Ngoc-Toan Nguyen -V- Oliveri Transport Services [2005] NSWIRComm 1121

Ngoc-Toan Nguyen -V- Oliveri Transport Services [2005] NSWIRComm 1121 - NSWIRComm 2005 case summary — Zoe

[11]

BACKGROUND 6 The applicant is a man who was some forty three years of age at the time of his alleged unfair dismissal on 27 August 2004. The applicant's Vietnamese ethnicity meant that English was not his first language. However the applicant displayed a reasonable capacity for comprehension and expression of most discussions conducted in English. It appeared that he had some greater difficulty with comprehension of written English, such that his suggestion of understanding only about twenty percent of the contract of employment document would appear to be reasonably accurate. 7 The applicant commenced work for the employer on or about 27 August 2000. The applicant worked as a Bus Driver. He was engaged on a regular, continuous basis, although he was described and paid as a "casual" until about August 2002. In August 2002, the employer's General Manager approached Mr Toan and asked him to sign a contract of employment document dated 21 August 2002. Mr Toan signed and dated the document 27-8-02. The document was varied in handwriting to reflect that it would commence operation on Wednesday 28 August 2002. 8 The document is headed, "OFFER OF EMPLOYMENT: - Fixed term contract-Permanent Bus Driver:" Despite having already been employed on a continuous basis for the preceding two years, the document sought to impose a probationary period upon Mr Toan of three months. Following that probation, a fixed period of employment of a further eight months is specified in the document. The document stated that at the expiration of the total period of eleven months, (three months probation followed by a further eight months), the contract of employment would come to an end. It would appear therefore that this contract was to expire on 28 July 2003, eleven months after its commencement. 9 The applicant signed and dated the acceptance of the offer of employment which included the following typed statement: "I have read, understood and accept the terms and conditions of employment contained in the offer and hereby accept the position as stated." There was little or no issue arising in respect of the applicant's employment for the eleven months of purported operation of the contract signed in August of 2002, (the 2002 contract).

[17]

THE CASE FOR THE APPLICANT 19 The written submissions of the applicant commenced by asserting that there was no fixed term contract that had been established between Mr Toan and the employer for the period of employment from 28 August 2003, to 29 August 2004. Therefore according to the applicant's submissions, the termination of employment was without valid reason. The absence of valid reason was said to make the dismissal "inherently unfair". 20 The applicant's submissions alleged that the employment of the applicant on the fixed term contract basis was an attempt to avoid potential injured worker obligations that might arise in respect to Mr Toan. The applicant submitted that the attempted reliance on the 2003 contract was "unreal, unconscionable and oppressive". 21 The applicant made detailed submissions about the alleged invalidity of the fixed term contracts, in particular the 2003 contract. The applicant submitted that the nature of the employment of Mr Toan was inappropriate for any introduction of fixed term contracts. In this respect the applicant submitted that the majority of the employer's Bus Drivers were not engaged on fixed term contracts, and that the targeted introduction of such fixed term characteristics was not appropriate to the industry. The applicant further submitted that there was no proper basis for the introduction of fixed term contract employment for Mr Toan, and that the purported reliance on the expiry of the employment meant that there was no valid reason for the dismissal. 22 The applicant made further detailed submissions about the chronology of events regarding the attempted introduction of fixed term employment. In particular, the applicant submitted that the 2002 contract had not been observed, and that the employer sought to unilaterally impose a second contract after the 2002 contract had expired. According to the applicant's submissions this mean that the contracts were not observed but represented the employer's attempted introduction of conditions which provided for the employer to permit the employment to come to an end unrealistically. 23 The submissions of the applicant urged the Commission to find that the dismissal of Mr Toan had been without substantive basis. The applicant sought Orders that he be reinstated to his former position together with supplementary Orders involving remuneration for lost earnings and also Orders for continuity of employment.

[21]

34 If there was genuine commercial basis underpinning the need for some fixed term characteristic to the employment, then there should be no unexplained targeted application of fixed term employment. There should be clear evidence as to the reason for the requirement to have an anticipated expiry date for the contract of employment. Without clear reason, the introduction of fixed term employment becomes a device to dismiss without proper basis. 35 In this instance the first fixed term contract was not observed. The stated expiry date passed and the employment continued contrary to the stated provisions of clauses 1 and 2 of the 2002 contract. If Mr Toan had appreciated that the contract would expire on 28 July 2003, he had every reason to assume that with the passing of that expiry date he had moved onto more general "permanent" employment as a Bus Driver. 36 It was understandable that when the employer sought to subsequently introduce the 2003 fixed term contract, the applicant protested. Despite these protests, the employer sought to unilaterally apply and then rely upon, the purported fixed term contract and its alleged expiry on 29 August 2004. 37 Regrettably, an examination of the contract of employment documents reveals that they represent an attempt to establish a device to permit the dismissal of particular employees without reason. 38 The malevolent intent of the fixed term contract documents was exampled by the reintroduction of three month probationary periods for the first three months of each fixed term contract. The absurdity of having Mr Toan return to a three months probationary period three years after he first started as a Bus Driver, exposed the contract documents as deceptive and mala fide. 39 The employment contract documents, both the 2002 and 2003 versions, are fundamentally flawed and have been unfairly imposed upon Mr Toan without proper reason. Therefore, the contracts are not capable of providing any proper, substantive reason for the termination of the employment.

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Cited By (2)