2017 WAIRC 00689
APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NO. B 2 OF 2017 GIVEN ON 17 FEBRUARY 2017

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2017 WAIRC 00689

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
ACTING SENIOR COMMISSIONER S J KENNER
COMMISSIONER T EMMANUEL

HEARD
:
FRIDAY, 16 JUNE 2017

DELIVERED : FRIDAY, 28 JULY 2017

FILE NO. : FBA 4 OF 2017

BETWEEN
:
SANDRA TYE
Appellant

AND

CARE SERVICES ADMINISTRATION PTY LTD
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CORAM : CHIEF COMMISSIONER P E SCOTT
CITATION : [2017] WAIRC 00082; (2017) 97 WAIG 311
FILE NO. : B 2 OF 2017

CatchWords : Industrial Law (WA) - Appeal against decision of Commission - Claim of contractual benefits for payment of outstanding salary for the remainder of a fixed term contract - Application summarily dismissed at first instance pursuant to s 27(1)(a) of the Industrial Relations Act 1979 (WA) - Principles to be applied when considering to dismiss on grounds a claim has no question to be tried considered - Requirements of procedural fairness considered - Whether statutory 'right' created a contractual right considered - No error demonstrated
Legislation : Industrial Relations Act 1979 (WA) s 23(1), s 26(1)(a), s 27(1)(a), s 27(1)(a)(ii), s 27(1)(a)(iv), s 29(1)(b), s 29(1)(b)(ii), s 49, s 49(4)(a)
Fair Work Act 2009 (Cth)
Industrial Relations Act 1988 (Cth)
Result : Appeal dismissed
REPRESENTATION:
APPELLANT : MR P MULLALLY (AS AGENT)
RESPONDENT : MR J F RAFTOS (OF COUNSEL)
Solicitors:
RESPONDENT : PIPER ALDERMAN

Case(s) referred to in reasons:
Alfresco Concepts Pty Ltd v Franse [2015] WAIRC 00244; (2015) 95 WAIG 437
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
Cubillo v Commonwealth of Australia [1999] FCA 518; (1999) 89 FCR 528; 163 ALR 395
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291
Malloch v Aberdeen Corporation [1971] 1 WLR 1578
Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Ridge v Baldwin [1964] AC 40
Russell v Duke of Norfolk [1949] 1 All ER 109
S v The Director-General, Department of Racing, Gaming & Liquor [2012] WAIRC 00700; (2012) 92 WAIG 1630
Shaw v City of Wanneroo [2011] WAIRC 00924; (2012) 92 WAIG 275
Talbot & Olivier (A Firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00366; (2013) 93 WAIG 1430
The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268
United Voice WA v The Minister for Health [2012] WAIRC 00319; (2012) 92 WAIG 585
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 60 ALR 68
Case(s) also cited:
Chee Keong Pek v Lomba Pty Ltd (1995) 75 WAIG 827
Fombason v Kimberley Individual and Family Support Association Incorporated [2015] WAIRC 00491; (2015) 95 WAIG 1430
Hotcopper Australia v Saab [2002] WASCA 190; (2002) 82 WAIG 2020
Johnston v Waldock, Director General, Department of Transport [2013] WAIRC 00924; (2013) 93 WAIG 1771
Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 84 WAIG 2152
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431

Reasons for Decision
SMITH AP:
Introduction
1 This appeal is instituted under s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision made by the Commission on 17 February 2017 dismissing application B 2 of 2017. Application B 2 of 2017 was an industrial matter referred to the Commission by Sandra Tye pursuant to s 29(1)(b)(ii) of the Act.
2 Ms Tye had been employed by Care Services Administration Pty Ltd. Her contract of employment was terminated on 3 November 2016.
3 In her application, Ms Tye claimed she had not been allowed a benefit she was entitled to under her contact of employment, namely, the payment of salary that she would have earnt if she had continued to work until the date of her fixed term contract expired on 31 October 2018, being an amount of $137,970.
4 Ms Tye's claim was called on for a preliminary hearing, before the learned Chief Commissioner on 13 February 2017, to determine whether Ms Tye's claim should be dismissed, pursuant to the power conferred by s 27(1)(a) of the Act, after Care Services filed a notice of answer stating that:
(a) it was a term of Ms Tye's employment contract that her employment would be subject to a six-month probationary period and during this period Care Services was entitled to terminate Ms Tye's employment by providing one week's written notice, or by paying Ms Tye one week's pay in lieu of notice; and
(b) on 3 November 2016, Ms Tye was provided with written notice of termination of the contract and paid one week's pay in lieu of notice.
5 After hearing the parties, the learned Chief Commissioner dismissed Ms Tye's application on 17 February 2017.
The terms of Ms Tye's contract of employment
6 Ms Tye commenced employment on 1 August 2016. Prior to her commencing work, the parties executed a comprehensive written contract of employment on 27 July 2016. The relevant clauses and schedule of the contract of employment for the purposes of this appeal are:
1. Appointment and Commencement
1.1 The commencement date of this contract and your terms of employment with the Company will commence on the date set out in Item 2, and will continue until terminated in accordance with item 3 of the Schedule.
