12 It was noted on appeal, at FBD[4], that there was an error with respect to the asterisked end date of the 2017 contract referred to above. The Full Bench assumed that the end date was the end of November 2018, not "31 November 2019".
13 The Deputy President made a number of findings with respect to the large body of evidence relied upon by Mr Alouani-Roby as to the conduct of the NRL over a long period prior to the cessation of his employment, at D[22]-[44], which included relevantly: in 2019, Mr Sutton (General Manager of Elite Officiating) raised concerns with Mr Alouani-Roby regarding his fitness levels: at D[22(e)]. On 9 October 2019, at a meeting between Mr Sutton and Mr Alouani-Roby, Mr Sutton said "we have had meetings about your improvement plan. If we are in the same position this time next year, then this could be your last contract. Here is a one-year contract": at D[25], [106]. Mr Alouani-Roby's last Contract was dated 25 November 2019: at D[26]. Mr Alouani-Roby considered that during February 2020, Mr Sutton unfairly singled him out for error, presented detailed statistics about Mr Alouani-Roby's "lack of urgency" and commented that his alleged lack of pace was a "serious concern": at D[27]. Mr Alouani-Roby thereafter complained to and had a number of interactions with the NRL human resources manager, Ms Huntley: at D[28]-[29]. On around 22 March 2020, at the end of the second round of the 2020 NRL season, the pandemic caused a two-month suspension of NRL games and the reduction from two referees to one referee per game: at D[31]. During the recommenced 2020 NRL season, Mr Alouani-Roby received praise for his 2020 performance indicia from managers including Mr Sutton: at D[32].
14 Around 9 June 2020, Mr Alouani-Roby made plans to meet his bank and real estate agents to confirm the purchase of a new residence in Australia and called Mr Sutton to inform him that he would be late that day because he was signing a home loan contract: at D[33]. Around 35 minutes after the call, via video link, Mr Sutton told Mr Alouani-Roby that he would not be receiving a renewal of his contract for the 2021 NRL season: at D[35]. Mr Alouani-Roby was one of two referees who did not receive a 2021 contract: at D[36].
15 It is worthwhile extracting the parties' interactions prior to the expiry of the Contract on 25 November 2020, as contained in the Deputy President's reasons:
37 On 28 July 2020, the Applicant emailed Ms Huntley a medical certificate. He advised he would commence a period of stress leave.
38 On 6 August 2020, the Applicant had an online video call with Ms Huntley during which the following words were said:
Ms Huntley: "I will send you documentation in relation to your resignation and you can decide how you would like to inform the squad about your resignation."
The Applicant: "I want to underline that I am not resigning but being forced to leave under duress. I have had no choice in my dismissal."
Ms Huntley: "Okay, that is fine."
39 On 11 August 2020, the Applicant sent Ms Huntley an email attaching a medical certificate. The email stated:
"Thanks again for (video) meeting last week. The next steps as I understand them are as follows:
• That I am unlikely to be able to return this season and you -will relay this to my manager.
• I will choose how and when I inform my colleagues and, in the meantime, my leave is to be understood as ongoing should anyone ask.
• I am no longer required to follow the NRL Covid protocols or submit the daily whereabouts forms.
• The NRL will confirm paid leave in writing to me now that you have the medical certificate.
I am grateful for your understanding so far and really appreciate that you've enabled me to prioritise my health at the moment. Now that there is some clarity around leave, I'm hopeful that we can move forward towards a fuller resolution of the matter."
40 After further correspondence, on 23 August 2020, the Applicant sent Ms Huntley an email. The email stated:
"I was really just following up on what you said about putting something in writing. However, having had time away to reflect and take advice, I do feel that the situation requires a resolution that goes beyond simply waiting for my contract to expire. I have explained why an internal investigation or reinstatement would not currently solve the issues at hand and I think it is reasonable to expect that we might enter into some sort of discussion as to a satisfactory settlement of my grievances given their gravity - bullying and personal victimisation, damage to my mental and physical health, constructive dismissal including breaches of the EBA-mandated performance appraisal process, unsafe workplace, toxic culture of fear and so on. I feel that I've been frank, open and professional throughout this process stretching back to last year and I would hope that I've laid everything out in a way that allows the organisation to find an appropriate resolution."
