Ksenija (Sonya) Belaj v Royal Women's Hospital
[2012] FWA 4067
•12 JUNE 2012
[2012] FWA 4067
The attached document replaces the document previously issued with the above code.
The document has been amended to replace the signing date “11 May 2012” with “12 June 2012” in the preamble.
Fran Cashman
Associate to Commissioner Ryan
Dated 14 June 2012
[2012] FWA 4067 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Ksenija (Sonya) Belaj
v
Royal Women’s Hospital
(C2011/5220)
COMMISSIONER RYAN | MELBOURNE, 12 JUNE 2012 |
Application for unlawful dismissal - jurisdiction - Contract of Employment executed - Had the employment relationship been established.
[1] This decision concerns an application by Mrs Ksenija (Sonya) Belaj (the Applicant) for Fair Work Australia to deal with a general protections dispute under s.365 of the Fair Work Act 2009 (the Act). The Applicant alleges that Royal Women’s Hospital (the Respondent) contravened the Act by taking an adverse action against her because she exercised a workplace right.
[2] In accordance with s.386(1) of the Act, a conference to deal with the dispute was held on 15 August 2011. No resolution was reached as the Respondent, represented by Mr West of Minter Ellison, was not willing to resolve the dispute and pushed its jurisdictional objections.
[3] Following conclusion of the conciliation the matter was listed for hearing of the jurisdictional objection on 22 September 2011 and directions were issued.
The Jurisdictional Challenge
[4] The Respondent contends that the Applicant was never an employee of Royal Women’s Hospital for the purposes of s.365 of the Act.
[5] The Respondent contends that whilst there was a contract of employment in place between the Respondent and the Applicant no employer/employee relationship had ever been established. The Respondent contends that it is a jurisdictional prerequisite for making an application under s.365 that there be in existence an employer/employee relationship between the applicant and the respondent and that the employer/employee relationship has ended due to the dismissal of the applicant from employment with the respondent. The Respondent contends that because the Applicant was never permitted to start work at Royal Women’s Hospital in her contracted role that no employer/employee relationship was ever created.
[6] The Applicant contends that the employer/employee relationship was in existence no later than 28 March 2011, the agreed start date of work, and that by subsequently refusing to permit the Applicant to start work and through terminating the contract, the Respondent dismissed the Applicant from employment with Royal Women’s Hospital.
Dealing with a Jurisdictional Challenge in a General Protections Application
[7] I am aware that there is a difference in opinion within Fair Work Australia in dealing with jurisdictional challenges to applications in relation to general protections disputes.
[8] This difference is most clearly articulated in the decision of Cribb C in Hansen v Apex Cleaning and Polishing Supplies P/L T/as Apex Cleaning Supplies 1. In that decision at [35] the Commissioner came to the conclusion that:
“...it appears that the provisions of the Act, in terms of the functions of Fair Work Australia regarding general protections disputes under s.365, simply require Fair Work Australia to conduct a conference to deal with the dispute (s.368), to issue a certificate if the dispute is unresolved (s.369) and provide advice on a general protections court application if it considers that a court application would not have a reasonable prospect of success (s.370). This may be contrasted with the powers given to Fair Work Australia regarding unfair dismissal claims (Part 3-2 of the Act). Part 3-2 requires Fair Work Australia to, in addition to conducting a conference (s.398), determine a number of jurisdictional issues prior to determining the merits of an application.”
[9] The Commissioner’s reasoning was based upon both the wording of s.369 and the differences between Division 8 of Part 3-1 of the Act dealing with General Protections matters and the provisions of Part 3-2 of the Act dealing with Unfair Dismissal matters.
[10] The Commissioner in that matter noted two earlier decisions by Cloghan C which had decided jurisdictional objections in relation to general protections applications.
[11] I have come to a different conclusion to that of Cribb C in relation to the role of Fair Work Australia in dealing with a jurisdictional challenge to a general protections application.
[12] As Cribb C identified in Hansen v Apex Cleaning Supplies there is significant difference between the structure of Division 8 of Part 3-1 of the Act dealing with General Protections matters and the provisions of Part 3-2 of the Act dealing with Unfair Dismissal matters.
[13] The role of Fair Work Australia under Division 8 of Part 3-1 of the Act dealing with General Protections applications is limited to conducting a conference of the parties with a view to assisting the parties to reach an agreed settlement of the matter in dispute.
[14] The language used in the Explanatory Memorandum to the Act is clear in explaining the way in which general protections matters proceed:
“Division 8 – Compliance
1475. This Division sets out the compliance framework for contraventions of Part 3-1. In most cases where there has been a dismissal, the dispute will be dealt with at first instance in a conference conducted by Fair Work Australia. If the dispute remains unsettled after the conclusion of the conference, the dismissed employee can proceed to court. In all other cases, participation in an Fair Work Australia conference is voluntary and a person can instead elect to proceed directly to court.”
[15] The merits of an application alleging breach of a general protections provision of the Act can only be considered and determined by a court. In contrast an application to Fair Work Australia alleging unfair dismissal is a matter in which Fair Work Australia decides the merits of the application.
[16] The structure of Part 3-2 of the Act dealing with Unfair Dismissal matters recognises that Fair Work Australia must deal with both jurisdictional matters as well as the merits of an application and the Act provides in s.396 that Fair Work Australia must deal with the jurisdictional requirements before considering the merits of the application. Importantly, s.396 of the Act sits within Division 5 - Procedural Matters within Part 3-2 of the Act.
[17] The requirement to consider jurisdictional issues before merit issues in relation to an unfair dismissal matter is merely a procedural matter. If s.396 was removed from the Act the only impact would be that Fair Work Australia could consider jurisdictional matters at the same hearing in which it dealt with the merits of the application. If s.396 was removed from the Act it would not mean that Fair Work Australia could ignore jurisdictional challenges to applications and simply consider the merits of an application. If s.396 was removed from the Act Fair Work Australia would still have to decide on each of the jurisdictional matters identified in s.396 for the very reason that each identifies a jurisdictional fact the existence or absence of which has to be ascertained by Fair Work Australia.
[18] Similarly the absence of any provision in Division 8 of Part 3-1 of the Act which requires Fair Work Australia to consider jurisdictional matters does not mean that Fair Work Australia is free to ignore the facts which found its jurisdiction.
[19] An application can only be made under s.365 if a person has been dismissed and if there is an allegation that the person was dismissed in contravention of Part 3-1 of the Act.
Whether or not a person has been dismissed is a jurisdictional fact. A person cannot be dismissed if the relationship between the applicant and the respondent in a s.365 matter is one in which it is not possible for the person to be dismissed, i.e. the person is not an employee.
[20] It is important to note what the High Court said in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd 2.
“9. ..The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function. But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not in itself amount to a usurpation of judicial power.......Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties....... Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.”
[21] Thus whilst the jurisdictional fact of whether a person alleging a breach of general protections provision has or has not been dismissed can only be conclusively determined by the courts nevertheless Fair Work Australia must form a view as to whether the fact, i.e. the person has been dismissed, exists.
[22] In circumstances such as the present, where the Respondent contends that the Applicant never entered into an employment relationship with the Respondent and where the Applicant contends that the employment relationship existed, Fair Work Australia must form a view as to the jurisdictional facts referred to in s.365(a).
[23] This view accords with my understanding of the purpose of the Act.
[24] The very presence of the provision of paragraph 365(a) of the Act suggests that Parliament intended that Fair Work Australia would not convene conferences merely because of the allegation that contravention of Part 3-1 of the Act occurred. Paragraph 365(a) of the Act has real work to do. It provides an essential starting point for the involvement of Fair Work Australia in a general protections application in which dismissal is alleged to have occurred in contravention of Part 3-1 of the Act. The starting point is that involvement of Fair Work Australia is triggered only if the jurisdictional fact of a person having been dismissed exists. Where the existence of that fact is challenged then Fair Work Australia must in my view conduct a hearing to form a view as to the existence of that fact.
[25] To do otherwise would in my view simply invite applications to be made to Fair Work Australia where the applicant alleged that ‘a person has been dismissed’ but where the jurisdictional basis for making an application, namely, that ‘a person has been dismissed’ was in fact absent.
[26] It is important to note the difference in approach within Division 8 of Part 3-1 between contraventions involving dismissal and other contraventions. If a contravention of the general protections provisions does not involve dismissal then Fair Work Australia may only convene a conference of the parties where both parties agree to attend. Thus if the respondent challenges the right of the applicant to initiate the application the respondent does not need to respond to the application nor agree to attend a conference convened by Fair Work Australia. If such a course occurs the applicant would have to initiate an application in the courts and the respondent can raise the jurisdictional objection there.
[27] However where an application does involve dismissal the parties must attend a conference convened by Fair Work Australia under s.368. The respondent doesn’t have the ability to ignore the conference. Should a respondent refuse to attend a conference convened under s.368 Fair Work Australia is able to compel the attendance of a party to a conference. In such circumstances where the respondent can be compelled to attend a conference convened by Fair Work Australia it makes sense to provide that a party can challenge the jurisdictional basis for the application and have such jurisdictional challenge determined before the respondent is put to the task of attending a conference.
