Andersen v Umbakumba Community Council

The Judicial Registrar held Ms D'Lima's employment was subject to an award provision for 14 days notice of termination. He also held that "...the contract periods were generally extended beyond the period specified in the written contract and as such the contracts were therefore not contracts for a specified period of time." (see p3 of the decision). Judicial Registrar Walker also rejected the hospital's submission that the termination was not at the initiative of the employer but the result of the expiry of a fixed term contract. He held that the contracts had been regularly extended. He was not satisfied that the alleged dissatisfaction with Ms D'Lima's performance had been brought to her attention and held that the hospital had failed to prove that the termination was for a valid reason. He ordered compensation in the sum of $2,800. On 2 June 1994, the hospital sought a review of the decision of the Judicial Registrar. It did not seek interlocutory relief. Notwithstanding its disinclination to seek interlocutory relief, there is nothing before the Court to show that the hospital has paid to Ms D'Lima the $2,800 which the Judicial Registrar ordered to be paid within 21 days of 17 May 1995. On 15 June 1994, Deputy District Registrar Richardson made certain procedural orders to facilitate the hearing of the review which included an order that: "The hearing proceed on the basis of the transcript of the hearing before the Judicial Registrar supplemented by any affidavits as may be desired by the parties."

THE EVIDENCE ON THE REVIEW The review was heard by the Court on 11 August 1995, at the same time as it heard a review of Judicial Registrar Ryan's decision in another matter. Mr Hooker of counsel appeared for the employer in each matter and Mr Herron of counsel appeared for the employee in each matter. The transcript of the proceedings before Judicial Registrar Walker and the exhibits in those proceedings were received into evidence on the review, by consent. Additionally, further oral evidence on the review was given by Ms D'Lima and Mr Sam Vacca, her shop steward at the hospital. In the review the employer also relied upon an affidavit of Ms Freda Dyson sworn on 24 July 1995. The affidavit, which was not subject to cross examination, contained the following paragraphs: "1. I am the Co-ordinator of House Services at Princess Margaret Hospital for children and have occupied this position since approximately 1989. 2. My initial contact with Ms Rosemarie D'Lima was when she approached me on 6 July 1992 seeking work. 3. I indicated to Ms D'Lima at the time that there was not any permanent work, but she may complete an application form for any work of a temporary nature which may become available. 4. Ms D'Lima indicated to me that she understood that there was not any permanent work available at that time. 5. From the 14 September 1992 up to and including the 11 December 1992 Ms D'Lima was employed on a series of fixed term contracts to cover other staff within the Housekeeping area whilst they attended Working Party Training. 6. During May 1993 I was informed by the then manager Hotel Services, Mr Keith Clifton-James, that we were not able to appoint any person permanently until further notice. 7. During June 1993, following the resignation of Mr T Brabazon, I offered Ms D'Lima a fixed term contract for a period of one month, working four hours per day. 8. Ms D'Lima accepted and signed the contract for the period 18 June 1993 until 13 July 1993. 9. Ms D'Lima was then given further fixed term contracts of one month's duration up to and including the 1 March 1994. 10. In late February 1994 I was approached by Ms D'Lima who stated that her father had passed away and that she would be returning to India and therefore would not be able to accept any further contracts of employment. 11. I informed Ms D'Lima that on her return from India she could contact me, if she so desired, to inquire of any further work that may become available. 12. I notified our salaries department accordingly that Ms D'Lima had resigned from the Casual Pool and that all monies owing to her should be paid out. 13. On Ms D'Lima's return from India she made contact with me, stating that she was available for any type of work. 14. An employee was absent on Worker's Compensation and I was able to offer Ms D'Lima a contract of employment to cover this position. Contracts of employment were offered on a monthly basis from 6 April 1994 to 13 September 1994 inclusive. 15. Further work was then available after the 13 September 1994 until the 11 December 1994 inclusive. 16. In early December 1994 I received six envelopes from the Human Resource Department for employees who worked in my area of responsibility and whose contract of employment were about to expire. 17. I gave the envelopes to the Head Orderly, Mr Charlie Tamburri, and instructed him to give them to the employees concerned and tell them that we would contact them when needed. One such envelope was addressed to Ms D'Lima and contained the original of the document a true copy of which is annexed hereto and marked with the letter "A". 18. During November 1994, in response to a request from the Catering Supervisor, Mr B Andzzejewski, who asked me what type of worker Ms D'Lima was, I stated that Ms D'Lima's work performance was "OK". 19. At no stage during Ms D'Lima's employment with the Hospital was the Hospital able to offer to Ms D'Lima a permanent position."

