Theo Kyriopoulos v RACV

[2016] FWC 8717

[2016] FWC 8717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Theo Kyriopoulos
v
RACV
(U2016/8261)

COMMISSIONER GREGORY MELBOURNE, 5 DECEMBER 2016

Application for relief from unfair dismissal – jurisdictional objection - dismissal at the end of a specified period of time, specified task or season.

Introduction

[1] Mr Theo Kyriopoulos was initially employed by the RACV in February 2013 and worked on a part-time basis as a Surveillance and Incident Response Officer. In November 2013 he took on a full-time role and remained in this position until his employment ended on 24 June 2016. He then lodged this unfair dismissal claim.

[2] The RACV responded by raising a jurisdictional objection to the application on the basis that Mr Kyriopoulos was not “dismissed” within the meaning of section 386(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) because he was employed under a contract for a specified period of time. This decision deals with that jurisdictional objection.

[3] Ms Alice Alexander from Lander and Rogers was granted leave to appear on behalf of Mr Kyriopoulos under s.596(2)(a) as the matter involved a degree of complexity and her involvement might enable it to be dealt with more effectively. Mr Paul Harris and Mr Renato Marasco appeared for the RACV.

The Issue to be Determined

[4] Section 386 of the Act relevantly provides:

“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

…

(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.”

[5] The Commission is accordingly required to determine whether Mr Kyriopoulos was a person employed under a contract of employment for a specified period of time and, if so, did his employment end at the conclusion of that period or, conversely, was he dismissed at an earlier point in time at the initiative of his employer.

The Submissions and Evidence

[6] The RACV submits that Mr Kyriopoulos was not dismissed on its initiative, but his employment instead came to an end at the completion of his “outer limits” contract of employment on 30 June 2016. In this context it relies on s.386(2)(a) of the Act. It also refers to the following extracts from the Explanatory Memorandum that accompanied the Fair Work Bill 2008.

“1531 Sub clause 386(2) sets out circumstances in which a person is taken not to have been dismissed. These are where:

• the person was employed 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, task or season; or

1532 Paragraph 386(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.” 1

[7] It continues to submit that Mr Kyriopoulos was employed as a consequence of a contract it has with Transurban, which requires it to deal with traffic incidents on the Citylink freeway system. This contract commenced on 1 January 2011 and expired on 31 December 2015, but was then extended for a further period of 6 months.

[8] Mr Kyriopoulos was initially employed on a part-time basis as a Surveillance and Incident Response Officer, under what the RACV describes as “a maximum term (i.e. “outer limits”) contract of employment dated 21 February 2013 for the period 27 February 2013 to 31 December 2015.” 2

[9] He then accepted an offer of a full-time position and entered into a further “outer limits” contract dated 14 December 2016, which extended his employment until 30 June 2016. However, on 24 June 2016 he was told he was no longer required at work, but would be paid until his employment contract expired on 30 June 2016.

[10] The RACV continues to submit that Mr Kyriopoulos has not been dismissed under s.386, and therefore cannot have been unfairly dismissed. It relies on the decision in Department of Justice v Lunn (Lunn) 3 in support of this submission, and notes the decision has been cited with approval in subsequent decisions, including the Full Bench decision in Drummond v Canberra Institute of Technology.4 It submits that these decisions confirm that even though other circumstances might have existed at the time, the contract of employment still came to an end through the effluxion of time, and the employee’s termination cannot be said to be at the initiative of the employer. This applies regardless of any expectations the employee might have about future ongoing employment.

[11] The RACV submits, in conclusion, “[t]he circumstances in which the Applicant was employed was clearly restricted to a specific period of time.” 5 While other circumstances might have existed they were not the reason for Mr Kyriopoulos’ termination, and his employment contract simply came to an end due to the expiry of the time period in his contract. Therefore, he has not been “dismissed.”

[12] Mr Warren Pereara is employed as an Operations Manager with the RACV. His evidence indicates Mr Kyriopoulos was employed under a contract of employment that expired on 31 December 2015, but he was then offered a contract extension until 30 June 2016. He also said it was explained to all employees at the time of engagement, including Mr Kyriopoulos, that the duration of their employment contracts were “based and dependent on the overarching contract with Transurban to provide the Citylink incident response service.” 6

[13] Mr Pereara’s witness statement also attached a letter dated 21 February 2013 that was given to Mr Kyriopoulos when he was first employed. It attached the conditions of employment, which include the following:

“Maximum Term Period – You will be employed for a maximum term period commencing 27 February 2013 and concluding on 31 December 2015; unless terminated earlier in accordance with the notice provisions.

