Glendolyn Maberly v Indian Ocean Group Training Association
[2012] FWA 9247
•31 OCTOBER 2012
[2012] FWA 9247 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Glendolyn Maberly
v
Indian Ocean Group Training Association
(U2011/13660)
COMMISSIONER WILLIAMS | PERTH, 31 OCTOBER 2012 |
Termination of employment - jurisdiction.
[1] This matter involves an application made by Mrs Glendolyn Maberly (Mrs Maberly or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is the Indian Ocean Group Training Association (the respondent).
[2] This matter was the subject of a conciliation conference conducted by a Fair Work Australia Conciliator however the matter was not settled and so was referred to myself for determination.
Background
[3] The respondent is a registered training organisation and a group training organisation which provides training on Christmas Island and Cocos Island for residents and employees of companies operating there.
[4] The respondent is a community owned and operated not-for-profit organisation.
[5] The respondent is overseen by a management committee. The members of the Management Committee are all volunteers contributing their time in addition to their other work responsibilities elsewhere.
[6] Mrs Maberly commenced employment with the respondent in 2004 as a Training Manager.
[7] In November 2008 she was appointed to the position of General Manager. The offer of employment for this new position, which she accepted, was included in a letter dated 13 November 2008 (the 2008 contract) 1.
[8] Mrs Maberly’s employment ended in November 2011.
The jurisdictional issue
[9] The respondent opposes the application on the ground that Fair Work Australia does not have jurisdiction to hear the application. The respondent argues the applicant was not dismissed.
[10] The respondent’s case is that the applicant’s employment came to end as a result of the effluxion of time and not as the result of termination on the initiative of the employer. The 2008 contract, it is asserted, terminated with the parties agreement and not at the initiative of the employer.
[11] Fair Work Australia is not able to make an order for a remedy under section 390 of the Act unless a person is protected from unfair dismissal and the person has been unfairly dismissed.
[12] Section 385 of the Act lists a number of prerequisites of which Fair Work Australia must be satisfied before finding that a person has been unfairly dismissed. The first of these is that the person has been “dismissed”.
[13] Section 386 of the Act says that a person has been dismissed if:
“(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; ...”
[14] The respondent says this is not the case because the applicant exercised her option under the 2008 contract to extend the term of her contract beyond 12 November 2010 for a further term of one year and this extended term expired on 12 November 2011.
[15] Mrs Maberly disputes this and importantly says she did not exercise the option within the 2008 contract but rather her employment continued beyond 12 November 2010 on an interim contract.
[16] There is little disagreement between the parties as to the law on this issue and a resolution of the jurisdictional question will be determined on the evidence as to whether or not Mrs Maberly did exercise the option to extend the 2008 contract or not.
The applicant’s submissions
[17] The applicant submits the evidence demonstrates that in June 2010 she raised concerns about her 2008 contract with the Management Committee. Her primary concern was about future job security and she sought a new contract with a longer term.
[18] In September 2010 the Management Committee resolved that Mrs Maberly would be offered a new contract as the General Manager for three years and with an option for her to renew the contract for another two years beyond this.
[19] The applicant’s understanding was that this new contract would be drafted in due course and so chose not to exercise her option under the 2008 contract which then expired on 12 November 2010.
[20] Despite the expiry of the 2008 contract Mrs Maberly continued to work in the position of General Manager in anticipation of the new contract being finalised. Because her employment continued beyond the 12 November 2010 expiry of the 2008 contract it is submitted that an interim contract operated thereafter until the dismissal of the applicant by the respondent in November 2011.
[21] On 25 November 2010 the Management Committee’s Chair Person emailed the applicant an offer of a new employment contract commencing 1 January 2011 and ending on 31 December 2013 with the option for her to extend for a further two years.
[22] This contract was never accepted by the applicant because there were outstanding issues concerning the remuneration. The contract was never executed.
[23] In June 2011 the respondent withdrew the offer of a new contract and notified the applicant that her employment contract would expire on 12 November 2011 and that no new offer of employment would be made to her on the expiry of the 2008 contract.
[24] Notwithstanding the purported expiry of the 2008 contract on 12 November 2011 by agreement with the respondent Mrs Maberly continued to work until 17 November 2011.
