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T11272

 

TASMANIAN INDUSTRIAL COMMISSION

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

Alan Ernest Griffiths
(T11272 of 2004)

and

Port of Devonport Corporation

COMMISSIONER T J ABEY

HOBART, 30 June 2004

Industrial dispute - alleged unfair termination of employment - alleged breach of award - long service leave - jurisdiction - fixed term contract - expectation of continuing employment - jurisdiction found - breach of federal award - no jurisdiction - award coverage and long service leave - jurisdiction found - matter to be relisted

REASONS FOR PRELIMINARY DECISION

[1] On 7 January 2004, Alan Ernest Griffiths (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Port of Devonport Corporation (the corporation), arising out of the alleged unfair termination of his employment, severance pay in respect of termination of employment as a result of redundancy, alleged breach of an award or a registered agreement and a dispute over the entitlement to long service leave.

[2] The matter was listed for a hearing (conciliation conference) on 17 February 2004. The applicant was self-represented. Mr S Foley represented the employer.

[3] This matter has followed a somewhat unusual course. Following an inconclusive conciliation conference and subsequent failure to settle the matter in private negotiations, the matter was set down for hearing at the request of the applicant on 9 June 2004. The applicant was again self-represented. Mr S McElwaine, solicitor, represented the corporation.

[4] Mr Griffiths declined the option of presenting a sworn statement and subjecting himself to cross-examination. He proceeded to present a submission from the bar table, supported by certain documentation tendered into evidence.

[5] At the conclusion of this submission Mr McElwaine raised a number of jurisdictional issues which, he said, should strike out the application. He declined to present any evidence going to the substance of the Mr Griffiths' submissions.

[6] To provide context it is necessary to briefly summarise the substance of the applicant's case before going to the jurisdictional questions.

[7] Mr Griffiths responded to an advertisement in the Examiner dated 31 July 1998, in which the corporation sought the services of an Assistant Engineer.1

[8] Mr Griffiths successfully applied for this position. He said that he was given no indication that the position was anything but permanent and in fact declined an offer of a position interstate on the assumption that the corporation position was permanent in nature.

[9] Mr Griffiths said that when he commenced he was told that there would be a probationary period, and that initially he would be paid as a casual employee, at the rate of $40 per hour. He states that he retrospectively signed an agreement validating this arrangement.2

[10] On 22 December 1998 Mr Griffiths "reluctantly" signed a further contract.3

[11] This contract provided for employment to commence on 22 December 1998, and subject to termination provisions, to continue until 22 December 2003.

[12] Clause 6.1 of the contract provides for summary termination of employment by the employer in certain defined circumstances.

[13] Clauses 6.3 and 6.4 read:

"6.3 Notwithstanding the terms of Clauses 1.2 and 6.1 the Employer may terminate the employment of the Employee (whether or not the Employer has any reason so to do) upon payment to the Employee of a sum equivalent to twelve months Remuneration and the Employee shall not have any further claim for damages, costs compensation or loss against the Employer except that the Employee is entitled to be paid any amount of accrued leave and accrued expenses properly incurred by him in the discharge of his duties as Assistant Port Engineer or incurred entitlements to the benefit components listed in Schedule Two.

6.4 If the Employee wishes to terminate this agreement he must give three months written notice to the Employer."

[14] Clause 7 titled, Renewal of Agreement, reads:

"7.1 In the event that the Employee wishes to be reappointed as Assistant Port Engineer of the employer, then he must at least six months before the 22nd day of December 2003 advise the Employer of such intention in writing.

7.2 If the Employer receives a notice pursuant to Clause 7.1, then it must advise the Employee in writing within two months of receiving the notice of its intention either to advertise the position or offer the Employee reappointment as Assistant Port Engineer, and if so upon what terms.

7.3 If the Employer makes an offer of reappointment to the Employee, then the Employee must accept that offer at least two months before the 22nd day of December 2003."

[15] Mr Griffiths continued to perform his duties over the next five years.

[16] On 25 January 2001 the corporation wrote to Mr Griffiths advising that his salary had been increased from $62400 to $70000 pa. The letter concluded with the following:

"The Board would hope that you are content with this recognition and looks forward to a long and happy association."

[17] It would seem that Mr Griffiths wrote to the corporation on 11 November 2002 inquiring as to the Board's intention to extend the contract beyond December 2003. That correspondence did not form part of the proceedings. On 18 December 2002 the corporation responded in the following terms:

"Extension of Employment Contract

Thank you for your letter dated 11 November 2002 enquiring as to the Board's intention to extend your Employment Agreement beyond December 2003.

I advise that the Board considered your Notice at its meeting on 11 December 2002 and resolved that "officers employed under Staff Agreements expiring on 30th June 2003 be re-appointed on terms and conditions to be negotiated in early 2003". With regard to your contact the Board resolved that it "be considered when the employment arrangements for the other three officers are negotiated in early 2003".

In addition to negotiating the terms and conditions of the other senior staff in early 2003 it will also consider whether the use of Employment Agreements should be continued or some other arrangement put in place. Once the Board has decided on what sort of employment arrangements it wants for its senior staff it can respond to your enquiry regarding the extension of your contract."

