Appeal against a decision of the Commission in matter no. B 104 of 2016 given on 14 November 2016

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2017 WAIRC 00301

DELIVERED : tuesday, 30 may 2017

FILE NO. : FBA 10 OF 2016

Appellant

AND

Whelans

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner D J Matthews

Citation : [2016] WAIRC 00874; (2016) 96 WAIG 1622

File No. : B 104 of 2016

CatchWords : Industrial Law (WA) - Appeal against decision of Commission - Claim of contractual benefits - Construction of terms of contract - Principles for ascertainment of the terms of a contract of employment considered - Appellant employed as graduate surveyor under articles of apprenticeship to become a licensed surveyor - Professional training agreement formed part of terms of appellant's contract of employment - No breach of terms of contract of employment - Turns on own facts

Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(ii), s 49, s 49(4)(a)

Industrial Relations Commission Regulations 2005 (WA) reg 102(2), reg 102(3)

Licensed Surveyors Act 1909 (WA) s 3, s 3(1), s 7, s 9, s 9(1), s 9(1)(b), s 9(1a), s 16

Licensed Surveyors (Licensing and Registration) Regulations 1990 (WA) reg 3, reg 4

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : Mr J Lilleyman (of counsel), Chamber of Commerce and Industry of Western Australia (Inc)

Case(s) referred to in reasons:

Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570

Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99

Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193

Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407

Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 45 WAR 29

Hughes v St Barbara Ltd [2011] WASCA 234

King v Griffin Coal Mining Company Pty Ltd [2017] WAIRC 00102; (2017) 97 WAIG 527

McMahon v National Foods Milk Ltd [2009] VSCA 153

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104

Royal Botanic Gardens v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45

Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79; (2016) 50 WAR 226

South Sydney Council v Royal Botanic Gardens (1999) NSWCA 478

Terravision Pty Ltd v Black Box Control Pty Ltd [No 3] [2016] WASC 95

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437

Case(s) also cited:

Ansett Transport Industries (Operations) Pty Limited v The Commonwealth of Australia (1977) 139 CLR 54

Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600

BP Refinery (Westernport) Pty Limited v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266

Con-Stan Industries of Australia Proprietary Limited v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226

Gandy Timbers Pty Ltd v Gresty (1986) 66 WAIG 1591

Hotcopper Australia Ltd v SAAB (2002) 117 IR 256

Kinneen v Whelans [2016] WAIRC 00876

Whitlock v Brew (1968) 118 CLR 445

Reasons for Decision

SMITH AP AND SCOTT CC:

The appeal

1         This is an appeal instituted under s 49 of the Industrial Relations Act 1979 (WA) (the IR Act) against a decision made by the Commission on 14 November 2016 dismissing application B 104 of 2016.  Application B 104 of 2016 was referred to the Commission by Robert Kinneen (the appellant) pursuant to s 29(1)(b)(ii) of the IR Act.  The appellant was employed by Whelans (WA) Pty Ltd (who later changed its name to Whelans Australia Pty Ltd) trading as Whelans (the respondent) from 21 March 2007 until 25 March 2011.

2         The appellant has a degree in surveying and has for several years attempted to become qualified as a licensed surveyor.

3         A person is entitled to obtain a certificate of competency issued by the Land Surveyors Licensing Board (the Board) and to practise as a licensed surveyor by obtaining a licence under s 7 of the Licensed Surveyors Act 1909 (WA) if he or she has entered into articles of apprenticeship or pupilage pursuant to the regulations and has passed the prescribed examination and fulfilled all the prescribed conditions (s 9(1) and s 9(1a) of the Licensed Surveyors Act).

4         The appellant claims that it was a term of his contract of employment that the respondent train him to become competent to become qualified as a licensed surveyor through a professional training agreement lodged with the Board which included training for him to complete the Board's final field examination at Boya, near the Helena Valley.  In March 2011, the appellant attempted the Boya field examination which he failed.  Shortly after finding out he had failed the examination he resigned from his employment with the respondent.

5         The appellant claims that the term of his contract of employment was breached by the respondent in that whilst employed by the respondent he did not receive field survey training from the licensed surveyor employed by the respondent who was a party to his professional training agreement.  He also argues that the term of his contract of employment was breached on grounds that he received insufficient rural cadastral survey training in the field to be adequately prepared to pass the final field examination.

6         The appellant's particulars of the breach of the alleged term is as follows:

(a) he had insufficient experience in rural cadastral field work which was a fact known to the respondent when he first became an employee of the respondent but his insufficient rural survey field experience was not addressed by it;

(b) his supervisor, and party to the professional training agreement, Mr Philip Jonath, a licensed surveyor, did not go into the field to train and supervise him, especially in relation to rural cadastral field work;

(c) the respondent did not find a new supervising licensed surveyor within its employ to replace Mr Jonath as a party to the professional training agreement when Mr Jonath resigned in January 2011; and

(d) the respondent was not proactive enough, once Mr Jonath had resigned, in ensuring that he (the appellant) was ready for the Boya field examination in March 2011 and effectively left it to him to train himself.

7         The terms of the appellant's contract of employment are in dispute.  The respondent in its notice of answer filed on 14 July 2016 pleaded that:

(a) the appellant's terms and conditions of employment were governed by the the respondent's employee collective agreement (which was tendered in the proceedings at first instance as exhibit 4);

(b) the terms of the employee collective agreement did not set out any minimum training requirements as part of the terms and conditions of employment;

(c) the appellant, together with the nominated supervising licensed land surveyor, Mr Jonath, was voluntarily party to a professional training agreement which was registered with the Board.  Mr Jonath was at the time employed by the respondent.  The professional training agreement incorporated a training program to be undertaken by the appellant, as a graduate surveyor, under the guidance of the supervising surveyor; and

(d) it disputed that the professional training agreement represented (constituted) a contract of employment benefit.

Application to adduce fresh evidence

8         The appellant included in the appeal book a number of documents that were not tendered into evidence in the proceedings at first instance.  These documents were as follows:

(a) Appendix A - Field Work Table is a document that contains a summary of time the appellant says he recorded in his diaries as time spent by him in the field whilst employed by the respondent under the direct supervision of a licensed surveyor.  The appellant produced the document at the hearing at first instance.  The appellant informed the Full Bench that he thought appendix A was in evidence as he had handed a copy to the respondent's counsel and to the learned Commissioner.  Whilst he did not give evidence about the document or attempt to tender it, he examined Mr Gregory Ireland, an assistant manager and licensed surveyor employed by the respondent, about the fact that the document records that all of the training in field he (the appellant) received whilst employed by the respondent was not from Mr Jonath but from other licensed surveyors employed by the respondent (ts 36 - 39).  When Mr Jonath gave evidence, he conceded that he did not train the appellant in the field (ts 64).

(b) Appendix C - Employee Management Plan is a plan dated 15 October 2009 and refers to a goal of the appellant to obtain license through ongoing training in February/March 2010.

(c) Appendix D and appendix E are letters Mr Jonath wrote to the Board on 24 February 2009 and 28 September 2009 and contain Mr Jonath's observations about the appellant's experience and progress in completing projects.

(d) Appendix F and appendix G are tables found in the annual reports of the Board from 2009 to 2015.

9         After hearing submissions from the parties, the Full Bench informed the appellant that, other than appendix A, the documents would not be received into evidence.  The reasons why the Full Bench made this decision are as follows:

(a) Section 49(4)(a) of the IR Act provides that an appeal to the Full Bench shall be heard and determined on the evidence and matters raised in the proceedings before the Commission.

(b) The Full Bench does, however, have a discretion to receive additional evidence within strict confines which is that fresh evidence can only be admitted if:

The evidence, insofar as it was relevant, and some of it was not, could only be admissible if it were not 'available to the appellant at the time of the trial' and could not by reasonable diligence have been made available. Further, it is only admissible if the evidence sought to be admitted is credible, although it does not have to be beyond controversy. Further, it 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: Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437 [8] (Sharkey P and Kenner C); applied in Merredin Customer Service Pty Ltd v Green [2007] WAIRC 01150; (2007) 87 WAIG 2789 [10]; Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291 [60].

(c) Whilst none of the documents sought by the appellant met the test set out in Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437 and the other decisions referred to in the preceding subparagraph, the members were of the opinion that a special circumstance was raised that should allow the admission of appendix A into evidence.

10      Having read the transcript of the proceedings at first instance and having heard the appellant's submissions, it emerges that the appellant when conducting his case did not appreciate that if he wished to rely upon a particular document he should seek to formally tender the document.

11      It appears from the transcript, however, that when the document was produced by the appellant and after Mr Ireland was examined about the document, no inquiry was made by the learned Commissioner as to whether the appellant wished to tender the document.  Having regard to these circumstances, the Full Bench determined that it would receive into evidence appendix A.  However, the appellant was informed that as he did not give evidence about the contents of the document and how it was prepared and the respondent was not able to test the reliability of the contents of the document, the Full Bench would not give the contents of appendix A much weight.

Terms of professional training agreement entered into by the appellant and Mr Jonath

12      Exhibit 3 records that the professional training agreement made between Mr Jonath, as licensed surveyor, and the appellant as graduate surveyor, was registered by the Board on 12 December 2007.

13      The material terms of the professional training agreement were as follows:

1. Purpose

This agreement records the training program to be undertaken by the graduate surveyor (Rob Kinneen) under the guidance of the supervising surveyor (Phil Jonath).

2. The Supervising Surveyor

Name: Phil Jonath

Address: WHELANS (WA) PTY LTD

P.O. Box 99

Mt Hawthorn. W.A. 6015

Qualifications: 2006, Dip. Of Business

2000, Authorised Mine Surveyor Grade 2

1994, Authorised Surveyor for the Dept. of Minerals and Energy to undertake tenement surveys

1993, Licensed Surveyor (Land Licensed Surveyors Board WA)

1992, Licensed Surveyor (The Surveyors Board of Queensland)

1992, Grad. Dip. in Survey Practice (QUT)

1990, Bachelor of Surveying (SAIT)

Experience: 15 years as a Licensed Surveyor.

