Fm100315478

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ROBERT GALLOTTI

APPELLANT

 -and-

 ARGYLE DIAMONDS PTY LTD

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  SENIOR COMMISSIONER A R BEECH

DELIVERED THURSDAY, 13 MARCH 2003

FILE NO/S FBA 50 OF 2002

CITATION NO. 2003 WAIRC 07928

_______________________________________________________________________________

Decision  Appeal dismissed

Appearances

Appellant   Mr M Richardson, as agent

Respondent   Mr D S Ellis (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1         This is an appeal brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”) by the abovenamed appellant, Robert Gallotti, who identified himself under oath at first instance as Robert Ernest Guiseppe Gallotti.

2         The appeal is against a decision made by a single Commissioner on 24 October 2002 in application No 1455 of 2001, proceedings in which the abovenamed appellant was the applicant and the abovenamed respondent was the respondent.

3         The decision appealed against is a decision to dismiss an application brought by the abovenamed appellant pursuant to s.29(1)(b)(i) and (ii) of the Act.

GROUNDS OF APPEAL

4         The grounds of appeal, from which ground 8 was struck out because it was withdrawn on the hearing of the appeal, were as follows:-

“1. The Commissioner erred in having “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”.  (A number of particulars of that ground are expressed).

 2. The Commissioner erred in having no hesitation in preferring the evidence of the respondent, and in particular Mr Walsh, to that of the appellant, when Mr Walsh and Mr McNamara were shown to have lied or been mistaken on most of the material issues, and the evidence of Ms Rogers, Ms Taylor, Mr Bond and Mr Hynes was contradictory and shown to be wrong in respect of a number of issues. Indeed, it was not open on the evidence as recorded in the transcript and the exhibits for the Commissioner to come to that conclusion.

However, the relative credibility of witnesses is not relevant to the determination of the true nature of the contract between the appellant and the respondent, whether there was a dismissal within the meaning of s 23A and s29 of the Industrial Relations Act 1979, the date on which the dismissal occurred and whether the respondent’s Human Resource Policies were incorporated into the appellant’s contract(s) of employment, nor were the beliefs of the respondent’s witnesses as to these issues.

These are questions of law to be determined by applying legal principles, not necessarily universally accepted, to the facts that were established on the evidence. Accordingly, the other issues of fact which demonstrate that the Commissioner was in error in concluding that he should prefer the evidence of the respondent are not relevant to the determination of these questions of law.

That the appellant has not challenged other findings of fact which are dependant on assessment of credibility determined by the Commissioner is not an admission or acceptance by the appellant that those findings were right or were open on the evidence. Those findings will be challenged, if this appeal is successful, in further submissions when the matter is remitted to the Commissioner to determine whether the dismissal was harsh, oppressive or unfair.

 3. The Commissioner erred in a number of findings of fact. These are:

(a) the second to sixth written Contracts of employment were in identical terms to the first written contract, save for the commencement and expiry dates when:

(i) the first and second written contracts were expressed to be “an offer for temporary employment” whilst the third to sixth written contracts were expressed to be “an offer of a staff contract of employment”;

(ii) the salary amounts were not the same in each written contract;

(iii) the first and second written contracts provided for a “Commute Allowance” and a “Living Away from Home Allowance”, whilst these provisions were replaced by a “Site Duties Allowance” in the third to sixth written contracts.

(iv) in the first to fourth written contracts the provision under the sub-heading “Tenure” read:

 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.

In the fifth and sixth written contracts the provision under the sub-heading “Tenure’ read:

 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.

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

The difference is that in the fifth and sixth written contracts the words if we intend to terminate your employment were omitted.

(b) There were not “various performance review meetings” with the appellant in the year 2000. There was only one performance review meeting in the year 2000, the mid-year 2000 PEP review meeting which was held in August.

 4. The Commissioner erred in not finding that the true contract between the parties was a single ongoing contract of employment.

A. The Commissioner erred in not giving appropriate weight to the following facts established on the evidence:

(a) the first written contract was unilaterally terminated, without negotiation with the appellant, by the respondent before its expiry date and replaced by the second written contract for the purposes of ensuring continuity of employment over the “year 2000” computing phenomenon;

(b) the terms and conditions set down in the  second written contract were unilaterally varied, without negotiation with the appellant, by the respondent during the currency of that contract;

(c) annual leave accruals were not paid to the appellant at the end of each written contract but accrued on a continuous basis;

(d) on at least one occasion the appellant took annual leave that had accrued during previous written contracts during the currency of a written contract;

(e) under the “Annual Leave” provision of each written contract the appellant only established an entitlement to annual leave “after completion of each year of continuous employment with Argyle”;

(f) the second written contract was dated 19 August 1999 but was expressed as commencing on 27 July 1999 and was not signed by the appellant until 1 September 1999;

(g) the fifth written contract, which was expressed as commencing on 1 April 2001, was not signed by the appellant until 17 April 2001 and was not signed by the respondent until some date after the appellant had signed and returned the written contract.

B. The Commissioner erred in giving too much weight to the following facts established on the evidence:

(a) the belief of the applicant and of the respondent’s officers as to the true character of the contract(s) that existed between the appellant and the respondent;

(b) the appellant’s desired outcome from the Fair Treatment process for a “permanent position (not staff contract)”;

(c) the appellant’s belief that his employment would not continue after the expiry date of the fifth written contract if his staff contract was not renewed;

(d) the appellant had read and understood the sixth written contract before he had signed it, when the only alternative to not signing it was that the employment relationship would have come to an end on 30 June 2001, the date specified as being the expiry date in the fifth written contract;

(e) the sixth written contract “constituted an agreement that he entered into, for his employment to come to an end on 31 July 2001”,

(f) the appellant’s questioning of the employment status of Vicki Taylor and his belief that if she was a staff contract employee it may have influenced the accuracy of notes that she took at the Fair Treatment meetings;

(g) the appellant’s “concession” “that he was in the same position [i.e. as Ms Taylor] and was aware that his employment would not continue unless his contract was renewed”.

C. The Commissioner erred in distinguishing D’Lima v Board of Management, Princess Margaret Hospital for Children (1993) 64 IR 19 and that the significance of that decision was only the issue of whether the employee in that case was excluded from the unfair dismissal provisions of the Commonwealth legislation by operation of regulation 30B(1)(a) of the Industrial Relations Regulations. Furthermore, the circumstances in D’Lima did not stand in stark contrast to those in the instant case.

