100213492

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ROBERT GALLOTTI

APPLICANT

 -v-

 ARGYLE DIAMOND MINES PTY LTD TRADING AS ARGYLE DIAMONDS

RESPONDENT

CORAM COMMISSIONER S J KENNER

DATE THURSDAY, 24 OCTOBER 2002

FILE NO/S APPLICATION 1455 OF 2001

CITATION NO. 2002 WAIRC 06828

_______________________________________________________________________________

Result Application dismissed

Representation

Applicant Mr M Richardson as agent

Respondent Mr S Ellis of counsel

_______________________________________________________________________________

Reasons for Decision

1. By this application pursuant to ss 29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 (“the Act”) the applicant claims he was harshly, oppressively and unfairly dismissed and denied certain contractual benefits by the respondent.  The applicant seeks reinstatement and an order for loss of the remuneration in the unfair dismissal claim.  In the contractual benefits claim, seeks six months salary in lieu of notice is claimed and additionally, a claim described as “lost salary and benefits from the date of dismissal to the date of reinstatement at the rate of $55,000 per annum”.

2. The respondent denies the applicant’s claims and moreover, denies that the applicant was dismissed, in order to attract the jurisdiction of the Commission to entertain the applicant's unfair dismissal claim.

3. Given that the respondent raised as a threshold question whether there was a dismissal as a matter of fact and law, and given that is a necessary pre-requisite to determining at least the unfair dismissal claim, I turn to a consideration of that matter in the first instance.  Of course, whether or not there was a “dismissal”, for the purposes of the Act and the Commission's jurisdiction, is not determinative of the applicant's claim for contractual entitlements.  I will deal with that matter later in these reasons.

Was there a Dismissal?

4. The facts relevant to this particular issue are essentially these.  The applicant commenced employment with the respondent on or about 28 June 1999 as an Information Technology Systems Officer (“ITSO”).  The applicant was engaged on what was described as a temporary employment basis, from 28 June 1999 to 31 December 1999.  The contract of employment was to expire at the end of that period, unless a new contract was entered into.  During the course of that contract, and despite its nominated term, either party could terminate the contract of employment during the period specified, by the giving of one months notice.  Given the significance of the terms of the appointment, both for the purposes of the preliminary issue and indeed also the contractual benefits claim, the applicant's initial letter of appointment dated 10 June 1999, formal parts omitted, is set out in full as follows:

“We are pleased to confirm our offer of temporary employment for the position of IT Systems Officer at Argyle Diamonds effective 28 June 1999 until 31 December 1999.  Your employment with Argyle will cease at the expiry of this period, unless a new contract is entered into.

Your Remuneration & Conditions

Salary    Your base salary will be $42,000 per annum.

Duties  You will perform such duties and exercise such powers in connection with the business of the Company as the Management of the company shall from time to time require.

Hours of work Your hours of work will nominally consist of 36.25 hours per week.  However, this may vary from time to time to meet operational requirements of your position or by agreement between you and your Manager.

Commute Allowance We will pay you a commute allowance to compensate for the time you spend on site, which may increase or decrease depending on the commute roster that you work.  Each commute allowance reflects the particular requirements of that commute roster, including the time you are required to work and the period of duty, payment of public holidays, travelling time and late arrival payments, and where appropriate shift work.

The commute allowance will also take into account the market rates payable for similar commute rosters that apply to remote sites in the mining industry in Western Australia.

Living Away From While you are living away from home we will pay

Home Allowance you a Living Away From Home Allowance to compensate you for the number of nights spent on site as per your roster.  This allowance is currently tax free.

This allowance compensates you for all the disabilities associated with living and working at Argyle, including isolation, heat, dust, humidity, tropical environment and the lack of normal amenities found in a town or city dwelling.

Method of Payment  Your salary will be paid on a monthly basis, on the working day immediately prior to the 20th of each month, directly to a Bank Account of your choice.

Location  You will be based in the Perth office or other Argyle Business location as required for this position.

Your Welfare at work

Safety  For the safety of yourself and your peers you are required to adhere to all safety requirements.

Fair Treatment System  There may be times when you will disagree with decisions that we have made. 

We respect your freedom to challenge decisions and query the way that we do things.  To help us resolve differences we are required to follow the Fair Treatment System as documented in the Human Resources Policies and Procedures.

Licences  In performing your role we require you to be in possession of an appropriate current certificate or license when operating or driving company equipment.

Smoking  We support a smoke-free workplace policy that designates a number of work areas as non smoking.  You are required to observe restrictions on smoking in these areas.

Staff Benefits

Annual Leave  In addition to recognised public holidays granted each year, an entitlement of twenty (20) days annual leave is established after completion of each year of continuous employment with Argyle.

Your annual leave conditions are outlined in the Annual Leave Human Resource policy.  In accordance with this you are encouraged to take a minimum of one week’s leave with respect of each year’s entitlement.  The balance may be accumulated for a maximum of two years.

Sick Leave  You are able to take sick leave on any occasion that you are sick or injured in accordance with the Human Resource policy.  A doctor’s certificate or other evidence of illness may be required.  To plan for cover in your absence, we require you to inform us as soon as possible if you are unable to attend work.

Superannuation  We will pay superannuation contributions as required under the Superannuation Guarantee Legislation into a Company nominated Preserved Superannuation Fund on your behalf.  This is currently equivalent to 7% of your gross salary.

