Supreme Court of Tasmania|2005-10-05|Before: Tennent JJ, Crawford J, Evans J

Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97 (5 October 2005)

CITATION: Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Industrial Law - Tasmania - Definitions and interpretations - Industrial Relations Commission - Jurisdiction of the Commission - Meaning of termination of employment - Contract of employment for fixed time not renewed.

Saarinen v University of Tasmania [1997] TASSC 125; (1997) 7 Tas R 154, distinguished.

Third Respondent: Director of Public Prosecutions

Judgment Number: [2005] TASSC 97

1 The second respondent ("Mr Griffiths") applied in writing to the President of the Industrial Commission on a standard form provided by the Commission. Its heading showed the application to be one for a hearing in respect of an industrial dispute under the Industrial Relations Act 1984 ("the Act"), s29(1A). It was dated 23 December 2003 but according to a date stamp, it was not received by the Commission until 7 January 2004. Filling in boxes on the printed form, Mr Griffiths' application stated that he was a former employee of the appellant and that the purpose of his application concerned (inter alia) a dispute with his former employer relating to alleged unfair termination of employment under s29(1A)(a). The application also purported to concern disputes they had relating to severance pay in respect of termination of employment as a result of redundancy under s29(1A)(b), an alleged breach of an award under s29(1A)(c) and his entitlement to long service leave, or payment instead of any such leave, under s29(1A)(d).

2 Pursuant to s29(2)(a), the President allocated the application to the first respondent ("the Commissioner") for hearing. Conciliation was unsuccessful and the matter was set down for hearing before the Commissioner on 9 June 2004. Mr Griffiths appeared without representation. The appellant was represented by Mr McElwaine, who was also its counsel on the first appeal and on the appeal to this Court. Mr Griffiths was invited to present his case. It was not his intention to call witnesses. It was explained to him by the Commissioner that there were essentially two options open to him; that he could give evidence on oath, in which case he would be liable to be cross-examined by the appellant's counsel, or he could make unsworn assertions from the bar table. It was explained to him that if he adopted the latter course "and if there is any contest as to the facts, then it is given the appropriate weight". That advice may not have been understood and with respect, it would have been preferable to explain to Mr Griffiths that evidence not on oath and not subjected to cross-examination might not have as much weight as evidence on oath that was subjected to cross-examination. Mr Griffiths elected not to give sworn evidence. He made assertions of fact and a number of submissions from the bar table and he tendered into evidence a number of documents.

3 From what was presented to the Commissioner, Mr Griffiths' version of the facts included the following. In response to the appellant's newspaper advertisement he applied for the employment position of assistant port manager. He was appointed to that position for the period 14 September to 18 December 1998 inclusive. Conditions, which both parties signed, included that he would be considered a casual employee and paid for hours worked but the employment would be reviewed in December 1998. He asserted to the Commissioner that there had been no indication that the position would be anything other than permanent, but when he commenced he was told that there would be a probationary period. He claimed to have signed the conditions retrospectively validating them.

4 On 22 December 2003 the parties entered into a written employment agreement. Mr Griffiths asserted that he entered into it reluctantly. It provided that the appellant would employ him as its assistant port engineer for a period of five years from 22 December 1998 to 22 December 2003 "subject to termination as hereinafter provided". There was a provision for earlier termination of the agreement if (inter alia) Mr Griffiths breached certain conditions or became permanently incapacitated. It also provided for termination of the agreement by the employer for no reason upon payment of a sum equivalent to 12 months remuneration. Mr Griffiths was entitled to terminate the agreement upon giving three months' notice.

5 Clause 7 provided for renewal of the agreement. It stated that if Mr Griffiths wished to be reappointed as assistant port engineer he was to notify the appellant accordingly in writing, at least six months before 22 December 2003 (cl 7.1). If the appellant received such a notice it was obliged to advise Mr Griffiths in writing, within two months of receiving it, of its intention to advertise the position or offer him reappointment to the position (cl 7.2). If the appellant made an offer of reappointment, Mr Griffiths had to accept the offer at least two months before 22 December 2003 (cl 7.3). There was no assertion or evidence that Mr Griffiths gave the notice under cl 7.1 or that he was offered reappointment. However, he asserted that he had a reasonable expectation of the employment continuing beyond 22 December 2003. For the purpose of determining the appeal it is unnecessary to consider whether he gave reasons for having that expectation and, if so, what they were. The relevance of such an expectation was to be found in s30(3), to which I will refer later. His appointment came to an end on 23 December 2003. It was his wish that the employment continue but the appellant decided that once the term of the employment, provided for in the agreement, expired on 22 December 2003, he would no longer be employed by it.

6 When Mr Griffiths had finished presenting his case to the Commissioner, counsel for the appellant was invited to present its case. Counsel commented that he was unable to cross-examine Mr Griffiths because he had not given sworn evidence. Counsel then submitted that the Commissioner had no jurisdiction to hear and determine the matter before him because an industrial dispute was not raised. In the course of his submissions, counsel tendered in evidence letters from the appellant to Mr Griffiths of 15 May 2003 and 12 December 2003. Before referring to their contents, I mention also an earlier letter from the appellant to him dated 18 December 2002, to which the Commissioner referred in his reasons. It is not apparent how evidence of it was received. It referred to a letter from Mr Griffiths of 11 November 2002 in which he had enquired as to the appellant's intention with regard to extending his employment agreement beyond December 2003. The appellant informed him that the agreement would be considered in early 2003, when the appellant would also consider whether employment agreements should continue or some other arrangement should be put in place. In its letter of 15 May 2003, the appellant informed Mr Griffiths that his position of assistant engineer would be abolished at the conclusion of his employment agreement on 22 December 2003 and that "the position of Assistant Engineer will not be renewed after the conclusion of the current contract". Mr Griffiths asserted that the letter did not amount to notice of termination. By its letter of 12 December 2003, the appellant further explained to him what it had said in its letter of 15 May by informing him that he would cease to be employed after 22 December 2003. Mention was made that the term of his employment in the employment agreement was from 22 December 1998 to 22 December 2003. It appears that the letter was sent to him in response to an enquiry he had made that day.

