Industrial Relations Commission of New South Wales CITATION: Cardow v. Shoalhaven City Council [2006] NSWIRComm 1015 APPLICANT Samuel Cardow PARTIES: RESPONDENT Shoalhaven City Council FILE NUMBER(S): 1154 of 2005 CORAM: Connor C CATCHWORDS: termination of employment - casual engagement - employment for a fixed term - refusal to offer employment - whether matter settled by conciliation - supplementary decision LEGISLATION CITED: Industrial Relations Act 1996 Derrick v. Dangar (1921) AR 40 Drury v. BHP Refractories Pty Limited (1995) 62 IR 467 Fetz v. Qantas Airways Limited (1997) 77 IR 443 Green v. Mini Quip Earthmoving - unreported CASES CITED: Hudson v. Murawina Mount Druitt Co-operative Limited - unreported Pacific Waste Management Pty Limited v. Saley (1993) 51 IR 339 Ryde-Eastwood Leagues Club Limited v. Taylor (1994) 56 IR 385 Shagrin v. Diamond Rose NL - unreported Shop, Distributive and Alied Employees Association v. Librus Pty Limited (2001) 103 IR 390 Trau's Case (1983) AR 460 HEARING DATES: 31/01/2006 DATE OF JUDGMENT: 01/31/2006 EXTEMPORE JUDGMENT DATE : 01/31/2006 APPLICANT Phil Carey, solicitor LEGAL REPRESENTATIVES: RESPONDENT Cassandra Hann Local Government Association of New South Wales DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Tuesday, 31 January, 2006 Matter No IRC 1154 of 2005 Samuel Lindsay Cardow and Shoalhaven City Council Application under S.84 of the Industrial Relations Act, 1996 SUPPLEMENTARY DECISION [2006] NSWIRComm 1015 Background 1 Mr Samuel Cardow commenced employment as a casual swimming pool lifeguard with the Shoalhaven City Council on Monday, 20 September, 2004. He worked at the Nowra Swimming Pool. His services were terminated on Thursday, 17 February, 2005. It was alleged by the council that the dismissal of Mr Cardow was over a breach of council's policy. He subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. (Mr Christopher Reksmiss and Mr Jamie Shaw, two other casual swimming pool lifeguards employed by the council, were also dismissed at the same time and lodged Part 6 applications but their Part 6 applications are no longer relevant for current purposes.) 2 Mr Cardow's Part 6 application, together with the Part 6 applications of Mr Reksmiss and Mr Shaw, were allocated to me and I set them down for a preliminary hearing on Tuesday, 26 April, 2005 and a conference on Monday, 20 June, 2005 in the Commission's premises at 90 Crown Street, Wollongong. In their Part 6 applications, Mr Cardow and Mr Reksmiss had sought their reinstatement or, alternatively, monetary compensation in lieu thereof. Mr Reksmiss (and Mr Shaw) accepted an offer of settlement - monetary compensation - and signed a deed of release. Mr Cardow remained committed to the arbitration of his claim at that time but in the proceedings he ultimately indicated, through Mr Carey, his legal representative, that he accepted an offer of settlement that was negotiated between the parties. I granted leave for the discontinuance of the three Part 6 applications in accordance with Rule 138 on that basis, concluding my decision of the matter in the following manner (at pp.2 and 3): "...Two of the employees - Mr Reksmiss and Mr Shaw - have accepted an offer of settlement. Mr Cardow remained committed to the arbitration of his claim but in the proceedings he accepted an offer of settlement that was negotiated between the parties. I grant leave for the discontinuance of the three Part 6 applications on that basis..." 3 However, on Sunday, 13 November, 2005 Mr Carey, acting for both Mr Cardow and Mr Reksmiss, wrote to me seeking the re-listing of both their Part 6 applications. It had been argued in Mr Carey's letter that it was a term of the settlement that Mr Cardow and Mr Reksmiss would be free to apply for swimming pool lifeguard positions with the council in future and would be considered by council "...fairly and equitably...". They both responded unsuccessfully for vacant positions with the council advertised in the local newspapers. They did not receive an interview. It is therefore argued on their behalf that the council has acted contrary to the spirit of the agreement reached in settlement of their initial Part 6 applications. 