Mr Dean Cook v Seventh-day Adventist Aged Care (South Queensland) Ltd trading as Adventist Retirement Plus
[2020] FWC 406
•28 JANUARY 2020
| [2020] FWC 406 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dean Cook
v
Seventh-day Adventist Aged Care (South Queensland) Ltd trading as Adventist Retirement Plus
(U2018/13468)
DEPUTY PRESIDENT ASBURY | BRISBANE, 28 JANUARY 2020 |
Application for an unfair dismissal remedy – Jurisdictional objection on grounds Applicant employed for a specified period of time – Finding that contract of employment was for a specified period – Contract not ambiguous – Contract not vitiated by Respondent’s conduct – Applicant dismissed before end of specified period but paid until end of specified period – Exclusion in s. 386(2)(a) not established – Dismissal not unfair – Application dismissed.
BACKGROUND
[1] This decision concerns an application made by Mr Dean Cook (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in relation to the termination of his employment by Seventh-day Adventist Aged Care (South Queensland) Ltd trading as Adventist Retirement Plus (the Respondent). The Applicant was employed as Operations Manager Caloundra and Melody Park from 19 February 2018. The Applicant asserts that he was notified of his dismissal on 6 December 2018 and that it took effect on 27 December 2018 and that his dismissal was unfair. The Respondent’s Form F3 Response to the Application indicated that the Respondent is Seventh-day Adventist Aged Care (South Queensland) Ltd trading as Adventist Retirement Plus. To the extent required I exercise the power in s. 586 of the Act to amend the application in relation to the name of the Respondent. The Respondent objects to the application asserting that the Applicant was employed on a contract for a specified period of time and that his employment ended upon the expiration of the specified period as provided in s. 386(2)(a) of the Act so that he was not dismissed.
[2] It is not in dispute that the Applicant’s contract of employment was entered into on 19 February 2018 and that it stated that the position was offered on a “Fixed Term, Full Time contract basis for an initial period of 12 months, commencing as from 19 February 2018”.
[3] The Applicant disputes that the contract was for a specified period of time on a number of grounds which can be summarised as follows. Firstly, the Applicant contends that the use of the term “initial” in the provision about the term of the contract renders the contract ambiguous. Secondly, the Applicant asserts that statements made to him by the Chief Executive Officer and other managers of the Respondent and the fact that he was permitted to enter into a three year novated lease arrangement to purchase a vehicle, led him to believe that his employment would be ongoing. Thirdly the Applicant contends that the termination of his employment was due to several reasons which were not performance related including allegations he made about the Respondent’s clinical practices including to external agencies and that he had been bullied by a Manager of the Respondent and made complaints in relation to this.
[4] The matter is complicated by the fact that the Respondent made a decision to “release” the Applicant from his duties on 6 December 2018 and to pay his normal salary and leave entitlements up until 18 February 2019 – the date upon which it asserts that the specified period set out in the contract expired. It is necessary to determine whether the Applicant was employed on a contract of employment for a specified period of time and whether his employment terminated at the end of that period (the jurisdictional objection). Because of the manner in which the application was pleaded I have considered whether the contract was vitiated by the conduct of the Respondent or alternatively whether it was amended by agreement between the parties. If the jurisdictional objection is not upheld and it is found that the Applicant was dismissed at the Respondent’s initiative it is then necessary to consider whether the dismissal was unfair and if so, whether the Applicant should have a remedy.
[5] Evidence for the Respondent in support of its jurisdictional objection was given by its Chief Executive Officer Mr Eric Anderson, who also conducted the case for the Respondent. The Applicant gave evidence on his own behalf and conducted his own case.
LEGISLATION
[6] Part 3-2, Unfair Dismissal, of the Act contains the statutory scheme concerning access to remedies for unfair dismissal. Section 385 provides that a person has been “unfairly dismissed” if the Commission is satisfied as to four specified matters, the first of which is that “the person has been dismissed”. Section 386 defines when a person has been dismissed as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;…”
[7] A contract for a specified period may terminate by the passing of time at the end of the period rather than by termination at the initiative of the employer. 1 In order to be a contract for a specified period of time, the dates of commencement and completion of the contract must be unambiguous. Further if the contract gives either party an unqualified right to terminate the contract on notice or with payment in lieu of notice, it will not be a contract for a specified period of time. As Von Doussa J explained in Andersen v Umbakumba Community Council2:
“In the expression, “specified” is the past participle of the verb “to specify”. The ordinary meaning in the English language of “to specify” is to mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail: Shorter Oxford English Dictionary, 3 edition. In the context of Art 2, par 2(a) of the Termination of Employment Convention “specified” identifies a period of time or a task the scope and parameters of which are stated definitely. A “specified period of time” is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the Regulation.
