Davis v Mamu Medical Service Limited [2005] QIRC 17 (2005) QGIG 179

[Extract from Queensland Government Industrial Gazette, dated 25 February, 2005, Vol. 178, No.8, pages 179-181] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Brett Thomas Davis AND Mamu Medical Service Limited (No. B1421 of 2004) COMMISSIONER BLADES 10 February 2005 Unfair dismissal application – Contract for fixed term – Whether mistake in period of operation of contract – Subsequent contracts for fixed terms signed – Questions of fact – Held mistake in contract – Held contract expired by effluxion of time – Held no dismissal. DECISION The problems in this case have arisen out of mistakes made by the parties in regard to the terms of a written contract. Mr Brett Davis (the applicant) was first employed as a temporary Health Worker by the respondent Mamu Medical Centre Ltd at Innisfail for 4 days in September 2003 when he signed a contract of employment for a “temporary/relief position of Health Worker Grade 1” from 22/9/03 to 26/9/03. The next document that was signed was a contract for a “temporary position of Health worker” signed on 18 November 2003, for employment from 17/11/2003 to 24/12/2004. The employment came to an end on 31 August 2003. It is the applicant’s claim that his contract of employment ran until 24 December 2004. It is the respondent’s claim that the contract dated 18 November 2003 ran until 24 December 2003 and that the date “24/12/2004” was clearly a mistake. These contracts are not of the type attracting the provisions of s. 72(1)(d) of the Industrial Relations Act 1999 (the Act). I am satisfied on the whole of the evidence on the balance of probabilities that the contract dated 18 November 2003 contained a mistake in the date and that what was meant was for a period 17 November 2003 to 24 December 2003. I find that both parties believed that the contract was to run until 24 December 2003 and my finding is borne out by the evidence that:  Immediately after the applicant signed the contract on 18 November 2003 for the temporary position of Health Worker, he lodged an application (on 3 December 2003) for the permanent position of “Male Health Worker”, due to close on 12 December 2003.  The contract signed on 18 November was authorised by a meeting of the Board held on 17 November 2003 when it was agreed to advertise in local papers and via networks with the (successful) applicant to commence in the New Year. The Minutes of the Board meeting record “Brett Davis’s temporary position to be extended to 24/12/03”. Mamu was to close its doors on 24 December for the Christmas vacation.  There was a meeting of the Mamu Board of Directors held on 15 December 2003 and the Minutes indicate that applications for the position closed on 12 December 2003, only two applications were received and members agreed to extend advertising for another month to 16 January 2004. The uncontested Minutes record that “Brett also suggested that we get in touch with QATSIHWEPAC and send them application packages”.  Of significance, there is another contract of employment signed by the applicant on 20 January 2004 for employment as “Male Health worker” from 19 January 2004 to 16 July 2004 “and at this time the position will be reviewed by the Board of Directors”. This contract is consistent with the previous contract expiring 24 December 2003.  Mr Davis, if he believed his contract was for the period ending 24 December 2004 remarkably did not offer any protest at these happenings.  There was a performance appraisal signed by Mr Davis on 15 July 2004 which contains, inter alia, the following comments – “Willing to learn but unsure about tenure – if job was permanent, he’d do relevant courses to improve his performance”. “Brett is stressed about his future in this position – is hoping for an outcome of some sort soon. Obviously motivation can be lacking if someone is unsure about their immediate future”.  The Minutes of a Board meeting held 19 July 2004 were exhibited, revealing that one of the applicants for the position of Male Health Worker had appealed to the Union that the position was not widely advertised. The Board decided that the position would be re-advertised via the QAIHF network.  There was a letter dated 22 July 2004 from the Board to the applicant extending the employment from Monday 19 July 2004 until Tuesday 31 August 2004, Mr Davis acknowledging his agreement by his signature appended 26 July 2004. The Board’s records of annual leave reveal that Mr Davis was on recreation leave from 19 July to 23 July which explains the signature on 26 July. This contract is inconsistent with the earlier contract running to 24 December 2004. -- 1 of 2 -- 2  Ms Croft’s evidence that at a meeting on 30 August, Mr Davis agreed that there was a typographical error was not challenged. Interviews for the position of Male Health Worker were held on 17 August 2004 and the applicant was unsuccessful. On that date, the Board appointed another to the position. I am satisfied that this was the one and the same position which was referred to in the contract of 18 November 2003. The signing of these subsequent documents and the ongoing advertising and non-fulfilment of the position and the other evidence referred to indicate to me that Mr Davis was well aware of his temporary position at all times, that the 18 November contract ran to 24 December 2003 and was then extended by a series of other contracts. The respondent has submitted that the applicant did not have a belief that there was a contract expiring 24 December 2004 until he was given that advice by his Union representative. The following passage is contained in Mr Davis’ written statement: “On Friday 27th August 2004 I met with union representative Clement, Nichelle Nona (union rep Mamu) and my mother, Bette Davis (support person) at the family support centre across the road from Mamu. I was told by Clement that I had worked full time overall and that there was no reason to terminate my employment. During the meeting Nichelle Nona made a comment that it was very unfair and this position had only become available because Karen Croft had received a letter of interest from Adam. Clement also said that the contract I had signed on the 18th November 2003 was for the period of 17th November 2003 until 24th December 2004. I believed then that I was employed for that period, copy contract attached.”. I do not accept that the paragraph supports the applicant’s claim he always believed his contract was to 24 December 2004. I would have expected a different form of words to be used. The paragraph supports what the employer claims, namely that it was the advice of the Union representative which caused both the employer and the employee to erroneously believe that there was a contract to expire on 24 December 2004. What occurred towards the end of the employment arrangement is probably not of much moment. Understandably, when Mr Davis was told he had been unsuccessful with his application for the position, he became upset at his pending termination. Things happened. On 30 August, because of insubordination, the applicant was suspended without pay for a day. That was subsequently changed to suspension on full pay for 10 days. This arose because of the misunderstanding by Board members, based on the Union’s advice, at a meeting held on 30 August 2004 that there was a written contract until 24 December 2004. However on 31 August 2004, the Board had the advantage of legal advice and wrote to Mr Davis pointing out the typographical error in the document and confirming that he should disregard the suspension for 10 working days. The letter went on to advise Mr Davis that his contract expired on 31 August 2004. In my view the simple answer is that it did. Purporting to suspend on full pay did not convert the fixed term contract into something else. There was no dismissal, an indispensable requirement for a successful application to remedy an unfair dismissal. There was a fleeting reference to the law on mistake. It requires only a fleeting response. Section 320(2) of the Act dealing with technicalities, legal forms and rules of evidence, s 274(2) – general powers, s 331(a) – decisions generally and s 334(1)(a)(i) – doing complete justice, could provide relief to remedy a mistake but there is actual authority that where a clerical error appears in a document, the error might be simply amended. In Elliott v Freeman (1863) 7 L.T. 715 a sum was described in a document as 1000l when in fact it should have been 100l. It was held that there was a clerical error which might be amended and therefore did not invalidate the bill of sale. I do not accept for one minute the submission that there was subterfuge and contrivance on the part of Mamu to rid itself of the applicant. It is clear that the applicant, disappointed by the selection of another to the position advertised over a period of almost a year, has clutched at the straw delivered to him by the misinformation of his Union representative. The application is dismissed. B.J. BLADES, Commissioner. Hearing details: 2005 7 February (Innisfail) Released: 10 February 2005 Appearances: Mr B. Gillan, Solicitor, for the Applicant. Mr V. Vandeleur, Vandeleur & Todd, for the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 2 of 2 --