Ozcan v Sydney South West Area Health

Ryde-Eastwood Leagues Club Limited v Taylor, Full Commission of Industrial Relations Commission of New South Wales, [Bauer and Hungerford JJ, Murphy CC], 56IR 385. CASES CITED: Reed v Blue Line Cruises Limited, (1996), Industrial Relations Court of Australia, [Moore J], 73 IR 420. Shop Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta, [2001] NSWIRComm 46, Full Commission of Industrial Relations Commission of NSW, [Walton VP Hungerford J & Patterson C.]

APPLICANT Self represented LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

ANTON OZCAN -V- DIRECTOR GENERAL OF HEALTH IN RESPECT OF SYDNEY SOUTH WEST AREA HEALTH SERVICE

Application by A Ozcan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

[2008] NSWIRComm 1078 1 This matter involves a claim for unfair dismissal made pursuant to the provisions of Part 6 of Chapter 2 (sections 83-90) of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 10 April 2008 and made by Antonio Ozcan, (the applicant). The claim initially named the respondent employer as Concord Repatriation Hospital. Subsequently, during conciliation proceedings conducted by McLeay C., the respondent employer was more accurately identified as the Director General of Health in respect of the Sydney South West Area Health Service (the respondent). 2 The Conciliation proceedings conducted before McLeay C. on 15 May 2008, were unsuccessful and the matter has proceeded to arbitration by way of a Hearing conducted on 11 August 2008. BACKGROUND 3 The applicant is a man who was some thirty seven years of age at the time of his alleged unfair dismissal on 4 April 2008. The applicant had worked for the respondent as a Security Officer for a period of approximately four years. The applicant's work as a Security Officer was described as being that of a "casual, on-call arrangement". 4 The precise nature and status of the applicant's employment has been the subject of detailed analysis. In broad terms the applicant was engaged on a casual basis involving a considerable degree of variation in the number of engagements that might occur on either a weekly, or monthly basis. Further, the manner in which the engagements were arranged involved considerable informality and flexibility for both the applicant and the respondent. 5 Essentially the applicant would provide the respondent with his availability for the forthcoming period, usually a period of approximately one month, and the respondent would offer engagements dependent upon, usually, the absence of other Security Officers during that particular period. The informality of these arrangements for engagement extended to the applicant being able to subsequently reject an offer of engagement on a particular shift for which he had previously indicated his availability. These informal and flexible arrangements firmly established that the applicant's employment involved engagement on a casual basis. 6 On two occasions during the period of the applicant's employment, the respondent offered to convert the engagement on a casual basis to that described as permanent part-time employment. The applicant rejected the alteration to permanent part-time status and insisted upon maintaining employment by way of engagement on a casual basis. The respondent agreed to the applicant's request and by way of correspondence dated 7 April 2005, indicated that it would maintain the applicant's casual status. 7 The applicant's engagement on a casual basis continued, although the number of actual engagements that were worked decreased significantly between the months of March and September 2007. In December of 2007, the applicant altered his availability such that he advised the respondent that he was unable to work a on New Year's eve shift. This relatively late advice of unavailability for a New Year's eve shift caused the respondent understandable difficulties with re-rostering arrangements. 8 Upon hearing of the applicant's late alteration to his previously advised availability for the New Year's eve shift, the respondent's relevant Manager investigated the applicant's engagement record and discovered that the applicant had reversed his previously advised availability on something in the order of 51.1% of shifts under examination. The respondent considered that this was an unacceptable level of alteration to previously indicated availability. On or about 14 January 2008, the respondent decided to no longer offer the applicant any further engagements. The respondent did not initially advise the applicant of this decision. In what appeared to be something of a mistake, the applicant was offered a further shift for work on 28 March 2008. However the applicant was unavailable and refused the offer. 9 On 4 April 2008, the applicant was sent a letter from the respondent which advised that the respondent would no longer offer the applicant any engagements. The applicant has treated the letter of 4 April 2008 as his dismissal and subsequently initiated the proceedings in this matter.

