DECISION NO: 130/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - series of SPECIFIED TERM CONTRACTS - whether continuing employment - whether termination at the initiative of the employer - applicability of RRR Award - whether VALID REASON for termination - REINSTATEMENT Industrial Relations Act 1988 ss 170DE, 170EDA, 170EE(1) Western Australian Government/Australian Liquor, Hospitality And Miscellaneous Workers Union (ALHMU) Redeployment, Retraining And Redundancy (Interim) Award, 1994, cl 4, 6, 7, 8, 9 & 10, Schedule A D'Lima v Board of Management of Princess Margaret Hospital for Children, unreported, Marshall J, Industrial Relations Court of Australia, No. 407/95, 25 August 1995 Ferry v Minister for Health, Western Australia, unreported, Marshall J, Industrial Relations Court of Australia, No. 408/95, 25 August 1995 Quality Bakers of Australia Limited v Goulding (1995) 60 IR 327 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 Ferry v Minister for Health, Western Australia, unreported, Wilcox CJ, North & Madgwick JJ, Industrial Relations Court of Australia, 4 April 1996 Derek SCALLY, Candida THIEN-SOE & Albrecht VINSON v BOARD OF MANAGEMENT OF SIR CHARLES GAIRDNER HOSPITAL WI 2266 of 1995, WI 2268 of 1995 & WI 2398 of 1995 BEFORE: BOON JR PLACE: PERTH DATE: 4 APRIL 1996 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WI 2266 of 1995, WI 2268 of 1995 & WI 2398 of 1995 B E T W E E N: DEREK SCALLY, CANDIDA THIEN-SOE & ALBRECHT VINSON Applicants A N D: BOARD OF MANAGEMENT OF SIR CHARLES GAIRDNER HOSPITAL Respondent MINUTE OF ORDERS 4 APRIL 1996 BOON JR THE COURT DECLARES AND ORDERS THAT: 1. The termination of the employment of each of the applicants contravened Section 170DE of the Industrial Relations Act 1988. 2. The respondent appoint each applicant to another position with the respondent on terms and conditions no less favourable than those on which the applicants were employed immediately before the termination of his or her employment. 3 (a) The employment of Derek Scally is deemed to have been continuous for all purposes from 30 January 1995 to 29 October 1995. (b) The employment of Candida Thien-Soe is deemed to have been continuous for all purposes from 10 March 1994 until 29 October 1995. (c) The employment of Albrecht Vinson is deemed to have been continuous for all purposes from 14 November 1994 until 29 October 1995. 4. The matter is adjourned to 9.30 am on 2 May 1996 to enable the parties to calculate the amount of remuneration lost by each applicant because of the termination. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WI 2266 of 1995, WI 2268 of 1995 & WI 2398 of 1995 B E T W E E N: DEREK SCALLY, CANDIDA THIEN-SOE & ALBRECHT VINSON Applicants A N D: BOARD OF MANAGEMENT OF SIR CHARLES GAIRDNER HOSPITAL Respondent REASONS FOR DECISION 4 APRIL 1996 BOON JR 1. The applicants, Mr Scally, Ms Thien-Soe and Mr Vinson, have applied under Section 170EA of the Industrial Relations Act 1988 for orders for reinstatement and payment of compensation in relation to the alleged unlawful termination of their employment by the respondent. The applicants say that they were continuously employed by the respondent until 29 October 1995. They say that the termination of their employment occurred at the initiative of the employer in that the respondent wrote letters to them on 9 October 1995 to advise that no further employment would be offered to them beyond 29 October 1995. It is further said by the applicants that there was no valid reason for the termination of their employment. 2. The respondent states that the applicants were employed pursuant to a series of fixed term contracts and that the employment ended by effluxion of time rather than by termination at the initiative of the employer. It is the respondent's position that this Court has no jurisdiction to hear and determine these matters. 3. There is no suggestion that the applicants were guilty of any misconduct or that their performance was in question. 4. The respondent, Sir Charles Gairdner Hospital, is a public hospital operated by the State of Western Australia. Because of a change in government policy it was decided that the hospital would from 30 October 1995 use private contractors in its orderly department. Mr Scally, at the time of his termination, was employed in the orderly department of the hospital and he was directly replaced by a private contractor. A number of other orderlies who were not on fixed term contracts were redeployed in various other parts of the hospital. Ms Thien-Soe and Mr Vinson were replaced by redeployed orderlies. 5. The applicants claim that the termination of their employment breached the provisions of the Western Australian Government/Australian Liquor, Hospitality and Miscellaneous Workers Union (ALHMU) Redeployment, Retraining and Redundancy (Interim) Award, 1994. It is the respondent's argument that the award, commonly known as the RRR award, is not relevant to this matter. THE EVIDENCE Ms Thien-Soe 6. Ms Thien-Soe gave evidence that she first came to be employed at the hospital when she put in an application form to the catering section. After an interview, she was offered a position in the linen services department. Her initial period of employment started on 31 May 1993. At her interview, Ms Thien-Soe was told that it was a casual position. Her hours were from 7.00 am to 3.30 pm on Monday to Friday inclusive. Ms Thien-Soe said that she was given a contract to sign after she started work. In her evidence-in-chief she said that she signed it at the end of her first week or perhaps one or two weeks later. When she was shown the contract bearing her signature dated 1 June 1993 during cross-examination, she conceded that perhaps she had signed it on the second day of her employment. 