AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act, 1996

s.170CE Application for relief re termination of employment

Jodie Louise Wheeler

and

Jabiru Town Council

(U No. 2002/2780)

DEPUTY PRESIDENT LEARY

HOBART, 14 NOVEMBER 2002

DECISION

[1] This is an application by Jodie Louise Wheeler (the applicant) pursuant to s.170CE of the Workplace Relations Act, 1996 (the Act), alleging that her termination of employment by the Jabiru Town Council (the respondent) was harsh, unjust or unreasonable (s.170CE(a)), that the respondent failed to notify the CES of a proposed redundancy (s.170CL) and that the respondent failed to give statutory notice of the termination (s.170CM).

[2] The applicant had been employed by the respondent from 4 December, 2000, to termination on 1 July, 2002. The respondent sought the application be dismissed for want of jurisdiction before being referred to conciliation claiming that the applicant was a temporary employee engaged for a specific period of time.

[3] Directions were issued for the parties to provide outlines of submissions and any witness statements on which they may rely. The parties complied with the directions.

[4] The applicant commenced employment with the respondent in the capacity of a casual finance and administration office on 4 December, 2000. The position was for a period of three months after which time the respondent would assess the employment status. The applicant was paid at the casual rate of pay as prescribed in the Jabiru Town Council Enterprise Bargaining Agreement 1997 (the 1997 EBA).

[5] A letter tendered by the applicant and dated 19 March, 2001, advised of her appointment to full time employment as the human resource officer, that appointment was to commence 15 March, 2001, and entitlements would be as prescribed in the Jabiru Town Council Enterprise Bargaining Agreement 2000 (the 2000 EBA). The safety net awards for both EBAs, where relevant, are the Municipal Officers (Jabiru Town Council Officers) Interim Award 1987 (the 1987 award) and the Municipal Officers (Northern Territory) Award, 1993 (the 1993 award).

[6] The letter dated 19 March, 2001, is disputed by the respondent, it is unsigned by either the author or the applicant.

[7] The applicant testified that she had removed a copy of the letter from the respondent's computer H drive but claims that the original and signed copy have been mislaid or lost.

[8] Sworn evidence was presented by:

The applicant;

Mr Dennis Cryer, Town Services Manager for the respondent;

Mr John Banks, Chief Executive Office for the respondent from 4 March, 2002 to 3 June, 2002;

Ms Leanne Tarlington, Senior Finance Officer for the respondent;

Mr Alan Buckingham, deputy Chief Executive Officer since 29 January, 2001, for the respondent.

[9] The respondent claimed that the position held by the applicant was for a fixed period of time and was subject to funding. It was argued that there was no permanent position of human resource officer and that without the position having been approved by proper council process it would be illegal.

[10] The respondent discussed the process required for the making of a permanent position which is found at s.29A of the Jabiru Town Development Act (JTDA). It requires that:

"(1) The [Jabiru Town Development] Authority shall determine-

(a) the number and classification of staff which may be employed by the Council; and

(b) the terms and conditions upon which the Council may employ staff.

(2) The Council may employ staff only in accordance with a determination under subsection (1)."

[11] Much reliance is placed by the respondent on the claim that the position is a funded position and is subject to the requirements of Council in respect to permanent employment. It was submitted by the respondent that the applicant had sought an extension of the time period for the position but this request was rejected by Council.

[12] The applicant relied on the letter dated 19 March, 2001, which purports to be the letter of offer from the respondent for the position of human resource officer. As noted previously that letter is signed by neither the applicant nor the respondent and has been obtained under questionable circumstances, according to the respondent.

[13] In addition the applicant provided a further document signed by both the applicant and the respondent which declared that the applicant had read and agreed with the human resource officer job description. This document was dated 6 April, 2001, a date after the purported letter of offer which was dated 19 March, 2001, and referred to a commencement date of 15 March, 2001.

[14] It was the sworn evidence of the applicant that she was "....aware that at the time when the position was created that it was to be initially funded by the special purpose grant and at the end of the funding the position would then be funded between the two Councils. And that was what I was informed would happen by Tony Tapsell." [PN 306]

[15] Further the applicant submitted that in February, 2002, a request for annual leave was made and approved by the acting CEO for the period 24 June, 2002, to 19 July, 2002. To approve leave for the dates sought is well after the claimed twelve month duration of the position would have expired, the applicant having commenced in the position in March, 2001.

[16] It was whilst on her approved annual leave that the applicant's services were terminated.

[17] It was claimed by the respondent that the applicant was well aware of the temporary nature of the position and that once the funding had been exhausted the position would no longer exist. The respondent justified the approval of annual leave as being in the event that an extension could have been granted, however the respondent also claimed that the grant which funded the position was a one off and was unlikely to continue.

[18] Mr Buckingham, representing the respondent, was adamant that the applicant was aware of the term nature of her position and that she had discussed that with him on a number of occasions however he had no documentation which would support his submission.

