QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Cairns and Hinterland Hospital and Health Service) v Algahamdi [2016] QIRC 057 |
PARTIES: | State of Queensland (Cairns and Hinterland Hospital and Health Service) (applicant) v Algahamdi, Lina Saleh Ahmed (respondent) |
CASE NO: | TD/2015/76 |
PROCEEDING: | Application to dismiss appeal |
DELIVERED ON: | 19 May 2016 |
HEARING DATE: | 16 March 2016 |
MEMBER: | Deputy President O'Connor |
ORDERS: |
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CATCHWORDS: | UNFAIR DISMISSAL – APPLICATION TO DISMISS – Whether the respondent was entitled to make an application for reinstatement – Whether the respondent was employed for a 'specified period or task' – Whether the temporary engagement was altered by the relevant Award provision allowing termination by either party – Where the respondent failed to comply with directions in an appeal – Where the respondent knew, or ought to have known, this application had been set down for hearing – Where the respondent failed to attend hearing of this application – Where, in the circumstances, the applicant applied for an order for the application for reinstatement to be "struck out" or dismissed, without costs – Whether the discretion to dismiss should be exercised. |
CASES: | Industrial Relations Act 1999, ss 72, 73, 74, 331 Hospital and Health Boards Act 2011 Industrial Relations (Tribunals) Rules 2011 r 45 Industrial Relations Regulations (Cth) Reg 30B(1)(a) District Health Services - Senior Medical Officers' and Resident Medical Officers' Award - State 2012 Queensland Public Service Award - State 2003 Joanne Tyler Williams v Department of Corrective Services (2007) 185 QGIG 46. Department of Justice and Attorney-General v Carey (2002) 170 QGIG 306 David Carey v Department of Justice and Attorney-General (2002) 171 QGIG 391 Together Queensland, Industrial Union of Employees v State of Queensland (B/2012/9) – Decision Andersen v Umbakumba Community Council (1994) 56 IR 102 Cooper v Darwin Rugby League Incorporated [1994] IRCA 41 Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 D'Lima v Princess Margaret Hospital (1995) 64 IR 19 Lucy v The Commonwealth (1923) 33 CLR 229 O'Sullivan v Farrer (1989) 168 CLR 210 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209 Quinlan v Rothwell [2001] QCA 176 Burke v Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38) House v The King (1936) 55 CLR 499 |
APPEARANCES: | Mr Chris Murdoch of counsel, instructed by Crown Law, for the applicant. |
Decision
"(a) Pursuant to s 331(b) (ii) of the Act an Order dismissing the application for reinstatement to appeal filed by the Respondent on or about 18 June 2015.
…
Statutory Provisions
"73 When is a dismissal unfair
…"
"74 Application for reinstatement
"72 Employees to whom this chapter does not apply
...
the main purpose of engaging the employee in that way is, or was at the time of the employee's engagement, to avoid the employer's obligations under part 2; or
the employee is participating in a labour market program and is dismissed before the period ends or the task is complete; or
the reason for the dismissal is an invalid reason …"
"331 Decisions generally
The court or commission may, in an industrial cause -
"45 Failure to attend or to comply with directions order
Background
Was the respondent employed for a specified period or task?
"Your appointment is for temporary period. Continuation or extension of employment in this position cannot be guaranteed beyond the end date stated above. Please note that your employment may be terminated, by either party, in accordance with the termination clause in the abovementioned award or other industrial instrument relevant to your employment".
"However, whilst Dr Timo's submissions are somewhat attractive it is also clear that I am bound to follow the decision of the President of the Industrial Court in Department of Justice and Attorney-General v Carey (2002) 170 QGIG 306 where the President made it clear that a temporary employee engaged pursuant to the provisions of s. 113 of the Public Service Act was also a person "engaged for a specific period or task" within the meaning of s. 72(1)(d) of the Industrial Act.
