| [2022] FWCFB 146 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Glenn Charles Baughen
v
Bawinanga Aboriginal Corporation
(C2022/3930)
VICE PRESIDENT CANTAZARITI |
SYDNEY, 23 AUGUST 2022 |
Appeal against decision [2022] FWC 1499 of Deputy President Cross at Melbourne on 15 June 2022 in matter number C2020/6851 – permission to appeal refused.
Background
[1] Mr Glenn Charles Baughen (the Appellant or Mr Baughen) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision of Deputy President Cross issued on 15 June 2022 (the Decision). 1 The Decision concerned the Appellant’s application for the Fair Work Commission (the Commission) to arbitrate by consent his general protections claim concerning his dismissal by Bawinanga Aboriginal Corporation (the Respondent or BAC) under s.364 of the Act.2
[2] Having been unsuccessful with his application, the Appellant sought to appeal the Decision. The matter was listed for permission to appeal and accordingly, directions were issued for the filing of material. Both parties indicated that they consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. It followed that the proceedings were conducted on the basis of written materials only.
[3] In determining the application before him, the Deputy President identified the discreet issues for determination. These included:
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? 3
[4] The Deputy President identified, correctly in our view, that issues (a) and (b) involved the determination of the jurisdictional objection that Mr Baughen was not dismissed at the initiative of BAC. The remaining issues involved the determination of Mr Baughen’s general protections claim, or the merits of his application.
[5] In respect of the jurisdictional objection, the Deputy President found that the parties had comprehensively committed the terms of the employment relationship to the written form of the Contract (Contract or Employment Agreement), and that the Contract as varied was for a maximum term commencing on 12 November 2018, concluding after one year. 4 The Deputy President formed the view that the terms of the Contract were clear and unambiguous, and therefore there was no need to consider the contra proferentum rule.5 The Deputy President continued that the Contract confirmed the correct characterisation of the relationship as a maximum term contract,6 and that the express terms of the Contract must be given effect unless contrary to statute.7
[6] The Deputy President observed that while the Contract was terminable during its term on notice, he accepted that a combination of funding concerns and Mr Baughen’s previous indications that he did not wish to stay in Maningrida beyond the expiry of the Contract, resulted in BAC determining that it would not offer Mr Baughen another contract. 8
[7] In conclusion, the Deputy President expressed that as Mr Baughen’s employment came to an end due to the effluxion of time and not at the initiative of BAC, the Commission was without jurisdiction to deal with the substance of Mr Baughen’s application because he had not been dismissed within the meaning of s.386(1)(a) of the Act. 9 Whilst the Deputy President proceeded to consider the merits of the application, it is the Deputy President’s conclusion that Mr Baughen’s employment ended by way of the effluxion of the Contract that is the focus of the appeal.
[8] For the reasons that follow, we have decided that permission to appeal is refused.
The Decision under appeal
[9] After setting out briefly some context about the Respondent corporation, the Deputy President provided a succinct outline of the history of the application, observing that the initial application was filed on 5 December 2019 outside of the 21 days allowable for filing an application under s.365. 10 An extension of time was granted by Commissioner Yilmaz who found that the final day of Mr Baughen’s employment was 11 November 2019 (the EOT Decision).11
[10] Mr Baughen subsequently filed a Form F8B application requesting that the matter be dealt with by consent arbitration, and with the Respondent’s agreement, the matter was allocated to Commissioner Spencer on 9 September 2020. 12
[11] On 14 September 2021, Commissioner Spencer delivered her decision in the consent arbitration (the First Instance Decision). 13 However, that decision was appealed, permission to appeal was granted, the appeal was upheld, and the First Instance Decision quashed and remitted for rehearing before the Deputy President.14
[12] After having referred to the statutory framework that allows for disputes under s.365 to be dealt with by consent arbitration, the Deputy President traversed Mr Baughen’s submissions and those of BAC.
[13] In summary form, Mr Baughen asserted that:
a) 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;
b) 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;
c) adverse action in the form of denying a pay rise was taken because he exercised a workplace right to raise a concern on 24 May 2019 regarding pay rates on public holidays; and
d) adverse action in the form of the dismissal or, in the alternative, the contract non-renewal, occurred because he exercised a workplace right to raise a concern in October 2019 regarding payment of an infringement notice.
[14] BAC responded contending that:
a) the terms of the 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.
b) the Commission does not have the jurisdiction to deal with the application because the Appellant was not dismissed within the meaning of s.386(1)(a) of the Act;
c) the Commission should not be satisfied that the actions alleged are ‘adverse actions’ within the meaning of the Act; and
d) in the event that the Appellant does discharge his burden regarding the existence of workplace rights and adverse action, the Commission should be satisfied that the actions of the Respondent, which the Appellant alleges constituted adverse action, were not taken because of any of the proscribed reasons alleged.
[15] The Deputy President then proceeded to provide a detailed summary titled ‘The Facts of the Case’. In doing so, the Deputy President relevantly identified the following:
a) Mr Baughen contacted BAC regarding a position as a plumber, was flown to Maningrida for a meeting on 24 October 2018, and was handed the Contract, signed by Mr Karl Dyason. 15
b) The relevant parts of the Contract, according to the Deputy President, were:
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:
1) It is terminated before that date in accordance with the termination provisions of the Bawinanga Aboriginal Corporation Enterprise Agreement; or
1) 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 condition continue to apply unless expressly replaced in writing. 16
c) On 3 November 2018, in response to follow up emails from the Respondent, Mr Baughen and his partner Ms Cooper emailed questions regarding the Contract and living in Maningrida to BAC. Ms Dobbie, the Human Resources Manager, responded to the email on 5 November 2018, and the Deputy President extracted relevant parts of those emails, with Ms Dobbie’s responses 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 Aboriginal
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 – pprox.