Your Commitment to Argyle

Vision  We expect you to join with your peers in making Argyle a successful diamond business with a world reputation for delivering value to our customers and generating superior returns to our shareholders.  Together we can crate our future success by continuously improving our efficiency and skills.  By doing better today we will create opportunities for tomorrow.

Training  To ensure the optimum use of resources throughout the Operation we expect you to participate fully in the training and development program that we will plan with you.  By participation you will be able to develop and enhance your skills and through application of these skills you will be able to add value to the resource.

Security Conditions  Argyle’s product is small and valuable.  To protect our resources there are specific security conditions relating to employment with Argyle.  These conditions are attached to this offer (Appendix A).

Company Rules & It is a condition of employment that you will not

Regulations divulge any information regarding Argyle’s affairs without authority.  Argyle is entitled to know and benefit from the results of all your work.  The company is also entitled to take out any letters Patent relating to your work.

Argyle’s Standard Conditions of Appointment is annexed hereto and marked Appendix B.

Tenure  We require you to give one month’s notice of your intention to leave Argyle.  Similarly, we will give you one month’s notice if we intend to terminate your employment before the expiry date in this contract.

In the event of serious misconduct, we will terminate your employment with Argyle immediately without notice.

Conditions  Your conditions of employment are documented in the Human Resources Policies and Procedures.  These Conditions of Employment are subject to change to meet the changing needs of the business and environment.  Any changes that are to be made will be undertaken after a reasonable period of notification and consultation with you.

We look forward to your contribution as we achieve Argyle’s mission of maximising the returns to our shareholders by creating an environment where everyone accepts accountability for, and willingly contributes to safely achieving much higher productivity at much lower cost.

Please indicate your acceptance of the position and the employment conditions by signing the duplicate letter and returning to Human Resource Services by 18 June 1999.”

5. It is common ground that subsequently the applicant and the respondent entered into further contracts in identical terms, save for the commencement and expiry dates.  A bundle of such contracts were tendered as exhibit A9.  The respective dates of the subsequent contracts were 27 July 1999 to 31 March 2000; 1 April 2000 to 30 September 2000; 1 October 2000 to 31 March 2001; 1 April 2001 to 30 June 2001; and 1 July 2001 to 31 July 2001.

6. The applicant testified that he responded to an advertisement placed by the respondent in early June 1999 for a position of Help Desk Support, which the applicant understood to be for an information technology specialist to deal with queries and assist persons within an organisation with computing related problems.  The applicant was interviewed by a consultant and as a result of a further interview with the respondent, including the respondent's manager in this area, Mr Walsh, accepted an offer of employment.

7. The applicant testified that he commenced employment and shortly prior to the expiry of the second contract due to complete on 31 March 2000, he commenced looking for alternative employment.  The applicant said that not long after this, he was approached by Mr Walsh and was queried as to why he was seeking other employment.  The applicant testified that he was doing so because his contract was coming to and end and he needed to look for other work.  It was the applicant's evidence that Mr Walsh said to him words to the effect that “the position was permanent and the contracts were only a formality”.  I pause to observe that it was common ground that the reason for the overlapping dates in the first and second contracts, was for the purposes of ensuring continuity of employment over the “year 2000” computing phenomenon, causing consternation worldwide at about that time. 

8. The applicant testified that for all intents and purposes, his employment with the applicant was continuous, despite the existence of the series of contracts referred to above.  He testified that for the purposes of annual leave, annual leave accruals were not paid to him at the end of each contract period but accrued on a continuous basis.  The applicant said he took annual leave as if he was in continuous employment.  It was also the applicant's evidence in cross-examination, that there was not any discussion with Mr Walsh at the time of the ending of each contract.  The applicant testified that some of his contracts were put in his “in-tray” at the office.

9. As a consequence of a performance review meeting in March 2001, the applicant was informed by Mr Walsh that his contract was going to be renewed for a further three months only.  The applicant was also aware that the contracts of two other ITSO's were going to be renewed for a period of three months only, from 1 April 2001.  The applicant testified that he told Mr Walsh that he was hoping for an extension for six months.  The applicant said he was informed by Mr Walsh that the shorter period would take his contract through to the beginning of July, when new shift arrangements would be introduced.  The applicant said he thought initially that this made some sense but testified that he still thought he would not get his contract renewed at the end of the three month period.  The applicant testified in cross-examination, that he was aware that his employment would not continue, if his staff contract was not renewed.  This particular contract was for the period 1 April to 30 June 2001.

10. The applicant gave considerable evidence about his performance reviews and another incident, involving another employee Mr Bath, in which it was alleged that Mr Walsh assaulted Mr Bath, another ITSO, which event was said to be witnessed by the applicant.  I do not propose to deal with the detail of these matters, as they are not relevant to the disposition of the preliminary issue.

11. On or about 3 June 2001, it came to the attention of the applicant, that the respondent was seeking to appoint another computing employee in the position of Support Officer.  This was apparently a position for a period of six months.  The applicant took the view that the position description fitted that of the ITSO position.  The applicant testified that he obtained the advertisement for this position, at his home e-mail account, in relation to which he had established certain specified search criteria.  This had apparently occurred on other occasions, during the course of the applicant's employment with the respondent.

