Samnakay v Jigalong Community

[1996] IRCA 394

DECISION NO:  394/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - PROBATION PERIOD - whether reasonable

INDUSTRIAL LAW - EMPLOYMENT CONTRACT - BREACH OF CONTRACT - DAMAGES - applicant accepted offer of employment but never commenced work - whether PROBATIONARY PERIOD

Industrial Relations Act 1988 (Cth)

Industrial Relations Regulations: reg 30b

ABDUL HAQ SAMNAKAY -v- JIGALONG COMMUNITY

WILLIAM JOHN SHELTON v JIGALONG COMMUNITY

No. WI 2067 of 1995
No. WI 2068 of 1995

CORAM:      MADGWICK J
PLACE:        PERTH

DATE:          5 AUGUST 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY

No. 2067 of 1995
  No. 2068 of 1995

BETWEEN  ABDUL HAQ SAMNAKAY
  1st Applicant

WILLIAM JOHN SHELTON
  2nd Applicant

AND  JIGALONG COMMUNITY
  Respondent

CORAM:      MADGWICK J
PLACE:        PERTH
DATE:          5 AUGUST 1996

MINUTES OF ORDER

THE COURT ORDERS THE FOLLOWING:

1.Judgment for Mr Shelton for $8667 plus interest pursuant to the Industrial Relations Court Rules.

2.Judgment for Mr Samnakay for $9665 plus interest pursuant to the Industrial Relations Court Rules. 

3.In each case, interest is to run from 28 June 1995.

4.In each case, said sums and interest to be paid by the respondent within 21 days.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY

No. 2067 of 1995
  No. 2068 of 1995

BETWEEN  ABDUL HAQ SAMNAKAY
  1st Applicant

WILLIAM JOHN SHELTON
  2nd Applicant

AND  JIGALONG COMMUNITY
  Respondent

CORAM:      MADGWICK J
PLACE:        PERTH
DATE:          5 AUGUST 1996

REASONS FOR JUDGMENT

(Revised from transcript)

MADGWICK J:       This, as the learned Judicial Registrar noted, is an unusual case.

It is an application for review of a decision by a Judicial Registrar who held that the provisions of the Act were not available to the applicants because the employment agreed upon was covered by regulation 30B of the Industrial Relations Regulations. Regulation 30b(1)(c) excludes, among others, the following kind of employee from the termination of employment provisions of the Act:

"(c)An employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period as the case requires (i) is determined in advance and (ii) is reasonable, having regard to the nature and circumstances of the employment."

I will annex hereto a copy of the Judicial Registrar's decision which makes the facts of this matter clear.  I agree with her that such evidence as there is before the Court enables only the conclusion that the period of probation was a reasonable one. 

In summary, what happened was that both applicants were made an offer of employment and it was desired by the respondent that they respond to that offer as soon as possible.  In the case of Mr Samnakay, an actual commencement date of 27 March 1995 was agreed upon. 

In the case of Mr Shelton, he proposed that date as his commencement date.  Having regard to the terms of the offer of employment, it seems to me that the intention of the parties was that he should commence as soon as was reasonably practicable and, apart from the behaviour of the respondent in failing to meet its obligations, there is nothing to indicate that 27 March would not have been a reasonably practicable commencement date.  At best, there was some agreement by Mr Shelton to postpone, at the request of the respondent, his starting date but there was no waiver by him of his rights to have employment for a 3 month trial or probation period.

In May, Mr Shelton was told that Jigalong Community had appointed another individual to his position.  Also in May, Mr Samnakay was told, in answer to his reasonable request to have details expedited of his travel, that "It was resolved ... that [he] be advised that any communication regarding the subject referred to [ie. his employment] must be addressed to" other parts of the relevant Aboriginal affairs bureaucracy.

The Applicants have submitted that their engagements were not for a mere 3 months but were for continuing employment subject only to a right in the employer to terminate the employment at the expiration of 3 months if dissatisfied with the performance of either man.  It is alternatively put that there would have been a reasonable expectation that the employment would continue beyond 3 months.  In my opinion, the realistic position is that, however bitterly disappointed, with justification, each applicant might have been, a reasonable person in his position would have understood, after the rude brush-offs in May, that the employment was not going to proceed at all.

It must have been clear that either the respondent was having second thoughts about the employment of each of them, or that the respondent was being stymied in its desire to have them or either of them employed by some other arm of what I have described as the relevant Aboriginal affairs bureaucracy.

Their only right, it seems to me, was to have been employed for 3 months.  If the contract in each case was for continuing employment subject to the employer's right of termination of it at the end of 3 months, it was a contract that allowed an absolute right in the employer to terminate at the end of 3 months and therefore there could be no legitimate expectation of employment continuing beyond that date.  In any case, legitimate expectation is not a concept relevant here except perhaps in the application of some estoppel which has not been explored in detail. 

There is no evidence that either man was able to obtain other employment in the 3 months from 27 March 1995.  It seems to me, subject to one point that I will mention in a moment, appropriate to award each of them damages for breach of contract in a sum equal to 3 months' wages, plus interest.

The point that concerns me and to which I have just alluded is this:  there was not pleaded or made clear in writing, as far as I can make out, a distinct claim in the associated jurisdiction of the Court for contractual relief.  I think that the breach of contract claim could fall within the associated jurisdiction of the Court, but I am concerned that, theoretically at least, the Jigalong Community might have been moved to action and to representation and/or appearance here if it had known of such a claim.

However, as the solicitor for the applicants points out to me, at all times it was made clear to the Jigalong Community that each applicant believed he had a contract of employment and that the Jigalong Community was wrongfully not meeting its obligations to the applicants.  In substance, therefore, I think that the Community did have ample notice of the nature of the claim and I see no reason for the Court not to grant relief.  It is difficult to know what possible defence might have been urged to a breach of contract claim. 

I certify that this and the preceding 4 pages are a true copy of the Ex Tempore Reasons for Judgment of His Honour Justice Madgwick.

Associate:           

Dated:                5 August 1996

APPEARANCES

Counsel for the Applicants:     M J Hardy

Solicitor for the Applicants:     Clayton Utz

No appearance by the Respondent

Date of hearing:  5 August 1996