COLL and AUSTRALIAN SERVICES UNION v SHIRE OF YARRA RANGES [1997] IRCA 39

DECISION NO:39/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - employee allegedly appointed under a series of letters describing her employment as temporary - whether employee was a temporary employee under the relevant award - whether there was a termination at the initiative of the employer - whether employee terminated for reasons including pregnancy or family responsibilities Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) ss 170DB, 170DE, 170DF, 170EA, 170EE, 170EDA, 377 Jason Yew v ACI Glass Packing Pty Limited (IRCA, Wilcox CJ, 11 December 1996, unreported) Johns v Gunns Limited (1995) 60 IR 258

Victorian Local Authorities Interim Award 1991 COLLEEN MARY COLL and AUSTRALIAN SERVICES UNION v SHIRE OF YARRA RANGES No. VI 4112R of 1995

Before: MARSHALL J Place: MELBOURNE Date of hearing: 10 FEBRUARY 1997 Date of judgment: 24 FEBRUARY 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VI 4112R of 1995 B E T W E E N : COLLEEN MARY COLL and AUSTRALIAN SERVICES UNION Applicants A N D SHIRE OF YARRA RANGES Respondent BEFORE: MARSHALL J PLACE: MELBOURNE DATE: 24 FEBRUARY 1997 MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The order of Judicial Registrar Murphy of 6 August 1996 be set aside. 2. The respondent shall on or before 3 March 1997 reappoint the applicant to another position on terms and conditions no less favourable than those on which the applicant was employed before the termination. 3. The respondent shall treat the applicant as having been continuously employed by it from 1 August 1995. 4. The respondent shall pay to the applicant on or before 21 March 1997 the sum of $6,232.65 by way of remuneration lost. 5. On or before 21 March 1997 the respondent shall pay the applicant $313.72 by way of damages. 6. The respondent shall pay to the Australian Taxation Office the sum of $826.50 on or before 21 March 1997. 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 VICTORIA DISTRICT REGISTRY No. VI 4112R of 1995 B E T W E E N : COLLEEN MARY COLL and AUSTRALIAN SERVICES UNION Applicants A N D SHIRE OF YARRA RANGES Respondent BEFORE: MARSHALL J PLACE: MELBOURNE DATE: 24 FEBRUARY 1997 REASONS FOR JUDGMENT This is an application by Colleen Mary Coll and the Australian Municipal, Administrative, Clerical and Services Union ("ASU") pursuant to s377 Workplace Relations Act 1996 ("the Act") to review a Judicial Registrar's exercise of power in proceedings under Division 3 of Part VIA of the Act. BACKGROUND - THE PROCEEDINGS On 3 August 1995, Ms Coll made application pursuant to s170EA Industrial Relations Act 1988 ("the IR Act") in respect of what she alleged to be the unlawful termination of her employment by the respondent, the Shire of Yarra Ranges ("Yarra Ranges"). On 16 August 1995, the matter was referred by the District Registrar of the Court to the Australian Industrial Relations Commission ("the Commission") for conciliation. On 9 October 1995, Commissioner Hingley certified that the Commission had been unable to settle the matter by conciliation. The application was heard by Judicial Registrar Murphy on 8 July and 6 August 1996. The Judicial Registrar ordered that Ms Coll be paid a sum of $392.18, representing two weeks wages in lieu of notice, but otherwise dismissed Ms Coll's application. By notice of motion, dated 23 August 1996, Ms Coll and ASU applied for a review of the power exercised by the Judicial Registrar. A directions hearing in the review application was heard by Gray J on 23 September 1996. Gray J ordered that the review be conducted on the transcript of the evidence and the exhibits tendered before the Judicial Registrar. The review was heard on 10 February 1997. The evidence before the Judicial Registrar was supplemented, ultimately by consent, by some additional testimony from Ms Coll. Mr Richard Niall of counsel appeared for Ms Coll and ASU. Mr Gary Katz, solicitor, appeared for Yarra Ranges. BACKGROUND - THE FACTS Yarra Ranges is a municipal body which owes its existence to an amalgamation of four shires which occurred in December 1994. Healesville Shire Council ("Healesville") was one of the shires concerned in the amalgamation. At all material times, Healesville was a respondent to the Victorian Local Authorities Interim Award 1991 ("the award"), being an award of the Commission and binding upon, inter alia, ASU and employer respondents in respect of their employees, whether members of the ASU or not. Clause 32 of the award which is particularly relevant to this proceeding, provides as follows: "32 - TEMPORARY EMPLOYMENT A temporary employee shall be an