Jason Bosley v Kosciuszko Thredbo Pty Ltd

[2017] FWC 3763

[2017] FWC 3763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Bosley
v
Kosciuszko Thredbo Pty Ltd
(U2017/260)

DEPUTY PRESIDENT KOVACIC CANBERRA, 18 JULY 2017

Application for relief from unfair dismissal – Applicant not dismissed – application dismissed.

[1] Mr Jason Bosley (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 9 January 2017 alleging that his employment had been terminated by Kosciuszko Thredbo Pty Ltd (the Respondent) on 20 December 2016 and that his dismissal was unfair.

[2] The Respondent in its Form F3 – Employer Response to Unfair Dismissal Application raised a jurisdictional objection, contending that Mr Bosley was not dismissed as he was employed on a seasonal basis and his employment contract expired on 3 October 2016. The Respondent further contended that Mr Bosley was not employed at the date of his alleged dismissal.

[3] The Respondent’s jurisdictional objection was heard on 13 June 2017. At the hearing, Mr Geoff Stevenson appeared with permission for the Applicant, while Mr Samuel Kennedy appeared for the Respondent.

[4] Mr Bosley gave evidence on his own behalf, while Mr David Kuhn, the Respondent’s Ski Patrol Manager, and Mr Stuart Diver, the Respondent’s Operations Manager, both gave evidence for the Respondent.

[5] For the reasons outlined below, I have found that Mr Bosley was not dismissed by the Respondent. Accordingly, his application is not competent and must therefore be dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[6] Mr Bosley was employed as a full time seasonal employee under the Alpine Resorts Award 2010 1 working as part of the Respondent’s ski patrol team. Mr Bosley had been employed on a seasonal basis by the Respondent as part of its ski patrol team for 13 consecutive winters and prior to that worked for the Respondent as a volunteer member of the ski patrol team for two seasons.

[7] Mr Bosley’s contract of employment for the 2016 ski season (which Mr Bosley signed on 12 May 2016) stated, among other things, the following:

“COMMENCEMENT AND TERM

Your employment under this letter will commence on 11/06/2016. Your employment (unless terminated earlier) will conclude – by the effluxion of time – on 3/10/2016 or such earlier date as the Company nominates (Your Period of Seasonal Employment). In this regard, the Company may reduce Your Period of Seasonal Employment if (amongst other things) there are adverse climatic conditions.

You acknowledge that the Company does not warrant or represent that your employment will continue beyond Your Period of Seasonal Employment. However, if, for any reason, your employment does continue after Your Period of Seasonal Employment, then the terms of this letter will continue to apply with the exception of the above paragraph.” 2 (Emphasis as per original)

[8] It was not disputed that Mr Bosley worked an additional day on 4 October 2016 to assist Mr Kuhn in packing up and that he did not work for the Respondent again after that date.

[9] On 21 December 2016 Mr Kuhn sent Mr Bosley an email in the following terms:

“Dear Jock,

We hope you are enjoying some good snow in France.

As you are aware there has been a history of your discontent with our company policies, procedures, and management decisions including a lot of criticism of new patrollers, your colleagues, and supervisors.

We have had many meetings with you over the years; including meetings with the Mountain Manager; the Operations Manager; and our General Manager, with the last meeting resulting in a Final Written Warning.

Our team dynamic has been affected from your negativity and we need to project a more positive and united approach to our teams in future seasons, especially to our newer team members, and our guests.

You have been given several opportunities to change your attitude towards our company’s culture, and the ski patrol’s culture and aims.

However your behaviour has not changed.

We are currently making plans for the 2017 winter and working on our returning staff list from 2016.

After careful consideration the Management of Kosciuszko Thredbo Pty Ltd has made the decision not to re-employ you for the 2017 and future seasons.

