Attard v Queensland Corrective Services [2007] QIRC 55 (2007) 185 QGIG 213

[Extract from Queensland Government Industrial Gazette, dated 6 July, 2007, Vol. 185, No. 10, pages 213-220] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Leslie Anthony Attard AND Queensland Corrective Services (TD/2006/469) DEPUTY PRESIDENT SWAN 27 June 2007 DECISION Application TD/2006/469 has been made by Mr Leslie Anthony Attard (the applicant). The applicant seeks reinstatement to his formerly held position of Corrective Services Officer (CSO). Queensland Corrective Services (the respondent) challenges that application on jurisdictional grounds, i.e. that the applicant is an excluded employee pursuant to s. 72(1)(d) of the Industrial Relations Act 1999 (the Act). This decision considers and determines that jurisdictional challenge. Relevant legislation Industrial Relations Act 1999 "72 Who this chapter does not apply to (1) Section 73(1) does not apply to … (d) an employee engaged for a specific period or task, unless (i) the main purpose of engaging the employee in that way is, or was at the time of the employee's engagement, to avoid the employer's obligations under part 2; or (ii) the employee is participating in a labour market program and is dismissed before the period ends or the task is complete; or (iii) the reason for the dismissal is an invalid reason; …". Public Service Act 1996 "113 Employment of temporary employees (1) To meet temporary circumstances, a chief executive may employ a person as a temporary employee to perform work of a type ordinarily performed by an officer other than a senior executive. (2) The employment may be - (a) on a temporary basis and full-time or part-time; or (b) on a casual basis. (3) A person employed under this section does not, by the employment, become an officer. (4) Subsections (1) and (2) are subject to a directive that may be made about the employment of persons as temporary employees.". The respondent's submissions The respondent claims that the applicant was, at the time of his dismissal, employed as a temporary employee of the public service (see s. 113(2) of the Public Service Act 1996 (the Public Service Act)). The letter of termination (30 October 2006) states: "I understand that you are presently fulfilling a temporary contract with Wolston Correctional Centre and shifts at the courts in Brisbane. I can advise that the Agency will honour those temporary contracts up until 10 December 2006, and will pay out all entitlements as if you had worked the shifts scheduled.". [Attachment KGR1 of Exhibit 1 (Affidavit of Kevin Gerard Rooney).] -- 1 of 7 -- 2 Briefly, the applicant's most recent history with the respondent shows that: "a. The applicant's final full-time temporary contract was scheduled to run between 16 October 2006 and 10 December 2006. This contract was attached to Wolston Correctional Centre and confirms an engagement for a specific period. b. The applicant's second final full-time temporary contract ran between 21 August 2006 and 17 September 2006. This contract was attached to Brisbane Women's Correctional Centre and confirms an engagement for a specific period. c. Letters from PartnerOne confirm the applicant's full-time temporary appointments, particularly the final one. d. For the interim period between the two final full-time temporary contracts (18 September 2006 and 15 October 2006) the applicant was attached to a 'casual relief pool'. The applicant left this pool of his own volition to take up the full-time temporary contract from 16 October 2006.". [Respondent submissions, point 10.] In more detail, the applicant's overall history with the respondent is as follows:  19 April 1999 to 20 June 1999: casual trainee.  21 June 1999 to 14 January 2001: casual, Sir David Longland Correctional Centre.  15 January 2001 to 26 August 2001: casual, Brisbane Women's Correctional Centre.  27 August 2001 to 12 January 2003: full-time, Brisbane Women's Correctional Centre. A series of contracts were entered into during this period: o 3 month contract from 27 August 2001; o extension of this contract from 27 November 2001 to 27 February 2002; o extension of this contract from 27 February 2002 to 27 May 2002; o extension of this contract from 27 May 2002 to 25 August 2002; o extension of this contract from 27 August 2002 to 24 November 2002; and o extension of this contract from 24 November 2002 to 12 January 2003.  13 January 2003 to 7 December 2003: casual, Brisbane Women's Correctional Centre.  8 December 2003 to 16 January 2005: full-time, Brisbane Women's Correctional Centre. A series of contracts were entered into during this period: o contract from 8 December 2003 to January 2004; o extension of this contract from 4 January 2004 to 1 February 2004; o extension of this contract from 1 February 2004 to 29 February 2004; o extension of this contract from 29 February 2004 to 28 March 2004; o extension of this contract from 28 March 2004 to 25 April 2004; o extension of this contract from 25 April 2004 to 18 July 2004; o extension of this contract from 18 July 2004 to 17 October 2004; and o extension of this contract from 17 October 2004 to 16 January 2005.  17 January 2005 to 12 January 2006: casual, Brisbane Women's Correctional Centre.  