APPEAL AGAINST THE DECISION TO TERMINATE THE EMPLOYMENT ON 29 MAY 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00054

DELIVERED : TUESDAY, 7 FEBRUARY 2012

FILE NO. : PSAB 8 OF 2011

Appellant

AND

Department of Corrective Services ABN 25103389163

Respondent

Catchwords : Industrial Law (WA) - Appeal against decision to terminate employment - Notice of appeal filed outside of 21 day time limit - Principles applied - Whether prison officer "government officer" - Whether employment terminated by effluxion of time - Refusal to extend time for filing appeal - Appeal dismissed

Legislation : Industrial Relations Act 1979 s7, s80C(1), s80I(1)(e); Prisons Act 1981 s13

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : Ms K Jack and with her Ms A Young

Case(s) referred to in reasons:

Michael Christian Nicholas v Department of Education and Training (2008) 89 WAIG 817;

Ministry of Justice v Western Australian Prison Officers Union of Workers (1994) 74 WAIG 1928;

Western Australian Prison Officers Union of Workers v Hon. Attorney General (1997) 78 WAIG 462;

The Totalisator Agency Board v Edith Fisher (1997) 77 WAIG 1889;

Gallotti v Argyle Diamond Mines Pty Ltd (2002) 82 WAIG 3011;

Gallotti v Argyle Diamond Mines Pty Ltd (2003) 83 WAIG 3053.

Reasons for Decision

1          Mr McGinty was employed as a Vocational Support Officer at Casuarina Prison.  He started work in December 2008 on a three month fixed term contract.  His fixed term contract was successively renewed until the end of May 2011 when the Department of Corrective Services was unable to offer Mr McGinty a further appointment.

2          Mr McGinty now appeals against the Department’s decision. He says he was dismissed unfairly because as a result of his successive short term contracts, he had an expectation of ongoing employment as a VSO. The Department denies this and says Mr McGinty had no basis for such an expectation as his contracts of employment were for fixed term periods and clearly stated there was no obligation on the Department to offer further engagements to Mr McGinty on their expiry. The Department also raises the issue as to whether the Appeal Board is the appropriate jurisdiction in which to hear Mr McGinty’s claim.

3          As Mr McGinty’s appeal is out of time, whether the time to file the appeal should be extended needs to be determined first.  This involves considering the overall justice of extending the time to file the appeal, in the context of the length of the delay; the reason for the delay; whether the appeal shows an arguable case; and any prejudice to the Department if the time for the lodgement of the appeal is extended:  Michael Christian Nicholas v Department of Education and Training (2008) 89 WAIG 817.  Also, naturally, part of the consideration of the extension of time is whether Mr McGinty’s appeal falls within the Appeal Board’s jurisdiction.  We will deal with this issue first.

Jurisdiction

4         To be amenable to the jurisdiction of the Appeal Board (and also the Public Service Arbitrator) under Part IIA of the Industrial Relations Act 1979, Mr McGinty must be a “government officer” for the purposes of s 80C(1).  The relevant part of the definition of a government officer in this case is par (b) which requires Mr McGinty during his employment to have been “employed on the salaried staff of a public authority”.  As a VSO Mr McGinty under his successive contracts, was paid a salary within the range prescribed by the relevant industrial instruments covering his employment.  For his last contract these were the Prison Officers’ Award and the Department of Corrective Services Prison Officers’ Enterprise Agreement 2010.  Mr McGinty’s successive fixed term appointments were made under and subject to the Prisons Act 1981. Under s 13 of the Prisons Act prison officers are appointed by the Minister for Corrective Services.  The Minister is the employer of a prison officer under the award and the agreement.  There is no question that the Minister for Corrective Services is a “public authority” and an “employer” as defined in s 7 of the Act.

5         Given the significance of this issue more broadly, the Appeal Board afforded the Western Australian Prison Officers Union the opportunity to make any submission it wished to, with the parties being given a right of reply. The appellant did not file any written submissions in reply.

6         In short, the Union, in a written submission, contended that VSOs in Mr McGinty’s position should not be regarded as government officers as defined in the Act.  This was because historically VSOs and prison officers have never been regarded as part of the public service and they were not covered by prior public service industrial legislation. They have always been regulated within the general jurisdiction of the Commission as wages employees.  Further, under the current Public Sector Management Act 1994 the Union contended that prison officers are not employed as public service employees under Part 3 of the legislation and little of that legislation has application to them. The Union also said that the “salary” paid to prison officers is an annualised salary paid as an administrative convenience, which does not mean that officers are to be regarded as “salaried staff of a public authority”.  The Department in its reply submission generally agreed with the thrust of the Union submission.