…

Termination of Employment – You are required to provide at least 2 weeks notice in writing, or forfeit the equivalent amount of salary in lieu of notice, if you terminate your employment, unless a lesser period of time is agreed. This is in accordance with the Fair Work Act 2009.

Similarly, in circumstances where RACV terminates employment, RACV will provide at least 2 weeks notice in writing, or the equivalent amount of salary in lieu of notice, and any related payments in accordance with the Fair Work Act 2009 requirements.

Where employment is terminated for serious misconduct no notice of termination is required.” 7

[14] His witness statement also attached the letter to Mr Kyriopoulos, dated 14 December 2015, advising he had been offered an extension to his employment “for a maximum period affective 1 January 2016 to 30 June 2016,” 8 with all other conditions of employment remaining unchanged.

[15] It finally attached a letter was provided to him on 27 June 2016, which states under the heading “Decision to not extend your contract of employment”:

“Following our meeting on Friday 24 June 2016, the purpose of this letter is to confirm that RACV has made the decision to not extend your contract of employment beyond 30 June 2016.

As we discussed in the meeting, you are currently employed on a Maximum Term contract which was set to expire on 30 June 2016. However in the last week we became aware that on more than three occasions you had not performed the debris run on your section of Citylink. In the meeting I explained the seriousness of the situation and in response she stated that you had been having personal issues for the last three to six months.

I hope did you can appreciate that we could not allow this behaviour to continue as it could have caused a serious accident and/or put RACV at risk of breach of its contract with Transurban.

RACV will pay you for all of your shifts until your 30 June 2016 as well is your unused annual leave.

Theo, I understand that you are going through a difficult time and would strongly encourage you to contact Converge, RACV’s Employee Assistance Provider, on 1800 337 068.” 9

[16] Mr Pereara also indicated in cross-examination that concerns were raised about Mr Kyriopoulos’ work performance, and he was given a letter stating that if those concerns were not addressed his employment would be terminated. However, he said his employment ended because a decision was made to not extend his contract beyond 30 June 2016. He also denied he told Mr Kyriopoulos his contract would be extended to 30 June 2016 as a favour to assist him gain work elsewhere in the future. However, he agreed the primary reason for his employment coming to an end were the performance concerns.

[17] The RACV submits, in summary, “there is really only one question that needs to be asked here and that is, did the applicant’s employment come to an end at the expiration of his contract of employment? To which we would submit, the answer is yes.” 10 It concluded by indicating, “That there was an agreement that was freely entered into without duress or coalition. There was no offer of ongoing employment at the expiry of that agreement. That arrangement of offering the contract was not a sham in any way. And putting all those things in context, there is a common intention through the contract to create binding, legal relations and obligations according to its terms.”11

[18] The RACV does acknowledge there were concerns about Mr Kyriopoulos’ work performance, but this was not the reason why his employment ended. It simply ended on 30 June 2016 because of the passage of time and therefore Mr Kyriopoulos was not dismissed at its initiative.

[19] Mr Kyriopoulos submits, in response, that he was not employed under a contract of employment provided for under s.386(2)(a), and his employment was terminated on 24 June 2016 at the initiative of his employer. He continues to submit that a maximum term or outer limits contract is not a contract coming within the meaning of s.386(2)(a), and his contract of employment with the RACV gave both parties an “unqualified right to terminate the contract on notice, or with payment in lieu of notice.” 12

[20] Mr Kyriopoulos relies on the decision in Andersen v. Umbakumba Community Council (Andersen) 13 in support of the submission that where an unqualified right to terminate an employment contract exists the contract is not one for a specified period. He submits the decision was cited with approval in Downes v The Uniting Church in Australia Property Trust (Q.) t/a Wesley Mission Brisbane (Downes),14 which also determined that an outer limits contract will not become a contract for a specified period of time by virtue of ending due to the effluxion of time. Therefore, Mr Kyriopoulos was not employed under a contract for a specified period of time, and the RACV’s jurisdictional objection should be dismissed.

