UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00442

DELIVERED : FRIDAY, 9 July 2021

FILE NO. : U 117 OF 2020

Applicant

AND

WACHS - Fitzroy Crossing Health

Respondent

CatchWords : Industrial Law (WA) – Unfair dismissal application – Jurisdiction to hear and determine application – Whether the Commission has jurisdiction – Whether there was a dismissal – Fixed term contract – Effluxion of time – Application accepted out of time

Legislation  : Industrial Relations Act 1979 (WA)

WA Health System - United Voice WA - Hospital Support Workers Industrial Agreement 2017 

Result : Extension of time granted

Representation:

Applicant : Ms L Haimona, on her own behalf

Respondent : Mr P Budd

Case(s) referred to in reasons:

Brocklehurst v Director General, Ministry of Justice [1994] WAIRC 12024; (1994) 74 WAIG 2024

Fisher v Edith Cowan University (1996) 70 IR 206

Gallotti v Argyle Diamond Mines Pty Ltd [2003] WAIRC 07928; (2003) 83 WAIG 919;

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

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 519

Jacobs v Traffic Warden State Management Unit [2018] WAIRC 00375; (2018) 98 WAIG 458

Khayam v Navitas English Pty Ltd (2017) 273 IR 44; [2017] FWCFB 5162

Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683

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

Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200

Oliver v Malcolm Goff, Managing Director, Challenger TAFE [2006] WAIRC 05224; (2006) 86 WAIG 2667

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

Townes-Vigh v North Metropolitan Health Service [2020] WAIRC 00188; (2020) 100 WAIG 256

Reasons for Decision

Ex Tempore

1         Ms Lynette Haimona has commenced an unfair dismissal application in this Commission under s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (the Act). Her previous employer, WA Country Health Service (WACHS), has objected to the Commission dealing with the application on two jurisdictional grounds. The first ground is that there was no “dismissal” by it of the employment, such as would ground the Commission’s jurisdiction. The second objection is that the application was filed outside the 28‑day period for filing unfair dismissal claims.

2         The matter was listed for hearing and determination of both jurisdictional issues, the Commission being satisfied that it was appropriate to determine the jurisdictional questions before taking any further steps in the matter.

3         WACHS’s response to the application annexed copies of the contracts under which Ms Haimona was engaged and provided detailed submissions in support of its objections.

4         Ms Haimona attended the hearing by video and gave evidence on her own behalf.

Background

5         WACHS employed Ms Haimona as a Cook at Fitzroy Valley Health in the Kimberley Region. She was initially employed on a full-time basis under a fixed term contract from 25 November 2019 to 24 May 2020. A copy of that contract was tendered at the hearing as Exhibit R1.

6         At the expiry of the full-time contract, Ms Haimona was invited to apply for a casual pool position with the respondent in the Kimberly. She did so, and was offered a second contract for casual employment. Again the contract was for a fixed period of three months from 25 May 2020 to 25 August 2020. A copy of that contract was tendered at the hearing as Exhibit R2.

7         The parties agreed that Ms Haimona’s employment was covered by the WA Health System - United Voice WA - Hospital Support Workers Industrial Agreement 2017 (Industrial Agreement), and each successive contract referenced this industrial agreement.

8         Ms Haimona last worked a shift on 20 August 2020. From details contained in her application, it appears she received an email on or about 21 August 2020 confirming that her contract was at an end as of 25 August 2020 and that no further shifts would be provided to her.

Ms Haimona’s application

9         Ms Haimona’s application appears to indicate her acceptance that her engagement was pursuant to a three-month contract as she says “my 3-month contract ended on the 25th August 2020.” However, she also says she applied for an 18-month contract, that the casual position was advertised as an 18-month contract, and she seeks an explanation as to why only three months was ultimately offered. In her application, she alleges that the termination of her employment was unfair because:

(a) she received no support from management;

(b) there was differential treatment of different staff members;

(c) her rostered hours were reduced from 40 hours a week to 16 hours;

(d) personal training papers were given to other staff members to hand to her;

(e) residents were encouraged to baselessly put in complaints to Human Resources;

(f) issues regarding health and cleanliness with other staff members were not addressed;

(g) complaints against her were unanswered; and

(h) she was required to sign off temperature checks for other staff members.

10      It can be seen that her grounds for her application appear to comprise a general list of grievances against her previous employer in relation to matters arising in the course of the employment, rather than addressing whether there was a dismissal, and if so, the fairness of it.

