Port of Devonport Corporation Pty Ltd v Abey and Griffiths
[2005] TASSC 1
•19 January 2005
[2005] TASSC 1
CITATION:Port of Devonport Corporation Pty Ltd v Abey and Griffiths [2005] TASSC 1
PARTIES: PORT OF DEVONPORT CORPORATION PTY LTD
(ABN 50078 720 224)
v
ABEY, Tim (A COMMISSIONER OF THE TASMANIAN INDUSTRIAL COMMISSION)
GRIFFITHS, Alan Ernest
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M48/2004
DELIVERED ON: 19 January 2005
DELIVERED AT: Hobart
HEARING DATE: 18 October, 12 November 2004
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Industrial Law – Tasmania – Definitions and interpretations - Industrial Relations Commission – Jurisdiction of the Commission – Contract of employment not renewed – Meaning of termination of employment.
Industrial Relations Act 1984 (Tas), ss3(1), 30, 31(1A).
Saarinen v University of Tasmania (1997) 7 Tas R 154; The Association of Professional Engineers, Scientists and Managers Australia & Anor v Skilled Engineering Pty Ltd (1994) 1 IRCR 106; State of Victoria v Commonwealth of Australia (1996) 187 CLR 416; Fisher v Edith Cowan University, 2 April 1997 IRC 98/97, distinguished.
Aust Dig Industrial Law [1128]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
First Respondent: Submitted to an Order of the Court
Second Respondent: In person
Attorney-General (Intervener): T J Ellis SC
Solicitors:
Applicant: S B McElwaine
First Respondent:
Second Respondent: In person
Attorney-General (Intervener): Director of Public Prosecutions
Judgment Number: [2005] TASSC 1
Number of paragraphs: 45
Serial No 1/2005
File No M48/2004
PORT OF DEVONPORT CORPORATION PTY LTD (ABN 50078 720 224) v
TIM ABEY (A COMMISSIONER OF THE TASMANIAN INDUSTRIAL COMMISSION) and ALAN ERNEST GRIFFITHS
REASONS FOR JUDGMENT UNDERWOOD CJ
19 January 2005
The issues
On 30 June 2004, the first respondent ("the Commissioner") decided that he had jurisdiction pursuant to the provisions of the Industrial Relations Act 1984 ("the Act") to hear and determine an application filed in the Industrial Commission by the second respondent and dated 23 December 2003.
On 9 July 2004, the applicant filed in this Court a notice to review the Commissioner's decision pursuant to the provisions of the Judicial Review Act 2000 ("the Review Act"), s17. The notice to review was subsequently amended to include the Review Act, s18, as an alternative basis for review. The notice to review raises the following issues:
(a)Is the applicant "a person who is aggrieved" by the Commissioner's decision made on 30 June 2004 within the meaning of the Review Act, s17?
(b)Alternatively, is the applicant "a person who is aggrieved" by the conduct of the Commissioner for the purpose of making the decision on 30 June 2004?
(c)If "yes" to either (a) or (b), should this Court presently entertain a review of the decision?
(d)If "yes" to (c), was the decision based on evidence or other material properly before the Commissioner?
(e)If "yes" to (d), did the Commissioner's decision and/or conduct involve an error of law?
The Commissioner filed a notice of submission pursuant to the Supreme Court Rules 2000, r777G. The Attorney-General for the State of Tasmania intervened in these proceedings pursuant to the right conferred upon her by the Review Act, s39(1).
Some background material
The second respondent, to whom I shall refer simply as the respondent, is an engineer. He was employed by the applicant as an assistant port engineer. His employment commenced on 14 September 1998. A letter written by the applicant to the respondent dated 2 September 1998 commenced:
"It is with pleasure that I formally confirm our agreement reached today for the contract of your services as Assistant Port Engineer for the period 14 September 1998 to 18 December 1998 inclusive."
There followed some provisions concerning the terms of that employment. Four days after the expiry of that agreement, the applicant and the respondent entered into a more formal document entitled "employment agreement". It read as if it had been written by a lawyer. Relevantly it provided:
"1.1The Employer will employ the Employee and the Employee will serve the Employer as its Assistant Port Engineer.
1.2The employment will commence on the 22nd day of December 1998 ('the commencement date') and continue until the 22nd day of December 2003 subject to termination as hereafter provided."