[25] The applicant argues that the 2008 contract ended on 12 November 2010 and the respondent terminated the interim contact in November 2011. Accordingly, the applicant was dismissed and so is entitled to make this application.
The respondent’s submissions
[26] The respondent argues that the applicant’s contract of employment was a fixed term contract which contained an unambiguous option to extend her employment for a further one year in the following terms:
“The appointment to the position is for a two year fixed commencing on Thursday 13 November 2008 and concluding on 12 November 2010.
A further term of one year is available at your election. If you wish to exercise this option, then notice should be given to the Committee on or before 12 August 2010.”
[27] It is submitted the applicant was aware that her fixed term contract contained this option to extend and that this could be exercised by her and this was not required to be done in writing.
[28] The respondent submits that the applicant did positively exercise this option to renew the contract for one further year and consequently her fixed term contract expired on 12 November 2011.
[29] The respondent says the evidence clearly supports this conclusion.
[30] It is accepted by the respondent that in June 2010 at a meeting with the Management Committee the applicant raised concerns about future job security under her contract and that the Chair Person, Ms Heath, agreed to consider the applicant’s contract and further discuss it with her at a later date.
[31] Subsequently a new draft contract was drawn up but this was never finalised nor was it executed. The applicant never replied to an email from Ms Heath to her on 25 November 2010 which had dealt with the new draft contract. The respondent says in fact there were never any discussions regarding the terms of the draft new contract with Ms Heath or any other of the respondent’s Management Committee members.
[32] It is uncontroversial that subsequent to this in 2011 the applicant was formerly notified that her 2008 contract would expire on 12 November 2011 and would not further be renewed by the Management Committee.
[33] Consequently the respondent submits the applicant’s fixed term employment contract (the 2008 contract) came to an end as result of the effluxion of time, not at the initiative of the employer. Accordingly it is submitted the applicant was not dismissed and so this application should be rejected.
Consideration
[34] The relevant parts of the applicant’s 2008 contract are:
“Dear Glenda
Offer of fixed term appointment - General Manager of IOGTA
The Committee of Management is pleased to offer you the position of General Manager of IOGTA. I am writing to you to formally offer you the position on the terms set out below. If you accept these terms and conditions, please provide your written advice of acceptance.
Interpretation
This letter contains all applicable conditions of employment The position of General Manager is not covered by the IOGTA-UC1W Collective Agreement 2007 — 2009 that applies to all other IOGTA staff However, some conditions contained herein are the same as those contained in the Staff Agreement.
Terms and Conditions
The terms and conditions are as follows:
1. Term of appointment
The appointment to the position is for a two year fixed commencing on Thursday 13 November 2008 and concluding on 12 November 2010.
A further term of one year is available at your election. If you wish to exercise this option, then notice should be given to the Committee on or before 12 August 2010.
In acknowledgment of your previous position at IOGTA, held until immediately prior to the commencement of the tern, your anniversary date for the purpose of calculating leave entitlements and the like will be the day you commenced work with IOGTA.
There is no compulsion on either IOGTA or you to agree to an extension of the term of the appointment beyond 12 November 2011. However IOGTA may invite you, in writing and not later than 6 months prior to the expiry of the term, 12 November 2010, to discuss the possibility of extending the term. The intent would be, if this occurred, for an agreement to be reached not later than 3 months prior to the expiry of the term.”
[35] The critical difference between the parties is whether or not the applicant exercised the option of a further term of one year such that the term of the 2008 contract then ended on 12 November 2011.
[36] The evidence in chief of Mrs Maberly 2was that on 18 August 2010 she met with Ms Heath to consider her contract and talk about Mrs Maberly’s request for a new contract for three years with the option for another two years, because her 2008 contract didn’t provide her any security.
[37] Ms Heath believed that was an excellent idea and said she would refer the matter to the Management Committee.
[38] Mrs Maberly agreed she was aware that her 2008 contract had an option to extend but that she did not exercise that option and did not want to exercise that option because she specifically wanted a new contract for three years with an option of another two years because the 2008 contract was deficient in terms of job security.
[39] Mrs Maberly says that after this there was a Management Committee meeting in early September at which the matter was raised. She says the Management Committee then agreed to offer her a contract for three years with an option for another two years.
[40] Her evidence is that a new contract was sent to her but ultimately she did not execute that contract. Both parties agree on this.