1.2 You will be engaged as a full-time fixed term employee and your employment will cease on the date set out in Item 2 of the Schedule. As a fixed term employee, there is no permanent or ongoing relationship between you and the Company.
…
3. Probation
3.1 Your employment will be subject to a six month probationary period.
3.2 Unless your employment is terminated for serious misconduct, during this period either you or the Company may terminate your employment by providing one weeks written notice. The Company may elect to pay you in lieu of part or all of your notice period, or alter your duties during the notice period.
4. Position and Title
4.1 You will be employed in the position set out in Item 1 of the Schedule.
4.2 Initially, you will be required to report to the position listed in Item 6 of the Schedule.
4.3 The Company may change your position title and your reporting requirements, in accordance with the needs of the business and your skills and abilities. You expressly agree that where there is a change in your position title or reporting requirements, the terms and conditions of this contract will continue to apply to your employment.
…
6. Hours of work
6.1 You will be required to work an average of 38 hours per week, or as otherwise directed by the Company.
6.2 The Company may require you to work reasonable additional hours that are necessary for you to fulfil the requirements of your position. As this has been taken into account when setting your remuneration under this contract, you will not be entitled to additional remuneration for any work during these additional hours.
…
18. Termination
18.1 Other than where your Employment is terminated during the Probationary Period or where your Employment is terminated for serious misconduct, either you or the Company may terminate your Employment by giving four weeks written notice except when your employment is terminated during the Probationary Period or when your Employment is terminated for serious misconduct.
18.2 If the Company elects to terminate your employment and you are over 45 years of age and have more than 2 years of continuous service, the Company will provide you with an additional week of notice.
18.3 In either case, the Company may elect to pay you in lieu of part or all of your notice period.
18.4 During any period of notice, the Company may vary your duties, or require you not to attend for work, for all or part of your notice period.
18.5 On termination of your employment, you are required to do all such things to resign from any positions and offices (including any directorship) that you held with the Company, an Affiliate or on behalf of the Company, in connection with your employment.
18.6 The Post Employment Obligations, Intellectual Property and Confidential Information clauses will survive the termination of your employment with the Company (however occurring).
18.7 If you fail to provide the Company with the minimum period of notice set out in this clause, you expressly authorise the Company to deduct from any final termination payment payable to you on termination (including remuneration and accrued leave entitlements), an amount equivalent to the remuneration that would have been payable to you during the period of the shortfall in your notice. You agree that if these amounts are insufficient to cover the shortfall in your notice, you will owe to the Company an equivalent amount as a debt, due and payable on termination of your employment.
18.8 The Company may terminate your employment without notice, if you:
(a) commit any serious or persistent breach of this contract;
(b) are guilty of any serious misconduct or wilful neglect in performing your duties;
(c) fail to comply with any reasonable directions of the Company;
(d) are convicted of a criminal offence which, in the Company's reasonable opinion, affects your position as an employee of the Company;
(e) do an unreasonable act which reflects unfavourably on the Company or any Affiliate.
…
23. Entire agreement
23.1 This document records the entire agreement between the parties about your employment. You expressly agree that this contract contains all relevant terms that relate to your contract of employment with the Company, and that there are no other terms missing.
23.2 This contract supersedes and replaces all prior representations, contracts, agreements (whether oral or in writing) concerning your employment with the Company.
23.3 If there are any other matters that you have relied on during your discussions or communications with any representative of the Company, please let the person in Item 8 of the Schedule know before you sign this contract. The Company will then consider them and discuss them with you. If agreed, the terms of this contract will be amended to cover those matters, otherwise they will not apply.
…
SCHEDULE
Item 1
Position in which employed
Regional Consultant
Item 2
Commencement date of your employment
1st August 2016
Item 3
Termination date of this Contract
31st October 2018
Item 4
Total Remuneration Package (base salary plus superannuation)

$68,985
Item 5
Pay cycle
Fortnightly
Item 6
Report to Position
Regional Manager
Item 7
Place of Work
WA Office
Item 8
Contact person
HR Manager
Notice of termination letter
7 The notice in writing to terminate Ms Tye's contract of employment was set out in a letter to her dated 3 November 2016 from Ms Cassandra McLean, Care Services' Human Resources Manager. In the letter it is stated:
This letter serves as an official Notice of your Termination from HCA effective 3 November 2016.
As discussed, your probationary employment period with HCA is designed to assist in the evaluation of work performance to ascertain whether your appointment should continue after the expiry of the probation period. During your probationary period to date HCA has monitored your work performance. As discussed today, we wish to advise that you have not met the requirements for the position of Regional Consultant during your probation period.
In accordance with your employment contract, during the probationary period the employee or HCA can terminate an employee's employment on the giving of one week's notice. You will be paid one week's pay in lieu of notice. We have also elected to pay you 2 extra days.