[21] He continues to submit that, in any case, his employment did not end on 30 June 2016 with the effluxion of time, but rather was ended on 24 June 2016 at the initiative of the RACV. This occurred after he was suspended with pay at the completion of his shift on 23 June 2016, apparently because of his failure to complete a particular debris check on two separate occasions, two weeks earlier. He was then asked to attend a meeting on the following day to discuss this situation. He attended with a support person and was told his employment was terminated because the RACV was not satisfied with his performance. However, as his contract was due to end on 30 June 2016 it would simply indicate he was no longer employed because his contract had reached its end date.

[22] Mr Kyriopoulos continues to submit he was dismissed on performance grounds on 24 June 2016, and that should be the proper characterisation of what occurred. It was accordingly a termination at the initiative of the employer, and the suggestion he was dismissed due to the effluxion of time “is simply an artificial construct of the Respondent.” 15 He again relies on the decision in Downes in support of this submission.

[23] Mr Kyriopoulos’ evidence confirms he was told at the end of his shift on 23 June 2016 that he was being suspended with pay, and he was handed a letter which stated he had failed to do particular debris checks on 10 and 11 June 2016 at the correct times. He was also asked to attend a meeting at the RACV offices in the city on the following morning. He attended that meeting with his brother-in-law as a support person.

[24] Mr Kyriopoulos said he provided an explanation in that meeting in response to the issues raised by the RACV, but after a brief break was told “we’ve had a talk and we’re going to have to let you go.” 16 He said he was also told by Mr Pereara that he would be paid until 30 June 2016 because his contract expired next week, and his termination would be treated as an end of contract “so it doesn’t look bad for you if you go for a new job.”17

[25] Mr Steven Eglezos’ evidence indicates he also attended the meeting with Mr Kyriopoulos on 24 June 2016 as a support person. He said Mr Kyriopoulos was asked about his performance and his failure to carry out the debris checks at particular times. He said Mr Kyriopoulos provided an explanation about his behaviour, but after a short break in the meeting was told by Mr Pereara that he was disappointed but they going to have to let him go, and he said something like “we’ll put it down as an end of contract thing.” 18

[26] He understood at the time that Mr Kyriopoulos was being dismissed, with immediate effect, for performance reasons associated with his failure to carry out debris checks at the required time.

[27] Mr Kyriopoulos submits, in conclusion, he was employed under a maximum term or outer limits contract, and the jurisdictional objection should fail on this basis alone. He also submits that, in any case, his employment was terminated on 24 June 2016, one week prior to the end of his contract of employment on performance grounds, and this decision was taken at the initiative of the RACV. He continues to submit that the way in which the RACV then sought to categorise his termination does not alter the fact that what occurred was the termination of his employment at its initiative. He also refers to the correspondence given to him which refers specifically to the performance concerns, and the fact that if he did not provide a satisfactory response to those concerns his employment would be terminated.

Consideration

[28] Mr Kyriopoulos relies on the decision in Andersen. In that matter the Applicant was employed by the Respondent employer under a written contract, which provided for a maximum period of employment of 2 years. The contract also gave either party an unqualified right to bring the employment to an end, based on 2 weeks’ notice. It also gave the employer the additional right to terminate without notice on payment of 2 weeks’ salary. The Applicant was subsequently terminated within the two-year period. The submissions provided on behalf of Mr Kyriopoulos refer, in particular, to the following extract from the decision:

“In the present case cl 3 and Sch 1 of the employment agreement clearly state both a commencement date for the employment and a cessation date, but in light of the right on either party to the contract arising under cl 21(c) to bring the employment to end on two weeks’ notice, and the right of the employer under cl 21(d) to bring the employment to an end without notice on payment of 2 weeks salary, the cessation date merely records the outer limit of the period beyond which the contract of employment will not run (unless a new agreement is entered into pursuant to cl 29). Within the period stated in Sch 1 the period of the contract of employment is indeterminate. At any point during the two-year period identified by the commencement and cessation dates neither side could know with any certainty when the period of the contract of employment might come to an end.

