2021 WAIRC 00189
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2021 WAIRC 00189

CORAM
: INDUSTRIAL MAGISTRATE J. HAWKINS

HEARD
:
FRIDAY, 30 APRIL 2021, ON THE PAPERS

DELIVERED : WEDNESDAY, 7 JULY 2021

FILE NO. : M 111 OF 2020

BETWEEN
:
DAVID SMITH
CLAIMANT

AND

EDITH COWAN UNIVERSITY
FIRST RESPONDENT

AND

STEPHEN KENNETH CHAPMAN
SECOND RESPONDENT

AND

ARSHAD IMAD OMARI
THIRD RESPONDENT

AND

JENNIFER ROBERTSON
FIFTH RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – Redundancy notice period – Summary judgment – Strike out applications – Jurisdiction of Western Australian Industrial Magistrates Court for contravention of s 345 Fair Work Act 2009 (Cth)
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Instruments : Edith Cowan University Enterprise Agreement 2017 (Cth)
Case(s) referred
to in reasons: : Mildren v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Result : Dismissed for want of jurisdiction
REPRESENTATION:

CLAIMANT : MR S. HEATHCOTE (OF COUNSEL) FROM APX LAW
RESPONDENTS : MR R. FRENCH (OF COUNSEL) INSTRUCTED BY HWL EBSWORTH LAWYERS

