APPEAL AGAINST DECISION TO DISMISS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00703

DELIVERED : FRIday, 27 JULY 2012

FILE NO. : PSAB 4 OF 2012

Appellant

AND

The Director General of Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA)

Respondent

CatchWords : Public Service Appeal Board – Decision to dismiss – Application for extension of time in which to file the appeal – Jurisdiction of Public Service Appeal Board – Reinstatement – Repudiation of employment contract – Regional Migration Scheme – Migration law – Bridging visa – 457 Temporary (Long Stay) Visa – Visa sponsorship by employer – Employer sponsorship for permanent residency

Legislation : Industrial Relations Act 1979 s 26(1), s 80I(1), s 80L(1)

Industrial Relations Regulations 2005 r 107(2)

Migration Act 1958

Result : Jurisdiction to order respondent to sponsor not found

    Jurisdiction to order compensation not found

Jurisdiction re decision to dismiss found

Application for extension of time granted

Representation:

Appellant : Mr M J McPhee of counsel

Respondent : Mr M Aulfrey of counsel

Reasons for Decision

1          These are the unanimous reasons for decision of the Public Service Appeal Board (the Board).

2          This is an appeal against the respondent’s decision to dismiss the appellant said to have been given on 31 January 2012.  The Notice of Appeal was lodged on 23 February 2012 and is therefore out of time.  The appellant also applies for an extension of time in which to file the appeal.

3          On Wednesday 4 July 2012 the Board heard from the parties in respect of challenges to the Board’s jurisdiction by the respondent and the application for the extension of time in which to file the appeal.

Background

4          The appellant, Sherry Martin, is a citizen of the United States of America and is entitled to work in Australia only in accordance with the Migration Act 1958 (Cth) (the Migration Act).  In 2007 she was in Geraldton and due to her domestic circumstances she had been granted the right to work and was on a bridging visa.  She was working at Domino’s Pizza and had also undertaken project work for the Shire of Trayning.  Ms Martin attended an employment expo and at a display by the Western Australian Country Health Service (WACHS) she spoke to Ms Angela Cox, the Senior Human Resources Officer for WACHS, Mid-West Regional Office.  Based on their discussion, Ms Cox indicated to Ms Martin that she may be qualified for a position advertised by WACHS of Aged Care Co-ordinator (otherwise referred to as HACC Co-ordinator) and she gave Ms Martin a copy of the advertisement (exhibit 1, 3).  The advertisement described the position as ‘Permanent - Full Time’.  Ms Martin told Ms Cox of her situation and according to Ms Martin, Ms Cox said that if Ms Martin were the selected applicant for the position there were two ways she could obtain a visa to enable her to work.  The first was under the Regional Migration Scheme and the second was a 457 Temporary (Long Stay) Visa, both of which required sponsorship by an employer.  The Regional Migration Scheme was limited to occupations where there were particular shortages.  Alternatively, a 457 visa would be applied for a period of two years after which the respondent would sponsor her for permanent residency.

5          The position was advertised as being permanent full-time.  Ms Martin applied for the position and was interviewed on 18 June 2007 by a panel of three people; Ms Miranda Wooldridge, the Health Service Manager for Dongara, Eneabba and Mingenew Health Service, Ms Karen Mateljan and Ms Liz Rubery.  The Interview Panel Summary record notes, amongst other things, ‘[a]pplicant…is requiring sponsorship to take on residency in Australia’ (exhibit 1, 56).  Ms Wooldridge’s notes indicate the ‘[a]pplicant seeking sponsorship through immigration.  Seeking permanent residency’ (exhibit 1, 59).  Ms Mateljan’s notes state ‘[n]eeds sponsorship to stay in Australia’ (exhibit 1, 60).

6          In around July 2007, Ms Wooldridge sent an email to a Ms Karen Meats, one of Ms Martin’s referees, noting amongst other things ‘our health service is interested in assisting her with a Regional Migration Scheme sponsorship so that she has visa-coverage to work in Australia for two years’ (exhibit 1, 79).  Ms Martin was the recommended suitable applicant for the position of Community Care Co-ordinator.  This is reflected in page 7 of the Selection Report and Recommendation Form (exhibit 1, 87) which also records:

[t]his however is conditional on the success of attaining via the Regional Migration Scheme, a visa that enables Sherry Martin to work in Australia.

7          An offer of employment was made to Ms Martin.  She was given a letter dated 23 July 2007 which said she had been provisionally selected for the position subject to the requirements of the Public Sector Standards and other requirements.  It noted ‘[y]our permanent appointment cannot be confirmed until after 7 August 2007’ and ‘[i]f you accept and there is [sic] no public sector standard issues, your permanent appointment and associated conditions will be confirmed in writing via an employment contract’ (exhibit 1, 91-92).

8          By letter dated 9 August 2007, Mr Andrew Klein, District Operations Manager – Midwest Murchison for WACHS-Midwest wrote to Ms Martin, ‘I am pleased to offer you a permanent full time contract to the above position’ (exhibit 1, 93).  Ms Martin was subsequently provided with two contracts of employment, one from WACHS and one from Health Corporate Network, which is a central agency dealing with human resource management for the respondent.  Each of those contracts described the employment as a ‘permanent employee’ (exhibit 1, 94, 98 respectively).  Ms Martin signed each of the contracts and returned them as required.

9          On 9 August 2007, Ms Cox sent to Ms Martin a facsimile transmission in which she informed her that there had been no appeals against the selection process and that she would receive a telephone call about her starting date (exhibit 1, 97).