[18] On 15 May 2003 the corporation again wrote to Mr Griffiths:4

"Renewal of Employment Contract

Following your letter of 11th November 2002, the Board wrote to you indicating that your contract would be considered when the contracts for those Senior Officers whose contracts expired on 30th June 2003 have been resolved.

A recent review of the Corporation's operations which required consideration by the new Board has confirmed the need to restructure the management arrangements in order to achieve improved management of infrastructure assets.

As a consequence, the positions of Engineer and Assistant Engineer will be abolished at the conclusion of the current contracts (in your case 22/12/03). A new position of Manager - Special Projects will be filled in the next few months and an additional position of Manager - Infrastructure will be advertised in October 2003.

The position of Assistant Engineer will not be renewed after the conclusion of the current contract."

[19] Mr Griffiths said that this letter did not amount to a notice of termination, that the position was not advertised, nor was he given the opportunity to apply.

[20] On 12 December 2003 the corporation wrote to Mr Griffiths as follows:5

"Renewal of Employment Contract - Assistant Port Engineer

Further to your enquiry of today seeking clarification of the above I confirm the content of a letter from the Chief Executive to you dated 15 May 2003.

By way of further explanation the letter refers to your contract with PDC dated 22 December 1998 that employs you as Assistant Port Engineer for the period 22 December 1998 to 22 December 2003 and advises that you will cease to be employed by PDC after 22 December 2003.

Hoping this is of assistance."

[21] Mr Griffiths submitted that there was still ample work to be done. Further:

" ... the termination of employment due to so-called restructuring is a ruse and that the functionality of the position assistant engineer still remains the same but now exists under a new title."

[22] Mr Griffiths asserted that the contracts for two senior managers expired in December 2002. However they were still employed without new contracts being executed.

[23] Mr Griffiths submitted that he had every expectation of being re-employed under a new contract.

[24] He claims that his termination was unfair and that he seeks reinstatement. In the alternative he should be paid a severance payment for redundancy.

[25] Mr Griffiths claims that there were breaches of one or more federal awards for which he seeks redress.

[26] Mr Griffiths also claims an entitlement to pro-rata long service leave under the terms of the Long Service Leave (Construction Industry) Act, 1971.

Jurisdiction

[27] Mr McElwaine raised a number of jurisdictional arguments relating to fixed term contracts, appointment and promotions and award coverage.

Fixed Term Contracts:

[28] Mr McElwaine submitted that Mr Griffiths was party to a fixed term contract that, by virtue of clause 1.2, came to an end on 22 December 2003. It follows that there was not a termination of employment at the initiative of the employer. He cited Saarinen v University of Tasmania6 as binding authority for this proposition. Underwood J adopted the observation of the High Court in State of Victoria v Commonwealth of Australia:7

"As a matter of ordinary language, an employer does not terminate an employee's employment when his or her term of employment expires. Rather, employment comes to an end by agreement, or, where the term is fixed by award or statute, by operation of law."

[29] Mr McElwaine also relied on Qantas Airways Limited v Christie8 in which McHugh J said:

"The first question in the appeal is whether Qantas terminated Mr Christie's employment.

A person's employment is not terminated when it ends by virtue of the effluxion of time.

...

Upon reaching 60, Mr Christie had no legal right to continue in the employment of Qantas. His employment ended when he attained the age of 60 because he and Qantas had agreed that it would end when he reached that age."

[30] Mr McElwaine acknowledged that the Act has been amended subsequent to Saarinen, specifically through the inclusion of new s.30(3) going to the "expectation of continuing employment". The result, Mr McElwaine submitted, should however be the same. Jurisdiction is founded on the existence of an industrial dispute, which in turn requires a termination of employment. In this case there has been no termination. The contract has come to an end at an agreed date, and there can be no expectation of ongoing employment beyond that date.

[31] Mr McElwaine submitted that a further barrier to jurisdiction was the exclusion from the definition for industrial dispute of "appointments, or promotions, other than in respect of the qualifications required for advancement".

Award Coverage:

[32] A substantial component of Mr Griffiths' application goes to alleged breaches of the federal Award titled Technical Services Professional Engineers (General Industries) Award 1998. Mr McElwaine said that the corporation did not accept that it bound as a respondent to this award.

[33] The corporation did accept that it was a respondent to the Tasmanian Ports Corporations Award 2002.9 Prima facie, this award would have application to Mr Griffiths, by virtue of classification Principal Technical Officer.

[34] Clause 36 of this Award reads:

"Long Service Leave

For employees who commences employment prior to the incorporation of respondents to this award by virtue of the Port Companies Act 1997 on 30 July 1997, the Long Service Leave (State Employees) Act 1994 applied with regard to long service leave entitlements. For employees commencing on or after 30 July 1997, the Long Service Leave Act 1976 applies."

[35] Mr McElwaine submitted that under this clause the Long Service Leave Act 1976 would apply to Mr Griffiths. It follows that no claim for a pro rata entitlement arises from the Long Service Leave (Construction Industry) Act 1971.