REASONS FOR DECISION
Background
1 Mr David Smith (Mr Smith) was employed by Edith Cowan University (ECU) as a lecturer in broadcasting from July 2005 until 20 December 2019. Mr Smith’s employment was subject to the Edith Cowan University Enterprise Agreement 2017 (Cth) (EA).
2 On 25 January 2021, Mr Smith filed an amended claim (Amended Claim) against five respondents (the Respondents):
· ECU;
· Steve Kenneth Chapman (Second Respondent);
· Arshad Imad Omari (Third Respondent);
· Scott Henderson (Fourth Respondent); and
· Jennifer Robertson (Fifth Respondent).
3 By consent orders dated 17 February 2021, Mr Smith’s claim against the Fourth Respondent was dismissed.
4 Mr Smith’s claim concerns the payments he received from ECU at the termination of his employment on 20 December 2019. Mr Smith says he has not been paid 22 weeks for a redundancy notice period (RNP) in the sum of $58,715.93.
5 In summary the Amended Claim sets out the context in which his claim was made and alleges that:
· On or about 15 May 2019, ECU sought expressions of interest from its employees for voluntary redundancy.
· Mr Smith made a request to be considered for voluntary redundancy and included two options to end his employment.
· On or about 23 May 2019, ECU approved Mr Smith’s request for voluntary redundancy and elected one of the options proffered by Mr Smith.
· Mr Smith was subsequently provided with a provisional calculation of termination payments which included 22 weeks’ pay in lieu of the RNP pursuant to cl 18.11(b) of the EA.
· By letter dated 23 May 2019, Mr Smith was informed that the RNP would commence on 24 May 2019 and that his employment would cease on 13 December 2019. Mr Smith was not required to work the RNP.
· In or around 15 May 2019, Mr Smith and his supervisor Professor Clive Barstow (Professor Barstow), the Executive Dean of the School of Arts and Humanities (SAH), asked Mr Smith if he would consider working an additional six months to cover the absence of another staff member.
· Professor Barstow assured Mr Smith that:
(i) He would not suffer any financial loss if he decided to stay on; and
(ii) He would receive his full redundancy entitlement, including the 22 weeks’ RNP when his employment ended in December 2019.
· Professor Barstow and Mr Smith made an agreement (Agreement) that:
(i) Mr Smith would continue to work until the end of 2019 to fulfill a specific task; and
(ii) When his employment ended in December 2019, ECU would pay Mr Smith his full redundancy entitlements and his RNP would commence after his employment ceased.
· Mr Smith relied on Professor Barstow’s representation, and the Agreement those representations induced, and worked the extra six months for ECU until 20 December 2019.
· When Mr Smith’s employment ended on 20 December 2019, ECU failed to pay monies due to him pursuant to the Agreement reached with Professor Barstow.
6 In summary, Mr Smith alleges that in not paying him the sum of $58,715.93 from 20 December 2019 ECU:
(a) Breached s 345 of the Fair Work Act 2009 (Cth) (FWA) by not paying him the payment in lieu in circumstances where Professor Barstow, on behalf of ECU, allegedly made a false or misleading representation to Mr Smith that he would not suffer financial loss by extending his employment and working his RNP (s 345 claim);
(b) Breached s 50 of the FWA by contravening a term of the EA (s 50 claim); and
(c) Breached s 323 of the FWA in failing to pay in full Mr Smith’s redundancy entitlement from 20 December 2019 (s 323 claim).
7 With respect to the claims against the Second Respondent, Third Respondent and Fifth Respondent (Individual Respondents), Mr Smith submits that there has been a breach of s 50(1) and s 323 of the FWA because in late 2019 the Individual Respondents became aware of Mr Smith’s discussions with Professor Barstow and were therefore involved in the contraventions in failing to pay Mr Smith’s entitlements in full.
8 Clause 18.11 the EA allowed for payment of voluntary redundancy. Clause 18.13 of the EA dealt with an employee’s request to work all or part of the RNP. Clause 18.13 of the EA provides:
The employee may request to work all or part of the Redundancy Notice Period, and the University may agree, or decline an employee’s request. Where a request is agreed the employee upon termination will receive payment in accordance with Clause 18.11 including any balance of the Redundancy Notice Period not used. (emphasis added)
9 The Respondents submit that cl 18.13 of the EA applies and, in working until 20 December 2019, Mr Smith served out his RNP and has been paid his entitlements in full.
10 The Respondents dispute Mr Smith’s claim and seek summary judgement in favour of the Respondents or, in the alternative, seek to strike out the claim in relation to the claims against the Individual Respondents (the Applications). The Respondents maintain that if successful in the summary judgment application, the strike out application falls away.
11 The Applications were heard on 30 April 2021. At that hearing, I raised the question of whether the Western Australian Industrial Magistrates Court (IMC) has jurisdiction to deal with the claim by Mr Smith pursuant to s 345 of the FWA. During the hearing, Mr Smith conceded that pursuant to s 539 of the FWA the IMC did not have jurisdiction in respect to any breach of s 345 of the FWA. That concession, however, was made subsequent to hearing the opening submissions and evidence in respect to the Applications. As a result, both parties were given leave to lodge and serve any further submissions on jurisdiction and, in particular, whether the alleged misrepresentations of Professor Barstow affected the IMC’s jurisdiction to hear the s 50 claim and s 323 claim. The parties were also required to lodge submissions in respect to the issue of apparent or ostensible authority. Both parties provided the IMC with these further submissions.
12 At the hearing for the Applications the following evidence was tendered as exhibits:
· Exhibit 1 – the EA;
· Exhibit 2 – the affidavit of Professor Barstow sworn on 8 March 2021;
· Exhibit 3 – ECU’s ‘Memo - to all staff’ – annexure CB-1 to the affidavit of Professor Barstow;
· Exhibit 4 – copy of an email from Professor Barstow to Mr Smith dated 2 January 2020;
· Exhibit 5 – excluding [4] - [21] of the affidavit of Ms Donna Michelle Cuthbert affirmed on 15 February 2021;
· Exhibit 6 – the affidavit of Mr Smith’s affirmed 28 April 2021.
13 Both Professor Barstow and Mr Smith also gave oral evidence.
14 Schedule 1 for these reasons for decision outlines the jurisdiction, practice and procedure relevant to the IMC.
Summary Of Evidence On Applications
15 There is no dispute that on 13 May 2019 an email was sent by Professor Barstow to all SAH’s staff (including Mr Smith) concerning redundancies. The email reminded staff that they had until ‘17 May 2019 to submit an expression of interest in voluntary redundancy’. The email set out a table which referred to key dates, activities and outcomes. A copy of that email is annexed at sch 2.
16 The table referred to key dates being between ‘13 - 17 May 2019’ and for ‘[s]taff to submit expression of interest in voluntary redundancy’ with their preferred end date. It goes on to state that on 22 May 2019 a panel would be convened ‘to consider all academic redundancies and finalise end dates’. See sch 2.

17 There is no dispute between the parties that the issue of redundancies had been raised with ECU’s staff prior to 13 May 2019. Mr Smith exchanged emails with Ms Louise Churchill (Ms Churchill), a member of ECU’s Human Resources Department, concerning provisional calculations for voluntary redundancy between 24 April 2019 and 30 April 2019. See Exhibit 5, Annexures DC2.