10       The evidence indicates that the respondent’s officers initiated a visa application with the Department of Immigration and Citizenship (DIAC) on Ms Martin’s behalf for a visa for a period of two years.  It appears also that some incorrect information was either provided or reflected in documentation to DIAC and Ms Cox corrected that information saying ‘[t]he occupation details on this visa sponsorship are incorrect.  Sherry has been employed as a Health Aged Care Co-ordinator as per the attached contract that was sent and this position is for a permanent position’ (exhibit 1, 100).

11       Ms Martin was later contacted by the DIAC to provide further information and to sign the visa application form.

12       Ms Martin says she was issued with a 457 Temporary (Long Stay) Visa for a period of four years which expired on 29 January 2012.  By this point she believed it was agreed that she would work for the respondent for two years after which the respondent would sponsor her for permanent residency.  She therefore instructed that her belongings in the United States of America either be sold or sent to her in Australia and she cut all ties with the United States of America.

13       In around August 2008, the respondent commenced asserting that the initial contract marked ‘permanent’ was not valid.  Ms Martin says that in meetings with Mr Klein, he attempted to have her accept a fixed-term contract in place of the permanent contract.  She refused, asserting that the contract for permanent employment was valid.  Ms Martin says in her evidence that in a meeting with Mr Klein, he became aggressive when she asserted she had advice from Legal Aid that her permanent contract was valid, saying ‘[y]ou don’t bloody belong here.  How are you contacting Legal Aid?’ (ts 45).

14       The documents before the Board include advice provided by Mr John Ross, Consultant, Industrial Relations, WA Health Industrial Relations Service dated 2 September 2008 to a Mr Steve Meeny, which was provided to Mr Andrew Klein on 2 September 2008.  This advice included consideration of the withdrawal of the existing visa sponsorship and noted that:

If you did so, the WA IR [sic] Commission cannot order you to continue employment, reinstate the Visa/sponsorship.  It may be considered a little harsh in the circumstances, but that is up to you to decide whether or not issues with her employment warrant that action.  She would probably file an application in the WAIR [sic] Commission claiming wrongful dismissal.  Whilst there would be significant debate over our actions, the Commission could not interfere with that decision.  She could lodge a complaint with Immigration over her treatment but the processes / prospective outcomes are unknown.

Any action is [sic] respect to the Visa sponsorship will terminate employment and raise questions of just cause.

There is no debate that the permanent contract has been issued in error and is not valid, therefore it is appropriate to back dated [sic] the replacement employment contract…

(exhibit 1, 109)

15       On 9 September 2008, Mr Klein then wrote to Ms Martin including the following terms:

I refer to our recent discussions in relation to contractual arrangements under the Temporary 457 Visa Sponsorship.  I wish to confirm that the contract of employment issued to you is incorrect.  A permanent contract has been issued in error and is not valid. …  To be appointed as a permanent employee you must be an Australian citizen or have permanent residency status in Australia.  The permanent contract has therefore been withdrawn.

Consistent with the Federal Immigration Act, 457 Visa and 8107 Visa conditions only support temporary sponsored employment.  WACHS Midwest agreed to provide temporary sponsorship for a period of 2 years.  Therefore it is appropriate to provide you with a contract that reflects the correct agreed term of sponsorship and employment within the health service.  The employment contract for your current role as HACC Coordinator at the Dongara Eneabba Mingenew Health Service is confirmed from 13 August 2007 until 14 August 2009.  A copy of the correct contract is attached for your perusal.  Please sign this contract and return to Bronte Jones by 22 September 2008 for inclusion in your personal record.  It is a 457 Visa condition that you have a valid employment contract.  Not having a valid contract may jeopardize your sponsorship.

You have previously referred to the role of Health Corporate Network (HCN) in providing contracts.  HCN’s role is simply processing and they have no delegated authority to approve or retract contracts.

(exhibit 1, 111-112)

16       As can be seen, this letter purports that the permanent contract was in error, was not valid and had been withdrawn.  Attached was a purported corrected contract for a fixed-term.  The letter also asserted ‘[n]ot having a valid contract may jeopardize your sponsorship’.  The attached contract was headed ‘Contract of Employment – Fixed Term Employee’ and included a term of 13 August 2007 to 14 August 2009.  Otherwise it was the same as the permanent employment contract and included references to permanent employment in the body of the contract.  Ms Martin says she pointed these out and Mr Klein amended them by hand.  Ms Martin refused to sign the contract.

17       Ms Martin says that Mr Klein drummed his fingers on the desk and said ‘[i]f you don’t sign this, this could have repercussions on your visa’ (ts 70).  She says he apologised to her the next day.

18       Ms Martin then engaged the services of lawyers, Ruby & Associates, who wrote to Mr Klein on 6 October 2008 challenging the assertion that the permanent contract was not valid.  The letter also noted, amongst other things:

If you are aware of any specific section of the Migration Act or Migration Regulations that support your contention that our client cannot have a permanent contract, please advise us.  Otherwise, we see no impediment to our client having a permanent contract with the Health Department and we dispute your contention that the contract is invalid and is withdrawn.

From the point of view of contract law, the fact that our client is not a permanent resident is not in our view an impediment to her entering into a permanent contract.  If our client’s 457 Visa was not renewed at the end of its period or she did not obtain permanent residency, the contract would simply come to an end by virtue of the fact that our client could no longer fulfil her employment obligations.  She would give notice and the contract would come to an end.

Even if your contention is correct, which we do not consider to be the case, our client instructs us that her negotiations with Angela Cox, the previous Human Resources manager for the WA Country Health Service – Midwest, were on the basis of our client applying for a permanent residency Visa sponsored by the Health Department.  However, due to our client’s age, it was necessary for our client to first work under a 457 Visa for 2 years after which she would apply for a permanent residency Visa sponsored by the Health Department.  The permanent contract is consistent with the intention that our client would apply for permanent residency at the end of the 2 year 457 visa.  If, however, it was the case that our client could not have a permanent contract and the contract needed to be replaced with a fixed term contract, then such replacement contract must reflect the agreement reached by our client with Ms Cox and refer to the fact that after 2 years, the Health Department would sponsor our client as a permanent resident and offer a permanent contract.