A contract of employment to run throughout a nominated number of days, weeks or years would be a contract of employment for a specified period of time. If the terms of the contract of employment, instead of identifying in this manner the period of time during which it is to run, provides that it is to run until some future event, the timing of the happening of which is uncertain when the contract is made, the contract will be for an indeterminate period of time.”
[8] His Honour went on in that case to conclude that:
“In the present case cl 3 and Sch 1 of the Employment Agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl 21(c) to bring the employment to an end on two weeks notice, and the right of the employer under cl 21(d) to bring the employment to end without notice on payment of two weeks salary, the cessation date merely records the outer limit of a period beyond which the contract of employment will not run (unless a new Agreement is entered into pursuant to cl 29). Within the period stated in Sch 1 the period of the contract of employment is indeterminate. At any point during the two year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end.
It is significant that the rights to terminate the contract of employment arising under cl 21(c) and (d) are not conditioned on a breach of any term of the contract. The rights are unqualified. Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may sooner come to an end. In this case, however, the unqualified rights to terminate without reason under cl 21(c) and (d) make it clear, in my opinion, that the contract cannot be so characterised.” 3
[9] In Khayam v Navitas English Pty Ltd 4a Full Bench of the Commission comprehensively considered the operation of s. 386(2)(a) of the Act in the context of termination of employment at the end of a series of time limited contracts. Notwithstanding that the present case involves only one contract, the Full Bench in Navitas made a number of observations and findings which are relevant to the matters I am required to determine which are set out at paragraph [75] of that decision as follows:
“[75] Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:
(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.
(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.
(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.
(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:
(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:
• the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;
• the employee entered into the contract as a result of a serious mistake about its contents or subject matter;
• there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;
• the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;
• the employee lacked the legal capacity to make the contract; or
• the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.
If any of the above applies there will be no legally effective time-limit on the employment (Fisher).
(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).
(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).
(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).
(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher).
(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).”
EVIDENCE AND SUBMISSIONS
[10] As previously noted, it is common ground that the Applicant commenced employment with the Respondent on 19 February 2018. The Applicant was employed under a written contract of employment set out in the form of a letter dated 19 January 2018. After congratulating the Applicant on his employment and detailing some general expectations about his duties and obligations as an employee, the contract states:
“Basis of Employment/Commencement
As has been explained to you, your new position has been made available to you on a Fixed Term, Full Time contract basis for an initial period of 12 months, commencing as from 19 February 2018. Your duties, responsibilities and probation period will be consistent with the Position Description document prepared for this position and attached to this letter for your information.” [emphasis in original]
[11] The Position Description document referred to in the employment contract was not appended to the version of the contract filed by both parties and it was necessary for me to request that it be provided by the Respondent. I also gave the Applicant an opportunity to comment on whether any document provided by the Respondent was the document referred to in his contract of employment. The document provided by the Respondent is headed “Position Profile” and indicates that it was updated on 20 September 2019. The profile document contains the following statement:
“Position Evaluation Proposal
An initial review of performance will be undertaken within six months of employment and then formally at 6 months after commencement.”
[12] In response to a request that he confirm whether the position description was the document referred to in his employment contract, the Applicant sent two statutory declarations and a further statement reiterating much of his case and making a range of comments about the absence of position descriptions and duty statements during the period of his employment. This information goes beyond what was requested and I have accordingly disregarded it. The only comment of any relevance in the further material filed by the Applicant is the assertion that he had never been given or seen the document provided by the Respondent in response to my request. I therefore place little weight on the position description and simply note that the Applicant referred in his evidence to a review being conducted and asserted that no adverse comments were made about his performance in that review.
[13] Mr Anderson’s evidence was that during 2017 the Respondent decided to introduce a new position of Operations Manager for its facilities at Caloundra and Melody Park. At the time the position was created it was not known whether the position would be ongoing and consequently it was decided to create the role a fixed term position for twelve months. The Applicant was successful in being selected for the role and commenced employment on 19 February 2018.