In that case, the President highlighted that the types of cases cited by Dr Timo in the current proceedings, the majority of which I had canvassed in the decision His Honour was considering, were "illuminating only in areas which are not regulated by the Public Service Act 1996 or comparable legislation" and (generally) "entirely inappropriate in the case where a Chief Executive nominates a limited period of time, whether by fixing time, nomination of purpose or reference to an event, pursuant to s. 113 of the Public Service Act 1996."
His honour went on to conclude:
"In the matter presently before the Commission the Applicant's last Letter of Appointment makes it abundantly clear that the Applicant was employed as a temporary employee between 3 September 2006 and 26 November 2006. Indeed, the Applicant conceded in her evidence that she was a temporary employee and that her employment, in the absence of a replacement contract, would have ceased on 26 November 2006.
Whilst there might be some argument about the actual termination date of the Applicant's employment it seems to me to matter little to the issue at hand. The exclusion at s. 72(1)(d) of the Industrial Act is absolute: "an employee engaged for a specific period or task" is precluded from bringing an unfair dismissal application before the Commission whether they are terminated during or at the end of their engagement.
Consequently, in the absence of any evidence, or, suggestion, that the main purpose of engaging the Applicant as a temporary employee was to avoid the Respondents obligations under Part 2 of the Industrial Act, it is clear to me that the Applicant, as a temporary employee engaged pursuant to s. 113 of the Public Service Act, is precluded from having her application for reinstatement considered because she was an employee "engaged for a specific period or task" at the time of her termination."
"The issue before the Commission was whether there was an outer limit to the respondent's engagement would expire by the effluxion of time on 2 November 2001 if not earlier brought to an end."[3]
"For reasons already given, if Mr Carey had not been dismissed on 26 October 2001, his appointment would have come to an end on 2 November 2001 and he would have been unable to enforce a claim to the position or matter under Chapter 3 Part 2 of the Industrial Relations Act 1999 because he would not have been able to point to a dismissal at the initiative of the employer."[4]
"30B (1) For the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:
...
(2) Paragraph (1)(a) does not apply to an employee engaged under a contract of a kind referred to in that paragraph if a main purpose of the employee's engagement under a contract of that kind is to avoid the employer's obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act."
"In the present case cl. 3 and Schedule 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 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 Schedule 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.
It is significant that the rights to terminate the contract of employment arising under cl.21(c) and 21(d) are not conditioned on a breach of any term of the contract. The rights are unqualified.
Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may sooner come to an end.
In this case, however, the unqualified rights to terminate without reason under cl.21(c) and cl.21(d) make it clear, in my opinion, that the contract cannot be so characterised."
"Except in the case of misconduct, and in accordance with the clause relating to the Employment Period in this document, at least one calender (sic) month's notice by either party will terminate the employment."
"In the context, this must relate to notice given within the three year period. There is no reason to suggest that this clause is limited by implication to apply to any extension of the employment period after 10 December 1995. In my opinion, the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant, as employee. On this construction of the contract of employment, the applicant is not a worker engaged under a contract of employment for a specified period of time within the meaning of paragraph 2 of Article 2 of the Termination of Employment convention and thus is not excluded, for the purpose of s 170CC of the Act, from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act.
"A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the Regulation."
And:
"In the expression, "specified" is the past participle of the verb "to specify". The ordinary meaning in the English language of "to specify" is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3rd ed. In the context of Art 2, par 2(a) of the Termination of Employment Convention, "specified" identifies a period of time or a task the scope and parameters of which are stated definitely. A "specified period of time" is a period of time that has certainty about it."
"Further, from 18 June 1993 onwards, Ms D'Lima was subject to an award entitlement for two weeks' notice of her termination. In those circumstances, even assuming that each written form represents a stand alone contract, no one can be certain as to when the contract will expire when it is entered into."[11]
"The relation between the Crown and its officers is contractual in nature. Service under the Crown involves, in the case of civil officers, a contract of service - peculiar in its conditions, no doubt, and in many cases subject to statutory provisions and qualifications - but still a contract. And, if this be so, there is no difficulty in applying the general law in relation to servants who are wrongfully discharged from their service."[13]
Was main purpose of engaging the respondent to avoid the employer's obligations under Part 2 of Chapter 3 of the Act?
