CATCHWORDS Termination of employment - meaning of termination in legislation - whether granting of concessions by employer varies terms of employment contract - termination process not at the initiative of the employer - application dismissed. Industrial Relations Act, 1988 Sec 170EA and Schedule 10. Termination of Employment Convention Part 1 Article 3. CLEMENTS V. MANUKA REAL ESTATE PTY. LIMITED NO. AI 154 OF 1994 LINKENBAGH J.R. 3 MARCH 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA Matter No AI54 of 1994 JANICE FLORENCE CLEMENTS Applicant MANUKA REAL ESTATE PTY LIMITED Respondent MINUTES OF ORDERS 1. That the Application be dismissed. JUDICIAL REGISTRAR LINKENBAGH 3 MARCH 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA Matter No AI54 of 1994 JANICE FLORENCE CLEMENTS Applicant MANUKA REAL ESTATE PTY LIMITED Respondent CANBERRA, 3 MARCH 1995 COURT: JUDICIAL REGISTRAR LINKENBAGH REASONS FOR JUDGMENT EDITED FROM THE TRANSCRIPT OF JUDGMENT DELIVERED EX TEMPORE ON 3 MARCH, 1995 This is an application pursuant to the provisions of section 170EA of the Industrial Relations Act 1988 made by the applicant as a result of the termination of her employment by Manuka Real Estate Pty Limited. The matter raised squarely the preliminary issue of whether or not there had been a termination of employment within the meaning of the legislation. Those words are defined in Article 3 of Part 1 of the Termination of Employment Convention which is Schedule 10 to the Act which reads: For the purpose of this Convention the terms "termination" and "termination of employment" mean termination of employment at the initiative of the employer. The convention as put into legislative effect in Australia by this act means that there is only a remedy available to an employee if there has been a termination of employment at the initiative of the employer. In this case, the facts were that the parties had a contract of employment which commenced towards the end of 1993. The applicant was a property manager and she worked a five day week for a fixed salary. Whilst she was employed she enrolled or she was enrolled in the course that would qualify her to become a licensed real estate agent. This course involved her in attending classes at a College of advanced Education. From time to time during her period of employment which ended on 22 July 1994, she arranged with her employer for her to attend lectures during working hours and to make up the time that she was away from the office by coming in either early in the morning or staying later in the afternoon than was her normal practice. the applicant argued that the conduct of the respondent in allowing her to vary her commencement time and finishing time contract so as to justify an expectation in the applicant that she would be able to have time off whenever she required time to attend lectures in the future. In July 1994, because of the unavailability of lectures in a subject that she would be able to have time off whenever she required time to attend lectures in the future. In July 1994, because of the unavailability of lectures in a subject which was essential to the applicant's course, she was forced by the college to enrol in an alternative course in respect of which lectures were only available on Wednesdays at lunch time. To be able to attend the lectures, she had to ask her employer to vary her working hours as had happened on previous occasions. Such a variation had also been permitter in the past in relation to another employee. Mr Sloan argued for the applicant that she had a justifiably reasonable expectation that the employer would act, had acted in a certain way before and would so act again and the employer might otherwise have had, to rely on the contract of employment in its original terms. I do not think it is necessary to go to those lengths to put the argument of the applicant in a way that is relevant to these proceedings. The applicant argues that the original contract of employment was varied so that she would be permitted to have the time off to go to the lectures. I do not agree with that submission. The employer in giving the time off in the past exercised a prerogative which belonged to the employer from time to time to grant concessions to the employees, being this applicant and the other employee who had had the same grace extended to him or her. The employer reserves the right to grant concessions to employees on a one off basis from time to time without having the law intervene to operate so that that exercise of a favour of grace to the employee acts to vary the terms of the contract of employment. I find that the applicant cannot rely on a right to have time off given to her by the terms of her contact of employment or by any argument based on estoppel. The facts as they occurred are that on 18 July, Mrs Clements spoke to Mrs Kaneff, for the employer, and requested time off to attend the lectures. She required an hour and a half together with her lunch hour on a Wednesday over a period of 18 weeks. Mrs