7. The initial document signed by Ms Thien-Soe is dated 31 May and states as follows: "Dear Candida I have pleasure in formally offering you a temporary appointment as a Linen Assistant in the Supply Department. The term of your appointment will be from Monday, 31 May 1993 to Wednesday, 30 June 1993, both dates inclusive. This Hospital cannot provide any guarantee of permanency to temporary staff and unless this appointment is formally extended, your employment with this Hospital will cease on the above date without further advice from us. A cheque for your final pay will be available from the Salaries and Wages Office, Financial Accounting, at 3.30 pm on the above date. The conditions of service applicable to this position are those of the Hospital Workers' Government Award, a copy of which is available in the Physical Resources Unit. In summary, these conditions provide for: A salary of $596 per fortnight (HWGA Level 1 - 1st year) (under 19 years of age). An 80 hour fortnight, as rostered of which 4 hours per fortnight will be credited towards accrued leave. Pro-rata annual leave will be paid on termination. Please sign the enclosed Acceptance Confirmation copy of this letter and return to me at your earliest convenience. I congratulate you on this appointment and I wish you success in this position. Yours sincerely D Singh Senior Personnel Officer Physical Resources Division" 8. Ms Thien-Soe's evidence was that she signed a series of contracts after this initial contract. Each new contract was given to her by people in her department. There was no discussion about the contracts. She was given the pieces of paper and she signed them. 9. The second written contract offered to Ms Thien-Soe offered an extension to her "present appointment until 30 July 1993". Ms Thien-Soe's evidence was that she worked in this manner, signing successive contracts, until 30 September 1993. When she left on 30 September 1993, Ms Thien-Soe went on a holiday back to her own country with her sister and brother-in-law. Her boss told her when she left that she would probably be called in for further work. 10. Ms Thien-Soe was offered further employment from 10 March 1994. The only contracts in writing relating to Ms Thien-Soe which were produced at the hearing of this matter, apart from these already referred to, were letters dated 24 November 1994, 29 May 1995, 22 June 1995 and 29 September 1995. Ms Thien-Soe's evidence was that she worked without interruption from 10 March 1994 until 29 October 1995. She said that after 9 December 1994 she didn't receive any more contracts in writing but she continued working until June 1995 when the written contracts started again. Ms Thien-Soe's evidence was that sometimes the written contracts would be several days late. She said that she never looked for a contract. If a contract was late, she didn't stop work but continued to work in her normal manner. This is borne out by some of the written contracts tendered in evidence. The letter dated 29 May 1995 offered an extension to Ms Thien-Soe's "present appointment, until Friday 30 June 1995". The "present appointment" referred to expired on 31 May 1995. The acceptance confirmation was signed by Ms Thien-Soe on 2 June 1995. Further, a letter dated 22 June 1995 offered an extension to Ms Thien-Soe's "present appointment until Saturday, 30 September 1995". That letter was signed in "acceptance confirmation" by Ms Thien-Soe on 7 July 1995. 11. On 19 June 1995, Ms Thien-Soe was promoted to leading hand in an acting capacity and some time after that she was appointed as a supervisor in an acting capacity. Ms Thien-Soe received her usual base rate of pay plus a higher duties allowance. At the time she finished her employment with the respondent on 29 October 1995, she was still acting as a supervisor. 12. The last "contract" in writing sent to Ms Thien-Soe was dated 29 September 1995. That letter reads as follows: "Dear Candida OFFER OF FIXED TERM CONTRACT OF EMPLOYMENT I am pleased to offer you a fixed term contract of employment as a full-time Level 1 Hospital Worker in the Linen Services Department as follows: . This fixed term of the contract will be from 1 October 1995 to 29 October 1995 both dates inclusive. . Your general terms and conditions of employment will be in accordance with the Hospital Workers (Government) Award, a copy of which is available for inspection at the Human Resources Reception Desk on the 1st Floor of "E" Block. . You will be paid the prescribed rate for a Hospital Worker Level 1.1 Year of Service under the above Award. The rate is currently $771.00 per fortnight. In addition you will be paid such penalty rates and allowances as may from time to time be applicable under the Award. . Your contracted hours of work will be 80 hours per fortnight as rostered from time to time. . On the day this fixed term contract expires a cheque for your final pay will be available for you to collect from the Salaries & Wages Office on the 1st Floor of "A" Block at 3.30 PM. . This letter constitutes the whole of the offer made by the Hospital and does not mean that any subsequent offer of employment will be made or any other contract of employment will be entered into between the Hospital and you. . In the event the Hospital does elect to make a subsequent offer of employment it will be in the form of a written offer subject to such terms and conditions as may be contained in the letter to you. If you wish to accept this fixed term contract under the terms and conditions specified please sign the attached copy of this letter and return it to the undersigned by 6 October 1995. Yours faithfully Brigit Button HUMAN RESOURCE OFFICER " 13. This letter was stamped with the following endorsement: "I acknowledge that I have been contracted for the above period only and following the expiration of this Fixed Term Contract there is no obligation on either party to enter into any further employment arrangements. ________________________ __/__/__ Signature Date " 14. Ms Thien-Soe gave evidence that she did not sign the contract dated 29 September 1995 as a workmate had told her not to sign it. Ms Thien-Soe's evidence was that she thought she would be continuing in her employment in any event as this had always happened before. On 7 October 1995, Ms Thien-Soe was called into the office by her immediate superior. He told Ms Thien-Soe that he wanted to send her on a supervisor's training course. Ms Thien-Soe said that she was very happy because it appeared that she may become a permanent supervisor. 