12. The next relevant event occurred on or about 13 June 2001.  A discussion took place on the applicant's evidence, between he and Mr Walsh.  The applicant said Mr Walsh invited him into his office and told him that his contract would not be renewed, or words to that effect.  The applicant told Mr Walsh that he thought his contract would be renewed for a period of six months and that he considered he had addressed the performance issues raised with him earlier.  The applicant's evidence was Mr Walsh told him that there was a breakdown in communication between them and referred to various other incidents that had occurred in the past.  At the conclusion of this meeting, the applicant testified Mr Walsh told him that as the respondent was supposed to give him four weeks notice and as there was only two weeks left remaining on the then contract, he would give the applicant a further six weeks, taking the contract to 31 July 2001.

13. A copy of the final contract, dated 13 June 2001 and signed by the applicant on 18 June 2001, was put to the applicant in cross-examination.  The applicant accepted that the document put to him had been read and understood by him at the time and he accepted the terms set out therein.  The applicant also accepted as a proposition put to him, that by the terms of the contract dated 1 July 2001, that constituted an agreement that he entered into, for his employment to come to an end on 31 July 2001.

14. Prior to entering into this final agreement, the applicant testified that he obtained advice from a registered industrial agent, indeed the same registered industrial agent that represented him in these proceedings.  After consulting with those advisers, the applicant entered into the final agreement as I have mentioned, by his signature on 18 June 2001. Some time later, on or about 25 June 2001, the applicant wrote to Mr Walsh a letter in the following terms, formal parts omitted:

“I refer to our discussion on Wednesday 13 June 2001 at approximately 8.30am regarding your new offer of one month’s employment for the period 1st July to 31st July 2001.

During the course of our discussion you advised that the above mentioned contract would not be renewed on its expiration and consequently I should treat the period 1 July 2001 to 31 July 2001 as four weeks notice of termination.

Please confirm in writing, that I have been given notice of termination and your reason for terminating my employment.

Your prompt response in this matter will be greatly appreciated.”

15. On or about 3 July 2001, a conversation took place between the applicant and Mr Walsh.  Mr Walsh had received the applicant's letter, which was annexure RG8 to exhibit A2, the applicant’s main witness statement.  Mr Walsh was curious as to the content of this letter, and told the applicant his employment was not being terminated as he was being offered a separate contract.  The applicant was not being given notice of termination of employment and the contracts he was employed under, made no reference to any further employment.  The applicant also testified that Mr Walsh told him that he was not receiving a further contract because the ITSO position had changed and the applicant was no longer suitable.

16. As a consequence of these events, the applicant invoked the respondent's Fair Treatment procedure, which is an internal review mechanism accessible by employees.  The thrust of the applicant's evidence about this process was his contention that the real reason for not having his contract renewed was because he witnessed the event involving Mr Walsh and Mr Bath.  One of the issues raised by the applicant, which he testified was suggested to him by the respondent's human resources department, was to seek permanency of employment rather than being appointed on a staff contract basis.  It should also be observed, that the applicant's completion of the Fair Treatment system documents, contained at annexure RG 10 to exhibit A2, described the issue he had with the respondent as being the “non-renewal of his contract”.  The outcome that he sought from the process was a “permanent position (not staff contract)”.

17. The applicant also gave evidence about his involvement in an investigation concerning the incident between Mr Bath and Mr Walsh.  Mr Bath had made a formal complaint about Mr Walsh's conduct, and referred to the applicant being in the vicinity at the time of the incident.  As a result, a person from the respondent's human resources department contacted the applicant to speak with him about the matter.  Prior to this, the applicant said Mr Bath had contacted him to let him know that he may receive such a telephone call.  The applicant's evidence was that he told Mr Bath that as he was on a staff contract he did not want to get involved and what he meant by this, was that he would not have his contract renewed if he gave a statement damaging to Mr Walsh.  Similar sentiments were expressed by the applicant to the respondent's human resources officer when he spoke to her about the incident.

18. There was also evidence from the applicant in cross-examination concerning his dealings with one of the respondent's human resources advisers, Ms Taylor.  This arose in the context of the fair treatment process, in relation to which, Ms Taylor was to take notes of the various meetings.  The evidence was that the applicant on several occasions asked Ms Taylor whether she was a contract employee or not.  The applicant admitted asking Ms Taylor these questions, because of his belief that if she was on a staff contract, she may be influenced to take inaccurate notes, out of fear that her contract may not be renewed, and her employment would cease as a result.  This was confirmed in Ms Taylor’s evidence.  The applicant further conceded in cross-examination, that he was in the same position and was aware that his employment would not continue unless his contract was renewed.

19. At the conclusion of the Fair Treatment process, the senior management of the respondent who reviewed the applicant's position concluded that the applicant was not unfairly dealt with and the respondent's decision that the applicant's employment cease at the expiration of his last agreement on 31 July 2001 stand.  The applicant's employment came to an end on this day.

20. Mr Walsh holds the position of Superintendent Information Systems and Technology Operation Services with the respondent.  Mr Walsh is ultimately responsible for the work of the ITSO's.

