DECISION NO:552/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1680 of 1996
B E T W E E N:
Natasha Fiona CASE
Applicant
A N D
CHARNLEY CREEK PTY LTD
Respondent
REASONS FOR DECISION
25 October 1996 PARKINSON JR
This is a decision in
relation to an application made pursuant to Section 170EA of the Industrial
Relations Act 1988 ( the Act ). Leave was granted to the applicant to
bring a claim in the accrued jurisdiction of the Court alleging breach of
contract, negligent misrepresentation and breaches of the Fair Trading Act 1985
(Vic). This claim, which was set out in an Amended Statement of Claim dated 18
October 1996, included a claim that the respondent had breached the employment
contract between the parties, by terminating the employment earlier than the
time fixed for expiration of the contract and a claim that the respondent had
represented that the employment was for a term of not less than 12 months and
that such representation was false and misleading and negligent. Further that
the respondent was in breach of s11 and s14 of the Fair Trading Act 1985 (Vic)
in that it offered employment on terms which it knew to be false or
misleading. There was no claim for reasonable notice of termination of
employment at common law. In any event, as will be seen later in this
decision, the terms of a State Award were applied by the parties to the
agreement and the notice provision required one week. This was the period of
notice given by the respondent.
The applicant was a university student full time in 1995 when she became aware of a position being offered at the respondent’s legal practice. The position was advertised on a student employment service noticeboard. The information contained in the advertisement was completed by a person in the student employment service, apparently on the basis of information supplied by the potential employer or an agent of that employer. The advertisement provided that the position being offered was a full time position as a receptionist/law clerk. A wage rate of $381.00 per week was specified in the advertisement together with the hours of work. In addition when the position was described, the following statements were made:
“ General office duties & law clerk duties. Would (sic) suit law student wishing to defer a year. ”
The applicant’s evidence is that in the course of the interview with Mrs Hogg, a principal of the legal practice and a director of the respondent, she made clear her intentions as to deferring her university course and that the deferral would be subject to obtaining full time employment until the end of the year. It was her intention to earn sufficient money to support her undertaking post graduate studies in the United States of America. Her evidence was that if she were accepted for such post graduate studies, she intended finishing work with the respondent in December, 1996. I am satisfied that the applicant had at the time of the application for the position already taken steps to defer her university courses in 1996. This is evident from the application for employment dated December 11, 1995 and the evidence of the applicant in the proceedings.
The respondent contends that no representation as to the length of the employment was ever given the applicant, nor it says was there any contemplation of either a minimum or maximum period of employment. In effect the respondent contends that the agreement between the parties was a contract of employment for an unspecified period. I turn first to consider the s170EA application.
Section 170EA
The applicant contends that her employment was terminated on 3 April, 1996 without valid reason. The respondent contends that the operational requirements of the business were such that it was necessary for there to be a reduction in staff numbers employed. In this regard the respondent points to a substantial reduction in the number of clients in the period January to March, 1996. The evidence was that there had been various legislative changes in relation to a significant area of the respondent’s legal practice.
As a consequence of these changes, which I accept were not anticipated by the respondent at the time it hired the applicant, there was a substantial reduction in the client base and work of the business. I am satisfied that the respondent having considered its business performance had decided that there was a need to reduce the number of employees in the business. A number of employees were made redundant at the same time as the applicant. The applicant was selected as a result of the duties she performed either being able to be performed by others in the practice or being abolished altogether. There is no suggestion that her selection was based upon performance or conduct related matters such as to require that the respondent comply with the provisions of s170DC of the Act. In fact it is clear that the applicant is an extremely intelligent and articulate woman who would be an asset to any legal practice. This is acknowledged by the respondent.
I have considered the circumstances in which the applicant was advised that her employment was being made redundant and whilst it is unfortunate that the decision as to redundancy was not either taken or communicated to the applicant earlier so as to enable her the opportunity to re-enrol at university shortly after the commencement of the academic year, this is not an obligation which exists in the Award and I am satisfied that the failure by the respondent to do so was not founded in any malice, nor was the timing capricious.