Appointments: Project Manager - 2 ½ years.

Professional Associations: Member of the Spatial Sciences Institute

(Australia).

3. The Graduate Surveyor

Name: Rob Kinneen

Address: 66 Reserve Street

Wembley. W.A. 6014

Qualifications: Bachelor of Surveying 2000.

Academic Record: See Attachment A

Surveying Experience: Employed at WHELANS (WA) PTY LTD on a full time basis as a project surveyor.

March 2006 - November 2006

Articled to Paul Nas of NASTECH Surveys (Transferred).

February 2005 - November 2005

Articled to Gary Carlton of Carlton Surveys (Transferred).

December 2003 - January 2004.

Employed at Richard Lester & Associates (Surveyors) on a full time basis as a survey party leader.

September 2001 - November 2003

Recovering from sudden illness

January 2001 - August 2001

Employed at Automated Surveys on a full time basis as a survey assistant/technician.

4. The Company

History:  Operating for over 40 years, WHELANS provides expertise in all facets of surveying, mapping and town planning, while using state of the art equipment. Over this period our reputation and relationship with government bodies and clientele has cemented our name as a professional, ethical and reliable company.

5. Essence of Agreement

The above named persons agree that:

5.1 The surveying graduate agrees to undertake the remainder of his training from the supervising surveyor to learn the profession of a land surveyor in accordance with the Land Surveyors Licensing Board (LSLB) Guidelines, backdated 6 months from the submission of this agreement.

…

5.3 The supervising surveyor will instruct the survey graduate in the profession of land surveyor or shall cause the survey graduate to be so instructed.

5.4 The supervising surveyor will permit the surveying graduate to attend such lectures and examinations as may be requisite or proper for his better instruction in the profession of land surveyor.

5.5 The period of training shall include the remainder of fifteen (15) months on cadastral surveys, including a minimum six (6) month period of urban surveys.

…

7. Scope of Training

The training will include the subjects listed at guideline 5 of the Land Surveyors' Licensing Board Guidelines for Supervising Surveyors (Guidelines).

8. Level of Supervision

The level of supervision provided will be as stated in guideline 6 of the Guidelines.

9. Time Schedule

Time schedule of Professional Training Program. See Attachment B.

10. Responsibilities of the Supervisor

The responsibilities of the supervising surveyor under this agreement are as stated in guideline 7 of the Guidelines.

11. Accountability and Reputation

It is recognized that the graduate (during this agreement and after licensing) is a reflection on the supervisor and on the company (in field notes, project work and direct relations with clientele and the public). The graduate's training is at least as important to the supervisor as the successful completion of survey jobs. The supervisor and company will provide every possible tuition, guidance and opportunity, but the graduate will only be progressed to the next stage when ability is proven.

Despite any intention of the graduate to specialize once licensed, this training must give a balanced general training in all aspects of cadastral work. Competency in all aspects must be demonstrated before the graduate will be recommended for the license.

14      Whilst the company is not directly defined in the agreement, it is referred to in cl 2 and cl 4 as Whelans (WA) Pty Ltd.  Attached to the professional training agreement was a copy of the appellant's Bachelor's degree (ts 6).

15      It is common ground that in January 2011 Mr Jonath tendered his resignation.  Prior to Mr Jonath's employment coming to an end with the respondent, Mr Jonath wrote to the Board that it was his and the appellant's opinion that the appellant was ready to sit the practical examination in March of 2011 (exhibit 9, AB 83).  Mr Jonath also stated in the letter that he had completed the certificate of professional training and that the appellant in his opinion was fully competent for surveys effected and it was his understanding that all fees had been paid previously when the appellant intended to sit the September 2010 practical examination.  Mr Jonath also stated in his letter that he would be ceasing work with Whelans (WA) Pty Ltd, but would keep the professional training agreement under his name until after the appellant sat and completed the March 2011 practical examination.  In the certificate attached to Mr Jonath's letter, Mr Jonath certified that the appellant had gained the following experience between 1 August 2010 to 31 December 2010 as follows (exhibit 9, AB 84):

Relevant documents – terms of contract of employment

16      In the proceedings at first instance, the respondent tendered a letter written by the appellant on 3 April 2006.  The letter was written by the appellant, with a view to obtaining employment with the respondent.  At that time, he had been a party to successive professional training agreements whilst working for two other surveying firms, but he had not completed the requisite conditions and examinations to become a licensed surveyor.  The letter to the respondent contained an 'offer' by the appellant for his services for a chance to complete 'articles' to become a licensed surveyor.  The letter states as follows (exhibit 8, AB 82):

I am writing to offer my services in return for a chance to complete my articles with your company. Unfortunately, my Professional Training Agreement had to be mutually terminated due to my supervisor's inability to provide me with the necessary training. Pending a new PTA, the Licensing Board will consider granting me an exemption based on work completed during my previous PTA. This will probably mean I will have somewhere between 12 and 15 months to go.

Presently, you would be gaining the benefit of the accumulated skills and training of a person who has two years experience as a party leader. I am at a level where I can be sent out to carry through to completion most cadastral surveys, with only minimum off site supervision. To assist you in understanding my skills level, I have included a summary below for your inspection. A record of my recently completed work will be provided in person in the event of a job interview, as well as a resume.

Using a Leica, Topcon or Sokkia Total Station, I am competent in the following areas:

• Easy to medium difficulty road alignments for subdivisions and re-pegs

• Calculations for subdivisions, re-pegs and building set outs

• Pre-calculated re-pegs and set outs

• Built strata surveys

• Levelling surveys

• Topographical surveys

• Sewer and Water as constructed surveys

• Civilcad (a little rusty presently)

• All facets of chainman work

17      Almost a year later, the managing director of the respondent, Mr Brian Hill, made an offer of employment to the appellant.  In a letter to the appellant on 21 March 2007, Mr Hill referred to a number of unspecified documents.  The letter states as follows (exhibit 1, AB 26):

Attached are various documents for you to consider, complete and endorse with respect to our offer of employment with Whelans.

As discussed it would be our intention to have you inducted and comfortable with our work processes as quickly as possible with the aim to have you performing a Survey Party Leaders role as soon as you able. To this end training and a mentoring contact will be made available and a formal review of your progress will be made after the 3 months probationary period.

Assuming this review is favourable it would be reasonable to expect that your salary package could be increased and an Articled Position offer made so that you can ultimately become a Licensed Surveyor.

I look forward to receiving back from you confirmation of our offer of employment and should you have any queries at any time please do not hesitate to contact me.

18      In a preliminary hearing at first instance the appellant tendered a document headed 'Whelans Employee Collective Agreement' which at that time he claimed contains his terms and conditions of employment.  That document was tendered as exhibit 2.  Clause 16 - Training Leave of exhibit 2 contained the following term (exhibit 2, AB 40):

The employee will be provided with appropriate training, as determined on a needs basis, to ensure adequate practical and professional work competency.

19      However, when cross-examined at a subsequent hearing of the merits of his claim, it was put to the appellant that in fact the terms of his contract of employment were contained in an Employer-Employee Agreement Whelans July 2003 which was tendered as exhibit 4 (the employment contract).  The appellant conceded that to be the case.  The material terms of exhibit 4 are as follows:

(a) Clause 2 - Intention of Agreement:

This Agreement shall cover all items and conditions of employment. It shall operate to the exclusion of any other agreements or awards.

(b) Clause 4.1:

4.1 The employer - employee shall be employed as an employee and work in accordance with Appendix B - Employer - Employee Agreement.

(c) Clause 5.1(b) [sic]:

Remuneration shall be in accordance with the Company's salary schedule and employee classification structure (Appendix A), with the rate of pay for an employee party to this agreement detailed in the Employer – Employee Agreement (Appendix B). The salaries detailed in Appendix A will be adjusted from time to time in accordance with wage decisions, made by the State Arbitration Commission, and/or by recommendations made to the Board by The Executive.

(d) Appendix A sets out the salary classifications and annual salaries for each occupational category.  Under the category 'Professional' there are two occupational categories, one being for articles at levels 10 and 11 and professional are levels 12 to 15 (AB 76).

(e) Clause 15 provided (AB 66):

15.1 The employee will be provided with appropriate training, as determined on a needs basis, to ensure adequate practical and professional work competency.

Where approved courses extend for longer than five days the Divisional Manager may require a quid pro quo from the employee for the additional days.

15.2 Subject to work and client commitments being satisfactorily met, training assistance may be available to the employee, in accordance with Company's Training and Academic Leave Policy, to complete an academic or training course that is relevant to the current or potential business of the Company.

(f) In cl 24.9 'professional (degree)' classifications in appendix A are defined to mean a person employed to perform duties in the field of either cartography, surveying, photogrammetry, computing, town planning or environmental science and who possesses a recognised degree qualification.

(g) In cl 1 of appendix B it is stated:

The Employee shall be employed by the Employer on the attached Terms, Conditions and Job Description;

20      There are no documents attached to exhibit 4.  In particular, there is no 'attached Terms, Conditions and Job Description' as referred to in cl 1 of appendix B.

Oral evidence about the terms of employment

21      When giving evidence, the appellant described himself as a cadet.

22      The appellant gave evidence that (ts 5):

[A]t the original interview, um, Whelans - the agreement was that they would put me on three months' probation, um, to see what I was like and so I could see what they were like, and, um, if they decide that, um, that I was acceptable, they would look for one of their employees, a licensed surveyor, to, um, enter into a professional training agreement to train me to become a licensed surveyor.  Um, so what happened is after, um, the three months, they accepted my work and they informed me that they would, um, provide me with somebody to train me.  And, um, it took a couple of months for them to find somebody and then they informed me that, um, Mr Jonath would, um, enter into an agreement.  And so we entered into an agreement in, um, November 2007.