There followed several pages of conditions of employment. Clause 7 provided as follows:
"renewal of agreement
7.1In the event that the Employee wishes to be reappointed as Assistant Port Engineer of the employer, then he must a least six months before the 22nd day of December 2003 advise the Employer of such intention in writing.
7.2If the Employer receives a notice pursuant to Clause 7.1, then it must advise the Employee in writing within two months of receiving the notice of its intention either to advertise the position or offer the Employee reappointment as Assistant Port Engineer, and if so upon what terms.
7.3If the Employer makes an offer of reappointment to the Employee, then the Employee must accept that offer at least two months before the 22nd day of December 2003."
In May 2003, the applicant advised the respondent in writing that there was to be a "restructure" of the management arrangements and the position occupied by the respondent would be abolished at the conclusion of the respondent's contract. A letter from the applicant to the respondent dated 12 December 2003 confirmed that upon expiry of the contract, the position occupied by the respondent would be abolished and he would "cease to be employed by the [applicant] after 22 December 2003".
By his application to the Tasmanian Industrial Commission dated 23 December 2003, the respondent complained that he had been unfairly dismissed. An attachment to the respondent's application stated that he commenced work for the applicant in September 1998 on a casual basis in accordance with the letter dated 2 September 1998 and then "was forced" to enter into the contract dated 22 December 1998. The attachment stated that the respondent had a reasonable expectation of being re-employed, that he had not been subjected to any disciplinary process, and that he had been denied "due process with respect to non-appointment". The application also claimed certain amounts due pursuant to an award.
The proceedings in the Industrial Commission
The hearing of the respondent's application commenced on 9 June 2004. Mr McElwaine, counsel for the applicant, obtained leave to appear for the applicant at that hearing. The respondent was self-represented. The Commissioner told the respondent that he could go into the witness box, give evidence and be cross-examined by Mr McElwaine, or he could just make statements from the Bar table. The Commissioner explained that in the latter event "if there is any contest to the facts, then it is given appropriate weight". The respondent elected to make assertions from the Bar table and proceeded to outline the circumstances leading up to his appointment. The respondent then spoke about the work that he had done for the applicant and the circumstances under which he claimed he had been dismissed. In the course of his assertions, the respondent tendered a number of documents and they were marked as exhibits. In his lengthy address, the respondent clarified that he was seeking an order that he be reinstated or failing that, an order "for redundancy".
At the conclusion of the respondent's address, Mr McElwaine observed, "Well, none of that having been sworn, I can't cross-examine him on it". The Commissioner confirmed that this was correct. Mr McElwaine said that he wished to make some "jurisdictional submissions" and proceeded to do so. In the course of those submissions, he tendered some documents. Mr McElwaine submitted:
(a)The Commission had no jurisdiction because the applicant did not terminate the respondent's employment. The employment was pursuant to a common law contract that had been discharged by performance and therefore, the applicant's complaints did not relate to an "industrial matter" as defined by the Act.
(b)Alternatively, the respondent's application related to an appointment or promotion and the Commission had no jurisdiction because the definition of "industrial matter" in the Act, s3(1), excludes from the meaning of that expression matters relating to "appointments or promotions …".
(c)Further, insofar as the respondent's application complained that there had been breaches of the Federal Award for Professional Engineers and Scientists, the respondent did not have jurisdiction. This was exclusively vested in the Australian Industrial Relations Commission. Finally, with respect to the respondent's claim for pro rata long service leave based on the Tasmanian Ports Corporations Award 2002, the award did not apply to the respondent.
The Commissioner discussed with Mr McElwaine whether his client wished to give evidence. Mr McElwaine asserted that the respondent had given no evidence (except for the tendered documents). The Commissioner reminded Mr McElwaine that the respondent had made "assertions" and that he had no contrary evidence. After taking time to consider his position, Mr McElwaine said:
"The employer's position remains as I put it. That is, in the unusual circumstances of this case where Mr Griffiths elected not to call evidence. There is evidence before you, being the documents which have been tendered and marked. There are statements, unsworn and unable to be tested by cross-examination from the bar table, which are disputed. I maintain my preliminary point at this stage that without being required to elect to give evidence that you, with respect, make a ruling on the jurisdictional submission. In the event that you find there is no jurisdiction, that will be the end of the matter. In the event that you do find that there is jurisdiction, we will need to resume and hear some evidence from the employer to rebut the unsworn and untested statements made from the bar table. If it please."
