James Bland v MPower Projects Pty Ltd

[2021] FWC 1406

[2021] FWC 1406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

James Bland
v
MPower Projects Pty Ltd
(C2020/8213)

COMMISSIONER HAMPTON ADELAIDE, 25 MARCH 2021

General protections application to deal with alleged contraventions involving dismissal – jurisdictional objection – alleged no dismissal within the meaning of the Act – “casual” employee – employment based upon project – employment and contract terminated by direct decision of the employer – dismissal found – jurisdiction exists – further conference to be conducted.

1. What this decision is about

[1] Mr James Bland has made an application under s.365 of the Fair Work Act 2009 (the Act) seeking to advance a general protections application involving an alleged dismissal. Mr Bland was engaged by MPower Projects Pty Ltd (MPower), the Respondent in this matter, as a Leading Hand Electrical/Construction Site Supervisor at the Respondent’s Copper Coast Highway Solar Farm (Copper Coast project) and the Agery Road Kadina Solar Farm (Agery Road project) located on the Yorke Peninsula in South Australia (collectively the 2020 Solar farm projects). Mr Bland was employed on the 2020 Solar farm projects between 24 February and 16 October 2020.

[2] On 16 October 2020, MPower notified 1 Mr Bland that “his employment will terminate effective today …”.

[3] The s.365 application requires, amongst other matters, that there be a dismissal within the meaning of the Act. Mr Bland contends that he was dismissed from his employment at the initiative of MPower.

[4] MPower contends that Mr Bland was not relevantly dismissed. In effect, the Respondent posits that there is a difference in this case between an employment contract and the employment relationship, and that it is the second notion that is relevant here. Further, it contends that the employment relationship remained on foot despite its decision to conclude the employment contract, on account of it retaining Mr Bland on the books for further projects that may arise.

[5] Given the nature of the objection and the Commission’s present role, I have not dealt with the substance of the s.365 application or the merit or otherwise of the decision by MPower not to offer further work to Mr Bland on the 2020 Solar farm projects.

[6] I have conducted a hearing to deal with the dispute about the existence of a dismissal and both parties provided evidence and supporting submissions.

[7] I have ultimately determined that Mr Bland was dismissed within the meaning of the Act. I have found that the employment contract and relationship came to an end by virtue of the decision communicated to Mr Bland on 16 October 2020. The reasons for my conclusion are set out below and the consequences of this finding are confirmed at the end of this decision.

2. What is a dismissal and why is it important to the application?

[8] Section 365 of the Act provides as follows:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

[9] The Commission’s role with respect to an application of this kind under s.368 of the Act includes to:

•  Conduct a conference for the purposes of dealing with the dispute (other than by arbitration) – s.368(1) and (2); and

•  If satisfied that all reasonable steps to resolve the dispute (other than by arbitration) have been, or are likely to be unsuccessful – issue a (certificate) confirming this – s.368(3).

[10] A s.368(3) certificate is necessary for this application to proceed to the Court for determination 2 or the Commission for consent arbitration.3

[11] A Full Court of the Federal Court 4 has determined that in a s.365 matter, the Commission must (where the respondent employer has raised an objection of the nature present here) decide whether the jurisdiction exists for it to conduct a conference and issue a certificate as contemplated by s.368 of the Act. That is, in this case, I need to determine whether Mr Bland has been dismissed.

[12] The meaning of ‘dismissed’ is provided at s.386 of the Act:

“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.”

[13] Section 386 is found in Part 3-2 Unfair Dismissal of the Act. “Dismissed” for the purposes of the Act more generally is defined in s.12 by reference to s.386 and the provisions of s.386 have been applied by the Courts 5 to s.365 General Protections matters. I have followed that approach.

[14] I will return to the application of these provisions and concepts in light of the propositions advanced by the parties and the circumstances as I have found them to be.

3. The propositions advanced by the parties

3.1 MPower

[15] MPower’s primary contention is that Mr Bland’s “employment contract” was dismissed or terminated but not the “employment relationship” and MPower by its actions did not intend to bring the employment relationship to an end.

[16] The basis for the proposition is as follows:

•  The nature of the Respondent’s business was such that project-by-project engagements were usual and expected. Also, the duration and tasks relating to each engagement change from time to time depending on the nature of the project and the dynamics of design and construction projects.

•  Mr Bland had previously worked for the Respondent on a previous project.

