Anderson v Umbakumba Community Council

JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 12 February 2003

AUSTRALIAN SERVICES UNION NEW SOUTH WALES (ON BEHALF OF MARGARET KING) AND AMMBERLY'S SINGLE WOMEN'S REFUGE INC

Application by Australian Services Union of New South Wales on behalf of its member Margaret King re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm16

1 This is an application, pursuant to s 84 of the Industrial Relations Act 1996 ("the Act") filed by the Australian Services Union of New South Wales ("the Union") on behalf of its member, Ms Margaret King. ("the applicant") The application was filed on 6 September 2002 and listed for directions and conciliation on 7 November 2002. The union sought reinstatement and compensation for the alleged unfair dismissal of the applicant by the Ammberly's Single Women's Refuge Inc ("the respondent") on 19 August 2002.

2 Confirmation of the applicant's dismissal, and the reasons for the dismissal, were recorded in short form in a letter to the applicant dated 29 August 2002; the contents of which I reproduce below, Dear Margaret I wish to confirm in writing the termination of your employment that took place on 19 August 2002. This is to confirm that the reason for your terminatuion was numerous and continued instances of verbal abuse of clients, aggressive behaviour towards clients and breaches of the code of conduct relating to confidentiality. These matters continued despite previous discussions about your unacceptable behaviour. As discussed on the telephone, please also find enclosed your Certificate of Separation. Yours faithfully Tracy Phillips Manager

3 When the mater was first listed, Ms D Lotty, appeared for the Union on behalf of the applicant and Mr K Godfrey, from Jobs Australia Ltd, appeared as agent for the respondent.

4 From the outset Mr Godfrey submitted that the Commission lacked jurisdiction to deal with the matter as the applicant was exempt from the provisions of Pt 6 ch 2 of the Act by virtue of s83(2)(a) - in that the applicant was engaged "under a contract of employment for a specified time or a specific task."

5 Notwithstanding the respondent's challenge to jurisdiction, the Commission exercised its statutory obligation to encourage a conciliated settlement of the claim by chairing private conferences with the parties. The conferences proved unsuccessful. Accordingly, pursuant to s87 of the Act, the Commission made a finding of unsuccessful conciliation and listed the jurisdictional hearing. In so doing, directions were issued for the filing and service of affidavit evidence.

6 This decision will deal only with the question of whether the applicant is exempt from the provisions of Pt 6 ch 2 of the Act.

7 Much of the evidence in this matter was uncontested. The following is an outline of the applicant's period of employment drawn from the evidence provided by both parties.

8 The applicant was employed as a community support and access worker in a locum position for a period of three months commencing on 30 April 2002. Her letter of appointment was in the following terms: Dear Margaret As discussed on the telephone, I am writing to confirm your appointment to the position of Community Support and Access Worker, locum position, for a period of three months, commencing on the 30 April 2002. The hours worked will be for 35 hours per week, initially from 9am to 5 pm, but as discussed at the interview, there will also be a roster to cover staffing at the refuge from 8am to 8 pm, and all Support Staff will be included in the on-call roster also, for overnight emergencies when there are residents in the refuge. You will be paid under the Social and Community Services (SACS) Award, Category 3 Year 1 at a rate of $31,700 per annum, excluding any penalties or on-call allowances. I look forward to seeing you at 9.30am on the 30 April and congratulations on your appointment. Yours Faithfully

9 Joan McPake was also employed in a locum position from the 30 April 2002 and another employee, Mona Attamimi, was employed on a permanent basis. None of the employees had worked in a refuge before.

10 The respondent's Management Committee decided on 15 July to extend the two locum positions for a further two months. This decision was reaffirmed at the Committee's meeting on 19 August 2002.

11 On 17 July, Tracy Phillips, the respondent's manager verbally informed the applicant and Ms McPake that their employment was to be extended beyond the 30 July for at least 2 months. Ms McPake made a note in her diary of the extension. A staff meeting on 24 July confirmed the extension and the applicant and Ms McPake were informed they would be eligible to apply for the permanent positions in two months. There was also a discussion of performance appraisals and salary packaging for employees.

12 Ms Phillips' evidence was that the decision to extend the locum positions was because of unresolved industrial relations issues, including matters before the Commission. The respondent had been advised not to advertise for permanent positions until these matters were clarified.

13 The applicant's employment was terminated on 19 August 2002. The applicant's evidence was that she was confused about her terms of employment. No finishing date had been set and the extension of two months was not put in writing.

14 On 28 August, the respondent advertised for three permanent community support and access workers. Ms McPake applied but was unsuccessful.

15 Mr Godfrey submitted that this matter was a very simple one. The question to be answered was whether the applicant was employed for a specific task, fulfilling the duties of a temporary or locum position until the respondent was able to fill the positions on a permanent basis.