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. 17
d) Ms Dobbie gave evidence of having discussed with Mr Lance Conway-Jones, the General Manager Housing, Homelands and Construction, who was having separate discussions with the Appellant, that Mr Conway-Jones informed her that the Appellant had accepted the offer of employment on the basis of a one year term. 18
e) Mr Baughen indicated by email to Ms Dobbie on 6 November 2018 that he had spoken to Mr Conway-Jones and accepted the position offered. 19
f) On 19 November 2018, Mr Baughen commenced work and handed Mr Conway-Jones the Contract signed and dated 16 November 2018. Mr Conway-Jones took a copy of the Contract and handed Mr Baughen back the original with a handwritten notation to clause 1 ‘Status of Employment’, that had been inserted by Ms Cooper, 20 which read, in italics:
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: ‘◊ 1 year’.
(a) It is terminated before the date in accordance with the termination provisions in 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.
… 21
g) On 20, 23 and 27 November 2018, Ms Dobbie emailed Mr Conway-Jones requesting a copy of the Appellant’s paperwork, as she had not yet received a copy of the executed Contract. On 26 November 2018, Ms Dobbie emailed Patricia Hartshorn, the then Office Manager, Housing and Homelands, asking for a copy of the Appellant’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 Mr Baughen on 19 November 2018. 22
h) On 7 December 2018, the Appellant and Ms Dobbie met at the Respondent’s offices regarding the Appellant’s relocation expenses. The expense form which was signed by the Appellant claimed relocation costs of $635.82, which it described as ‘basic 1 year’. There are two versions of what occurred at this meeting:
i. Ms Dobbie claims she asked Mr Baughen to confirm that the term of the Contract would be for one year. In response she stated Mr Baughen 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 Mr Baughen to initial the Contract next to where “1 year” was written, and Mr Baughen initialled the Contract as requested, and Ms Dobbie signed the bottom of the page and dated it “7/12”.
ii. Mr Baughen 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 Ms 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. 23
i) On 5 August 2019, Ms Dobbie, as part of her role, printed a list of upcoming expiring contracts. 24 That list noted that Mr Baughen’s employment was due to finish on 12 November 2019 and included Ms Dobbie’s handwritten notes as follows:
No ST – Release if no RT/3. End Sept. 2W. Funding. 25
j) Ms Dobbie’s evidence that the abovementioned note meant that Simon Turner had said ‘no’ to a renewal of Mr Baughen’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 a lack of funding. 26
k) The funding from Room to Breathe did not come through and Ms Stonhill decided that Mr Baughen would not be offered a contract renewal, based on clause 1 of his Contract which 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. 27
l) On 25 October 2019, Ms Stonhill signed and issued a letter to Mr Baughen confirming his employment would conclude on 11 November 2019 and that he would not be required to work the two weeks’ notice period. 28
[16] The Deputy President then proceeded to detail what he considered were the terms of Mr Baughen’s Contract. In short, the Deputy President formed the view that:
a) the offer made to Mr Baughen on 24 October 2018, and the terms to which he consented, were for a two year term and Ms Cooper’s handwritten notation of ‘1 year’ was insufficient to vary the offer and subsequent consent; 29
b) Ms Dobbie’s evidence that ‘Lance’ had informed her Mr Baughen accepted the offer on the basis of a one year term should be rejected on the basis that, as Mr Conway-Jones was not called to give evidence, the inference was open that his evidence would not have assisted BAC; 30
c) having received a scanned copy of the Contract on 19 November 2018 inclusive of the handwritten annotation, Ms Dobbie met with Mr Baughen on 7 December 2018 and asked him to confirm that the term of the Contract would be for one year, to which Mr Baughen responded in the affirmative and initialled where ‘1 year’ was written on the contract. On this basis, the actions of Mr Baughen and Ms Dobbie constituted a variation to the terms of the Contract; 31
d) where there were conflicting accounts between Ms Dobbie and Mr Baughen regarding the meeting on 19 November 2018, the evidence of Ms Dobbie was preferred; 32 and
e) the Contract was formed in the terms of the offer made to Mr Baughen on 24 October 2018 and was subsequently varied as to its duration on 7 December 2018. 33
[17] The Deputy President then correctly identified that s.365 of the Act requires the Commission determine a dispute about the fact of a dismissal prior to exercising powers conferred on it by ss.368 and/or 369. 34
[18] In turning to his consideration as to whether Mr Baughen had been dismissed, the Deputy President referred to the decision in Khayam v Navitas English Pty Ltd (Khayam), 35 observing that where an employment relationship is governed by a time-limited or outer limit contract, then absent any vitiating factors, the employment relationship terminates as a result of the expiry of that contract and not at initiative of the employer.36
[19] The Deputy President then acknowledged Mr Baughen’s submissions, which, briefly stated, included that:
a) he was dismissed and there was no agreement in place for an end date in the Contract; 37
b) 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; 38
c) the contra proferentum rule prevented any ambiguity in the Contract being resolved in BAC’s favour; 39
d) his employment was not under a contract of employment for a specified task of specified project because:
i. no task nor any specified project, was specified in the Contract;
ii. the Contract provided for an unconditional right to terminate with notice periods; and
iii. his employment did not terminate on the completion of a task nor a specified project as per the definition of fixed term employee in clause 13.5 of the Bawinanga Aboriginal Corporation Enterprise Agreement 2017. 40
[20] The Deputy President’s attention then turned to BAC’s submissions, which included that:
a) the circumstances of the employment relationship reflected the maximum term nature of the relationship; 41
b) BAC as a not-for-profit Aboriginal Corporation is heavily reliant on funding in order to fulfil its objective and as a result staffing needs fluctuate depending on the receipt of funding; 42
c) Mr Baughen’s employment was terminated upon the expiry of a maximum term Contract, and accordingly, as he had not been dismissed, the Commission lacked jurisdiction to deal with the application; 43 and
d) the Contract represented a genuine agreement between the parties that the employment relationship would not continue beyond its expiry in November 2019. 44
[21] The Deputy President then relevantly concluded as follows:
[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. The express terms of the Contract must be given effect unless contrary to statute.