15. On 9 October 1995 Ms Thien-Soe was handed a letter in the following terms: "Dear Ms Thien-Soe You have been employed on a fixed term contract for the period ending on 29 October 1995. I write to advise you that following the expiration of this contract no further employment will be offered. A cheque for your final pay will be available for you to collect from your supervisor at the completion of your last shift. Prior to collecting your cheque all Hospital Property including uniforms and identity photos need to be returned to your Supervisor. On behalf of the hospital I thank you for your contribution and wish you well for the future. Yours faithfully Tess Valli ASSISTANT HUMAN RESOURCE OFFICER" 16. Ms Thien-Soe said that when she first received the letter she was trying to tell herself that she would be offered a renewed contract. Her contract had always been renewed in the past. She said that she found it very difficult to accept that her employment had been terminated and that it came as a great shock to her. I accept Ms Thien-Soe's evidence that the termination of her employment caused her significant distress. The distress manifested itself in repeated vomiting and "breaking down" on the part of Ms Thien-Soe. She was forced to seek formal counselling. 17. Although Ms Thien-Soe has since her termination been offered employment by Health Care Linen, she has no job security and is employed on a casual basis only. Mr Vinson 18. Mr Vinson gave evidence that he was employed at the hospital from 14 November 1994. He worked in the kitchen of the hospital as a cleaner. For most of his period of employment with the respondent he worked three hours per day, five days a week. The first contract Mr Vinson was asked to sign was in the following terms: "Dear Albrecht I have pleasure in formally offering you a fixed term contract as a Hospital Worker, Level 1 in the Division of Patient Support Services. The term of your fixed term contract will be from Monday, 14 November 1994 to Sunday, 18 December 1994 both dates inclusive. This offer is no way implies the expectation or otherwise of continued employment beyond the period described above. The conditions of service applicable to this position are those of the Hospital Workers' (Government) Award, a copy of which is available in the Human Resources Unit. In summary, these conditions provide for: A Salary of $297.90 per fortnight (HWGA L 1.1). A 30 hour fortnight, as rostered. Pro-rata annual leave will be paid on termination. It will be a condition of appointment that you satisfactorily complete a 3 month probationary period during which you will be appraised to aid and assess your progress. Should you wish to resign during the fixed term contract period, you will be required to give 2 weeks notice. Additionally, this offer of appointment is conditional on you providing: A copy of your Birth Certificate or Extract of Birth. Evidence of Australian citizenship or permanent residency status (if born outside Australia or New Zealand). Please sign the enclosed Acceptance Confirmation copy of this letter and return it to me at your earliest convenience." 19. The next contract Mr Vinson was sent was a letter dated 8 December 1994 in terms very similar to the letter of 15 November 1994, except that there was no reference to the birth certificate and evidence of Australian citizenship or permanent residency status. The period set out in that letter for the "fixed term contract" was from Monday, 19 December 1994 to Sunday, 25 December 1994. Mr Vinson signed the "Acceptance Confirmation" on the letter on 13 December 1994. Mr Vinson was then sent further contracts to sign on a fortnightly basis. Those contracts were identical in terms to the letter of 8 December 1994, up to the 3 July 1995. On 18 July 1995 and 3 August 1995, the fortnightly contracts were identical to the documents just mentioned with the exception that Mr Vinson's title changed to "Food Service Attendant in Catering Services", and for the period between 7 August 1995 and 20 August 1995 he was rostered for a 45 hour fortnight. Mr Vinson said that in August 1995 he was asked by his superiors if he would agree to being more "flexible" in his hours and Mr Vinson said that he acceded to the request as he understood that he would be working more hours than the 30 hours per fortnight that he had usually been working. In fact, his hours were then reduced to three hours each Saturday and Sunday morning for the remainder of his period of employment. 20. Mr Vinson's evidence was that the written contracts were sometimes received by him on time and were sometimes up to a week late. His evidence was that he continued to work, whether or not he had received a written contract. Some of the contracts he signed immediately and some he took home and signed the next day. There was never any discussion about the contracts. It was clear from the copies of the contract tendered in evidence in this Court that they were sometimes signed by Mr Vinson after the period of employment set out in the document had already commenced. On at least one occasion the date of the letter offering the contract was after the date upon which the contract was due to commence. For example, the letter dated 8 March 1995 to Mr Vinson offered him employment from Monday 6 March 1995 to Sunday 19 March 1995. That contract was not signed by Mr Vinson until 17 March 1995. Further, a number of the other contracts were not signed by Mr Vinson until after the period stated in the offer of employment had already commenced. 