(exhibit 1, 116-117)

19       On 15 October 2008, Mr Klein formally responded acknowledging the letter and said the matter would be investigated.  The respondent then commenced to investigate and as part of that, on 17 October 2008, Ms Cox advised Mr Steve Meeny:

As discussed last week, I have read the attached letter from Ruby & Associates dated 6th October 2008.  In reviewing the initial report from Miranda Wooldridge, who was the manager at the time, the request was for Sherry to be sponsored via a Regional Sponsored Migration Scheme (RSMS).  I recall advising that I was not sure that Sherry would gain sponsorship via RSMS due to her occupation which may not have been recognised as a ‘shortage’ area as per DIAC guidelines.  The sponsorship was granted (albeit a little mix up which has since been fixed).

I have tried to obtain copies of my original correspondence with Lyn McKeown from HealthWA, as this would show the original intentions of the visa application.  Practice at the time in WACHS Midwest (if the manager requested) was to attempt to apply for visa sponsorship via RSMS issuing a permanent contract, but to expedite the process sponsorship was first done on 457.  From reading the ‘interview summary report’ as attached Miranda indicated request for RSMS, which would be part of the reason for permanent contract to be given.

Whilst I would never guarantee sponsorship for permanency, my recall is that this was the intention of the manager and therefore this may have been discussed with the employee.  I do recall Sherry did have concerns about her age, but that would have been for the Midwest Development Commission to assess, and for the employer to support.  The other advice I would generally give to employees on 457 is that they are able to apply for permanent residency after 2 years within Australia anyway.

(exhibit 1, 119)

20       By email dated 12 November 2008, Mr Ross advised Mr Meeny, Mr Klein and Mr Jeff Travers the following (formal parts omitted):

Following discussions with Steve Gregory and the further information provided by Angela Cox it would appear that the only contract that was ever discussed with or offered to Sherry was a permanent contract, and there may well have been some discussions on future support for sponsorship to permanency what commitments if any are subject to interpretation and given they are not in writing would be difficult to substantiate.  The information now provided is contrary to the information originally provided and changes the advice previously given.

It would appear that there were discussions around prospects of a future permanent residency visa at the end of 457 visa, but the circumstances have now changed given the performance issues that have arisen.

WACHS needs to determine what outcome they want given the changes in the information now provided.

The reality of the contractual arrangements are in fact as her lawyer has indicated – if she has no further 457 visa or sponsorship, then she could not meet her employment obligations so the contract regardless of its nature would cease.

I would suggest that the following options are available and should be considered:

• to pursue the permanent contract as an error  and reissue a FTC for the duration of her visa.  This will in all probability be a matter that will be pursued in the WAIRC, but regardless of the outcome, the worst case scenario would be that she would be permanent as opposed to FTC until her visa expired and we did not renew the sponsorship, the contract of employment would cease.

• To advise the employee and her lawyer that notwithstanding we consider the permanent contract was issued in error and is not binding, it will remain in effect, until the date her visa expires, subject to her satisfying the employment obligations and required performance levels of the position.  That we dispute the alleged commitments given by Angela Cox and that there is no commitment by WACHS beyond the current 457 visa.  The WACHS will neither guarantee that sponsorship would continue beyond the existing 457 Visa nor would WACHS guarantee sponsorship of a permanent residency visa or progress sponsorship on Ms Martin’s behalf.  The renewal or replace [sic] of any Visa will be a matter for Ms Martin to address, and there is no pre-existing commitment by WACHS to support or provide any assistance in respect of any further visa applications.

I would suggest that you pursue Option 2 as the overall outcome of both options is effectively the same.  It would be very difficult for her lawyer to argue any expectation perceived or otherwise that the permanent contract and sponsorship should continue beyond the expiration of the visa given the 4 th paragraph of her letter dated 6 October  2008, and the fact that we have clearly stated to any estoppel allegedly established by Angela Cox has ceased.

(exhibit 1, 121)

21       It is clear that by April 2009, the respondent had not answered the letter from Ruby & Associates from nearly seven months before.  Ruby & Associates followed up with a letter dated 8 April 2009 enquiring as to the respondent’s answer.

22       By letter dated a month later, Mr Klein advised that a further investigation had been initiated that day to ‘validate advice received from Department of Health and Immigration officials’ (exhibit 1, 124).

23       By letter dated 30 June 2009, nine months after Ruby & Associates’ letter, Mr Klein wrote to Ruby & Associates in the following terms:

In further correspondence to my letter dated 1 May 2009 I advise that recommendations received from the legal department of the Health Department considers the permanent contract that was issued to Ms Martin is most likely binding.  This remains subject to Ms Martin satisfying her employment obligations and the required performance levels of the position.

WACHS Midwest acknowledges that sponsorship is relative to the 4 year visa granted to Ms Martin and that visa expires in January 2012.  The renewal or replacement of any visa will be a matter for Ms Martin to address and there is no pre-existing commitment by WACHS Midwest to support or provide any assistance in respect of further visa applications following that date.

(exhibit 1, 126)

24       Ms Martin says that between 30 June 2009 and March 2011 the debate stalled.  She says though that she discussed the matter with Mr Andrew Klein six to eight times via the telephone.

25       We note at this point that the fixed term contract with which the respondent purported to replace the permanent contract, at that point said to be issued in error and withdrawn, provided for a term which expired on 14 August 2009.  The respondent appears to have taken no action to bring that matter to a head, and appeared to have abandoned that argument by this time.