D. The Commissioner erred in not holding that in truth and in reality the relationship between the appellant and the respondent was one of continuous employment, and that the real contract between them was a single ongoing contract of employment, at least from the commencement of the third written contract.

 5. The Commissioner erred in not finding that the appellant had been dismissed. In particular, the Commissioner erred in:

(a) not holding that the appellant’s “acceptance” of the respondent’s “offer” of a contract for one month from 1 to 31 July 2001, when he was informed that his employment would be continued for one month only, constituted a dismissal, or at least a notice of dismissal and was thereby the first step in the dismissal process;

(b) not recognising that the appellant did not consent to the agreement that his employment would terminate on 31 July, but that he had no choice but to accept the respondent’s “offer” of a further contract for one month, the only alternative being that his employment would come to an end on 30 June.

 6. The Commissioner erred in not finding that the appellant had been dismissed on 13 June 2001 when he was informed that the employment relationship was to come to an end on 31 July.   (A number of particulars of error are expressed).

 7. The Commissioner erred in holding that the “Termination of Employment: with or Without Notice” provision in the Human Resource Policy — Terminating Contract of Employment policy did not apply to the appellant’s circumstances.  (A number of particulars of error were expressed).

9. The Commissioner erred in not finding that the respondent was expressly bound to treat the appellant as a permanent employee, even though it formally recorded its contractual relationship in a series of staff contracts.”

5         It should be observed that grounds 4D and 9 are virtually the same.

BACKGROUND

6         Evidence was given on behalf of Mr Gallotti, who was the applicant at first instance, by Mr Gallotti himself, and by one Debra Jane Wilson.

7         Evidence was given on behalf of the respondent by Terrence James Appleby, General Manager of business services for the respondent, Hilary Susan Rowland, team leader, information technology services officer for the respondent, Vicki Ann Taylor, a human resources adviser employed by the respondent, Daniel Patrick Priest, a former help desk officer employed by the respondent, Robert Kim Bath, an employee of the respondent, Alfred John Walsh, Superintendent at IS & T operations at Argyle Diamonds, Patrick John McNamara, manager, information systems and technology services at Argyle Diamonds, Michelle Ann Rogers, a human resources specialist at Argyle Diamonds, Jason Alexander Bond, co-ordinator of operations in information systems and technology services and Dale Lyndon Hynes, information technology systems officer at Argyle Diamonds.

8         An application was brought by the appellant against the respondent company, which had been his employer, alleging that he was harshly, oppressively and unfairly dismissed by his employer and claiming compensation and contractual benefits which he alleged that he had been denied.

9         By the application, it was alleged that his employment ended on 31 July 2001.

10      The application was opposed, and, in particular, it was pleaded that the appellant had not been dismissed, and that the Commission had no jurisdiction to hear and determine the application.  That issue was determined by the Commissioner at first instance.

11      The background, in fact, was not much in dispute.

12      The appellant commenced employment with the respondent company on or about 28 June 1999 as an information technology systems officer (hereinafter referred to as “ITSO”).  At all material times, the respondent carried on business as a miner at Argyle in the Kimberley region of this State with offices also in Perth.

The Contracts

13      The appellant entered into a written contract of what was called temporary employment for the period 28 June 1999 to 31 December 1999.  That contract, by its express terms, was to expire at the end of that period, unless a new contract was entered into.  During the course of the contract, and despite its expressed fixed term, either party had the express ability to terminate the contract by giving notice of one month.  This is borne out by the terms of the appointment letter of 10 June 1999 reproduced in the reasons for decision at first instance (see pages 43-47 of the appeal book (hereinafter referred to as “AB”)).

14      There was then a series of written contracts in what I might describe as almost identical or very similar terms, the contracts being for the following periods respectively, 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.

15      As the appellant correctly admitted in evidence, the first four contracts are identical to the fifth and sixth, save and except for remuneration, commencement dates (and the terms of such contracts), and allowances.  I should say, significantly, that all were fixed period contracts for periods ranging from one month to almost nine months.

16      It was the appellant’s evidence that, shortly before the expiry of the second contract on 31 March 2000, he commenced to look for alternative employment.  The respondent’s manager, Mr Walsh, asked him why.  The appellant said that he said that the contract was coming to an end and that he needed to look for work.  He said that Mr Walsh told him in words to this effect “The position was permanent and the contracts were only a formality”.  Mr Walsh denied that he said this or that he was told by the appellant that he had.

17      The appellant, in his first witness statement, which constitutes the major part of his evidence, said, unequivocally that he was employed under a series of staff contracts (see paragraph 8, page 73 (AB)).

18      The first and second contracts overlapped for the purposes of ensuring continuity because of the millennial transition from 2000 to 2001 and the worldwide problems in the computer field said to have been occasioned by this event.

19      The appellant’s evidence was also that for all intents and purposes his employment was continuous despite the existence of a series of contracts.  He also gave evidence that, for the purposes of annual leave, annual leave accruals were not paid to him at the end of each contract but accrued on a continual basis during the time of his employment.  His evidence was that he took annual leave as if he were in continuous employment.  That that occurred during the currency of the contracts was admitted by Mr Appleby.

20      The appellant had been subject to performance effectiveness process (PEP) reviews in 2000 and he had signed the PEP form for that year even though he did not agree with all of the statements in it (see page 86 (AB)).

21      In March 2001, he was told that his contract and that of some two or three other employees were to be renewed for a further three months only from 1 April 2001, and this, according to him, would, on Mr Walsh’s evidence, take his contract through to the beginning of July 2001 when the new shift arrangements would operate.  He therefore, on his own evidence, had clear notice that he was to be offered a contract for a new fixed term upon the expiry of his current contract on 30 June 2001.

22      He told Mr Walsh, on his own evidence, during this conversation, that he was hoping for a six month contract.  However, Mr Walsh offered him only a three month contract, commenting, as the appellant said, on flaws in his performance of his work.  In his evidence, the appellant also said that John replied (see page 88 (AB)) “it will bring you to the end the end of June and at the start of July the conditions of the contracts will change to include the new shifts being introduced”.  Mr Gallotti also said that this explanation made sense because it seemed that only the two new ITSO’s were getting six month contracts.  That is, he, as one of the old ITSO’s was not going to get a six month contract but another form of fixed term contract with a shorter term.