[19] He submitted that the reason the termination was effected on 1 July, 2002, was due to him being appointed as acting CEO on 4 June, 2002, and the anomaly of the applicant's position having been drawn to his attention. He then took the appropriate action in terminating the position being satisfied that there would be no further funding for the position and no authority for it to continue.

[20] Further he claimed that the applicant, being aware that her position was for a fixed term, should have made the necessary arrangements to terminate her own employment at the appropriate time.

[21] It was conceded by the respondent that "...the fact is that there appeared to just be some sort of ongoing employment according to the files and that the position had not been properly handled." [PN 101]

[22] The respondent placed much reliance on a confidential council minute of 18 February, 2000, which was claimed to have clarified the position that the applicant's position was a fixed term position subject to funding.

[23] The Business paper - Confidential Business: Confidential Business Pending states:

"With the human resource proposal staff proposes that Council employs a human resource manager for a period of 12 months to assist in bringing both Council's human resource issues up to date, namely training plans, occupational health and safety, Australian Workplace agreements, this Council's enterprise agreement, performance appraisals, review of job descriptions etc."

and further

"The reason for the 12 month funding proposal is that staff consider the Government will not provide on-going funding, rather it is likely to consider `one-off' grants. The period will also give both Councils the opportunity to determine if the position should become a full time position in the future.

If Council supports the thrust of these initiatives a submission will be prepared for the Chairman to sign to the Minister for Local Government."

[24] Council approved "a submission being sent to the Minister for Local Government seeking funds for information systems and a human resource manager."

[25] It was the evidence of Mr Cryer that in February, 2002, he was discussing with Mr Buckingham some of the matters raised at the previous night's council meeting when the applicant approached and said "how did my thing go at the meeting last night" to which Mr Buckingham replied "I've got some bad news for you but I'll talk to you in a minute". Mr Cryer testified that the applicant responded "Oh Christ" or something like that. [PN 117]

[26] The discussion about the council meeting was said to be related to the applicant seeking that a request be made to council for the human resources position to be made a permanent position.

[27] Mr Cryer's evidence could perhaps support the submission of the respondent that the applicant was aware that her position was for a fixed term and subject to funding however it contradicts the documentation provided by the applicant and her sworn evidence as to her understanding of the position and the relevance of the funding. It also ignores the requirements of the award.

[28] Mr Banks testified that it was his understanding that the applicant, who had been involved in his recruitment, was the human resource officer. Further he testified that when formulating the budget for 2002/2003 he asked Mr Buckingham whether all current positions, including the human resource officer position, would be accounted for in the budget for 2002/2003. He said that he was advised that all positions were to be included, in fact he said he recalled specifically referring to the applicant's position as he was aware there was some issue about whether it would continue or not. [PN 144]

[29] Even after advice in May, 2002, that there would be a requirement to make up a $50,000.00 deficit in the original draft budget when the Warruwi council decided not to join or seek accounting services from the respondent, it was the view of Mr Banks that the applicant's position would not be made redundant. He said his position "would have been to review Council's overall expenditure to identify priorities. Wouldn't necessarily mean that it would be related to a position. I might look at capital works programs or other spending within the council not necessarily isolate one position." [PN 171]

[30] The human resource officer position, according to Mr Banks, was a permanent position as he understood it and was going to be ratified at a later date through the JTDA. He said there had been no decision to terminate the applicant's position during his period of employment.

[31] Mr Banks testified that it was his understanding, and as far as he was aware the understanding of the applicant, that the position was funded for a fixed term but that the position was ongoing. [PN 182]

[32] The relevant awards and EBAs provide for employment as full time employees, part time employees, casual employees and project employment employees. The respondent claims that the applicant would have been a project employee however the ASU, on behalf of the applicant, claimed that the requirements for project employment were not met by the respondent at the time of engagement.

[33] When looking for a definition of project employment the 2000 EBA makes reference to the 1993 award which prescribes (where relevant):

"Project Employment

(a) Project employment occurs when an employee is employed on the basis of a limited term of employment to carry out duties for a specific project.

Limitations to the terms of employment may result from the following:

(i) limited funds allocated to a project and where an officer with required qualifications and skills is not employed by a respondent, or not available to carry out that project work ; or

(ii) limited work to be carried out and where an officer with required skills and qualifications is not employed by a respondent or not available to carry out that project work.

(b) Upon appointing an employee on a project, a respondent shall notify the respondent unions as to:

(i) the nature of the project;

(ii) the expected duration of the project.

(c) Should a respondent desire to employ on project employment an employee other than that described by subclause (a) of this clause then they may do so only with the prior agreement of the ASU or the APESMA as the case may be.

(f) In respect to employees employed on projects the provisions of part G, clause 3 - Termination of Employment, and part G, clause 2 - Redundancy, shall not apply.

(g) An employee on project employment is not a permanent officer."

[34] The ASU referred to a number of decisions of both this Commission and the Federal Court which considered fixed contracts of employment which, in general terms, supported the view that employment for a specified period of time should have certainty as to the date of commencement and the date of completion. [PN 202] The relevant award prescribes the process for engagement of a project employee.