26       Ms Martin took no further action until 22 March 2011 when she sent an email to a Mr Shane Matthews asking that ‘you action an application for my permanent residency visa in Australia’.  She said (formal parts omitted):

I am writing to request you action an application for my permanent residency visa in Australia.

At the time of recruitment I was advised by two officers involved with my processing, that after two years, if I chose to stay in my position that the permanent visa application would be made by the department.  I was also told at that time it was standard practice.  This has not occurred to date and I am now seeking confirmation from the Department as to when that application will be made?

It is becoming urgent for me so that I can assess options for my future.  I am assuming this is an oversight by the Department and although I have no written advice from the Department as to this application I have been advised by the officer who recruited me that there are notes to that effect on my file.  The recruiting officer is also willing to confirm these were the terms discussed in a letter to me, should you require it.

I am keen to have this matter resolved as it has been nearly four years.  I will appreciate your prompt attention to this matter prior to my seeking further advice from my lawyer.

(exhibit 1, 127)

27       Mr Matthews forwarded this to Mr Andrew McIntosh, the Regional Manager, Human Resources, WACHS.  By letter dated 2 June 2011, Mr McIntosh wrote to Ms Martin saying that ‘(i)t has been identified that the role of HaCC Coordinators in the Multi Purpose Service sites in the Mid-West is no longer meeting the assessment and care planning requirements’ and that WACHS had sought to convert vacant HACC Coordinator positions to Australian Nursing Federation positions.  Therefore, as HACC positions became vacant ‘or as deemed appropriate’ they would be moving to reclassify those positions to ANF positions.  It is our understanding that this means that the positions were being transferred from coverage under the Health Services Union to that of the Australian Nursing Federation and they would require nurses with clinical qualifications to fill the positions.  As a result, the position Ms Martin held would not be required ‘beyond the tenure of [her] current Visa’.  The letter said that in those circumstances, WACHS Mid-West did not have a requirement to support her permanency in her current role beyond the expiration of her current visa (exhibit 1, 129).  The evidence suggests that only one such position has been reclassified to an ANF position.

28       Ruby & Associates, responded by letter dated 13 July 2011.  They referred to the discussions Ms Martin had had with Ms Cox which were said to include:

an assurance by Ms Cox to our client that her employment was on the basis that our client would apply for a permanent residency Visa sponsored by the Department of Health.  Due to our client’s age, it was necessary for our client to first work under a 457 visa for 2 years after which she would then apply for a permanent residency Visa sponsored by the Department.  The permanent employment contract is consistent with the intention that our client would apply for permanent residency at the end of the 2 year 457 visa.

(exhibit 1, 130)

The letter went on to refer to the requirements for redundancy under the Health Services Union – WA Health – State Industrial Agreement 2008 and that accordingly Ms Martin was entitled to be offered an alternative position within the Department.  The letter asserted that the discussions and negotiations of Ms Martin’s contract of employment were consistent with an implied term of the contract of employment and formed the basis on which she was employed.  They expressed the view that ‘WACHSM has a requirement to support our client’s application for permanent residency to ensure her employment contract does not come to an end’.

(exhibit 1, 130-131)

29       Mr Klein responded to Ruby & Associates on 25 July 2011 in the following terms:

I can confirm, in accordance with advice from the Department of Immigration and Citizenship that at the expiration of a 457 Visa there is no obligation on any employer to further nominate the employee for any further visa.

In accordance with this we confirm WA Country Health Service – Midwest will not be nominating Ms. Martin for further employment with us.

As per your paragraph 5 and in accordance with clause 9.5(c) of the Health Services Union – WA Health – State Industrial Agreement 2008 your client will be offered alternative employment with WACHS whilst she has a legal entitlement to work with WACHS in Australia.

(exhibit 1, 132)

30       On 9 August 2011, Ruby & Associates wrote to Mr Klein stating that Ms Martin had a continuing legal entitlement to work with WACHS based on her employment being permanent and an implied term of the contract of employment that WACHS was required to sponsor her application for permanent residency.  The letter re-iterated the assurances and representations made by Ms Cox and Ms Wooldridge during the recruitment process.

31       The letter went on to note that if WACHS failed to sponsor Ms Martin for permanent residency prior to her 457 Visa expiring, then they were of the view that WACHS was in breach of the contract of employment.  They suggested that WACHS reconsider supporting Ms Martin’s application for permanent residency and that failing a positive response; the matter might be referred to the Western Australian Industrial Relations Commission.  They sought a reply within 14 days (exhibit 1, 133-134).

32       Some six weeks later, they had not received a response and wrote again on 21 September 2011 (exhibit 1, 135).

33       On 5 October 2011, Mr Klein wrote to Ruby & Associates confirming the view that there was no obligation on the respondent to further nominate Ms Martin for any further visa and that they would not be nominating her for further employment.  The letter noted however:

As per your paragraph 5 and in accordance with clause 9.5 (c) of the Health Services Union – WA  Health – State Industrial Agreement 2008 your client, following abolishment of her position, will be offered alternative employment with WACHS whilst she has a legal entitlement to work with WACHS in Australia.

(exhibit 1, 136)

34       There is no evidence that the position occupied by Ms Martin was abolished prior to her employment coming to an end.

35       By December 2011, Ms Martin had been referred to Mr McPhee, Barrister and Solicitor, for advice and representation.  On 20 December 2011, Mr McPhee wrote to the Chief Executive Officer of WACHS noting that it appeared that ‘the Department refuses to renew [Ms Martin’s] Visa or comply with its agreement, made at the time of the recruitment of [Ms Martin] and prior to her engagement, that if my client chose to stay the Department would take whatever steps were necessary to obtain my client’s permanent residence [sic]’.  The letter asserted that the assurances were ‘enforceable, as an implied term of the agreement itself or an agreement collateral to the employment agreement’ and seeking to pursue the matter.  The letter noted that Ms Martin had not yet accepted the repudiation of the agreement and continued to operate according to the permanent contract, and called on the respondent to take whatever steps were necessary to convert the 457 visa into permanent residency to enable Ms Martin to continue working under her contract (exhibit 1, 137-8).