21. Mr Vinson was sent a letter dated 15 September 1995 in terms very similar to the letter already referred to which was sent to Ms Thien-Soe on 29 September 1995. Mr Vinson's evidence was that he received this letter four or five days late. He took it home and said to his wife "Look, I get the sack". The letter referred to a contact person in the catering department, Joanna Mason. Mr Vinson said that he telephoned Ms Mason and she assured him that he was not getting the sack. Ms Mason, according to Mr Vinson, assured him that he would still continue to work for the hospital and that they would let him know if his employment was to finish. Some weeks later Mr Vinson received a letter dated 9 October 1995 in identical terms to the letter of the same date already referred to in relation to Ms Thien-Soe. Mr Vinson said that he was very upset when he received that letter. He asked a supervisor about it and was told that they couldn't help him. It was the first time in his life he had been given the sack and as a result he felt very "down". Mr Vinson's only employment since his employment with the hospital finished has been a five day period for which he earnt about $560. Mr Scally 22. Mr Scally gave evidence that he started work with the hospital on 30 January 1995 and worked for a continuous period until his employment terminated on 29 October 1995. Mr Scally said that he came in for an interview with the boss of the cleaning services and was told that the position would be part-time, between the hours of 6.00 and 9.00 Monday to Friday. At the interview he was told that the contract would probably be for about three months. Mr Scally assumed that the initial three months would be a probationary period and that he might be put on permanent staff after that, although he concedes he was never told this by his employer. According to Mr Scally, his written contract was renewed every fortnight. Mr Scally's evidence was that he kept asking if he could obtain some full time work and for several periods he was seconded from the cleaning section to the orderly department. Mr Scally was working in the orderly section at the time his employment with the respondent finished. 23. When Mr Scally started his employment with the respondent, he was sent a letter dated 30 January 1995 in very similar terms to the letter received by Mr Vinson dated 15 November 1994 already referred to. He received further letters extending his period of employment in similar terms to the letters referred to in relation to Mr Vinson. As was the case with Mr Vinson, Mr Scally sometimes signed the letters of offer after the period of employment stated in the letters had already commenced. Mr Scally's evidence was that there was no discussion about what was contained in the contracts. Sometimes he would receive the letters late although they were never more than one or two days late. Mr Scally said that he never stopped work and told himself that a contract would come down from the human resources department. He was told that the contracts sometimes arrived late and he simply carried on with his duties. Mr Scally received a letter dated 19 September 1995 identical in terms to the letters received by Ms Thien-Soe dated 29 September 1995 and Mr Vinson dated 15 September 1995. Further, Mr Scally received a letter dated 9 October 1995 identical in terms to the letters of the same date received by Ms Thien-Soe and Mr Vinson. 24. Mr Scally's evidence was that when he received the letter of 9 October 1995, it came as a complete shock to him. Mr Scally asked Tess Valli in human resources for the reason for his termination and she couldn't give him an answer. He was annoyed that it had happened to him as he had never been "given the sack" before. 25. The Court also heard evidence from Ms Glenda Carson, the senior human resources officer at Sir Charles Gairdner Hospital. Her evidence was that the hospital had employees on fixed term contracts in numerous areas including cleaning, linen and orderly services. The final contracts given to the applicants were produced in the human resources department by Tess Valli on request from the line managers in charge of these areas. Her evidence was that normally the fixed term contracts have a follow up date two to three weeks prior to the end of the contract and the human resources department would contact the hospital department to see if they wanted a continuation of the employment. Numerous copies of the contracts were made. Ms Carson said that the actual termination day of 29 October was known to her approximately two months or six weeks before that date. 26. Ms Carson's evidence was that the jobs previously held by the applicants in this matter were given to permanent former orderlies who were transferred when the orderly department was taken over by a private contractor. The positions previously held by the applicants would not necessarily be vacant now. She said that if the applicants were to be reinstated, they would need to be redeployed. There are still 23 permanent orderlies and three other staff waiting since October 1995 for redeployment throughout the WA Health Department. There are several other public hospitals in Western Australia which are about to be privatised. According to Ms Carson, the redeployment of the applicants would be difficult. Ms Carson