s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 19 February 2024, Mr Nipuna Sulochana Jayasekara Gamage (the Applicant) filed an application with the Fair Work Commission (the Commission) to deal with contraventions involving dismissal pursuant to section 365 of the Fair Work Act 2009 (the FW Act). The Applicant claims that he was dismissed by Darwin International Hotels Pty Ltd (the Respondent) on 4 February 2024.

• [2] In its Form F8A - Response to a general protections application involving dismissal, the Respondent raised a jurisdictional objection on the ground that the Applicant was not dismissed. The Respondent claims that the employment relationship was brought to an end as a result of the Applicant's fixed term contract coming to an end.

• [3] The matter was listed for Jurisdictional Hearing by Microsoft Teams on 12 April 2024. Leave was granted in accordance with section 596(2) of the FW Act for the parties to be represented at the Hearing. The Applicant was represented by Ms Bridget McDermott of Darwin Community Legal Service, and the Respondent was represented by Mr Tony Whitelum of Ward Keller Lawyers.

• [4] The Applicant gave evidence on his own behalf at the Hearing. Mr Thando Mahlangu, former Executive Chef for the Respondent, also filed a witness statement for the Applicant, but was not subject to any cross-examination by the Respondent.

• [5] The Respondent did not rely on any witness evidence.

• [6] This Decision determines the jurisdictional objection only.

Was there a 'Dismissal' for the purposes of the FW Act?

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association 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."

• [7] In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court outlined the task of the Commission in cases such as this one, as follows:

"To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be "allowed" for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all."[2]

• [8] Section 386(1) of the Act defines the meaning of "dismissed" as follows:

(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.

(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

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

• [9] The Applicant submitted that he was dismissed within the meaning of s.386(1) of the FW Act.

• [10] The Applicant submitted that his final operative contract of employment was signed on 16 February 2023, and it says:

"This contract of employment as Full-time Chef de Partie Hospitality Service Level - Chef de Partie proficient, 7 Day roster, based in Darwin, will come into effect on 3rd February 2023 and continue until 4th February 2024. Your employment will continue until terminated in accordance with the terms of the Crowne Plaza Enterprise Agreement 2011-2012."

• [11] The Applicant submitted that his employment with the Respondent was not brought to an end merely by the effluxion of time pursuant to the contracted agreement but was terminated at the initiative of the employer.[3]

• [12] The Applicant submitted that the words "Your employment will continue until terminated in accordance with the terms of the Crowne Plaza Enterprise Agreement 2011-2012" are capable of two constructions. The first is that the contract itself will end on the date specified, but that the employment relationship will continue until terminated pursuant to the Agreement. That is, that the employment would continue regardless of the expiration of the contract. The Applicant submitted that the second construction is that the second sentence quoted is to be read into the preceding sentence, with the effect that the contract is an outer limit contract that will continue until either of the two events occur, being, firstly, the effluxion of time to the nominated date, or, secondly, termination in accordance with the Agreement.

• [13] The Applicant submitted that on either of the constructions, the result is that the exception in s.386(2)(a) does not apply because the employment relationship between employer and employee was terminated at the initiative of the employer and not merely by the effluxion of time. The Applicant submitted that the actions of the employer were the principal contributing factors to the end of the employment relationship. Further, the Applicant submitted that the Respondent referred to the end of the Applicant's employment as a "termination" in correspondence sent to him by email on 5 February 2024, which stated:

Could you please return the ID access card and uniforms at your earliest convenience so we are able to process your termination and final pays this week?

• [14] The Applicant submitted that, in this case, it is important to look beyond the terms of the final written employment contract and consider the entirety of the employment relationship.[4] The Applicant submitted this is because he was employed on a sequence of time-limited contracts, which were modified over time to reflect his higher levels of pay and responsibility.

