WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00876

DELIVERED : monday, 14 November 2016

FILE NO. : B 104 OF 2016

Claimant

AND

Whelans

Respondent

CatchWords : Industrial law (WA) - Contractual benefits claim - Claimant alleged respondent had to train him to become a licensed surveyor - Principles applied - No contractual term express or implied for employer to ensure necessary training - Claim dismissed

Legislation : Industrial Relations Act 1979 (WA)

  Licensed Surveyors Act 1909 (WA)

  Licensed Surveyors (Licensing and Registration) Regulations 1990 (WA) 

Result : Claim dismissed

Representation:

Claimant : In person

Respondent : Mr J Lilleyman as agent

Reasons for Decision

1         The claimant alleges that it was a term of his contract of employment with the respondent that it would provide him with all the necessary training to become a licensed surveyor under the Licensed Surveyors Act 1909. 

2         By way of uncontroversial background, the claimant was employed by the respondent in March 2007 as a “Survey Party Leader”.  Around that date, the claimant entered into an Employer‑Employee Agreement with the respondent, an example of which, the signed copy having been lost over the years, became Exhibit 4 in these proceedings. 

3         It was the intention of the claimant, understood by the respondent, to become a licensed surveyor.  To achieve this, a person such as the claimant enters into a “professional training agreement”, as described in regulation 4 Licensed Surveyors (Licensing and Registration) Regulations 1990. 

4         Professional training agreements are regulated by the Licensed Surveyors (Licensing and Registration) Regulations 1990, which make provision for their registration by the Land Surveyors’ Licensing Board. 

5         The claimant entered into a professional training agreement with Mr Philip Jonath, a licensed surveyor employed by the respondent, on 12 November 2007, and it was registered by the Land Surveyors’ Licensing Board on 12 December 2007. 

6         Mr Jonath resigned from his employment with the respondent in January 2011.  The professional training agreement, however, continued with Mr Jonath as the supervising surveyor. 

7         To become a licensed surveyor, a person must pass the examinations prescribed by regulation 10 Licensed Surveyors (Licensing and Registration) Regulations 1990. 

8         The claimant undertook one such examination in March 2011.  This was a field test referred to in the proceedings as the “Boya examination” because it took place in Boya. 

9         The claimant failed the examination and when informed of this he resigned from his employment with the respondent. 

10      As I have stated, the claimant claims that it was a term of his contract that the respondent would provide him with the training necessary to become a licensed surveyor and that it breached the term by not providing him with that training. 

11      The particulars of the claim were various and appear in the Notice of Claim and were clarified and explained, and some emphasised, in the hearing.  They can now be summarised as follows: 

(1)   The claimant had a weakness in relation to rural survey work which was known to the respondent but not addressed by them;

(2)   Mr Jonath did not go “into the field” to supervise and train the claimant, especially in relation to rural survey work, and the respondent did not address this;

(3)   The respondent did not find a new supervising surveyor within its employ to replace Mr Jonath as a party to the professional training agreement when Mr Jonath resigned; and

(4)   The respondent was not proactive enough, once Mr Jonath had resigned in January 2011, in ensuring that the claimant was ready for the Boya examination in March 2011 and effectively left it to the claimant to “train himself.”

12      The claimant gave evidence in the proceedings.  He also called Gregory John Ireland, a licensed surveyor employed at all material times by the respondent.  The respondent called Philip George Jonath.

13      As will be plain from my reasons no controversy requiring determination by me was raised by the evidence. 

14      The relevant documents before me relating to the contract of employment between the claimant and respondent were: 

(1)   Exhibit 1, a letter from Brian Hill, Managing Director of the respondent, to the claimant, dated 21 March 2007 which “attached … various documents for you to consider, complete and endorse with respect to our offer of employment with Whelans.”  The attached documents were not produced by the claimant but it appears clear that one of the documents attached was an Employer‑Employee Agreement; and

(2)   Exhibit 4, a clean copy of an Employer‑Employee Agreement which the claimant agreed was in the same terms as that he signed.

15      Neither of these documents contain a term whereby the respondent agreed to provide to the claimant the training necessary for the claimant to become a licensed surveyor. 

16      I accept that it was within the contemplation of the parties that the claimant wished to become a licensed surveyor and that the respondent would assist with this. 

17      In Exhibit 1, Mr Hill referred to the contract of employment as a “Survey Party Leader” and wrote that the contract of employment was subject to satisfactory completion of a three month probationary period in that role, following which, if successfully completed, “it would be reasonable to expect that … an Articled Position offer [could be] made so that you can ultimately become a Licensed Surveyor.” 

18      No documentation was provided or evidence given specifically about the “Articled Position” offer and I find that the reference to “an Articled Position offer” was a reference to entry into a professional training agreement. 

19      However, that it was within the contemplation of the parties that the claimant would progress in his employment to becoming a licensed surveyor did not mean that the respondent agreed, as a contractual term of his employment, that it would provide the necessary training for this to occur. 