21. Mr Walsh gave evidence about the restructuring of the respondent's information technology department to introduce what was called “thin client”, being a technology for delivering applications remotely.  He testified that this project commenced in about October 1999 and was ultimately “rolled out” in about February 2001.  The effect of this change on Mr Walsh's evidence, reduced the number of ITSO's required to service the respondent mine site at Argyle.  Additionally, Mr Walsh said that the competencies for the role of ITSO'S changed, in that in particular they would be required to work unsupervised and a greater emphasis was placed on providing what he termed business solutions, rather than simply technical skills. 

22. It was Mr Walsh's evidence that he regularly told the ITSO's about the introduction of these changes.  He testified that the need for continued improvement in performance for ITSO's was emphasised.  Mr Walsh said that he commenced counselling four ITSO's, including the applicant, who were not in his opinion, meeting their performance expectations.

23. Mr Walsh gave evidence about the initial employment of the applicant.  He testified that the applicant's initial engagement was to assist with problems that the respondent was having at that time, with remote access for computing users.

24. According to Mr Walsh, the applicant had skills suitable for this position and was engaged on a six month contract.  It was Mr Walsh's evidence that the introduction of “thin client” was delayed due to technical difficulties and until its introduction in January 2001, there continued to be a need to provide remote access services from his department.

25. Evidence was also given by Mr Walsh about various performance review meetings in 2000 which raised concerns about the applicant's performance and behaviour.  Mr Walsh testified that with fixed term contract employees, he assessed their performance against key performance indicators and made a judgement as to whether a new contract would be offered, subject to that performance.  He also said that the contract renewal process did involve negotiation of rates of salary with the applicant relative to the market, which were then recommended and approved by the respondent's general manager.  Mr Walsh could not recall the last permanent ITSO position because of what he described as the state of flux in the information technology area, for example, with the possibility of outsourcing of the whole information technology function. 

26. As a consequence of the various performance reviews during the year 2000, in about February or early March 2001 Mr Walsh determined that the applicant and three other ITSO's be offered three month contracts and not six month contracts because they had not performed to expectations both prior to and after the introduction of “thin client”, in some cases.  Mr Walsh gave evidence about how he informed the applicant of this.  He testified that on 14 March 2001 he was present on the Argyle mine site and on the afternoon of that day met with the applicant and informed him that he would be offered a three month contract with no salary increase.  Mr Walsh said that at this time, he told the applicant that the “roll out” of “thin client” would take a further three months and during this time, his performance would be further assessed.  A further meeting took place on or about 26 March 2001 to discuss the applicant's performance.  At that meeting Mr Walsh affirmed the three month contract being offered was because performance had not met expectations.

27. In early June 2001, in order to determine staffing requirements for ITSO's after the introduction of “thin client”, Mr Walsh requested team leaders in the department to undertake a forced ranking exercise, to rate the performance and suitability of the ITSO staff.  From this process, which was primarily generated by the team leaders and not Mr Walsh, the applicant was at the lower end of the ranking process, in the respondent’s view.  It was Mr Walsh's evidence, that the general view of the team leaders was that the applicant should not be retained in the future.

28. Subsequently, on 13 June 2001, Mr Walsh met with the applicant.  He advised the applicant that the respondent would offer him a renewal of his contract for a further period of one month after which there would be no further contracts offered.  Mr Walsh testified that the reasoning behind this was that as he had only at that time been able to meet with the applicant, because he had been previously overseas, he felt it would be fairer to give the applicant more time to make other arrangements, in light of the respondent not extending his employment further.  Mr Walsh described the offer as a one month extension of his contract to 31 July 2001.  It was Mr Walsh's evidence that he also explained to the applicant that he had not demonstrated the required improvement in his performance in the areas of his ability to work without supervision; his ability to work as an effective member of a team; and his lack of customer focus.  In his evidence, Mr Walsh denied a number of the assertions of the applicant, including that Mr Walsh laughed during this meeting, referred to a breakdown in communications and that the applicant commented that he thought his contract would be renewed for six months and he had improved his performance.  Furthermore and in particular, Mr Walsh denied previously ever having said to the applicant that he regarded him as permanently employed and that the contracts entered into were merely a formality.

29. Mr Walsh also gave evidence about the letter received from the applicant dated 25 June 2001, referred to above.  He testified that during the meeting on 3 July, he confirmed with the applicant that he had not been dismissed and that he was only offering a one month contract for the reasons he had previously stated to the applicant.  Mr Walsh denied a number of assertions about this meeting, contained in the applicant's witness statement.

30. In particular, Mr Walsh in his evidence strenuously denied that his decision to not offer any further ongoing contracts for the applicant, related in any way to the incident involving Mr Bath.

Contentions

31. The agent for the applicant, Mr Richardson, in very lengthy written submissions of some 232 pages, raised a number of contentions.  I will only deal with those contentions relevant for the purposes of determining the preliminary issue.  Those contentions however, also went to the merits of the matter as to whether the applicant was unfairly dismissed, and additionally, extensive written submissions were made to the effect that the decision of the Industrial Appeal Court in City of Geraldton v Cooling (2000) 80 WAIG 275, which held that the Commission has no power to make an order for lost remuneration in an unfair dismissal case, was wrong.  I should add in this regard, that the agent for the applicant recognised that the Commission as presently constituted was bound by the decision in Cooling, but submitted that the Commission should, but for that decision, express the view that an order of remuneration lost in an unfair dismissal case, is within power.

