Carey v Department of Justice and Attorney-General (No. 2) [2002] QIRC 130 (2002) 171 QGIG 17

6 September, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 17 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement David Carey AND Department of Justice and Attorney-General (No. 2) (No. B2054 of 2001) COMMISSIONER BLOOMFIELD 27 August 2002 Application for reinstatement – Temporary employee – s. 113 of Public Service Act 1996 – Concession that termination unfair – Remedy – Impossible to order reinstatement or payment of compensation because of effect of s. 113 – Application dismissed. DECISION -- 1 of 3 -- QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 6 September, 2002 18 In a decision reported at 169 QGIG 804 I made certain determinations in respect of a preliminary point about whether Mr Carey had been terminated at the initiative of the employer or whether his employment ceased through the effluxion of time. I decided that the manner of the communication of Mr Carey’s termination on 26 October 2001 caused the employment relationship to come to an end on that day at the initiative of the employer. I further indicated that if I was wrong in deciding Mr Carey’s employment ceased on that date, and that in fact it did not cease until 2 November 2001, the termination would still have been at the initiative of the employer and not through the effluxion of time. The first aspect of my decision was confirmed on appeal by the President, in a decision now reported at 170 QGIG 306. However, His Honour decided I erred in law in concluding that if Mr Carey’s employment was not terminated until 2 November 2001 it terminated at the initiative of the employer. Rather, His Honour determined, subject to two caveats, that Mr Carey’s employment would have terminated on 2 November 2001 upon the expiry of his temporary appointment pursuant to s. 113 of the Public Service Act 1996. The President remitted the question of whether Mr Carey’s termination on 26 October 2001 was harsh, unjust or unreasonable to the Commission as presently constituted to be determined according to law. When the matter resumed, Mr A. Horneman-Wren, Counsel for the Respondent, indicated that, in light of the Commission’s earlier finding that Mr Carey had been terminated on 26 October 2001 and the President’s overall decision on appeal, the Commission would be entitled to move to s. 78 of the Industrial Relations Act 1999. “That is to say, you would be satisfied that Mr Carey was unfairly dismissed (on 26 October 2001)” – (page 156 of transcript). However, Mr Horneman-Wren stressed the making of that concession did not mean the Respondent accepted the Commission could order any remedy pursuant to s. 78. Mr Horneman-Wren said the only basis for Mr Carey’s employment was that of a temporary employee pursuant to s. 113 of the Public Service Act 1996. Mr Horneman-Wren said the Commission could not make any order reinstating Mr Carey to his former position. That former position no longer existed. It was formally constituted by his last appointment pursuant to s. 113 of the Public Service Act 1996 and ceased to exist on 2 November 2001. As such, Mr Carey’s reinstatement was not only impracticable, it was impossible. Mr Horneman-Wren said any order of the Commission which had the effect of creating employment, or rights associated therewith, beyond 2 November 2001 would be to confer upon Mr Carey rights which he previously did not have. In relation to the only other possible remedy, viz compensation, Mr Horneman-Wren said Mr Carey was not only paid to the end of his contract period but also for a period of some 3 weeks thereafter. As such, Mr Carey had been remunerated well beyond the point in time at which any rights attaching to his former employment with the Respondent would have expired. Therefore the Commission should not be minded to make any order for compensation in respect of any alleged lost earnings. In response to a position advanced by the Applicant, Mr Horneman-Wren acknowledged the Commission did have jurisdiction, pursuant to s. 79 of the Industrial Relations Act 1999, to order payment of compensation, if it was so minded, for any hurt and humiliation arising from the manner of Mr Carey’s termination. However, Mr Horneman-Wren submitted that in assessing that matter, the Commission would have to take into account the amount which Mr Carey was paid upon termination which was not otherwise referable to any other employment entitlements he had. Mr Bradley of Counsel, on behalf of Mr Carey, did not pursue either of the President’s caveats (above). He accepted that Mr Carey had been legitimately engaged as a temporary employee pursuant to the provisions of s. 113 of the Public Service Act 1996. Mr Bradley said Mr Carey was seeking reinstatement in the position he formerly occupied as a temporary employee, namely the position of PO3 Legal Officer in the Workplace Law Team. Mr Carey also sought an order requiring the Department to recognise his continuity of service from 2001 until the date he was reinstated, together with payment for remuneration lost between 26 October 2001 and the date of reinstatement. Mr Bradley argued that the President’s decision on appeal left open the question of Mr Carey’s employment status at the time of his termination