Brittany Hawkins v Aldi Foods Pty Ltd as a General Partner of Aldi Stores (A Limited Partnership)

[2016] FWC 7025

[2016] FWC 7025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Brittany Hawkins
v
ALDI Foods Pty Ltd as a General Partner of ALDI Stores (A Limited Partnership)
(U2016/9501)

COMMISSIONER HAMPTON ADELAIDE, 14 OCTOBER 2016

Application for relief from unfair dismissal – whether applicant protected from unfair dismissal – minimum employment period – commencement date specified in written contract – subsequent supply of log-on details and indication that “on-boarding” activities were to be completed prior to commencement – whether employment commenced – whether contract was varied – nature of activities considered – distinction drawn between on-boarding activities and trial work or training obligations with consequences - intention was for employment to commence on date specified – contract not varied by conduct – no new contract made – continuous service discussed – applicant’s service not sufficient to meet the minimum employment period – application dismissed.

1. What this decision is about

[1] Ms Brittany Hawkins has made an application under s.384 of the Fair Work Act 2009 (the FW Act) seeking a remedy in relation to an alleged unfair dismissal. Her former employer, ALDI Foods Pty Ltd (ALDI), contends that Ms Hawkins is not protected from unfair dismissal by virtue of the requirements under s.382(a) and s.384 of the FW Act that she must have completed the relevant minimum employment period.

[2] Section 382 of the FW Act provides as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[3] Section 383 of the FW Act specifies that the minimum employment period in the case of ALDI 1 is 6 months ending at the earlier of the time when Ms Hawkins was given notice, or immediately before the dismissal. In this case, these times are represented by the same event.

[4] Section 384 of the FW Act defines the period of employment in the following terms:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[5] It is common ground that unless Ms Hawkins’ period of employment commenced earlier than the commencement date set out in the contract of employment, the period will not be sufficient to meet the requirements of s.382(a) of the FW Act. What is in dispute is whether the carrying out of some online “on-boarding” activities by Ms Hawkins prior to that specified commencement date means that the employment period actually commenced earlier than that date. I have used the term “on-boarding” to describe the relevant activities because this is the term used in some of the documents utilised by the parties. It is also helpful to distinguish between these activities and the other training modules that were ultimately required by ALDI following Ms Hawkins’ attendance at the workplace for her first day of work as contemplated in the written contract of employment. The extent and implications of any such distinction are in dispute.

[6] Mr Sage, of the Shop, Distributive and Allied Employees Association who appeared for Ms Hawkins, primarily contends that the applicant was employed from the date that the employment contract was signed. Alternatively, the date that Ms Hawkins was directed to undertake the on-boarding activities represented the commencement of her employment, or the period following when those activities commenced should be included as service for present purposes. This, and some additional propositions, are advanced on a number of alternative bases, which I will outline shortly.

[7] ALDI, which was represented with permission by Ms McNaughton, contends that the employment commenced on the date stated in the contract of employment, there was no alteration to the contract, and the on-boarding activities did not represent work, service or employment for present purposes.

2. The facts of the matter

[8] The parties constructively agreed the following facts: 2

1. Ms Brittany Hawkins was offered employment with ALDI as a Warehouse Operator at ALDI’s Regency Park Distribution Centre.

2. The letter of offer was dated 9 December 2015 and stated her commencement date would be 4 January 2016.

3. By email, Ms Hawkins was invited to attend the Regency Park Distribution Centre on 14 December 2015 at 8:30am to sign the letter of offer (contract of employment).

4. Ms Hawkins signed the letter of offer on 14 December 2015 at the Regency Park Distribution Centre.

5. In a group discussion with Ms Hawkins and a number of other candidates on 14 December 2015 at the Regency Park Distribution Centre, ALDI management confirmed that new employees would receive an email from the ALDI Academy about completing online training before attending their first shift on 4 January 2016.

6. Ms Hawkins was sent an email advising her of log-on details to the pathway for her role on the ALDI Academy website. The email stated that:

“the pathway has been designed to give you some information about the company and what to expect on your first day. It's important you complete all activities between now and your first shift.”

7. Ms Hawkins completed the on-boarding activities on the ALDI website between 30 December 2015 and 2 January 2016. She completed 2 activities on 30 December 2015 and the remaining 6 activities on 2 January 2016.