23      On Mr Walsh’s evidence, he had determined, after a number of performance reviews, and, in particular, one in February/March 2001, that the appellant and three other ITSO’s should be offered three month contracts only and not six month contracts.  This, Mr Walsh said, was because their performances were not up to expectations.  He also said that he told the appellant these things at the Argyle Mine Site on 14 March 2001.

24      There was also evidence that because of the introduction of a new system, rejoicing in the name of “Thin Client”, the number of ITSO’s was being reduced.  All of the ITSO’s, Mr Walsh said, were informed of the restructuring of the IT system in January 2001.

25      The appellant admitted in cross-examination that he was aware that his employment would not continue if his “staff contract” was not renewed ((ie) the contract for the period 1 April 2001 to 30 June 2001).  The appellant admitted quite unequivocally in evidence that, at the back of his mind, he thought that he was not going to get his contract renewed at the end of the three month term offered him in March 2001.  Indeed, he admitted that Mr Walsh had told him, in March 2001, that his figures would have to improve and made other criticisms of his performance.  He admitted, too, that he was given a number of reasons for his “dismissal”, in due course, and one of them was that his performance was unsatisfactory.  It is noteworthy that Mr Appleby, in cross-examination, said that the appellant’s contract was not renewed because he was not able to perform satisfactorily, and because it had come to an end.  Mr Gallotti’s evidence was clear that he feared that his contract would not be renewed for various reasons and that appears in his written statement tendered in evidence.

26      There was evidence about his performance reviews and about another employee, Mr Bath, who was allegedly assaulted by Mr Walsh and the alleged feared effect of this incident on the appellant’s employment.  However, in the end, the latter event was of very little relevance to the outcome of the proceedings before the Commissioner at first instance.

27      On or about 3 June 2001, the respondent was seeking to appoint another computing employee in the position of support officer.  This was apparently a position which would be filled for a period of six months.  The appellant took the view that this was his position, namely the ITSO position which he occupied.

28      On or about 13 June 2001, there was a discussion between the appellant and Mr Walsh in the latter’s office.  Mr Walsh told him that his contract would not be renewed.  This arose after a decision by team leaders, and after Mr McNamara, manager, information systems and technology services for the respondent, approved Mr Walsh’s decision to that effect.  The appellant, on his own evidence, told Mr Walsh that he thought that his contract should be renewed for six months.  Mr Walsh told him that there was a breakdown in communication between them and referred to various past incidents.  It is clear, on the evidence, that Mr Walsh had advised the appellant about his performance and behaviour in the past at performance review meetings in 2000, and, indeed, in 2001.  The appellant admitted in evidence that on this occasion he was given a number of reasons for his “dismissal” and one of these was that his performance was unsatisfactory.

29      At the conclusion of this meeting, Mr Walsh, according to the appellant, 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 appellant a further six weeks taking the contract to 31 July 2001.  Mr Walsh said in evidence that he would offer him a renewal of his contract for one month and there would be no further renewals offered.  He said that he offered this renewal as a matter of fairness because he had not been able to advise Mr Gallotti of the fact that there would not be a renewal of his employment before this time, and that he would otherwise have only a fortnight before the (fifth) contract ended on 30 June 2001.  He also spoke to him about the defects in his performance.  It should be noted that the contract under which he was employed was to expire by its express terms on 30 June 2001 and that this conversation occurred before it did so expire.

30      The appellant, in evidence, admitted that the final and sixth contract signed by him was signed by him after he had read it and understood it.  He also said that it reflected the terms of the offer put to him on 13 June 2001 and it was either sign it or finish in two weeks.  He therefore clearly understood what he needed to do, he said.  This is the last contract which was entered into on 18 June 2001, and which contained an expressly agreed fixed term of 1 July 2001 to 31 July 2001.  He also accepted that that agreement into which he entered was an agreement for his employment to come to an end on 31 July 2001.  Before he entered into that final agreement he obtained the advice of an industrial agent who represented him at first instance, also.  The appellant clearly admitted in cross-examination that he entered into an agreement for his employment to come to an end on 31 July 2001 (see page 26 of the transcript at first instance (hereinafter referred to as “TFI”)).  He signed it as having read it and accepted its terms.

31      Significantly, the agreement provides, as he signed it and understood it (see page 631 (AB), 13 June 2001):-

“We are pleased to confirm our offer of a staff contract of employment for the position of IT Systems Officer at Argyle Diamonds effective 1 July 2001 to 31 July 2001.  Your employment with Argyle will cease at the expiry of this period, unless a new agreement is entered into.”

32      No new agreement was entered into and the agreement thereby expired.

33      He was, he admitted, aware that the fifth contract was subject to renewal.  However, immediately after that, in cross-examination, the appellant asserted that he was not aware that if his contract was not renewed it would come to an end because Mr Walsh had told him that it was permanent (see page 32-33 (TFI)).  Next, however, in evidence he said that he did not regard himself as one of the permanent staff.

34      At page 91 (AB), his first statement in evidence in chief, paragraph 311, he admitted that on 13 June 2001 Mr Walsh told him that his contract would not be renewed.  In cross-examination, he said also that that evidence in chief at paragraph 311 of his statement was wrong and that he knew he was being dismissed.

35      On 25 June 2001 (see page 140 (AB)), he wrote to Mr Walsh purporting to advise that the new contract, when it expired, would not be renewed, and that he should treat the period as four weeks notice of termination, and saying that Mr Walsh had said so.  That letter, formal parts omitted, reads as follows:-

“I refer to our discussion on Wednesday 13 June 2001 at approximately 8:30 a.m. 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.”