18 In an email of 24 April 2019, Mr Smith sought a costing on a redundancy. See Exhibit 5, Annexures DC2.

19 In an email of 25 April 2019, Ms Churchill writes to Mr Smith as follows:
Dear David
Thank you for your email. I will contact Payroll in the morning to arrange provisional calculations for you.
As far as the end date goes, staff can include a preference to leave as soon as possible when they submit an expression of interest. Confirmation of the end date will come with Panel’s decision whether to accept the EOI. I understand that the School will try to accommodate EOI staff preferences around finishing up, depending on any teaching/marking from Semester 1. This is something which could be discussed confidentially with the ADD – at the time of submitting the EOI.
I’ll be in touch once I have the calculations from Payroll but please don’t hesitate to contact me in the meantime if you have any other queries or questions following on from my responsethe [sic] above. (emphasis added)
20 Mr Smith then writes again to Ms Churchill on 30 April 2019 where he states:
Hi Louise
I was wondering when I might get the provisional numbers?
Just to clarify if I nominated July 1st and it was accepted as my end date the first part of the redundancy (8 week period) would kick in from that date?
Regards
David Mr Smith (emphasis added)
21 In response, Ms Churchill writes on 30 April 2019:
Dear David
I have now received provisional calculations from Payroll Services.
Payroll need a notional date to base their calculations and you will note they have used 24 May 2019. On the current timeframes, this will be the day after the Panel accept or decline expressions of interest in voluntary redundancy. If an exit date was agreed for 24 May, in your case you would receive payout in full for the 8 week transition period, 22 week notice period and the 32 week severance payment at that time. (emphasis added)
22 Mr Smith writes back later that day, on 30 April 2019, by stating:
Hi Louise,
Thanks so much for providing the figures and I understand a nominal end date was used to work the figures out. I am having a chat with Clive tomorrow about a suggested end date. I have one question. With the teaching and marking I have remaining the earliest I can envisage departing is June 30, in which case the 8 weeks would take us past my work anniversary. Would the extra year service be added to the calculation and would the tax free aspect also be adjusted? (emphasis added)
23 In response, Ms Churchill writes, on the same date:
Dear David
There will be an FAQ around this, but just so you know Panel approved expressions of interest in VR (only) will have the 8 week transition period paid in full as part of the redundancy payment.
If you have an anniversary date at any point between the date of the calcs [sic] (24/5) and the date you leave then an additional two weeks salary would be paid as part of the severance component with the associated preferential tax treatment, however I see from the calculations a commencement date of 16 July – so if you left on 30 June this would not apply.
24 Mr Smith received the ‘Provisional Redundancy Calculation’ Exhibit 5, Annexures DC2.
on or about 30 April 2019. In that Provisional Redundancy Calculation Mr Smith’s final net payment was calculated at $188,885.99. In respect to the ‘[n]umber of Weeks of Redundancy Notice Period (Max 22 weeks)’ this was allocated at 22 weeks with an end date or termination date of 24 May 2019.
25 There is also no dispute that following receipt of the provisional calculation Mr Smith applied for redundancy.
26 On or about 17 May 2019, Mr Smith says he had a conversation with a colleague who was concerned how she was going to cope if Mr Smith left and asked if he would stay until December 2019.
27 Mr Smith deposed that he would speak to Professor Barstow. At [20] of his affidavit, Mr Smith states:
I went to Barstow’s office and recounted the initial part of my conversation with Jo McManus. At this point he interjected and said words to the effect of ‘Let me head you off at the pass. If there is any way you would be willing to stay until December I would be delighted, and not just to help Jo. Of all the areas I am most concerned about how to replace the existing academic it’s broadcasting and if you stayed it would give me six more months to work out how to replace you. It would also help the third-year students to have you teach out the course. The way I see it it’s a win-win situation. We get the support and time we need, and you get 6 months more pay before you get your redundancy’.
28 At [22] of his affidavit. Mr Smith deposed that he:
… understood that we’d agreed that the redundancy process would be deferred until I had completed the additional work he had requested.
29 Mr Smith received a letter from ECU dated 23 May 2019 which advised that his request for voluntary redundancy under the terms of the EA had been approved, that his redundancy notice period would commence on 24 May 2019 and that his employment with the university would cease on 13 December 2019 (Mr Smith had requested two possible leaving dates – either 30 June or 13 December 2019):
All terms and conditions of your appointment will continue until your employment with the University formally concludes.
As a consequence, the redundancy provisions within the Agreement now apply to you. You will receive payment in accordance with Clause 18.11 of the Agreement, including payment in full of the 8 week Transition Period and any balance of the Redundancy Notice period not worked. (emphasis added)
30 Mr Smith, in his oral evidence, confirmed that he received ECU’s letter of 23 May 2019. It was put to him in cross-examination that he knew at the time of this letter that he was working out his RNP. Mr Smith accepted that he received ‘Final Redundancy Calculations’ from ECU on 14 June 2019. He agreed he was aware of the difference between the calculations in this document to the calculations he received on or about 29 April 2019. In particular, Mr Smith conceded that he was aware that the number of weeks entitlement for redundancy, being a maximum of 22 weeks, was shown as zero on the calculations dated 14 June 2019 and that the final net payment to him had reduced from $188,885.99 to $153,679.27.
31 Mr Smith claimed he was not concerned with that discrepancy as he thought it did not take account of the Agreement he had entered into with Professor Barstow.
32 Mr Smith also received revised calculations from ECU dated 19 August 2019. That document showed the termination date as 20 December 2019 as in the previous Final Redundancy Calculations. Again, Mr Smith accepted that calculation provided a zero number of weeks for redundancy payments with the final net payment increasing slightly from the June 2019 calculations from $153,679.27 to $153,964.27.
33 It was put to Mr Smith that he had sufficient time from receipt of the initial calculations and the subsequent calculations from ECU to raise the discrepancy in the amounts with ECU and in particular the Human Resources Department (HR). Mr Smith suggested that his workload was too significant to allow for that. On Mr Smith’s own evidence, it was not until 7 November 2019 that he again went to speak to Professor Barstow in respect to the discrepancies in the two calculations received from ECU. In effect, Mr Smith conceded this delay but maintained he had an agreement with Professor Barstow. Mr Smith maintained that Professor Barstow was above HR. Transcript, 54.