[14] Mr Anderson said that around December 2018, the Respondent conducted a review of the effectiveness of the role of Operations Manager Caloundra and Melody Park and decided that it was not delivering the intended outcomes of operational efficiency and service delivery and that the role would not continue past the twelve month term. Mr Anderson states that given that the timing of the decision was close to the Christmas period it was decided to inform the Applicant of the decision as soon as possible after it was made. It was also decided to “release” the Applicant from his duties to give him an opportunity to find alternative employment and to arrange his personal affairs.
[15] The Applicant was informed of this decision by letter dated 6 December 2018 which relevantly stated:
“Dear Dean
As you are aware your current contract expires on 18th of February 2019 and as such at the board meeting held on the 4th of December 2018 your contract with our organisation was discussed along with a more fundamental review as to whether the position of Operations Manager – Caloundra and Melody Park continues to meet our organisations requirements both operationally and strategically.
After careful consideration the Board reached the conclusion that structurally the position of Operations Manager – Caloundra and Melody Park was not delivering the outcomes that it had originally been intended to achieve at our two smallest facilities. As such this position will no longer be part of our organisational structure moving forward. Unfortunately this decision means that we will not be able to offer you a new contract and the conclusion of your current agreement (i.e. 12 months after commencement 19th February 2018).
Given this decision and with a view to providing you with every opportunity to find new employment the Board has also decided to provide this notice now rather than waiting and giving it 1 month from the end of your contract. Further with a view to allowing both parties to move forward the Board has also decided that your final day with our organisation will be today 6th December and that your normal salary and leave entitlements will be paid out through to the end of your contract…”
[16] In response to the evidence of the Applicant, Mr Anderson said that it would not be unusual for a Chief Executive Officer to express a desire to see both a role and the person hired to fill that role be successful. Mr Anderson also said that he spoke to the Applicant at the time he entered into the novated lease to ensure that he understood that it would revert to a personal liability if the Applicant left the organisation. According to Mr Anderson the Applicant acknowledged this and confirmed that he wished to proceed with the lease. According to Mr Anderson, this conversation would not have been necessary if the role was assumed to continue past the fixed term.
[17] Mr Anderson said that the Applicant was expected to complete the tasks outlined in his evidence as part of his role and that this was irrelevant to the issue about the fixed term nature of the contract of employment. Further, Mr Anderson said the allegations made by the Applicant in his evidence to the effect that the reason for his dismissal was a personality clash with two clinical staff members about staff care and alleged bullying were not the reason for his dismissal. Mr Anderson said that the Applicant’s allegations of bullying were investigated and reasonable attempts were made to address the Applicant’s concerns and provide an opportunity for resolution.
[18] In relation to the Applicant’s assertion that he was dismissed for making a complaint about the Respondent to the Health Ombudsman in November 2018, Mr Anderson said that the documents tendered by the Applicant to support this allegation showed that the complaint was made after 6 December 2018 when he was advised that his contract would not be renewed. Accordingly, the decision in this regard made by the Board on 4 December 2018 could not have been related to the complaint.
[19] Under cross-examination Mr Anderson was asked whether he explained to Mr Cook – approximately one month after Mr Cook commenced employment – that he wanted Mr Cook to be a long term employee. Mr Anderson said that his intent is always to hire employees on a long term basis but that is always subject to the operational needs of the organisation. Mr Anderson disputed the proposition that he told the Applicant that he was required to live in Brisbane and said that this was a recommendation which accorded with Mr Cook’s desire to locate himself in Brisbane for personal reasons. 5
[20] Mr Anderson also rejected the proposition put to him in cross-examination that his discussion with the Applicant about his purchase of a motor vehicle on a three year novated lease arrangement represented “a level of contractual understanding” that the contract was not for a specified term, and in light of the amount of driving between the two locations required to be undertaken by the Applicant. Mr Anderson maintained in response to this proposition that he discussed the novated lease arrangement with the Applicant when it was entered into and informed the Applicant that if his employment ended the payments due under the lease would become his personal responsibility. Mr Anderson rejected the proposition in cross-examination that sending the Applicant to a Fire Safety Advisor Refresher course just before the decision not to renew his contract was communicated would lead a reasonable person to conclude that a longer term contract was to be entered into and said that at the point the Applicant attended the course the decision not to renew his contract had not been made and it was business as usual. Mr Anderson agreed that the decision not to renew the Applicant’s contract was not discussed with the Applicant.
