WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00141

DELIVERED : Friday, 11 March 2016

FILE NO. : U 166 OF 2014

Applicant

AND

SolarisCare Foundation

Respondent

CatchWords : Termination of employment – Harsh, oppressive and unfair dismissal claim – Claim of unfair dismissal also filed in Fair Work Commission – Fair Work Commission claim dismissed because applicant not dismissed – Employment ending at conclusion of fixed term is not a dismissal – Effect of Fair Work Commission decision on WAIRC claim considered – Estoppel

Legislation : Industrial Relations Act 1979  s 29AA(1), s 29AA(2)

  Fair Work Act 2009  s 382, s 386(2)(a)

Result : Claim of unfair dismissal dismissed

Representation:

Applicant : Mr M Gugiatti (by written correspondence)

Respondent : Ms E Moran, of counsel

Case(s) referred to in reasons:

Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166; (2003) 83 WAIG 3053

Gugiatti v SolarisCare Foundation Ltd [2015] FWC 2447

Gugiatti v SolarisCare Foundation Ltd [2016] FWCFB 280

Knight v Commissioner of Police [2011] WASC 93

Reasons for Decision

1         On 6 August 2014, Mr Gugiatti referred a claim of unfair dismissal to the Commission.  He also made a claim of unfair dismissal in the Fair Work Commission (FWC).  Section 29AA(1) and (2) of the Industrial Relations Act, 1979 (WA) (the Act) state as follows:

29AA. Certain claims not to be determined

 (1) Subject to subsection (2), the Commission must not determine a claim of harsh, oppressive or unfair dismissal from employment if the dismissed employee has lodged an application with Fair Work Australia for relief in respect of the termination of that employment.

 (2) Despite subsection (1) the Commission may determine the claim if the application to Fair Work Australia is —

 (a) withdrawn; or

 (b) rejected or dismissed on the ground that it is not within the jurisdiction of Fair Work Australia to determine the application.

2         Therefore his claim of unfair dismissal in this Commission did not proceed.

The FWC proceedings

3         Mr Gugiatti proceeded with his claim in the FWC and on 9 April 2015, the FWC issued its decision dismissing Mr Gugiatti’s claim ([2015] FWC 2447).  The FWC decision notes that the respondent raised the following jurisdictional objections: 

1. That Mr Gugiatti was engaged for a specified period of time for the purposes of s 386(2)(a) of the Fair Work Act 2009 (Cth) and was not dismissed; and

2. Mr Gugiatti failed to complete the minimum employment period applicable to a small business employer pursuant to s 382 of the Fair Work Act 2009. 

4         After considering the evidence, the FWC found that Mr Gugiatti’s contract of employment was for a specified period of time ending on 6 August 2014.  The FWC found that the respondent decided not to offer him a new contract and that he was informed of this on 9 July 2014.  Mr Gugiatti last worked on the morning of 15 July 2014 and he sent a text message to the respondent saying he was not going to be coming into work again.  Mr Gugiatti did not work after 15 July 2014 and was paid to the end of the period of his contract of employment; he was also paid an additional two days’ pay which was not a contractual entitlement. 

5         Consequently, the FWC found that Mr Gugiatti’s employment terminated at the end of his specified period of employment and therefore he had not been dismissed. 

6         The FWC then considered the second jurisdictional objection and held that Mr Gugiatti had not completed the required minimum employment period. 

7         Mr Gugiatti appealed the FWC decision, however, he did not appear at his appeal.  On 5 February 2016, a Full Bench of the FWC dismissed his appeal ([2016] FWCFB 280). 

The respondent’s request that the claim be dismissed

8         On 10 February 2016, the respondent requested that his claim of unfair dismissal in this Commission now be dismissed.  It did so on the basis that Mr Gugiatti has proceeded in the FWC at first instance and in his application for permission to appeal, on the basis that the respondent is a constitutional corporation.  Accordingly, on Mr Gugiatti’s position, the respondent does not fall within the jurisdiction of this Commission. 