36      On 3 July 2001, Mr Walsh, referring to the letter of 25 June 2001 (see page 140 (AB)), told the appellant that he was not being given notice of termination of employment but was being offered a separate contract of employment.  Indeed, at that time, he had already signed it.  He admitted in cross-examination that he was aware that his contract of employment would not continue unless there was a renewal of contract of employment (see page 38 (TFI)).  It is fair to observe that it is not a renewal but a separate contract.  Mr Walsh wrote to the appellant on 6 July 2001 in the following terms, confirming that the appellant had not been dismissed, which is what he said that he had advised Mr Gallotti in the course of their discussions on that day:-

“In your letter dated 25th June 2000, you refer to a discussion regarding “notice of termination” at our meeting on 13 June 2001.  This was certainly not the case, as your contractual arrangement with Argyle Diamonds has been in the form of a short-term fixed contract which is for a fixed period with a specified end date.  The intent of meeting was to advise you that Argyle Diamonds would not be in a position to offer you further employment after the expiration of your fixed term contract.

I was, however, aware that the 13th June was your first working day in the Perth office that month and our first opportunity to meet.  As this was less than three weeks to the end of June, I offered to extend your current contract period by one month, to the end of July 2001 in order to give you the opportunity to make alternative arrangements. It was my understanding that you acknowledged and accepted the offer of an additional month and I subsequently asked Argyle HR to raise the appropriate paperwork.

I trust this clarifies the situation.”

37      There was a great deal of unconvincing evidence given by the appellant at page 35 (TFI) and the following several pages, wherein he purported to justify his seeking a permanent position without admitting that a permanent position was different from a staff contract position and that the latter was not a permanent position.  I have already referred to his objection to Ms Taylor, a human resources adviser for the respondent, taking notes during the fair treatment process because she was on a fixed term staff contract and she might, according to his objections, make inaccurate notes in case her contract was not renewed.  He admitted in cross-examination also that he was in the same position as she was ((ie) on a fixed term staff contract).  Further, he admitted in cross examination, that when he was told that the contract was not going to be renewed he did not say “Why are we bothering about renewal?  I hold a permanent position”, even though he had said in evidence that he held a permanent position.  It is quite clear from that evidence that the appellant was regarded and regarded by himself as being on short term staff contract, and, indeed, a series of them.  These, it was said by Mr McNamara and Mr Walsh, without denial, were used for convenience for the performance of finite tasks, jobs and projects, as I understand their evidence.

38      Mr Walsh spoke to the appellant, he said, in the context of the letter of 25 June 2001 written by the appellant to him.  As a result, he became aggrieved and availed himself of an internal review mechanism afforded by the employer called the “Fair Treatment Procedure”.  This was conducted by Mr Walsh’s manager, Mr McNamara.  In that conversation, on his own evidence, he told Mr McNamara that he found it difficult to believe that his contract was not being renewed (see paragraph 439, page 99 (AB)).  He used the words “not being renewed”.

39      The meeting with Mr McNamara occurred on 24 and 25 July 2001, and Ms Taylor was present to take notes.  It was then that the appellant objected to her taking the notes because she was on a fixed term staff contract and he was concerned and expressed the objection that fear of the non-renewal of it would cause her to take an inaccurate note.

40      Mr Walsh said in his evidence that, on 3 July 2001, he confirmed to the appellant that he had not been dismissed, his contract had been expired, and that the appellant was being offered a new contract for one month for the reasons which Mr Walsh had previously stated.

41      It should be observed that there was clear and uncontradicted evidence from Mr Appleby for the respondent, Mr Walsh, Mr McNamara, and Ms Rogers, a human resources officer employed by the respondent, that there were three different classes of employment contract offered and used, and that these were permanent, fixed term staff contracts and casual contracts and the nature of each of these was explained.  It is quite clear that the appellant was employed on a fixed term staff contract, and, indeed, a series of them.  These, it was said without denial, were used for short term contracts of special projects, etc, in the information technology area.

42      The appellant and Mr Walsh’s evidence was to the same effect, and that was that Mr Walsh said, on 3 July 2001 “It’s not a termination.  The new contract is not a four week notification, it is a completely separate contract” (see page 95 (AB)).  The appellant also agreed that Mr Walsh said that had four weeks notice been given before the date of the previous contract, that would have constituted the termination of the contract.  Mr Walsh told him that this was not a “termination” because the sixth contract was a completely separate contract that did not require notice to be given.  Mr Walsh pointed out, on his evidence, that the contract does not say that another contract will be offered, and, of course, there was no evidence that one was.  The appellant, according to him, informed Mr Walsh that the contract was the same as the previous ones which did not say that another contract would not be offered.  Mr Walsh responded “You should have known that when you signed it”.  Mr Walsh also told him that the position was changed, and that he, the appellant, was no longer suitable.

43      The appellant admitted that in his fair treatment procedure statement (PJM 4, page 517 (AB)) he wrote that “I believe that the decision not to renew my contract is unfair”.  He used the words “not to renew”.  He made no assertion that he had been dismissed.

44      It is to be noted again that his complaint in writing was that the decision not to renew his contract was unfair, not that he had been dismissed.  He also admitted that, from the fair treatment process, he was seeking a permanent position not a staff contract.  Mr McNamara confirmed in evidence that the sixth and last contract was a “short term contract” with a fixed date.  There was some discussion about the Bob Bath incident during the fair treatment meetings with Mr McNamara.  Significantly, on his own evidence, the appellant told Mr McNamara, during the course of the fair treatment procedure meetings, too, that he had been instructed to request a permanent position rather than a staff “contract”.  Mr McNamara, he said, told him that as a contractor he had advantages, one being that “You were not tied down and could leave when it suited you”.  He did not accept this.  What he emphasised on the evidence of both Mr McNamara and himself, was that the result which the appellant sought to achieve was that he be offered a permanent contract, instead of what was clearly, on the evidence, even his own sometimes grudgingly given evidence, a fixed term staff contract which had not been renewed.

THE COMMISSIONER’S FINDINGS – ISSUES AND CONCLUSIONS

45      This was not a discretionary decision as that term is defined in Norbis v Norbis (1986) 161 CLR 513 (see Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194).  Insofar as findings were made at first instance, the principle in Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 applies (see also State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 (HC)).  The principle is as follows:-

“A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding.  If the finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.”

46      The Commissioner at first instance, as a matter of fact and law, found that there was no dismissal but that the termination of the contract of employment between the parties occurred either by agreement or effluxion of time.