Kaneff responded to that request, by asking the applicant to write down the hours which she currently worked, and the applicant did that on 19 July. On 20 July, Mrs Kaneff wrote the applicant a letter, in which she said that in reply to the letter requesting to attend the TAFE class on a Wednesday of each week, that was acceptable, with the provision of 15 minutes travelling time to and from the class, and the letter went on to redefine the hours of employment of the applicant commencing from Monday, 25 July. That definition required the applicant to work for 33˝ hours per week, as against the 37˝ hours, which had previously been worked by the applicant. The applicant responded, on 21 July, with a letter which effectively refused to concede, or refused to accept, the terms set out in the employer's letter of 21 July. It challenged the right of the employer to define the number of hours which were to be worked. The letter also informed the employer in the following terms: The hour and a half required will, of course, be returned to you by me continuing to work as I have always done, usually an additional hour or half hour after 5.50 pm each day. The letter concludes, with an expression by the employee, of profound disappointment in the attitude of the employer, and a statement that the employee had provided the employer with efficient, effective and loyal service during the period of employment. The Court has had the opportunity to observe the demeanour of both the applicant and Mrs Kaneff in the witness box. Mr Sloan drew the attention of the court to the affidavit of Mrs Kaneff, which was sworn on 28 September 1994, in which she deposed that the reason for the termination of the applicant's employment was related to her past performance. The evidence, however, before the court, indicates that the reason for this termination was based in the request by the applicant to have the time off on Wednesdays. One does not know what would have happened to the course of this employment contract, if that request had not been made. It may well be, and Mrs Kaneff's evidence to the court indicated that this could well be the case, that she was growing increasingly dissatisfied with the performance of the applicant, but the evidence shows that the performance of the applicant was not the primary cause of the termination of the employment. The court finds that the applicant initiated negotiations with the respondent to change terms of the employment contract, in making her request for the additional time off at lunch time on Wednesday. The response to that by the employer was to change the total number of working hours in the week, reducing them by four hours per week gross, less the time which would be taken up by the applicant attending the lecture, in any event. The letter of 20 July does not constitute termination of employment. It is a step, and I find this to be the case, a step in a negotiating process which was initiated by the applicant. The next step in that process was the letter of the applicant, dated 21 July, which I find, coupled with my observation of the demeanour of the applicant in the witness box, clearly indicates an attitude in her that she was going to have her hour and a half off each week, come what may. She does not indicate in that letter any willingness to negotiate the matter with the employer, and she insists on having the time off, in spite of the terms of the employer's letter to her on the 25 July. It is not surprising, given the tone of that letter, that Mrs Kaneff decided thereafter that the employment should be terminated, and she gave notice to the applicant on 22 July, the day following the date of that letter. The decision of the Court, therefore, is that there was not a termination of this contract of employment at the initiative of the employer within the meaning of the legislation. Certainly, Mrs Kaneff did the final act of termination, but, when one looks at the course of conduct of the parties, it is in my opinion, the most likely conclusion on the balance of probabilities and weighing all of the evidence, that this termination was a termination, in effect, at the initiative of the employee. Had she accepted the proposal put to her by the employer for the 33˝ hours a week, her employment would have continued. It was her action in refusing to accept that and in a manner which indicates that she was not prepared to move on her own position, that gave her employer, in my view, the opportunity to exercise the prerogative of the employer to being the contract to an end in all those circumstances. Having found that there was not a termination of employment at the initiative of the employer, the order of the court will be that this application will be dismissed. I certify that this and the preceding three pages are a true copy of the Reasons for Judgment of the Court. Maria Linkenbagh Judicial Registrar Solicitor for the Applicant: Mr D Sloan Meter Botcher and Clapham Representative of the Respondent: Mr A J Chase Confederation of A.C.T Industry