Submissions made on behalf of Ms Tye at first instance
8 It was argued on behalf of Ms Tye that she does have a case that she has an entitlement to claim that she was denied a contractual benefit to continue working for Care Services until her contract was to expire on 31 October 2018.
9 Ms Tye opposed the application made by Care Services that her claim be dismissed and made a submission that the threshold with respect to which Care Services must reach to succeed is to show that her case is so manifestly groundless or her application discloses a case which cannot possibly succeed.
10 The background to Ms Tye's claim is that she had been engaged to work on a project to provide clinical health practitioners to Australian Defence bases across Australia. Care Services' contract to provide these services is to expire in 2018. Ms Tye will say (when called to give evidence) that she was informed prior to entering into the contract of employment it was anticipated that the contract could be extended up to a period of nine years. In light of these circumstances, a submission was put on behalf of Ms Tye that she entered into the employment contract on the understanding that her employment period could be for a period of nine years.
11 In addition, an argument was put on behalf of Ms Tye that Care Services was not justified in terminating the employment of Ms Tye. In particular, a submission was made that Ms Tye disputes that her employment was terminated for the reasons advanced in the letter of termination and will say she was informed by the HR manager that her employment was terminated due to her taking an unauthorised day off work on 1 November 2016. Thus, it was put, to determine whether Ms Tye was authorised to take a day off work required an examination of the facts through the giving of evidence, and if her contentions were found to be the case, she was entitled to claim damages for a breach of contract for that right, as she had a right to work the balance of the term of her employment contract.
Reasons for decision given by the learned Chief Commissioner at first instance
12 In considering the test to be applied in determining whether an application should be dismissed under s 27(1)(a) of the Act, the learned Chief Commissioner observed that there are no rules in this jurisdiction, as there are in a number of courts and tribunals, to govern the way the Commission should deal with such an application. Consequently, she applied the principles that have been applied when considering applications to dismiss civil proceedings in a court in Cubillo v Commonwealth of Australia [1999] FCA 518; (1999) 89 FCR 528 [53]; 163 ALR 395 and Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. In applying the observations made in these decisions, the learned Chief Commissioner found the Commission ought to exercise 'exceptional caution' in dealing with an application that a claim be dismissed without the case being run, including evidence being heard and it should never be exercised unless it is clear that there is no real question to be tried. She then found, the question to be answered in the matter before her was whether Ms Tye's case was so clearly untenable that it cannot possibly succeed and whether there is a real question to be tried.
13 The learned Chief Commissioner had regard to the express terms of Ms Tye's contract of employment and to the notice of termination dated 3 November 2016. After considering these matters, she made the following findings:
(a) This is not a claim of harsh, oppressive or unfair dismissal. Nor is it a claim under the Fair Work Act 2009 (Cth), of unlawful dismissal. It is a claim that seeks to enforce the contract by claiming payment for two years, said to be a term of the contract.
(b) The elements of a claim made under s 29(1)(b)(ii) are that:
(i) the employee has a benefit, not being a benefit arising under an award or order;
(ii) the benefit is one to which the employee is entitled under the contract of employment; and
(iii) the employer has not allowed the employee the benefit.
(c) The circumstances of the decision in Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307 are to be distinguished from the current matter. In Perth Finishing College, the Full Bench dealt with a claim that Ms Watts had a fixed term contract and she had been denied the benefit of the unexpired term of the contract by her employer dismissing her prior to its expiration. In this matter, there is no entitlement to the remainder of the period of the contract because it is not strictly a fixed term contract. This is because there is a provision for it to be terminated during the probationary period, and subsequently, on notice. There is no challenge that Ms Tye was not paid notice in accordance with the contract. There is no allegation of a contravention of a provision of the contract of service. Rather, there is an allegation that the reason given for the termination is not the true reason.
(d) The case of Shaw v City of Wanneroo [2011] WAIRC 00924; (2012) 92 WAIG 275 can also be distinguished. That matter involved a dispute between the parties about who actually brought the employment to an end, and the Commission enquired as to the circumstances which brought about the termination and found that it was a constructive dismissal. This brought with it certain consequences arising from the terms of the contract. That is not the case in this matter. There is no contention that Ms Tye was not dismissed.
14 In the circumstances of this case, the learned Chief Commissioner found that:
(a) Ms Tye was dismissed on notice, in accordance with the terms of the contract. In those circumstances, there is no real allegation that a provision of the contract, a 'benefit' arising under the contract, has been denied to Ms Tye. The benefit she seeks is not one which arises under the contract. Whether the reason given in the letter is in conflict with other information she received does not mean that Care Services breached the contract by dismissing her and paying notice. She was not denied the benefit she claims, as she had no entitlement to work out the two years of the contract, as the contract allowed termination on notice.
(b) In that sense, there is no real question to be tried. Ms Tye's case is so clearly untenable that it cannot possibly succeed. There are no novel issues of law arising from the matter.