23      The appellant also stated that the terms of the professional training agreement he entered into with Mr Jonath required Mr Jonath to provide the remainder of the training that he, the appellant, required which involved three months of rural cadastral training, training for five projects and training for four examinations, including training in the field (ts 5).

24      When cross-examined, the appellant agreed that the professional training agreement was an agreement between himself and Mr Jonath as supervisor and that the company (the respondent) was not a party to the agreement.

25      When Mr Jonath was cross-examined, he gave evidence that he was approached by Mr Hill to take the appellant on as an articled surveyor and was advised the appellant had had a substantial amount of previous experience, including six months of experience the appellant had gained whilst working at Whelans under the supervision of another licensed surveyor (ts 65).

Evidence about the training provided to the appellant

(a) The appellant's evidence

26      Prior to being employed by the respondent, the appellant had been a party to two prior professional training agreements whilst employed by other employers.

27      The appellant's evidence was that the Board requires a minimum of three months' rural cadastral training and he had no cadastral rural training prior to entering into the agreement with Mr Jonath.

28      Mr Jonath was as an office bound project manager of large-scale subdivisions and who provided the appellant with training in the office.  The appellant did not carry out many projects directly under Mr Jonath.  He received more training from another licensed surveyor employed by the respondent, Mr Mark Spencer, as most of the work he, the appellant, was given was smaller subdivision work which Mr Spencer was in charge of (ts 7).

29      In June 2010, the appellant informed Mr Jonath that he would like to sit the September Boya field examination and Mr Jonath told him, 'You still need training for the exams', and the appellant agreed.  They then both spoke to Mr Hill and told Mr Hill that the plan was that if he (the appellant) completed his projects in time he would be trained for the examinations and sit them.  However, the appellant was not able to complete the last of the five projects in time for the September 2010 Boya field examination which meant that he would sit the examination in March 2011.  Between September 2010 and March 2011, the appellant says he did not receive any training for the field examination, but by early January 2011 he submitted his completed projects.  A week or two later Mr Jonath went on leave and resigned without discussing the professional training agreement with him (the appellant).  The Board then arranged for Mr Ireland to become a caretaker/supervisor of sorts with Mr Hill in a support role.

30      In mid-January 2011, shortly after Mr Jonath had resigned, Mr Ireland and Mr David Gibb, a fellow licensed surveyor, invited the appellant into the boardroom and asked him whether Mr Jonath had trained him for the examination.  He told them he had not been trained for the field examination.  They asked him to explain exactly what he needed training in and he outlined all the different components.  Mr Ireland asked him whether he thought he would be able to complete the training himself and he told them that he would give it a go.

31      Because he was working full-time for the respondent, which included overtime, the appellant found it difficult to train himself and he did not realise what was involved.  He had only seen an old examination paper of the Boya examination that was 10 years old prior to undertaking the examination in March 2011.  About a week prior to the Boya examination, the appellant approached Mr Gibb and asked him if he could take the week off on unpaid leave so that he could complete the training and that was granted.

32      About two or three weeks before the Boya examination in March 2011 he went out to the Boya site with another cadet in order to practise.  He said, however, they were not able to find all of the survey marks that they needed so they were not able to complete the survey.  During the Boya field examination he fell approximately two and a half hours behind in time.  He then tried to rush through the examination, made mistakes and ended up failing.  His evidence was that he did have the skills to become a licensed surveyor, but to break the survey down into its different components and bring it all together on the day in the difficult terrain at Boya under pressure of an examination, he was too slow, he rushed, he made mistakes and was interfered with during the examination by another cadet which held him back.  Consequently, he says that he needed practice before he went out there so that he could have some idea of how much slower it is out there (ts 31).

33      There were also other examinations that he had to train himself in.  There were the two days of the Boya field examination followed by one day of calculations and he had to teach himself a 'staff expansion adjustment'.  He said the problem with the Boya examination was there were two surveys you had to carry out.  One is a 'field measurement survey' and the other one is a 'levelling survey' and if you fail one, you fail both.  The appellant also expressed the opinion that the Boya examination has very low relevance for the normal day-to-day work of a licensed surveyor.

34      After the appellant failed the Boya field examination he became extremely depressed.  The Board do not offer supplementary examinations.  He, however, could have gone back in six months' time and repeated the Boya examination.

35      This was his third professional training agreement.  After he learnt he had failed, he decided he had had enough of the industry so he resigned by sending a letter of resignation to Mr Hill.  His resignation 'letter' appears to have been contained in an email which he sent to Mr Hill on 25 March 2011 (exhibit 7).  The appellant gave evidence that the reason he was upset with the industry was that during his first professional training agreement he received no training, in the second professional training agreement he did not receive any rural surveying field training and that in total between three registered supervisors he had received about 30 days of training in the field.

36      After the appellant's employment came to an end with the respondent, he later attempted the Boya examination again on two subsequent occasions whilst he was not working but did not pass.  As a result, he has been informed by the Board that he would have to repeat all of the ten examinations in total, including the two that he had failed and to do so he would have to enter into another professional training agreement.

37      The appellant's complaint is that he contends that as soon as Mr Jonath resigned the respondent should not have asked him to complete the training himself and should have provided him with an opportunity for training in rural cadastral field work prior to the March 2011 Boya field examination as he needed training in 'position fixing'.  When cross-examined, the appellant conceded at no time did he make a request of Mr Jonath or any other licensed surveyor employed by the respondent for rural cadastral field training.

38      The appellant also conceded that even if he had the training that he thought he ought to have had, he was unable to prove that he would have passed the Boya examination (ts 22).  He, however, did say that the likelihood of a person who has been trained would be greater that they would pass the examination than a person who had not been trained (ts 23).  He also conceded that:

(a) the respondent's representatives at no time informed him that if he did not pass the examination in 2011 that his employment would be terminated; and

(b) he could have put the Boya examination off for another six months.

(b) Mr Ireland's evidence

39      Mr Ireland was called to give evidence on behalf of the appellant.  He is a licensed surveyor and one of two assistant managers of the respondent.  Whilst Mr Ireland did not give any direct evidence about the terms and conditions of the appellant's employment, he did give evidence about the training that the appellant received as a 'cadet' employed by the respondent and how the appellant's training was carried out and supervised by the respondent in a way to comply with professional training agreements that cadets employed by the respondent enter into by way of articles.

40      Mr Ireland said that the appellant worked in the field with several licensed surveyors employed by the respondent and that a professional training agreement does not require the supervising licensing surveyor himself to provide that training.  After Mr Jonath resigned he undertook to be primary caretaker/supervisor of the appellant.  By that time, all of the appellant's projects had been submitted and the final phase of the appellant's training was to prepare for the field test examination.

41      Mr Ireland also gave evidence that after Mr Jonath resigned, whilst the professional training agreement was deemed to continue with Mr Jonath as the supervisor for the purposes of completing the examinations, the appellant's office examination and the submission of those papers to the secretary of the Board prior to the appellant undertaking the field examination at Boya, the appellant was supervised by him in his capacity as an assistant manager (ts 41).

42      Mr Ireland denied that when he met with the appellant and Mr Gibb in early January 2011 in the respondent's boardroom he asked the appellant to explain exactly what he needed training in.  At that point in time Mr Jonath had not tendered his resignation but was on leave.  They called the meeting because Mr Jonath was on leave and their intention was to interact with the appellant to find out the things that he needed to help prepare for the Boya field examination.  Some of those things involved agreement on the field assistant to help the appellant on the day of the examination and questions were asked about other things that the appellant needed to prepare.  There was no discussion at that meeting about Mr Jonath not training the appellant.  The appellant asked for some leave to help prepare for the examination and that was agreed to and there was also some direction in terms of reference material to help the appellant to prepare for the examination.  When Mr Ireland was asked did he ever say to the appellant, 'Can you train yourself?' he denied that he had ever made such a statement.

43      When asked about his own experience with the Boya examination, Mr Ireland said that he sat that examination in 1980.  He did not do a practice measurement.  He did, however, drive up to Boya during the week before he sat the examination and had a quick walk around the site to gain some familiarity.  He noticed that there was a very steep embankment to the hill that they were asked to level up and down.  He was aware of the general topography of the site which was rocky and there were some hills on the site which mean the line of sight is a difficulty and, in his view, it is clear that the Board has held examinations at this location for so long because it is an intended test of people's capability to measure under less than ideal circumstances.

44      Mr Ireland said that the purpose of the field examination is to test the practical application of what the Board regards as basic survey measurement techniques.  These techniques are taught at school, university and in practical training in the workplace.  He also said the test is not necessarily a link to rural experience or rural survey work.  It is the only practical test set by the Board.  The Boya test is the test of someone's skill in measuring things competently and then doing calculations with that afterwards.  The survey is a test of using the equipment, dealing with the difficulties of line of sight, how you choose to set up tripods and instruments, which are all things in your education and during the course of training and working that you become skilled in.  It is an independent test of someone's measuring capability, particularly under a bit of pressure.  The equipment adjustment survey is a basic application of survey skills that are taught from the beginning at university.

45      Mr Ireland said it is his understanding that the appellant had sufficient training and had sufficient preparation for the March 2011 Boya examination.

46      Mr Ireland has been responsible for the training of a number of cadets and he had not been to Boya with any them.  He also said that there was another cadet employed by the respondent who failed the Boya examination.  That cadet waited six months and then re-sat those examinations and passed the part that he had previously failed.  In his opinion, the training regime that the respondent provides under normal circumstances should equip someone to conduct themselves at those examinations.

47      Mr Ireland was aware that the appellant had previously booked to carry out the Boya field examination in September 2010 and it had been agreed between the appellant and Mr Jonath to postpone that and that involved liaising with the Board and asking the Board to carry forward the payment that had been made by the respondent to March 2011 on the basis that by that time the appellant would be ready to sit the examination.

