Dec 155/00 D Print S3279
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application to the Commission re: termination of employment
R.T. Hayes & A.S.U.
and
Employee Assistance Service NT Incorporated
(U No. 80002 of 2000)
COMMISSIONER EAMES DARWIN, 16 FEBRUARY 2000
Jurisdictional grounds.
DECISION
[1] This matter follows an application made pursuant to s.170CE(1) of the Workplace Relations Act 1996 (the Act) by Ms R.T. Hayes (the Applicant), where she sought relief in respect of her alleged termination of employment by Employee Assistance Service NT Incorporated (the Respondent) on 31 December 1999.
[2] The Respondent in response indicated on its Form R21, that they objected to the Commission hearing the application on jurisdictional grounds, as the Applicant was employed on a fixed term contract.
[3] The jurisdictional objection was heard by the Commission on 7 February 2000, in Darwin.
[4] Mr Alderson of the Northern Territory Chamber of Commerce and Industry Incorporated (NTCCI) who appeared for the Respondent, tendered an
exhibit A1, which contained a summary of the Applicants employment history with the Respondent.
[5] Save for four (4) references to "days not employed by the Respondent", the Applicant agreed to the dates and other references in the exhibit. Her contention was that she was employed continuously throughout the employment period.
[6] Mr Alderson contended that the dates of 18 January 1999, when the Applicant commenced employment, up to 31 December 1999 was the period where the Applicant worked in a full-time position on a fixed term contract. The employment finished on 31 December 1999.
[7] Exhibit A2 was an offer of employment given to the Applicant dated 11 December 1998 which contained the following, under the heading - Commencement:
"The commencement date of your employment will be Monday 18 January 1999. This contract is effective from that date and will continue until Friday 31 December 1999."
[8] Mr Alderson indicated that the offer was made, and whilst the document of offer was not signed by the Applicant, she did work for the period, under the terms and conditions of employment set out in the exhibit.
[9] He also pointed out, that the exhibit A2 did not contain a clause covering termination, and no reference is made to any Federal or State Award, including the Social and Community Services Industry - Community Services Workers - Northern Territory Award 1996 [S1100CRN] (the Award).
[10] It was Mr Alderson's primary contention, that even though the Applicant did not sign the contract (exhibit A2), by effectively commencing work as per the contract, and working out the timeframe of the contract, she had effectively, accepted the contract.
[11] Mr Alderson took the Commission to a number of decisions which he submitted were relevant to this matter. The following quote was taken from the CCH Electronic Industrial Law Library following a search related to fixed term employees:
It has been held in the context of the federal unlawful termination provision that a person seeking to argue that a contract of employment is a fixed term contract would need to show that the contract contains no term allowing termination on the giving of reasonable notice and show that the contract specifies a precise term in which it is to run.
[12] Mr Alderson then tendered copies, or extracts, from a number of decisions which demonstrated the above view, the significant ones being in my view:
Anderson v Umbakumba Community Council
121 ALR 121, von Doussa J.
Cooper v Darwin Rugby League Inc. (1994)
57 IR 238, Northrop J.
Byrne v Australian Airlines Ltd (1995)
61 IR 32
[13] Mr Alderson called Ms K Laing the Finance Manager for the Respondent to give evidence, the significant aspect being, that on the instructions of the manager in charge, at the time of the development of exhibit A2, the contract, she typed up the terms of the contract.
[14] Dr C.J. Murphy the current General Manager for the Respondent was also called to give evidence, which inter alia was:
· In a telephone conversation with the previous manager who had offered the contract to the Applicant, it was confirmed by Mr Shakespeare, the previous manager, that he had offered the Applicant a fixed term contract, to expire on 31 December 1999.
· In conversations with the Applicant in April and again in September 1999, Dr Murphy was made aware of concerns the Applicant had with the contract, including remuneration, and a request that the contract be extended to 18 January 2000, to reflect a 12 month contract.
· The above concerns were put in writing around October/November 1999, but the Applicant was told the contract would end as stipulated on 31 December 1999.
· The Applicant was employed as a counselor/psychologist, who provided counseling services for people within the workforce at the Respondent's Darwin office to fill the shortfall in counseling for 1999.
· Due to funding cuts, and Mr Shakespeare leaving the Respondent at the end of 1998, together with Dr Murphy's role not commencing until April 1999, the Applicant was employed for a fixed time, to allow the new manager (Dr Murphy) time to make decisions on future or continuing employment, based on expected funding cuts.