(c) The application will be dismissed pursuant to s 27(1)(a) on the basis that further proceedings are not necessary or desirable in the public interest, that there is no real question to be tried.
Grounds of appeal
15 There are six grounds of appeal. These are as follows:
GROUND A: NO REAL QUESTION TO BE TRIED
1. The learned Chief Commissioner erred in fact and in law when she found that there was no real question to be tried
PARTICULARS
1.1 The appellant was entitled to refer the industrial matter to the Commission pursuant to s29(1)(b)(ii);
1.2 The appellant claimed that she had been denied the opportunity to work the balance of her contract of employment;
1.3 She claimed that the exercise of the power by the respondent to terminate the contract of employment during the probationary period was an abuse of its power, not for a valid reason and a denial of a workplace right.
GROUND B: THAT THE APPELLANT'S CASE WAS SO CLEARLY UNTENABLE THAT IT CANNOT POSSIBLY SUCCEED
2. The learned Chief Commissioner erred in fact and in law when she found that the appellant's case was so clearly untenable that it cannot possibly succeed.
PARTICULARS
2.1 The appellant's case properly articulated was that she had been denied the opportunity to work the balance of her contract of employment when she was terminated;
2.2 The case could not be decided on face of the termination letter when it was asserted by the appellant not to have reflected the real reason for the dismissal;
2.3 No decision could be made under the Industrial Relations Act 1979 without considering the evidence surrounding the dismissal.
GROUND C: FINDING THAT THE EMPLOYMENT CONTRACT WAS NOT STRICTLY A FIXED TERM CONTRACT
3. The learned Chief Commissioner erred in fact and in law when she found that the employment contract was not strictly a fixed term contract.
PARTICULARS
3.1 The employment contract in its terms was for a fixed period expiring on the 31st October 2018;
3.2 The expiry date of the appellant's employment contract coincided with the end of the respondent's project for which it had recruited the appellant;
3.3 The existence of terms where the respondent could terminate on notice did not derogate from the fixed term nature of the employment contract;
3.4 The appellant was employed on the basis of a fixed term contract;
3.5 The respondent's exercise of the power to terminate the fixed term contract was amenable to review by the Commission under the Industrial Relations Act 1979.
GROUND D: BREACH OF THE RULES OF NATURAL JUSTICE
4. The learned Chief Commissioner erred in fact and in law when she dismissed the appellant's case which was a referral of an industrial matter to the Commission by the appellant without proceeding to a full hearing of the evidence on the merits.
PARTICULARS
4.1 The appellant's case properly articulated was that she had been denied the opportunity to work the balance of her contract of employment when she was terminated;
4.2 The rules of natural justice require that where a person's property stands to be effected by a decision maker, then the appellant had the right to be heard and in this case the appellant had lost the opportunity to work for a substantial period for a substantial income in a position for which she had been recruited.
GROUND E: NOT NECESSARY OR IN THE PUBLIC INTEREST
5. The learned Chief Commissioner erred in fact and in law when she found that the appellant's case should be dismissed pursuant to s27(1)(a) of the Industrial Relations Act 1979
PARTICULARS
5.1 The appellant's case properly articulated was that she had been denied the opportunity to work the balance of her contract of employment when she was terminated;
5.2 Absence [sic] the benefit of a hearing and the evidence of the parties, the Learned Chief Commissioner had no basis to make findings that further proceedings were not necessary or desirable in the public interest.
GROUND F: FAILURE TO APPLY THE LAW WITH RESPECT TO SUMMARY DISMISSAL OF PROCEEDINGS
6. The learned Chief Commissioner erred in fact and in law when she found that the appellant's case came within the category of cases where the claim could be dismissed without the case being run.
PARTICULARS
6.1 The Learned Chief Commissioner cited previous legal authorities and precedents dealing with the summary dismissal of legal proceedings, but failed to apply or properly apply these principles to the appellant's claim;
6.2 In any event the Learned Chief Commissioner failed to apply the principles set out in s26(1)(a) namely when exercising the jurisdiction under the Industrial Relations Act 1979 to act according to equity, good conscience and the substantial merits of the case;
6.3 Alternatively by the summary dismissal of the case, the Learned Chief Commissioner prevented the appellant from having her case heard and determined according to equity, good conscience and the substantial merits of the case and proceeding further with her claim.
Ms Tye's submissions at the hearing of the appeal
16 In grounds A, B and F, Ms Tye claims that the learned Chief Commissioner erred in fact and law in dismissing her claim summarily without allowing her to present her case by calling of evidence and for failing to determine the claim on the merits.
17 It is accepted that the learned Chief Commissioner did not err in applying leading authorities which require 'exceptional caution' and the need for the case to be hopeless and untenable for a matter to be dismissed without proceeding to evidence.
18 The case mounted in the claim by Ms Tye is that the dismissal was for reasons which may have breached her workplace right to take a day off work in lieu of overtime, and if such were the case, the dismissal could be reviewed by the Commission exercising its powers under the Act, according to equity, good conscience and the substantial merits of the case (s 26(1)(a)). Thus, it is said, if it is accepted that Ms Tye's contract of employment was unlawfully terminated, such a finding would trigger a common law right to damages.
19 When questioned about this argument at the hearing of the appeal, Mr Mullally, on behalf of Ms Tye, said that Ms Tye was seeking to have the dismissal measured against the 'general law', as expressed in the Fair Work Act which provides for a workplace right to take a day off work, which, if found to be breached, would result in Ms Tye being able to claim she was denied the right to work the balance of the term of her contract of employment. This is said not to be a claim for wages as such, but constitutes a claim for an award in the nature of damages to redress the matter by resolving the conflict in relation to the industrial matter in dispute between the parties.
20 It is not argued that the provisions of the Fair Work Act are implied into the contract of employment. It is argued that, by operation of law, the provisions of the Fair Work Act apply.
21 When questioned by the Full Bench as to why Ms Tye's claim was not brought in the Fair Work Commission, Mr Mullally said that a claim had been instituted for a general protections application for breach of workplace rights, but the claim was dismissed as it was brought out of time.
22 It is also argued that there is a legal tension between the fixed term of the contract, which Ms Tye says she was induced to accept by the representations made to her prior to entering into the contract of employment and the provisions of the contract therein for termination in the probation period and within the balance of the term. It is also said there is a 'classic' opportunity for an argument for the inclusion of an implied term in these circumstances (that if the termination clauses are exercised unreasonably, Ms Tye is entitled to be paid the remuneration she would earn during the balance of the term). Alternatively, an argument could be put that Care Services be estopped from exercising the power of termination except in cases of wilful and serious misconduct.
23 Thus, it is said with these points in mind, it could not be found that Ms Tye's case was completely devoid of merit.
24 In respect of the issues raised in grounds D and E of the appeal, it is argued that it is fundamental that Ms Tye was entitled to be heard and that this entitlement also raises a matter in the public interest. It is said, it follows therefore, that by being denied a right to be heard the rules of procedural fairness have been breached. In particular, Ms Tye should have been afforded more than just the opportunity to make a submission about her case; she should have been afforded the opportunity to present evidence and have her claim heard and determined on the merits.
25 In ground C, it is argued that Ms Tye's contract of employment was not intended to expire until at least 31 October 2018 and this was made clear from a representation made in an email from Mr Bud Ranasinghe, the Regional Manager, Defence Health, sent to Ms Tye on 26 July 2016 in which Mr Ranasinghe stated:
Thank you for meeting with Shane and I this morning. It was great to catch up and I hope we did not overwhelm you with information!
I am very pleased that you will be joining Healthcare Australia on 1 August 2016. I will forward a contract over in the next couple of days (all going to plan) and then you will have a chance to review the details. As discussed your base salary will be $63,000.
Our contract with Medibank is for a period of two years commencing 1 November 2016. As such, your employment contract will reflect this and will be on a full time fixed term basis until 31 October 2018. However we hope that our contract with Medibank will be extended for a further nine years thereafter.
I really believe you will add value to our team and the business and there are a lot of opportunities for you to grow and develop HCA Defence Health.
If you have any queries please feel free to contact me.
26 In light of the representation that the employment contract would be on a full-time fixed term basis until 31 October 2018, a submission to the effect of the following was made that:
(a) as the contract was for a fixed term, the provisions for termination by the giving of notice to terminate cannot sit side-by-side with the fixed term;
(b) the Commission is empowered to examine the application of the terms of a contract allowing termination not only in an unfair dismissal claim but also in a claim for a denied contractual benefit; and
(c) arguments for an implied term that Care Services not act unreasonably when exercising a power of termination, or that Care Services be estopped by the representations, are arguments available to be made in support of Ms Tye's claim to preserve the integrity of the fixed term contract.
27 The email was not sought to be tendered at first instance, but was attached to Ms Tye's outline of submissions which was filed prior to the hearing of the appeal. Care Services objected to the admission of the document at the hearing of the appeal.
Conclusion
(a) Should the email dated 26 July 2016 be admitted into evidence?
28 Whilst s 49(4)(a) of the Act does not prohibit the Full Bench from admitting fresh evidence, it only does so if special or exceptional circumstances are made out. In Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291 it was observed [59] - [60]:
The test to be applied by the Commission for admission of fresh evidence on an appeal was for many years set out in the decision of the Full Bench in Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch v George Moss Ltd (1990) 70 WAIG 3040, 3041 in which the Full Bench held that fresh evidence is only admissible if:
(a) The evidence was not available to the parties seeking to tender it at the time of the trial and the evidence would not have been available to that party with reasonable diligence in the preparation of their case; and
(b) The evidence must be such that it would have had an important influence on the result of the trial and must be credible, but not necessarily beyond controversy.
The Full Bench modified this criteria in Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437, when Sharkey P and Kenner C with whom Scott C agreed, said at [8] and [9] that fresh evidence can only be admitted if it is almost certain that, if the evidence had been available and adduced, an opposite result would have been reached. They also observed that they had put this last condition too low in George Moss Ltd and they wished to retract what they said in that case and substitute the stricter criteria. The modified principle was applied by the Full Bench in Merredin Customer Service Pty Ltd as trustee for Hatch Family Trust t/a Donovan Ford/Merredin Nissan and Donovan Tyres v Green [2007] WAIRC 01150; (2007) 87 WAIG 2789 [10].
29 In this matter, no explanation has been provided as to why the email was not sought to be tendered at first instance. In the absence of any explanation that could be said to raise special or exceptional circumstances, I am of the opinion the email should not be admitted by the Full Bench.
(b) Principles to be applied where an application is made to dismiss a matter on grounds no question to be tried
30 In United Voice WA v The Minister for Health [2012] WAIRC 00319; (2012) 92 WAIG 585, the Full Bench considered an appeal against a decision of the Industrial Magistrate's Court to summarily dismiss applications for enforcement of an industrial agreement, on grounds the claims did not disclose a reasonable cause of action. At [65] I observed:
Exceptional caution is required by courts and tribunals when exercising the power to summarily dismiss. A claim should not be dismissed other than when it is clear there is no real question of fact or law to be tried: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87. President Steytler in Talbot & Oliver (a firm) v Witcombe [2006] WASCA 87 summarised the applicable principles as follows:
[21] … An action should only be dismissed as frivolous or vexatious if it cannot possibly succeed. Moreover, in deciding whether an action could possibly succeed, a court of first instance should be astute not to risk stifling the development of law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 at 373.
[22] Similar principles apply in the case of an application to strike out a statement of claim as not disclosing a reasonable cause of action: Kimberley Downs Pty Ltd v State of Western Australia unreported; SCt of WA; Library No 6414; 25 August 1986 at 6–7. In Dalgety Australia Ltd v Rubin unreported; FCt SCt of WA; Library No 5485; 24 August 1984, it was held that it is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out. It has also been held in this jurisdiction that, in a case in which an application for summary judgment is combined with an application to the Court's inherent jurisdiction and with an application under O 20 r 19(1)(a) to strike out a pleading upon the basis that it discloses no reasonable cause of action, the Court is not confined by the manner in which the plaintiff has formulated his or her case on the pleadings and may consider not only the undisputed facts but also facts which are in dispute: Bride v Peat Marwick Mitchell [1989] WAR 383 at 394; and see, generally, Seaman Civil Procedure Western Australia (Vol 1) at [16.0.1] and [20.19.6].
31 The Commission has, however, a broader power to dismiss a matter than an Industrial Magistrate and is not confined to circumstances where it is clear there is no real question of fact or law to be tried: S v The Director-General, Department of Racing, Gaming & Liquor [2012] WAIRC 00700; (2012) 92 WAIG 1630 [15] - [17]. Pursuant to s 27(1)(a) of the Act, the Commission may dismiss a matter or refrain from further hearing on grounds that:
(a) a matter or part thereof is trivial; or
(b) further proceedings are not necessary or desirable in public interest; or
(c) the person who referred the matter does not have a sufficient interest; or
(d) for any other reason.
32 Notwithstanding the scope of s 27(1)(a), it is my opinion that where an application is made to dismiss a claim for contractual benefits referred to the Commission as an 'industrial matter' pursuant to s 29(1)(b)(ii) of the Act, on grounds that there is no real question to be tried in fact or in law, the principles that should be applied by the Commission, when considering whether to exercise the discretion to dismiss, are the principles considered by Steytler J in Talbot & Olivier (A Firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179 [21] - [22].
33 When regard is had to the reasons given by the learned Chief Commissioner in considering whether to dismiss the application, it is clear that no error was made in the principles applied by her.
(c) The requirements of procedural fairness
34 In hearing and determining an application instituted pursuant to s 29(1)(b) of the Act, in respect of the statutory power conferred on the Commission by s 23(1) to enquire into and deal with any industrial matter, the Commission must observe the rules of procedural fairness. This is a well-established principle by application of the rule of common law that a power conferred by statute is to be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power: Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 [97] (Gummow, Hayne, Crennan and Bell JJ); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [39] - [41] (Gaudron and Gummow JJ).
35 What the principles of procedural fairness require in particular circumstances depends upon the circumstances known to the decision-maker at the time of the exercise of the power: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 627 (Brennan J). The duty is to act reasonably and fairly: Kioa (627) (Brennan J).
36 The hearing rule requires a decision-maker to provide a party to proceedings a reasonable opportunity of presenting his or her case: Russell v Duke of Norfolk [1949] 1 All ER 109, 118.