on 26 October 2001. In support of this submission he referred me to the President’s decision at p. 310 where His Honour said (references to the parties have been reversed to reflect the current proceedings): “The correct proposition, or so it seems to me, is that the Respondent might appoint a person such as Mr Carey for a fixed term, for a purpose which will come to an end, or upon an indefinite hiring terminable by notice provided that, in the latter case, it is not the intention of the department (to), in fact, treat the engagement as a permanent or continuing one to be brought to an end only by supervening events such as misconduct or redundancy. Determining the true nature of the engagement of an employee such as Mr Carey is a matter which is not without difficulty. To begin with, one temporary engagement may well be followed by another. One can well envisage a temporary employee engaged for the duration of an officer’s long service leave being offered a further engagement for the duration of a trial. There is the additional difficulty that extension of the initial temporary engagement may be by variation as well as by fresh appointment. Additionally, there is nothing in the Public Service Act 1996 to require that each appointment or variation be made in writing. It follows that it will be necessary to take into account evidence of that which was said and, indeed, evidence of the conduct of the parties which may throw light upon the nature of an appointment. In this case, of course, because of the Commission’s finding that the employment was terminated at the initiative of the Respondent on 26 October 2001, if the true nature of Mr Carey’s engagement by the Respondent ever again becomes relevant in the proceedings before the Commission, the only issue will be the nature of the engagement which was on foot on 26 October 2001.”. Mr Bradley said Mr Carey’s case rested on the following bases: (a) that Mr Carey had an employment relationship with the Department that gave rise to certain obligations on the part of both Mr Carey and the Department (and that the Commission has the power to remedy breaches of those obligations); and (b) it was not a term or condition of Mr Carey’s employment that he was employed at the pleasure of the Department. Mr Bradley said the power conferred upon the Director-General of the Respondent by s. 113(1) of the Public Service Act 1996 must be exercised in accordance with Public Service Directive 19/97. That directive stipulates that a Director-General may employ a person only for so long as the initial “temporary circumstances” met by the employment of that person continue to exist. Mr Bradley said that Direction 19/97 also stipulated that any letter of appointment/extension provided to Mr Carey must contain the “anticipated duration of the engagement” (see Directive 19/97). Mr Bradley said given the requirement to only provide an anticipated duration of the engagement it was not surprising that Mr Carey’s engagement did not end when any of the dates stated in any of his letters of appointment/extension arrived. This was because the dates provided were merely the anticipated end of the temporary circumstances relied upon by the Director-General to appoint Mr Carey as a temporary employee. The letters of appointment/extension did not “fix” a period but merely stated the anticipated end date, as the Directive required. -- 2 of 3 -- 6 September, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 19 Mr Bradley submitted there was no evidence before the Commission to suggest that the temporary circumstances met by Mr Carey’s employment on 19 March 1999 (I think he actually meant 12 June 1999 - see letter 21, Attachment DC1 to Exhibit 11) had ceased to exist. He said such question was a matter of fact, rather than one of law. The existence of temporary circumstances involved some measure of objective analysis. Mr Bradley said it was for the Department to persuade the Commission that it was impracticable to reinstate Mr Carey. The only way to do that was to demonstrate that the “temporary circumstances” met by the employment of Mr Carey on 19 March 1999 (or 12 June 1999) no longer exist. There was no “prima facie” bar to the Commission ordering the Director-General to reinstate Mr Carey. Any order for reinstatement would not compel the Director-General to continue to employ Mr Carey beyond the existence of the “temporary circumstances” met by his employment on 19 March 1999 (or 12 June 1999) and extended on a number of instances since that time. In the event the Commission ruled against him on the issue of reinstatement Mr Bradley sought payment of the maximum amount of compensation available under s. 79 of the Industrial Relations Act 1999 comprising payment for lost earnings and payment for injury and embarrassment associated with the manner of Mr Carey’s termination. Section 113 of the Public Service Act 1996 vests in a Chief Executive of a Department the discretion to employ a temporary employee to perform work of a type ordinarily performed by an officer of the public service. The exercise of that discretion is subject to any directive that may be made about the employment of persons as temporary employees. Directive 19/97 is such a directive. Directive 19/97 provides, inter alia, that