13 January 2006 to 20 August 2006: casual, Wacol Relief Pool. [On 10 July 2006 the applicant received correspondence stating that his casual appointment was to be extended until 30 June 2007. However, on 19 September 2006, the applicant received correspondence to say he was now engaged in a full-time temporary position.]  21 August 2006 to 17 September 2006: full-time, Brisbane Women's Correctional Centre.  18 September 2006 to 15 October 2006: casual, Wacol Relief Pool.  16 October 2006 to 10 December 2006: full-time, Brisbane Supreme Courts and Wolston Correctional Centre. Where casual temporary contracts were entered into, the offers were made pursuant to s. 113(1) and s. 113(2)(b) of the Public Service Act. On each occasion when the applicant was engaged under a full-time temporary contract, the respondent notified, in writing to the applicant, that the appointment: "… is to meet a temporary requirement to fill a vacancy and should these circumstances change your employment may be terminated prior to the expected end date.". [Attachment LA1 of Exhibit 6 (Affidavit of Leslie Attard).] To all of these offers the applicant responded and accepted in writing. On occasions when the applicant was not engaged under a temporary full-time contract, he had been attached to the Wacol Relief Pool under the provisions of s. 113(1) of the Public Service Act. When the applicant was attached to the Wacol Relief Pool, he was one of a number of employees who were available to be engaged under casual contracts if they were called upon to fill short-term staff vacancies at any of the different centres and/or courts. In these situations, -- 2 of 7 -- 3 the contract of employment began only when the employee commenced those duties. The respondent states that each of these casual engagements stands alone. The detail of the various contracts has been cited above in this decision. It should be noted that there have been contracts which have not abutted each other. For example, a temporary contract underway from 21 August 2006 to 17 September 2006 ended early on 15 September 2006 and the applicant was paid out the remaining dates. In submissions, Mr S. Donovan, for the respondent, stated that at the cessation of each contract, the applicant was paid out all accrued entitlements. [Transcript, pp. 137, 138.] The respondent submits that with regard to the Act, the applicant was neither a short-term casual (for which, under these circumstances, there is no relief under s. 72(1)(c) of the Act for an alleged unfair dismissal) nor was he a long-term casual. At the time of cessation of the contract, the applicant was engaged under a temporary contract of employment. There is no relief available for an employee in this situation. The decision of the Industrial Court of Queensland in Department of Justice and Attorney-General v Carey [2002] 170 QGIG 306, was relied upon by the respondent to support its submission that the primary application should fail. Specific reference was made to the following passage from that decision: "The term of a temporary employee under s. 113 of the Act (the Public Service Act 1996) is controlled by the 'temporary circumstances' which trigger the decision to employ a temporary employee. No amount of refusal or withholding of assent by an employee who commences work after receiving notice of the proposed expiry date of his engagement can convert an employment under s. 113 into anything other than a 'temporary employment' or enlarge the term beyond that appropriate to the 'temporary circumstances'.". The applicant's submissions  "The true nature of the employment relationship is partly to be inferred from the conduct of the parties.". [Applicant's Outline of Submissions, point 3.7.]  The applicant was employed on a continuous and systematic basis by the respondent since 1999.  The applicant contended that: "If I was on a temporary appointment:- (a) I would receive a letter towards the end of the appointment either telling me that the appointment had been extended or that I was reverting back to the Relief Pool; (b) there was never any discussion about this, I was just given a letter; (c) if I received a letter saying that I would be reverting back to the Relief Pool, prior to each time I reverted back I would get a telephone call from the Human Resources Department at Brisbane Womens and they would tell me the shifts I would have for the week that I reverted back to casual status; (d) effectively I would finish up my temporary appointment and would already have my shifts allocated through the Relief Pool.". [Exhibit 6 (Affidavit of Leslie Attard), point 6.] Two pieces of correspondence highlight the fact that the parties had intended that the employment be ongoing. Correspondence dated 25 November 2002 states, inter alia, that: "This period of extension of your appointment is to meet a temporary requirement due to an officer on leave. However, your contract will not be renewed past 12 January 2003 due to an officer returning from a period of relief from 13 January 2003. Therefore, your status will revert back to a Casual Correctional Officer, Brisbane Women's Correctional Centre from Monday 13 January, 2003.". [Attachment LA1-7 of Exhibit 6 (Affidavit of Leslie Attard).] Correspondence dated 23 October 2006 states, inter alia, that: "On completion