Jennifer Kent and the Australian Nursing Federation v Wangaratta Private Hospital [1996] IRCA 44

DECISION NO: 44/96 C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - claim of unlawful termination - operational requirements - redundancy - whether harsh, unjust and unreasonable. Industrial Relations Act 1988, S170CA, S170DE, S170EE, Schedule 11 CASES: Jones v Department of Energy and Minerals (1995) 60 I.R. 304

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Association of Professional Engineers, Scientists and Managers Australia on Behalf of Philip Edward Cross v Deniliquin Council (unreported) 14 December 1995

JENNIFER KENT AND THE AUSTRALIAN NURSING FEDERATION -v- WANGARATTA PRIVATE HOSPITAL No. VI-3004 of 1995 Before: Judicial Registrar Ryan

Place: Melbourne

Date: 19 February 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-3004 of 1995 B E T W E E N : JENNIFER KENT & THE AUSTRALIAN NURSING FEDERATION Applicant AND WANGARATTA PRIVATE HOSPITAL Respondent MINUTES OF ORDERS Judicial Registrar Ryan 19 February 1996 THE COURT ORDERS: 1. That the application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-3004 of 1995 B E T W E E N : JENNIFER KENT & THE AUSTRALIAN NURSING FEDERATION Applicant AND WANGARATTA PRIVATE HOSPITAL Respondent Before: Judicial Registrar Ryan Place: Melbourne Date: 19 February 1996 REASONS FOR JUDGMENT CLAIM OF UNLAWFUL TERMINATION OF EMPLOYMENT Strictly speaking this is an application by the Australian Nursing Federation on behalf of Mrs Jennifer Kent. However in the judgment Mrs Kent is referred to as the "applicant" and the Federation as the "union". All statutory references are to the Industrial Relations Act 1988. THE EMPLOYMENT On 23 September 1994 the applicant applied in writing for the Senior Nursing position of Unit Manager, Grade 4 at the Wangaratta Private Hospital. She had spent the previous four years in a Grade 5 position as the Assistant Director of Nursing at the Mitcham Private Hospital. She states that she was attracted to the Wangaratta position because of the country location, the opportunity to be involved in the commissioning of a new private hospital and the possibility of working normal hours with weekends off. On 3 October 1994 she was interviewed at the Wangaratta Private Hospital by the General Manager, Mr Allan Boston and the Director of Nursing, Mrs Ann Cassidy. On 7 October 1994 the applicant faxed a letter to Mrs Cassidy in which she stated: "I accept your verbal offer of the position of Unit Manager/Co-ordinator, Obstetric and Gynaecology Services, made to me during our telephone conversation on Tuesday 4 October 1994 at 7:45 pm." The applicant stated in the letter that her acceptance of the position was subject to certain conditions including: (i) initial accommodation costs (ii) travelling costs (iii) extended hours 3 days per week to facilitate the organisation and relocation of her family from Melbourne to Wangaratta by mid to late November (iv) amended job title and job description (v) agreement on a wage package prior to 17 October 1994 On 10 October 1994 Mrs Cassidy wrote to the applicant as follows: "Following our recent discussions, I wish to formally offer you the position of the Unit Manager/Nursing Services at Wangaratta Private Hospital. Conditions of employment are outlined below: 1. Registered Nurse Grade 5A (13-50 beds) 2. 76 hours per fortnight 3. five (5) weeks annual leave 4. not required to work public holidays 5. as per Federal Nurses (Victorian Health Services) Award 1992 Mrs Cassidy also confirmed in her letter that the initial conditions in respect of accommodation, travel and working hours were acceptable and that the position title would be Unit Manager/Nursing Services "or other title reflective of your combined position descriptions as deemed appropriate by yourself". An amended position description was enclosed with the letter and the reference to "combined position descriptions" was a reference to an agreement reached between the applicant and her employer that she was to be paid at Grade 5A because she was to co-ordinate obstetric and gynaecology services as well as act as the Unit Manager. At this stage the hospital had not opened and the original intention had been three Unit Managers all at Grade 4 level, one to manage theatre, one to manage patient services in general and one to co-ordinate obstetrics. Following the negotiations with the applicant, the structure was changed to provide for two Grade 5A Unit Managers, one for theatre and the other for patient services including birthing unit staff, ward staff and obstetrics. Later, as a result of a restructure which led to the termination of the applicant on 2 June 1995 the structure was changed again to provide for one Unit Manager, Grade 5A, with an Associate Charge Nurse, Grade 3A, in charge of theatre and an Associate Charge Nurse, Grade 3A, in charge of patient services. The applicant began part-time on 24 October and full-time on 7 November. The hospital opened on 21 November and patients were admitted on 22 November. On 25 November the applicant and Mr Boston signed a document (Exhibit R11) which was stated to be a contract of employment and contained the following statements described as "conditions". Status: Unit Manager