WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2015 WAIRC 00760

DELIVERED : THURSDAY, 30 JULY 2015

FILE NO. : M 26 OF 2015

CLAIMANT

AND

Forest Products Commission

RESPONDENT

Catchwords : Alleged failure to make correct redundancy payment; Whether Claimant was, for three years of employment, a permanent employee despite being classified as a “casual” employee; Whether for the purposes of calculating his redundancy pay out the period that the Claimant was employed as a “casual” should be regarded as “service”.

Legislation : Industrial Relations Act 1979
Public Sector Management (Redeployment and Redundancy) Regulations 1994

Instruments : Wages Employees Long Service Leave General Order No 763 of 1982
Government Officers, Salaries, Allowances and Conditions Award 1989

Case(s) referred to
in Reasons  : Loves Bus and Taxi Service v Zucchiatti (2006) 86 WAIG 3351
    Metals and Engineering Workers Union, Western Australia v

Centurion Industries Ltd (1996) 76 WAIG 1287

Result : Claim dismissed

Representation:

Claimant : Mr Alexander Joseph Winter appeared in person

Respondent : Mr Damian Matthews (of Counsel) instructed by the State Solicitor for Western Australia

REASONS FOR DECISION

Undisputed Facts

1          In early May 2007, when Mr Alexander Joseph Winter (the Claimant) was working for the Commonwealth Scientific and Industrial Research Organisation (CSIRO)  he was approached by other scientists asking him to join them in conducting a Hydrological Salinity study throughout Western Australia. The Commonwealth government had allocated funds to the Forest Products Commission (the Respondent) to carry out that study.

2          After some consideration, the Claimant decided to leave the CSIRO and join the Respondent in order to work in the salinity study.  The Claimant’s appointment was relatively informal and he was not asked to participate in any selection process.

3          On 11 May 2007, the Claimant completed a New Employee Details form (Exhibit 1) which was supplied to the Respondent. That form contained the Claimant’s personal, qualification, taxation, and banking details. The Respondent has subsequently used that information to generate the payment of wages to the Claimant.

4          The Claimant’s appointment was as a casual Research Assistant (see Exhibit 6). Despite that, his work was full time and there was an expectation on his and the Respondent’s part that his engagement would be ongoing. In most respects he was treated like a permanent employee except that he was paid a 20 percent casual loading.  He generally worked very long hours, well in excess of 90 hours per fortnight. In some instances he worked many more hours than that.

5          The Claimant’s employment conditions were, throughout his employment with the Respondent, governed by the Government Officers Salaries, Allowances and Conditions Award 1989 (the Award) and the agreements made thereunder.

6          The Claimant was paid at the rate specified in the Award applicable to a Level 3.4 Technical Officer save that in one instance when he was paid at the Level 2 rate, and for a few months very early on when he was paid at the Level 3.1 rate.

7          In 2010, the Claimant asked the Respondent to change his employment status from casual to permanent. He argued inter alia, that the hours he worked and the ongoing nature of his engagement was more in keeping with that of a permanent employee than a casual. Consequently, on 25 November 2010, Mr David Hartley (the Respondent’s Acting General Manager) wrote to the Claimant as follows:

“Dear Alex

RE EMPLOYMENT STATUS

I have reviewed your employment status as a casual employee and I would like to inform you that you will be converted to a permanent employee.

I was guided in my decision on advice provided from Mr Rumen Grigoroff, Manager Workforce Restructure, People and Development. He has informed me that there is common law precedence on casual employment particularly where that employment has been ongoing rather than employment for short periods which is the appropriate use of casual employment. Based on that precedence, it has been determined that your employment status should be permanent.

As a result of this decision, the following changes to your employment will occur:

• The 20 percent casual loading will cease from 26 November 2010;
• You will accrue long service leave from the date of your initial engagement;
• Your classification level will (sic) Level 3 step 4; and
• You will accrue Personal Leave and Annual leave entitlements from 26 November 2010.

Your status will be “officer attached” rather than placement in a position. The Selection and Recruitment Standard in the Public Sector Standards in Human Resource Management requires an officer to undergo merit selection prior to being placed in a position.

You will be registered as a redeployee and assigned Mr Mike Carter as a case manager. Mr Carter will contact you to assist you to identify appropriate position (sic) within the public sector. If you have any questions, please contact Mr Grigoroff by phone on 94758807 or by email at rumen.grigoroff@fpc.wa.gov.au.

Yours sincerely”

(Exhibit 5)

8          The Claimant thereafter worked for the Respondent as a permanent employee.

9          In about October 2014, the Respondent called for expressions of interest from those employees who might be willing to accept a voluntary severance package. The Claimant expressed his interest in taking up that offer and received an informal proposal.

10       The Claimant subsequently engaged in discussions with the Respondent concerning his proposed payout. It suffices to say that, during that process, the Claimant discovered that his casual employment with the Respondent prior to 26 November 2010 would not be treated as “service” for the purposes of calculating aspects of his severance pay.

11       The Claimant, as part of his redundancy package, was offered three weeks’ pay for every completed year of service, to a maximum of 52 weeks. The Respondent maintained that the Claimant had worked only four completed years entitling him to 12 weeks’ pay but the Claimant argued that he had worked in excess of seven years, entitling him to 21 weeks’ pay.