employee who is engaged on either a full or part time basis to work in a position which is temporary in nature for a specified period of time and/or for a specific project, task or tasks. Provided that the respondent shall notify the relevant Union of all temporary employees as specified under this Clause. A respondent shall not dispense with a permanent position for the purpose of creating temporary position(s)." After earlier periods of employment with Healesville in the 1980s, Ms Coll was engaged as a casual clerical/administrative officer on 3 December 1991. On 30 March 1992, the nature of Ms Coll's employment changed from a casual to a part-time basis. The reason for the change in her status was that the occupant of the position which Ms Coll came to fill on a part-time basis had taken maternity leave for twelve months from 30 March 1992. To cover the absence of that person, Healesville required Ms Coll and another person to each work part-time to perform the work formerly performed by the person who had commenced maternity leave. In practical terms, Ms Coll and another were to job-share for twelve months on a temporary basis. Healesville, through Mr Bowran, the Manager Local Development, wrote to Ms Coll, on 27 April 1992, in the following terms: "TEMPORARY PART-TIME POSITION - LOCAL DEVELOPMENT DEPARTMENT I wish to confirm my verbal offer to you for the part-time position of Administrative Officer, Band 3D, salary $472.50 per week, in the Local Development Department from the 30th March, 1992 to 30th March, 1993. The conditions of employment with Council are as follows; 1. 19 hours per week. 2. Hours of work; Wednesday 2.00pm to 5.00pm Thursday 8.30am to 5.00pm Friday 8.30am to 5.00pm with a one (1) hour lunch break on Thursday and Friday. 3. Salary payments are made on a fortnightly basis with payment being made directly into the bank of your choice in Healesville. 4. Employment will be generally in accordance with the Victorian Local Authorities Interim Award, 1991. 5. You will not be part of the Superannuation Scheme but you will receive pro-rata sick leave and holiday pay. Please confirm your acceptance of the position and these conditions in writing at your earliest convenience. Enclosed, a copy of the Job Description for the position." The nature of Ms Coll's role was to provide clerical and administrative support to Healesville in its processing of local development applications. Her position title was "Administrative Officer". It appears from the reference on the top of Mr Bowran's letter ("SRB/cc/AP10.20") that Ms Coll typed the correspondence addressed to herself. Not surprisingly, she returned the correspondence on the same day accepting the position, albeit retrospectively, from 30 March 1992. As it transpired, Ms Coll did not continue tooccupy the position on a temporary part-time basis until 30 March 1993. The relevant chronology is as follows: · 3 July 1992 - the other temporary part-time employee who job-shared with Ms Coll the position temporarily vacated by the person who had taken maternity leave in March 1992, took maternity leave. This meant that Ms Coll occupied the position as a temporary full-time employee on and from 3 July 1992. · January/February 1993 - the person who had taken maternity leave in March 1992 resigned. Her full-time substantive position was thereafter occupied by Ms Coll on a full time basis. Ms Coll's term of employment expired on 30 March 1993 and was not extended by any further letter of appointment. Ms Coll simply continued in the position on a full time basis, performing the duties she had always performed, until 10 September 1993. · 10 September 1993 - Ms Coll's co-worker with whom she hadjob-shared until 3 July 1992, returned from maternity leave and resumed her part-time duties. As a result, Ms Coll's employment reverted from full-time to part-time. In my view, Ms Coll's employment status changed to that of a permanent employee when the substantive occupant of the position resigned. As at 10 September 1993, Ms Coll was engaged by Healesville as a part-time employee in a position which was not 'temporary' in the sense in which that term is used in the award in that it was notfor any specified period of time or for a specific project or task. She continued to perform the same duties which she had performed since March 1992 but she was no longermerely filling in for an employee who was on leave. She, with her co-worker, each permanently occupied a part-time position. On Friday, 8 April 1994, Ms Coll was asked by a Mr Peacock, representing Healesville, not to come to work on the following week. Ms Coll's unchallenged evidence was as