[15] Mr Alderson concluded his submissions by indicating the application should be dismissed on jurisdictional grounds as outlined above and because the Applicant's employment was not terminated at the initiative of the employer, but rather, simply because the contracts term had expired.
[16] Mr Matarazzo of the Australian Municipal, Administrative, Clerical and Services Union (the Union) who appeared for the Applicant submitted that the Commission had to read the relevant letters of appointment, in conjunction with the Act and the Award.
[17] Ms Hayes, the Applicant gave evidence on her own behalf, the significant aspects being, inter alia;
· Exhibits M4 -M7 were given to her during the course of her employment with the Respondent, with the salary component being based on the first increment of the P2 scale of the NT Public Service Award.
· In a conversation with the previous manager, Mr Shakespeare, he had indicated he wanted to keep the Applicant on, full-time, however, as her relatives were coming out from England she wanted unpaid leave between 31 December 1998 and 18 January 1999. Mr Shakespeare agreed to that request.
· The Applicant did not sign the contract (exhibit A2) primarily because the salary did not compare favorably with the NT Public Service conditions of service P2 level. She understood this would be sorted out with the new manager who took up office in April 1999.
· At no stage did the Applicant resign her position.
· When told by Dr Murphy that she was not employed under the terms and conditions attached to the NT Public Service, she informed Dr Murphy that she assumed she was covered by the Award, which was the safety net for all service and community agencies.
[18] Mr Matarazzo submitted that when one looks at exhibits A2, the alleged contract, and M8, the correspondence of 25 August 1999 confirming the detail of A2, they do not reflect the verbal offer made by Mr Shakespeare to the Applicant, and as a result, it was the Applicant's evidence, she did not sign them.
[19] By not signing the two documents, she was confirming her understanding that she was a weekly engaged employee. The Respondent is a named Respondent to the Award, and the Applicant's employment fits within the definition in the Award at clause 1.3.3(b) which reads:
1.3.3 Social and Community Services Industry means work designed to aid individuals, groups or communities to attain satisfying standards of life and health through activities that improve personal and social relationships and includes the following:
(b) Supportive and or crisis counseling;
[20] If one looks at community worker grade 4 in the Award one finds what Mr Matarazzo submits, is the safety net classification descriptors, for the Applicant. Exhibit A2 simply establishes the Applicant's duties, and leaves open whether she is required to continue working after 31 December 1999. After 11 December 1998, she simply took some time off, and assumed she would continue in employment, based on her discussions with Mr Shakespeare, which she recommenced on 18 January 1999. From October 1998, the Applicant became a weekly engaged employee.
[21] Mr Matarazzo submitted that the Respondent guaranteed employment from 18 January 1999 until 31 December 1999, was to make another assessment at that time, taking into account funding, and if the Applicant was to be terminated, as a weekly engaged employee would be entitled to a redundancy payment. This did not occur. Her employment exceeds 52 weeks referred to in the Award, and the entitlement arises.
[22] It was submitted that when one refers to clause 4.1.16.7 of the Award, which reads:
4.1.16.7 The employer and a fixed term employee may agree to the duration of the period of employment being extended once only. In such a case, the employee shall be employed as a full-time or part-time employee under the terms of this Award.
And one looks at the period from September 1998, the Applicants hours were extended in October 1998, and again in December 1998, it is submitted that she became a weekly engaged employee.
Conclusion
[23] The jurisdictional objection taken in this matter is that the Applicant was employed on a fixed term contract.
[24] Section 170CC(1)(a) reads as follows:
170CC(1) [Specified classes of employees] The regulations may exclude from the operation of specified provisions of this Division 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 specified task;
[25] Regulation 30B(1)(a) reads as follows:
30B(1) [Excluded employees] For subsection 170CC(1) 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;
[26] Exhibit A2, the contract of employment offered to the Applicant, on or about 11 December 1998, if signed by her, would clearly have been a bona fide contract, in my view. Mr Matarazzo also acknowledged that situation, but indicated it was not signed, and accordingly had no standing, and was not in place.
[27] Mr Matarazzo argues that from September 1998 until her termination on 31 December 1999, the Applicant was employed, not under the terms of successive contracts, but as a weekly engaged employee, subject to the terms and conditions of the Award.