I am satisfied that the respondent had valid reason for the termination of the employment based upon the operational requirements of the business. Consequently the respondent has not contravened s170DE(1) of the Act. I now turn to consider the claims in the associated jurisdiction.
Contract for a specified term
It is appropriate to set out my findings as to the nature of the employment agreement between the parties. The applicant contends that the contract between herself and the respondent was a contract for a fixed term of 12 months. At law, a fixed term contract is one where the contract expires by its own operation at the completion of a specified period of time. For there to have been such a contract I must be satisfied that such specified and certain period was agreed between the parties at the time the agreement was entered.
I am not satisfied that the evidence establishes there was a contract of employment for a fixed term. There is no evidence of any agreement being reached as to the nature of the term or its expiry date. Nor that there was a term certain agreed to between the parties. The evidence is that the applicant anticipated that the employment would continue to at least December, 1996 however, I am unable to be satisfied that there was a term of the contract to this effect.
It is clear that there were discussions between the parties as to the intentions of the applicant and the nature of the duties to be performed. I accept that the respondent’s Director, Ms Hogg, did not turn her mind to the issue of there being a specified term of the employment and it is equally certain that there was no date specified for the cessation of the employment. For a contract of employment to be described properly as a fixed term contract there must be a certain period in which the employment is to run and a date certain for its cessation. The job advertisement (Exhibit A2) even on the most generous construction to the applicant, does not identify the contract as one of certain duration.
The evidence establishes that the respondent applied the terms and conditions of an Award known as the Legal Profession Employees’ Award 1985 (Vic) (‘the Award’) to the applicant’s employment. Despite and perhaps as a result of uncertainty on the part of both parties as to the statutory operation of that Award and its application, it appears that the respondent applied the terms of the award to the applicant’s employment by way of the payment of wages and payment in lieu of notice. The applicant agreed that there was an entitlement to this payment in lieu of notice of termination of employment. The entitlement to such a payment for notice also suggests that the agreement between the parties was not a contract for a fixed term.
Sections 11 and 14 of the Fair Trading Act 1985 (Victoria)
The applicant also relied upon Sections 11 and 14 of the Fair Trading Act 1985 (Vic). In this regard she submitted that the job advertisement together with the discussions held with Mrs Hogg at the employment interview constituted a representation that the employment would be available for a minimum period to December 31, 1996 and such representation was misleading and deceptive. I am not satisfied that a mere expectation on the part of the respondent as to the period of the employment, would constitute a representation as to the length of employment for the purpose of s11 or s14. I am not in any event satisfied that any express undertaking was given in that regard. It is equally clear that on the basis of the information known to the respondent at the time of the advertisement and interview, it was not unreasonable to expect that the employment would continue. In my view a mere expectation could not constitute the conduct of the respondent or its officers as misleading or deceptive or calculated to be so. I am further not satisfied that the applicant altered her position in response to that representation, or that the inconvenience and delays to her course which she has suffered were consequent upon any such representation.
For the reasons set out above, the application pursuant to s170EA of the Industrial Relations Act 1988 and the claims in the associated jurisdiction of the Court are dismissed.
I certify that this and the preceding five (5) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate : Paul Ferguson
Dated : 15 November 1996
APPEARANCES
The applicant in person
Counsel appearing for the respondent : Ms. J. Patrick
Date of hearing : 22 October 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1680 of 1996
B E T W E E N:
Natasha Fiona CASE
Applicant
A N D
CHARNELY CREEK PTY LTD
Respondent
MINUTES OF ORDERS
25 October 1996 PARKINSON JR
THE COURT ORDERS THAT:
1. The application is dismissed
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
VALID REASON - whether TERMINATION of employment for OPERATIONAL REQUIREMENT - ASSOCIATED JURISDICTION - whether BREACH of EMPLOYMENT CONTRACT - whether SPECIFIC PERIOD CONTRACT - whether representations made by employer false misleading or negligent -
Industrial Relations Act 1988, ss 170EA, 170DE(1), 430
Fair Trading Act 1985 (Vic) ss 11, 14
CASE v CHARNLEY CREEK
VI 1680 of 1996
Before : PARKINSON JR
Place : MELBOURNE
Date : 25 October 1996
