| [2022] FWC 1011 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Darren Sadler
v
Ballarat City Council
(C2022/422)
COMMISSIONER LEE |
MELBOURNE, 31 MAY 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – applicant not dismissed – fixed-term contract – employment not terminated on employer’s initiative – application dismissed.
[1] This decision concerns an application made by Mr Darren Sadler to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). Mr Sadler contends that Ballarat City Council (the Council) contravened various provisions of Part 3-1 of the Act by dismissing him from his employment as Executive Manager Property Services and Facilities Management. The Council disputes that Mr Sadler was dismissed and pressed a jurisdictional objection on that basis.
[2] The Commission generally does not have a determinative function in relation to applications brought under s.365 unless the parties agree to the Commission arbitrating the matter. Rather, the Commission’s role is to convene a conference and to issue a certificate to the applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the respondent denies that it dismissed the applicant and objects to the application on this basis, the Commission is required to determine whether the applicant was dismissed. 1
[3] Mr Andrew Prestage, Executive Manager of People and Culture, and Ms Bridget Wetherall, Director of Infrastructure & Environment, provided witness statements in support of the Council. Mr Sadler provided a statement on his own behalf. The evidence filed by the parties was not contested. By the parties’ consent, this matter was not listed for hearing and was determined on the papers.
[4] In November 2016, the Council externally advertised for a variety of roles, including the role of Executive Manager Property Services and Facilities Management. 2 Mr Sadler successfully applied for this role and commenced employment with the Council on 15 December 2016. On that day, Mr Sadler signed a Letter of Offer (the Letter of Offer) from the Respondent which referred to the entering of a fixed-term Employment Contract (the Contract), effective from 3 January 2017 to 2 January 2022.3 The Council has provided an unsigned copy of the Contract.4 There is no evidence that the Contract was ever signed by Mr Sadler.
[5] In or about June or July 2017, Mr Sadler sought to re-negotiate his redundancy entitlements under the Contract with the Director of Business Services, Mr Glenn Kallio. On 5 July 2017, Mr Kallio sent Mr Sadler an email confirming the Council would insert a 12-month redundancy clause into the Contract, which was acknowledged by Mr Sadler on the same day. 5
[6] In or around June 2021, Ms Wetherall decided that due to perceived issues with Mr Sadler’s performance and behaviour in his role, the Council would not invite him to enter a new contract upon the expiry of the existing Contract on 2 January 2022. With the assistance of Mr Prestage, a letter was prepared and sent to Mr Sadler on 5 August 2021, informing him of the decision and advising he was welcome to take time off to arrange for alternative employment or to apply for other vacant roles at the Council. 6
[7] On 15 September 2021, Mr Remington, solicitor for Mr Sadler, sent the Council a letter in response to the 5 August letter, outlining a number of concerns which included:
• That Mr Sadler had never received a signed and dated copy of the Contract.
• That since receiving notice of termination of his employment on 5 August, Mr Sadler had pressed Ms Wetherall for cogent reasons for the termination but with no real success. Ms Wetherall’s responses had ranged from “vague references to [Mr Sadler’s] team being difficult to deal with” to “a need for a restructure or realignment” in her directorate.
• That the purported reasons behind the discontinuance of Mr Sadler’s employment were not credible and had been contradicted by other comments that Ms Wetherall had made.
• That the Contract was not a maximum term contract – specifically that the words “[the] contract will be effective from 3 January 2017 until 2 January 2022” (original emphasis) did not contemplate a termination of the employment relationship upon the Contract’s expiry.
• That at no time during the discussions surrounding the acceptance of the Letter of Offer was the fact that Mr Sadler’s employment would terminate automatically upon expiry of the Contract discussed.
• That fixed-term contracts were ubiquitous with Council employees but that employment relationships seldom ceased on expiry of contract terms.
• That representations had been made to Mr Sadler throughout his employment that he would remain an employee well past the Contract’s expiry date. Examples of the claimed representations were requests from previous Council leadership to prepare 10-year staffing plans and 5 and 10-year resourcing plans on the understanding that Mr Sadler would be responsible for their implementation.
