EMPLOYMENT BRIEFLY
August 1998 Issue No 7

We are delighted to announce the recent appointments of Celine McInerney and Michael Kelledy as Partners. Celine advises in technology and intellectual property and Michael advises in all aspects of local government law.

We are also pleased to announce that Edtyka Mizgalski, commercial litigation, and Kym Tredrea, planning and local government, have been promoted to Senior Associates. Welcome to Emma Shaw, Law Clerk, employed in the local government area and Robert Chalmers, Senior Associate, who is working within the technology and intellectual property area.

IS DEMOTION A DISMISSAL???

It would appear that the answer is "yes", as far as the SA Industrial Relations Commission is concerned.

In a decision handed down on 27 July 1998, a Full Bench of the SA Commission made a ruling to this effect in the matter of Grivell v Advertiser Newspapers. Mr Grivell had received a letter advising him that he was no longer required as foreman of the night shift in the Press Room at the Advertiser due to staffing levels. He was returned to the "shop floor". He immediately protested, referred the matter to his union, but nevertheless returned to the shop floor, thus continuing his employment relationship. He eventually claimed there had been an "unfair dismissal" due to the termination of his contract of employment as supervisor, and made an application to the Commission under section 105 of the Industrial and Employee Relations Act.

At first instance the Commissioner hearing the matter dismissed his application, as there had been no termination of the employment relationship. However the Full Commission overruled this on appeal. They stated that unlike the Federal jurisdiction under the Workplace Relations Act the State jurisdiction related to the "contract" of employment - and its termination. When determining the meaning of the word "dismissal" in the state Act, therefore, they did not believe they had to look at whether the employment relationship had been terminated. They simply had to decide whether the contract of employment had been terminated.

In Mr Grivell's case, they thought that it had - the demotion was a repudiation of the contract of employment as foreman, and he was entitled to have his application heard (presumably he will be seeking compensation).

The decision has significant consequences for employers. The ability to restructure or amalgamate workforces could be severely hampered if a change in the terms of an employees "contract of employment" - which does not necessarily have to be as significant as a demotion - might lead to an "unfair dismissal" claim. One area of relief is that the Federal jurisdiction does not provide such an avenue - decided cases there indicate that the employment relationship must be terminated before an application for unfair dismissal can be made.

The Advertiser is likely to appeal the decision to the Supreme Court. If not, the State Government may well consider amending the Industrial and Employee Relations Act.

EMPLOYMENT CONTRACTS FOR A SPECIFIED TASK

Norman Waterhouse recently represented an employer in the Full Federal Court in relation to an "unfair dismissal" application from an employee who was employed on a fixed term contract. The Full Federal Court, in a judgment dated 22 July 1998, ruled in favour of the employer.

The primary finding was that there was no termination of the worker's employment at the initiative of the employer as the termination had occurred when the fixed term contract expired. A secondary finding which is of interest, is that Regulation 30B(1)(b) applied to the contract. This regulation excludes certain employees from the termination provisions of the Workplace Relations Act, including employees engaged "under a contract of employment for a specified task". There is very little case law on what constitutes a specified task.

On the facts of this case, the Court determined that the contract was a contract for a specified task, notwithstanding that it was extended on three occasions. On each occasion, the effect of the extension was to extend the term of the employment to a new fixed date. The evidence was that the worker and the employer both understood the task - which involved the processing of certain transactions over the phone until the installation of a computer program which was being developed to do the same job - to be one of limited duration, and also found that the particular task was specified in the contracts. This decision demonstrates the value of carefully prepared contract documents and clear communication between employers and proposed employees as to the nature and extent of duties required under contracts. It does not provide a defence for employers who have engaged individuals on a "rolling" series of fixed term contracts for a position or role which is clearly an ongoing one. (D'Ortenzio v Telstra Corporation)

COMMONWEALTH IMMUNITY

A recent decision of the South Australia Supreme Court, held that section 44 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) operates as a complete bar to parties wishing to claim contribution from the Commonwealth in third party proceedings unless the Commonwealth employee has elected to pursue the Commonwealth under section 45 of the Act.

Section 45 of the Act allows an employee to make an election to pursue damages for non-economic loss against the Commonwealth at common law instead of receiving compensation under the Act.

In the case of Ricciotti v Coomblas & Ors, two employees of the Australian National Railways Commission (ANRC) were involved in a motor vehicle accident in which the vehicle driven by the ANRC employees collided with a truck driven by Mr Coomblas. Mr Ricciotti, the passenger in the vehicle, brought a common law action against Mr Coomblas. Mr Coomblas issued contribution notices against Mr Gee, the driver of the vehicle, and ANRC, the owner of the vehicle, under section 25 of the South Australian Wrongs Act 1936, which provides a statutory right of action for contribution between joint wrongdoers.

Justice Perry agreed with submissions made on behalf of Mr Gee and ANRC that, as Mr Ricciotti had not elected under section 45 of the Act to take action against the Commonwealth, section 44 operated as a complete bar against action by him against either ANRC or Mr Gee. The Court agreed with the Court of Appeal of New South Wales in Commonwealth of Australia v Flaviano & Anor that until the employee makes an election in writing pursuant to section 45(1)(b), no action by any party can lie against the Commonwealth under the Wrongs Act 1936.

HORSING AROUND - NO JOKE

The Queensland Supreme Court recently held that jockeys have a duty of care toward their colleagues notwithstanding their duty to do their utmost to win.

The Court also held that in the case of injury caused in a horse race the test to determine whether a jockey was negligent was whether he or she failed to take reasonable care for the safety of a fellow jockey in the circumstances.

While the court acknowledged the responsibility of the jockey to try to win it found that endeavouring to win did not entitle the jockey to ignore the safety of fellow riders.

Given the nature of horse racing and the competitiveness of jockeys and horseowners/trainers it would be no surprise if this decision was taken on appeal. There are also the financial, insurance and professional consequences of a finding of negligence against a jockey.

QANTAS PILOTS - AGE DISCRIMINATION

A Qantas pilot, Mr Christie, who had been required to retire as an international pilot upon reaching the age of 60 years, claimed that Qantas' policy which required this amounted to discrimination on the ground of age, and was contrary to the age discrimination legislation.

Following a number of findings in lower jurisdictions in Mr Christies' favour, Qantas took the matter to the Full Bench of the High Court. They upheld Qantas' policy on the basis that it was a reasonable occupational requirement for international pilots. It was therefore found to fall within an exception to the provisions prohibiting discrimination on the ground of age.

It should be remembered that even where it is clear that an employer's reason for making a decision was "discriminatory", there are exemptions. The most common is discrimination on the ground of impairment where an employee could not perform duties "reasonably required" of their position without putting the health and safety of themselves or others at risk.

For further information please contact :

Ian Colgrave, Partner
Direct line 61 8 8210 1203 / Mobile 041 982 3729
E-mail icolgrave@normans.com.au

Julie McIntyre, Partner
Direct line 61 8 8210 1290
E-mail jmcintyre@normans.com.au