[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. (citations omitted)
[22] Having determined that Mr Baughen was not dismissed within the meaning of s.386(1)(a) of the Act, the Deputy President then indicated that whilst he did not have jurisdiction to deal with the substance of the application and on that basis the application should be dismissed, he would nevertheless consider the balance of issues through the prism of the assumption that Mr Baughen was in fact dismissed. The Deputy President explained his reasons for doing so, noting the history of the decisions of the Commission regarding the application – and for completeness. 45
[23] Turning to the merits of the application, the Deputy President first traversed the statutory meaning of ‘workplace right’ in s.341(1) of the Act, and thereafter observed that BAC had characterised the workplace rights asserted by Mr Baughen as involving the ‘Pay Increase Issue’ and the ‘Vehicle Issue’. 46 We will turn to the substance of those issues shortly. However, it is relevant to note that BAC conceded the Pay Increase Issue constituted the exercise of a workplace right by Mr Baughen but argued that the Vehicle Issue was not, because the query was advanced by Ms Cooper.47
[24] The Deputy President then listed Mr Baughen’s alleged workplace rights, which consisted of the ‘Christmas Closure Issue’, the ‘Public Holiday Payment Issue’, the ‘Pay Increase Issue’, the ‘Tool Allowance Issue’, and the ‘Vehicle Issue’. 48
[25] At paragraphs [25] to [33] the Deputy President provided explanations as to each of the ‘Issues’ that had arisen. These Issues are summarised as follows:
a) Christmas Closure Issue – proposed closure over the Christmas period in December 2018 which would have resulted in Mr Baughen taking leave without pay, Mr Baughen expressed dissatisfaction and was permitted work through the Christmas closure;
b) Housing Issue – discussion between BAC, Mr Baughen and his partner, regarding moving from temporary accommodation to permanent accommodation with Mr Baughen and his partner indicating they did not want to move as they would only be in Maningrida for around six months;
c) Public Holiday Payment Issue – Mr Baughen asked his supervisor to look into an alleged 0.4hr underpayment for public holidays to which Mr Baugh received a response regarding the reconciliation of the underpayment and a note that Mr Baughen’s request/behaviour did not fit with the values of BAC;
d) Pay Increase Issue – Mr Baughen had notified Mr Turner, the then Acting Manager of Housing, Homelands and Construction, that he was entitled to a pay review on completion of his probationary period. Having made several enquiries about a pay review, Mr Baugh was informed by Mr Turner that his probationary period had not been extended and regardless there would not be a pay increase.
e) Tool Allowance Issue – Mr Baughen raised with Mr Turner that he was entitled to a tool allowance which he claimed was not paid and in response Mr Turner informed Mr Baughen to save his tools and anything he needed to replace to retrieve from housing stocks;
f) Vehicle Issue – having been issued with a Land Cruiser after work one day, Mr Baughen was pulled over by the police and issued a $840 fine for operating an unregistered vehicle. BAC eventually offered to pay half the fine.
[26] The Deputy President having considered each of the issues, found that 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 BAC to be expressions of grievance that it should take notice of and rectify. The Deputy President concluded that as such, the aforementioned ‘Issues’ were the exercises of workplace rights pursuant to s.341(1)(c) of the Act. 49
[27] The Deputy President then dealt with whether the actions of BAC constituted ‘adverse action’ within the meaning of s.342(1) of the Act. In doing so, the Deputy President considered Mr Baughen’s dismissal, noting however his caveat that the analysis proceeded on the basis of a hypothetical scenario, and he acknowledged that Mr Baughen had also referred to the denial of a pay rise in June 2019 pursuant to the Pay Increase Issue and to the non-renewal of his employment contract.
[28] Regarding the latter actions, the Deputy President preferred to consider them as an ‘injury in employment’. 50 In doing so, the Deputy President referred to the judgment of the Full Court of the Federal Court in Community and Public Sector Union v Commonwealth at paragraph [32], where the Court contrasted the terms ‘injury in employment’ with an ‘alteration in position to the disadvantage of the employee’.51
[29] In respect of the Pay Increase Issue, the Deputy President concluded that there was no underpinning contractual, statutory or legislative requirement to award a pay rise, and while the Contract provided for the review of Mr Baughen’s remuneration, it did so at the sole discretion of the Chief Executive Officer of BAC. Whilst appreciating that Mr Baughen had been informed that his remuneration would be reviewed at the conclusion of his probationary period, the Deputy President noted that Mr Baughen had also been informed that a pay review did automatically give rise to a pay increase given the annual pay increase in July each year. 52
[30] Regarding the decision not to renew the Contract, the Deputy President referred to clause 1 of the Contract, observing that there was no obligation on the BAC within the Contract or otherwise, to agree to a pay rise or renew or extend the Contract. The Deputy President concluded that the BAC had not injured Mr Baughen in his employment within the meaning of s.342(1) of the Act. 53
[31] The Deputy President next considered whether the hypothetical dismissal was because of the exercise of one or more of the workplace rights exercised by Mr Baughen.
