Ms Kirsten Dale v Hatch Pty Ltd T/A Hatch
[2015] FWC 4970
•12 OCTOBER 2015
| [2015] FWC 4970 [Note: An appeal pursuant to s.604 (C2015/7125) was lodged against this decision - refer to Full Bench decision dated 15 February 2016 [[2016] FWCFB 922] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kirsten Dale
v
Hatch Pty Ltd T/A Hatch
(U2014/16010)
DEPUTY PRESIDENT ASBURY | BRISBANE, 12 OCTOBER 2015 |
Application for relief from unfair dismissal.
1. BACKGROUND
[1] Ms Kirsten Dale applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to the termination of her employment by Hatch Pty Ltd t/a Hatch (Hatch). Hatch is a consultancy business that provides engineering, procurement and construction management services to its clients in various industries including mining. Hatch has a contract with Anglo American Metallurgical Coal (AAMC) to provide services in relation to AAMC’s Grosvenor Project. As part of that contract Hatch employs persons to work with AAMC employees in an integrated team, to undertake specific tasks. Ms Dale was employed by Hatch on the Grosvenor Project in the position of Site and Facilities Administration Lead from 3 September 2012 until her employment ended on 10 December 2014.
[2] Hatch objects to Ms Dale’s application asserting that she is excluded from making an unfair dismissal application on the basis that Ms Dale was employed under a contract of employment to perform a specified task on the Grosvenor Project. Hatch contends that Ms Dale’s employment ended, in accordance with the terms of her contract, on completion of that task, because AAMC determined that it no longer required the task Ms Dale was employed to perform to be performed by an employee of Hatch.
[3] Ms Dale asserts that she was unfairly dismissed because while her role may have been no longer required, there were other roles she could have performed. Ms Dale also asserts that the real reason for her dismissal was that she made a complaint about certain conduct on the part of the AAMC Site Manager. In final submissions, it was also asserted that – as provided in s. 386(3) of the Act – the substantial purpose of Ms Dale’s employment under a contract for a specified task, was to avoid Hatch’s obligations under Part 3-2.
[4] The application was made within the period required in subsection 394(2) of the Act. No other jurisdictional issues arise. Ms Dale is a person protected from unfair dismissal as defined in s.382 of the Act. Hatch is not a small business employer and the dismissal was not a case of genuine redundancy. The matter was dealt with by way of a hearing in relation to the jurisdictional objection and the substantive application, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties.
[5] Ms Dale was represented by Mr John Shepley of Counsel who was directly instructed by Ms Dale. Hatch was represented by Mr Copley of Counsel instructed by Milner Lawyers. Permission was granted for both parties to be represented on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity, and that no issues of unfairness arose.
[6] Ms Dale gave evidence on her own behalf. 1 Evidence for Hatch was given by:
- Norman Cannard, Contracts Manager; 2
- Rehannon Ryder, Human Resources Service Centre Lead; 3
- Tim Bryant, Grosvenor Project Manager; 4 and
- Lisa Meyers, Director HR Australia - Asia. 5
2.1 Contract for a specified task
[7] Ms Meyers states that nature of Hatch’s business is such that client requirements for the specific roles that they require filled, dictate the kind of person that Hatch recruits to fill positions and that often such roles are not required by Hatch on an on-going basis. Ms Meyers also says that when recruiting for a specific client role, Hatch does so, on the basis that the recruited employee is employed for the duration of the role with the client with the employment ending “automatically” upon the client no longer requiring the role. Ms Meyers confirms that Hatch uses a standard contract of employment for such engagements. Ms Meyers considers that this type of engagement is “common practice” in the consulting engineering and mining industries.
[8] Mr Bryant gave evidence about the Grosvenor Project and the contract between AAMC and Hatch. The Grosvenor Project involves the construction of a new greenfields mine at the Grosvenor mining lease adjacent to the town of Moranbah. The project also includes a second phase of work to upgrade existing facilities at the adjacent Moranbah North Mine, which includes the connection of facilities at Grosvenor to those at Moranbah North Mine. The contract between Hatch and AAMC has been in place since 2011. Hatch has employed persons pursuant to that contract to carry out work for the benefit of AAMC and has recruited employees for specific roles on that project on the basis that there is no on-going employment when Hatch’s work for AAMC is complete or the role is no longer required.
[9] Hatch’s employees on the Grosvenor Project work as part of an integrated team structure with AAMC employees whereby AAMC retains overall management and control of the Project. The planning process for the Project identified a position of Site Facilities and Administration Lead and it was agreed with AAMC that Hatch would fill that role. Ms Dale was recruited for this purpose and accepted the position.
[10] Ms Dale states that she held the position of Site and Facilities Administration Lead from 3 September 2013 “until [she] was demobilized (sic)” 6 with an effective date of 10 December 2014. Ms Dale tendered a letter dated 28 August 2012 headed: RE: GROSVENOR PROJECT – BRISBANE ASSIGNMENT stating as follows:
“We are pleased to confirm your assignment to the Grosvenor Project. The conditions of your assignment are detailed below. These conditions are specific to your Grosvenor Project – Brisbane and Moranbah assignment and are not part of your standard conditions of employment with Hatch. These conditions may be subject to change due to project operational requirements.
BRISBANE ASSIGNMENT
Work Location: 152 Wharf Street Brisbane
Commencement Date: 3 September 2012
Completion Date: The assignment to the Brisbane Office will conclude upon your mobilisation to the Moranbah site.
MORANBAH ASSIGNMENT
Work Location: Grosvenor Site Moranbah.
Commencement Date: To be confirmed.
Completion Date: This assignment and the project specific conditions contained herein will terminate upon your demobilisation from the Grosvenor Project.
Hatch will notify you as soon as possible of its reasonable satisfaction that your position on the Grosvenor Project has been completed.
Work Schedule: The project work schedule is 55 hours per week.
Single Time Overtime: You will be paid your single time hourly rate for these additional 15 hours worked per week.
Roster: To be confirmed.
Medial: You will be required to successfully complete a medical in accordance with Grosvenor Project specifications prior to your mobilisation to Moranbah. This will [be] arranged by Hatch Human Resources.
While on assignment you may be required to undergo random drug and alcohol testing.
Fit for Work: In accordance with your Hatch Contract of Employment you are required to be fully fit to perform the duties of your position without risk to your health and safety, or that of others, at the workplace. During your assignment you must report to Hatch any matters that may impact on your fitness for work or ability to safely perform the duties of your position.
All other standard terms and conditions of your employment with Hatch will remain the same.
