Mr Zane Beaumont v Wilson Security Pty Ltd

[2016] FWC 5662

[2016] FWC 5662

FAIR WORK COMMISSION

DECISION

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

Mr Zane Beaumont
v
Wilson Security Pty Ltd
(U2016/886)

COMMISSIONER HUNT BRISBANE, 12 AUGUST 2016

Application for relief from unfair dismissal.

Application for relief from unfair dismissal – jurisdictional objection – was the Applicant dismissed at the initiative of the Respondent – jurisdictional objection upheld – application dismissed.

Introduction

[1] Mr Zane Beaumont has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Wilson Security Pty Ltd (Wilson Security).

[2] Mr Beaumont commenced employment with Wilson Security on 23 February 2014. He was employed as a Safety and Security Advisor in Port Moresby, Papua New Guinea, and then later at the Manus Regional Processing Centre at Manus Island, Papua New Guinea.

[3] There are no extra-territorial considerations to have regard to with respect to Mr Beaumont’s employment. Mr Beaumont was employed in Australia and performed work in Papua New Guinea.

[4] Following the cessation of the employment on 29 February 2016, Mr Beaumont made the application to the Fair Work Commission (the Commission), alleging that his dismissal was harsh, unjust or unreasonable.

[5] Wilson Security objected to the application proceeding on the basis that it submits that Mr Beaumont was employed pursuant to a fixed-term contract with an end date of 29 February 2016. Wilson Security contends that the date of 29 February 2016 having passed, Mr Beaumont’s employment ended with the effluxion of time, and not on the initiative of Wilson Security.

[6] Directions were issued for the filing of evidence and submissions to determine the jurisdictional objection only.

[7] The matter was listed for hearing on 13 June 2016 to determine the jurisdictional objection only. While Mr Beaumont filed some material in relation to the substantive application or merit arguments, I have had regard only to the material relating to the jurisdictional objection.

[8] Leave was granted for Mr Tass Angelopoulos of National Workplace Lawyers to appear pursuant to s.596(2)(a) of the Act representing Wilson Security. I determined that Mr Angelopoulos’ appearance would enable the matter to be dealt with more efficiently, taking into account the complexity of the jurisdictional issue.

[9] Mr Beaumont was self-represented. Assistance was afforded to Mr Beaumont by me during the hearing.

Relevant Provisions of the Legislation

[10] The Act at s.385 provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[11] Further, ss.386(1), (2)(a) and (3) provide:

“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.

(1) 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

...

(1) 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.”

Jurisdictional Issue

[1] It is not contended by Wilson Security that Mr Beaumont was employed pursuant to section 386(2)(a) for a stated period of time. This is so because relevant authorities have determined that only contracts of employment that are truly fixed – that is, there is no ability to terminate the employment by the giving of notice during the period – are contracts for a specified period of time.

[2] In the case of Mr Beaumont, it is contended by Wilson Security that Mr Beaumont’s latest employment agreement – that being the latest extension of a series of employment agreements and extensions - was for a fixed period of time, ending on 29 February 2016. A termination clause within the agreement allowed for the contract to be terminated prior to 29 February 2016.

[3] Where below I refer to relevant employment agreements being for a fixed-term, I note that the agreements include an ability to terminate earlier than the stated term. These agreements have been referred to in earlier decisions of the Commission as ‘outer limit’ contracts. They may also be referred to as maximum-term contracts. For the sake of convenience, I refer to them as fixed-term agreements.

Evidence of Wilson Security

[4] Evidence for Wilson Security was given by Mr Luke Golley, Senior Human Resources Advisor.

[5] Mr Golley has worked at the Manus Island Regional Processing Centre since his commencement with Wilson Security in August 2014. Mr Golley’s role is to manage relevant human resources requirements for security staff on the Island.

[6] Mr Beaumont was a fly-in, fly-out employee, and was rostered to work three weeks on, three weeks off.

[7] Mr Beaumont’s duties included ensuring the welfare and security of transferees within the processing centre, together with the protection of assets.

[8] A number of employment agreements were issued to Mr Beaumont in the two years that he was employed with Wilson Security.

The first employment agreement

[9] The first employment agreement was offered to Mr Beaumont on 22 February 2014. The relevant provisions to demonstrate the agreement was for a fixed-term are below:

“Following our recent discussions, Wilson Security Pty Ltd (the Company) is pleased to offer you fixed term employment until the 30 September 2014.

…..

…..

