FEDERAL COURT OF AUSTRALIA Laginha v Family Court of Australia [2000] FCA 275 INDUSTRIAL LAW – termination of employment – whether termination of employment was unlawful – application under s 170EA of the Workplace Relations Act 1996 (Cth) – denial of procedural fairness Industrial Relations Act 1988 (Cth) ss 170DC, 170EA Public Service Act 1922 (Cth) Div 8C s 82AD Workplace Relations Act 1996 (Cth) s 377 Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Workplace Relations Regulations reg 30B EDUARDO LAGINHA v FAMILY COURT OF AUSTRALIA NI 2198 OF 1996 O'CONNOR J SYDNEY 16 MARCH 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 2198 OF 1996 BETWEEN: EDUARDO LAGINHA APPLICANT AND: FAMILY COURT OF AUSTRALIA RESPONDENT JUDGE: O'CONNOR J DATE OF ORDER: 16 MARCH 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed with costs. 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: O'CONNOR J DATE: 16 MARCH 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This matter is before me because a Full Bench determined that Justice Wilcox in his Reasons for Judgment had come to a conclusion about a matter in issue between the parties without giving the applicant an opportunity to make submissions on that particular aspect of the case. Therefore, the only issue left in this matter for me to determine is the application for relief under s 170EA of the Workplace Relations Act 1996 (Cth). 2 His Honour Justice Wilcox set out in some detail the factual background to the application which is not in issue and I rely on his summary. The applicant, Eduardo Laginha, was employed by the respondent, the Family Court of Australia ("the Family Court"), during the period 17 August 1995 to 27 September 1996. His first appointment was in the Mediation Section of the Sydney Registry of the Family Court. The appointment was advertised as temporary and of some nine months in duration. 3 At the time of his appointment, Mr Laginha received a letter from the Registry Manager, Janice Musgrave, referring to his selection for the position. The letter stated that 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. 4 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, but returned to work on a part-time basis of 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. Shortly afterwards Mr Laginha was paid the balance of salary due to him together with the value of his accrued recreation leave. 5 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". 6 The employment described in that 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 Mr Laginha that his "part-time temporary employment [would] 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". 7 A marked calendar tendered in evidence before his Honour by the applicant 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 1996. The applicant was further engaged to work one day, on Tuesday, 30 July, to conduct a mediation and was engaged again for another single day, Thursday 1 August, to conclude a mediation. 8 About that time, Margaret Lawson, one of the permanent Deputy Registrars of the Court, went on sick leave and the applicant was asked to accept a further temporary full-time appointment. He agreed and 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". Ms Musgrave mentioned notification of any termination. 9 Although this letter described the position differently from the description in Mr Laginha's first letter of appointment, it was common ground between the parties before his Honour that there was no significant difference in the nature of his duties nor in salary. 10 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 in the applicant's employment with the Family Court. Ms Lawson returned to work in mid September. 11 Mr Laginha was dissatisfied with the Court's failure to re-appoint him after 27 September. The applicant submitted to the Family Court that his employment had been a period in excess of one year, and that on that basis he was a "continuing employee" under s 82AD(9) of the Act, and therefore he was an employee to whom Div 8C of the Public Service Act 1922 (Cth) applied. Division 8C prescribes termination procedures specific to such employees. The Family Court disputed the applicant's claim. 12 In October 1996 Mr Laginha lodged an application with the Industrial Relations Court of Australia ("the Industrial Relations Court") under s 170EA of the Industrial Relations Act 1988 (Cth), as it then was, now the Workplace Relations Act 1996 (Cth), seeking relief in respect of a termination of employment in contravention of that Act. The basis of the application was that he was employed continuously for a period exceeding one year and is therefore deemed to be a continuing employee pursuant to s 82AD(9)(b) of the Public Service Act 1922 (Cth). He claimed as a consequence that his non-reappointment after 27 September 1996 constituted a termination of his employment by the Family Court. A Judicial Registrar of the Industrial Relations Court heard the matter and found that the applicant was not a continuing employee under s 82AD(9) of the Public Service Act and therefore dismissed the application. 13 In July 1997 the applicant applied to the Industrial Relations Court under s 377 of the Workplace Relations Act for review of the decision of the Judicial Registrar. Pursuant to the terms of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) that application was transferred to the Federal Court of Australia for determination. 14 His Honour Justice Wilcox found there were two threshold issues to be determined: first, whether the applicant was a "continuing employee" under s 82AD(9) of the Public Service Act, and second, whether reg 30B of the Workplace Relations Regulations ("the Regulations") applied to his circumstances. As described by the Full Court in the subsequent appeal, If the applicant was a "continuing employee" a declaration could be made that Div 8C of the Act applied to the employer/employee relationship and the application under s 170EA of the Act would fall away. If the applicant was not such an employee and reg 30B of the Regulations applied to his circumstances, he was unable to make an application under s 170EA of the Act. 15 The hearing before Wilcox J was confined to these two preliminary questions, each of which was broadly described as a "jurisdictional issue". 16 In December 1997 his Honour delivered reasons for judgment in which he found that Mr Laginha was not a "continuing employee" under s 82AD(9) of the Public Service Act and that reg 30B of the Regulations did not exclude the court's jurisdiction to determine an unlawful termination claim. However, his Honour also determined on the merits the application under s 170EA of the Industrial Relations Act and made an order that the application for review of the Judicial Registrar's decision be dismissed. 17 Mr Laginha appealed from his Honour's judgment by contending that his Honour's finding that the appellant was not a "continuing employee" under s 82AD(9) of the Public Service Act was made without procedural fairness to the appellant in that the finding was made without the appellant being given the opportunity to present his "full case and submissions". 