Bond v Albert Shire Council [1994] QIRC 283 (1994) 146 QGIG 495

494 Q UEE SLAND GOVERN MENT I DUSTRIAL GAZETTE 117 Ju ne. I 994 17 June. J99 41 QUEEN S LAND GOV ERNMENT INDU STRIAL GA ZETTE 495 ()ULL."-'-;I.AND INDllS I 101\I RFI.A rlONS CO\IIMIS<-; JO~ /11d11.11r10/ R..t,mons 1,11990 s. 17•1 appl11.:atmn for n.: 111,ta tcmcnl Peter Bond /\ND Albert 'ihire Council (,\o Ill of I 99./J (0\!~11\\10\ER BOl GOl RI 3 June 1994 I crm1na11, nf emplm men! Re111,1a1erncnt h::J.ral Go, enunent I unding lobstan Programme F, 1dcnce - l :111plo) mcn l for Iunited period or "hen fund mg expended - 1-undrng e,h,111,1ed Jhcad of ,dicdule I rnplo~ mcnt of cert,un emplo) ee, tem11nJtcd - l>1,m1s,.1I ,,,it harsl. unjust or unrea"mable lntencnt1on b, Cummis\1011 not justi lied.:_ Arp Iic,1tion re Iused . • Il l CISION In 1hi~ mancr \1r Bond. lhe appltcanL ~cck, rcmstatcmcnt to 1h1, fonncr ro~1110n a, I c,cl J labourer with 1hc Alben Shire Council On 17 February 1994 I enlarged the time wi th in which the .ippltcation could he made . brief I he facts of th is case .ire bric I mid the hearing ,,as nlso I he evidence 1s that late in 1992 the Al hen Shire Cn1111cil (1hc Council) received ce rtain fundi ,ig from the h:deral Go,emment .\s a result the (ouncil cngaj!cd certa111 unemphi)ed pcr.,ons on .i 1emp<>r.ir) bast,. such emphi)mem tn cea,c "hen the funding had been ulllised. Mr Bond had lieen unemplo~ ed lor a length} period pru,r to ,eeking emplO)mc111 \\llh the Council 111 1993 Alter the usual prel iminaries and 1111c rviews Mr 13 ond was engaged 10 commence \\Ork on I June J 9<JJ Whil\t ernplo~ cc, "ere 111niall} engaged under the ,ub1ec1 \\orb programme. fate 111 1992 II ,cem, thJI for ,anous rc,1so11s vac11nc1es in the programme occurred from time to time. Mr llond filled one of these vacancie, Because of his uncmplo\ment hi,hll) \1r Bond "as en!!Jged unda a Juhstart programme under \\hach a ,ub,rd) \\a, p,1id 10 the ( ouncil b) 1he Dcpan ment o f Emp loyment F<Jueation and f' raining for a period o f 12 \\CC k, l3) letter ol 28 Ma) 1993 Mr Bond \\JS ad, 1,cd m dct.itl of the tenm of his emp loy ment. Mr Bon d ,igned a copy of such le tt er J\.~Cpting the condit11)n, of cmplo~ ment outlmt>d in ,u~h letter 'iuch ackno\\ledred cop} ol ,uch kucr 1s Exhibit 10 belore me. It is 1clevan1 to note that paragraph 2 of sudt lcuer n:.id, as folkms · "2 The duraiion ol your employment. subject to ,J11sfac1or) ,en ,ce and the a\a1lah1ltt~ of lundmg. ,hJII he tor a period ol up to 2fi \\<.>t:ks wmmencmg \londa) \la) 1 1 1993." \c>t\\ 1lh,tand111g such paragrap, \lr ll,,nd 53), that rc,ponsibh; ( ounc1I citricers told htm that ;1 minnnum of 6 months emp loy 111 1.:n1 was envisaged. One of Mr llond's princi pa l concerns ,cems to he that he \\J'i led to hclie,e a, a rcsull of oral statcmenb that he could cxpe.:t 6 month, cmplo}mcnt \\herea, h, wa, m lac1 d1,111isscd on 22 October I 993 ,ome 5 "ccks shon of the period of employment he an tic iputed . Mr Bond comp lains t h,tt he ha, made certam linanc1al arran 'Cmcm, b ...,ed on an amicipatcd period ol 26 \\Ccks emplo,mcm A, I ha,e alrc,td} 111d1c,t1cd. Mr Bond "as tenmnatcd on 22 lk1ober IIJ'13 The rcJ'><lll no" •1, .:n for ,uch tennm.t11on "J' that the ,pec1:1I funding had been e,ltaus ted so far a, the type of \\ork hc,ng earned out by Mr Bond \\(Is concemcc.l Exhibit 8 tendered 10 me is a letter dated I~ MJ, 1993 from the (. ,,mmon"e~llh l>cpanment of Health llousmg I ocal (,o,emment Jnd Community Scn•iccs. Su,h letter reters to the Local Capi ta l Works l'rogn11n 11 1e. under "hkh the funding ,~a, 11btaincd ,~hich re,ultcd in the cmplo} mcnt of \ lr Bond and n particul.. r points out hat prnJeclS \\Cre meant to commence before December 1992 and he comph:tcd be fore December 1991 Thu s it could be m1tic i rated tha t by late Cktober 1991 proJe~b \\Quid be cornpktcd or neannp compktton and 1he tcmporar}· emplO)Ces rnulJ be tcnnmated \1r Bond sa,s that the pro1ect on \\htch hi! \\,1, \\Orkmg at h:rmmatru, h..J not hem compkteJ and thcr.:tore mJ,, ,te,- he c ,uld lt.1, c been rctamcd llowe, .:r. \1r llenl\. the Personnel ,md lncJuslrial Relations Manager tor the C-01 11 11.: 1I. who was the un i) "ttncss for the rc,pondent ( ounc,I. l'J'.: e, tden,e 1h 11 all -- 1 of 2 -- 496 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 117 June, 1994 preparatory work had been completed on the project on which Mr Bond was working and it only remained for certain specialised work 10 be done by contractors and then some cleaning up by permanent staff for th e job to be completed. Jn effect. Mr Henry says that ,,ork of the nature bc111g done by Mr Bond and other temporary employees on the particular