32. For the purposes of the issue of jurisdiction, the applicant's agent made a number of submissions.  It was said that on the evidence, there was in reality an ongoing employment relationship between the applicant and the respondent and indeed, a continuous contract of employment, despite the offer and acceptance of separate contracts of employment.  In this regard, reliance was placed by the applicant on a number of decisions of the Industrial Relations Court of Australia arising under the Commonwealth legislation, and several decisions of the Australian Industrial Relations Commission.  In particular, reliance was placed on D'lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19. 

33. In D'lima, the Court held that an employee engaged over the period June 1993 to December 1994 on “rolling” monthly short term contracts, was in reality continuously employed over that period and the short term contracts were for administrative convenience and did not detract from the continuous employment.  The significance of this matter being for the purposes of that case, was the then regulation 30B(1)(a) of the Industrial Relations Regulations, which excluded from the unfair dismissal provisions of the  Commonwealth legislation, an employee engaged under a contract of employment for a specified period of time.

34. Reference was made to a number of other decisions of the IRCA including Strecker v Metropolitan Cemeteries Board (1995) 64 IR 109; Fisher v Edith Cowan University (1996) 70 IR 206; Fisher v Edith Cowan University (No 2) (1997) 72 IR 464; Cooper v Darwin Rugby League Inc (1994) 57 IR 238 and Anderson v Umbakumba Community Council (1994) 56 IR 102.  The thrust of the applicant's submissions in this regard was that the staff contracts entered into between the applicant and the respondent did not truly reflect the relationship between the parties, which was in truth and substance, a single ongoing contract of employment.  It was submitted that the staff contracts between the applicant and the respondent were no more than a device to enable the respondent to exercise control over such employees and to enable it to evade obligations such as redundancy payments and unfair dismissal remedies.

35. The applicant next submitted that he should have been entitled to benefits of permanent employment, by reason of incorporation of the respondent's human resources policies into the contract of employment between the applicant and the respondent.  As the Commission understood the submissions, this was founded on the proposition that the reference to “conditions”, in the contracts, the first of which is set out above in these reasons, expressly incorporates by reference, the content of the respondent's human resources policies and procedures.  As the submission went, because one of those policies dealing with recruitment and selection, tendered as exhibit A13, referred to “permanent conditions” applying where a role was ongoing, given the circumstances of this matter, the applicant ought to have been afforded permanent conditions as a term of his contract of employment with the respondent.  In this connection, reliance was placed by the applicant on Gunton v London Borough of Richmond upon Thames (1980) 3 All ER 577. 

36. In Gunton, the Court of Appeal held that the dismissal of a local government employee was wrongful at law because the employer failed to follow a procedure specified by regulation in relation to dismissals arising from breaches of discipline.  The employee’s contract of employment, by way of letter of appointment, contained a provision that said that the employment would be subject to any regulations made by the employer from time to time.  The plaintiff in that case was awarded damages for the defendant’s repudiation of the contract, in dismissing the employee without following the prescribed procedure.

37. The applicant’s submissions were therefore, that as reference was made to permanent, contract or casual engagements in the human resources policies, and permanent conditions were contemplated where a role is ongoing, it followed that the applicant had a contractual entitlement to permanent staff benefits.  This therefore meant, as the Commission understood the submissions, that the employment of the applicant was ongoing and permanent, and the respondent, in not continuing the applicant's employment beyond 31 July 2001, dismissed the applicant.

38. As to the meaning of “dismissal” for the purposes of s 29(1)(b)(i) of the Act, the agent for the applicant submitted that the relevant act of “dismissal” for the purposes of enlivening jurisdiction in this Commission is the act of giving notice and not the expiry of notice and termination of the contract of employment.  In this regard, reference was made to a number of decisions of the IRCA, the South Australian Industrial Relations Commission, the Federal Court and decisions of this Commission, including the Industrial Appeal Court.  To the extent that the Full Bench of this Commission in CMETSWU v Robe River (1994) 74 WAIG 851, concluded that a dismissal is not complete when notice is given until the notice expires, that matter was said to be wrongly decided.  It was also submitted that this was the case with respect to another decision of the Full Bench, in Alexander v Kirkham (2001) 81 WAIG 3017.  In both of those cases, the Full Bench concluded that a “dismissal” is the termination of a contract of employment, and not the giving of notice.

39. The significance of this proposition, as the applicant's submissions went, was that on the evidence, at the meeting between Mr Walsh and the applicant on 13 June 2001, when he advised the applicant that his contract of employment due to expire on 30 June 2001 would be extended for one month to 31 July 2001, this constituted a “dismissal”, as this constituted notice that the employment relationship was going to be terminated.  Additionally, the applicant submitted that by reason of the incorporation of the human resources policies as to termination of employment, into the applicant's contract of employment, the “dismissal” was also wrongful, it not complying with those requirements.

40. Counsel for the respondent Mr Ellis, made a number of submissions both written and oral.  As to the question as whether the applicant was “dismissed”, counsel referred to and relied upon the observations of Bleby J in Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Another (1999) 90 IR 211 at 216, to the effect that where there is a voluntary abandonment of employment or where a contract of employment terminates by agreement or effluxion of time, there is no dismissal.  Reference was also made to a decision of the Full Bench of this Commission in State School Teachers Union of Western Australia (Inc) v Chairman Hedland College Council (1987) 67 WAIG 1118 at 1120. 