8. The on-boarding activities on the website which were completed by Ms Hawkins were:

Activity	Type of Activity	Content	Time to complete (mm:ss)
The ALDI Full Story	Video	Intro to the history and culture of ALDI	06:51
ALDI Vision and Values	Video	Introduction to ALDI’s Vision and Values	05:42
CR - Better for Everyone	Video	Introduction to ALDI’s Corporate Responsibility Principles	03:58
ALDI Website	Click on the ALDI website	Chance to visit the ALDI website if not ever viewed	Less than 1 minute
ALDI Warehouse Tour	Video	Video walkthrough of the Warehouse	05: 29
I Like ALDI because	Video	Short video of interviews with ALDI Staff about why they like working at ALDI	01:56
Preparing you for your first day	Online learning piece	Information on what to wear on your first day, what to expect on the first day, an overview of policies and procedures, where to park.	05:38
First day advice	Video	Short video of interviews with ALDI staff about things they wish they had known on their first day	01:54
Total time spent	31:27

9. The records from the ALDI Academy indicate that Ms Hawkins spent a total of 31 minutes and 27 seconds watching the videos and completing the on-line learning piece on Preparing You for Your First Day. A copy of the task activity log and confirmation of completion of on-boarding activities by Ms Hawkins was attached.

10. The ALDI Academy covered topics including general induction, ‘about the company’ and occupational health and safety.

11. The activities in Preparing You for Your First Day include a review of what to wear, what to expect, policies and procedures such as CCTV, personal belongings, smoking, mobile phones, alcohol and other drugs, bullying, harassment, and who to contact on the first day, how to get to work and a checklist for the first day.

12. Ms Hawkins was required to complete the ALDI Academy on-boarding activities before commencing her first shift at the Regency Park Distribution Centre.

13. Ms Hawkins commenced her first shift with ALDI on 4 January 2016.

14. Ms Hawkins’ employment was terminated on 30 June 2016.

[9] The contract of employment relevantly provided as follows:

“Dear Brittany
OFFER OF EMPLOYMENT – WAREHOUSE OPERATOR
I am pleased to advise that ALDI Stores Australia wishes to offer you employment as a Warehouse Operator, initially located at our Regency Park.
Your commencement date will be 4 January 2016.
This offer is subject to a satisfactory police reference check being received by ALDI.
The terms and conditions of your employment are contained in the Enterprise Agreement ALDI Regency Park 2015 which applies to all employees employed in ALDI’s Warehouse, Stores and in Transport in this Region. An extract of this agreement, including the Schedule which applied to your employment, is attached for your information, and I encourage you to read this carefully.
If you (or your parent/guardian if candidate is under 18) have any questions about this Agreement, or would like to discuss the terms and conditions contained in it, please contact me.
As a Warehouse Operator, you will be reporting to the Section Leader at the Distribution Centre. A Job Description setting out the responsibilities and duties of your role is attached.

PROBATION
Your employment is initially for a probationary period of 90 days. ALDI will provide advice and guidance throughout this time and will review your performance before the end of the probationary period. During your probationary period either you or ALDI may terminate your employment by giving one week’s notice, or ALDO may make payment in lieu thereof.

TRAINING
We will provide a detailed outline of the training program you will undertake on commencement of employment.

HOURS OF WORK
As a Warehouse Operator, you will be required to work any 5 out of 7 days in a week, Monday to Sunday as rostered. You will be rostered to work an average of 40 hours per fortnight Contract Hours per fortnight. Penalty and overtime payments will apply in accordance with the attached Agreement.
These Contract Hours of work cannot be varied except by agreement between ALDO and you.
You will also be entitled to use the Bankable Hours arrangement as detailed in the enclosed Agreement.

REMUNERATION
Your ordinary hourly rate of pay will be in accordance with the attached Agreement.
These rates have been set taking into account the requirement to work flexibly. You will be entitled to payment of overtime in accordance with the enclosed Agreement, and to additional payments for work in the evenings and on weekends and public holidays.

SUPERANNUATION
As outlined in the Workplace Agreement, ALDI Stores will make contributions on your behalf to a superannuation fund in accordance with Superannuation Guarantee Legislation. Enclosed is a Superannuation Choice of Fund form for your to complete, nominating the superannuation fund into which your Superannuation Guarantee payments are to be made. If you do not return this form within 28 days of commencing your employment, contributions will be made on your behalf to the MLC Limited ALDI Stores Staff Superannuation Plan. Changes to your nominated superannuation fund may be made on an annual basis by completing a Superannuation Choice of Fund form available from the Pay Office.

