Western Australian Industrial Relations Commission

Summary dismissal for dismissal during probation

The Full Bench unanimously dismissed an appeal against a decision of the Commission to summarily dismiss a claim for contractual entitlements.  The Hon. A/President held that in determining whether a claim for contractual entitlements can be dismissed at a preliminary stage, the Commission must be satisfied that: 

  • there is clearly no real question of fact or law to be tried;
  • the claim cannot possibly succeed;
  • there is no risk that the development of law will be stifled by dismissing the claim at an early stage; and
  • regardless of how the facts are found, there is no basis for the legal conclusion contended by the applicant. 

The Commission is not restricted to considering the way the applicant has framed their case, and may consider agreed and controversial facts when considering each of these factors. 

The employee was employed on a contract with a maximum term and was dismissed during the probationary period.  The employee was paid notice in accordance with the contract.  The employee argued that she was entitled to the balance of the maximum term of the contract because:

  1. the employer made pre-contractual representations to her that the contract was for a fixed period.  Therefore, the employer could not rely on the notice provision in the contract; and
  2. the Fair Work Act 2009 (Cth) general protections implied a term into the contract that the employer could not unreasonably exercise its right to terminate the contract.  The employer acted unreasonably because the true reason for the termination was that the employee exercised a workplace right.  Therefore, the employee is entitled to damages, being the balance of the contract term. 

The Hon. A/President Smith found that the employee's contentions about pre-contractual representations posed no real question of fact or law because: 

  1. The pre-contractual representation relied on by the employee was not tendered in the proceedings at first instance and the employee did not persuade the Full Bench that leave should be granted to tender the new evidence of the representation;
  2. No such argument was raised at first instance and the Full Bench was not persuaded that the employee's case was so exceptional to allow a different case to be put on appeal;
  3. In any event, at its highest, the representation was 'merely a statement of subjective intention' of the employer and, as a matter of law, such a representation is not admissible to construe the terms of the contract; and
  4. The contract of employment contained an effective 'whole agreement' clause, which prevented the employee from relying on any pre-contractual representation. 

Her Honour also concluded that the employee's claim that she had a contractual entitlement that the employer would not act unreasonably when exercising its right to terminate the employment was untenable because: 

  1. At common law, an employer can terminate a contract of employment pursuant to its terms for any reason, or no reason at all;
  2. The employee had no contractual entitlement to the workplace right she alleged she was entitled to exercise; and
  3. Any workplace right conferred by the Fair Work Act, or any other legislation, is a statutory right, not a contractual right.  Contraventions of statutory rights are dealt with in accordance with the relevant statute and are generally not incorporated into the contract of employment. 

The decision can be read here

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