Industrial Relations Commission of New South Wales CITATION: Ptolemy & St. Vincents Private Hospital [2005] NSWIRComm 1132 APPLICANT: Ms. Lynette Ptolemy PARTIES: RESPONDENT: St. Vincents Private Hospital FILE NUMBER(S): 1590 of 2005 CORAM: Ritchie C Applicant worked as a casual before applying for a part time registered nurse post graduate training course. Applicant successful and signed a contract for 12 months. At end of contract no further work offered by hospital. Applicant claimed unfair dismissal. CATCHWORDS: Respondent claimed no termination at the initiative of the employer. Applicant accepted that neither party had an obligation on each other to offer or accept future employment . Found that termination was not at the iniative of the respondent but that cessation had occured as a consequence of the passing of time to the end of the agreed training period . As a consequence Commission lacks jurisdiction to hear the matter. Application dismissed, matter concluded. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 08/12/2005 DATE OF JUDGMENT: 08/17/2005 APPLICANT: Mr. G.Grasso (Agent) LEGAL REPRESENTATIVES: RESPONDENT: Mr. W.Harvey (solicitor) DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C. 17 August 2005 Matter No IRC 1590 of 2005 IN THE MATTER OF : Lynette Ann Ptolemy and St. Vincents Private Hospital(SVH) Application by Lynette Ann Ptolemy re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1132 Background. 1 Ms. Lynette Ann Ptolemy (the applicant) commenced employment with the St Vincents Private Hospital (the respondent) on 12 January 1989 as a casual Enrolled Nurse. The applicant then became a part time Enrolled Nurse on 12 March 1990. On 13 August 1990 the applicant resigned her part time position and returned to casual work with the respondent. In August 1991 the applicant accepted full time work as an Enrolled Nurse and held that position until she resigned in February 1996. On 23 May 1997 the applicant returned to work for the respondent as a casual Enrolled Nurse. In 1999 the applicant enrolled at Southern Cross University to become a Registered Nurse. She completed the course in November 2003. During her university studies the applicant continued to work for the respondent. After she had completed the course she applied for a position in the Postgraduate Practical Programme that was offered by the respondent. 2 The applicant was accepted into the programme and commenced on 16 February 2004 and ceased on 13 February 2005. 3 On 29 March 2005 the applicant filed a claim for unfair dismissal under Chapter 2 -Part 6 of the Industrial Relations Act 1996 (the Act). A conciliation was held on 3 May 2005 in Lismore and a report back on 27 May 2005. As no agreement had been reached between the parties I set down a timetable for the filing and serving of evidentiary material. 4 The hearing was held on 12 August 2005 in Lismore and was completed on the day at which time the decision was reserved. 5 The applicant was represented by Mr. G. Grasso (agent) and the respondent by Mr. W. Harvey(solicitor). Applicant's Case. 6 Both the applicant and a Ms. Janine Rose who appeared by way of summons gave evidence. 7 Ms. Rose stated that she also was accepted into the post graduate programme in February 2004. She was rotated through various departments and in late 2004 she wrote to the respondent seeking employment at the end of the programme. She advised that there was no guarantee of employment with the respondent beyond the end of the programme. She was successful in being offered employment by the respondent. 8 It was the applicant's evidence that she wrote to the respondent, dated 31 January 2005 expressing "an interest in staying on at St. Vincent's Hospital(SVH) on a casual basis". The applicant received a letter dated 17 February 2005 from Ms. Deborah Lewis, Director of Nursing stating that her application had been unsuccessful. 9 It was the applicant's submission that she was not explained at the point of signing the one year contract for the Post Graduate programme that she would not be provided with work as a Registered Nurse after the programme was completed. She had a realistic expectation that she would continue working for the respondent after she had completed the Postgraduate programme. 