41 On 2 September 2020, Ms Huntley sent the Applicant a calculation of a summary of his severance package based on an earlier cessation of employment.
42 On 16 October 2020, the First Respondent wrote a letter to the Applicant in the following terms:
Tim Roby
troby@nrl.com.au
16 October 2020
Dear Tim,
I refer to our call yesterday on 16 October 2020 with the Head of Elite Football - Graham Annesley, PRMLO Representative - Martin Ryan, and the General Manager of People and Culture - Sarcha Huntley
The purpose of the call was to discuss issues you have previously raised regarding the end of your employment contract on 30 November 2020.
During the meeting you indicated you were seeking a monetary settlement over and above the severance package as prescribed by the Enterprise Agreement between the NRL and PRLMO and as set out in an email sent to you on 2 September 2020 (summary attached).
The Head of Elite Football, Graham Annesley, confirmed the severance package and offered additional
• supplementary Career Transitioning assistance, and
• Counselling.
In the absence of any formal complaint the General Manager of People and Culture is unable to substantiate claims previously raised by you. We noted you previously declined to raise grievances as a formal complaint This was confirmed in an email you sent to the General Manager of People and Culture on the 23 August 2020, where you stated
"you have explained why an internal investigation or reinstatement would not currently solve the issues at hand and I think it is reasonable to expect that we might enter into some sort of discussion as to a satisfactory settlement of my grievances given their gravity"
In considering the points raised in the call yesterday and previous correspondence, the NRL proposes the following severance terms:
• Termination package which includes a Career Transition Payment (see attached),
• Additional Career Transition assistance (up to 6 months of outplacement); and
• Counselling for up to 6 months with our Employee Assistance Program-Benestar (or reimbursement of reasonable psychological fees incurred for a period up to 6 months on presentation of invoices).
On behalf of NRL, I thank you for all your hard work and hope that we will be able to make this transition as smooth as possible for you
If you wish to discuss any details of the matters raised in this letter, please contact either me or Graham Annesley.
Yours Sincerely
Sarcha Huntley
General Manager of People & Culture
43 On 18 November 2020, the Second Respondent stood down from his role as General Manager of Elite Officiating.
44 On 30 November 2020, the Applicant ceased employment with the First Respondent.
16 The Deputy President then referred to material aspects of the governing industrial agreement, the National Rugby League (Match Officials) Agreement 2019 (the Agreement), including cl 15.2 of the Agreement, which stipulated that "[a]ny Full Time Referee Employment Contract must be for a minimum period of 12 calendar months. There is no restriction on the maximum duration of a Full Time Referee Employment Contract": at D[45]. The Deputy President also placed the dispute in context by reference to the terms of the Contract, including its maximum term, at D[47], which is extracted as follows:
Item 3: Term
Your employment will be for a maximum term commencing on 1 December 2019 and concluding on 30 November 2020 unless terminated earlier in accordance with this Agreement. You acknowledge and agree that the NRL does not warrant or represent that your employment will continued beyond the Term and, without limiting the capacity to terminate the employment earlier than the completion of the Term, it is intended that the employment relationship will end on the completion of the Term and any decision to offer you further employment id [sic] separate and distinct from this Agreement.
17 Central to the NRL's jurisdictional challenge was that Mr Alouani-Roby's employment was terminated upon the expiry of the maximum term of the Contract. Accordingly, it is unsurprising that the Deputy President commenced his consideration of the jurisdictional question by reference to the Contract: at D[94]-[99].