It is significant that the rights to terminate the contract of employment arising under cl 21(c) and 21(d) are not conditioned on a breach of any term of the contract. The rights are unqualified. Different considerations may apply where a contract of employment for a period of time fixed by clearly stated dates of commencement and cessation contains a term which permits either side to terminate the contract on breach by the other side. In such a case, it is possible that the contract would be characterised as contract of employment for a specified period of time notwithstanding the possibility that on breach of its term by one side or the other it may soon come to an end. In this case, however, the unqualified rights to terminate without reason under cl 21(c) and cl 21(d) make it clear, in my opinion, that the contract cannot be so characterised.”
 19

[29] Therefore, his Honour von Doussa J determined the preliminary issue of whether the Applicant was engaged under a contract of employment for a specified period of time by declaring that he was not so engaged, and so was not excluded by the exception in the then Industrial Relations Regulations from pursuing an unfair dismissal claim.

[30] It follows that this decision is authority for the proposition that where both parties to a contract of employment have rights to terminate that contract, which are not conditional on a breach of any term, then the period of the contract can be described as indeterminate. The cessation or end date merely records the outer limit of the period beyond which the contract will not run. However, the contract is not one for a specified period of time, and can be contrasted with a contract of employment for a specified time period, in which the time of commencement and time of completion are unambiguously identified.

[31] The RACV relies, in turn, on the decision in Lunn, which concerned what was agreed by the parties to be an “outer limits” contract in that it specified an end date, but also provided for a broad or unconditional right of termination during its term. The Full Bench stated in that decision:

“When a contract for a specified period or an “outer limit” contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative the employer.” 20

[32] In that matter the Applicant was told three weeks prior to the end date of the contract that she was no longer required to attend at work, but would be paid all of her entitlements up to the end date. The Commission accordingly turned to consider whether this involved termination at the initiative of the employer. It concluded:

“Even on her own version of the conversation on 24 March 2005, Ms Lunn was simply informed that her contract would not be renewed upon its expiry and that she was not required to perform work between that day and the day on which her contract expired, 15 April 2005. She was not given any “payment in lieu of notice” or advised that any payment characterised in that way would be made. Indeed, it is not disputed that the Department continued to pay Ms Lunn her wages in the ordinary course during the period between 24 March 2005 and 15 April 2005. Similarly, it was not disputed that if Ms Lunn had so wished, she could have continued performing work finalising her files and that the Department would have made an office available for her for that purpose. The notice given by the Department was no more and no less than notice that Ms Lunn would not be offered a new contract when the Final Contract came to an end through the effluxion of time. The conversation of 24 March 2005 did not involve the Department in breaching a fundamental term of the Final Contract such as to amount to a repudiation of the Final Contract. It follows that the conversation on 24 March 2005 did not amount to a termination of the Final Contract at the initiative of the employer.” 21

[33] The Full Bench accordingly concluded that Ms Lunn’s employment was not terminated at the initiative of the employer and, therefore, the Commission had no jurisdiction in relation to her application for relief against termination of employment. It concluded instead that the contract terminated through the effluxion of time. It continued to express the view that the mere fact of the existence of a series of “outer limits” contracts does not necessarily permit a finding that those contracts constitute a sham arrangement, and written contracts should be taken to be binding according to their terms, unless one of the well-established categories of exception under the general law is established.

[34] The decision in Lunn was considered by Commissioner Deegan in Mark Drummond v Canberra Institute of Technology, 22 which also involved a series of outer limits contracts. She concluded:

“[42] On the basis of the Full Bench decision in Department of Justice v Lunn (relying on the High Court decision in Victoria v the Commonwealth) it is clear that under the legislative scheme in existence at the time of that decision, when a contract for a specified period or an ‘outer limit’ contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer.”

[35] Commissioner Deegan continued to consider whether the decision in Lunn remains “good law” under the existing legislative framework. In this context she had regard to the extract from the Explanatory Memorandum which accompanied the Fair Work Bill 2008, and is also relied on by the RACV. She concluded:

“[51] In my view the intention of the legislature is clear. Paragraph 1532 of the Explanatory Memorandum, in dealing with the new provisions relating to contracts for a specified term, notes that “(t)he fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season”. An employment contract which allowed for an earlier termination would encompass a contract for a fixed term. The intention of the legislature appears to be to retain the common law position that a contract which ends with the effluxion of time does not terminate at the initiative of the employer. The only change to the operation of the relevant provisions that is intended is to provide that an employee employed under a contract for a specified period of time, whose employment is terminated other than at the expiration of that contract, may make an application under the unfair dismissal provisions of the legislation.