[21] In response to questions from the Commission, Mr Anderson said that the Care Managers at each site were now undertaking site-specific operational duties such as management of laundry and that overarching matters such as fire safety, emergency and other procedures had been assigned to the Chief Operating Officer. Mr Anderson also said that the duties previously performed by the Applicant had been divided between the Care Managers at each site and the Chief Operating Officer and the role was no longer filled by anyone and the Applicant had not been replaced.
[22] In its submissions the Respondent points to the fact that the Applicant was paid his salary and all entitlements up to 18 February 2019 notwithstanding the early “release” from his contract. In support of this submission the Respondent tendered a document headed “Contract Payout Calculation” indicating that salary and leave entitlements were calculated up to 18 February 2019 but that Fringe Benefit amounts were deducted for the current fortnight only. The Respondent submits that the way in which the employment contract was established – for a specified period of time – clearly indicates that the position was not ongoing. Accordingly, the Respondent contends that the termination of the Applicant’s employment was not at its initiative and that the application should be dismissed on jurisdictional grounds. Further, Mr Anderson states that the Respondent has not employed anyone to replace the Applicant.
[23] In support of this submission reference was made to decisions of the Commission to the effect that if an employment contract does not contain a broad unconditional right of termination during the term then it is one for a specified period of time. 6 It was also submitted that as the Applicant was engaged on only one fixed term contract which was not renewed, this was not a situation in which employment continued after a contract or contracts expired.7
[24] The Applicant contended that the wording of his contract of employment is ambiguous and that the use of the term “initial” presumes that there is an additional contract to follow. The Applicant also asserted that the had “several discussions” with the CEO, staff members and residents after signing the contract and joining the organisation, which indicated that his “employment was to be retained unless a breach of duty statement (if one existed) a breach of contracted conduct or there was a period of explained reasons and a discipline process for a termination was conducted”. 8 The Applicant set out the terms of discussions he had with the Caloundra Maintenance Manager, the Nerang Administration Manager and Caloundra Retirement Living residents in which he asserts that he was reassured that he was liked and that there was a desire that he stay on in his role and that concerns were expressed about the previous turnover of operations managers.
[25] The Applicant also attributed the following comments to Mr Anderson:
“Please do not be worried about the 12 month initial period as this is a good period to understand how you are going in the organisation and the role, so at 12 months we can discuss what can be done differently.”
“I want you to be part of the organisation for a long period of time”
“I hope once the initial period of excitement wears off that you still like working for my organisation.” 9
[26] The Applicant said that he was further led to believe that his contract would be ongoing when the CEO and the Board of the Respondent approved a salary sacrifice vehicle for three years from 18 April 2018. At paragraph 4 of his witness statement the Applicant set out a range of matters said to be relevant to whether his dismissal was unfair on the grounds in s. 387(a) – (e) of the Act. It is not necessary to deal with these matters in detail. It suffices to say that the Applicant outlined the amount of work required to be undertaken at both sites and asserted that it was ongoing work which is still required to be performed. The Applicant also detailed responsibilities which were outstanding at the point his employment ended.
[27] In relation to the reasons for his dismissal the Applicant asserted that he had a personality clash with two clinical staff members at Nerang due to what he described as mismanagement and breach of care to a particular resident and “illegal use of S4 chemical restraints” which the Applicant alleges were reported by him in November 2018 to the Queensland Health Ombudsman. Documents in support of this assertion were appended to the Applicant’s witness statement as Annexure A. Those documents comprise an identical email directed to the Office of the Health Ombudsman (sent at 10.05 am) and to the Australian Health Practitioner Regulation Agency (AHPRA) (sent 11.46 am) on 11 December 2018. The emails sent on 11 December 2018 indicate that the Applicant sought to make an anonymous report about a breach of clinical practice being the administration of chemical restraints to aged care recipients without a signed authorisation from a General Practitioner.
[28] The emails state that the issue had been anonymously reported to Queensland Health (Gold Coast Public Health Unit) and the Office of the Health Ombudsman on 12 November 2018 and provides a case number. The emails also state that the anonymous report was made by a Senior Enrolled Nurse and that the Applicant asked the Enrolled Nurse whether she would be comfortable making the report and gave her contact details for the Health Ombudsman in order for her to do so. The Applicant also stated in his reply evidence that the November complaint was made by an Enrolled Nurse. This is inconsistent with the Applicant’s Witness statement in these proceedings where he asserts at paragraph 5a.3 that he made the report to the Health Ombudsman on 12 November 2018. I also note that the Applicant gave his details in the 11 December email stating that he is the Operations Manager of Adventist Retirement Plus Caloundra and Nerang. This statement was at best patently incorrect given that the Applicant was informed on 6 December 2018 that this would be his last day with the Respondent.