The test to be applied
[28] The proper test to be applied in a section 365 matter is to determine whether the employment relationship has been terminated. If it has, then the Applicant is within the jurisdiction of the Fair Work Act. In considering similar legislation a Full Bench of the AIRC in Searle v Moly Mines Ltd 3said:
“22. ...It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment.
23. ...In applying the statutory test it is the termination of the employment relationship which is important.”
The employment relationship and the employment contract
[29] It is clear in Australian law that there is difference between the employment relationship and the contract of employment. The difference between the two is most stark in issues involving termination of employment. It is clear in Australian law that the termination of the employment relationship and the termination of the contract of employment are not coterminous. It is sufficient to cite the decision of the majority of the High Court in Visscher v The Honourable President Justice Giudice 4:
“53. The reasons of Buchanan J elide the concepts of termination of an employment relationship and the discharge of a contract of employment. The concepts are different. It does not follow from the fact that a wrongful dismissal is effective to bring the employment relationship to an end that it thereby discharges the contract of employment. In Byrne v Australian Airlines Ltd it was said that:
‘It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson...’
And in one of the passages from Automatic Fire Sprinklers Pty Ltd v Watson to which reference was made in Byrne v Australian Airlines Ltd, Latham CJ said:
‘An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's Case and Lucy's Case.’
And Dixon J said:
‘... there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.’”
[30] The law is clear that a contract of employment may continue to exist after the employment relationship has ended.
[31] In Macken’s Law of Employment: Sappideen, O’Grady, Riley, Warburton, 7th Edition at 8.40 it is stated that:
“The employer-employee relationship will also end when the contract of employment ends if that relationship has not ended earlier. The possibility of the contract of employment existing after the employment relationship has ended seems established, although ordinarily it will be of ‘no real significance’.
[32] It may very well be that the employment relationship will continue even after the contract of employment has ended. In considering an employee’s rights under UK Sex Discrimination legislation the House of Lords in Relaxion Group Plc v Rhys-Harper 5 considered whether the employment relationship continued after the ending of the contract of employment. Lord Nicholls of Birkenhead said:
“36. A contract of employment creates an employment relationship between two persons, an employer and an employee. It is a matter of ordinary experience that incidents of the employment relationship thus created often continue beyond the termination of the contract of employment which gave rise to the relationship. When a contract of employment ends the employee ceases to be obliged to work for the employer, and the employer ceases to be obliged to employ the employee. But the ending of these obligations does not normally signify a complete end to all aspects of the relationship between employer and employee..
37. To my mind the natural and proper interpretation of section 6(2) of the Sex Discrimination Act and the corresponding provisions in the other two Acts in this context is that once two persons enter into the relationship of employer and employee, the employee is intended to be protected against discrimination by the employer in respect of all the benefits arising from that relationship. The statutory provisions are concerned with the manner in which the employer conducts himself, vis-à-vis the employee, with regard to all the benefits arising from his employment, whether as a matter of strict legal entitlement or not. This being the purpose, it would make no sense to draw an arbitrary line at the precise moment when the contract of employment ends, protecting the employee against discrimination in respect of all benefits up to that point but in respect of none thereafter.
38. If such a hard and fast line were drawn at this point it would mean that the employee who asks for a reference before he retires from his employment is protected but the employee who asks for a reference the day after he left is not. It would mean that the employee who is dismissed with notice and whose appeal is heard before his notice expires is protected against discrimination in his recourse to the employer's appeal procedure, but the employee who is dismissed summarily and without notice is not. It would mean that retaliatory action taken by an employer before the contract of employment ends is within the scope of the legislation, but retaliatory action taken later, for instance, regarding bonus payments, is not.
39. This cannot have been the intention of Parliament.”
[33] The difference between the employment relationship and the contract of employment is also relevant at the commencement of employment. As Macken’s Law of Employment puts it at 4.30:
“An employment contract can come into existence before the establishment of an employer-employee relationship and before the commencement of work. An agreement to start employment at a future date vests contractual rights in the parties at the time of agreement. Consequently, an employer who withdraws an accepted offer of employment prior to commencement can be liable for breach of contract.”
[34] My attention was drawn to the decision of the Federal Courtin Turner v Australasia Coal and Shale Employees Federation 6, and of the Industrial Relation Court of Australia in Siagin v Sanel P/L7. Neither decision is helpful in considering the present matter. As Wilcox CJ observed in Siagin v Sanel, “The judgment in Turner makes no reference to the possibility of a distinction between termination of the employment relationship and termination of the contract of employment.” and “In fairness, it should be said that it was unnecessary for the Turner Court to distinguish between the termination of the employment relationship and the termination of the contract of employment.” The decision in Siagian v Sanel, to the extent that it considers the difference between the employment relationship and the contract of employment, has been superseded by more recent High Court authorities.
[35] Cases which deal with issues of preparatory work before an employment contract commences, or work performed as part of an assessment prior to offering a contract are not helpful in considering the present matter.
[36] As a matter of logic it would appear that, if the contract and employment relationship are separate and that a contract can both pre exist and post exist the employment relationship and that an employment relationship can post exist a contract then an employment relationship may pre exist the contract.
Approach to determining the existence of an employment relationship
[37] In the present matter it is necessary to consider how Fair Work Australia should approach the question of determining the existence or otherwise of an employment relationship.
[38] The issue of determining the existence and nature of relationships concerning the undertaking of work has been the subject of many decisions of courts and tribunals. The more important cases have concerned whether the performer of the work is an employee or an independent contractor, or whether the performer of work is an employee or is performing work as part of a religious role.
[39] Understanding these cases does, in my view, point the way to answering the question which I need to determine in this matter.
[40] In Ermogenous v Greek Orthodox Community of SA Inc 8the majority said:
“Intention to create contractual relations
24. "It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty." To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet "[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts".
25. Because the inquiry about this last aspect may take account of the subject-matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.” [citations omitted]
[41] In Hollis v Vabu 9 the High Court considered whether the operator of a bicycle courier business was vicariously liable for the actions of a bicycle courier who ran over a pedestrian. In considering the relationship that existed between the courier business and the couriers the majority ( ) said:
“24. It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing "the totality of the relationship" between the parties; it is this which is to be considered.”
[42] The use of the phrase “totality of the relationship” was a reference to what Mason J had to say in Stevens v Brodribb Sawmilling Co P/L 10:
"the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, 'so far as there is scope for it', even if it be 'only in incidental or collateral matters': Zuijs v Wirth Brothers Pty Ltd. Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered."
[43] As Kirby J observed in Ermogenous v Greek Orthodox Community of SA Inc 11:
“81. The nature of employment in contemporary Australia continues to undergo evolution. In Hollis v Vabu Pty Ltd, this Court explained that "control", the traditional indicium of the employment relationship, is only one relevant factor in determining the existence of an employment contract. Instead of having regard exclusively to considerations of "control", which may be less relevant to the variety of modern employment relationships, this Court took the view that it is necessary to consider the totality of the relationship between the parties.”
[44] More recently in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) 12 Bromberg J stated that:
“201. An analysis of the nature of a legal relationship should commence with a proper identification of the parties to that relationship, their role and function and the nature of the interactions which constitute their relations.
204. Despite the earlier preoccupation of the law with the degree of control exercised by the putative employer as defining an employment relationship, the modern approach is multi-factorial. As the majority said in Hollis at [24] it is “the totality of the relationship” which is to be considered. A range of indicia may be examined. Some will be more useful than others in some work arrangements but less useful in other work arrangements. Because of the multiplicity and diversity of work arrangements and the ingenuity of those fostering disguised relationships, there is value in a multi-factorial test which recognises that one spotlight will not necessarily adequately illuminate the totality of the relationship. Such an approach also involves what may be described as a ‘smell test’, or a level of intuition. The majority in Hollis (at [48]) described the notion that bicycle couriers were each running their own business as “intuitively unsound”.
205. Lord Wedderburn referred to the use by courts of the multi-factorial test of looking at the whole picture as the “elephant-test” – an animal too difficult to define but easy to recognise when you see it: The Worker and the Law, (3rd ed, Penguin Books Ltd, 1986) at 116. As Mummery J said in Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944:
‘The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another’”
[45] Whilst it is clear that the only proper way to ascertain the existence or otherwise of an employment relationship is to have regard to the whole picture or the totality of the relationship existing between the Applicant and the Respondent, it is also clear that this has to be done by determining what “would objectively be conveyed by what was said or done”. 13
[46] The objective assessment of the totality of the relationship does not mean that the subjective intentions of the parties are irrelevant. The discussion in Damevski v Giudice 14 is relevant. Marshall J said in relation to the intention of parties to create a legal relationship:
“93 Anson's Law of Contract, 28th ed. at p.31, discusses the test applied to intention for the purpose of establishing an agreement:
‘In common with most European legal systems, the test of a person's intention is not a subjective, but an objective one; that is to say, the intention which the law will attribute to a person is always that which that person's conduct bears when reasonably construed by a person in the position of the offeree, and not necessarily that which was present in the offeror's own mind.