36       Ms Martin did not contact the DIAC to attempt to resolve the issue of her visa until 24 January 2012.  She received the following response (formal parts omitted):

I firstly need to clarify a few issues you have raised. (1) your 457 visa expires on 29/01/2012, not 28/01 as you stated.  (2) if you have employed a Migration Lawyer, they will have advised you that a 457 visa cannot, under any circumstances, be extended.  This is simply not possible. A bridging visa, especially one for 90 days, is highly unlikely.  In the event that you are still in Australia after 29/01/2012, you will be unlawful and will need to attend our office to apply for a Bridging Visa E (BVE).

Please note however that a BVE does not have work rights attached to it and will only be granted whilst you make arrangements to depart the country, usually seven days only.  A BVE or any other bridging visa is not applicable whilst a substantive visa is still current, in this case your 457.

From an immigration point of view, there certainly is no requirement for a 457 visa holders to be eventually sponsored for permanent residence, and the success of any permanent residence application cannot be promised to a visa holder, since both the sponsor and the visa applicant must meet the requirements for permanent residence at the time they apply for it.  It is your responsibility to be applying for any visa you deem suitable for your circumstances, not the responsibility of any other person, regardless of promises or notes made to the contrary.

You have known for some time that your visa expiry was nearing however there is no evidence of you having made contact with our office to discuss your situation until now.  The fact that you hold a permanent work contract does not affect your visa status at all.

(exhibit 3, 15-16)

37       By letter dated 25 January 2012, Dr Felicity Jefferies, the Acting Chief Executive Officer of WACHS, wrote to Mr McPhee disputing that there was a term to Ms Martin’s contract of employment that WACHS would sponsor or otherwise support any application for permanent residency, or that any such assurance were given.  It asserted that it was not within WACHS’ power to grant renewal of the visa and that Ms Martin was to provide evidence that she was able to remain and work in Australia after the expiration of her 457 visa on 29 January 2012.  If not, then her employment contract would come to an end because she would be unable to fulfil her employment obligations with WA Health (exhibit 1, 139).

38       Ms Martin says that on 31 January 2012 when she was awaiting day surgery and had had injections in her eyes, she was called to Mr Klein’s office where he asked her to read a letter provided to her from Mr Graham Coleman, A/Regional Director, WACHS - Midwest.  She was unable to read the letter due to the injection in her eyes.  Mr Klein informed her of the letter’s contents, being (formal parts omitted):

I refer to correspondence dated 25 January 2012 from Dr Felicity Jefferies, A/Chief Executive Officer to your legal representative Mr Michael McPhee, in regard to the expiration of your sub class 457 visa and your employment with the WA Country Health Service.

This letter required you to provide evidence that you were able to remain and work in Australia after your sub class 457 visa expired on the 29 January 2012.  It also stated that should you be unable to remain and work in Australia then your employment contract would come to an end because you are unable to fulfill [sic] your employment obligations with the WA Country Health Service.

I have not received any evidence from you that supports your ongoing work rights within Australia past the 29 January 2012.  Accordingly, you are unable to continue to work within Australia.  I have taken the necessary action to notify Health Corporate Network that your employment has come to an end as at 29 January 2012 and for them to process the payout of any leave entitlements.

The WA Country Health Service is prepared to provide assistance by way of payment of an economy class airfare to enable you to return to the United States of America should you require this assistance.

Could you please ensure that any property of the WA Country Health Service eg: keys, swipe cards etc. is returned to Ms Di Smith, Nurse Manager by COB Wednesday 1 February 2012.

Should you have any questions, please do not hesitate to contact Mr Andrew McIntosh, Regional Manager, Human Resource Services on [telephone number].

(exhibit 1,  140)

39       Ms Martin says she had been checking issues of immigration, visa criteria and options over time.  She says that when she was 49 years of age, the rules allowed her to apply for permanent residency without sponsorship but one of the criteria was that she had to be under 45 years of age.  Therefore she was excluded from applying without sponsorship.  She discovered in December 2011 that in the preceding July, the rules had changed.  They now allowed applications for permanent residency without sponsorship up to 50 years of age.  However, by the time she became aware of the rule change, she had already turned 50 and it was too late for her to make application.

40       After her employment ended, Ms Martin was granted a bridging visa and then a tourist visa for 12 months, however, she has no right to work under that visa.  She is required to leave the country every 90 days to continue with the tourist visa, and is running out of money.  She has nothing to go back to in the United States.

Consideration and Conclusions

41       The Notice of appeal was lodged with the Registrar on 23 February 2012 and includes an application for an extension of time to file the appeal notice.

42       The orders sought in the notice of appeal are ‘that the Respondent sponsor the Appellant pursuant to relevant Migration Law to enable the Appellant to live and work in Australia and following that the Respondent reinstates the Appellant.  Alternatively, the Respondent compensates the Appellant’ (Grounds of Appeal, [21].

43       The respondent says that the Public Service Appeal Board does not have jurisdiction to order that the respondent sponsor the appellant pursuant to relevant migration law.  Further, it says that there was no dismissal against which the appellant could appeal, and thirdly, it says that the Board does not have the power to order the respondent to compensate the appellant.

44       The Board is also to consider the application for an extension of time in which to file the appeal.

Jurisdiction

45       For the purpose of dealing with the issue of jurisdiction and extension of time, it is necessary to find the relevant facts.  We do so based on Ms Martin’s evidence and the documents before the Board.

