Helen O'Neill v Australian National University [1995] IRCA 486

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CONTRACT OF EMPLOYMENT - whether termination at initiative of employer Industrial Relations Act, 1988 Sections 170CB and 170EA Termination of Employment Convention HELEN O'NEILL V. AUSTRALIAN NATIONAL UNIVERSITY NO. A1 1176 of 1995 Before: Judicial Registrar Linkenbagh Place: Canberra Date: 29 August 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NO. AI 1176 of 1995 AUSTRALIAN CAPITAL TERRITORY HELEN O'NEILL DISTRICT REGISTRY Applicant AUSTRALIAN NATIONAL UNIVERSITY Respondent BEFORE: JUDICIAL REGISTRAR LINKENBAGH PLACE: CANBERRA DATE: 29 AUGUST 1995 REASONS FOR JUDGMENT EDITED FROM THE TRANSCRIPT This matter comes before me today by way of a Notice of Motion filed by the Respondent on 18 July 1995, in which the Respondent seeks orders that the application be dismissed and orders for costs and other such orders as to the Court seem proper. I have the benefit of very comprehensive submissions by Dr Jessop and Mr Chamberlain. The evidence is the affidavit of the Applicant sworn on 28 August 1995 and an affidavit of Mr Herrick, filed on behalf of the Respondent and sworn on 7 July 1995. The Notice of Motion relies on the terms of order 20 rule 21A, which provides that where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding, no reasonable cause of action is disclosed, the Court may order that the proceeding be stayed or be dismissed generally or in relation to any claim for relief in the proceeding. The question that the Respondent therefore asks me to determine today, is that no reasonable cause of action is disclosed by the Application. The facts on the evidence before me are that the Applicant has been engaged in work for the University on a series of contracts since 4 July 1980. Her present contract was initially for a term of three years commencing 29 April 1990, which term was extended by a letter of 4 February 1991 for a period of two years, so that it would then have expired on 29 April 1995. In October of 1994 following a request from the Applicant for extension, the University extended the term to expire on 30 October 1995. Whilst the Applicant has been employed on what might be seen to be an uninterrupted basis since 1980, in fact the nature of her employment relationship with the University has been determined from time to time throughout the period by the terms of contracts negotiated between the parties. The Applicant's affidavit, in paragraph 2, refers to various employment contracts and in paragraph 3 of her affidavit, she uses the words, "The most recent appointment was to expire on 30 April 1995." There is no doubt in my mind that the intention of the parties in this employment relationship, was that the employment was to be for fixed periods of time determined from time to time. The University has a Policy in relation to the appointment of Research Fellows, which is annexure A to the Applicant's affidavit. I have regard to the terms of that Policy in making the my decision. I also have regard to the terms of a letter of 23 March 1990, which is the letter initiating the current contract of employment and a letter of 26 April 1990, from the Applicant to the University in which she accepts the offer of the new appointment, and describes it as a new appointment. That letter is accompanied by a document headed "Conditions of Appointment" which was signed by the Applicant at the time. The documents make it very clear that this was a contract between the parties for a specified term which has been extended pursuant to the conditions of appointment and the Policy. I note that in the letter of 26 April 1990 the Applicant requests the University to, in effect, allow her to take leave from the appointment which she then had, "In case I need extra time in the future to continue employment". She must have intended by using those words that her options would be kept open in relation to that other appointment and that she was not necessarily committing herself to long-term indefinite employment with the University in her new capacity. Her request in relation to the appointment which she held at that time is relevant to indicate what her state of mind was at the time when she entered into the new contractual arrangement. Dr Jessop has taken me to various authorities which are all to the effect that the expiry of a contract of employment by the effluxion of time does not constitute termination of employment by the employer. The relevant definition of termination of employment in the Industrial Relations Act 1988 is found in two places. Section 170 CD (4) defines "termination of employment" as a termination of employment that occurred before or occurs after the commencement of the Section but does not include a termination of employment in respect of which an Application under section 170EA was made to the Court before that commencement. Section 170CB provides that an expression has the same meaning in the relevant Division of the Act as in the Termination of Employment Convention. The Termination of Employment Convention is schedule 10 to the Act and is entitled "Convention Concerning Termination of Employment at the Initiative of the Employer". In article 3 of the Convention it is provided that "For the purpose of this Convention, the terms `termination' and `termination of employment' mean termination of employment at the initiative of the employer." That is, as Mr Justice Gray found in The Association of Professional Engineers Scientists and Managers Australasia and another v Skilled Engineering Pty Limited (1994) IRCR 106, there has to be an act of the employer to give the ending of the employment the appropriate characteristics which bring it within the ambit of the legislation. In this case the contract is to come to an end at the end of October 1995 by the effluxion of time. No act is required on the part of the employer or has been done on the part of the employer to cause the ending of the employment on that date and it is therefore not possible on that basis to say that the employment is to be terminated at the initiative of the employer. Mr Chamberlain argues that there are other issues which the Applicant ought to be allowed to argue in this Application. He asserts that the Applicant had a legitimate expectation of continuing employment, that there were practices within the University of which his client ought to be allowed to call evidence which support the view that her expectation was reasonable in all the circumstances and ought to be allowed to take effect. I note that in one of the cases to which Dr Jessop referred, and that is Croduscia v The University of Adelaide, a decision of the Stanley J of the Industrial Commission in South Australia, the Court was of the view that if a contract of employment had come to an end, then any expectation the employee may have had as to the likelihood of renewal was not relevant in considering the issue of the termination of employment. I agree with that view. Before this Court can entertain an Application under Section 170(EA) there has to have been a termination of employment within the meaning of the Act, and I find that in this case there has been no such termination. If there had been a termination within the meaning of the Act, then certainly this Court would have provided a forum in which the Applicant could have argued the other issues which have been raised in her affidavit and by Mr Chamberlain in submissions and certainly they are issues which may well have some substance if they were argued in the proper forum. It may be that the Applicant has some course of action which she may bring before another Court or another tribunal, and that is a matter for her. However the termination of the Applicant's employment which is foreshadowed which will occur at the end of October of 1995 is not a termination at the initiative of the employer within the meaning of the Convention and of this Act. I therefore find make an order pursuant to order 21 rule 2(1) that the Application be dismissed because there is no reasonable cause of action disclosed before me. I decline to make an order for costs. Such orders are made rarely in this Court in Applications under Section 170EA. This is certainly a matter which is close to the line. My finding that no reasonable cause of action is disclosed is not the same as saying that there was no reasonable cause to bring the application in the first instance. They are two different considerations. I agree with Mr Chamberlain's submission that the Applicant brought this Application on the advice of her solicitors and in good faith and the fact that she has not been successful in finding in this Court a forum which will give her a remedy does not mean that she should suffer a cost penalty given the terms of the costs provisions of the Industrial Relations Act. The order that I make is that the Application be dismissed. I certify that this and the preceding 2 pages are my Reasons for Judgment.