Although the approach is objective, it is not purely objective in the sense that the intentions of the parties are entirely irrelevant so that a contract may be formed which is in accordance with the intention of neither party. It has been stated that `the judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other.’
94 Anson's Law of Contract also refers to the test of intention in relation to the creation of legal relations at p. 71:
‘The test of an intention to effect legal relations is an objective one. It may be that the promisor never anticipated that the promise would give rise to any legal obligation, but if a reasonable person would consider there was an intention so to contract, then the promisor will be bound.’
95 It is an accepted principle of contract law that although a person's apparent intention will generally represent their real intention, an objective approach should be taken in establishing intention: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd; Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] EWCA Civ 13; [1990] 3 All ER 25 and Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 176 per Brooking J and 176 per Tadgell J.
96 Endoxos may have set about making arrangements for the provision of labour through a third party, but ultimately it acted in a way that showed that it in fact intended to create legal relations. The evidence indicates that Endoxos wanted to maintain control of Mr Damevski, expected him to use their equipment and clothing emblazoned with Endoxos livery and, ultimately, wanted to be able to dismiss Mr Damevski.
97 In Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd, Mahoney JA said at 330:
‘It is generally accepted that, in determining whether what the parties have done results in a binding contract, their intention is significant. And there is reference in the cases and the textbooks to the question whether, for there to be a binding contract, it is necessary that the parties have an actual or subjective intention to contract: see, eg, the cases referred to by McLelland J in Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251; see generally, Halsbury's Laws of England, 4th ed, vol 9, par 300 at 175. But questions in that form are, I think, apt to mislead: it is, in my opinion of more assistance to ask whether actual or subjective intention to contract plays a part in determining whether there is a binding contract, and (if it does) what part it plays.
The proper view is, in my opinion, that the existence of a contract is a consequence which the law imposes upon, or sees as a result of, what the parties have said and done. Actual subjective intention to contract is a factor which the law takes into account in determining whether a contract exists but it is not, or not always, the determining factor.’”
[47] Merkell J expressed a similar sentiment as follows:
“140. ....As was observed by Lord Diplock in Gissing v Gissing [1971] AC 886 ("Gissing") at 906:
‘the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.’
141 In Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 ("Australian Broadcasting Corporation") at 548-550 Gleeson CJ considered the issue of intention to conclude a contract in circumstances where intention was to be determined from a consideration of a series of communications exchanged between the parties, rather than on the basis of the construction of a single document. In that context his Honour stated at 550:
‘The case involves the objective determination of the intention of the parties from a consideration of a series of communications exchanged by them in the context of their dealings over a period of time. In those circumstances it is both appropriate and necessary to have regard to the commercial circumstances surrounding the exchange of communications and, in particular to the subject matter of those communications: Allen v Carbone [1975] HCA 14; (1975) 132 CLR 528 at 531-532. Furthermore, as was noted earlier, it is proper to have regard to communications between the parties subsequent to the date of the alleged contract to the extent to which those communications throw light upon the meaning of the language which is being considered for the purpose of determining whether it expresses an intention one way or the other upon the critical matter. At the least, such subsequent communications will often form part of the context in which the particular exchanges in question are to be evaluated.’
[48] What I draw from the case law is that the concept of the employment relationship is about both intentions and conduct. In relation to termination of employment it is the intention of one party not to be bound by the contract of employment and the actions which give effect to that intention which gives rise to the ending of the employment relationship even where the contract remains on foot. In relation to the commencement of the employment relationship it is the intentions of the parties to be bound to a course of conduct and the actions which evidence that intention and which may be reflected in an existing contract of employment or which may give rise to the execution of a contract of employment.
[49] Fair Work Australia must have regard to the totality of the relationship. Fair Work Australia must make an objective assessment of the intentions and conduct of the parties but part of that objective assessment is to have regard to the subjective intentions of the parties. Fair Work Australia must approach the task at hand by viewing matters from a practical and realistic perspective.
The Evidence
[50] Witness statements were filed in this matter but no oral examination of any witnesses occurred as each party indicated that it did not need to cross examine the other side’s witnesses. Neither of the witness statements were sworn. The evidence in this matter is far from being the “best” evidence which could have been made available to Fair Work Australia.
The evidentiary burden of proof on both parties in this matter is that of the balance of probabilities. In the present matter where both parties have sought to rely upon unsworn statements then the balance of probabilities must be ascertained from that unsworn material.
[51] I note the oft quoted comment of Lord Mansfield in Blatch v Archer:
“It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” 15
[52] It is relevant to put the two competing witness statements into context. The Respondent relies on the statement of the Respondent’s Director of Workforce Services which was filed with Fair Work Australia on 29 August 2011. The Director was not personally involved in the recruitment of the Applicant nor in the many interactions concerning the Applicant’s capacity to work. Much of the Director’s statement is hearsay.
[53] The Applicant’s statement was made in response to the Director’s statement and in it the Applicant from her own knowledge very carefully explains, clarifies or directly challenges the content of much of the Director’s statement. The Applicant’s statement was filed with Fair Work Australia on 19 September 2011.
[54] The Respondent did not file any further witness statement to rebut any of the contents of the Applicant’s statement. In a contest between an unsworn statement which is mainly hearsay and an unsworn statement which is mainly first person recollection more weight should be given, if all other things are equal, to the first person statement. In the present matter where the Respondent has been content to have the jurisdictional challenge it raised determined on the papers I observe that the Respondent did not even file unsworn statements from each of the Respondent’s employees who were directly involved in the matter.
[55] In a matter such as this where the Applicant has sought to invoke the jurisdiction of Fair Work Australia and where the Respondent has challenged the existence of an essential prerequisite for jurisdiction, it is still incumbent upon the Applicant to prove on the balance of probabilities that the jurisdictional fact exists. The necessary proof “involves direct evidence or inference that must amount to more than conflicting inferences of equal degree or probability such that any choice is conjecture. The conclusion must be affirmatively drawn.” 16 I also note the principles as to inferences as mentioned in Fazio v Fazio [2012] WASCA 72 per Murphy JA at 45 to 50. Whether the balance of probabilities is proven by evidence or inferences I note the decision of Dixon J in Briginshaw v Briginshaw 17:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.”
[56] The level of proof required for that “actual persuasion” will depend on the nature of the issue to be determined. As Dixon J went on to say:
“It is often said that such an issue as fraud must be proved ‘clearly’, ‘unequivocally’, ‘strictly’ or ‘with certainty’ This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”
[57] The Applicant was employed by the Royal Children’s Hospital (RCH) in the position of Assistant Manager of the Central Sterilising Service Department (CSSD) when on 1 February 2011 she applied for the position of Sterile Processing Service (CSSD) Manager at the Respondent. As part of the application the Applicant responded to the question: “Do you have any past or present work/non work related medical conditions which may create risks for you in undertaking the requirements of the position?” with a statement that she had a restriction of “no heavy lifting”.
[58] On the morning of 22 February 2011 the Applicant was contacted by Ms Thompson, Operations Manager Perioperative Services, of The Respondent with a query about the high level of sick leave that the Applicant had taken whilst employed at the RCH. The Applicant advised Ms Thompson that “I had surgery in 2009, rehab, recovered well and that I am now fit and well to work, so this is why my sick leave is high.” 18 In the afternoon of the same day the Applicant was advised by a telephone call from Ms Thompson, (with a Mr Mathew Bell from The Respondent listening in) that she was the successful applicant for the position. The Applicant advised the Respondent in that telephone conversation that she would resign from her current employment.19 On or about 25 February 2011 the Applicant resigned her employment with the RCH.20
Confirmation of Appointment - 1 March 2011
[59] A formal confirmation of appointment to the Respondent was given to the Applicant in writing dated 1 March 2011. 21 The contents of the letter of confirmation of appointment are relevant and is as follows:
“Congratulations on your appointment with The Royal Women's Hospital.
Sonya, SPS manager would like to welcome you on the 28/03/2011. You will be contacted by Ksenija (Sonya) (sic) to arrange a suitable starting time and location.
Human Resources looks forward to meeting you on your commencement to organise your employment forms and an identification pass. Please note that the following documents have been supplied in the attached package. You need to complete and return the following documents before your commencement date otherwise your first pay may be delayed.
- Conditions of Employment and Position Description - as follows (to be read and signed by yourself as acknowledgement of acceptance)
- Evidence of Australian Citizenship or valid work permit for Australia
- New Starter Information Form
- Tax File Number Declaration Form
- Work Cover History Form
- Privacy and Confidentiality Agreement
- Union Information Sheet (optional)
- Staff Health Form
- Information Technology Staff Agreement
- Working with Children Check (please see further details below)
- Police check - Fit2Work (please see further details below)
We have also included in your pack a copy of The Women's Code of Conduct and Wayfinding brochure for your information.
Where relevant to your occupation we will also require you to provide the following documentation prior to your commencement:
• Evidence of Practising Certificate, Registration, Fellowship (original/certified documents only)
• Evidence of relevant qualifications (original/certified documents only)
Police check
Please find enclosed a Fit2Work application form. This form must be completed and returned to Human Resources with 100 points of 10 (as outlined in the form) for processing prior to your commencement.
