Unfair dismissal - Employment terminated as a result of effluxion of time under contract of employment for a fixed period - No dismissal where employer fails to employ or re-employ worker

Industrial Relations Act 1979, s 7(1), s 23A, s 29(1)(b)

Alexander v Kirkham (2001) 81 WAIG 3017

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1 ANDERSON J (PRESIDING JUDGE): I will ask Heenan J to deliver reasons in this matter.

2 EM HEENAN J: The single question of law which determines the outcome of this appeal was decided against the appellant by Kenner C at first instance and that decision was upheld on the appeal to the Full Bench. The question is whether the termination of the appellant's employment by the effluxion of the time fixed for the duration of that employment constitutes a dismissal by the employer. If not, no question of relief for alleged harsh, oppressive or unfair dismissal could arise under ss 23A, 29(1)(b) of the Industrial Relations Act or at all.

3 Kenner C and the Full Bench both held that Mr Gallotti's employment came to an end in accordance with its express terms on the final day of the agreed term - that is, 31 July 2001 - resulting in a termination by effluxion of the limited period of employment agreed between the contracting parties.

4 In his reasons for decision in the Full Bench the learned President said (AB 33 - 34:

"A dismissal is well understood to be the termination of the contract at the initiation of the employer and this may be done by notice or summarily (see Macken, O'Grady, Sappideen & Warburton 5th Edition, 'The Law of Employment'). Where a contract provides for employment for a fixed term, the contract will automatically end when the time expires, unless, of course, it is lawfully terminated in some other way in the meantime (see 'The Law of Employment' op cit at page 235).

If, however, a contract of employment is terminated by agreement between the parties (ie consensually) or by effluxion of time then there is obviously not a dismissal because there is no termination at the initiative of the employer."

With respect, I agree with those observations of the learned President.

5 There is ample authority for the proposition that the cessation of the relationship of employer and employee by the effluxion of an agreed term of employment is not a "dismissal".

6 One such case was cited by the respondent to this appeal and it is the decision of the Supreme Court of South Australia in Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South

Australia and Grivell [1999] SASC 300; (1999) 74 SASR 240, particularly the passage in the decision of Bleby J at par 28.

7 There will not be a dismissal where the term of a contract of employment expires: Richards v Port Lincoln Aboriginal Organisation (1991) 58 SAIR 61, or where such a contract is not renewed: Croci v South Australia, unreported; ICSA (Pryke C); No 13/1995; 19 February 1985.

8 Unfair dismissal should be distinguished from a refusal to employ or re-employ for which the Commission has express jurisdiction by virtue of the definition of "industrial matter" in s 7(1).

9 It was submitted by the appellant that the decision in Ex parte Public Service Appeal Board, unreported; FCt SCt of WA; Library No 4183; 25 June 1981 recognised that a termination of employment under a fixed term contract could amount to a dismissal. However, I must reject that submission because it is obvious that all that was decided in Ex parte Public Service Appeal Board (supra) was that the annulment of an appointment to a position in the Public Service upon the exercise of a power of review at the end of a probationary period could be regarded as a dismissal. That case did not deal with the situation here, namely, termination of employment at the expiration of a fixed term.

10 As in my view there was no dismissal, I conclude that the decisions of the Commissioner at first instance and the Full Bench were correct and that this appeal should be dismissed.

11 ANDERSON J: I agree with Heenan J and there is nothing I wish to add.