acknowledged that the government's policy was not to retrench its employees but to redeploy them. 27. The respondent called Mr Jack Olive, a project officer with the hospital, to give evidence. Mr Olive was previously acting manager of the orderly services department. He said that he had had a number of workers on fixed term contracts in his department. His evidence was that he remembered speaking to Derek Scally about the fixed term contracts. Mr Olive said that Mr Scally approached him on a number of occasions to speak to him about moving to the orderly department, and to speak about his future. Mr Olive's evidence was that he discussed with Mr Scally the fact that the orderly services were going to be contracted out and that if the employees wanted to remain as orderlies they would have to be employed by the private contractor. He said he discussed this with all of the orderlies in his charge. They numbered 115.5 orderlies all working on different shifts. Mr Olive said that he counselled them one on one or collectively in small groups about this matter. Mr Olive was unable to say upon which date or dates he spoke to Mr Scally or to give an estimate of when he did so. Mr Scally gave evidence that Mr Olive did not speak to him about this matter. He expected to continue in his employment. I consider that, on balance, Mr Scally's version of the events is more likely to be accurate than that of Mr Olive. This is because Mr Olive was uncertain about when he would have spoken to Mr Scally and because he acknowledged that he had spoken to a large number of orderlies about this matter. 28. The Court also heard from Ms Sharon Pratt, the catering manager at the hospital. She said that when the catering department was contacted by the human resources department she would review what opportunities there were for further employment; for example, what vacancies there were due to absences because of people being on workers' compensation and people on leave, and they would offer what employment they could. They would make a decision on continued employment before the follow up date. 29. Ms Pratt acknowledged that Mr Vinson accumulated his sick leave from one contract period to the next. 30. Ms Pratt said that she would have made the decision to terminate Mr Vinson's employment. She said that when Mr Vinson was employed, it was already decided that his position was one which was earmarked to go upon the privatisation of the orderly section. There is no evidence that Mr Vinson was ever advised of this. Ms Pratt said that when deciding who should be kept on rather than terminated, she took into account who had been employed with the hospital the longest, and who had been working more hours than Mr Vinson. Ms Pratt said that there would have been some Level 1 hospital workers who would have continued on in their employment beyond 29 October 1995. 31. Michael McLoughlin, the project manager of redeployment with the Public Sector Management Office, also gave evidence. He confirmed that at present there were 28 people at the hospital who were still waiting for redeployment. The Public Sector Management Office helped organisations in the public sector with restructuring, and it helped individuals with redeployment. The office covered the whole of the public sector and assisted public sector organisations with finding suitable alternative employment for people on redeployment lists. He confirmed that the policy of the government is to redeploy rather than considering severance payments for redundancy. WAS THIS A TERMINATION AT THE INITIATIVE OF THE EMPLOYER? 32. The respondent argues that there was no termination at the initiative of the employer in this matter. It is said that the contracts of employment simply ended by effluxion of time. Counsel for the respondent, Mr Matthews, submitted that where a contract of employment entered into between an employer and an employee is for a fixed term, courts and industrial tribunals are loath to intervene because the parties have agreed on the precise way in which their agreement will come to an end. It was said that a clear line of authority shows that the ending of the fixed term contract by effluxion of time is not to be regarded as a dismissal or termination by, or at the initiative of, the employer. The cases cited in support of that proposition were decided in relation to matters in other jurisdictions. 33. The applicant relies on the case of D'Lima v Board of Management of Princess Margaret Hospital for Children, unreported, IRCA No. 407/95, Marshall J, 25 August 1995. It appears to me that the facts in the D'Lima case are very similar to the facts in the matters before me. Ms D'Lima was engaged by the Princess Margaret Hospital as a cleaner and her period of employment with the respondent commenced on 18 June 1993. Ms D'Lima was also asked to sign a number of fixed term contracts, each specifying a period of time for which she was to be employed. Ms D'Lima's evidence was that the practice was that even if her contract came to an end she continued to work. Her evidence was that "We all understood that you kept working unless you were told otherwise despite your contracts coming to an end". Marshall J said at page 9 of his decision: "In substance, and in truth, Ms D'Lima was employed continuously from 18 June 1993 to 11 December 1994 and during such employment requested and was granted leave without pay in March/April 1994. I reject unreservedly the submission of Mr Hooker that Ms D'Lima was employed on a series of fixed term contracts and that each contract expired on its own terms. Such a submission is totally at odds with the evidence." 