Please note that your commencement date will be delayed if your police check takes longer than expected. We will contact you in this instance.
Working with Children Check
Please find enclosed a Working with Children Check application form. This form must be lodged at an Australia Post Office prior to commencement with the presented at Human Resources prior to or upon commencement at the latest.
Please note that your commencement date will be delayed if your Working with Children Check is not lodged prior to commencement.
Orientation
We have booked you into our Hospital Orientation for Monday 4th April 2011 in Conference Room A which is on the ground floor of the main hospital. The day commences at 8.30am and concludes at varying times depending on your occupational needs. Your manager is aware of this booking, but you should discuss this with them prior to or on your commencement.
Please contact us if any changes to this booking are required. Our Orientation Program provides all new employees with an introduction to the Hospital and information about the services provided to staff. It is compulsory for staff to attend this orientation day; which is coordinated by Human Resources.
Car Parking
Underground car parking at The Women’s is available via a waiting list. Please collect the relevant forms from HR to apply for car-parking.
Salary Packaging
Salary Packaging Benefits are available with SmartSalary. For further information please refer to or contact their customer service help desk on 1300 476 278.
Recognition of Service
If you wish for your previous employment in a public health service to be recognised by The Women's you must give the appropriate certificate of service to the Human Resources Department upon your commencement
We welcome you as a member of staff and trust you will find your employment with The Women's both enjoyable and rewarding. We look forward to your contribution to the organisation.
Kind Regards,
Kate Bishop
Workforce Services Coordinator”
Confirmation of Terms and Conditions of Employment - 2 March 2011
[60] A formal confirmation of the terms and conditions of employment was given to the Applicant by letter signed by Ms Thompson as the authorised representative of the Respondent on 2 March 2011. This letter required the Applicant to sign and return both the letter and a copy of the Position Description to the Respondent as confirmation of the Applicant’s acceptance of the terms and conditions of employment. This the Applicant did on 4 March 2011. Attachment 2 to Exhibit R2 is the signed letter of confirmation of the terms and conditions of employment but neither the Applicant nor the Respondent provided a copy of the signed Position Description. However, the Applicant tendered a copy of the Position Description as advertised in February 2011 22. Nothing was put by either side to suggest that the position description signed by the Applicant was not the same as the advertised Position Description.
[61] The letter of confirmation of terms and conditions of employment opens with a statement of confirmation of the appointment of the Applicant to the Respondent in the following terms:
“I confirm your appointment to The Royal Women’s Hospital based on the following terms and conditions of employment:”
[62] The letter includes a statement that the commencement of employment (as well as ongoing employment) was conditional.
“Your initial and ongoing employment is conditional upon maintenance of registration and qualifications relevant to your occupation, a valid work permit for Australia (if applicable), a National Police Certificate satisfactory to The Royal Women’s Hospital, as well as a valid Working with Children Check.”
[63] These conditions reflect the conditions in the letter of confirmation of appointment. At no stage in the proceedings did the Respondent contend that the Applicant had not met these conditions.
Work Cover History
[64] As requested in the confirmation letter of appointment the Applicant completed the Work Cover History form supplied to her and signed it on 4 March 2011 and returned it to the Respondent. The Applicant provided more detail about the work related injury and restrictions on work than she had in her original job application and in the telephone conversation on 22 February 2011.
[65] However the information in the Work Cover History form was consistent with the previous information given by the Applicant to the Respondent.
Further Actions
[66] On 10 March 2011 the Respondent, through Ms Hart, OH&S WorkCover Coordinator, contacted the Applicant seeking further information from the Applicant in relation to her injury and capacity to work. By letter dated 15 March 2011 the Respondent, again through Ms Hart, required the Applicant to undertake a medical assessment and also requested the Applicant to give the Respondent access to her medical records. The letter contained the following:
“As advised you will not be able to commence employment until a full assessment is made of your condition against the inherent requirements of the position.”
[67] A copy of a document titled Inherent Requirements of Manager - Sterile Processing Service Department formed part of Attachment EW6 to Exhibit R2.(the Inherent Requirements document).
[68] As the Applicant stated in her witness statement:
“Further, the “Inherent Requirements List” for the SPS Manager position was not part of the advertised job description when I applied for the position on 1 February 2011. The Respondent did not enclose a copy of the purported inherent requirements in its letter to me dated 15 March 2012.” 23
[69] It is clear from the evidence from both the Applicant and the Respondent that the Inherent Requirements document was supplied to each of the medical practitioners who were providing comments on the Applicant’s capacity to work as the Manager - SPSD.
[70] There appears to be a stark contrast between the job to be performed in accordance with the Position Description made available to the Applicant and to other applicants for the position when it was advertised and the job expected to be performed in the Inherent Requirements document. Both the “Responsibilities and Major Activities” and “Key Performance Indicators” of the Position Description appear to describe a full time role in exercising managerial responsibilities. Yet in contrast the Inherent Requirements document relegates the managerial role to only part of the job: “The Manager of SPS is expected to be able to complete his/her normal managerial duties as well as duties in all areas of the department to cover staff and assist in times of peak demand.”
[71] The very structure and language of the Inherent Requirements document suggest that the Applicant was to be employed in a position in which she would be required to spend a significant portion of her time engaged in quite physical labour. The Inherent Requirements document is as follows:
[72] The Inherent Requirements document identifies 2 activities each of which will be required to be performed for between 67% to 100% of the time or each hour and 5 activities each of which will be required to be performed for between 34% to 66% of the time or each hour and 2 activities which will be required to be performed for between 0% and 33% of the time or each hour. The accumulation of activities required to be performed each hour or over the work time exceeds the time available. There is an inherent absurdity in this document. On its face it would appear that no human could meet the inherent requirements of the position of Manager - Sterile Processing Service Department.
[73] It is important to put the Inherent Requirements document into perspective. Whether or not the Applicant could or did meet the inherent requirements of the position she successfully applied for is not a matter I need to be concerned with. The relevance of the Inherent Requirements document lies in disclosing the significant change in focus within the Respondent after the contract of employment had been executed.
[74] Further correspondence from Ms Hart on behalf of the Respondent to the Applicant dated 1 April 2011 contained the following:
“It appears that you have been reluctant to fully disclose your illness/injury with further disclosures and information pertaining to these, only being forthcoming due to our specific requests. This is of concern to the Hospital and may impact our decision to employ you.”
[75] On 4 April 2011 the Applicant was subject to a medical examination by an independent Specialist Occupational Physician who conducted the medical examination of the Applicant at the request of the Respondent. The examination was to test the Applicant against the Inherent Requirements document and not the Position Description. 24 The report of the Specialist Occupation Physician identified 7 of the physical tasks on the Inherent Requirement document as being tasks that the Applicant had a capacity to perform, and identified 2 of the physical tasks as being unsuitable for the Applicant to perform. These two physical tasks related to heavy lifting and heavy pushing.
[76] On 13 April 2011 the Respondent wrote to the Applicant’s treating doctor seeking further information. The letter contained the following comments:
“You may also be aware that the hospital requested Ms Belaj to undertake an independent medical examination prior to her commencing employment so that the Women’s could ensure that we were not aggravating any pre existing injury or condition that Ms Belaj may have.”
And
“The hospital is therefore seeking further clarification as to your opinion of Ms Belaj’s ability to undertake the inherent requirements of the role prior to us making a decision as to Ms Belaj’s suitability for the role.”
[77] Dr Ahern responded to the Respondent on 18 April 2011 re-iterating his “opinion of her condition and ability to perform her job as outlined.”
[78] By letter dated 20 April 2011 Ms Petersen, Health, Safety and Wellbeing Manager for the Respondent, wrote to the Applicant requesting she attend a meeting. The letter stated:
“we will now need to meet with you to discuss the outcome of these assessments and the effect on your employment with the hospital.”
[79] On 28 and 29 April 2011 Ms Petersen contacted the Applicant’s treating psychologist at a spinal management clinic requesting a review of the Applicant’s ability to perform the inherent requirements of the job. The Principal Psychologist replied on 29 April 2011 advising that “we believe Ms Belaj is capable of completing these duties without specific restrictions.”
[80] On 5 May 2011 Ms Petersen wrote to the Applicant requesting a meeting with her on 12 May 2011. The letter contained the following:
“We will now need to meet with you to discuss the Hospitals final decision in relation to your employment contract.”
[81] On 12 May 2011, after the meeting between the Applicant and the Respondent, Ms Wilson on behalf of the Respondent wrote to the Applicant alleging that she had engaged in serious misconduct. The terms of the letter (without the details of the allegations made) is as follows:
“Dear Sonja
EMPLOYMENT WITH THE ROYAL WOMEN’S HOSPITAL
The Hospital is concerned that you have not been forthcoming with information nor have you made correct statements about your medical conditions despite being given an opportunity to do so at various stages.
The Hospital alleges that you have engaged in serious misconduct in the following ways:
[Points 1-9 not reproduced here]
We allege that any or all of these matters, if substantiated amounts to serious misconduct as it goes to the heart of the trust and confidence that must be reposed between an employer and an employee especially one who is to perform a managerial role. If this is substantiated, it will be open to the Hospital to terminate your employment without notice.
