Glynis Maree Jetson v Richard Henry Chester & Vicki Lee Chester [1995] IRCA 446

INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIAN DISTRICT REGISTRY TI 1056 of 1995 B E T W E E N : GLYNIS MAREE JETSON Applicant AND RICHARD HENRY CHESTER & VICKI LEE CHESTER Respondents Before: Judicial Registrar Murphy Place: Hobart Date: 29 August 1995 REASONS FOR JUDGMENT (Ex Tempore) (Revised from Transcript) In this application under Part VIA of the Industrial Relations Act, the first question is whether or not the applicant was excluded from the jurisdiction under regulation 30B of the Industrial Relations Regulations and s170CC of the Act. In 1994 the respondent established a take-away food business in a holiday resort at St Helens. The business was open from 8 am until approximately 9 pm seven days per week. A partner in the business, Mr Chester, gave evidence that when the initial staff were engaged, it was made clear to the staff that they were casual and that there was no commitment to permanent employment. Given the fact that the business was located in a holiday resort and it was a new venture for the respondent, this is not surprising. The demand for staff increased rapidly and after the initial three staff were employed, an extra three women were also engaged a short time later. At the height of the summer period the respondent was employing 12 to 14 staff. The staff were all employed on a casual basis and none were regarded as more senior than any other. Staff rosters were arranged to suit the convenience of the various staff involved. Each of the staff signed an employment contract which indicated that they were to be paid an hourly rate of $12 and they were described as being employed "on a casual basis." The wage records of the applicant which were in evidence also describe the applicant's classification as "casual." In February this year, at the end of the summer season, the business slowed dramatically. At this stage the respondent had five staff. The respondent then found it necessary to terminate the employment of three staff, including that of the applicant. This occurred on 15 March this year. Prior to the termination the respondent did not have any discussion with the applicant about the retention of her employment. The selection of the three staff was done on the basis of who would most flexibly fit the staffing requirements of the respondent's business in the down-turn period. Regulation 30B(1)(d) of the Industrial Relations Regulations requires that for the Court to have jurisdiction, the employee must not be excluded under regulation 30B(3) as a casual employee engaged for a short period. Sub-regulation 30B(3) provides that casual employees are excluded unless engaged for a period longer than six months or a sequence of periods longer than six months and "the employee has, or but for a decision of the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer." The issue then is whether, for regulation 30B(3) to apply, the applicant had a reasonable expectation of continuing employment. Here it was argued by the representative of the applicant that the applicant did have a reasonable expectation of continuing employment. There was a conflict of evidence before me as to whether there were any assurances on employment made by the respondent to the applicant. I prefer the evidence of Mr Chester that no such assurances were in fact made. Given the number of employees he had, and the inherently seasonal nature of the business in a holiday resort, I consider it unlikely that he would have made any assurance of permanency or continuity of employment to the applicant. Having found that it is unlikely that Mr Chester made such an assurance the Court concludes that the applicant could not have had a reasonable expectation of continuing employment by the respondent. I accept that the applicant may have had a subjective expectation of the continuation of her employment. I am satisfied, however, that a reasonable expectation is to be determined on an objective basis. Here, given that the applicant knew it was a holiday resort and a new venture for the respondent, I do not accept that she could have objectively believed that her employment would have continued. I also take into account in coming to this conclusion the fact that all 12 to 14 employees of the respondent were treated as casuals. Further, the applicant signed an agreement to that effect. It must have been clear to her that when the down-turn came she would not have any better claim to retain her employment than any of the other women employed by the respondent. The fact that the applicant did not wish to work night-shift or Sundays is a further factor why I am not satisfied that she had a reasonable expectation of continuing employment. It follows that I am satisfied that the applicant is excluded from the jurisdiction of the Court under regulation 30B and that the application must be dismissed. The order of the Court: That the application is dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. That the application is dismissed. I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: Union for the Applicant: Australian Liquor Hospitality & Miscellaneous Workers' Union Representative for the Applicant: Mr D. Mathewson The Respondents appeared in person Date of hearing: 29 August 1995 Date of judgment: 29 August 1995