PAYROLL DETAILS
Please complete the attached Personal Details, Tax Declaration and Superannuation Choice forms and return prior to your commencement date

LEAVE ENTITLEMENTS
Your entitlement to annual, personal/carer’s, bereavement, parental and long service leave is detailed in the attached Agreement. A payment will also be made in December in lieu of annual leave loading.

…

POLICIES AND PRACTICES
ALDI’s Employment Policies and Practice Guidelines (“ALDI Handbook”) cover matters including human resources, occupational health and safety, ethical conduct, compliance with legal requirements, travel, anti-discrimination and sexual harassment.
You are expected to ensure compliance with the provisions of the ALDI Handbook. This will be made available to you during your training. It is important that you read and comply with the provisions contained in this document.
As you will appreciate, since ALDI is growing its operations in Australia, these policies, practices and procedures will need to be varied from time to time. You will be advised when any changes occur.
Brittany, we are delighted that you will be joining the ALDI Stores team and are confident that you will make a positive contribution to the success of ALDI Stores in Australia. If you have any questions regarding the commencement of your employment or training program, please do not hesitate to contact me on [phone number].
If you wish to accept this offer of employment, please:
1. Signthe duplicate copy of this letter where indicated and initial the base of each page;
2. Return the signed and duplicate letter to me.
Welcome to ALDI Stores in Australia! 3

[10] Ms Hawkins was also provided with the following documents along with the employment contract:

• Job Description;



• Workplace Agreement Extract and Schedule 7;



• Personal Details Form;



• Employment Declaration Form;



• Superannuation Choice Form; and



• Fair Work Statement. 4

[11] Ms Hawkins provided a sworn witness statement 5 to the Commission, which was not contested. In addition to the agreed facts, Ms Hawkins confirmed her understanding as follows:

“3. On 14 December 2015, I attended the Respondent’s worksite and signed my contract of employment along with a number of other new employees. During that meeting, we were advised by a Representative of the Respondent that we were to complete some online training before commencing out first shift on 4 January 2016 (the pre-first shift training).

4. I completed the pre-first shift training before the first shift as outlined at [7] of the Agreed Statement of Facts.

5. After hearing from management on 14 December 2015, I believed I could jeopardise my employment if I did not complete the pre-first shift training as directed before attending work for my first work shift on 4 January 2016.

6. On 4 January 2016, I attended my first work shift at the Respondent’s worksite, along with a number of other new employees. Some of those employees had not completed the pre-first shift training. Those employees were required to complete the pre-first shift training before moving on to further tasks or training at the worksite.

7. I completed a number of further online training tasks beyond the pre-first shift training during the course of my employment with the Respondent. Those tasks were accessed through the same online portal as the pre-first shift training and built on the knowledge gained through the pre-first shift training.” 6

[12] Mr Neil Harnett, ALDI’s Logistics Manager, also provided a sworn witness statement to the Commission, which was uncontested, and confirmed the following:

“5. As the Applicant’s Personnel Leader, upon commencement of the Applicant’s employment on 4 January 2016, I provided her with detailed information about the training program specific to her role, and the process for accessing it via the online training system in the ALDI Academy. This program was far more extensive than the brief online on-boarding activities that the Applicant completed prior to commencement.

6. Attached and marked Annexure “A” is the training task completion record for the Applicant. The document records 35 separate training courses that made up the Applicant’s training program. She completed 32 of these between 4 January 2015 (sic) and 7 May 2016. This document also records the Applicant’s completion of the on-boarding online activities as one line item.