Please confirm that the Grosvenor Project conditions are acceptable to you by signing below. Please return a copy to Rehannon Ryder, Human Resources Advisor, Brisbane.” 7
[11] Also in evidence, and annexed to the Statement of Mr Bryant, is a document headed: “Kirsten Dale Contract of Employment: Project Specific – Fixed Term Full Time”, dated 27 August 2012 (the Contract). 8 Ms Dale accepts that this is the contract of employment that she entered into with Hatch.9 The position offered to Ms Dale was “Site & Facilities Administration Lead within the PDG – Project Support Group”. The Contract was to commence on 3 September 2012.
[12] Clause 4 of the Contract, “Duties”, states:
“You are employed on a fixed term basis to provide support on the Grosvenor Project. You will be required to perform the duties of your position and such other duties, within your skill and capability, as are requested of you. If you have any queries in this regard please contact [name removed].”
[13] Clause 5 “Location” is in the following terms:
“Your initial place of work is Moranbah; however, you may be required to work at other locations according to business or operational needs. This clause is to be read in conjunction with Clause 19 – Mobility and Travel.”
[14] Clause 7, “Completion Date”, states:
“This Project Specific Contract and your employment with Hatch will automatically terminate upon your demobilisation from the Grosvenor Project.
Hatch will notify you as soon as possible of its reasonable satisfaction that your position on the Grosvenor Project has been completed. Termination of this contract, however, is not conditional upon Hatch having given you such notice.”
[15] Clause 19 “Mobility and Travel” states:
“This position may require international and overseas travel, or periods on assignment away from your base location as indicated in clause 5 – Location. Such travel and the payment of expenses will be discussed with you. In addition, Hatch may vary your place of work from time to time in accordance with operational requirements. By accepting the position, you acknowledge that you may be required to transfer to the office of a client or another office of Hatch within Queensland, another state of Australia, or an overseas location. Your acceptance of this contract indicates that you agree to consider any relocation should it be required. Assistance with relocation costs will be provided.”
[16] Clause 27, “Notice of Termination”, states:
“This contract will terminate on your demobilisation from the Grosvenor Project as specified in Clause 7 – Completion Date. Should you wish to terminate your employment prior to the completion of your role on the Grosvenor Project, you must give, if within your probation or minimum employment period, at least one (1) week written notice, thereafter four (4) weeks written notice to your Manager.
Hatch reserves the right at any time to terminate your employment by giving, if within your probation or minimum employment period, at least one (1) week written notice, thereafter four (4) weeks written notice or payment in lieu thereof, except in the case of serious misconduct when you may be dismissed without notice.
The notice period provided by Hatch will be increased by one (1) week if you are over 45 years of age and employed for more than two years of continuous service with Hatch.”
[17] Ms Dale accepted that the Contract provided for employment on a “fixed term basis to provide support on the Grosvenor Project”. 10 Ms Dale stated that her understanding of the Grosvenor Project when she entered into the Contract was “a construction project building an underground coal mine”.11 Ms Dale agreed that at some point the Grosvenor Project would progress from the construction phase to the operational phase.12 Ms Dale further agreed that part of the plan for the Grosvenor Project was for Hatch to assist in the construction phase and that when transitioning to the operational phase, there would be less Hatch employees involved and more employees from AAMC.13
[18] Ms Dale confirmed that it was her understanding that clause 7 of the Contract (Completion Date) meant that once AAMC indicated to Hatch that it no longer needed certain people, and if Ms Dale was one of those people, her services would no longer be required. 14 Ms Dale also accepted that this was a “project contract” and that it was not like a normal contract of employment and that it was for a fixed period of time.15 Further, Ms Dale agreed that the contract of employment came to an end because her role was no longer needed at the Grosvenor Project.16 In relation to the provisions of the contract dealing with mobility and travel, Ms Dale agreed that she was required to go to Brisbane and Mackay on certain occasions, for training. Ms Dale also agreed that this provision meant that if AAMC said that it wanted her to perform her role in Brisbane or Mackay, then she could have been required to do so.17
[19] Mr Bryant said that at the time that Ms Dale was hired, Hatch did not have an on-going position for her apart from the role required by AAMC on the Grosvenor Project. Ms Dale was hired by Hatch on a Project specific contract as part of the team provided by Hatch to AAMC. Mr Bryant tendered an organisational chart showing Ms Dale’s position under the stream of “Project Controls and Site Services”.
[20] Under cross-examination, Ms Ryder agreed that when Ms Dale worked in Brisbane at the start of her employment contract, she was learning Hatch systems and was not performing the Grosvenor role but maintained that Ms Dale would need to understand Hatch systems to work in her role on the Grosvenor Project. Ms Ryder said that in December 2014 AAMC advised that Ms Dale’s position was no longer required, and that this was effective immediately. It was put to Ms Ryder in cross-examination that Clause 19 of Ms Dale’s contract of employment – “Mobility and Travel” – enabled Hatch to continue Ms Dale’s employment after the Grosvenor Project finished. Ms Ryder responded:
“These clauses are in the Hatch contracts because we do work on a global basis and quite often projects are spread across various offices within Queensland or around Australia or even overseas, and that was actually the case on this project as it is on most of our projects. So this allows for us to have somebody's position moved to where it's actually required in regards to the project and the client needs.” 18
[21] In relation to Clause 4 of the contract, the following exchange occurred between Ms Ryder and Mr Shepley on behalf of Ms Dale, during cross-examination:
“My suggestion to you is that it is not a contract specifically and solely for a particular position of site and facilities administration lead, but it is a position that could encompass that or other duties that she has the capabilities of performing at that site?---It - the contract clearly states that her role is site and facilities administration lead. That may include other duties. There was a position description that went with this role and roles - - -
Was that tendered in the evidence? I don't think I've seen it?---I don't think it's within my - - -
But it does say - well, leaving that aside for the moment it says "commence". It doesn’t say "shall only be". It says "commence"?---That's the way that it's worded.” 19
[22] Mr Ryder confirmed that the contract offered and accepted by Mr Dale was a standard contract utilised by Hatch for persons engaged on project-specific contracts on the Grosvenor site.
2.2 Ms Dale’s informal complaint against AAMC Site Manager
[23] Ms Dale’s evidence in relation to the issues between her and the AAMC Site Manager can be summarised as follows. The AAMC Site Manager was appointed approximately seven months after Ms Dale commenced work at the Grosvenor site. Ms Dale states that she had a friendship with the Site Manager and that he started to make advances to her seeking to make the relationship a sexual one. Ms Dale said that she did not reciprocate the AAMC Site Manager’s feelings and made it clear to him that she did not wish to have a sexual relationship with him. Subsequently the Site Manager formed a relationship with another employee.
