CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CLAIM OF UNLAWFUL TERMINATION - CASUAL EMPLOYMENT - WHETHER REASONABLE EXPECTATION OF CONTINUING EMPLOYMENT INDUSTRIAL RELATIONS ACT 1988 , ss170EA INDUSTRIAL RELATIONS REGULATIONS, reg. 30B(1) DONNA MEAKIN v NICRON RESOURCES LIMITED (WOODCUTTERS MINE) DI95/1009 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 3 AUGUST 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. DI 95/1009 NORTHERN TERRITORY REGISTRY BETWEEN: DONNA MEAKIN Applicant AND: NICRON RESOURCES LIMITED (WOODCUTTERS MINE) Respondent MINUTE OF ORDERS BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN DARWIN) DATE: 3 AUGUST 1995 THE COURT ORDERS THAT: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $7,200 within 14 days of these orders. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. DI 95/1009 QUEENSLAND DISTRICT REGISTRY BETWEEN: DONNA MEAKIN Applicant AND: NICRON RESOURCES LIMITED (WOODCUTTERS MINE) Respondent BEFORE BOULTON JR PLACE: BRISBANE (HEARD IN DARWIN) DATE: 3 AUGUST 1995 REASONS FOR JUDGMENT The applicant is now aged 36. The respondent operates the Woodcutters Mine in the Northern Territory. From 24 June 1994, the applicant was employed by the respondent as a casual field assistant at the said mine. The respondent terminated her employment, with effect from 11 January 1995. The applicant's employment consisted of three separate periods, the first being fixed by letter of appointment signed by her from 24 June 1994 to 29 July 1994, and the second fixed from 1 August 1994 to 28 October 1994. Shortly prior to the end of October 1994, the applicant was informed by the respondent that her employment would be extended, without specification of the period of extension. This extension lasted until she was terminated. The respondent's case was that it had a valid reason for terminating the applicant's employment based on the operational requirements of its undertaking. If this were not made out, it relied on para 30B(1)(d) of the Industrial Relations Regulations to deny the applicant relief. Operational Requirements As to the first matter, I consider that no proper evidentiary basis was laid in support of this assertion, apart from generalised references to the financial constraints under which it was said the mine was operating. The respondent has not proved a valid reason for the applicant's termination. If a financial saving were to be effected by dispensing with the applicant's services, it is curious that the respondent has employed other casual employees since her termination. I am satisfied that if the remedies provided by the Act are otherwise available to the applicant, her termination was in breach of the Act, and consequently unlawful. Regulation 30B(1) Point The respondent submitted that the applicant was an employee excluded from the operation of Subdivisions B, C, D and E of DIVISION 3 of Part VIA of the Industrial Relations Act 1988 ("the Act"), being a casual employee engaged for a short period within the meaning of subregulation (3). That subregulation provides as follows: For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless: (a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and (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 respondent conceded that the applicant came within para 30B(3)(a). This concession was properly made. On its behalf, it was submitted that the applicant had not had a reasonable expectation of continuing employment by the respondent. The focus in the case seemed to be largely on whether or not the applicant had a reasonable expectation of permanent employment by the respondent, however, it is also necessary, in my view, to examine the reasonableness of any expectation she might have held in respect of continuing casual employment by the respondent, and it is to this that I now turn. There is no dispute in the case that the applicant had been a good worker. Her immediate supervisor in the mine technical section, a Mr Pevely, Senior Mine Geologist, gave her a positive reference. The applicant gave evidence that she inquired of Mr Pevely as to future employment, in late October 1994, and he said words to the effect that he could not see why not as she was a good worker. Mr Pevely gave evidence before me. He was asked, without objection, if the applicant could have had an expectation of continuing casual employment beyond the end of 1994, and he answered affirmatively. The applicant also said, that in response to a query from her about the prospect of permanent employment, Mr Pevely told her to be patient. In the light of this evidence, I accept that there was nothing fanciful or ridiculous about the applicant's expectation of continuing employment by the respondent. It was reasonable. Insofar as there is any conflict between the applicant and the respondent's witnesses on this aspect, I prefer the applicant's evidence, bolstered as it is by Mr Pevely's concession earlier referred to. I take into account also that the applicant changed address to be closer to the workplace, and in late 1994 booked her son into boarding school in the expectation of further work with the respondent. Remedy The parties disavowed reinstatement as being practicable in this case. I agree. I take into account that the applicant does not seek it, and her duties with the respondent have been taken by another. Since termination, the applicant has earned $5136 gross from other employment, to the date of trial. I consider that the exercise, in assessing appropriate compensation in her case, involves an assessment of how long casual employment might, in any event, have been available to her with the respondent. Over the period of her employment with the respondent, her gross weekly pay averaged about $655. It emerged in evidence that since the conciliation process undergone in this matter, the respondent offered the applicant further employment, described as permanent part-time, for two days per week, as a labourer at the said mine. This employment was due to commence on 3 April 1995. The applicant declined this offer. She gave evidence that working two days per week would have an effect on the sole parent's pension being received by her. Also, she needed to work a greater number of days per week. I do not consider that the applicant's failure to take up this offer was unreasonable on her part, in the light of her circumstances and the fact that the offer sought her agreement to being terminated by either party at any time with a minimum of two weeks' notice. Having regard to the periods of casual employment previously worked by the applicant, I assess appropriate compensation to be the sum of $7200. The applicant claimed also in respect of relocation costs, said to be occasioned by her move closer to the mine, the boarding fees paid for her son and the expense associated with her taking out a loan to buy a more reliable motor vehicle. Apart from having reservations about the cogency of the evidence presented in support of these claims, I do not consider a proper basis was laid for fixing the respondent with liability for them. The orders I make are: (1) the application be allowed. (2) the respondent pay to the applicant the sum of $7200 within 14 days of these orders. I certify that this and the preceding SIX (6) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 3 August 1995 Solicitor for the Applicant: Mr De Silva Solicitor for the Respondent: Mr Spazzapan Date of hearing: 12 July 1995 Date of judgment: 3 August 1995