[52] The applicant was employed under a fixed term contract which expired on 30 September 2009. The applicant’s employment terminated with the expiration of that contract. In these circumstances there is no jurisdiction for an application to be made pursuant to s.386 of the Act as there is no termination of employment at the initiative of the employer.” 23

[36] An appeal against that decision was dismissed by a Full Bench which found “that Commissioner Deegan did not err when she concluded that Dr Drummond was not dismissed from his employment at the initiative of CIT, but that his contract expired by the ordinary passing of time.”  24

[37] The decision of Senior Deputy President Richards in Downes has also been referred to. In that matter the Senior Deputy President considered whether other provisions in the contract, such as annual performance reviews, long service leave entitlements, and an initial probationary period, meant the contract should not be considered to be for a specified period. He concluded:

“[26] I suggest this, albeit tentatively, because the Explanatory Memorandum, states that notwithstanding the existence of a provision allowing for early termination of the contract in any terms (broad or narrow), the contract nonetheless is a contract for a fixed period if the agreement ends by the effluxion of time.” 25

[38] He continued to state at [31]:

“[31] The Explanatory Memorandum, for its purposes, makes it clear that s.383(2)(a) of the Act is not affected by whether or not an employment contract may allow for an earlier termination (and on whatever terms). Such a contract, notwithstanding a provision providing for early termination, does not alter the fact that when a contract comes to an end by the effluxion of time (referrable to a term in the contract) it is characterised as a contract for a specified period (according to the Explanatory Memorandum).” 26

[39] He also had regard to the fact there had been some performance issues raised about the employee, but concluded “whether or not the employer had concerns about the performance of the contract over the life of the contract is also irrelevant to a finding that the employment came to an end by reason of the effluxion of time (as provided for by a term of the contract).” 27

[40] However, the evidence in that matter also made clear that the employee was told her contract of employment, which ended on 30 June 2013, would not be extended or renewed, and her last day at work would be 30 May 2013. She was also paid out for the balance of her contract until its end date of 30 June 2013. The Senior Deputy President concluded:

“[47] The contract of employment therefore did not conclude by the effluxion of time, or at the end of the time specified in the contract. That is, the Applicant was not notified that her contract would cease on the specified date and that she remained subject to the contract until that time. Instead, the Applicant’s employment or engagement concluded at an earlier time, and because of the unilateral intervention of the employer. This intervention must be characterised as a dismissal.

[48] The Explanatory Memorandum cited above makes clear that where an employee engaged on a contract for a specified period is dismissed prior to the end of the time specified in the contract, that employee may seek an unfair dismissal remedy (subject to the jurisdictional requirements being met). This must be the case because the employment or engagement did not cease on the date specified in the contract (but at an earlier time).” 28

[41] He again concluded:

“[49] Therefore, though the Applicant was a party to a contract for a specified period (and otherwise not able to make an application for an unfair dismissal remedy), by dismissing the Applicant prior to the end date of the contract, the availability of the jurisdiction under Part 3-2 of the Act was enlivened (which is consistent with the Explanatory Memorandum).” 29

[42] Mr Kyriopoulos also referred in his submissions to the decision of Vice President Hatcher in Jerome (Ronghua) Jin v Sydney Trains (Sydney Trains). 30 In that matter Sydney Trains also contended that the Applicant had not been dismissed because his employment ended upon his fixed term contract of employment expiring as a result of the effluxion of time. The Vice President noted at the outset that the applicability of Andersen to the proper interpretation of s.386(2)(a) has arguably been called into question as a result of paragraph [1532] of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth). The particular extract has been cited already and states:

“1532 … The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season.”  31

[43] VP Hatcher indicated that this explanation suggested that provisions in a contract of employment, which enable it to be terminated prior to its outer limit end date, did not necessarily mean the exception in s.386(2)(a) no longer applies, and that therefore the distinction found to exist in Andersen might no longer apply. However, he also noted that this point was not pressed by the Respondent and therefore he did not propose to consider the issue any further.

