T9859
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Jason Mark Carr and Tasmanian Alkaloids Pty Ltd
Industrial dispute - alleged unfair termination of employment - severance pay - pro rata long service leave - application held to be in time - not a fixed term contract - termination at the initiative of the employer - no valid reason for termination - re-employment recommended or compensation negotiated - open to applicant to request order - long service leave application rejected REASONS FOR DECISION (1) On 19 October 2001, Jason Mark Carr (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 Tasmanian Alkaloids Pty Ltd arising out of the alleged unfair termination of his employment, severance pay in respect of termination of employment as a result of redundancy and alleged entitlement to pro-rata long service leave. (2) On 23 October 2001 the President convened a hearing before myself at the Supreme Court, Cameron Street, Launceston to commence at 9.00am on Friday 2 November 2001. When this matter came on for hearing Mr A Bain, a solicitor, sought and was granted leave to appear for the applicant. Mr A Cameron, of the Tasmanian Chamber of Commerce and Industry Ltd, together with Mr D Jolly and Mr N Kerrison, appeared for the employer. (3) Following preliminary submissions the hearing was adjourned until 6 December 2001. Background (4) Mr Carr was first employed by Tasmanian Alkaloids in either 1991 or 1992. This engagement was on a casual basis for the duration of the harvest. This arrangement continued for some years with Mr Carr being engaged for three to six months each year. (5) In December 1996 Mr Carr was offered a three-month contract as a Production Assistant. There then followed a series of contract "extensions" or new substantive contracts. The net result of this was that Mr Carr was more or less continuously employed between January 1997 and September 2001. (6) The nature of these contracts formed a major part of the proceedings and hence is examined in greater detail later in the decision. (7) In July 2001 Mr Carr entered into a further contract, which contained a provision stating:
(8) On 19 September Mr Carr was advised that the contract would expire on 30 September. However an offer of a two-week extension was made. Through a combination of circumstances, Mr Carr did not work after 19 September. (9) Simply stated, the contention of the applicant is that, notwithstanding the series of short term contracts, the evidence overwhelmingly points to a pattern of continuous employment since January 1997 and there was a reasonable expectation of continuing employment. In the absence of any adverse performance criteria, the termination was unfair. (10) The employer contended that the contract arrangements were driven by the seasonal vagaries of the industry. In this case the contract had expired by the effluxion of time and there was therefore no termination at the initiative of the employer. It followed that the Commission lacked jurisdiction to hear and determine the matter. Whilst this was raised as a preliminary matter, it was agreed that the Commission should determine this question in the context of the whole case. (11) The employer further contended that the application was "out of time". Evidence (12) The following witnesses gave evidence: Mr Jason Mark Carr, the applicant. Mr David Alexander Jolly, Manufacturing Manager for the past four years. Mr Neil John Kerrison, Human Resource Manager, employed with Tasmanian Alkaloids since 1991. Mr Andrew John McGowan, Production Manager in charge of the extraction facility for the past five months. Prior to that Mr McGowan had held a range of management/supervisory positions over a period of 11 years. Was the Application "Out of Time"? (13) Section 29[1B] requires that an application relating to termination of employment must be lodged within 21 days after the date of termination. There is provision for an extension if the Commission is satisfied as to the existence of "exceptional circumstances". (14) The application was lodged on 19 October 2001. The initial question to be determined is, from which date does the 21 days commence to run? During the hearing a decision was issued on transcript. I now provide my reasons for this decision. (15) On 19 September Mr McGowan advised Mr Carr that there would be no more work after 30 September. It is common ground that Mr Carr was very upset by this decision. His evidence was that when he told Mr McGowan that he would be seeking legal advice, Mr McGowan responded that he had to be off the site for "sabotage reasons"1. Mr McGowan subsequently denied this during his evidence. However this was after my decision on transcript and hence cannot now be taken into account. As it turns out, this conflict in evidence is not a deciding issue in my decision. (16) Mr Carr went home and did not work his rostered night shift on 19 September. Later that evening he telephoned Mr McGowan, apologised for his distressed reaction, and said he would provide a medical certificate to cover the shift. This he subsequently did. (17) Mr Carr was rostered to work on 24, 25, 28, 29 and 30 September. He did not report for any of these shifts and at the time did not provide medical