The Commissioner reserved his decision.
The impugned decision
The Commissioner handed down his written decision on 30 June 2004. In pars1 – 26, he recited some of the respondent's assertions without stating whether he accepted any of them as correct or not, and set out some relevant paragraphs from the exhibits. Mr McElwaine's submissions were summarised in pars28 – 35. The Commissioner left open the question of what findings he should or could make on the "evidence" that had been presented to him, saying, at par38:
"Mr Griffiths chose not to make a sworn statement and to allow his evidence to be tested through cross-examination. Such a course of action weakens his position significantly in the event that the respondent calls evidence to counter the applicant's assertions. At this stage that has not happened."
With respect to the first submission made by Mr McElwaine, the Commissioner found that he had jurisdiction and relied upon the provisions of the Act, s30(3), which provide:
"(3) The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with ¾
(a)the capacity, performance or conduct of the employee; or
(b)the operational requirements of the employer's business."
The Commissioner then held, at par42:
"It would seem to me that, in all but the most clear cut cases, it would not be possible to determine whether a person has a 'reasonable expectation of continuing employment', without hearing evidence and argument going to that question. It is not without significance that Saarinen pre-dates the insertion of s30(3)."
The Commissioner said that although the Commission did not have jurisdiction to enforce a common law contract, such a contract may be relevant in a case where there had been a reasonable expectation of continuing that contracted employment. The Commissioner accepted the submission that the Commission did not have jurisdiction with respect to appointments and promotions and thus, in the case of a genuine restructure, the Commission had no power to order appointment to a newly created position. However, the Commissioner held that this was a restriction on the available remedies only, not on a prohibition upon making any order at all.
Finally, the Commission accepted as correct Mr McElwaine's submission with respect to the respondent's claims insofar as they were based on the federal and the state awards.
Was the decision based on "evidence"?
It is convenient to dispose of this argument at the outset. Upon the hearing before me, Mr McElwaine submitted that even if the Commission had jurisdiction to determine the applicant's claim upon the basis that jurisdiction exists in the case of expiry of a fixed term contract of employment if there is a reasonable expectation of continuing employment, there was no evidence or other acceptable material upon which the Commission could conclude that the respondent had such a reasonable explanation. The Act, s20(1), relevantly provides:
"(1) In the exercise of its jurisdiction under this Act, the Commission ¾
(a)shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms;
(b)…;
(c)is not bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and
(d)..."
Clearly, these statutory provisions authorised the Commissioner to take the course he did. Some of the assertions made by the respondent could be construed as assertions that he had an expectation of continuing employment after the expiry of the contract and could support a finding that such an expectation was reasonably held. To the Commissioner, Mr McElwaine likened his preliminary submission to a strike-out application in this Court, but of course, no such or similar procedure is known to the Commission.
The Commissioner's reasons for decision make it clear that he did not make a finding that the respondent had the relevant expectation. His finding was that such an expectation, even in the case of expiry of a fixed term contract of employment by effluxion of time, gives the Commission jurisdiction. He accordingly concluded that the hearing should proceed and Mr McElwaine's client be given an opportunity to present any evidence it wished to present. In taking this course and in basing his ruling upon that material, no reviewable error occurred. Indeed, the Act, s20(1), authorised the Commissioner to refuse to consider Mr McElwaine's submissions until after his client had presented any evidence that it wished to present.
I think however, that it is appropriate for me to make this observation. It is almost invariably unsatisfactory to permit the competing versions of the facts to be given by different modes of proof in a case where there are, or may be, disputed facts that require resolution by the Commission. If one version is tested by cross-examination and the other is not, it puts the decision maker in a very difficult position when asked to find which version should be accepted. It seems to me that notwithstanding the breadth of the Act, s20(1), if there is a contest about any factual matter, the Commission should inform itself only after the competing versions have been tested in the crucible of cross-examination. In this context it may be noted that the last bastion of the right to give untested evidence in a court was swept away in 1993 (Act No 89 of 1993) when the right of an accused person in a criminal trial to make an unsworn statement from the dock (conferred for reasons irrelevant in modern times) was abolished.
The jurisdictional issue
It is now convenient to consider the question of whether the Commission had jurisdiction to deal with the respondent's claim of wrongful dismissal. If it did, the present application must fail even if the applicant is successful on all the other issues raised by it.