•  There was a period of time between the end of the Contractor Agreement relating to the previous project and the commencement of the employment contract relating to the Follow-on Projects during which Mr Bland remained ‘on the books’ of the Respondent.

•  The employment contract was terminated because construction of the 2020 Solar farm projects had progressed to a point where Mr Bland was no longer required. This was consistent with the termination of the earlier Contractor Agreement in relation to the earlier project.

•  Mr Bland was aware that the duration of his employment contract was linked to the progress of the projects in the same way that his earlier engagement was linked to the progress of the earlier project.

•  Mr Bland had no guarantee of a minimum duration during which the employment contract would continue. The Applicant was employed as a casual employee, reflecting the need for flexibility in project-based work to take into account the changing dynamics of the project.

•  At the time the employment contract was terminated, it was the Respondent’s expectation that Mr Bland may be offered an engagement again for future projects. That is, the Applicant remained ‘on the books’ of the Respondent.

•  The letter terminating the employment contract states that the Respondent “will keep your details on file for the next site solar project”.

[17] In terms of the operation of s.386 of the Act, MPower contends:

•  For a person to have been dismissed within the meaning of s.386 of the Act, the condition in either s.386(1)(a) or (b) must be met. The drafting of s.386 of the Act is such that the list of conditions is exhaustive. Accordingly, a proper construction of the section requires that one of the conditions in s.386(1)(a) or (b) must be met in order for a person to have been dismissed.

•  Section 386(1)(b) is not relevant to the circumstances of this case and the Applicant has not advanced any argument to suggest the Applicant was forced to resign. Accordingly, in order for Mr Bland to successfully argue that he was dismissed, the Applicant must demonstrate that the only remaining condition in s.386(1)(a) has been met, namely that his employment with the Respondent was terminated on the employer’s initiative.

•  MPower contends that Mr Bland’s employment with it was not terminated on the employer’s initiative. Further, the Respondent contends that it was the employment contract on foot at that time between the Applicant and the Respondent that was terminated, not the employment relationship.

•  The focus on the employment relationship, and not the employment contract, was considered and confirmed in Khayam v Navitas English Pty Ltd t/a Navitas English (Navitas). 6

[18] Ms Margaret Fittler, Head of Human Resources for the MPower Group of companies, gave sworn evidence in support of the Respondent’s case. Documentary evidence, which was not in dispute, was also tendered.

[19] In summary, MPower contends that there has been no termination of employment at the initiative of the employer such as to give the Commission jurisdiction in this matter.

3.2 Mr Bland

[20] Mr Bland’s fundamental contention is that he was dismissed within the meaning of the Act and that the application is properly made and before the Commission. The basis of that approach is as follows:

•  He was employed under an employment contract dated 19 February 2020 and signed by him on 21 February 2020 ("the employment contract").

•  Following execution of the employment contract, he commenced employment for MPower in the position of Leading Hand Electrical/Construction Supervisor at the Respondent's 2020 Solar Farm projects on 24 February 2020.

•  Under the employment contract, he performed duties for the Respondent and received payment from the Respondent in consideration of his performance of those duties.

•  Prior to 16 October 2020, he expected to continue to perform duties and receive payments under the employment contract until about February of 2021.

•  On 16 October 2020, he was notified by MPower that his employment was being terminated effective immediately.

•  Notwithstanding the termination of his employment, he remained ready, willing and able to perform duties for the Respondent under the employment contract.

•  But for the termination of his employment by MPower, he would have continued to perform duties for the Respondent under the employment contract.

•  Following the termination of his employment, he was not offered and has not performed duties for MPower. Nor has he received any income from the Respondent (other than the termination payment in respect of work performed prior to 16 October 2020 and a site allowance expressed by the Respondent to have been paid as a "good will gesture").

•  As a consequence of the termination of his employment, Mr Bland has:

•  sought and obtained employment with a new employer; and

•  lodged this s.365 Application with the Commission seeking reinstatement of his employment and/or compensation.

[21] Mr Bland also relied upon the decision in Navitas 7 to confirm that he was not in a “state of being employed” by MPower as a result of the termination of his contract.

[22] Mr Bland gave sworn evidence 8 in support of the facts relied upon in his case.

4. The facts based upon the evidence before the Commission

[23] There are some factual disputes between the parties and I have determined those that are relevant to the disposition of this matter having regard to the oral and documentary evidence.