[24] Ms Dale filed a significant amount of material in response to Directions. Much of that material was not tendered in the hearing. The material filed by Ms Dale included copies of a series of text messages said to have been exchanged between Ms Dale and the AAMC Site Manager. Notwithstanding Ms Dale’s evidence about the conduct of the AAMC Site Manager and her contentions about the reason for her dismissal, Counsel for Ms Dale did not seek to tender the copies of the text messages. Ms Dale said in her evidence that she complained about the conduct of the AAMC Site Manager and that she emailed management of Hatch “several times” to request assistance to deal with “harassment and bullying behaviour” from the AAMC Site Manager. 20 These emails, said to have been sent on 8 June, 24 June, 4 August, 14 August and 16 September 2014, were also not tendered.
[25] Ms Dale said that as a result of failure to acknowledge her emails, she sought to meet with Mr Glenn Tonkin, Project Director for AAMC and the AAMC Site Manager’s direct line manager. Ms Hatch said that this request was made in April 2014. Ms Dale said that she had a confidential conversation with Mr Tonkin and requested his assistance to deal with the situation. Ms Dale said that she told Mr Tonkin that she did not want the AAMC Site Manager to lose his job, but she wanted his current style of behaviour to cease.
[26] Ms Ryder said that Ms Dale raised concerns about inappropriate text messages from the AAMC Site Manager in November 2013. In this regard, Ms Ryder said that on 11 November 2013 she was told by Mr Wylie Pearson (Grosvenor Project Site Engineering Manager) that Ms Dale had complained about receiving unwelcome text messages from the AAMC Site Manager and that he had verbally harassed her in a public forum. Ms Ryder told Mr Pearson to advise Ms Dale about Hatch’s employee assistance program, so that she knew the options for making a complaint within the Company’s grievance system.
[27] Ms Ryder also said that she had a telephone conversation with Ms Dale on 12 November during which Ms Ryder told Ms Dale about the options available to her including making a formal or an informal complaint and that Hatch would support her through any action she may take. Ms Dale advised Ms Ryder that she did not wish to make a formal complaint against the AAMC Site Manager and had put in place strategies to manage her exposure to him including ceasing to engage in text message exchanges with the Site Manager; driving herself to site each day and not accepting lifts with the Site Manager; and dealing with him in a professional manner. Ms Dale also tendered an email sent by Mr Pearson to Ms Dale on 19 November attaching Hatch’s Equal Employment Opportunity, Anti-Discrimination, Harassment and Bullying Policy. Ms Dale agreed with Ms Ryder’s evidence on these matters. 21
[28] Ms Dale also accepted that Mr Pearson provided her with the equal opportunity and grievance policies, which Ms Dale read and took advice from. 22 Ms Dale states that she did not follow those policies in raising her concern with Mr Pearson because she did not trust Ms Ryder and because Mr Bryant did not following things up.23 When asked what she expected management of Hatch to do about the conduct of the AAMC Site Manager, Ms Dale said that she expected that management of Hatch would raise her issue with AAMC, notwithstanding that she had stated that she did not wish to make a complaint about the Site Manager’s conduct.24 Ms Dale agreed that the text messages between her and the AAMC Site Manager stopped in or around September or October 2013, but said that there were “yelling matches” with the Site Manager after that time.
[29] Ms Dale said in her oral evidence that in or around April 2014, she had a meeting with the AAMC Site Manager and two other employees of AAMC at which concerns regarding Ms Dale’s performance were raised. 25 Ms Dale said that Mr Bryant and Mr Pearson were aware that she was upset after this meeting and she told Ms Ryder that she felt ambushed. Ms Dale said she raised her concerns about the AAMC Site Manager’s behaviour with Mr Bryant “the next day” but could not recall what Mr Bryant said in response.
[30] Ms Ryder said that on 9 April 2014 she received a telephone call from Ms Dale about that meeting, which Ms Dale said had occurred on 8 April. Ms Dale told Ms Ryder that the meeting was about fatigue management because she had been working too many hours; Ms Dale’s attitude; and complaints by colleagues that she is unapproachable. Ms Dale also told Ms Ryder that she had been asked to come up with a solution for these issues and given no guidance. Ms Ryder told Ms Dale that she would discuss her concerns with Mr Bryant and would arrange a conversation with Mr Bryant, the AAMC Site Manager and the two other AAMC employees involved in the discussion with Ms Dale on 8 April.
[31] Mr Bryant said that on or about 8 April 2014 he was advised by Hatch HR of the discussion between Ms Dale and the AAMC managers, and had a discussion with Ms Dale during which Ms Dale said that she felt “ambushed” by the AAMC Managers. As a result, Mr Bryant had a discussion with the AAMC Site Manager and told him that the manner in which he had approached Ms Dale had probably been confronting and they agreed that any issues with her performance would best be managed with the assistance of the Hatch HR team.
[32] Ms Ryder had a further telephone conversation with Ms Dale on16 April during which Ms Dale reported positive communication with the AAMC Site Manager about work issues including fatigue management. Ms Ryder told Ms Dale that any further concerns about her work performance would be dealt with differently and in the first instance by Hatch personnel. Ms Ryder also asked Ms Dale to send her details of her previous informal complaints about the AAMC Site Manager so that they were on her file even though Ms Dale did not want the matter resolved formally. Ms Dale sent an email setting out complaints about the AAMC Site Manager including copies of a series of text messages exchanged between them in October and November 2013. These were not tendered into evidence by Ms Ryder or Ms Dale.
[33] Ms Ryder received Ms Dale’s email after returning from a period of leave and subsequently arranged a telephone call with Ms Dale and Mr Bryant on 1 May 2014. During that telephone call a discussion took place about whether Ms Dale now wished to pursue formal action against that AAMC Site Manager. Ms Dale again stated that she did not wish to raise the matter formally but would be happy if it was raised informally with the Grosvenor Project Manager at that time. Ms Ryder emailed a further copy of the Hatch Grievance Procedure to Ms Dale.
[34] Ms Ryder and Mr Bryant met with the AAMC Project Manager on 13 May to discuss the concerns raised by Ms Dale about the AAMC Site Manager and presented him with the copies of the text messages supplied by Ms Dale. From 19 May to 2 June 2014, Ms Dale was absent on annual leave. On 26 May 2014 Ms Ryder was advised by the AAMC Project Manager that the Site Manager had been given an “unofficial warning” and had been advised that:
● The SMS behaviour with Ms Dale had not been appropriate (although the Site Manager stated that Ms Dale had participated in text messaging him for 18 months and had only produced copies of text messages exchanged over a period of two months);
● He needed to tone down his language and the manner in which he interacts with others; and
● Any performance concerns he had with Ms Dale needed to be handled by Hatch and referred to Mr Bryant in the first instance.