• That Mr Sadler was of the view that if the termination proceeded, it will have been at the Council’s initiative. 7
[8] On 23 September 2021, Mr Prestage wrote to Mr Remington in response. 8 The letter relevantly included:
• That while Mr Sadler had never provided a signed copy of the Contract to the Council, both parties adhered to its terms and Mr Sadler continued to work in accordance with its provisions for some five years.
• That as the Contract was a fixed-term contract, the Council was under no obligation to renew or offer Mr Sadler continuing employment.
• That Mr Sadler had not been given notice of termination of employment, but rather had been informed that he would not be offered further employment after 2 January 2022.
• That even if Mr Sadler were not subject to a fixed or maximum term contract, Council was statutorily restricted under the Local Government Act 1989 (LG Act) from employing Mr Sadler for a term longer than 5 years.
• That any representations to Mr Sadler that he would remain an employee past the expiry date of the Contract were denied, and that any such representations which were not made by the CEO were irrelevant as only the CEO was responsible for appointing, directing, managing, and dismissing staff.
• That several factors had been considered in the Council’s previous decision to not offer a further contract of employment to Mr Sadler. These included negative feedback from staff, a lack of commitment to the Council’s new cultural program, a failure to escalate serious staff and cultural issues, a failure to provide updated KPIs for his 2020/2021 performance plan, and a finding that Mr Sadler had spread unfounded rumours regarding Ms Wetherall in recent months.
[9] On 8 October 2021, Mr Remington wrote to the Council addressing Mr Prestage’s reply. The letter relevantly included:
• That Mr Sadler disagreed with the assertion that he indicated his intention to be bound by the Contract in 2016. While many aspects of Mr Sadler’s employment would have been consistent with its terms, the same relationship and arrangements would have existed without the Contract, and parties “arranged their affairs in accordance with the terms of the signed Letter of Offer, applicable legislation, Council’s own policies, customs, and practice and the enterprise agreement.”
• Responses addressing each of the reasons to not extend Mr Sadler’s employment which were raised in Mr Prestage’s previous letter.
• A re-assertion of the view that if termination of Mr Sadler’s employment relationship proceeded, it would be at the Council’s initiative. 9
[10] The Council submits that:
• In accordance with Coles Supply Chain Pty Ltd v Milford, 10 the Commission must first determine whether Mr Sadler has been dismissed and therefore whether he is entitled to make a general protections claim involving dismissal under s.365 of the Act.11
• A termination is at the employer’s initiative when the employer’s action “directly and consequentially” results in the termination of employment, and had the employer not taken this action, the employee would have remained employed. There must be action by the employer that either intends to bring the relationship to an end or has that probable result. 12
• Following the Full Bench majority decision in Saeid Khayam v Navitas English Pty Ltd T/A Navitas English (Navitas), 13 where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end of that date, then, absent a vitiating or other factors, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer.
• Further, a decision in these circumstances not to offer another contract of employment, will not be relevant to the question of whether there was a termination of employment at the initiative of the employer. 14
• In Borg v Victoria University, 15 the Federal Court found that a person will not have been dismissed if they had been employed under a contract of employment for a specified period of time and that period had expired.16
• In Victoria v Commonwealth, 17 the Court held that when a contract of employment for a specified term exists, an employer does not terminate the employee’s employment when the specified term expires. Instead, the employment comes to an end by agreement and by effluxion of time, and there is no termination at the employer’s initiative.18
• In Crawford v Steadmark Pty Ltd (No.2), 19 the Federal Circuit Court found that as the applicant’s maximum term contract had expired, her employment relationship had expired by the effluxion of time and she had not been terminated by the respondent.20
• Mr Sadler was provided with the Letter of Offer dated 15 December 2016, which he signed, and a copy of the Contract, both of which provided that the Applicant’s employment was on a maximum term or ‘fixed’ term basis, expiring on 2 January 2022. 21
• Clauses 4.1, 4.2, 19.1, 19.2, 20.1, and 28.4 of the Contract relevantly provide that the terms of the Contract do not contain an option for renewal, that re-employment must occur under a new contract, that the Contract is terminated on its expiry date, that the officer voluntarily agrees to their termination on the expiry date, and that the Contract constitutes the entire agreement between the Council and the officer.