[32] Having considered s.361 of the Act and having extracted the passage from the judgment of Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd [No 2] 54 in which Wigney J distilled the principles in relation to the application of s.361 from the High Court judgments of Board of Bendigo Regional Institute of Technical and Further Education v Barclay,55 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,56 the Deputy President expressed that in determining why the alleged adverse action was taken, there is a focus on the reason or reasons of the relevant decision maker – in this case Ms Stonhill.57
[33] The Deputy President then referred to the evidence of Ms Stonhill which was contained in her statement and confirmed in hearing, stating that the cessation of Mr Baughen’s employment resulted solely from the issue of funding. Referring to the reverse onus of proof, the Deputy President cautioned that Ms Stonhill’s declaration must not be taken to discharge the onus placed upon BAC, but that the inferences on the facts must be considered. 58
[34] Two inferences were identified by the Deputy President, one in support of BAC and the other not. The first, which was not in support, was that BAC had engaged an additional plumber on 11 September 2019, who started on site at Maningrida the following month. However, the Deputy President expressed that that fact did not impugn Ms Stonhill’s evidence given the employment of the additional plumber occurred when funding and continued engagement of Mr Baughen was uncertain. The second inference, which was supportive of BAC’s position, was that BAC had ceased Mr Baughen’s employment solely from the issue of funding, and Mr Baughen was not the only person whose employment ceased. 59
[35] Proceeding upon the assumption that adverse action in the form of the cessation of employment constituting dismissal had occurred, the Deputy President concluded that he would nonetheless find that BAC discharged the onus of proving that no part of that action was taken for a prohibited reason. 60
[36] The Deputy President proceeded to dismiss the application on the basis there was not a dismissal but an effluxion of time upon the expiry of the Contract. 61
Principles of appeal
[37] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.62 There is no right to appeal, and an appeal may only be made with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if satisfied that it is in the public interest to do so. Permission to appeal may otherwise be granted on discretionary grounds.
[38] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.63 The public interest is not satisfied simply by the identification of error, or a preference for a different result.64 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:
... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...65
[39] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.66
[40] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.67 However, as earlier stated, the fact that the Member at first instance made an error is not necessarily a sufficient basis for granting permission to appeal.
Grounds of appeal and submissions
[41] The grounds for appeal set out in the Form F7 Notice of Appeal were voluminous but essentially asserted the following significant errors of law:
1. The conclusion that Mr Baughen was not dismissed and that his employment ended on account of an effluxion of time is at odds with the EOT Decision which stated at paragraph [50]:
The contract of employment was not amended to reflect the agreed start date, the signature on the contract tendered by BAC which is undated is disputed by Mr Baughen that it is his. It is also unhelpful that the sentence concerning the fixed term which was allegedly amended was not crossed out. These circumstances relied on by BAC are unsupportive of the Respondent’s position. 68
2. The decision erroneously states that the employment of Mr Baughen was for a maximum term contract.
3. The Deputy President erroneously found that there was a contract of employment for a 51-week period in place that ended on 12 November 2019.
4. The Deputy President erroneously ignored the case authority of Downes v The Uniting Church In Australia Property Trust (Q) (Downes) 69 and thereafter failed to correctly apply Downes to the facts.
5. The Deputy President erroneously ignored the case authority of Fraser v Act for Kids (Fraser) 70 and thereafter ignored the doctrine of ‘contra proferentum’ explained by Commissioner Hunt in that same decision.
6. The Deputy President erroneously made non-factual commentary rather than staying with the facts, which all parties agreed were that Mr Baughen commenced employment with the Respondent on 19 November 2018 and his last day of employment when he worked was 25 October 2019. As Mr Baughen did not work from 28 October 2019 to 11 November 2019, but was paid two weeks’ notice in lieu, the period between 19 November 2018 and 11 November 2019 was 51 weeks and not 52 weeks as found by the Deputy President.
7. The Deputy President erroneously concluded that the disputed end date of employment was 52 weeks.
8. The Deputy President failed to mathematically substantiate that ‘on the completion of the one year (52 weeks)’ is 18 November 2019 and not 11 November 2019.
9. The Deputy President erroneously ignored the decision of Papalia v Italian Assistance Association (Papalia) 71 and the statement in Exhibit 2, where the Employment Agreement provided that the ‘Employment Agreement will be dependent on continued funding for the position’, by finding that the contract of employment was a maximum term contract.
10. The Deputy President erroneously stated there had not been a dismissal (but an effluxion of time), therefore ignoring the decision of Nesci v The Playford Hotel (Nesci), 72 where it was concluded that an employment contract which includes provision for termination with notice, is an ‘outer limit’ employment contract and not one for a fixed term:73 see also White v Sydney College of English Pty Ltd (White)74 and Fisher v Edith Cowan University [No 2] (Fisher).75
11. The Deputy President allowed tampered and doctored evidence to be admitted notwithstanding the admission of the Respondent’s HR Manager that she had tampered with an email sent by Mr Lance Conway to her on 26 November 2019, one month after Mr Baughen’s termination of employment. Such misstep disadvantaged the Appellant and arguably constituted apprehended bias by the Deputy President against Mr Baughen.
12. The Deputy President erred when accepting the evidence in Ms Stonhills’ written statement which provided that the ‘Room to Breathe’ funding related specifically to the work of Mr Baughen, and not Ms Stonhill’s viva voce evidence given under oath.
13. The Deputy President made similar appealable errors as Commissioner Spencer did in the First Instance Decision, which was successfully appealed. 76
[42] The public interest grounds set out in the Form F7 Notice of Appeal provide some basis to apprehend why Mr Baughen submits he is aggrieved by the Decision. A summary of the public interest grounds contained in the Form F7 application is as follows:
1. The Deputy President erroneously stated that the employment of Mr Baughen ended on account of an effluxion of time when there was a dismissal. As such the decision is at odds with the EOT Decision, Nesci, White, and Fisher, and it is therefore in the public interest to correct the appealable errors to for the Full Bench to support the correct law points as stated in the EOT Decision.
