Paul Westerink v Goldfields Baptist College

[2011] FWA 8093

[2011] FWA 8093

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Westerink
v
Goldfields Baptist College
(U2011/1479)

COMMISSIONER WILLIAMS PERTH, 2 DECEMBER 2011

Termination of employment - jurisdiction.

[1] Mr Paul Westerink (the Applicant) lodged an application with Fair Work Australia (the Tribunal) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) asserting that he had been unfairly dismissed by Goldfields Baptist College (the Respondent).

[2] The matter was dealt with by a Fair Work Australia Conciliator but was not resolved and so was referred to myself for determination.

[3] The Respondent objects to the matter proceeding further on the grounds that the Applicant has not completed the required minimum employment period prescribed by section 383 of the Act.

[4] I wrote to the parties requesting they provide written submissions on this point and both parties have responded in writing.

[5] I note that on 18 October 2011 the Applicant emailed my chambers and advised that he wished to withdraw the application. The next day the Applicant emailed again saying that he now wanted to continue with his application. In the circumstances I have ignored the first apparent discontinuation advice from the Applicant and will proceed to determine the application.

Consideration

[6] The relevant sections of the legislation is set out below.

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $118,100 from 1 July 2011

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[7] Section 382 prescribes the preconditions which determine whether a person is protected from unfair dismissal. One of those is that the person is an employee who has completed the minimum employment period.

[8] Section 383 then defines the minimum employment period with an employer that is not a small business as six months. This six months ends at the earlier of, the time when the person is given notice of the dismissal and the time immediately before the dismissal.

[9] It is conceded by the Respondent that it is not a small business employer.

[10] The relevant factual matters are that the Respondent offered the Applicant a position in November 2010 and provided a written offer which the Applicant accepted.

[11] The letter of offer dated 1 November 2010 indicates that the position involves a full-time probationary appointment of 12 months. Other conditions of employment are said to be those outlined in the Goldfields Baptist College Teaching Staff Agreement 2009−2012 (the Agreement).

[12] The letter of offer states that the starting date is 1 January 2011 but the Applicant will not be required at school until 28 January 2010.

[13] It is agreed between the parties that the Applicant was paid from 1 January 2011 however he did not in fact commence work at the school until 31 January 2011.

[14] The evidence is that the Applicant was notified in writing on 27 June 2011 that a decision had been taken that he would be dismissed. The notification gave two weeks notice of the dismissal with the Applicant continuing to work until 11 July 2011.

Submissions

[15] The Respondent submits that the minimum employment period was six months and that whilst the Applicant was paid from 1 January 2011 his period of employment did not begin until he started work on 31 January 2011.

[16] Further it is submitted that the date of the written notice of dismissal was 27 June 2011 which is the date earlier than the time the dismissal took effect which was 11 July 2011.

[17] Therefore the Respondent submits that the period of employment was from 31 January 2011 to 27 June 2011, a period less than six months. Secondly even if the view of the Applicant was correct and the employment commenced on 1 January 2011 the period of employment was still less than six months.

[18] The Respondent submits that because the period of the Applicant's employment was less than six months there is no jurisdiction, by virtue of section 383 and section 382 of the Act, for this matter to be considered by Fair Work Australia and the application should be dismissed.

[19] The Applicant in reply argues that his employment did begin on 1 January 2011 and that the date of effect of the dismissal notice was 11 July 2011 and so he was employed for more than six months.

[20] Further the Applicant argues that the employment contract offered to him involved a 12 months probationary period and so the Applicant argues the Respondent has 'waived its rights' to rely on section 383 of the Act.

[21] The Applicant also argued that the dismissal was not consistent with the Respondent's policies, procedures and protocols and was not consistent with the requirements of the Agreement. The Applicant argues therefore that the notice of dismissal was unlawful and no lawful dismissal has ever been effected by the Applicant. Consequently it is argued the Applicant is still employed by the Respondent.

[22] Turning to consider the dates of the employment it obviously is not necessary to determine whether the period of employment began on 1 January or 31 January 2011. This is because it is quite clear that notice of the dismissal was given on 27 June 2011. This is the relevant time in terms of section 383 because it earlier than the time the dismissal took effect.

[23] I find that the end of the period of employment for the purposes of section 383 and section 382 was 27 June 2011. Regardless of the date on which the employment began then the period of employment with the Respondent was less than six months.

[24] With respect to the Applicant's argument that the statutory requirements of section 382 and section 383 had been waived by the Respondent, it is enough to say that the Respondent has no power to override the statutory directions of the legislature as set out in the Fair Work Act 2009. The requirements of section 382 and section 383 must be met before Fair Work Australia has the jurisdiction to consider an application for an unfair dismissal remedy from an employee.

[25] Considering the arguments of the Applicant regarding the lawfulness or validity of the Respondent’s notice of dismissal, two points need to be made. Firstly the question the Tribunal must consider is whether what occurred in this case meant the Applicant's employment with the Respondent has been terminated on the employer's initiative.

[26] What the statutory test involves was considered by a Full Bench of the Australian Industrial Relations Commission in Searle v Moly Mines Limited [[2008] AIRCFB 1088] when considering the very similar provisions under the previous legislation.

“Termination at the initiative of the employer

[20] A Full Bench recently considered the meaning of the expression “termination at the initiative of the employer”’ in O’Meara v Stanley Works Pty Ltd. 2 For our purposes it is sufficient to refer to the following passage in which, having referred to the authorities, the Commission said:

“[23] In our view the full statement of reasons in Mohazab [(1995) 62 IR 200] which we have set out together with the further explanation by Moore J in Rheinberger [(1966) 67 IR 154] and the decisions of Full Benches of this Commission in Pawel [Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C] and ABB Engineering [Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C] require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” [Mohazab at page 205.] Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[21] It is apparent from the last sentence of the passage that the Commission was considering the matter in the context of an allegation that an employee’s resignation was a constructive termination by the employer. That sentence apart, the statement of principle is the one we shall apply namely: did the employer take some action which was intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end.

[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd 3:

“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):

“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's Case [Williamson v The Commonwealth, (1907) 5 CLR 174 at 185] and Lucy's Case [Lucy v The Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”

And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:

“there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.” ”

[23] In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.”

[27] The employment relationship and the contract of employment are not one in the same. The statutory test under section 386 relates to the termination of the employment relationship. Clearly the facts of this matter demonstrates that the employment relationship was terminated by the actions of the employer. I am satisfied then that the employment of the Applicant with the Respondent was terminated on the employer's initiative.

[28] Secondly it needs to be recognised by the Applicant that even if his argument in this was correct then if there has not been a termination of his employment on the initiative of the employer then the Applicant does not have any right to make this application at all because he has not been dismissed within the meaning of section 386 of the Act.

[29] Only a person who has been dismissed within the meaning of the Act can make an application such as this under section 394. If the Applicant has not been dismissed then he should not have made this application and this matter should not have been heard.

Conclusion

[30] In summary I am satisfied that the Applicant’s employment was terminated on the employer's initiative. However the Applicant has not completed the minimum employment period which is a prerequisite for making an application such as this. Consequently there is no jurisdiction for Fair Work Australia to hear this application further.

[31] This application will be dismissed and an order to that effect will be issued in conjunction with this decision to that effect.

COMMISSIONER

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