37 The direction in s 26(1)(a) of the Act, requiring each member of the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, does not assist Ms Tye's arguments. As Ritter AP pointed out in Health Services Union of Western Australia (Union of Workers) v Director General of Health [2008] WAIRC 00215; (2008) 88 WAIG 543 [163] - [164]:
(a) section 26(1)(a) is not a source of jurisdiction;
(b) section 26(1)(a) applies only to the exercise of jurisdiction conferred by legislation; and
(c) the Commission cannot ignore the substantive law in the exercise of its jurisdiction.
38 Section 27(1)(a) of the Act expressly empowers the Commission to dismiss any matter before it at any stage of the proceedings (which includes hearing an application to dismiss at a preliminary or interlocutory stage) without a full hearing of evidence and submissions going to the merits of a claim, providing the preconditions for the exercise of the power are made out.
39 Consequently, when regard is had to the relevant circumstances of an express statutory power to dismiss an application referred pursuant to s 29(1)(b) of the Act, what constitutes a fair hearing as required by the rules of procedural fairness in this matter cannot be elevated to require a full hearing on the merits of a claim.
40 Where the preconditions for the exercise of the power to dismiss are properly raised in a matter before the Commission, the fair hearing rule will simply require the member of the Commission who is called upon to dismiss a matter pursuant to s 27(1)(a) of the Act, without the hearing of evidence, to hear the party as to why the matter should not be dismissed. If after hearing the parties the Commission is satisfied that in the circumstances the preconditions of s 27(1)(a) are met, the Commission is authorised to exercise the discretion conferred to dismiss the claim without a hearing on the merits.
41 In this matter, the learned Chief Commissioner clearly provided a reasonable opportunity to Ms Tye to be heard about why her claim should not be dismissed. After Care Services made an application to dismiss Ms Tye's s 29(1)(b) application, the learned Chief Commissioner listed Care Services application for hearing on 13 February 2017. At the hearing, Ms Tye's representative was afforded an opportunity of making a submission about whether Ms Tye's claim raised a real question to be tried. In particular, she was provided with an opportunity to make a submission about the effect of the express and implied terms of her contract of employment and grounds upon which she relies to ground her claim of a denied contractual benefit.
(d) Did the learned Chief Commissioner err in finding Ms Tye's case to be so untenable that it cannot possibly succeed?
42 The express term of Ms Tye's contract of employment was as the learned Chief Commissioner characterised not strictly for a fixed term in the conventional sense.
43 A fixed term contract usually describes a contract which has a term that has the effect of binding both parties to the term stated in the contract, the term of which cannot be unfixed by notice. Such a contract does not contain any express term enabling a party to terminate the contract by the giving of notice and a court or tribunal will not imply a term permitting notice to be given to terminate: Irving M, The Contract of Employment (2012) [11.18].
44 However, a contract that contains a term which states a date of commencement and a date upon which the contract expires and also contains a term or terms which enables a party or parties to terminate the contract by the giving of notice within the specified period can be characterised either as:
(a) a contract for a fixed term that is determinable by notice within that period; or
(b) a contract of specified maximum duration that is determinable by notice within the period specified.
45 The central issue in this matter is whether it was open to Ms Tye to argue that she had not been allowed a benefit, being an alleged right to work until the date of the expiry of her contract, which entitled her to be paid damages for the unexpired period of the term.
46 In support of her claim, Ms Tye's representative raised two issues. The first is that it is open to Ms Tye to claim that Care Services be estopped from relying upon the notice provision in her contract of employment on grounds that a representation was made to Ms Tye (upon which she relied on in accepting the offer of employment) that the term of the contract of employment was for a fixed term of two years. Alternatively, it is argued that it should be implied that the express powers in the contract enabling Care Services to give notice to terminate the contract of employment not be exercised unreasonably.
47 There are fundamental difficulties with these arguments which in my opinion make it clear these arguments are untenable.
48 Firstly, the email from Mr Ranasinghe was not tendered in the proceedings at first instance, nor referred to and no argument was raised in the proceedings before the learned Chief Commissioner which addressed the point arising from the matters stated in the email. It is an elementary principle that a party must be bound by its case that it puts to the Commission at first instance and it is not open to put a different case on appeal: University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 60 ALR 68, 71. There are exceptions to this principle. In exceptional cases, where to allow a new point can be found to be expedient in the interests of justice, the point can be allowed. However, in general, where the point is one to be met by the calling of evidence, the point will not be allowed: see the discussion in Alfresco Concepts Pty Ltd v Franse [2015] WAIRC 00244; (2015) 95 WAIG 437 [114] - [116].
49 Secondly, even if the email sent to Ms Tye on 26 July 2016 was to be admitted in this appeal, the statement that, 'Our contract with Medibank is for a period of two years commencing 1 November 2016. As such, your employment contract will reflect this and will be on a full time fixed term basis until 31 October 2018', is merely a statement of subjective intention and could be said to be at its highest a precontractual representation. It is a well-established principle of construction of contracts that evidence of parties' subjective intention is not admissible to construe the terms of a contract: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352. In any event, the express terms of cl 23.1 of the contract of employment declare that the written terms are the only terms of the contract and cl 23.2 expressly declares that the contract supersedes and replaces all prior representations.