2. The Deputy President erroneously stated that the employment of Mr Baughen was for a maximum term employment contract for 52 weeks when he only worked 49 weeks and was paid out two weeks. It is in the public interest to correct this appealable error by the Full Bench and to correctly apply the decision of Downes.
3. The Deputy President erred in law by failing to mathematically substantiate that the completion of one year was on 11 November 2019, when mathematically one year had an end date of 18 November 2019.
4. The Deputy President erred in law by ignoring the decision of Papalia regarding the Employment Agreement, providing that it ‘will be dependent on continue funding for the position’ and thereafter failing to conclude that the contract of employment is neither a true fixed term contact nor a maximum term contract as referred to in Papalia. The Deputy President therefore reached the wrong conclusion at law by holding that the contract was a maximum term contract.
Consideration
[43] It is useful at this stage to say a few things about Mr Baughen’s broad criticism of the Deputy President’s Decision and set out some relevant authorities. The first thing to be said is that it is uncontroversial that the focus of the appeal is with respect to s.386(1)(a) and the Deputy President’s conclusion that the Mr Baughen was not dismissed but rather his employment ended on the effluxion of his Contract. It also appears to us that neither party sought to rely upon s.386(1)(b) of the Act.
[44] We discern no criticism of the Deputy President’s identification at [12] of the Decision of the discreet issues to be answered by him. Furthermore, it is not the failure of the Deputy President to identify the statutory question to be answered that is complained of by the Appellant. Rather, it is that he erroneously applied s.386(1)(a) of the Act by having regard to factors which were either not supported by the evidence, misapplying or ignoring relevant authorities, making findings that were not open on the evidence and accepting certain evidence.
[45] Before turning to the specific grounds of appeal, we wish to highlight the relevant authorities and principles of law regarding the interpretation of s.386(1)(a) of the Act.
[46] For some time, the Commission considered itself bound by the Full Bench decision in Department of Justice v Lunn (Lunn). 77 However, in Khayam, the majority of the Full Bench concluded that Lunn had not stated in a correct or complete way the proper approach to the interpretation of the expression ‘termination of employment at the initiative of the employer’ as used in s.170CD(1) of the Workplace Relations Act 1996 (Cth) and its application to circumstances of an employee employed pursuant to a time-limited contract or contracts.78 The majority further considered that Lunn should not therefore be treated as determinative of the interpretation of s.386(1) of the Act and its application to the same circumstances.79
[47] Having regard to court decisions on the subject, the majority in Khayam considered that s.386(1)(a) should be interpreted and applied as follows:
(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.
(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.
(4) 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 on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, 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, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.
(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:
(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:
• the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;
• the employee entered into the contract as a result of a serious mistake about its contents or subject matter;
• there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;
• the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;
• the employee lacked the legal capacity to make the contract; or
• the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.
If any of the above applies there will be no legally effective time-limit on the employment (Fisher).
(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).
(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).
(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).
(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher).
(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher). 80
[48] Whilst Mr Baughen referred this Commission to various decisions that have similarly considered the operation of outer limit or maximum contracts, we consider that the decision of Khayam states the authoritative position on the interpretation and application of such contracts.
[49] Turning to the Contract, as we have observed, the Deputy President found that the final Contract between Mr Baughen and BAC was formed in the terms of the offer made to Mr Baughen on 24 October 2018, had a commencement date of 12 November 2018 and concluded after one year, after it was subsequently varied as to its duration on 7 December 2018. 81 We consider that these findings were open on the evidence and we can identify no significant error, for the following reasons.
[50] At the hearing before the Deputy President, Mr Baughen acknowledged that whilst he started work on 19 November 2018, his written employment contract was not changed to that same date, 82 hence the Contract retained a commencement date of 12 November 2018. Ms Dobbie gave evidence that whilst she had heard that Mr Baughen started work later than 12 November 2018, by a few days,83 there was no change to the commencement date in his Contract.84 In our view, the commencement date of the employment contract was unvaried and remained as stated, namely 12 November 2018. If it were the case that Mr Baughen commenced work in his position at a later point, which we do not grapple with, this does not detract from the employment relationship having commenced its term on 12 November 2018, as provided for in Mr Baughen’s Contract. There is no requirement that the commencement date in an employment contract, and therefore the commencement date of the employment relationship, be synonymous with the date on which the employee started work.
[51] Contrary to Mr Baughen’s assertion that the Deputy President found that there was an employment contract for a term of 51 weeks, at paragraph [58] of the Decision, the Deputy President concluded that the Contract was a maximum term contract which commenced on 12 November 2018 and thereafter concluded after one year. It might therefore be added that the Deputy President did not fall into error when concluding that the term of the Contract was for one year, given his acceptance of Ms Dobbie’s evidence and his articulation of the rationale as to why her evidence was accepted over that of Mr Baughen. In our view, nothing has been raised by Mr Baughen which would lead us to disturb the findings made by the Deputy President in respect of the term of the employment – extending to his assessment of witness credibility.
[52] Mr Baughen took issue with the Deputy President concluding that his employment was underpinned by a maximum term contract. In Khayam, the terms ‘outer limit’ and ‘maximum term’ were used synonymously, 85 an ‘outer limit contract’ referring to a contract that specifies a particular term of employment, but provides for the possibility of a party terminating the contract before the term expires.86 Whilst Mr Baughen’s Contract included a unilateral right for either party to terminate Mr Baughen’s employment, the Deputy President was correct to conclude that the Contract between Mr Baughen and BAC was for a maximum term given the defined period in which the employment commenced and ceased. While the inclusion of an unqualified right to terminate the employment during its term meant that Mr Baughen was not under a contract of employment for a ‘specified period of time’ and therefore did not fall within the exclusion in s.386(2)(a), it is not apparent to us that this argument was pressed by either party.