(c) Mr Jonath's evidence

48      Mr Jonath gave evidence on behalf of the respondent.  He said that the professional training agreement he entered into with the appellant required him, together with the provisions of the Licensed Surveyors Act and the Licensed Surveyors (Licensing and Registration) Regulations 1990 (WA), to make sure the appellant fulfilled the requirements to undertake the different components of training, complete the law examination and five major projects.  The professional training agreement also required him to engage and liaise with other employees of the respondent to help assist, instruct, tutor and mentor the appellant both in field and in office practices to become a licensed surveyor.

49      Mr Jonath specifically pointed to cl 5.3 of the professional training agreement which he says enabled both himself and any other appropriately qualified licensed surveyors to provide training to the appellant.  The professional training agreement was to be for a period of 15 months but it was over three years before they agreed to put the appellant forward for the Boya field examination after the appellant had completed the projects.

50      Mr Jonath explained that a person cannot be nominated to sit the Boya field examination without that being certified by the supervising surveyor.  As the appellant had completed the final project by early January 2011 and the appellant wanted to sit the examination in March 2011 he initiated the documentation to submit to the Board.

51      Mr Jonath wrote a letter to the Board in which he certified that the appellant was ready to sit the Boya field examination (exhibit 9).  Mr Jonath by that time had formed the opinion that the appellant was ready for the Boya examination.  He based his opinion on the practical experience that the appellant had gained both whilst working for the respondent for four years and his previous experience.

52      It was Mr Jonath's understanding that at the time the appellant entered into the professional training agreement in 2007 that he (the appellant) was adequately versed in field methodology to be able to execute the field component with minimal supervision and where required arrangements would be made for licensed surveyors to take him out for rural surveys.  Mr Jonath said that the field component of training undertaken by the appellant was not necessarily under the direct supervision in the field by a licensed surveyor but the calculations and documentation generated by the appellant in a survey was under his (Mr Jonath's) immediate supervision and was scrutinised by him.  On occasions, he instructed the appellant to carry out further work to complete the survey to his (Mr Jonath's) satisfaction.

53      Mr Jonath was aware that the Boya examination is extremely difficult.  However, the appellant did not ask him specifically for assistance in relation to the Boya field examination.  They did have some discussions about the Boya examination and he provided the appellant with a copy of a previous examination paper which they went through together with a desktop methodology approach.

54      Mr Jonath said at the time he tendered his resignation suitable arrangements were made to enable the appellant to undertake the field examination.  Rather than change the professional training agreement those arrangements were that he remained as the appellant's supervising licensed surveyor and Mr Hill and Mr Ireland would provide support to ensure that the appellant continued through to the field examinations.  He later sent the appellant an email to wish him all the best.  In the email, he asked the appellant whether he was prepared for the examination and if not to liaise directly with two licensed surveyors who had undertaken the examination to offer and render assistance to him (the appellant) to undertake the examination.

55      Mr Jonath also gave evidence that:

(a) it was the appellant's choice to undertake the examination in March 2011; and

(b) if the appellant had not resigned his employment with the respondent after having failed the Boya field examination he would have been provided with all the support, encouragement, further training and advice from everyone that was within the respondent's organisation that had appropriate skills to guide him through to having another go at the September 2011 Boya examination.

Reasons for decision at first instance

56      In his reasons for decision the learned Commissioner made the following findings:

(a) The relevant documents relating to the contract of employment between the appellant and the respondent were exhibit 1 and exhibit 4.  Neither of these documents contain a term whereby the respondent agreed to provide to the appellant the training necessary for the appellant to become a licensed surveyor.

(b) It was within the contemplation of the parties that the appellant wished to become a licensed surveyor and that the respondent would assist with this.  This was reflected in exhibit 1 in the letter from Mr Hill in which he stated 'it would be reasonable to expect that … an Articled Position offer [could be] made so that you can ultimately become a Licensed Surveyor'.

(c) No documentation was provided or evidence given specifically about the 'Articled Position' offer and the reference to 'an Articled Position offer' was a reference to entry into a professional training agreement.

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

(e) The appellant was employed as a survey party leader.  That employment operated, as a matter of contract, quite separately from the appellant's progress toward becoming a licensed surveyor.  It was common on the evidence that the appellant 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 appellant became a licensed surveyor.

(f) Crucially, there is no mention of the appellant being trained by the respondent to become a licensed surveyor in exhibit 4.  The reference to training in cl 15.1 of exhibit 4 is a reference to training for the role in which an employee is employed and not some other role.

(g) As a matter of law, the appellant 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 appellant 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 appellant's ordinary duties and by having Mr Jonath agree to being the appellant's supervising surveyor in a professional training agreement.

(h) None of that assistance and training was given pursuant to the terms of the appellant'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.

57      Thus, the learned Commissioner found that:

(a) there was no express term of the sort contended for by the appellant and in all of the circumstances there was no warrant to imply such a term into the contract of employment; and

(b) 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.

58      The learned Commissioner then found in the alternative that even if there was a term, express or implied, that the respondent would provide the appellant with training to become a licensed surveyor, for the appellant 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 appellant 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.  In support of this point, the learned Commissioner found:

(a) The appellant put nothing at first instance, even after the point was raised, either by evidence or submissions, to the effect that the respondent had promised to complete his training by March 2011.

(b) The uncontroverted evidence was that, even though the appellant failed the Boya field 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.

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

(d) No comment is made on the nature or adequacy of the training given to the appellant during his employment or under the professional training agreement.  It is not necessary to do so in light of the above findings.  It is noted, however, that the appellant failing the Boya examination proves nothing in relation to the adequacy or otherwise of that training.  No argument is properly available that because the appellant failed the Boya examination his training must have been inadequate.  Exhibit 6 in fact suggests other reasons for the appellant's failure but there is no need to make findings in relation to this issue.

Grounds of appeal

59      The grounds of appeal are largely in the form of a convoluted submission which to some degree is repetitive.  However, from the arguments put by the appellant the grounds can be discerned as follows:

(a) Ground 1 and ground 2

60      The learned Commissioner erred in fact and in law in finding that it was not a term of the appellant's contract of employment that the respondent was obligated to train the appellant to become a licensed surveyor.  The appellant's particulars of these grounds can be summarised as:

(i) the learned Commissioner misunderstood the duties of the appellant's role as survey party leader;

(ii) in accordance with the terms of exhibit 1 and cl 15 of exhibit 4 the appellant entered into a professional training agreement at which time he became an articled surveyor (cadet) under the supervision of a licensed surveyor employed by the respondent, Mr Jonath; and

(iii) pursuant to s 16 of the Licensed Surveyors Act only a licensed surveyor and by extension a surveyor under training can carry out licensed survey work.

(b) Ground 3

61      The learned Commissioner erred in law in finding that the appellant did not need to become a licensed surveyor for his employment as a survey party leader to continue.  The particulars of this ground are that the respondent:

(i) asked the appellant to carry out licensed survey work as a survey party leader and to do so the appellant required training through a professional training agreement;

(ii) was required to ensure the appellant was articled to a licensed surveyor who provided the appellant with training in the field; and

(iii) failed to provide or facilitate necessary rural field training to the appellant.

(c) Ground 4

62      The learned Commissioner made an unsupported finding contrary to the evidence that there was nothing before the Commission that the respondent had promised to complete the appellant's training by March 2011.  The evidence relied upon by the appellant is the fact that the professional training agreement had a time schedule of two years and ended on 1 April 2009 (exhibit 3).

63      It is also contended in this ground that the respondent's failure to provide adequate training for the field examination in breach of the terms of the contract resulted in the appellant's resignation in March 2011.

(d) Ground 5

64      The learned Commissioner erred by failing to explore the reasons for the appellant's resignation.

(e) Ground 6

65                   (i) The learned Commissioner erred by failing to make any finding about the adequacy of training of the appellant when the fact that the appellant failed the Boya field examination showed the appellant lacked adequate training.

(ii) The learned Commissioner erred in referring to exhibit 6 when he made no findings in relation to that document which was an email the appellant sent to a third party.

(f) Ground 7

66      Is not pressed by the appellant.

(g) Ground 8

67      Is not pressed by the appellant.

(h) Ground 9

68      The learned Commissioner erred in that the following matters were not raised at the conference, pre-hearing or hearing:

(i) the respondent accepted the resignation of Mr Jonath without discussing it with the appellant and without ensuring that the appellant had completed the training; and

(ii) the respondent did not accept the appellant's withdrawn resignation.

(i) Ground 10

69      The learned Commissioner did not facilitate mediation between the parties at the conciliation conference.

The appellant's submissions

70      The appellant argues that the finding made by the learned Commissioner that the appellant was employed as a survey party leader and that employment operated, as a matter of contract, quite separately from the appellant's progress toward becoming a licensed surveyor was only true in part.  The appellant explained that most of his work was to carry out survey work that was for licensed surveys.  Either a licensed surveyor went in the field while he carried out the work and supervised his work directly or he carried out the survey in the field alone and then his work was later checked and authorised by a licensed surveyor.

71      The appellant contends that in order for him to carry out licensed survey work he could only do so by carrying out that work in accordance with the terms of a professional training agreement.  In support of this argument, the appellant referred to cl 15.1 of the employment contract which required that he be provided with appropriate training, as determined on a needs basis, to ensure adequate practical and professional work competency (exhibit 4, AB 66).  He argues that without training and supervision under a professional training agreement he would not have been able to carry out the work for licensed surveys competently.

72      The appellant also argues it was an express term of his contract of employment that after a three-month probationary period he would be given an offer of an articled position so that he could ultimately become a licensed surveyor (exhibit 1, AB 26).  The effect of this argument is to raise a contention that the express terms of his contract were not only set out in the employment contract (exhibit 4), but also in the letter of offer of employment which was written by Mr Hill, the managing director of the respondent, on 21 March 2007 (exhibit 1, AB 26).

73      The appellant points out to become a licensed surveyor a person must obtain a certificate of competency.  To do so, reg 4 of the Licensed Surveyors (Licensing and Registration) Regulations requires that the person must perform a period of field service under a professional training agreement for a period of 24 months.  Regulation 4 also provides that the parties to a professional training agreement shall be a supervising surveyor and the person who desires to obtain a certificate of competency.

