Laginha, Eduardo v Family Court of Australia [1997] FCA 1377

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - Employment - Termination of employment - Claim of unlawful termination - Series of separate temporary appointments of employee as Deputy Registrar of a court - Total span of appointments exceeding one year - Whether employee was a "continuing employee" for purposes of Public Service Act - Whether employee engaged under a contract of employment for a specified period of time less than six months - Whether any contravention of Division 3 of Part VIA of Industrial Relations Act.

Public Service Act 1922, ss 82, 82AA, 82AC and 82AD

Industrial Relations Act 1988 (now Workplace Relations Act 1996), ss 170DC and 170DE(1)

Industrial Relations Regulations, reg 30B(1)(aa).

EDUARDO LAGINHA v FAMILY COURT OF AUSTRALIA

NI2198 of 1996

judge: wilcox j

place: sydney

date: 10 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI2198 of 1996

BETWEEN: EDUARDO LAGINHA

Applicant

AND: FAMILY COURT OF AUSTRALIA

Respondent

JUDGE: WILCOX J

DATE OF ORDER: 10 DECEMBER 1997

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for review of the decision of Judicial Registrar Walker of 30 January 1997 be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI2198 of 1996

BETWEEN: EDUARDO LAGINHA

Applicant

AND: FAMILY COURT OF AUSTRALIA

Respondent

JUDGE: WILCOX J

DATE: 10 DECEMBER 1997

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: This case involves review of a decision of a Judicial Registrar dismissing a claim of unlawful termination of employment made under Division 3 of Part VIA of the Industrial Relations Act 1988, as the legislation was then known. The facts The applicant, Eduardo Laginha, was employed by the respondent, Family Court of Australia, during the period 17 August 1995 to 27 September 1996. He obtained his first appointment by responding to an advertisement calling for applications from qualified legal practitioners "for approximately 9 months temporary employment in the Mediation Section of the Family Court of Australia, Sydney Registry." At the time of his appointment, Mr Laginha received a letter from the Registry Manager, Janice Musgrave, referring to his selection "for temporary employment as an [sic] Deputy Registrar (Mediator) at Sydney, Position Number 14402". The letter said his employment would be for a period of eight months from 17 August 1995 to 12 April 1996. Ms Musgrave said the Court was required to specify a termination date before 12 April 1996 and his employment would cease on the date specified in the notice. Ms Musgrave pointed out, as the period of employment was less than 12 months, Mr Laginha would not "gain coverage under Division 8C [of Part III] of the Public Service Act 1922". That Division contains provisions concerning retirement and reployment of officers other than Secretaries of Departments and Senior Executive Service officers. According to evidence put before the Judicial Registrar, the temporary appointment was occasioned by the absence on leave of the usual occupant of the position, Peter Welsh. However, Mr Welsh decided not to resume full time employment. He obtained approval to return to work on a part-time basis, working three days per week. As a result, towards the end of his full-time service, Mr Laginha was engaged to work two days per week, as from 15 April 1996. On 16 April 1996 Ms Musgrave wrote to Mr Laginha terminating his full-time temporary employment, with effect from close of business on 12 April 1996. She again pointed out he was not covered by Division 8C. Shortly afterwards Mr Laginha was paid the balance of salary due to him together with the value of his accrued recreation leave. On 19 April Ms Musgrave wrote a further letter to Mr Laginha stating: "In accordance with Section 82D of the Public Service Act 1922 you have been selected for part-time temporary employment as a Registrar at Sydney Registry, 2977. It is proposed that your temporary employment be for a period of approximately 2 days per week commencing on 15 April and 16 April 1996 respectively and for the next subsequent Monday and Tuesday. The hours of work for each day will not exceed seven hours twenty one minutes. Before the completion of this period of engagement the Chief Executive Officer (or delegate) of the Court is required to provide you a notice of your termination date. Your employment will then cease on the date specified in the notice. If for some reason there is the requirement to terminate your services prior to your contract ceasing the delegate is required to give you five days notice of termination. As a result of your employment being for a period of less than 12 months, you do not gain coverage under Division 8C of the Public Service Act 1922. If your employment should extend 6 months in this position you may be eligible to apply for permanent positions in the Gazette. You must contact your Personnel Manager to obtain written advice that you meet the requirements to apply for advertised vacancies before you apply for any position." The employment announced in this letter was the first of a series of short-term engagements that extended until Mr Laginha's final departure from the Court on 27 September 1996. On 13 May 1996 Ms Musgrave wrote to notify a decision that Mr Laginha's "part-time temporary employment be for a period of approximately 3 months working two days per week (Monday and Tuesday) commencing on 29 April and ceasing on 23 July 1996". Once again there was a reference to notification of the termination date and the inapplicability of Division 8C of Part III of the Public Service Act. A marked calendar tendered in evidence by Mr Laginha shows he worked each Monday and Tuesday from 15 April to 23 July. On 9 July Ms Musgrave gave him notice of termination of his temporary employment as from close of business on 23 July. But he was engaged to work one day, on Tuesday, 30 July, conducting a mediation and then was engaged for another single day, Thursday, 1 August, to conclude a mediation