[24] I accept that both witnesses attempted to assist the Commission by accurately recounting their recollections and circumstances. In particular, I found that Mr Bland was open in his evidence and made appropriate concessions. In relation to the disputed mid-project conversations between Mr Bland and Ms Fittler about the length of employment on the 2020 Solar farm projects, on balance I prefer the evidence of Mr Bland given his clearer recall and the fact that he took actions based upon his understanding of the outcome. However, as will become clear, I find that no enforceable guarantees were provided by MPower, and ultimately, this aspect is not fundamental to the resolution of this particular matter.

[25] The broader context and events leading to the conclusion of the employment were as follows.

[26] MPower is a business unit inside the larger MPower Group of companies. It designs and constructs renewable and conventional power systems including solar farms. MPower is a project-based business. Each project has a Project Manager employed (or engaged) by MPower who oversees each project on a day to day basis including working with Ms Fittler in relation to the engagement and management of staff including electrical trades, construction labourers, trades assistants and leading hands.

[27] Mr Bland was first engaged to perform services for MPower on 30 July 2019 in relation to the Respondent's solar farm project at Mannum in South Australia (Mannum project). This engagement was undertaken in the form of what both parties understood to be an independent contractor relationship with the terms being confirmed in a written contract. 9

[28] Mr Bland was engaged on the Mannum project as a Leading Hand Electrical/Construction Supervisor. In that capacity, his role included being required to control and manage contractors, run toolbox meetings, liaise with management, monitor the works, monitor safety, file daily and weekly reports, procure parts and also undertake some electrical and civil work.

[29] Mr Bland joined the Mannum project halfway through its completion and remained until its conclusion in or about December 2019. This included being involved in cleaning up the remnants of construction, including the removal of buildings.

[30] Following completion of the Mannum project, Mr Bland had discussions with MPower’s General Manager, Mr Ryan Scott, in relation to a potential further engagement on what became the 2020 Solar farm projects. In mid-February 2020, Mr Bland was offered and accepted an engagement as an employee in what the parties described as casual employment. The position was that of Leading Hand Electrical/Construction Supervisor and the offer of employment was put in in the following terms:

“… …

RE: OFFER OF CASUAL EMPLOYMENT

Dear Jim

I am delighted to confirm our offer of casual employment in the position of Leading Hand Electrical/Construction Supervisor, Copper Coast Highway & 149 Agery Road Solar Farm, South Australia with MPower Projects Pty Limited

… …  10”

[31] The terms of that engagement were set out in a written employment contract. 11 Those terms included:

“… …

3. POSITION

You will be employed in the position of Leading Hand Electrical/Construction Supervisor, Copper Coast Highway & 149 Agery Road Solar Farm, South Australia on a casual basis.

We may vary your duties and responsibilities from time to time in accordance with operational requirements.

4. REPORTING RELATIONSHIP

You will initially report to Pamesh Chand, Project Manager however we may vary your reporting relationships from time to time in accordance with operational requirements.

5. LOCATION

You will be based at the project sites 1074 Copper Coast Highway & 149 Agery Road Solar Farm, South Australia

6. START DATE

Your casual employment will commence on Monday 24th February 2020.

7. HOURS OF WORK

As a casual employee you are employed to work on an as needed basis and as such your hours of work will vary from week to week.

Currently, your hours of work are 10 hours per day, 6 days a week from Monday to Saturday on site.

8. REMUNERATION

Your hourly remuneration comprises:

a) $700.00.00 per day plus a $200.00 per day for any and all additional expenses Incurred, inclusive of accommodation, travel, food, etc.

b) A superannuation contribution that is in accordance with minimum statutory requirements. You may nominate a particular complying fund into which you would like your contributions to be made, by completing a Standard Choice Form.

You are to submit a timesheet each fortnight to Human Resources. The next timesheet is due by close of business on Tuesday 3rd March 2020 and then on a two-weekly basis. Payroll period is from Wednesday to the following Tuesday. If you are unsure of any of these details, please contact Human Resource for clarification.

9. PAY PERIOD.

Your pay period will be fortnightly (however we reserve the right to amend this frequency, by providing you notice in writing) and your salary will be paid to the bank account of your choice.