follows: "There had been some re-shuffling of other people's positions. He didn't seem to know what to do with me at that time and asked me not to come to work for the following week. In the following week I was contacted and asked to return to work." Ms Coll was contacted by her employer on Tuesday, 12 April 1994 and asked to return to work on Monday, 18 April 1994. On her return to work, Ms Coll performed the same duties which she had performed up to 8 April 1994, again on a part-time basis. However, her resumed employment was subsequentlydescribed by her employer (in a letter purporting to be an offer of employment) as being in a "temporary administrative officer" position and was given an end date up to and including 30 September 1994. The letter, dated 27 April 1994, that is, some nine days after Ms Coll resumed her employment,was in the following terms: "POSITION - TEMPORARY ADMINISTRATIVE OFFICER - BAND 3D I am pleased to offer you the position of Temporary Administrative Officer - Band 3D for the period 18th April 1994 to 30th September 1994. The following conditions apply:- 1. Superannuation contributions will be made on your behalf in accordance with the Superannuation Guarantee. 2. Hours of work will be 6 hours per day, 5 days per fortnight. (Extended hours may vary upon request.) I would be pleased if you would accept Council's offer of temporary employment in writing." It is noteworthy that whenMs Coll resumed her part-time duties on 18 April 1994 she was not told that her employment was on a temporary basis. Before Ms Coll responded to the letter of 27 April 1994 she received a replacement letter, dated 4 May 1994, which was in materially identical terms to the earlier letter, save that a third numbered paragraph had been included. It read: "3. You will be paid in accordance with the Victorian Local Authorities Interim Award 1991 (Part C)." On 4 May 1994, Ms Coll replied to the letter of the same date accepting the "offer of temporary employment for the period 25 April 1994 to 30 September 1994". On 12 May 1994, ASU was informed by letter from Ms Coll's employer in the following terms: "TEMPORARY EMPLOYMENT In accordance with Clause 32 of the Victorian Local Authorities Interim Award 1991 (Part A), please be advised that two people have been employed temporarily until a permanent position can be filled. Their names are Gillian Matthews and Colleen Coll. Gillian will be working 15 hours per week from the 25th April 1994-30th August 1994 and Colleen will be working 15 hours per week from 25th April 1994-30th September 1994." There was no evidence to support the proposition that the position in which Ms Coll was employed in from 18 April 1994 to 30 September 1994 was temporary in nature or wasin any way different to the position in which she had been engaged in on a part-time basis since 10 September 1993, apart from one week when she was told to stay at home. In respect of the events of that week, a letter of 8 June 1994 was tendered by the Yarra Ranges. It is a letter from Mr Peacock to Ms Coll of one sentence in lengthwhich states that: "I write to confirm our discussion that your previous temporary part-time position with Council ceased on 8th April 1994." There is no evidence, apart from the self-serving correspondence above, that any such discussion occurred on 8 April 1994. It is inconsistent with Ms Coll's unchallenged evidence regarding the contents of that discussionto find that her position ceased on 8 April 1994. It is also inconsistent with exhibit R3 which were payroll records relating to Ms Coll's employment covering a continuous period up to and including June 1994. Further, up to 8 April 1994, no limited life had been given to Ms Coll's then employment. On the contrary, it had been on-going on a full or part-time basis since 30 March 1993. In my view, Mr Peacock's letter did no more than assert a fiction. Ms Coll's employment was not terminated on 8 April 1994. The better view is that she was temporarily stood down without pay. It was a situation analogous to that found where, due to a shortage of work, an employer and employee may agree on the employee taking leave without pay during the shortage. In drawing such an analogy, however, I make no observation on whether or notsuch conduct might not lead the employer in a given situation to breach any relevant award. In my view a serious question had arisen, at least by 27 April 1994, as to whether Ms Coll had been properly characterised as a temporary employee. Nonetheless, on 23 September 1994, her "temporary employment" was further extended until 31 March 1995. In December 1994, Yarra Ranges came into existence