41. The respondent's submission in this regard was that the terms of the final contract of employment for 1 July 2001 to 31 July 2001, as contained in exhibit A 9, were plain and unambiguous in its terms, and clearly provided that the contract would terminate by effluxion of time on 31 July 2001, and this was stated in the opening words in the agreement itself.  The submission further was that the applicant, in executing this agreement, acknowledged he had “read and accepted the terms and conditions of the contract at that time”, as his own evidence made clear.

42. Counsel submitted that there was no basis for the Commission to conclude that the terms of the written instrument do not reflect the real agreement between the parties or otherwise were a sham arrangement. The respondent distinguished the circumstances present in this matter, from those before the Federal Court in D'lima.  It was further said that in any event, regardless of the final agreement entered into, that the existence of “back-to-back” contracts does not of itself, without more, mean that at the conclusion of the final contract, there is a “dismissal: Fisher; Fisher (No 2).

43. Counsel for the respondent said that in the circumstances of this case, there is no warrant from departing from the plain language of the agreement freely entered into by the applicant.

44. The respondent also submitted that on the evidence, which was largely uncontested on this point, the applicant well knew the terms of the arrangement he was finally entering into with the respondent, through Mr Walsh.  The applicant, according to the submissions of the respondent, was well aware that on 31 July 2001 his employment would come to an end with the respondent and this was consistently reflected in the evidence from the applicant himself.

45. As to the issue as to whether the respondent's human resources policies were incorporated into the applicant's contract of employment, which ever contract that may have been, this suggestion was refuted by the respondent.  Counsel submitted that the human resources policies did not form part of the contract of employment between the applicant and the respondent.  It was submitted that the relevant provision contained in the letters of appointment for the applicant, dealing with these policies, did not purport to impose any legal obligation on either parties but was informative.  The respondent compared and contrasted this provision with clauses dealing with “Company rules and regulations”, which suggested that these conditions were binding on an employee.  In this regard, reference was made to Riverwood International Australia v McCormick (2000) 177 ALR 193.  The respondent’s submission was that taken as a whole, the language used in the human resources policies was informative and acted as a guide for management in dealing with human resources issues.

46. Further and in any event, the counsel for the respondent submitted that even if the human resources policies did have contractual effect, then the terms of the letter of appointment, being the primary contractual document, would prevail to the extent of any inconsistency, in particular in relation to the end date of the applicant's employment: Glynn v Margetson & Co (1993) AC 351 at 358.  It was also submitted that the termination of employment provisions of the human resources policies did not apply where a contract came to an end by effluxion of time.

47. As to the relevance of contracts prior to 1 July 2001, which the respondent said were not relevant, it was submitted that there was evidence that there were clear negotiations between the parties prior to the expiry of each contract as to remuneration and duties.

48. The respondent also submitted that whether or not the applicant took annual leave during the terms of his various engagements, was not determinative and in any event, it was the final arrangement ending on 31 July 2001, that determined the applicant's employment.  The submission also was that concepts of “fixed term contract” and contracts for “a specified period of time” were not relevant for the purposes of determining the present matter, given the terms of the Act.

Consideration

49. To the extent that findings of fact are necessary to determine this preliminary issue, there was some conflict on the evidence between that given by the applicant and in particular, Mr Walsh.  Where there was such a conflict, I have no hesitation in preferring the evidence of the respondent.  I found aspects of the applicant's evidence to be quite unsatisfactory.  In particular, I have grave reservations about the evidence given by the applicant concerning his practice of taking and amending file notes, many of which were annexed to his various affidavits filed in these proceedings.  It was apparent to the Commission, that on several occasions at least, the applicant adopted the practice of making amendments to file notes, well and truly after relevant events described in them, tailored to suit his circumstances.  Furthermore, I have real doubts about aspects of the applicant's evidence, when he was questioned by counsel for the respondent, about these matters. 

50. Accordingly, I am satisfied on the evidence and I find that the applicant was engaged under a series of contracts of employment for nominated specified periods of time.  It is trite to observe however, that whilst the contracts of employment nominated a commencement and end date, given that by an express term, each of the contracts could be terminated by one months notice on each side, they were clearly not fixed term contracts, in the strict sense: BBC v Ioannou (1975) 1 QB 781. 

51. I also accept on the evidence that whilst the contracts were “back-to-back” as it were, I accept Mr Walsh's evidence that the contracts were not simply administrative convenience tools, left in the applicant's “in-tray” as the applicant suggested that they were, from time to time.  I am satisfied on the evidence that there was consideration of the terms and conditions of subsequent contractual arrangements, prior to the expiry of each specified period and there was discussion with the applicant, and indeed, others on such arrangements, about their on-going terms.  I expressly reject the applicant's assertion in his evidence, to the effect that Mr Walsh described the applicant's employment as “permanent” and the contracts “a mere formality”.

52. I am also satisfied that in discussions between Mr Walsh and the applicant, leading to the second last agreement commencing 1 April 2001, it was made plain to the applicant that his on-going employment with the respondent was being renewed for a period of three months only, and the applicant well understood this.  I accept that the applicant was told the reasons why this was so, and he accepted it on this basis.