10. YOUR OBLIGATIONS

During your employment you must:

•  Diligently perform the duties and responsibilities that we assign to you;

•  Assume and properly exercise the delegated authorities vested in or assigned to you by us;

•  Devote the whole of your time during working hours to our business;

•  Use your best endeavours to promote our interests and welfare at all times;

•  Refrain from acting, or being seen to act, in conflict with our best interests;

•  Comply with all lawful and reasonable directions given to you from time to time by an authorised person on behalf of us;

•  Hold and maintain all appropriate licenses relevant to undertaking your position; and

•  Work solely for us and not for any other person or entity without our knowledge and written consent.

11. EMPLOYEE NOTIFICATION

You will notify MPower, as soon as reasonably possible, of any decision to commence work for an employer where such new employer may reasonably be considered a competitor to the MPower or any Client of MPower. A competitor to MPower or any Client of MPower shall be any organisation or body which currently provides, or is proposing to provide, the same product or services as MPower or Client of MPower

… …

13. ENDING YOUR EMPLOYMENT

As there is no ongoing commitment of employment, casual engagement with us may be terminated by either you or us at any time for any reason.

Your casual engagement may be terminated without notice or payment in lieu of notice, if you:

•  Commit any serious or persistent breach of any of the provisions of your Employment Agreement;

•  Wilfully neglect the discharge of your responsibilities;

•  Are convicted of any criminal offence other than an offence which, in the reasonable opinion of your employer, does not affect your position as an employee;

•  Refuse to obey and comply with any reasonable and lawful direction or policy of your employer;

•  Engage in any conduct which is likely to cause damage to our reputation;

•  Are found to have misrepresented either your qualifications or any information on which we have relied in deciding to employ you; or

•  Otherwise engage in serious misconduct and/or conduct warranting summary dismissal at common law.

Upon termination of your employment, for any reason, you:

•  Will be entitled to receive any accrued but unpaid remuneration and any other accrued but unpaid or untaken entitlements;

•  Must pay or repay to us all sums which you owe us, sign any authorisation required, and do all other things necessary to enable us to deduct these amounts from your final payout;

•  Shall immediately deliver to us, in good working order, all property belonging to us which is in your possession; and

•  Must continue to comply with your obligations of confidentiality to us as set out in the Confidentiality section of the Guide to Employment.

Your obligations as set out in this Employment Agreement continue to apply during the notice period.

… … “

[32] I observe that some elements of this arrangement may not sit comfortably with the notion of causal employment; 12 however, I have dealt with this matter on that basis, consistent with the positions of both parties. It is evident that Mr Bland worked regular and significant hours under the employment contract.

[33] The nature of Mr Bland’s duties largely reflected those set out above in relation to the Mannum project. 13

[34] Mr Bland signed the casual employment contract on 21 February 2020 and he commenced work on the 2020 Solar farm projects on 24 February 2020.

[35] Mr Bland performed duties under the employment contract and was paid remuneration in consideration of his performance of those duties.

[36] There is some tension between the parties as to the expectation of continuing engagement on the 2020 Solar farm projects reasonably held by Mr Bland. I do not consider that he was given any enforceable guarantees by MPower of employment until the cessation of the projects. However, he would have had some reasonable expectation of such given the nature of his role, the stated extension of the projects (due to COVID-19 related delays), and his previous experience on the Mannum project. More relevantly for this matter, what is clear from the evidence is that Mr Bland had an objectively justified expectation that his employment on the 2020 Solar farm projects would have continued until such time as he was informed that the employment would conclude. The subsequent actions of MPower to expressly terminate Mr Bland’s employment were also consistent with that understanding.

[37] On 16 October 2020, Mr Bland was notified by MPower that his employment was being terminated effective immediately. This was subsequently confirmed in writing by Ms Fittler in the following terms:

“… …

TERMINATION OF CASUAL EMPLOYMENT

Dear Jim

The projects at Copper Coast and Agery Road have now reached a stage where the MPower staffing requirements need to be reassessed.

As you know these projects were originally scheduled to be completed by the end of September and the delays caused by the COVID pandemic have resulted in a significant extension of the construction schedule. These delays have placed considerable financial pressure on these projects and as such we must make some difficult decisions.

As per the conditions of your Casual Employment Contract, dated 19 February 2020, MPower is notifying you in writing your employment will terminate effective today 16 October 2020.

MPower will pay your final payment within 5 working days and as a good will gesture, in recognition of your work and commitment, will pay you an additional one (1) week site allowance of $200.00 per day.