46       The jurisdiction of the Board, in this case, is to hear and determine an appeal by a government officer from a decision, determination or recommendation (decision) of the employer that the government officer be dismissed, and to adjust that decision (Industrial Relations Act 1979 (s 80I (1)) (the Act)).  It is not the same as the Commission’s jurisdiction in dealing with a claim for unfair dismissal where the remedy is specified as being reinstatement or compensation.  The appeal to the Board is against the decision.  There is no capacity to go beyond the adjustment of the decision (State Government Insurance Commission v Terence Hurley Johnson (1997)) [77 WAIG 2169].

Sponsoring for Migration Purposes

47       According to s 80L(1) of the Act, the provisions of s 26(1) apply to the exercise by the Board of its jurisdiction.  Section 26(1) requires the Board in the exercise of its jurisdiction to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms.

48       Ms Martin seeks an order that the respondent sponsor her pursuant to migration law to enable her to live and work in Australia; that it reinstates her or alternatively compensates her.  It is clear from SGIC v Johnson that the Board's only power is to ‘adjust’ a decision to dismiss.  In his reasons for decision, Anderson J stated that:

In the case of a decision or determination by an employer to dismiss an employee with one month’s pay in lieu of notice, the most obvious way to do that would be to reverse it.  Whether there may be other ways of adjusting such a decision is perhaps an open question.  It may be arguable that the power to adjust a decision of dismissal includes a power to adjust the period of notice (2170).

49       The requirement in the term ‘adjust’ is for the Board, if it finds for the appellant, to adjust by changing the decision.  We are of the view that to order the respondent to sponsor for migration purposes is in Anderson J’s words ‘to super-add a consequence to the decision to dismiss, but it is not to adjust the decision to dismiss’ (2171).  We are satisfied that there is no capacity for the Board to entertain a claim that the respondent sponsor Ms Martin under migration law.  That would not be an adjustment of a decision to dismiss.  Accordingly, we find that the Board does not have jurisdiction to order the respondent to sponsor Ms Martin.

50       As to the claim of reinstatement, we are of the view that the adjustment of a decision to dismiss might include the reversal of the decision to dismiss, or an order quashing the decision.  That would have the effect of placing the employee in the position she or he was in before the decision to dismiss was made.  This has the same effect as a decision to order reinstatement, albeit that such an order is not then necessary.  Further, an order that quashes the decision to dismiss, in placing the employee back in the employment as if the dismissal did not occur, would have the effect of entitling the employee to wages or salary for the period from the decision onwards as if she or he had been employed.  However, as noted in SGIC v Johnson, there is no jurisdiction to order compensation as such.

A Decision to Dismiss?

51       Is there a decision to dismiss against which an appeal might lie?  This requires consideration of the nature of the employment and the terms of the contract of employment.

The Terms of the Contract

52       On the morning of the hearing the respondent withdrew from its position that the permanent contract was issued in error, but says that permanency was subject to Ms Martin having a visa which entitled her to work.

53       The evidence is clear, and we find, that it was always the intention of the parties that the contract was to be for permanent employment.  We find too that in those circumstances, and given the discussions between Ms Martin and Ms Cox and others, that it was agreed that to enable Ms Martin to be engaged permanently, it was necessary for her to have working rights in Australia.  For that purpose the respondent was going to sponsor her, initially for a 457 Temporary (Long Stay) Visa, and then it would sponsor her for permanent residency.  As Ms Cox said in her email of 17 October 2008, this was the practice at the time.  We find that this was an implied term of contract.  Without such a term, the contract would lack business efficacy; that is, Ms Martin could not be a permanent employee unless the respondent sponsored her for permanent residency as it had indicated through Ms Cox and others that it would do.  The contract could not operate without Ms Martin being a permanent resident and the respondent’s sponsorship of her was an essential element of that (Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] 149 CLR 337 at 334 (Mason J).

54       The implication of the term is also fair as this is what the respondent agreed to do at the outset, and Ms Martin relied on it to her detriment.

55       The implication of the term is also so obvious that it goes without saying.  The respondent would not have offered a permanent contract if it had not intended to assist Ms Martin to gain permanent residency.  One could not have permanency without that assistance.  Ms Cox submitted information to the DIAC, and the respondent provided sponsorship for the 457 visa on the basis that it was the first and essential step to be taken before permanent residency could be applied.  Such a term can be clearly expressed.

56       There is no express term within the contract which is contradicted by an implied term that the respondent would sponsor Ms Martin for permanent residency.  The only term in either of the two contracts signed by the parties dealing specifically with the visa requirements is contained in contract provided by WACHS, and that term was that the employment would commence subject to Ms Martin obtaining the required visa approval (exhibit 1, 94).

57       In all of those circumstances we find that a term requiring the respondent to sponsor Ms Martin for permanent residency was a term of the contract.

58       The respondent’s argument that Ms Martin failed in her obligation to act to obtain the necessary visa to enable her to continue to work seems to be hypocritical given that there was no point in her applying without sponsorship.

59       The appellant says also that the respondent had a duty to cooperate in her obtaining a visa.  According to Cheshire and Fifoot's Law of Contract:

A strong current of authority establishes a general obligation implied in every contract that has been labelled the duty of co-operation.  The duty is usually defined in the following formula (the Butt formula), endorsed on numerous occasions by the High Court and other Australian courts:

‘It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract.’

The underlying principle is that contracting parties must not only adhere to the letter of the contract, but ‘take all such necessary or additional steps in the performance of the contract that will … contribute to the full realization of the bargain’.  This is obviously required where performance of a contract by one party requires co-operative acts by the other, for example, making available premises at a reasonable time.  But the obligation is not confined to such acts, but extends to acts which ‘are necessary to entitle the other contracting party to a benefit under the contract’.