[44] Sydney Trains also relied on the decision in Lunn as authority for the proposition that where an outer limit contract reaches its nominated end date, there is no termination of employment at the initiative of the employer. Vice President Hatcher continued to note that Lunn has been seen to be applicable to s.386(1)(a) in a number of “first instance decisions” 32 and referred, in particular, to the decision of Commissioner Deegan in Mark Drummond v Canberra Institute of Technology.33 However, he continued to state, “[i]n my view, there are good grounds for reconsideration as to whether Lunn should continue to be regarded as giving correct guidance concerning the interpretation and application of s.386(1)(a).”34

[45] However, he concluded:

“[81] However Lunn is a Full Bench authority which has become well entrenched in the Commission’s jurisprudence under the FW Act. I do not think it is appropriate that I determine this matter in disregard of it. Any reconsideration of Lunn should take place at the Full Bench level. Therefore I will apply Lunn to determine the outcome of this case.” 35

[46] He accordingly concluded that the Applicant was not terminated at the initiative of the employer, but rather as a result of the expiry of his final contract of employment. Therefore, he was not dismissed at the initiative of the employer. However, Vice President Hatcher also continued to indicate:

“[80] In my view, the question of whether a person’s employment has been terminated at the initiative of the employer requires an analysis of what, as a matter of practical reality, brought about the end of the employment relationship. In the case of an employment relationship which is constructed of a series of “outer limit” fixed-term engagements not encompassed by s.386(2)(a) (again assuming Andersen remains applicable), where such engagements are utilised by the employer on an essentially unilateral basis as an administrative mechanism, I consider that it may be open to find that the decision of the employer to bring the employment relationship to an end by not offering any further engagements constitutes a termination of employment at the initiative of the employer under s.386(1)(a). That is an approach which is in substance the same as in Mohazab and D’Lima. I consider that in the situation described an approach which confines the analysis to the circumstances of the termination of the final employment contract is far too narrow and is likely to lead to a result that is at odds with practical reality.” 36

Conclusion

[47] I now turn to consider the circumstances in the present matter in the light of these authorities. I am satisfied, in response, that determination of the application depends on whether the “practical reality” establishes that Mr Kyriopoulos’ employment ended as a result of the expiration of his maximum term or outer limits contract of employment, in which case he was not dismissed, or whether it discloses that his employment was terminated at the initiative of the RACV. I have had particular regard to the following matters in coming to a decision.

[48] Mr Kyriopoulos was clearly employed under a maximum term or “outer limits” contract, which had an end date of 30 June 2016. It was not a fixed term contract in the strict sense because it contained a qualified ability, for both parties, to terminate the contract at an earlier point in time.

[49] However, concerns about his work performance were raised in that on two occasions in June 2016 he failed to carry out debris inspections at the nominated times. At the conclusion of his shift on the morning of 23 June 2016 he was asked to attend a meeting on the next day at the RACV’s office in Melbourne. He was also given a letter dated 22 June 2016, which highlighted these performance issues, and stated, “You will have an opportunity to respond to my concerns at our meeting. Please understand that if I am not satisfied with your responses that it will likely lead to termination of your employment.” 37 He was also invited to have a support person present in this meeting.

[50] The meeting then took place on the following day. After giving Mr Kyriopoulos the opportunity to provide an explanation he and Mr Eglezos left the meeting for a couple of minutes until they were called back in. The evidence about what happened next diverges at this point. The evidence of Mr Kyriopoulos is that Mr Pereara told him, “we’ve had a talk and we going to have to let you go.” 38 Mr Kyriopoulos also said Mr Pereara then told him words to the effect of “we’ll pay you out till 30 June and what we going to do is, because your contract expires next week, we’ll say it’s an end of contract so doesn’t look bad for you if you go for a new job.”39 He was also asked to hand back his security pass, which he did.

[51] The evidence of Mr Eglezos, is similar in that he recalls Mr Kyriopoulos being told, “we’re disappointed but we’re going to have to let you go,” and “we’ll put it down as an end of contract thing.” 40

[52] Mr Kyriopoulos said he was then given the letter dated 27 June 2016, which states in part:

“Following our meeting on Friday 24 June 2016, the purpose of this letter is to confirm that RACV has made the decision to not extend your contract of employment beyond 30 June 2016.

