Fair Work Act 2009
s.365—General protections (consent arbitration)

Glenn Charles Baughen
v
Bawinanga Aboriginal Corporation
(C2020/6851)

Application to deal with a general protections dismissal by consent arbitration.

[1] Mr Glenn Charles Baughen (the Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dismissal dispute. The Applicant was employed on a contract by Bawinanga Aboriginal Corporation (the Respondent) as a Plumber/Gasfitter on a full-time basis.

[2] The Respondent is a not-for-profit Aboriginal Corporation based in Maningrida, a remote Aboriginal community located in Arnhem Land approximately 500 kilometres east of Darwin. The Respondent’s aim is to promote the rights of Aboriginal Australians to live on their ancestral country, and it provides a range of services to support community development and ensure resident welfare. The Respondent is heavily reliant on funding to achieve its objectives, and such funding is cyclical and not guaranteed. The Respondent employs approximately 180 employees.

[3] The initial application was filed on 5 December 2019 (the Application), outside of the 21 days allowable for filing an application under s.365 of the Act, however an extension of time for filing was granted on 26 August 2020, by Commissioner Yilmaz, 1 (the Extension of Time Decision). In the Extension of Time Decision, the Commissioner found that the Applicant’s final day of employment was 11 November 2019.

[4] The Applicant subsequently filed a Form F8B application requesting the matter be dealt with by consent arbitration, and upon the Respondent consenting to such arbitration, the matter was subsequently allocated to Commissioner Spencer on 9 September 2020.

[5] On 14 September 2021, Commissioner Spencer delivered her decision in the consent arbitration (the First Instance Decision). 2 The First Instance Decision was appealed, and thereafter permission to appeal was granted. The appeal was upheld, and the First Instance Decision was quashed and remitted for rehearing by the Commission as currently constituted.3

Consent arbitration

[6] Section 369 of the Act empowers the Commission to deal with general protections dismissal disputes by consent arbitration. Sub-section 369(1) sets out the requirements which must be met before the Commission may deal with such a dispute by arbitration. There was no dispute between the parties that those requirements had been met. The parties notified the Commission that they had agreed to the Commission arbitrating their general protections dismissal dispute by filing a completed Form F8B.

The Applicant's Claims

[7] The Applicant alleged that adverse action was taken against him in the form of denying him a pay rise in June 2019, and then terminating his employment on 25 October 2019, or, in the alternative, by not renewing his employment contract. There was a dispute between the parties as to whether the Applicant’s contract was for a one or two-year period.

[8] The Applicant alleged that the adverse action occurred after, and because, he made various workplace inquiries, and that adverse action was in contravention of the general protections provisions in Part 3 – 1 of the Act.

[9] Regarding the denied pay rise, the Applicant alleged the Respondent took that adverse action because the Applicant exercised a workplace right to raise a concern on 24 May 2019 regarding pay rates on public holidays.

[10] Regarding the dismissal or, in the alternative, the contract non-renewal, the Applicant alleged that the Respondent took that adverse action because the Applicant exercised a workplace right to raise a concern in October 2019, regarding payment of an infringement notice.

The Respondent’s Answer

[11] The Respondent contended that:

(a) The terms of the Applicant's contract were a genuine agreement between the parties that the employment relationship would not continue beyond its expiry in November 2019. The Applicant's employment with the Respondent came to an end due to the effluxion of time, not at the initiative of the Respondent, and there was no dismissal. The Commission does not have the jurisdiction to deal with the Application because the Applicant was not dismissed within the meaning of s.386(1)(a) of the Act;

(b) The Commission would not be satisfied that the actions alleged are 'adverse actions' within the meaning of the Act; and

(c) In the event that the Applicant does discharge their burden regarding the existence of workplace rights and adverse action, the Commission would be satisfied that the actions of the Respondent which the Applicant alleges constituted adverse action, were not taken because of any of the proscribed reasons alleged.

The Issues to be Determined

[12] The issues for determination in this matter are:

(a) What were the terms of the Applicant’s contract? Particularly, was the contract for a one or two year term?

(b) Was the Applicant dismissed by the Respondent?

(c) Did the Applicant exercise, or propose to exercise, a 'workplace right' within the meaning of that phrase at s.341(1) of the Act?

(d) Were the actions of the Respondent 'adverse action' within the meaning of that phrase at s.342(1) of the Act? and

(e) If adverse action is found in answer to (d) above, was that adverse action taken because of the workplace right or exercise/purported exercise of that workplace right?

[13] Issues (a) and (b) involve the determination of the jurisdictional objection that the Applicant was not dismissed at the initiative of the Respondent. Issues (c), (d) and (e) involve determination of the Applicant’s general protections claim.

The Evidence

[14] In support of his case, the Applicant relied on his own Statement and the Statement of his partner, Ms Rose Cooper, both dated 8 February 2021, together with two bundles of documents.

[15] The Respondent relied on the Statements of Ms Ingrid Stonhill, the former Chief Executive Officer of the Respondent, dated 14 March 2022, and Ms Rachel Dobbie, the former Human Resources Manager of the Respondent, dated 9 March 2022. Both Statements attached numerous annexures.