There is no guarantee of further employment beyond the fixed term, but this does not prevent the Company and the Employee entering into a new agreement either during the fixed term or at the end of the fixed term, if they both agree.”

[10] An annexure titled “Common Conditions” is attached to the employment agreement. The relevant provisions to demonstrate the agreement was for a fixed-term are below:

“This offer of employment is for the sole purpose of working at the Designated Location. Your employment will commence on 1/03/2014 or such other date as may be agreed between us.

Your employment is for a fixed term until 30 September 2014. Subject to earlier termination under clauses 18 of this letter of offer, your employment will end on 30 September 2014. (Termination end date). On the date of termination of your employment, unless earlier termination under clause 18 of this letter applies, your employment (and this Agreement) will end without the need for you or the Company to provide notice or any termination payment.

There is no guarantee of further employment beyond the 30 September 2014, but this does not prevent the Company and the Employee entering into a new agreement either during the fixed term or at the end of the fixed term, if they both agree.”

[11] It is not contested that Mr Beaumont commenced employment on 23 February 2014, although the employment agreement contemplates commencement on 1 March 2014. The agreement allows for the commencement of employment earlier than 1 March 2014 if agreed between the parties.

The second employment agreement

[12] On 5 September 2014, Wilson Security offered a revised fixed term agreement to Mr Beaumont. The relevant provisions to demonstrate the agreement was for a fixed-term are below:

“Following our recent discussions, Wilson Security Pty Ltd (the Company) is pleased to offer you a revised fixed term employment until the 31 October 2015 for the purpose of being seconded by the Company to perform work for Wilson Protective Services PNG Limited at the Regional Processing Centre at Manus Island (the “Designated Location”) on the terms and conditions set out in this Agreement.

There is no guarantee of further employment beyond the fixed term, but this does not prevent the Company and the Employee entering into a new agreement either during the fixed term or at the end of the fixed term, if they both agree.”

[13] An annexure titled “Common Conditions” is attached to the employment agreement. The relevant provisions to demonstrate the agreement was for a fixed-term are below:

“This offer of employment is for the sole purpose of working at the Designated Location. Your employment will commence on the 1^st of October 2014 or such other date as may be agreed between us.

Your employment is for a fixed term until 31 October 2015. Subject to earlier termination under clauses 18 of this letter of offer, your employment will end on 31 October 2015. (Termination end date). On the date of termination of your employment, unless earlier termination under clause 18 of this letter applies, your employment (and this Agreement) will end without the need for you or the Company to provide notice or any termination payment.

There is no guarantee of further employment beyond the 31 October 2015, but this does not prevent the Company and the Employee entering into a new agreement either during the fixed term or at the end of the fixed term, if they both agree.”

Extension of second employment agreement

[14] On 2 October 2015, Wilson Security sent a letter to Mr Beaumont by email. The letter describes Wilson Security’s contract negotiations with Transfield Services for the provision of security services for the offshore immigration services it was providing to Transfield Services. Wilson Security advised that Transfield Services was negotiating as the principal contractor with the Australian Border Force for the offshore immigration services.

[15] Wilson Security’s letter to Mr Beaumont sought to extend the fixed-term employment for a period of one month. The relevant provisions to demonstrate the extension letter of 2 October 2015 was for a fixed-term are below:

“As you are aware, you are presently employed pursuant to a fixed term contract of employment that comes to an end in the coming weeks.

…..

…..

As a result of the above, the Company is pleased to offer you an extension of your current fixed term contract to 30 November 2015. To accept this offer all you need to do is simply turn up for work on your next rotation immediately following your current contract end date.

…..

…..

As a final point, it would be remiss of us not to confirm the fact that, unless you are offered an extension beyond 30 November 2015, your employment will come to an end on that date and you will not be entitled to any further notice or redundancy pay because your employment contract will end in accordance with its terms and not at the initiative of Wilson.”

Expressions of interest sought

[16] On 5 November 2015, a memorandum was sent to relevant employees by email inviting expressions of interest from current employees to continue working in the event the contract was extended, as anticipated. The memorandum included the following invitation:

“We are inviting expressions of interest (EOI) from those current employees of Wilson interested in working for Wilson in non-leadership positions in connect with the New Contract – assuming the New Contract is ultimately awarded to Wilson.

We emphasise that an EOI does not constitute or guarantee an extension of your current fixed term period of employment. Nor does it constitute an offer of employment by Wilson.

……………..

……………..

If you wish to be considered for a role associated with the New Contract, you must submit an EOI.”