10 The applicant stated that she rang Ms. Lewis on or around 23 February 2005 to enquire why she had not been offered work and was advised that "it had something to do with your attitude to management". Respondent's Case. 11 The following persons gave evidence for the respondent: Ms. Deborah Lewis (Director of Nursing) Ms. Jane Spaeth (Assistant Director of Nursing-Operating Rooms) Ms. Vivienne Hilder ((Staff Development Leader) Ms. Veronica Wilson (Nurse Unit Manager) 12 I am not going to detail the evidence given by the above persons other than the following points. The Postgraduate programme had been in place for three years commencing in 2003. At the end of that first year, two of the six participating graduates were unsuccessful in obtaining employment with the respondent. In 2004 one (the applicant) was unsuccessful. During her Postgraduate training the applicant had come into conflict with some of the management of the respondent although generally her reports at the end of each rotation were good. The applicant was now a Registered Nurse and was assessed as such. As a Registered Nurse she could not have returned to her previous position as an Enrolled Nurse. There was no guarantee of future employment for all graduate nurses beyond the conclusion of the training programme. Consideration and Decision. 13 Whilst the application for unfair dismissal was filed out of time the respondent did not object to the extension of time. I therefore under section 85(3) of the Act allow this application to proceed. 14 It was the applicant's submission that she was terminated by the respondent on 13 February 2005 when the respondent did not offer her further employment. She had an expectation that she would continue employment beyond that date. 15 It was the respondent's submission that no termination by the respondent of the applicant took place. The applicant ceased employment with the respondent on 13 February 2005 in accordance with her contract. 16 The Commission has jurisdiction to hear and determine a claim made under Chapter 2 -Part 6-Unfair Dismissals by way of Section 84 (1) of the Act. It states : "If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this part." 17 For the Commission to have jurisdiction to hear a claim under this section there must be a termination of the employee by the employer. 18 The applicant by her written application for employment dated 31 January 2005 in her view sought a change of status, that was from her then current position as a postgraduate part time registered nurse to a casual registered nurse. 19 In evidence the applicant recognised that her employment with the respondent ceased on 13 February 2005, and that her written application dated 31 January 2005 was for a particular job. 20 The applicant accepted that post 13 February 2005 neither party had an obligation towards each other for future employment. She also accepted that the respondent could have offered her employment and she could have accepted the offer or she could have rejected the offer. She accepted the reverse that she could have applied for future employment or she could not have applied. 21 It was the respondent's submission that the confirmation of employment dated 23 December 2003 and signed by the applicant on 4 February 2004 clearly stated the following: Classification Registered Nurse Employment Status Permanent Part-time Term of Contract Commencing on 16/02/2004 Concluding on 13/02/05 The Confirmation of Employment document made no comment on employment beyond 13/02/05. It was silent. 22 Both the applicant and the respondent complied with this contract of employment. The respondent offered particular training rotating through various sections of the hospital and the applicant applied herself and participated in the training. Both parties fulfilled their obligations with respect to this contract of employment. 23 It is my finding that in accordance with the Confirmation of Employment document neither party had an expressed obligation to either provide labour or offer to employ beyond 13 February 2005. The Confirmation of Employment document was dated 23 December 2003 and the applicant signed it on 4 February 2004 "accepting this position and conditions as offered above". In other words the applicant had ample time to ask whatever questions she wanted to about the document prior to signing it. 24 As expressed in the Confirmation of Employment, the contract of employment between the applicant and the respondent drew to a close on 13 February 2005. Nothing was expressed in the document that implied anything more than that. The applicant can not import into the document what she expected would happen at the end of the training. Ms. Rose a fellow registered nurse and trainee in the programme, was quite clear in her evidence that there was no guarantee of employment in the future beyond the training programme. 25 It is therefore my finding that the respondent did not dismiss the applicant. Simply, the cessation of the applicant occurred as the result of the effluxion of time in accordance with the parties' agreement and not at the initiative of the respondent. 26 As a consequence of this finding I accept the submissions of the respondent that I do not have jurisdiction to hear this matter. 27 The application is therefore dismissed and this matter is now concluded. D.RITCHIE COMMISSIONER 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.