You are invited to respond in writing to these issues within the next 7 days, after which the Hospital will make a decision on whether the conduct is made out and whether it warrants termination of your employment or other disciplinary action. If there are any other factors that we should take into account about your employment please provide those details to us.” 25
[82] Finally, Mr Gamble, Executive Director Human Resources and Technology, on behalf of the Respondent wrote to the Applicant on 30 May 2011 terminating the contract of employment in the following terms:
“I refer to Ms Dale Fisher’s letter to you dated 23 May 2011 in which you were advised that we were considering our decision with respect to your contract of employment.
We wrote to you on 12 May 2011 setting out a number of issues which we believed amounted to serious misconduct, as any or all of the issues went to the heart of the relationship of trust and confidence between an employer and employee.
You were invited to respond within 7 days to the issues raised in our letter after which we indicated we would make a decision as to whether or not we considered the serious misconduct was substantiated.
Your subsequent response dated 27 May 2011 has not provided us with any additional information to refute the issues we raised.
Accordingly, the Hospital has resolved to terminate your contact of employment for serious misconduct, effective 30 May 2011.
As previously indicated to you the Hospital will make a payment to your nominated bank account of an amount equal to your salary from 28 March 2011 (being the date the contract of employment was to have commenced) until 30 May 2011 (the Termination Date).” 26
The Submissions of the Respondent
[83] The Respondent drew attention to the well established proposition “that where the Act refers to the termination of a person's employment it refers to the termination of the employment relationship and not the termination of a contract of employment” (Searle v Moly Mines Limited [2008] AIRCFB 1088 at [22]) and contended that “the distinction between the termination of a contract of employment and the termination of the employment relationship is an important distinction and not merely theoretical.”
[84] In determining the existence of an employment relationship the Respondent drew my attention to the decision in Porter v TWU 27 where Gray J said:
“13. A Court determining whether a particular relationship is that of employment or of some other kind can therefore only resort to the process of balancing all of the factors, or as they are called in Stevens and other cases, the "indicia". In truth, the result may be a matter of impression. It is unfortunate that this is so. It should not be necessary for people to obtain a decision of a court, in order to know the true nature of their relationship. Unfortunate or not, that is the case. Although the parties are free, as a matter of law, to choose the nature of the contract which they will make between themselves, their own characterisation of that contract will not be conclusive. A court will always look at all of the terms of the contract, to determine its true essence, and will not be bound by the express choice of the parties as to the label to be attached to it. As Mr. Black put it in the present case, the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck. “
[85] The Respondent contended that the answer was not to be found in what the parties themselves say but in what conclusion Fair Work Australia can draw “based on an assessment of the facts, as unsatisfactory as that may be.” 28
[86] The Respondent contended that “it’s not the detail of what was discussed between the parties which is really relevant here, it’s the nature of that exchange during the period from when the position was offered to the applicant until the contract was terminated in May, during that March to May period. It’s looking at the nature of the dealings between the parties to see whether in the nature of those dealings there is evidence of an employment relationship. 29
[87] The Respondent in its written submissions contended that:
“10. In this case the evidence shows that:
(a) the Applicant was made an offer of employment on 1 March 2011, to commence
employment on 28 March 2011;
(b) the offer was made in good faith on the basis of certain representations made to the
Respondent by the Applicant regarding her capacity to perform the inherent requirements of the role she had applied for;
(c) the offer was accepted by the Respondent subject to her completing relevant
documentation, including a work cover history form;
(d) upon further investigation the Respondent became concerned about the Applicant's
candour in disclosing relevant information regarding her capacity to perform the
inherent requirements of the role and she was not permitted to commence employment on the 28 March 2011 as initially stated;
(e) over the period from 1 March to 30 May 2011 the Respondent investigated the
Applicant's capacity to perform the inherent requirements of her position and expressed its concerns to the Applicant about the frankness of her disclosure, during which time, apart from communicating with the Respondent in relation to those issues, the Applicant had no other involvement with the Respondent;
(f) at no stage did the Applicant attend for work or render service to the Respondent;
and
(g) the Applicant never progressed to the stage where she would have been physically
able to render service to the Respondent in the position as she had not been inducted or issued with an identification and security pass to enable her to access the work area or a logon to access the Respondent's information system;
12. In truth the Applicant never progressed beyond the status of an applicant for the position, notwithstanding that she accepted the offer made to her in good faith on 1 March 2011. While she may have had a contract to be employed constituted by her acceptance of the letter of offer of 1 March 2011 at no stage did she enter into an employment relationship with the Respondent.” 30
[88] The Respondent contended that the case law 31 supported its proposition that “it’s the act of rendering service, of attending the workplace and performing duties, which give rise to the relationship of employer and employee. It’s the performance of work that’s at the heart of the master-servant relationship. Only when service is performed does the employee submit to the direction and control of the employer and it’s only when work is performed or services rendered that the employer assumes its responsibilities in relation to the employee. Put another way, you don’t become an employee until you put on the overalls and walk through the factory gate to commence work.”32
[89] In the present matter the Respondent contended that its actions from the time it asked the Applicant to fill in a Work Cover History form until the contract of employment was terminated were “directed at the issue of whether or not the respondent could proceed to allow the applicant to take up her position and perform her duties. It was in essence about whether or not the parties could act on their agreement to enter into the employment relationship.” 33
[90] As the Respondent ultimately decided not to do that then, as the Respondent contended, the Applicant was never in a position where she could render service and in fact never did render service. Although the Respondent conceded that the Applicant had a contract it contended that the question really being determined was could that contract be taken up and could she become an employee. Once the Respondent made the decision that the Applicant would not be permitted to take up the contract and become an employee then, in the Respondent’s contention, no employment relationship was ever established.
[91] As Mr West put it: “Put crudely, the bottom line here is that the employer terminated a contract and prevented the employer-employee relationship ever coming into existence. If we distil this down to some essential point, that’s really the point. Rightly or wrongly or whatever, but the employment contract was terminated so that the employment relationship never came into existence.” 34
The Submissions of the Applicant
[92] The Applicant asserted that the only question to be determined by Fair Work Australia is: “was there an employment relationship between 4 March 2011 and 30 May 2011.” (Exhibit A1 at para 4)
[93] The Applicant contended that the conduct of the Respondent in directing the Applicant not to attend work on the 28 March 2011, the agreed start date, was the exercise of a power of control over the Applicant and was consistent with the existence of an employment relationship. The power to direct the Applicant not to attend work could not arise under the contract of employment, but was consistent with the Respondent, as an employer, exercising
authority over an employee.
[94] The Applicant contended that the Respondent’s assertion that the non performance of service by the Applicant was a factor strongly supporting the absence of an employment relationship could not be relied upon by Fair Work Australia when the non performance of service was as a result of an unequivocal direction from the Respondent to the Applicant and a direction which the Applicant complied with.
[95] The Applicant further contended that the Respondent’s submissions were entirely inconsistent with its conduct and correspondence with the Applicant. In particular the Respondent’s letter to the Applicant alleging serious misconduct and the termination letter both considered the Applicant to be an employee and in relation to whom the Respondent needed proper and sufficient grounds in order to terminate the employment of the Applicant. Further the payment made by the Respondent to the Applicant after the termination only arose because there was an employment relationship in place and that this formed the basis for the payment.
[96] The Applicant also contended that Fair Work Australia should consider the letter from the Respondent’s legal representative on 28 June 2011 as being inconsistent with the Respondents assertions as to the absence of an employment relationship being in existence between the Applicant and the Respondent.
Consideration
The Relevant Time Frame
[97] The Respondent submitted that there was a relevant time that Fair Work Australia should have regard to in determining whether or not there was an employment relationship in existence between the Applicant and the Respondent.
“PN138. Mr West: ...it’s not the detail of what was discussed between the parties which is really relevant here, it’s the nature of that exchange during the period from when the position was offered to the applicant until the contract was terminated in May, during that March to May period. It’s looking at the nature of the dealings between the parties to see whether in the nature of those dealings there is evidence of an employment relationship.”
[98] This submission was also repeated at PN168 in a different context.
[99] The Applicant introduced into evidence a letter from the Respondent’s solicitors (DLA Piper) to the Applicant dated 28 June 2011 35. The letter from DLA Piper was signed by Nick Ruskin, Partner, Workplace Relations Employment and Safety. The letter in full is in the following terms:
“Dear Ms Belaj
I act for the Royal Women's Hospital in relation to your correspondence to it arising from the cessation of your employment.
My client has corresponded with you on several occasions both during the period prior to and following the cessation of your employment.
I have been provided with your letters to the Board Chair of the Royal Women's Hospital, Dr Rhonda Galbally AO. In the letter from Chris Gamble, Executive Director Human Resources and Information Technology dated 16 June 2011, it was indicated that you correspond directly with him rather than to the Board Chair. Notwithstanding that, you have written to the Board Chair in your letter dated 21 June 2011.