20      The claimant was employed as a Survey Party Leader.  That employment operated, as a matter of contract, quite separately from the claimant’s progress toward becoming a licensed surveyor.  It was common on the evidence that the claimant did not need to become a licensed surveyor for his employment as a Survey Party Leader to continue or, put another way, that his employment would continue, all things being equal, whether or not the claimant became a licensed surveyor. 

21      Crucially, there is no mention of the claimant being trained by the respondent to become a licensed surveyor in Exhibit 4.  I accept that the reference to training in clause 15.1 of Exhibit 4 is a reference to training for the role in which an employee is employed and not some other role. 

22      As a matter of law, the claimant was employed as a Survey Party Leader.  There is in this industry a scheme whereby a person employed within it may seek further qualifications and is assisted in this by their employment and by their employer.  The respondent gave this assistance by employing the claimant in a role that would allow him to build up good relevant experience and by facilitating his entry into a professional training agreement.  That assistance was given from day to day in the completion of the claimant’s ordinary duties and by having Mr Jonath agree to being the claimant’s supervising surveyor in a professional training agreement. 

23      None of that assistance and training was given pursuant to the terms of the claimant’s contract of employment and any failure to provide it, if there was such failure, could not amount to a breach of the contract of employment. 

24      In conclusion on this point, and determinative of the claim, I find: 

(1)   There was no express term of the sort contended for by the claimant; and

(2)   In all of the circumstances, there is no warrant to imply such a term into the contract of employment.  The contract of employment as a Survey Party Leader was fully effective without it being necessary to imply into it any term relating to training to become a licensed surveyor. 

25      As I say, those findings are determinative of the claim but I add that even if there was a term, express or implied, that the respondent would provide the claimant with training to become a licensed surveyor, for the claimant to succeed he would have to establish that the term was that he would be provided with training prior to March 2011.  This is because the claimant resigned from his employment with the respondent in March 2011.  It was only if the term was that the training had to be completed by this time that the respondent could be in breach of it. 

26      On this point, the claimant put nothing before me, even after the point was raised by me, either by evidence or submissions, to the effect that the respondent had promised to complete his training by March 2011. 

27      The uncontroverted evidence was that, even though the claimant failed the Boya examination in March 2011, if he had not chosen to resign, his employment would have continued and the respondent would have continued to assist him to become a licensed surveyor.  Failure of the Boya examination by prospective licensed surveyors was relatively common and was not considered in any way to be a “black mark” against an employee who was trying to become a licensed surveyor. 

28      If there was a term of the contract of employment such as that the claimant contends for, it remained operative in March 2011 and had not been breached as at that time, it not being time limited, and the claimant’s resignation ended its operation. 

29      I make no comment at all on the nature or adequacy of the training given to the claimant during his employment or under the professional training agreement.  It is not necessary for me to do so in light of my above findings.  I note however that the claimant failing the Boya examination proves nothing in relation to the adequacy or otherwise of that training.  No argument is properly available that because the claimant failed the Boya examination his training must have been inadequate.  Exhibit 6 in these proceedings in fact suggests other reasons for the claimant’s failure but, as I say, I need make no findings in relation to this matter. 

30      After the completion of the oral hearing the claimant, by email to my Associate dated 18 October 2016, wrote that he had some concerns about whether I could give full consideration to the matter because his “presentation [in the hearing] lacked direction and evidence”. 

31      The claimant attached to the email a two-page document headed “Post Hearing Concerns” which listed four concerns as follows:

(1)   The claimant’s failure to rebut arguments and factual assertions made by the respondent in his closing submissions;

(2)   The claimant’s failure to tender various documents as evidence, with a description of each being given;

(3)   A concern about whether I would refer to evidence relating to the reasons the claimant failed the Boya examination, with a fuller explanation about that matter being given; and

(4)   The claimant’s failure to lead full evidence about the effect of the alleged breach of the contract upon him.

32      In relation to (1) above I can assure the claimant, with respect to the respondent’s representative, that no submission made by the respondent’s representative in his closing submissions was determinative or even highly persuasive in relation to the outcome of this matter.

33      In relation to (2) above I have considered the descriptions of the documents given by the claimant in the two-page document headed “Post Hearing Concerns”, and the indication given of what these documents would be relied upon to prove if admitted into evidence, and find that none of the documents in any way bear upon matters relevant to the determination of this matter.  That is, none of the documents would have any bearing upon the matter of the terms of the employment contract between the claimant and the respondent and, in particular, whether it contained a term upon which the claimant relies.

34      It would be pointless to allow the claimant to reopen this matter so that he could attempt to have these documents admitted into evidence.

35      In relation to (3) above I have not referred to the matter about which the claimant is concerned in my reasons for decision.  It was unnecessary to do so.

36      In relation to (4) above, in light of my decision that there was no breach of contract by the respondent, I do not need to consider evidence about what effect, if there had been a breach, that breach had upon the claimant.

37      In summary, to use the language from the cases relating to reopening, there is no risk, if the claimant is not allowed to reopen, that there will be a less than complete review of the issues opened up by his case.

38      The claim is dismissed.