[35] The AAMC Project Manager told Ms Ryder that if Ms Dale was happy with the outcome he would take no further action. Ms Ryder informed Ms Dale of the outcome of the discussion between the AAMC Project Manager and the Site Manager and Ms Dale told Ms Ryder that she felt more comfortable with the situation. Ms Dale also told Ms Ryder that the Site Manager had been more pleasant to her since she returned from leave. Ms Dale did not dispute Ms Ryder’s evidence in relation to this matter.
2.3 Performance Improvement Plan
[36] Mr Bryant said that when issues were first raised by the AAMC Site Manager about Ms Dale’s work performance, he followed up, with the assistance of Ms Ryder, on problems that had been identified by the AAMC Site Manager and the two AAMC employees who had conducted the meeting with Ms Dale on 8 April 2014. Mr Bryant said that he did so because he was satisfied that there were issues with Ms Dale’s performance which needed to be addressed including:
● Being unable to present fit to work on a number of occasions and not advising appropriate supervisors of lateness including twice having to delay coming on site because of a positive self-test for alcohol;
● Complaints from team members about the manner in which Ms Dale dealt with them;
● Clarification of Ms Dale’s responsibilities; and
● Concerns about fatigue management and Ms Dale’s hours of work.
[37] Mr Bryant raised these issues with Ms Dale at a meeting of 16 June 2014 which was also attended by Ms Ryder and two other Hatch employees - Ms Argus and Mr Smyth. According to Mr Bryant, it was agreed that these issues would be summarised in a Performance Improvement Plan (PIP) to be drafted by Ms Ryder. Ms Ryder drafted the PIP which was appended to her witness statement. 26
[38] In June 2014, Ms Dale contacted Ms Ryder in relation to a complaint she wished to make about the AAMC Site Manager’s partner arriving late to work. 27 Ms Dale states that she also raised issues about being bullied by the AAMC Site Manager by virtue of being left out of meetings and not copied into emails.28 Ms Dale requested that she report to someone other than the Site Manager. According to Ms Ryder, Ms Dale was told that Hatch could not control reporting lines and that the Site Manager had overall responsibility for running the site.
[39] From July 2014, Mr Bryant and Ms Ryder participated in regular performance management meetings with Ms Dale where issues raised in the June meeting were discussed. Ms Ryder gave evidence of seven such meetings being held with Ms Dale between 15 July and 16 September 2014. Although Ms Dale displayed some progress, issues about her treatment of other staff and friction over the allocation of responsibilities continued to arise.
[40] Under cross-examination, Ms Dale accepted that “part of the reason” she was on a PIP was because she had “blown over” on an alcohol breath test and was unable to enter the workplace. 29 Ms Dale accepted that she did occasionally have a problem with communication with her colleagues.30 Ms Dale also accepted that there was probably no reason why she should not have been put on a PIP and that it was fair and reasonable for Hatch to have commenced a PIP in relation to her work performance.31
[41] On 3 September, Ms Dale cancelled a performance improvement meeting stating that the process was a waste of time, she was not getting value from it and the behaviour of the AAMC Site Manager was continuing. Ms Dale took annual leave from 4 to 14 September 2014. On 16 September 2014 during a performance improvement meeting that had been rescheduled due to Ms Dale’s absence on leave, Ms Dale stated that she now wished to make a formal complaint against the AAMC Site Manager. Ms Ryder said that she reminded Ms Dale about the Grievance Procedure and that Hatch’s Employee Assistance Program was available to her. Ms Ryder also asked Ms Dale to put her formal complaint into writing.
2.4 Ms Dale’s formal complaint about the AAMC Site Manager
[42] Ms Dale did not make her formal complaint to Hatch. Instead, on 3 September 2014, Ms Dale lodged a “formal complaint” about the AAMC Site Manager with the Head of Global Projects, AAMC. This complaint was not in evidence. Mr Bryant and Ms Ryder state that On 3 October 2014, Mr Bryant and Ms Helen Turner, Global HR Lead for Hatch, spoke with Ms Dale by telephone and asked whether Ms Dale would be willing to work off site while the investigation into her complaint took place and Ms Dale left the site.
[43] On 16 October 2014, Ms Dale met with Ms Tain Drinkwater, Human Resource Manager for AAMC, who advised that the investigation into the AAMC Site Manager had been concluded by AAMC. Ms Dale says that Ms Drinkwater conveyed that the result of the investigation was that while the Site Manager’s behaviour was not “appropriate” he had not “done anything illegal”. Ms Dale states that she was also told that it had been decided that she would move to another office and report to a new manager commencing on 20 October 2014. Ms Dale further states that she was told this move would be “with the full support of [her] team”.
[44] Also on 16 October 2014, Ms Dale was requested to meet with her new line manager, Mr Wylie Pearson Engineering Manager for Hatch, and Mr Bryant. Ms Dale says that the purpose of this meeting was to discuss the outcome of the investigation into the AAMC Site Manager and her return to work. Mr Bryant and Mr Pearson advised Ms Dale that she would move to another office; would no longer have a team reporting to her and that her role would alter. Ms Dale says that Mr Bryant and Mr Pearson advised that her role would change because it was impossible for her role to remain as it had been following the changes and that some of her work was being given to others to perform. Ms Dale said that she told Mr Pearson and Mr Bryant that this was not what was indicated to her by Ms Drinkwater.
[45] Ms Ryder said that Ms Drinkwater informed her that the complaint against the AAMC Site Manager had been found to be unsubstantiated but that because relations between Ms Dale and the Site Manager had deteriorated it was necessary to reallocate her reporting line. Ms Ryder spoke to Ms Dale about the outcome of the investigation and asked whether she had any concern about the course of action proposed by AAMC. Ms Dale said that she wished to return to work but had concerns about whether the AAMC Site Manager would change his behaviour. Ms Ryder said that from 16 October 2014 Ms Dale reported to Mr Pearson and not the AAMC Site Manager.
2.5 Complaints about Ms Dale
[46] Ms Ryder said that on 10 October 2014 she received 6 written complaints about Ms Dale involving allegations of racial comments and other inappropriate behaviour in the workplace. Ms Ryder commenced an investigation on 22 October 2014. Ms Dale was absent on sick leave for the period of 20 – 24 October 2014. On 27 October Ms Ryder telephoned Ms Dale to ask her to attend a meeting on Tuesday 28 October to discuss the allegations. Ms Ryder also emailed Ms Dale setting out the allegations and inviting her to bring a support person to the meeting. Ms Dale said that she was on annual leave on 27 October when Ms Ryder telephoned her and told Ms Ryder that she could not attend a meeting on 28 October or find a support person in that time frame. Ms Dale later said that she could attend a meeting on 29 October but Ms Ryder was unable to meet at that time.
