 occasions out of a possible 128 occasions (72.65%).

She worked alternate hours, which I take to have been at the direction of the employer, the times of which spanned the period 4pm to 6pm, either at Sandy Bay or some other location, on 28 occasions out of a possible 128 occasions (21.87%).

It is reasonable to assume that had she not been required to work that alternative period on 28 occasions that she would have otherwise worked the 4pm to 6pm rostered hours at Sandy Bay.

Wednesday 4pm to 6pm

Ms Sutherland worked 4pm to 6pm Wednesday at Sandy Bay in accordance with the roster applicable to her on 72 occasions out of a possible 80 occasions (90.00%).

She worked alternate hours, which I take to have been at the direction of the employer, the times of which spanned the period 4pm to 6pm, either at Sandy Bay or at some other location, on 4 occasions out of a possible 80 occasions (5.00%)

It is reasonable to assume that had she not been required to work that alternative period on 4 occasions that she would have otherwise worked the 4pm to 6pm rostered hours at Sandy Bay.

Saturday 7pm to 10pm.

Ms Sutherland worked 7pm to 10pm Saturday at Sandy Bay in accordance with the roster applicable to her at on 73 occasions out of a possible 82 occasions (89.02%)

She worked alternate hours, which I take to have been at the direction of the employer, the times of which spanned the period 7pm to 10pm, either at Sandy Bay or some other location, on 8 occasions out of a possible 82 occasions (9.75%).

It is reasonable to assume that had she not been required to work that alternative period on those 8 occasions that she would have otherwise worked the 7pm to 10pm rostered hours at Sandy Bay.

Sunday 7pm to 9pm.

Ms Sutherland worked 7pm to 9pm Sunday at Sandy Bay in accordance with the roster applicable to her on 14 occasions out of a possible 16 occasions (87.50%)

She worked alternate hours, which I take to have been at the direction of the employer, the times of which spanned the period 7pm to 9pm, either at Sandy Bay or at another location, on 1 occasion out of a possible 16 occasions (6.25%).

It is reasonable to assume that had she not been required to work that alternative period on that 1 occasion that she would have otherwise worked the 7pm to 9pm rostered hours at Sandy Bay.

The conclusions drawn from the above entries for Week 1 - A and Week 2 - A are that her employment on those four rostered periods was regular. With regard to the Thursday 4pm to 6pm hours Ms Sutherland either worked those hours or alternate hours which spanned the period 4pm to 6pm for 94.52% of all occasions for which corroborative records are available.

Similarly, 95.00% for the Wednesday 4pm to 6pm hours; 98.75% for the 7pm to 10pm Saturday hours and 93.75% for the 7pm to 9pm Sunday hours.

There appears to be a consistent pattern of employment as to hours worked per week and per fortnight in the period over which she was rostered to work those respective hours.

These hours were allocated to the applicant after assessing her availability to work the prescribed times; thereafter I think, there was created a mutual expectation on the part of both the employer and employee that for the former, Ms Sutherland would attend and perform for work in accordance with the roster (unless notified by the employee in advance of her inability to attend or unless the employer otherwise intervened) and on the part of Ms Sutherland that work (and consequently an entitlement to remuneration) would be available on the occasions that she reported for, and worked, in accordance with the roster.

The vagaries associated with casual work are simply not evident in these rostered work arrangements which I characterise to be regular, predictable and consistent.

The Thursday hours exceeded two years; the Wednesday and Saturday hours were in excess of one and a half years and the Sunday hours for four months.

The days upon which these rostered hours were worked were constant being Wednesday, Thursday, Saturday and Sunday.

There are consistent starting and finishing times; two periods commencing at 4pm and concluding at 6pm, one period commencing 7pm and concluding at 10pm; the remaining period commencing 7pm and concluding at 9pm.

The majority of these rostered hours were undertaken at the Sandy Bay Library, although not exclusively.(Exhibit E 5)

Evidence in the form of Exhibit E 6 (Pay History Details) to the effect that Ms Sutherland was regularly paid on a fortnightly basis.

There was evidence from Mrs Clark that employees are required to contact the employer of their inability to attend work because of illness or other reasons.

There was evidence given by Ms Sutherland that she had an expectation of work every week.

There was the evidence of Mrs Clark that Ms Sutherland may have had an expectation of continuing employment on the rostered Wednesday and Saturday hours (which were the remaining hours observed by Ms Sutherland after relinquishing her Thursday hours and the loss of the Sunday hours) and that her employment on the Wednesday and Saturday was regular.

The employer conceded that there was an "..element of regularity.." (p.69) evident in the time sheets (E5).