34 Nonetheless, in Mr Smith’s affidavit evidence he confirmed that in May 2019 when he received the confirmation from ECU that he was accepted for voluntary redundancy with an end date in December 2019, he was provided with a new payment advice which showed a net sum of $153,964.27, being a shortfall of $35,185.95 after tax. Exhibit 6 [40].
As a result, Mr Smith says he exchanged emails with Ms Churchill. Mr Smith conceded in cross-examination that on 14 June 2019 he met with Ms Churchill. In that meeting Mr Smith maintained that he told Ms Churchill that Professor Barstow was telling his staff that he wanted to retain them until December 2019, and they would get the redundancy sum contained in the Provisional Redundancy Calculation HR had supplied. Mr Smith maintained that Ms Churchill said words to the effect that Professor Barstow was wrong to do this as HR intended to deduct the 22 weeks’ redundancy notice.
35 At [45] of Mr Smith’s affidavit he maintained that he ‘did not believe HR had the authority to override Barstow’s wishes’. However, Mr Smith does not support this assertion with any other evidence and does not explain this belief in light of the correspondence he received from ECU in respect to his redundancy.
36 Further, it was not until 26 November 2019 that Mr Smith deposes that he wrote to members of the HR team to explain that he had stayed at Professor Barstow’s request and according to the Agreement.
37 At [49] of Mr Smith’s affidavit he states:
At no stage did I agree to work out my notice period – I had an agreement to the contrary with Barstow, my Executive Dean.
38 Mr Smith suggested in his cross-examination that Professor Barstow was very specific and was saying:
… ‘You will do six months more. You’ll get paid for those six months’ and obviously superannuation is part of the payment process. And then [Professor Barstow] said ‘You will get the sum that you’ve been told in your provisional payment’. Transcript, 56.