[16] There was cross-examination of all deponents.

The Facts of the Case

The Applicant's employment

[17] On the 5 October 2018, the Applicant contacted the Respondent regarding a position as a Plumber. On the 24 October 2018, the Applicant was flown to Maningrida for a meeting. He was handed an employment contract (the Contract) that had been signed by Mr Karl Dyason on 24 October 2018. The relevant parts of the Contract were as follows:

“1. Status of Employment

Subject to your acceptance of the terms and conditions of this Agreement, your employment will commence from 12th Nov 2018, and continue for two years unless:

a) It is terminated before that date in accordance with the termination provisions of the Bawinanga Aboriginal Corporation Enterprise Agreement; or

b) The Agreement is extended by mutual agreement in writing.

Any extension to this Agreement will be dependent on continued funding for the position. The parties may agree to extend the Agreement, but they are not obliged to do so. If the Agreement is extended, these conditions will apply, unless replaced.

2. Conditions of Employment

Unless varied by the terms of this Agreement, your conditions of employment are determined by the Bawinanga Aboriginal Corporation Enterprise Agreement.

…

15. Termination

You may terminate your employment with Bawinanga Aboriginal Corporation at any time by giving notice as per the Bawinanga Aboriginal Corporation Enterprise Agreement.

Bawinanga Aboriginal Corporation may terminate your employment on the same period of notice as contained in the Bawinanga Aboriginal Corporation Enterprise Agreement.

…

22. General

The terms and conditions set out above form the entire agreement between us as to your employment and replace all other prior representations, communications and agreements in relation to your employment. They can only be altered in writing signed by both you and Bawinanga Aboriginal Corporation.

If any provision of this Agreement is varied, all other terms and conditions continue to apply unless expressly replaced in writing.”

[18] On the 3 November 2018, in response to follow up emails from the Respondent, the Applicant and his partner Ms Cooper emailed questions regarding the Contract and living in Maningrida. On the 5 November 2018, Ms Dobbie responded to that email. The relevant parts of those emails are as follows, with those parts inserted by Ms Dobbie in bold print:

“I have discussed with my partner the starting date which is expected to be 12th November 2018.

I had overlooked her specialist appointments here in Darwin, these will be completed on Thursday 15th November.

Could you look at changing the commencement date to Monday 19th November 2018? I have mentioned below that we will travel to Maningrida using our own vehicle.

Thanks - we would prefer to stick to the agreed date of 12 November, but could amend to 19 November at the latest. We would like to get this set soon as there is another candidate and if you are accepting the offer, it would be good to let him know today.

1.STATUS OF EMPLOYMENT:

Subject to acceptance a 2 year term.

Will the Corporation consider a 1 year contract?

With the options of extending another year or unless indicated by clause a) orb) of this contract?

Yes a one year contract could be agreed - but we would only pay for fuel for vehicle relocation. Not additional charges on such a short term.

…

7.REMUNERATION:

During my visit to Maningrida Lance discussed with me a possible review of the base salary being adjusted, once I have successfully completed the 3 month probationary period.

Yes - we would review after the three months probation. We also have a 2% incremental rise each July.

My understanding of this conversation is that, the offered base salary will be increased to reflect my years of experience and the skills I bring to this position.

Could this be clarified?

If my interpretation is correct could this be amended to the contract.

I have noted, that during the interview and visit to Maningrida, we did discuss pay rate and expectations. I was under the impression the rate offered was within your expectations. If I misunderstood, please let me know.

But please keep in mind that we are a not-for-profit. We are strictly regulated via ORIC and all the requirements associated with Government Grants, so budgets can be very tight.

Under this clause it is mentioned that from "time to time" this package may be reviewed?

How often does this occur in a two year period, what would initiate a review besides a remuneration increase?

There is a 2% rise every July. There is a review at end of probation - 3 months. And a performance review annually. This does not automatically mean a pay increase as 2% increase is already factored in each year.

Please could you send me a copy of the policy mentioned "Bawinanga Aboringinal Corporation Policy".

Remuneration policy is as above:

There is a 2% rise every July. There is a review at end of probation - 3 months. And a performance review annually.

…

11.RELOCATION EXPENSES:

under clause b) after the two year period the corporation will meet relocation costs, does this include relocating from Maningrida to another location? If two years or longer is completed, we do offer Repatriation costs. The contract stipulates the start/end location. I think yours was Darwin. What is the maximum level of relocation expenses the corporation will meet? If a two year contact is completed, we would barge a small container load and pay fuel costs. The accommodation is already fully furnished so people really only need their clothing, linen and some personal effects. We would not pay to move a full household. A small container is around 7 Cubic M or two large pallets. 1.2m wide x 1.8m high.

Using our own vehicle to relocate, are we able to claim fuel cost upon providing the receipts? Yes

How soon after will those receipts be reimbursed? In the next payment run - approx 3-5 working days.

We would like to use our own bed and washing machine during the 3 month probationary period.

Can I ask that these items be transported to Maningrida, if this is available? Not if the contract is only 1 year. If 2 years, we would cover the small container as well, so if the items fit in 7 Cubic Metres, you could certainly send them across.