7. Approximately 20 employees commenced employment on 4 January 2016 as Warehouse Operators like the Applicant. 5 of these employees had not completed the online on-boarding activities prior to 4 January 2016. They were able to watch the videos and complete the online activities during their first week of employment. There were no consequences for these employees’ employment in failing to complete the online on-boarding activities prior to 4 January 2016 and no disciplinary action was taken.” 7

[13] To the extent that there is some tension between the evidence of Ms Hawkins and Mr Harnett about the requirement to undertake the on-boarding activities, the parties agreed, in effect, that the sworn statements represented their subjective views of the matter and that each statement was accurate and to be read in the context of the agreed facts. 8

3. Why Ms Hawkins contends that the period of employment commenced earlier than the specified commencement date and is sufficient

[14] Ms Hawkins contends that the employment relationship was on foot from one of the following points:

● 14 December 2016, when she signed the letter of offer (contract of employment) and provided it to ALDI; and ALDI’s managers advised Ms Hawkins and her fellow workers of the need to complete the online “training” prior to their first shift;
● Between 14 and 30 December 2016, on receipt by Ms Hawkins of ALDI’s email stating that “It’s important for you to complete all [on-boarding] activities between now and your first shift.”; or
● 30 December 2016, when Ms Hawkins started completing the first two online training modules.

[15] Ms Hawkins submits that the intention to create the legal relationship of employer and employee existed from 14 December 2016, being the date that the contract of employment was signed by her. She further submits that because the obligation to complete the on-boarding activities arose after she signed the contract of employment, these activities cannot be said to be either a condition precedentto the commencement of the employment relationship nor, in the alternative, a voluntary activity unrelated to her employment.

[16] Ms Hawkins further contends that if the Respondent had intended for the on-boarding activities to be a condition precedent to the creation of an employment relationship, such a term could have been shown by the express terms of the contract of employment, which was not the case. Ms Hawkins contrasts this with the requirement to obtain a police clearance as evidence of such a condition precedent set out in the contract.

[17] Ms Hawkins also submits that as the instruction to complete the on-boarding activities was received after the contract of employment was signed by her, that a reasonable person would understand this to be a direction from an employer to an employee. In that regard, Ms Hawkins submits that she also reasonably understood that should she have failed to complete the on-boarding activities prior to her first shift, it is likely that she would have been subject to disciplinary action.

[18] Ms Hawkins contends that the conduct of ALDI from 14 December 2015 was such that the reference to ‘commencement date’ in the contract was in reality a reference to the ‘date of the first shift’ and should be understood as such rather than the date on which the employment relationship commenced. In that regard, Ms Hawkins contends that the contract of employment expressly provided for ALDI to provide her with “a detailed outline of the training program you will undertake on commencement of employment”. Ms Hawkins submits that this, together with the email providing a link to the ALDI Academy and the on-boarding activities, demonstrates an intention, on behalf of ALDI, for the on-boarding activities to be completed and to form part of the employment relationship.

[19] In the alternative, Ms Hawkins contends that the contract of employment was varied by mutual agreement or conduct such that the commencement date should be understood to be either 30 December 2015, being the date on which Ms Hawkins began the on-boarding activities, or from an earlier date when she was directed to complete these activities.

[20] In terms of the alternative proposition that the contract was varied, Ms Hawkins contends that although the terms of the contract would under this scenario be different from the written contract, those terms could be reasonably implied from the conduct and would be drawn from the relevant industrial instrument applying to the parties. In relation to the fact that remuneration was not paid or sought for the “work” prior to the specified commencement date, Ms Hawkins contends that as a new employee with little bargaining power, nothing should be implied from that fact.

[21] Finally, Ms Hawkins contends that the on-boarding activities should be treated as continuous service for present purposes as none of the exclusions contemplated by the FW Act 9 applied. To the extent that the concept of casual employment was contemplated for the on-boarding “work” (which was not her primary contention), the service was regular and systematic.

4. Why ALDI contends that the period of employment commenced on the specified commencement date and is not sufficient

[22] ALDI contends the signed contract of employment is clear evidence of the intention of the parties to create legal relations, being that the employment relationship would commence on 4 January 2016. ALDI submits that the fact that Ms Hawkins signed the contract of employment on 14 December 2016 does not alter the parties’ intentions, but instead supports its contention that the employment relationship was to commence on the specified date (4 January 2016).

[23] ALDI contends that the on-boarding activities Ms Hawkins was required to complete cannot be appropriately characterised, as the Applicant submits, as “online training” but rather should be viewed as an “interactive way for the Respondent to effectively provide information that would be routinely provided to any new starter in any new role with any employer.” 10 It further submits that there were no consequences for not completing these activities prior to the first shift and a failure to complete the on-boarding activities would not have altered the employment relationship. ALDI contends that the email to Ms Hawkins advising her of the on-boarding activities should not be characterised as a direction from an employer to an employee but rather a notification of material designed to assist a prospective employee with their first day of employment.