This decision has not been made lightly, and we wish you all the best in the future.” 3

[10] On 6 January 2017 Mr Bosley sent an email to Mr Diver regarding the above email. Mr Diver, who was overseas at the time, did not respond to that email. As previously mentioned, Mr Bosley’s unfair dismissal application was received by the Commission on 9 January 2017.

The Respondent’s Case

[11] The Respondent submitted that Mr Bosley was employed on a seasonal basis with his contract of employment stipulating an end date of 3 October 2016. The Respondent further submitted that:

• Mr Bosley worked an additional day on 4 October 2016 and was not employed by the Respondent after that date;



• Mr Bosley left Australia in or about November 2016 to work in France and did not return to Australia until 27 May 2017; and



• Mr Kuhn advised Mr Bosley by email on 21 December 2016 that he would not be offered employment with the Respondent for the 2017 ski season.

[12] The Respondent highlighted that s.123(1) of the Act, which sets out the limits on the scope of Division 11 – Notice of Termination and Redundancy Pay of Part 2-2 of the Act, stated that Division 11 did not apply to a seasonal employee [s.123(1)(a)].

[13] At the hearing, the Respondent submitted that Mr Bosley’s employment ended on 4 October 2016 and that there was no evidence to contradict that, adding that Mr Bosley performed no duties for it after that date and that Mr Bosley’s seasonal employment could continue beyond 3 October 2016. The Respondent contended that there was no decision to terminate Mr Bosley’s employment but rather it decided not to re-employ Mr Bosley and that as such there was no dismissal at the initiative of the employer. The Respondent also contended that there was evidence that Mr Bosley had been provided notice of termination and no evidence that Mr Bosley’s contract of employment had continued beyond 4 October 2016.

[14] Mr Kuhn deposed in his witness statement 4 that he supervised Mr Bosley during the 2016 ski season and that on 20 September 2016 he arranged a meeting with ski patrol employees, including Mr Bosley, to advise them that the season would end on 3 October 2016. Mr Kuhn further deposed that:

• on or about 24 September 2016 he asked Mr Bosley if he could work an extra day on 4 October 2016 to help pack up, with Mr Bosley agreeing to that request;



• Mr Bosley was not offered any further shifts after that date and did not request any further shifts;



• Mr Bosley came into the Mountain Office on 5 October 2016 to hand in his uniform and keys;



• Mr Bosley left Thredbo in late November and travelled to France to work for the northern hemisphere ski season; and



• he sent an email to Mr Bosley on 21 December 2016 advising him that he would not be hired for the 2017 ski season at Thredbo.

[15] Key aspects of Mr Kuhn’s oral evidence were that:

• in asking Mr Bosley to work on 4 October 2016 he did not indicate whether he would be employed as a seasonal or casual employee;



• he had also mentioned to Mr Bosley the possibility of some mountain biking first aid work in early December 2016, adding that any such work would have been as a casual employee under a separate employment contract;



• he had spoken to Mr Bosley before he left for France when he indicated that he might be contacted by either the Mountain Manager or Operations Manager to discuss his performance and the possibility of him being re-engaged for the 2017 ski season, adding that he did not make any comment regarding the likelihood of Mr Bosley’s re-employment during those discussions;



• while he acted on the decision not to re-employ Mr Bosley, the decision was made by the Mountain Manager; and



• Mr Bosley had not been re-employed due to performance issues, adding that Mr Bosley had received a written warning relating to his refusal to comply with company policies.

[16] Mr Diver deposed in his witness statement 5 that Mr Bosley’s employment ended on 4 October 2016 and that he was not engaged in advance for the 2017 ski season by a verbal contract for continuing employment. Mr Diver further deposed that the Respondent did not, and had never to the best of his knowledge, contracted seasonal staff other than by way of written contract. Beyond that, Mr Diver’s evidence was that:

• Mr Bosley’s employment ended at the end of his 2016 seasonal contract;



• Mr Bosley’s position had not been made redundant as the Respondent had employed someone else to fill his position;



• the process for hiring staff for each ski season required applicants to submit a formal application for employment in January, with applicants subsequently selected for interview; and



• Mr Bosley was very familiar with this hiring process, reiterating that no one was hired on the basis of a verbal agreement or a handshake.