We can arrange for those items to be at the location ready to be transported.

At the date and time indicated by the office.”

[19] Ms Dobbie stated that at this time she had conversations with Mr Lance Conway-Jones, the General Manager Housing, Homelands and Construction, who was having separate discussions with the Applicant. In her statement, Ms Dobbie stated:

“Lance told me that during a phone call with Glenn, Glenn had accepted the offer of employment on the basis of a one year term.”

[20] Mr Lance Conway-Jones was not called as a witness in the proceedings.

[21] On 6 November 2018, the Applicant sent an email to Ms Dobbie advising:

“Have spoken to Lance and accept the position offered, will bring signed contract and other forms out with me next week.”

[22] On 16 November 2018, the Applicant and Ms Cooper arrived in Maningrida with some furnishing using a hired furniture trailer. On 19 November 2018, the Applicant commenced work, and handed Mr Conway-Jones the Contract that he had signed and dated 16 November 2018. Mr Conway-Jones took a copy of the Contract and handed the Applicant back the original. That Contract had a handwritten notation to clause 1 “Status of Employment,” that had been inserted by Ms Cooper, 4 as follows:

[23] On 20, 23 and 27 November 2018, Ms Dobbie emailed Mr Conway-Jones requesting a copy of the Applicant’s paperwork, as she had not yet received a copy of the executed Contract. On 26 November 2018, Ms Dobbie emailed Patricia Hartshorn, then the Office Manager, Housing and Homelands, asking for a copy of the Applicant’s Contract. Shortly thereafter Ms Dobbie was provided with a scanned copy of the Contract, which included the same handwritten annotation as that on the Contract provided by the Applicant on 19 November 2018.

[24] On 7 December 2018, the Applicant and Ms Dobbie met at the Respondent's offices regarding the Applicant’s relocation expenses. The expense form which was signed by the Applicant claimed relocation costs of $635.82, which it described as “basic 1 year.” 5 There are two versions of what occurred at this meeting:

(a) Ms Dobbie claims she asked the Applicant to confirm that the term of the Contract would be for one year. In response she stated the Applicant said words to the effect of "just the one year contract because we want to see if my partner can settle well in Maningrida", and said he could earn more money in the mines. Ms Dobbie said she asked the Applicant to initial the Contract next to where "1 year" was written, and the Applicant initialled the Contract as requested, and Ms Dobbie signed the bottom of the page and dated it "7/12".

(b) The Applicant claims he visited Ms Dobbie at the main office, handed her the reimbursement form for relocation, which she copied and handed back to him. The Applicant also signed his superannuation form. As he was leaving Dobbie asked that he sign the bottom of the copy of the reimbursement form, which he signed before leaving. The Applicant denies initialling the notation on the Contract, and alleges the initials are a forgery.

The Christmas Closure Issue

[25] On or about 7 December 2018, at a toolbox meeting Mr Conway-Jones informed employees present that the Respondent would be closing for two weeks over the Christmas break, and that employees would have to take leave over the period. The Applicant expressed dissatisfaction about not being paid for two weeks when there had been a rush for him to start work in November, and he had not accumulated any leave. Thereafter, on about 11 December 2018, Mr Conway-Jones confirmed that the Applicant was able to work through the Christmas shut down.

The Housing Issue

[26] Subsequently, a meeting occurred between the Applicant, Ms Cooper, Ms Stonhill and Ms Dobbie to discuss the Applicant’s housing and the possibility of moving from the temporary accommodation to permanent accommodation. The Applicant and Ms Cooper put that meeting as occurring in February 2019, and deciding that when suitable accommodation became available, they would move. Ms Stonhill and Ms Dobbie, however, say the meeting occurred in April 2019, and during the meeting Ms Cooper said “Glenn and I don't want to move to another house. It's too much effort when we'll only be in Maningrida for around six more months”. And the Applicant said “we only have 6 months left. It’s not worth moving.”

The Public Holiday Payment Issue

[27] On 24 May 2019, the Applicant asked his supervisor, Mr Callem Free, to look into an alleged 0.4 hour underpayment for public holidays. Mr Free contacted Ms Dobbie, and Ms Dobbie then sent an email to the Applicant, copied to others, in the following terms:

“Hi Glenn

I have been advised by Housing that you request compensation for the Public Holidays - of 19/4, 22/4, and 25/4 that are paid as 7.6 hours - when your work days are 8 hours. Simon has confirmed that Monday ­ Thursday, your work is averaged at 8 hours. And Fridays your work us [sic] averaged at 6 hours.

So 22/ 4 - was a Monday - and based on 8 hours you are claiming we owe you .4 of an hour. 25/ 4 was a Thursday - and based on 8 hours you are claiming we owe you .4 of an hour.

19/ 4 was a Friday - based on average of 6 hours, you were overpaid 1.6 hours.

We also gifted you a full 7.6 hours on 31 December, to make up for these slight anomalies - and so our Payroll staff is not caught up making continual petty adjustments.

