Iris Williams v People Who Care Inc

[2020] FWC 2495

[2020] FWC 2495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Iris Williams
v
People Who Care Inc
(U2020/1539)

DEPUTY PRESIDENT BEAUMONT PERTH, 29 MAY 2020

Application for an unfair dismissal remedy - outer limit contract - contract of employment for a specified period of time – section 386(1)(a)

[1] Ms Iris Williams has alleged that her dismissal by the People Who Care Inc (PWCI) was unfair and has lodged an unfair dismissal application.

[2] PWCI has objected to the application asserting that the Fair Work Commission does not have the jurisdiction to deal with it because Ms Williams was not dismissed within the meaning of s 386(1)(a) of the Fair Work Act 2009 (Cth) (the Act). PWCI contends that Ms Williams’ contracts of employment (two outer limit contracts) ended at the end of the period specified in them. Therefore, the termination of her employment was not at its initiative and it follows Ms Williams is excluded from the operation of the unfair dismissal provisions of the Act.

[3] In short, I find on the evidence that Ms Williams’ employment relationship operated and was terminated in accordance with the terms of the two outer limit contracts. It follows that Ms Williams' employment was not terminated on PWCI’s initiative and, therefore, her dismissal was not a dismissal within the meaning of s 386 of the Act. As s 385(a) has not been met, the application is dismissed.

BACKGROUND

[4] Ms Williams started work with PWCI on 17 October 2018 as the Activities Supervisor – Level Up, at the company’s Mandurah site in Western Australia. 1 She was employed under an employment contract signed by her on 16 October 2018,2 and was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (Award). At the time she commenced work with PWCI, Mr Aaron Danks was the Supervisor at Mandurah and Mr Alain Twynham was the Level Up Coordinator for that same site.3

[5] Ms Williams stated she was employed as a permanent part-time worker, working Monday to Thursday, for 30 hours a week. 4 Her initial (or first) employment contract confirms this, and included within it was a six month probationary period, which Ms Williams stated she completed in April 2019.5

[6] In or around April 2019, Ms Williams recalls that Mr Peter Sneddon commenced with PWCI for four days a week as did Ms Cheryl Seward. 6 These two employees job shared a position in the Level-Up program at the Mandurah site. This brought the number of employees in the Level Up program at Mandurah, up to four.7

[7] Ms Williams explained that there were three Level Up programs running concurrently at the Mandurah site, and the aforementioned employees worked as a team assisting one another. 8

[8] On 9 September 2019, Mr Twynham and the Chief Executive Officer, Ms Penny Webb, came to the Mandurah site to have a meeting with Level Up staff regarding proposed organisational changes. 9 Ms Williams said it was explained to her that the new structure would not affect her present employment,10 and the programs would continue to run for six months.

[9] On 13 September 2019, Ms Webb, sent an email to Ms Williams, Mr Twynham and Ms Vanessa Barlow, Manager People & Culture, titled ‘Level Up Restructure’. 11 In the email, Ms Webb explained there had been changes in the funding for the Level Up program, it would therefore be restructured, and the Rockingham site would close.12 Ms Williams gave evidence that she received the aforementioned email on 16 September 2019 after informing Mr Twynham she did not have access to her work email account and had not received the email. Mr Twynham forwarded the email to Ms Williams’ personal email account.

[10] The email, dated 13 September 2019, continued that the organisation considered that the fairest way to approach the restructure was to spill all roles for the various sites and request that employees apply for the positions which were a good fit with their passions and experiences. 13 Regarding the role of Activities Facilitator this would be aligned with the length of time for the remaining project.14 The Level Up Super Site Team Leader and Facilitators would receive a contract until 30 June 2020.15 The changes in contract duration reflected what Ms Webb described as the precarious nature of funding from Job Active providers and that such providers only contracted with PWCI for six months at a time.16 Ms Webb noted that half way through the current projects, PWCI would know whether they would be receiving a new contract from their Job Active providers, and at this time PWCI would hold discussions with relevant staff.17

[11] Attached to the email dated 13 September 2019 was a table titled ‘Level Up Restructure September 2019’. Various positions were referred to in the table, with their associated location, number of potential participants and the employment contract length for each. Under the heading ‘Contract End Date’ was a notation, which read, ‘[P]lease note that employment contracts will be aligned, as discussed, to Job Active Provider Contract End dates’. 18 Ms Williams gave evidence to the effect that she had read the email dated 13 September 2019 and had looked at the table to ascertain the positions that suited.