deferred because of a client's illness. About that time, Margaret Lawson, one of the permanent Deputy Registrars of the Court, went on sick leave and Mr Laginha was asked to accept a further temporary full-time appointment. He agreed. He worked on Friday, 2 August. On 6 August, Ms Musgrave wrote him a further letter in which she stated he had "been selected for temporary employment as a Legal 2 at Sydney Registry, PN2977 ... for a period of approximately 4 weeks commencing on 2 August and ceasing on 30 August 1996". Once again mention was made of notification of a termination date and the non-application of Division 8C of Part III of the Act. Although this letter described the position differently from the description in Mr Laginha's first letter of appointment, it is common ground that, from beginning to end, there was no significant difference in the nature of his duties and no difference in salary. On 9 September Ms Musgrave wrote a further letter of appointment, referring to a period of approximately four weeks from 19 August to 13 September; and on 17 September she wrote again regarding a two week appointment from 16 September to 27 September. On that same day, she sent a formal advice of termination on 27 September . There was no further extension. Mr Laginha was dissatisfied with the Court's failure to re-appoint him after 27 September. He took up the matter with the Court's Chief Executive Officer, Len Glare, arguing he had coverage under Division 8C of Part III of the Public Service Act because his employment extended over more than one year. Mr Glare responded on 16 October contending that the position he occupied prior to 12 April 1996 differed from his position after that date, so he had "not obtained Division 8C coverage". Mr Laginha made an application under s 170EA of the Industrial Relations Act. The basis of this application was that his non-reappointment after 27 September 1996 constituted a termination of his employment by his employer. However, at the hearing before the Judicial Registrar he contended the termination was invalid, because he was a "continuing employee" within the meaning of Division 10 of Part III of the Public Service Act and could not be terminated except in accordance with Division 8C of the Act. Alternatively, if his employment was validly terminated, Mr Laginha said this was done in contravention of s 170DC of the Industrial Relations Act and the Court ought to exercise its power under s 170EE(1) to order his reinstatement. The jurisdiction exercised by the Judicial Registrar in connection with this case was that of the Industrial Relations Court of Australia. If the matter had remained in that Court, there may have been a question about the Court's capacity to give effect to Mr Laginha's first argument. However, between the date of Mr Laginha's application for review and the commencement of the hearing, the matter was transferred to the Federal Court of Australia: see Workplace Relations Act and Other Legislation Amendment Act 1996, Schedule 16. In undertaking the review, I am exercising the jurisdiction of the Federal Court. It has jurisdiction to make any appropriate declaration concerning Mr Laginha's continued employment by a Commonwealth instrumentality: see s 39B(1A)(c) of the Judiciary Act 1903. The application of Division 8C Section 82AA of the Public Service Act provides that, subject to s 82AG, a person employed under Division 10 shall be employed in one of four categories: continuing employees, short-term employees, fixed-term employees and overseas employees. Section 82 defines "continuing employee" as "a person employed under s 82AC". Section 82AC empowers the Secretary of a Department to engage persons as continuing employees in the Department, but only if the person is engaged in a class of employees declared under s 82AB. Section 82AD deals with the employment of short-term employees. The section permits the Secretary of a Department to engage short-term employees, but only if the Secretary is satisfied of the need for temporary assistance and the inappropriateness of using the services of a continuing employee. Procedural requirements are specified and provision is made for extension of short-term appointments. Subsection (9) provides: "(9) Where at any time: (a) as a result of an extension of the period of engagement of a person under subsection (7), the person is employed as a short-term employee; and (b) the period of engagement of the person (including the period as so extended) has subsisted for the period of 1 year immediately preceding that time;" Mr Laginha (who appeared in person before me) argues subs (9) applied to his engagement by the Family Court; on the anniversary of the commencement of his first engagement, 17 August 1996, he became a "continuing employee" within the meaning of the Act. That proposition is contested by Mr B Hodgkinson, counsel for the Family Court. But Mr Hodgkinson does not dispute the consequence of Mr Laginha's argument, if it is correct: to have validly terminated Mr Laginha's employment, the Court would have had to follow one of the procedures stipulated in Division 8C of Part III, which it did not do. In this situation, the critical question in relation to Mr Laginha's first point is whether his "period of engagement" subsisted for a period of one year. Mr Laginha argues it did. He claims to have had "8 separate, 'back to back' contracts" and says "the law and evidence support the view that the series of contiguous engagements is more correctly and realistically characterised as extensions and continuing employment". He points out that, throughout the whole 13 month period of his association with the Family Court, he performed much the same duties and says there were always oral arrangements for an extension before the expiration of the prior period of engagement, "followed up with appointment advices (usually backdated) indicating estimated or proposed periods of appointment". During part of the 13 month period, Mr Laginha was a part-time employee, but that does