[24] ALDI also contends that Ms Hawkins’ completion of the on-boarding activities should not be characterised as “work” such that the commencement date could be said to have been earlier than 4 January 2016. This is because the applicant was not paid for the time she took to complete the on-boarding activities nor did she request payment, which would otherwise have been an indication of the intention of both parties that these activities would fall within the employment relationship. Further, ADLI submits that the act of completing “pre-work” in advance of a commencement date does not automatically bring forward the commencement date.

[25] ALDI rejects the notion that the on-boarding activities could mean that the employment contract was varied. It contends that its terms, including the commencement date for any such variation, was so uncertain that no legally binding intention could be discerned.

[26] Further, ALDI submits that the reference in the contract of employment to a “detailed outline of the training program” being provided is not a reference to the on-boarding activities, but rather, a reference to the training Ms Hawkins undertook after she commenced on 4 January 2016.

[27] In the alternative, if the Commission accepts that Ms Hawkins’ employment commenced on an earlier date, ALDI contends the applicant would have, in any event, still not completed the minimum employment period. That is, the periods of time between Ms Hawkins completing the on-boarding activities and attending her first shift cannot count towards her continuous service. Further, although those periods might not break the continuous period of service, ALDI contends that they would amount to periods of unpaid leave or an unauthorised absence and would not count toward the period of service under s.22 of the FW Act.

[28] ALDI contends therefore that however the on-boarding activities are treated, Ms Hawkins would not have completed the required minimum period of service.

5. Was Ms Hawkin’s period of employment sufficient to meet the requirements of s.382(a) of the FW Act?

[29] The central answer to this question lies in the proper application of the relevant terms of the FW Act. Ms Hawkins must have completed a period of employment with ALDI of at least the minimum period of six months. 11 That period is the period of continuous service that had been completed at the time of the dismissal.12 The concept of continuous service is defined in s.22 of the FW Act.

[30] Given the date of dismissal (30 June 2016), Ms Hawkins’ employment period must have commenced on or before 31 December 2015. 13

[31] The resolution of this matter ultimately requires the Commission to consider and determine when the period of employment commenced, and if the employment commenced earlier than the specified commencement date set out in the written contract of employment, whether that period involved continuous service. This, in turn requires the Commission to consider the terms of the employment contract, the nature of the on-boarding activities, and their impact upon the contract of employment.

[32] The contract of employment is the appropriate starting point as in this case it represented the terms of the employment relationship expressly agreed between the parties. The contract nominated a commencement date and I find that this represented the clear legal intention of the parties. 14

[33] The reference in the contract of employment to Ms Hawkins being provided with a detailed outline of the training program that the applicant would undertake upon commencement does not in my view mean that the provision of information relating to, or the performance of the on-boarding activities, lead to an earlier commencement of employment. It is consistent with the general context and the agreed facts that this contract provision should be taken to be a reference to the substantive training program that would commence on or after 4 January 2016. In any event, only a link to the ALDI Academy, the general idea of the training and the details of the on-boarding activities were provided. As a result, the information provided and the activities undertaken would not reasonably be understood to be the training program to be undertaken upon commencement as contemplated by the written contract of employment. In that regard, I consider that although the on-boarding activities are referenced in the training records of Ms Hawkins, it is clear from the nature of those activities that they are designed as preparation for an employee’s first day of work and a brief introduction to the training that will be conducted on and from that day. 15

[34] The contract of employment contemplates an average of 40 hours rostered work per fortnight to be performed at the Distribution Centre which was to be remunerated according to the relevant Enterprise Agreement and be subject to paid leave and other benefits and obligations.

[35] There is no mention of the on-boarding activities in the contract of employment and I accept that the undertaking of these activities was not a condition-precedent to the contract as was the need for a police clearance.

[36] The on-boarding activities involved Ms Hawkins logging onto the ALDI system and running through some “videos” and following on-line check-lists and the like. This is more akin to reading through a guidebook for new employees than a formal training activity. Indeed, much of the material could have been contained in a booklet accompanying the contract of employment and a requirement that such be read prior to commencing work would not be unreasonable or inconsistent with normal pre-employment arrangements. The references to policies in the on-boarding activities were very much an overview and not the sort of induction training that is contemplated in the training program proper.