34. Further, at page 10, his Honour said: "I likewise reject the submission of Mr Hooker that the dismissal of Ms D'Lima was not a termination of employment at the initiative of the employer. The fact of the matter was that Ms D'Lima was continuously employed from 18 June 1993 to 11 December 1994 on which latter date her employment was terminated by the hospital. The practice of signing further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the Court to ignore the weight of strong countervailing factors indicating a continuous employment relationship. Mr Hooker described the relationship as 'relatively' continuous. I find no basis for the use of the adjective 'relatively' in that context." 35. Counsel for the respondent sought to distinguish the facts in this matter from those in the D'Lima case. His written submissions state: "The evidence in this matter has been largely to the effect that the applicant's (sic) received the offer of a fixed term contract prior to the period covered by that contract commencing. Further the nature of fixed term contracts were explained to each applicant. This is to be contrasted with D'Lima where normally the period of employment covered by a contract had commenced before an offer of further employment was made and there was no evidence that the terms of the contract were explained. In those instances where the applicant did not receive a contract prior to the period covered by the contract the conclusion ought to be drawn that the contract applied retrospectively: Trollope & Colls Limited v E W Touschke Pty Ltd (1974) VR 39. ... Further in these matters each applicant was given notice in accordance with the state award provisions. ... Further, the contracts entered into by the applicants were far more clear in relation to the basis upon which the applicants were employed than in D'Lima and Ferry. The contracts the expiry of which marked the end of the applicants employment with the respondent included the following acknowledgment; 'I acknowledge that I've been contracted for the above period only and following the expiration of this fixed term contract there is no obligation on either party to enter into any further employment arrangements.' These factors ought to lead to the conclusion, on the facts and the law, that the applicant's (sic) were employed on a series of discrete fixed term contracts rather than one continuous contract of employment. In the circumstances of this matter the applicants were continuously employed only from the commencement date of a fixed term contract of employment until the expiry date although they were, for varying periods, continually employed on such fixed term contracts". 36. Despite these submissions, I consider that the facts in the matters before me cannot be sufficiently distinguished from those in the D'Lima case and I consider myself bound by his Honour's decision. 37. As to the last part of counsel's submissions, Ms Thien-Soe did not sign the final offer of employment. Ms Thien-Soe's employment was continuous after she returned from her overseas holiday, from 10 March 1994 until 29 October 1995. The evidence was that sometimes she was not provided with a written contract of employment and at all times from 10 March 1994 she continued to work for the respondent without any breaks in her employment. Further, the contracts were backdated on some occasions. 38. The evidence in relation to both Mr Scally and Mr Vinson was that they continued to work continuously for the respondent notwithstanding that their written contracts of employment were sometimes late. The periods of employment were in fact continuous. 39. In their submissions, both Mr Matthews and the union advocate appearing on behalf of the applicants, Mr Kelly, made reference to the decision of his Honour Justice Marshall in the matter of Ferry v Minister for Health, Western Australia, unreported, IRCA No 408/95, 25 August 1995. In that case, his Honour Justice Marshall also found that a hospital worker who had also been subject to successive written contracts of employment was terminated at the initiative of the employer. That matter was heard by the Full Court on appeal and its decision, affirming Marshall J's decision, was handed down earlier today. In any event, I consider that the facts in the D'Lima case are more similar to the facts in the matters before me than were the facts in the Ferry case. 40. Further, the evidence was that the applicants' annual leave and sick leave entitlements accumulated from one contract period to another and this is also consistent with a continuous period of employment. It appears to me that each applicant had a genuine expectation of further employment beyond 29 October 1995. Ms Thien-Soe was advised two days prior to receiving her termination letter that she was going to be sent for further training as a supervisor. The letters dated 9 October 1995 advising the applicants that following the expiration of their contracts on 29 October 1995 no further employment would be offered constitute, in my view, a termination at the initiative of the employer. If they had not received those letters, the applicants would simply have continued to work for the respondent, whether or not they received any further extensions of their contracts on or before 29 October 1995. 41. I find that the periods of employment of the applicants with the respondent were continuous and that the letters from the respondent to the applicants dated 9 October 1995 constituted a "termination at the initiative of the employer". THE APPLICABILITY OF THE RRR AWARD 42. The RRR Award came into being on 3 November 1994. The Sir Charles Gairdner Hospital is named as a respondent to the award. Clause 4 of the award states: "This Award shall be binding upon the Union, all employees eligible to be members of the Union employed by the Respondents and those Respondents. This award shall not apply to employees listed in Schedule A of this Award." 