53. As to the events which occurred on or about 13 June 2001, I am satisfied and I find, that a meeting took place between Mr Walsh and the applicant, at which the applicant was informed that his employment would be continued for one month only from 1 July to 31 July 2001, and would thereafter cease.   I am satisfied on the evidence that it was on this basis that the applicant accepted the offer from the respondent, evidenced by the terms of the contract document contained in exhibit A9, for his employment to come to an end on and from that date.   I also accept and find that the applicant was well aware of this, as evidenced by his subsequent dealings with representatives of the respondent, concerning a range of matters including the Fair Treatment review process; inquiries undertaken into the incident with Mr Bath and the applicant's own evidence as to his understanding about the effect of the final agreement he entered into with the respondent.

54. I also find that Mr Walsh did tell the applicant during the course of the meeting on 13 June, that the applicant's employment contract would be extended for a further one month only.  Furthermore, I find that the reason for this was as stated by Mr Walsh, in his evidence.

55. I now turn to the law on this issue.  For the purposes of s 29(1)(b)(i) of the Act, an applicant must be “dismissed”.  There is no definition in the Act as to the meaning of dismissal, and one therefore considers the common law in this jurisdiction as to its meaning.

56. In Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611, the Industrial Appeal Court, in the context of considering whether there was an inconsistency between the terms of a federal award and the State legislation for the purposes of s 109 of the Commonwealth Constitution, commented on the meaning of “dismissal”.  Smith J, in dealing with this matter, observed at 616:

“The meaning attributed by the Shorter Oxford Dictionary to the verb “dismissed” is “to send away or remove from office, employment, or position. 

Speaking of the meaning of the word “dismissal” in Auckland Transport Board   v Nunes (1952) NZLR 412 Fair J said at P410:

“The word “dismissal” may be used in a sense of a peremptory or arbitrary dismissal or a dismissal after due notice or payment under the terms of the contract of employment.”

Being qualified as the verb “dismissed” is in the context in which it appears in s 29(2)(a) by the adverb “unfairly” it seems to me that the subsection is designed to apply to all dismissals, whether wrongful or lawful at common law.”

57. These observations have been referred to and applied extensively in this jurisdiction by the Commission constituted both as the Full Bench and members of the Commission sitting alone.

58. In my opinion, the meaning of “dismissed”, in its ordinary and natural sense, is to be applied for the purposes of an unfair dismissal claim in this jurisdiction.  This also appears to have been the position in New South Wales and also in South Australia: Smith v Director-General of School Education (1993) 31 NSWLR 349 at 365; 51 IR 204 at 219; Advertiser Newspapers per Bleby J at 215 - 216.

59. Furthermore, it has been consistently held by the Full Bench of the Commission, that the giving of notice by an employer does not, by that Act alone, constitute a “dismissal”, but is part of the process, completed when termination of the employment occurs, contrary to the submissions of the agent for the applicant.  In CMETSU, the Full Bench, in considering the meaning of “dismissal” referred to Gersdorf  and the passage I have referred to above and continued at 858 as follows:

“That demonstrates what is, we think, quite obvious.  A dismissal occurs in a case where notice is given when the whole event of giving notice, of time expiring, and the notice upon that expiry of time taking effect, occurs.  Giving notice does not effect a dismissal contemporaneous with the giving of notice, unless it is a summary dismissal.  A decision to give notice is not a dismissal, but part only of the process.”

60. Some support for the applicant's view that the act of giving notice constitutes a “dismissal”, was sought to be obtained from a decision of the Full Court of the Supreme Court of South Australia Gribbles Pathology (Vic) Pty Ltd v Allan (1992) 42 IR 245.  In particular, some reliance was placed upon observations of Olsson J at 248 - 249, that the act of “dismissal” is different to and may precede the time at which a “dismissal takes effect”, as those terms were used in the then s 31 of the Industrial Relations Act 1972 (SA).  It is of note however, that Olsson J's comments were obiter, and additionally, he did not express any concluded view, in the absence of full argument before the court.

61. In Fryar v Systems Services (1995) 60 IR 68, Wilcox CJ and Beazley J, expressed the strong view, at 84, that the approach to s 31 of the South Australia legislation, taken by Bray CJ in R v Industrial Court (SA); Ex parte General Motors - Holden Pty Ltd (1975) 10 SASR 582, that “dismissal” means when it takes effect, was correct, although recognising the argument to the contrary. 

62. Moreover, it is important to also observe, that the terms of the statute then under consideration, is different to the terms of s 29(1)(b)(i) of the Act and caution must always be exercised when reviewing authorities from other jurisdictions, dealing with different statutory provisions.  In particular, the Act in this State refers to “unfairly dismissed from his employment”, in the past tense, and not “dismisses”, in the present tense, as that phrase was used in the South Australia legislation.  In my opinion, adopting the ordinary and natural meaning of that phrase, it clearly conveys the meaning that the employee is, to refer to the Shorter Oxford dictionary definition, “sent away” from his or her employment.  Whilst interesting legal questions arise as to the distinction between termination of the employment relationship and the contract of employment, which is not necessary to deal with in this case, clearly in my opinion, it is the former that is referred to when regard is had to the whole tenor of s 29(1)(b)(i) of the Act in this State.