My client carefully examined all the material that was before it that raised concerns about you not being forthcoming with information about your medical condition. It wrote to you in a detailed manner putting those concerns to you in writing and inviting your response. It wrote to you on a number of occasions and clearly gave you an opportunity to respond. You do not accept its findings. My client is quite content with the findings that it has made as it has concluded that the allegations against you were substantiated. Accordingly, your employment has been terminated.
Your correspondence to it since the cessation of your employment has not persuaded it that its decision is in any way wrong.
It would have much preferred that the relationship not end the way that it has but that was not of its own making.
It does not propose to correspond further with you about this matter as it considers that the discussion and correspondence have now been exhausted.
As I am the legal representative for the Hospital I am, not the Hospital, the contact point in future.”
[100] The existence of this letter and its possible relevance in these proceedings was the subject of submission from Mr West for the Respondent.
“PN163. If I could just very briefly say something about the evidence. It's well established that a determination of whether or not a person is in employment relationship is to be determined on an objection assessment of the relevant facts. Most frequently this exercise is required where there is a distinction between employer-employee and independent contractor relationships, and as we've discussed already, Commissioner, you're well familiar with those cases. We submit that the subjective intention or expectation of the parties is not determinative of this issue. Although it's certainly a factor to be taken into account, this is not a matter of you deciding what the parties intended or what the applicant intended, it's for you to determine objectively, looking at all the facts, as to what in your view the true situation was.
PN164. In this case we acknowledge that the correspondence between the parties does not always draw the legal distinction we seek to making this case. The commission should not attach any significance to that, in our submission. The fact that a party may have referred to "employment" or "employment contract" in a loose way in the correspondence is something that is not, in our submission, a strong indicator of the true nature of what was occurring. The distinction is one that perhaps employment lawyers may draw but regularly in communication those sort of concepts just flow one into the other in terms of the way people express themselves, and that's really the way you should see it, in our submission. It's the substance of - - -
PN165. THE COMMISSIONER: But just on that, if it's a distinction that employment lawyers draw that doesn't necessarily apply practically and when there's communication from the respondent's lawyers and from an employment law expert which uses that language, do I then read it that it was intended to have that clearly understood employment lawyer distinction.
PN166. MR WEST: I understand the purpose of your question on that point. I think what you need to do is look at the substance of the dealings between the parties. That is where you should derive the evidence upon which to base your decision. A letter written in the case - I think the letter you're referring to in this case written some time after the event - - -
PN167. THE COMMISSIONER: Yes.
PN168. MR WEST: - - - for a particular purpose which appears unrelated to the actual toing and froing at the time may well have been put in inappropriate language, but that does not alter the actual nature of the dealings between the parties at the time. That's, in my submission, where you ought to focus your consideration of the issues. So in that respect what we submit is that the substance of the whole exchange between the respondent and the applicant from the time the applicant was asked to complete a WorkCover history form until the circumstances in May when the engagement - when the contract of employment was terminated, we say, on 30 May, It was directed at the issue of whether or not the respondent could proceed to allow the applicant to take up her position and perform her duties. It was in essence about whether or not the parties could act on their agreement to enter into the employment relationship.”
[101] It appears to me that the relevant time frame in this matter includes the period after the letter of termination issued in May. There is a natural continuity of events in relation to this whole matter which continue through to the letter issued by Mr Ruskin of DLA Piper on 28 June 2011.
[102] I note that when the Applicant filed her application with Fair Work Australia on 22 July 2011 the application identified Mr Ruskin and DLA Piper as representatives of the Respondent. However when the Respondent filed its Response to the application on 11 August 2011 it was filed by Mr West of Minter Ellison Lawyers. Somewhere between 28 June 2011 and 11 August 2011 the Respondent changed its legal representative.
[103] Mr West would have Fair Work Australia ignore the letter from Mr Ruskin who was as at 28 June 2011 the legal representative of the Respondent.
Should Fair Work Australia ignore any different position of the Respondent in treating the Applicant as an employee?
[104] In McCormick v Riverwood International (Australia) P/L 36, Weinberg J was considering whether Mr McCormick was entitled to a redundancy payment as a result of an implied term in his contract of employment. At para 98 His Honour said:
“It is not unimportant to note that the senior management personnel of Packaging appear to have assumed throughout that if the applicant was not offered a position with CHH at the meeting of 27 March 1998, he would be entitled to a redundancy payment. The possibility that he may not have had such an entitlement appears to have been considered for the first time only after the applicant brought these proceedings. That does not mean that the contention that there is no such entitlement so forcefully advanced before me lacks legal merit, only that it runs directly counter to the actual beliefs of those most centrally involved. Those beliefs should, in my opinion, be given appropriate weight.”
[105] From the consideration of the evidence in this matter the letter from Mr Ruskin of DLA Piper is consistent with the approach adopted by those most closely involved in this matter and reflects the continuation of a belief held by the Respondent, up to 28 June 2011, that there was an employment relationship in place. Appropriate weight should be attached to the conduct of the Respondent and its previous legal representatives.
[106] Mr West, the Respondent’s current legal representative, clearly attempts to diminish the communications of professionals who are not employment or workplace law experts with the statement that “The fact that a party may have referred to "employment" or "employment contract" in a loose way in the correspondence is something that is not, in our submission, a strong indicator of the true nature of what was occurring.”
[107] Mr West also sought to diminish the letter from Mr Ruskin, Partner, Workplace Relations Employment and Safety at DLA Piper with the comment that the letter was “written some time after the event for a particular purpose which appears unrelated to the actual toing and froing at the time may well have been put in inappropriate language”.
[108] I consider it relevant that Mr Ruskin is a very senior practitioner in the field of employment law and workplace relations and is a senior member of a major law firm. Whilst this doesn’t make Mr Ruskin infallible, proper regard must be given to a considered communication by a person of Mr Ruskin’s standing on behalf of his client the Respondent.
[109] In order to diminish the letter from Mr Ruskin it appears that Mr West has engaged in a very thinly veiled attack on the professional competency of Mr Ruskin. The very fact that Mr Ruskin’s letter on behalf of the Respondent follows other communications from other professional employees of the Respondent which talked in terms of the existence of an employment relationship or of employment undermines the very argument being put by Mr West. I do not consider that Mr Ruskin, Partner, Workplace Relations Employment and Safety at DLA Piper and legal representative of the Respondent would have used “inappropriate language” in his letter to the Applicant on 28 June 2011 when he used such phrases as “cessation of your employment”, “your employment has been terminated” and “that the relationship not end the way that it has”.
[110] Contemporaneous with Mr Ruskin as legal representative for the Respondent writing to the Applicant on 28 June 2011 another employee of the Respondent was issuing PAYG payment summaries to the Applicant.
[111] When the Respondent terminated the employment contract of the Applicant by letter dated 30 May 2011 37 it advised the Applicant that:
“As previously indicated to you the Hospital will make a payment to your nominated bank account of an amount equal to your salary from 28 March 2011 (being the date the contract of employment was to have commenced) until 30 May 2011 (the Termination Date).”.
The payment was described by Respondent as:
“remuneration, superannuation, pay in lieu of annual leave and pay in lieu of accrued days off, as though the Applicant had worked full time from the period 28 March 2011 (the Applicant's intended commencement date) to 30 May 2011 (the date the Respondent terminated the Applicant's employment contract). These payments were made on an ex gratia basis.” 38
[112] Whilst neither Exhibit R1 nor R2 made any mention of tax being deducted from the payment, the Applicant through attachments KB-10 and KB-11 to Exhibit A2 introduced the PAYG payment summaries given by the Respondent to the Applicant and which clearly identify that the payment was made less PAYG tax.
[113] The Applicant contended that the fact of the payment and the fact of the deduction of PAYG tax was consistent with an employment relationship having been in existence. 39
[114] The Respondent in reply contended as follows:
PN376. MR WEST: The next matter that was raised was the evidence of the payments. I just want to say three or four things about the issue of the payments. First of all, the payments were not in law payments of wages earned because no work was performed. It’s a precondition to the payment of wages that service be rendered. We would assert that there was no work performed and therefore no entitlement to wages, however there was an issue of a contract and it’s entirely consistent with the existence of a contract that the employer would make a payment to someone who has had the benefit of a contract to deal with the issue of potential claims under that contract.
and
PN379 MR WEST: The submissions made to you about the issue about tax treatment of this payment in the circumstances does not accord with my understanding of the tax position, although I don’t stand here professing to be a tax expert, but it would be my understanding that the payments made in these circumstances, albeit that no employment relationship is established, would still as a proven employer be taxed in the way they were.
[115] It is difficult to reconcile the submissions of Mr West with the fact that an employee of the Respondent signed each of the PAYG payment summaries as the authorised person for the Respondent and that each of the PAYG payment summaries was given to the Applicant for her use in completing her Income Tax Return. Importantly Attachment KB-11 to Exhibit A2 is a PAYG payment summary in relation to an “employment termination payment”.
[116] Both the letter of 28 June 2011 from Mr Ruskin as legal representative for the Respondent writing to the Applicant and the issuing of PAYG payment summaries to the Applicant on 1 July 2011 are relevant matters that need to be taken into account.
Was there an employment relationship?