11      In the course of the hearing, Ms Haimona gave brief evidence about the steps she took to challenge what she says was the dismissal of her employment. The respondent did not call any witnesses to give evidence, but relied upon the contracts, which were tendered as Exhibit R1 and Exhibit R2. Ultimately, the key factual matters - that is, the matters concerning the terms upon which Ms Haimona was engaged and how the employment ended - were never really in contention.

  The respondent’s position

12      The respondent’s position was that Ms Haimona was appointed under a fixed term contract for a specified period, which ended with the effluxion of time. It submits that the present circumstances are sufficiently similar to those in Oliver v Malcolm Goff, Managing Director, Challenger TAFE [2006] WAIRC 05224; (2006) 86 WAIG 2667, Townes-Vigh v North Metropolitan Health Service [2020] WAIRC 00188; (2020) 100 WAIG 256, Brocklehurst v Director General, Ministry of Justice [1994] WAIRC 12024; (1994) 74 WAIG 2024 where there was found to be no dismissal by virtue of fixed term contracts coming to an end by effluxion of time. The respondent contends that a finding that there was a dismissal is a threshold issue for there to be jurisdiction of the Commission under s 29(1)(b)(i) of the Act, relying upon Gallotti v Argyle Diamond Mines Pty Ltd [2003] WAIRC 07928; (2003) 83 WAIG 919; and Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166; (2003) 83 WAIG 3053.

The evidence

13      The Casual Contract for the position of Cook is Exhibit R2. It states:

This letter is to advise that you have been included in a pool of people to whom casual employment may be offered from time to time by the WA Country Health Service. This letter outlines the conditions that will apply to any offer of casual employment and seeks your acknowledgement of these conditions.

14      Under “Terms and Conditions of Employment” the Casual Contract states “Possible placements can commence on or after 25-May-2020 and expires on 25-Aug-2020”. It then says under “Signatures”:

By signing this form you acknowledge that you may be offered an opportunity to work on a casual basis from time to time only and that there is no obligation on either party to enter into any further employment arrangement.

15      The Casual Contract contains no other express terms concerning its termination.

16      Ms Haimona maintains she should have been given an 18-month contract and that the casual position she applied for was advertised as an 18‑month position.

17      The Industrial Agreement provides at cl 11 that an employer may engage employees in any of one of three “modes” of employment. Clause 11.1 provides:

CONTRACT OF SERVICE

11.1 Modes of Employment

(a) The Employer can employ on a:

(i) regular and continuing permanent full time or part time basis; or

(ii) fixed term full time or part time basis; or

(iii) casual basis.

18      Notably, the Industrial Agreement does not expressly provide for engagement on a fixed term casual basis.

19      In relation to termination of Fixed Term Employment, cl 11.4 provides:

The contract of employment of a fixed term contract employee will include the starting and finishing dates of employment, or in lieu of a finishing date, a prescribed event or condition which will cause the contract to end.

20      For casual employment, cl 11.5 relevantly provides:

…

(e) A casual contract of employment is terminable by the giving of 1 hours’ notice by either party to the other or by the payment or forfeiture as the case may be of   hour’s wage.

…

21      Clause 11A further limits the circumstances in which fixed term contracts may be entered into by the employer with an employee.

Consideration

22      It is well established in this jurisdiction in relation to unfair dismissal claims brought under s 29(1)(b)(i) of the Act, that the establishment in fact and law of a dismissal, is a jurisdictional prerequisite. It must be accepted that the Commission’s jurisdiction is dependent upon there having been a dismissal in the sense described in Swan Yacht Club (Inc) v Bramwell (1998) 78 WAIG 579; and Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 that the employee is removed from the employment relationship.

23      It can also be readily accepted, as stated by the Industrial Appeal Court in Gallotti, that where the cessation of the relationship of employer and employee is effected by the effluxion of an agreed term of employment, it is not a “dismissal”.

24      This does not avoid the need for an inquiry into whether there is an agreed term of employment. Perhaps the position is more accurately that where the terms of an employment contract for a specified time reflect a valid and genuine agreement that the employment relationship will not continue after a specified date and the employment relationship comes to an end on that date, the employment terminates by reason of the agreement and not at the initiative of employer. The employee will therefore not have been dismissed within the meaning of the Act.

