Department of Education v Svenson [2000] QIRC 95 (2000) 165 QGIG 135

13 October, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 135 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 331(b) – application to dismiss or refrain from hearing Department of Education AND Mark Svenson (No. B1244 of 2000) COMMISSIONER FISHER 4 October 2000 Application to dismiss or refrain from hearing – Contract of employment – Contract not fixed term – Offered further work – Workers compensation – No remedy – Public Interest – Application B1589 of 1999 dismissed. DECISION By application B1244 of 2000 the Department of Education has sought the Commission to dismiss or refrain from hearing the dismissal application of Mark Svenson (Case No. B1589 of 1999). The application was made pursuant to s. 331(b) of the Industrial Relations Act 1999. -- 1 of 3 -- 136 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 October, 2000 The reasons for the Department’s application could be summarised as follows:– (i) Mr Svenson was employed under a contract for a specific period of time viz., 9 February 1999 to 17 December 1999. In that case, Mr Svenson is excluded by s. 72(1)(d) of the Act from bringing the application. (ii) In the alternative, the application should be dismissed on the basis that proceedings are not necessary or desirable in the public interest. The basis for that contention is that no remedy is available. The argument regarding being excluded from bringing the application is unsustainable. Mr Svenson was engaged as a full-time teacher on a temporary basis. His letter of appointment states that:– “This temporary appointment may be terminated by yourself or this Department by the giving of one weeks notice, in writing.”. This is in fact what happened. Mr Svenson’s appointment was terminated on 15 November 1999, approximately one month shy of the expiration of the temporary engagement. That the temporary engagement was terminable on notice is indicative that the engagement was not one for a fixed term. (see Anderson v Umbakumba Community Council (1994) 57 IR 238). The Department’s other claim that the Commission dismiss or refrain from hearing the dismissal application has merit. The Department submitted that the remedies available under the Act to a successful applicant are reinstatement or re-employment (s. 78) or compensation (s. 79). The primary remedy is reinstatement or re-employment. This is so because s. 79 requires the Commission to only consider compensation after considering whether reinstatement or re-employment would be impracticable. This is not a case where Mr Svenson can succeed in obtaining the primary remedy. Despite my finding that Mr Svenson was not engaged on a fixed term contract within the meaning of s. 72(1)(d) of the Act, it remains that his employment would have been at an end on 17 December 1999, had his engagement been allowed to run its course. That is to say his engagement as a temporary teacher would have ended with the effluxion of time. It may be more appropriate to characterise his employment contract as a maximum period contract. Because the end date of his period of engagement has long passed it would be impossible, rather than merely impracticable, to reinstate Mr Svenson to his former position, should the dismissal be found to be harsh, unjust or unreasonable. Is re-employment a practicable option? For the reasons just stated re-employment for the balance of the engagement is not also possible. Is the Commission required to consider re-employment in a position in the future, that is, is it reasonable for the Commission to order the Department to re- employ Mr Svenson in some other position at some future time which would require a new contract for a fixed or maximum period to be struck. Mr Svenson’s employment history shows he has performed work for the Department over a period of 17 years. This employment has not been continuous nor served on one contract. He has been engaged on a number of contracts over that time. Additionally, his record reveals he has resigned his employment on these separate occasions. In all, several breaks of service have occurred. No further work had been guaranteed or offered to Mr Svenson once his last engagement as a full-time temporary teacher had ended. In any event, Mr Svenson has been offered and has accepted a further engagement with the Department. Although that too has concluded, the offer of further work shows the Department has not held the dismissal against Mr Svenson. But this does not mean the Commission ought to consider ordering re-employment were Mr Svenson found to have been dismissed harshly, unjustly or unreasonably. The circumstances of Mr Svenson’s engagement as a temporary teacher had specific limits which have been exceeded. To require the employer to re-employ an employee after the end point engagement had passed and where no further work had been promised nor was any implicit in the contract of employment would seem to me to be outside the reasonable exercise of the Commission’s powers. For these reasons the primary remedy of reinstatement or re-employment would not be available. This leaves the remedy of compensation. In this case this remedy is also not available. Shortly after his dismissal Mr Svenson applied to reopen a claim for workers compensation. This claim was accepted from 12 November 1999 and compensation was paid to 17 May 2000, a period of six months. Mr Svenson would not therefore be entitled to compensation under s. 79(2) of the Act. His solicitor concedes this point. Taking all of the circumstances into account the remedies under the Act are not available to Mr Svenson. In considering whether to dismiss or refrain from hearing a dismissal application the Commission has tended to examine amongst others, the principles which have been modelled on principles applied by the Commission in determining applications for extensions of time (see Jones v Hilton International Brisbane (1995) 149 QGIG 1255). The relevant considerations in this case appear to be: (i) the prejudice to the application (Svenson) if the proceedings are terminated or stayed; (ii) the prejudice to the respondent if the proceedings are permitted to continue; (iii) the conduct of the respondent; (iv) general considerations of public interest. In the course of the hearing the applicant’s solicitor adverted to a number of issues, both substantive and procedural which were of concern to them. The Commission in a formal setting has had no opportunity to consider any of these matters but superficially at least, there appears to be some basis to these concerns. Mr Svenson would lose the opportunity to ventilate these concerns and to have findings made with respect to them were the Commission to grant the Department’s present application. Mr Svenson would also lose the opportunity of having the Commission make a decision regarding the fairness or otherwise of his dismissal. Balanced against this is the Department’s demonstrated preparedness to continue to offer Mr Svenson further work despite the dismissal. This case has been listed for five days of hearing should the Commission decide not to dismiss or refrain from hearing the application. This may be an underestimate. Clearly the Department will be put to significant cost in having to defend the case. This would seem to be a drain on the public purse when no remedy is available. -- 2 of 3 -- 13 October, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 137 Nothing has been put to me about the Department’s conduct to suggest that it has acted unreasonably. It has attended several conciliation conferences before the Commission and engaged in discussions with Mr Svenson’s various representatives in an endeavour to settle the matter. Indeed, Mr Svenson’s several changes of representation have not assisted the conciliation process nor the overall conduct of the case. The situation is more one where the conduct of Mr Svenson would militate against the application being allowed to proceed to a hearing. Ultimately, however it has not been necessary for any weight to be placed on this issue. The issues of public interest are the ones of significance in this case. Reference has already been made to the effect on public monies to have this case go to hearing. That Mr Svenson is unable to ultimately receive a remedy from the Commission combined with no disadvantage being caused to Mr Svenson’s future employment with the Department satisfies me the public interest would not be served by having the dismissal application proceed to hearing. Accordingly, I determine to dismiss application B1589 of 1999. Dated this fourth day of October, 2000. G.K. FISHER, Commissioner. Released: 4 October 2000 Appearances:– Ms B. McDonald on behalf of the Department of Education. Mr J.C. Dwyer (of Reidy & Tonkin) on behalf of Mr M. Svenson. -- 3 of 3 --