[17] The memorandum states that expressions for non-leadership roles were open effective the day of issue of the memorandum, 5 November 2015. A document, ‘Frequently Asked Questions (FAQS)’ was attached.

[18] Paragraph 10 of the FAQS is reproduced below:

“10. Can’t I just keep my old job?

No. Your current contract of employment is a fixed term contract. It will expire soon. Your existing position won’t exist in the new organisation structure as we have made changes to the position descriptions and changes to our performance evaluation criteria. If you wish to be considered for employment under the new contract you will need to submit an EOI and participate in a selection process.”

[19] Paragraph 18 of the FAQS is reproduced below:

“18. What if I don’t lodge an EOI?

If you don’t lodge an EOI, you will not be considered for employment under the new contract and your employment will cease on its current date unless the current expiration date is extended by Wilson. Redundancy payments do not apply in these circumstances.”

[20] The FAQS state that expressions of interest would be open for a period of six weeks. It is not disputed that Mr Beaumont did not complete an expression of interest.

Further extension of second employment agreement

[21] On 17 November 2015, Wilson Security sent a letter to Mr Beaumont by email. The relevant provisions to demonstrate the extension letter of 17 November 2015 was for a fixed-term are below:

“As anticipated, Transfield Services has given Wilson notice of a further extension of its subcontract to 29/02/2016 and Wilson are pleased to offer you an extension of your current contract term to 29/02/2016 (the Extended Term).

The terms of your employment set out in your contract continue to apply during the Extended Term.

….

…..

Your employment and your contract with Wilson will cease on the Extended Term. You should have no expectation of employment beyond the end of the Extended Term, nor will you have any entitlement to notice or redundancy pay.

By attending your next rotation immediately following 30 November 2015, you agree to be employed on the terms as set out in this letter.”

Notification of completion of fixed-term contract

[22] On 10 February 2016, Wilson Security sent a letter to Mr Beaumont by email a ‘Completion of Contract Notice’. The notice states relevant to the issue of a contract for a fixed-term:

“We refer to your original contract expiring 31 October 2015, as well as your subsequent fixed term contract extensions on 2 October 2015 and 16 November 2015 and now confirm that we will not be renewing your fixed term contract located at PNG after the expiration of your current fixed term contract on 29 February 2016.

We will not require you to return to work on your next rotation and will pay out any remainder owing from your current fixed term contract up to and including 29 February 2016.

We require you to return all Company property in your possession, including, but not limited to laptops, company mobile phone, keys, passes, etc. Upon receipt of these items, the Company will release your final payment (i.e. any entitlements owed to you) into your nominated bank account.

An End of Year Payment Summary for the 2015/2016 financial year will be forwarded to your home address in July 2016. We ask you to advise us in writing if your postal address changes prior to this being issued.

We wish you well in your future endeavours.”

Evidence of Mr Beaumont

[23] Mr Beaumont stated that he commenced employment with Wilson Security in late February 2014. A number of forms were completed by him prior to commencement.

[24] On 25 April 2015, Mr Beaumont was required to restrain a detainee who had become aggressive. Mr Beaumont did this to ensure order and calm in the facility. In doing so, Mr Beaumont injured his back.

[25] Mr Beaumont remained injured throughout 2015. Mr Beaumont was examined by his doctor on 18 January 2016 and cleared fit for his normal work from 29 January 2016.

[26] On 2 February 2016, Wilson Security informed Mr Beaumont by email that he would be required to be assessed by a psychologist the following day. Wilson Security organised an independent medical examiner to determine Mr Beaumont’s capacity to return to work.

[27] Mr Beaumont attended the medical examination on 3 February 2016.

[28] On 10 February 2016, Mr Beaumont received by email the Completion of Contract Notice referred to in [33].

[29] Mr Beaumont’s evidence is that he was very surprised, disappointed and upset at receiving this notification. Mr Beaumont endeavoured to obtain a copy of the psychologist’s report, but was refused a copy by Wilson Security.

[30] Mr Beaumont was informed that he could discuss the contents of the psychologist’s report with his general practitioner. When Mr Beaumont visited his general practitioner, the doctor discussed with him the contents, but was not authorised to provide to him a copy of the report on the account that the report was owned by Wilson Security.

[31] Mr Beaumont contends that following his dismissal he made repeated requests for a copy of his employment agreement, together with an employment separation certificate. Mr Beaumont submits that he did not have a copy of the various employment agreements until he made an application for unfair dismissal and the material was filed by Wilson Security.

