WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2018 WAIRC 00375

DELIVERED : monday, 18 June 2018

FILE NO. : U 15 OF 2018

Applicant

AND

Commissioner of Police

Respondent

CatchWords : Industrial Law WA - Claim of unfair dismissal - Respondent contends employment relationship ended due to effluxion of time and that applicant not dismissed - Principles in Gallotti discussed - Found all circumstances of employment relationship must be taken into account in this matter - Found applicant dismissed from employment - Applicant dismissed unfairly - Reinstatement and compensation ordered 

Legislation : Fair Work Act 2009 (Cth)

  Industrial Relations Act 1979

Result : Application allowed; orders for reinstatement and payment of compensation

Representation:

Applicant : In person

Respondent : Mr J Carroll, of counsel

Solicitors: 

Respondent : State Solicitor’s Office

Cases referred to in reasons:

Gallotti v Argyle Diamond Mine Pty Ltd [2003] WASCA 166

Khayam v Navitas English Pty Ltd (2017) 273 IR 44

Metropolitan (Perth) Passenger Transport Trust v Erhard Gersdorf (1981) 61 WAIG 611

Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385

Swan Yacht Club (Inc) v Leanne Bramwell (1998) 78 WAIG 579

Reasons for Decision

1         In the last year of his employment with the respondent as a traffic warden the applicant was on a fixed term or, probably more accurately although nothing turns on it, an “outer limit” contract.

2         The relevant terms of the contract of employment provided that he was a casual employee and that his employment could be terminated by him or the respondent on one hour’s notice and that the “end date” of the contract was 14 December 2017, with the contract expressly providing that entry into it “in no way implies the expectation or otherwise of continued employment beyond the period described in this contract and there is no obligation upon either party to enter into further employment arrangements.”

3         The respondent did not employ the applicant after the end date. He decided to not “enter into further employment arrangements” with the applicant. The applicant wished to “enter into further employment arrangements” with the respondent.

4         The applicant says he was unfairly dismissed from his employment. The respondent says, and this is the only argument he puts up, that the applicant was not dismissed. The respondent says the applicant’s employment came to an end due to the effluxion of time and not because of dismissal.

5         The term “dismissal” means, in this jurisdiction, to send away or remove a person from the employment relationship. (See Swan Yacht Club (Inc) v Leanne Bramwell (1998) 78 WAIG 579; Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385; Metropolitan (Perth) Passenger Transport Trust v Erhard Gersdorf (1981) 61 WAIG 611.)

6         There is certainly an argument available that the cessation of the relationship of employer and employee by the effluxion of an agreed term of employment is not a “dismissal”
for the purposes of the Industrial Relations Act 1979. Indeed there is, as the Industrial Appeal Court noted at [5] of Gallotti v Argyle Diamond Mine Pty Ltd [2003] WASCA 166, “ample authority for the proposition.”

7         That simple proposition was obviously sufficient to quickly dispose of the matter before the Industrial Appeal Court in Gallotti given that there was a relatively short history of employment pursuant to a series of fixed term contracts between a relatively highly paid and sophisticated employee and his employer.

8         I hesitate, however, to conclude, on the basis of Gallotti, that the Industrial Appeal Court meant to say that the existence of a relevant agreed term would, without further enquiry, answer the question of whether a dismissal had occurred in all circumstances and for all time. I doubt the Industrial Appeal Court sought by its decision to prevent the Western Australian Industrial Relations Commission from looking, where warranted, at wider circumstances in assessing whether there had been a dismissal. I doubt that the Industrial Appeal Court meant to conclusively decide that such wider circumstances would never be relevant on an application before the Western Australian Industrial Relations Commission and would only be relevant as a shield and not a sword in civil matters before it where a plaintiff seeks to enforce a contract and a defendant says there are vitiating factors present.

9         While I would consider myself bound by Gallotti in a similar, or broadly similar, factual situation to the one in that case, I do not think I am where there are factors which genuinely, and on their face, reasonably invite consideration of factors beyond the four corners of the contract of employment.

10      There may be, in my respectful view, cases where, despite the presence of a fixed term contract, there will be a need to consider other circumstances to decide whether an employer has removed a person from the employment relationship.

11      In my view the cessation of employment at the end of a fixed term contract may constitute a dismissal if the circumstances warrant such a finding.

12      In a case where an employee argues for this result it is, in my view, appropriate, except in clear cases, to allow that employee to make such an argument and to lead evidence in support of it and for the Western Australian Industrial Relations Commission to decide whether, in all of the circumstances, the simple proposition arising out of Gallotti disposes of the matter or whether consideration of the wider circumstances is warranted.

13      I have read the recent decision of the Full Bench of the Fair Work Commission in Khayam v Navitas English Pty Ltd (2017) 273 IR 44.

14      The case contains a comprehensive review of the decisions in that jurisdiction on the meaning of the word “dismissed” in the Fair Work Act 2009 (Cth).

15      While noting that the provisions under consideration in that case are different from those here, and that there is a different legislative history and a different body of precedent authority in that jurisdiction, I am of the view that if “dismissal” in the Western Australian Industrial Relations Commission means to remove or send an employee away from the employment relationship, as it does, then, given this is broadly similar to the question at a federal level of whether the employment relationship has been terminated at the initiative of the employer, there is a basis to have regard to the decision.

16      Having regard to it, as I do, I am attracted to the reasoning of the majority therein and in particular to the following propositions, which are drawn from the headnote but which in my view accurately reflect the majority decision:

(1)   The definition of “dismissed” in s 386(1)(a) of the Act should not be read as excluding in all circumstances a termination of employment that occurs at the end of a time-limited contract of employment.

(2)   The mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end not later than a specified date will not by itself constitute a termination at the initiative of the employer.

(3)   In the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(4)   In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(5)   In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the  contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer — that is, as a result of some decision or act on the part of the employer that brought about that outcome.

17      I consider that where a person comes to the Western Australian Industrial Relations Commission and establishes that he or she did not wish the employment relationship to end when it did, and asks the Western Australian Industrial Relations Commission to consider whether they were, in fact and at law, removed or sent away from the employment relationship by their employer, the Western Australian Industrial Relations Commission should, if it appears warranted, consider the circumstances of the entire employment relationship and not merely the tenure term of the final employment contract.

18      The applicant in this case has established very clearly that he did not wish the employment relationship to end. The question is whether he was, in truth, sent away or removed from his employment by the respondent or whether, in truth, his employment came to an end because, even though he now complains about it, he agreed that this is what would occur when his last fixed term contract finished.

19      Looking at the entire employment relationship, which I consider reasonable, and in fact necessary here, the following relevant factors loom large:

(1)   The Western Australia Police School Traffic Wardens Agreement 2011, which applied from 8 September 2011, does not provide for fixed term contracts. It provides for casual employment and permanent part time employment. Clause 12.2(a) of the agreement provides that “nothing in this clause shall confer ‘permanent’ or ‘fixed term contract’ employment status” giving rise to a conclusion that the kinds of employment that are provided for in the agreement are supposed to “cover the field.” It is relevant, in my view, that the employer here reserved, or purported to reserve, a contractual right, despite the terms of the agreement, to not employ the applicant beyond a particular date when he already had the ability to end the employment relationship on the giving of one hour’s notice, so long as he had reason to do so. In my view, the employer was giving himself an additional ability to send the applicant away from his employment, and one not contemplated by the agreement. That is, an ability to end the relationship without reason.

(2)   The respondent chopped and changed the applicant’s employment status during the course of his employment, or purported to do so, giving rise to a conclusion that the final fixed term contract did not, in truth, represent an agreement that the employment relationship would end at a particular time. Initially, the applicant was on fixed term contracts despite being a casual. Between 30 March 2011 and 7 February 2017, the applicant was an “ongoing casual” without him needing to sign a contract from year to year. In December 2016 he was told he would have to sign a fixed term contract to remain in employment. If the applicant’s employment truly was that he was employed for particular periods, and not as an ongoing casual throughout his employment, this history would not have occurred, unless there were genuine work-related reasons for it. None were pointed to by the respondent as genuinely warranting changes to the working arrangements.

(3)   The paperwork reveals that fixed term contracts were likely reintroduced in December 2016 because the respondent wished traffic wardens to get a WA Police Integrity Check if they were to continue in work. In other words, the respondent seems to have decided he was not going to offer further work to anyone who could not obtain a WA Police Integrity Check and likely decided that the way to achieve this was to reintroduce fixed term contracts and only give a contract to those with a WA Police Integrity Check. The employer, it would seem, wished to decide at this point whether the employment relationship of each traffic warden, including the applicant, would continue or not. That is, the reintroduction of fixed term contracts related directly to the respondent wishing to reserve to himself the ability to end the employment relationship by his own actions and, what is more, without reason.

(4)   The applicant signed a fixed term contract for 2017, and thus went back onto fixed term contracts, because he felt he had no choice, a fair assumption and one made more poignant by the fact the applicant was well over 70 years of age at that time and basically unemployable on the open market. The applicant’s ongoing employment, such as it was given he was a casual, should not have been disturbed in the way it was. It was unfair to present the applicant with what he accurately describes as, for him, a “Hobson’s choice.” Given his age and employability on the open market he had no choice but to sign the fixed term contract. The respondent took advantage of him and his overall situation to reserve to himself an argument that the applicant’s employment could end without reason and without dismissal. He attempted to remove, most unfairly, the applicant’s legal entitlement to his employment ending only for a good reason.

20      I consider an argument that the applicant truly agreed with the respondent that his employment relationship with the respondent would end after nine years on 14 December 2017 to be, with respect, fanciful.

21      I rely on the following for this conclusion:

(1)   the provisions of the Western Australia Police School Traffic Wardens Agreement 2011 as set out above and the inconsistency between it and the fixed term contract the applicant was subject to;

(2)   the fact that nothing changed for the applicant throughout his career with the respondent, whether he was on a fixed term contract or not, giving me grounds for a belief that fixed term contracts were, when used, not a genuine agreement about the real situation. The real situation was that the applicant was, throughout his employment, a casual employee with, by the time the final fixed term contract was entered into, an ongoing expectation of work;

(3)   that the respondent, when he insisted the applicant sign a new fixed term contract to continue in his employment, clearly did so in circumstances where he wished to exercise unilateral control over whether the employment relationship with the applicant would continue. That is, the final fixed term contract did not in any way reflect the situation where the two parties agreed that the employment relationship should end at a certain time;

(4)   the overall circumstances in which the respondent had the applicant become, again, subject to fixed term contracts, that process being attended by a lack of information and the taking of advantage of the applicant given his stage of life.

22      I have no hesitation in finding that the applicant was dismissed from his employment.

23      The respondent informed me that if I decided the applicant had been dismissed he did not wish to be heard on the question of whether the dismissal was unfair. I have found the applicant was dismissed. That dismissal was unfair given that there is no evidence of there being any reason for it nor any fair process leading up to it.

24      No issue was put up by the respondent as making the reinstatement of the applicant impracticable. I will order the reinstatement of the applicant.

25      I will also make orders under s 23A(5) of the Industrial Relations Act 1979 that continuity of the applicant’s employment be maintained and that the respondent pay to the applicant the remuneration lost by him because of the dismissal.  No argument that the applicant had failed to mitigate his loss was made, unsurprisingly, given the applicant’s age.

26      In relation to the order for remuneration lost, I intend to set the date for the applicant’s reinstatement as 16 July 2018 in a minute of proposed order and ask that, taking that date, the respondent informs me and the applicant of the remuneration the applicant will have lost from the date of his dismissal to that date.  I make this request because I do not have good evidence before me of the days the applicant would have worked if he had not been dismissed.  Hopefully provision of a figure by the respondent can allow my chambers to facilitate the entry of an agreed amount in the final order.

Note: [19](3) amended by corrigenda 2018 WAIRC 00392