The primary jurisdiction of the Commission is conferred by the Act, s19(1), which provides:
"19 ¾ (1) Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter."
That provision has remained unaltered since the Act was first enacted in 1984. Section 19(2) set out a list of powers that the Commission has for the purposes of subs(1). Included amongst those powers is a power to conduct hearings for settling industrial disputes. The Act, s3(1), defines an industrial dispute to mean:
"'industrial dispute' means a dispute in relation to an industrial matter ¾
(a)that has arisen; or
(b)that is likely to arise or is threatened or impending;"
Relevant to the present proceedings, an industrial matter is defined to mean:
"… any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes ¾
(a)a matter relating to ¾
(i)… or
(ii)the termination of employment of an employee or former employee;"
The Full Court of this Court had occasion to consider the provisions of the Act in Saarinen v University of Tasmania (1997) 7 Tas R 154. At that time the relevant definitions of "industrial dispute" and "industrial matter" were:
"'industrial dispute' means a dispute relating to an industrial matter and includes a dispute relating to ¾
(a) the 'termination of employment or reinstatement of an employee'
(b) …".
"'industrial matter' means any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing …". [There followed a descriptive list, not relevant to the matter at hand.]
At first instance, (A23/1996), Slicer J held that the Commission had no jurisdiction to determine Mrs Saarinen's dispute because (inter alia) she was employed under a contract, the contract period had expired and that did not amount to a termination of employment within the definition of industrial dispute. The Act was amended by Act No 18 of 1997 which came into force on 28 June that year, after the decision of Slicer J had been handed down, after there had been argument on the appeal to the Full Court, but before the judgments of that Court were delivered.
Although there was a subsequent further amendment to the definition of "industrial matter" (Act No 104 of 2000), it is not material for present purposes. The relevant definitions since 28 June 1997 are as set out in pars23 and 24.
The Full Court in Saarinen construed the meaning of the statutory expression, "the termination of employment or reinstatement of an employee". I am required to construe the meaning of the statutory expression, "the termination of employment of an employee or former employee". In New Town Timber & Hardware Pty Ltd v Gurr (1995) 5 Tas R 91 at 97, I expressed doubt about whether a former employee fell within that part of the statutory definition of "industrial matter" which then referred to "any matter pertaining to the relations of employers and employees". I pointed out that once the employer/employee relationship had been severed, the definition could not apply. However, I construed the expression "a dispute relating to the … dismissal … of any … employee" as embracing former employees as such dispute could not arise until the worker had acquired the latter status. The 1997 amendment to put the words "or former employee" into the definition of industrial matter put that issue beyond question.
It seems to me then, that the construction placed on the expression "a matter relating to the termination of employment of an employee" by the majority of the Full Court in Saarinen must be applied to the meaning of that expression as presently enacted for there has been no relevant change to the definition since the decision of Saarinen was handed down. Although there has been no material change to the relevant part of the definition since Saarinen, have there been other statutory changes which might call for reconsideration of the reasoning in Saarninen?
For the applicant, Mr McElwaine submitted that the legislative changes effected since the Full Court judgment was handed down in Saarinen have not affected the validity of the reasoning in that case. For the intervener, Mr Ellis SC, submitted to the contrary and contended that amendments introduced into the Act by the Industrial Relations Amendment Act 104 of 2000 did, and were designed to, change the law as expounded in Saarinen. In order to deal with these opposing contentions, it is necessary to revisit part of my reasons for judgment in Saarinen. At 178 and following, I referred to the unfair dismissal provisions enacted by the Industrial Relations Act 1988 (Cth), as amended by Act No 98 of 1993 and concluded that these provisions motivated, in part, the amendments to the Act made by Act No 90 of 1994. The Commonwealth Act relied upon the International Termination of Employment Convention 1982. Those provisions and the International Convention are presently enacted in the Workplace Relations Act 1996 (Cth), Div3, Sch10.
At the time Saarinen was decided and presently, the Commonwealth legislation, relying on the Convention, defined "termination" to mean "termination at the initiative of the employer". Thus it may be noted that in Saarinen, the Act spoke of "termination of employment" and the Commonwealth Act spoke of "termination of employment at the initiative of the employer". At 179, I drew attention to this distinction, but also referred to the fact that the amendments to the Act by Act No 98 of 1993 were motivated by changes to the Commonwealth legislation and that one of those amendments was the introduction of s30(1A) into the Act:
"(1a) Before deciding whether or not to make an order in respect of an industrial dispute relating to termination of employment, a Commissioner is to take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer as set out in Schedule 10 to the Commonwealth Act."