certificates. (18) Mr Cameron argued that Mr Carr, through his own actions, had repudiated the contract of employment by failing to report for work on the subsequent rostered shifts. He contended that the 21 days should commence to run on 20 September, the last day for which the company had been provided with a medical certificate. The application was therefore out of time. (19) The evidence of Mr Carr was that he was hurt and shattered by the termination and was seeing the doctor who had suggested anti-depressant medication. (20) A medical certificate covering the period 24 to 26 September was submitted into evidence.2 It transpires that this had been entrusted to a work colleague who had apparently forgotten to give it to the employer. Mr Carr was not aware of this at the time. (21) In relation to the remaining shifts, the following exchange took place:3
(22) This evidence was not contested. (23) Mr Carr said that when he left the office on 19 September, he had no intention to resign.4 (24) At Mr Carr's request, Mr McGowan sent him an e-mail dated 20 September. This e-mail read in part:5
(25) On the basis of this e-mail it is reasonable to conclude that, at least on 20 September, Mr McGowan considered that the contract would continue to run until 30 September. (26) Having regard to the totality of the evidence it is fair to say that there may be some basis for a dispute concerning Mr Carr's entitlement to sick leave. This however, in my view, falls a long way short of a repudiation of the contract on Mr Carr's part. (27) I find that Mr Carr's contract of employment continued to remain on foot until 30 September 2001 and his application to the Commission falls inside the 21-day time limit. It is therefore unnecessary to address the question of "exceptional circumstances". The Nature of the Contracts of Employment (28) By agreement between Mr Bain and Mr Cameron, a bundle of documents representing the short term contracts applicable to Mr Carr were entered into evidence.6 I have assumed that this represents the totality of contracts applicable during the relevant period. (29) The contracts fall into two categories. The first category, which I shall describe as a substantive contract, were generally offered in December of each year, to commence in January of the following year, and to run for a period of three to six months. (30) The relevant terms of the first contract dated 19 December 1996 are expressed as follows:
These and other terms and conditions of employment not referred to in this letter of offer are contained in relevant legislation, relevant awards or agreements, and the organisation's policies and procedures as varied from time to time.
Please sign the attached copy of this letter and return it to the Human Resources Manager confirming your acceptance.
If you have any queries regarding this offer of employment please do not hesitate to contact our Human Resources Manager."
(31) Subsequent substantive contracts are, in all material respects, expressed in similar terms. (32) Between the substantive contracts Mr Carr was offered a series of extensions, which usually ran from the conclusion of the substantive contract. In each case where an extension was offered, there was no break in continuity of employment. On some occasions an extension of an existing extension was offered. The extension offered on 1 September 1997 is indicative of all subsequent extensions.7
(33) The following is a summary of the substantive and extension contracts applicable to Mr Carr. The numbering in the left hand column is for identification purposes only:
(34) The following observations can be made about these contracts:
"We are pleased to offer an extension of your current employment contract until 19 December 1997." [my emphasis]
(35) Mr Carr's gross earnings in each of the relevant years was as follows:9
* Casual employment (36) In July 2001 Mr Carr was paid at the rate of $1001 per week. Just prior to his termination, he was acting in a Level 4 position at the rate of $1051 per week. Expectation of Continuing Employment (37) Notwithstanding the existence of a series of short term contracts with finite end dates, an important question is whether, in all the circumstances, Mr Carr had a reasonable expectation of continuing employment? (38) A summary of the evidence relevant to this question follows. (39) The evidence of Mr Jolly is that the workforce is made up of three components, namely "core" employees, "contract" employees and "casual" employees. Approximately one-third of the manufacturing workforce were in the contract category. The minimum term of a contract is two weeks and the maximum is 12 months. (40) Mr Kerrison said that staffing levels are driven by operational needs, which are directly related to the success of the annual poppy crop. In recent years the crops had been "good". (41) Mr Kerrison said that contracts were introduced in about 1995 or 1996 "... in response to needing additional people as the company grew and not having corporate approval for, what we call, core head count".10 (42) The extraction plant operated year round and staffing requirements are relatively consistent. The peak of the harvest lasts for approximately three months and then tapers off for the balance of the year. Staffing requirements for seed cleaning are adjusted accordingly. (43) Mr Kerrison said there is a requirement of the corporate parent [Johnson & Johnson], the effect of which is that all contract employees must have "a minimum four weeks break in the continuity of employment"11. This break invariably occurs in the December/January period prior to the commencement of the next harvest. (44) Mr McGowan took issue with the notion that this break should be considered as annual leave:12