47      The word “dismissal” is not defined in the Act, but it has been defined in Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 (IAC), and that definition has been applied by the Full Bench in a number of cases including CMETSU v RRIA (1994) 74 WAIG 851 (FB).  (See the application of these authorities, which are binding on this Commission, in the reasons for decision of the Commissioner at first instance at pages 64-65 (AB)).

48      A dismissal is well understood to be the termination of the contract at the initiation of the employer and this may be done by notice or summarily (see Macken, O’Grady, Sappideen and Warburton, 5th Edition, “The Law of Employment”).  Where a contract provides for employment for a fixed term, the contract will automatically end when the term expires, unless, of course, it is lawfully terminated in some other way in the meantime (see “The Law of Employment” (op cit) at page 235).

49      If, however, a contract of employment is terminated by agreement between the parties ((ie) consensually) or by effluxion of time then there is obviously not a dismissal because there is no termination at the initiative of the employer.  If there is no dismissal, the Commission has not, and had not in this case, any jurisdiction under s.23, s.23A or s.29(1)(b) of the Act to entertain and/or hear and determine the application.  S.23(3)(h), having conferred by s.23(1), jurisdiction in relation to industrial matters, and specifically, inter alia, in relation to claims of harsh, oppressive or unfair dismissal, specifically prescribes that the Commission “on a claim of harsh, oppressive or unfair dismissal” shall not in an application made under s.29 make an order not authorised by s.23A.

50      S.23A enables an order to be made as prescribed, but only if the Commission has determined that the dismissal of an employee was harsh, oppressive and unfair.  S.29(1)(b)(i) expressly enables an employee to refer to the Commission an industrial matter constituted by a claim that that employee has been harshly, oppressively or unfairly dismissed.  It is noteworthy that the word used throughout is “dismissed” or variance of that word.  That is the word which founds jurisdiction, power and the right of an individual to refer an industrial matter to the Commission.  For those reasons, it is quite clear that the word “terminated” cannot at all be interpreted, as it was submitted it should be interpreted, to mean that dismissal has a meaning other than the definition attributed to it in these reasons.  That is because a dismissal has to exist in the clear words of the relevant sections to which I have referred above, before there is jurisdiction, power or the right to refer.  The word “terminated” in s.29 is used to mean the date on which it is alleged that the dismissal occurred, because whether it was a dismissal or not might be in issue.  What the employee does is allege in her/his application that her/his employment was terminated on a certain dated and that that termination constituted a harsh, oppressive and unfair dismissal.  It is trite to observe that unless the termination is found to be such, then there is no jurisdiction.  It is, indeed, difficult to understand how it could properly be argued that the termination of a contract of employment by an effluxion of time or consensually could ever be said to be harsh, oppressive or unfair, in any event.  Such an argument, for those reasons, has no merit in it.

51      Further, I would add that since this was not a discretionary decision, the ground of appeal that undue weight was given to certain factors is and was irrelevant.  Even if the decision were a discretionary decision and undue weight had been given to certain factors, then that alone, in any event, is not sufficient to require the decision at first instance to be overturned (see Gronow v Gronow (1979-1980) 144 CLR 513).

Facts and Credibility

52      The agent for the appellant properly conceded that the question of credibility had little to do with what was required to be decided upon in this appeal.

53      There is no major dispute about the relevant facts on the evidence of both Mr Walsh and the appellant.

54      However, as I have made clear, on a fair reading, the appellant’s contradictions in cross-examination of what he had said about the nature of his contract of service in evidence in chief, his attempts to characterise fixed term staff contracts as no different from a permanent contract, whilst seeking to be offered a permanent contract when his staff contract was ending, rightly put his credibility under a cloud (see page 36 (TFI) et seq).  The same can be said about his attempts to retreat from his statements that he knew that his contracts, particularly the last two, the fifth and sixth, required renewal, and he feared that they would not be renewed.  Further, his cross-examination towards the end of proceedings about the notes to which he was referring, their contemporaneity or lack thereof, with events which he was describing, or of which they purported to be records, and his differing recollections of what or how many notes were altered by him and when, quite rightly led to his credibility coming under a cloud.

55      The nature of the three classes of contracts on offer to employees and their substance is outlined by Mr Walsh, Mr McNamara and Ms Taylor, which they indeed reinforced in cross-examination was also a factor which could properly be taken into account in determining credibility, to say nothing of what could be found from the terms of the contracts themselves, the contracts speaking for themselves.

56      In addition, there was the appellant’s actual admission that he had a fixed contract like Ms Taylor, and that he sought a permanent contract.

57      Insofar as the Commissioner at first instance made findings based on seeing and hearing the witnesses and the advantage derived by him thereby, he did not misuse his advantage, for those reasons, and the Full Bench would not be justified in interfering with those findings.

58      In any event, the question of credibility, on the concession of Mr Richardson, both in argument and in the concession of the appellant in the grounds of appeal, was not relevant to the determination of this appeal which it was submitted depended on the contract of employment, its terms and nature.

The Main Question

59      It is necessary to emphasise that there was only one main question on this appeal of any consequence.  That question was whether the Commission had jurisdiction to hear and determine the application at first instance.  The answer to that question depended in turn on whether there was a dismissal by the respondent of the appellant, as I have characterised a dismissal supra, or whether the contract of employment terminated consensually or by the effluxion of time instead.  (The question of consensual termination of contracts was discussed in detail in Byrne v Twaddle t/a Mt Hospital Pharmacy (2003) 83 WAIG 5 at 12 per Sharkey P, Gregor and Scott CC agreeing (FB), an authority to which we were not taken upon this appeal).

60      I should also say that questions as to the admissibility of parol evidence were not argued at first instance or before the Full Bench.

61      The case for the appellant, insofar as I understand it, was that the series of six written, fixed term contracts entered into by the appellant with the respondent were, in fact, cumulatively, one whole continuing permanent contract of employment which was terminated by the respondent on 3 June 2001, when Mr Walsh, on its behalf, orally gave notice to the appellant that his contract would not be renewed.

62      It would also seem that the case was that the final written contract (the sixth contract), signed on 18 June 2001, which expressed its term to be one month expiring on 31 July 2001, was, in fact, a notice of the termination of the continuing contract of employment by the respondent employer.  Alternatively, as I understand it, the oral offer of an extended contract was said to be notice of termination when Mr Walsh spoke to the appellant about the matter on 13 June 2001.

