Carey v Department of Justice and Attorney-General [2002] QIRC 58 (2002) 169 QGIG 804

804 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 April, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement David Carey AND Department of Justice and Attorney-General (No. B2054 of 2001) COMMISSIONER BLOOMFIELD 16 April 2002 Reinstatement – Dismissal – Termination of Employment – Application by Respondent to have application struck out – Preliminary issue – Jurisdictional issue – Whether applicant was on fixed-term contract – Whether there was a dismissal – Authorities considered – Arbitrated Matter – Finding that there was a termination at the initiative of the employer – Applicant entitled to bring an application pursuant to Chapter 3, Part 2 of the Act – Matter listed for directions hearing. DECISION ON JURISDICTIONAL POINT This decision relates to a preliminary jurisdictional point raised by the Department of Justice and Attorney-General (the respondent) that there was no “dismissal” of the applicant by the respondent such as to give rise to any rights in the applicant to bring an application in the Commission pursuant to Chapter 3, Part 2 of the Industrial Relations Act 1999. That is, there was no termination of the employment at the initiative of the employer. It was the respondent’s contention that the contract of employment between itself and Mr Carey terminated on 2 November 2001 upon the effluxion of the period over which it was to run. It was argued that termination of the contract in those circumstances did not give rise to a “dismissal” for the purposes of Chapter 3, Part 2 of the Act (see Victoria v The Commonwealth (1996) 187 CLR 416 at 519-520; Fisher v Edith Cowan University (1996) 70 IR 206 at 211; Fisher v Edith Cowan University (No. 2) (1997) 72 IR 464 at 469-471; D’Ortenzio v Telstra Corporation (No. 2) (1998) 82 IR 52 at 57- 58; Qantas Airways v Fetz (1998) 84 IR 52 at 66-68; Manuel v Pasminco Cockle Creek Smelter (1998) 83 IR 135 at 144; Pitman v Queensland Department of Health (1997) 155 QGIG 232). General facts of the matter Mr Carey was employed by the Department of Justice and Attorney-General from 30 September 1993 until 26 October 2001 (on Mr Carey’s version of events) or 2 November 2001 (on the respondent’s version of events). During that period Mr Carey was provided with thirty-three letters specifying periods of “engagement” in particular positions with the Department (see Attachment DC1 to the affidavit of Mr Carey – Exhibit 11). However, Departmental records also showed that Mr Carey had ten other “engagements” which were not covered by any letters of engagement (see Attachment DC13 to Exhibit 11). The following table records Mr Carey’s employment history. Where his engagement is covered by a letter the actual period of engagement is as stated in the letter (drawn from Attachment DC1). Where there is no letter the period of engagement is that which is shown in the Department’s records (drawn from Attachment DC13). Generally, there was no stated reason for any engagement. Where a reason for engagement was stated that reason is recorded in note form at the end of the table. Ltr No. Date of Letter Duties Described Classification Stated Period of Engagement as per letter Stated Period of Engagement by Respondent 1 07 Oct 93 Admin Officer AO2(7) 30 Sep 93 to 31 Dec 93 30 Sep 93 to 31 Dec 93 2 30 Mar 94 Admin Officer AO2(7) Until 29 Apr 94 01 Jan 94 to 29 Apr 94 3 18 May 94 Admin Officer AO2(7) Until 27 May 94 30 Apr 94 to 27 May 94 4 30 May 94 Admin Officer AO2(7) Until 24 Jun 94 28 May 94 to 24 Jun 94 5 04 Jul 94 Legal Officer (1) PO3(1) Date of entry for 5 wks 07 Jun 94 to 08 Jul 94 PO3(1) 09 Jul 94 to 31 Jul 94 6 10 Aug 94 Admin Officer (2) AO2(7) 01 Aug 94 to 28 Oct 94 01 Aug 94 to 28 Oct 94 AO2(7) 29 Oct 94 to 02 Jan 95 7 18 Jan 95 Legal Officer PO3(1) 03 Jan 95 to 31 Mar 95 03 Jan 95 to 31 Mar 95 8 01 Mar 95 Legal Officer PO3(1) 06 Feb 95 to 10 Mar 95 06 Feb 95 to 10 Mar 95 9 29 Mar 95 Admin Officer PO3(1) 13 Mar 95 to 02 Jun 95 13 Mar 95 to 02 Jun 95 PO3(1) 03 Jun 95 to 24 Oct 95 10 08 Oct 96 Legal Officer PO3(2) Until 25 Oct 96 25 Oct 95 to 25 Oct 96 11 14 Nov 96 Legal Officer PO3(2) Until 29 Nov 96 26 Oct 96 to 29 Nov 96 PO3(2) 30 Nov 96 to 31 Jan 97 12 23 Jan 97 Legal Officer PO3(2) Until 30 Jun 97 01 Feb 97 to 30 Jun 97 13 23 Jul 97 Legal Officer PO3(2) Until 29 Aug 97 01 Jul 97 to 29 Aug 97 14 25 Aug 97 Legal Officer (3) PO3(3) 28 Jul 97 to 27 Oct 97 28 Jul 97 to 27 Oct 97 -- 1 of 5 -- 26 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 805 Ltr No. Date of Letter Duties Described Classification Stated Period