39 This was more expansive evidence than set out at [20] of Mr Smith’s affidavit.
40 Mr Smith agreed he received an email from Professor Barstow dated 2 January 2020 which states:
Hi David
I am happy to put into an email what I have discussed with you and the basis of my discussions with HR, which is pretty much around the issues that you highlight.
As you point out, had I understood the financial ramifications of any staff member staying on for an extra six months I would at least have pointed this out so they could have made a decision partly based on accurate financials. I honestly thought that offering you an extra six months of work would not disadvantage you financially, in fact I assumed it would give you six months extra salary, time to apply for a new position while employed at ECU for an extra six months, and an extra period of employment to add to your calculations of redundancy.
It is not my job to give financial advice of course and I was careful not to do this with anyone in the process of change. This is why I agreed for the School to cover the costs of a financial adviser to help affected staff make decisions based on the rules around the EB. My job is to look after the interests of the students first which is why in yours and Dianes case we agreed an extra six months to cover a difficult period of transition, for different reasons obviously.
I know that some of my affected staff did take financial advice during the change process, and on the basis of that decided not to stay for an extended period where it might have advantaged the students in similar circumstances. I assumed therefore that they became aware of the financial ramifications and decided to leave mid year.
My discussions with HR were around your individual case based on the problems that Jo was facing at the time. You and I both thought this solution was an equitable way of solving a difficult problem at the time and our discussions were collegiate and professional and for all the right reasons. As I say, had I or you realised the financial implications of this, the discussions might never have taken place and I would have respected that and would have had to find an alternative way of managing the situation.
I understand HR’s [point] of view too in that this would technically be a double payment and set a precedent for anyone taking redundancy, but I did put the special case forward because we both had Jo’s interestsx at heart.
Clive
41 Professor Barstow’s affidavit was tendered in evidence as exhibit 2 and he was the subject of cross-examination at the hearing of the Applications. At [12] of Professor Barstow’s affidavit, he makes clear that he ‘did not make any comments, representations or guarantees to Mr Smith about what his redundancy entitlements would be when the voluntary redundancy took effect or any financial impact of [Mr Smith’s] decision to work until December 2019’. He maintained that he was ‘not authorised to make representations of that nature on behalf of’ ECU and ‘did not understand how Mr Smith’s redundancy payment might be impacted by [his] decision to elect an end date of December 2019’.
42 Professor Barstow accepted that in Mr Smith staying until December 2019 would be helpful so that his colleague, Ms Joanna McManus, had support within the broadcasting department. Professor Barstow’s affidavit and email of 2 January 2020 maintained that he told Mr Smith that he should obtain independent financial advice, albeit that working until December 2019 would likely give him the benefit of working an additional six months as a full-time employee of the ECU during which he would obtain superannuation contributions on his salary and could apply for alternative employment.
43 In cross-examination, Professor Barstow was challenged as to his authority to enter any agreement with Mr Smith. Professor Barstow confirmed that he was responsible for managing the budget for SAH. That 95% of that budget was concerned with staffing costs and that he had the responsibility and authority to hire and fire staff. It was put to Professor Barstow that it was he who suggested that Mr Smith stay on. Professor Barstow maintained that it was an agreement reached Transcript, 36.
but ultimately Professor Barstow confirmed that it was he who put the proposal on the table for Mr Smith to accept. Transcript, 36.
Further, Professor Barstow confirmed that he was responsible for SAH’s staff’s day-to-day management but HR could be involved if it had anything to do with salaries. Professor Barstow confirmed that he was not authorised to bargain with employees or make representations on behalf of ECU on any entitlements the employee would receive upon termination of employment. Transcript, 40.
In addition, he confirmed that he did not have authority to vary the arrangements ECU had with employees under the EA, nor had he ever sought to do so. Transcript, 40.