[12] By letter dated 18 September 2019, Ms Williams informed Mr Twynham that she was applying for the position of Activity Facilitator at the Mandurah super site, and her preferred activity was Homeless Support/Tools and Design, Fabric and Design or Creation and Textiles. Ms Williams set out in the letter the reasons why she would be suited to the positions, and that her current workdays were Monday to Thursday from 9.00am to 4.00pm. Attached to Ms Williams letter was her curriculum vitae.

[13] In her witness statement, Ms Williams explained that she received little communication from Mr Twynham about the restructure, 19 and that she was very confused about the changes.20

[14] Ms Williams stated that on 7 October 2019, she received an email from Ms Webb which included further employment contracts detailing the new position. 21

[15] On 23 October 2019, Ms Williams signed an employment contract for the position of ‘Activities Facilitator (A)’ with the ‘Contract date’ stated to be ‘22/10/19-22/1/20’. 22 The basis of the employment was said to be part-time two days a week. A further contract was signed on 23 October 2019 for the position of ‘Activities Facilitator (B)’, which again stated that the ‘Contract date’ was ‘22/10/19-12/1/20’.23

[16] The two aforementioned employment contracts detailed ‘[H]ow can the Employee’s employment terminate?’. This clause set out that an employee’s employment terminates if they resign by giving notice, PWCI terminated their employment by giving notice, or they were summarily dismissed because PWCI believed they had engaged in ‘Serious Misconduct’ (which was defined). The notice period was to be in accordance with the National Employment Standards.

[17] Ms Williams’ evidence was that she did not recall being informed orally or in writing that her employment contract of 16 October 2018 was being terminated and replaced. 24 Her belief was that she was still on that permanent part-time contract.25

[18] Ms Williams gave evidence that on or around 16 December 2019, she was informed by a colleague to apply for the Activity Facilitator’s position which had become available on Wednesday and Thursdays. However, having applied for the job, she did not receive any feedback. 26

[19] Regarding discussions about whether her contract was to be renewed or not, Ms Williams stated that she did not recall any such discussions being held. 27 However, at hearing when asked why she had called Ms Webb in mid-January about it, Ms Williams evidence was that she was enquiring to ascertain whether PWCI was continuing Level Up and whether there were going to be any new contract. She said that she phoned to find out what had to be done because she was ‘terminated,’ and that Ms Webb informed her to contact Mr Twynham.

[20] Ms Williams said that on 22 January 2020 she sent Mr Twynham an email stating ‘[C]ould you please advise regarding tomorrow’. Ms Williams copied Ms Barlow to the email. 28

[21] By email of 22 January 2020, Ms Barlow informed Ms Williams that her Level Up contract finished on that day, thanked her for her services and stated ‘[A]t this stage we do not have another contract to offer you which means your employment ends at close of business today. I have attached a letter confirming this’. 29 Ms Williams replied by email dated 22 January 2020, ‘Hi Vanessa Thank you for the confirmation. It was a pleasure working for People Who Care’.30

[22] It was Ms Williams’ evidence that she did not recall being informed prior to the program ending on 22 January 2020 that her employment contract was also ending on that day. 31

LEGISLATIVE FRAMEWORK AND LEGAL PRINCIPLES

Dismissal

[23] There are two jurisdictional issues that arise in this matter. However, if Ms Williams was not dismissed, then the second issue of whether she had completed the minimum employment period, becomes irrelevant.

Turning first to whether Ms Williams was dismissed, the Act sets out when a person has been unfairly dismissed in s.385. That section states:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)  the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[24] The meaning attributed to the word ‘dismissed’ can be found at s.386:

386 Meaning of dismissed

(1)  A person has been dismissed if:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2)  However, a person has not been dismissed if:

(a)  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, on completion of the task, or at the end of the season; or

(b)  the person was an employee:

(i)  to whom a training arrangement applied; and

(ii)  whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement; and the employment has terminated at the end of the training arrangement; or

(c)  the person was demoted in employment but:

(i)  the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii)  he or she remains employed with the employer that effected the demotion.

(3)  Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

[25] Section 386(2)(a) embodies the exclusion that if the employee was employed under a contract of employment for a specified period of time and the employment has terminated at the end of that period, then the employee has not been dismissed. 32 The majority of the Full Bench in Khayam v Navitas English Pty Ltd t/a Navitas English33 (Navitas) provided a lengthy exegesis regarding the interpretation of the expression ‘employee engaged under a contract of employment for a specified period of time’ and arrived at the position that the expression does not refer to a time limited contract which includes ‘an unqualified right of termination’ prior to its expiry.34

Consideration

[26] Before considering whether Ms Williams’ employment was terminated at the initiative of PWCI, it is logical to first consider whether the exclusion in s 386(2)(a) applies.