12       During the discussions which occurred in October 2014, the Claimant was told that future redundancy offers were likely to be less generous. With that in mind, he felt that it was in his best interests to conditionally accept the offer.  He was anxious to preserve what he believed to be his entitlement to an additional nine weeks’ pay which was based on his three years’ service prior to 26 November 2010.

13       The Respondent subsequently informed the Claimant that it would not agree to his conditional acceptance of the voluntary severance offer made to him.

14       Thereafter on 30 October 2014, the Claimant sent the Respondent the following email:

“Good afternoon Catherine,

I accept the voluntary redundancy the FPC is offering me.

I reserve my right to seek clarification and redress elsewhere and independent of this offer, on the matter of my recognized years of service. I believe I have served the FPC for in excess of 7 continuous years.

Regards, Alex”

(Exhibit 8)

15       The aforementioned email led to the Respondent making of a formal voluntary severance offer on 18 November 2014.  The offer was made in accordance with the provisions of Regulation 6 of the Public Sector Management (Redeployment and Redundancy) Regulations 1994 (PSMRR Regulations). It proposed that the Claimant’s position of Level 3 Technical Officer be abolished with effect on Friday, 2 January 2015 and that he receive a severance package comprised as follows:

• a voluntary severance payment;
• a payment in lieu of 12 weeks’ notice;
• the payout of accrued annual leave entitlements; and
• the payout of his long service leave entitlement. (see Exhibit 7)

16       The offer indicated that the Claimant’s voluntary severance payment was calculated on his three years’ completed service as a permanent employee, whereas his long service leave entitlement  took into account all of his completed service, including his service as a casual.

17      On 26 November 2014, the Claimant formally accepted the severance offer with the associated severance arrangement conditions. His employment subsequently ended on 2 January 2015. Immediately upon his employment ending the Claimant was paid his wages for the period ending 1 January 2015 and then on 15 January 2015, he received payment for his final day of work (2 January 2015) plus his agreed redundancy pay.

18      On 4 March 2015, the Claimant lodged this claim, alleging that the Respondent had failed to pay him his correct redundancy entitlement, but in doing so, has not indicated the statutory basis that underpins the claim.

19      The Claimant alleges that in calculating his severance pay, the Respondent has failed to account for his three years’ service prior to 26 November 2010.  He claims to be entitled to an additional nine weeks’ pay, amounting to $12,105.18, plus interest thereon. Further he asks that the Respondent be penalised for having failed to pay him his correct redundancy payment.

Determination

20      The basis of Claimant’s claim is somewhat unclear.  He seemingly asks that a declaration be made that the Respondent engaged him as a permanent employee from 11 May 2007 until 25 November 2010. 

21      He argues that despite being labelled as a casual employee, he was in fact a permanent employee.  His permanent status is indicated by his functions, his hours of work and the ongoing nature of his employment.  He asserts that during the material period he was engaged continuously and not in a series of separate and distinct contracts. He relies on what was said in Loves Bus and Taxi Service v Zucchiatti (2006) 86 WAIG 3351 and Metals and Engineering Workers Union, Western Australia v Centurion Industries Ltd (1996) 76 WAIG 1287, to support his contention.

22      What the Claimant seeks is, with respect, misconceived because this Court does not have the power to grant, by way of principal relief, the declaratory order sought. No attempt has been made to identify a particular breach of an instrument or statutory provision which might enliven this Court’s jurisdiction.  Accordingly it will not be necessary to review his pre-26 November 2010 employment in order to determine whether he was correctly classified as a casual employee.

23      The Claim lacks merit in any event for the following reasons.  

24      On 26 November 2014, the Claimant accepted the voluntary severance offer made to him pursuant to Regulation 6 of the PSMRR Regulations. Although the PSMRR Regulations have since been replaced they remain relevant to my consideration in this matter.

25       Regulation 20(1) of the PSMRR Regulations provided that a severance payment made to an employee under Regulation 6, was the payment of an amount equal to three weeks’ pay for each completed year of “continuous service” served by the employee in the public sector.

26       “Continuous service” was defined by Regulation 3 of the PSMRR Regulations, as follows:

“continuous service has the same meaning as it has in the Wages Employees Long Service Leave General Order of The Western Australian Industrial Relations Commission”.

27       The relevant General Order was No. 763 of 1982. It provides, at Clause 2(b)(iii):

“(b) The Service of an employee shall be deemed NOT to include:-

  …

(iii) any period during which an employee has been paid as a casual”.

28       There is no dispute about the fact that the Claimant was paid as a casual from the date that he commenced his employment, up to and including, 25 November 2010.

29       The fact that he was paid as a casual during that period removes the ability to treat that period as continuous service. The statutory construction of those relevant provisions leads to that inevitable conclusion.

30       The Claimant’s payment as a casual during the material time defeats his contention that he did not receive his correct redundancy entitlement.

31       I find that the Claimant was paid in accordance with Regulation 20(1) of the PSMRR Regulations.  The Claimant’s claim must therefore fail.

32       Before concluding, I observe that the Claimant’s long service leave entitlement was materially affected by the Respondent’s agreement to recognise, for that purpose only, the Claimant’s service from the date of his initial employment. Absent that express agreement, the relevant period would have been incapable of being considered to be continuous service.

Conclusion

33       The claim will be dismissed.

G. Cicchini

Industrial Magistrate