• Notwithstanding that the Council has been unable to locate a signed copy of the Contract, the Contract is not void or unenforceable. The Letter of Offer signed by Mr Sadler clearly contemplated and indicated that there was a contract of employment which it was intended the parties should have executed, and it is reasonable to assume the Letter of Offer was only part of the terms under which he was engaged. Mr Sadler clearly accepted the terms of his employment through specific performance of his role in accordance with the Contract’s terms. 22
• Following the matter of Tiago v John Hopkins Property Pty Ltd, 23 Mr Sadler indicated agreement to the terms of the Contract by taking the benefits offered and performing his duties under it. Mr Sadler’s negotiations with the Council to vary his redundancy entitlement in July 2017 are a further indication that he expressly agreed to the terms of the Contract as varied.24
• Mr Sadler’s employment was also subject to legislative requirements under the LG Act, including s.95A which provided that a Senior Officer’s contract of employment must specify the expiry date, and that the date must be not more than 5 years after the commencement date. 25
• There was no contractual or other obligation, expectation, or commitment, that Mr Sadler would be invited to enter a new contract following the expiry date of 2 January 2022. 26
• Other than the CEO or their nominated delegate, none of the Council’s representatives had the authority to invite a senior officer under the LG Act to enter a new contract of employment. Ms Wetherall has provided clear evidence that she never gave any reassurances or representations that Mr Sadler would be invited to enter a new contract of employment. 27
• The 5 August 2021 letter to Mr Sadler was not a termination at the Council’s initiative, but rather confirmation that the Contract would come to an end in accordance with its terms. There was no other factor, circumstance or action by the Council that brought the employment relationship to its end, or that had that probable result. 28
• Mr Sadler’s employment ceased on 2 January 2022 due to the cessation of the Contract in accordance with its terms and the previous requirements of the LG Act, and he was not dismissed at the Respondent’s initiative. 29
• Therefore, Mr Sadler has not been dismissed in accordance with s.368 of the Act. His general protections application was not validly made and should be dismissed for lack of jurisdiction. 30
[11] Mr Sadler provided limited submissions opposing the Council’s objection. In his submissions and witness statement, he seeks to rely on the factual matters outlined in Mr Remington’s letters to the Council of 15 September 2021 and 8 October 2021 to support the submission that his employment ended by way of termination at the Council’s initiative.
[12] The uncontested evidence of Mr Prestage and Ms Weatherall includes the following relevant facts:
• In or about November 2016, the Council externally advertised for the role of Executive Manager Property Services and Facilities Management on its website and in The Age and Ballarat Courier newspapers, which confirmed that the role was “fixed term”.
• Mr Sadler applied for this role, progressed through the recruitment process and was ultimately successful and offered the role which was a Senior Officer role under the LG Act.
• Mr Prestage retrieved from Council’s files the Letter of Offer provided to Mr Sadler by the Council dated 15 December 2016 and signed by a previous CEO of the Council, Ms Justine Linley, confirming the fixed term nature of the role. 31 Ms Linley no longer works for the Council.
• Mr Prestage believes Mr Sadler was also provided with a formal Contract of employment with the Letter in December 2016. 32 Mr Prestage retrieved from Council’s records a copy of the prepared Contract, however he was unable to locate a signed version of the Contract.
• Based on the Council’s records, in or about June or July 2017, Mr Sadler sought to negotiate his redundancy entitlements under the Contract with the Director of Business Services, Mr Glenn Kallio. On 5 July 2017, Mr Kallio sent Mr Sadler an email confirming that the Council would insert a 12-month redundancy clause into the Contract (Email), to which Mr Sadler responded and acknowledged on the same day. Mr Kallio no longer works for the Council.
• Other than the Email, Mr Prestage could not locate any record which confirmed that the Contract was updated to include the redundancy entitlement, however, it appears that the Council and Mr Sadler continued to work in accordance with the terms of the Contract since that time.
• There are no other records on the Council’s file where Mr Sadler questioned or disputed any clause of the Contract, Letter of Offer or Email or where Mr Sadler has been given any expectation of ongoing employment with the Council after the expiry of his Contract.
• In or around June 2021, Ms Wetherall informed Mr Prestage that she had concerns regarding Mr Sadler’s behaviour in his role and as such, she would not be inviting him to enter into a new contract of employment upon expiry of the Contract in January 2022 on behalf of the CEO.