44 He confirmed that he did not seek to do so in relation to Mr Smith and nor did he represent to Mr Smith that he ever had any authority to do so. He confirmed that he did have discussions with Mr Smith about extending his contract to the end of the year but maintained that he always advised Mr Smith and any other staff to seek their own financial advice about doing so, as he was not in a position to give any financial advice but that HR was in a position to provide such advice.
45 There is clearly a dispute on the evidence as to exactly what was stated by Professor Barstow to Mr Smith in their meeting on 17 May 2019.
Parties’ Submissions On Jurisdiction
46 As to the jurisdiction of the IMC, the parties accept that, by operation of s 539(2) of the FWA, the IMC does not have jurisdiction in respect to contraventions of s 345 of the FWA.
47 Mr Smith concedes that ‘the element of the Claim that claims a remedy for ECU’s contravention of section 345 is abandoned’. Nonetheless, Mr Smith maintains that the IMC can still make findings of fact to the effect that Professor Barstow induced Mr Smith to remain in employment by offering, on ECU’s behalf, to pay Mr Smith at the end of his employment the amount to which he became entitled in May 2019. As a result, Mr Smith says the IMC has jurisdiction to deal with Mr Smith’s s 50 claim and s 323 claim.
48 The Respondents do not dispute that breaches of s 50 and s 323 of the FWA being expressly referred to in items 4 and 10 of the table at s 539(2) column 3 of the FWA are within the jurisdiction of the IMC. However, the Respondents make reference to Mr Smith’s Amended Claim wherein he alleges that Professor Barstow, on behalf of ECU, represented to Mr Smith that he would receive his full redundancy, including the 22 weeks’ RNP, when his employment ended in December 2019. The Respondents maintain that Mr Smith claims that this representation was misleading because it had a tendency to, and did in fact, lead Mr Smith to believe he would be paid the 22 weeks’ payment in lieu of notice when his employment terminated. The Respondents note that Mr Smith alleges that the representation, when judged in a context, where ECU failed to provide clear and accurate information about Mr Smith’s redundancy left Mr Smith more reliant on Professor Barstow’s representations.
49 The Respondents submit that, given Mr Smith’s Amended Claim, there can be no contravention of s 50 or s 323 of the FWA unless it was first found that:
(a) Professor Barstow’s alleged misrepresentations occurred; and
(b) That it was made on behalf of ECU and bound ECU to defer the commencement of the RNP to Mr Smith’s final day of employment.
50 As a result, the Respondents argue that the s 50 claim and s 323 claim only arise as a consequence of the success of Mr Smith’s s 345 claim.
51 Alternatively, the Respondents submit that the exclusion of jurisdiction by s 539 of the FWA for state courts to determine s 345 claim suggests that it was intended that only Federal Courts could exercise jurisdiction in respect of the type of composite claims that Mr Smith brings against the Respondents.
Parties’ Submissions On Ostensible Authority
52 The parties were also required to provide written submissions concerning the authority of Professor Barstow to bind ECU.
53 The Respondents make clear that such submissions are only relevant if the IMC considered it did have jurisdiction to deal with the remainder of Mr Smith’s claims.
54 At [54] - [55] of Mr Smith’s Amended Claim, Mr Smith alleges that Professor Barstow made representations on ECU’s behalf within his actual or apparent authority, or with the express or implied consent or agreement of ECU. The particulars of this are set out at [57] of Mr Smith’s Amended Claim, being a reference to an email from ECU dated 25 April 2019 which advised Mr Smith that arrangements for end dates would be arranged by the authority or relevant schools. As a result, Mr Smith claims that by two emails it clothed Professor Barstow with authority to make the alleged representations. In addition, on the issue of Professor Barstow’s authority, Mr Smith says that Professor Barstow’s evidence was to the effect that Professor Barstow:
· bore responsibility for SAH’s structure, drafting budget, hiring/firing of employees;
· reported to the Vice Chancellor; and
· was not subject to the HR’s directions.
55 Mr Smith concedes that it is fair to contend that he knew ECU’s HR staff took a different approach to his entitlements than Professor Barstow did. Mr Smith merely submits that he ‘was aware’ of the extent of Professor Barstow’s authority to displace a decision that the HR might take. However, this contention does not detail how, as a matter of law, Professor Barstow could by his actions bind ECU.
56 The Respondents contend that ECU’s email of 25 April 2019 set out at [19] above simply made clear that communication about an end date could occur with the Associate Dean Discipline (ADD) or relevant school but the ultimate decision lay with the panel.
57 Further, the Respondents argue that if the email of 25 April 2019 was to confer upon Professor Barstow’s authority to defer the commencement of the RNP beyond the usual commencement date then clear language was required.
Parties’ Submissions On Applications