As we discussed in the meeting, you are currently employed on a Maximum Term contract which was set to expire on 30 June 2016. However in the last week we became aware that on more than three occasions you had not performed the debris run on your section of Citylink. In the meeting I explained the seriousness of the situation and in response she stated that you had been having personal issues for the last three to six months.

I hope did you can appreciate that we could not allow this behaviour to continue as it could have caused a serious accident and/or put RACV at risk of breach of its contract with Transurban.

RACV will pay you for all of your shifts until your 30 June 2016 as well is your unused annual leave.

Theo, I understand that you are going through a difficult time and would strongly encourage you to contact Converge, RACV’s Employee Assistance Provider, on 1800 337 068.” 41

[53] Mr Pereara’s evidence in his witness statement simply states in regard to the end of Mr Kyriopoulos’ employment, “On 24 June 2016 during a meeting with Mr Kyriopoulos I informed him that his employment would end on the expiry of his maximum term contract of employment. A copy of his termination letter is marked and attached as “WP5”. 42 He also indicated in his examination in chief:

“PN60

So what was your involvement in the events that led to Mr Kyriopoulos no longer being employed by RACV?---My involvement was I was notified that there was some breach to some things in a contract that we needed to investigate, and I did after that, investigated through.

PN61

So, in your words, why is Mr Kyriopoulos no longer employed at RACV?---A business decision.  At the end of the day, Theo was employed until 30 June.  It was RACV's decision not to extend the contract past that date.

PN62

So, can I just confirm, on what date did Mr Kyriopoulos finish his employment at RACV?---I'm pretty sure it was 23 June, but he was also paid out for his three remaining shifts after that.

PN63

So what happened in the period between a meeting, which I believe was the 24th- - -?---Yes.

PN64

- - -to 30 June?  What happened in that period?---Theo was asked not to attend work, but he was paid out for those hours.” 43

[54] In cross-examination he agreed he met with Mr Kyriopoulos because of concerns about his work performance. He also agreed that he was given a letter stating that if the performance concerns were not addressed he would be terminated. The following exchanges then took place about the outcome of the meeting on 24 June 2016:

“PN110

And I presume then, in that time, you considered his responses and whether they were adequate to meet those performance concerns.  And then as you said you would in the letter, you decided to terminate Mr Kyriopoulos' employment?---Yes.  So in the room was myself, Mr Seedsman, Cameron Seedsman who's the team leader, and Paul.  And yes, it was RACV's decision not to extend the contract past that day.  And Theo didn't work the reset of those shifts and was paid out until 30 June.

PN111

And so after Mr Kyriopoulos came back into the room, you told him he was being let go?---We - I think we did say along the lines that the decision was made that we wouldn't extend the contract past 30 June.  He would be paid up until 30 June, but not required at work.

PN112

Did you - can you recall the words you used?---I think that they were the words I used.

PN113

"Let go"?---I don't think it was "Let go", no.

PN114

And did you indicate to Mr Kyriopoulos that you would record his termination as the end of a contract or something similar to that, so it didn't look bad for him?---What we did say was again, what I just said, was that our decision was not to extend his contract past 30 June and we would pay him the three shifts owed to him, leading up to 30 June.

PN115

So you didn't indicate to him that you were doing this as some sort of favour for him, in the event he sought further work?---No.

PN116

But you did use this phrase a number of times, that he would be paid out until 30 June?---I just used the words "owed to him" until 30 June, we'd give him the money for those, we'd pay him out.

PN117

And you told Mr Kyriopoulos he would not be required to work?---Correct.

PN118

And you asked him to hand back his security pass?---Correct.  And it's not an RACV pass, just so you're aware, that's part of what we do with every staff member that leaves the organisation, we've got to hand it back because it's not our passes, it's Transurban's passes.

PN119

So Mr Kyriopoulos left the organisation on that day?---Yes.” 44

[55] Mr Pereara also agreed that the primary reason for his dismissal was to do with the performance concerns.

[56] It is acknowledged that the authorities that have been referred to have made clear that an employer might have concerns about an employee’s work performance, but if the employment of that employee simply ends because the end date of their maximum term employment contract is reached, then they have not been dismissed at the initiative of the employer.

