Young, Bronwyn Helen v Hanslow, Brett [1997] FCA 1334

FEDERAL COURT OF AUSTRALIA

Industrial Law - Termination of Employment - casual employment - reasonable expectation of continuing employment - valid reason - if no valid reason in circumstances not appropriate to order compensation - re employment - second period of employment not ended at the initiative of the employer. Mahnken v Saunders Logging Proprietary Limited (1994) 57 IR 237 Johns v Gunns Limited (1995) 60 IR 258 Slifka v J W Sanders Proprietary Limited (1995) 67 IR 316 Mohazab and Dick Smith Electronics (No 2) (1995) 62 IR 200 BRONWYN HELEN YOUNG v BRETT HANSLOW TI-1044 AND TI-1045 OF 1996 Judicial Registrar Ryan Hobart 21 November 1997

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY TI-1044 AND TI-1045 of 1996

BETWEEN: BRONWYN HELEN YOUNG

Applicant

AND: bRETT HANSLOW

Respondent

JUDicial registrar: RYAN

DATE OF ORDER: 21 NOVEMBER 1997

WHERE MADE: HOBART

THE COURT ORDERS THAT: Both applications be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIADISTRICT REGISTRY TI01044 AND TI-1045 of 1996

BETWEEN: BRONWYNHELEN YOUNG

Applicant

AND: BRETT HANSLOW

Respondent

JUDicial registrar: RYAN

DATE: 21 NOVEMBER 1997

PLACE: HOBART

REASONS FOR JUDGMENT (Delivered Ex Tempore - revised from Transcript) THE APPLICATIONS On 16 September 1996 the applicant, Bronwyn Helen Young, filed a claim seeking compensation from Brett Hanslow of the Coachman's Tavern, 304 Elizabeth Street, North Hobart, on the grounds of unlawful termination on 20 August 1996 from a position of bar attendant, cleaner, waitress and cook. The applicant claimed she had last worked for the respondent on 2 July 1996. Ms Young signed this application, nominated Mr Roland Browne, the Director of Legal Aid, as her solicitor and claimed that she was dismissed while on a medical certificate. This application was registered in the Australian Industrial Relations Commission as application U70249 of 1996. On 22 October 1996, one month and six days later, another claim seeking reinstatement and compensation from Mr Hanslow was filed on behalf of the applicant. This is a separate application. It was signed by the applicant and dated 18 October and again, Mr Roland Browne is nominated as representing her in his capacity as Director of Legal Aid. This second and later application refers to an earlier termination stated to have taken place on 26 May 1996. On this occasion the applicant has given her occupation as bartender. This application was registered in the Commission as application U70281 of 1996. On 25 November 1996 Commissioner Leary signed certificates referring both applications to the Industrial Relations Court of Australia on the basis that the Commission had been unable to settle the matters by conciliation and that the parties had not elected to have the matters dealt with by consent arbitration. DIRECTIONS The certificates and a copy of the applications were filed in the court on 27 November 1996 having been delivered to the Court on that day with a letter dated 27 November from the Deputy Industrial Registrar. On 18 December 1996 the district registrar ordered: (1) that a copy of each application be personally served on the employer; (2) the respondent file and serve an appearance; (3) that the directions hearing be adjourned to 5 February 1997. On 17 January 1997 Wallace Wilkinson and Webster filed notices of appearances on behalf of the respondent. In the notices the respondent was described as "publican of 304 Elizabeth Street, North Hobart". On 12 February the applicant was represented at a directions hearing by Lawrence Neasey of the Legal Aid Commission, and the respondent by Mr D. Wallace, of Wallace Wilkinson and Webster. The parties were directed to file and serve brief summaries for their cases. The district registrar also ordered mutual and formal discovery, leave to approach registry for urgent mediation, adjournment of the matters to be listed for hearing - date to be advised. On 12 March Mr Browne filed two identical statements in respect of each application. The statements read as follows: "The applicant commenced employment with the respondent at the Coachman's Tavern in Elizabeth Street, North Hobart, in August 1995 as a cleaner. By October 1995 she was working behind the bar cooking and cleaning. She was dismissed from employment with the respondent on 26 May 1996 and re-employed on or about 2 June 1996. At the time of being dismissed in May 1996 the respondent had no valid reason for terminating the employment of the applicant After being re-employed on 17 June 1996 the applicant remained employed with the respondent until she was again dismissed on 20 August 1996. At the time of being dismissed in August 1996 the applicant was on sick leave, having just had major surgery. The applicant was dismissed during the currency of a medical certificate. The applicant's case is that her dismissal contravened section 170DF of the Workplace Relations Act 1996 and further that the respondent had no valid reason for terminating her employment. The applicant seeks compensation as a result of her unlawful termination." CALLOVER 17 NOVEMBER On 8 May the Director of Legal Aid notified the Court that he was no longer representing the applicant. On 25 May the applications, being matters where the hearing of proceedings had not begun, were transferred to the Federal