74      The appellant says when regard is had to the requirements of the Licensed Surveyors Act, in particular s 16 which prohibits a person other than a licensed surveyor from carrying out licensed survey work, together with reg 4 of the Licensed Surveyors (Licensing and Registration) Regulations, it follows that the respondent had a duty to provide to him a supervising surveyor who was able to go into the field to complete the training he required.

75      In apparent support of his arguments the appellant tendered into evidence at the appeal a document titled 'Field Work Table', appendix A (AB 85), which is a record prepared by the appellant from his diary of all the training that he received whilst employed by the respondent.  This document shows that he received 28 days of training in the field under the supervision of licensed surveyors, none of whom were Mr Jonath.  Of those 28 days, 20 days were rural cadastral survey training and eight days were urban cadastral training.  It is our understanding that the days of training referred to by the appellant are days when a licensed surveyor was with him in the field when he carried out licensed survey work and does not include licensed survey work carried out by the appellant in the field without a supervising surveyor which was later checked by a licensed surveyor in the office.

76      The appellant, however, does concede that the respondent was not a party to the professional training agreement as the agreement was made between him and Mr Jonath.  Notwithstanding this concession, the appellant put a submission that irrespective of the express terms of the professional training agreement that he entered into with Mr Jonath that the respondent was obliged to provide field training to him in accordance with the provisions of the Licensed Surveyors (Licensing and Registration) Regulations.

77      The appellant argues that the Licensed Surveyors (Licensing and Registration) Regulations do not allow for field service to be supervised by a licensed surveyor other than the licensed surveyor that is the supervising surveyor party to the professional training agreement.

78      The appellant points out that reg 4 of the Licensed Surveyors (Licensing and Registration) Regulations only refers to one supervising surveyor, not several or many.  Thus, it is argued a cadet is apprenticed to a single licensed surveyor and must learn his or her profession through the work given by that licensed surveyor.  He says that the work he carried out predominantly involved field work which means the supervisor must be a field worker and any office training should be relevant to the field work.  The appellant points out that the Licensed Surveyors Act and the Licensed Surveyors (Licensing and Registration) Regulations do not speak of project management.  Thus, he says it follows that a supervisor needs to be a field worker, not a project manager as Mr Jonath was.  In particular, reg 4 of the Licensed Surveyors (Licensing and Registration) Regulations requires that a person seeking to be licensed as a licensed surveyor should be provided with 24 months of 'field service', not project management.

79      Consequently, the appellant argues that 28 days of training in the field by licensed surveyors other than Mr Jonath over four years left him being in the position by January 2011 as having to train himself for the Boya field examination.  The appellant also argues the respondent was required to release Mr Jonath from his office duties but the respondent failed to do so.  This he says was in breach of the terms of his contract of employment as the respondent had a duty to provide to him a supervisor under a professional training agreement who would go into the field with him and train him.

80      The appellant also put forward an argument that despite the fact that he received insufficient field training, part of the training that he did receive was in accordance with the terms of the contract of employment due to the fact that the respondent did arrange for him to become articled by entering into a professional training agreement.  However, the respondent required him to go into the field to carry out work for licensed surveys by himself both prior to and after the registration of the professional training agreement.  Yet, on the other hand he says the training he received both in the field and in the office was training required by cl 15.1 of the employment contract.  That training was towards ensuring adequate practical and professional work competency (AB 3 - 4).  This included training as a graduate to become a licensed surveyor.  The only way he could achieve professional work competency was to become a licensed surveyor.

81      The appellant points out that the term 'survey party leader' in the offer of employment is a term that is not explained in the employment contract.

82      The appellant also argues that the finding made by the learned Commissioner that if he had not chosen to resign after he failed the Boya examination in March 2011 his employment would have continued and the respondent would have continued to assist him to become a licensed surveyor is contrary to the evidence.  The appellant says he resigned because the respondent failed to honour the terms of the contract by facilitating a workable professional training agreement.  One of the reasons he left is that he had not received sufficient training in the field for him to pass the Boya examination.  Consequently, he says if he had not resigned he would not in any event have received the training he required.

83      He also argues that there was a time constraint upon when the training to become a licensed surveyor should have been completed and that was not only set out in the professional training agreement but also in reg 4 and is a period of 24 months.  Thus, he says by the time the Boya field examinations in March 2011 were undertaken by him, the period for providing professional training as agreed to in the contract of employment had expired.

84      The appellant concedes that it was not an express term of his contract of employment that the respondent train him to become a licensed surveyor but says it was an express term that the respondent would make him an articled position offer.

85      In the circumstances, the appellant says that whilst the respondent did article him by facilitating a professional training agreement between him and Mr Jonath, it failed to facilitate the necessary training through the supervising surveyor in accordance with reg 4.  Thus, he says the respondent breached the express term of the 'articled position' as it is implied in that term that he would have received 'appropriate training' within the meaning of cl 15 of the employment contract and that training was to be training in the field to a standard that enabled him to be competent to pass the Boya examination.

86      The appellant also takes issue with the finding made by the learned Commissioner that after Mr Jonath resigned from his employment with the respondent in January 2011 the professional training agreement continued with Mr Jonath as the supervising surveyor.  He said this finding was not supported by the facts as Mr Jonath made no further contact with him after Mr Jonath left the employment of the respondent and he, the appellant, assumed the professional training agreement had come to an end for all practical purposes.

87      The appellant also made a submission that the learned Commissioner made inconsistent and irrelevant findings in that having found that it was not necessary for him to make any comment on the nature or adequacy of the training given to the appellant during his employment or under the professional training agreement, he then found that no argument was properly available that because the appellant failed the Boya examination his training must have been inadequate.  The learned Commissioner also made an observation about the contents of exhibit 6 which the appellant says was unnecessary as there was no discussion about the contents of exhibit 6 in the learned Commissioner's reasons for decision and that left the reader guessing about what those reasons might be.  He says that if no findings were made about the content of exhibit 6 it should not have been mentioned in the learned Commissioner's reasons for decision.

Construction of the terms of the appellant's contract of employment - issues to be determined

88      It is well established that the appellant bears the burden of proof of establishing to the requisite standard on the balance of probabilities what were the terms of his contract of employment.

89      Prima facie, in light of cl 2 of the employment contract which provides that the agreement covers all items [sic] and conditions of employment, it could be said that it is not open to construe the terms of the employment contract as incorporating as express terms the terms of the professional training agreement the appellant and Mr Jonath entered into.  This is because the effect of an entire agreement clause is to exclude the construction of a document in a way that is outside the four corners of the document, as it constitutes the whole of the parties agreed terms of contract.  However, such a clause only prohibits a court from going beyond the express terms of the contract if the terms of contract on their face record an apparent complete agreement:  McMahon v National Foods Milk Ltd [2009] VSCA 153 [37] - [39] (Nettle JA) and Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [277] - [286].

90      Although the parties agree that the terms of the appellant's contract of employment were expressly set out in exhibit 4, when regard is had to the terms of exhibit 4 and the matters pleaded by the respondent in its notice of answer:

(a) despite the intention expressed in cl 2 of exhibit 4 to 'cover all items [sic] and conditions of employment', it may be the case that not all terms were set out in that document as cl 4.1 of exhibit 4 and cl 1 of appendix B expressly purports to incorporate the terms of a document titled 'Terms, Conditions and Job Description'.  Pursuant to cl 4.1 it appears this document was to set out conditions that the appellant was to work in accordance with.  This document, if it existed, however, was not produced in evidence by either party.  Nor was any explanation given by either party as to whether such a document was or had been in existence when the parties entered into the contract;

(b) the terms of exhibit 4 can largely be said to contain generic terms, in that the terms are drafted to apply to a number of different classifications of employees of the respondent, including non-professional employees (appendix A - Salary Classification, AB 76);

(c) there is no salary classification for an occupation of 'survey party leader'.  However, within the classification of professional (degree) in cl 24.9 there are in appendix A two professional occupational categories, 'professional' and 'articles'; and

(d) it is pleaded by the respondent that the appellant was employed as a graduate surveyor.

91      When regard is had to these matters, it cannot be inferred with any confidence that exhibit 4 sets out all of the appellant's relevant terms of the appellant's contract of employment.  It follows therefore that the intention expressed in cl 2 for the terms of exhibit 4 to operate as an entire agreement fails as the document tendered as exhibit 4 appears on its face to be incomplete.  Thus, the intention expressed in cl 2 in these proceedings must necessarily fail.

92      In this appeal the questions to be first determined are:

(a) whether the letter of offer (exhibit 1) formed part of the appellant's contractual terms;

(b) whether the conduct of the parties created a term that the appellant was employed in the classification of an articled surveyor on entering into a professional training agreement with Mr Jonath;

(c) whether the conduct of Mr Hill in arranging for the appellant to enter into a professional training agreement with Mr Jonath was an act that was authorised by the terms of the contract of employment (exhibit 4); and

(d) did the terms of the professional training agreement the appellant entered into form part of the terms of the appellant's contract of employment?

Principles - Ascertainment of the terms of the contract of employment

93      The ascertainment of the terms of a contract whether oral or in writing always turns on the words used by the parties and the construction of the words used by the parties are to be judged objectively.  In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40] the Full Court said:

This Court, in Pacific Carriers Ltd v BNP Paribas ((2004) 218 CLR 451), has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]).

94      Whilst regard can be had to surrounding circumstances where ambiguity is raised, to understand the subject matter of the contract, evidence of or expectations of the parties' subjective intention is not admissible:  Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352.