[29] In his evidence to the Commission the Applicant asserted that a reason for his dismissal is that he made numerous internal complaints about bullying and that the Respondent chose to keep the perpetrator in employment because that person generated more income. The Applicant also asserted that he had never been given performance counselling regarding the reasons behind his dismissal and that he excelled at all facets of his employment and had personal and professional character and ethics which were beyond reproach. In his statement in reply, the Applicant reiterated that the “initial contract” was for an “initial period” and that the comments of the CEO about wanting him to stay for a long time, together with discussions at the second interviews about his previous experience affirmed that he was not employed for a specified period. The Applicant also referred to the previous occupant of his position asserting that this person had less experience and had the same contract which was simply renewed as a mere formality until that person chose not to continue in the role.
[30] Further, the Applicant said that the salary sacrifice vehicle was clearly for a three year period and that nothing was said to the contrary during the application process for the vehicle. The Applicant said that he did not understand the paperwork signage requirements in relation to the novated lease and that the CEO told him that because it was a Board of Directors and organisation signing issue the whole of the paperwork was required to be scanned and emailed. The Applicant states that this was the only verbal or other explanation that he received in relation to the salary sacrifice vehicle. The Applicant also stated that given the ability to travel extreme distances each day by way of a salary sacrificed vehicle, while possessing five years of aged care experience and several academic qualifications, he did not expect an abrupt termination. Further, the Applicant pointed to the Respondent’s submissions in this case which make clear that his performance was not part of the reason to dismiss him.
[31] The Applicant identified outstanding issues in relation to accreditation and fire safety at the time his employment ended asserting that these evidenced that his role was still required. The Applicant also said that there was no discussion or ability for him to discuss the reason behind his dismissal and that the review process mentioned by the Respondent was not done with any notice to him. The Applicant asserted that there was no duty statement to assist him to understand the requirements of his role and that the two sites he was required to manage operated in a manner that was like “chalk and cheese”.
[32] Further, the Applicant asserted that audio recordings he made to support his bullying allegations were not taken into account by the Respondent but that when the alleged bully made an allegation of bullying against the CEO the Respondent requested his recordings to aid in the defence of those allegations. The Applicant said that he suspects that the operational review and the decision to terminate his position was made because of the inability of the Respondent to take appropriate action on the systematic bullying issues he had raised and that the person against whom he made the allegations was retained because of that person’s ability to generate income being greater than that of the Applicant. The Applicant also reiterated his allegation that the reason for his dismissal was the complaints about the use of chemical restraints.
[33] Under cross-examination the Applicant agreed that he signed the contract dated 18 February 2018. The Applicant also agreed that he initiated the novated lease that he entered into for his vehicle. In response to questions from the Commission the Applicant maintained that there was no conversation with him about the requirement that he be responsible for the novated lease if his employment was not continued and ended before the three-year term of the lease. The Applicant agreed that he read the lease before he signed it and was aware that he would be responsible for the payments if his employment ceased but maintained that he was under the impression that his employment would be for longer than 12 months.
[34] The Applicant maintained that notwithstanding that it was arguable that he had engaged in a series of emails with the person against whom he had made bullying allegations and that the emails arguably evidence fault on both sides, he had been bullied. In response to the proposition that the Respondent was entitled to reach the conclusion that it had reached in relation to how it wanted the duties of his role performed, the Applicant maintained that he would have remained in employment for a lengthy period because he needed the job. The Applicant also said that he has been adversely impacted by the termination of his employment in the search for a new job and had suffered health issues which he was still dealing with because of this. The Applicant agreed that he had no reason to challenge the Respondent’s evidence that he had not been replaced and that the position of Operations Manager Caloundra and Melody Park no longer existed.
[35] I turn now to consider each of the issues for determination in light of the principles set out in Navitas.
CONSIDERATION
Was the Applicant employed on contract of employment for a specified period?