50 Thirdly, the effect of cl 23.3 is that if Ms Tye had relied upon any matters during her discussions or communications with any representative of Care Services, she was directed to communicate with the HR manager about that matter prior to signing the contract and, if she did so and an agreement was reached, the terms of the contract would be amended to cover those matters. Given that it appears clear from the documents before the Commission at first instance that Ms Tye signed the contract of employment containing the notice provisions the day after she received the email from Mr Ranasinghe and four days prior to commencing employment, Ms Tye would be estopped from relying upon any representation made in the email by Mr Ranasinghe by operation of cl 23 of the contract.
51 The argument put, in the alternative, that it is open to imply in the employer's express power to terminate Ms Tye's employment a term that the power to do so should not be exercised unreasonably, was not an argument raised at first instance before the learned Chief Commissioner and is also an argument that has no merit.
52 At common law an employer can dismiss an employee for any reason or for none: Ridge v Baldwin [1964] AC 40, 65. The employer can act unreasonably or capriciously but the termination is valid, unless the termination is in breach of a term of contract and then the employee's only remedy is in damages for breach of contract: Malloch v Aberdeen Corporation [1971] 1 WLR 1578, 1581.
53 The basis of an argument that it is implied in the termination provisions of the contract that Care Services is to act reasonably seems to rely upon an argument that, by operation of the provisions of the Fair Work Act, Care Services was prohibited from terminating the employment of Ms Tye for reasons that she exercised a workplace right to be absent from work when authorised to do so in lieu of being paid overtime and that the giving of notice to terminate her contract of employment was, in these circumstances, unreasonable.
54 There are two fundamental difficulties with this argument. Firstly, Ms Tye had no contractual entitlement to be paid overtime or to take time off work for additional hours of work. Whilst cl 6.1 of the contract provided that Ms Tye was required to work an average of 38 hours a week, cl 6.2 empowered Care Services to require Ms Tye to work additional hours to fulfil the requirements of the position, for which work no additional remuneration was payable.
55 Secondly, any statutory workplace right that Ms Tye may have had that is conferred by the Fair Work Act is not a contractual right. The remedies available to employees for contravention of the Fair Work Act arise pursuant to, and subject to, the express provisions of that Act.
56 In Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the High Court found that an award created a statutory right that could be enforced through the Industrial Relations Act 1988 (Cth), but neither the Industrial Relations Act 1988 nor the award created a contractual right. At (420) Brennan CJ, Dawson and Toohey JJ found:
A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. The award regulates what would otherwise be governed by the contract. But award rates are imported as a statutory right imposing a statutory obligation to pay them. The importation of the statutory right into the employment relationship does not change the character of the right. As Latham CJ points out in his judgment in Amalgamated Collieries of WA Ltd v True ((1938) 59 CLR 417 at 423), the legal relations between the parties are in that situation determined in part by the contract and in part by the award. And as the judgment of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement.
57 Consequently, any statutory right that Ms Tye had to claim a breach of a workplace right, whilst such a right if made out would have been imported into the employment relationship between the parties by statute, the right was not imported into her contract of employment.
58 Thus, when regard is had to the principle enunciated in Byrne and to the express provisions of cl 6 of the contract of employment, any argument that by giving notice to terminate the contract was in breach of the terms of the contract is untenable.
59 For these reasons, I am of the opinion that the grounds of appeal have not been made out and an order should be made to dismiss the appeal.
KENNER ASC:
60 I have had the advantage of reading in draft form the reasons for decision of Smith AP with which I am in general agreement.
61 Whilst the Commission should always approach the exercise of the power to dismiss a matter or refrain from further hearing a matter under s 27(1)(a) of the Industrial Relations Act 1979 with caution, that does not mean that in a clear case where a claim is without merit, the power should not be exercised. On the contrary, to not exercise the statutory power in s 27(1)(a) in those circumstances, would be inconsistent with equity, good conscience and the substantial merits of the case, as required by s 26(1)(a). This is because the party against whom such unmeritorious proceedings have been brought, would be put to the time and expense of defending such a claim when it had no reasonable prospect of success.
62 Whilst the learned Chief Commissioner referred [28] of her reasons for decision (AB12) to the dismissal of the application on the basis that further proceedings would not be necessary or desirable in the public interest, in my view s 27(1)(a)(ii) was not enlivened in this case. The dismissal of the appellant’s claim at first instance did not involve matters of public interest, as that concept was considered in The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268 [35] and referred to in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00366; (2013) 93 WAIG 1430 [22] and [23].
63 However, it is clear from the reasons of the learned Chief Commissioner read as a whole that she dismissed the application because it had no merit and had no prospect of success, a course plainly contemplated by s 27(1)(a)(iv) of the Act.
64 I therefore agree that the appeal should be dismissed.
EMMANUEL C
65 I have had the benefit of reading the draft reasons of Her Honour, the Acting President. I agree with those reasons and have nothing to add.