[117] The evidence before Fair Work Australia consists of two unsworn statements, with each referring to communications between the Applicant and the Respondent. The answer to the question posed above is to be found within this material.
[118] The Respondent concedes that the Applicant was offered employment on 22 February 2011. The offer was made by Ms Thompson, Operations Manager Perioperative Services. The Applicant recounts the two conversations she had with the Respondent’s representatives on that day as follows:
“4. ...At about 10 am on 22 February 2011, Thompson contacted me via my home telephone, and said that my reference from the RCH was ‘Very Good’. She also said that ‘my RCH reference check revealed that I had a high level of sick leave and that it rang alarm bells in her head, and she needed to ask me about my high sick leave’. I stated that ‘I had surgery in 2009, rehab, recovered well and that I am now fit and well to work, so this is why my sick leave was high’. Thompson replied ‘thank you for explaining and that’s all I require’. I also told Thompson that ‘I am ready, willing, capable and able to begin work at the request of the Hospital and I am very excited to start my new job with the Hospital if I am successful’.
5. ...At about 3:00 pm on 22 February 2011, Thompson contacted me via my home telephone and informed me that Matthew Bell (“Bell”) was present and listening into the conversation. Thompson went on to inform me ‘that I was successful for the SPS Manager position and that they looked forward to working with me and that my starting date would be 14 March 2011.’ I said ‘that I have a two week holiday booked overseas and I would be able to start work when I return, if that’s ok?’
Thompson replied ‘That’ll be fine, then that would make it the 28 March 2011, and
we are prepared to wait for the right person’.
6. I informed Thompson that I would resign from my (then) current employment, with the RCH. I did so to make myself fully available to the Respondent.
7. On or about the 25 February 2011, I resigned my position with RCH...” 40
[119] There was no suggestion from the Respondent that Ms Thompson (in the presence of Mr Bell) did not have the authority to offer a position to the Applicant and to confirm with her a starting date. It also appears from the evidence that the actions of the Respondent, acting through Ms Thompson, were considered actions, as Ms Thompson had checked with the RCH about the Applicant’s work history and leave history before making any offer to the Applicant. It is important to note that not only did the Applicant resign her employment with the RCH so that she was free to work with the Respondent but that the she specifically advised Ms Thompson that she intended to resign her current employment in order to be available to work with the Respondent.
[120] Certainly by the end of the second telephone conversation on 22 February the Respondent wanted the Applicant to work for them and understood that the Applicant would resign her current employment so as to be able to commence work with the Respondent on 28 March 2011. Similarly the Applicant had made clear both her desire to work for the Respondent and her intention to be able to commence work on 28 March 2011. The actions of the parties as at 22 February 2011 appear to be much more than mere positioning to be ready to create a future relationship. Rather the actions appear to coincide with the intentions of the parties to create a relationship which would have the Applicant commence actual work on 28 March 2011.
[121] On 1 March 2011 the Respondent sent a letter to the Applicant which commences with the sentence: “Congratulations on your appointment with The Royal Women’s Hospital.” And finishes with the sentences: “We welcome you as a member of staff and trust you will find your employment with The Women’s both enjoyable and rewarding. We look forward to your contribution to the organisation.”
[122] The appointment letter of 1 March 2011 contained a number of forms which the Applicant was required to fill in and return to the Respondent. The letter makes clear that the only effect of not returning the completed forms before the commencement date of 28 March 2011 was that “your first pay may be delayed.” Additionally the appointment letter required the Applicant to complete and return a “Fit2Work” form and a “Working with Children Check” form and advised the Applicant that “Please note that your commencement date will be delayed if your police check takes longer than expected.” And that “please note that your commencement date will be delayed if your Working with Children Check is not lodged prior to commencement.”
[123] Whilst the appointment letter clearly identifies the possibility of either a possible delay in payday or a delay in commencement date if certain forms are not returned on time there is nothing which would suggest that the Respondent considered that actual commencement of employment would not occur.
[124] On 2 March 2011 the Respondent sent another letter to the Applicant this time confirming the conditions of her employment. The letter had been signed on behalf of the Respondent by its authorised Manager, Ms Thompson. The Applicant was required to sign an “Acceptance of Offer” and return the letter to the Respondent. This the Applicant did on 4 March 2011. The only condition upon ‘initial and ongoing employment’ referred to in the 2nd March letter was that the Applicant had to maintain “registration and qualifications relevant to your occupation, a valid work permit for Australia (if applicable), a National Police Certificate satisfactory to The Royal Women’s Hospital, as well as a valid Working with Children Check.”
[125] It is relevant to note that in the crucial period from the time the position of Sterile Processing Service (CSSD) Manager was advertised and continuing up to and including the time the formal offer of employment was put to the Applicant and accepted by her that nothing was put to the Applicant which even hinted at the offer being conditional on the Applicant either complying with or having the capacity to comply with the Inherent Requirements document.
[126] On 4 March 2011, the same day the Applicant signed the ‘Acceptance of Offer’ she also signed a ‘Work Cover History Form’ which had been part of the material attached to the appointment letter of 1 March 2011.
[127] The Respondent in its written submissions in this matter said:
“12. In truth the Applicant never progressed beyond the status of an applicant for the position, notwithstanding that she accepted the offer made to her in good faith on 1 March 2011.
While she may have had a contract to be employed constituted by her acceptance of the
letter of offer of 1 March 2011 at no stage did she enter into an employment relationship
with the Respondent.” 41
[128] The Respondent relies upon the events after 4 March 2011 to make good this proposition. The salient points of the interaction between the Applicant and the Respondent after 4 March 2011 have been set out above, [66] to [82], and do not need to be repeated here. However some additional information is relevant and is discussed below.
[129] The Work Cover History form which was sent to the Applicant on 1 March 2011 and which she signed and returned on 4 March 2011 opens with the following words:
“In accordance with the Employment Agreement under which you are employed, and in order to assist the Service to ensure that your work environment is a safe one and to facilitate injury prevention programs, new staff members are required on appointment to declare any relevant injuries or illness and all Worker’s Compensation, WorkCare and WorkCover claims made in the last 5 years.
Your assistance in completing this post engagement questionnaire is appreciated.”
[130] Critically the Work Cover History form identifies that employment, appointment and engagement has already occurred.
[131] Notwithstanding the plain words of the Work Cover History form Ms Wilson in her statement described the issuing of this form in the following terms:
“Upon offer of employment, the Respondent requests all prospective employees to complete this form. The form requires prospective employees to advise the Respondent of any relevant illnesses or injuries and all Workers Compensation, WorkCare and WorkCover claims in the last five years.” 42
[132] Whilst the Respondent may require prospective employees to fill in the Work Cover History form it is clear in this matter, having regard to the material relied upon by the Respondent, that by the time the Applicant completed and signed the Work Cover History form the Applicant was not a prospective employee. Prospective means “of or in the future” or “potential; likely; expected” 43. By the time the Applicant had signed the WorkCover History form she was much more than a prospective employee. The Applicant was either already in an employment relationship and with an executed contract of employment or the Applicant was party to an executed contract of employment but with a pending employment relationship. Either scenario is much more than being a prospective employee.
[133] If that was not enough the declaration at the end of the Work Cover History form which the Applicant was asked to make (and which she did make) was as follows:
“I declare that to the best of my knowledge the above information is true and accurate and understand that the deliberate provision of false or inaccurate information may result in termination of employment or the forfeiting of my entitlement to any WorkCover claim.”
[134] The language of the declaration reinforces the opening words of the form in that employment or engagement has already commenced and that a false declaration could lead to either a termination of employment or continuation of employment but with loss of some entitlement to Work Cover.
[135] It is also relevant to note that when the Applicant was asked to make the declaration that “to the best of my knowledge the above information is true and correct” the declaration was sought and given in the context of the Position Description which described the job for which the Applicant had been employed. It is also relevant to note that the very set out of the Work Cover History form required short and succinct answers. The form by its very set out precluded the Applicant from offering long and comprehensive answers. At the time the Applicant filled out and signed the Work Cover History form the Applicant was unaware of the existence of the Inherent Requirements document. Thus the declaration which was sought as to the disclosure of “any relevant injuries or illness” was to be made in the context of the information available to the Applicant as to the nature of the job to be performed as set out in the Position Description.
[136] The first concerns in relation to the Applicant’s employment with the Respondent were expressed by Ms Robyn Hart, OH&S WorkCover Coordinator for the Respondent in a telephone conversation with the Applicant on 10 March 2011. The telephone conversation was followed up by a letter from Ms Hart to the Applicant on 15 March 2011 44 which inter alia said:
“As advised you will not be able to commence employment until a full assessment is made of your condition against the inherent requirements of the position.”
[137] It is important to note that the first reference to “the inherent requirements of the position” only occurred in the letter dated 15 March 2012. I have earlier in this decision dealt with the differences between the Inherent Requirements document and the Position Description.
[138] From the 10 March 2011 onwards it is clear that the Respondent through its OHS and WorkCover specialists adopted the position that the Applicant was not to commence employment until the issues raised concerning the Applicant’s previous work related injuries and her capacity to undertake the work required by the Respondent was resolved. Ultimately the Respondent terminated the employment of the Applicant for serious misconduct.
