Details 

Created: 09 July 2020

The Commission has dismissed a claim for a denied contractual benefit by an employee of a stevedoring company who contended that by standing him down, the company had breached the implied terms of his contract of employment.

The applicant commenced employment as a Guaranteed Wage Employee in May 2018.

The terms of the applicant’s contract provided that, under the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2016 (Agreement):

• he would be offered work on a “totally irregular basis” according to the company’s requirements which varied each day;
• the applicant had to make himself available under the Agreement; and
• his ongoing employment was conditional on work being available, his availability to work and meeting the respondent’s performance standards.

On 1 April 2019, the applicant was stood down from work following a safety incident and was subject to a workplace investigation but returned to work on 17 May 2019. During the time of the stand-down, the applicant continued to receive his minimum guarantee payment under the Agreement.

Contentions

The applicant contended that by standing him down between 1 April and 17 May 2019, the respondent breached the implied terms of the applicant’s contract and was liable for any loss or damage suffered by him. The applicant argued that:

1. it was an implied term of his contract that the respondent had to cooperate with him;
2. the respondent had a general duty of good faith towards him; and
3. it was an implied term of his contract that the respondent would provide him with the opportunity to work and earn remuneration and would not act in a manner to deprive him of the benefit of his contract.

The respondent maintained that no such terms could be implied into the applicant’s contract of employment.

Consideration

Senior Commissioner Kenner rejected the applicant’s claims, distinguished several authorities advanced by the applicant, and noted that the contract was not of a kind where the applicant was to be afforded the opportunity to work, as in the case of an actor or entertainer.

Kenner SC found that there was nothing in the contract to suggest that the employer would be under any contractual duty to do other anything other than pay the employee under the contract and the Agreement.

Kenner SC also found that even if an implied term of good faith did apply to the applicant’s contract, it was not evident how a stand-down (on pay) whilst the employer investigated a workplace safety incident, would breach such a term.

The application was dismissed.

The decision can be read here.