Claire Muntinga v Yamatji Land and Sea T/A Yamatji Marlpa Aboriginal Corporation
[2013] FWC 1933
•9 APRIL 2013
[2013] FWC 1933 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Claire Muntinga
v
Yamatji Land and Sea T/A Yamatji Marlpa Aboriginal Corporation
(U2012/16173)
DEPUTY PRESIDENT MCCARTHY | PERTH, 9 APRIL 2013 |
Jurisdictional objection - Whether fixed term for one or two years - Meaning of “A 2nd year is to be negotiated” - Application dismissed.
Background
[1] On 30 November 2012 Ms Claire Muntinga, (the Applicant) lodged an application to Fair Work Australia (now the Commission) for a remedy from an unfair dismissal remedy (the Application). The Applicant had been employed by Yamatji Land and Sea T/A Yamatji Marlpa Corporation (the Respondent). On 19 December 2012 the Respondent lodged a response to the application. In that response the Respondent disputed that the Applicant could make the application as they asserted that the Applicant was employed on a fixed term contract due to expire on 15 January 2013. They say that the Applicant received her full entitlements to the expiry of the term of the contract. The Respondent argues that the application is excluded by virtue of 386(2) of the Fair Work Act 2009 (the FW Act).
[2] Before a dismissal can be found to have been unfair amongst other things the person’s employment with his or her employer must have been terminated on the employer’s initiative. 1 However a person cannot have been dismissed if 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. 2
[3] Here the Respondent contends that the circumstances defined by s.386(2)(a) exist and therefore there has been no dismissal. The Applicant contends that there was a dismissal with that was consistent with that meaning in the FW Act. I decided to deal with this issue first.
[4] The Applicant had been employed since 2007. She continued employment by an extension or more likely by a series of extensions to her initial contract. The Applicant says that on 15 January 2012, she accepted a position as Community Engagement Manager. She also says that the final version of her contract was signed by the Chief Executive Officer on 15 December 2011 (the contract).
[5] The contract in Clause 2 provides that;
- contract Period is 16 January 2012 to 15 January 2013.
- A 2nd year is to be negotiated at the end of the one year period which will be dependent on performance and satisfactory completion of work plan outcomes.” 3(emphasis in original)
“Yamatji Land and Sea T/A Yamatji Marlpa Corporation would like to offer you fixed term employment, and in this instance your probationary period of three (3) months has been waived due to your previous satisfactory employment with YMAC.
[6] The Applicant in written submissions contended that the Contract was for a fixed term being a 2 year period, with employment in the second year conditional on the Applicant’s performance at work and satisfactory completion of work plan outcomes. The Applicant also contended that agreement had been reached in the discussions prior to the engagement that there would be a second year and only the terms and conditions for that second year were to be negotiated. It was those terms and conditions only that were dependent on the Applicant’s performance at work and satisfactory completion of work plan outcomes.
[7] The Respondent contends that the Contract came to an end by the effluxion of time.
[8] The issue in contention here then is whether on the proper construction and meaning of the contract the Applicant was employed for a fixed term of one year that expired on 15 January 2013, or whether she was employed on a fixed term of two years.
The Arguments
[9] The Applicant argues that the terms of the clause are ambiguous or susceptible to more than one meaning. The Applicant recognises that if the words “Your contract Period is 16 January 2012 to 15 January 2013.” were read alone and in isolation that she would have difficulty in her argument succeeding. However she argues that those words should not be read in isolation but rather with the sentence that follows. When read with that sentence she asserts an ambiguity arises. If there is an ambiguity arising extrinsic material can be relied upon to aid in ascertaining the true meaning of the clause. The extrinsic material that was provided included evidence about the formation of the contract. That evidence she claims establishes that the intentions of the parties was that the agreement was for a two year term.
[10] The Respondent argues that the words of the clause are clear and unambiguous , that there is no basis therefore to consider or rely upon extrinsic material and even if that evidence were allowed and relied upon it is not conclusive and so does not aid in ascertaining the true meaning of the clause.
[11] The issue in question then is what is the meaning of the sentence “A 2nd year is to be negotiated at the end of the one year period which will be dependent on performance and satisfactory completion of work plan outcomes.” ( emphasis in original). 4
[12] That sentence can be deconstructed into three separate elements. Firstly, it gives a primary action that "A 2nd year is to be negotiated". Secondly, is states when that activity is to take place viz; "at the end of the one year period". Thirdly, it states conditions attached to the actions "which will be dependent on performance and satisfactory completion of work plan outcomes". The third element to the sentence also indicates what the outcome of the action will be dependent on (or more accurately upon) viz; performance and satisfactory work plan outcomes.
[13] The question to be considered here involves what that part of the sentence “A 2nd year is to be negotiated” means. The command of the phrase is the finite verb “negotiated”. The words “to be” are an auxiliary verb indicating the tense for the action contemplated. The tense for the verb “to be” here is given by inclusion of the word “is”. Thus “is” here is used as a modal auxiliary to the auxiliary verb “to be”. 5
[14] The phrase “is to be” can have a variety of meanings. Generally the meaning given is that it is anticipated that something will happen. However what is anticipated will happen can have varying degrees of certainty. The event anticipated could be inevitable, probable or even just possible. The certainty about the anticipated event happening depends on the nature of the event anticipated. Here the Applicant suggests that if the Respondent intended that the contract was not a two year fixed term, then the word “may” would have been used, rather than “is”. I do not agree that the use of “is” in the phrase “is to be” signifies the degree of certainty and inevitability that the Applicant asserts should be attached to it. It could mean no more than it is expected to happen, that it should happen, or even just that it is possible that it may happen.