43. Schedule A of the award sets out a list of employees to whom the award does not apply. Sub-clause (3) states: "(3) an employee where an agreement has been reached between the employee, employer and relevant union that the employee is only engaged for a defined period under a fixed term contract at the conclusion of which their employment shall cease." 44. It is not in issue that there was no relevant agreement between the employees, employer and relevant union in this case. Clause 6 of the award states in part: "This award shall be construed as not intended to prevent or restrict an employer respondent from terminating the employment of an employee on the ground of redundancy where the law of Western Australia from time to time so allows ...." 45. Mr Kelly tendered a copy of an operational instruction from the Western Australian Commissioner of Health relating to the ALH&MWU RRR Award. In that operational instruction the Commissioner of Health stated: "The award is to be amended to recognise the right of employers to dismiss on the grounds of redundancy, 'where the law of Western Australia so allows ...'. In practice there has been no change to the position for employers in this regard as the Public Sector Management Regulations do not allow an employer to compulsorily retrench." 46. Although the view expressed by the Commissioner of Health is not binding upon this Court, there is nothing before me which would indicate that a contrary position applies. 47. Clause 7 of the award states in part that: "an employee whose job or position is subject to a redundancy situation shall be entitled to be dealt with in accordance with the procedures and entitled to the benefits provided in Clauses 8, 9 and 10." 48. Clauses 8, 9 and 10 of the award deal with redeployment and retraining, income maintenance and selective voluntary severance or early retirement. If the RRR Award applies to the applicants, it appears that the termination of their employment contravened the provisions of the Award. There is no provision for compulsory retrenchment without benefits. Mr Matthews in his written submission stated as follows: "It is submitted that the RRR Award is not relevant to the question of whether this Court has jurisdiction to deal with this matter. The RRR Award provides the procedure to be followed in relation to employees whose jobs or positions are subject to a redundancy situation. It does not have the effect that where a person ceases to be an employee, on the facts and the law, that the employment relationship is resuscitated so that the RRR Award applies. ... The RRR Award only regulates the situation where a person is employed by a respondent and his position is redundant. Where a person is no longer employed because a contract of employment has ended due to effluxion of time it is irrelevant that if the contract of employment had not expired, or if the worker is reinstated as a result of these proceedings, that the RRR Award would apply." 49. I have already found that the employment of the applicants was terminated at the initiative of the employer and not by effluxion of time. I do not accept the argument put on behalf of the respondent that as the applicants ceased to be employees on 29 October and the new contracting arrangements started on 30 October the RRR Award did not apply to them. It appears to me that this was clearly a redundancy situation and the respondent terminated the applicant's employment because by 30 October 1995 the orderly section of the hospital would be taken over by contractors. The termination of the employment of the applicants, in my view, breached the provisions of the RRR Award. To accept the respondent's argument in this regard would be contrary to the intention of the award. The award itself does not make the distinction sought by the respondent. It specifically refers to fixed term contract employees in Schedule A. As there was no agreement between the union, employer and employees in this case, the RRR Award applies. 50. Further, in the Ferry case, the Full Court said at page 14 of its judgment: "Even if there was an agreement for termination of the employment at the time of closure of the hospital, without any right of redeployment, this would not exclude the operation of the RRR award. By force of statute, and notwithstanding any agreement to the contrary, a valid award of the Australian Industrial Relations Commission is binding on the parties: see s.149 of the Industrial Relations Act. The RRR award applies to all employees of the Western Australian Government other than those listed in Schedule A of the Award". 51. The applicants in this matter did not come within the exceptions listed in Schedule A of the RRR Award. DID THE TERMINATIONS BREACH THE PROVISIONS OF SECTION 170DE OF THE ACT? 52. The respondent is not alleging that the applicants' employment was terminated because of poor work performance or misconduct. The evidence is that the employment of the applicants was terminated to make way for employees of the hospital who had previously been employed in the orderly section and who were listed for redeployment. In the case of Ferry v Minister for Health, Western Australia, Marshall J said at page 12: "The respondent, on the assumption that jurisdiction existed, contended that the employment was terminated for a valid reason. The valid reason was said to be the closure of the hospital. I do not accept that submission. The respondent operated at the time of the termination, and still operates other hospitals. The RRR award applied across the public sector and not only to hospitals conducted by the respondent. It applies equally, at least to those conducted by boards of management within the public sector. To terminate an employee in breach of the employer's obligations under State and Federal awards is not to terminate an employee's employment for a valid reason." 