18 The Deputy President then considered a portion of the relevant indicia arising from Khayam v Navitas English Pty Ltd [2017] FWCFB 5162; 273 IR 44 (as relied upon by Mr Alouani-Roby) as to whether there was a "genuine agreement" between the parties that the employment relationship would not continue beyond 30 November 2020: at D[100]-[103]. The Deputy President addressed Mr Alouani-Roby's contention that the maximum term contracts comprised unilateral offerings, devoid of negotiation, such that they were not the result of genuine mutual agreement. In this context, reference was made to the reasoning in WorkPac, where the plurality observed that the proper construction of an employment contract does not involve straining legal language and concepts "in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain": at [63]. However, in any event, that holding was not applied: the Deputy President found that he did "not consider that the alleged unfairness or disparity of bargaining power existed between the parties" (at D[102]) by reason of Mr Alouani-Roby understanding:
…that one or two year contracts would be given by the First Respondent, the Applicant signed contracts acknowledging the terms of the offers and his acceptance, and accepted that NRL match officials did not have indefinite careers and that those careers must come to an end eventually because contracts are not renewed. Additionally, the Applicant was involved in the negotiations for the Agreement and voted in favour of its approval after reading the Agreement and understanding its terms and effect. The Agreement prescribed the use of maximum term contracts.
(Footnotes omitted.)
19 Under the heading "Termination at the First Respondent's Initiative", the Deputy President dealt with Mr Alouani-Roby's argument that the termination was at the NRL's initiative by reason of it engaging in (at D[104]):
…a process aimed at unilaterally ending its employment relationship with the Applicant before the last contract and regardless of its terms, and the actions on the part of the [NRL] and Second Respondent were the principal contributing factor which resulted in the termination of the employment.
20 The Deputy President described Mr Alouani-Roby's submission as being, in large part, "illogical" by reason of the conduct relied upon as constituting the principal contributing factor, most of which were contained in D[22]-[25], occurred in the six-month period prior to Mr Alouani-Roby receiving and signing the Contract finding, at D[105]:
…I do not accept that such conduct occurring prior to the execution of the Contract could be seen in any way as constituting an act on the part of the First or Second Respondents that bought [sic] about the end of the employment relationship. To the contrary, the execution of the Contract was an act that supported the continuation of the employment relationship.
21 With respect to the purported acts relied upon by Mr Alouani-Roby that occurred after the execution of the Contract, the Deputy President found, at D[106]-[108]:
106 …I consider the impact of those acts must be considered within the prism of the meeting that occurred on 9 October 2019, between the Applicant, the Second Respondent and Ms Rynne. I have accepted that the Second Respondent said, "we have had meetings about your improvement plan. If we are in the same position this time next year, then this could be your last contract. Here is a one year contract." I further note the Second Respondent claimed, but I did not accept, that in this meeting he said to the Applicant "this is likely to be your last contract." However, whether it was put to the Applicant that it "could be" or would "likely be" the Applicant's last contract, such notification was not an act directed at the termination of the Applicant's employment as submitted by the Applicant. Rather, the First Respondent was seeking to keep the Applicant appraised of the likelihood or not of the continuation of the employment relationship.
107 It was, in fact, a positive result for the Applicant that he received the Contract because an extensive evaluation and consultation process amongst relevant NRL officials in late 2019 had determined that the Applicant should not be offered further employment as there were up-and-coming match officials who deserved a place in the elite squad ahead of the Applicant. However, the First Respondent decided to offer the Applicant a final maximum term contract of 12 months for the 2020 NRL season so that he was not taken by surprise by the end of his tenure as part of the Elite Squad. I further note that the decision to offer the Contract to the Applicant had a material financial benefit to the Applicant as his period of service, that commenced on 25 March 2015, exceeded five years of service during the Contract and so the Applicant gained an entitlement to the Career Transition Payment pursuant to the Agreement.
108 I do not consider that any of the acts referred to by the Applicant that occurred during the Contract could be seen as constituting and [sic] act on the part of the First or Second Respondents that bought [sic] about the end of the employment relationship. In the Applicant's Reply Submission, the "most significant active step" in that period was identified as being that on 9 June 2020, the Second Respondent told the Applicant that he would not be receiving a renewal of his employment contract for the 2021 NRL Season. The genesis of that communication was, however, that the Applicant had 35 minutes prior advised the Second Respondent that he was meeting his bank and real estate agents to confirm the purchase of a new residence in Australia. The Second Respondent acted promptly to provide the Applicant with a clear statement of his future in order to assist the Applicant in his financial dealings. There was no obligation upon the Second Respondent to do so, and it is clear that the Applicant had received a negative prognosis regarding the employment relationship on 9 October 2019, but the Second Respondent clearly sought that the Applicant have full knowledge of the cessation of the employment relationship prior to his taking on financial encumbrances.