4 I note that the deed of release signed by Mr Reksmiss makes no reference to his future employment prospects with the council. It is confined to a monetary settlement of Mr Reksmiss' claim alone. But I do recall that in the proceedings before me on Monday, 20 June, 2005 there was some concern expressed, particularly by Mr Cardow and his parents who accompanied him in the proceedings, that the dismissal would continue to represent a black mark on the employment record of the three dismissed employees. It is wrong for anyone to see the dismissals in that light. It is important to stress that, with the settlement of Part 6 applications, any allegation against the employees concerned is extinguished. 5 I set the two Part 6 applications down for a further mention on Tuesday, 13 December, 2005 and Tuesday, 20 December, 2005 (in Wollongong). During that time Mr Reksmiss abandoned his Part 6 application, accepting the settlement of the matter and the deed of release he had earlier signed. Mr Cardow continued to press his Part 6 application and it was scheduled for arbitration over threshold issues on Tuesday, 31 January, 2006. In the hearing Mr Carey continued his representation of Mr Cardow and Ms Hann represented the council and the Local Government Association of New South Wales. 6 The hearing essentially concerned two issues, viz: (i) whether the casual, irregular nature of Mr Cardow's employment excluded him from jurisdiction under Part 6; and (ii) whether or not Mr Cardow's Part 6 application had been concluded by his agreement in the proceedings before me on Monday, 20 June, 2005. Mr Cardow's Part 6 application has now been resolved by further conciliation but it appears to me to be appropriate that I still address the complex issues at the heart of Mr Cardow's Part 6 application. Is Mr Cardow's Claim Within Jurisdiction? 7 Mr Cardow was employed by the council for 13 weeks from late 2004 (Saturday, 6 November, 2004) to early in 2005 (Thursday, 17 February, 2005) when his services were terminated. The council asserts that Mr Cardow was engaged on a casual basis in terms of Clause 22, Casual Employment, of the Local Government (State) Award, viz: "...a casual employee shall mean an employee engaged on a day to day basis..." 8 The council has claimed that it always engages its aquatic instructors and lifeguards on a casual basis due to the seasonal nature of their work. Mr Cardow received a 25% casual loading on his wages. The letter containing the offer of employment which Mr Cardow received, and which he accepted with his signature on it on Friday, 1 October, 2004, explained the nature of his employment as follows: "...Being employed on a day to day basis, council is not required to give casual employees notice of cessation of employment. Likewise, unless work has been previously arranged, casual employees are not required to give council notice of their unavailability..." Consequently, according to the council, Mr Cardow did not work regular or systematic shifts but his rostered shifts varied according to operational needs - with different days and different start and finish times. 9 I accept that, in the absence of any proper evidence to support the claim that the council undertook to offer Mr Cardow and Mr Reksmiss re-employment following their dismissal, and there is none - there is no obligation on the council to do so. A refusal by an employer to engage an employee, as distinct from a dismissal from employment or a threat of dismissal, is outside jurisdiction under Part 6 [Derrick v. Dangar (1921) AR 40 and Pacific Waste Management Pty Limited v. Saley (1993) 51 IR 339]. But nothing adverse to Mr Cardow or Mr Reksmiss should be read into the council's decision not to again recruit them. The initial dismissal of Mr Cardow on Thursday, 17 February, 2005, on which his Part 6 application relies, is in a somewhat different position, in my opinion. I believe that it falls within jurisdiction under Part 6. 10 It is clearly established that a casual employee may still have something in the nature of an ongoing employment with a former employer to constitute a "dismissal" for the purposes of Part 6 when the employer unilaterally brings that contract of employment to an end, even though that employment may fluctuate widely from day to day and from hour to hour, as appears to have been the case with Mr Cardow. In Ryde-Eastwood Leagues Club Limited v. Taylor (1994) 56 IR 385 the Full Bench of the Commission (Bauer and Hungerford JJ and Murphy CC) gave as an illustration (at p.399) the following circumstances in which a casual employee may be "dismissed" and, as such, fall within jurisdiction under Part 6: "…In principle, and using the technical terminology of contract, an enforceable contract may readily be drawn, namely - in