58 The primary focus of the Respondents’ Applications concerns the application for summary judgment, rather than the strike out application.
59 The Respondents allege that Mr Smith suggests because it was not he who requested to work out his RNP then cl 18.13 of the EA does not apply. The Respondents argue that there is no clause of the EA that contemplates an additional entitlement to employees because it was ECU and not Mr Smith that requested he work out the RNP. Further, the Respondents submit that whether it was ECU or Mr Smith who made the request is irrelevant, and therefore any alleged contravention of s 50 of the FWA has no reasonable prospects of success.
60 As to the remainder of the claim pursuant to s 323 of the FWA, the Respondents submit that irrespective of what was said between Professor Barstow and Mr Smith, the overwhelming documentary evidence emanating from ECU to Mr Smith made clear upon termination on 20 December 2019 that Mr Smith would not receive the amounts he claimed. This is because the Respondents argue that cl 18.13 of the EA applies, and in working until 20 December 2019 Mr Smith served out his RNP and has been paid his entitlements in full. The Respondents submit that it would not be reasonable to find that Professor Barstow could make an individual arrangement on behalf of ECU with Mr Smith.
61 The Respondents submit that the overwhelming documentary evidence in this case makes clear that there is no reasonable prospects of success and therefore the Respondents’ applications should be granted.
62 Mr Smith’s contends that a live issue for determination at trial is what agreement was reached between Mr Smith and Professor Barstow, and who initiated that agreement.
63 Mr Smith claims that following receipt of written information from ECU about his redundancy entitlements, he had discussions with Professor Barstow concerning the logistical challenges that would arise in SAH if his employment terminated in May 2019.
64 Mr Smith submits that Professor Barstow asked him to continue his employment with ECU on the promise that all of his redundancy entitlements could effectively be deferred for approximately six months and, as a result, Mr Smith agreed to stay on.
65 Mr Smith says that despite having received documentation from ECU that indicated it would regard the further employment as part of his RNP, he believed that Professor Barstow had authority to make the necessary decisions for ECU and that he was not subject to what was set out in the documentation from ECU.
66 In effect, Mr Smith submits that Professor Barstow’s representations were with the ostensible authority of ECU, and but for those representations Mr Smith would not have continued to work until December 2019. Mr Smith alleges that the agreement he reached with ECU through Professor Barstow was that:
(a) his employment would be terminated by reason of redundancy approximately six months after the date on which it otherwise would have terminated;
(b) he would be paid full redundancy-related entitlements on termination including, but not limited, to 22 weeks’ pay in lieu of notice; and
(c) he would be earning additional money by continuing to work apart from superannuation contributions and increases in approved leave.
67 Mr Smith says he agreed to those terms and they bound ECU, and that ECU was obliged to apply the redundancy terms of the EA.
68 Mr Smith alleges that ECU refused to honour the agreement made with Professor Barstow on its behalf and therefore contravened s 50 and s 323 of the FWA. Mr Smith also alleges that the Individual Respondents were involved in the contraventions. He alleges that the Second Respondent and Third Respondent’s involvement arose due to knowledge acquired via an email dated 7 December 2019 and the Fifth Respondent due to an email of 26 November 2019.
69 Mr Smith submits that as the claim turns on the facts and as some key facts are disputed it is not possible for the Court to properly assess the merits of the claim without a hearing. As a result, Mr Smith maintains that the summary judgment and strikeout applications should be dismissed.
Issues For Determination
70 The following issues require determination:
(a) Whether the IMC has jurisdiction to determine the s 50 claim and s 323 claim in the context as alleged by Mr Smith, given the abandonment of the claim under s 345 of the FWA. If the answer to this question is in the affirmative, the following issues arise for determination;
(b) Was an agreement reached between Mr Smith and Professor Barstow in respect to his continued employment beyond 24 May 2019;
(c) If such an agreement was reached, did that agreement bind ECU;
(d) The proper construction of cl 18.13 of the EA and whether its application is dependent upon the request to continue to work being made firstly by Mr Smith;
(e) Whether summary judgment applies in the circumstances; and/or
(f) Whether strike out is open in the circumstances.
Determination On Jurisdiction
71 Mr Smith accepts that the IMC does not have jurisdiction to determine a contravention of s 345 of the FWA. Section 345 of the FWA provides:
345 Misrepresentations
(1) [when persons must not make a false or misleading representation] A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