[47] Ms Ryder tendered a Workers’ Compensation medical certificate provided by Ms Dale stating that she had seen a Doctor on 29 October 2014 and would require medical treatment and suitable duties until 28 December 2014. The certificate also indicated that Ms Dale would be reviewed on 28 November 2014. 32
[48] On 7 November 2014, Hatch requested that Ms Dale provide a medical clearance to the effect that Ms Dale was able to discuss the allegations made against her. This clearance was provided on 17 November 2014. Ms Dale was advised not to return to site until the investigation was complete. On 24 November 2014, Ms Dale met with Mr Pearson and Ms Ryder to hear the allegations. The Community Liaison for AAMC attended as Ms Dale’s support person. Ms Dale states that one of the employees who made a complaint against her had sent her a number of supportive text messages. These were not tendered as evidence by Ms Dale.
[49] Ms Dale asserts that on 22 January 2015, while at the Moranbah airport, Mr Norman Cannard, Contracts Manager for Hatch, advised Ms Dale that the AAMC Site Manager was “actively soliciting” complaints from others against Ms Dale. Mr Cannard denied that he had made that comment and said that Ms Dale had spoken to him at the airport on 22 January 2015 and wanted to discuss what had happened to her on the Grosvenor Project. Mr Cannard said that he confirmed that the AAMC Site Manager had left the Project but did not engage in further conversation with Ms Dale, simply informing her that the matter was between her and the Site Manager and wished her the best.
[50] Ms Dale responded to the allegations on 3 December 2014. Ms Dale has not been provided with the outcome to this investigation and does not recall being told that she could request a meeting for this purpose, even after the cessation of her employment.
2.3 The cessation of Ms Dale’s employment
[51] Since the commencement of the contract with AAMC, Mr Bryant states that Hatch has changed the number of type of roles it provides to AAMC in response to AAMC’s requirements. As part of this continual process, AAMC undertook a “significant restructure” 33 in relation to the Grosvenor site. This review resulted in a reduction of Hatch personnel at the site. Changes in relation to the AAMC restructure started to be put into effect in November 2014. Four Hatch employees were demobilised as a result of AAMC advising Mr Bryant that Hatch was no longer required to fill the positions held by those employees.
[52] On 5 December 2014, Mr Bryant met with Mr Jeff Cochrane, AAMC Grosvenor Project Director, to review the new draft organisational chart prepared by AAMC. It was confirmed during this meeting that the role held by Ms Dale was no longer required at the Grosvenor Project. Following the meeting Mr Bryant emailed Ms Ryder, Grosvenor Project Human Resources Advisor, advising that Ms Dale’s position was no longer required. 34 Mr Bryant states that he is “aware” that enquiries were made to confirm if there were other positions available that Ms Dale could fill.35 Mr Bryant states that he does not recall if Hatch asked AAMC if there was another position that Ms Dale could fill.36
[53] Mr Bryant also states that the decision to end Ms Dale’s employment was “based solely on the decision by AAMC that it no longer required the position of Site and Facilities Administration Lead and the fact that this would result in her demobilising from the site”. 37 Mr Bryant accepted that in his experience AAMC would not direct Hatch to terminate an employee but would direct Hatch to demobilise an employee from the project.38
[54] Mr Bryant caused a letter dated 10 December 2014 to be prepared, which was provided to Ms Dale by Ms Ryder. The letter states:
“TERMINATION OF PROJECT SPECIFIC FIXED TERM CONTRACT WITH HATCH
As discussed with you today, Hatch has been advised by Anglo American Metallurgical Coal (AAMC) that because the Grosvenor Project is transitioning to its next phase, an organisational design and staffing review has been undertaken and AAMC has determined that your position as Administration Lead is no longer required effective immediately. Unfortunately, a number of positions have been effected by this restructure.
Regrettably, as you are employed by Hatch on a Project Specific Contract that terminates when your position is no longer required by AAMC on the Grosvenor Project, this decision of AAMC means that your employment with Hatch will terminate.” 39
[55] Ms Ryder recalls that on 5 December 2014 she had a discussion with Mr Bryant regarding changes to AAMC’s resource requirements for the Grosvenor Project and Mr Bryant’s belief that this would mean some Hatch employees would no longer be required. After receiving Mr Bryant’s email of 5 December 2014 confirming those changes, Ms Ryder informed Ms Lisa Meyers, HR Director Australia – Asia for Hatch, of the decision by AAMC that Ms Dale’s role was no longer required to be filled by an employee provided by Hatch.
[56] On 9 December 2014, Ms Ryder received an email from Ms Drinkwater of AAMC, confirming that AAMC was finalising its review of the organisational design. Ms Drinkwater explained that the review was being undertaken as the project was moving into the next phase. 40 Ms Drinkwater confirmed that “a number of roles...will be surplus to requirements moving forward” and that these changes will be communicated in the coming weeks and that the role of Administration Lead would not be required effective immediately. Ms Drinkwater was not called by the Respondent to give evidence in these proceedings.
[57] Ms Ryder states that the role held by Ms Dale was not the only role affected by the changes. Ms Ryder identifies three positions that were held by Hatch employees that were no longer required by AAMC in November 2014, and a further seven positions that were deemed in December 2014 to be no longer necessary. On 10 December 2014, Ms Ryder attended site to inform a number of employees that they were no longer required by AAMC. Ms Ryder, Mr Pearson and Mr Smyth met with Ms Dale to inform her that she was no longer required. Ms Ryder confirmed that in the administration area that Ms Dale worked in, Hatch currently only provides one employee to AAMC. 41 This employee is a travel coordinator.42
[58] Under cross-examination, the proposition was put to Ms Ryder that there were two factors involved in the decision to end Ms Dale’s employment: the decision that the position was no longer required and the decision that Ms Dale would be the employee that was no longer required. In response to that proposition, Ms Ryder said:
“Ms Dale fulfilled the role that Anglo advised us was no longer required on the project. Therefore, Ms Dale’s role was effectively demobilised from the Project, which was when we implemented this clause on terminating her employment with Hatch.” 43
[59] Ms Ryder agreed that Ms Dale’s employment was not terminated due to her conduct or capacity to fill the role and said that Ms Dale’s role was terminated due to Hatch’s requirements. In response to the proposition that she had not investigated alternative roles for Ms Dale, Ms Ryder said that there was consideration of whether there was another role within Hatch that Ms Dale could move to. Such a move would have meant that a new type of contract would have been required and there was no such role in any event. There was no consideration of another role on the Grosvenor Project because AAMC had let Hatch know that Ms Dale’s role no longer existed.