[41] I note at this stage that Mrs Maberly holds a Masters of Business Administration from the Central Queensland University and also holds a Bachelor of Business from the University of Southern Queensland and holds other qualifications including a Certificate IV in Training and Assessment.
[42] In cross-examination however Mrs Maberly answered positively to a proposition that she told the Management Committee that she wanted an extension of her contract as early as June 2010 3. However it needs to be noted that immediately thereafter whilst being asked the next question she interposed as follows:
“Sorry, sorry. What was that previous question? What was it you asked before?”
[43] The cross-examination however did not immediately return to the issue of the extension of the contract.
[44] I accept that at this point in the cross-examination Mrs Maberly did misunderstand the proposition put to her and it is not correct to say that this was an explicit concession by her that she had exercised the option to renew the contract for a further year.
[45] I accept also that in re-examination she explicitly again said that she had not communicated to Ms Heath a desire to exercise the option to extend the 2008 contact.
[46] What is clear from the applicant’s own evidence is that around August 2010 she did actively engage with Ms Heath and the Management Committee in discussions about her contract and her future.
[47] The evidence of Ms Heath is at odds with that of Mrs Maberly. It is Ms Heath’s evidence that around June of 2010 Mrs Maberly discussed her contract and indicated she wished to exercise the option to extend the term of the 2008 contract and that she felt her employment was not as secure as it should be. Mrs Maberly said she wished to have a new three year contract which included an option of a further two years 4.
[48] Ms Heath was adamant in her evidence and under cross-examination that Mrs Maberly had exercised the option to extend the 2008 contract and that accordingly her employment was extended because she exercised this option.
[49] Ms Heath’s evidence was that Mrs Maberly exercised this option both by telling Ms Heath this and by telling the Management Committee that this was her wish 5.
[50] Both Mrs Maberly and Ms Heath gave evidence to confirm the authenticity of minutes of the Management Committee for meetings dated 17 June 2010 6and 2 September 20107.
[51] The confirmed minutes of the Management Committee meeting held on Thursday, 17 June 2010 record that Ms Heath and Mrs Maberly were both in attendance.
[52] Under item 15−General Business these minutes record the following:
“G.M. Contract Renewal
Glenda wants to put her upcoming option for renewal of her employment contract for another year to the next Management Committee meeting. She wants to raise a few matters in her contract that she thinks are unfair and also discuss the duration of the contract, because it does not offer her any job security.
Leslie replied that she wants to read Glenda’s contract and then discuss the document with Glenda stop after that the board can discuss the matter and make an offer to Glenda.”
[53] The reference to Glenda is to Mrs Maberly and the reference to Leslie is to Ms Heath.
[54] The confirmed minutes of the Management Committee meeting on Thursday, 2 September 2010 record that Ms Heath and Mrs Maberly were both in attendance.
[55] Under item 15 these minutes record the following:
“Renewal − General Manager’s Contract
Glenda and Jenn were asked to leave the room for discussions of the general manager's contract and the proposed staff bonus.
Leslie confirmed that she had had a meeting with Glenda regarding her contract renewal and Glenda had suggested a contract of three years followed by an option for two years. The Committee agreed unanimously that this was an excellent idea.
Leslie would prepare Glenda's contract. She said that the Committee has accepted that Glenda has exercised her right for a years continuation of her existing contract and that she, Leslie, will need some time to write up the new contract. Leslie recommended that Glenda's contract be reviewed each year in terms of a Performance Appraisal. Leslie thanked Glenda for her work over the last two years in the General Manager's role and we look forward to another five.
Moved that the General ,anager, Glenda Maberly’s contract of employment be renewed for a further three years with an option for an additional two years.
Moved: Alan Clark/Seconded: Balmut Pirus (Carried 4−zero)”
[56] The evidence of Mr Su, a member of the Committee of Management, was that he’d never heard the applicant say she wished to exercise the option under her contract however the evidence is that he was not present during the Management Committee meetings that were held on June and September 2010 the minutes of which deal with this issue and are set out above.
[57] The evidence was that the meetings of the Management Committee were tape-recorded and the minutes made up from these recordings and consequently the minutes were very accurate.
[58] The applicant however says the minutes of these two meetings are incorrect.