• Mr Prestage then assisted Ms Wetherall with preparing a letter for Mr Sadler confirming the decision that Mr Sadler would not be invited to enter into a new contract and therefore his employment would cease on the expiry date of the Contract, being 2 January 2022. 33 This was sent to Mr Sadler by email on 5 August 2021 so that he would have ample opportunity to complete a handover and consider his employment options.34
[13] Ms Wetherall’s evidence included the following:
“As City of Ballarat is a local government body, its functions and powers are currently regulated by the Local Government Act 1989 (Vic) (1989 LGA) which was progressively being replaced by the Local Government Act 2020 (Vic). Under the LGA, there are a number specific requirements in respect to appointing senior officers, including that their contract of employment must be no more than 5 years.
…
In my time at City of Ballarat, I have never expressly stated to Darren that his employment with City of Ballarat would be ongoing after the expiry of his contract, or that he would be invited to enter into a new contract following the expiry of his existing contract.
In or about June 2021, I became aware that Darren's contract was due to expire on 2 January 2022.
For reasons solely related to Darren's behaviour at work, I made the decision that City of Ballarat would not invite Darren to enter into a new contract upon the expiry of his existing contract on 2 January 2022. Evan as CEO supported my decision. I then instructed Andrew Prestage, Executive Manager People and Culture to prepare a letter to be sent to Darren informing him of the decision, which was sent to him on 5 August 2021 so that he would have time to finish any outstanding work and look for other employment if he wished.” 35
[14] The evidence given by Mr Sadler is brief, essentially relying on material in letters written by his legal representatives to the extent that they contain factual material. His statement includes the following:
“The factual matters that I base my allegation that I was dismissed by Council are outlined in letters from my solicitors to Council dated 15 September 2021 and 8 October 2021, which are annexed and marked DS-1 and DS-3 respectively, as well as my application to the Fair Work Commission. Both letters were drafted on my instructions and reviewed by me prior to being sent. The allegations of facts and denials of facts in those documents are, to the best of my knowledge, true and correct.” 36
[15] Having regard to attachments DS-1 and DS-3 and Mr Sadler’s application, as referred to in Mr Sadler’s witness statement, the following is what I understand to be a summary of the factual claims made by Mr Sadler having regard to paragraph [3] of his witness statement:
• He does not dispute that he signed the Letter of Offer.
• He cannot recall being provided with the relevant Contract referred to in the Letter of Offer.
• He agreed that there was agreement in mid-2017 to vary the Contract of employment to include a 12-month redundancy payment term.
• That at no time during the discussions which surrounded his acceptance of the Letter of Offer was the fact that his employment would terminate automatically upon expiry of the Contract discussed.
• That “representations” were made to the effect that he would remain an employee past the expiry date. 37
• Mr Sadler provides no evidence of any specific discussion of such representations. Rather, examples are given of requests to him to prepare plans for staffing and resourcing which had 5 and 10-year horizons.
• That the parties “arranged their affairs in accordance with the terms of the signed Letter of Offer, applicable legislation, Council’s own policies, customs, and practice and the enterprise agreement.”
• That his employment on a fixed term basis was in contravention of the Ballarat City Council Enterprise Agreement No 6 2013 (the Enterprise Agreement). 38
[16] It is not in dispute that Mr Sadler signed the signed Letter of Offer. That offer was clear in its terms that the offer was for a “fixed term position”. Read together with the terms of paragraph 5 in the Letter of Offer, it is clear the Contract would be effective from 3 January 2017 to 2 January 2022. It follows that the Contract will not be operative beyond that date.