If your preference is to work it out as above, I will calculate across the full year, but I will also be removing the gifted day. In the full year there are 11 Public Holiday - one falling on a Friday. So that is 4 hours underpaid (10 days at .4), and 9.2 hours overpaid (1 day at 7.6 and one day at 1.6). You were actually going to be 5.2 hours ahead in total for the year.

We have tried to make the situation fair by gifting an extra day to all staff. With that in mind, this type of request seems unnecessary and intended to create a problem that does not exist. This behaviour does not fit with the values of BAC.

Simon - please keep this in consideration for the future.”

The Pay Increase Issue

[28] On 14 March 2019, Mr Simon Turner, then the Acting Manager of Housing, Homelands and Construction, emailed Ms Dobbie noting that the Applicant had said he was entitled to a pay level review on completion of his three-month probationary period. Mr Dobbie responded that the Applicant’s contract provided a three-month probationary period and that, although not prescribed by his employment contract, she had told the Applicant that the Respondent would consider whether an additional pay point could be applied at the end of the probationary period. At that time Ms Stonhill determined that the Applicant would not receive a pay rise.

[29] The Applicant made further enquiries regarding whether his probationary period had been extended and requesting a pay rise on 28 May and 4 June 2019. In response, Mr Turner sent the Applicant an email on 4 June 2019, in the following terms:

“Glenn,

I don’t think your probationary period got extended. Regardless, it has now finished.

I have asked about your pay review along with other Housing staff members. I was told that as your role has not changed, there will not be a pay increase. Bare in mind I believe every BAC staff member receives a 2% pay increase from the first of July.

In regards to tool allowance, could you please provide me with a list of your personal tools that are in the work truck.”

[30] Ms Dobbie also sent the Applicant an email on 4 June 2019, in the following terms:

“Thanks Simon.

You are correct. No extension was made to probation period. The pay rate was reviewed against NT skills rates, CEO’s impression and whether Glenn had proved to be an exceptional staff member that went above and beyond – and all areas at all times. On consideration it was decided current rate was appropriate for role.

A 2% increase will be processed in July.”

The Tool Allowance Issue

[31] As referred to in Mr Turner’s email above, an issue of Tool Allowance was raised by the Applicant. On 4 June 2019, the Applicant sent an email to Mr Turner regarding the tool allowance which he claimed was not paid. Mr Turner requested the Applicant provide him a list of his personal tools that were in the work truck. On the 10 June 2019, the Applicant emailed to Mr Turner a list of personal tools used, and on 27 June 2019, Mr Turner replied advising “I think you should save your tools and anything you need to replace, get from housings stock.”

[32] On 6 June 2019, the Applicant was given an occupancy agreement to sign by 14 June 2019 and asked to change a power connection. He did not complete the occupancy agreement, or transfer the power to his name, because the power was on a shared meter and the accommodation was temporary.

The Vehicle Issue

[33] On 29 September 2019, the Applicant was issued with another vehicle, a Land Cruiser, by Mr Turner and Mr Free because a second plumber had been employed. The work vehicle he had been issued at the start of 2019 was given to the second plumber. On 2 October 2019, the Applicant was pulled over by Police at the end of a workday and issued a $840 fine for operating an unregistered vehicle. The registration of the vehicle had expired six months prior. The Applicant did not want to pursue this incident with the Respondent, however Ms Cooper agitated the issue with Mr Arts, the Manager - Corporate Services of the Respondent, on 4 and 30 October 2019. The Respondent eventually offered to pay half the fine.

The Applicant's Termination

[34] On 5 August 2019, as part of her role as Human Resources Manager, Ms Dobbie printed a list of upcoming expiring contracts. That list noted that the Applicant’s employment was due to finish on 12 November 2019, and included Ms Dobbie’s hand written notes as follows:

“No ST - Release if no RT/3. End Sept. 2W. Funding.”

[35] It was the evidence of Ms Dobbie, which I accept, that this note meant that Simon Turner had said "no" to a renewal of the Applicant's employment contract if the "Room to Breathe" funding did not come through before the end of September 2019, in which case the Applicant would be provided with two weeks notice at the conclusion of his employment contract due to lack of funding.

[36] At the time the Respondent was still hoping to receive funding from Room to Breathe. If this funding came through it was likely that two plumbers would be required at Maningrida for at least 18 months. On 11 September 2019 an additional plumber was hired by the Respondent. This plumber commenced on site at Maningrida the following month.

[37] Ultimately the funding from Room to Breathe did not come through and due to the lack of funding, Ms Stonhill eventually determined that four staff within the Housing Department would not be offered a contract renewal. This included the Applicant, his supervisor Mr Turner, a welder, and a carpenter. Ms Stonhill gave evidence that the decision not to renew the Applicant’s contract was made based on clause 1 of his employment contract which provides:

“Any extension to this Agreement will be dependent on continued funding for the position. The parties may agree to extend the Agreement, but they are not obliged to do so.”

[38] On 25 October 2019, Ms Stonhill signed and issued a letter to the Applicant confirming that his employment would conclude on 11 November 2019, and that he would not be required to work the two week notice period. The Applicant was handed the termination letter by Mr Free that day.

[39] On 28 October 2019, the Applicant attended work and was approached by Mr Free who advised that HR had informed him that if the Applicant turned up to work, he should be sent home and not allowed back on site.

