Industrial Relations Commission of New South Wales CITATION : Reddin v Department of Ageing, Disability and Home Care [2002] NSWIRComm 269 PARTIES : Rebecca Reddin Department of Ageing, Disability and Home Care FILE NUMBER: IRC 3408 of 2002 CORAM: Grayson DP Challenge to jurisdiction - operation of regulation exempting classes of employees from unfair dismissal jurisdiction - regulation refers to "a contract of employment" - not to be construed as a number of contracts in the aggregate - contract of temporary employment for specified period of less than 6 months - expressly acknowledged by applicant - applicant engaged as locum on separate contracts of temporary employment - no obligation on employer to extend or renew - no representation express or implied of ongoing employment CATCHWORDS : Held, applicant exempted by operation of regulation - application dismissed LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Regulations 1996 HEARING DATES: 10/09/2002 DATE OF JUDGMENT: 10/11/2002 Ms R Reddin in person LEGAL REPRESENTATIVES: Mr B King, Department of Ageing, Disability and Home Care JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: Grayson DP Friday, 11 October 2002 Matter IRC 3408 of 2002 REBECCA REDDIN V DEPARTMENT OF AGEING, DISABILITY AND HOME CARE Application by Rebecca Reddin pursuant to section 84 of the Industrial Relations Act 1996 re alleged unfair dismissal DECISION NSWIRComm 269 1 This decision concerns a jurisdictional challenge raised by the employer, the Department of Ageing, Disability and Home Care, in respect of an application for relief from alleged unfair dismissal. 2 The question to be determined is whether on the evidence presented, the provisions of s 83(2) of the Industrial Relations Act 1996 (the Act) and Regulation 5B(1) of the Industrial Relations (General) Regulation 1996 (the Regulation) operate to exempt the applicant from Part 6 Unfair Dismissals to Chapter 2 of the Act. 3 Those provisions may be relevantly set out as follows: PART 6 - UNFAIR DISMISSALS SECTION 83 APPLICATION OF PART 83(1) … 83(1A) … 83(2) [Exempted by regulations] This part does not apply to an employee who is exempted from this part by the regulations. PART 2A - UNFAIR DISMISSALS REGULATION 5B OTHER EXEMPTIONS FROM UNFAIR DISMISSAL PROVISIONS 5B(1) [Classes of Employees] For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, (b) … (c) … (d) employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systemic basis for a sequence of periods of employment during a period of a least 6 months, and (ii) would, but for the dismissal, have a reasonable expectation of continuing employment with the employer 4 Mr King who appeared for the employer submitted as a matter of statutory construction that the provisions set out above are to be given their ordinary broad meaning and in particular where Regulation 5B(1)(a) refers to "a contract of employment" the Commission should not construe the various contracts of employment in evidence here as a single contract of employment or as a contract of employment in the aggregate. The relevant contract of employment is the one which expired on 6 June 2002, the last day the applicant worked for the employer. 5 Mr King called evidence from departmental officers directly involved with recruiting and supervising the applicant under a number of contracts of temporary employment between 3 December 2001 and 6 June 2002. There were five such written contracts and each carried a signed acknowledgment by the applicant as to their nature and self-limiting duration. 6 Each contract and in particular, the last contract was for a specified period of less than 6 months. 7 The first three of the contracts were for full-time locum work as a social worker and the last two of the contracts were for part-time locum work in the same capacity. The last contract was for 9 days work in the period 24 May 2002 to 6 June 2002. The applicant's services have not been since renewed. 8 To my mind, the evidence overwhelmingly supports the propositions for which the employer contends namely, that the applicant was not dismissed from employment, that there was no obligation on the employer to renew her services upon expiry of a temporary employment contract of specified duration and that in any event, she is precluded by the statue in particular Regulation 5B(1)(a) from seeking or obtaining relief in the unfair dismissal jurisdiction. 9 The evidence adduced by the employer was unchallenged by the applicant, who appeared unrepresented, but for an assertion which was unsupported on the evidence as to an alleged representation by the employer that her services were being retained for a period of twelve months. The applicant further contends that the alleged dismissal was an act of "vilification" on the part of the employer in response to a grievance she filed on 23 May 2002. 10 The employer rejects such assertions and relies upon the uncontested documentary and affidavit evidence of each of the discrete contracts of temporary employment it expressly entered into with the applicant. 11 The applicant sought to rely on the provisions of Regulation 5B (1)(d) as they apply to casual employees. She argued that but for dismissal, she would have had a reasonable expectation of continuing employment . 12 Mr King submitted with considerable persuasive force, that the applicant's employment could not at any time in any of the temporary contracts of employment, be characterised as casual and further, that the evidence as to continuing or any reasonable expectation of such beyond the expiry date of the last contract is against the applicant's contention in that regard. I am inclined to agree. 13 The applicant also sought to rely upon the provisions of s 99(1) of the Act as they apply to injured workers. She said she was injured in February 2002 and was supported by the employer in her recuperation which on the face of it, would appear to me to have been complete because she subsequently and self-evidently resumed her pre-injury duties. Her argument although not entirely clear, seemed to be that having been injured in February 2002, any decision to dismiss her during the relevant period prescribed for the purposes of s 99(1) of the Act namely, the period of 6 months after she first became unfit, would constitute an offence on the part of the employer and thus entitle her to relief. 14 Mr King rightly submitted that the application presently before the Commission is not an application brought under the injured worker provisions of the Act and if the applicant had wished at any time to plead her case in that way, then she has ample opportunity to do so. To raise such a proposition from the bar table without notice is inappropriate and in any event, the Commission would infer by the applicant's characterisation of the employer as supportive of her at the relevant time and by her subsequent resumption of normal duties, that no question of unfitness for employment can logically arise. I agree and would quietly leave that argument to one side with the observation earlier made, that the applicant, as I am disposed, was not dismissed from employment but rather, a contract of temporary employment for a relevantly specified time expired and was not renewed. 15 I find accordingly and in so doing, dismiss the application for want of jurisdiction. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.