7 It was submitted to the Commissioner by the appellant's counsel that the termination of the employment of Mr Griffiths by virtue of the expiration of the period of his employment, as specified in the employment agreement, could not be made the subject of a claim of unfair termination of employment. Reliance was placed on Saarinen v University of Tasmania [1997] TASSC 125; (1997) 7 Tas R 154 as authority for the proposition that termination of employment in such circumstances could not give rise to an "industrial dispute" in relation to an "industrial matter" as required by the Act. Relevantly, s3(1) defines "industrial matter" as meaning any matter pertaining to the relations of employers and employees and, without limiting the generality of that, includes, in par(a) of the definition, "(ii) the termination of employment of an employee or former employee". Counsel pointed out that in the Full Court in Saarinen it was held by Underwood J, with whom Wright J agreed, that the word "termination" was used in the Act as meaning terminated at the initiative of the employer and as a matter of ordinary language, an employer does not terminate an employee's employment when all that happens is that a fixed term of employment under an agreement comes to an end pursuant to the agreement. It was submitted that as s19(1) only gave the Commission jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter including, by subs(2), the conduct of hearings for settling industrial disputes, and that as the President's power under s29(2) was only to allocate to a Commissioner for hearing an application under subs(1) in respect of an industrial dispute, the Commissioner had no jurisdiction over the issues raised by Mr Griffiths. Counsel made other jurisdictional submissions that are not relevant for the purposes of this appeal.

8 The Commissioner expressed his preference for having the appellant fully present its defence of Mr Griffiths' application, in particular the evidence upon which it might seek to rely as relevant to the issue of whether Mr Griffiths had a reasonable expectation of continuing employment as required by s30(3), before ruling on counsel's submission. However, he allowed the appellant to make the decision whether to present such evidence before the ruling was made. Counsel maintained his client's desire to have the ruling without presenting further evidence. With the assistance of hindsight, it can be said that the Commissioner ought to have insisted on the appellant presenting its whole case, including evidence, before ruling on what was claimed to be a jurisdictional point. It may have saved an application under the Judicial Review Act 2000, an appeal to this Court and considerable delay in finalising Mr Griffiths' application to the Commission. The Commissioner reserved his decision and adjourned the hearing indefinitely.

9 On 30 June 2004 the Commissioner published detailed reasons for ruling against the appellant. He did not accept that Saarinen v University of Tasmania (supra) was binding authority for the proposition that the mere existence of a document purporting to be a fixed-term contract meant that he lacked jurisdiction to hear the merits of the application that had been made. He referred to the provisions of s30(3). The section was inserted into the Act, after Saarinen was decided, by the Industrial Relations Amendment Act 2000. The subsection states:

"(3) The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with -

(a) the capacity, performance or conduct of the employee; or

(b) the operational requirements of the employer's business."

10 The Commissioner noted that Mr Griffiths had asserted that notwithstanding the terms of the employment agreement, he had "a reasonable expectation of continuing employment". It seemed to the Commissioner that in all but the most clear cut cases, it would not be possible to determine whether a person had a "reasonable expectation of continuing employment" without hearing evidence and argument going to that question. He thought that it was not without significance that Saarinen predated the insertion of the subsection. The Commissioner accepted that he had no power to enforce a common law contract. Nevertheless, he considered that the terms of the employment agreement, and adherence or otherwise to its terms, including cl 7 concerning renewal of the agreement, might well be relevant when considering whether Mr Griffiths had a "reasonable expectation of continuing employment" in the context of an industrial dispute.

11 It was held by the Commissioner that Mr Griffiths had "made out a case, albeit with limited evidence, which needs to be answered". The Commissioner concluded: "The respondent's jurisdictional argument going to the alleged fixed-term contract is rejected. I so order". It is to be noted that the Commissioner failed to deal with the point raised by counsel concerning the meaning of "termination of employment" in the Act.

The application for judicial review of the ruling

12 The appellant filed an originating application in the Supreme Court by which it sought a review of that ruling under the Judicial Review Act. The application was heard by Underwood CJ, who wrote the majority judgment in Saarinen's case upon which the appellant sought, and still seeks, to rely. The application was amended by his Honour and it was amended further by this Court. It is unnecessary to explain its different forms from time to time. Its final form is in these terms:

"The Applicant, of 48 Formby Road, Devonport in Tasmania being aggrieved by a decision of the first named Respondent dated 30 June 2004 whereby the first named Respondent determined that he had jurisdiction pursuant to the provisions of the Industrial Relations Act 1984 (the Act) to hear and determine an application pursuant to Section 29(1A) of the Act by the second named Respondent dated 23 December 2003 (the decision) applies pursuant to Section 17 of the Judicial Review Act 2000 for review of the decision or alternatively applies pursuant to Section 18 of the Judicial Review Act 2000 for review of the conduct of the first named Respondent for the purpose of making a decision upon the application."

