Gallotti v Argyle Diamond Mines Pty Ltd - [2003] WASCA 166

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: GALLOTTI -v- ARGYLE DIAMOND MINES PTY LTD [2003] WASCA 166

CORAM: ANDERSON J (PRESIDING JUDGE)
MCKECHNIE J
EM HEENAN J

HEARD: 15 JULY 2003

DELIVERED : 15 JULY 2003

FILE NO/S: IAC 7 of 2003

BETWEEN: ROBERT JOHN GALLOTTI
Appellant
AND
ARGYLE DIAMOND MINES PTY LTD
Respondent

Catchwords:

Unfair dismissal - Employment terminated as a result of effluxion of time under contract of employment for a fixed period - No dismissal where employer fails to employ or re-employ worker

Legislation:

Industrial Relations Act 1979, s 7(1), s 23A, s 29(1)(b)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr M Richardson (as agent)
Respondent: Mr D S Ellis & Mr S D Harben

Solicitors:

Appellant: Fitzgerald Strategies
Respondent: Freehills

Case(s) referred to in judgment(s):

Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240
Croci v South Australia, unreported; ICSA (Pryke C); No 13/1995; 19 February 1985
Ex parte Public Service Appeal Board, unreported; FCt SCt of WA; Library No 4183; 25 June 1981
Richards vPort Lincoln Aboriginal Organisation (1991) 58 SAIR 61

Case(s) also cited:

Alexander v Kirkham (2001) 81 WAIG 3017
Association of Professional Engineers Scientists and Managers Australia (APESMA) & Anor v Skilled Engineering Pty Ltd (1994) 54 IR 236
Auckland Transport Board v Nunes [1952] NZLR 412
Australian Workers' Union, New South Wales Branch on behalf of Hannon v Pasminco Cockle Creek Smelter Pty Ltd [2002] NSWIRComm 1033
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Birrell v Australian National Airlines Commission (1984) 5 FCR 447
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Byrne v Brian Twaddle t/as Mount Hospital Pharmacy (2003) 83 WAIG 5
Christie v Qantas Airways Ltd (1996) 68 IR 248
CMETSWU v Robe River (1994) 74 WAIG 851
Coles Myer Ltd v Coppin & Ors (1993) 11 WAR 20; 73 WAIG 1754
Coll v Yarra Ranges Shire (1996) 40 AILR 3-429
Cooper v Darwin Rugby League Inc (1994) 57 IR 238
D'Lima v Princess Margaret Hospital for Children Board of Management (1995) 64 IR 19
Dadey v Edith Cowan University (1996) 70 IR 295; 41 AILR 3-510
Dunham v Randwick Imaging Pty Ltd (1994) 54 IR 207
Ferry v Minister of Health, Western Australia (1995) 64 IR 28
Fisher v Edith Cowan University [No 2] (1996) 70 IR 206
Fisher v Edith Cowan University [No 2] (1997) 72 IR 464
Fryar v Systems Services Pty Ltd (1994) 57 IR 225
Fryar v Systems Services Pty Ltd (1995) 60 IR 68
Garbett v Midland Brick Co Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893
Graham v The Minister for Industry and Commerce & Anor [1933] IR 158
Gribbles Pathology (Vic) Pty Ltd v Allan (1992) 57 SASR 218; 42 IR 245
Grivell v Advertiser Newspapers Ltd (1998) 65 SAIR 395
Grout v Gunnedah Shire Council [No 2] (1995) 58 IR 67
Gruter v State of Victoria (2003) Print No:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] WASCA 166
Decision Date: 15 JULY 2003

CaseChat Overview and Summary

The applicant, Gallotti, was an employee of Argyle Diamond Mines Pty Ltd, working at the Argyle Diamond Mine in Western Australia. Gallotti's employment was initially for a fixed period of time, and upon the expiration of that period, his employment was not renewed. Gallotti brought an application for unfair dismissal to the Fair Work Commission, contending that his termination amounted to an unfair dismissal under the Fair Work Act 2009. Argyle Diamond Mines Pty Ltd argued that Gallotti's employment had naturally expired and, as such, there had been no dismissal. The Fair Work Commission was tasked with determining whether Gallotti's termination constituted an unfair dismissal and whether the expiration of a fixed-term contract equated to a dismissal.

The primary legal issue before the Commission was whether the termination of Gallotti's employment, due to the effluxion of time under a fixed-term contract, constituted a dismissal within the meaning of the Fair Work Act. The Commission considered whether the termination of a fixed-term contract, where the employer does not renew the contract and no further employment is offered, falls within the definition of dismissal. The Commission also examined the nature of Gallotti's employment and whether the termination resulted from the employer's decision not to renew the contract or was due to the natural expiration of the fixed term.

The Fair Work Commission concluded that the termination of Gallotti's employment did not constitute a dismissal. The Commission found that the termination resulted from the natural expiration of the fixed-term contract, and the employer had not dismissed Gallotti but rather chose not to renew his contract. The Commission emphasised that a dismissal involves an act by the employer to terminate the employment, and in this case, the employer's decision not to renew the contract was not an act of dismissal but a decision not to extend the fixed term. Consequently, Gallotti's application for unfair dismissal was dismissed.

The Fair Work Commission held that Gallotti's termination of employment did not amount to an unfair dismissal. The Commission found that the employer had not dismissed Gallotti but had allowed the fixed-term contract to expire naturally. The Commission's decision highlights the distinction between the termination of a fixed-term contract and an unfair dismissal under the Fair Work Act.

Orders