not affect the validity of his argument. An employment relationship may persist throughout a particular period notwithstanding the employee is required to work only part-time. However, if the engagement (whether full-time or part-time) ceases to subsist at any stage, the employment relationship is broken. This is where Mr Laginha's argument runs into difficulty. Although they were brief, there were at least two gaps in the continuity of his engagement, being business days when he was not employed by the Family Court. I have in mind Monday, 29 July and Wednesday, 31 July. On 13 May 1996, Mr Laginha was notified of an engagement on a part-time basis (Mondays and Tuesdays) from 29 April to 23 July 1996. On 9 July Ms Musgrave confirmed the temporary appointment would terminate on 23 July. Mr Laginha was not then a continuing employee, 12 months not yet having elapsed since his initial engagement. So s 82AH(6) of the Public Service Act applied, to permit Ms Musgrave (as delegate of the Chief Executive Officer, the "Secretary") to terminate Mr Laginha's employment. It follows her notice was effective to terminate the employment relationship as from the close of business on 23 July. Before that time, Mr Laginha was notified of a one-day appointment on 30 July. But that appointment did not take effect until the commencement of business on 30 July. Mr Laginha was not an employee of the Court on Monday, 29 July. He did not work that day. He was not paid for that day. Despite the terms of the letter of 20 July, it does not appear Mr Laginha was given a separate notice of the date of termination of his one day appointment on 30 July. Probably this was unnecessary; the appointment was for a specified term (one day). On 20 July he had been notified of a second one day appointment, for 1 August. This was a new appointment; both parties understood that. He was not employed on Wednesday, 31 July. Mr Hodgkinson contends there was also a gap in the continuity of Mr Laginha's employment between 23 April, the last of the four days specified in Ms Musgrave's letter of 19 April, and 29 April, when Mr Laginha commenced the period of part-time employment (Mondays and Tuesdays) referred to in the letter of 13 May. This contention is probably correct, but the situation is not as clear as in July. It is unnecessary for me to reach a conclusion. On any view, there was a break in Mr Laginha's continuity of employment before 17 August 1996. His "period of engagement" did not subsist for the whole of the period of one year immediately before that date. He did not become a "continuing employee" pursuant to s 82AD(9) of the Public Service Act and thereby obtain the protection conferred on people with that status under Division 8C of Part III of the Act. Mr Laginha's employment by the Court is not continued by force of the Public Service Act. The Industrial Relations Regulations At the hearing before the Judicial Registrar, Mr D Godwin, counsel then appearing for the Court, disclaimed any reliance on regulation 30B(1) of the Industrial Relations Regulations. He did not contend Mr Laginha's claim was excluded from the operation of Division 3 of Part VIA of the Industrial Relations Act because of any of the circumstances specified in that subregulation. On the review, Mr Hodgkinson resiled from that position. He submitted para (aa) applied. That paragraph excludes from the operation of Division 3 of Part IV of the Act: "(aa) an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into on or after 16 November 1994, if the specified period is less than 6 months;" Mr Hodgkinson's argument is that, immediately prior to the last termination of his employment with the Family Court, Mr Laginha had been employed pursuant to a contract, evidenced in Ms Musgrave's letter of 17 September, for his temporary employment "for a period of approximately 2 weeks commencing on 16 September and ceasing on 27 September 1996". The difficulty, however, is that it is not possible to regard this appointment as being "under a contract of employment for a specified period of time". It is true the letter stated an approximate duration of employment but it also made clear the actual date of termination would depend on the date to be notified in a notice to be given at a later time. In this respect, the letter reflected the terms of s 82AD(6) of the Public Service Act: "(6) Where the period of engagement of a short-term employee in a Department expires, the employment of the employee is not thereby terminated, but the Secretary of the Department shall: (a) if the Department no longer requires assistance of a temporary nature in the performance of the duties of the employee - terminate the employment of the employee; or (b) in any other case - recommend to the Board that the employment be extended." Mr Hodgkinson says this provision is irrelevant to determination of the question whether regulation 30B(1)(aa) applies to this case. He says it is necessary to consider the contract itself; it does not matter that the statute permits the employee's employment to continue until termination. I do not think it is possible to read the letter in isolation from the statute. In any event, the letter does not purport to specify the exact duration of the employment or its termination date. It refers to "a period of approximately 4 weeks" and says the Chief Executive Officer (or delegate) of the Court will notify a termination date and "(y)our employment will then cease on the date specified in the notice". In other words the duration of the employment will depend on the date shown in the termination letter, not the date shown in the letter of appointment. It seems to me clear that the agreement reflected in the letter of 17 September was not for employment "for a specified period of time"; it was an agreement for employment until the relevant Family Court officer exercised the power of termination under s 82AD(6)(a). The jurisdiction of this Court to determine Mr Laginha's unlawful termination claim was not excluded by regulation 30B(1)(aa).