job had been completed and funding for that section of the work had been expended I accep1 the e\ idenc.: of Mr llenr). Mr Henry says thal it was on the basis that the spc:cial funding had been utilised that Mr 13ond and 8 others were terminated on 22 October 1993. On beh alr of the re spondent Council it is submittt:d 1h a1 Mr Bond's contract of employment was of a temporar) nature being for up 10 26 weeks of employment. with the provision for earlier term ination in the event of unsatisfactory se rvice or unavai labi lit) of funding. I acct:pl that 111 terms of the conditions of employment set out in the letter of 28 May 1993 . and acknowledged by Mr Bond. Mr Bond's employment wa, validly tenninatcd. Unfo11una1ely Mr Bond seems to have been l ed to believe as a result of oral statements at the time he commenced work that be could expect 6 mon th s work at leas t. ln hi s formal application he states he was told 6 months employment was envisaged and in evidence he also says he was told 6 months employment was envisaged. It may well be th at as at June 199 3 1hc Council officers did envisage a 6 month period of employme nt but in my view Mr Bond 1s bound b> the specific terms of his contract of em pl oyment which state~ up 10 26 weeks. In the end result his pe ri od of employment fell 5 weeks sho rt of the maximum per iod provided for in the letter of 28 May 1993 . This is a case in wh ich Mr Bond's cm ploymcn1 was always of o temporary nat0rc and in which the specific written tt:rms of employment provided that "the duration of your employment. su bject to satisfactory service and th e availability of fund ing. shall be for a period ofup to 26 weeks.". In that situat ion when the special fund in g for the type of work being carried ou t by Mr Bond wa$ expended. il was within 1he Council's discretion tO tcnninatc Mr Bond. Furthennore. it was within 1h e Council's capacily in 1he course of managing its Council's operations. including 1.he project on which Mr Bond was work in g. to detcnn inc that certain work still lo be completed on the project would be carried out by specialist contractors. Mr Bond also c-o111plains that "hilst he wa~ tem1inated. certain other employees. working under similar arrangemen ts on the subject project. were not tcm1i11ated. I accept the evidence of Mr Henry that on 22 October 1993 nine employees. mcluding Mr Bond. were tenninated on the same basis as Mr Bond was tt:rminatcd. Mr Henry explained in evidence that whilst 9 temporary cmplo) ces were terminated under t he special funding programme. 5 of such persons were immediatel y offered permanent employment with the Council lo fill vacancies which had occurred for various reasons. Suc h 5 persons were then engaged on work covered by the Counc il 's gene ral budge t. As I understand him. Mr Bond considered it unfair that he was dismissed whilst others were re tained. If one was in the position of Mr Bond and d id not know al l the facts. one may have sympathy for Mr Bond's concem. ho"ever. wht:n the matter is fully explained. I am satisfied Mr Bond has no valid cause for complaint. It was explained in evidence th at the 5 persons were selected on me rit and were technical!) dismissed on 22 October 1993. as was Mr Bond. but were immediately offert:d permanent employment as arorementioned. with no period of unemploymen1 betv.cen the 2 sepa rat e engagements. To th,: uninfom1ed such 5 persons were merel) continued in their current employment but this was not technically the case. In this case Mr Bond's contract of cmplo) ment would have expired by effluxion of time at the end or the 26 week period. however. as pcnnitted by the written tenns of employment. Mr Bond's employment ,\as tem1inated after 21 weeks duc to shortage of funds and because the preparatory l) pe of work being done by Mr flond and his fellow employees had been completed. I see nothing sinister in what occurred since the Commonwealth Department requi red the project to be completed hcfore December 1993 . Under all of the relevant circumstances. I am satisfied that Mr Bond's dismissal "as not harsh. unjust nr unreasonable and that the intervention of this Commission is not justified. The appl ication is refused and the Commission orders accon.lingly. R W. BOUGOURE. Commissioner. Appearances:- Mr P. Bond on his own behalf. Mr D. Swan. with him Mr K. Henry. for the Local Government Association of Queensland {Incorporated) for and on behalf of the Albert Shire Council. Operative Date: NI A Decision - Reinstatement. Rdcascd: 3 June 1994 ####################################################### I ) • I l 17 June. 1994] QUEENSLAND GOVERNMENT INDUSTRlAL GAZETTE 497 -- 2 of 2 --