[32] Mr Beaumont contends that he did not receive the memorandum of 5 November 2015, requiring employees to lodge an expression of interest. It is Mr Beaumont’s evidence that he has a hotmail account, and if emails were sent by Wilson Security to hundreds of employees, it may be that the email went to his junk folder. Sometimes he is unable to open email attachments.

[33] Mr Beaumont’s evidence is that other employees who were at work or rostered to work would be aware that expressions of interest to continue employment were issued by Wilson Security. He was not at work due to his long-term injury. Mr Beaumont would have appreciated a telephone call to inform him that he needed to apply for a future contract. 1

[34] During the hearing I asked Mr Beaumont questions in relation to the contracts and extension letters that had been issued to Mr Beaumont by email. Mr Beaumont agreed that he received and signed the first employment agreement for the period 22 February 2014 to 30 September 2014. This was issued to him in person.

[35] Mr Beaumont contends that he did not receive the second employment agreement issued in September 2014 to cover the period 1 October 2015 to 31 October 2015. Mr Beaumont contends that he only received a copy of it after his application for unfair dismissal had been lodged.

[36] Mr Beaumont had requested a copy of his employment agreement from Mr Golley during a meeting in July 2015. Mr Beaumont’s evidence is that he was informed at the meeting by Mr Michael Beckett, HR Manager that he would be provided with a copy of the employment agreement, but it was never provided to him.

[37] It is Mr Beaumont’s evidence that he did not receive an emailed copy of the first extension to the second employment agreement, nor did he receive a second extension to the second employment agreement. He contends that he had not sighted those documents until these proceedings had commenced and Wilson Security filed material in support of its jurisdictional objection.

[38] Mr Beaumont agrees that he received the email of 10 February 2016 referred to in [33] on 10 February 2016.

[39] Mr Beaumont’s evidence is that when he read the correspondence of 10 February 2016, he didn’t understand why there was a cut-off date of 29 February 2016. He did not think that he was employed pursuant to a fixed-term expiring 29 February 2016.

Submissions of Wilson Security

[40] Wilson Security’s submissions are that Mr Beaumont did not raise with the Commission prior to the hearing that he claims not to have received the second employment agreement, the two extensions and the memorandum seeking expressions of interest.

[41] It was submitted by Wilson Security that following the expiration of the first employment agreement on 30 September 2014, Mr Beaumont did not make inquiries as to his first employment contract having come to an end. It is Mr Beaumont’s evidence that he was informed by unnamed administration staff to continue to turn up at the airport for work until told otherwise.

[42] It was submitted that if Mr Beaumont’s contention is that he never saw the second employment agreement in late 2014 and its two subsequent extensions, he would have been entitled at the expiration of the first agreement on 30 September 2014 to a payment of his entitlements on the expiration of the first agreement. He did not.

[43] Mr Angelopoulos referred the Commission to the Full Bench decision in Department of Justice v Lunn. 2

[44] It is submitted that the fact that all Wilson Security employees employed on the relevant contract were employed on fixed term contracts in the same way that Mr Beaumont was is evidence that there was no sham. 3

[45] Wilson Security contends that in accordance with the authority in Lunn, there has not been a dismissal at the initiative of the employer pursuant to s.386(1)(a) of the Act. Wilson Security submits that the last employment period expiring on 29 February 2016 came to an end with the effluxion of time.

Submissions of Mr Beaumont

[46] Mr Beaumont submits that his usual dealings about his employment were with administration staff. He contends that having passed his probationary period, he thought that he would continue working.

[47] If Mr Beaumont had been aware of the memorandum of 5 November 2015, he would have expressed his interest in continuing to work for Wilson Security.

[48] I asked Mr Beaumont if I should have regard to his evidence that he had not received the second employment agreement and the two extensions, together with the memorandum. It is the evidence of Wilson Security that all documents were issued to Mr Beaumont. Mr Beaumont answered that he would have expected more direct communication.

Consideration

[49] Wilson Security has an obligation to demonstrate the basis of its jurisdictional objection.

[50] It is necessary to determine on the information before me, whether the terms entered into by the parties provided for a clear and unambiguous fixed period of time.

[51] If I am satisfied that the contract was for a fixed period of time, I am bound by the decision in Lunn to find that the fixed period of time ending on 29 February 2016 had been reached. The date having arrived, the contract ended by the passing of time, and not at the initiative of Wilson Security.

[52] In the matter of Lunn the contract in question was not for a “specified period” because the contract provided that it could be terminated on notice during its term, making it such that it was not possible to identify the “period.” Rather such a contract was an “outer limits” contract and a termination occurring simply by the agreed term being reached. It was determined that the contract, having reached its term could not be a termination at the initiative of the Employer.