Consideration

[40] Each party filed voluminous submissions in this matter. While I do not repeat those submissions in this decision, I have considered all submissions in the course of my determination.

[41] As noted above, the issues for determination in this matter are:

(a) What were the terms of the Applicant’s contract? Particularly, was the contract for a one or two year term?

(b) Was the Applicant dismissed by the Respondent?

(c) Did the Applicant exercise, or propose to exercise, a 'workplace right' within the meaning of that phrase at s.341(1) of the Act?

(d) Were the actions of the Respondent 'adverse action' within the meaning of that phrase at s.342(1) of the Act? and

(e) If adverse action is found in answer to (d) above, was that adverse action taken because of the workplace right or exercise/purported exercise of that workplace right?

(a) What were the terms of the Applicant’s contract?

[42] The Applicant correctly refers to the Full Bench decision of the Australian Industrial Relations Commission in Re Advanced Australian Workplace Solutions Pty Ltd, 6 where that Full Bench observed:

“[49] The elements of a contract are stated in Macken, McCarry and Sappideen’ ”The Law of Employment” (4th Edition, 1997 by the Hon James Macken, Paul O’Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen) a text to which reference was made both before Commissioner Simmonds and us, as follows (page 74):

“The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:

1. There must be an “intention” between the parties to create a legal relationship the terms of which are enforceable.

2. There must be an offer by one party and its acceptance by the other.

3. The contract must be supported by valuable consideration.

4. The parties must be legally capable of making a contract.

5. The parties must genuinely consent to the terms of the contract.

6. The contract must not be entered into for any purpose which is illegal.””

[43] The offer that was made to the Applicant on 24 October 2018, and the terms to which he consented, were relevantly for a two year term. The handwritten notation of “1 year” by Ms Cooper was insufficient to vary that offer and the subsequent consent.

[44] Insofar as the Respondent relies upon Ms Dobbie stating that she had conversations with Mr Conway-Jones, and her statement that “Lance told me that during a phone call with Glenn, Glenn had accepted the offer of employment on the basis of a one year term,” the Applicant correctly notes that the Respondent failed to call Mr Conway-Jones, and as such I should draw an inference that the evidence of Mr Conway-Jones would not have assisted the Respondent. 7 I accept that submission, draw the necessary inference arising from the failure to call Mr Conway-Jones, and reject Ms Dobbie’s evidence regarding what Mr Conway-Jones allegedly said to her.

[45] I accept that both the Applicant and the Respondent were exploring the possibility of a one year contract, and that possibility arose at the instigation of the Applicant, however the offer and the terms to which the parties consented to contract had not been varied by 24 October 2018.

[46] That, however, was not the end of the dealings between the parties regarding the terms of the Contract. On 19 November 2018, Ms Dobbie was provided with a scanned copy of the Contract, which included the handwritten annotation as that on the Contract provided by the Applicant.

[47] Thereafter, on 7 December 2018, the Applicant and Ms Dobbie met at the Respondent's offices regarding the Applicant’s relocation expenses. As noted above the Applicant and Ms Dobbie gave differing evidence of what occurred at that meeting. I prefer and accept the evidence of Ms Dobbie that she asked the Applicant to confirm that the term of the Contract would be for one year, to which he responded "just the one year contract because we want to see if my partner can settle well in Maningrida." The Applicant then initialled the Contract next to where "1 year" was written, and Ms Dobbie signed the bottom of the page and dated it "7/12". Those actions of the Applicant and Ms Dobbie constituted a variation of the terms of the Contract pursuant to its terms, being in writing and signed by both parties. I preferred the evidence of Ms Dobbie regarding the events of 7 December 2018 because:

(a) I observed each witness give evidence and preferred the evidence of Ms Dobbie where there was conflict due to her candour;

(b) While the Applicant asserted that his initials were a forgery, I note they were generally consistent with his initials, and even signature, contained elsewhere in the proceedings; 8

(c) It was consistent with Ms Cooper’s handwritten note on the Contract, and the expense form which was signed by the Applicant claimed relocation costs of $635.82, which it described as “basic 1 year”; and

(d) Was consistent with the subsequent conduct in the meeting regarding the housing issue that occurred in April 2019, when Ms Cooper said “Glenn and I don't want to move to another house. It's too much effort when we'll only be in Maningrida for around six more months”. And the Applicant said “we only have 6 months left. Its not worth moving.”

[48] Regarding the last two reasons for preferring the evidence of Ms Dobbie outlined above, while I accept that as a general proposition, once a contract is formed then evidence of the subsequent conduct of the parties is not admissible to prove the meaning of the agreed terms, 9 evidence of post-contractual conduct is admissible on the question of whether a contract is varied.10

[49] I find that the Contract was formed in the terms of the offer that was made to the Applicant on 24 October 2018, and was subsequently varied as to its duration on 7 December 2018. There was no ambiguity as to the terms of the Contract at any time.

(b) Was the Applicant dismissed by the Respondent?