[59] The applicant’s explanation for the minutes of the June meeting, recording that she wanted to put her option for renewal of her contract to the next Management Committee meeting and the September minutes noting that Ms Heath said the Management Committee accepts Mrs Maberly’s has exercised her right for a one year continuation of her 2008 contract, was that she was not a member of the Committee of Management and so was not allowed to speak up to suggest there were errors in the minutes and could not require them to be corrected 8.
[60] Considering the evidence there is a clear difference between the evidence of Mrs Maberly and Ms Heath as to whether Mrs Maberly ever exercised her option to extend her 2008 contract term by a further year. Ms Heath says this was communicated to her directly and also to the Management Committee by Mrs Maberly. Mrs Maberly denies this.
[61] I note that there is also much in common about the evidence of Mrs Maberly and Ms Heath as to their discussions. Both agree that Mrs Maberly was concerned about the job security under her 2008 contract and that she repeatedly expressed a desire for a new contract to include a longer term, being three years and with an option to extend of two years.
[62] The minutes of the Management Committee meetings for June and September 2010 however clearly support Ms Heath’s version of the events.
[63] There is nothing inherently implausible in the respondent’s argument that at the same time Mrs Maberly was expressing concern about the 2008 contract not providing adequate job security she had chosen to exercise the option of extending that contract for a further year. Obviously this gave Mrs Maberly certainty over the immediate 12 months whilst the terms of any new contract were finalised, hopefully for her on terms that would provide greater job security beyond that.
[64] Considering further the issue of the minutes of the Management Committee meetings, it is of some significance that at the time of the meetings in June and September 2010 the relationship between the Management Committee and Mrs Maberly was very positive. This indeed is recorded in the September minutes. Mrs Maberly confirmed this was the case in her evidence. It was not until late 2010 and early 2011 following a spate of staff resignations that the Management Committee developed concerns about Mrs Maberly’s performance. It was only from this time onwards that the relationship gradually deteriorated.
[65] The significance of this timing is that there is absolutely no reason to doubt the accuracy of the minutes taken in June and September 2010 concerning the issue of the General Manager’s contract, because at this time there was no expectation other than that Mrs Maberly would continue to be employed, potentially for another five years and the respondent at that time viewed this as a highly desirable outcome. The respondent had no reason at that time to falsely minute Mrs Maberly having exercised the option to extend the 2008 contact.
[66] The applicant’s explanation as to why she did not point out the error she says exists in both the June and September minutes of the Committee of Management meetings is not believable. The applicant was the General Manager of the respondent and had wide ranging authority and autonomy. The applicant is a well-educated, confident person and having viewed her throughout these proceedings I doubt very much that if there were significant inaccuracies in the minutes of meetings on two occasions, particularly that where of some significance to herself, that she would have taken no steps to have these corrected.
[67] The Tribunal’s role in such matters as this is to make findings on the evidence on the balance of probabilities. In this instance I am satisfied that the weight of evidence is significantly in favour of a finding that Mrs Maberly did indeed positively exercise the option to extend the term of the 2008 contract by one year. I find that Mrs Maberly communicated this to Ms Heath and to the Committee of Management as Ms Heath says occured.
[68] It is not disputed between the parties that the employment of the applicant beyond the date of 12 November 2011 through to 17 November 2011 was agreed be an engagement on a casual basis for this period only. This additional weeks work was a separate contract on a casual basis and I find does not amount to a continuation of employment under the terms of the 2008 contract.
[69] Consequently I am satisfied that under the terms of the 2008 contract the applicant’s employment ended on 12 November 2011. The applicant’s employment was not terminated on the initiative of the respondent but rather ended on this date as a result of the effluxion of time. Accordingly the applicant was not dismissed by the respondent.
[70] Consequently I must now dismisses application and an order to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
S Heathcote, solicitor for the applicant.
T Hammond of Counsel for the respondent.
Hearing details:
2012.
Christmas Island:
July 25, 26.
Perth:
September 13.
1 Exhibit A1, Annexure A.
2 Transcript at PN115 to 127.
3 Ibid., at PN579.
4 Ibid., at PN2251 to 2267.
5 Ibid., at PN2436 to 2438.
6 Exhibit A1, Annexure D.
7 Exhibit A1, Annexure E.
8 Transcript at PN1186 and 1187.
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