Jim, we thank you for your valuable contribution during your casual employment with MPower Projects and will keep your details on file for the next site solar project. Wishing you all the best.

… …” 14

[38] It is also clear on the evidence that Mr Bland remained ready, willing and able to perform duties for MPower under the employment contract and the termination meant that he ceased work on the 2020 Solar farm projects on 16 October 2020

[39] Following the termination, Mr Bland was not offered, and has not performed, duties for MPower. He has also not been paid by MPower for any work beyond that performed under the employment contract concerning the 2020 Solar form projects. The 2020 Solar farm projects continued beyond 16 October 2020. There is no evidence that a replacement Leading Hand Electrical/Construction Supervisor was engaged by MPower on those projects.

[40] Mr Bland sought and subsequently obtained employment with a new employer in the same industry.

[41] Although there is no direct evidence about this, I am prepared to accept for present purposes that MPower retains a payroll number and contact details for Mr Bland in its HR system and had committed to looking out for future employment opportunities for the Applicant.

5. Was Mr Bland dismissed?

[42] It is appropriate to commence this discussion with the operation of s.386(1) of the Act. Relevantly, this involves a consideration as to whether Mr Bland’s employment with his employer (MPower) has been terminated on the employer’s initiative (s.386(1)(a)). There is no suggestion that the resignation provision of s.386(1)(b), or the “exclusions” in s.386(2), apply.

[43] The Full Bench in Navitas comprehensively considered the operation of s.386(1). The decision deals fundamentally with the notion of fixed or outer-limit contracts and there is no suggestion here that the employment contract was of that nature. However, Navitas provides some important analysis of the operation of s.386(1) more generally and provides the context for the notions relied upon by the Respondent in this matter. The majority, 15 after considering the import of previous decisions, the various statutory contexts and the impact of the inclusion of casual employees within the scope of the unfair dismissal jurisdiction, summarised the approach in the following terms:

“[75] Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:

(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is 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.

(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.

(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 employment. 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 jurisdiction82). 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).” (footnotes omitted)

[44] Given the basis upon which MPower has advanced its jurisdictional objection, and Mr Bland’s particular reference to Navitas in response, it is also appropriate to consider the full useful summary of the potential distinction between the employment relationship and the contract of employment provided by Colman DP in that decision as follows:

“… …

[115] The ‘employment relationship’ is a relationship of employment: it is not simply any relationship that has some connection to employment. ‘Employment’ means the ‘state of being employed’ or the ‘state of having paid work’. The employment relationship is formed and substantially governed by the contract of employment. It may also be affected by statute and industrial instruments such as awards and enterprise agreements. It is useful to consider how the distinction between the employment relationship and the contract of employment can manifest itself in circumstances of termination of employment.

[116] Commonly, the contract of employment and the employment relationship will end at the same time as one another, and in the same manner, either at the initiative of the employer or the employee, or by agreement. As the Full Court of the Industrial Relations Court noted in Brackenridge v Toyota Motor Corporation Australia Limited, ordinarily the conceptual difference between the contract of employment and the employment relationship does not matter; dismissal will ordinarily terminate both the particular contract of employment and the employment relationship.

[117] A second, not uncommon situation is where the employment relationship ends, but the contract of employment endures. This is what can occur in cases of wrongful dismissal, where the employment ends, but the employee does not accept repudiation of the contract, and it remains in existence. The High Court decisions in Automatic Fire Sprinklers, Byrne and Frew, Barker and Visscher contemplate this situation.

[118] A third theoretical postulation might be that the contract of employment ends but the employment relationship continues. Lunn was quite clear that ‘there can be no employment relationship without there also being a contract of employment in existence between the parties to the employment relationship’. It is very difficult to see how the employment relationship could exist in a contractual void. There might be rare cases where statute deems employment to survive the termination of the contract of employment. But even here there is likely to be some form of implied contractual foundation to the ongoing relationship.”

(footnotes omitted).

[45] MPower has also faintly raised the notion in submissions that it did not “intend” to terminate the employment relationship. In O’Meara v Stanley Works Pty Ltd 16the Full Bench of the Commission was dealing with the notion of intention to terminate in the context of a forced resignation case. After citing Mohazab,17which is also relied upon in Navitas, the Commission stated:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment. … … .”