[60] Ms Meyers said that on becoming aware of the review, and that Ms Dale was no longer required on the Grosvenor Project, she had a discussion with Mr Bryant who advised that AAMC had been conducting a “high-level review” of all projects since September 2014; that about three weeks prior, AAMC had started to identify roles no longer required on the Grosvenor Project; that on 5 December Mr Bryant had met with Mr Cochrane to discuss the affected roles; and that a number of Hatch roles were no longer required because the Grosvenor Project was moving past its peak construction phase and AAMC was closing down some projects.
[61] Subsequent to this conversation, Ms Meyers contacted Ms Drinkwater to confirm the reasons for the decision that Ms Dale’s role was no longer required. Ms Meyers said that she did this because she was aware that Ms Dale had raised a formal grievance against an AAMC manager and that there were issues with her performance. Ms Meyers was also aware that Ms Dale’s contract of employment required Hatch to be reasonably satisfied that Ms Dale’s position on the project was at an end. During her discussion with Ms Drinkwater, Ms Drinkwater conveyed to Ms Meyers that the decision to restructure the Grosvenor project was a “far reaching one”. Ms Drinkwater also acknowledged that the timing of the finish of Ms Dale’s position was “unfortunate” as Ms Drinkwater was aware of the grievances involving Ms Dale. Ms Drinkwater confirmed she would discuss the other roles no longer required in the near future. Ms Drinkwater also advised Ms Meyers that permanent Anglo employees and contractors had been “let go” in recent weeks. A copy of Ms Meyers’ file note in relation to her discussion with Mr Bryant and Ms Drinkwater was annexed to her statement. 44
[62] In cross-examination, Ms Meyers confirmed that she was not involved in drafting any of the contracts for staff on site-specific projects. 45 Ms Meyers also confirmed that there is an approval process for each position that Hatch fills but was not aware of any specific contractual arrangements between Hatch and AAMC in relation to AAMC’s right to veto the employment of staff.46 Ms Meyers also confirmed that employment contracts that existed were between Hatch and the individual employee and AAMC could not, or did not, specifically direct that Ms Dale be dismissed.
[63] The following exchange occurred between Mr Myers and Counsel for Ms Dale during cross-examination:
“Now, in paragraph 12 you've had a conversation with Ms Drinkwater. Now, if I could take you to sub-paragraph (b) of that document. Now, I'm presuming how I've read this is that Ms Drinkwater is telling you that it's unfortunate, and she was aware of certain grievances or whatever, and it's unfortunate their decision came at the same time. Can you expand upon that understanding or that conversation, as you recall it?---M'm. So I was made aware when Kirsten was being released, and I was aware that there had been some allegations and some investigations conducted in relation to some allegations that she'd made, and I wanted to reassure myself that there was no connection between those - that investigation and her being released. So of course I spoke with Tim Bryant, who is our project manager, and asked him for his understanding of why Kirsten was being released at this time, and he gave me the contact for Tain Drinkwater and I spoke to her as well to find out what her thinking was, and whether she was aware that there had been these issues, and was there any connection between Kirsten being released and those issues. And she completely reassured me that that was not the case; there was no connection.” 47
[64] Ms Dale states that at the time of her commencement at the Grosvenor site Hatch had supplied 100 percent of employees but that during her time at site there had been a gradual decrease from Hatch employees to “more Anglo people”. 48 Ms Dale accepts that over a period of two years other Hatch employees were de-mobilised and they were either not replaced or were replaced with “an Anglo person”.49 It was specifically put to Ms Dale that this is what had happened to her.50 Ms Dale responded: “It appears that way”51
[65] Ms Dale asserts that her position was chosen for demobilisation when other roles could have been chosen and Ms Dale could have been retained. Ms Dale asserts she could have filled the travel role or the contracts role. Ms Dale said that the travel role was filled by AAMC using an employee from a labour hire firm, WorkPac, and that the employee filling that role was engaged by AAMC. Ms Dale did not give evidence about the contracts role or any skills and competence that she held which might have equipped her to fill it.
[66] Ms Dale agreed that her contract of employment provided for termination by notice in certain circumstances or that it would terminate on her demobilisation from the site. Ms Dale clarified her understanding of demobilisation as follows: “...De-mobilisation was effectively that position came to an end.” 52 Further, Ms Dale agreed with the proposition put to her in cross-examination that her employment was not terminated in accordance with the notice period in her contract but came to an end because her role was no longer needed at the Project.
3. RELEVANT LEGISLATION
[67] In order to determine Hatch’s jurisdictional objection, it is necessary to determine whether Ms Dale was dismissed. Section 386 of the Act relevantly states:
“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;...
(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
...
(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.”
[68] The effect of s. 386(3) is to exclude an employee from making an application for an unfair dismissal remedy, in circumstances where the employee was employed under a contract for specified period of time, a specified season or a specified task, in circumstances where the employment is terminated at the end of the specified time or season or on completion of the task. While termination of employment in such cases may be initiated by the employer, it is excluded from the unfair dismissal provisions under Part 3-2 of the Act, notwithstanding that that the employee whose employment is terminated may be a person who would otherwise be protected from unfair dismissal.
[69] Conversely, an employee employed under a contract of a kind that is for a specified period, season or task is not excluded from making an unfair dismissal application in circumstances where employment is terminated for a reason other than at the end of the period or season or the completion of the task. Further, there is an exception to this exclusion from the unfair dismissal provisions of the Act in circumstances where the Commission is satisfied that a substantial purpose of the employment of a person under a contract for a specified period, season or task, is or was to avoid the employer’s obligations under those provisions.
[70] If Ms Dale was not employed under a contract of employment for a specified task, or if she was employed under such a contract and was dismissed for a reason other than that the task had been completed, it will be necessary to consider whether Ms Dale’s dismissal was unfair on the grounds that it was harsh, unjust or unreasonable by applying the criteria in s.387 of the Act, as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
4. CONSIDERATION
4.1 Was Ms Dale employed under a contract of employment for a specified task?
[71] The approach to determining whether a contract of employment is for a specified task was set out in the Judgement of Chief Justice Wilcox in Drury v BHP Refractories Pty Ltd. 53In that case his Honour considered a factual situation where an employee had worked on various projects without any specification of each period of work but on the assumption that his employment would be terminated when the job was completed. The legislation under consideration in that case excluded an employee from provisions relating to unfair dismissal where the employee was engaged under a contract of employment for a specified period or task. At that time there were a number of issues about the effect of the exclusion including whether an employee engaged under such a contract was entirely excluded from unfair dismissal legislation or excluded only when a dismissal occurred before the completion of the period or task. Those issues are not relevant under the present legislation.