[17] The evidence of Mr Prestage is that he believes that Mr Sadler was provided with a copy of the Contract in December 2016. 39 Mr Sadler’s evidence, as best as I can ascertain given the way his evidence is presented, is that that he “cannot recall” receiving it.40 There is no signed copy of the Contract in evidence. There is evidence, however, that there was an agreed variation to Mr Sadler’s Contract in July 2017.41
[18] On the balance of probabilities, I am satisfied that the Contract of employment at AP-4 was supplied to Mr Sadler at the time he commenced in the position. This finding is consistent with the evidence of Mr Prestage that a copy of the Contract was on the Council’s records. Moreover, the email exchange at AP-5 indicates that there was an agreed variation to the Contract during its operation. The response of Mr Sadler in that email exchange, where he is advised that a redundancy clause is to be inserted into his Contract is “Thankyou Glen”. This weighs towards a finding that Mr Sadler was well aware of the Contract that was being varied. The only evidence weighing against a finding that Mr Sadler did not receive a copy of the Contract when he signed the Letter of Offer is that he cannot recall receiving it. He simply does not remember. Therefore, on the balance of probabilities, I am satisfied that the Contract was supplied to Mr Sadler when he commenced in the position. For the same reasons, I am also satisfied that Mr Sadler accepted the terms of his employment through the specific performance of his role.
[19] I agree with the Council that the Letter of Offer:
“…clearly contemplates and indicates that there will be a contract of employment which it is intended the parties should execute and it is reasonable to assume that the Letter was only part of the terms under which the Applicant was engaged and that there was a contract which set out the entire terms of employment.” 42
[20] Furthermore, I also agree with the Council’s submissions that:
“Relevantly, the Federal Circuit Court in the matter of Tiago v John Hopkins Property Pty Ltd (Tiago), found that an employee may indicate agreement to the terms of a contract by taking the benefits offered and the general principle is that the performance of a contract after receipt of an offer is a means of accepting the offer by conduct. 43
Analogous with the findings in Tiago, in or about June or July 2017, the Applicant sought to vary his redundancy entitlement and the Respondent confirmed a 12 month redundancy clause would be inserted into his contract, to which the Applicant agreed by way of response email on 5 July 2017, thereby expressly agreeing to the terms of the Contract as varied. 44”45
[21] Also relevant to the consideration is the evidence as to representations, if any, that were made by the Council’s representatives that Mr Sadler would be invited to enter into a further contract of employment. The evidence on this point is clear. At its highest, Mr Sadler’s evidence is a vague assertion that representations were made to that effect. The examples given to bolster that claim, that he was asked to prepare plans for staffing and resourcing which had 5 and 10-year horizons on an “understanding” he would lead into the future, fall short of what one would consider a representation that he would be invited to enter a further contract. In contrast, the evidence of Ms Wetherall is that:
“In my time at City of Ballarat, I have never expressly stated to Darren that his employment with City of Ballarat would be ongoing after the expiry of his contract, or that he would be invited to enter into a new contract following the expiry of his existing contract.” 46
[22] I am not satisfied on the evidence that any representations were made by authorised Council representatives to Mr Sadler that he would be invited to enter a further contract.
[23] Mr Sadler’s evidence is that while he accepts that fixed term contracts are ubiquitous with Council employees, “seldom if ever do employment relationships cease on expiry of contract terms”, and that that he cannot recall a single instance of that happening. In contrast, Mr Prestage’s evidence is that:
“There was, and remains, no expectation that senior officers are invited to enter into new contracts, and this invitation was dependent on City of Ballarat’s needs, funding and budgets at the time. As the Executive Manager People and Culture, I am aware that senior officers at City of Ballarat have not been invited to enter into new contracts upon cessation of their current contract and the senior officers were and are aware that an offer of a new contract is not guaranteed.” 47
[24] I prefer the evidence of Mr Prestage, on this point. He is the person in the position of overseeing and managing all of the HR matters at the Council and is far better placed than Mr Sadler to give evidence on such matters.
[25] For a person to be dismissed, the Commission must be satisfied that either the person’s employment with their employer has been terminated on the employer’s initiative; or the person has resigned from their employment, but was forced to do so because of conduct, or a course of conduct, engaged in by their employer (s.386(1) of the Act).
[26] Having determined that the terms of the Contract in AP-4 set out the terms of employment of Mr Sadler, it is clear from the terms of that the Contract and the Letter of Offer they are unequivocal in that Mr Sadler was employed for a limited time period and there was no expectation or commitment that arises from these documents to renew his employment after this time.
