Simon Pohatu v Response Learning Pty Ltd, Response Research Pty Ltd, Response Learning Victoria Pty Ltd, Response Consulting APAC Pty Ltd, Optivly Pty Ltd
[2023] FWC 157
•24 JANUARY 2023
| [2023] FWC 157 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.365—General protections
Simon Pohatu
v
Response Learning Pty Ltd, Response Research Pty Ltd, Response Learning Victoria Pty Ltd, Response Consulting APAC Pty Ltd, Optivly Pty Ltd
(C2022/7282)
| COMMISSIONER PLATT | ADELAIDE, 24 JANUARY 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection - whether the Applicant was dismissed – fixed-term contract – mistake in written agreement – Applicant not dismissed – jurisdictional objection upheld – application dismissed.
On 1 November 2022, Mr Simon Pohatu (the Applicant) lodged a general protections application under s.365 of the Fair Work Act 2009 (the Act) alleging that on 27 October 2022, he was dismissed in contravention of the general protections provisions of the Act by his employer, namely Response Learning Pty Ltd (Response Learning or the Respondent). In his application, Mr Pohatu also named Response Research Pty Ltd, Response Learning Victoria Pty Ltd, Response Consulting APAC Pty Ltd and Optivly Pty Ltd as respondents (the secondary Respondents), on the basis that the Respondent and each of the secondary Respondents shared a parent company in Response Group International Pty Ltd.
On 14 November 2022, Response Learning filed a Form F8A Employer Response and raised a jurisdictional objection that Mr Pohatu’s employment ceased as a result of the effluxion of time of a fixed-term contract, and therefore that he had not been dismissed. The parties took part in a conciliation conference with one of the Commission’s staff conciliators on 5 December 2022. The matter did not resolve at conciliation.
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.
On 8 December 2022, the matter was allocated to my Chambers, and on 12 December 2022, directions were issued for the filing of material in respect of the jurisdictional objection, and a hearing was scheduled for 12 January 2023.
A hearing was conducted, by videoconference, at 10:20am on 12 January 2023. Mr Pohatu represented himself, whilst the Respondent was represented by Ms Kate Christensen, Education Manager for Response Learning. As neither party was represented or experienced in matters before the Commission, the hearing was conducted by way of determinative conference.
At the conclusion of the hearing, I dismissed the general protections application on the basis that Mr Pohatu had not been dismissed as required by s.365(a) of the Act. The reasons for this decision follow.
Evidence
Both Mr Pohatu and Response Learning filed their materials in compliance with the directions. A digital court book was compiled from these materials and distributed to the parties prior to the hearing. I received the entirety of the digital court book into evidence, giving appropriate weight to any evidence that was tainted by hearsay, opinion or irrelevance.
There was no dispute that Mr Pohatu’s employment contract was governed by a written fixed-term or outer-limit contract, or that he ceased his relationship with the Respondent on 27 October 2022. The only question for determination is whether Mr Pohatu’s contract of employment was due to cease on 27 October 2022 (in which case he would not have been dismissed) or was due to cease on 27 October 2023 (in which case he would have been dismissed).
Mr Pohatu filed a statement/submission in relation to the jurisdictional objection and was cross-examined at the hearing. Response Learning filed witness statements from Mr Nicholas Monsour (Chief Operations Officer), Ms Emma Trumper (Business Operations Manager), Ms Christensen (Education Manager) and Mr Andrew Moore (Company Director). Each of Response Learning’s witnesses gave evidence at the hearing.
The relevant facts which go to the jurisdictional question are generally not in dispute, and are summarised below:
· On 24 March 2022, Mr Pohatu was engaged by Response Learning on a fixed-term or outer-limit contract (the Contract). The Contract stated:
“This contract shall commence on 28th March 2022 and shall remain in force for a period of 3 months.”
· Due to operational requirements, Mr Pohatu commenced employment on 11 April 2022 rather than 28 March 2022.
· On 6 July 2022, Response Learning held internal discussions regarding the possibility of extending the Contract.
· Both parties agreed that Mr Pohatu and Response Learning participated in three meetings about extending the Contract. At the hearing, Mr Pohatu could not recall the date of the meetings. The witnesses of Response Learning indicated that these meetings occurred on:
· 22 July 2022 (the First Meeting); and
· 27 July 2022 (the Second Meeting); and
· 29 July 2022 (the Third Meeting).
· Ms Christensen gave evidence that at the First Meeting, Mr Pohatu was verbally offered the option of extending the Contract for a further three months, until 27 October 2022. Ms Christensen’s evidence was that Mr Pohatu agreed in principle to a three-month extension of the Contract.
· Ms Christensen gave evidence that at the Second Meeting, Mr Pohatu was advised that Response Learning would provide paperwork confirming an offer of a three-month contract extension until 27 October 2022. Ms Christensen’s evidence was that during the Second Meeting, it was explicitly discussed that the extension would be for a period of three months, would be for the same length as the initial term, and would operate until 27 October 2022.