53. His Honour found that in the Ferry case, the respondent had failed to discharge the onus under Section 170EDA to show that the termination was for a valid reason. 54. Further, in the case of Quality Bakers of Australia Limited v Goulding (1995) 60 IR 327, her Honour Justice Beazley held that even in the case of a genuine redundancy, the termination of employment of a particular employee may be harsh, unjust or unreasonable. This is particularly so when there has been no consultation with employees and, if applicable, the employees' union. For these reasons, I consider that the termination of the applicant's employment was in breach of Section 170DE of the Industrial Relations Act. 55. More importantly, a termination of employment in breach of an industrial award binding on the parties is not a termination for a valid reason. THE APPROPRIATE REMEDY 56. The primary remedy under Section 170EE of the Act is intended to be reinstatement. It is only when to order reinstatement would be impracticable that an award of compensation may be ordered in place of reinstatement. Counsel for the respondent submitted that to order reinstatement in this matter would be impracticable. He referred to the case of Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 at 61 where his Honour Wilcox CJ said: "The word impracticable requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and the employee, and to evaluate the practicability of a reinstatement order in a common sense way." 57. It was submitted by Mr Matthews that: "As there are no positions for the applicants to fill with the respondent nor, given the diminution of positions of the respondent for which the applicants are suitable, any likelihood of positions becoming available, reinstatement is not a common sense remedy". 58. Mr Kelly submitted that this case contained a number of factors very similar to the Ferry case. The Sir Charles Gairdner hospital is a very large employer, and part of a large public health system. There is a complete legal framework to deal with people surplus to requirements. It was therefore argued that this case may be distinguished from that of a single private sector employer. The State Government has a policy of no retrenchments and a mechanism is in place to accommodate redeployment. The Public Sector Management Office has become involved in this case and the applicants, if necessary, may be placed on a redeployment list. Mr Kelly pointed to the fact that there is a legal obligation under the RRR Award for the respondent to redeploy redundant employees. It was argued on behalf of the applicants that to say that reinstatement is impracticable is for the respondent to ask for a "back door retrenchment". It was submitted that the government could have applied to amend the RRR Award but instead appears to have deliberately breached the award and then sought to argue that reinstatement would be impracticable. 59. I agree with the position put forward by Mr Kelly. Furthermore, this case bears many similarities to that of the Ferry case insofar as the question of remedy is concerned. In Ferry, the Full Court held that reinstatement would not be impracticable. 60. In the circumstances, I will order pursuant to Section 170EE(1)(a)(2) of the Act that the applicants be appointed to another position with the respondent on terms and conditions no less favourable than those on which the employees were employed immediately before the termination. These conditions would include the State and RRR Awards being applicable to such employment. 61. Further, I will order that the respondent pay to the applicants the remuneration which they have lost because of the termination. Some of the evidence relating to the income of the applicants, both before and after termination, was unclear. In those circumstances, I will order that the respondent pay to the applicants the sum representing lost remuneration from the date of termination until the date of reinstatement. I will adjourn the matter for a month to enable the parties to calculate the amount of remuneration lost by each applicant because of the termination. If agreement is reached before that time, a consent order can be made pursuant to Order 35 Rule 10. The orders are as follows: 1. It is declared that the termination of the employment of each of the applicants contravened Section 170DE of the Industrial Relations Act 1988. 2. The respondent appoint each applicant to another position with the respondent on terms and conditions no less favourable than those on which the applicants were employed immediately before the termination of his or her employment. 3(a) The employment of Derek Scally is deemed to have been continuous for all purposes from 30 January 1995 to 29 October 1995. (b) The employment of Candida Thien-Soe is deemed to have been continuous for all purposes from 10 March 1994 until 29 October 1995. (c) The employment of Albrecht Vinson is deemed to have been continuous for all purposes from 14 November 1994 until 29 October 1995. 4. The matter is adjourned to 9.30 am on 2 May 1996 to enable the parties to calculate the amount of remuneration lost by each applicant because of the termination. I certify that this and the preceding twenty-eight (28) pages are a strue copy of the reasons for decision of Judicial Registrar Boon as recorded in the transcript and revised by the Judicial Registrar Associate: Dated: APPEARANCES Representative for the applicants: Mr D Kelly Australian Liquor, Hospitality and Miscellaneous Workers Union Counsel for the respondent: Mr D Matthews Solicitors for the respondent: State Crown Solicitor for the State of Western Australia Dates of Hearing: 20 & 21 March 1996 Date of Judgment: 4 April 1996