of your temporary appointment, or if this appointment is terminated prior to the specified end date, you will revert to your casual status within the Relief Pool.". [Attachment LA1-24 of Exhibit 6 (Affidavit of Leslie Attard).] Because the applicant's employment was based upon a series of temporary placements, followed by a reversion back to the Wacol Relief Pool, he was actually engaged on two separate contracts with the same employer. This concept of multi-engagements is not unknown within traditional industrial relations practices (see clause 4.4, Hotels, Resorts and Certain Other Licensed Premises Award - State (Excluding South-East Queensland) 2003). -- 3 of 7 -- 4 Because the contracts were extended from time to time, the respondent's behaviour ensured that the contracts were not "specified" in time. The applicant's situation is different to that of Mr Carey (Carey (supra)) in that once Mr Carey's temporary contract had come to an end, he had no further work to perform and could not be reinstated. The various letters of appointment sent by the respondent to the applicant stated that once his temporary appointments had ceased, he would revert back to the Wacol Relief Pool. Consequently, "It is quite legitimate for the applicant to had a genuine and well founded belief that had it not been for in our submission was his unfair dismissed (sic), he would have a normal expectation of work if he was remitted back to the Relief Pool". [Applicant's Outline of Submissions, point 3.12.] (See Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22 (27 April 2005)). Arising out of that decision, reference was made to the powers the Commission held, pursuant to s. 78(2) and (3) of the Act, namely: "(1) This section applies if the commission is satisfied an employee was unfairly dismissed. (2) The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal. (3) If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee is another position that the employer has available and that the commission considers suitable.". The Commission should not accept a submission which claimed that the applicant could not be reinstated or re- employed because of the nature of the contract under which he was engaged. Consideration of evidence and submissions The documents produced in this hearing largely speak for themselves. However, a brief summary of the direct evidence given is as follows: Respondent's witness Mr Kevin Rooney (Director, Human Resource Services Branch, Queensland Corrective Services)  Mr Rooney confirmed he had written to Mr Attard on 30 October 2006 advising him that he would not be offered any further employment with the respondent.  When Mr Attard was employed under a casual temporary contract, the offers were made pursuant to s. 113(1) and s. 113(2)(b) of the Public Service Act. On each occasion, Mr Attard had accepted the contract and had the right to reject the offer.  On each of the occasions when Mr Attard accepted full-time temporary contracts (made pursuant to s. 113 of the Public Service Act) he had received written correspondence from the Agency and responded in writing accepting the offers.  When employees are attached to the Wacol Relief Pool they are not guaranteed of on-going employment.  "The offer of shifts is restricted by the availability of the employee in question and this is then measured against the availability of other members of the Wacol Relief Pool". [Exhibit 1 (Affidavit of Kevin Gerard Rooney), point 16.]  With regard to any reversion back to the Wacol Relief Pool, "Queensland Corrective Services did not recognise the listing with the Wacol Relief Pool as continuing during the interim and Mr Attard was only covered by one contract of employment at a time". [Exhibit 1 (Affidavit of Kevin Gerard Rooney), point 18.]  Mr Rooney stated that two witnesses called by the applicant (Mr Newman and Ms Fisher) had no involvement in the establishment of the Wacol Relief Pool. Applicant's witnesses Mr Brian Newman  Mr Newman (formerly a Corrective Services Officer, Union official and currently the State President/Secretary of the Queensland Prison Officers Association) stated that upon the establishment of the Wacol Relief Pool "it was widely understood that all casual employees of QCS would be based from the WRP and be allocated shifts on needs basis to the various Prisons in the Wacol precinct". [Exhibit 8 (Affidavit of Brian Anthony John Newman), point 5.]. "I understand that as temporary positions become available, casual CSO's are allocated rosters on temporary contracts". [Exhibit 8 (Affidavit of Brian Anthony John Newman), point 6.] -- 4 of 7 -- 5  Mr Newman also stated that upon the completion of the temporary contracts, he understood that employees are automatically redesignated to casual positions within the Wacol Relief Pool.  It was Mr Newman's belief that casuals "were rarely used on the correct prescribed basis described in the Department of Corrective Services - Correctional Employees' Determination 2004". [Exhibit 8 (Affidavit of Brian Anthony John Newman), point 14.] Ms Julie-Anne Rose Fisher  Ms Fisher is a former employee of the respondent.  Ms Fisher recalled that during the period when she worked with the respondent, Mr Attard would "often finish one temporary contract and commence another almost immediately afterwards". [Exhibit 7 (Affidavit of Julie- Anne Rose Fisher), point 9.]  