(Cheshire and Fifoot’s Law of Contract 9th ed, [10.41])

60       In this case the respondent was required in its obligation to co-operate, to sponsor Ms Martin for permanent residency so she could have the benefit of her permanent employment contract.  While the respondent could not guarantee that the DIAC would grant permanent residency, it had an obligation to fulfil its own part of the bargain.

Repudiation and Dismissal

61       As to the question of repudiation, we find that it is most likely that the respondent repudiated the contract when it notified Ms Martin on 30 June 2009 that ‘there is no pre-existing commitment by WACHS Midwest to support or provide any assistance in respect of further visa applications’ (exhibit 1, 126), contrary to the previous agreement.  This was done following Ms Martin’s refusal to accept the fixed term contract in place of the permanent one.  Later, the respondent seems to have abandoned that argument.

62       However, we find that Ms Martin did not accept the respondent’s repudiation.  She continued to work under the contract and continued to protest at the respondent’s conduct, obviously hoping to convince the respondent to change its mind.

63       Following this, by letter dated 2 June 2011, the respondent moved to another or additional basis to justify bringing the employment to an end.  This was the decision to reclassify HACC positions when they became vacant ‘or as deemed appropriate’.  This resulted in Ms Martin being informed that the position she held would not be required ‘beyond the tenure of [her] current Visa.’  This was said to be the justification to not ‘support [her] permanency in [her] current role beyond the expiration of [her] current Visa’, (exhibit 1, 129).

64       Still, Ms Martin continued to seek that the respondent support the application for permanent residency, which the respondent continued to reject.

65       On the day Ms Martin’s visa expired on 31 January 2012, the respondent provided Ms Martin with a letter which said that her employment had come to an end due to her being unable to continue to work within Australia, and she was asked to return any of the WACHS property including keys and swipe cards.

66       We find that the respondent made a decision to terminate Ms Martin’s employment.  It made that decision a number of times.  Firstly we find that the decision made in September 2008, to claim that the contract was fixed term and not permanent, and to attempt to reject any ongoing commitment to sponsorship, gave the first warning that the respondent was not going to permit the employment to continue.  If this decision had become effective, the fixed term contract the respondent sought to impose on Ms Martin would have come to an end on 17 August 2009.  It did not pursue that approach.

67       However, the respondent then purported to decide to make the position redundant due to the need to reclassify it.  That was in June 2011.  This, in effect, constituted a decision to terminate when the visa expired.  Finally, when the visa did expire, the respondent reaffirmed its earlier decision.

68       Therefore, we find that the decision to dismiss could have been any one of a number of decisions.  The effective decision, though, was the one of 2 June 2011 which said that Ms Martin’s position ‘would not be required beyond the tenure of [her] current Visa’, and that WACHS ‘does not have a requirement to support permanency in your current role beyond the expiration of your current Visa’ (exhibit 1, 129).

69       In those circumstances we find that there was a decision to dismiss, which is within the Board’s jurisdiction.

Illegality

70       The respondent says even if there was a dismissal, that reinstatement is not possible because the Board cannot order a party to commit an offence.  Ms Martin is currently in Australia under a tourist visa and accordingly, is not permitted to work.  The respondent would commit an offence by allowing a non-citizen to work in breach of a visa condition (Migration Act 1958 (Cth) s 245AC(1)(b)) and be susceptible to a penalty on conviction of 2 years’ imprisonment (s 245AC(3)).

71       Nelson & Nelson [1995] HCA 25; (1995) 184 CLR 538 (9 November 1995) dealt with the issue of illegality as it applies to various categories of law, such as trusts, contract, tort and negligence. Deane and Gummow JJ noted that the operation of the particular statute is significant and whether, for example, there is an express and absolute prohibition on the doing of a particular act, or whether there is, for example, an implied prohibition in the statute.  One category described by Deane and Gummow JJ [45] is ‘contracts and trusts not directly contrary to the provisions of the statute by reason of any express or implied prohibition in the statute but which are “associated with or in the furtherance of illegal purposes”.’  They say that in such cases ‘the courts act not in response to a direct legislative prohibition but, as it is said, from ‘the policy of the law’.  This requires consideration of the scope and purpose of the particular statute.  The formulation of the appropriate public policy in this class of case may more readily accommodate equitable doctrines and remedies and restitutionary money claims than is possible where the making of the contract offends an express or implied statutory prohibition' [47].

72       Dawson J examined the issue of illegality in equity saying that the principle of he who comes into equity must come with clean hands is the appropriate maxim for the particular case [15].

73       Toohey J noted that:

Although the public policy in discouraging unlawful acts and refusing them judicial approval is important, it is not the only relevant policy consideration.  There is also the consideration of preventing injustice and the enrichment of one party at the expense of the other [45].

74       McHugh J referred to the Holman dictum that ‘[n]o Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act’.  His Honour noted ‘[t]he principle contained in this dictum applies in both law and equity.  But it is subject to exceptions which allow relief to be granted despite the presence of illegality’ [18].

75       None of McHugh J’s exceptions specifically relate to a situation where the upholding of a claim may place the other party in a situation of contravention of a statute, where that party brought about the potential state of contravention or where that party has a capacity to attempt to bring itself within the law, and has refused to comply with contractual terms which would require it to bring itself into compliance with the law.

76       In this case, if the appeal was successful, the respondent would not, in terms, be ordered by the Board to employ the appellant, rather the order would be to uphold the appeal and to reverse the decision to dismiss.

77       The decision to grant a visa to the appellant is not the respondent’s decision but that of the Minister for Immigration.  However, it is within the respondent’s capacity to apply to sponsor the appellant and thereby to affect whether or not it would be in contravention of the Migration Act in the circumstances of the Board upholding the appeal.  Further, in doing so, the respondent would be meeting the requirements of co-operation in the contract and of good faith.