95      In Terravision Pty Ltd v Black Box Control Pty Ltd [No 3] [2016] WASC 95 Le Miere J summarised the following well-established principles of construction of contracts [37] - [40]:

In Electricity Generation Corporation v Woodside Energy [2014] HCA 7; (2014) 251 CLR 640 (Electricity Generation) and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 89 ALJR 990 (Mount Bruce Mining) the High Court reaffirmed that the rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract) and purpose. In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable business person would have understood those terms to mean: Electricity Generation [35]; Mount Bruce Mining [47]. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract: Electricity Generation [35]; Mount Bruce Mining [47].

Ordinarily this process of construction is possible by reference to the contract alone. However, sometimes, recourse to events, circumstances and things external to the contract is permissible and necessary. The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337, 352. The fact that adversaries can formulate and advance materially different constructions of the language of a contract does not itself satisfy the gateway requirement. Having regard to the language of the contract as a whole and what can be gleaned from that source as to the contractual purpose, competing constructions must be reasonably arguable: Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164 [74] (McLure P). Recourse to events, circumstances and things external to the contract may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating': Electricity Generation [35], Mount Bruce Mining [49]. It may be necessary in determining the proper construction where there is a constructional choice: Mount Bruce Mining [49]. In this case the language of cl 10 of the 2006 Agreement is ambiguous or susceptible of more than one meaning and evidence of surrounding circumstances is admissible to assist in its interpretation. I did not understand either party to argue to the contrary.

Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations: Mount Bruce Mining [50].

Other principles are relevant in the construction of commercial contracts such as the 2006 Agreement. Unless a contrary intention is indicated in the contract, the court is entitled to approach the task of giving a commercial contract an interpretation on the assumption 'that the parties ... intended to produce a commercial result': Electricity Generation [35]; Mount Bruce Mining [51]. Put another way, a commercial contract should be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience': Electricity Generation [35]; Mount Bruce Mining [51].

96      On appeal in Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [27] neither party took issue with Le Miere J's observations relevant to the construction of the contract.

97      It is now accepted that subsequent conduct cannot be looked at to interpret a written agreement.  However, evidence of events after a contract was entered into is admissible for determining the question about whether a binding contract was formed:  Hughes v St Barbara Ltd [2011] WASCA 234 [106] (Pullin JA).

98      Regard may also be had to subsequent conduct of the parties for the purposes of determining what were the entire terms of the contract:  County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 [21] - [27] (Spigelman CJ).

99      When interpreting an agreement in writing regard must be had to all of the provisions of the agreement with a view to achieving harmony among them:  Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79; (2016) 50 WAR 226 [92] (Buss JA), applying Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 - 110.

100   In Servcorp [66] Buss JA also reviewed legal principles applicable to the implication of terms.  His Honour pointed out there are a number of different forms of implied terms, which include:

(a) A term deduced by implication or interpretation from the express terms of the contract. See Marcus Clark (Victoria) Ltd v Brown [1928] HCA 12; (1928) 40 CLR 540, 553 - 554 (Higgins J); Vickery v Waitaki International Ltd [1992] 2 NZLR 58, 64 (Cooke P, Richardson and Gault JJ agreeing); Carlton & United Breweries Ltd v Tooth & Co Ltd (1985) 6 IPR 319, 320 (Hodgson J); Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 [28] (Heydon JA).

(b) A term which is a legal incident of a particular class of contract. See Liverpool City Council v Irwin [1977] AC 239, 254 - 255 (Lord Wilberforce); Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337, 345 - 346 (Mason J, Stephen and Wilson JJ relevantly agreeing); Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 448 - 452 (McHugh and Gummow JJ).

(c) A term specifically implied ad hoc in a particular contract. See BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 283 (Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel); Codelfa (345 - 347). This term is invariably described as an implied term necessary to give business efficacy to a particular contract. It is implied in fact and based upon the presumed intention of the parties.

101   When construing a contract, it must be construed as a whole.  No part should be treated as surplus or inoperative.  A clause should not be considered in isolation and the words of every clause must if possible be construed so as to render them harmonious:  Australian Broadcasting Commission (109) (Gibbs J).

What were the terms of the appellant's contract of employment?

102   The statements made in the letter written by Mr Hill dated 21 March 2007, in exhibit 1, are mere statements of subjective intention of future acts; that is Mr Hill simply sets out what he expected would occur after the appellant commenced employment and are statements not capable of being construed as terms of employment.  In particular, Mr Hill stated:

(a) it was the 'aim' to have the appellant performing a survey party leader's role.  It is notable that there is nothing in the letter that indicates that a 'role' of survey party leader was to be the salary classification of the appellant.  In any event, no reference to such a 'role' is contained in exhibit 4;

(b) that training and a 'mentoring 'contact' will be made available and a formal review of the appellant's progress will be made after the three months' probationary period; and

(c) if the review is favourable it would be reasonable to expect the appellant's salary package could be increased and an 'articled position offer' made so that the appellant could ultimately become a licensed surveyor.

103   As the statements made in exhibit 1 are mere statements of subjective intention they cannot be construed as terms of contract and thus did not form part of the appellant’s contract of employment.

104   The uncontradicted evidence of the appellant at first instance was that exhibit 4 set out the express terms of his contract of employment.  As set out above, neither the appellant or any other witness gave evidence that attached to exhibit 4 was a document referred to in appendix B of exhibit 4 as 'Terms, Conditions and Job Description'.  In the absence of any evidence that such a document was in fact incorporated into the contract of employment or any explanation of the term 'articles' in exhibit 4, the salary classification of professional of which 'articles' is a sub-classification in appendix A is ambiguous.  Where a term of an agreement has two or more meanings or where for some reason the intention of a term is doubtful a broader concept of ambiguity arises:  South Sydney Council v Royal Botanic Gardens (1999) NSWCA 478 [35]; affirmed Royal Botanic Gardens v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45.

105   To resolve the ambiguity that arises in this matter recourse can be had to events, circumstances and things external to the contract which are known to the parties, including its history, background and context and the market in which the parties were operating:  Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [50] (French CJ, Nettle and Gordon JJ).

106   The enquiry requires consideration of the language used by the parties to the contract and the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract:  Mount Bruce Mining [47] (French CJ, Nettle and Gordon JJ).

107   In this matter, the surrounding circumstances known to the parties, the context and business for which the appellant was engaged include the statutory scheme by which surveyors become licensed and the respondent as a provider of survey services can operate.

108   The registration, licensing and control of practices of licensed surveyors is regulated by the Licensed Surveyors Act (Long title of Licensed Surveyors Act).  Pursuant to s 16 of the Licensed Surveyors Act a surveyor who is duly licensed and holds a practising certificate to make authorised surveys shall be entitled to practise his profession.  An authorised survey is defined among other things in s 3(1) as:

(a) a survey of land authorised or required under any Act dealing with the alienation, leasing or occupation of Crown lands, or under the Transfer of Land Act 1893, or any other Act affecting titles to land;

or

(b) by the proprietor, lessee or mortgagee under any Act affecting titles to land.

109   A person is entitled to a licence as a surveyor if he or she has obtained a prescribed certificate of competency (s 7 of the Licensed Surveyors Act).  A person is entitled to be issued with a certificate of competency by the Board if they pass the prescribed examination and fulfilled all the prescribed conditions or has a degree together with prescribed field service and if they have entered into articles of apprenticeship or pupilage pursuant to the Licensed Surveyors (Licensing and Registration) Regulations (s 7 and s 9 of the Licensed Surveyors Act).

110   Regulation 4 of the Licensed Surveyors (Licensing and Registration) Regulations prescribes:

(a) the period of field service referred to in s 9(1)(b) of the Licensed Surveyors Act to be performed under a professional training agreement and subject to the Licensed Surveyors (Licensing and Registration) Regulations is to be for a period of 24 months;

(b) the parties to an agreement for professional training are to be a supervising surveyor and the person who desires to obtain a certificate of competency; and

(c) a professional training agreement shall specify the training to be provided under the agreement.

111   A surveyor is defined in reg 3 of the Licensed Surveyors (Licensing and Registration) Regulations and s 3 of the Licensed Surveyors Act to mean a licensed surveyor whose name appears on the register of licensed surveyors.

112   Whilst little evidence was given about the services that the respondent provided when the appellant was employed, it appears that the respondent provides authorised surveying services and at law it can only do so through licensed surveyors.  When regard is had to the statutory requirements for the licensing of surveyors it follows that to become licensed as a surveyor a person must receive training through a professional training agreement which appears to be what is described in s 9(1a) of the Licensed Surveyors Act as articles of apprenticeship or pupilage pursuant to the regulations.

113   The surrounding circumstances known to the parties also includes the fact that the appellant was seeking to obtain work whereby he would be able to complete the necessary training to become a licensed surveyor by entering into articles under a professional training agreement.

114   In the letter dated 21 March 2007, Mr Hill expressed a view that if after the three months' probationary period a formal review (of the appellant's performance) was favourable an articled position offer may be offered.  Whilst this statement in exhibit 1 cannot be admitted as evidence going to the subjective intention of the parties to construe the terms of the contract of employment, the fact that an offer of articles may or may not be made after the parties entered into the contract of employment formed part of the surrounding circumstances.

115   When regard is had to the statutory scheme of licensed surveying reasonable persons in the surveying business would, in our opinion, form the view that the proper construction of the salary classification in exhibit 4 of professional articles is that it can be implied that the salary classification of professional articles is a classification of persons engaged to work under training to become a licensed surveyor pursuant to a professional training agreement entered into in accordance with the requirements of the Licensed Surveyors Act and Licensed Surveyors (Licensing and Registration) Regulations.  In our opinion, such an implication arises from the express terms of exhibit 4.

116   When cl 15.1 is read together with the salary classification of professional articles, the words 'appropriate training, as determined on a needs basis, to ensure adequate practical and professional work competency' can be construed as a training provided through a professional training agreement, if articles are in fact entered into by an employee party to exhibit 4.