temporary employees may be employed only to meet temporary circumstances and that temporary engagements shall not be extended for any reason other than where there is a continued need to meet the temporary circumstance. Two things are obvious from the provisions of s. 113 and Directive 19/97. Firstly, a temporary employee can only be employed to accommodate temporary circumstances. If the temporary circumstances cease to exist so does the discretion otherwise available to a chief executive to appoint a person as a temporary employee. Secondly, the power to appoint is a discretionary one. Even if temporary circumstances exist, the Chief Executive is not required to appoint a temporary employee to satisfy the temporary circumstance if the chief executive is not minded to do so. In his decision (at p. 311) the President made it clear that “(I)t cannot be the effect of s. 113 that any employee other than a casual appointed to perform work of the type ordinarily performed by an officer is appointed for a limited term in the first instance with a right to relief if a failure to offer a further engagement may be shown to be unfair. What relief one may ask is the Queensland Industrial Relations Commission to grant? Is the Commission to order reinstatement or re-employment in circumstances in which there are no longer “temporary circumstances” to be met? Is the aggrieved ex- employee to be given compensation for loss of an engagement which he did not hold and which he could not have been given because s. 113 did not allow it?”. In light of that decision, it is not open to the Commission, in my view, to require or direct the Chief Executive of the Department of Justice and Attorney- General to employ a person (i.e. Mr Carey) to cover any temporary circumstances which might exist which relate to Mr Carey’s previous position (PO/20058). It would also be equally impossible for the Commission to require or direct the Director-General to employ Mr Carey in some other role (i.e. other than PO/20058) to meet any other temporary circumstances which might exist. In each instance to do so would be to require the Chief Executive to do things which s. 113 of the Public Service Act 1996 does not require him to do. Reinstatement is thus not only impracticable, it is impossible. For similar reasons the Commission could not order payment of any compensation to Mr Carey beyond that to which he is entitled according to his engagement pursuant to s. 113 and Directive 19/97 as reflected in his last letter of extension dated 30 August 2001. To do so would be to compensate him for loss of an engagement which he did not have beyond 2 November 2001 and which s. 113 of the Public Service Act 1996 did not require the Chief Executive to extend (see the President’s decision above). The letter of extension dated 30 August 2001 advised Mr Carey that his period of engagement as a temporary employee had been extended until 2 November 2001 subject to the caveat that, except for misconduct, his services were terminable by either party at any time by the giving of two weeks’ notice. In accordance with the terms of the letter of extension Mr Carey was entitled to be paid two weeks in lieu of notice upon the termination of his employment on 26 October 2001. As noted above, Mr Carey was paid until 2 November 2001 plus an additional 3 weeks of payment. He has thus been paid more than the payments required under the contract of employment in existence on 26 October 2001. I am also not minded to award Mr Carey any other form of compensation. Whilst I was urged to award some compensation to reflect the hurt, humiliation and embarrassment allegedly visited upon Mr Carey in relation to the manner of his termination I am not persuaded that this is an appropriate case to award compensation of that type. Although, Mr Carey indicated in his statement (Exhibit 16), and under cross-examination, that he had suffered hurt, humiliation and embarrassment and that he had lost self-confidence as a result of his termination. The way he described the incident when the alleged hurt, distress and humiliation occurred leads me to conclude that Mr Carey, in a perverse way, enjoyed the whole experience and the chance to demonstrate his wit and intellect to those associated with his termination. Further, there was no evidence to suggest that he required the attention of any medical practitioners or any counsellors to help him deal with the alleged aftermath of the termination. The whole circumstances of this case are nothing like those considered in other instances where compensation of this type has been awarded by this Commission (see Lade Oloyede v Sunshine Plantation Pty Ltd trading as the Big Pineapple (1997) 156 QGIG 674, Claudia Alvenie Sheedy v Farmers Arms Hotel (1998) 160 QGIG 99, and Carmela Serratore v Doyles Construction Lawyers (2001) 168 QGIG 9). For the above reasons, application No. B2054 of 2001 is dismissed. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Appearances: Mr T. Bradley, of Counsel, instructed by Mr C. Agnew, of Agnew Consulting Pty Limited, for Mr D. Carey the Applicant. Released: 27 August 2002 Mr A. Horneman-Wren, of Counsel, instructed by Ms A. Fitzpatrick, of McCullough Robertson, for the Department of Justice and Attorney- General. -- 3 of 3 --