10 There was little factual conflict arising from the evidence presented in this matter. There was detailed documentary evidence which recorded the applicant's engagements since March 2004. An examination of this uncontested evidence established that the applicant was engaged on a genuinely casual basis. During the period of the applicant's employment there were at least three separate months when he worked no shifts whatsoever. Conversely in March of 2006 the applicant worked twenty one shifts, the highest number in any month during his period of employment. 11 The uncontested evidence about the applicant's employment pattern also demonstrated that both the number of shifts actually worked in any month, and the number of shifts for which he reversed a previous indication of availability, varied considerably. For instance in April of 2006, the applicant worked eighteen shifts and did not reverse any previously indicated availability at all. That month can be contrasted with the month of March 2007 when the applicant worked only two shifts and rejected eighteen other shifts for which he had previously indicated availability. 12 There was further uncontested evidence about the circumstances that gave rise to the respondent's decision to no longer offer the applicant any further shifts. The decision to no longer offer the applicant any further shifts was made by Mr Malcolm Dean Bobridge, the respondent's Environmental and Security Services Manager. Mr Bobridge was one of two witnesses called to give evidence on behalf of the respondent. Mr Bobridge provided the following important evidence in answer to questions from the Commission: "Q. But when did you take the decision not to offer him any more shifts? A. On 1 January. Sorry, no, no, no, no. no. On 14 January, when I returned from annual leave and it was stated that he hadn't turned up after we'd confirmed he'd be there, I then at that time asked that an audit be conducted and I said to Mr Thomas then that I'm not offering any more shifts until I can find out what's going on here. And that was through Human Resources.

Q. This is a sort of strange Catch-22, isn't it? A. It is.

Q. You're not offering any more shifts. A. Yes.

Q. That's one issue. Then you say the letter can be sent once he's not worked for three months. So, in effect, you've stopped offering him shifts back in January and you wait the three months period before you send the letter and say, "Now I'm not offering you any more shifts", but in reality that decision was taken back in January. A. Yeah, the decision was taken by me on 14 January until I could find out how we could best deal with it and that was done by me through Human Resources. It's taken from 14 January to April for a decision to come back through the system but I was also told by Human Resources in March that after three months under normal practice you don't have to offer shifts anyway. That wasn't the incident we were looking at. We were looking at we hadn't given him any more shifts because of unreliability" Transcript of proceedings (11/08/08) @ pages 47-48.

13 The evidence provided by Mr Bobridge clearly establishes both the reason for the decision to no longer offer the applicant further engagements and the process by which that decision was ultimately communicated. Apart from being upset and aggrieved by both the basis for the decision and the manner in which it was communicated, the applicant provided no contrary evidence regarding these particular issues. 14 The applicant did however seek to introduce evidence from another person who was unavailable to attend proceedings for the purposes of cross-examination despite being required by the respondent. In these circumstances the applicant conceded that he could not endeavour to rely upon this additional evidence.

15 The applicant was self represented at the Hearing. The applicant made very brief submissions which asserted that he had been unfairly dismissed. The applicant submitted that he did not get a chance to defend himself nor was he given any counselling sessions regarding the issue of cancelling shifts which was said to have been the basis for his dismissal. 16 The applicant submitted that the absence of any prior indication of concern about the issue of cancelling shifts represented an unfairness. Further the applicant said that he had provided over four years of service and that it was unfair to have been dismissed by way of the letter of 4 April 2008.

THE CASE FOR THE RESPONDENT 17 The respondent was represented by Ms J Clark during the Hearing. Ms Clark made submissions which sought to rely upon the Decision in the matter of Ryde Eastwood Leagues Club v Taylor Ryde-Eastwood Leagues Club Limited v Taylor, Full Commission of Industrial Relations Commission of New South Wales, [Bauer and Hungerford JJ, Murphy CC], 56IR at 385. (Ryde Eastwood Leagues Club), and the Decision in the matter of Reid v Blue Line Cruises Limited Reed v Blue Line Cruises Limited, (1996), Industrial Relations Court of Australia, [Moore J], 73 IR 420. (Blue Line Cruises).