• [15] The Applicant submitted that he did not leave the employment relationship voluntarily, therefore, it is a "termination at the initiative of the employer",[5] unless the employment relationship ended merely due to the prior agreement and the effluxion of time. However, the Applicant submitted that this is incorrect, having regard to all the circumstances of the employment relationship including the written contract itself. The Applicant submitted that the ambiguity in the contract either:

• (ii) implies an expectation of continuing employment past the contract end date.[6]

• [16] The Applicant submitted that the reference to "until terminated in accordance with [...] the [...] Enterprise Agreement..." shows that, when read together with the Agreement, the Employer had the unqualified right to terminate the employment contract. The Applicant submitted that, notice being the only requirement for termination at any point, this employment contract is, like that in Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 (Navitas),[7] an outer limit contract, and therefore, is not a contract for a specified period of time and does not attract the operation of the exception in s.386(2)(a).

• [17] The Applicant submitted that the employment contract "did not in truth reflect a genuine agreement between the parties that the employment relationship would end on the date specified in the final written contract".[8] Therefore, the Applicant submitted that it is important to consider the terms of the contract in the context of the other operating factors when determining whether the action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

• [18] The Applicant submitted that the following are relevant considerations in determining the jurisdictional objection:

"a) The Applicant had initially been employed on a contract that said "probationary" and then he progressed to a new contract that was "proficient". It is submitted that this shows that the employment relationship was accepted to be something more and bigger than the written employment contracts, and that both parties had that objective intention.

b) The Applicant progressed through the role classifications in his employment, from probationary to proficient. The EBA provides at 1.4.2 (iii), "Classification to a higher level shall be subject to a Colleague being appointed on a permanent basis to a position classified in a higher level." This supports that Applicant's case because it supports his understanding that the employment relationship was not time limited despite the component contact parts themselves being confined by an outer limit (Fisher).

c) The Applicant was performing higher duties outside his described role, and he asked for a pay rise. He was told by Markus, and agent of the Respondent, in December 2023 that they would continue discussions for a new contract and a pay rise when Markus returned from his leave over the new year period. This reflects that the Applicant had a reasonable expectation of ongoing employment, a pay rise and a promotion.

d) The Applicant had raised concerns about industrial and workplace issues in late 2023. It is submitted that the employer's response was to not renew the contract, making their actions the principal contributing factor to the ending of the employment relationship.

e) The Applicant was eventually told by Markus, at the end of his last contract, that "things are not working out the way we had hoped" and that the employment contract was not going to be renewed for that reason.

f) In the employer's F8A response, at 2.4, they refer to the Applicant being paid for public holidays in accordance with the EBA's clause 5.7.3. That clause provides "Permanent Colleagues are entitled to accrue ... " and supports the Applicant's position that he expected that his employment relationship would be ongoing regardless of the date specified in the current written contract.

g) The Applicant had previously worked between the time that his first contract expired on 2 February 2023 and the 16.2.23 when he signed the second contract, which is a full fortnight, when the employment relationship was continuing but the written contract wasn't executed (D'Lima; Fisher).

h) The EBA treats Applicant as a permanent employee (Construction, Forestry, Maritime, Mining and Energy Union v Svitzer Australia Pty Limited T/A Svitzer Australia [2023] FWCFB 259 )."

• [19] The Respondent submitted that the jurisdictional issue turns on whether there has been termination at the initiative of the employer or, as the Respondent contends, the employment relationship has simply come to an end by virtue of the expiry of the term in the employment contract. The Respondent submitted that it is therefore necessary to determine what the employer in fact did to 'initiate' the termination of the employment relationship. That is, what was the principal motivating factor for the end of the relationship - was it the expiry of the term of the employment contract or was it an action or series of actions on the part of (by) the employer that brought about the end of the employment relationship?

• [20] The Respondent submitted that there is no doubt that the contractual relationship forms a substantial, if not exclusive, part of the employment relationship. Nevertheless, it acknowledged that the whole of the employment relationship should be examined.

• [21] The Respondent submitted that the first issue is to determine whether the terms of the employment agreement reflect a genuine agreement that the employment will come to an end at the expiry of the term.

• [22] The Respondent submitted that this in turn necessitates an examination of all the circumstances that might give rise to 'vitiating factors'. The Respondent noted that the Applicant has relied on two alleged vitiating circumstances, being 'alleged ambiguity' and 'minor implicit alleged representations'.

• [23] The Respondent submitted that the term provision does not contain an ambiguity, but rather an "ambulatory expression of a maximum-term contract".