[50] Section 365 of the Act requires the Commission determine a dispute about the fact of a dismissal prior to exercising powers conferred on it by sections 368 and/or 369. Section 386(1) of the Act relevantly provides that a person is dismissed only if the person's employment 'has been terminated on the employer's initiative.'

[51] The Application alleges various contraventions of the general protections contained in Pt 3-1 of the Act involving dismissal. The Commission has jurisdiction to entertain the Application only if the Applicant has been dismissed (Coles Supply Chain Pty Ltd v Milford 11).

[52] The Respondent disputes the Applicant’s assertion that his employment terminated on the Respondent’s initiative. If the Respondent’s contention is correct, it follows that the Applicant does not have standing to bring the Application under s.365 of the Act and the Commission therefore does not have jurisdiction either to deal with the dispute under s.368 or s.369 of the Act.

[53] Where an employment relationship is governed by a time-limited or outer limit contract, and the employment relationship terminates as a result of the expiry of that contract, then absent any vitiating factors, the employment will have terminated by agreement, and not at the initiative of the employer. 12 Vitiating factors may include (among other things) circumstances where the employee entered into the contract as a result of misrepresentation or misleading conduct of the employer, the employment contract was entered into by the employee under duress or coercion, or the employee lacked legal capacity to make the contract.13

[54] The Applicant submitted that he was dismissed by the Respondent, and that there was no agreement in place for an end date in the Contract. The Applicant submitted that a contract subject to further funding for renewal is not a contract which could be said to come to an end without the initiative of the employer. 14 The Applicant also submitted that the contra proferentum rule prevented any ambiguity in the Contract being resolved in the Respondent’s favour.

[55] The Applicant further submitted as follows:

“In my case my employment is not under a contract of employment for a specified task or specified project because:

i. no task and nor any specified project was specified in my employment agreement and, in any case,

ii. the employment agreement provided for an unconditional right to terminate with notice periods, and

iii. my employment did not terminate on completion of a task and nor a specified project as per the definition of fixed term employee in clause 13.5 Exhibit 1 The BAWINANGA ABORIGINAL CORPORATION ENTERPRISE AGREEMENT 2017 [ae426649].”

[56] The Respondent submitted that the Applicant’s employment was terminated upon the expiry of a maximum term of the Contract, and accordingly as the Applicant has not been dismissed, the Commission lacks jurisdiction to deal with the Application. The terms of the Applicant's employment contract represented a genuine agreement between the parties that the employment relationship would not continue beyond its expiry in November 2019.

[57] Further, the Respondent submitted that the circumstances of the employment relationship reflected the maximum term nature of the relationship. The Respondent is a not-for-profit Aboriginal Corporation and is heavily reliant on funding in order to fulfil its objectives. As a result, the staffing needs of the Respondent fluctuate depending on receipt of funding.

[58] It is clear, as I have found above, that the parties comprehensively committed the terms of the employment relationship to the written form of the Contract, and that the Contract, as varied, is a maximum term commencing on 12 November 2018, concluding after one year. The terms of the Contract are clear and unambiguous, and so there is no need to consider the contra proferentum rule. The Contract confirms the correct characterisation of the relationship is that of a maximum term contract.  15 The express terms of the Contract must be given effect unless contrary to statute.16

[59] While the Contract was terminable during its term on notice, I accept that due to a combination of funding concerns and the Applicant's previous indications that he did not wish to stay in Maningrida beyond the expiry of the Contract, between 5 August and the end of September 2019, the Respondent determined that it would not offer the Applicant another contract.

[60] I am satisfied that the Applicant's employment came to an end due to the effluxion of time, and not at the initiative of the Respondent. I do not have the jurisdiction to deal with the substance of the Application because the Applicant was not dismissed within the meaning of s. 386(1)(a) of the Act. For that reason, the Application should be dismissed.

[61] However, considering the history of the decisions by this Commission regarding the Application, and for completeness, I will consider the balance of the issues in this matter through the prism of an assumption that the Applicant was in fact dismissed as alleged by the Applicant.

(c) Did the Applicant exercise, or propose to exercise, a 'workplace right' within the meaning of that phrase at section 341(1) of the Act?

[62] Section 341(1) of the Act provides the meaning of workplace right as:

“Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee--in relation to his or her employment.”

[63] The Respondent characterized the workplace rights asserted by the Applicant as involving the Pay Increase Issue and the Vehicle Issue, and concedes that the Pay Increase Issue was an exercise of a workplace right by the Applicant, but denies the Vehicle Issue was an exercise of a workplace right because that query was advanced by Ms Cooper.

[64] The Applicant identified the alleged workplace rights raised as the Christmas Closure Issue, the Housing Issue, the Public Holiday Payment Issue, the Pay Increase Issue, the Tool Allowance Issue and the Vehicle Issue.

[65] In Shea v TRUenergy Services Pty Ltd (No 6) 17, Dodds-Streeton J observed:

“As held in Ratnayake , it is, in my view, unnecessary that the employee, in making a complaint that he or she is able to make, expressly identifies the communication as a complaint or grievance, or uses any particular form of words. It is necessary only that relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint.