7         Both the award and the industrial agreement provide for the payment of aggregated salaries to prison officers and VSOs. Salary ranges are expressed in the award and agreement for the various classification levels set out. These are based on years of service.  Whilst this issue appears not to have arisen previously, and prison officers have always been subject to the general jurisdiction of the Commission, the Department contended that given the terms of the Public Sector Management Act 1994, it was not the intention for prison officers to fall within Part IIA of the Act.

8         An annualised salary for prison officers was first introduced in 1994 when the Gaol Officers Award 1968 was varied: (1994) 74 WAIG 1928.  At the time this was done as part of a package of reforms to working arrangements in prisons to achieve increased efficiencies.  Overtime, penalty rates, shift allowances and other benefits were rolled into an annual salary. At the same time, a new industrial agreement, the Gaol Officers Industrial Agreement AG 64 of 1994 was made, incorporating an annualised salaries clause, reflecting the above.  We note that in cl 18 – Rates of Pay of the then award, rates of pay were expressed as both a weekly rate and as an annual rate.  Later, the current award was consolidated and varied to include the same clause: (1997) 78 WAIG 462. 

9         Consistent with the history we have referred to above, the current award contains reference to both wages and annualised salaries. Reference is made to the “payment of wages” in cl 25.1 in relation to the manner of payment of wages and any deductions from them. Following, in cl 26, is reference to “annualised salaries”.  Schedule A in the award then sets out the “rates of pay” in the form of an “annual rate”.  The annualised salary is also expressed in the agreement.

10      There is no fixed meaning of “salary”.  The leading authority in this jurisdiction is The Totalisator Agency Board v Edith Fisher (1997) 77 WAIG 1889.  In the view of Kennedy J in that case, the ordinary dictionary meaning of “salary” was the starting point for consideration, that being a “Fixed payment made periodically to a person as compensation for regular work; now usually restricted to payments made for non-manual or non-mechanical work (as opposed to wages)”.  He then stated that “the concept of a fixed payment is central to the definition” (at 1890).

11      Whilst at first blush it might be said that prison officers are now paid a salary on this basis, the history of the award and agreement shows that they were historically wages employees and that the payment of remuneration annually was a result of administrative changes some years ago.  As noted above, the industrial instruments in part, still refer to the payment of “wages”.  Further, s 80C of the Act does not just refer to the payment of a “salary” to a person. The statute refers to a person employed on the “salaried staff” of a public authority. Whilst the distinction between “wages employees” and “salaried staff” in terms of somewhat anachronistic “blue collar” and “white collar” employment may no longer have the connotations it once may have had, nonetheless, the legislature has sought to confine the jurisdiction of the Arbitrator to those specific employees in s 80C of the Act.  They are generally those in the administrative, technical and professional ranks of the public sector.

12      One may look to police officers in this State as a point of comparison with prison officers. By their industrial instruments, police officers are employed on a salaried basis but, importantly, are deemed “government officers” for the purposes of s 80C and fall within Part IIA by reason of specific provisions in the Act in s 115 and Schedule 3.  These were introduced to overcome the uncertainty as to whether at common law, police officers were employees.

13      We are therefore not satisfied that Mr McGinty’s prior employment with the Department means that his appeal is amenable to the Appeal Board’s jurisdiction.  However, if we are incorrect in this conclusion, and Mr McGinty’s appeal does fall within the jurisdiction of the Appeal Board, we turn to consider whether Mr McGinty should be permitted to bring his appeal out of time.

Extension of Time

Length of Delay

14      The appeal was filed on 27 June 2011 following the cessation of Mr McGinty’s employment on 29 May 2011. Under reg 107(2) of the Industrial Relations Commission Regulations 2005 an appeal is to be lodged within 21 days, in this case, by 18 June 2011.  Thus Mr McGinty’s appeal is some nine days out of time.  We do not consider this period of time to be inordinate but it is substantial.

Reason for the Delay

15      Some two weeks or thereabouts following the cessation of his employment, Mr McGinty commenced proceedings in the general jurisdiction of the Commission in applications U and B 108 of 2011.  These applications claimed the Department had dismissed him unfairly and denied him contractual benefits.  The application alleging unfair dismissal was filed within time.  On 27 June 2011, following the taking of advice, Mr McGinty discontinued applications U and B 108 of 2011 and commenced this appeal.  Mr McGinty said he was advised to the effect that the Appeal Board was the appropriate jurisdiction to bring his claim.

16      We accept Mr McGinty’s explanation for the delay.  He took steps to challenge the termination of his employment promptly and within the time prescribed under s 29(2) of the Act.  Mr McGinty’s taking advice and acting upon it then led to the late filing of the appeal.  It is notable that he discontinued applications U and B 108 of 2011 and filed the present appeal on the same day.