[36] The Applicant’s contract of employment was in my view a contract for a specified period. The terms of the contract specify a period of time that has certainty – 12 months from 19 January 2018. The contract does not provide for a right of termination – unilateral or otherwise. There is some debate in relation to whether such a provision results in a contract not being for a specified period as provided in s. 386(2)(a). In the present case it is not necessary to consider this as the contract contains no such provision. Accordingly it cannot be argued on this basis that it is not in truth a contract for a specified period.
[37] The Respondent did not tender the position description referred to in the contract and the parties did not specifically refer to the provisions of the position description in relation to review of the contract. In light of the Applicant’s denial that he had ever been shown the document tendered by the Respondent in response to my request, I have not had regard to that document. The fact that the contract mentions a review process does not change its nature as a contract for a specified period of time. The review does not give rise to any right to terminate the contract before its specified end date and does not raise any ambiguity in relation to the specified end date.
[38] I do not accept that the inclusion of the term “initial” created ambiguity about the period of time for which the contract would run. If there was ambiguity associated with the use of the term “initial” it could only relate to whether it was intended that a further contract would be offered at the completion of the period specified in the earlier contract. The term initial did not alter the nature of the contract in which it was included so that the contract ceased to be a contract for a specified period of time.
[39] The present case is not one where the contract under consideration is the latest in a series of time limited contracts so that it could be said that the contract did not represent the reality or totality of the terms of the employment relationship. It was the first and only contract between the parties. Nor do I accept the other matters relied on by the Applicant to establish ambiguity about the end date of the contract or its nature. That the Respondent agreed to the Applicant entering into a novated lease to purchase a vehicle for a period beyond that specified in the contract, did not create any ambiguity in relation to the period of time specified in the contract.
[40] The Applicant is a tertiary educated person who held a management role. I do not accept his evidence that the did not really understand the paperwork associated with the novated lease. The Applicant ultimately conceded that he did understand that he would be personally responsible for the payments under the lease if his employment ended during its term. The Respondent did not encourage or induce the Applicant to enter into the lease and the Applicant accepted that he initiated the arrangement. Even if the Respondent did encourage the Applicant to enter into a novated lease this of itself would not be conduct that could vitiate the fixed term nature of the contract. The Applicant’s contract of employment provided for a motor vehicle allowance of $220 per fortnight and for payment of an additional allowance referred to as a travel budget in the amount of $700 per fortnight. The fact that the Applicant chose to enter into a novated lease to purchase a vehicle to undertake travel associated with his role does not alter the nature of the contract of employment applicable to that role.
[41] Further, I am of the view that even if the discussions alleged by the Applicant about the prospects of him remaining in employment occurred, these did not establish any ambiguity in the terms of the contract in relation to the period of time specified in that contract. Such discussions can only have related to his expectation about whether a further contract would be offered.
[42] I do not accept that any vitiating factors of the kind identified in Navitas operated in the present case. The employer did not misrepresent the contract term and nor was there misleading conduct on the part of the Chief Executive Officer or any other manager, employee or agent of the Respondent in relation to that term. If all of the Applicant’s evidence about the discussions he had with the Chief Executive Officer about the duration of his employment with the Respondent are accepted, those discussions represent no more than a hope that the contract would be renewed into the future. They could not have misled the Applicant about the nature of the contract he was signing.
[43] The Respondent’s Chief Executive Officer Mr Anderson presented as credible witness who approached his evidence in a careful and considered manner and I accept that he did not say anything that could have misled the Applicant about the nature of the employment contract. In my view, it is improbable that Mr Anderson would have said anything to undermine the nature of the contract that was offered to the Applicant. The Applicant presented as a witness who was deeply aggrieved with his perceptions about his treatment by former work colleagues and his views about the impact that this had on the decision of the Respondent not to continue with his employment. While I accept that the Applicant is disappointed with the fact that he was not offered a further contract, that does not equate to misleading conduct or misrepresentation on the part of the Respondent about the nature of the contract that the Applicant entered into.
[44] There are no circumstances to support a finding that there was unconscionable conduct on the part of the employer with respect to entering in the contract with the Applicant. As previously noted, the Applicant is a tertiary educated person with management experience and I do not accept that he was under any disability that would give rise to an argument in relation to unconscionable conduct or that the Applicant lacked the capacity to enter into the contract. There is also no evidence of duress or coercion on the part of the Respondent with respect to the Applicant entering into the contact and nor is there any evidence that the contract was a sham. Mr Anderson provided legitimate business reasons for the Respondent deciding that the position would be offered on the basis of a fixed term contract and I accept his evidence in this regard.