[37] In terms of the contention that the on-boarding activities were required by ALDI, it is part of the agreed facts that Ms Hawkins was informed that it was “important you complete all activities between now and your first shift”. I accept that Ms Hawkins would reasonably have understood that she should undertake these activities prior to her first shift based upon this email and the earlier indication given by ALDI on 14 December 2015, when the contract was signed, that the on-boarding activities were to be undertaken prior to the first day of work. I would not however consider that either of these communications should be treated as a direction to an employee with legal consequences. Rather, they would be reasonably understood to establish an expectation that a person, who is about to become an employee, will familiarise themselves in preparation for their first day of work. In my view, the undertaking of the pre-boarding activities did not represent an extension to the period of employment of Ms Hawkins beyond the specified commencement date.

[38] Further, whilst I would accept that an employment contract of the kind evident here could be varied by conduct, or a new contract formed, in this case I am not satisfied that either has occurred. That is, these communications from ALDI about the on-boarding activities and the activities themselves were not such, in the context that they occurred, as to provide the foundation for a change to the contract or the formation of a new contract.

[39] The elements required in the formation of a contract were set out by a Full Bench of the Australian Industrial Relations Commission (AIRC) in Fox v Kangan Batman TAFE: 16

“The elements of a contract are stated in Macken, McCarry and Sappideen's "The Law Of Employment" (4th edition, 1997 by the Hon James Macken, Paul O'Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen), a text to which reference was made both before Simmonds C and us, as follows:

"The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:

1. There must be an `intention' between the parties to create a legal relationship, the terms of which are enforceable.

2. There must be an offer by one party and its acceptance by the other.

3. The contract must be supported by valuable consideration.

4. The parties must be legally capable of making a contract.

5. The parties must genuinely consent to the terms of the contract.

6. The contract must be entered into for any purpose which is illegal."

In relation to the first of these elements, the learned authors say:

"The first element essential to the existence of any contract is the requirement that the parties have a mutual intention to create a legally enforceable bargain."” 17 (references omitted)

[40] Amongst other factors, to create a legally binding contract there must be an intention by the parties to the agreement to establish a legal relationship. The High Court said in Ermogenous v Greek Orthodox Community of SA Inc 18:

“24. "It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts”.

25. Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.” (references omitted)

[41] There must also be an offer by one party (the promisor) and an acceptance of that offer by another party (the promisee). 19 An offer is the expression of the promisor’s willingness to contract on the terms as stated. Further, the promisor must be reasonably understood to be seeking something in return for the promise. The High Court in Australian Woollen Mills Pty Ltd v Commonwealth20 said:

“In such cases as the present, therefore, in order that a contract may be created by offer and acceptance, it is necessary that what is alleged to be an offer should have been intended to give rise, on the doing of the act, to an obligation.” 21

[42] The laws of contract look to the objective intention of the parties in relation to offer and acceptance. That is, the effect of an offer is to be determined by what a reasonable person in the position of the promisee would understand the offer to be. 22

[43] A legally binding contract will usually result once the offer has been accepted by the promisee. However, to be valid, the acceptance must be given by the promisee with the knowledge of the offer and an intention to accept that offer. That is, the acceptance must be “truly responsive” to the offer. 23 It is clear that the laws of contract contemplate that acceptance will not always be expressly given and may, on occasion, be implied from conduct. However, it is important to note that a contract will not be implied lightly and the conduct must be such that one can confidently conclude that the parties intended to create contractual relations and the agreement was to effect contended.24

[44] This requirement must also been seen in light of the observations of Marshall J in Damevski v Giudice and Others: 25

“82. Although contracts are not to be implied lightly, the Court may find exceptions to the general rule concerning express intentions. The Court may imply a contract by concluding that the parties intended to create contractual relations after examining extrinsic evidence, including what the parties said and did: see Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309; Blackpool and Fylde Aero Club Ltd v Blackpool BC [1990] 3 All ER 25 at 31 per Bingham LJ and Orion Insurance Co plc v Sphere Drake Insurance plc [1990] 1 Lloyd’s Rep 465 at 492-494 per Hirst J.”

[45] The acceptance must also be unequivocal 26 and generally, communicated to the promisor.

