APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 12 AUGUST 2013

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00537

DELIVERED : MONDAY 23 June 2014

FILE NO. : PSAB 17 OF 2013

Appellant

AND

The CEO, Chemcentre Resources and Chemistry Precinct

Respondent

CatchWords : Public Service Appeal Board - Jurisdiction - Fixed term contract - Whether there was a decision to terminate - Conversion to permanency - Refusal to permanently appoint

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

Result : Appeal dismissed for lack of jurisdiction

Representation:

Appellant : The appellant on his own behalf

Respondent : Mr D Matthews of counsel and with him Mr J Carroll for the  respondent

Reasons for Decision

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

2          The appellant was employed by the respondent as a Scientist (Chemist) in the respondent’s Physical Evidence Section, Forensic Science Laboratory.  He says that he was dismissed from his employment on 12 August 2013 and that the decision to dismiss was oppressive and unfair. 

3          Part of the reasons relied upon by the appellant for claiming that he was dismissed is, he says, that he was told his employment would be made permanent, and further that another employee who was employed around the same time as himself was made permanent and he was not. 

4          The respondent is a statutory authority providing scientific services including to WA Police.  The respondent says that the Board has no jurisdiction to deal with the appeal on the basis that there was no dismissal, rather the appellant’s contract of employment came to an end due to the effluxion of time. 

5          The issue for consideration in this matter is whether the Board has jurisdiction to deal with the appeal on the basis of whether there was a decision to dismiss, in accordance with s 80I of the Industrial Relations Act 1979 (the Act). 

Background

6          The appellant responded to an advertisement which stated that employment would be for a fixed term.  By letter dated 17 July 2010, the respondent offered the appellant employment, which included the following terms: 

Dear Jonathan

SCIENTIST (CHEMIST), CCW08001, SCL1, PHYSICAL EVIDENCE SECTION, FORENSIC SCIENCE LABORATORY, THREE YEAR CONTRACT (FULL‑TIME)

I am very pleased to offer you employment as a Scientist (Chemist) within ChemCentre.  You’ll be reporting to Peter Collins, Physical Evidence Section, Forensic Science Laboratory, who will provide you with information about your job and ensure any queries you may have are addressed. 

Your employment is subject to the following terms and conditions: 

Term of Employment:

• Your contract will commence on 22 July 2010 and will cease on 21 July 2013 subject to the continuation of your Visa status to work in Australia. 

• Your employment with ChemCentre will cease on the expiry of this contract.  There is no obligation on either party to enter into further employment arrangements at the end of this contract. 

…

(Exhibit 4)

7          Under the sentence ‘I hereby accept the terms and conditions of this agreement’ the appellant signed the letter and dated it 21 July 2010. 

8          According to the evidence of Mr Ian Miller, the employment contract was for a fixed term because it was reliant on external funding from WA Police.  The respondent’s Forensic Science laboratory, where the appellant worked, undertook scientific services for WA Police on a fee for service basis under a Memorandum of Understanding (MoU).  The duration of the appellant’s contract was for three years due to this arrangement.  The duration of the appellant’s visa was relevant, not to whether or not he would be offered a fixed term contract, but to ensure that the term of the contract did not exceed the period covered by the visa. 

9          The appellant continued to work pursuant to that contract. 

10       The appellant claims that he was told that after a period of two years, his employment would become permanent.  However, it did not become permanent.  Further, he says that he was forced out to make way for a friend of his manager.  Further, he says his employer encouraged him to purchase rather than rent accommodation, and he links this to the undertaking he says was given to him that he would be made permanent.  He says that at one stage, his manager said he would soon be made permanent, but it still did not eventuate. 

11       By letter dated 2 July 2013, the respondent wrote to the appellant in the following terms, formal parts omitted: 

Dear Jonathan

CONTRACT END DATE – OFFER OF A TWO MONTH CONTRACT (FULL‑TIME)

As you are aware, your current employment contract with ChemCentre expires on 21 July 2013 and there is no obligation on either party to enter into a further employment arrangement on expiration of this contract. 

You would also be aware that ChemCentre is currently in negotiations with the WA Police regarding its Memorandum of Understanding (MoU) and as a result of those discussions, there is now funding and business uncertainty, particularly in the Physical Evidence section. 

With the above in mind, I am in a position to offer you employment as a Scientist (Chemist) SCL1, within ChemCentre for two months reporting to David Detata, Team Leader, Physical Evidence Section, Forensic Science Laboratory. 