[72] Relevantly, his Honour Chief Justice Wilcox held that the exclusion does not apply whenever an employer employs a person to work on a particular project, whatever its size and duration. His Honour further held that:
“The words “for a specified task” qualify the words “contract of employment”. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words “for a specified task” have nothing to do with the employer’s task, or project.”
[73] His Honour also observed that it is understandable that the provisions relating to unfair dismissal should not be available to people who undertake only a specified task, and that it would be anomalous to restrict the employer’s right to terminate the contract after the task is completed. Conversely, given that many projects continue for many years while employees come and go, it would be equally anomalous to exclude relief from unfair dismissal simply because an employee was engaged in connection with a particular project.
[74] These principles have been applied in a number of Decisions of the Commission including:
● Hewitt v ACTek Custom Engineering Pty Ltd in which it wasemphasised that the phrase “a specified task” covers situations: “where an employee has been employed to perform a project or job which is distinct or identifiable in its own right...”; 54
● Derar v Recruitco Pty Ltd, where it was held that an employment offer from a labour hire company restricted to an engagement by a host organisation, defines the specific duration of that particular employment and results in the employee being engaged for a specified task. 55
● Henderson v John Holland Pty Ltd where it was held that an employee was employed for a specified task in circumstances where the employee had been engaged on a number of successive projects under a series of separate employment contracts relating to each project, specifying the task of concrete finishing, that the employee performed on each project. 56
[75] Ms Dale submits that the Contract cannot be one that is said to be for a specified task. In this regard, Ms Dale submits that simply because the contract states that the position to which Ms Dale was appointed was Site & Facilities Administration Lead, and that her employment would automatically terminate upon demobilisation from the Grosvenor Project, is not a sufficient basis for a conclusion that the Contract was for a specified task. In support of this contention, Ms Dale relies upon the fact that the Contract provides that Ms Dale was required to perform other duties, potentially for other clients of Hatch and at different sites and locations. Ms Dale also points to the fact that the contract includes a provision allowing for it to be terminated with notice or without notice in the case of serious misconduct.
[76] I do not accept that submission. A “task” is a piece of work to be performed or undertaken. For the purpose of the phrase “specified task” the term “task” has been treated as being synonymous with the terms role, job or project that an employee is employed specifically to perform as distinct from the employer’s undertaking. In the present case, Ms Dale was employed for the specified task of carrying out the administration role of Site and Facilities Administration Lead on the Grosvenor Project. Her task or role was distinctly identifiable from Hatch’s task or role, notwithstanding that it was part of Hatch’s overall contract of providing engineering support to AAMC on the Grosvenor Project. Notwithstanding that her contract may have allowed for her to perform other duties, there is no evidence that Ms Dale undertook any work for Hatch or AAMC that was extraneous to her duties as Site and Facilities Administrative Lead for the Grosvenor Project.
[77] Ms Dale’s contract of employment and other related Hatch documentation is poorly drafted. The contract of employment states that it is for a fixed term and then does not specify that term, but rather refers to the employment being project specific. The contract also states that it will terminate upon the completion of Ms Dale’s position and her demobilisation from the Grosvenor Project. The contract of employment is dated 27 August 2102 and was signed on behalf of Hatch on that date. The date upon which Ms Dale signed the contract and accepted its terms, is not legible on the copy tendered to the Commission. The letter tendered by Ms Dale dated 28 August 2012 setting out the terms of her assignment, was signed on behalf of Hatch on 28 August 2012. The copy of the letter that was tendered was not signed by Ms Dale.
[78] Counsel for Hatch conducted its case on the basis that the contract of employment was for a specified task. The contract of employment states that it supersedes any prior oral or written agreements. Given the uncertainty about when Ms Dale signed the contract, it is not clear whether the letter dated 28 August is a prior written agreement that is superseded by the Contract. In fairness to Ms Dale I have assumed that it is not. When both documents are read in conjunction, it is apparent that Ms Dale was employed for a specified task. Notwithstanding that the contract of employment states that Ms Dale was employed for a specified period, it is clear that Ms Dale was employed specifically for the Grosvenor Project. It is also clear that she was employed in the position of Site and Facilities Administration Lead and that her employment would terminate on demobilisation from site, when that position was no longer required.
[79] Notwithstanding that the drafting of the contract is poor, I do not accept that the matters relied on by Ms Dale are a sufficient basis for a finding that the contract was not one for a specified task. The contract provides that the specified role may be undertaken from other locations. This does not of itself alter the contract so that it is not for a specified task. Ms Dale accepted that in order to perform the role specified in the contract, she may have been required to travel to other locations and had in fact done so. The contract does not provide for Ms Dale to be required to perform work for other clients, but rather that she may be required to work in the offices of a client – under the Contract AAMC – at a number of different locations. That Ms Dale commenced employment in Brisbane and spent a period learning Hatch’s systems is also not sufficient to change the basis of her contract of employment. The systems that Ms Dale was trained in during this period were necessary for her to perform role specified in her contract of employment on the Grosvenor Project.
[80] Similarly, the fact that the contract did not preclude Ms Dale being offered another role does not transform the contract of employment into one that is on-going. Ms Dale was not offered another role. Ms Ryder’s evidence made it clear that if Ms Dale was offered another role, it would have been necessary for her to enter into another contract of employment in respect of that role. I am also of the view that the fact that the contract of employment contained a requirement for Ms Dale to perform other tasks that might be required of her by Hatch, does not alter her contract so that it ceases to be a contract of employment for a specified task. In any event there is no evidence that Ms Dale did perform other tasks.
[81] The fact that the contract of employment contains a provision allowing for termination with notice, or without notice in cases of serious misconduct, does not mean that Ms Dale’s contract ceases to be a contract of employment for a specified task for the purposes of the exclusion from unfair dismissal provisions. The effect of the provisions allowing for the contract to be terminated other than at the completion of the specified task, is that if Ms Dale was dismissed before the specified task had been completed – for misconduct, serious misconduct or some reason other than that the specified task was completed – she would not be excluded by s. 386(2)(a) of the Act from making an unfair dismissal application in respect of her dismissal.
[82] For these reasons, I am satisfied and find that Ms Dale was employed under a contract of employment for a specified task.
4.2 Was Ms Dale’s employment terminated on completion of the task?
[83] In order to come within the exclusion in s. 386(2)(a) it is necessary that Ms Dale’s contract of employment was for a specified task and that her employment was terminated on completion of the task. As previously stated, if Ms Dale’s employment was terminated for a reason other than that the specified task she was required to perform had been completed, then she is not excluded from making an application for an unfair dismissal remedy.