[27] So much is clear from the terms of clauses 4.1, 4.2, 19, 20 and 28.4 of the Contract which applied to Mr Sadler and are set out below:
“4. Advertisement and reappointment
4.1 Advertisement of position
The parties expressly acknowledge that:
4.1.1 the Officer's position may, at the discretion of the Chief Executive Officer, be externally and internally advertised before the Expiry Date;
4.1.2 if the Officer is re-appointed (whether following the Chief Executive Officer advertising the position or not), the term of the employment may only be extended under a new contract; and
4.1.3 the terms of this Agreement do not contain or create an option for renewal exercisable by either party.
4.2 Re-appointment
If the Chief Executive Officer is, in her absolute discretion, willing to continue the Officer's appointment and employment under a new contract, the terms and conditions of that new contract must be agreed upon before the Expiry Date, failing which the Officer's appointment and employment will terminate when this Agreement expires pursuant to clause 2.
…
19. Termination of employment on Expiry Date
19.1 The Officer acknowledges that, unless the Officer's appointment and employment have been extended under a new contract under clause 4.2, the Officer's appointment and employment will terminate on the Expiry Date.
19.2 Under no circumstances will the Officer's employment or appointment be continued beyond the Expiry Date unless the Chief Executive Officer offers and the Officer accepts a new contract.
19.3 Upon expiry of this Agreement on the Expiry Date, under no circumstances will the Council be liable to pay (whether under clause 18.2 or otherwise) severance monies as if the Officer's position were redundant.
20. Understanding
The Officer understands and agrees that:
20.1 by signing this Agreement, the Officer voluntarily agrees to the termination of the Officer's employment and appointment on the Expiry Date; and
20.2 the Officer's agreement to the termination and expiry provisions has not been produced by duress or coercion on the part of the Chief Executive Officer, the Council or its agents.
…
28.4 Entire agreement
28.4.1 This Agreement:
(a) constitutes the entire agreement between the Council and the Officer; and
(b) supersedes and cancels any contract, deed, arrangement, related condition, collateral arrangement, condition, warranty, indemnity or representation imposed, given or made by the Council or the Officer (or an agent of either of them) prior to entering into this Agreement.
28.4.2 The Officer has not been subjected to any duress in connection with entering into this Agreement.
28.4.3 The Officer acknowledges that in accepting employment with the Council the Officer has not relied on any representations regarding the Officer's employment made by the Council (or its agents or employees) other than matters expressly set out in this Agreement.”
[28] The terms of the Letter of Offer and the Contract are consistent with the terms of s.95A of the LG Act which applied at the relevant time and regulated the employment of local government Senior Officers by contract.
[29] I do not accept the submission that the Contract was made in contravention of the Enterprise Agreement. Part A of the Enterprise Agreement includes a specific provision which allows for Senior Officers to be employed under a maximum term contract. 48
[30] Further, there is not an unqualified right to terminate the Contract prior to its expiration. This is in contrast to the position in Navitas where the majority found the unqualified right for either party to terminate the contract on four weeks written notice meant that the contract was therefore not a contract for a specified period. 49 This is not the situation here. While the employee is entitled to terminate the contract by way of notice, the employer’s right to terminate is qualified to reasons related to performance capacity or conduct or in the event of redundancy. This is not an unqualified right to terminate.
[31] By virtue of the Council’s advertisement for the Executive Manager Property Services and Facilities Management which clearly stated the role was ‘fixed term’, Mr Sadler was aware, or ought to be aware, that the position for which he applied was not ongoing.
[32] The terms of the Contract and Letter of Offer are also plain that Mr Sadler’s employment was for a specified period in accordance with the LG Act. The terms of the Contract and Letter of Offer reflected the genuine agreement between Mr Sadler and the Council that the employment relationship would not continue after expiry in accordance with the LG Act, unless otherwise offered a new contract of employment by the Council. In these circumstances the decision of the Council not to offer another contract of employment is not relevant to the question of whether there was a termination of employment at the initiative of the employer.
[33] I am satisfied on the evidence that Mr Sadler was not given any reassurances or representations by any of the Council’s representatives that he would be invited to enter into a new contract of employment upon cessation of the Contract.