Your employment would be on the following terms and conditions: 

Term of Employment:

• Your contract will commence on 22 July 2013 and will cease on 21 September 2013. 

• Your employment with ChemCentre will cease on the expiry of this contract.  There is no obligation on either party to enter into further employment arrangements at the end of this contract. 

…

(Exhibit 3)

12       Under the sentence ‘I hereby accept the terms and conditions of this agreement’ the appellant signed and dated the letter 9 July 2013. 

13       By an undated letter received by the appellant on 12 August 2013, the respondent wrote to the appellant under the heading of “CONTRACT END DATE”, in the following terms: 

As you are aware, your current employment contract with ChemCentre expires on 21 September 2013 and there is no obligation on either party to enter into a further employment arrangement on expiration of this contract. 

You would also be aware that ChemCentre’s negotiations with the WA Police regarding its Memorandum of Understanding (MoU) is unresolved and ongoing funding and business remains uncertain. 

Following a recent assessment of work levels in the Physical Evidence Section, it has been determined that the number of cases has reduced sufficiently that we do not require the current levels of resourcing. 

With the above in mind, I regret to advise that your employment with ChemCentre will cease at the expiry of this contract and a new contract will not be offered beyond that date. 

…

(Exhibit 1)

14       On that day, the appellant met with Peter Millington, the Chief Executive Officer of the respondent, and a Charlie Russo at which meeting the appellant was given the letter and there was a discussion of his outstanding work and how it was to be undertaken and re-allocated.  Two days later, the appellant was asked to leave.  He was paid until the end of the contract. 

The Board’s Jurisdiction

15       The jurisdiction of the Board is set out in s 80I of the Industrial Relations Act 1979 (the Act) and relevantly for the appellant’s claim this provides for an appeal ‘against a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed, and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).’  Therefore, the appeal must be against the decision to dismiss. 

16       The Board has previously considered matters of a similar nature including in Keith Brocklehurst v Director General, Ministry of Justice (1994) 74 WAIG 2024.  In that case, the Board noted: 

We observe also that a failure to offer re‑employment does not amount to a dismissal.  When an employee accepts employment for a fixed term the employee must be taken to have consented to the position that the contract comes to an end on a specified day (see Ex Parte Wurth; Re Tully [1954] NSW(SR) 47 at pp 59‑60, 62‑63; and see also Ex Parte; Public Service Commissioner; Unreported; Full Court of the Supreme Court of WA; 24/5/94; Rowland J at p 8).  A decision not to offer a contract of employment does not constitute a “decision” that can be reviewed by the Public Service Appeal Board.  (see Ex Parte; Public Service Commissioner; Unreported; Full Court of the Supreme Court of WA; 24/5/94; and see also CSA v. Public Service Commission (1993) 73 WAIG 1845 and see also CSA v. Public Service Commission (1993) 73 WAIG 3003). 

In light of the Board’s findings in this matter, the element of dismissal necessary to invoke the jurisdiction of the Board does not exist and this appeal should be dismissed. 

17       The Board also considered a similar matter of an appeal against the non‑renewal of the appellant’s contract in Kylie Oliver v Malcolm Goff, Managing Director, Challenger TAFE [2006] WAIRC 05224.  In that matter, the Board noted that ‘unless there was a dismissal, there is no jurisdiction’ (paragraph 9). 

18       The Board also notes the decision of the Industrial Appeal Court in Robert John Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166 where EM Heenan J noted with approval the decision of the President of the Full Bench below to the effect that a ‘contract of employment … terminated … by the effluxion of time… is obviously not a dismissal because there is no termination at the initiation of the employer’.  His Honour went on to note: 

There is ample authority for the proposition that the cessation of the relationship of employer and employee by the effluxion of an agreed term of employment is not a “dismissal”…

There will not be a dismissal where the terms of a contract of employment expires (citations omitted), or where such a contract is not renewed (citations omitted). 

19       The authorities referred to by the appellant are also noted.  In the case of Rosemarie D’Lima v Board of Management, Princess Margaret Hospital for Children [1995] IRCA 446 (25 August 1995), Ms D’Lima was employed on at least 12 short term contracts, and continued to work beyond the end of various contracts.  Sometimes, a manager would ask her to sign a new form which had the effect of backdating a new contract to the end of the previous contract.  This practice was found to be one of administrative convenience and did not overcome the weight of other evidence as to the true nature of the employment being continuous. 