63      In my opinion, the following facts, not for the most part in dispute, were relevant.  I would also make the following observations and findings:-

(a)          The first contract (28 June 1999 to 31 December 1999), which was signed on 14 June 1999, was a contract in writing which was not said not to contain the whole of the terms of the contract of employment.  It should be observed that this contract was described as a temporary contract and was for a fixed term of six months only.  The same observation can be made in relation to all other five contracts, and I now make it.  This contract, too, as with all of the other five contracts, expressly prescribes that the appellant’s employment will cease at the expiry of the period prescribed in each contract, in this case 28 June 1999 to 31 December 1999, unless another contract is entered into.  Each contract not only prescribes a fixed and finite period of employment, but prescribes that it will expire unless another contract is entered into.  All of the contracts, too, provide specifically that each contract may be terminated by either party on the giving of one month’s notice.  In other words, each contract has its own inbuilt provision for the termination of that contract.  Each contract contains a number of essential terms, not the least being the appropriate remuneration payable (see page 605 (AB) et seq).  Some prescribe increased remuneration.

(b)          The second contract signed by the appellant on 1 September 1999 is for a period of nine months approximately dating from 27 July 1999 until 31 March 2000.  It provides, as all of the contracts of employment do, for one month’s notice (see page 607 (AB) et seq).

(c)          The third contract signed by the appellant on 28 March 2000 is for the period 1 April 2000 to 30 September 2000, a period of six months, and contains a different salary to the other two, namely $55,000.00 instead of $42,000.00.

(d)          The fourth contract signed by the appellant on 20 September 2000 is for a contract at the same salary from 1 October 2000 to 31 March 2001, a period of six months.

(e)          The fifth contract signed by the appellant on 17 April 2001 is for a three month period, which is different, of course, from 1 April 2001 to 30 June 2001 at the same salary and terminable by the same period of notice.

(f)           The sixth contract is one signed by the appellant as accepted on 18 June 2001 for the period 1 July 2001 to 31 July 2001 for the same salary, but for the brief period of one month.

64      The evidence, from the contracts themselves, which supports the fact and finding that there were six separate fixed term contracts, and, in particular, that the fifth and sixth contracts were separate fixed term staff contracts, was as follows:-

(a)          There were six separate contracts in writing prescribing express fixed terms signed by the appellant, some for different terms, including three six month contracts, one nine month contract, one three month contract and one one month contract.  All of them include the express provision that they will cease unless a new contract is entered into.  In fact, they do expire and did because new contracts were entered into.

(b)          Each such contract was accepted by the appellant on the notification that each contract was for the prescribed fixed term which it was expressed to be current for on its first page.  Each was also to expire subject to a separate contract being entered into at the expiry of the term identified in the contract.  Each could be for a different period and in most cases were for different periods.  The final two were for short periods and specific expressed periods.

(c)          Further, to add to the clear terms which indicated clearly that each was a separate, self-sufficient contract of service on the basis of which I have already said, each contained a specific clause providing for the termination of each contract by one month’s notice, and in the third, fourth, fifth and sixth contracts a greater salary than that prescribed in the first and second contracts was prescribed.

65      In support of that finding was the following evidence, which it was open to accept.  First, there were three types of contract available to employees, fixed term staff, permanent and casual (see the evidence of the witnesses for the respondent to which I have referred above).  By the express admission and implied admission of the appellant, he admitted that he was on a short term fixed contract of employment and that it required each time to be renewed.  In particular, was this the situation with the fifth contract because he had been warned that his performance was flawed.  He was aware, on his own evidence, that the likelihood of his receiving a further contract was at risk.  Indeed, as he admitted, he accepted the reduced three month term contract and then the one month contract when he was attempting to negotiate in each case for a six month contract.  That he asked for such a fixed term contract was a clear admission that he was employed on fixed term renewable separate contracts.  That he accepted shorter terms than the six months which he wished to have constitutes a similar admission.  Further, he was advised that his performance was judged defective, and this resulted in his being employed for the three month period rather than for the six month period of his previous contract which had expired.

66      Another cause of the offer of three months contract was the introduction of the “Thin Client” system and the proposed shift changes which he feared would jeopardise the renewal of his contract of employment, as he clearly admitted, and this also was evidence of the fact that he knew that the contracts were separate stand-alone contracts and admitted the same.

67      Against that, there was his evidence that Mr Walsh had told him during the currency of the second contract that he, the appellant, was permanently employed and that the separate contracts were matters of form only.  That was evidence which Mr Walsh denied.

68      I would say this.  First, that evidence was contrary to his own admissions that there were separate contracts and that the new ones had to be entered into.  Second, his agreement to sign two very short term separate contracts which were different and much shorter terms from the six months and nine months contracts he had previously entered into, negates any conclusion otherwise.  Third, such a statement is contrary to the express terms of the contracts and their clear status on their face as separate self-sufficient contracts.  Fourth, Mr Walsh denied it, and his evidence was corroborated by that of Mr McNamara, Ms Taylor and Ms Rogers.  Fifth, the appellant admitted that he had the same sort of fixed term staff contract as Ms Taylor, and that he wanted a permanent contract.  (I have referred to the substantial body of evidence on this point above).

69      There was clear evidence, including his own, that he entered and knew that he entered separate fixed term contracts which he recognised, as did other witnesses, as being different from permanent.

70      In addition, the Commissioner at first instance was entitled not to find his evidence credible, for the reasons which I have expressed above and for those expressed by the Commissioner.

71      Further, the appellant relied on the admitted fact that leave “rolled over” from contract to contract as evidence that he was employed on one continuing contract of employment.  The answer to that proposition is, of course, that this was a condition expressly agreed on or to be implied into each contract.  It is not an unequivocal indication, however, in the face of all of the other evidence which I have outlined above, that the appellant was employed on one continuous contract of employment.  He clearly was not.  He was particularly aware that his three month contract due to expire on 30 June 2001, if not renewed, meant the end of the road, as he admitted himself.

72      In any event, even if that were wrong, the sixth contract in its terms read, accepted, understood and signed as such by him after taking expert advice from his agent, was, on his own admission, unequivocally a new contract signed before the expiry of its predecessor.  It was expressly agreed to operate for one month immediately on the expiry of its predecessor and could not at all in its terms constitute a notice of termination of its predecessor, just as its predecessor could not, in its own terms.  Further, he admitted that Mr Walsh expressed this fact and confirmed it when the appellant sought to characterise it otherwise orally and in writing.