[17] In his oral evidence, Mr Diver attested among other things that:

• he had been involved in discussions with the Mountain Manager and Mr Kuhn regarding Mr Bosley’s re-employment;



• he did not have any direct discussions with Mr Bosley regarding his re-employment, adding that he was aware that it had been discussed and that the Mountain Manager should speak with Mr Bosley but that he was not aware if this had occurred; and



• with regard to the Respondent’s process for engaging employees for the following ski season, contact was made with all of the previous season’s employees to either advise them that they would be re-employed or not re-employed, adding that if a former employee was offered re-employment and wished to take up that offer the email asked them to complete and return the documentation attached to the email.

The Applicant’s Case

[18] Mr Bosley submitted inter alia that at the end of his 2016 seasonal engagement he was assured that he would have continuing employment in 2017, adding that he was not terminated at the end of his seasonal engagement on 3 October 2016 but after that date by way of email. Mr Bosley also submitted that he worked on 4 October 2016 and that the renewal of his seasonal contract each year was of a regular and systematic nature and that this did not change at the end of the 2016 ski season.

[19] At the hearing, Mr Bosley submitted that as he worked beyond 3 October 2016 his seasonal contract had become an ongoing contract on 4 October 2016 and therefore his employment had to be terminated by notice, adding that there was no evidence of such notice having been given to him following the end of the 2016 ski season. Mr Bosley further submitted that under the Award there was no scope to extend the period of his seasonal employment, that he had a reasonable expectation of returning for the 2017 ski season and that his termination took effect on 21 December 2016 when he received the email from Mr Kuhn. Finally, Mr Bosley contended that his employment ceased because of the Respondent’s decision not to re-engage or re-employ him.

[20] Mr Bosley deposed in his witness statement 6 that at the conclusion of his 2016 seasonal contract Mr Kuhn had said to him words to the effect “see you next year and we will do this all again” which he considered to be a new verbal contract for continuing employment. Mr Bosley further deposed that he was “shocked and surprised” to receive the unexpected termination letter (i.e. Mr Kuhn’s email of 21 December 2016), adding that he subsequently sent an email to Mr Diver but never received a response.

[21] Key aspects of Mr Bosley’s oral evidence were that:

• he did not receive any notice of termination after 4 October 2016 until he received Mr Kuhn’s email of 21 December 2016;



• the first time he became aware that he would not be back for the 2017 ski season was when he received Mr Kuhn’s email of 21 December 2016;



• at no stage before he left Thredbo for France was he told that he would not be coming back for the 2017 ski season;



• he did not dispute that he and other seasonal employees were given notice on 20 September 2016 by Mr Kuhn that the season would end on 3 October 2016;



• he along with one other person and Mr Kuhn worked on 4 October 2016;



• he did not work for the Respondent again after 4 October 2016;



• in previous years he had received an email from the Respondent prior to the next season requesting that if he was interested in re-employment that he should complete the attached forms, adding that he did not have to submit a job application every season; and



• for the last three seasons he had to sign a new contract of employment before each season commenced.

The statutory framework

[22] The relevant sections of the Act for the purposes of this matter are ss. 385 and 386 which provide as follows:

“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.

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) …

(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.”

Consideration of the issues

[23] An analysis of the material before the Commission indicates that it is not disputed that:

• Mr Bosley was employed as a full time seasonal employee with his contract of employment stating that his period of seasonal employment was 11 June to 3 October 2016;



• Mr Bosley was provided with notice by Mr Kuhn on 20 September 2016 that his employment would end on 3 October 2016;



• Mr Bosley subsequently accepted an offer from Mr Kuhn to work an extra day on 4 October 2016 to help pack up;



• Mr Bosley did not work for the Respondent again after 4 October 2016; and



• Mr Bosley returned his uniform and keys on 5 October 2016.