[139] The conduct of the Respondent from 10 March 2011 onwards was described by Mr West for the Respondent in the following terms:
“PN190. ... These were a unilateral decision taken by the employer, but what we say is that if you’re trying to decide whether these parties entered into an employment relationship where one would work for the other, that one would submit to direction and control, the other would assume responsibility, and they established that nebulous bond of employer and employee, then it’s very relevant that one of the parties, the employer, says, “You’re not going to start work until I’m satisfied of certain things. I’m not going to give you the means to perform the work. I don’t want you to start work until I’m satisfied of these things. I don’t want to take on that responsibility that comes with employing you until I’m satisfied that I can do so safely and that you can do the work safely.
PN191. So the whole tenor of the communication here is the employer saying, “I do not wish to get into that relationship until these things are satisfied,” and so in our submission it is a very powerful indication that the relationship was never established, because the employer didn’t want it established until they were satisfied that these things were satisfied.”
[140] In light of some of the statements made in the communications between the Respondent and The Applicant between 10 March 2011 and the date of termination it would appear that the contention of Mr West may not be accurate. By letter dated 12 May 2011 the Respondent acting through Ms Edwyna Wilson, Director Workforce Services alleged that the Applicant had engaged in serious misconduct. The fourth and ninth allegations of serious misconduct and the conclusion of the letter are relevant. The relevant parts of the letter are as follows:
“4. Further, you indicated that you were able to continue to do your management role duties when in fact you did these when you did return to work only on a part time basis. You signed this statement on the basis that it was to the best of your knowledge “true and accurate and understand that the deliberate provision of false or inaccurate information may result in termination of employment...”
9. On 3 separate occasions the Hospital has sought copies of the full clearance from your medical practitioner back in September/October 2010 and you are still yet to provide it to us despite being directed to do so. We allege that it is a deliberate act on your part to avoid revealing information that you may not wish to reveal despite being obligated to do so and failure to follow a direction to do so. This information could have been obtained either from you or from your practitioner.
We allege that any or all of these matters, if substantiated amounts to serious misconduct as it goes to the heart of the trust and confidence that must be reposed between an employer and an employee especially one who is to perform a managerial role. If this is substantiated, it will be open to the Hospital to terminate your employment without notice.
You are invited to respond in writing to these issues within the next 7 days, after which the Hospital will make a decision on whether the conduct is made out and whether it warrants termination of your employment or other disciplinary action. If there are any other factors that we should take into account about your employment please provide those details to us.” [Emphasis added]
[141] The words underlined all point to there being an employment relationship in existence.
[142] The very language of the alleged serious misconduct is couched in terms of the Respondent having the right to control the conduct of the Applicant and the Applicant failing to act in accordance with the Respondent’s exercise of its power to control her.
[143] Whilst a ‘control test’ is but one of the indicia that must be considered when examining the totality of the relationship between the applicant and the respondent it is an important indicia. Its importance in the present matter increases because it is the Respondent which has asserted the right of control over the Applicant.
[144] In particular the reference in allegation 9 that the Applicant was under an obligation to provide certain information and that the Applicant had failed to follow a direction to do so could only constitute serious misconduct in the context of an employment relationship being in existence. There is nothing in the letter which would suggest that there was a specific term of the contract of employment which required the Applicant to provide the information sought or to follow the direction given. Rather the language of allegation 9 makes sense in the context that the employment relationship was in existence at the time the direction was given. Additionally the reference in the concluding paragraph of the letter to either termination or other disciplinary action supports a finding that an employment relationship was in existence. Taking ‘other disciplinary action’ against the Applicant could only occur if the Applicant was in an employment relationship with the Respondent. If there was no employment relationship in existence disciplinary action would have been an irrelevancy and action for breach of contract would have been relevant.
[145] The Respondent contended that the lack of performance of work by the Applicant and the inability of the Applicant to access the workplace provided a “very persuasive indicator” that there was no employment relationship. Mr West put the argument another way when he contended that:
“PN161..... It’s the performance of work that’s at the heart of the master-servant relationship. Only when service is performed does the employee submit to the direction and control of the employer and it’s only when work is performed or services rendered that the employer assumes its responsibilities in relation to the employee. Put another way, you don’t become an employee until you put on the overalls and walk through the factory gate to commence work.
[146] The non performance of work by the Applicant occasioned by the Respondent refusing to allow her to commence work is a factor which supports the contention that there was never an employment relationship in existence. However, it is not determinative of the issue. I note the submissions of Mr Fehring that:
“...the power to direct a person such as the applicant and the power to give the instruction not to attend to work and to maintain that position, as the respondent did, after 28 March, I say is a significant indicator that it was an employment relationship that was being exercised. The power to direct is a central one to the employee-employer relationship, including the power to say, “Don’t come into work tomorrow.” 45
[147] On balance it appears to me to be clear that the conduct of the Respondent is consistent with an employment relationship being in existence and that the Respondent was acting in accord with its ability to direct an employee within the employment relationship.
Conclusion
[148] I have considered the totality of the relationship between the Applicant and the Respondent and I have done this by “making an informed, considered, qualitative appreciation of the whole” 46. Getting to the “whole” “is a matter of obtaining the overall picture from the accumulation of detail”.47
[149] The picture that is painted from the accumulation of detail gathered from the evidence in this matter is clear. The picture is clear enough that I do not need to form an impression of the meaning of the picture. It speaks for itself. The picture painted shows that the RWH intended to act and acted to create an employment relationship with the Applicant and that the RWH intended to act and acted to terminate the employment relationship with the Applicant. The intentions and actions of the Applicant at all times have been consistent with her entering and being bound by an employment relationship with the Respondent.
[150] Any fair reading of the conduct of the Respondent up to and including the signing of the confirmation of terms and conditions of employment reveal that the Respondent intended to create and did create an employment relationship with the Applicant. As discussed the very language of the Respondent’s allegations of serious misconduct show that the Respondent treated the conduct of the Applicant as being a serious breach of the Applicant’s obligations under the employment relationship.
[151] Applying an informed, considered, qualitative appreciation of the whole of the material before me, both evidence and submissions, I determine that an employment relationship was in existence between the Applicant and the Respondent as at the date the Respondent terminated the Applicant’s employment. I find and determine that the Applicant was dismissed by the Respondent within the meaning of s.386 of the Act. The application was made within the timeframe specified in s.366 of the Act.
[152] The application will be listed for conference on 9 July 2012. A separate notice of listing will be issued to the parties.
COMMISSIONER
Appearances:
Mr I Fehring of counsel for the Applicant
Mr R West for the Respondent
Hearing details:
Melbourne
20 October 2011
1 [2011] FWA 1566
2 [1987] HCA 29; per Mason C.J., Brennan, Deane, Dawson and Toohey JJ
3 [2008] AIRC 210
4 [2009] HCA 34, Heydon, Crennan, Kiefel and Bell JJ
5 [2003] UKHL 33
6 [1985] FCA 356
7 [1994] IRCA 2
8 [2002] HCA 8; 209 CLR 95; 76 ALJR 465; 187 ALR 92 (7 March 2002), Gaudron, McHugh, Hayne and Callinan JJ
9 Hollis v VabuPty Ltd t/a Crisis Couriers, (2001) 181 ALR 263
10 [1986] HCA 1
11 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95; 76 ALJR 465; 187 ALR 92 (7 March 2002)
12 [2011] FCA 366
13 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95; 76 ALJR 465; 187 ALR 92 (7 March 2002)
14 [2003] FCAFC 252
15 [1774] EngR 2; (1774) 1 Cowp 63 at 65; 98 ER 969 at 970
16 Evans v Queanbeyan City Council [2011] NSWCA 230, Allsop P at 41
17 [1938] HCA 34; (1938) 60 CLR 336
18 Exhibit A2 at para 4
19 Ibid at para 5
20 Ibid at para 6
21 Exhibit R2, attachment 1
22 Exhibit A2, attachment KB-01
23 Ibid at paragraph 17
24 Ibid at paras 29 & 30
25 Ibid, attachment 18
26 Ibid, attachment 19
27 [1989] FCA 226
28 Transcript at PN136
29 Ibid at PN131-PN138
30 Exhibit R1, Submissions of Respondent, 29 August 2011
31 Siagian v Sanel Pty Limited (1944) 54 IR 185; Capay Holdings Pty Ltd (trading as Cuddles Long Day Centre) v Slattery [1996] IRCA 624; Ray v Fitness Holidays (Print P6262); Turner v Australian Coal & Shale Employees Federation [1984] FCA 275
32 Transcript at PN161
33 Ibid at PN168
34 Ibid at PN382
35 Attachment KB-08 to Exhibit A1
36 167ALR 689
37 Exhibit R2, attachment 19
38 Ibid at para 42
39 Transcript at PN269-270
40 Exhibit A2
41 Exhibit R1
42 Exhibit R2 at para 8
43 Macquarie Concise Dictionary, 5th edn
44 Exhibit R2, attachment 4
45 Transcript at PN283
46 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944
47 BHP Billiton Iron Ore v CFMEU 151 IR 361, per Le Miere J at para 114
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