Whether an employee has made a complaint is a matter of substance, not form, which should be determined in the light of all the relevant circumstances. It does not depend solely on the words used. An employee's communication of a grievance or accusation could amount to making a complaint within the meaning of s 341(1)(c)(ii) despite an express disavowal of any intention to complain if a reasonable observer would conclude from the employee's words and conduct in the circumstances (including the nature and gravity of the grievance or accusation) that he or she intended to bring the grievance to the employee's attention for consideration or other appropriate action.”

[66] I consider that each of the Christmas Closure Issue, the Housing Issue, the Public Holiday Payment Issue, the Pay Increase Issue, the Tool Allowance Issue and the Vehicle Issue were reasonably understood by the Respondent to be expressions of grievance that the Respondent should take notice of and rectify. As such they were the exercise of workplace rights pursuant to s.341(1)(c) of the Act.

[67] It is irrelevant that Ms Cooper advanced the Vehicle Issue. She clearly did so on the Applicant’s behalf and I consider it was understood by the Respondent to be a grievance of the Applicant.

(d) Were the actions of the Respondent 'adverse action' within the meaning of that phrase at section 342(1) of the Act?

[68] Section 342(1) of the Act provides that an employer takes adverse action against an employee where:

[69] Noting that this analysis proceeds on the hypothetical scenario of the Applicant being dismissed, which is contrary to my express finding above, clearly if dismissal had occurred it would constitute adverse action.

[70] The Applicant, however, advanced two other separate forms of alleged adverse action, being:

(a) The denial of a pay rise in June 2019, pursuant to the Pay Increase Issue; and

(b) Non-renewal of his contract.

[71] In Community and Public Sector Union v Commonwealth of Australia, 18 the Full Court of the Federal Court observed:

“It is strongly arguable that an employee is injured in his or her employment if the employer disregards the employee's rights under his or her contract of employment. It is also strongly arguable that the position of an employee is altered to his or her disadvantage if the employer acts in a way which is inconsistent with the employee's contractual rights. For these reasons, the Commonwealth's concession that Mr McCarron has a contractual right to have his application for flex leave considered according to a process dictated by operational requirements leads to the conclusion that there is a serious question to be tried that the directive injured, or threatened to injure, Mr McCarron in his employment or altered, or threatened to alter, Mr McCarron's position to his prejudice.”

[72] While it is correct to observe that the above observation of the Full Court related to injury of an employee in their employment, and not alteration of the position of the employee to their prejudice that does not rely on contractual underpinning to the same degree, I note that the Applicant asserted rights to the pay rise and the contract extension. As such, his allegation was injury in employment.

[73] There was no underpinning contractual, statutory or legislative requirement to give the Applicant a pay rise, and while the Contract provided for a review of the Applicant's remuneration from time to time, any increase in remuneration is at the sole discretion of the Chief Executive Officer. While the Applicant was told his remuneration would be reviewed at the conclusion of his probationary period, he was also informed that a pay review does not automatically result in a pay increase, given there is a 2% pay increase applied each year in July.

[74] Regarding the decision not to renew the Contract, Clause 1 of the Contract expressly provided:

“Any extension to this Agreement will be dependent on continued funding for the position. The parties may agree to extend the Agreement, but they are not obliged to do so. If the Agreement is extended, these conditions will apply, unless replaced.”

[75] There was no obligation on the Respondent, within the Contract or otherwise, to agree to a pay rise or renew or extend the Contract. The Respondent did not injure the Applicant in his employment within the meaning of s 342(1) of the Fair Work Act.

(e) Was the adverse action taken was because of the workplace right or exercise/purported exercise of that workplace right?

[76] Had the cessation of the Applicant’s employment constituted a dismissal, which I again note is contrary to my express finding above, could such cessation have been found to have been because of the exercise of one or more of the workplace rights exercised by the Applicant?

[77] This issue brings into consideration the reverse onus provision of s.361 of the Act, which provides:

“Reason for action to be presumed unless proved otherwise

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.”

[78] In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2), 19 Wigney J provided a distillation of the principles in relation to the application of s.361 from the decisions of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay,20 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,21 as follows:

“As has already been noted, s 361 creates a statutory presumption that operates in cases where it is alleged that a person contravened s 340. Relevantly, where it is alleged that a person has taken adverse action against another person because that other person has a workplace right, or has exercised a workplace right, it is presumed that the action was taken for that reason, unless the person proves otherwise. Here, the CFMEU alleged that De Martin & Gasparini took adverse action against its employees for reasons that included that the employees had or had exercised workplace rights. Those workplace rights were the benefit of the Enterprise Agreement (a workplace instrument), and the ability to approve or not approve a variation of the Enterprise Agreement (a process under the Fair Work Act). By reason of s 361, it is to be presumed that De Martin & Gasparini took the adverse action for those reasons unless it proves otherwise.

One might be forgiven for thinking, at least at first blush, that the question whether a person took certain action for a particular prohibited reason is a fairly straightforward question. It is, however, a question which, in the context of s 340 and cognate provisions (for example s 346 of the Fair Work Act), has excited some considerable debate and controversy. Following the decisions of the High Court in Barclay and BHP Coal , however, it could now be said that the relevant principles are relatively well-settled. The key principles, in simple terms, are as follows.