[28] I do not accept that submission.
[29] I am of the view, that if the conduct of the parties during the period of employment, indicates that they followed the terms of the unsigned written contract, then the terms of the oral contract of employment between them, are those of the unsigned contract.
[30] Based on the evidence of Dr Murphy, it is also a situation that reflects the custom and practice adopted by her as manager, and that the terms may be regarded as a "standard" contract.
[31] The Applicant did give reasons in her evidence for not signing the contract, however it seems to me, that the acceptance of the terms were established by her later conduct, in accepting her salary and conditions of employment, and performing her duties, as set out in the contract.
[32] There is a universal acceptance, in my view, that a contract of employment can be oral.
[33] In this case, there was clearly an unwritten contract based on what was established by the parties conduct during the period of employment. It is true, that some of the terms of the unsigned contract were at issue, from the Applicant's point of view, but as the parties did not execute an alternative written contract, then by default they accepted the terms of the written document, even though that was not necessarily both parties intention at the beginning.
[34] The general test for implying terms into contracts was addressed in the matter of Hawkins v Clayton (1998) 164 CLR 539 at 573, where His Honour Justice Deane states:
"The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case.
That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties."
[35] In the matter of Ashley v Grenaid Pty Ltd CLS 1997 IRCA 109, Farrell J.R. stated at page 10 of his decision:
"Contrary to Mary Ashley's understanding, there is no reason, in principle, why an employment relationship cannot be established under an oral contract of employment. Certainly, once the relationship is established, obligations arise to make arrangements for taxation, superannuation and other matters. However, a failure to comply with those obligations does not necessarily mean that no employment relationship existed."
[36] The facts in the above case are quite different to those in the matter before me and the references to taxation etc, are not all that pertinent, however the statement was made in the context of one of the parties apparently asserting that if there was no written contract, there was no contract at all.
[37] I agree with the judicial registrar's views, and adopt them.
[38] With regard to Mr Alderson's submissions regarding the relevance of Byrne v Australian Airlines, I accept his submission that that decision clearly stands for the proposition that the terms of an award are not implied into a contract of employment.
[39] With regard to his submission regarding Andersen v Umbakumba Community Council and Cooper v Darwin Rugby League Inc, I cite the words of von Doussa J in the former, and Northrop J in the latter as follows:
According to the case law, a `specified period of time' is a period of time that has certainty about it. The time of commencement and the time of completion will be unambiguously identified by a term of the contract, either by the contract stating definite dates or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment (per von Doussa J)
Where both parties have rights to terminate the contract of employment which are not conditioned upon a breach of any term of the contract, then the period of the contract is indeterminate and thus not for a specified period of time. The cessation date merely records the outer limit of a period beyond which the contract of employment will not run (per Northrop J)
[40] With respect, I believe both of these passages have application in the matter before me, and I adopt them.
[41] For all of the above reasons, I have come to the view that the Applicant was employed on a fixed term contract at the time her services were terminated, and in accordance with s.170CC(1)(a) and reg. 30B(1)(a) the application is excluded from the operation of subdivisions B, C, D, E and F of Division 3 of Part VIA of the Act.
[42] The application will be struck out.
ORDER
[43] That the application be struck out.
BY THE COMMISSION:
COMMISSIONER
Appearances:
R.T. Hayes the applicant with L. Matarazzo for the Australian Municipal, Administrative, Clerical and Services Union.
Dr C.J. Murphy the respondent with D. Alderson and B. Leish from the Northern Territory Chamber of Commerce and Industry Incorporated.
Hearing details:
2000.
Darwin:
February 7.
Decision Summary
Termination of employment - unfair dismissal - fixed term contract - while applicant did not sign a fixed term contract, respondent argued that performance according to its terms indicated acceptance - no provision allowing termination by giving of notice - held that there was an oral contract in the same terms as the unsigned written contract as evidenced by subsequent conduct - argument rejected that award governed employment - terms of an award are not implied into a contract of employment (Byrne v Frew) - Anderson v Umbakumba Community and Cooper v Darwin Rugby League Inc relied upon - application dismissed. | ||||
Hayes & AMACSU v Employee Assistance Service NT Incorporated | ||||
U No 80002 of 2000 |
Print S3279 | |||
Eames C |
Darwin |
16 February 2000 | ||
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