20       The case of ChevronTexaco Australia Pty Ltd v Anthony Richard Ross [2004] WAIRC 12551 relates to a circumstance of an employee undertaking an international assignment within his existing contract of employment, and upon returning to Australia, was retrenched.  The circumstances of the case, and the law relating to that matter do not relate to the present case. 

21       In Phillip Martin Andersen v Umbakumba Community Council [1995] IRCA 166 (4 April 1995) the applicant was engaged on a fixed term contract of employment from 5 April 1993 to 4 April 1995, i.e. for two years.  However, the respondent took active steps to bring the contract to an end after just over one year.  In that situation, there was a dismissal.  The issue in that case was not whether there was a genuine fixed term contract and a dismissal but whether the dismissal, half way through the contract, was unfair. 

Issues and Conclusions

22       The evidence demonstrates, and the Board finds, that the appellant’s contract of employment was initially for a fixed term of three years.  The evidence also demonstrates that when this contract was about to come to an end by the effluxion of time, the respondent offered and the appellant accepted a new contract, also for a fixed term.  This contract, as with the previous contract, expressly stated that it would ‘cease on the expiry of the contract and that there was no obligation on either party to enter into further employment arrangements at the end of [the] contract’. 

23       The circumstances of the second contract coming into existence are that in 2013, the respondent reviewed its structure and personnel requirements in light of funding uncertainty and workload issues and when negotiations with WA Police were unresolved.  The second contract letter made this clear.  The second contract was to enable further time for a final decision to be made.  The respondent also offered this additional contract partly out of concern that it had not given the appellant sufficient forewarning of the impending expiration of the first contract.  The appellant entered into the second contract in the knowledge that the situation was being reviewed and that there was no obligation on the respondent to provide further employment.  The employment came to an end by the effluxion of time and in accordance with the terms of the contract. 

24       There is no evidence that the two fixed term contracts were a sham, and that the employment was genuinely ongoing.  The contracts were related to work the subject of external funding.  They were not continuously rolled over.  There was no intervening period where there was no contract in place.  The circumstances of this case are to be distinguished from the case of Rosemarie D’Lima v Board of Management, Princess Margaret Hospital (supra) where there were numerous contracts, continuously rolled over and periods of work where no contract was in place.

25       The appellant signed the two contracts acknowledging his agreement to their terms.  Those terms included that it was for a fixed term and that there was no obligation on either party to enter into further employment arrangements at the end of the contract. 

26       The appellant may have been told that his employment may be made permanent at some point.  However, by the time the second contract came to an end that had not occurred.  If he was led to believe his employment may be made permanent it may be unfair, however it is not within the Board’s jurisdiction to look into that matter if there is no decision to dismiss and the fixed term contract was genuine and not a sham.  A failure or refusal to permanently appoint is not a decision to dismiss. 

27       We also note with concern that, from our collective extensive experience of dealing with public sector employment matters, there is a not uncommon misconception that those engaged on fixed term contracts are likely, if not guaranteed, to be converted to ongoing or permanent employment after a given period.  It is important that this misconception is corrected because it has the potential to create unfairness and disadvantage to employees.  Employers and supervisors should ensure that any such misconceptions are not propagated in their workplaces. 

28       At the time the appellant’s second contract came to an end by the effluxion of time, there was no, and no requirement for there to be, a decision to dismiss.  There was a decision not to renew the contract, however that is not a matter within the Board’s jurisdiction.  There must be a decision to dismiss, not a decision not to renew the contract, to enliven the Board’s jurisdiction. 

29       Further, whether another employee who was employed around the same time as the appellant was made permanent does not alter the appellant’s status as a fixed term employee.  It may go to an issue of unfairness in not being made permanent but does not alter this jurisdictional impediment.

30       Finally, the appellant complains that he was removed from the workplace a couple of days after being given the ‘End of Contract’ letter on 12 August 2013.  This does not constitute a dismissal either as he was notified that his employment would cease at the expiration of the contract and that a new contract would not be offered, and he was paid until the end of the term of the contract.  Once again, while the appellant may see this as unfair, it comes down to the point that the Board’s jurisdiction is limited to an appeal against a decision to dismiss, not to a range of allegations of unfairness, which, while they may be associated with the circumstances of the employment coming to an end, they do not enliven the Board’s jurisdiction. 

31       Accordingly, there is no jurisdiction in the Board to deal with this appeal and an Order shall issue for its dismissal.