Timothy Nicholas Stone and Australia Post [1995] IRCA 228

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA Matter No. AI95/1002 AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY B E T W E E N: TIMOTHY NICHOLAS STONE Applicant A N D : AUSTRALIA POST Respondent BEFORE: Tomlinson JR DATE: 31 May 1995 PLACE: Canberra REASONS FOR DECISION The following reasons for decision are revised from the judgment delivered ex tempore by Judicial Registrar Tomlinson in Canberra on Wednesday 31 May 1995. By application dated 3 January 1995 filed in the Industrial Relations Court on 3 January 1995 the applicant Timothy Nicholas Stone claimed compensation for unlawful termination under the Industrial Relations Act 1988 from his former employer Australia Post. Mr Stone represented himself and the respondent was represented by Mr Sean Gath of Messrs Blake Dawson Waldron. The respondent made an application to the Court that 2 the Court lacked jurisdiction to hear the matter as the applicant was a casual employee within the meaning of the Act. The applicant resisted that application and the Court found that determination of that question more than likely would involve matters of defence and so ruled the matter should proceed to hearing forthwith. In his evidence in chief the applicant advised the Court that he had commenced work with the respondent as a casual employee on 12 September 1994 as a postal officer and that he had been summarily terminated on 29 December 1994. He had been employed for a period of four and a half months. The applicant stated that he was denied the opportunity to defend himself and that he had not been warned or counselled. He stated that he was of the view that the respondent did not have a valid reason for his termination and that he had been out of work for some weeks after the termination. He was now however in employment. The applicant stated to the Court he felt the respondent failed to insert the correct reason in the Separation Certificate as to the reason for the termination but was unable to advise the Court as to what reason he would like to see substituted as the reason for termination. The applicant stated to the Court that the reason he had been dismissed was that he had written an article to a local paper which had been published critising his employer Australia Post. In cross-examination conducted by Mr Gath the applicant agreed he was a casual employee and that he had been employed for four and one half months. In submission to the Court Mr Gath stated that on that basis the Court lacked jurisdiction to hear the matter on the basis of Regulation 30B(d). That regulation provides that casual employees engaged for a short period are to be excluded from the operation of Divison 3 of Part VIA of the Act. In submission to the Court the applicant stated he was of the view his position was protected by the Act as Regulation 30B(3)(b). Regulation 30(B) provides: "For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period uless: 3 (a) the employee is engaged by a particular employer on a regular systemic basis (b) the employee has, or but for a decision by the employer to terminate the employee's employment would have had, a reasonable expectation of continuing employment by the employer." The Court considered the evidence and found that it lacked jurisdiction to hear the application on the basis that the applicant was a casual employee within the meaning of Regulation 30(B) of the Act. In considering the submissions of the applicant the Court noted that to have written an article to a newspaper criticising the respondent while the applicant was still employed may well have been misconduct such that it may have had the effect of denying the applicant the benefit of Regulation 30B(3)(b) as the employee would not have had a reasonable expectation of continuing employment by the employer. Accordingly the application was dismissed. The Court made no order as to costs. I certify that this and the preceding three pages are a true copy of the revised reasons for decision of the ex tempore judgment delivered by Judicial Registrar Tomlinson on 31 May 1995. Associate: Date: Appearances Applicant: In person Respondent: Mr Gath - Messrs Blake Dawson Waldron