Arguable Case

17      Mr McGinty contends that because of his successive contracts from December 2005 to May 2011, some two and a half years or thereabouts, it was unfair of the Department to cease employing him.  As part of establishing an arguable case, Mr McGinty is required to establish that he was “dismissed” for the purposes of s 80I(1)(e).  It is that decision from which he brings the present appeal.  Although there were successive three month contracts on which Mr McGinty was engaged, he said he had an expectation of ongoing employment, and considered that in substance he was a permanent employee.

18      According to the evidence of Mr Feltham on behalf of the Department, as a result of peak muster requirements, approval was given to the Casuarina Prison to engage additional vocational support officers so that the increased prisoner population could be actively engaged in constructive work in the prison.  These positions were to be filled on a contract basis and were not permanent appointments.  Copies of Mr McGinty’s contracts over the period December 2008 to May 2011 were in evidence.  The positions occupied by Mr McGinty were also set out in an employment history prepared by the Department. The positions were described as “VSO Relief Officer”; “VSO Relief Instructor Cabinet Trade”; “VSO Prison Maintenance Instructor”; and “VSO Chief Instructor”.

19      Each contract was in largely the same terms.  All were for full time employment in the positions nominated.  Each contract referred to the appointment as a “fixed term” appointment under s 13(1) of the Prisons Act.  A commencement date and a cessation date were specified.  All contracts contained the following provisions or provisions to the following effect, as set out in Mr McGinty’s last contract expiring at the end of May 2011:

“11. Nothing in this letter shall confer upon you permanent officer status in this position.

  12. Your fixed term contract will cease at the close of business on the above expiry date without further notice from this office.

  13. This offer of a fixed term contract in no way implies the expectation or otherwise of continued employment beyond the period described and there is no obligation upon either party to enter into any further employment arrangement.

  14. Either party may terminate this contract by giving the other one (1) months notice in writing, or the Department may pay you one (1) months pay in lieu of such notice.  If you fail to give the required notice you will forfeit one (1) months pay.

  15. This appointment supersedes any other offer of employment with this Department.”

20      It was common ground that approximately six to eight weeks prior to the expiry of each contract Mr McGinty was informed that he was to be reappointed under a fresh contract which he duly received and signed.  This occurred on all but the last occasion when on the testimony of Mr Feltham, the small group of fixed term VSOs, including Mr McGinty, were informed their contracts were not going to be renewed beyond the end of May 2011. This was because of reduced musters.  Mr Feltham said Mr McGinty and the others were advised of this on 27 April 2011. This was confirmed in a letter to Mr McGinty of 4 May 2011. His employment came to an end on 29 May 2011.  It seems however, that since that time Mr McGinty has been performing some casual work for the Department.

21      Whether there has been a “dismissal” is a mixed question of fact and law.  A “dismissal” is not defined in the Act, for the purposes of an unfair dismissal application under s 29(1)(b)(i) or an appeal of the present kind under s 80I(1)(e) of the Act. However, in Gallotti v Argyle Diamond Mines Pty Ltd (2002) 82 WAIG 3011, Kenner C considered the common law meaning of “dismissal” at pars 56 to 62 and concluded that it means, at least in part, “the sending away of a person from their employment.”  In that case Kenner C concluded that a person engaged on a series of fixed term contracts of short duration that came to an end by effluxion of time was not dismissed to attract the jurisdiction of the Commission under s 29(1)(b)(i) of the Act.

22      That particular case found its way to the Industrial Appeal Court. The court dismissed the appeal on the basis that a contract coming to an end by effluxion of time cannot be characterised as a dismissal: Gallotti v Argyle Diamond Mines Pty Ltd (2003) 83 WAIG 3053.  We reach the same conclusion in this case.  The facts are similar.  The series of short term contracts culminating in Mr McGinty’s final contract came to an end by effluxion of time.  On 29 May 2011 Mr McGinty’s final contract terminated in accordance with its terms. Mr McGinty was not dismissed.  There is accordingly no prospect Mr McGinty’s appeal can succeed.  

Prejudice

23      In view of our conclusions, it is not necessary to consider this issue but given the submissions and evidence from the Department, there may, in any event, be some prejudice to it if time to appeal is extended.

Conclusion

24      Whilst the length of the delay in filing the appeal and the reasons for the delay are acceptable, as there has been no dismissal in this case, a refusal to extend time will not result in any injustice. Indeed, it would be unjust as against the Department to extend the time for the filing of the appeal where it has no prospects of success. 

25      The application to extend time and the appeal are both dismissed.