13 The Commissioner filed a notice of submission pursuant to the Supreme Court Rules 2000, r777G. The Attorney-General intervened in the proceedings pursuant to the right conferred upon her by the Judicial Review Act, s39(1). The Director of Public Prosecutions, Mr T J Ellis SC, represented the Attorney-General both before the learned judge and this Court. Mr Griffiths has at all times been unrepresented.

14 The learned judge identified the following five issues as being raised by the application to review:

"(a) Is the applicant 'a person who is aggrieved' by the Commissioner's decision made on 30 June 2004 within the meaning of the Review Act, s17?

(b) Alternatively, is the applicant 'a person who is aggrieved' by the conduct of the Commissioner" [within the meaning of the Review Act, s18] "for the purpose of making the decision on 30 June 2004?

(d) If 'yes' to (c), was the decision based on evidence or other material properly before the Commissioner?

(e) If 'yes' to (d), did the Commissioner's decision and/or conduct involve an error of law?"

15 The learned judge thought it unnecessary to determine the first two issues. (They were raised again before this Court by the Director and I will deal with them in due course). He did not expressly determine the third issue, but by inference he determined it in the affirmative when he proceeded to determine the fourth and fifth issues. The fourth issue was not in fact raised by the application to review. However, some submissions were addressed to the learned judge by counsel for the appellant concerning the evidentiary value of Mr Griffiths' unsworn assertions from the bar table. I will say no more about that because the ground of the appeal to this Court that indirectly raised it was abandoned.

16 In summary, the learned judge determined the fifth issue, the so-called jurisdictional point, in the following way. In Saarinen's case his Honour had concluded that for the purpose of determining, for a case such as this, whether there was an "industrial dispute" in relation to an "industrial matter", the dispute had to relate to "the termination of employment" and that expression referred to termination of the employment at the initiative of the employer and not termination of the employment by the mere effluxion of the period of employment as fixed by a contract of employment. However, the reasoning behind that view was based in large part on the provisions of subs31(1A). Since Saarinen the subsection had been amended and a new s30 had been inserted into the Act. Having regard to those changes, the learned judge considered that the reasoning of the dissenting judge in Saarinen, Cox CJ, had become apposite to the Act. The substance of that reasoning was that the expression "termination of employment" should be given its literal meaning and include employment coming to an end by effluxion of time and should not be confined to a termination initiated by the employer.

17 The learned judge held that the Commissioner was correct when he decided on 30 June 2004 that he had jurisdiction to determine Mr Griffiths' application, notwithstanding that his fixed term of employment came to an end by effluxion of time, provided he established the criteria prescribed by the Act, s30(3), that he had a reasonable expectation for continuing employment. The application for judicial review was dismissed.

18 I will deal with the correctness of that interpretation of the Act in due course.

Was there jurisdiction to hear the application?

19 The Commissioner had jurisdiction to hear Mr Griffiths' application. It was purportedly and properly made to the President of the Commission pursuant to the Act, s29(1), for a hearing before a Commissioner. By its express terms, the application stated that he was a former employee of the appellant and that the purpose of the application for a hearing was a dispute with his former employer relating (inter alia) to alleged unfair termination of employment. By virtue of its terms, the Commissioner had jurisdiction to hear the dispute. The dispute that was raised fell within the definition of an industrial dispute relating to an industrial matter, regardless of the meaning of the expression "termination of employment" in the Act.

20 An objection to jurisdiction should be taken as soon as practicable, and when it is taken, the court or tribunal should determine the objection as a preliminary question. Re Boulton; ex parte Construction, Forestry, Mining & Engineering Union (1998) 73 ALJR 129 at 133. When the hearing commenced before the Commissioner, no jurisdictional objection was raised by the appellant. Counsel for the appellant made a deliberate decision not to make such an objection at that stage. He decided to gain an understanding of what Mr Griffiths' case was. For reasons I have given, no valid objection to jurisdiction could have been taken, in any event.

21 In support of his application, Mr Griffiths presented his case to the Commissioner. He could have given evidence on oath if he had wished. He could have called witnesses if he had any available and he had so chosen. He presented his case in his own way and without any objection by the appellant to him doing so or to the jurisdiction of the Commissioner being exercised.

22 What was raised by counsel for the appellant after Mr Griffiths had completed the presentation of his case was not of the nature of an objection to jurisdiction. It was in reality a submission that on Mr Griffiths' case, taken at its highest value, he could not possibly succeed and that in the circumstances, the appellant should not be called upon to present its defence to the application on the merits. In other words, the objection was in the nature of a submission to a court, at the conclusion of the prosecution or plaintiff's case, that the defence had no case to answer. The Commissioner was under no obligation to entertain the submission. He had every right to insist that the appellant present its defence in all respects, and to determine the meaning of "termination of employment", and whether Mr Griffiths' application should succeed, after the appellant had done so. The Commissioner was entitled to regulate his own procedure. The Act, s21(1). He was, of course, obliged to deal with Mr Griffiths' application on its merits, but without regard to technicalities or legal form and he was entitled to inform himself on any matter in such a way as he thought just. Section 20(1)(a) and (c).