(45) This policy certainly applied in the case of Mr Carr. The evidence points to a pattern of extended breaks in the December/January periods. Allowing for intervening public holidays, these breaks were not significantly in excess of four weeks. Mr Carr said:13
(46) Mr McGowan said it was possible to take leave at times other than December/January and it would appear that Mr Carr took leave in September on one occasion. (47) Under the contract arrangements accumulated annual leave was not paid out when contracts were rolled over. Accumulated leave was however always paid out prior to the December/January break. (48) Mr Carr said that when he was first approached with the offer of a full-time job, the company explained:14
(49) And later, under cross-examination, the following exchange took place:15
(50) Mr Carr's evidence was that he had been continuously employed with Tasmanian Alkaloids between January 1997 and September 2001. He had not been employed by any other employer. In recent times he had entered into additional financial commitments which his bank had accommodated on the basis of the Tasmanian Alkaloids contract arrangements. (51) In relation to his understanding of the contracts, the evidence of Mr Carr is:16
(52) And later:17
(53) About eight weeks prior to termination, Mr Carr said he had submitted a written application for leave during the period 14 December to 14 January. He had not heard at the time of termination as to whether the application had been approved, but did not consider this to be unusual. Mr McGowan acknowledged that leave applications would sit in his file until operational requirements became clearer. (54) Mr Carr said it was Mr McGowan who had requested him to submit a leave application.18 This question was not specifically put to Mr McGowan to either accept or deny. Mr McGowan did however indicate that leave applications could either be initiated by himself or the employee concerned. (55) Mr Carr was employed on a 12-hour rotating roster.19 This projection had Mr Carr rostered on "A Shift" from July to December 2001. The roster did not change when Mr Carr moved from the extraction plant to seed cleaning some four weeks prior to termination. Mr McGowan explained that the roster was a "template" which just continues to run. (56) At the commencement of the final contract in July 2001, Mr Carr was employed as a Level 3 operator in the extraction plant, a 12-month 24-hour operation. He said he was approached by Mr McGowan to transfer to the seed cleaning area:20
(57) Mr McGowan said a major maintenance requirement in the seed cleaning area necessitated a change from a five-day roster to a seven-day roster. This was designed to fulfil urgent orders and facilitate a shutdown from 14 October. He agreed that Mr Carr was moving to a leadership position in seed cleaning. He denied a suggestion that, at the time of Mr Carr's transfer, he had already formed the intention not to renew the contract after 30 September.21 Mr McGowan agreed that, but for the maintenance requirement in seed cleaning, Mr Carr would have continued in the extraction plant.22 The Cessation of Mr Carr's Contract of Employment (58) The evidence relating to the sequence of events between 19 and 30 September is largely covered in the section dealing with the Out of Time question. (59) The following additional evidence becomes material if I am against the respondent on the preliminary question. (60) There was no suggestion by the employer that Mr Carr was in any way an unsatisfactory employee. To the contrary, he had progressed from a Level 1 operator to a Level 3 and at the time of termination was acting in a Level 4 position. Mr Carr said that he had not been given any indication that he was doing the wrong thing and had interpreted the transfer to seed cleaning as a promotion. I also note that the person Mr Carr was required to train in seed cleaning was still employed at the time of the hearing, notwithstanding the expiry of at least one short term contract. (61) Early in October the Company placed a display advertisement in the Launceston Examiner seeking "Extraction Plant Operators" to be employed on a 12-month contract basis.23 The precise date of this placement is unclear. Based on a closing date of 12 October for another vacancy advertised on the same page, I suspect the date was Saturday 6 October. (62) It transpires that this advertisement was a consequence of a number of redundancies [at least three] arising from a number of extraction plant operators failing to achieve the required standard in a recently implemented literacy and numeracy test. These employees had been employed since January 1999 on a similar contract basis to that of Mr Carr. According to Mr McGowan, redundancy payments of between $10000 and $15000 were made.24 (63) Mr McGowan agreed that the positions advertised were similar to that which applied in the plant prior to 30 September.25 He also agreed that Mr Carr had not been given the opportunity to sit for the literacy and numeracy test. (64) W hen asked why Mr Carr had not been considered for the advertised vacancies, Mr McGowan said:26