[35] It was the evidence of Ms Tarlington, who was responsible for the respondent's payroll, that the applicant requested her annual leave to be paid as if she were at work rather than in a lump sum. Ms Tarlington also testified that the first she knew of the applicant being terminated was at a staff meeting, such advice being followed up by an e-mail, on 1 July, 2002.

[36] The applicant testified that sometime in February, 2002, she had seen her letter of offer and acceptance for the human resource officer position in her personnel file in the respondent's offices however that document now seemed to be missing. The applicant also claimed to have "searched the house high and low and I cannot find it. I'm also surprised that it is not on my personnel file." She claimed that the copy to which she referred to as missing was signed by both Mr Tony Tapsell, the then CEO, and herself. [PN 252]

[37] The applicant testified that almost all of the tasks found in the position description were ongoing tasks and functions without any finishing date. [PN 261]

[38] In respect to her termination it was the evidence of the applicant that on 1 July, 2002, when she was on approved leave in NSW, she received a telephone call from Mr Buckingham to inform her that no more funding existed for her position so her employment was terminated. She testified that she responded by claiming she had been made redundant and asked Mr Buckingham to call her back and advise her of her entitlements. [PN 262]

[39] The human resource position was advertised in the Jabiru Rag on 29 March, 2001, with applications closing on 4 April, 2001. The applicant was appointed to the position, according to the disputed letter of offer and acceptance, on 15 March, 2001. It was her evidence that at the request of the then CEO she had closed the applications prior to the closing date and no recruitment process had been undertaken. [PN 288] It was her understanding that the advertisement was placed in the Jabiru Rag as a formality only. [PN 289]

[40] The respondent challenged the right of the applicant to hold the position from which she was terminated on the basis that she did not satisfy the criteria at the time of her appointment. That may well be so but it is of little relevance to the matter the Commission is required to determine. Even if the allegation is correct, and I do not think that it is, it is possibly the responsibility of the person making the appointment rather than a challenge to the applicant. [PN 388]

[41] The respondent also challenged the change of title from human resource officer to human resource manager. The applicant testified that the change was made with the authority of Mr Tapsell. I am of the view that the issue is irrelevant to the matter for determination.

Conclusion:

[42] Mr Tony Tapsell is the person who would have provided answers to many of the questions raised by each of the parties but he was not called to give evidence. No application was made for him to be summonsed and the ASU submitted that it did ask him whether he would be a witness and provide evidence but, it was submitted, he preferred not to do so.

[43] The respondent, it would seem, did not approach Mr Tapsell.

[44] To consider the claim by the respondent that the position held by the applicant was a temporary/fixed term position the evidence of Mr Tapsell would have been fundamental, he offered her the position and made the appointment. He also drew up the advertisement for the Jabiru Rag which, I note, makes no reference to a fixed term appointment. It is his signature on the position description and his name is found at the bottom of the unsigned letter of offer. He was the CEO at the time and had the authority to make such appointments.

[45] The respondent appears to ask that the Commission conclude that the applicant is a manipulative and dishonest person who has lied about her understanding of the position she held to seek benefits to which she has no entitlement and has relied on the absence of any evidence from Mr Tapsell to pursue and support her claim. The evidence would not support such a conclusion.

[46] In the absence of any evidence to support the respondent's claims I can only conclude that the applicant was employed as a permanent and full time employee and was not employed in any other capacity.

[47] The tendered, but unsigned, letter of offer made no mention of the position being temporary or reliant on funding.

[48] The job description made no reference to it being a temporary or term restricted position and detailed only the criteria required and the functions to be performed for the position.

[49] The job description, which did not appear to be challenged, does not describe the position as project, part time or casual. In fact the job description talks about key responsibilities for the applicant being to annually compile certain reports in respect to staff appraisal and training and to monitor revenue and expenditure to assist in the formulation of the annual budget. Unusual key responsibilities for a project position which, it was claimed by the respondent, was for twelve months duration only.

[50] If the applicant had been engaged in a project position the award, (by reference in the 2000 EBA), prescribes certain steps to be undertaken prior to any position being established, those steps were not undertaken.

[51] Other than reliance on the confidential council minute dated 18 February, 2000, the respondent is not able to support the claim that the applicant was appointed to a term position and that she was aware that the position had a limited duration.

[52] The minutes arising from the Council meeting on 21 February, 2000 state:

"The Executive Officer said that the service agreement had run for one year and that human resources issues were a large impact on operations due to the high staff turnover. Mike Press advised that the special purpose grant to Council would be considered once a detailed application had been received."

[53] The above provides little guidance as to whether or not the applicant was aware that her position was anything other than a permanent full time position.

[54] It may well have been the intention of the respondent that the position be a fixed term position subject to funding however the appointment was not made in those terms according to the evidence and the documentation tendered. In the absence of evidence from Mr Tapsell, who offered the position and made the appointment, the Commission can only rely on the evidence and any exhibits provided.

[55] I reject the claim by the respondent that the applicant is denied access to the Commission's jurisdiction as her position was a fixed term position.

[56] The file will now be referred for conciliation.

BY THE COMMISSION

DEPUTY PRESIDENT

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