78       As noted in Nelson & Nelson, the principle of illegality is not always determinative of the particular case, and the result is no longer that ‘the loss will automatically lie where it falls’.

79       We are satisfied though that as set out in Nelson & Nelson, there is, particularly within the means of the respondent, the capacity to deal with that situation and seek to overcome any potential illegality.  It would be disingenuous and cynical to now rely upon a situation which the respondent appears to have brought about by its own conduct to deny the appellant a remedy should one be appropriate.  In those circumstances, we would dismiss this ground of challenge to the Board’s jurisdiction.  As noted earlier, the Board does not order the reinstatement of the appellant, rather it adjusts the respondent’s decision and that adjustment would most likely reverse the decision.  It would then be for the respondent to deal with a situation of its own making.

Appeal Lodged Out of Time

80       In deciding whether to grant an application for an extension of time, the criteria established in Prem Singh Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] 84 WAIG 683, are applied to claims made to the Commission’s general jurisdiction.  They are similar to those in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, which set out four relevant factors being length of the delay, the reasons for the delay, whether the appellant has an arguable case and any prejudice to the respondent.

81       Given that we have found that the effective decision to dismiss was the one notified to Ms Martin through her solicitors by letter dated 2 June 2011, this makes the appeal nearly eight months out of time.  In the scheme of legislation which provides 21 days, this is an inordinate delay.  However, that is not the end of the matter.

82       The respondent has known from the time it first asserted that it would not sponsor Ms Martin for permanent residency and that the employment would then come to an end, that Ms Martin challenged the decision.  Mr Ross’s emails are evidence of the respondent being fully aware of the prospects of a claim being made against its decision.  Ms Martin continued her objections until the end of the employment and beyond.

83       The reason for the delay of two days when it was asserted that the decision to dismiss was made on 31 January 2012 was representational error.  Ms Martin has been represented by legal practitioners from at least 6 October 2008, soon after the respondent first asserted that the contract was invalid.  Throughout this time they have challenged the respondent’s actions.

84       As to whether Ms Martin has an arguable case, based on a ‘rough and ready’ assessment of the evidence presented, it appears that the respondent has not treated Ms Martin fairly, and its conduct throughout the process has been cynical, bullying and hypocritical towards a person in a vulnerable position.  Ms Martin says that the respondent had a duty of good faith in the circumstances and has breached that duty.

85       Doubts have been expressed about the implication of such a term of a duty of good faith in particular classes of contracts in Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL & Ors [2005] (VSCA 228).  However, Buchanan JA in that case, Osborn AJA an Warren CJ concurring, said:

I am reluctant to conclude that commercial contracts are a class of contracts carrying an implied term of good faith as a legal incident, so that an obligation of good faith applies indiscriminately to all the rights and power conferred by a commercial contract.  It may, however, be appropriate in a particular case to import such an obligation to protect a vulnerable party from exploitative conduct which subverts the original purpose for which the contract was made.

86       In this case, Ms Martin has a contract providing her with employment.  This contract relied on the respondent complying with its obligations to sponsor her for permanent residency.  It is to be borne in mind that Ms Martin, in reliance on the respondent’s promise to sponsor her, acted to sell up and cut her ties in the USA.  She was vulnerable then to the respondent’s failure or refusal to live up to its side of the bargain.

87       There is a suggestion within the documents that there were issues of substandard performance on Ms Martin’s part.  The emails and other correspondence between the departmental officers suggest very strongly, and we find, that it is highly probable that, rather than deal with these issues appropriately, the respondent decided to take the easy way out to be rid of Ms Martin.  Firstly, it tried to assert that the permanent employment contract was issued in error.  We find that the evidence suggests that Mr Klein’s approach was to attempt to bully Ms Martin into accepting a fixed term contract in lieu of the permanent one, suggesting that refusal to sign the fixed term contract may affect her visa.  Secondly, in his email of 2 September 2008, Mr Ross dealt with the possibility of the respondent withdrawing sponsorship and that, in his view, ‘WA IR Commission cannot order you to continue employment, reinstate the Visa/sponsorship.  It may be considered a little harsh in the circumstances’, and ‘[a]ny action in respect to the Visa sponsorship will terminate employment and raise questions of just cause.’  He went on to assert that the permanent contract was not valid.  Mr Ross’s advice both on that day and on 12 November 2008 focussed on the respondent avoiding responsibility by either asserting the invalidity of the contract or awaiting the expiration of the visa and consequently the employment contract would cease.  Interestingly, Mr Ross also referred to ‘any estoppel allegedly established by Angela Cox had ceased’ by the department’s statements.

88       Ms Martin’s vulnerability in her employment was hereby established.  In those circumstances, we find that there is an arguable case that the respondent had a duty of good faith in this contract of employment and had breached that duty.  Its decision to dismiss, in that context, would appear to be unfair.  In all of those circumstances we find that, on a rough and ready assessment of the merits of this case, there is an arguable case.

89       As to any prejudice which might be suffered by the respondent, we note the respondent’s argument regarding a potential breach of the Migration Act and the law regarding the illegality.  We have dealt with that earlier.  The respondent does not rely on any prejudice caused by the delay.

90       In deciding whether to grant an extension of time, we note that in Gallo v Dawson [1990] 64 ALJR 458, McHugh J said that ‘the discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties.’  In all of the circumstances of this case, the strict application of the time limit set out in regulation 107(2) of the Industrial Relations Commission Regulations 2005 would ‘work an injustice upon the [appellant]’ (Gallo v Dawson (459)).  We would allow the application for extension of time in which to file the appeal.