as a result of council amalgamations. Until that time, Ms Coll had been an employee of Healesville. On 27 March 1995, Ms Coll's immediate supervisor, Ms Castieau, wrote to management requesting that Ms Coll's "employment status be resolved as a matter of urgency". The urgency lay in the fact that redundancies were occurring as a result of restructuring consequent upon amalgamation. In that process temporary employees or ones so designated by Yarra Ranges were those least likely to maintain their employment. On 6 April 1995, nearly a week after the expiry of the then extant term of supposed temporary employment, a written offer was made toMs Coll of further temporary employment until 31 May 1995. On 16 May 1995, that is, during the currency of that further term, Ms Coll received a letter from Mr Welsh, the Manager, Planning and Approvals Services, of the Shire in the following terms: "Re:Temporary Employment Extension Further to recent discussions this letter is to advise you that your current term of temporary employment has been extended till 1st August, 1995 or until a permanent structure has been finalised, whichever comes sooner. At the termination of your temporary employment date or when a permanent structure is finalised your positions will be reviewed in the context of the permanent structure. Accordingly, I have advised your team leader of the above information, however, should you require further assistance regarding the above, please do not hesitate to contact me." The letter was a curious one. If the permanent structure had been finalised prior to 31 May 1995, the effect of thatletter was that Ms Coll would have been terminated during the currency of her supposedly fixed period of temporary employment. Alternatively, if the permanent structure was not finalised, it offered an extension of temporary employment until 1 August 1995. On 6 July 1995, Ms Coll advised Ms Castieau of her intention to take maternity leave on 7 August 1995. On 20 July 1995, ASU wrote to Yarra Ranges requesting that Ms Coll's position be reviewed and that she be classified as a permanent employee. Yarra Ranges responded as follows on 28 July 1995: "In reference to your letter of 20 July 1995 re: Colleen Coll. In your letter you request that Ms Coll's status be reviewed to reclassify her as a permanent employee. Ms Coll has clear letters of appointment for each period of employment that she has had with the former Shire of Healesville and now the Shire of Yarra Ranges. Each letter of appointment is for a separate and defined period with a clear end date and a defined work role. This is in accordance with the requirements of Clause 32 of the Award. The Shire does not accept that Ms Coll's employment is permanent and therefore Ms Coll will terminate on the final day of her current contract, that is 1 August 1995." The response mistook the position. There was no "clear letter of appointment for each period of employment" at Healesville. The chronology reveals a period of almost thirteen months when there was no letter of appointment governing the employment of Ms Coll. Also, no attempt appears to have been made to examine the real position concerning the events of 8 April 1994. On 28 July 1995, Ms Coll received a reply to her request for maternity leave in the following terms: "I have received your letter of 6 July 1995, applying for Maternity Leave. However, due to your temporary status which has an end date of 1 August 1995, Maternity Leave is not an available option. Therefore we cannot grant your request. I thank you for your service to the Shire of Yarra Ranges during your period of temporary employment and wish you well for the future." Despite having been informed on 28 July 1995 that her alleged temporary employment was to come to an end on 1 August 1995, Ms Coll was required to perform work on the single day of 5 August 1995. She has not worked for Yarra Ranges since that day. The further evidence called with the consent of Yarra Ranges on behalf of Ms Coll on the review established that when Ms Coll's employment came to an end, two other employees, Ms Matthews and Ms Slater, were also considered by Yarra Ranges to be temporary employees. Those individuals also performed clerical and administrative duties. Each of them was kept in employment by Yarra Ranges after the post-amalgamation restructure which was completed in October 1995. Before me Mr Katz conceded that the only materially distinguishing characteristic possessed by Ms Coll and not possessed by her two former co-workers was that as Ms Coll had applied for maternity leave, she would not have been available to work in the new structure.