Baker v Department of Family Services and Aboriginal and Islander Affairs [1995] ICQ 24 (1995) 149 QGIG 1172

1172 QUEENSLAND GOVERNMENT fNDUSTRIAL GAZE lTE [ 18 August, 1995 ####################################################### QU EEN SLAND INDUSTRIAL COURT fndus1rial Relwions Act /990 s. 118 ( 2) - ap peal from deci s ion of industrial commiss ion Christopher falward Baker AND Departmen t of Family Services and Aboriginal and Islander Affairs (,Vo. C/3ofl995J JUST ICE MACKENZIE. PRESIDENT 9 August 1995 Appeal - Dec isi on of Indu strial Co mmission - Appointment Ex pressed to be Temporary Part-Time - Contract of Employment was Extended and Converted to Temporary Full-Time - Contract came to an End - Necessary to Appoint Temporary Staff du e to Vacanc ies - Submission that Appellant was Placed al a Disadvantage - No Adjournment Sought - Appellan t Unrepresented through no fau lt of his O\\'l\ - Co urt can only intervene if there h as been an Error of Law - Contract w a5 Valid ly brought to an End - Appeal is Dismiss ed - No Ord er as to Costs. JUDGMENT Th is is an appeal against a decision of the Chief Industrial Comm issioner refusing relief in respect of the termination of the appellant's employment by the respon dent. On 17 May 1993 , the appellant was appointed as a temporary part-time residential care officer (training). The appointment was expres sed to be on a temporary part-t ime basis from date of duty to 26 July 1993 . In fact, the appellant's employment did not cease on 26 July 1993 by reason of an extension unti l 26 August 1993 gran ted by the Departmen t. Shortly before the expiry of the extended engagement the appellant was offered tem porary full-time employment and was employed on that basis for a fixed term \~tiich wou ld expire on 23 October 1993 . During the course of that tem1 his employment was extended on the same basis un t il 28 February 1994. During the course of that tem1 the engagement was extended to 30 March 1994 on the same basis. On 28 March 199 4, letters were written to the appellant advising that his serv ice s would be no longer required as from the completion of his shi ft on Sunday 10 April 1994. The Ch ief Conunissioner accepted that the appellant was initially engaged under a contract of employment wh ich if not varied would expire on a fixed date with the effluxion of time and that the contract was extended and subsequen tly converted from a contract for temporary part-time employment to a contract for temporary full-time employment with further extensions being gran ted . He was also satisfied that in consequence of tl1e respondent's omission to make a further offer of extension the contract came to an end on I 0 April 1994. According to the Chief Commissioner's re asons it was submitted before him that the arrangement was in reality an indefin ite hiring and :h at the process of granting extensions was a sham. That was rejected by the Chief Commiss ioner. The Chief Comm issioner found that the evidence established that because of temporary vacancies at the lowest levels because of a se ries of officers acting in positions with higher du ties it was necessary to appoint one or more persons on a temporary· basis to provide for the shortfall in staff. When the need to act in a more senior position cca~ed the need for a temporary employee to be employed in that particular stream cea~ed . In th e appellant 's case the departmental documents s ho wed a matching of his temporary appointment with a vacancy or a num ber of vacancies. ·n1e Chief Commissioner also accepted that the arran gement was no t a s ham , rejectin g a submission that the real understanding was that extension would be forthcoming indefinitely notwithstanding the form of actual engagement on a periodic bas is . The Chief Commiss ioner held that in any event if any s uch arrangement had actua lly existed it was open to the department to depart from it on reasonable notice, which he fou nd had been give n. The Ch ief Commissioner sa id that he sought to decide the case on what had been argued and no more. He expressly did not enter in to the qu estion of whether the concept of "dismissal" in s.297 was restricted to cases where there was a d ismissal rather than termination of the contract of employment by the effluxion of time or by the omission 10 offer a fu rther period of employment at the expiry of a fixed term contract. The Chief Comm issio ne r held in effect that tl1e contract came to an end on 10 April 1994 by ex piry of time and tJ1at it was the common understanding of the parties that that option was open at any time when the current extension of th e contract came to an end. It is impl icit in the Chief Commissioner's reasons that the respondent had advanced cogent reasons for adopting the procedure of employing persons on fixe d term contracts although the appellant and the union which appeared for him at the ori g inal hearing may d is pute that pro position. 16 08 9_ 1.DO C 18 August, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE The appellant did not abandon the grounds taken in the notice of appeal but concentrated on an allegation of failure to have the matter determined according to the requirements of natural j ustice. The submission was that the appellant had been placed at a di sadvantage because he had been unable to secure the attendance of certain persons whom he wis hed to call due to combination of non-co-operation by the department and inexperience on the prut of h is advocate. lt must he stated that there is no evidence in sworn form on either of these issues. However. it was put to me orally during submissions by the appellan t. that, in prut icul ar, one person who had made a report was unable to be lo cated prior to the hearing. As the respondent po inted out, no issue was ta ken about this at the hearing, nor was an adjo urnm ent sought. The appellant has the disadvantage of appearing unrep resented through no fault of hi s own. However, where a claim that there has been a breach of natural justice is made, it requires reaso nabl y compelling evidence of the foundation of such a claim. Th is is absent in the present case notwithstanding a blueprint fo r the introdu ction of such evidence having been laid dO'-'·TI in the directions o rd er made upon the previous adjournment of the matter. This Court can only intervene if there has been an error of law or the Com mission has acted beyond or witho ut ju ri sdictio n. The Act does no t permit the Court to rev iew deci s ions of the Commission where those features do not exist. Having regard to the circumstances of the case and in particular the nature of the contractual arrangements I an1 unable to find that the Chi ef Conunissioner was wrong in law in determining that the con tract was validly brought to an end by the decision not to offer further work and that tJ1ere is an inadequate evidentiary founda tion for tJ1e submissi on that there has been a breach of natu ra l _justice by reason of the proceedings before the Chief Commissioner not havin g been conducted in a way in which th e appellant now says he had hoped they wou ld be. The appea l is di smiss ed . In view of the intimation by counsel for the respondent that t he que st ion of co sts argued on the pre vious hearing date of the mailer before me wou ld not now be pursued, 1 make no order as to costs. Dated tJ1is ninth d ay of Augus t. 1995 . K.G. W. MA C KENZ IE, President. Appearances: -• Mr C. Baker con ducted his ovm case . Mr R. Jones (instructed by Crow-n Sol ici tor) for the Department of rami ly Services and Aboriginal and Isl ander Affairs. Operative date: NIA Judgment - C.E. Baker and Department of Family Se rv ices and Abori g inal and Islander Affairs. Released: 9 August 1995 1173 16089_1 DOC -- 1 of 1 --