9         It submits that Mr Gugiatti is estopped from proceeding in the Commission because he has represented to the FWC, and to the respondent, that he regards the respondent as a constitutional corporation.  The respondent has relied upon this representation and has participated in the FWC proceedings without challenging jurisdiction on this point.  It would be to the respondent’s detriment if his claim of unfair dismissal in this Commission was to proceed and cause the respondent to devote further time and resources to those proceedings. 

10      It states the respondent is a small not‑for‑profit organisation without a dedicated human resources staff member or in‑house counsel.  Further proceedings will impose a real and substantial burden on the respondent in terms of time and resources diverted from its core activities, which are to support cancer patients and their families. 

11      The respondent’s request that Mr Gugiatti’s claim of unfair dismissal in this Commission now be dismissed was set down to be heard on 1 March 2016 at 11.30 am and the notices of hearing were sent on 15 February 2016. 

Mr Gugiatti’s request for an adjournment

12      On 25 February 2016, Mr Gugiatti sought an adjournment.  He noted he had received the notice of hearing via email on 16 February 2016, although he says he did not read it until late on 18 February 2016, and that he had received a printed copy of the notice of hearing by post on 22 February 2016.  Mr Gugiatti stated that the respondent’s request raises issues that involve complex areas of law, including arguments regarding estoppel and whether the respondent is a constitutional corporation, which are issues not previously raised by the respondent and not tested before this Commission. 

13      Mr Gugiatti stated that he is impecunious and self‑represented.  He says he has been suffering from significant ill health and has been the carer for a high needs individual.  He also says that the parties are presently in settlement discussions and these discussions could benefit from some small amount of additional time to progress the matter.  He requested that the hearing be adjourned and the programming for the filing of documents in relation to this matter be accordingly adjusted for a period of two weeks. 

14      The respondent objected saying that Mr Gugiatti has had since August 2014 to seek legal advice about jurisdiction.  He has persistently raised ill‑health as a reason to avoid hearings or seek adjournments.  The respondent submits it will be prejudiced by a further adjournment, and refusing the adjournment will have no effect in relation to any settlement proposal. 

15      On 29 February 2016, I refused the request for an adjournment and informed the parties that the hearing would proceed.

The hearing

16      On the day of the hearing Mr Gugiatti did not attend.  The hearing commenced in his absence.  At 11.43 am, which is after the time set for the commencement of the hearing, he telephoned the Commission to say that he would not be attending and requesting that his written submissions be considered instead.  He said he had already emailed them, with a copy to the respondent.  A note to that effect was passed to me in the hearing and I made its contents known to the respondent. 

17      I note that the Commission did not receive these submissions until late afternoon that day because the Commission’s email system was not working, however Mr Gugiatti has not suffered any detriment from that because although the hearing proceeded in his absence, I adjourned the hearing after the respondent’s submission in order to take his written submissions into account.

The respondent’s submission

18      In the hearing the respondent spoke to its written request.  The respondent pointed out that although the merits of Mr Gugiatti’s claim of unfair dismissal have not been considered by the FWC, the FWC had considered the nature of his engagement and concluded that he was not dismissed.  In that respect the issue of whether the respondent is a constitutional corporation does not arise because if Mr Gugiatti has not been dismissed, he cannot claim he has been unfairly dismissed.

Mr Gugiatti’s written submissions

19      In Mr Gugiatti’s written ‘Reply to the respondent’s application for dismissal for want of jurisdiction’, he submits regarding estoppel that the doctrine is designed to protect a party from the detriment that would flow from a change in position of the other party that would leave the expectations of the first party groundless. 

20      He says that he was advised to lodge claims of unfair dismissal in both jurisdictions and did so, and that the issue of whether or not the respondent is a constitutional corporation was not raised, agreed or determined at the time he did so and nor was that issue raised, tested or  determined before the FWC.  In relation to his claim in this Commission he has not changed his position, therefore an argument of estoppel cannot be substantiated.

21      Mr Gugiatti also submits that s 29AA(1) prevented him from proceeding with his claim in this Commission and he had proceeded with his claim in the FWC on that basis.  The FWC has not considered the substantive merits of his claim of unfair dismissal and if the respondent now succeeds in having his claim in this Commission dismissed for want of jurisdiction, his claim will not have been considered on its merits in any jurisdiction.  This is undesirable as a matter of public policy.