[27] It is evident from Navitas, that to be a ‘contract of employment for a specified period of time’ the contract is either a maximum term or outer limit contract (should the terms not be synonymous) and is absent the distinguishing feature of an unqualified right to terminate the employment prior to the end date of the contract. An outer limit contract can perhaps possess a termination clause and still remain ‘a contract of employment for a specified period of time’, but to attract the operation of s 386(2)(a) the right to terminate is for a breach rather than unqualified.

[28] With that in mind the two employment contracts of Ms Williams dated 23 October 2019, provide that an employee’s employment terminates if PWCI terminates ‘their employment by giving notice’ – it appears to be an unqualified right. On that basis, while I am satisfied that Ms Williams was employed on an outer limit contract, the contract was not for a specified period of time and therefore the exclusion in s 382(2)(a) does not apply.

[29] It was submitted on behalf of Ms Williams that her employment had not ended in mid-September when the restructure occurred, and all roles were ‘filled and spilled’. It was Ms Williams’ view that her part-time position persisted as provided for in her employment contract of 16 October 2018. This is the case notwithstanding that she signed two outer limit contracts on 23 October 2019. One contract provided an end date of 12 January 2020 and the second, 22 January 2020. Ms Williams’ view was that it was the projects that were ending on those days and not her employment. Ms Williams gave evidence at hearing that, previously, when projects ended her work would continue such that she would prepare for the next project or do some tidying. This aspect of Ms Williams’ evidence was uncontroversial.

[30] Ms Webb gave evidence that before the restructure all front-line staff were on permanent part-time contracts. At times there was a lag between the last project and the Job Active providers delivering a new contract (project), and therefore the funding. PWCI would carry the cost, which, said Ms Webb at hearing, had ultimately led to a shortfall of money. Consequently, to reduce costs, management staff numbers were reduced by redundancies and front line staff were kept. However, because the front line staff were on permanent part-time contracts, and at the end of a project they would be idle when there was no further project work, PWCI decided to place the employees on fixed term contracts that aligned with project dates.

[31] At the hearing, Ms Webb stated to the effect that the restructure in September 2019 had been driven by the need to ensure PWCI and the Level Up program remained financially viable and sustainable. Ms Webb continued that to implement what PWCI considered a fair process, all roles were ‘filled and spilled’.

[32] At hearing, Ms Williams admitted that she read the email from Ms Webb dated 13 September 2019 and having considered it and the attached table, she applied for the two positions. Direct evidence was produced of the terms of the outer limit contracts and Ms Williams’ acceptance of the same.

[33] Ms Williams performed her work and was paid in accordance with those outer limit contracts, until the arrival of the respective dates of 12 January 2020 and 22 January 2020. While Ms Williams and Ms Webb noted that entitlements from the previous period of employment under the contract of 16 October 2018 carried over, I am unpersuaded this point supports a finding that Ms Williams’ part-time contract persisted, notwithstanding the new employment contracts with stipulated completion dates of 12 January 2020 and 22 January 2020. The evidence at hearing was that as of 12 January 2020, the performance of work under that particular contract ceased in accordance with the finish date. Ms Williams worked the remaining week(s) working only the two days in accordance with the contract, with a finish date of 22 January 2020.

[34] Having considered, at length, the case law regarding the interpretation of s 386(1)(a), the majority in Navitas provided an exposition of how s 386(1)(a) should be interpreted and applied. While I have not repeated that exposition at length, relevant to the case before me now are the following passages:

(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employer. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:

•  the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;

•  the employee entered into the contract as a result of a serious mistake about its contents or subject matter;

•  there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;

•  the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;

•  the employee lacked the legal capacity to make the contract; or

•  the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).

(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).

(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).

(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher).

(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).

[35] Expanding upon paragraph 75 of Navitas, at subparagraph 5(e) in Fisher v Edith Cowan University (No.2) 35 (Fisher) the Full Court of the Industrial Relations Court of Australia stated:

If an industrial dispute has been in part resolved by an award made under, and given force by, the Act and the award prescribes the minimum conditions to apply in an employment relationship and regulates or prevents the use of fixed-term employment contracts, the provisions of that award would be part of the material on which a finding of fact may be made that an employment relationship exists beyond the term fixed by an employment contract made between an employer and an employee bound by the award. (See Byrne per Brennan CJ, Dawson, Toohey JJ at 442.) In such a case the statutory remedies provided by Div 3 would apply to a termination of an employment relationship governed by the award, if the termination is effected by reliance by the employer, contrary to the terms of the award, on the expiration of the period for employment specified in the contract as the occurrence that has terminated the employment relationship. In such a circumstance the employee would not be restricted to the remedies provided by the Act for the breach of an award, it being clear in its terms that Div 3 provides a right to apply for a remedy in such a circumstance.