18 Ms Clark made submissions which sought to challenge the basis upon which the applicant's claim was established. Ms Clark submitted that the Decisions in the Ryde Eastwood Leagues Club and the Blue Line Cruises cases, could be used to establish the significant informality that was a predominant characteristic of the employment of the applicant. Ms Clark submitted that there was a mutual expectation that work may or may not continue, and that in such circumstances the respondent's decision to no longer provide any engagements should not be held to represent a dismissal. 19 Ms Clark also submitted that the irregular and unsystematic manner in which the applicant was engaged should mean that he would not be entitled to any remedy under the Industrial Relations Act. Ms Clark stressed that the very informal, casual work arrangements were established at the applicant's request and against the respondent's attempts in 2004 and 2005 to convert the casual arrangements to a permanent part-time employment. Ms Clark stressed that as it was the applicant and not the respondent, that insisted upon the casual engagement arrangements, the respondent's actions in no longer offering shifts to the applicant should not be held as an action for which any wrong doing might be visited upon the respondent. 20 Ms Clark made further submissions in which she argued that the applicant had not suffered any real economic loss as a result of not being offered any more shifts. Ms Clark drew the Commission's attention to evidence that the applicant had obtained full time employment in about December 2007. Ms Clark suggested that this full time employment would have severely impacted upon the applicant's availability for his work with the respondent. Therefore there would have been little economic loss caused by the respondent's decision, taken in about January 2008, to no longer offer the applicant any further engagements. 21 Ms Clark also submitted that there was evidence that the applicant had become an unreliable casual worker. Ms Clark submitted that the numerous incidents where the applicant had initially indicated his availability for work and subsequently advised that he could not attend, represented established misconduct which would justify the decision to no longer provide any further engagements. Ms Clark said that the decision not to offer any more shifts could not be construed to be unreasonable in light of the applicant's poor record regarding rejection of work offered on shifts for which he had initially indicated availability. 22 Ms Clark made a further alternative submission which indicated that if the Commission did find that the applicant had been dismissed and that such dismissal might satisfy the statutory criteria, there should be only limited compensation provided. Ms Clark submitted that any Order for compensation should reflect the limited number of engagements that the applicant had worked. Ms Clark submitted that an Order of compensation amounting to the equivalent of one week's remuneration in lieu of notice might represent appropriate compensation if the Commission found that the applicant had been unfairly dismissed.