[45] This is not a case of the kind identified by the Industrial Relations Court of Australia in Fisher v Edith Cowan University (No 2) 10. In that case the Court said:
“There may also be termination of the employment at the initiative of the employer and not pursuant to the mutual will of the parties if the terms of a fixed period contract have been varied in the course of performance of the contract, or the contract has been abandoned and replaced by another agreement, or the employer engaged in conduct or representations which estop the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated. In those circumstances an employee may show that reliance by the employer upon the purported effluxion of a period of time for employment is, in fact, termination of the employment at the employer’s initiative.”
[46] As the Full Bench observed in Navitas there must be a proper legal foundation in relation to conduct or representations to estop the employer relying on the terms of a contract as the means by which the employment relationship has ended. For the specified term of the contract to be deemed to be varied by conduct, would require evidence of a clear consensus to vary the contract 11 which was capable of forming a binding contract and intended by the parties to constitute a binding contract.12 In the present case, comments made by residents expressing that they liked the Applicant and hoped he would remain do not provide a proper legal foundation for estoppel. Similarly, comments by managers such as the Maintenance or Administration Manager of a facility for which the Applicant was the Operations Manager do not establish a consensus between the Respondent and the Applicant to found an estoppel.
[47] Even if the comments attributed by the Applicant to Mr Anderson are accepted, they do not evidence a consensus that the contract be varied or a variation of the contract in the course of its performance or the abandonment of the contract and its replacement with different terms. The fact that the Respondent facilitated a novated lease for the Applicant does not evidence consensus that his employment would continue for an equivalent period. I do not accept that this is a matter which could properly establish estoppel of the kind identified in Fisher. It is also the case that the terms of the contract are not inconsistent with the terms of an award or enterprise agreement.
[48] For these reasons I find that the Applicant was employed under a contract of employment for a specified period of time.
Did the Applicant’s employment terminate at the end of the period specified in the contract?
[49] In order to establish the exclusion from dismissal in s. 386(2) of the Act it is necessary that the person was employed under a contract of employment for a specified period and that the employment has terminated at the end of the period. These are two separate limbs each of which must be found to exist before the exclusion from the unfair dismissal provisions operates. While there may be debate about the effect of a provision which allows for a contract for a specified period to be terminated before the expiration of the period, there is no debate about the effect of an actual termination of employment before the specified period.
[50] Consistent with the principles established in the majority Decision of the Full Bench in Navitas an analysis of whether there has been a termination at the initiative of the employer is conducted by reference to termination of the employment relationship not by termination of the contract of employment. In the present case, it is clear from the evidence that the employment relationship between the Applicant and the Respondent was terminated on 6 December 2018. The letter to the Applicant dated 6 December 2018 clearly states that this is his final day. The contract payout calculation tendered by the Respondent indicates that salary and leave entitlements were calculated up to 18 February 2019 but that Fringe Benefit amounts were deducted for the current fortnight only.
[51] This may be a technicality. However, it is an important technicality because it determines whether a person can access a remedy for unfair dismissal. If the Respondent had informed the Applicant that his employment would not continue past 18 January and directed him to remain at home on gardening leave or similar while allowing him to pursue alternative employment, the requirements in both limbs of s. 386(2)(a) would have been met and the Applicant would not have been dismissed. However, on the facts in this case the Applicant was dismissed at the employer’s initiative because his employment was terminated by the employer prior to the date specified in his contract, and therefore the Applicant’s employment was not terminated at the end of the specified period. Accordingly, the second limb of s.386(2)(a) has not been met and I find that the Applicant was dismissed.
[52] It is therefore necessary to consider whether the Applicant’s dismissal was unfair.
Was the Applicant unfairly dismissed?
[53] Section 387 of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I deal in turn with each of these matters below.
Was there a valid reason for the Applicant’s dismissal related to capacity or conduct? – s. 387(a)
[54] I do not accept the Applicant’s assertions that there were ulterior motives for his dismissal. While it is true that he complained of being bullied by certain staff of the Respondent, the email correspondence tendered by the Applicant in support of this allegation evidences that it is equally probable that the Applicant had a personality clash with the persons against whom he made the allegations. It is also the case that the complaints made by the Applicant against the Respondent alleging unlawful use of chemical restraints were made after he was dismissed.