(references omitted)

[46] As a result, the termination will be at the employer's initiative when the employer's action 'directly and consequentially' results in the termination of employment, and had the employer not taken this action, the employee would have remained employed. Further, there must be action by the employer that either intends to bring the relationship to an end or has that probable result.

[47] The question of whether the act of an employer results 'directly or consequentially' in the termination of employment is an important consideration but it is not the only consideration. It is important to examine all of the circumstances including the conduct of the employer and the employee.

[48] Consistent with the authorities, I accept MPower’s proposition that it is the claimed termination of Mr Bland’s employment relationship with it, and not necessarily the termination of the employment contract, that is relevant to the immediate issue. However, for reasons that follow, I find that the employment relationship was terminated by MPower on 16 October 2020.

[49] Given my findings in this matter, it is clear that although there were 2 engagements between the parties, each of these engagements was in a different form and for different and specific projects. Mr Bland’s engagement as an employee for the 2020 Solar form projects was specifically for that work and I consider that this formed the basis of both the contract and the employment relationship.

[50] The termination on 16 October 2020 was expressly stated by MPower in the written confirmation 18 to be the termination of Mr Bland’s employment and I find that this accurately represented the effect of that decision. That is, it took an action (the termination) that had the stated and actual effect of concluding the employment relationship between the parties.

[51] I would accept that there may be circumstances where an irregularly hired casual employee my remain on the books of the employer for future work and not be dismissed, despite the absence of actual work for a short period. However, this requires an assessment of the actual nature of the employment and whether an action has been taken by the employer to conclude that employment. The Respondent’s reliance on this notion is not the reality or effect of what has occurred in this matter.

[52] That is, despite the fact that Mr Bland may have in some sense remained on the books of MPower and could be approached for future Solar farm projects if and when they arise, there is absolutely no proper basis for a suggestion of any relevant ongoing employment relationship, commitment, obligation 19 or enforceable expectations between the parties. There was only a potential opportunity for further work that was completely inconsistent with the actual nature of the extant employment. The only employment relationship between the parties was reflected in the contract of employment and there was simply no employment relationship between these parties after the termination on 16 October 2020.

[53] MPower dismissed Mr Bland at its initiative, and terminated his employment, on 16 October 2020.

6. Conclusions and consequences

[54] Given my findings, Mr Bland has been dismissed within the meaning of the Act. As a result, there is jurisdiction for the Commission to convene a conference in this General Protections matter and, if satisfied that all reasonable attempts to resolve the matter have been, or are likely to be unsuccessful, issue the certificate as contemplated by s.368(3) of the Act. Although there has been an earlier conference in this matter, I cannot be satisfied that there are presently no prospects of a resolution given that the finding of a dismissal in this decision may have significantly changed the basis upon which the earlier conference was conducted.

[55] As a result, I will convene a further (conciliation) conference with the parties to explore the resolution of the matter. A notice of listing will shortly be provided to the parties.

COMMISSIONER

Appearances:

D Collett, of Johnston Withers Solicitors, with permission for Mr Bland, the Applicant.

R Scott and M Fittler on behalf of MPower Projects Pty Ltd, the Respondent.

Hearing details:

2021
March 17
By Video Hearing.

Printed by authority of the Commonwealth Government Printer

<PR727802>

 1   Exhibit R3.

 2   Section 370(a) of the Act.

 3   Section 369(1)(a) of the Act.

 4   Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68].

 5   Coles Supply Chain v Milford (2020) 300 IR 146; Fair Work Ombudsman v Austrend International (2018) 273 IR 439 amongst many other examples. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589 at [116] and [117].

 6   [2017] FWCFB 5162 at [75].

 7 At [115].

 8   In addition to a Statutory Declaration – exhibit A1.

 9   Exhibit R1.

 10   Exhibit R2.

 11   Exhibit R2.

 12   As envisaged by the Full Court of the Federal Court in WorkPac Pty Ltd v Rossato [2020] FCAFC 84.

 13   Exhibit R4.

 14   Exhibit R3.

 15   Although reaching a different conclusion on the disposition of the appeal, Colman DP took a similar approach to the operation of s.386(1) – see paras [120] to [122] and [128] to [129].

 16   (2006) 58 AILR 100.

 17   Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200.

 18   Exhibit R3.

 19   There may have been confidentiality, intellectual property and record keeping type obligations that continue beyond employment, but these are not relevant to the immediate issue.