D'ORTENZIO v TELSTRA [1997] IRCA 148

D'ORTENZIO v TELSTRA [1997] IRCA 148

The Applicant was in continuous employment because she continued working after the expiry of successive contracts, written offers of extension were made after earlier contracts had expired, and the final proposed contract was never accepted. She was therefore not excluded from the Act. The Respondent provided no substantive evidence of a valid reason for termination and terminated her employment in breach of Section 170DE. Reinstatement was appropriate and not impracticable, with orders for lost remuneration subject to an excluded period caused by delay attributable to the Applicant.

Jurisdiction
Australia
Judgment Date
07 May 1997
Procedural Posture
Application Pursuant to Section 170 ED of the Workplace Relations Act Alleging Unlawful Termination of Employment and Seeking Reinstatement / Decision and Orders After Hearing
Outcome
Application allowed; termination found unlawful; reinstatement and lost remuneration ordered.
Legal Topics
['termination of Employment' 'fixed Term Employment Contracts' 'jurisdictional Exclusion' 'valid Reason for Termination' 'reinstatement' 'lost Remuneration']
['industrial Law' 'employment Law'] ['termination of Employment' 'fixed Term Employment Contracts' 'jurisdictional Exclusion' 'valid Reason for Termination' 'reinstatement' 'lost Remuneration']

Case Brief

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Procedural Posture

Application Pursuant to Section 170 ED of the Workplace Relations Act Alleging Unlawful Termination of Employment and Seeking Reinstatement / Decision and Orders After Hearing

Legal Issues

  1. 1 ['Whether the Applicant was excluded from the jurisdiction by virtue of Section 170CC and Regulation 30BC because her employment was under fixed term contracts' 'Whether the Applicant was in continuous employment when her employment was terminated' "Whether the Respondent had a valid reason for terminating the Applicant's employment" 'Whether reinstatement and remuneration for lost employment should be ordered']

Ratio Decidendi

The Applicant was in continuous employment because she continued working after the expiry of successive contracts, written offers of extension were made after earlier contracts had expired, and the final proposed contract was never accepted. She was therefore not excluded from the Act. The Respondent provided no substantive evidence of a valid reason for termination and terminated her employment in breach of Section 170DE. Reinstatement was appropriate and not impracticable, with orders for lost remuneration subject to an excluded period caused by delay attributable to the Applicant.

Court Disposition

Application allowed; termination found unlawful; reinstatement and lost remuneration ordered.

Orders

  • ['The Respondent reinstate the Applicant on terms and conditions no less favourable than those on which she was employed immediately before the termination of her employment within 21 days.' 'The Respondent pay to the Applicant remuneration lost by the Applicant because of the termination of her employment from 1...