I conclude that there was such regularity, consistency and predictability with regard to these incidences of rostered work as to compel a finding, in respect to those incidences of employment, that Ms Sutherland was a 'part time' employee.

Having found that Ms Sutherland was a part time employee, that is, a part time employee for the purposes of the work that she was rostered to perform on Wednesday 4pm to 6pm and Saturday 7pm to 10pm (being the rostered hours that she was working at the time her employment ceased), I also find that the balance of the work that she undertook intermittently with the employer (excluding, in particular, the rostered 4pm to 6pm Thursday hours and the rostered 7pm to 9pm Sunday hours which I find also to have been part time work) was casual work.

However, despite the assertions of Mr Tullgren to the effect that she held dual contracts of employment and doubts expressed to the contrary by Mr Ewing, nothing was put by way of case authority to assist in reaching a concluded position on this issue.

It may possibly be the case that after Ms Sutherland was allocated her initial part time hours, that thereafter any further engagements were in essence a variation to that part time contract.

Equally, it may be possible that the part time contract and the numerous casual contracts were quite separate and distinct contracts.

On the evidence, it is therefore at least open to conclude that in this instance, dual contracts of employment existed, from time to time.

I find that Ms Sutherland was a part time employee working rostered hours of 4pm to 6pm Wednesday and 7pm to 10pm Saturday at the time of her cessation of employment.

Termination of Employment

Where there is in existence a contract of employment which is silent as to a finishing date, and the employer then seeks to rely upon an award requirement to give prescribed notice so as to bring about a cessation of that relationship, then I consider that the giving of that notice by the employer to be a termination at the initiative of the employer. And that applies irrespective of whether the employee is full time, part time or casual, provided that their employment contract is of an indeterminate nature at the time it comes into effect.

Termination at the initiative of the employer involves, as quoted by Mr Tullgren "...a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment contract". ( from Mohzab v Dick Smith Electronics Pty Ltd) - Industrial Relations Court - (per "Law of Employment" Macken, McCarey & Sappideen, Fourth Edition, Law Book Company at pages 227 and 228)

When called to the Moonah Office on 17 May 2000 for the purpose of returning her key to the Sandy Bay Library Ms Sutherland was informed that there were "no hours available" and/or "no hours allocated" to her.

Had she not been so informed, then I am unable to deduce from the evidence anything to suggest that she would have done anything other than to report to the Sandy Bay library for work in accordance with the roster; that is, for the next Wednesday 4pm to 6pm period and the next Saturday 7pm to 10pm period and thereafter.

I find that these two rostered part time hours arrangements had no specified date of conclusion, for had they done so, the contract of employment would have lapsed without the intervention of the employer.

Consistent with the authority of Mohzab vs. Dick Smith Electronics Pty Ltd (above) I find that it was the action of the employer, on the giving of notice to Ms Sutherland, to be the principal factor in bringing about her termination.

Accordingly, I find that Ms Sutherland was terminated from her rostered part time employment, being 4pm to 6pm Wednesday and 7pm to 10pm Saturday, on 17 May 2000 at the initiative of the employer.

Article 4 of ILO Convention 158 - Termination of Employment at the Initiative of the Employer - which is to be found at Part II - Standards of General Application - Division A - Justification for Termination, 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".

Against this background, there was no evidence adduced to suggest that the termination was related to the conduct or capacity of Ms Sutherland.

Her unchallenged evidence was to the effect that during the course of her employment spanning in excess of four years that she had not received any written or verbal warnings or counselling regarding work performance or matters related to her work.

Her evidence of the events of 17 May was to the effect that she specifically asked Ms Hay whether her loss of hours was attributable to any problem regarding her work performance but was told that it was not.

Neither, during the course of his examination of the employee, nor the other witnesses, nor in the course of submission did the employer seek to cast any doubt, explicitly or by inference, that either the capacity or conduct of Ms Sutherland was anything other than acceptable.

Nor did the employer seek, through any witness or by way of submission to challenge the assertion that Ms Hay had informed Ms Sutherland that the work performance of the latter had been fine; that there had been no problem with it and that Ms Hay had thanked her for all she had done for the 'company'.

The unchallenged reason for termination of the employee was that there were "no hours available" or "no hours allocated" to her.

A reduction in hours can be influenced by the operational requirements of a business and which may introduce considerations of redundancy and other issues.

However, there was no evidence and no submissions to the effect that the loss of hours (and hence employment) sustained by Ms Sutherland was linked to any operational requirement of the business.

Mr Ewing stated that the termination was:

" in accordance with her conditions of work, namely she was a casual, a true casual...." (p.18)

and further:

"...a true casual of which notice of one hour is required.". (p.70)

As stated earlier, when an employer relies upon an award requirement to give notice to effect a termination of employment in respect to an employment arrangement that is of an indeterminate duration, then I consider that to be a termination at the initiative of the employer.