The annexure to Ms Dyson's affidavit is the same letter that is substantially reproduced earlier in this judgment. Ms Dyson gave evidence before the Judicial Registrar and was asked the following question:- "...So that the system was, you say, if people come to the end of their contract and they do not hear anything they just keep working?" Ms Dyson's answer was:- "That's right".

Before the Judicial Registrar, Ms D'Lima was asked questions in chief based on an affidavit of hers which was the foundation of such evidence. The first fifteen paragraphs of that affidavit were in the following form: "1. I first approached Princess Margaret Hospital in mid 1992 seeking employment. I spoke with Mrs Freeda [sic] Dyson who I know to be a Manager in the Hotel Services Department. 2. When in her office I was told by her to fill out an application form and she said she would let me know later. 3. Some time later I received a call from the hospital asking me to attend for a medical because I was told a medical was necessary before I could have employment with the hospital. 4. After the medical I was told to start work at the hospital on 29 September 1992 for three days training. After that I was to be a casual on call in the Cleaning Department. 5. I was a casual Cleaner over the coming months until in about June 1993 when I was offered regular work in the Cleaning Department. 6. From 18 June up until when my employment was terminated by the hospital in December 1994 I worked continuously as a part-time Cleaner in the hospital with the exception of a period of four or five weeks when I requested leave to visit India because of the passing away of my father. 7. During my period of employment with the hospital I was employed on a roster system either filling vacancies for employees who were absent on leave or simply filling vacant positions. 8. In June 1993 when I began this period of regular work I was asked to sign forms which indicated that I was to be employed for a period of time. Throughout my employment I signed a series of these forms, copies of which are attached to this statement. 9. Each time I was asked to sign one of these documents by a Manager who I knew as 'Charlie' would come and asked me to sign the form. Each time the details on the form were complete except for my signature and the signature of an approving Manager at the bottom. 10. Once I signed the form I never saw the forms again and was never given a copy. 11. The forms showed that I was employed for a period of time under the conditions of the Hospital Workers (Government) Award and the forms specifically showed that I could resign at any time by giving two weeks notice. 12. While the forms showed that my employment would end on a certain date it was often the case that at the end of the period I would continue to work as usual and some days after the end of the last period 'Charlie' would come again and ask me to sign a new form which was back-dated to the end of my last contract. 13. At the hospital there are very large number of employees, especially in the Cleaning Department, who are contract employees. 14. We all knew that the practice was that even if your contract came to an end you just continued to work unless you received a letter from the hospital saying that you were no longer required. 15. I saw that happen to a number of people. We all understood that you kept working unless you were told otherwise despite your contracts coming to an end. It was known amongst the other employees that who got their contract extended and who didn't get their contract extended was a decision that was made completely by Management, especially by Freeda [sic] Dyson." There was no effective challenge to anything stated by Ms D'Lima in that portion of her affidavit. Exhibit 2 before the Judicial Registrar consisted for 13 separate pages, each entitled "Temporary Application/Appointment Form". The forms were in the following terms: "TEMPORARY APPLICATION/APPOINTMENT FORM The Chief Executive Officer Princess Margaret Hospital for Children SUBIACO WA 6008 Dear Sir, I, ........................................................................ wish to apply for the temporary post of .........................................under the conditions of the Hospital Workers' (Government) Award, to work for the period from ...................... to .................... inclusive. I understand that I have been contracted for the above period and that my services will be terminated at the expiration of this contract. I also understand that if I wish to resign before the contracted finishing date I must give fourteen days written notice. (This last paragraph does not apply to casual employees). ................................. Signature of Applicant =================================================================== APPROVED - NOT APPROVED

............................................. .................................................. DATE MANAGER HUMAN RESOURCES DEPARTMENT Please Note: Any staff member who is employed on a full time, or part time basis which is not less than 35% of the hours worked by a full time employee, and has reasonable expectations of employment for at least 12 months is eligible to become a member of the Government Employee Contributory or Non-contributory Superannuation scheme. For more information please contact the Human Resources Department."

