Mr Elgin Nogaliza v Benale Pty Ltd ATF Fletcher Unit Trust T/A Fletcher International WA

[2010] FWA 2667

Note: An appeal pursuant to s.604 (C2010/3523) was lodged against this decision.

[2010] FWA 2667

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Elgin Nogaliza
v
Benale Pty Ltd ATF Fletcher Unit Trust T/A Fletcher International WA
(U2009/13064)

COMMISSIONER WILLIAMS PERTH, 7 APRIL 2010

Jurisdictional objection.

[1] Mr Nogaliza (the applicant) has made an application under section 394 of the Fair Work Act 2009 (the FW Act) alleging that he was dismissed from his employment by Benale Pty Ltd (the respondent) and that this dismissal was unfair.

[2] The application was dealt with by a Fair Work Australia conciliator however could not be settled and has been referred to me for determination.

[3] The employer in its response to the application has indicated that it contests whether there is jurisdiction to deal with this matter on the grounds that it believes the application is excluded by virtue of section 386 (2) of the FW Act.

s.386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

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

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

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

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

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

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

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

[4] In addition the respondent contests that the employment was not terminated on the employer's initiative.

[5] Both parties are invited to provide written submissions regarding this jurisdictional objection.

Background

[6] The respondent trades as Fletcher International W. A. and is involved in the business of sheep, lamb, meat and textile processing.

[7] Part of its operations in Western Australia are at Narrikup, 35 kilometres north of Albany.

[8] In 2005 the respondent, in the context where the unemployment rate in the surrounding area was less than 3% , was experiencing difficulty attracting local employees and so embarked on a program of interviewing potential employees in the Philippines.

[9] The respondent says that during the briefings of potential employees in the Philippines detailed information regarding employment and Visa conditions was provided.

[10] The applicant was one of these employees and subsequently was granted a subclass 457 Visa by the Australian Department of Immigration. The applicants Visa allowed him to be sponsored by an employer and work in Australia for a period of up to four years.

[11] The applicant was one of approximately 167 such employees engaged on this type of arrangement by the respondent between October 2005 and August 2006.

[12] The respondent had prepared and the applicant had signed an Australian Workplace Agreement some time in September 2005 and a later Australian Workplace Agreement around the 18th of September 2007. Both Australian Workplace Agreements appear to have been properly registered with the then Workplace Authority.

[13] On the 21st of September 2009 the respondent wrote to the applicant a letter that reminded him that the respondent had offered him ' .. a four (4) year employment contract associated with YANGWA Human Resources Corp which you signed”. The letter goes on to say that the term of his contract expires on 7 October 2009 and that his employment contract would cease with the respondent on that date.

Was the employment terminated on the employer's initiative?

[14] The respondent says that the letter written on the 21st of September to the applicant was a courtesy reminding the applicant that his Visa would expire in early October and to thank him for his past services.

[15] The respondent submits that on the expiry date of the applicants Visa the respondent could no longer lawfully employ the applicant and so it was this that brought the applicants employment to an end rather than any act of the employer.

[16] For the applicant it is argued that the Migration Act 1958 in terms of its effect on the applicant provides a range of possible alternatives to the applicant’s Visa expiring on 7 October 2009 and him no longer being entitled to work and remain in the country. These include being granted a bridging Visa or the sponsoring employer, who was the respondent, offering ongoing sponsorship and so allowing a new Visa to possibly be issued.

[17] As the applicants representative submits there have been cases in the past 1, where the Full Bench of the Australian Industrial Relations Commission has held that even where the employer has a statutory obligation to terminate an employee the employer's action in compliance with these obligations still amounts to a termination at the initiative of the employer.

[18] In my view that is the case here.

[19] The employer has taken a positive action in sending their letter dated 21 September 2009 to tell the applicant that his employment will terminate with the respondent on a future date. The reasons for the employer’s actions are perfectly understandable. This act does however bring this application within the jurisdiction of this tribunal and meets the definition of dismissed in section 386(1)(a).

Was the applicant employed under a contract of employment for a specified period of time ?