[53] In Drummond v Canberra Institute of Technology, 4 the Full Bench stated:

“Leave to Appeal

[1] Having considered all of the material and submissions relied upon by Dr Drummond, we are satisfied that Commissioner Deegan did not err when she concluded that Dr Drummond was not dismissed from his employment at the initiative of CIT, but that his contract expired by the ordinary passing of time. Dr Drummond was employed under a contract concluding on 30 September 2009. We agree with the Commissioner, in noting paragraph 1532 of the Explanatory Memorandum, which deals with s.386(2) of the Act, that the effect of s.386 is that “a contract which ends with the effluxion of time does not terminate at the initiative of the employer.”

[54] Mr Beaumont’s evidence is that when he first joined Wilson Security he signed various documents. The first employment agreement for a fixed period of time to take his employment up to and including 30 September 2014 was issued to him at this time.

[55] Mr Beaumont was then issued a second employment agreement to cover the period up until and including 31 October 2015. Mr Beaumont does not deny that Wilson Security sent it to him; he states that he did not receive it by email because it may have become lost in his hotmail email account.

[56] Mr Beaumont contends that he did not receive four relevant documents by email; the second employment agreement, the two extensions to the second employment agreement, and the memorandum.

[57] Mr Beaumont did receive correspondence relating to his workers compensation claim by email, together with the notification on 10 February 2016 of the end of the fixed term employment.

[58] I am satisfied on the evidence before me that Wilson Security issued to Mr Beaumont by email the second employment agreement covering the period 1 October 2014 to 31 October 2015. Mr Beaumont was employed pursuant to that agreement effective 1 October 2014.

[59] I am satisfied on the evidence before me that Wilson Security issued to Mr Beaumont by email a first and second extension to the second employment agreement. The second extension, covering a period of employment through until and including 29 February 2016 is the relevant employment agreement that having expired, ended the employment between the parties.

[60] While I have had regard to Mr Beaumont’s evidence that he did not receive these important documents by email, I am satisfied that the documents were issued to Mr Beaumont and it is on that basis that the employment was ongoing up until 29 February 2016. If it is contended otherwise, it would necessarily mean that Mr Beaumont’s employment ended at an earlier date.

[61] Mr Beaumont does not contend that his employment ended earlier than 29 February 2016. I do not find that it ended until 29 February 2016.

[62] Having regard to the decision in Lunn, I am satisfied on the evidence before me that the fixed term contract issued to Mr Beaumont by Wilson Security, and having the effect of continued employment of Mr Beaumont, was not a sham arrangement.

[63] All of the written communication issued by Wilson Security to Mr Beaumont expressly set out the circumstances of the contract between Wilson Security and its principal contractor. The FAQS issued by Wilson Security to all of its relevant employees, including Mr Beaumont (whether read by him or not) expressed exactly how ongoing employment could be sought.

[64] I have had regard to the latest extension issued 17 November 2015 stating, “By attending your next rotation immediately following 30 November 2015, you agree to be employed on the terms as set out in this letter.” Mr Beaumont was incapacitated on account of an earlier workplace injury. I do not consider that a reference to an attendance at the next rotation, and Mr Beaumont’s absence from work on account of injury to affect the offer made by Wilson Security to extend Mr Beaumont’s employment beyond 30 November 2015.

[65] It was understood by Mr Beaumont that he was a Wilson Security employee on 1 December 2015 and through until 29 February 2016, and is not contended otherwise.

Conclusion

[66] For the above reasons, I find that Mr Beaumont’s last period of engagement was for a fixed period between 1 December 2015 and 29 February 2016.

[67] Wilson Security informed Mr Beaumont on 10 February 2016 that the fixed term employment would not be extended beyond 29 February 2016.

[68] I am satisfied that Mr Beaumont’s employment with Wilson Security ended on 29 February 2016 due to the effluxion of time, and not at the initiative of Wilson Security.

[69] Accordingly, I uphold the jurisdictional objection of Wilson Security, and dismiss the application.

COMMISSIONER

Appearances:

Zane Beaumont, Applicant

Mr Tass Angelopoulos, National Workplace Lawyers, Respondent

Hearing details:

2016.

Brisbane

June 13.

 1  1 PN158

 2  2 Department of Justice v Lunn (2007) 158 IR 410.

 3  3 PN275

 4  4 Drummond v Canberra Institute of Technology[2010] FWAFB 5455.

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