If this did not occur, then Mr Attard would be retained as a regular casual employee performing duties at the Women's Correctional Centre or at other centres in the Wacol precinct.  Casual employees were engaged to fill immediate and unforeseeable vacancies.  Ms Fisher stated that "I recall that the majority of casual CCO's would fill scheduled or projected vacancies in rosters and that casuals were rarely used on the prescribed basis described in the Award that existed at the time of my employment". [Exhibit 7 (Affidavit of Julie-Anne Rose Fisher), point 14.] Conclusion The respondent claims that at all times the applicant was employed pursuant to s. 113 of the Public Service Act. The rationale underpinning that section is the creation of temporary contracts, either full-time, part-time or casual to "meet temporary circumstances". At the time of the cessation of the last contract between the parties, the applicant had been engaged for a specific period of time, i.e. 16 October 2006 to 10 December 2006. The termination letter is dated 30 October 2006 and although the applicant's contract ceased on 31 October 2006 at the end of his shift, he was paid out all entitlements he would have received up until 10 December 2006 under a temporary employment contract. At the end of each contract, the applicant was always paid out his full entitlements. With regard to these contracts, Mr Rooney stated that: "This was not the first time that one of Mr Attard's temporary contracts had ended early. The temporary contract that was to run from 21 August 2006 to 17 September 2006 was brought to an end early on 15 September 2006 with Mr Attard being paid out the remaining dates.". [Exhibit 1 (Affidavit of Kevin Gerard Rooney), point 20.] During the course of the applicant's employment with the respondent he had been engaged under a number of contracts. Each temporary employment contract had a defined period of time contained within. In Andersen v Umbakumba Community Council [1994] 56 IR 102, Von Doussa J stated: "A 'specified period of time' is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by the term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment.". Amongst other issues, the primary thrust of the applicant's argument concentrates upon the manner in which the respondent conducted its business in terms of casual employee contracts; that the applicant was employed simultaneously under 2 contracts and the mention in some correspondence from the respondent to the applicant stating that, at the expiration of a temporary contract: " … you will revert to your casual status within the Relief Pool.". [See correspondence from respondent dated 25 November 2002, 9 August 2006 and 23 October 2006.] The Wacol Relief Pool The applicant viewed his employment with the respondent as being of a continuing nature with the view that perhaps there was more than one contract in existence at the same time. The applicant asserted that "it is arguable that in fact Mr Attard at all times was a casual employee - a long term casual employee". [Transcript, p. 120.] The assertion was that even with a specified temporary contract on foot, a casual contract remained, underpinning the relationship. There is one occasion, in correspondence dated 10 July 2006, where the respondent extended the applicant's casual position until 30 June 2007 "unless otherwise determined. This extension is on the basis [a] casual position exists and should these circumstances change your employment may be terminated prior to the expected end date.". [Attachment LA1-20 of Exhibit 6 (Affidavit of Leslie Attard).] Obviously "these circumstances changed" and pursuant to s. 113 of the Public Service Act the respondent proceeded to offer the applicant on 9 August 2006 a temporary full-time appointment from 21 August 2006 to 17 September 2006. For the casual contract which occurred between 18 September 2006 and 15 October 2006, there appears to be no -- 5 of 7 -- 6 correspondence from the respondent creating that contract. This contract, however, is but one of approximately 23 contracts and does not of itself alter the primary pattern of the applicant's employment. I have accepted the evidence before me with regard to the Wacol Relief Pool to the effect that its nature was such that: "13. The Wacol Relief Pool is a list of the names of available CCO employees, willing to be engaged under casual contracts that may be called upon to fill short-term staff vacancies in various centres or the courts. 