[55] Further the Applicant’s role is no longer being filled by anyone. The Respondent decided to implement the role to determine whether it was required on an ongoing basis and for that reason appointed the Applicant for a specified period. The Respondent then made an operational decision that it no longer required the role. Accordingly, I find that the Applicant was not dismissed for a reason relating to his capacity or conduct so the question as to whether any such reason was a valid one does not arise.
Was the Applicant notified of the reason for his dismissal? – s. 387)(b)
[56] The Applicant was not dismissed for a reason relating to his capacity or conduct, so no issue arise as to the notification of such a reason.
Was the Applicant given an opportunity to respond to any reason related to his capacity or conduct? – s. 387(c).
[57] The Applicant was not dismissed for a reason relating to his capacity or conduct, so the issue of whether he was given an opportunity to respond to any such reason does not arise.
Was there any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to his dismissal? – s. 387(d)
[58] There is no positive obligation on an employer to offer an employee the opportunity to have a support person13. The inquiry in s. 387(c) is directed to whether any request was unreasonably refused. There is no evidence that the Respondent denied the Applicant the assistance of a support person at any discussion which may have occurred concerning his dismissal.
If the dismissal related to unsatisfactory performance – whether the Applicant was warned about that unsatisfactory performance before the dismissal? – s. 387(e)
[59] The dismissal was not related to any unsatisfactory performance on the part of the Applicant so no issue arises as to whether he had previously been warned about unsatisfactory performance.
Did the size of the employer’s enterprise impact on the procedures followed in effecting the dismissal of the Applicant?; and Did the absence of dedicated human resource management specialists or expertise in the enterprise impact on the procedures followed in effecting the Applicant’s dismissal? – ss. 387(f) and (g)
[60] The Respondent is a large employer with a dedicated human resources team, and accordingly there was no adverse impact on its capacity to follow appropriate procedures in effecting the dismissal.
Are there any other relevant matters? – s. 387(h)
[61] I consider that the following matters are relevant and weigh against the proposition that the Applicant’s dismissal was unfair:
(1) The Applicant was employed on the basis that his employment with the Respondent was for a specified period and would end at the specified time.
(2) The Applicant understood or should reasonably have understood that there was no guarantee that his employment would continue after the specified period and was subject to a further contract or an extension being offered.
(3) The Respondent had employed the Applicant for a specified period for the reason that it wished to assess whether it required the role he was employed in on an ongoing basis.
(4) The ending of the Applicant’s contract came to pass when the Respondent decided that it no longer wished to have the role of Operations Manager Caloundra and Melody Park in its organisational structure and redistributed the duties among existing employees.
(5) The decision to abolish the role was for operational reasons and was a decision that the Respondent was entitled to take.
(6) Notwithstanding that it terminated the Applicant’s employment before the end of the specified term, the Respondent paid him his salary and entitlements to the end of the specified term.
(7) Had the Respondent directed the Applicant to remain at home for the duration of the specified term of his contract the result would have been that the Applicant’s employment ended because the specified end date of his employment was reached.
[62] It is arguable that had the Applicant been retained in employment until the specified term of his contract, the payments for his car between 6 December 2018 and 18 February 2019 would have been made under the novated lease arrangements. However the Applicant did not put evidence before me as to what if any effect this had and it is not a matter I intend to deal with as in all of the circumstances it is not sufficient to render the Applicant’s dismissal unfair.
CONCLUSION
[63] Having regard to the above matters, I am not satisfied that the Applicant’s dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss the application and an Order to this effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr D Cook on his own behalf.
Mr E Anderson on behalf of the Respondent.
Hearing details:
2019.
9 July.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR716189>
1 Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1532.
2 (1994) 126 ALR 121.
3 Ibid at 126.
4 [2017] FWCFB 5162.
5 Transcript PN65.
6 Peters v City of Stirling (2008) AIRC 1157; White v Sydney College of English Pty Ltd (2010) FWA 7644.
7 In contrast with the situation in D’Lima v Princess Margaret Hospital (1995) 64 IR 19.
8 Witness Statement of Mr Dean Cook Exhibit A1 paragraph 2.
9 Ibid at paragraph 2.
10 (1997) 72 IR 464.
11 Bundadoon Sandstone Pty Ltd v Cenric Group Pty Ltd and Another (2019) 373 ALR 591.
12 Air Great Lakes Pty Ltd v K S Easter Holdings Pty Ltd (1985) 2 NSWLR 309 at 326.
13 Explanatory Memorandum to Fair Work Bill 2008 at para. 1542.
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