73      In any event, the appellant was such an unreliable witness that his evidence could not be relied upon where it differed from the terms of the contracts or from the evidence of other witnesses, and it was for him, in the end, to establish that the Commissioner at first instance had jurisdiction.  Clearly, he was not able to do so.

74      For those reasons, it was open to find, and the Commissioner should have found, that there were six separate contracts of employment, including the last one, which the appellant sought to be characterised as notice of termination.  Of course, it makes no difference even if there were one continuous contract because the sixth contract cannot be characterised as a notice of termination of one continuous contract of employment.  I say that because it is not a notice of termination given by the employer.  It is a document which, inter alia, contains the express agreement of both parties that the contract of employment would expire on 31 July 2001 unless it was renewed, and it was not renewed.  Of course, it is clearly not a notice of termination of employment, but for the reasons which I have expressed above, a plainly and unequivocally separate contract of employment just as its predecessors were.

75      It follows that, even if Mr Walsh purported to give oral notice of termination of the contract of employment on 13 June 2001, which it is open to find he did not, on his evidence, and, indeed, on the evidence of the appellant, then it was extinguished by the consensually executed sixth contract agreeing a number of terms, including the date of expiry of the contract of service, namely 31 July 2001.  (It was not renewed).

76      In any event, that document, as I have said, was a separate contract of employment for a fixed term signed by the appellant with full knowledge and acceptance after advice was given to him by his agent.

77      His attempt to have the respondent characterise the conversation of 13 June 2001 as termination of his employment in the face of the clear terms of the sixth contract was invalid and patently self-serving, and thoroughly unconvincing, and it was open to so find.

78      Further, I do not understand how it could be at all submitted that an oral indication on 13 June 2001 by Mr Walsh that the fifth contract would not be renewed could constitute notice of its termination when one month’s notice of termination was required by and in its terms and it expired some 22 days later.  Indeed, the fifth contract expired after the sixth contract was signed and only 12 days after that, namely on 30 June 2001 in accordance with its own terms.

79      Next, I do not understand how it could be said that the sixth contract, which would commence to operate on 1 July 2001 and expire on 31 July 2001, according to its terms, and which was entered into on 18 June 2001, could be terminated by notice purported to be given before it commenced to come into operation.

80      Further, ground 4B constitutes an admission that a number of facts to which I have referred above were properly found.  The only attack on those findings is that too much weight was attached to them, not that the findings were made.  That ground therefore has no force.

81      Further and cogently, in the conversations with Mr McNamara during the fair treatment process, the appellant’s grievance, as he expressed it, was that his contract had not been renewed, not that he had been dismissed.  As the evidence revealed, he sought a new and permanent contract instead of his fixed term staff contract by that process.  It should also be observed, and it was open to find, that on the evidence of the appellant and Mr Walsh, on 18 June 2001 no notice was given to him.  Further, his signing of the sixth contract, which he understood, accepted and signed after taking advice from an industrial agent, constituted a complete negation of his evidence that he had been given notice, or that that notice was accepted by him as having had any effect.  In the alternative, if notice of termination were given, which it was clearly open to find that it was not, then it was extinguished by the signing of the sixth agreement.  Accordingly, the appellant’s letter of 25 June 2001 addressed to Mr Walsh could, even if it were answered as he sought it to be answered, be of no effect evidentially or otherwise.  Further, and in any event, the Commissioner at first instance correctly characterised that letter as an attempt to “gloss over” what occurred after the event.

82      In particular, for those reasons, it was open to find, and the Commissioner at first instance should have found, as follows:-

(a)            That he should have substantial reservations about the appellant’s evidence at the time and his attempt to portray what occurred as a dismissal when (on his own evidence, as I have observed) he was well aware that he had entered into an agreement with the respondent from 1 July 2001 for a period of employment which would come to an end either by agreement or effluxion of time on 31 July 2001.

(b)            That in the light of all of the evidence, the letter of 25 June 2001 to Mr Walsh written by the appellant (exhibit A2, RG08) was at best an attempt to put gloss on the events which actually occurred.

(c)            That the appellant’s employment, by express agreement between the respondent and himself, came to an end in accordance with its own agreed and express terms on the final day of his employment, namely 31 July 2001, and was not renewed.

(d)            That what occurred was a termination of employment, either consensually ((ie) by agreement) or by effluxion of time.

(e)            That there was no dismissal within the meaning of the Act on 31 July 2001 or 13 June 2001 or at all.

(f)             That there was no jurisdiction therefore in the Commission to hear and determine the application made to it at first instance.

Other Grounds

83      I would add that there was no other ground of appeal or part of any ground of appeal which if made out could have been found to be fatal to the decision appealed against.  In particular, the differences between the various contracts which the Commissioner had identified as identical contracts were not such as to at all have any effect on the result in this matter (see ground 3).

84      Ground 5(b) is a ground which constitutes, in part, an admission that the sixth contract was a separate contract.  It is quite in error and irrelevant anyway to assert that the appellant signed the sixth contract because he had no choice.  He accepted it, he clearly consented to it, he understood it, and he obtained independent advice before signing it.  In any event, it is not pleaded that the agreement was null and void for duress or for any other reason.

85      Submissions as to when a dismissal occurred (see ground 6) are entirely irrelevant since there was no dismissal, as it was open to find, and as it was correctly found.

86      The status of the dismissal policy of the respondent was that it was entirely irrelevant to what occurred in this matter in its terms.  Ground 4A, for the most part, supports the Commissioner’s findings.

87      Further, it was entirely immaterial how many PEP meetings there were given the other findings which the Commissioner was entitled to correctly make and correctly made.

88      Further, there is no basis in law or in fact, for the reasons which I have expressed, why the employer might be required to treat him as a permanent employee when by proper construction of the contract of employment he was never a permanent employee, and, indeed, sought to become one.  There was no authority cited which would lead me to find otherwise.

89      I have considered all of the evidence, authorities and material carefully.  There was no error in the decision of the Commissioner at first instance.  He found correctly that there was no dismissal and therefore that the Commission is and was without jurisdiction.