[20] Section 386(2)(a) excludes employees from making an application such as this if they are employed under a contract of employment for a specified period of time and the employment was terminated at the end of that period.

[21] The respondent says that the applicant was at all times aware and entered into employment on the understanding that the length of his Visa, being for four years, was the set period of time he could be employed for.

[22] The respondent has provided a document headed ‘Addendum’ which appears to have been signed by the applicant on 8 September 2005 which states that “1. As such, I will be working for Fletcher International in Australia for a period of four (4) years, as indicated in my employment contract. During this period, I am not allowed to seek employment or work for any other company in Australia;”

[23] Further on in the document it is stated “5 .This document will serve as an Addendum to my original contract of employment;”

[24] The parties also provided some, albeit limited, information about the two Australian Workplace Agreements (AWA’s). The first AWA in 2005 apparently was to operate for a period of four years but the subsequent Australian Workplace Agreement lodged in 2007 was said to have a nominal expiry date of five years from the date it was lodged with the Workplace Authority which apparently was 18 September 2007.

[25] The applicant submits that the second AWA included clauses allowing for summary dismissal for cause and also for termination without cause upon the giving of notice.

[26] The meaning of the phrase “.. a contract of employment for a specified period of time..” was considered in Andersen v Umbakumba Community Council 2 by von Doussa J who decided that:

“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 …”

[27] The Australian Industrial Relations Commission has also previously considered the effect of Visas for a fixed duration in Izawa v Ocean Spirit Dive Pty Ltd 3. This was a decision involving an appeal against an earlier decision made by Commissioner Bacon. Commissioner Bacon had concluded at first instance that the contract of employment before him was one that was not ongoing but rather was for a specified period of time. He had found that the specified period was known and was from the commencement date to the expiry date of that applicants subclass Visa 457.

[28] In that case there was evidence before the Commission at first instance that allowed him to conclude that on the creation of the contract of employment both parties knew the employment was dependant upon the terms of the Visa. The Commissioner on the basis of the evidence before him was able to conclude that the employee knew his employment with the employer was for a period of two years.

[29] In this case while neither party has provided a significant amount of evidence as to the applicant's knowledge at the time the contract of employment was made I am satisfied on balance that the issue of the applicant being required to and having gained a Visa, and that Visa being for a period of four years was a central element in the formation of the contract of employment and one of which the applicant was aware at the time the contract was made. The addendum says this very plainly and whilst I accept this was signed by the applicant after the contract of employment had been made it reinforces clearly that this was a central issue for the parties and one which on balance I am satisfied the applicant was aware when he accepted the employment. The applicant did accept the employment on the understanding that it was for a period of time determined by the Visa. The duration of the Visa was the criteria which set the end date for the contract of employment.

[30] Applying however the authority of Andersen v Umbakumba Community Council this is not the only consideration. As the representative for the applicant has argued the contract appears to include a provision where the employment could be terminated without cause by the giving of notice. The respondent has not provided any information to the contrary on this point and they have the onus of proving their objection.

[31] Andersen v Umbakumba Community Council is also authority for the proposition that where a term of the employment contract gives a party the right to bring the employment to an end on notice or payment in lieu, then even if the contract specifies the commencement and cessation dates for employment, the contract is not for a specified period of time. The cessation date merely records the outer limit of a period beyond which the contract will not run. At any point during the period identified by the cessation and commencement dates neither party can know with any certainty when the period of the contract of employment might come to an end 4.

[32] In this instance whilst at first blush the contract of employment appears to have been for a specified period of time this in fact is not the case because the contract included provisions allowing generally for termination of the contract with notice. Consequently I find that the applicant is not prohibited from making this application because of section 386 (2)(a).

[33] This application will be now listed for a determinative proceeding.

COMMISSIONER

 1   Fraser v Sydney Harbour Casino Pty Ltd (1997) 70 IR

 2 126 ALR 121, (1994) 56 IR 102, 26 September 1994

 3   PR900784, 2 February 2001, Harrison SDP, Duncan SDP, Hodder C

 4   Andersen v Umbakumba Community Council, 126 ALR 121, (1994) 56 IR 102 at 106, 26 September 1994, von Doussa J

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