25      When determining whether the parties have ostensibly agreed to terminate the employment relationship at a particular time, it may be necessary to go further than examining the terms of the contract between the parties. The express terms of the contract may be vitiated by misleading conduct, there may be a separate agreement or variation to the contract, or the time limit specified in the contract may be illegal, or the time-limited contract may be inconsistent with the terms of a binding industrial instrument: see Fisher v Edith Cowan University (1996) 70 IR 206 at [470] and Khayam v Navitas English Pty Ltd (2017) 273 IR 44; [2017] FWCFB 5162 at [75]-[78]; Jacobs v Traffic Warden State Management Unit [2018] WAIRC 00375; (2018) 98 WAIG 458 at [9].

26      This case raises the last possibility mentioned, that is, that the time-limit in the contract is effectively over-ridden by the terms of the Industrial Agreement, such that there is no valid contractual time limit to effectively determine the end of the employment relationship.

27      If the terms of the Industrial Agreement prevail, the casual engagement cannot be on a fixed term basis. The time‑limiting provisions of the contract are of no effect, and Ms Haimona’s employment should be treated as ongoing, casual employment.

28      When considering whether there has been a dismissal, it is the termination of the employment relationship rather than the contract of employment as such which is the focus of the enquiry: Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200. Further, the terms of the contract of employment are over-ridden by, and of no effect, to the extent that they are inconsistent with the industrial agreement: s 114 of the Act.

29      Under the Industrial Agreement, on a plain and ordinary reading of it, Ms Haimona’s employment must be categorised as either casual or fixed term, but it cannot be in both categories. As she was engaged and paid on a casual basis, her employment was casual, thus excluding the possibility that it was fixed term. That the categories or modes of employment are mutually exclusive is apparent from the context of cl 11.6.

30      The effect of s 114 of the Act is that the contractual fixing or limiting of the time for the end of the contract is of no effect, to the extent that it is inconsistent with the Industrial Agreement.

31      Accordingly, there can be no agreed term as contemplated in Gallotti.

32      There are several possibilities which follow from this conclusion. The first is that there has been no dismissal, and the casual employment relationship remains on foot. Neither party pressed this position.

33      Other possibilities are that by its (erroneous) treatment of the effluxion of time as bringing the employment to an end, and consequential notice to Ms Haimona that she would receive no further shifts, the respondent has either repudiated the contract or terminated a casual contract in accordance with the provisions for giving notice. In the first scenario, I would treat Ms Haimona’s unfair dismissal application to this Commission as an acceptance of the repudiation, bringing the employment relationship to an end, at the initiative of the respondent. In the second scenario, there is clearly a dismissal at the initiative of the respondent.

34      For these reasons, in my view the employment did not end by the effluxion of time, but at the respondent’s initiative. There is therefore a “dismissal” for the purposes of ss 23A and 29(1)(b)(i) and the Commission has jurisdiction.

Extension of time

35      It is therefore necessary to consider whether Ms Haimona should be permitted to bring her unfair dismissal application out of time. Section 29(2) of the Act requires that a referral by an employee of a claim that they have been harshly, oppressively or unfairly dismissed from employment must be made not later than 28 days after the day on which the employee’s employment is terminated.

36      The question of when Ms Haimona’s employment was terminated is not entirely straightforward in light of my finding that the employment did not end simply by the effluxion of an agreed fixed period in the contract. While both parties submit the employment ended on the end date of the contract, that is, 25 August 2020, the correct position may be that the contract ended either on 21 August 2020, when notice was given of no further shifts, or when the employer's repudiation of the contract was accepted by Ms Haimona. Even if the contract terminated at that time, it is the end of the employment relationship which is relevant for the purpose of calculating time: Mohazab v Dick Smith Electronics Pty Ltd (No 2). On that basis, I am content to accept the parties’ common position that the employment relationship ended on 25 August 2020, and that, accordingly, her application filed on 13 October 2020 was 21 days out of time.

37      The usual principles applying to consideration of an application to extend time to lodge an unfair dismissal application were summarised in the Industrial Appeal Court decision in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683. A copy of that decision was provided to the parties for the purposes of these proceedings. The relevant principles are:

(a) Special circumstances are not necessary, but the court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

(b) Action taken by the applicant to contest the termination other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(c) Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

(d) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

(e) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

38      Considerations of fairness should ultimately guide the Commission in the exercise of the discretion to grant an extension of time. At [73] of his judgement in Malik, EM Heenan J said as follows:

…Hence, unfairness must involve, as a minimum at least, the Commission being satisfied that some prospect of success would be denied to the applicant if he could not pursue his late claim. If there is some prospect of success to be lost by denying an extension of time, it would then become necessary to evaluate the position having regard to the length of the delay, its effects upon the respondent and the public interest in the due expedition and finalisation within an acceptable period of legal and industrial processes. Fairness, in this sphere, has a legislative starting point in the choice by Parliament that 28 days is a sufficient period in the public interest for the commencement of such a claim. The longer the delay the more difficult it will be to show unfairness, but even in instances of long delay there may be particular circumstances which reveal that it would be unfair not to accept a late referral…

The merits of the application

39      In the assessment of whether to extend time, it is necessary to consider the merits of the claim and the likelihood that it might succeed, if time was extended. If the claim has no merit, that is, no prospects of success, an extension of time should not be granted, and the other factors need no consideration.

40      Assessment of the merits at this preliminary stage need only be a “rough and ready” one: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 519 at [9] (Brennan CJ & McHugh J).

41      Ms Haimona is self-represented in these proceedings. The grounds for her unfair dismissal application are brief, and, as identified above, appear to concern general grievances she had regarding the workplace rather than matters which would establish that the termination of her employment was harsh, oppressive or unfair. The matters she raises do not indicate that her claim has prospects of success in any direct way.

42      However, in the course of the hearing of this application, the issue of whether the employment can properly be regarded as fixed term employment emerged. As my conclusion in relation to that issue is that it was not fixed term employment and therefore the employment did not terminate by the effluxion of time, the inescapable conclusion is that the respondent has dismissed Ms Haimona in circumstances or for reasons which were misconceived or erroneous. Sofar as the merits are concerned, it seems to me that the door is ajar. It would take little to blow it open.

43      I am also mindful though, that regardless of whether or not the contact of employment validly limited the employment to a fixed term, Ms Haimona nevertheless understood and expected that her employment would be for a fixed term. Her employment was casual, and therefore, if not terminated by the expiry of the contract, was terminable on one hour’s notice. These matters will present obstacles in her claim, not least in relation to what remedy may be appropriate.

44      Nevertheless, it cannot be said that the claim is without merit. This weighs, in the circumstances, and perhaps featherlike, in favour of the grant of an extension of time to lodge the appeal.

Reason for the delay

45      In her evidence to the Commission, Ms Haimona said that after 25 August 2020 she contacted her union to challenge the termination. Ultimately, on or about 21 September 2020, that being the last day for filing an unfair dismissal claim, the union declined to act for Ms Haimona, as she could not pay her union dues. The union sent her the forms and information for her to complete an application on her own. She was told by the union that the forms had to be submitted within the 28‑day time limit. Ms Haimona could not recall precisely what happened in the three weeks between being informed of that information by the union and the submission of her unfair dismissal application on 13 October 2020.

46      In her application filed on 13 October 2020, Ms Haimona says

I did send my first Form 2 in, within the 28 days as advised by my Union contact. Unfortunately, I left out some information so I sent in again.

This is my 3rd application.

47      It is clear Ms Haimona was aware that there was a 28-day time limit for making an application. However, she did not give any evidence about the first and second applications nor why, given her knowledge of the time limit, it took her until 13 October 2020 to file a completed, correct application. Nor does she explain what information was omitted previously that required the application to be resubmitted, or why that information could not be provided within the 28‑day time period.

48      In the circumstances, limited reasons justifying the delay of three weeks are given. I cannot say that there is a satisfactory explanation provided for the delay of three weeks, or the full delay in lodgment, although there is some explanation as to why the application was not filed within 28 days. The absence of an acceptable reason for the delay weighs against the grant of an extension of time.

Action taken to contest the termination

49      While Ms Haimona indicated that she had attempted to make earlier unfair dismissal applications, there is no evidence that she attempted to alert the respondent to the fact she was contesting the termination.

Length of delay

50      Ms Haimona’s application was lodged 21 days outside the statutory timeframe for commencing an unfair dismissal claim. In the scheme of things, 21 days is a reasonably long delay relative to the 28‑day time limit within which a claim can be made. It cannot be described as an insignificant delay.

Prejudice to the respondent

51      The respondent does not submit that it has suffered prejudice because of the delay.

Conclusion

52      After considering all the circumstances, and on very fine balance, I consider it is in the interests of justice to extend the time for Ms Haimona to bring her unfair dismissal application. Accordingly, I dismiss the respondent’s objections and will grant the applicant leave to make her unfair dismissal application out of time.