23 What took place can be likened to an action in a civil court for say, damages for trespass, nuisance or negligence. To submit at the conclusion of a plaintiff's case, that upon the basis of the evidence the plaintiff did not have a case for trespass, nuisance or negligence does not amount to the making of an objection to the court's jurisdiction. It is simply the making of a submission that there is no case for the defendant to answer.

24 The learned judge refrained from determining matters under this heading. Before it was amended, the appellant's application under the Judicial Review Act sought a review under s17. By subs(1) "a person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision". It was submitted by the Director that the appellant was not a person who was aggrieved by the Commissioner's ruling and that the ruling did not amount to a decision to which the Judicial Review Act applied.

25 By the Judicial Review Act, s4(1), the expression "decision to which this Act applies" means "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)". Insofar as it is relevant to this case, by s7(1) a reference to a person aggrieved by a decision is taken to be a reference to a person whose interests are adversely affected by the decision.

26 The leading case on what is a reviewable decision and what is reviewable conduct for the purposes of legislation such as the Judicial Review Act is Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, in which similar provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) were considered. At page 337 Mason CJ dealt with the question of what is a reviewable decision:

"To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment."

27 I think there is little doubt that if the Commissioner's ruling amounted to a decision to which the Judicial Review Act applied, then the appellant would be "a person aggrieved" by it. However, it is clear, applying the passage I have just cited from Bond, that the ruling was not a decision for which provision was made by or under the Act. It amounted merely to a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision which would be reviewable, but which has not yet been made. It was not a decision to which the Judicial Review Act applied.

28 Counsel for the appellant conceded that, but sought to have the Court uphold the validity of the application for review upon the basis that it seeks to review conduct falling within the Judicial Review Act, subs18(1), which provides:

"(1) If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies (whether by that person or by another person), a person who is aggrieved by the conduct may apply to the Court for an order of review relating to the conduct."

29 Initially, counsel for the appellant submitted that the making of the ruling by the Commissioner amounted to relevant conduct. Upon that being challenged by the Director, I understood counsel for the appellant to submit that the relevant conduct was the continuation of the hearing by the Commissioner, or the Commissioner's proposal to continue it, when he had no jurisdiction to do so. Reference was made by counsel to s18(2)(c) of the Judicial Review Act which provides that an application for review of conduct engaged in or proposed to be engaged in for the purpose of making a decision to which that Act applies, may be made on the ground (inter alia) "that the person proposing to make the decision does not have jurisdiction to make the proposed decision". I will deal with that, but because, for reasons I have given, the Commissioner had jurisdiction to hear Mr Griffiths' application and to make a final decision with regard to it, reliance on that provision does not advance the appellant's cause in this Court to a successful conclusion.

30 The distinction between a reviewable "decision" and reviewable "conduct" was dealt with in Bond by Mason CJ. At 337 - 338 his Honour said:

"If 'decision' were to embrace procedural determinations, then there would be little scope for review of 'conduct', a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the 'conduct' of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of 'conduct' than with the notion of 'decision under an enactment'."

31 At 341 - 342, Mason CJ then explained "conduct". The reference in the following passage to s3(5) of the Administrative Decisions (Judicial Review) Act (Cth) may be taken to apply equally to the similar provisions of the Judicial Review Act, s8. Mason CJ said:

"The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that 'decision' connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of 'conduct' in the statutory scheme of things becomes reasonably clear. In its setting in s6 the word 'conduct' points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s3(5) refers to two examples of conduct which are clearly of that class, namely, 'the taking of evidence or the holding of an inquiry or investigation'. It would be strange indeed if 'conduct' were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

Accordingly, there is a clear distinction between a 'decision' and 'conduct' engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to 'conduct'. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice."

32 If, for example, the appellant had raised as a preliminary point, before the hearing of Mr Griffiths' application on the merits had got underway, that the Commissioner had no jurisdiction to hear the application, and the Commissioner rejected the argument, the decision itself would not have been one that was immediately reviewable under the Judicial Review Act, because of its lack of finality in the sense explained by Mason CJ. Nevertheless, if the Commissioner, having rejected such a jurisdictional argument, then proposed to conduct a hearing of the originating application for the purpose of making a decision as to its merits, the conduct of that hearing, or the proposal to conduct it, would amount to reviewable conduct under s18(1) upon the jurisdictional ground provided for in s18(2)(c). To that extent I reject the Director's submissions.

33 I understood that the Director relied on Harris v Bryce [1993] FCA 115; (1993) 113 ALR 726 as authority for the proposition that a preliminary decision that there is jurisdiction and a consequent proposal to conduct a hearing or investigation that is within the perceived jurisdiction, would not amount to either a reviewable decision or reviewable conduct. However, although Morling J held at 734 that the decision concerning jurisdiction and the decision to conduct an inquiry were not reviewable decisions under the Administrative Decisions (Judicial Review) Act (Cth), his Honour did not go on to determine the question whether there was reviewable conduct.

34 I will take the matter no further. Because of my determination that the Commissioner had jurisdiction to hear and determine Mr Griffiths' application on its merits, a review of the Commissioner's conduct, or proposed conduct, in continuing the hearing must necessarily fail in any event.

35 I express my general agreement with what is said by Evans J concerning the undesirability of making applications to review a matter before it has been finally determined, except in exceptional circumstances, and the problems that commonly arise out of the fragmentation of proceedings in the way the present proceedings have been fragmented. It is unnecessary to decide at this point, but it may well have been an appropriate course for Underwood CJ to take, in the court below, to dismiss or stay the application for judicial review when it first came before him.