consideration of a payment by X to Y, in accordance with the relevant award or enterprise agreement for work actually performed, X agrees to employ Y as a casual employee on work as mutually agreed as and when it arises from time-to-time pursuant to a weekly roster published by X at least seven days in advance of such work and Y agrees to make himself available to perform such work subject to the release of Y allowed by X for illness, holidays and other reasonable cause. Such a contract, in our opinion, would represent an appropriate common law contract of employment to give effect to an on-going or continuing enforceable contract of casual employment. It would not conflict with nor be contrary to the award there. We think that, if the employer to such a contract, X, declined during the course of its operations to offer further work to the employee, Y, then there would be a dismissal from employment of Y in the relevant sense..." The type of situation described in Ryde-Eastwood Leagues Club Limited v. Taylor seems to neatly cover Mr Cardow's employment with the council. 11 In terms of Reg 6, certain classes of employees are excluded from jurisdiction under Part 6. In particular: "…employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer…" 12 That is a clumsily worded regulation involving, as it does, a double negative - the exclusion of a certain class of casual employees engaged for an undefined "…short period…" from Part 6 unless they fall into the two exceptions which would then act to reverse the exclusion and bring them again within jurisdiction under Part 6: (i) where the casual employment is on a regular and systematic basis for at least six months and (ii) where the employee had a reasonable expectation of continuing employment. The two conditions in Reg 6 are therefore cumulative and, as the linking word "and" indicates the exception from the exclusion to Part 6 is only available if both conditions are satisfied - see my unreported decision of Thursday, 25 February, 1999 in Hudson v. Murawina Mount Druitt Co-operative Limited [Matter No.IRC 5494 of 1998]. 13 What constitutes a "short period" for the purposes of Reg 6 remains unclear. How long is a piece of string? But one thing is clear. In Shop, Distributive and Allied Employees Association v. Librus Pty Limited (2001) 103 IR 390 the Full Bench of the Commission (Walton J - Vice President, Hungerford J, Patterson C) rejected the view that a casual employee with less than six months of employment would automatically be excluded from making an application under Part 6 by the operation of Reg 6. Ms Hann's argument was that Mr Cardow falls outside Part 6 by virtue of Reg 6. Mr Carey's argument was that Mr Cardow's employment with the council did not take it outside Part 6, notwithstanding its casual and irregular nature. 14 Also - and, in my opinion, this is more relevant - employees who are engaged only for a specified period of time and/or a specific task are also excluded from Part 6 by Reg 6. That exclusion is concerned with employment which from its outset is understood by both the employer and the employee to have a finite life - something which is clear to the extent that the contract of employment is not, in fact, terminated at all but simply runs its course [Trau's Case (1983) AR 460 at p.464 and Fetz v. Qantas Airways Limited (1997) 77 IR 443]. 15 In that respect Wilcox CJ of the Federal Industrial Relations Court in Drury v. BHP Refractories Pty Limited (1995) 62 IR 467 dealt with comparable Federal legislation to Reg.6 and the termination of the employment of a worker on a construction project and commented (at pp.471 and 472) that: "…counsel argued that the…job was a 'specified task'… He is driven by the logic of that argument to say that (the exception) applies whenever an employer employs a person to work on a particular project, whatever its size and duration. I do not think this is correct. The words '...for a specified task...' qualify the words '...contract of employment...'. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words '...for a specified task...' have nothing to do with the employer's task, or project. This seems clear as a matter of grammar and it makes sense in policy terms. One can understand a view that the protection provided…should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer's right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue for many years, while employees come and go, it would be equally anomalous to exclude relief…simply because the employee was engaged in connection with a particular project…" 16 Mr Cardow's fixed term contract of employment was not brought to an end according to the terms of that contract by the effluxion of time but was terminated prematurely by his dismissal. It would appear to me that prima facie his dismissal would fall under jurisdiction under Part 6. In his written submissions Mr Carey refers to "...short term vacancy forms..." which Mr Carey completed for the period of his employment. His last "...short term vacancy form..." with the council covered the period from Saturday, 1 January, 2005 to Saturday, 31 December, 2005. But the council has argued that the Nowra swimming pool where Mr Cardow was engaged is a seasonal pool, ie it would remain open only until Monday, 28 March, 2005. Ms Hann asserts that Mr Cardow would have known this and not had any expectation for continued employment beyond the end of summer of 2005. Therefore, based on my assessment of the nature of his work with the council, it is unlikely that Mr Cardow would be entitled to expect to remain in employment with the council very far beyond the time he was actually dismissed or to receive anything more than occasional days of work, according to his contract of employment - certainly the amount initially on offer to him by the council as a settlement of his Part 6 claim would be likely to produce a more attractive outcome for him. Is Mr Cardow's Claim Extinguished? 17 Mr Cardow at no time actually signed the deed of release (as did Mr Reksmiss) and, consequently, he has received no monetary settlement in accordance with the purported agreement that the council insists actually occurred. But Mr Cardow did indicate through Mr Carey in the proceedings before me on Monday, 20 June, 2005, albeit reluctantly, that he was accepting the settlement offered to him by the council. And I granted leave to discontinue his matter on that basis. Does that constitute an end of the matter as far as Mr Cardow is concerned? I think it does. 18 In my unreported decision of Tuesday, 8 December, 1998 in Green v. Mini Quip Earthmoving [Matter No.IRC 4307 of 1998] I commented (at p.2) that: "…if the agreement which I thought existed has broken down, the matter has not been settled at all. It must proceed to arbitration…" In the ordinary case, a deed of release is provided to give formal effect to the settlement reached. That has not occurred with Mr Cardow who has at no time signed the deed of release. Nor has he received the sum of money that was a term of the purported agreement of the parties. But, in my opinion, the refusal of an employee to sign a deed of release to give formal effect to the agreement is not fatal to the fact of agreement. I am more persuaded by what actually occurred in the proceedings before me and that clearly supports the position that agreement had actually been reached to compromise Mr Cardow's claim. 19 For instance, in my unreported decision of Thursday, 8 November, 2001 in Shagrin v. Diamond Rose NL [Matter No.IRC 209 of 2000] there was no deed of release and the parties were at odds over the terms of the agreement actually reached. Counsel representing the applicant employee argued that there was nevertheless an enforceable agreement between the parties, a submission which I was prepared to act upon, even though there was no instrument to give formal effect to the settlement reached and there was some doubt over its terms. The matter was dismissed on that basis. 20 I believe that, notwithstanding the fact that Mr Cardow has initially not been prepared to complete the deed of release, the council is entitled to rely on the agreement that Mr Cardow made, through Mr Carey, in the proceedings before me on Monday, 20 June, 2005 on the basis of which I granted him leave to discontinue his Part 6 application in accordance with Rule 138. That, of course means that Mr Cardow remains entitled to receive the monetary settlement of his Part 6 claim from the council that was originally offered to him. Conclusion 21 In the light of those observations, there remained some confusion between Mr Carey and Ms Hann over whether the original offer by the council remained open. Once that was clarified, the deed of release was completed by Mr Cardow and I confirmed the conclusion of the matter by again granting him leave for the discontinuance of his Part 6 application in accordance with Rule 138. P J CONNOR 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.