of Engagement as per letter Stated Period of Engagement by Respondent PO3(3) 18 Aug 97 to 28 Aug 98 15 22 Sep 97 Legal Officer (4) PO3(3) 01 Sep 97 to 27 Oct 97 01 Sep 97 to 27 Oct 97 16 28 Oct 97 Legal Officer PO3(3) Until 28 Nov 97 28 Oct 97 to 28 Nov 97 17 09 Jan 98 Legal Officer PO3(3) Until 27 Feb 98 29 Nov 97 to 27 Feb 98 18 18 Feb 98 Legal Officer PO3(3) Until 30 Apr 98 28 Feb 98 to 30 Apr 98 19 17 Apr 98 Legal Officer PO3(3) Until 30 Jun 98 01 May 98 to 30 Jun 98 PO3(3) 01 Jul 98 to 30 Aug 98 PO3(3) 31 Aug 98 to 09 Oct 98 PO3(3) 10 Oct 98 to 27 Nov 98 PO3(3) 28 Nov 98 to 10 Mar 99 20 19 Mar 99 Legal Officer (5) PO3(4) 11 Mar 99 to 11 Jun 99 11 Mar 99 to 11 Jun 99 21 13 Aug 99 Legal Officer PO3(4) Until 30 Sep 99 12 Jun 99 to 30 Sep 99 22 17 Sep 99 Legal Officer PO3(4) Until 31 Dec 99 01 Oct 99 to 31 Dec 99 23 20 Dec 99 Legal Officer PO3(4) Until 31 Jan 00 01 Jan 00 to 31 Jan 00 24 30 Jan 00 Legal Officer PO3(4) Until 26 May 00 01 Feb 00 to 26 May 00 25 01 Jun 00 Legal Officer PO3(4) Until 25 Aug 00 27 May 00 to 25 Aug 00 26 17 Jul 00 Legal Officer PO3(4) Until 20 Nov 00 26 Aug 00 to 20 Nov 00 27 14 Nov 00 Legal Officer PO3(4) Until 12 Jan 01 21 Nov 00 to 12 Jan 01 28 05 Jan 01 Legal Officer PO3(4) Until 23 Feb 01 13 Jan 01 to 23 Feb 01 29 21 Feb 01 Legal Officer PO3(4) Until 06 Apr 01 24 Feb 01 to 06 Apr 01 PO3(4) 26 Feb 01 to 09 Mar 01 30 15 Mar 01 Legal Officer PO3(4) 12 Mar 01 to 24 Aug 01 12 Mar 01 to 24 Aug 01 31 04 May 01 Legal Officer (6) PO3(4) 09 Apr 01 to 09 Jun 01 09 Apr 01 to 09 Jun 01 32 21 May 01 Legal Officer PO3(4) Until 31 Aug 01 10 Jun 01 to 31 Aug 01 33 30 Aug 01 Legal Officer PO3(4) Until 02 Nov 01 01 Sep 01 to 02 Nov 01 Stated Reasons for Engagement (1) based on undertaking work on behalf of the Department of Housing and Local Government (2) based upon the staffing requirements of the Crown Law Division pending completion of the selection process to fill this position (3) based on the completion of the selection process to fill this position (4) based on a currently advertised position (5) based on the operational requirement of Crown Law (6) based on operational convenience Contentions Mr A. Horneman-Wren, counsel for the respondent, said Mr Carey was employed pursuant to s. 113 of the Public Service Act 1996. As such, the applicant was a temporary employee and was not an officer of the public service. He was employed pursuant to a contract of employment which was to expire on 2 November 2001. Such form of employment is recognised, and provided for, by the Public Service Act 1996. Mr Horneman-Wren said it was not to the point that certain Departmental officers had been discussing or considering Mr Carey’s conduct, capacity or performance, or indeed any other matters, prior to deciding not to renew his contract when it expired on 2 November 2001. Whether the respondent did have, or may have had, reasons for not offering Mr Carey a further contract was also not to the point. Mr Horneman-Wren said the material matters relevant to the consideration of the preliminary jurisdictional point were:– • what was determined by senior Departmental officers on the afternoon of 25 October 2001 (viz. not to renew Mr Carey’s contract when it expired on 2 November 2001); • what was conveyed to Mr Carey in the letter of 26 October 2001 (viz. his contract would not be renewed when it expired on 2 November 2001); and • what was said to Mr Carey by the respondent’s Executive Manager, Human Resource Management Services, when he handed Mr Carey the above letter on 26 October 2001 (viz. a statement which was in similar terms to the above letter). Mr Horneman-Wren also said the respondent’s actions in paying Mr Carey a sum of money at the expiry of the contract (i.e. four weeks’ pay) did not characterise, at law, such payment as payment in lieu of notice. Nor could it alter the situation, at law, that the contract concluded on 2 November 2001. Finally, he said the lack of jurisdiction to entertain the application was emphasised by the lack of remedy which the Commission could order. Re- employment could not be ordered as it would require the Commission to order the respondent to exercise its powers under s. 113 of the Public Service Act 1996 to employ a temporary employee. The Commission could not order re-employment of the applicant on any other basis as to do so would be to require his appointment as an officer of the public service, which was a status the applicant did not formally have. Further, there could be no order of compensation made, the applicant having been paid to the end of the term of the contract, as well as an additional sum. Mr T. Bradley, counsel for the applicant, submitted that Mr Carey’s employment with the Department came to an end at the initiative of the Department and the Commission had jurisdiction to hear and determine Mr Carey’s dismissal application. Mr Bradley said the Department’s conduct prior to 26 October 2001 was consistent with Mr Carey having a continuing employment relationship with the Department of indefinite duration, terminable on notice, regardless of the period stated in the then current letter of engagement. Mr Bradley also said:– • each of the letters of engagement was not a “contract of employment”; • each letter of engagement did not create a new employment relationship between the Department and Mr Carey; -- 2 of 5 -- 806 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 April, 2002 • the letters did not request or provide for any act of acceptance on Mr Carey’s part; • the Department employed Mr Carey for a total period exceeding 40% of the total period of employment notwithstanding that the period of engagement stated in the then current letter of engagement had expired; • the Department’s use of temporary letters of engagement was contrary to practice described in the relevant legislation and directives; • the letters of engagement were illusory, unreal or merely a device by which the Department tried to arrange for it to appear that Mr Carey was rendering service under consecutive contracts of employment; • the pattern of the letters is random and not consecutive; • the letters were related to internal Departmental requirements only; • the Department appears to have intended the letters of engagement to serve the purpose of providing additional control over Mr Carey; and • Mr Carey was in a vulnerable position and had no say in the terms of the letters of engagement. Mr Bradley also said that rather than the employment relationship expiring with the effluxion of time the Department terminated the employment relationship on 26 October 2001 by:– • acting in a manner calculated to destroy or seriously damage the relationship between itself and Mr Carey; • ordering Mr Carey to immediately and permanently leave the workplace; and • deciding not to “roll-over” the “employment contract” on 2 November 2001. Mr Bradley said the Department’s conduct after 26 October 2001 was consistent with the Department having effected a decision on 26 October 2001 to terminate Mr Carey’s continuing employment relationship with the Department. Findings In Cooper v Darwin Rugby League Inc ([1994] 57 IR 238 at 240) Northrop J said:– “In the context of the employment of an employee, the termination of the employment of the worker may be brought about at the initiative of the employer, at the initiative of the employee, by involuntary act, at the death of the employee, or by agreement between the employer and the employee. It is in this context that . . . the terms ‘termination’ and ‘termination of employment’ are limited to termination of employment at the initiative of the employer. Thus the right . . . on a person to ‘apply . . . for a remedy in respect of termination of his or her employment’ is limited to an employee whose employment has been terminated by the employer and, one may add, without the consent or agreement of the employee.”. In the instant case Mr Horneman-Wren argued Mr Carey’s employment was not terminated at the initiative of the employer but rather came to an end upon the effluxion of the period over which it was to run. In the context of the identified ways (above) that an employee’s employment might come to an end the respondent can be assumed to have argued Mr Carey’s employment came to an end by pre-determined agreement between Crown Law and Mr Carey. That pre-determined agreement was said to be evidenced by the final letter of engagement which specified that Mr Carey would be employed until 2 November 2001. After considering the facts of the matter and the relevant authorities I have concluded Mr Carey’s employment was terminated at the initiative of the employer on 26 October 2001. It flows as a natural consequence of that decision that Mr Carey’s employment did not terminate by agreement on 2 November 2001 upon the effluxion of the period over which it was to run. In reaching the decision that Mr Carey was terminated at the initiative of the employer on 26 October 2001 I have considered a number of matters, the most relevant of which follow. 1. Certainty of Term In Anderson v Umbakumba Community Council ([1994] 56 IR 102 at 106) von Doussa J said:– “In the present case cl 3 and Sch 1 of the employment agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl 21(c) to bring the employment to an end on two weeks’ notice, and the right of the employer under cl 21(d) to bring the employment to an end without notice on payment of two weeks salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new agreement is entered into pursuant to cl 29). Within the period stated in Sch 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end.”. As was the case in Anderson, Mr Carey’s letters of engagement provided that his services could be terminated by either party at any time by the giving of two (2) weeks’ notice. For example, his first letter of engagement said:– “It is also advised that, except in the case of the termination of your services for any misconduct, your engagement may be terminated by either party at any time by the giving of two (2) weeks’ notice.”. The other thirty-two (32) letters contain a similar (but not identical) provision. Consequently, at any time during Mr Carey’s employment, there was no certainty as to when the contract of employment might come to an end. He was literally employed at the Department’s convenience. Further, the evidence in these proceedings was that of the thirty-three (33) letters of engagement eleven (11) specified a period of employment and twenty-two (22) specified employment “until” a particular date. Where they were expressed to be “until” a particular date no commencement date was mentioned. Accordingly, there can be no certainty about the length of the majority of the, so called, fixed term engagements. -- 3 of 5 -- 26 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 807 In addition, Mr Carey was not covered by any letter of engagement for some forty percent (40%) of the total period of employment. 2. Purpose of engagement The evidence disclosed Mr Carey was only informed on six (6) occasions of a reason for his engagement. On the other twenty-seven (27) occasions where letters were issued his employment was in a specified capacity – such as legal officer – but the nature of his employment was not spelt out. On another ten (10) occasions – totalling forty percent (40%) of the total period of employment – Mr Carey’s employment was continued without any formal advice of the term or the purpose. This scenario was much different from that considered by President de Jersey in Pitman v Queensland Department of Health ([1997] 155 QGIG 232). There, the applicant was engaged on a series of twelve month contracts where he had to undergo a selection process prior to being awarded each engagement. Whether or not Mr Pitman was awarded a new contract was not automatic. President de Jersey held that Mr Pitman’s employment came to an end by the effluxion of the time specified in the final contract. Here, apart from the first engagement, Mr Carey’s contract was extended automatically. There is no evidence that he was asked to make application for continuing employment in his current, or in any new, position. New letters of engagement seem to have been issued virtually automatically on an irregular basis. Whilst each letter purports to be a contract covering a particular period, the reality is that Mr Carey’s letters of engagement merely became a paper trail which attempt to portray he was engaged under a series of fixed-term contracts rather than one continuous period of employment. 3. Purpose of the letters of engagement My consideration of the evidence, particularly the letters of engagement, leads me to conclude that the purpose of the letters of engagement was to enable the employer to have additional control over the employee and to reserve the power, from the commencement of the employment, to decide whether it would “roll over” the employment contract at the end of each period or not (see Fisher v Edith Cowan University (No 2) [1997] 72 IR 469 at 470). The evidence suggests that, by continuing to work, Mr Carey did not signify his intention or desire that the employment relationship come to an end at the end of the period specified in the letter of engagement. This was certainly the case in August 2001 when Mr Carey received his final letter of engagement. By that time Mr Carey had been continuously employed since October 1993. His evidence was he believed he would be continued in employment beyond 2 November 2001, the “nominal” expiry date set out in the last letter of engagement. I accept his evidence. The issue of whether an applicant impliedly agreed to the termination of their employment by continuing to work after they received advice of a fixed- term contract was considered by Madgwick J in Church & Ors v Gold Coast City Council ([1996] AILR 3-424). In that case Madgwick J held it would be unsafe to infer from the applicant’s conduct in continuing to work that the applicant agreed to everything in the employment letter (including its term). Madgwick J said:– “In any short, fixed-term contract, it is elementary that both parties must have agreed to the terms of the contract. There was no such agreement here. The letters were unilateral announcements to the applicants of another extension to their employment. They were not asked to, nor did they, assent to the terms expressed in the letters.”. Madgwick J went on to conclude “Where there is no mutuality of contractual obligation as to a specified term, . . . there is no ‘contract of employment for a specified term’ within the meaning of (the regulation).”. His Honour went on to hold that the termination of the employees concerned in that case was at the initiative of the employer, and not because the contract had expired or run its time. The facts of this case lead me to reach a similar finding. 4. Acceptance of the term of the engagement Unlike the situation considered by Marshall J in D’Lima v Board of Management, Princess Margaret Hospital for Children ([1996] 64 IR 19 at 25) Mr Carey did not have to sign each letter of engagement indicating his acceptance of the offer contained within the particular letter. The practice of issuing letters of engagement appears to have been for administrative convenience and does not outweigh all of the other factors indicating a continuous employment relationship (see D’Lima at p. 26). It is also clear from the evidence that letters were sometimes not issued to Mr Carey although he continued to remain in employment (see for example the period from 1 July 1998 until 10 March 1999 – above). Indeed, the evidence is that there were no letters covering approximately forty percent (40%) of the total period of employment. Accordingly, it could not be said that there was any mutuality of understanding about the duration of the employment contract. The letters from the Department to Mr Carey were nothing but unilateral announcements to him of another extension to his employment (see similar finding by Madgwick J in Church & Ors). Mr Carey was not asked to express assent to the terms. As such, there was no “mutuality of contractual obligation as to a specified term”. 5. Rights to terminate the contract In Anderson v Umbakumba Community Council von Doussa J observed:– “It is significant that the rights to terminate the contract of employment arising under cl 21(c) and 21(d) are not conditioned on a breach of any term of the contract. The rights are unqualified. Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may sooner come to an end. In this case, however, the unqualified rights to terminate without reason under cl 21(c) and cl 21(d) make it clear, in my opinion, that the contract cannot be so characterised.”. Mr Carey’s final letter of engagement contained the following paragraph:– “However, as previously advised, except for misconduct, your services are terminable by either party at any time by the giving of two weeks notice. This temporary engagement may be terminated prior to the nomination completion date should intervening organisational circumstances require the cessation of this temporary engagement.”. -- 4 of 5 -- 808 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 April, 2002 [Note: While the precise wording varies, the earlier thirty-two (32) letters contain similar provisions]. Consequently, rather than being a contract which ran from the date of the letter (30 August 2001) until 2 November 2001 the contract was, in reality, one which could have been terminated by either party by the giving of notice or by the respondent “should intervening organisational circumstances require (it)”. Accordingly, on authorities such as Anderson v Umbakumba Community Council and D’Lima v Princess Margaret Hospital, the final letter was not one which proposed a fixed-term period of employment. Nor were the letters which preceded it. 6. Consensual termination The evidence discloses that the great majority of letters of engagement were issued to Mr Carey without prior discussion. The respondent did not (generally) obtain his agreement to the expiry date set out in each of the letters of engagement. Further, as noted above, Mr Carey was not asked to indicate his acceptance of each letter of engagement. In addition, some forty percent (40%) of the total period of employment was not covered by any letter. The Department’s pattern of issuing letters of engagement virtually automatically, and continuing to employ Mr Carey when the terms mentioned therein expired, led Mr Carey, legitimately in my view, into believing he had a reasonable expectation of continuing/ongoing employment. Consequently, it could not be said that Mr Carey had agreed with the respondent that there would be consensual termination of the employment relationship by the effluxion of the period specified in the various employment contracts or, more specifically, the final letter of engagement (see Fisher v Edith Cowan University (No 2) at 469; Church & Ors v Gold Coast City Council). 7. Fixed term nature of the Agreements After considering all of the above matters and relevant case law I, like Marshall J in D’Lima v Princess Margaret Hospital (at 25) and Madgwick J in Church & Ors v Gold Coast City Council, specifically reject the submission that Mr Carey was employed on a series of fixed-term contracts and that each contract expired on its own terms. I also specifically reject that his employment ceased on 2 November 2001 by the effluxion of time. There was no pre-determined agreement about the term of the engagement(s). After the first letter, each of the subsequent letters of engagement was a unilateral announcement to Mr Carey of another extension to his employment. Mr Carey was not asked to, nor did he assent to, the terms expressed in any of the letters. There was simply no mutuality of understanding as to the specified term set out in the final letter, or in any letter which preceded it. Further, there was no certainty as to the term of the agreement itself (see Anderson v Umbakumba). 8. The events of 26 October 2001 Mr Carey was told by Mr Williams at approximately 2.20 p.m. on 26 October that his contract was not being renewed (or words to that effect). Mr Carey was asked to hand over his security card (he said he did not have it with him) and was told he was to leave the building immediately. He was then escorted from the building by Mr Williams and a security guard. Mr Williams also told Mr Carey his access to the building was being removed. Although Mr Williams might have informed Mr Carey his contract was not being renewed and that he would not be required to come into the office for the balance of the period of his contract the manner of the communication of Mr Carey’s termination leads me to conclude that the employment relationship came to an end on that day (see Siagian v Sanel Pty Ltd [1994] 54 IR 185 at 196-203; compare Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd [1998] 88 IR 202). In any event, even if I am wrong on the date and Mr Carey’s employment did not cease until 2 November 2001, the termination would, having regard to all of the authorities considered above, still have been at the initiative of the employer and not through the effluxion of time. 9. Access to remedy Mr Horneman-Wren said the lack of jurisdiction to entertain the application was emphasised by the lack of remedy which the Commission could order. Re-employment could not be ordered as it would require the Commission to order the respondent to exercise its powers under s. 113 of the Public Service Act 1996. Further, the Commission could not order re-employment of the applicant on any other basis as to do so would be to require his appointment as an officer of the public service which is a status which the applicant did not formerly have. With respect to Mr Horneman-Wren’s submission, the lack of availability of the primary remedy under the Industrial Relations Act 1999 is not a factor to be considered in determining whether Mr Carey was dismissed by the respondent or whether his employment came to an end through the effluxion of time. There are other available remedies apart from reinstatement or re-employment (see s. 79) if the Commission, ultimately, concludes that Mr Carey was unfairly dismissed. Conclusions For the above reasons I have concluded Mr Carey’s employment was terminated at the initiative of the employer on 26 October 2001 or, if I be wrong about that date, on 2 November 2001. Consequently, Mr Carey is entitled to pursue his unfair dismissal application. The Commission will list the matter again at 9.00 a.m. on Friday 26 April 2002 for the purposes of issuing directions for the preparation of materials and the hearing and determination of the matter. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Released: 17 April 2002 Appearances:– Mr T. Bradley, of Counsel, instructed by Mr C. Agnew, of Agnew Consulting Pty Limited, for Mr D. Carey the Applicant. Mr A. Horneman-Wren, of Counsel, instructed by Ms A. Fitzpatrick, of McCullough Robertson, for the Department of Justice and Attorney-General. -- 5 of 5 --