The decision of an employer to invoke award notice, because it is a right available under the award is not, I think, a valid reason in the context of satisfying the ILO Convention requirements on that point. There must be a valid reason attaching to the decision to invoke the award notice provision and that valid reason must be a reason flowing from the capacity or conduct of the employee or the operational requirements of the business.

When an application to this Commission seeks to invoke the jurisdiction to hear and determine a dispute concerning an alleged unfair termination of employment, then in considering whether an order should be made, the Commission is, as submitted by Mr Tullgren, in the words of a full bench in Capital Hill Corporation Pty Ltd v Terence James O'Connor (T6915 and T6918 of 1997) at page 16, 'obliged' by reference to s.31(1A) of the Act to "take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning Termination of Employment at the Initiative of the Employer."

Mr Ewing did not seek to challenge that Ms Hay stated to Ms Sutherland that there were "no hours available" or "no hours allocated". However, no reasons have been advanced in these proceedings as to why, from 17 May, "no hours" were any longer available or allocated to Ms Sutherland, apart from an unchallenged claim that it was unrelated to her work performance. There was no evidence that her conduct was in question.

The employer did not seek to link the removal of the hours as a reason motivated by any operational requirements of the business. In short, no reason, in the context of Article 4, was advanced to support or justify the decision to remove the hours of Ms Sutherland which effectively concluded her employment.

This matter is not to my mind a case of "no hours available" or "no hours allocated"; rather it seems to be a case that the hours that had been available, and that had been allocated to her through a roster, and in respect of which she had an expectation of continuing to work, were unilaterally removed by the action of the employer.

I find on the evidence that the decision of the employer to remove the hours of employment of Ms Sutherland was not for a valid reason connected with either her capacity to perform the work or her conduct; nor can I find on the evidence that it was for a valid reason connected to any operational requirements of the business.

In all of the circumstances I find her termination to have been unfair and for no justifiable reason.

Neither party addressed in any depth the issue of procedural fairness although Mr Tullgren did say in submission that "...an employee has a right to defend themselves - Article 7" and that " ..the employer has failed ....Article 7.."

The employer did not seek to deny the assertion that it had failed Article 7. Furthermore, the employer conceded that, were I to find that Ms Sutherland was a part time employee, then the employer would hold the view that she was unfairly dismissed.

I have found that Ms Sutherland was a part time employee in relation to the rostered hours which she was observing at the time of her termination. I hold that the above view expressed by the employer to be a view that extends not only to the finding that it was an unfair termination because it lacked a valid reason, but also to extend to the finding that I now state being that, on the available evidence, it was also an unfair termination because the employee was denied procedural fairness.

Remedy

As to remedy, it was the view of the applicant to the effect that whilst reinstatement was pursued, the circumstances of the 'capricious sacking' and subsequent events including the ban imposed upon the employee and the issue of exhibits E3 and A2 were "not the actions of a reasonable employer and not actions we say would engender a view that you could re-establish an employment relationship." (p.66)

The applicant submitted that those circumstances, together with the period of time that has elapsed, make a remedy of compensation to be more appropriate than a remedy of reinstatement.

Conversely, the principal position submitted by the employer was that Ms Sutherland should be reinstated on the grounds that (1) the relationship has not been damaged; (2) that the employee had an amicable disposition toward the acting assistant manager, and (3) that there was nothing in the evidence to suggest that the relationship cannot be restored.

In exercising the discretion available in determining whether I consider reinstatement to be practical I have also had regard to the demeanour and conduct of the parties.

I have also taken into account, in considering the practicality of re-establishing the employer and employee relationship, issues such as (1) the availability of a position with the employer; (2) the capacity of the employee to perform the work; (3) the existence of factors which may serve to erode the employer and employee relationship, and (4) whether reinstatement is likely to bring about unacceptable problems or to seriously affect productivity or harmony within the employer's business.

Mr Ewing has proposed reinstatement. From that I conclude that the employer does not consider the elapse of time to be an issue.

For the applicant, apart from identifying the elapse of time as one issue on which I may be persuaded to form a view as to the impracticality of reinstatement, Mr Tullgren did not expand on that ground.

The remedy of reinstatement on the part of the employer infers to my mind the preparedness of the employer to employ Ms Sutherland in an already existing position or to make a position available.

As to the capacity of the employee to perform the work and her conduct, there is nothing in the evidence to suggest that she was anything other than a capable, competent and reliable employee whose conduct has not be put into question - the evidence clearly shows a history of numerous casual engagements over a period in excess of four years, together with regularly rostered part time employment. On the evidence, which I have accepted, the termination of her employment did not relate to her capacity to perform the work or her conduct.