First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].

Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].

Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].

Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].

Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].

Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].

Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].”

[79] In determining why the alleged adverse action was taken, there is a focus on the reason or reasons of the relevant decision-maker, who in this case was Ms Stonhill. Her evidence, contained in her statement and confirmed in the hearing, which I accept, was as follows:

“Generally, a list of upcoming contract expiry dates was provided to me a couple of months before the contracts are due to finish so that I could take into account funding decisions in determining whether or not to renew the contracts. If there wasn't to be any more work coming in from the Northern Territory Government to build houses, do works on homelands, for Room to Breath or other funding coming into the Respondent I would determine whether trades such as plumbers, carpenters and electricians were needed. If a funding agreement was coming to an end and there was no further work for an employee I would consider the viability of engaging trades employees. 

In the latter half of 2019 there were a number of funding concerns and ultimately I determined that four staff within the Housing Department would not be offered a contract renewal. This included Glenn, his supervisor Simon Turner, a welder, and a carpenter. At the time I discussed the lack of funding and the fact that we would not renew Glenn's employment contract with both Simon and Rachel. 

The decision not to renew Glenn's employment contract for a further year was made based on clause 1 of his employment contract which provides: 

Any extension to this Agreement wifl be dependent on continued funding for the position. The parties may agree to extend the Agreement, but they are not obliged to do so. 

On 25 October 2019, I signed and issued a letter to Glenn confirming that his employment would conclude on 11 November 2019 and that he would not be required to work the two week notice period. 

Although Glenn was only entitled to one weeks' notice I determined it would be appropriate to provide two weeks' payment in lieu of notice to allow Glenn and Rose time to pack up their accommodation and arrange relocation from Maningrida back to Darwin.”

[80] The evidence of Ms Stonhill is that the cessation of the Applicant’s employment resulted solely from the issue of funding. That declaration must not be taken to discharge the onus on the Respondent, and inferences available on the facts must be considered. I consider that there are two factual inferences that must be considered, one against the position of the Respondent, and one supportive of the Respondent. 

[81] Against the position of the Respondent is the fact that on 11 September 2019 an additional plumber was hired by the Respondent. This plumber commenced on site at Maningrida the following month. I do not consider, however, that this fact impugns in any way the evidence of Ms Stonhill and consider the employment of the additional Plumber occurred at a time when funding and continued engagement of the Applicant was uncertain.

[82] Supportive of the position of the Respondent that the cessation of the Applicant’s employment resulted solely from the issue of funding is the fact that the Applicant was not the only person whose employment ceased. In addition to the Applicant, his supervisor Mr Turner, a welder, and a carpenter all ceased work around the same time due to funding.

[83] Proceeding upon the assumption, contrary to my determination, that adverse action in the form of cessation of employment constituting a dismissal occurred, I would nonetheless find that the Respondent would discharge the onus of proving that no part of that action was taken for a prohibited reason.

Conclusion

[84] I find that the Applicant was engaged under a maximum term contract based on the genuine operational requirements of the Respondent. Accordingly, I find that the employment relationship between the Applicant and the Respondent ended by the effluxion of time upon the expiry of the Contract. I therefore find that the Applicant’s employment was not terminated on the initiative of the First Respondent. The Applicant was therefore not dismissed pursuant to s.386(1)(a) of the Act and the Application must therefore be dismissed.

[85] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr G Baughen, on his own behalf.
Ms K O’Brien, for the Respondent

Hearing details:

2022.
Sydney (via videoconference):
April 1.

Printed by authority of the Commonwealth Government Printer

<PR742621>

 1   [2020] FWC 4530

 2   [2021] FWC 5918.

 3   [2022] FWCFB 1.

 4   Transcript PN 68 and 183.

 5   Transcript PN 69 to 72.

 6   Print S0253 (AIRCFB, Giudice J, McIntyre VP and Redmond C, 25 October 1999), at [49].

 7   Jones v Dunkel (1959) 101 CLR 298.

 8   Exhibit A1, at P. 45; Exhibit A3, at Pp. 34 and 147.

 9   Narich Pty Ltd v Commissioner of Payroll Tax (NSW) [1983] 2 NSWLR 597 at 601.

 10   Narich Pty Ltd v Commissioner of Payroll Tax (NSW) [1983] 2 NSWLR 597 at 601; Cavill Power Products Pty Ltd v Royle (1991) 42 IR 229 at 231.

 11   [2020] FCAFC 152 at [67] and [74]-[75].

 12   Khayam v Navitas English Pty Ltd (Khayam) [2017] FWCFB 5162 at [75(4)].

 13   Khayam at [75(5)(a)].

 14   Papalia v Italian Assistance Association [2013] FWC 7996.

 15   WorkPac Pty Ltd v Rossato & Ors (Workpac) [2021] HCA 23 at [81].

 16   Workpac at [65].

 17   (2014) 242 IR 1, at [626] and [627].

 18   92006) 157 IR 470, at [32].

 19   [2017] FCA 1046, at [295] to [303].

 20   (2012) 248 CLR 500.

 21   (2014) 253 CLR 243.