[84] Hatch contends that Ms Dale’s employment ended in accordance with the terms of her contract of employment when the role she had been employed to perform on the Grosvenor Project was no longer required by its client for that Project – AAMC. In support of this proposition, Hatch tendered organisational charts for the Project demonstrating that the role was no longer being performed by Hatch. There was also evidence that there had been a restructuring on the Project so that roles which had been performed by Hatch were either no longer required or had been taken on by AAMC. Further, there was evidence that such processes are a feature of Hatch’s undertaking of providing engineering, procurement and management services for projects such as the Grosvenor Project.
[85] Ms Dale accepted that during the period of her employment there had been a gradual decrease in Hatch employees and a corresponding increase in AAMC employees and that when Hatch employees were demobilised they were replaced with AAMC employees. Ms Dale also accepted that this is what happened with respect to her role. Further, Ms Dale accepted that her contract of employment would terminate upon her demobilisation from the site and that she understood what demobilisation meant.
[86] In light of Ms Dale’s complaint about the AAMC Site Manager and her assertion that this was the reason for her dismissal, I have considered the sequence of events and the evidence about the complaint in some detail to determine whether this was in fact the case. On the basis of the evidence before me, I consider that the complaint made by ms Dale about the AAMC Site Manager, was appropriately dealt with by Hatch. In this regard, I note that notwithstanding Ms Dale’s stated desire to Hatch HR representatives that she did not wish to formalise the complaint and the advice that she received to the effect that Hatch would support her should she wish to do so, Ms Dale made a formal complaint to management of AAMC.
[87] There is no evidence upon which I could be reasonably satisfied that AAMC determined to require Hatch to terminate Ms Dale’s employment for any other reason than that the role for which she had been employed was no longer required to be filled by a Hatch employee. The role was removed from the Project organisational chart along with other roles which had also been filled by Hatch employees. I am also of the view that Ms Ryder was aware of the potential for Ms Dale’s complaint about the AAMC Site Manager to have an impact on AAMC’s decision that her role was no longer required to be performed by a Hatch employee and took reasonable steps to explore whether this was the case. This is not a case where Hatch abrogated its responsibility for ensuring that the termination of Ms Dale’s employment was consistent with the terms of her contract of employment and was not for some other reason.
[88] The submission of Counsel that the termination of Ms Dale’s employment involved two decisions – that her job was no longer required to be done and that Ms Dale should be dismissed instead of another employee – is misconceived and misunderstands the effect of s. 386 of the Act. Ms Dale’s contract of employment was for a specified task – to perform the role of Site Facilities and Administration Lead on the Grosvenor Project – until the point at which the role was no longer required by Hatch’s client, AAMC, at which time Ms Dale would be demobilised and her employment would end. Once that role was no longer required by AAMC and Ms Dale’s employment was terminated at its completion, she was excluded from making an application under the provision in Part 3-2 of the Act.
[89] Once the dismissal was excluded, the question of whether some alternative position should have been offered to Ms Dale could not arise and her dismissal could not be found to be unfair on that basis. In any event the roles Ms Dale asserts she could have performed were filled by other employees, one of whom was employed by a labour hire contractor to AAMC and not by Hatch. That Hatch did not place Ms Dale into one of those roles does not alter the fact that Ms Dale is excluded from making an unfair dismissal application.
[90] In closing submissions Counsel for Ms Dale contended that the purpose of the contract of employment under which Ms Dale was employed was to avoid Hatch’s obligations under Part 3 of the Act in relation to the provision notice and redundancy. 57 This contention was not previously raised and was not set out in the outline of submissions required to be filed. When this was put to Counsel for Ms Dale, the response was that the Commission was not being asked to make a finding that Ms Dale’s contract – even if it was a contract for a fixed time or specified task – was for the substantial purpose of avoiding Hatch’s obligations under Part 3 of the Act such that the exception in s.386(3) of the Act applied. Rather, it was submitted that this matter was relevant to any award of compensation.58
[91] Leaving aside the question of how this matter could be relevant to an award of compensation, or the fact that the provisions of the Act in relation to notice and redundancy do not arise under “this part” (being Part 3-2), I am satisfied that the exception in s. 386(3) of the Act is not enlivened in the present case. Hatch is in the business of providing engineering, procurement and construction management services to clients undertaking projects. In order to provide such services, Hatch is required to engage employees on a project specific basis in circumstances where it will not have on-going roles for such employees. If there are roles on subsequent projects or different roles to which employees can be allocated, Hatch enters into new contracts of employment with terms appropriate for those roles.
[92] This is not a case where an employer with no reasonable business purpose or imperative for engaging employees for a specified task or a specified time, has done so. Accordingly, there is no basis for making a finding that s.386(3) applies, regardless of the purpose of such a finding.
CONCLUSION
[93] By virtue of s. 386(2) of the Act, Ms Dale has not been dismissed and she is excluded from making an unfair dismissal application. Ms Dale’s application for an unfair dismissal remedy must be dismissed and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
1 Exhibit 3.
2 Exhibit 4.
3 Exhibit 5 and Exhibit 6.
4 Exhibit 7 and Exhibit 8.
5 Exhibit 9.
6 Exhibit 3 at paragraph 3.
7 Exhibit 1.
8 Exhibit 7, TB-1.
9 PN115.
10 PN334.
11 PN336.
12 PN343.
13 PN347.
14 PN350.
15 PN351; P353.
16 PN373.
17 PN365-370.
18 PN800.
19 PN805 to PN807.
20 Exhibit 3 at paragraph 4.
21 PN398; PN402 to PN409.
22 PN415 to PN421.
23 PN422 to PN425.
24 PN426 - 429.
25 PN443.
26 Exhibit 5 Annexure RR-8.
27 PN459.
28 PN458 to PN460.
29 PN471 to PN472.
30 PN478.
31 PN479 to PN480.
32 Exhibit 5 Annexure RR-10.
33 Exhibit 7 at paragraph 15.
34 Exhibit 7, TB-4.
35 Exhibit 7 at paragraph 21.
36 PN1012 to PN1013.
37 Exhibit 7 at paragraph 23.
38 PN1000 to PN1003.
39 Exhibit 7, TB-5.
40 Exhibit 5, RR-3.
41 PN854.
42 PN857.
43 PRN790.
44 Exhibit 9, LM-1.
45 PN1059.
46 PN1065.
47 PN1092.
48 PN486 to PN487.
49 PN498.
50 PN499 to PN501.
51 PN501.
52 PN562.
53 [1995]IRCA 276.
54 PR904665 [2001] AIRC 500 (25 May 2001).
55 [2013] FWC 9791.
56 PR917230 [2002] AIRC 475 (30 April 2002).
57 Applicant’s closing submissions filed 3 May 2015 at paragraph 18.
58 PN1187 to PN1220.
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