14. Each participating centre is provided with a list of available CCO employees, which is updated each morning, in order to meet temporary circumstances pursuant to s.113 (1) of the Public Service Act 1996. The list is in order of merit and shows the availability of the employees and the hours they have available. When filling a vacancy the next suitable employee is taken from the list. Only once a person on the list is identified as suitable and commences work at a centre do they then enter into a contract of employment for that period pursuant to s.113 (2)(b) of the Public Service Act 1996. Each casual contract stands alone. … 16. During an employee's listing in the Wacol Relief Pool they are not guaranteed of on-going employment or even on-going offers of employment. The offer of shifts is restricted by the availability of the employee in question and this is then measured against the availability of other members of the Wacol Relief Pool.". [Exhibit 1 (Affidavit of Kevin Gerard Rooney).] I have accepted that the placement in the Wacol Relief Pool only created the opportunity for a further casual contract to occur. Even if work generally did follow the placement, I have accepted that there was no certainty of that occurring. At the commencement of the last contract between the parties the respondent made it clear to the applicant that his temporary engagement was to come to an end on 10 December 2006. Beyond that, the applicant would revert back to the Wacol Relief Pool where, if work was available, the applicant could accept or reject that work when placed back on the list of names. Ultimately, the respondent determined not to place the applicant's name back in the Wacol Relief Pool and that was an option always open to them. In other correspondence received by the applicant from the respondent relative to temporary contracts between them, the following comments generally contained the words: "Should these circumstances change your employment may be terminated prior to the expected end date. If your employment is to be terminated prior to the specified end date, two weeks notice will be given in this regard.". [Words to this effect are seen in correspondence dated 17 August 2001; 12 November 2001; 20 February 2002; 9 May 2002; 12 August 2002; 24 November 2003; 15 December 2003; 15 January 2004; 6 February 2004; 15 March 2004; 19 April 2004; 24 June 2004 and 13 October 2004.] On 7 January 2003 the applicant received correspondence from the respondent stating: "Pursuant to the Public Service Act 1996, I wish to advise you of your appointment to the position of Casual Corrective Services Officer, Brisbane Women's Correctional Centre, Wacol, (QCO1-3) effective from 13.1.03. This appointment is on a casual basis …". Similar correspondence was received from the respondent dated 16 December 2004 and 13 January 2006. It appears from a consideration of the above correspondence that on the occasions when the applicant was appointed as a casual he received specific correspondence of his appointment which specified that the contract was effective from a particular date with the one cited exception. Notwithstanding the fact that the last contract made reference to reversion back to the Wacol Relief Pool, this did not occur. There was no continuing casual contract between the parties and the last contract was a stand-alone temporary employment contract. In Carey (supra), Hall P stated: "The term of a temporary employee under s. 113 of the Act is controlled by the 'temporary circumstances' which trigger the decision to employ a temporary employee. No amount of refusal or withholding of assent by an employee who commenced work after receiving notice of the proposed expiry date of his engagement can convert an employment under s. 113 into anything other than a 'temporary employment' or enlarge the term beyond that appropriate to the 'temporary circumstances'.". [The "Act" being the Public Service Act.] Further, His Honour stated: "The employment of general and temporary employees is provided for at Part 9 of the Public Service Act 1996. A person may be employed by a chief executive as a general employee to perform work of a type not ordinarily -- 6 of 7 -- 7 performed by an officer, s. 112(1). It follows that the respondent could not have been employed as a general employee. He was always employed to perform work of a type which would ordinarily be performed by an officer. To meet temporary circumstances, a chief executive may employ a person as a temporary employee or as a casual employee to perform work of a type ordinarily performed by an officer …". I respectfully adopt the decision of Hall P cited above as it relates to s. 113 of the Public Service Act. The reality was that at the time of termination of employment, the applicant was engaged under a discrete temporary contract pursuant to s. 113 of the Public Service Act and the principle espoused in Carey (supra) must prevail. Elements of the submissions made by the applicant with regard to the utilisation of casual labour within Queensland Corrective Services relate more to matters of Government policy. The respondent was able to engage employees in the manner in which it did pursuant to s. 113 of the Public Service Act. Section 72(1)(d) of the Act precludes an employee engaged for a specific period or task from accessing the reinstatement provisions of the Act. The exceptions contained with s. 72(1)(d)(i), (ii) and (iii) of the Act do not apply in this instance. Considering all of these factors, I determine that the Commission has no jurisdiction to hear and determine the primary application for reinstatement. Order accordingly. D.A. SWAN, Deputy President. Hearing Details: 2007 9 March 3, 17, 19 April Released: 27 June 2007 Appearances: Dr N. Timo, instructed by Ms L. Daley and Ms L. Smith of Shine Lawyers, for the Applicant. Mr S. Donovan, Mr D. Matley, Mr K. Brown and Mr G. Brown, for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 7 of 7 --