· On 29 July 2022, a Microsoft Teams meeting was conducted. Ms Christensen then sent Mr Pohatu an email with a letter signed by Mr Moore, dated 25 July 2022 (the Contract Extension). The relevant parts of the Contract Extension are extracted below:
“As per the recent conversations with Kate Christensen we take this opportunity to confirm an extension to your employment contract with Response Learning PTY Ltd, effective from Monday 25th July 2022.
· You will be employed in the position of Trainer and Assessor
· You will report to the Operations Superintendent Advanced Education
· Your employment contract shall remain in force until 27th October 2023
· There may be an opportunity for review and extension to this contract.
All other terms and conditions, unless specifically varied above, will remain as per your employment contract.” (emphasis added)
· Ms Trumper gave evidence that the reference to 2023 was a typographical error. Mr Moore gave evidence that he did not notice the error before he signed the letter.
· Response Learning contended that the inclusion of “27th October 2023” as the date for the outer limit of the contract was a result of a clerical error which was not identified at the time and was inconsistent with the intent of the parties to extend the employment for a further three months (and not one year and three months).
· Mr Pohatu accepted that the extension of the Contract was discussed on three occasions. Mr Pohatu initially thought that these meetings occurred around the 27 June 2022, before indicating that he did not recall the dates of the meetings. Mr Pohatu advised that he agreed to a three-month extension of the Contract at these meetings.
· Mr Pohatu did not raise the prospect that the letter sent to him by Mr Moore which extended the contract by one year and three months was inconsistent with what had been discussed. His reason for this, namely that he was told “it would all be sorted”, was not persuasive.
· On 24 October 2022, Ms Christensen and Ms Trumper met with Mr Pohatu to confirm that the Contract would not be extended beyond 27 October 2022. Ms Christensen’s evidence was that Mr Pohatu did not raise any dispute in relation to the cessation of his employment at this meeting. Conversely, Response Learning appears to have discovered the error just before this meeting, but chose not to raise this with Mr Pohatu, preferring the “ostrich approach”.
· On 27 October 2022, Ms Christensen and Mr Monsour met with Mr Pohatu to confirm the end of his employment with Response Learning (the Final Meeting). At the Final Meeting, Mr Pohatu raised the point that the Contract Extension stated that the Contract would not expire until 27 October 2023. At this point, Ms Christensen and Mr Monsour explained that this was a clerical error, and the employment would cease on 27 October 2022, as agreed in the First Meeting and the Second Meeting.
Law
Section 365 of the Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial associated that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 386 of the Act provides the meaning of dismissed:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(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.” (emphasis added)
It is not in dispute that if it was agreed by the parties that Mr Pohatu’s contract of employment was to cease on 27 October 2022, there was no dismissal. Therefore, the key issue for determination is whether the Contract ceased on 27 October 2022, as Response Learning claims was the intention of the parties, or 27 October 2023, as was stated on the Contract Extension sent on 29 July 2022.
Consideration
During the hearing, there was no dispute that the express intention of both the parties was to extend the Contract for three months.
As such, it appears that the date of 27 October 2023 stated in the Contract Extension document was a genuine administrative mistake on behalf of Response Learning.
The focus in relation to the law of mistake is generally centred around whether genuine agreement exists in the making of a contract of or agreement between the two parties.[2] Whilst the Courts are generally reluctant to grant relief to a party on grounds of mistake, it will do so in certain cases to provide relief to a mistaken party.[3]
After hearing the evidence of the relevant witnesses, it seems clear that the common intention of the parties as at 29 July 2022 was for Mr Pohatu’s contract of employment to be extended by three months, to cease on 27 October 2022. I accept the evidence of both Ms Christensen and Mr Moore that Response Learning was not aware of the mistake in the Contract Extension document until just prior to the Final Meeting. It appears that Mr Pohatu was aware of the mistake but chose the remain silent.
I find that the effect of the Contract and the Contract Extension was that the parties agreed that the outer limit of the employment relationship between Mr Pohatu and Response Learning would be 27 October 2022. As per s.386(2) of the Act and the decision of the Full Bench in Khayam[4], an employment relationship which ceases as a result of the effluxion of time of a fixed-term or outer-limit contract will not be terminated at the initiative of the employer. Accordingly, I find Mr Pohatu has not been dismissed. As a result of this finding, I am required to dismiss Mr Pohatu’s general protections application. An order[5] reflecting this decision was published on 12 January 2023.
COMMISSIONER
Appearances:
S Pohatu, the Applicant.
K Christensen for the Respondent.
Hearing details:
2023.
Adelaide (by videoconference):
January 12.
[1] [2020] FCAFC 152.
[2] Lockwood v HWG Cuthill, MG Quinn, MJ Verbeeten and MJ Will Trustee for Wilhem Trust T/A Kings Meadows Capital Chemist [2014] FWC 2950.
[3] Daniel Khoury and Yvonne Yamouni, Understanding Contract Law (Lexis Nexus Butterworths, 8th ed, 2010) 291.
[4] Khayam v Navitas English Pty Ltd (2017) 273 IR 44.
[5] PR749598.
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