36 The only ground of the appeal that was maintained by the appellant was that the learned trial judge erred in concluding that upon a proper construction of the provisions of the Act, the Commissioner had jurisdiction to hear and determine Mr Griffiths' claim pursuant to s29(1A). In view of my determination that the Commissioner had jurisdiction there is no need for me to go further. However, the ground was argued on a basis with which I have not dealt and it was the central plank in the argument of the appellant to the Commissioner, the learned judge and this Court. It is plainly in the interests of the parties that the Court deal with the issue that was sought to be raised so as to avoid the risk of it having to be argued once again at a later time. It concerns, of course, the question whether termination of employment by reason of the expiration of a fixed period of employment under a contract amounts to "termination of employment" as that expression is used in the Act. In Saarinen, Cox CJ held that it did, but Underwood J, with whom Wright J agreed, held that it did not.

37 The view of Cox CJ was based on the ordinary meaning of the expression. The literal approach to interpretation is a fundamental rule and one that is usually to be favoured. His Honour thought that the expression could be applied to situations where the employment ends by reason of the effluxion of time just as well as it could be applied to termination at the initiative of the employer. His Honour also applied a purposive approach to interpretation, and expressed the view, at 161, that disputes of an industrial nature can readily arise in relation to the termination of fixed term contracts and that it is possible that employers can, without initiating the termination, nevertheless act in unfair and oppressive ways or unfairly refrain from acting with the result that termination of employment comes about harshly and unjustly. His Honour pointed out that may be so where, despite a reasonable expectation on the part of an employee of renewal of the contract of employment, the employer refrains from honouring it. His Honour could see no reason why the Commission should not have been given jurisdiction in respect of such disputes and should be confined to cases where some positive initiative on the part of the employer to terminate had to be shown before its powers could be invoked.

38 The interpretation of Underwood J in Saarinen of "termination of employment", which appeared in the definition of "industrial dispute" in s3(1) at that time (it has since been moved to the definition of "industrial matter"), was influenced to a considerable extent by s31(1A), which required that before deciding whether or not to make an order in respect of an industrial dispute relating to termination of employment, the Commissioner had "to take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer as set out in Schedule 10" of the Industrial Relations Act 1988 (Cth). Article 3 of that Convention declared that for the purpose of the Convention, the terms "termination" and "termination of employment" meant termination of employment at the initiative of the employer.

39 The Commonwealth Act, s170CA, expressly provided that one of its objects was to give effect to the Convention and by s170CB, it adopted the expressions used in the Convention. Underwood J drew from the second reading speech of the Minister leading to the Industrial Relations Amendment Act 1994 that some of the provisions of the Commonwealth Act motivated some of the amendments made by that Act. Notwithstanding the differences between the Commonwealth Act and the Act as amended and the fact that the Act did not expressly adopt the Convention's expressions in the way of the Commonwealth Act, his Honour thought that "termination of employment" in the Act, s3(1), should be given the same meaning as "terminate an employee's employment" in the Commonwealth Act, which cases established referred only to termination brought about by an act of the employer. It might be doubted that the application of the meaning of the Commonwealth's expression in that way was correct, having regard to the fact that the Commonwealth Act's use of it was in a provision that stated "an employer must not terminate an employee's employment". As pointed out in State of Victoria v Commonwealth of Australia (1996) 138 ALR 129 at 173, as a matter of ordinary language, an employer does not terminate an employee's employment when all that happens is that the employment comes to an end by agreement. Such logic of expression cannot be applied to the use in the Act, s3(1), of the expression "termination of employment".

40 Nevertheless, it was held by the majority in Saarinen that "termination of employment" in s3(1) did not refer to termination of employment by virtue of the expiration of the term of a contract that created it.

41 Prior to the present dispute arising, the Act in the form that was considered by the Full Court in Saarinen, was amended in a number of material respects. In particular, by the Industrial Relations Amendment Act 2000 there was removed from s31(1A) the requirement for a Commissioner, before deciding whether or not to make an order in respect of an industrial dispute relating to termination of employment, to take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer. As I have pointed out, that requirement played a major role in the interpretation of "termination of employment" by Underwood J in Saarinen.

42 The Act of 2000 also inserted s30 into the Act. It prescribes criteria which are to apply to disputes relating to termination of employment. To some extent it includes the substance of obligations imposed by the International Convention, Pt II, but as pointed out by the learned judge at first instance in this case, there are two significant differences. One is that whereas the Convention expressly imposes obligations in the case of employment that has been terminated at the initiative of the employer, s30 imposes obligations in the case of termination of employment, without requiring that the termination be at the initiative of the employer. If it was intended to mirror the Convention it would have been a simple drafting exercise to achieve it, but that was not undertaken. The other difference is that unlike the Convention, s30 makes no reference to the manner of termination and it contains a provision, in subs(3), that prohibits termination of employment, without a valid reason of a certain kind, in cases where the employee has a reasonable expectation of the employment continuing.

43 At the time of Saarinen, two of the members of the Court thought that there was sufficient in the Act to indicate that "termination of employment" meant termination of employment at the initiative of the employer. There is no longer any indication of that in the Act since the amendments. There are now significant differences between the Commonwealth legislation considered in Saarinen and the legislation of this State. There no longer remains any sound reason for interpreting the expression "termination of employment" as meaning termination of employment at the initiative of the employer. That is not its plain and ordinary meaning. There is nothing in the Act that justifies that limitation on its meaning.

