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: PR926521

Gunnedah Shire Council v Grout (1995) 62 IR 150

Gunton v London Borough of Richmond on Thames [1980] 3 All ER 577

Hermann v Qantas Airways Ltd (2001) Print No: PR903096

Hill v C A Parsons Ltd [1972] 1 Ch 305

Hoare v Curtin University of Technology (1999) Print No: R4002

Kounis Metal Industries Pty Ltd v TWU (1992) 73 WAIG 14

Lees v Arthur Greaves (Lees) Ltd (1972) [1974] 2 All ER 393; [1974] ICR 501; (1974) 3 IRLR 93

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

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

National Tertiary Education Industry Union v Australian Higher Education Industrial Association (1997) 74 IR 326

National Tertiary Education Industry Union v Edith Cowan University (1996) 69 IR 201

Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; 97 IR 392; 47 AILR 4-258

Qantas Airways Ltd v Christie (1998) 193 CLR 280

R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138

Re Rubel Bronze & Metal Co Ltd v Vos Arbitration (1917) [1918] 1 KB 315

RGC Mineral Sands Ltd & Anor v CMETSWU (2000) 80 WAIG 2437

Rigby v Ferodo Ltd (1987) 16 IRLR 516

Riverwood International Australia v McCormick (2000) 177 ALR 193

Ryder v Beaulieu of Australia Ltd (2003) 83 WAIG 1133

Sammartino v Foggo (1999) 93 IR 52

Scally v Sir Charles Gairdner Hospital Board of Management (1996) 40 AILR 3-316

Siagian v Sanel Pty Ltd (1994) 54 IR 185

SirCharles Gairdner Hospital v ALHMWU (1994) 74 WAIG 2319

SSTU v The Chairman, Hedland College Council (1987) 67 WAIG 1118

Stephenson v London Joint Stock Bank Ltd (1903) 20 TLR 8

Strecker v Metropolitan Cemetries Board (1995) 64 IR 109

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

Tan v Kafetzis (1999) 79 WAIG 2987

The Queen v The Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd [1975] 10 SASR 582

United Construction Pty Ltd v Birighitti (2003) 83 WAIG 434

Vento v Chief Constable of West Yorkshire Police (No 2) (2003) 32 IRLR 102

Victoria v The Commonwealth (1996) 187 CLR 416

Vine v National Dock Labour Board [1957] AC 488

Wilson v Australian Tax Office (2001) 110 IR 78

Wood v National Mine Management (1998) 78 WAIG 4853

Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561

1. ANDERSON J (PRESIDING JUDGE):  I will ask Heenan J to deliver reasons in this matter.

2. EM HEENAN J: The single question of law which determines the outcome of this appeal was decided against the appellant by Kenner C at first instance and that decision was upheld on the appeal to the Full Bench. The question is whether the termination of the appellant's employment by the effluxion of the time fixed for the duration of that employment constitutes a dismissal by the employer. If not, no question of relief for alleged harsh, oppressive or unfair dismissal could arise under ss 23A, 29(1)(b) of the Industrial Relations Act or at all.

3. Kenner C and the Full Bench both held that Mr Gallotti's employment came to an end in accordance with its express terms on the final day of the agreed term - that is, 31 July 2001 - resulting in a termination by effluxion of the limited period of employment agreed between the contracting parties.

4. In his reasons for decision in the Full Bench the learned President said (AB 33 ‑ 34:

   "A dismissal is well understood to be the termination of the contract at the initiation of the employer and this may be done by notice or summarily (see Macken, O'Grady, Sappideen & Warburton 5th Edition, 'The Law of Employment').  Where a contract provides for employment for a fixed term, the contract will automatically end when the time expires, unless, of course, it is lawfully terminated in some other way in the meantime (see 'The Law of Employment' op cit at page 235).

   If, however, a contract of employment is terminated by agreement between the parties (ie consensually) or by effluxion of time then there is obviously not a dismissal because there is no termination at the initiative of the employer."

   With respect, I agree with those observations of the learned President.

5. There is ample authority for the proposition that the cessation of the relationship of employer and employee by the effluxion of an agreed term of employment is not a "dismissal".

6. One such case was cited by the respondent to this appeal and it is the decision of the Supreme Court of South Australia in Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South

Australia and Grivell (1999) 74 SASR 240, particularly the passage in the decision of Bleby J at par 28.

1. There will not be a dismissal where the term of a contract of employment expires:  Richards v  Port Lincoln Aboriginal Organisation (1991) 58 SAIR 61, or where such a contract is not renewed:  Croci v South Australia, unreported; ICSA (Pryke C); No 13/1995; 19 February 1985.

2. Unfair dismissal should be distinguished from a refusal to employ or re‑employ for which the Commission has express jurisdiction by virtue of the definition of "industrial matter" in s 7(1).

3. It was submitted by the appellant that the decision in Ex parte Public Service Appeal Board, unreported; FCt SCt of WA; Library No 4183; 25 June 1981 recognised that a termination of employment under a fixed term contract could amount to a dismissal.  However, I must reject that submission because it is obvious that all that was decided in Ex parte Public Service Appeal Board (supra) was that the annulment of an appointment to a position in the Public Service upon the exercise of a power of review at the end of a probationary period could be regarded as a dismissal.  That case did not deal with the situation here, namely, termination of employment at the expiration of a fixed term.

4. As in my view there was no dismissal, I conclude that the decisions of the Commissioner at first instance and the Full Bench were correct and that this appeal should be dismissed.

5. ANDERSON J:  I agree with Heenan J and there is nothing I wish to add.

6. McKECHNIE J:  I also agree.