90      No relevant ground of appeal is, in my opinion, made out.

91      For all of those reasons I would dismiss the appeal.

CHIEF COMMISSIONER W S COLEMAN:

92      I have read the reasons for decision of His Honour the President.  I agree with those reasons and have nothing further to add.

SENIOR COMMISSIONER A R BEECH:

93      I agree that the appeal should be dismissed for the following reasons.

94      The decision of the Commission in first instance was that there was not a dismissal.  The appellant argued that the Commission erred because the dismissal occurred when Mr Gallotti was given notice of termination during a discussion between him and Mr Walsh.  The Commission unreservedly rejected Mr Gallotti’s attempt to characterise the discussion between him and Mr Walsh as a dismissal.  The applicant therefore faces a significant hurdle in attempting to show that the discussion actually occurred.  For the reasons given by his Honour the President, I find that the decision of the Commission at first instance to prefer the evidence of the respondent over the evidence of Mr Gallotti to be one that was entirely open to the Commission at first instance on the evidence before him.  There was no error.

95      However, for the purposes of dealing with the argument advanced on his behalf, if I assume for the moment that Mr Gallotti was indeed given notice of termination by Mr Walsh, this does not assist Mr Gallotti in the argument he runs before this appeal bench.  The “notice” was given on or about 13 June 2001.  The uncontroverted evidence is that after that time and whilst still an employee, on 18 June 2001, Mr Gallotti signed a further contract of employment dated 13 June 2001.  That contract was for employment between 1 July 2001 and 31 July 2001. 

96      On the above facts, Mr Gallotti cannot sensibly argue that when his employment came to an end on 31 July 2001 it did so as a consequence of the notice given to him on 13 June 2001.  On the facts, Mr Gallotti entered into a further contract of employment subsequent to 13 June 2001 whereby he agreed his employment would come to an end on 31 July 2001.  Therefore, on 31 July 2001 all that happened was what Mr Gallotti and the respondent agreed would happen.  The ending of his employment in that manner cannot be a dismissal for the purposes of the Industrial Relations Act 1979.

97      Further, his signing of the further contract of employment on 18 June 2001 in circumstances where he acknowledges he read, understood and accepted the terms of the document and sought advice from a registered industrial agent before signing, leads irresistibly to the conclusion that even if he had been “dismissed” on 13 June 2001 the agreement he subsequently entered into overtook that event and rendered it irrelevant. 

98      The above facts also argue eloquently against the submission on Mr Gallotti’s behalf that he had no choice in signing the further contract of employment on 18 June 2001.  The simple fact is that Mr Gallotti indeed did have a choice.  Mr Gallotti could have elected not to sign.  However, Mr Gallotti chose to sign because it gave him one further month’s salary.  That was his choice and one understands why Mr Gallotti made that choice.  However, there can be no suggestion from that evidence that Mr Gallotti did not have that choice. 

99      It was submitted on Mr Gallotti’s behalf that the “notice” he was given was wrongful and constituted a repudiation of the contract which was accepted by Mr Gallotti when on 18 June 2001 he signed and returned the further contract of employment.  However, the face of the document itself shows no support whatsoever for such a novel submission.  By signing the contract of 18 June 2001, Mr Gallotti did not either expressly or impliedly accept the notice that was given to him.   What he did do, and what the wording in the document is evidence of him doing, is agree to a new contract of employment for a further one month’s employment.

100   Neither does it assist Mr Gallotti’s case if the series of contracts of employment are seen as one continuous ongoing employment.  Mr Gallotti’s employment was certainly continuous:  he was employed without break over the duration of the contracts that he signed.  What is in issue, however, is not the continuity of his employment but rather the terms of the contract of employment he signed on 18 June 2001.  A person’s employment does not exist in a vacuum.  A person is employed pursuant to a contract of employment, whether verbal or written.  In this case, it was written.  At the time Mr Gallotti’s employment ceased, the written terms of his contract of employment provided that it would cease. 

101   This conclusion remains valid even if it can be said that some of Mr Gallotti’s earlier contracts of employment were signed after the end-date of a previous contract and the new contract was backdated.  Whatever criticism may validly be made of the respondent’s procedures in this regard, that criticism simply does not apply to the further contract of employment which Mr Gallotti signed on 18 June 2001.  It was a contract signed well before its intended date of operation of 1 July 2001. 

102   Finally, it may be worthwhile to observe that much energy appears to have been wasted in attempting to attach a label to the kind of contract signed by Mr Gallotti.  In particular circumstances there might be a requirement on the Commission to decide whether or not a particular contract of employment with a fixed beginning-date and a fixed end‑date is a “fixed term contract”.  Such a requirement arises in the United Kingdom because of the wording of the Employment Protection (Consolidation) Act in that country.  There, it has been held that contracts with fixed beginning dates and fixed end dates are contracts for fixed terms and are to be regarded as such regardless of, for example, their terminability by notice:  British Broadcasting Corporation v. Kelly - Phillips [1997] IRLR 571 at 573.  However, there is no such legislative recognition of fixed term contracts in the Industrial Relations Act 1979.

103   Similarly, there may be requirement in the jurisdiction of the Australian Industrial Relations Commission for that Commission to make such a decision because Regulation 30B(1)(a) of the Workplace Relations Regulations 1996 excludes from the operation of certain sections of the Workplace Relations Act 1996 an employee engaged under a contract of employment for a specified period of time (see for example D’Lima v. Board of Management, Princess Margaret Hospital for Children (1993) 64 IR 19).  Once again, no such exclusion exists in the regulations to the legislation in this state.

104   What is relevant, as the Commission at first instance found to be relevant, was the contract of employment which provided the basis for Mr Gallotti’s employment.  That contract provided for a fixed end-date whether or not one can attach a label to it of “fixed term”.  In this jurisdiction, in the circumstances of this matter, I see nothing at all of relevance in labelling Mr Gallotti’s written contract of employment “fixed term”.  It ought be well understood by practitioners in this field that one cannot change the nature of an employment relationship by attaching a label to it.  The nature of the employment relationship is a matter of fact and that is to be found from the evidence.

THE PRESIDENT:

105   For those reasons, the appeal is dismissed.

Order accordingly