18 Mr Laginha also appealed on the further ground that the dismissal of the claim for relief under s 170EA of the Industrial Relations Act denied him procedural fairness. Mr Laginha contended that the hearing of his claim under the Act was limited to determining whether reg 30B of the Regulations applied to his situation and if that question was decided in his favour he was to have been given further opportunity to present his case on the merits. That ground was conceded by the Family Court shortly before the appeal came on for hearing. 19 Mr Laginha submitted that his termination in September 1996 was unlawful, alleging a breach of s 170DC of the Industrial Relations Act had occurred. That section provides as follows: 170DC An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity. 20 Mr Laginha relied on a memorandum dated 28 August, 1996 from P Jurd, Senior Registrar, Sydney to Ms Musgrave. That memorandum reads: "I understand that Mr Laginha is engaged on a temporary basis in two respects. He is here for 5 days per week on account of Deputy Registrar Lawson's absence on sick leave. That arrangement expires on 30 August 1996. The Court's other engagement with him, due to expire on 15 October 1996, is for 3 days a week, being 2 in Wollongong and one (Wednesdays) in Sydney Registry. The terms are running concurrently. After conversations with Mr Laginha, and observations about his work that I and Registrar Northcott have made, I have formed the view that Mr Laginha is not performing his duties satisfactorily. I have therefore adjusted our diary of allocation of work to avoid him doing Pre-hearing Conferences. It is particularly in regard to these that his shortcomings might create difficulties for the proper management of cases. In a conference with him and Registrar Northcott on 27 August 1996, I told him this. I made it clear to Mr Laginha that the possibility of the Court re-engaging him was remote. However, pending Deputy Registrar Margaret Lawson's return from sick leave, the Court and Mr Laginha would each benefit from his continuing as a temporary employee on limited duties. Mr Laginha sais [sic] he was willing to stay on this basis. I understand that the plans for Wollongong have changed in that the Court will not be outposting a Deputy Registrar there for 2 days a week - this person was to be a new recruit and would be an addition to our current establishment. S/he was to attend Wollongong instead of a Deputy Registrar going there from Sydney two days a week, as one has for the past few years. Mr Laginha was taken on for the 3 days to trial this arrangement. Further, Deputy Registrar Joan Cain will, from 16 September 1996, be assigned to this Registry for four days per week. I would recommend that the change in plans for Wollongong, the economies of the situation and Mr Laginha's unsatisfactory performance are a proper basis for discontinuing the 3 days per week contract as well, upon Deputy Registrar Lawson's return. I look forward to your instruction in regard to the above." 21 His Honour Justice Wilcox noted in his reasons that Mr Jurd's understanding of the situation was incorrect; Mr Laginha did not have an ongoing part-time appointment. As at 28 August he was working within his four week full-time appointment from 2 August to about 30 August. This was later renewed to 13 September and, again, to 27 September. Ms Lawson returned from sick leave in mid September. 22 On the basis of contents of the 28 August memorandum from Mr Jurd, Mr Laginha has submitted that the termination of the second renewal, effective from 27 September, was influenced by Mr Jurd's perception of his performance. 23 Evidence to which the applicant particularly referred in submissions included a meeting between him and Mr Jurd in relation to his performance, and the memorandum (reproduced above) signed by Mr Jurd which referred to this meeting and which was sent to Ms Musgrove, the Registry Manager, who was responsible for the employment of staff and their termination. Ms Musgrove was the person who did, in fact, terminate Mr Laginha's employment by letter dated 17 September 1996, having effect as from close of business 27 September 1996. She gave evidence before Judicial Registrar Walker in the following terms: "Is there any reason other than the return of Registrar Lawson for which you sent the letter of 17 September – behind you sending the letter of 17 September terminating the position of Mr Laginha?---Was there any other reason? Yes?---No not at all." 24 Ms Musgrove was the person who had responsibility for making the decision to terminate, and the answer she gave was not challenged by the applicant in cross-examination. What is put on the applicant's behalf is that he formed the impression in his interview with Registrar Jurd that: "The effect of the words to me was that I was being terminated or summarily dismissed. I feel on the basis of that assessment my prospects of being re-engaged with the court in the future were very remote." 25 The applicant argues that the opinion of Mr Jurd, which had been communicated to Ms Musgrove by the memorandum dated 28 August 1996 was taken into account in terminating the applicant's employment. However this was denied by Ms Musgrove and her denial was not challenged. There was no evidence before the Judicial Registrar or before the court that Mr Jurd's opinion was considered by Ms Musgrove when she made the decision to terminate the applicant's employment. Ms Musgrove's evidence is that she did not consider the objective circumstances of the applicant's employment with the respondent. Further, the fact that the applicant was re-engaged for the period of Ms Lawson's temporary absence after Mr Jurd made his report does not accord with summary dismissal. It was Ms Lawson's return to work that led to the termination and not the fact that Mr Jurd had formed an adverse opinion of the applicant. 26 Counsel for the applicant asked the court not to accept Ms Lawson's unchallenged testimony. He said one could infer, merely because she had received Mr Jurd's memorandum, that it was something that she took into account. This submission is not accepted. The applicant, through his counsel, had an opportunity to challenge this matter and that opportunity was not taken. I thus conclude, after having heard the parties and reviewed the material to which they have referred me, that the applicant's perceived deficiencies in his performance were not a reason for his termination. It follows that s 170DC can have no application. 27 The application is dismissed with costs. I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor. Associate: Dated: Counsel for the Applicant: Hon Dr J Macken Solicitor for the Applicant: Counsel for the Respondent: B D Hodgkinson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 February 2000 Date of Judgment: 16 March 2000