• [24] As to the 'representations', the Respondent submitted that the matters referred to in paragraphs (a) to (h) of the Applicant's submissions (summarised at paragraph [18] of this Decision) are not operative representations within the concept enunciated in Navitas.

• [25] Regarding paragraph (a), the Respondent submitted that it is not clear how this fact bears on the critical issue or why such a term would be seen as providing context of the employment relationship as a whole. Moreover, the Respondent submitted that the Applicant has overstated the 'intention' of the parties. The Respondent submitted that at its highest, this material is neutral.

• [26] In relation to paragraphs (b) and (f), the Respondent did not accept that the enterprise agreement can be called in aid. The Respondent submitted that the enterprise agreement applies to all employment categories and it is a requirement that all employees covered by the enterprise agreement be classified. The enterprise agreement therefore can say nothing useful about the context of the employment relationship itself or about whether the contract genuinely reflected the employment relationship.

• [27] In relation to paragraph (c), the Respondent did not accept the Applicant's rendition of the email from Mr Kaliss to the Applicant dated 22 December 2023. The Respondent submitted that, in any event, the email is not determinative of the status of the then current contract. The Respondent submitted that the test is not whether the Applicant himself had an expectation of ongoing employment. Rather, it is whether the parties had agreed, by their discussions and their conduct, that the contract did not (genuinely) reflect the entirety of the employment relationship, such that the employment relationship is not to end on the stated expiry date. The Respondent noted that the Applicant understood the then current contract was ending on 4 February 2024.

• [28] In relation to paragraphs (d) and (e), the Respondent submitted that these matters were not relevant to the central question. The Respondent submitted that "[t]his is not a relevant vitiating factor. Furthermore, it is not a relevant representation."

• [29] In relation to paragraph (g), the Respondent submitted that these matters do not bear at all on the central question. The Respondent submitted that at best it is a neutral factor reflective of internal administrative hiccups rather than an intention of both parties that the true employment relationship was to be a permanent one. The Respondent further challenged and corrected the evidence in relation to the signing of the latest contract, which was in fact signed prior to the expiration of the Applicant's initial contract.

• [30] In relation to (h), the Respondent submitted that this assertion is not particularised so as to enable the Respondent to respond.

• [31] The Respondent relied on the decision of Raper J in Alouani-Roby v National Rugby League Ltd [2024] FCA 12, in which it was noted at [82] that it is necessary to determine the 'intent' of the employer, after evaluation of all the evidence. The Respondent submitted that in this matter, the only reasonable conclusion is that the Respondent was not prepared to offer another contract, and intended the contract to expire. The Respondent submitted that no contradictory intention was conveyed to the Applicant, and that the Applicant was under no illusion in that respect. The Respondent submitted that it took no additional steps to terminate the employment relationship with the Applicant.

• [32] The Respondent submitted that it did not take any initiative to dismiss the Applicant. On the other hand, it submitted that it did make clear its position that the contract was coming to end by the effluxion of time and that accordingly it did not wish to re-engage the Applicant for a further term or at all.

• [33] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.

• [34] The unchallenged evidence of Mr Mahlangu, the former Executive Chef at the Respondent, is that the Respondent had a number of issues relating to the treatment of staff, in particular the taking of breaks. Mr Mahlangu also testified that the Applicant was working above his grade in ordering food and training staff. Mr Mahlangu claimed that both he and the Applicant were "released" not long after they provided evidence which suggested that a manager may have been involved in inappropriate conduct. I have taken this into account.

• [35] On 22 December 2023, Mr Kaliss sent the following email:-

Thank you for coming to my office earlier this week to discuss your development.

I am glad that you would like to grow and you have my full support.

I have asked Prashanna to work closely with you in the coming 2-3 weeks to get a better understanding what tasks you are currently doing outside your current role and what areas you could potentially taking on if we were to change your role.

Please work closely with Prashanna, especially around ordering things via BirchStreet and how to control food cost and stocks.

As mentioned, I will be away for a few days and I will follow up with you in Mid-January.

Nipuna, we are committed to your growth and development at Hilton Darwin and I would like to thank you for your hard work.