The remedy of reinstatement proposed by the employer is I believe, an endorsement, by way of an expression of confidence, by the employer as to the employee's capacity and conduct.

The policy of the employer of banning ex-employees from entering any of the employer's libraries for a period of three months following termination may be an issue that might mitigate against restoration of the employer and employee relationship.

I can accept that while it could be seen as having potential to cause some embarrassment to an ex-employee and particularly one who was not familiar with the policy, nevertheless, I do not consider it to be an issue of such magnitude as to render irretrievable the loss of any trust or confidence that may have resulted from the imposition of the ban.

As I was I unable to form any conclusive view flowing from the apparent conflict between Exhibits A2 and E3 I am not prepared to accord any particular weight to this issue in determining the issue of remedy.

What I can say is that the issues of the ban and the contested exhibits (A2 and E3) both emerged subsequent to the termination of employment of Ms Sutherland. Whilst I have had regard to the post termination events, of greater interest to me was the level of trust and confidence during the period of the employer and employee relationship.

There is no evidence before me that any adverse circumstance arose during the existence of the employer and employee relationship to enable me to conclude that the level of mutual trust and confidence in anyway diminished while the relationship remained on foot.

I am unable to detect by reference to the evidence or the proceedings of any action or response of the employee which could be taken as cause for an erosion in the level of trust and confidence hitherto held by the employer toward the employee.

Further, I do not consider that any order of reinstatement would be conducive to creating unacceptable problems or creating an environment in which divisions emerged resulting in the potential adverse consequences for productivity or the harmony of the workplace. For example, there was no evidence of any earlier disharmony between Ms Sutherland and her colleagues, nor between Ms Sutherland and her supervisors. There no evidence to the effect that the employee bore any ill-will, malice or vindictiveness toward the employer or others or that the circumstances of, and events subsequent to, the termination, were acrimonious. No such evidence was forthcoming and I draw no such conclusions.

Whilst the proceedings were conducted in a robust manner and opposing views thoroughly tested, this is not an unusual feature of the adversarial system. Notwithstanding that observation, through these particular proceedings the demeanour of the direct parties displayed no signs of acrimony.

Discounting the negative effect that the termination itself and the subsequent issues, such as the ban and these contested proceedings, may have had upon on the matter of trust and confidence, particularly from the perspective of the employee toward the employer, I have formed the view that trust and confidence has not been irreparably damaged.

Overall, while I concede that there may be possibility of some initial strains, discomfort and tensions evident in recreating the employment relationship, I am far from satisfied that the pre-existing relationship has been undermined to the extent that to re-establish it by way of reinstatement would be futile.

Inherent in the proposed remedy of reinstatement by the employer is that to my mind, the employer has shown that it has the requisite, albeit undefined level of trust and confidence in Ms Sutherland to be satisfied that a workable relationship can be restored.

I find that reinstatement is a practical remedy to be applied in the circumstances of this case and I decide and order, accordingly. Having made that finding, it is not necessary to make any findings on any alternative options raised by s.31(1A), but with particular reference to compensation as pressed by the applicant.

ORDER

I hereby Order, pursuant to s.31(1A) of the Industrial Relations Act 1984, in settlement of the dispute, that Classic Video Pty Ltd trading as Video City in respect to Ms Paula May Sutherland (the employee):

1. Reinstate the employee to the position that she occupied immediately prior to her termination on 17 May 2000, without any loss of entitlements, as a part time Library Attendant under the terms and conditions of the Miscellaneous Workers Award; and

2. Restore to the employee the rostered hours of 4pm to 6pm Wednesday and 7pm to 10pm Saturday and to deem her as having worked all of these rostered hours as a part time employee on all of these days occurring on and from 17 May 2000; and

3. The reinstatement of the employee to the rostered hours of 4pm to 6pm Wednesday and 7pm to 10pm Saturday, is to be undertaken initially at the Sandy Bay library and thereafter at a suburban video library that the employer may choose, at its discretion, and which may include the Sandy Bay library; and

4. To pay to the employee, as a part time employee, any wages that have become due and payable as a result of this Order within 14 days of the date of this decision.

AND

5. That the employee, Ms Paula May Sutherland, communicate with the employer, Classic Video Pty Ltd, trading as Video City, as soon as is practicable but no later than 7 days after the date of this Order, for the purpose of making the arrangements necessary to give effect to the reinstatement terms of this Order.

 

A W Pearce
Commissioner

Appearances:
P Tullgren for the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch
T Ewing for Classic Video Pty Ltd trading as Video City

Date and place of hearing:
2000
October 6, 12
Hobart