Court of Australia. On 13 October the Acting District Registrar of the Federal Court advised the applicant and the respondent solicitors by letter that the matters had been listed for callover at 10 am on Monday, 17 November. His letter concluded as follows: "Please note that at the call over your matters may be listed for any day of the week commencing 17 November and you should be prepared to run your case from the Monday onwards. The court notes that this advice was given one month and four days before the call over." On 15 October, two days later, a file note indicates that the Acting District Registrar spoke by telephone with the applicant and that she advised him that she had not been granted legal aid, intended to have further discussions with the Director for Legal Aid and "definitely intends to proceed even if she does have to represent herself" and that she would contact the registrar after she had seen the Director of Legal Aid. On 13 November the solicitors Clerk, Walker and Stops, advised the registrar by letter that they had been instructed to act on behalf of Ms Young. The solicitors gave notice of an application to be made on 17 November that the callover be treated as a directions hearing and foreshadowed an application to amend the applications and an application for adjournment. At 10 am on 17 November Mr Readett appeared for the applicant at the callover. The respondent did not appear and no one appeared on his behalf. I stood the matter down and directed the registry to contact Mr Wallace. He was the solicitor on the record and had appeared at the directions hearing on 12 February. The callover proceeded later in the morning with Mr Readett appearing for the applicant and Mr Wallace appearing to announce that his firm had closed the file in May 1997. Apparently, the respondent's solicitors were unable to contact the respondent who no longer holds the licence for the Coachman's Tavern. Mr Wallace advised that he had information suggesting the respondent now resided at 44 Bay Street, New Town, and that he intended to file a notice of ceasing to act. Mr Wallace was still on the record as solicitor for the respondent on 17 November and may still be on the record in that capacity. He was advised of the callover and apologised for his failure to appear initially. He described this as an oversight. Mr Readett unsuccessfully applied to have the matters adjourned while he took instructions on the possibility of amending the applications to include an application for unpaid wages pursuant to section 179 of the Workplace Relations Act 1996. The two applications were filed in the Australian Industrial Relations Commission on 16 September and 22 October 1996. More than 12 months has elapsed. Indeed it is only four days short of 12 months since the applications were referred to the Court. Applicants should pursue applications of this kind with reasonably expedition. Delay in proceedings of this type is not in the interests of the parties and it is not in the public interest, see Mahnken v Saunders Logging Proprietary Limited (1994) 57 IR 237. I directed the district registrar to notify the respondent at 44 Bay Street, New Town, of the callover and the hearing listed for 19 November and of the fact that the hearing would proceed even if the respondent was not present. THE HEARING On 19 November both the applicant and the respondent appeared on their own behalf. Apparently for reasons best known to the solicitors for each party neither firm of solicitors was prepared to continue or had instructions to continue to represent the parties albeit both firms seemed to be still on the record as appearing. In applications under section 170EA the applicant bears the onus of establishing that there was a termination at the initiative of the employer such as attracts the jurisdiction of the Court. Slifka v J W Sanders Proprietary Limited (1995) 67 IR 316, Mohazab and Dick Smith Electronics (No 2) (1995) 62 IR 200. The applicant's statement filed 12 March 1997 asserts that the respondent dismissed her on 26 May 1996. She must establish that she was employed in a capacity which vests the Court with jurisdiction. If she succeeds in that regard she must satisfy the Court that there was a termination of employment at the initiative of the employer such as might lead to a finding of unlawful termination. Her statement indicates in the first paragraph that she was re-employed within seven days on 2 June. Her statement indicates in the third paragraph that she was re-employed on 17 June, some 22 days after the first termination. Her sworn evidence at trial is that she was re-employed on Friday 7 June, 12 days after the termination. Section 170CC and Regulation 30B provide for exclusion of specified employees from the operation of specified provisions of Division 3, Termination of Employment. Such an exclusion has effect only if it is permitted under paragraphs (2), (4) and (5) of Article 2 of the Termination of Employment Convention. One such permitted exclusion are workers engaged on a casual basis for a short period. Regulation 30B(1)(d) excludes a casual employee, engaged for a short period, within the meaning of subregulation (3). Subregulation (3) of Regulation 30B states: "Casual employees engaged for a short period: For the purposes of paragraph 1(d) a casual employee is taken to be engaged for a short period unless: