Department of Justice and Attorney-General v Carey [2002] ICQ 34 (2002) 170 QGIG 306

306 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 July, 2002 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 341(1) – appeal against decision of industrial commission Department of Justice and Attorney-General AND David Carey (No. C42 of 2002) PRESIDENT HALL 25 June 2002 DECISION This is an appeal against a decision of the Queensland Industrial Relations Commission reported at 169 QGIG 804. The decision was about a preliminary jurisdictional point. The application before the Commission was an application for relief under s. 74 of the Industrial Relations Act 1999. It was the appellant’s submission that the Commission had no jurisdiction because the respondent’s employment was for a fixed period of time which had come to an end by the effluxion of time, i.e., there had not been a dismissal. The decision of the Commission sufficiently appears at the eighth matter considered by the Commission (at 806): -- 1 of 6 -- 5 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 307 “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.”. The issue being whether the Commission had jurisdiction, to succeed on the appeal the appellant must succeed on its appeal against each of the alternative grounds for the Commission’s decision; viz: (1) the respondent was dismissed (on 26 October 2001) prior to the alleged expiry of his employment by the effluxion of time; and (2) if the employment terminated on 2 November 2001 it did so at the initiative of the employer and not by the effluxion of time. In my view the Commission’s decision on the first ground is unassailable. The appellant is limited to an appeal on the grounds of error of law and excess or want of jurisdiction. The appellant is not entitled to attack the Commission’s findings of fact, howsoever illogical or faulty, so long as there is some basis for the findings; compare Muhammad Alamzeb v Education Queensland (No. 2) (2002) 170 QGIG 190 at 195. The Commission’s reasoning started with Siagion v Sanel Pty Ltd (1994) 54 IR 185. The decision is commonly referred to in connection with debates about whether particular statutory schemes about termination of employment are about termination of the contract of employment or about termination of the relationship of employer and employee. However, the case deals with other issues also. At 186, in reciting the facts, Wilcox CJ said: “On 29 March 1994, Mr Siagian worked throughout the morning at his usual duties. As he left the building for lunch, at about 1 pm, Jeff Bryant, an accountant who apparently carries out managerial functions for the Group, followed him and initiated a conversation. Mr Bryant told Mr Siagian that ‘the partners have decided you have to go’ and handed him a piece of paper with a cheque for $10,753.85 attached. The piece of paper is in evidence. It bears the name and address of Sanel and is headed ‘Statement of Earnings on Termination’. It sets out a computation that includes pay for the periods ending 1 April and 15 April (I gather that Mr Siagian was paid fortnightly) and the cash value of Mr Siagian’s accrued annual leave and long service leave. The total gross sum was $15,030.68 from which tax was deducted, leaving a balance of $10,753.85. The case has been argued on the basis that the effect of this transaction was to pay Mr Siagian all moneys due to him in respect of his employment by Sanel up to 15 April 1994. Mr Siagian asked Mr Bryant for ‘the termination letter’ but was told there was none. He asked why he was terminated but Mr Bryant merely repeated that the partnership had decided he had to go. Mr Bryant asked Mr Siagian for his key. Mr Siagian handed the key to Mr Bryant who escorted him back to the building to get his personal belongings and then out to his car. During the course of this activity, Mr Siagian again asked Mr Bryant the reason for his termination. He did not receive a responsive answer. Mr Siagian also repeated his request for a termination letter. Mr Bryant promised to send one but has not done so.”. At 203 His Honour went on to hold: “The view I have expressed makes it unnecessary for me to determine whether the respondent was entitled to make payment in lieu of notice or whether the selected period was too short. Subject to counsel’s second argument, there is no doubt that Mr Bryant, on behalf of the respondent, effectively terminated the employer-employee relationship on 29 March. His actions in delivering the cheque, with a statement of earnings on termination, repossessing Mr Siagian’s key and escorting him from the premises admit of no ambiguity. If the respondent was not entitled to make a payment in lieu of notice, or the selected period was too short, this only means that the termination was a breach of contract. On the view I take, that does not matter; it was still a ‘termination of ... employment’. Counsel’s first argument must be rejected.”. (Emphasis added). Given the Commission’s findings of fact (set out above) about Mr Williams’ interaction with the respondent on 26 October 2001, I can well understand how the Commission came to the view that the case was analogous to Siagian v Sanel Pty Ltd (1994) 54 IR 185 and why the Commission held that both the relationship of employer and employee and the contract of employment ceased, at the initiative of the employer, on 26 October 2001. It may be conceded that in Construction, Forestry, Mining & Energy, Industrial Union v Newcastle Wallsend Coal Company Ltd (1998) 88 IR 202 a Full Bench of the Australian Industrial Relations Commission distinguished Siagian v Sanel Pty Ltd (1994) 54 IR 185. As the Full Bench said (at 214): “Counsel for the CFMEU submitted that the situation in this case was analogous to that in Siagian in that the employees were not required to or permitted to attend for work. We do not agree with this submission. As we have noted the termination notice makes it clear that the respondent’s intention was that the employees would continue to be employed until the effective date of termination. The fact that the respondent did not exercise its option of requiring the employees to attend and perform work is not to the point.”. But the Commission was plainly aware of that. The Commission said, (at 806) “compare Construction, Forestry, Mining and Energy Union v Newcastle Wallsend Coal Company Ltd (1998) 88 IR 202”. (Emphasis added). The finding that the manner of the communication prevailed over or gave a different meaning to the words used was an inference for which there was some basis. It cannot be said to be an error of law. The challenge to the Commission’s first ground for accepting jurisdiction must fail. That is enough to dispose of the appeal. However, the second ground for the Commission’s decision to accept jurisdiction was fully argued. If allowed to stand, it may be relied upon as a precedent. The errors said to infect the Commission’s approach may again simmer to the surface if it becomes necessary to deal with the matter of remedy. Both parties press for a decision upon the point. I propose to determine the attack of the Commission’s second ground for accepting jurisdiction, but to refrain from writing an advisory opinion about remedies available to the respondent. Two preliminary points should be made: one, it is common ground that only a termination of employment at the initiative of the employer will entitle an applicant to any relief under Chapter 3, Part 2 of the Industrial Relations Act 1999; two, it is accepted by the respondent that jurisdiction may not be founded on estoppel. Since the issues before the Court go to jurisdiction I should record, without embellishment, that I agree with counsel on both preliminary points. -- 2 of 6 -- 308 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 July, 2002 The Commission summarised the history of the respondent’s employment as follows (at 804-5): “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 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.”. The appellant’s attack upon the Commission’s finding that if the employment of the respondent did not terminate at the initiative of the employer on 26 October 2001, it terminated on 2 November 2001 is an attack which is based upon the Public Service Act 1996. Part 2 of that Act establishes the Queensland Public Service. It consists of persons who are employed under the Act, s. 5. All public service employees are employed in “departments” or “public service offices”, s. 6. The appellant is a department, ss. 7(1) and 12. A “public service employee” is a person employed under the Public Service Act 1996 as (a), a public service officer; (b), a general employee or (c), a temporary employee. Such employees are, and may only be, employed -- 3 of 6 -- 5 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 309 pursuant to the Public Service Act 1996. There is no other basis for their employment. In Director-General of Education and Others v. Suttling (1986) 162 CLR 427 at 437 to 438, Brennan J said: “Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, e.g., Gould v. Stuart; Carey v. The Commonwealth; Lucy v. The Commonwealth. However, the contractual nature of the relationship has not been universally accepted: see, e.g., Monckton v. The Commonwealth; Lucy v. The Commonwealth; Geddes v. Magrath; Morgan v. Geddes; The Commonwealth v. Welsh; and cf. Ryder v. Foley. And sometimes an espousal of one view rather than the other has been avoided: see, e.g., Reilly v. The King; Kodeeswaran v. Attorney-General (Ceylon). If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v. Commissioner for Railways (N.S.W.).”. (Footnotes deleted). It has not been contended that His Honour’s observations which were directed at the Education Commission Act 1980 (NSW) are other than apposite to the situation under the Public Service Act 1996). In relation to a department, a “public service employee” is a public service employee of the department, s. 4 and Schedule 3. A “chief executive” relevantly means (a), in relation to a department – the chief executive of the department, or (b), in relation to a public service employee – the chief executive of the employee’s department, s. 4 and Schedule 3. A chief executive may appoint public officers in his or her department, s. 67(1). A “public service officer” is a person employed under the Public Service Act 1996 as an officer (other than a senior executive), s. 8(c). The appointment of an officer in a department is on tenure unless, under a directive of the Public Service Commissioner, the appointment may be on contract for a fixed term, and the chief executive declares it to be available on contract for a fixed term, s. 69. There has been no suggestion, nor could there be, that the respondent was employed under the Public Service Act 1996 as an officer. 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 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, s. 113(1). Section 113(1) is of such cardinal importance in this matter it is useful to set it out in full: “Employment of temporary employees 113.(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 was not a casual employee. It follows, that if the respondent was employed by the appellant at all, he was employed as a temporary employee. To refer once again to the observations of Brennan J previously quoted: “No agent of the Crown has authority to engage a servant on terms at variance with the statute.”. The dictionary at Schedule 3 neither defines “temporary employee” or the adjective “temporary”. However, it does define the adverb “temporarily” to mean (not include) “for a period limited by time, whether or not the time has been fixed”. It follows from s. 32 of the Acts Interpretation Act 1954 that a “temporary employee” is an employee appointed “for a period limited by time, whether or not the time has been fixed”. It has to follow that the respondent might lawfully be employed for a fixed period of time or for a limited period which was not fixed, e.g., might be employed to assist in the conduct of a particular trial. Indeed, the appellant is prepared to go further and concede that in some cases an employee may be said to be a “temporary employee” though employed for an indefinite period terminable by notice. The concession I think is well made. The dictionary definitions of “temporary” are of limited assistance. The Shorter Oxford Dictionary defines “temporary” as “lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”. The Macquarie Dictionary definition is similar though it adds the phrase “not permanent”. The difficulty is as Wilcox J pointed out in Hafza v Director-General of Social Security (1985) 60 ALR 674 at 682, “in [one] sense everything in human affairs, including life itself, is ‘temporary’ ”. Greater assistance is I think to be gleaned from the decision of Jenkinson J in Hale v Department of Primary Industry (1988) 78 ALR 794 at 501 to 502 where His Honour said: “The word ‘permanent’ was not, I think, otherwise applied by the Act in description of the offices or the officers of the Public Service which it constituted, except in the now discarded expression ‘Permanent Head’, but in common speech the words ‘permanent’ and ‘temporary’ were for decades cardinal antonyms in respect of civil service employment. Examples of that usage are to be found in s. 48(1) of the Public Service Act 1922 before its amendment. I do not suggest that, in the construction of the word ‘temporarily’ in reg 116(1), considerations deriving from that usage need be called in aid. The ordinary meaning of the word does not, in my opinion, justify the requirement suggested by Mr Bell, that some specific temporal limit be set, whether in the direction or in the mind of the Secretary when he gives the direction, upon the performance of the duties which is directed. The requirement which the word imposes is in my opinion satisfied by a direction expressed to be given in exercise of power conferred by reg 116(1) to perform the duties of an office ‘until further notice’, provided that the person giving the direction has at the time he gives the direction the intention that the direction shall not continue in effect so long as to make the word ‘temporarily’ inapplicable to the performing undertaken. The notification that the direction is given in exercise of power conferred by that regulation is, in my opinion, sufficient compliance with the requirement of the regulation that the written direction be of temporary performance, because the indication of the source of power to give the direction communicates the limitation imported by the word ‘temporarily’. The words ‘until further notice’ in the direction do not contradict that limitation, in my opinion. Because I am of opinion that the regulation does not, on its proper construction, require that any particular period be fixed by the Secretary at the time the direction is given as that during which the performance of the duties is to continue, no obligation arises, in my opinion, to specify such a period in the written direction.”. -- 4 of 6 -- 310 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 July, 2002 The correct proposition, or so it seems to me, is that the appellant might appoint a person such as the respondent 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 the respondent 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 appellant on 26 October 2001, if the true nature of the respondent’s engagement by the appellant 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. The appellant’s attack upon the Commission’s second ground for holding that there had been a dismissal at the initiative of the employer, viz, that any termination on 2 November 2001 was at the initiative of the employer, may not be answered by inquiring whether there was “any evidence” to support such a conclusion. The conclusion that any termination which occurred on 2 November 2001 was a termination at the initiative of the appellant arose out of a process of reasoning which the Commission (very properly) exposed over some three pages of the decision. The appellant goes to that reasoning and submits that it shows that the Commission acted upon irrelevant matters and on applied incorrect principles. Some matters are said to be irrelevant on any view of the matter. For instance, it is contended that the Commission erred in its use of the decision of von Doussa J in Andersen v Umbakumba Community Council (1994) 56 IR 102. The issue in Andersen v Umbakumba Community Council, ibid, was whether the applicant was excluded from the benefit of subdivisions B and C of Division 3 of Part VIA of the Industrial Relations Act 1988 (C’wth) on the ground that the termination of his employment was harsh, unjust or unreasonable because of the operation of ss. 170CC and 359 of the Act which authorised the exclusion of categories of person by regulation, and by regulation 30B(1)(a) of the Industrial Relations Regulations (C’wth) which excluded employees engaged under a contract of employment “for a specified time”. In short form, it was held that even where both a commencement date and a finishing date were expressly stated, a contract would be held to fall outside the regulation if at any time it might be brought to an end by notice or payment in lieu of notice. The use which the Commission made of the decision appears sufficiently from the Commission’s first reason for its decision, viz: “In Andersen 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 Andersen, 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.”. The Commission, of course, was not concerned with whether the respondent’s engagement might be characterised as an engagement for a specified term for the purposes of reg 30B(1)(a) of the Industrial Relations Regulations (C’wth) or for any other purpose. The issue before the Commission was whether there was an outer limit to the respondent’s engagement so that the respondent’s engagement would expire by the effluxion of time on 2 November 2001 if not earlier brought to an end. There is nothing in Andersen v Umbakumba Community Council (1994) 56 IR 102 to assist in the resolution of that question. The Commission’s reasoning is a simple confusion of ideas. Other matters are said to be irrelevant because they are made irrelevant by the Public Service Act 1996. The submission is that the Commission paid regard to authorities which would be entirely appropriate to a private sector engagement of a sales assistant by a fishmonger or a public sector engagement by a statutory authority ousted by the statutory regime established by the Public Service Act 1996. To begin with, it is submitted that the Commission erred in relying upon the decision of Madgwick J in Church and Others v Gold Coast City Council (960176), decision number 176/96, 13 May 1996 as authority for the proposition that: “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 of their employment. They were not asked to, nor did they, assent to the terms expressed in the letters.”, and: “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’.”. This time, the submission is not that the decision relied upon was about Regulation 30B(1) of the Act Industrial Relations Regulations (C’wth). The decision does throw illumination upon the circumstances in which the announcement of an expiry date by an employer will be treated as fixing the expiry date. However, it is illuminating only in areas which are not regulated by the Public Service Act 1996 or comparable legislation. 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 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”. -- 5 of 6 -- 5 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 311 In particular, issue is joined with the reliance upon the Full Court of the Industrial Relations Court of Australia in Fisher v Edith Cowan University (No. 2) (1997) 72 IR 464. Once again, the decision was about reg 30B of the Industrial Relations Regulations (C’wth). That is not presently material. What is material is the passage at 469 to 470: “The Recommendation and, therefore, the Convention recognise that whilst on their face contracts of employment for a specified period of time may provide for consensual termination of the employment relationship by the effluxion of the period specified in the employment contract, that termination may, in certain circumstances, be a termination at the initiative of the employer. For example, if an employer arranges for an employee to render service under consecutive contracts of employment for specified periods of short duration, where the nature of the employment is appropriate for a contract of indeterminate duration, and the employee had no say in the terms of the agreement, it may be said that the contract served the purpose of the employer by providing additional control over the employee. In such circumstances if the employment relationship is terminated by the refusal of the employer to ‘roll-over’ the employment contract, the termination may be seen as part and parcel of an initiative taken by the employer at the commencement of the contract of employment to reserve that power.”. The passage is said to be entirely inappropriate in the case where a chief executive nominates a limited period of time, whether by fixing time, nomination of a purpose or reference to an event, pursuant to s. 113 of the Public Service Act 1996. The submission must be right. The submission that by doing that which the chief executive is required to do, the chief executive triggers the jurisdiction of the Queensland Industrial Relations Commission under Chapter 3 Part 2 of the Industrial Relations Act 1999 cannot be sustained. It 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? Finally, criticism is levelled at the Commission’s reliance upon the reasonable expectations of the respondent. Once again, the criticism is well founded. Whatever scope there may be for notions of conscionability in the construction and enforcement of contracts of employment the requirements of good conscience cannot confer upon an employee and impose upon the Crown an engagement that the Public Service Act 1996 does not allow. In my view the Commission erred in law in concluding that, if the engagement of the respondent terminated on 2 November 2001 it terminated at the initiative of the employer. Two caveats I should lodge. No submissions have been made about the case (hopefully hypothetical) in which through ignorance or mala fides a chief executive appoints an employee for an apparently short term engagement intended to be extended indefinitely. The attack has been on the legitimacy of the Commission’s reasons. The remedy (if any) of an “employee” under a sham arrangement, is left to another day. The second caveat is that a Crown employee on an engagement originally entered into under the Public Service Management Employment Act 1988 and subsequently extended, may have rights under s. 131 of the Public Service Act 1996. Counsel for the appellant and counsel for the respondent are ad idem that the matter should be heard by the Commissioner who dealt with the preliminary jurisdictional point at first instance. I remit the matter to the Commission in order to be heard and determined according to law. Dated 25 June 2002. D.R. HALL, President. Released: 25 June 2002 Appearances: Mr G. C. Martin SC, with him Mr A. A. J. Horneman-Wren, instructed by McCullough Robertson, for the appellant. Mr T. Bradley, instructed by Agnew Consulting Pty Ltd, for the respondent. -- 6 of 6 --