CONSIDERATION 23 The first issue for consideration involves the respondent's submission that the applicant was exempt from access to the unfair dismissal provisions of the Act. Ms Clark who appeared for the respondent, referred to section 83(2) of the Act and the exemptions provided therein. Ms Clark stressed the evidence of the very informal manner in which engagement of the applicant occurred. It was submitted that engagement on this basis, involving a high degree of informality, would deprive the applicant of access to the unfair dismissal provisions of the Act. 24 The evidence provided clear basis for establishing that the applicant's employment was truly engagement on a casual basis. The actual pattern of employment as set out in attachment CT8 to Exhibit 3, provided clear evidence of employment that fluctuated significantly in terms of the number of engagements per month. On at least three months there was no engagements at all, and on one month a maximum number of engagements of twenty one. Further, evidence of the way in which the applicant provided an early indication of potential availability which could then subsequently be reversed, established a further aspect of significant informality regarding the applicant's employment. 25 Consequently both the manner in which any particular engagement might ultimately be fixed, together with the monthly fluctuations of actual engagements worked, compels a finding that the applicant was engaged on a casual basis. Further, the casual basis of engagement of the applicant with the respondent was neither regular nor systematic. 26 Although the applicant was what is sometimes described as a "true casual" and that his employment displayed no regular or systematic basis, he would not be exempt from access to the unfair dismissal provisions of the Act. 27 Section 83(2)(c) of the Act exempts access to unfair dismissal provisions for employees engaged on a casual basis for a short period. The applicant's irregular and unsystematic casual employment extended for a period of about four years. Therefore the significant informality of the applicant's casual employment would not exempt him from access to the unfair dismissal provisions of the Act because he had been engaged over a period of about four years. Support for this approach to consideration of the operation of section 83(2)(c) of the Act can be found in the Decision of a Full Bench of this Commission in the matter of Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta Shop Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta, [2001] NSWIRComm 46, Full Commission of Industrial Relations Commission of NSW, [Walton VP Hungerford J & Patterson C.] (Librus), the following extract from paragraph 28 of the Decision in Librus is relevant: "The essential enquiry, however, is whether the casual employee has been engaged for a short period - if not, then the specified conditions do not have to be considered as the employee concerned is not exempted from bringing a valid claim." 28 The applicant therefore has a valid claim for Determination. The second issue requiring consideration logically involves the alleged unfairness attached to the applicant's dismissal. 29 The decision to dismiss the applicant was taken by Mr Bobridge on or about 14 January 2008, when he returned from annual leave. The applicant was not told of this decision until about 4 April 2008. This delay in part occurred by deliberate action which sought to deprive the applicant of any engagements for an extended period such that this absence of engagement might assist to validate or justify the dismissal. 30 Further, the evidence established that in addition to the applicant not being advised of the decision to dismiss, the decision was taken without providing the applicant any opportunity to be heard regarding the underlining concern about the level of instances where the applicant rejected offers of engagement. This aspect of the matter represented the applicant's primary objection. The applicant repeatedly asserted that had he been advised that his level of unavailability was providing concern to the respondent, he would have either taken action to remedy that matter or address the concerns in some other fashion. 31 A dismissal that is implemented in the manner adopted by Mr Bobridge would, prima facie, offend sub-sections 88(b) and (c) of the Act. Although the reason for the applicant's dismissal had a basis in fact, the applicant was never given an opportunity to make out a defence or provide explanation in respect of the level of unavailability that had been identified by the respondent. In addition the applicant was never given any warning that the level of his unavailability was unsatisfactory such that the respondent might contemplate dismissal. 32 Therefore the dismissal of the applicant would clearly offend at least two of the provisions of section 88 of the Act. Sub-section 88(f) of the Act also permits the Commission to consider other relevant matters not specifically mentioned within section 88. 33 An important countervailing issue involved the highly informal arrangements for engagement of the applicant which he had insisted upon. The applicant had twice rejected conversion of his casual employment to permanent part-time employment. It was the applicant rather than the respondent that insisted upon the very informal engagement arrangements. 34 In the circumstances, the employer may not have needed to particularise the reason for no longer providing offers of shifts, and might have simply sought to rely upon the "true casual" nature of the arrangements that the applicant had insisted upon. If and when the applicant then challenged the respondent about an extended period when there had been no offer of shifts, the respondent may simply have resorted to its previous identification that the applicant clearly wanted to have truly casual arrangements for his engagement such that there would be no on-going guarantee that any engagements might be provided. 35 These hypothetical circumstances did not eventuate and the respondent clearly provided the applicant with the reason for dismissal by way of correspondence of 4 April 2008. 36 Despite the highly informal arrangements for engagement of the applicant, including that it was the applicant rather than the respondent that sought such arrangements, the basis upon which the decision to dismiss the applicant was taken offends the notion of natural justice and therefore the dismissal of the applicant was unreasonable and unjust. 37 One further matter requiring consideration introduces certain unfortunate complexity with the employment of the applicant. The Commission was advised that the applicant's employment was governed by two particular Industrial Instruments. As an uncontested proposition the Commission was advised that the applicant's employment was governed by the Health Industry Status of Employment (State) Award, (the Status of Employment Award) and the Health Employees Conditions of Employment (State) Award, (the Conditions of Employment Award). Copies of these two Awards were provided to the Commission during the proceedings. Unfortunately there was no detailed argument about the operation of the Industrial Instruments as it might impact upon the applicant's employment. Two particular issues have significant potential impact upon the applicant's employment and his dismissal. 38 Firstly, Clause 20 Termination of Employment contained in the Conditions of Employment Award provides that one week's notice of termination or payment of one week's salary in lieu thereof would be required for the termination of employment of the applicant. The provisions of Clause 20 of this Award do not make any distinction for the termination of a casual employee. This unusual absence of reference to some different treatment for the termination of employment of a casual employee as opposed to any other employee, would likely establish that the applicant's dismissal was implemented contrary to the provisions of Clause 20 of the Conditions of Employment Award. 39 A second issue regarding the applicant's employment arises by way of the apparent application of the Status of Employment Award. The definitions contained within Clause 1 of the Status of Employment Award would likely establish that the applicant was properly categorised as an exempt employee as identified in Clause 1.6. 40 The Status of Employment Award further states that exempt employees do not attract casual or temporary pay loadings. Curiously, Clause 5 of the Status of Employment Award contains two sub-clauses number 6.1 and 6.2 which operate to establish that the Status of Employment Award prevails over the Conditions of Employment Award to the extent of any inconsistencies. The corollary of the application of the respective provisions in both the Status of Employment Award and the Conditions of Employment Award would likely lead to a finding that the applicant's engagement as a casual employee was unavailable. Instead he may be correctly held to have been engaged as an exempt employee as defined in Clause 1.6 of the Status of Employment Award. 41 The operation of the relevant Industrial Instruments would prevail over the arrangements that the applicant and the respondent sought to make in respect of the on-going casual employment which was something that occurred at the applicant's insistence. In simple terms, it would seem that the manner in which the applicant had been engaged could not be permitted under the provisions of the relevant Industrial Instruments. The respondent had acquiesced to the applicant's insistence upon remaining as a casual employee. However the Industrial Instruments would not permit such an arrangement. 42 The issues arising from the apparent application of the relevant Industrial Instruments give rise to clear concern regarding any potential remedy for reinstatement of the applicant. It would be highly undesirable and more likely invalid, if the Commission reinstated the applicant to a position that was not permitted by the relevant Industrial Instruments. The obvious alternative of re-employment immediately arises. However there was little or no evidence provided about the availability of other positions or, for that matter, the desirability of the applicant to be re-employed in arrangements which he had previously firmly rejected. 43 Further concerns regarding appropriate remedy arise from evidence that the applicant obtained alternative full time employment and that the employment with the respondent was of a secondary nature at least during the latter part of his period of employment. In addition, the applicant provided no evidence of attempts to find alternative employment and/or the remuneration received in alternative employment. Consequently a variety of issues impact upon the availability of any appropriate remedy for the applicant's unfair dismissal.