[53] During the course of the hearing, Ms Stonhill gave evidence that whilst Mr Baughen was only entitled to one week’s notice, she determined it would be appropriate to provide two weeks’ payment in lieu of notice to allow Mr Baughen and his partner to pack up their accommodation. 87 This in turn meant, according to Ms Stonhill, that Mr Baughen’s employment would conclude on 11 November 2019 albeit he would not be required to work during that period.88
[54] In considering whether Mr Baughen was dismissed, the Deputy President referred to Khayam at paragraph [75(4)] and adopted an abridged form of that paragraph, stating:
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. 89
[55] Thereafter the Deputy President identified, correctly in our view, that the Contract was of a maximum term, that the terms of the Contract were clear and unambiguous and as such there was no need to consider the contra proferentum rule; the Contract had correctly characterised the relationship, and the express terms of the Contract were to be given effect unless contrary to statute. 90
[56] It is evident that in reaching these conclusions, the Deputy President also considered other factors which were relevant, including the issue of funding and Mr Baughen’s previous indications of not wishing to stay in Maningrida beyond the Contract’s expiry. Clearly, Mr Baughen disputed having indicated that he only wished to stay for a year, however, as we have already observed, the Deputy President clearly expressed why he accepted Ms Dobbie’s evidence in this respect. Again, we see no reason to depart from the Deputy President’s assessment of credibility, given that he was best placed to make that assessment and did so accompanied by detailed reasons.
[57] Further, insofar as Mr Baughen takes issue with the evidence of Ms Stonhill’s written statement and the acceptance of the Deputy President of the same, we do not consider that this gave rise to an error. Mr Baughen perceives there to be an inconsistency between the viva voce evidence given by Ms Stonhill in other proceedings which were drawn to her attention at hearing, and her evidence in the proceedings before the Deputy President. However, we observe that in his consideration of whether Mr Baughen was dismissed, the Deputy President accepted there being ‘funding concerns’. 91 Further, at paragraph [79] of his Decision, where the Deputy President was considering whether adverse action was taken because of a workplace right, he provided detail of Ms Stonhill’s written evidence, noting again his acceptance of its content. That written evidence relevantly included references to the following:
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. 92
[58] It is not the case that the Deputy President drew a conclusion as to the source or program of the funding, but instead accepted the content of the aforementioned evidence of Ms Stonhill. By engaging in this course, the Deputy President did not err. At hearing, Ms Stonhill was taken to paragraph [11] of her written statement which set out: ‘[t]he Room to Breath [sic] funding related specifically to the work Glenn performed.’ When questioned about that statement in the context of her prior evidence given under oath a year prior in other related proceedings, Ms Stonhill provided a sound explanation for any perceived inconsistency. 93 However, we reiterate that the Deputy President’s acceptance of Ms Stonhill’s evidence was limited to that which we have detailed.
[59] However, we do consider that the Deputy President fell into error when he failed to consider that BAC had opted not to require Mr Baughen to work out the remaining two weeks of his employment towards the end of his employment term and instead paid him for that period, as is evident from his lack of reasoning on the point. This warrants further consideration in light of the Deputy President’s conclusion that Mr Baughen’s employment contract came to an end due to the effluxion of time and not at the initiative of BAC, notwithstanding that Mr Baughen did not work for the last two weeks of his employment term.
[60] Before the Deputy President, BAC contended that Mr Baughen’s employment was not terminated prior to the conclusion of the agreed term, nor was he paid out the balance of the Contract or provided with payment in lieu of notice. This was despite the evidence of Ms Stonhill, which the Deputy President accepted, that:
…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. 94
[61] Turning to the effect of ‘payment in lieu of notice’, in Siagian v Sanel Pty Ltd, 95 Wilcox CJ stated:
The effect of the payment on the date of termination Counsel’s second argument is that, because of the payment in lieu of notice, the termination did not occur on 29 March but at the date of expiration of the period for which payment was made, 15 April. If this argument is correct, s.170EE orders are available.
This argument also raises a complex problem. The problem arises because of the ambiguity inherent in the words “payment in lieu of notice”. The ambiguity was pointed out by Waite J, in Leech v Preston Borough Council [1985] ICR 192 at 196:
“... it is clear from the authorities cited to us, ... all of which are confirmed by the experience of our lay members, that the expression ‘payment in lieu of notice’ is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period.”
Although Waite J did not spell out the result that flowed from each meaning, it is clear from other decisions that, in the first case, the employee’s employment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the period for which the payment was made.
The question whether a payment in lieu of notice immediately terminates the employment is always one of fact. In Leech at 196-197 Waite J said that the proper inference as to the sense in which the expression is used may turn upon “very subtle indications or nuances of wording which will have to be weighed carefully according to their context”. The difficulty, of course, is that the parties will normally not have made the position clear. They will probably not have averted to the distinction made by Waite J. The Court will be left to put its own interpretation on their actions.