[46] The fundamental terms of a contract must also be sufficiently certain. That is, where the terms of a purported contract are obscure and incapable of any definite or precise meaning it may not be possible to attribute to the parties any particular contractual intention and the contract may be held to be void or uncertain or meaningless. 27

[47] However, as Barwick C.J. said in Upper Hunter County District Council v. Australian Chilling and Freezing Co. Ltd.: 28

"But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty . As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction . . . ".

[48] It is only if it is not possible to put any definite meaning on the contract that it can be said to be uncertain. 29 That is, there is a distinction between an uncertainty of meaning, as distinct from absence of meaning or of objective intention.

[49] Valuable consideration must also be provided. That is, a price must be paid (although it need not be monetary) for the promise of the other party. The consideration must not be too vague or uncertain and it must be present or future, but not past. 30 The parties must also have the legal capacity to enter into, and genuinely consent to, the making of a contract.

[50] In this case, there would be no doubt that all of these elements applied to the written contract of employment. However, considerable doubt about the necessary legal intention of the parties to create a new or varied contract exists and the consideration for any new or varied contract would be problematic. In any event, the terms of any such varied or new contract would be, at best, uncertain.

[51] That is, there is no, or insufficient, certainty about any of the terms of any variation or any new contract. In that regard, I would not accept that the terms of the contract of employment were simply brought forward through a variation as a result of the conduct of the parties. That contract was for an average of 40 hours rostered work per fortnight to be undertaken performing work at the Distribution Centre and it is not conceivable on either case that moving this contract forward to operate in those terms earlier than the specified commencement date was intended by the parties. The terms of any new or varied contract could also not in my view be discerned from the conduct of the parties or by operation of the law. That is, the essential details of a varied or new contract are not sufficiently clear or discernible in this case. There was only a general expectation that the on-boarding activities should be undertaken at some stage in preparation for the first day of work.

[52] Further, there was no consideration for a variation to the contract or a new one. In that regard, I accept that the circumstances of Ms Hawkins, as a person about to start a new job, are relevant. However, there was no suggestion or implication at any time that the expectation of Ms Hawkins doing the on-boarding sessions would be remunerated or operate subject to any employment conditions. I have also considered whether the promise of the job might represent relevant consideration in the present context. However, the position and its terms were already established by the contract of employment and there was no evident additional benefit to be provided by ALDI to Ms Hawkins.

[53] I would, however, emphasise that a failure to pay remuneration would not of itself mean that there could be no employment. If ALDI had required Ms Hawkins to undertake some introductory “training” shifts, or formally directed her to complete some training activities (beyond the initial accessing of information) with conditions and consequences, and purported to do so without payment, it is likely that I would have come to a different conclusion. That is, unlike the present matter, valuable consideration would actually have been due for any such activities and the obligations would have had some enforceable form and context.

[54] In short, I do not consider, at least for the purposes of s.384 of the FW Act, that the expectation that the on-boarding activities would be undertaken in the present context means that the employment or service commenced any earlier than the specified commencement date. There are none of the necessary hallmarks of employment, including the mutual obligations and legal prerequisites, operating at that time.

[55] In reaching that conclusion I have also had regard to the fact that there were some employees who commenced employment along with Ms Hawkins, but did not complete the on-boarding activities prior to the first day of work. These employees undertook the on-boarding activities during their first week of work, without further consequence. This tends to support the notion that the undertaking of the on-boarding activities was an expectation rather than a direction from an employer to their employees. Importantly for present purposes, this is also consistent with the view that I have formed that the on-boarding activities are more akin to the requirements under the contract of employment that the new employees would provide the payroll information (complete the personal details, tax declaration and superannuation choice forms) prior to the commencement date. If this was not done, one would reasonably expect that the information would be sought on or after commencement. There is no suggestion that the expectation that this payroll information be provided in advance of the specified commencement date would lead to the earlier commencement of employment for present purposes.

[56] For completeness, I have also considered the impact of Ms Hawkins’ suggestion that the terms of the written contract were extended so that it operated (in those terms) from one of the earlier dates. For reasons outlined earlier, I do not accept that proposition, but in any event, such a period would not provide sufficient continuous service within the meaning of the Act.

[57] Section 22 of the FW Act defines service and continuous service in the following terms:

“General meaning

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2) The following periods do not count as service:

(a) any period of unauthorised absence;

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or

(ii) a period of stand down under Part 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly.”