Part II of the Convention is a prohibition against termination of employment in certain circumstances and sets out certain rights for those whose employment has been unfairly terminated. Part II contains no definition of termination of employment, but Part I of the Convention defined it to mean termination at the initiative of the employer. In Saarinen, I held that consequently, the same meaning must be attributed to the expression "termination of employment" where it appears in Part II.
My reasoning in Saarinen was that because the 1994 amendments were introduced partly to align the Act with the Commonwealth Act, and more importantly, because the Act, s30(1A), required the Commissioner to have regard to Part II of the International Convention which was concerned only with employment terminated at the initiative of the employer, no distinction should be drawn between the expression "termination of employment" in the Act, and "terminate an employee's employment" as enacted in the Commonwealth legislation. I then turned to the authorities that considered the Commonwealth provision, namely The Association of Professional Engineers, Scientists and Managers Australia & Anor v Skilled Engineering Pty Ltd (1994) 1 IRCR 106; State of Victoria v Commonwealth of Australia (1996) 187 CLR 416; Fisher v Edith Cowan University, 2 April 1997, IRC 98/97, a decision of the Full Court of the Industrial Relations Court.
Having discussed those cases, and cited some passages from them, at 182 I concluded, as did those cases:
"Thus, there might be circumstances when, having regard to international obligations, expiry of the term of a contract of employment may not terminate the employment relationship. Further, there may be cases where the employment relationship is not wholly dependent on the contract but, apart from such cases there is no termination of the employment relationship when that relationship comes to an end by virtue of the expiration of the term of a contract that created it. In this case the relationship came to an end by the effluxion of time and was not terminated by the respondent." [Emphasis added.]
Mr Ellis submitted that the insertion of s30 and the amendment to s31(1A) by Act No 104 of 2000 defeats the reasoning in Saarinen. This is how s31(1A) was amended:
"(1a) Before deciding whether or not to make an order in respect of an industrial dispute relating to termination of employment, a Commissioner is to
take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employergive effect to the provisions of s30."
Accordingly, all reference to the International Convention and consequently its definition of termination of employment was thereby removed from the Act. The obligations imposed by the International Convention, PtII, were substantially enacted in s30 which was also inserted into the Act by No 104 of 2000, the previous s30 having been repealed by Act No 18 of 1997.
The new s30 imposed the substance of the obligations imposed by the International Convention, PtII, but with two significant differences. The Convention imposed obligations in the case of employment that had been terminated at the initiative of the employer. Section 30 also imposed obligations in the case of the employment of an employee whose employment had been terminated. However, unlike the Convention s30 makes no reference to the manner of termination and prescribes that the employee must have had a reasonable expectation of continuing employment. Mr Ellis submitted that this legislative change and the removal of all reference to the Convention, showed a clear intention to statutorily change the law as expounded by Saarinen. Section 30 was enacted in these terms:
"30 ¾ (1) In this section ¾
'employee' includes a former employee;
'relationship status' means the status of being, or having been, in a personal relationship, within the meaning of the Relationships Act 2003.
(2) In considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and employee concerned and that all of the circumstances of the case are fully taken into account.
(3) The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with ¾
(a) the capacity, performance or conduct of the employee; or
(b) the operational requirements of the employer's business.
(4) Without limitation, the following are not valid reasons for termination of employment:
[There follows seven paragraphs of such circumstances, none of which are presently relevant.]
(5) Where an employer terminates an employee’s employment, the onus of proving the existence of a valid reason for the termination rests with the employer.
(6) Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant.
(7) The employment of an employee must not be terminated for reasons related to the employee’s conduct, capacity or performance unless he or she is informed of those reasons and given an opportunity to respond to them, unless in all the circumstances the employer cannot reasonably be expected to provide such an opportunity.
(8) An employee responding to an employer under subsection (7) is to be offered the opportunity to be assisted by another person of the employee’s choice.
(9) The principal remedy in a dispute in which the Commission finds that an employee's employment has been unfairly terminated is an order for reinstatement of the employee to the job he or she held immediately before the termination of employment or, if the Commission is of the opinion that it is appropriate in all the circumstances of the case, an order for re-employment of the employee to that job.