117   It cannot be ignored, however, that pursuant to the statutory scheme that the respondent itself as a company cannot be a party to a professional training agreement as only individual persons can register as licensed surveyors.  Yet, the uncontradicted evidence before the Commissioner at first instance is that Mr Hill arranged for a licensed surveyor employed by the respondent, Mr Jonath, to enter into a professional training agreement with the appellant sometime after the appellant's probationary period of employment had expired, that is after the parties had entered into the contract of employment.  Whilst this evidence cannot be used to interpret the contract of employment, regard can be had to this evidence to determine what the terms of the entire contract are and whether the parties by their conduct agreed to classify the appellant within the salary classification of professional articles within the meaning of that term in exhibit 4.  In our opinion, such an agreement was reached sometime in 2007 after the appellant had been employed for six months.  As the salary classification of professional articles was a classification within the express terms of the employment agreement and carried with it a range of salary to be paid whilst articled, the conduct of Mr Hill to arrange for Mr Jonath to become a party to a professional training agreement with the appellant did not effect a second contract of employment, as the entering into articles by the appellant was an act contemplated and authorised the express terms of the contract of employment set out in exhibit 4.

118   We also conclude that the professional training agreement between the appellant and Mr Jonath constituted part of the contract of employment between the appellant and the respondent.  The professional training agreement says that it is only between the appellant and Mr Jonath, and the respondent is not formally a party.  However, we think that, read in context with the other employment arrangements and subsequent conduct of the managing director of the respondent, Mr Hill and a senior manager of the respondent, Mr Ireland, it formed part of the contract.  We say this because both the terms of the professional training agreement and the subsequent conduct involve the respondent in a number of important aspects.  Some of those aspects, taken separately, may not be significant, but taken altogether, paint a clear picture:

(a) It was Mr Hill who approached Mr Jonath to take the appellant on as part of the professional training agreement and for Mr Jonath to be the nominated supervising surveyor.

(b) Mr Jonath's letters to the Board were on the respondent's letterhead.

(c) While Mr Jonath was on leave before he resigned from the respondent, Mr Ireland and Mr Gibb met with the appellant to find out what the appellant needed to help him prepare for the Boya field examination.

(d) In terms of the professional training agreement:

(i) The respondent is referred to in the address used in cl 2 which sets out the details of the supervising surveyor.

(ii) It is referred to in cl 3 which sets out the graduate surveyor's details, specifically that he is '[e]mployed at Whelans (WA) Pty Ltd on a full time basis as a project surveyor'.

(iii) In cl 5.3, the supervising surveyor 'will instruct the graduate surveyor in the profession of land survey or shall cause the survey graduate to be so instructed' (emphasis added).  This demonstrates that there was no requirement for Mr Jonath to exclusively and personally instruct the appellant.  Where the appellant complains that Mr Jonath did not supervise or provide particular training, it is clear that it did not have to be undertaken by him personally.  There were other licensed surveyors employed by the respondent, such as Mr Mark Spencer, who also trained the appellant.  Mr Ireland took over from Mr Jonath on a de facto basis following Mr Jonath’s resignation in the period between Mr Jonath certifying that the appellant 'would be fully prepared to undertake the final practical examination in February/March 2010' and the examination.  There was no evidence of Mr Jonath causing any other licensed surveyors beyond those employed by the respondent to provide instruction.

(iv) The professional training agreement provides in cl 4 - The Company, a brief paragraph about the respondent's history and areas of expertise.

(v) Clause 5 - Essence of Agreement also provides for the surveying graduate to perform the work the 'supervising surveyor shall require for the purpose of training'.  The evidence suggests that the work involved in this was not separate from or additional to the work the appellant performed in his employment with the respondent.

(vi) Clause 5.4 provides that 'the supervising surveyor shall permit the surveying graduate to attend such lectures and examinations as may be requisite or proper for his better instruction in the profession of land surveyor'.  The clear inference we draw is that this permission relates to the surveying graduate requiring time away from his paid employment with the respondent to attend these things.  The supervising surveyor would only have authority to permit him to do so as a representative of the respondent.  Otherwise there is no indication of why the surveying graduate requires permission; for example, there is no suggestion of out-of-work-hours training arrangements with Mr Jonath that the appellant needs permission to absent himself from.

(vii) Clause 11 - Accountability and Reputation refers to the graduate as 'a reflection on the supervisor and the company' and that '[t]he supervisor and the company provide every possible tuition, guidance and opportunity…' (emphasis added).

119   Therefore, we conclude that the professional training agreement constituted an important part of the employment contract.  Even though the respondent was not formally party to it, it was impliedly so.  Therefore, we would uphold grounds 1 and 2.

120   The finding made by the learned Commissioner that the appellant as a matter of law was employed as a survey party leader was in error.  There is no such classification in exhibit 4.  Further, the finding is contrary to the respondent's pleaded fact that the appellant was employed as a graduate surveyor.  For this reason, ground 3 of the appeal must in part succeed, but the particulars of ground 3 do not succeed as they are not relevant to the error that is demonstrated.  Having made this finding, we do not agree, however, that the learned Commissioner erred in finding that the appellant did not need to become a licensed surveyor for his employment to continue.  To the contrary, for reasons that follow, we are of the opinion that this finding was not only correct, but once accepted as correct it is clear this appeal must necessarily fail as the evidence clearly established it was not necessary for the appellant to become a licensed surveyor for his employment to continue.  He could have continued to work while he undertook training.

121   Whilst we agree that it was a term of the appellant's contract of employment that the appellant was employed as an 'articled' professional whereby training would be provided to him to assist him to become a licenced surveyor, we are not satisfied that the evidence before the learned Commissioner established a breach of this term or any other condition of his contract of employment.  To succeed in this appeal and to be entitled to relief ground 4 must succeed.

122   At the heart of the appellant's case in ground 4 is a contention that the training he received was inadequate for him to pass the final Board examinations which has been referred to as the Boya examination.  However, even if the learned Commissioner had found the appellant had not been provided with enough rural cadastral training in the field to enable him to be sufficiently prepared for the March 2011 Boya examination, such a finding (if it had been made) would not be sufficient to find the respondent breached a term of the appellant's contract of employment.

123   The reason why the appellant's arguments must fail is that:

(a) The following matters were conceded by him at first instance:

(i) even if he had the training he thought he should have received, he is unable to prove he would have passed the March 2011 Boya examination; and

(ii) he could have delayed undertaking the Boya examination for another six months.

(b) The evidence given by the appellant's witness, Mr Ireland, established that if an employee of the respondent fails the Boya examination that they are able to re-sit the examination at a later time.

(c) The evidence given by Mr Jonath is that if the appellant had not resigned his employment in March 2011 he would have been provided with further training to enable him to re-sit the Boya examination in September 2011.

124   Significantly, if the contract required the respondent to train the appellant, nothing in the employment contract required the respondent to train the appellant to the point that he would pass the examination and assessments required by the Board.  It was to provide training but could not guarantee success.

125   Clause 15 - Training leave of the employment contract related to the performance of the appellant's substantive role, not to the professional training agreement whereby he was being assisted to become a licensed surveyor.  He was not a licensed surveyor, nor did the professional training agreement require the respondent to train him to successfully become one.

126   Most importantly, nothing in the professional training agreement or elsewhere in the employment contract says any more than that training will be given and undertaken.  Clause 11 - Accountability and Reputation specifically provides that 'the surveyor and company will provide every possible tuition, guidance and opportunity, but the graduate will only be progressed to the next stage when ability is proven'.

127   It would be unusual for a training agreement to provide any guarantee that the training will be continued to the point where the trainee passes the necessary examinations and assessments to gain the relevant qualification.  All that is required is that the training provider provide the training.  The employment contract did not require the respondent to train the appellant to the point where there was a guarantee that he would be a licensed surveyor.

128   The professional training agreement was not time-limited.  There is no requirement for it to have been completed by a given date.  Where an employee fails the Boya examination, they are able to re-sit the examination at a later time.  The end of the arrangement came about because the appellant resigned from his employment in March 2011, otherwise he would have been provided with further training to enable him to re-sit that examination in September 2011.

129   Although the professional training agreement has a time limit, this does not mean that the respondent would cease providing training to the appellant after that period, and nor does it mean that it was obliged to train him to the point where he would be successful in the completion of his professional requirements within that time or any other time.

130   The fact that the professional training agreement set out a time schedule of 24 months in cl 9 and attachment B of attaining a professional competence of particular topics is irrelevant (AB 55).  The conduct of the parties to the professional training agreement and the conduct of the respondent was to treat that term as merely aspirational as the professional training agreement did not come to an end after 24 months.  In respect of ground 4, while the professional training agreement had a time schedule of two years, it was quite clear that this was extended and, further, that the respondent would have continued to train the appellant had it been necessary.

131   When all of these matters are considered, as it is patently clear that there was no evidence before the Commission that the respondent was obliged by any contractual term to complete the appellant's training by March 2011, ground 4 must necessarily fail.

132   In respect of ground 6, we think the assertion made in (i) of this ground, that the appellant failed the Boya field examination showed the appellant lacked adequate training, lacks logic.  There are a number of reasons why a person may fail an examination, and the failure does not necessarily mean that the person was inadequately trained.  The evidence does not demonstrate that this was so in this case.  In any event, there was further training available to the appellant had he wished to continue.  Consequently, the matters raised in ground 6 are irrelevant because if the appellant required further rural field survey cadastral training in March 2011, the learned Commissioner properly had regard to the evidence of Mr Ireland and Mr Jonath that established that such training could have been provided to the appellant if he had continued to be employed by the respondent.

133   Therefore, whilst there is some error in the decision at first instance, it has not been demonstrated that this would have made any difference to the outcome.  The reason why the training did not continue was the appellant's resignation.

134   Although we are of the opinion that grounds 1, 2 and part of 3 of the appellant's grounds of appeal have been made out, as grounds 4 and 6 have not been made out, the appeal should be dismissed as the evidence given in the proceedings at first instance was not capable of establishing that the respondent breached a term of the appellant's contract of employment.  Consequently, we are not satisfied that the learned Commissioner erred in fact or in law in making an order to dismiss the appellant's claim.