[58] As outlined earlier, the contract was for an average of 40 hours rostered work per fortnight to be undertaken performing work at the Distribution Centre and subject to various forms of paid and other leave. If the employment under the contract commenced prior to 4 January 2016, the periods of “employment” between the “work” undertaken to do the on-boarding sessions, would need to be considered as unpaid leave. This would not then be included for the purposes of the continuous service and would mean that Ms Hawkins’ period of employment fell short in any event. That is, this “unpaid leave” would not break the service, but when the “work” was combined with the service after 4 January 2016, it is still not sufficient to provide 6 months of service. I accept that this treatment of the “leave” is somewhat of an artificial construct, but this arises from what I consider to be the completely artificial premise upon which the extension to the contract period in the original terms would need to operate for this to arise.

[59] For reasons outlined earlier in this decision, I also do not consider that the “work” undertaken to do the pre-boarding activities would amount to casual employment. Even if it was considered in that light, the service would not be regular and systematic and as such those periods or “work” would also not count as continuous service for present purposes. That is, s.384(2)(a)(i) of the FW Act (set out earlier in this decision) would mean that any such “service” would not count towards the period of employment of Ms Hawkins. 31

[60] As a result, I do not consider that the period of employment, or the service, of Ms Hawkins commenced prior to the specified commencement date of 4 January 2016. Even if it did, there was not sufficient continuous service within the contemplation of the FW Act.

6. Conclusions and orders

[61] For reasons outlined above, Ms Hawkins has not completed the minimum employment period required by s.382 of the FW Act. As a result, she was not protected from unfair dismissal and is not eligible to seek a remedy 32 arising from this application.

[62] Accordingly, the unfair dismissal application must be dismissed. An order 33 to that end is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

A Sage, of the Shop, Distributive and Allied Employees Association, for Ms Brittany Hawkins.

M McNaughton of Enterprise Law, with permission, for ALDI Foods Pty Ltd as a General Partner of ALDI Stores (A Limited Partnership).

Hearing details:

2016

Adelaide, with video link to Sydney

29 September.

 1   ALDI is not a small business employer as defined in the Act.

 2   Taken from Exhibit A1.

 3   Exhibit A1.

 4   Exhibit A1.

 5   Exhibit A2.

 6   Exhibit A2.

 7   Exhibit R2.

 8   Exhibit R1 sets out the accommodation on the evidence reached between the parties.

 9 s.22(2) of the FW Act.

 10   Exhibit R3 at par 14.

 11 s.382(a) and s.383 of the FW Act.

 12 s.383 of the FW Act. The date of giving notice and the date of dismissal are the same in this case.

 13   See Prigge v Manheim Fowles Pty Ltd[2010] FWA 28 at [10] – [14].

 14   See the discussion by the Federal Court of the alternative approaches to the construction of contract providing for an advanced date of commencement in Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15.

 15   Modules attached to the agreed statement of facts – Exhibit A1.

 16   Print S0253 (25 October 1999).

 17 Ibid at [49].

 18 (2002) 209 CLR 95 per Gaudron, McHugh, Hayne and Callinan JJ.

 19   See R v Clarke (1927) 40 CLR 227.

 20 (1954) 92 CLR 424. This decision was affirmed by the Privy Council on appeal in Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546.

 21   Ibid at 457.

 22   See Manufacturers’ Mutual Insurance Ltd v John H Boardman Insurance Brokers Pty Ltd (1992) 27 NSWLR 630 at 638.

 23   Gjergja v Cooper [1987] VR 167 at 206.

 24   Blackwood and Flyde Aero Club Ltd v BlackpoolBorough Council [1990] 3 All ER 25.

 25 [2003] FCAFC 252.

 26   Appleby v Johnson (1874) LR 9 CP 158.

 27   See Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429.

 28 [1968] HCA 8; (1968) 118 CLR 429, at p 436.

 29   See also Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571.

 30   Shields v Drysdale (1880) 6 V.L.R. E 126, Roscorla v Thomas (1842) 3 Q.B. 234 and Stilk v Myrick (1809) 2 Camp 317.

 31   See Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237 and Grives v Aura Sports Pty Ltd[2012] FWA 5552.

 32 .s.390(1)(a) of the FW Act.

 33   PR586074.

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