Baker v Department of Family Services and Aboriginal and Islander Affairs [1994] QIRC 483 (1994) 147 QGIG 400

400 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2'3 September, 1994 ####################################################### QUEENSLAND INDUSTRIAL RELA TIO\/S COMMISSION Industrial Relations A.:t 1990 s. 295 - application for reinslalem,.;nt Christopher Edward Baker AND Department of Family Services and Aboriginal and Islander Affairs (B356 of 1994) COMMISSIONER NUTTER 9 September 1994 Termination of Employment - Dismissal Reinstatemt:nt - Preliminary Issue - Jurisdiction - Reference to Case Law - Jurisdiction Found to Proceed to Merit Hearing. DECISION fhe matter before me concerns the jurisdiction of the Commission to deal with the cessation of employment of an officer of the Depa1iment of Family Services and Aboriginal and Islander Affairs (the Department) pursuant to Part 12, Division 5 - Dismissal of the Act. fhe Commission was advised by Mr Twist for the Department that the applicant was appointed in a temporary part-time capacity (4 hours per day, 5 days per ws:ek) from date of taking up duty to 26 July 1993 (Letter 21/6/93). rhis appointment was extended to 22 August 1993. The: applicant was appointed on a temporary full time capacity for a period from 23 August 1993 for a specific period of time. That tcnn was extended to 28 February 1994 by letter dated 3 November 1993, to 30 March l 994 by letter dated 27 January l 994, and to 10 April 1994 by letter dated 24 March 1994. !le was advised by letter dated 28 March 1994 that his services would not be required after completion of shift on Sunday l O April 1994. Mr Twi,t for the Department stated that at all times during his employment the applicant had been engaged for a specific period. At the conclusion of the period the contract came to an end and this did not constitute a dismissal in tenns of Part 12, Division 5 of the Act. He submitted it was therefort: beyond the jurisdiction of the Commission to deal with the application under that section. For the record I should indicate that the application was lodged under the appropriate section of the Act applying to dismissals prior to the amendments which came into operation from 31 March 1994. The Commission in perfonning its functions must act in a way that furthers the objects of the Act s. 30(1 ), is empowered to make a decision irrespective of the specific rcli.:f claimed s. 32(3) and is governed in its decisions by equitv without regard to technicalities or legal forms s. 92(2). In this case the respondent was aware that the application was bt'ing pursued under the dismissal provisions of the Act and the incom:ct quoting of the section, in my view, does not prevent die application from being dealt with as if it had been lodged under the present section of the Act. Mr Johnston for the applicant maintained that the appointment of the applicant, although initially for a limited tem1, was extended on a number of occasions and that il had been intimated to the applicant that he could regard the position as being on a pem1anent basis. It was contended that the applicant was dismi~sed fur reasons unrelated lo continuity of work. In addition, Mr Johnston submitted that the dismissal provisions under Division 5 of the Act did not restrict the Commission from dealing with dismissal of employees. Reference was made lO the ILO Conventions to which the Cl,mmission must have regard. Subdivision l of Division 5 - IJ1smissal of the Act states inter a/ia in section 288 that the object of the Di,isicm is to give effect to the lem1ination of Employmelll Convention and the Termination of Employment Recommendation 1982. Article 2 dealing with the Method of Implementation, Scope and Definitions of the Termination of Employmrnt Convention states at paragraph 2 :- .. A member may exclude the following categories of employed pers0ns from all or some of the provisions of this Convention - (a) workers engaged under a contract of employment for a specified period of time or a specified task; 23 September, l 9941 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 401 (b) workers serving a period of probation or a 4ualifying period of employment, determined in advance and of reasonable duration; (c) workers engaged on a casual basis for a short period.". Paragraph 3 further states:- ''3. Adequate safeguards shall be provided against recourse to contracts of employment for a specifi<.:d period of time of aim of which is to avoid the protection resulting from this Conn:ntion.'' Section 290(1) of the Act excludes inter a/ia an employee engaged for a specific period or task from the Notice of Dismissal provisions under s. 293 of the Act. Section 290(3) further states that;- "(3) The regulations may exclude spec.ified t:mployees from the operation of specified provisions of this Division if the exclusion is - (a) allowed by paragraph 2 of Article 2 of the Termination of Employment Convention; and (b) limited to provide the safeguards required by paragraph 3 of Article 2.''. fo dme no regulations have been proclaimed and there is therefore no exclusion from the dismissal provisions other than for the notice period for employees engaged for a fixed period or task who are dismissed from employment. The Commission was directed to two decisions of the Industrial Commission by Mr Twist. In the first matter the Commission found that, under the Act in t:xislence prior to 31 March 1994, the Commission had no jurisdiction to deal with a particular case where the 5pecified period of engagement came to an end (145 QGIG 924- 6) In the second case it was deem.:d that a casual employee who was not offered further casual work did not enliven jurisdiction under the dismissal provisions (145 QGIG 669-70). HL1wever_ in both cases, the circu1mtan.;es were fully put to the Commission to determine whether the appointment in the first case was a tixed term and in the second case a casual engagement In addition. the dismissal provisions wer,.; vaned as at 31 March 1994. In the present matter a point to be decided is whether the series of fixt:d term appointments are bone fide or a camouflage for a temporary appointment which would have continued in the absence of other factors not relating tu the amount of work available. In other words whether the use of specified tenns were a sham to avoid the provisions of the Act in relation to dismissal. In such a case the termination may constitute a dismissal under the Act. This is a maller which can only be decided by the Commission When full submissions and evidence are brought before it. . I find that the Commission does have jurisdiction to proceed With the matter in order to establish whether a dismissal has occurred in tenns of the Act and if so, whether the dismissal was harsh or unreasonahie Order accordingly. B.J. NUTTER, Commissioner. Appearances:· Mr K. Johnston, with him Mr C. Baker, for the Stak Public Services Federation Queensland Union of Employees. Mr N. Twist, with him Messrs W. Hunter and G. Rohan, for the Department of Family Services and Aboriginal and Islander Affairs. Operative Date: N/A Decision - Reinstatement Jurisdiction. Released: 9 September 1994 ####################################################### -- 1 of 1 --