[57] However, the circumstances in this matter can be distinguished. Mr Kyriopoulos was asked to attend a meeting to discuss significant performance concerns. He was given a letter prior to that meeting indicating that if a satisfactory explanation was not able to be provided in response to the concerns identified he would be dismissed. He was not able to provide an explanation in the meeting that was deemed acceptable, and after further consideration was told it had been decided to dismiss him. There is some dispute about what he was then told, but I have no reason to doubt the evidence of Mr Kyriopoulos and his support person, which was that he was going to have to be let go. Mr Pereara also indicated in cross examination that the performance issues were the primary reason why Mr Kyriopoulos was dismissed.

[58] Mr Kyriopoulos did not return to work from that point. However, he was told he would be paid until the end of the period concluding on 30 June. He was also asked to return his security pass and told he would no longer be required at work.

[59] In conclusion, even though the term of Mr Kyriopoulos’ employment contract was close to its end date, the facts and evidence indicate his employment was terminated prior to this date because of issues to do with his work performance. Therefore, he was terminated at the initiative of his employer, and he can be said to have been “dismissed” under s.386(1)(a). The RACV’s jurisdictional objection to the application is therefore dismissed.

[60] The application will now be listed again to deal with Mr Kyriopoulos’ substantive unfair dismissal application. It is also noted, in conclusion, that this decision has obviously not dealt with at length or expressed any concluded view about the merits or otherwise of that application.

COMMISSIONER

Appearances:

A Alexander appeared on behalf of the Applicant.

P Harris and R Marasco appeared on behalf of the Respondent.

Hearing details:

2016.

Melbourne

September 2.

 1   Explanatory Memorandum, Fair Work Bill 2008 (Cth) paras 1531-2, page 224.

 2 Respondent’s Outline of Submissions, dated 12 August 2016, at [14].

 3   Department of Justice v Lunn (AIRC, PR974185, 27 November 2006).

 4   [2010] FWAFB 5455.

 5 Respondent’s Outline of Submissions, dated 12 August 2016, at [32].

 6 Exhibit RACV1 at [8].

 7   Attachment to Exhibit RACV1, Letter from Respondent to Applicant re conditions of employment, dated 21 February 2013.

 8   Attachment to Exhibit RACV1, Letter from Respondent to Applicant re extension of employment, dated 14 December 2016.

 9   Attachment to Exhibit RACV1, Letter from Respondent to Applicant re decision to not extend contract of employment, dated 27 June 2016.

 10   Transcript at PN23.

 11   Transcript at PN22.

 12 Applicant’s Outline of Submissions, dated 26 August 2016, at [10].

 13 (1994) 56 IR 102.

 14   [2013] FWC 8890.

 15 Applicant’s Outline of Submissions, dated 26 August 2016, at [22].

 16 Exhibit L1, at [31].

 17 Ibid at [32].

 18 Exhibit L2, at [7].

 19 (1994) 56 IR 102, 106-7.

 20   Department of Justice v Lunn (AIRC, PR974185, 27 November 2006) at [10].

 21   Department of Justice v Lunn (AIRC, PR974185, 27 November 2006) at [17].

 22   [2010] FWA 3534.

 23   Ibid at [51]-[52].

 24   [2010] FWAFB 5455 AT [1] [sic].

 25   Downes v The Uniting Church in Australia Property Trust (Q.) t/a Wesley Mission Brisbane [2013] FWC 8990.

 26 Ibid at [31].

 27 Ibid at [38].

 28   Ibid at [47]-[48].

 29 Ibid at [49].

 30   [2015] FWC 4248.

 31   Explanatory Memorandum, Fair Work Bill 2008 (Cth) para 1532.

 32   [2015] FWC 4248 at [60].

 33   [2010] FWA 3534.

 34   [2015] FWC 4248 at [67].

 35 Ibid at [81].

 36 Ibid at [80].

 37   Exhibit L1, annexure TK-3.

 38 Exhibit L1 at [31].

 39 Ibid at [32].

 40 Exhibit L2 at [7].

 41   Exhibit L1, annexure TK-5.

 42 Exhibit RACV1 at [13].

 43   Transcript PN60 – PN64.

 44   Transcript PN110 – PN119.

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