[15] The meaning is informed by the finite verb “negotiated” in the phrase “is to be negotiated”. Thus the activity to be undertaken is that something “is to be negotiated”. That phrase to me indicates no more thanthat there is anticipation or maybe even an obligation that negotiations will occur.
[16] If one accepts that the phrase “is to be negotiated” creates an obligation to negotiate the real question that emerges is what is to be negotiated? That question is informed by the word used at the start of the sentence namely “A 2nd year” (my emphasis). Importantly the word “A” is used rather than “The”.
[17] The context of the second sentence is also important. The second sentence follows directly after the express terms of the first sentence. The first sentence leaves no room for doubt that the contract is for a one year period. It is not qualified in any way such as it being “subject to” any other condition. The second sentence also gives no indication of an intention to override the express terms of the first sentence by inclusion of words such as “notwithstanding” or “despite” the express terms of the first sentence.
[18] It seems clear enough to me that what the contract means is that if there is to be a second year then it will be negotiated. It does not mean that the contract was for a two year period with only the terms and conditions for that second year to be the subject of negotiations.
The evidence about the contract
[19] For the sake of completeness I decided to canvass the evidence regarding the intentions of the parties. If there is an ambiguity then the intentions surrounding the making of the contract may be considered to ascertain the true meaning.
[20] The Applicant evidenced that she had made it very clear in her discussions and negotiations with the CEO and others in the management team that that she needed and wanted a 2 year fixed term contract, which could be subject only to satisfactory performance
[21] Following discussions with the CEO and the Human Resources Manager on 14 December 2011 she emailed both. In that email she referred to the discussions and made the request “Also can the 12 month contact (sic), be 2 years, depending on performance a renewal after the initial 12 months.” 6 The CEO responded “Yes the wording will read something like 12 month contract with a 12 month renewal subject to performance and satisfactory completion of work plan outcomes.” 7
[22] The Applicant asserts that this response represented agreement by the Respondent that the contract was for a two year period. I do not agree. Whilst the sentence could have been clearer it was in my view the type of shorthand one can often expect from email interchanges. It would be dangerous to rely on that type of exchange to establish a clear commitment and agreement by YMAC. Further, if there are any conclusions to be drawn on a fair reading of the email they favour the Respondent. Whilst the start of the answer is “yes” it then goes on to state that there would be a 12 month contract with a twelve month renewal. What is intended to happen is clear; the contract is to be “renewed”. The ordinary meaning of “renew” is to “make new again”, “to restore, re-establish, bring back into use or existence”, ”to take up or begin again”, “to go over again, relate afresh”, “replace, replenish”, Revive, reawaken” , “grant anew, reaffirm, reinstitute” 8. Even if it were appropriate and safe to rely on the CEO’s email response when taken in context the response from the CEO supports the contentions of the Respondent rather than the Applicant.
[23] The Applicant also stated that “At no time during these negotiations was I told, nor was it agreed, that the contract would be for a one-year fixed term only,” 9The inference the Applicant seems to want me to make is that because there was no mention of the contract being for one year that it was for two years. I do not agree that any inference should be made about the term of the contract from that evidence.
[24] Mr Peter Jefferies is the Pilbara Regional Manager of YMAC, a member of the Executive Management Team (EMT) and has been employed by YMAC for over 5 years. He evidenced that he had been involved in a meeting in late 2011 where the employment of the Applicant was discussed. His recollection was that the Applicant “would be offered a 2 year contract of employment which was to be reviewed at the end of the first year and extended depending on funding and performance”.
[25] The evidence of Mr Jefferies is in my view inconclusive. Whilst he states there was agreement that there would be a two year contract, he then goes on to state that the contract would be “reviewed” and “extended”. The use of the word “reviewed” suggests a continuance subject to performance but the use of the word “extended” suggests a one year contract with the possibility of a second year. There was also no evidence that Mr Jefferies was involved in the formalisation and finalisation of the contract nor any discussions with the CEO about that.
[26] Ms Melissa Moore gave evidence. She had been employed by YMAC for about four years and was a member of the EMT. She gave evidence that an EMT meeting resolved to employ the Applicant in a new position. In about December 2011 the CEO advised the EMT in an email that he intended to place the Applicant in a community engagement role. She also evidenced that “the procedure for management of employees at the time was clearly in the YMAC Enterprise Agreement
[27] Ms Moore’s evidence does not assist the contentions of the Applicant. Firstly, Ms Moore did not evidence that the Applicant actually offered a two year contract. Secondly the EBA itself tends to suggest that fixed terms of employment are to be for a one year period with the potential for an extension for a further year.
Conclusion
[28] I do not consider that the terms of the contract make its meaning ambiguous or uncertain. The meaning of the words in the contract itself describes and defines its terms. I conclude that the contract was for a twelve month term. There was a potential, and nothing more than that, for there to be a further (or second) year but that was to be the subject of negotiation both as to whether it would occur at all and the terms under which it would occur. Even if the meaning was ambiguous or uncertain I consider that the evidence does not support the Applicant’s contention of what the intentions of the YMAC were.
[29] As a consequence the application is not permitted by operation of s.386(2)(a) and it is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Power with Ms J Stevens for the Applicant
Ms E Hawthorne for the Respondent
Hearing details:
2013.
Perth:
March, 26.
1 ss.385(a),386(1)(b)
2 s.386(2)(a)
3 Exhibit A1 Attachment CM-2 p. 2
4 Ibid.
5 Rodney Huddleston, Geoffrey K. Pullum (eds), The Cambridge Grammar of the English Language (2002) Cambridge University Press, (1st ed, 2002) p. 113
6 Exhibit A1 Attachment CM-4 p. 2
7 Ibid.
8 Lesley Brown (ed), The New Shorter Oxford English Dictionary on Historical Principles Volume 2, Cambridge University Press, (1993) p. 2545
9 Exhibit A1 paragraph [10]
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