Consideration of the issues

22      I refused Mr Gugiatti’s request for an adjournment because, in my view, a proper consideration of the respondent’s request to dismiss this claim does not require an investigation of whether the respondent is or is not a constitutional corporation, or an in-depth knowledge of the doctrine of estoppel.  Mr Gugiatti is self-represented and says he is impecunious and I did not consider it fair to him to allow him an adjournment if its principal purpose was to give him time to investigate matters which, at this stage, were not necessary. 

23      The respondent’s submission is quite correct because Mr Gugiatti’s claim of unfair dismissal in this Commission cannot proceed because he was not dismissed – his employment ended when his contract expired.  That is not a dismissal under the Fair Work Act and it is not a dismissal under the Industrial Relations Act 1979 (WA) either: as Ms Moran correctly pointed out, the law is clear that where an employee’s employment comes to an end at the end of a fixed term of employment, it does not constitute a dismissal: Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166; (2003) 83 WAIG 3053.  If Mr Gugiatti was not dismissed, he cannot claim to have been unfairly dismissed. 

24      The FWC is a tribunal with jurisdiction over claims of unfair dismissal and heard evidence of the merits of Mr Gugiatti’s claim of unfair dismissal, sufficient to be able to find that Mr Gugiatti’s employment terminated at the end of his specified period of employment and therefore he had not been dismissed.  The decision disposes once and for all of that fundamental matter so that, except on appeal, it cannot be re-litigated between the persons bound by the decision.  That same fundamental matter should not be permitted to be re‑litigated in this Commission between these same parties as the parties to the FWC decision.  It is that which is undesirable in the public interest. 

25      This does not raise complex questions of whether the respondent is a constitutional corporation.  If estoppel applies at all, it is not whether Mr Gugiatti has changed his position; he has not done so.  It is that a tribunal with the jurisdiction to decide at least whether he was or was not dismissed, has heard the evidence about that threshold issue and determined it against him and he should not be permitted now to argue in this Commission that the FWC decision was wrong.  The respondent’s request that Mr Gugiatti’s application be dismissed should be granted. 

26      Mr Gugiatti’s written submission would be quite correct if the FWC had not dealt with his claim of unfair dismissal at all, but it had at least to the extent of determining that he had not been dismissed.

27      The issue is capable of being looked at from a different direction.  Mr Gugiatti has shown that he is aware that s 29AA(1) of the Act prevents this Commission from determining his claim of unfair dismissal if he has lodged an application with the FWC for relief in respect of the termination of his employment.  There are two exceptions in s 29AA(2).  These are that this Commission may determine his claim if the application to the FWC is —

(a) withdrawn; or

(b) rejected or dismissed on the ground that it is not within the jurisdiction of Fair Work Australia to determine the application.

28      Mr Gugiatti’s claim in the FWC was not withdrawn.  It was dismissed on the ground that the claim was not within the jurisdiction of the FWC to determine the application because Mr Gugiatti was not dismissed. 

29      Section 29AA(1) is a provision which prevents a person being allowed to argue in both the FWC and this Commission that he has been unfairly dismissed.  That is as it should be: a person does not have ‘two bites at the cherry’.  That provision prevents Mr Gugiatti, having argued in a claim of unfair dismissal in the FWC that he had been dismissed and having been found by the FWC not to have been dismissed, from then coming to this Commission to argue in this claim of unfair dismissal for a second time, that he was dismissed.  Correspondingly, the respondent should not be required to have to defend the same claim in two different jurisdictions. 

30      Section 29AA(1) in my view reflects the doctrine of issue estoppel which applies where some question of fact or law was necessarily decided as part of the legal foundation of a decision. Regardless of whether the action failed or succeeded, issue estoppel will operate to prevent that same question of fact or law from being relitigated in proceedings on a different cause of action between the same parties: Knight v Commissioner of Police [2011] WASC 93 at [49].  Mr Gugiatti was not dismissed by the respondent.  As such, his claim in this Commission that he has been unfairly dismissed falls at the first hurdle. 

Decision

31      For all of those reasons, an order now issues dismissing Mr Gugiatti’s application in this Commission.