Is there a prima facie position where parties use the words “payment in lieu of notice”, or something similar? I think there is. As Waite J pointed out, the grammatically correct meaning of the term is that there is to be no notice, the employment is to terminate immediately, but the payment is made instead. 96
[62] Wilcox CJ then considered a number of authorities and concluded:
In his work The Contract of Employment (1975) M R Freedland at 188 says:
“It would seem that a lawful termination by payment in lieu of notice normally results in an immediate termination of the contract of employment. The termination will not be projected to the end of the notional period of notice. The payment should be regarded as a lump-sum payment, equal to the amount of wages during the period of notice, rather than as payment of actual wages for a period of notice during which the services of the employee are not required. ... It would seem also that termination with payment in lieu of notice will, in practice, be regarded as resulting in an immediate termination of employment for the purposes of liabilities of employer and employee to social security contributions. It would in general seem correct to hold that such payments in lieu of notice result in an immediate termination of the contract of employment because the payment is related to wages only in that these quantify the payment.”
I think these statements are justified by the authorities. It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period. 97
[63] In Lunn, the Full Bench of what was then the Australian Industrial Relations Commission observed that Wilcox CJ approached the matter on the basis that a ‘payment in lieu of notice’ can, depending upon the circumstances, give rise to a termination of employment either at the time the notice is given or at expiration of the period of notice, albeit that the use of the words ‘payment in lieu of notice’ is prima facie evidence of an intention to terminate at the time such payment is advised. 98
[64] Subsequent decisions of the Full Bench that have considered the judgment of Wilcox CJ in Siagian as it relates to ‘payment in lieu of notice’ have adopted the view that when the termination occurs without notice on the basis that a sum of money is paid in lieu of the notice that would otherwise be required, then the termination of employment would take effect when communicated to the employee, subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee. 99
[65] However, for the following reasons, we consider that the preferred approach is that which was articulated in Siagian and later accepted in obiter of Lunn. Namely that in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination of the employment relationship to take effect immediately when payment in lieu of notice is provided. However, the salient point is that when a payment in lieu of notice is made, the evidence is considered to determine whether the objective intent of such payment was to terminate the employment relationship effective immediately or whether there was evidence of a contrary intention.
[66] In our view, the Chief Justice in Siagian clearly contemplated that an employer who wishes to terminate an employee’s services and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. His Honour expressed that if the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made, and there is the disadvantage that the employer will be burdened with employment-related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. 100 However, the Chief Justice plainly appreciated the necessity to consider whether there is a contrary intent.
[67] In the case before the Deputy President, the evidence led was a letter dated 25 October 2019, sent by Ms Stonhill on behalf of BAC, to Mr Baughen, advising him of the conclusion of his Contract. We have extracted the relevant parts:
I note your fixed term contract with Bawinanga Aboriginal Corporation is due to conclude or be renewed on 12th November 2018.
Your final date for work would be Monday 11 November, but we acknowledged you may be disappointed with the decision and therefore you are not required to work out the two-week notice period.
It is also noted that you currently reside in a BAC property and have basic reasonable repatriation costs to Darwin. Please let HR know [sic] any assistance you will need organizing this. You are required to vacate your premises within two weeks of the conclusion of this contract. Prior to your departure you should arrange to have the house inspected by BAC Housing… 101
[68] The Deputy President appears not to have considered whether BAC terminated the employment relationship immediately on the provision of the ‘payment in lieu of notice’. However, we are not persuaded that the error constitutes an appealable error because the error did not undermine the Deputy President’s core conclusion that what brought the employment relationship between Mr Baughen and BAC to an end was the expiry of the outer limit contract by the effluxion of time, as the parties had agreed.
[69] We consider that it was open to the Deputy President to have accepted BAC’s submission that it sought to provide Mr Baughen with two weeks’ notice that his Contract would not be renewed to afford him and his partner sufficient time to pack up their belongings and arrange for relocation to Darwin. 102 Further, it was also open on the evidence before the Deputy President to find that it was not the intent of BAC to terminate the employment relationship with Mr Baughen effective 25 October 2019, given Ms Stonhill’s evidence on this point, which the Deputy President accepted,103 and the direct evidence of the letter of 25 October 2019.
[70] As earlier stated, Mr Baughen’s appeal was confined to a challenge to the Deputy President’s conclusion that Mr Baughen’s employment relationship with BAC ended on 11 November 2019, by operation of the Contract. Considering all of the circumstances in this appeal, the Deputy President correctly concluded that the employment relationship between BAC and Mr Baughen ended by the effluxion of time upon expiry of the Contract, 104 and the Deputy President was right to conclude that Mr Baughen had not been dismissed.
[71] We do not propose to refer to any remaining grounds of appeal as, in our opinion, none of them disturb the findings arrived at by the Deputy President or the conclusions that he made. It follows from the above that we discern no error in the Deputy President’s reasons with respect to his conclusion that Mr Baughen was not dismissed and therefore was obliged to dismiss Mr Baughen’s application on that basis.
[72] For the sake of completeness however, we observe that the Deputy President’s consideration of whether adverse action was taken against Mr Baughen by BAC followed an entirely orthodox approach adhering to the relevant legal principles. In our view, the Deputy President’s Decision in this respect was sound and we do not consider that Mr Baughen’s appeal, even were we to uphold it on the grounds upon which it is advanced, would serve any useful purpose.
Conclusion
[73] For the reasons set out above, the Full Bench is not satisfied that Mr Baughen has demonstrated an arguable case of appealable error or that it would be in the public interest to grant permission to appeal pursuant to s.604(2) of the Act.
[74] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Matter decided on the papers.
Final written submissions:
Appellant, 6 July 2022.
Respondent, 5 August 2022.