16 Mr Godfrey said the evidence was clear. The applicant's letter of appointment spelt out that her locum position was for three months. Notwithstanding that the three months was extended, the applicant was advised of the extension and understood she could apply for a permanent position at the relevant time.

17 Mr Godfrey accepted that the extension of employment was not in writing. However, he argued that this did not invalidate the true nature of the employment. As such, the applicant was excluded from making a claim of unfair dismissal by virtue of s83(2) of the Act.

18 Ms Lotty submitted that while the applicant was advised of a three month appointment, her finishing date was unclear. There was confusion as to whether the extension was for two months and when the extension was to end. The applicant believed that if she performed appropriately, she would secure one of the permanent positions when they were advertised.

19 Ms Lotty put that once the three months had expired there was no longer a contract of employment, but an agreement based on some future event. She said that there was considerable confusion, particularly as the respondent offered salary packaging and staff appraisals after the three months had expired.

20 Ms Lotty relied on two authorities in support of her submissions - Anderson v Umbakumba Community Council (1994) 56 IR 102 and D'Lima v Board of Management of Princess Margaret Hospital for Children (1995) 64 IR 19.

21 In reply, Mr Godfrey emphasised that this was not a case about a fixed term contract, but rather that the applicant was employed for a specific task. The time to complete that task was extended. There is no time limit in the Act for the task to be completed.

22 In my view, all the witnesses gave truthful and perfectly believable evidence. The evidence was entirely consistent. No witness sought to colour or embellish the evidence beyond the true factual position. My only area of small concern went to the applicant's evidence that she was confused about her terms of employment. While she may have been unclear as to her actual finishing date, there can be no confusion as to the true nature of her employment.

23 The evidence on this point was clear and unequivocal. There can be no doubt that the applicant commenced employment on 30 April 2002 for three months in a locum position. Her letter of appointment leaves no room for doubt or confusion. (See para 8) The locum position was extended for two months by Management Committee decisions of 15 July and 19 August 2002. The evidence was that the applicant did not receive formal written advice of this extension. While in hindsight, this may have been regrettable, it doesn't follow that the applicant was unaware of her extension of employment. Indeed, she could not have been in any doubt as to her status.

24 The uncontested evidence was that firstly, the Board minutes disclose a decision to extend the locum position period; secondly, the minutes were readily available to all staff; thirdly, Ms McPake's evidence was that Ms Phillips verbally informed her and the applicant on 17 July that the locum positions were extended. Ms McPake recorded the conversation in two notations in her diary: 17 July - "extended job for another two months" 25 September - "End of the five months position Locum ongoing to reapply for this job;" Further, at a staff meeting on 24 July the applicant was informed that her locum period would be extended by two months. Moreover, and most significantly, the applicant's own evidence was that Ms Phillips informed her that the locum position would be extended and that she would have to apply for a permanent position.

25 To my mind, it is not materially relevant as to the reasons why the locum period was extended. On one view of it, the respondent provided an additional period of employment for which it is now being criticised - albeit that the applicant was terminated before the expiry of the additional two months.

26 However, it is absolutely clear from the evidence that the applicant was, at all times, aware that her employment was in a locum capacity.

27 Section 83(2)(a) of the Act is expressed as follows: 83(2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task.

28 Ms Lotty relied on two authorities in support of her submissions - Anderson v Umbakumba Community Council and D'Lima v Board of Management of Princess Margaret Hospital for Children. In my opinion these authorities can be distinguished from the present case in the following respects.

29 The applicants in Anderson and D'Lima both had reasonable periods of continuous employment - two years and eighteen months respectively. More importantly however, these cases were decided under a different statutory framework which did not include an exclusion provision for employees employed on a specific task. Both cases were decided under r30B(I)(a) of the Industrial Relations Regulations (Cth), which relevantly provides: (1) For subsection 170CC of the Act, the following kinds of employees are excluded from the operation of Subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act: (a) an employee engaged under a contract of employment for a specified period of time;

30 The Industrial Relations Court of Australia held in both cases that the applicants were not excluded from the relevant provisions of the Federal Act as they were not employed for a "specified period of time." This was not the argument advanced here.

31 The respondent's case was that the specific task was to fill the positions on a temporary or locum basis until permanent positions could be offered. I am satisfied from the evidence that this proposition is soundly based. I am further satisfied, as the nature of the applicant's employment was for such a specific task and, that ab initio, she was under no illusion as to what the specific task was, that her application for relief from alleged unfair dismissal falls foul of s83(2)(a) of the Act.

32 Accordingly, the Commission has no jurisdiction to determine the applicant's claim. The application must be dismissed. I so determine.

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