The first form in the exhibit had the dates 7.12.92 to 11.12.92 inserted in the space provided for the inclusion of dates. This appears to be the last of the documents referrable to paragraph 5 of Ms Dyson's affidavit. It appears from paragraph 5 of Ms D'Lima's affidavit that such work was performed whilst she was a casual employee. Therefore, at that time, the last paragraph before her signature, relating to the giving of notice, was inapplicable. The second form refers to the period 18 June 1993 to 13 July 1993. According to Ms D'Lima mid-June 1993 was the time at which she was offered regular work. She said that from then until her dismissal in December 1994, with the exception of being granted leave to visit India shortly after her father had died there, she was continuously employed by the hospital. Ms Dyson's evidence is that Ms D'Lima was offered a fixed term contract for a period of one month, working four hours per day. The actual period in the second form was 27 days. Contrary to the verbiage on the form, Ms D'Lima's services were not terminated at the expiration of that contract. In fact, her services were not terminated at all until 11 December 1994. Her further employment prior to her travelling to India was described by Ms Dyson in the following way:- "Ms D'Lima was then given further fixed term contracts of one month's duration up to and including the 1 March 1994.".

It should be noted the forms show that very few of the periods concerned were precisely for one month but the periods appear to vary, in the main, from just less than four weeks to just over four weeks. The other forms covered the periods set out below:- Form No. 3: 14.7.93 - 10.8.93 Form No. 4: 11.8.93 - 10.9.93 Form No. 5: 13.9.93 - 12.10.93 Form No. 6: 13.10.93 - 16.11.93 Form No. 7: 17.11.93 - 21.12.93 Form No. 8: 22.12.93 - 25.1.94 Form No. 9: 26.1.94 - 1.3.94 Form No. 10: 6.4.94 - 26.5.94 Form No. 11: 27.5.94 - 28.6.94 Form No. 12: 29.6.94 - 2.8.94 Form No. 13: 14.9.94 - 28.10.94 Form No. 14: 31.10.94 - 11.12.94 The gap between forms 9 and 10 is referable to Ms D'Lima's period of leave and the gap between forms 12 and 13 appears to be referable to a missing form covering from early August to mid-September 1994. In fact, exhibit 3 before the Court on the review consists, inter alia, of a hospital document suggesting that Ms D'Lima be engaged from 3 August to 13 September 1994. Ms D'Lima's evidence was that every time she signed one of the forms referred to above, all the details had been inserted except for her signature. Sometimes she was asked to sign the forms which had been back-dated. She worked beyond the time of expiry of the alleged short term contracts in such circumstances and then worked pursuant to an alleged short term contract that was supposed to have commenced before she signed the relevant documentation. REGULATION 30B(1)(a) In substance, and in truth, Ms D'Lima was employed continuously from 18 June 1993 to 11 December 1994 and during such employment requested and was granted leave without pay in March/April 1994. I reject unreservedly the submission of Mr Hooker that Ms D'Lima was employed on a series of fixed term contracts and that each contract expired on its own terms. Such a submission is totally at odds with the evidence. Further, from 18 June 1993 onwards, Ms D'Lima was subject to an award entitlement for two weeks' notice of her termination. In those circumstances, even assuming that each written form represents a stand alone contract, no one can be certain as to when the contract will expire when it is entered into. See Andersen v Umbakumba Community Council (1994) 126 ALR 121, 126 (lines 29 to 42) where von Doussa J said:- "In the present case cl 3 and Sch 1 of the employment agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl 21(c) to bring the employment to an end on two weeks' notice, and the right of the employer under cl 21(d) to bring the employment to end without notice on payment of two weeks salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new agreement is entered into pursuant to cl 29). Within the period stated in Sch 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end." I reject Mr Hooker's submission to the effect that Form 14 constituted a fixed term contract, starting on 31 October 1994 and ending on 11 December 1994. I find that Ms D'Lima's application is unaffected by Reg 30B(1)(a) of the Industrial Relations Regulations which excludes from the Court's jurisdiction the consideration of an application under s 170EA of the Act from:- "... an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994.".