(65) Mr McGowan was unable to provide information as to when the literacy/numeracy tests were taken or when the decision to advertise was made. The Authorities (66) It is well established that a genuine fixed term contract expires by the effluxion of time and there is not a termination at the initiative of the employer. If it were found that Mr Carr was employed under such a contract, the Commission would lack jurisdiction to hear the matter further. (67) Mr Cameron relied on the majority judgement in Saarinen v University of Tasmania27. In this case Underwood J refers to the judgement of State of Victoria v Commonwealth of Australia28, which said:
(68) Underwood J went on to say:
(69) The second aspect of Saarinen relied on by Mr Cameron relates to the specific exclusion, in the definition of Industrial Matter, of "appointments". He submitted that in Mr Carr's case, after the expiry of a contract, any new contract would constitute an appointment, and would therefore be beyond the jurisdiction of the Commission. (70) Mr Cameron also referred to the decisions of ALHMWU v Seabrook Golf Club 29, Fisher v Edith Cowan University and Dadey v Edith Cowan University to support his submission. (71) Mr Bain acknowledged the well-established law in relation to fixed term contracts. He submitted, however, that in circumstances whereby there is a continuous series of fixed term contracts and the employer actively decides before the expiration of each, whether or not to offer a further term, there may be a termination at the initiative of the employer. (72) In support of this contention, Mr Bain relied on D'Lima v Board of Management, Princess Margaret Hospital for Children30. In this case there had been a series of 12 fixed term contracts over a period of 18 months. Marshall J said:
(73) Mr Bain submitted that the reasoning behind D'Lima can equally be applied in the instant case. Further, it should be distinguished on the facts from Fisher and Dadey, which concerned genuine fixed term contracts which the parties had agreed in advance would expire on a future date. (74) Mr Bain also referred to Wimmera College of TAFE v Hogan31, where an employee, who had been employed pursuant to six fixed term contracts, was held to have been continuously employed and therefore fell within the jurisdiction of the Act. (75) Mr Bain further submitted that a contract, which allows for termination by giving notice prior to the expiry of the contract, couldn't be said to be a fixed term contract. He referred to the following extract from the Australian Labour Law Reporter:32
(76) Mr Cameron acknowledged that Mr Carr's contracts did contain a clause of this nature, but submitted that this did not alter the reality that the contract did have an outer limit, beyond which it ceased to run unless extended or renewed. Findings (77) The substantive contracts applicable to Mr Carr all contain a provision enabling the contract to be terminated on the giving of two weeks' written notice. Based on the authorities previously referred to, Mr Carr's contract is not a fixed term contract and I find accordingly. (78) The remaining question so far as jurisdiction is concerned, is whether the contract has a finite outer limit, which expires on the effluxion of time, rather than at the initiative of the employer. (79) I largely accept Mr Cameron's contention that the fact that Mr Carr usually signed the contracts some time after commencement is immaterial. Of far greater significance is that Mr Carr, by continuing to work, accepted that the new contract was on foot. (80) In determining whether this was a termination at the initiative of the employer, it is necessary to look at the totality of the employment relationship, not just the black and white words of the contract. In making this assessment, I make the following observations. (81) I am satisfied that Mr Carr was continuously employed from 20 January 1997 until 30 September 2001. The breaks during the December/January periods each year, whilst sometimes slightly longer than a normal annual leave period, appear on the evidence to have been agreed. I also consider that the corporate requirement for contract employees to have a break of at least four weeks is driven by considerations other than operational requirements. In this context the policy has an air of artificiality about it. Certainly I do not consider these periods to have broken the continuity of employment. (82) At least three of the contract extensions were provided after the expiry of the previous contract. In addition there were two extended periods for which no contract is in evidence. I conclude from this that Mr Carr continued to work, presumably with the acquiescence of the employer, notwithstanding the absence of a formal contract. (83) There are two telling factors, which in my view point to a conclusion that Mr Carr had a reasonable expectation of ongoing employment beyond 30 September 2001:
(84) For the Commission to be denied jurisdiction, the contract would need to be of such a nature as to automatically come to an end on its expiry date, without the employer taking any action. That position is not consistent with the evidence in this case. (85) Based on the evidence I conclude that Mr Carr's employment would have continued beyond 30 September, unless the employer took positive action to enforce the expiry date. Indeed, that is exactly what Mr McGowan did on 19 September. This practice was confirmed by Mr Jolly:33
(86) Mr Cameron's preliminary application that the Commission lacks jurisdiction is rejected. (87) I turn now to deal with the merits of Mr Carr's application. (88) In an industry driven by the seasonal vagaries of the poppy harvest I accept that the employer is entitled to manage his staffing needs in a manner which is consistent with operational requirements. The use of short term contracts is certainly a mechanism which is open to the employer. The enforcement of the expiry provision in circumstances where there is no ongoing work available would, prima facie, constitute a valid reason for termination. Indeed Mr Carr acknowledged this possibility in his evidence. (89) In July and August 2001, Mr Carr was employed in the extraction plant, a 24-hour, year-round operation. He was approached by Mr McGowan to transfer to seed cleaning and train a new employee. Mr Carr, not unreasonably, viewed this as a promotion. (90) There has never been any suggestion that Mr Carr is anything other than a competent operator. (91) On 19 September he was told that his contract would not be renewed because there was no ongoing work available after 30 September. Yet in the first week of October there was an advertisement for Extraction Plant Operators, a position Mr Carr is competent to perform. In addition, the person who Mr Carr trained in seed cleaning was still employed as of December 2001. (92) Whilst I accept that work in seed cleaning probably finished in mid October, I am unable to accept that there was not suitable work available in the extraction plant. I further conclude that the existence of these vacancies must have been known, or at the very least anticipated, by management prior to 30 September. (93) Mr McGowan said Mr Carr was not considered for these positions because he and Mr Jolly had formed the opinion that he had abandoned his employment, based on his failure to attend a shift.34 Against this, Mr Carr's evidence that Mr McGowan had told him that he need not provide medical certificates for his final rostered shifts, was not contested. (94) In Mr McGowan's evidence the following exchange took place:35
(95) In my view those conversations are inconsistent with a view that Mr Carr had abandoned his employment. (96) During final submissions Mr Cameron submitted that the reason the contract was not renewed was lack of work. That, on the evidence, is plainly not the case. (97) I do not accept that the reason advanced by Mr McGowan, that is, abandonment of employment, to be a valid reason for termination. (98) I therefore find that the employer unfairly terminated Mr Carr. Remedy (99) In determining the appropriate remedy I have taken into consideration Mr Carr's length of apparently unblemished service with the employer. (100) Since the termination Mr Carr has worked as a builder's labourer in the construction of his own home, thus saving between three and four thousand dollars. At the time of hearing he had also obtained some casual employment with a car rental firm. I am satisfied that Mr Carr has met any obligation falling to him to mitigate his loss. (101) In this particular case I consider the most practical and fair remedy to be re-employment rather than reinstatement. However in acknowledgement of the seasonal vagaries which drive operational requirements, I have chosen at this stage to make a recommendation rather than order. (102) My strong recommendation is that Mr Carr be offered re-employment in a position equivalent in status and standing to that which he held at the commencement of the contract dated 6 July 2001. (103) In the event that the employer is unable to accommodate this recommendation by 31 January 2002, then there is a clear case for compensation. If this is to be the outcome, the parties are directed to confer on an appropriate compensation package. The approach adopted in respect of the redundancies referred to earlier in this decision may well be a useful guide. (104) It is open to the applicant to apply to the Commission for orders in the event that this matter is not satisfactorily resolved. The applicant is to advise the Commission not later than 31 January 2002 as to progress or otherwise. Long Service Leave (105) During the hearing the applicant amended his application to include payment for pro-rata long service leave. Mr Bain however, subsequently chose not to present any evidence in relation to this aspect of the application. Accordingly, the application for pro-rata long service leave is rejected. Tim Abey Appearances: Date and Place of Hearing:
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