Was the reason for the dismissal an invalid reason?
"After a review of Dr Algahamdi's employment file, I confirm that, as outlined in the Employer Response to the Application for Reinstatement dated 25 June 2015, the reasons for Dr Algahamdi's dismissal was due to performance concerns, more specifically that Dr Algahamdi was not meeting the required professional and clinical standards."
Discretion to dismiss where not in the public interest or where directions not complied with
DATE | EVENT |
18 June 2015 | Dr Algahamdi filed an application for reinstatement at the Queensland Industrial Relations Commission (the 'Commission'). Dr Algahamdi nominated legal representatives in the application. |
24 February 2016 | Ms Tucker filed an application to dismiss the application for reinstatement, and served a copy on the respondent's legal representatives. |
29 February 2016 | The Industrial Registry notified Dr Algahamdi via her legal representatives of the hearing date set down for the application to dismiss to be heard (that date being 16 March 2016). |
4 March 2016 | Ms Tucker received correspondence from the respondent's legal representatives advising they no longer acted for Dr Algahamdi and that all future correspondence should be directed to Dr Algahamdi using the contact details provided by them in their notice of withdrawal of appointment as lawyer or agent. |
8 March 2016 | Ms Tucker emailed Dr Algahamdi at the email address nominated on the notice of withdrawal of appointment as lawyer or agent, with a copy of the notice of listing for the hearing of the application to dismiss, as well as a copy of the notice of withdrawal of appointment as lawyer or agent. |
9 March 2016 | Associate to Deputy President O'Connor emailed Dr Algahamdi reminding her of the impending hearing date and with the application to dismiss attached. |
15 March 2016 | Ms Tucker forwarded the email sent to Dr Algahamdi on 8 March 2016 to the email address provided by Dr Algahamdi in her application for reinstatement, and reminded the respondent the hearing was scheduled for the following day. Ms Tucker also sent an email to both email addresses with the Affidavit of Mr Bruce Dunster by way of service. |
16 March 2016 | Ms Tucker emailed Dr Algahamdi at both email addresses with the applicant's outline of submissions, as well as various cases and extracts of legislation. |
16 March 2016 | The application to dismiss was heard. The respondent's name was called three times outside court but Dr Algahamdi made no appearance. |
"Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view."[15]
"Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest', when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case."[17]
"There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules."[20]
"The Commission has a discretion under r 45 which must be exercised judicially. The burden upon a person seeking to upset the exercise of a discretion is described in the High Court decision of House v The King:[22]
'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.'[23]
Conclusion
Orders
1. Pursuant to s 331 of the Act, the application to reinstate filed by the respondent on 18 June 2015 is dismissed;
2. Costs reserved; and
3. These orders not take effect for seven (7) days from the date of this judgement.
[1] (2007) 185 QGIG 46.
[2] (2002) 170 QGIG 306.
[3] Ibid, 310.
[4] David Carey v Department of Justice and Attorney-General (2002) 171 QGIG 391, 391.
[5] Together Queensland, Industrial Union of Employees v State of Queensland (B/2012/9) – Decision
[6] The expression "engaged under a contract of employment for a specified period of time" is taken directly from the Termination of Employment Convention; see Termination of Employment Convention, opened for signature 22 June 1982, C158 ILO, (entered into force November 23 1985).
[7] (1994) 56 IR 102.
[8] [1994] IRCA 41.
[9] S 66(1)(d) Hospital and Health Boards Act 2012.
[10] (1995) 64 IR 19.
[11] Ibid, 25.
[12] (2005) 224 CLR 44.
[13] Ibid, 63, quoting Lucy v The Commonwealth (1923) 33 CLR 229, 253.
[14] (1989) 168 CLR 210.
[15] Ibid, 216 (citations omitted).
[16] (2010) 197 IR 266.
[17] Ibid, 273-4.
[18] (2005) 180 QGIG 1209.
[19] [2001] QCA 176.
[20] Ibid, [29].
[21] Burke v Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38)
[22](1936) 55 CLR 499.
[23] Ibid.