Finding

[36] Section 30(3) of the Act reads:

"(3) The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with -

(a) the capacity, performance or conduct of the employee; or

(b) the operational requirements of the employer's business."

[37] In this matter the applicant asserts that, notwithstanding the terms of the contract, he had a "reasonable expectation of continuing employment".

[38] Mr Griffiths chose not to make a sworn statement and to allow his evidence to be tested through cross-examination. Such a course of action weakens his position significantly in the event that the respondent calls evidence to counter the applicant's assertions. At this stage that has not happened.

[39] Section 20(1)(c) of the Act reads:

"20. (1) In the exercise of its jurisdiction under this Act, the Commission -

....

(c) is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

...."

[40] There is some evidence before the Commission in the form of documentation. In addition there are assertions from Mr Griffiths that have not been countered by the respondent.

[41] I do not accept that Saarinen is binding authority for a proposition that the mere existence of a document purporting to be a fixed-term contract means that the Commission lacks the jurisdiction to hear the merits of the application.

[42] It would seem to me that, in all but the most clear cut cases, it would not be possible to determine whether a person has a "reasonable expectation of continuing employment", without hearing evidence and argument going to that question. It is not without significance that Saarinen pre-dates the insertion of s.30(3).

[43] Clause 7 of the contract may for example be particularly relevant. In essence this clause states that where an employee indicates a wish to be reappointed, the employer must do one of two things:

· Advise of an intention to advertise the position, or

· Offer the employee reappointment.

[44] The option of simply allowing the employment contract to expire does not, on its face, seem to be open to the employer.

[45] In this case the employer advised of an intention to create a new position to be filled in the next few months and to advertise the further position of Manager- Infrastructure, in October 2003. Mr Griffiths asserts that this did not occur, and further, that the restructure was no more than a ruse to facilitate his departure.

[46] It is not for the Commission to enforce the provisions of a common law contract. Nonetheless the terms of the contract and adherence or otherwise to them, may well be relevant when considering whether an employee had a "reasonable expectation of continuing employment" in the context of an industrial dispute.

[47] I acknowledge that the Commission does not have jurisdiction in respect of appointments and promotions. It follows that in a genuine restructure, as distinct from a sham aimed at achieving another purpose, the Commission could not order that an individual be appointed to a newly created position. It does not, however, follow that finding that a termination was unfair, is not open. It simply limits the available remedy to compensation, or if the circumstances warrant, a severance payment for redundancy.

[48] In this matter the applicant has made out a case, albeit with limited evidence, which needs to be answered.

[49] The respondent's jurisdictional argument going to the alleged fixed term contract is rejected. I so order.

Award Coverage:

[50] I accept Mr McElwaine's submission that the Commission lacks jurisdiction to determine a matter relating to an alleged breach of a federal award. The Commission's jurisdiction on alleged award breaches is clearly limited to State awards.

[51] That aspect of Mr Griffiths' application which goes to an alleged breach of a federal award/s is dismissed. I so order.

Long Service Leave:

[52] The respondent's jurisdictional argument rests squarely on the application of the Tasmanian Ports Corporations Award 2002 to the work performed by Mr Griffiths.

[53] Clearly the Port of Devonport Corporation is a respondent to this award.

[54] At first glance the definition of Principal Technical Officer might apply to work of Mr Griffiths. There are however other factors to be considered. They include:

· The organisation generally responsible for representing professional engineers (APESMA) is not a party to the award. Whilst this is not fatal to the award coverage issue, it is nonetheless, highly unusual in my experience.

· Classification scales for professional engineers generally parallel technical officer scales up to a Level II Engineer. (Equivalent to a Principal Technical Officer). Thereafter the scales refer only to professional engineers. In this case the classification scale does not mention professional engineers at all.

· The advertisement called for a "tertiary qualified engineer with post graduate experience in structural design, construction and planning". The job specification lists, inter alia, the requirement to act as Port Engineer in the absence of the incumbent. This combination does not sit comfortably with the definition of Principal Technical Officer.

· Mr Griffiths' salary ($74436 pa) was significantly in excess of that specified for a Principal Technical Officer ($41199 pa).

· The contract makes no mention of an underpinning award.

[55] On the material before me I am not satisfied that the award applies to the work performed by Mr Griffiths.

[56] It follows that the jurisdictional argument advanced by the respondent is rejected.

[57] There may well be other arguments going to the applicability of the Long Service Leave (Construction Industry) Act, but they are not before me.

Conclusion

[58] This application will be re-listed in due course to hear further argument and evidence on those aspects of the claim other than the alleged award breaches. In the meantime I urge the parties to confer with the view of finding an agreed settlement.

 

Tim Abey
COMMISSIONER

Appearances:
Mr A E Griffiths, self-represented
Mr S McElwaine, solicitor (9/6/04), and Mr S Foley, for the Port of Devonport Corporation

Date and Place of Hearing:
2004
February 17
June 9
Launceston

1 Exhibit A1
2 Exhibit A3
3 Exhibit A4
4 Exhibit R1
5 Exhibit R2
6 [1997]Tasmanian Reports at 154
7 supra p. 181
8 [1998] ALJR at 634
9 PR924410