44 The only section in the Act that confers jurisdiction on the Commission is s19. (Relevantly it confers jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter including jurisdiction to conduct hearings for settling industrial disputes). I understood counsel for the appellant to submit that it is erroneous to use s30 for the purpose of interpreting the jurisdictional section. He argued that s30 is a procedural section. The irony in that submission is that counsel sought to rely on the interpretation of the Act by Underwood J in Saarinen which was to a large extent based on the then provisions of s31(1A), which were not in the jurisdictional section. The obvious answer to the submission is that s19 does not use the expression "termination of employment" and there is nothing in it that assists an understanding of the meaning of the expression where it is used elsewhere in the Act. To understand the meaning requires a consideration of its use wherever it occurs. It appears in the definition of "industrial matter" in s3(1), and it appears in ss29, 30 and 31. There is every reason to think that its meaning is the same wherever it is used. It is my opinion that it includes termination by the effluxion of a time fixed by a contract of employment.

45 For the reasons I have given I would dismiss the appeal.

46 I have had the benefit of reading the reasons for judgment prepared by Tennent J and agree with her that this appeal should be dismissed. I agree with her reasoning, and that of the learned primary judge, for concluding that upon a proper construction of the Industrial Relations Act 1984 following the amendments made to that Act by Act No 104 of 2000, a termination of employment may include a termination by effluxion of time.

47 It now falls for the Commissioner to finally determine Mr Griffiths' application, a determination which would have been reached well over a year ago but for the appellant's successive appeals against the Commissioner's ruling that he had jurisdiction to hear Mr Griffiths' application. When the hearing before the Commissioner was interrupted by the appellant's application to review that ruling, all that remained to be done before the Commissioner's final decision on the substantive issue before him was for the appellant to be given an opportunity to present such evidence, if any, as it wished to put before the Commissioner. This should have been done and the substantive issue should have been determined before remedies of the nature of an appeal were pursued by either party, should that course have ultimately been considered appropriate.

48 In my view the appellant's application to review the Commissioner's ruling was premature and should have been stayed or dismissed. I say this with some hesitation as it is very easy to overstate an assessment such as this when bolstered by the benefit of hindsight. It is only in exceptional circumstances that it is appropriate to grant relief under the Judicial Review Act 2000 in respect of a decision given in the course of ongoing proceedings. The delays consequent upon the fragmentation of proceedings are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernable benefit. Observations to this effect have been made in relation to committal proceedings in Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 at 564, Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338 at 339 and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 338 - 339. In my view these observations are generally applicable in relation to ongoing proceedings that are open to judicial review.

49 This Court has a discretion to dismiss or stay a premature application for relief under the Judicial Review Act. Such a discretion has been held to flow from the use of the word "may" in the Administrative Decisions (Judicial Review) Act 1977 (Cth), s16, which details the powers of a court in relation to an application for review under that Act; Lamb v Moss (supra) at 548 - 550. Whilst that decision would provide some authority for giving a similar construction to the Judicial Review Act, s27, which also uses the word "may" with reference to this Court's powers in relation to an application for review, no authority is needed for the proposition that this Court has a discretion to summarily dismiss or stay a premature application. The Judicial Review Act expressly:

* empowers this Court to stay or dismiss an application for review which it would be inappropriate to allow to continue, s38(1)(a)(i); and

* obliges this Court to dismiss an application for review if in the interests of justice it is desirable to do so in order to avoid interference with the due and orderly conduct of the ongoing proceedings, provided that adequate means of review are available at the conclusion of those proceedings, s13.

51 This is an appeal against the decision of a single judge of this Court in respect of an application to review a decision or conduct of a Commissioner of the Industrial Relations Tribunal. The learned primary judge dismissed the application and upheld the decision of the Commissioner.

52 Alan William Griffiths ("the second respondent") was employed by the Port of Devonport Corporation Pty Ltd ("the appellant"). The employment ended on 22 December 2003. On 7 January 2004, he made an application to the Tasmanian Industrial Commission ("the Commission") pursuant to the Industrial Relations Act 1984 ("the Act"). Conciliation was unsuccessful and the matter proceeded to hearing before Commissioner Tim Abey ("the first respondent") on 9 June 2004. The second respondent was unrepresented at that hearing. Counsel was given leave to appear for the appellant.

53 At the hearing the second respondent was given the option of giving sworn evidence or just stating his case from the bar table. He chose the latter, no objection being taken to that course of action by counsel for the appellant. He then stated what his case was and handed up a number of documents. He was asked some questions along the way by the first respondent.

54 Once this process had finished, counsel for the appellant stated that "Well, none of that having been sworn, I can't cross-examine him on it." He then said he wished to make some jurisdictional submissions. He did so and then submitted that the Commission had no jurisdiction to proceed further. He went on to say that he had intended putting his submissions before the second respondent had done anything, but let him proceed as he did because the second respondent was unrepresented and he wanted to understand carefully what his case was.

55 In the course of making his submissions, counsel handed up certain documents to the first respondent.

56 An exchange occurred between the first respondent and counsel for the appellant which is set out starting at par240 of the transcript of proceedings in the Commission. Part of that was as follows:

"Now, you are putting to me, as I understand it, that this is a fixed-term contract. You are not leading any evidence as to the nature of that contract or anything else that goes behind it, and you are asking me to rule that there is no jurisdiction. Now, I would have preferred if we could have had some evidence on it, I must say. In the interest of efficiency because if I am against you on it, then we have to come back again."