[36] As was the case in Fisher, it was not submitted that the use of an outer limit employment contract between Ms Williams and PWCI was controlled or prevented by the provisions of the Award. Nevertheless, the point requires further consideration. The Award in question provides for three categories of employment – full-time, part-time or casual. Unlike circumstances where an award specifically precludes or limits a type or basis of employment, this is not the case here. For example, the Black Coal Mining Industry Award 2010 at cl 10.1(c) permits employment on a casual basis only for ‘Staff Employees’.

[37] There is limited reference in the Award to the underpinning contractual arrangement between the employer and employee. For example, whether the contract is an outer limit contract, fixed-term, or maximum term. The Award provides, at cl 10.3, for part-time employment, noting at cl 10.3(c) that before the commencement of employment, the employer and employee will agree in writing on the regular work pattern (inclusive of the number of hours) and days of the week. At cl 10.3(e) it provides that the agreement pursuant to cl 10.3(c) may be ‘ongoing or for a specified period of time’. With the exception of this reference to ‘ongoing’ or ‘specified period of time’, the Award is silent on whether an employee can be employed on a full-time or part-time employment basis pursuant to an outer limit contract rather than a permanent contract.

[38] Having considered the terms of the Award, it is neither explicit nor implicit that the Award regulates or prevents the use of an outer limit employment. The reference to a contract for a ‘specified period of time’, perhaps adds weight to the contention that the Award contemplates time limits around the contractual period.

[39] In the circumstances before me, and having considered the Award and those factors referred to in Navitas at paragraph 75, I find that the outer limit contract reflected a genuine agreement on the part of PWCI and Ms Williams that the employment relationship would not continue after the specified date of 22 January 2020.

[40] While Ms Williams referred to being confused about the changes arising from the restructure, when one considers the correspondence provided to Ms Williams, her actions of applying for the two positions, her acceptance of the offers by both signature and conduct, there is insufficient evidence to show that such purported confusion constituted a factor that negated genuine agreement. The communication to Ms Williams was unequivocal in its terms; it was evident that all positions in the Level Up program had been spilled and persons would now have to apply for positions that were available for a fixed period.

Conclusion

[41] In light of the above, I find that the employment relationship was terminated by reason of the agreement between the parties and there was no termination at the initiative of the employer. I also find that one of Ms Williams’ contracts had an end date of 22 January 2020 and her employment ended when that outer limit contract reached its end date. For these reasons Ms Williams was not dismissed. Therefore, she is not protected from unfair dismissal. The Commission does not have jurisdiction to deal with her application and it follows that the application is dismissed. An Order to this effect will be issued in conjunction with this decision. 36

DEPUTY PRESIDENT

Appearances:

N Irvine of Workplace Negotiations (WA) for the applicant.
P Webb for the respondent.

Hearing details:

2020.
Perth (by video):
May 15.

Printed by authority of the Commonwealth Government Printer

<PR719323>

 1 Applicant’s Submissions [1].

 2 Ibid [2].

 3   Witness Statement Ms Iris Williams (Williams Statement) (Exhibit A1) [7] – [8].

 4 Ibid [6].

 5 Ibid [11].

 6   Ibid [13] – [14].

 7 Ibid [15].

 8 Ibid [18].

 9 Ibid [21].

 10 Ibid [23].

 11   Exhibit R2 Annexure R6.

 12   Ibid.

 13   Ibid.

 14   Ibid.

 15   Ibid.

 16   Ibid.

 17   Ibid.

 18   Exhibit A2, Annexure A6.

 19 Williams Statement [37].

 20 Ibid [35].

 21 Ibid [47].

 22   Exhibit R2, Annexure R2.

 23   Exhibit R2, Annexure R1.

 24 Williams Statement [41].

 25 Ibid [42].

 26 Ibid [56].

 27 Ibid [64].

 28 Ibid [68].

 29   Exhibit R2, Annexure R13/Appendix I

 30   Exhibit R2, Annexure R14/Appendix H

 31 Williams Statement [71].

 32   [2017] FWCFB 5162 [147].

 33   Ibid.

 34 Ibid [87].

 35 (1997) 72 IR 464.

 36   PR719750.