CONCLUSIONS 44 The applicant was engaged as a casual Security Officer for a period of about four years. An analysis of the actual circumstances of the employment confirms that the applicant was engaged on a casual basis for a period of about four years. The four year period would not satisfy the notion of a short period as specified by section 83(2)(c) of the Act and therefore the applicant has valid claim in this matter. 45 The circumstances surrounding the applicant's dismissal provide a clear breach of matters particularised in section 88 of the Act. Despite the very informal, casual nature of employment the applicant was dismissed in a manner that satisfies the provisions of section 84(1) of the Act. The dismissal of the applicant was unreasonable and unjust. 46 The applicant's dismissal was implemented in contravention of the relevant Industrial Instrument, that being Clause 20 of the Conditions of Employment Award. The applicant was entitled pursuant to the provisions of this Award to be given one week's notice or one week's salary payment in lieu thereof. 47 Additionally the employment arrangements that applied to the applicant whereby he was considered and paid as a casual employee over an extended period of about four years is an employment arrangement that is not permitted under the relevant Industrial Instrument that being the Status of Employment Award. Therefore the Commission is not disposed to providing for re-instatement to a position that would contravene the relevant Industrial Instrument. 48 In these circumstances and having regard for overriding considerations of equity and good conscience, the Commission is prepared to provide for remedy for the applicant's unfair dismissal by way of compensation. Reinstatement or re-employment of the applicant would be impracticable. Therefore the Commission is prepared to provide for Relief by way of monetary compensation. The amount of compensation has been determined with regard for sections 89(5) and 89(6) of the Act.

1. The Commission Orders, pursuant to sections 89(5) and 89(6) of the Act, that the respondent pay to the applicant an amount of compensation of $1,050.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. 2. The amount of compensation specified in Order 1 above is to be paid by the respondent to the applicant within twenty one days from today 22 October 2008. oooOOOooo

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