• [36] I am satisfied and find that the Applicant was entitled to believe that his employment would be ongoing as a result of this email. Further, I am satisfied and find that the Respondent also believed that the Applicant's employment would be ongoing. There can be no other conclusion drawn from the highlighted comments in the email. It clearly states that the Respondent is keen for the Applicant to grow and develop, was looking to possibly promote him in January and that he had the "full support" of the General Manager. This email is the direct opposite of an email that I would expect a General Manager to send to an employee who only had another 6 weeks of employment. I have taken this into account.

• [37] Further, the email from the Respondent's HR advisor, Ms Liis Umbleja, on 5 February 2024 (which I repeat here for convenience), is also enlightening where she said:-

Could you please return the ID access card and uniforms at your earliest convenience so we are able to process your termination and final pays this week?

• [38] An employee on a fixed term contract, or outer limit contract, ceases to be employed when their contract expires due to the effluxion of time - they are not terminated. The Collins English Dictionary defines "termination" to mean:-

"the act of terminating or the state of being terminated"

• [39] I have taken into account the terms of the Applicant's final letter of offer. Relevantly, it states:-

We are delighted to offer you employment with Darwin International Hotels Pty Ltd trading as Hilton Darwin ("Hilton").

This contract of employment as Full-time Chef de Partie Hospitality Service Level - Chef de Partie Proficient, 7 Day roster, based in Darwin, will come into effect on 3rd February 2023 and continue until 4th February 2024. Your employment will continue until terminated in accordance with the terms of the Crowne Plaza Enterprise Agreement 2011-2012. At times, you may be required to perform your duties at other locations within the Hilton and Doubletree cluster of hotels in Darwin."

• [40] It is not in dispute that the Applicant knew that his contract would expire on 4 February 2024. The Applicant was proactive in seeking an extension of his contract by approaching management on 24 January 2024. I have taken this into account.

• [41] The Applicant has invited the Commission to make a Jones v Dunkel finding against the Respondent on the basis that they provided no evidence and called no witnesses during the Hearing. I am left to ponder what the General Manager would have said in relation to his email of 22 December 2023. I find that it is appropriate to draw a negative inference against the Respondent, based on this lack of evidence. As a result, the Applicant's evidence is unchallenged.

• [42] Regarding the unchallenged evidence of the Applicant, I note that in the Full Bench decision of INPEX Australia Pty Ltd v The Australian Workers' Union,[9] it was stated that:-

"[29] The Commission is not a court. It is not bound by the rules of evidence.6 It is required to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities. But when the Commission makes a finding of fact, it must proceed by reference to rationally probative material. That material may include, inter alia, evidence or, in an appropriate case, submissions. For example, it may be appropriate for a finding of fact to be made on the basis of an unchallenged submission made by one party, particularly when the other party is legally represented."

• [43] Further, a Full Court of the Federal Court of Australia stated in Ashby v Slipper[10] that:-

"The second aspect, critical to this appeal, relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection."

• [44] I acknowledge the decision in Alouani-Roby v National Rugby League Ltd [2024] FCA 12 and its binding precedent on the Commission. However, I am satisfied and find that this decision can be distinguished on the facts. Put simply, I do not accept that the Applicant's contract was anything but an on-going contract of employment, whose termination was governed by the expired Enterprise Agreement. There is no indication in the contract that the Applicant's employment would cease on the 4th of February 2024 due to the effluxion of time. I have taken this into account.

• [45] I am satisfied and find that both the Applicant and the Respondent believed that the Applicant's employment was on-going based on the Respondent's email on 22 December 2023. I do not accept that the Respondent's General Manager would provide the Applicant with his "full support" to continue to "grow and develop" if it was the Respondent's understanding that the Applicant's employment would cease in 6 weeks.

• [46] For the reasons stated above, I am satisfied and find that the Applicant was actually dismissed by the Respondent on 4 February 2024.

[1] [2020] FCAFC 152.

[3] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75].

[5] Mohazab v Dick Smith Electronics Pty Ltd (No. 2) [1995] IRCA 625; (1995) 62 IR 200.

[6] NSW Trains, considered in Varichak v COG Reigonal Team Pty Ltd [2022] FWCFB 37 at [33]- [35].

[7] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [81]- [84].

[9] [2021] FWCFB 1038.

[10] [2014] FCAFC 15.

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