[34] Other than the CEO or their nominated delegate, none of the Council’s representatives had the authority to invite a senior officer under the LG Act to enter into a new contract of employment. Ms Wetherall, the Council’s current Director Infrastructure & Environment and CEO’s delegate, has provided clear evidence that she never gave any reassurances or representations that Mr Sadler would be invited to enter into a new contract of employment. Mr Sadler gave vague evidence as to purported representations that he would be invited to enter a new contract. As set out earlier, I am not satisfied the evidence supports a finding that there were representations made that another contract would be offered.
[35] Mr Sadler had not been engaged with the Council in a Senior Officer or maximum term capacity prior to his commencement in the Executive Manager Property Services and Facilities Management role in accordance with the Contract. Therefore, there was no practice on the part of the Respondent to simply “roll over” or renew Mr Sadler’s contract and the relevant findings in respect to sequences of maximum term contracts in Navitas may be distinguished. Nor was there an unqualified right to terminate the contract, further distinguishing this matter from the decision of the majority in Navitas.
[36] In view of the above, there was no contractual or other obligation or expectation that the Mr Sadler’s contract would be renewed and that his employment would be ongoing.
[37] On 5 August 2021, the Council confirmed in writing that Mr Sadler’s maximum term contract would not be renewed, he would not be invited to enter into a new contract with the Council, and his employment would therefore cease on 2 January 2022. This was not a termination at the Council’s initiative, but rather confirmation that the Contract would come to an end in accordance with its terms.
[38] There was no other factor, circumstance or action by the Council that brought the employment relationship to an end or that had that probable result. There is nothing to indicate that the employment relationship was contemplated to extend beyond the expiry of the Contract.
[39] Proceeding on the basis that the definition of “dismissed” in s.386 of the Act applies to applications under s.365, it is clear that Mr Sadler’s employment relationship with the Council has not been terminated at the employer’s initiative. 50 Rather, Mr Sadler’s employment ceased on 2 January 2022 due to cessation of the Contract in accordance with its terms. The employment relationship came to an end by reason of agreement between the parties and was not terminated at the initiative of the employer. The exclusion in s.386(2)(a) applies.
[40] The jurisdictional objection is upheld, and the application is dismissed.
COMMISSIONER
Determined on the papers.
Printed by authority of the Commonwealth Government Printer
<PR741180>
1 See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).
2 Attachment AP-2.
3 Attachment AP-3.
4 Attachment AP-4.
5 Attachment AP-5.
6 Witness Statement of Ms Wetherall at [8]-[9]; AP-6.
7 Attachment DS-1.
8 Attachment DS-2
9 Attachment DS-3
10 [2020] FCAFC 152
11 Respondent’s Outline of Submissions at [15].
12 Ibid at [20].
14 Respondent’s Outline of Submissions at [21]-[22].
15 [2015] FCA 252
16 Respondent’s Outline of Submissions at [23].
17 (1996) 187 CLR 416.
18 Respondent’s Outline of Submissions at [24].
19 [2015] FCCA 2697.
20 Respondent’s Outline of Submissions at [25].
21 Ibid at [26]-[28].
22 Ibid at [29]-[34].
23 [2014] FCCA 2822.
24 Ibid at [35]-[26].
25 Ibid at [37]-[42].
26 Ibid at [49].
27 Ibid at [47].
28 Ibid at [50].
29 Ibid at [51].
30 Ibid at [52].
31 Attachment AP-3.
32 Attachment AP-4.
33 Attachment AP-6.
34 Witness Statement of Mr Prestage at [16], [18]-[21], [24], [26]-[30].
35 Witness Statement of Ms Wetherall at [3], [7]-[9].
36 Witness Statement of Mr Sadler at [3].
37 Attachment DS-1 at [21].
38 Form F8 at Q2(iii).
39 Witness Statement of Mr Prestage at [21].
40 Attachment DS-1.
41 Attachment AP-5.
42 Respondent’s Outline of Submissions at [34].
43 Tiago v John Hopkins Property Pty Ltd [2014] FCCA 2822 at [26]-[27].
44 Attachment AP-5.
45 Respondent’s Outline of Submissions at [35]-[36].
46 Witness Statement of Ms Wetherall at [7].
47 Witness Statements of Mr Prestage at [13].
48 Ballarat City Council Enterprise Agreement No 6 2013 at clause 5.5.
49 [2017] FWCFB 5162 at [96].
50 See Saeid Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162.