57 The learned primary judge set out at par10 of his judgment what counsel for the appellant ultimately put to the first respondent. As a result of the exchange and the course of action the appellant pressed on the first respondent, the first respondent adjourned the matter for the purpose of considering whether he had jurisdiction to continue. On 30 June 2004 he delivered what he described as "Reasons for Preliminary Decision". The substance of that decision was that he ruled he did have jurisdiction to deal with the second respondent's application. The appellant sought a review of that decision/conduct under the Judicial Review Act 2000. The learned primary judge upheld the position of the first respondent.

59 In 1998, the second respondent applied for a position advertised by the appellant for a person to fill a newly created position of assistant engineer. He was successful in his application and by a letter dated 2 September 1998 from the appellant to the second respondent, the second respondent was appointed to fill the position as a casual employee on a contract basis for the period 14 September 1998 to the 18 December 1998.

60 In December 1998, he was offered a further contract for five years from 22 December 1998. He signed that contract. Paragraph 5 of the judgment of the learned primary judge sets out relevant terms.

61 On 15 May 2003, the appellant wrote to the second respondent, obviously in response to an earlier enquiry from him in November 2002. The letter stated:

"Following your letter of 11th November 2002, the Board wrote to you indicating that your contract would be considered when the contracts for those Senior Officers whose contracts expired on 30th June 2003 have been resolved.

A recent review of the Corporation's operations which required consideration by the new Board has confirmed the need to restructure the management arrangements in order to achieve improved management of infrastructure assets.

As a consequence, the positions of Engineer and Assistant Engineer will be abolished at the conclusion of the current contracts (in your case 22/12/03). A new position of Manager - Special Projects will be filled in the next few months and an additional position of Manager - Infrastructure will be advertised in October 2003.

The position of Assistant Engineer will not be renewed after the conclusion of the current contract."

62 On 12 December 2003, the second respondent evidently made a further enquiry about his position and in response a letter was written to him that day in the following terms:

"Further to your enquiry of today seeking clarification of the above I confirm the content of a letter from the Chief Executive to you dated 15 May 2003.

By way of further explanation the letter refers to your contract with PDC dated 22 December 1998 that employs you as Assistant Port Engineer for the period 22 December 1998 to 22 December 2003 and advises that you will cease to be employed by PDC after 22 December 2003.

63 The employment of the second respondent duly ended by reference to his contract on 22 December 2003.

64 The second respondent applied to the Commission pursuant to the Act, s29(1A), for a hearing in respect of an industrial dispute. The purpose of the application was stated to be:

* alleged unfair termination of employment (s29(1A)(a));

* severance pay in respect of termination of employment as a result of redundancy (s29(1A)(b));

* alleged breach of an award or registered agreement (s29(1A)(c )); and

* a dispute over the entitlement to long service leave (s29(1A)(d)).

65 The second respondent asserted in his application that he had been employed with the appellant from 14 September 1998 to 22 December 2003 on a full time basis as an assistant engineer.

66 He also answered certain questions in the application as follows:

"1 What is the title of the industrial award or registered agreement under which you were employed?

2 Is the award or agreement registered in the Tasmanian Industrial Commission ...

3 If you were not employed under an award or registered agreement, please provide details of your contract of employment.

AN UNREGISTERED CONTRACT OF EMPLOYMENT THAT BREACHED THE FEDERAL AWARD FOR PROFESSIONAL ENGINEERS AND SCIENTISTS."

67 When asked for additional information relating to his matter, the second respondent said "Unfair termination of employment without justification or reason." He also stated he had, in his words, been forced to sign the December 1998 contract; that he had a reasonable expectation of being re-employed; that he had not been subject to any disciplinary process; and that he had been denied due process with respect to non-appointment. There were clearly inconsistencies in the application and the first respondent made certain decisions about some of his claims on 30 June 2004 which have never been challenged.

"... that the learned trial judge erred in fact and/or in law as follows:

1 In concluding that upon a proper construction of Section 20(1) of the Industrial Relations Act 1984 the first respondent was entitled to conclude or form a view that the second named respondent had a reasonable expectation of continuing employment based upon assertions by the second named respondent not given in the form of evidence by him or which were capable of being tested as evidence given by him;

2 In concluding that upon a proper construction of the provisions of the Industrial Relations Act 1984 the first named respondent had jurisdiction to hear and determine the claim made by the second named respondent pursuant to Section 29(1A)."

69 The parties to this appeal are the appellant and three respondents. The first was Commissioner Abey, who took no part in the hearing; the second was Mr Griffiths; and the third was the Attorney General of the State of Tasmania.

70 Counsel for the third respondent raised a further matter on the appeal and that was whether the appellant could even satisfy a court he was a person aggrieved. The issue was not dealt with in any depth in oral submissions and it is perhaps unnecessary to deal with it having regard to the conclusion I have reached.

71 This ground was abandoned by counsel for the appellant during the course of argument.

72 It was submitted by counsel for the appellant that the conclusion reached by the learned trial judge in a case he dealt with in 1997 was a correct conclusion and should have been adopted in the present case. It was not, and hence counsel submitted, his Honour erred. The case referred to was Saarinen v University of Tasmania (1997) Tas R 154. At 182, his Honour said :

"... there is no termination of the employment relationship when that relationship comes to an end by virtue of the expiration of the term of a contract that created it."