72 Although having conceded that the element of the Amended Claim that claims a remedy for ECU’s contravention is abandoned, Mr Smith by his submissions still says that the IMC is not precluded from making findings of fact that Professor Barstow induced Mr Smith to remain in employment by offering, on ECU’s behalf, that his RNP would commence in December 2019. As such, Mr Smith says that the IMC still has power to hear and determine his s 50 claim and s 323 claim.
73 When judged objectively, the entirety of Mr Smith’s claim and evidence centres on the alleged representations made by Professor Barstow and the extent to which they were misrepresentations and induced the agreement he reached with Professor Barstow on or about 15 May 2019. In particular, the representations he says Professor Barstow gave to him at that time was that he would not suffer any financial loss if he stayed and would receive his full redundancy entitlement of 22 weeks’ RNP when his employment ended in December 2019.
74 This alleged representation is the central plank of Mr Smith’s case. It is based on this representation that Mr Smith relies on to pursue his s 50 claim and s 323 claim. To find for Mr Smith on his s 50 claim and s 323 claim, the IMC would need to find that:
(a) Professor Barstow’s alleged misrepresentations occurred;
(b) That it was Professor Barstow’s alleged misrepresentations that induced Mr Smith to remain in employment with ECU from 23 May 2019 to 20 December 2019.
(c) That such alleged misrepresentations were made on behalf of ECU.
(d) That such alleged misrepresentations binding ECU amounted to ECU requesting Mr Smith to remain at work beyond 23 May 2019 and was not an agreement by Mr Smith to work out his RNP.
(e) That such alleged misrepresentation bound ECU to defer the commencement of the RNP to 20 December 2019.
(f) As such, this would affect whether the IMC could find a breach of s 50 of the FWA occurred as Mr Smith alleged in those circumstances ECU could not rely on cl 18.13 of the EA.
75 There is a clear intention expressed in s 539(2) of the FWA, and the table attached to that section, that contraventions of s 345 of the FWA are not able to be heard and determined by the IMC.
76 Mr Smith’s entire claim relies on the determination of what representations were made by Professor Barstow to Mr Smith and finding that they were misrepresentations.
77 For the IMC to make such findings, it would need to hold that there had been a contravention of s 345 of the FWA, which the IMC is excluded from doing.
78 This is not a case where Mr Smith has separate and distinct claims against ECU which do not rely on making findings concerning s 345 of the FWA, despite Mr Smith abandoning his s 345 claim.
79 Further, this is not a case where in finding that Mr Smith’s claim is not within the jurisdiction of the IMC precludes him from pursuing his claims. Clearly, the Federal Court is given jurisdiction, pursuant to s 539(2) of the FWA, to determine not only contraventions of s 345 of the FWA but also of s 50 and s 323 of the FWA.
80 Accordingly, I am satisfied the IMC lacks jurisdiction to determine Mr Smith’s claim.
81 Having reached that point, it is unnecessary and imprudent in my view to make alternative obiter findings on the remainder of the Respondents’ Application.
82 I will order therefore that the claim is dismissed for want of jurisdiction.
Orders
83 For the reasons set out above, I make the following orders:
1) That the claim is dismissed for want of jurisdiction.
2) By consent of the parties, the reasons for decision are published in their absence.



J. HAWKINS
INDUSTRIAL MAGISTRATE




Schedule 1 – The Jurisdiction, Practice And Procedure Of The Western Australian Industrial Magistrates Court
Jurisdiction and burden of proof
[1] An employee, an employee organization or an inspector may apply to an eligible State or Territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The IMC, being a court constituted by an industrial magistrate, is an ‘eligible State or Territory court’: FWA s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include contravening a term of the National Employment Standards (NES) and failing to pay in full an amount owed under the FWA: FWA s 44(1), s 323 respectively.
[5] An obligation upon an ‘employer’ is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA s 12, s 14, s 42, s 47. A NES entitlement of an employee is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA s 13, s 42, s 47.
Contravention
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for ‘an employer to pay [to an employee] an amount … that the employer was required to pay’ under the modern award (emphasis added): FWA s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA includes:
· The Core provisions (including s 44(1) and s 45) set out in pt 2 - 1 of the FWA: FWA s 61(2), s 539.
[8] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA s 545(3).
[9] In contrast to the powers of the Federal Court and the Federal Circuit Court, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[10] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.
[11] In the context of an allegation of the breach of a civil penalty provision of the FWA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences [362].

Schedule 2 – Email Dated 13 May 2021