63. I therefore reject the applicant's submissions in this regard.

64. Therefore, I also reject that submission of the applicant, that even if the conversation between Mr Walsh and the applicant on 13 June 2001 could be characterised as notice of termination of employment, which I do not consider it was, then that would have the effect of constituting a dismissal of the applicant.

65. In my opinion, the proper character of the events that unfolded on 13 June 2001 is as follows.  The contract of employment for three months would come to an end on its expiry.  Given the timing of the discussion, the respondent offered, and on the uncontradicted evidence of the applicant himself, he accepted an arrangement to give him one further month’s employment from the expiry of the second last contract on 30 June 2001. 

66. I unreservedly reject the applicant's attempt to characterise the discussion between Mr Walsh, and the applicant, as a dismissal, in order to ground jurisdiction for the purposes of his unfair dismissal claim.  In that regard, I have substantial reservations about the applicant's evidence, and his conduct at that time, to attempt to portray what occurred as a dismissal by the respondent, when in my opinion, and on his own evidence, he was well aware that he entered into an agreement with the respondent from 1 July 2001, for a period of employment that would come to an end, either by agreement, or the effluxion of time, on 31 July 2001, which is precisely what happened on the evidence.  In particular, annexure RG08 to exhibit A2, the applicant's letter of 25 June 2001 to Mr Walsh, that I have referred to above, is, in the light of all of the evidence, at best an attempted gloss on the events.

67. In summary, as to the events between 13 June 2001 and 31 July 2001, and more particularly from 1 July 2001, I am of the opinion that the applicant's employment, by express agreement between him and the respondent, came to an end in accordance with its own agreed terms, on the final day of the applicant's employment, that being 31 July 2001.  There being a termination of the employment by agreement, alternatively by effluxion of time, there was no “dismissal” for the purposes of the Act, at that time, or indeed on 13 June 2001, as the applicant contended, to ground jurisdiction in this matter.

68. Whilst it is therefore unnecessary for me to consider the effect of the previous contractual arrangements entered into prior to 1 July 2001, in my opinion, the circumstances present in these proceedings, stand in stark contrast to those before the IRCA in for example, D'lima.  I am not persuaded to any extent, in the present context, that the contractual arrangements between the applicant and the respondent were in any way a form of sham transaction that did not represent the true arrangement between the parties.  In particular, in this case, the employment terminated when it did, as a consequence of the agreement reached between the applicant and the respondent, much like the case that occurred in Fisher.

69. In any event, considerable caution must be exercised in applying authorities dealing with different legislative provisions.  In particular, I refer to the decisions relied on by the applicant arising under the federal unfair dismissal provisions.  In the case of the federal legislation, the relevant provisions were and are, to an extent, underpinned by the ILO Termination of Employment Convention and the Termination of Employment Recommendation 1982 and the meanings adopted in the legislation as to “termination of employment”, being that as used in the ILO instruments.  This was certainly the case in the authorities relied upon by the applicant.  Indeed, this was a point recognised by Bleby J in Adelaide Advertisers at 228-229, when comparing the federal and South Australian legislation.

70. As to the incorporation argument advanced by the applicant, even if the respondent’s human resources policies were incorporated into the applicant’s contract of employment, which  in my opinion it is strongly arguable they were not, they would not in my view, have the effect contended by the applicant.  I do not consider that the terms of the policy dealing with “Termination of Employment With or Without Notice”, had any application to the applicant’s circumstances.   I do not consider that a provision such as this has any application to circumstances where employment comes to an end by agreement or by the effluxion of time.   Read in terms of the ordinary and natural meaning of the words used in the policy, it clearly applies in my opinion, to termination of the employment of an employee by the respondent for cause, whilst an employment contract is extant.  The language of the “general purpose” part of the policy, taken in the context of the remainder, makes this clear in my view.

71. Furthermore, as to the argument, as I apprehended it, that the respondent in some way committed a breach of the applicant’s contract by not employing him on a permanent basis, this proposition is in my opinion, misconceived.  Firstly, it is difficult to see how such an alleged contractual obligation could ever arise prior to the engagement of an employee.  Secondly, even if it could be concluded that the terms of the policies were incorporated into the applicant’s contract of employment, I do not read that part of it dealing with the basis of the engagement of employees as being or as being intended to have contractual effect.  The language and tenor of the relevant provisions is couched in terms of guidance notes to management as to the suggested approach to employment, depending on the type of role contemplated. 

72. Thirdly, even if the terms of this part of the policy had contractual effect as contended by the applicant, in my opinion, such a provision must be read in the context of the entire agreement between the parties, not just some of it.  In particular, the final letter of engagement makes it plain that the parties turned their mind to the date upon which the employment was going to come to an end, reached an agreement to this effect and that was the uncontradicted evidence.  The immediate terms of the contract of employment as to term were spelt out unambiguously and to the extent that they could be said to conflict with the policies as to term, they would prevail in my view: Glynn and Others v Margetson & Co and Others (1893) AC 351 per Lord Herschell at 354-355 and Lord Halsbury at 358. 

73. I do not therefore consider that the applicant’s contractual claims, as they appeared to be advanced, have any merit.

74. It is unnecessary for me and I do not express any view on the other submissions of the applicant, including those going to the decision of the Industrial Appeal Court in Cooling.

75. For all of the foregoing reasons, the application is dismissed.