22 Again, the Deputy President did not assume a myopic stance by only referring to the terms of the Contract when resolving the issue, and in fact considered each of the vitiating factors identified in Khayam deployed by Mr Alouani-Roby, namely whether the Contract was contrary to public policy because it frustrated the policy or operation of the FW Act or because it prevents access to the jurisdiction, and whether during the term of the employment relationship the NRL engaged in conduct or made representations which provided a proper legal foundation to prevent the NRL from relying upon the terms of the Contract as a means by which the employment relationship terminated: at D[109]-[119].
23 As to the public policy argument, the Deputy President distinguished the cases cited by Khayam, namely D'Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 and Fisher v Edith Cowan University (No 2) (1997) 72 IR 464, from the circumstances of this case and found:
114 …While s.386(3) of the Act specifically excludes from the exception under s.386(2)(a) contracts whose substantial purpose is to avoid the employer's obligations regarding unfair dismissals, and contracts frustrating the policy and objects of other parts of the Act would similarly be void as against public policy, I do not consider the Contract or its predecessors had such purpose, substantial or otherwise. As I have found above, the use of maximum term contracts for the engagement of match officials has a legitimate, considered and understandable purpose.
115 Contrary to the Applicant's submission, there is nothing in the Contract, or its predecessors, that has the purpose of frustrating the operation of the Act or preventing access to the otherwise available jurisdiction. The exclusion of the jurisdiction arising in relation to general protections contained in Pt 3-1 of the Act involving dismissal arises from the meaning in the Act prescribed for "dismissal" generally, and the exclusion contained at s.386(2)(a), and not from the terms of the Contract.
116 While s.386(3) of the Act specifically excludes from the exception under s.386(2)(a), contracts whose substantial purpose is to avoid the employers obligations regarding unfair dismissals, and contracts frustrating the policy and objects of other parts of the Act would similarly be void as against public policy, I do not consider the Contract or its predecessors had such purpose, substantial or otherwise. Indeed, the Contract does not preclude action in relation to, or accountability for, unlawful conduct under Pt 3-1 of the Act. The Applicant acknowledges that he is nonetheless entitled to make claims that the Respondents took adverse action against him by injuring him in his employment, altering his position to his prejudice in his employment or that there has been discrimination between him and other employees. In such proceedings, the objects of the Act, will be satisfied, and the relevant matters that the Commission must take into account, will be considered.
(Footnotes omitted.)
24 With respect to the purported conduct or representation vitiating factor, the Deputy President referred to the holding in WorkPac that express terms of contracts should not be disregarded in favour of the subjective expectations or understandings of one or both parties: at D[117]. The Deputy President identified what he understood, at D[118], to be the impugned conduct, namely that the NRL had used "fixed term contracts as a cover to avoid accountability for unlawful treatment of their employees" and found at D[119]:
In light of the above submissions, it would appear the Applicant refers to the conduct which I have found occurred above under the heading "Contested Facts," and the Applicant's assertion that the Respondents never undertook the documented monthly performance review as set out in the Agreement at clause 22a, which I have not accepted as soundly based. Even accepting the Applicant's submissions at their highest, the conduct and failures relied upon by the Applicant do not go anywhere near providing a proper foundation for the First Respondent being prevented from relying on the express terms of the Contract.
25 Ultimately, the Deputy President found that Mr Alouani-Roby was engaged under a series of maximum term contracts based on the genuine operational requirements of the NRL, and that the terms of the Contract reflected a genuine agreement of the parties that the employment relationship would end upon the Contract's expiry. The Deputy President found that there were no vitiating factors (as identified in Khayam). Given the same, the Deputy President concluded that Mr Alouani-Roby's employment was not terminated on the initiative of the NRL, and he was therefore not dismissed within the meaning of s 386(1)(a).