TERMINATION AT THE INITIATIVE OF THE EMPLOYER I likewise reject the submission of Mr Hooker that the dismissal of Ms D'Lima was not a termination of employment at the initiative of the employer. The fact of the matter was that Ms D'Lima was continuously employed from 18 June 1993 to 11 December 1994 on which latter date her employment was terminated by the hospital. The practice of signing of further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the Court to ignore the weight of strong countervailing factors indicating a continuous employment relationship. Mr Hooker described the relationship as "relatively" continuous. I find no basis for the use of the adjective "relatively" in that context. As Ms D'Lima said in unchallenged evidence on the review: "... I had continuous employment ... except for my father's death [on] which I approached Ms Dyson and asked her to grant me leave.".

I do not find it necessary in determining that there was a termination of employment, rather than the expiry of a fixed term contract, to decide whether or not Ms D'Lima had been promised an increase in working hours before her dismissal. However, should it have been necessary to so decide, I would have come to the conclusion that, given the finding of the Judicial Registrar on this point and the failure of the hospital to seek to challenge those findings by oral evidence on the review, I would have come to the same view on this issue as did Judicial Registrar Walker. See Macs Foods v McLeish WIR 94/305, Spender J, 12 July 1995 (as yet unreported) in which His Honour acknowledged the great advantage of the Judicial Registrar who saw the witnesses give evidence. Ms D'Lima was cross-examined on the question of the promise of extra hours on the review. She did not move from the evidence she gave before the Judicial Registrar. She impressed me as a truthful and honest witness. Ms Dyson's affidavit, which was the only extra evidence of the hospital on the review, did not deal with this issue. VALID REASON After finding that there was no jurisdictional impediment to a consideration by the Court of Ms D'Lima's application, Judicial Registrar Walker said (at p3 of his decision):- "I am also satisfied that the reason for termination was the dissatisfaction of Ms Freda Dyson with the applicant's performance and as this was not brought to the applicant's attention the respondent has therefore failed to prove that the termination was for a valid reason and has breached the requirements of Subdivision B of Part VIA, Division 3 of the act [sic].".

Ms D'Lima was dismissed in circumstances where other employees who had been employed by the hospital more recently than Ms D'Lima were kept on and in circumstances where she was not given any opportunity to argue the case for her remaining in employment. There was no valid reason advanced for her dismissal. The dismissal was arbitrary and occurred without any consideration of the merits of the case and entirely in a misguided belief that the contract of employment simply terminated by effluxion of time on 11 December 1994. I find, therefore, that the hospital was in breach of s170DE(1) in terminating the employment of Ms D'Lima without a valid reason or reasons connected with her capacity or conduct or based on the operational requirements of the hospital.

REMEDY Ms D'Lima did not ultimately seek reinstatement. Judicial Registrar Walker ordered that she be paid compensation in the sum of $2,800. The rationale for that sum was not obvious from the decision of the Judicial Registrar but the basis for it has been explained to the Court on review. It represents, in effect, 12 weeks' gross wages. Ms D'Lima found employment elsewhere 12 weeks after her dismissal in circumstances where such employment has been more remunerative for her than was her employment with the hospital. There was no issue between the parties that, should I find that the Act was relevantly breached, I should order that compensation be paid to Ms D'Lima in the sum of $2,800. Given that she should have been paid such sum on 7 June 1995 in the absence of a stay order, I will order that such sum be paid within seven days of the date of this judgment.

I certify that this and the preceding 11 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall. Associate: Date: 25 August 1995 Counsel for the Applicant: Mr R Hooker Solicitor for the Applicant:Crown Solicitors Office Counsel for the Respondent: Mr M E Herron Solicitor for the Respondent: Gibson & Gibson Date of hearing: 11 August 1995 Date of judgment: 25 August 1995