Brendon Jeffs v Urapuntja Aboriginal Corporation

[2020] FWC 6722

[2020] FWC 6722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 365 - Application to deal with contraventions involving dismissal

Brendon Jeffs
v
Urapuntja Aboriginal Corporation
(C2020/7696)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 16 DECEMBER 2020

Application to deal with contraventions involving dismissal - jurisdictional issue – whether dismissed – probationary period – termination at end of specified period – no dismissal – application dismissed

[1] On 14 October 2020 Brendon Jeffs made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.

[2] The Urapuntja Aboriginal Corporation (the Respondent, the Employer or the Corporation) opposes the application. It filed a response on 16 October 2020 raising a jurisdictional issue.

[3] The jurisdictional issue is that Mr Jeffs was not dismissed from his employment.

[4] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford 1 requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the FW Act before the Commission can exercise powers conferred by section 368. It is thus necessary to determine the jurisdictional issue for Mr Jeffs’s application to proceed further.

[5] I issued directions on 16 November 2020.

[6] I heard the jurisdictional matter by telephone on 10 December 2020.

[7] Both parties were self-represented.

Facts

[8] I heard evidence from Mr Jeffs and from the Corporation’s CEO Mr Michael Gravener.

[9] Both Mr Jeffs and the Corporation brought into evidence the same two documents – Mr Jeff’s contract of employment dated 24 December 2019, and a letter from the Corporation to Mr Jeffs dated 25 September 2020.

[10] Neither party took issue with the accuracy of this documentary evidence.

[11] However, there were differences between the evidence of Mr Jeffs and Mr Gravener as to certain matters. In particular, Mr Jeffs says that the first he was told that his employment would cease was when on 25 September 2020 that day Mr Gravener gave him the letter of that date. In contrast, Mr Gravener’s evidence was that a meeting between he and Mr Jeffs was held a day or two earlier in which he (Mr Gravener) told Mr Jeffs that his employment would not be continuing beyond his probationary period, and the reasons why. Mr Gravener’s evidence was that a second meeting on 25 September 2020 was held to formally communicate those details and hand over the letter.

[12] To the extent relevant, I prefer the evidence of Mr Gravener for three reasons:

•  his recall that there were two meetings was clearer and more plausible than that of Mr Jeffs;

•  the letter of 25 September 2020 commences with the words “This is to officially advise...”. Whilst not conclusive, the use of the word “officially” is consistent with the oral evidence that an earlier discussion had been held. The letter goes on to claim that the terms of leaving had been “agreed”. This also supports the oral evidence that an earlier discussion had been held; and

•  Mr Jeffs stated in his application that he was told by Mr Gravener that there were eighteen reasons given, four of which were discussed. The letter does not list reasons. A discussion of reasons is more consistent with a discussion having occurred prior to official notification (as claimed by Mr Gravener) than a discussion at the time of official notification.

[13] I now set out further findings of fact.

[14] The Urapuntja Aboriginal Corporation provides services to indigenous people from the Alyawarra and Anmatjirra land in the Northern Territory (north-east of Alice Springs) and is the peak body representing the interests of people living in the Utopia area on the Angarapa Aboriginal Land Trust.

[15] In December 2019 the Employer agreed to employ Mr Jeffs as a building supervisor, with a probationary period.

[16] Mr Jeffs commenced on or about 20 December 2019.

[17] A formal contract giving effect to the agreement was signed by the Corporation and Mr Jeffs on 24 December 2019 (the Employment Contract).

[18] The Employment Contract relevantly provides as follows:

“Position Type: Permanent – Ongoing from 20/12/2019

Probation: 6 months

…

We are pleased to offer you employment with the Urapuntja Aboriginal Corporation, (UAC) (the Board). The details of this offer are described below.

….

5. Probation

A probation period of 6 months applies. The purpose of the probationary period is to allow the Board and yourself to assess your suitability for the position. While on probation your employment is temporary and may be terminated without compensation at any time during, or at the end, of your probationary period either by you or the Board giving one week’s notice or payment in lieu of notice, or termination without notice, or payment in lieu of notice for misconduct.

…

8. Probation

Your employment will be on a probationary basis for 3 months following your commencement. The purpose of the probationary period is to allow the Board and yourself to assess your suitability for the position. During this time your performance will be assessed on at least 2 occasions. Prior to the end of your probationary period your performance will be assessed again to determine if your probation will be extended; or if your employment will be continued according to this contract; or terminated. On a decision being reached on each occasion by the Board you will be advised in writing what the decision is.

While on probation your employment is temporary and may be terminated without compensation at any time during, or at the end, of your probationary period wither (sic) by you or the Board giving one week’s notice or payment in lieu of notice, or termination without notice, or payment in lieu of notice for misconduct.

…

13. Termination

Your contract of employment may be terminated before its expiry date as follows:

…

(g) Probation

The CEO or you may terminate this contract during or at the end of the probationary period described in Clause 5 of this contract by giving one week’s notice.”

[19] After a period of six month’s employment, the Employer assessed Mr Jeffs’s employment and extended the probationary period by a further three months.