135   As to grounds 5, 9 and 10, it is clear that the learned Commissioner did not err in not explaining the reasons for the appellant's resignation.  The only relevant fact going to the terms of the appellant's contract of employment was and is that he resigned effective from 25 March 2011.  The reasons why the appellant resigned are not relevant to the claim he referred pursuant to s 29(1)(b)(ii) of the IR Act.  Nor does the fact that Mr Jonath resigned in January 2011 without discussing the resignation with the appellant raise any issue relevant to the matters raised in this appeal.  Similarly, whether the learned Commissioner facilitated a mediation of the appellant's claim at a conciliation conference is not relevant to the issue whether the appellant's claim that the respondent breached a term of his contract of employment has any merit.

136   For these reasons, we are of the opinion an order should be made to dismiss the appeal.

KENNER ASC:

The appeal

137   The background to the appeal, the appeal grounds, a summary of the evidence and findings at first instance are set out in the reasons of Smith AP and Scott CC which I need not repeat.

138   Whilst the appeal grounds do not comply with the requirements of reg 102(2) and (3) of the Industrial Relations Commission Regulations 2005 (WA) and I had some difficulty clearly discerning the complaints of the appellant, it seems to me that the two key issues to be determined on the appeal are:

(a) what were the terms of the contract of employment between the appellant and the respondent; and

(b) whether the terms of the contract obliged the respondent to provide training to the appellant to enable him to become a licensed surveyor.

Construction of contracts

139   In King v Griffin Coal Mining Company Pty Ltd [2017] WAIRC 00102; (2017) 97 WAIG 527 at pars 10-13, I referred to Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 and the observations of Newnes and Murphy JJA and Beech J in relation to the construction of contracts generally. I also referred to Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd (2012) 45 WAR 29 and the observations of McLure P in relation to the use of extrinsic evidence in the construction of contracts. I adopt those observations without repeating them for the purposes of these reasons.

140   Also, it is generally impermissible to have regard to the conduct of parties to a contract subsequent to its formation: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407.

Terms of contract

141   As with any contract, the terms of the appellant’s contract of employment with the respondent are to be ascertained from the offer and acceptance in the context of the relevant background and circumstances.

142   In this case it was common ground at first instance that the appellant received a letter from the respondent signed by Mr Hill, the Managing Director dated 21 March 2007. The letter was headed “RE:  Position with Whelans”.  The letter referred to various documents to be completed by the appellant “with respect to our offer of employment with Whelans”.  The next three paragraphs of the letter were as follows:

As discussed it would be our intention to have you inducted and comfortable with our work processes as quickly as possible with the aim to have you performing a Survey Party Leaders role as soon as you able (sic). To this end training and a mentoring contact will be made available and a formal review of your progress will be made after the 3 months probationary period.

Assuming this review is favourable it would be reasonable to expect that your salary package could be increased and an Articled Position offer made so that you can ultimately become a Licensed Surveyor.

I look forward to receiving back from you confirmation of our offer of employment and should you have any queries at any time please do not hesitate to contact me.

143   It was accepted by the appellant at first instance, and it was common ground, that a document called “Employer – Employee Agreement” (exhibit 4) contained the relevant terms and conditions of employment, even though a signed copy could not be located. This document set out at cl 24.9 “Employee Classifications” which in turn provided five groups of generic classifications. It is not entirely clear which of the broad generic groups would strictly apply to the appellant’s employment as a “Survey Party Leader” referred to in the letter of offer of 21 March 2007. The “Management Classifications” in cl 24.10 also were not relevant.  It seems the appellant was paid a salary towards the higher end of the scale, from his particulars of claim. However, and in any event, simply because the classifications in cl 24.9 and cl 24.10 may not have neatly fitted the appellant’s employment, did not mean in my view, that the remainder of exhibit 4 could not apply as the terms and conditions of the appellant’s employment with the respondent, as appeared to be the evident intention of the parties.  As noted, it was common ground that exhibit 4 was to be read as the terms and conditions of the appellant’s employment with the respondent and the learned Commissioner found to this effect.  Such a finding was plainly open on the evidence.

144   It was also common ground that should the appellant progress satisfactorily beyond the three-month probationary employment period set out in the letter of offer, it was the expectation that an “Articled Position offer” would be made, to enable the appellant to progress to become a qualified licensed surveyor. 

145   The terms of the contract of employment offer made by the respondent to the appellant in March 2007, need to be understood in the context of the background facts and circumstances.  One of those relevant considerations was a letter from the appellant to the respondent tendered as exhibit 8. The letter, which was written some time before the offer of employment by the respondent, set out the appellant’s background and experience and outlined his desire to complete his articles with a firm of surveyors. Importantly, by way of context and background, the appellant set out in the second part of the letter, that any prospective employer would gain the benefit of someone who had “accumulated skills and training of a person who has two years experience as a party leader.”  The appellant further said that he was experienced sufficiently to carry out most surveys in the field with minimum supervision. A summary of the appellant’s skills, and a record of work recently completed, was further set out in this letter.

146   There was also evidence led before Commission at first instance as to this issue.  The appellant testified that he had an interview with Mr Hill and Mr Sullivan, a Senior Licensed Surveyor. This was some months after the letter the appellant wrote to the respondent, referred to above, and the day before he was offered a position. In the interview, the appellant said that he was going to work as “a project surveyor, otherwise called a party leader” (T6). There was also going to be a three-month probation period. The respondent would eventually have a licensed surveyor enter into a training agreement with the appellant, and provide him with training. When exhibit 1 was put to him, the appellant clearly identified the position “Survey Party Leader” as the position discussed in the interview with Mr Hill (T9). Mr Ireland, one of two Assistant Survey Managers of the respondent, whilst not directly involved in the employment of the appellant, confirmed that the position of “Survey Party Leader” was one well known in the firm, that the appellant was employed as such, and it was otherwise described as a “Project Surveyor”, as referred to by the appellant (T16).

147   To the extent that there may be said to be any ambiguity in relation to the position to which the appellant was appointed under the contract of employment, consistent with the above authorities, from all of the evidence and in particular exhibits 1, 4 and 8 read in context and having regard to all of the background circumstances, the appellant was employed by the respondent as a Survey Party Leader, and the terms and conditions of his employment were as set out in exhibit 4.

148   It was also not in dispute that the process by which a person becomes a licensed surveyor is prescribed by the Licensed Surveyors Act 1909 (WA) and the Licensed Surveyors (Licensing and Registration) Regulations 1990 (WA). This statutory scheme requires a person intending to embark on a course of becoming a licensed surveyor, to enter into a separate contract of training with a qualified surveyor. In this case, the appellant entered into a “Professional Training Agreement” with Mr Jonath, a licensed surveyor employed at the time by the respondent. A copy of this Agreement was exhibit 3 at first instance. The agreement set out the training program to be undertaken by the appellant under the supervision of Mr Jonath.  The appellant was described in the Agreement as a “Graduate Surveyor” and Mr Jonath was described as the “Supervising Surveyor”. The training was to be conducted in accordance with the requirements of The Land Surveyors Licensing Board Guidelines for Supervising Surveyors. Notably in cl 6 – The Graduate Surveyor’s Competencies, the appellant set out his knowledge, experience and qualifications, which included at (1) (and presumably current) his position as “Survey Party Leader”.

149   It is plain that the Agreement was entirely separate to the contract of employment between the applicant and respondent. It was entered into by different parties.  The respondent was not a party to it. It was entered into under the specific statutory scheme for the training and licensing of graduate surveyors, to enable them to become “admitted” to the profession of licensed surveyors. I do not consider from the evidence at first instance that the appellant was employed by the respondent as an “Articled Surveyor” or as a “Articled Position”. His position for which he was paid his salary was that of Survey Party Leader.  The appellant, in conjunction with his employment, also was subject to the Agreement, by which he would be provided the training to enable him to satisfy the statutory requirements to be registered by the Board as a licensed surveyor. The employment contract and the Agreement were separate and one did not depend on the other for the operation of each. The learned Commissioner’s conclusions in this respect were not in error and I agree with them.

Obligation to train

150   The complaint of the appellant was that the respondent was obliged to train him to become a licensed surveyor and that this was a benefit denied to him under his contract of employment. To make good this contention, it was necessary for the appellant to establish that it was a term of his contract of employment for him to be so trained. It is therefore necessary to examine the terms of the contract of employment to ascertain whether such an obligation was placed on the respondent by the terms of the contract.

151   The learned Commissioner concluded that the only reference to training in the terms and conditions of employment document in exhibit 4, was cl 15.1. It provided “The employee will be provided with appropriate training, as determined on a needs basis, to ensure adequate practical and professional work competency. …  Where approved courses extend for longer than five days the Divisional Manager may require a quid pro quo from the employee for the additional days.”  I have no doubt that this provision was intended to be general in nature and obliged the respondent to provide training to employees as might be required, to enable them to perform the requirements of their particular positions, on a day-to-day basis. I do not consider that this provision could be reasonably construed, in its ordinary and natural sense, to oblige the respondent to fulfil all of the obligations under the Agreement to ensure that the appellant became a licensed surveyor.  For this to be the case, clear language to this effect would be required. Nothing in cl 15.1 is consistent with such a construction in my view. The learned Commissioner was correct to so conclude.

152   Even if, as the learned Commissioner postulated, the terms of the contract between the appellant and the respondent did so provide, then it would be necessary for the appellant to establish that this obligation, that is the obligation to train the appellant to the standard of a licensed surveyor, obliged the respondent to do so by March 2011, which was the month that the appellant resigned from his employment. As there was clearly no such term, and the appellant voluntarily resigned, the appellant was not able to establish a breach of contract to warrant establishing that he had been denied a contractual benefit.

153   For these reasons, I consider that the learned Commissioner was quite correct to reach the conclusions that he did. It is unnecessary for me to deal with other matters raised by the appellant on the appeal. The appeal must be dismissed.