[24] While I accept that Mr Bosley expected to be re-employed for the 2017 ski season given that he had worked as part of the Respondent’s ski patrol team for at least 13 consecutive seasons, the evidence before the Commission indicates that the Respondent’s practice was to email its previous season employees to either advise that they would not be re-engaged or, alternatively, to offer re-employment. If re-employment was offered and the former employee was interested in re-employment, the email also requested that the former employee complete and return the attached documentation. Importantly, Mr Bosley confirmed that practice in his evidence. Further, Mr Diver’s evidence was that the Respondent did not, and had never to the best of his knowledge, contracted with seasonal staff other than by way of written contract. Taken together, this does not support a finding that the Respondent gave Mr Bosley any indication after the end of the 2016 ski season that he would be re-employed for the 2017 season.

[25] Mr Bosley contended that as he worked on 4 October 2016 the Respondent was required to provide him with notice of termination as per his employment contract. However, as noted above, it was not disputed that on 20 September 2016 Mr Bosley, together with other ski patrol employees, was given notice by Mr Kuhn that the season would end on 3 October 2016. In circumstances where Mr Bosley subsequently agreed to work an additional day, it was not necessary in my view for the Respondent to give Mr Bosley notice that his employment would end on 4 October 2016. That would have been obvious to Mr Bosley and is evidenced by the fact that he did not present for work after 4 October 2016 and handed in his uniform and keys on 5 October 2016.

[26] As noted above, Mr Bosley submitted that his seasonal contract of employment could not be extended under the Award. Clause 11 of the Award which deals with seasonal employment provides as follows:

“11. Seasonal employment

11.1 An employer may employ seasonal employees in any classification in this award.

11.2 A seasonal employee may be engaged on either a full-time or part-time basis.

11.3 A full-time seasonal employee is a seasonal employee who is engaged to work 38 ordinary hours (or an average of 38 ordinary hours over the anticipated length of their employment) per week.

11.4 A part-time seasonal employee is a seasonal employee who is engaged to work less than 38 ordinary hours (or an average of less than 38 ordinary hours over the anticipated length of their employment) per week.

11.5 The hourly rate of seasonal employees will include an 8.33% loading of the applicable hourly rate instead of annual leave.

11.6 In the event of adverse climatic conditions a seasonal employee may have their anticipated period of seasonal employment reduced.

11.7 The employer will advise each seasonal employee either in writing or verbally prior to the end of the season whether that employee’s employment will be terminated at the end of the season.

11.8 Seasonal employees will be paid the hourly rate applicable to their classification as set out in clause 16—Minimum hourly rates.”

[27] I note there is nothing in the clause which explicitly precludes a seasonal contract being extended by agreement.

[28] The Respondent submitted at the hearing that there was no dismissal at its initiative. This issue was considered by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 7 (Mohazab). The Full Court stated in Mohazab that:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because `he felt he had no other option’. His Honour described those circumstances as:

‘. . . a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” 8 (Underlining added)

[29] Drawing on the language in Mohazab, the material before the Commission in this case does not point to any act on the part of the Respondent which resulted directly or consequentially in the termination of Mr Bosley’s employment. To the contrary, the material before the Commission points to Mr Bosley’s seasonal employment being extended by agreement by one day and simply coming to an end on 4 October 2016. This supports a finding that there was no dismissal at the initiative of the Respondent.

Conclusion

[30] For all the above reasons, I find that Mr Bosley was not dismissed. Accordingly his application is not competent and must therefore be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

G. Stevenson for the Applicant.

S. Kennedy for the Respondent.

Hearing details:

2017.

Canberra and Cooma:

June 13.

 1   MA000092

 2   Exhibit 2

 3   Attachment to Respondent's Submissions

 4   Exhibit 1

 5   Exhibit 4

 6   Exhibit 5

 7 (1995) 62 IR 200

 8   Ibid at 205-206

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