(10) The Commission may order compensation, instead of reinstatement or re-employment, to be paid to an employee who the Commission finds to have been unfairly dismissed only if, in the Commission's opinion, reinstatement or re-employment is impracticable.
(11) – (13) [These subsections set out matters relevant to the assessment of compensation.]"
As I understand it, s30 is an unfair dismissal clause. It operates to override award provisions prescribing the amount of notice that must be given to make a dismissal from employment lawful. Upon its face it could apply to employees who were employed under contract for a fixed term which has expired, as well as to employees who were employed for an undefined period. The right of a former employee to apply for a hearing in respect of an industrial dispute relating to termination of employment is conferred by the Act, s29(1A), which was introduced in 1994 and which was relevantly unaffected by Act No 104 of 2000.
The major hurdle in front of Mr Ellis' submission is the fact that the primary source of jurisdiction, the Act, s19, and the definition of "industrial matter", "the termination of employment of an employee or former employee", remained unaffected by Act No 104 of 2000. In Victoria v The Commonwealth (supra) the joint judgment was concerned with the expression "terminate an employee's employment" which, by virtue of the Industrial Relations Act 1988 (Cth) as then enacted, s170CB, was linked to the definition in the Convention. However, their Honours said, at 520:
"There is nothing in the Act to suggest that the words '(a)n employer must not terminate an employee's employment' are to be construed other than in accordance with their ordinary meaning. So construed, they do not apply to the situation where employment comes to an end because its term has expired. To put the matter another way, the prohibitions are concerned with termination for reasons unconnected with the term of employment."
Although their Honours used the expression "ordinary meaning", they applied it to the phrase "an employer must not terminate an employee's employment", not to the phrase "termination of emplyment". The Act, s3(1), refers only to termination of employment and says nothing about "at the initiative of the employer", but in Saarinen, that expression was aligned with the reasoning in Victoria v The Commonwealth because of the then statutory requirement in the Act to have regard to the International Convention. Once that requirement disappeared, the persuasive force of the cases relied upon in my judgment in Saarinen also disappeared.
Cox CJ who, was in the minority in Saarinen on this issue, did not see the significance that I placed on s30(1A) as then enacted. He referred to R v Secretary of State for Social Services; ex parte Kahn [1973] 2 All ER 104 in which case Lord Denning MR observed, at 106, that "the word 'terminate' or 'termination' is by itself ambiguous". His Honour said, at 159, that Kahn's case demonstrated that the expressions "terminate" and "termination" can include termination by effluxion of time depending on the context in which the words appear. Cox CJ rejected the decisions upon which I relied as being of no assistance because they were not dealing with equivalent provisions. He held that the reference in the Commonwealth legislation to termination at the initiative of the employer gave the word "termination" quite a different meaning from that given it by the Act. His reasoning differed from mine in that at 160, he found that the requirement imposed by s31(1A) to have regard to the International Convention was not a requirement "restrictive of the proper interpretation of the expression 'termination'".
In my respectful opinion, the reasoning of Cox CJ in Saarinen is now apposite to the Act. This is because Act No 104 of 2000 has removed the requirement that Commissioners have regard to an International Convention which referred to termination at the initiative of the employer.
I should add that I looked at the Second Reading speech when Act No 104 of 2000 was before the House of Assembly in the form of a Bill, but found it of little assistance. Interestingly, the Opposition propounded an amendment to insert a new subs(3A) after s30(3) to provide, in effect, that employees contracted for a specific period of time were excluded from making an application pursuant to ss29, 30 or 30A. The then Shadow Attorney-General asked the very question raised by these proceedings, namely, does s30(3) apply to "employees under a contract of employment for a specified time". The Attorney-General of the day responded by saying that he was "not going to be cross-examined on your amendments"! He then said he would leave this to the Commission but later gave an example of a casual labourer who had a reasonable expectation of the casual work continuing.
However, notwithstanding the absence of assistance from the legislators, I have reached the conclusion for the reasons I have set out that the Commissioner was correct when he decided on 30 June 2004 that he had jurisdiction to determine the respondent's application, notwithstanding that his fixed term of employment came to an end by effluxion of time, provided he established the criteria prescribed by the Act, s30(3).
Consequently the other issues raised on this application do not require determination. The application is dismissed.
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