[20] On or around 23 or 24 September 2020 Mr Gravener met with Mr Jeffs. He told Mr Jeffs that his suitability had been further assessed and was not considered suitable to continue beyond the extended probationary period. He told Mr Jeffs some of the reasons why the Employer had formed this view. He told Mr Jeffs that his employment would cease on 25 September 2020 but that Mr Jeffs could continue to reside in an Employer provided residence for a short time (a further two weeks). Nothing was exchanged in writing that day.

[21] On 25 September 2020 Mr Gravener again met Mr Jeffs and provided Mr Jeffs a letter as follows:

“25th September 2020

Dear Brendon

This is to officially advise you that on behalf of the Board I have decided that after extending you probation for a further 3 months from your initial probation period that you are unsuitable for the position as Supervisor.

Your performance was assessed on 2 occasions and I determined that your employment would be terminated. I agreed with you that you would continue your official employment until the 25th of September 2020. We also agreed that you could reside in the Employer’s housing for a further two weeks while you got your affairs in order to leave. You will be required to vacate the property on the 9th October no later than 12 PM.

I will be inspecting the property prior to your leaving and will determine any costs incurred as a result of deliberate damage caused. You will be made responsible for those costs and any repairs that may have to be done to the property.

Thank you very much for all the work and effort you have given us during the past nine months. We wish you well in the future.

Kind Regards

Michael Gravener
Chief Executive Officer”

[22] Mr Jeffs remained until 9 October 2020 and was paid casually in this notice period.

[23] Mr Jeffs filed his general protections application on 14 October 2020 claiming adverse action in the form of dismissal in connection with a workplace right.

Submissions

[24] The Corporation says there was no dismissal; that Mr Jeff’s employment ceased at the conclusion of a probationary period, which had been once extended by three months from its original term of 6 months.

[25] Mr Jeffs says that he believed that his immediate manager was satisfied with his work and that he was dismissed when the Corporation’s Chief Executive Officer (CEO) terminated his employment.

Consideration

[26] Section 365 of the FW Act provides:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[27] Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[28] However, section 386(2) provides circumstances in which a person is said not to have been dismissed. Section 386(2)(a) is relevant for current purposes. It provides:

“(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; …”

[29] For the following reasons, I conclude that Mr Jeffs was employed for a specified period of time and that his employment was terminated at the end of that period.

[30] Firstly, whilst the Employment Contract provided for “permanent” employment, this was subject to a probationary period. By including two probationary clauses in the contract in different terms (one three months and one six months) the Employer created grounds for contractual confusion. Nonetheless, the contract is sufficiently clear. Twice (on the first page and again in clause 5) the probationary period is expressed as 6 months. A proper construction of the contract is that Mr Jeffs was employed on an initial period of six months’ probation.

[31] Secondly, the manner in which the Employment Contract was given effect to is consistent with an initial term of six months’ probation. It was at the end of the first six months’ that the Employer told Mr Jeffs that his probation was being extended by a further three months in order to allow further assessment of his suitability. The extension of the probationary period was consistent with the terms of the Employment Contract, and in particular clause 8.

[32] Thirdly, the Employer informed Mr Jeffs both orally on 23 or 24 September 2020 and then in writing on 25 September 2020 at the end of the (once extended) probationary period (that is, nine months after commencing) that his employment beyond the (extended) probationary period would not be continuing, save a period to organise his affairs and leave the residence. The letter of 25 September 2020 makes this abundantly clear.

[33] The specified period for which Mr Jeffs was employed was terminated by the Corporation at the end of that period and after a period of notice was worked out, his employment ceased.

[34] It matters not that Mr Jeffs believed that his immediate manager may or may not have considered him to be a suitable employee. I heard no evidence on the merit of that claim. What the evidence clearly establishes is that it was the CEO Mr Gravener who made the decision and communicated the decision to Mr Jeffs. Both under the terms of the Employment Contract, and generally at law, the CEO (who signed the Employment Contract on behalf of the Corporation) had the lawful authority to terminate the contract at the end of the probationary period (clause 13(g)).

[35] In these circumstances I conclude that Mr Jeffs was not “dismissed” within the meaning of the FW Act.

[36] For the sake of completeness I add that section 386(3) does not apply in this matter. I am satisfied that the probationary period which formed a term of Mr Jeffs’s employment was for the purpose stated (to allow the Employer and Mr Jeffs to assess suitability for the position) and not for any purpose by which the Employer could avoid its obligations under the FW Act.

Conclusion

[37] As Mr Jeffs had not been “dismissed” a jurisdictional pre-requisite required for a general protections application under section 365 of the FW Act does not exist. The Commission is thus unable to further proceed with the application or exercise any powers conferred by section 368.

[38] That being so, the application is dismissed. An order 2 giving effect to this decision is issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

B. Jeffs, on his own behalf
M. Gravener, for Urapuntja Aboriginal Corporation

Hearing details:

2020.
Adelaide; by telephone.
10 December.

Printed by authority of the Commonwealth Government Printer

<PR725403>

 1 [2020] FCAFC 152

 2   PR725404