Printed by authority of the Commonwealth Government Printer
<PR744426>
1 Baughen v Bawinga Aboriginal Corporation [2022] FWC 1499 (Decision).
2 Fair Work Act 2009 (Cth) s.607(1).
3 Decision [12].
4 Decision [58].
5 Decision [58].
6 Decision [58], citing Workpac Pty Ltd v Rossato (2021) 271 CLR 456, 483 [81] (Workpac).
7 Decision [58], citing Workpac Pty Ltd v Rossato (2021) 271 CLR 456, 479-80 [65].
8 Decision [59].
9 Decision [60].
10 Decision [3].
11 Baughen v Bawinanga Aboriginal Corporation [2020] FWC 4530 (EOT Decision).
12 Decision [4].
13 Baughen v Bawinanga Aboriginal Corporation [2021] FWC 5918.
14 Baughen v Bawinanga Aboriginal Corporation [2022] FWCFB 1.
15 Decision [17].
16 Decision [17].
17 Decision [18].
18 Decision [19].
19 Decision [21].
20 Transcript of Proceedings, Baughen v Bawinanga Aboriginal Corporation (Fair Work Commission, C2020/6851, Cross DP, 1 April 2022) [PN68], [PN183].
21 Decision [22].
22 Decision [23].
23 Decision [24].
24 Decision [34].
25 Decision [34].
26 Decision [35].
27 Decision [37].
28 Decision [38].
29 Decision [43].
30 Decision [44].
31 Decision [47].
32 Decision [47].
33 Decision [49].
34 Decision [50].
35 (2017) 273 IR 44, 80-1 [75(4)] (Khayam).
36 Decision [53].
37 Decision [54].
38 Decision [54], citing Papalia v Italian Assistance Association [2013] FWC 7996 (Papalia).
39 Decision [54].
40 Decision [55].
41 Decision [57].
42 Decision [57].
43 Decision [56].
44 Decision [56].
45 Decision [61].
46 Decision [62] – [63].
47 Decision [63].
48 Decision [64].
49 Decision [66].
50 Decision [72].
51 (2006) 157 IR 470, 477 [32].
52 Decision [73].
53 Decision [74] – [75].
54 [2017] FCA 1046, [295] – [303].
55 (2012) 248 CLR 500.
56 (2014) 253 CLR 243.
57 Decision [79].
58 Decision [79] – [80].
59 Decision [81] – [82].
60 Decision [83].
61 Decision [84] – [85].
62 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204 [17] (Gleeson CJ, Gaudron and Hayne JJ).
63 O’Sullivan v Farrer (1989) 168 CLR 210, 216–217 (Mason CJ, Brennan, Dawson and Gaudron JJ), applied in Hogan v Hinch (2011) 243 CLR 506, 548 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, 90 [44] – [46] (Buchanan J, Marshall J agreeing at 79 [1], Cowdroy J agreeing at 80 [2]).
64 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, 273–4 [26] – [27]; Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388, 396 [28], affd (2011) 192 FCR 78; NSW Bar Association v McAuliffe (2014) 241 IR 177, 188 [28].
65 (2010) 197 IR 266, 273–4 [24] – [27].
66 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 200, 220; Wan v Australian Industrial Relations Commission (2001) 116 FCR 481, 488 [26], 489 [30].
67 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481, 489 [30].
68 Baughen v Bawinanga Aboriginal Corporation [2020] FWC 4530, [50].
71 Papalia v Italian Assistance Association [2013] FWC 7996, [35].
73 Nesci v The Playford Hotel [2018] FWC 5777, [17].
75 (1997) 72 IR 464.
76 Baughen v Bawinanga Aboriginal Corporation [2022] FWCFB 1.
77 (2006) 158 IR 410.
78 Khayam v Navitas English Pty Ltd (2017) 273 IR 44, 76 [65].
79 Khayam v Navitas English Pty Ltd (2017) 273 IR 44, 76 [65].
80 Khayam v Navitas English Pty Ltd (2017) 273 IR 44, 80–2 [75] (citations omitted).
81 Decision [43], [49], [58].
82 Transcript of Proceedings, Baughen v Bawinanga Aboriginal Corporation (Fair Work Commission, C2020/6851, Cross DP, 1 April 2022) [PN282], [PN287].
83 Transcript of Proceedings, Baughen v Bawinanga Aboriginal Corporation (Fair Work Commission, C2020/6851, Cross DP, 1 April 2022) [PN1431].
84 Transcript of Proceedings, Baughen v Bawinanga Aboriginal Corporation (Fair Work Commission, C2020/6851, Cross DP, 1 April 2022) [PN1432].
85 Khayam v Navitas English Pty Ltd (2017) 273 IR 44, 60 [24].
86 Khayam v Navitas English Pty Ltd (2017) 273 IR 44, 91 [100].
87 Decision [79].
88 Decision [79].
89 Decision [53].
90 Workpac Pty Ltd v Rossato (2021) 271 CLR 456, 479–80, [65].
91 Decision [59].
92 Decision [79].
93 Transcript of Proceedings, Baughen v Bawinanga Aboriginal Corporation (Fair Work Commission, C2020/6851, Cross DP, 1 April 2022) [PN322] – [PN324].
94 Decision [79].
95 (1994) 122 ALR 333.
96 Siagian v Sanel Pty Ltd (1994) 122 ALR 333, 352–3.
97 Siagian v Sanel Pty Ltd (1994) 122 ALR 333, 354–5.
98 Department of Justice v Lunn (2006) 158 IR 410, 418 [16].
99 Ayub v NSW Trains (2016) 262 IR 60; Ryman v Thrash Pty Ltd (2015) 268 IR 1.
100 Siagian v Sanel Pty Ltd (1994) 122 ALR 333, 354–5.
101 Letter from Ingrid Stonhill to Glenn Baughen, 25 October 2019.
102 Bawinanga Aboriginal Corporation, ‘Respondent's Outline of Submissions’, Submission in Baughen v Bawinanga Aboriginal Corporation, C2021/6656, 14 March 2022, [116].
103 Decision [79].
104 Decision [84].