73 The learned primary judge concluded at par29 of his judgment in the present case that:

"It seems to me then, that the construction placed on the expression 'a matter relating to the termination of employment of an employee' by the majority of the Full Court in Saarinen must be applied to the meaning of that expression as presently enacted for there has been no relevant change to the definition since the decision of Saarinen was handed down."

However he then went on to say immediately after that:

"Although there has been no material change to the relevant part of the definition since Saarinen, have there been other statutory changes which might call for reconsideration of the reasoning in Saarinen?"

74 These comments arose out of the fact that while certain sections of the Act to which I will refer had not changed materially since Saarinen was decided, other sections of the Act had. Changes were effected by the Industrial Relations Amendment Act No 104 of 2000 which took effect on 1 January 2001. Counsel for the third respondent contended those changes were designed to, and in fact did, change the law as expounded in Saarinen.

"(1A) A former employee may apply to the President for a hearing before a Commissioner in respect of an industrial dispute relating to -

(a) the termination of employment of the former employee; or

(b) severance pay in respect of employment of the former employee terminated as a result of redundancy; or

(d) a dispute over the entitlement to long service leave, or payment instead of any such leave, or the rate of ordinary pay at which any such leave or payment is to be paid in respect of the former employee. "

"(1) Subject to this Act, the Commission has jurisdiction to hear and determine any matter arising from, or relating to, an industrial matter".

Section 19(2) set out the powers of the Commission in so doing. They included the power to conduct hearings for settling industrial disputes. An industrial dispute was defined in the Act, s3, to mean:

"... a dispute in relation to an industrial matter -

(b) that is likely to arise or is threatened or impending;"

76 Relevant to the present proceedings, an industrial matter was defined in the Act, s3, to mean:

... any matter pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -

(ii) the termination of employment of an employee or former employee; or"

77 The sections set out in the preceding paragraphs were those in respect of which it was agreed there had been no material changes since Saarinen. The changes effective as from 1 January 2001 were that a new s30 was inserted and s31 was amended. The learned primary judge set out that new s30 at par37 of his judgment.

78 At par31 of his judgment, the learned primary judge set out the Act, s31(1A), as it was inserted by amendments inserted by Act No 98 of 1993 (that is the provision in effect at the time Saarinen was decided). His Honour then set out at par35 of his judgment the amended s31(1A) as it came into force in 2001.

79 His honour revisited his reasoning in Saarinen and that of Cox CJ commencing in par30 and following through to par41 of his judgment and concluded at par42:

"In my respectful opinion, the reasoning of Cox CJ in Saarinen is now apposite to the Act. This is because Act No 104 of 2000 has removed the requirement that Commissioners have regard to an International Convention which referred to termination at the initiative of the employer."

80 At the time the case of Saarinen was decided, the Commission was required by reference to the Act, s31(1A) as it then stood, to "take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer". The learned primary judge, who was in the majority in Saarinen, set out commencing at 178 of the decision in that matter the changes to both State and Commonwealth legislation which had occurred in the period preceding that decision and referred to a number of authorities. He then concluded at 182 that:

"Further, there may be cases where the employment relationship is not wholly dependent on the contract but, apart from such cases there is no termination of the employment relationship when that relationship comes to an end by virtue of the expiration of the term of a contract that created it. In this case the relationship came to an end by the effluxion of time and was not terminated by the respondent."

81 That conclusion was drawn following an examination of the legislative changes and a number of authorities. What his Honour did at first instance here was to take the view that because of the changes to the legislation which occurred post-Saarinen, the authorities to which he had regard for the purpose of that case were no longer relevant.

82 There are two obvious differences between the terms of the convention as it was required to be considered at the time of Saarinen and the Act, ss30 and 31(1A), as amended after that case. Firstly, the reference to "at the initiative of the employer" appears in the former but not the latter. Secondly, the phrase "reasonable expectation of continuing employment" appears in the latter but is not in the former.

83 The inference which could be drawn from those differences is that post-Saarinen it was intended to remove any suggestion that there had to be any initiative or active step by an employer to end employment before jurisdiction arose. The fact of termination or ending of employment would be sufficient. Further the use of the phrase "reasonable expectation of continuing employment" and the context in which it is used in s30 could suggest that where an employee could satisfy a Commission that he or she had such an expectation, then contract or no contract, he or she may not be able to be terminated and therefore a dispute existed in respect of which the Commission had jurisdiction.

84 The only concern arising from this interpretation is that it might be argued that had Parliament specifically intended to override the effect of Saarinen it would have been more specific in its intentions. On the other side of that, however, is the argument - why make the changes at all if not with the intention of overriding Saarinen? Why include the concept of reasonable expectation of continuing employment which did not appear in the convention?

85 With respect, I am of the view that the learned primary judge was correct when he formed the view that the legislative changes since Saarinen had changed the situation. I am also satisfied that the conclusion he reached at par44 of his judgment was correct. It was open to the first respondent to form a preliminary view that there was material which could support a reasonable expectation of continuing employment and hence the Commission had jurisdiction.

Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97

At a glance

Court

Decision date

Before

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Judgment (144 paragraphs)

Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97 (5 October 2005)

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Legislation Cited (2)

Cases Cited (7)