| [2020] FWC 1623 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sophia Davis
v
Pilbara Community Legal Centre Inc
(U2019/7190)
COMMISSIONER WILLIAMS |
PERTH, 31 MARCH 2020 |
Application for an unfair dismissal remedy.
[1] This matter involves an application made by Ms Sophia Davis (Ms Davis or the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is Pilbara Community Legal Centre Inc (the Respondent).
[2] The Applicant was employed as a Housing Support Worker for the Respondent whom operates a community legal centre in Karratha.
[3] The Respondent objects to the application on the grounds that the Applicant was not dismissed because she was a person employed under a contract of employment for a specified period of time and her employment terminated at the end of that period, or she was employed for a specified task and her employment was terminated on completion of that task.
[4] The Respondent is a community legal service and is a not-for-profit organisation fully funded by a mixture of Commonwealth and State Government grants.
[5] The Respondent offers all its services without fee to its clients.
[6] The Applicant was employed as a Housing Support Worker.
[7] The Applicant was first employed by the Respondent pursuant to a written contract dated 27 February 2017 for a period up until 31 October 2017. 1 That employment was based in Port Hedland.
[8] This contract refers to it being a “…fixed term contract...”. The contract expressly states the commencement date is 27 February 2017 and the contract end date is 31 October 2017.
[9] Subsequently the Applicant moved to Karratha and was again employed pursuant to a written contract dated 30 April 2018, for a period up until 30 June 2018. 2
[10] This second contract refers to it being a “…fixed term contract...”.
[11] The second contract expressly states the commencement date is 30 April 2018 and the contract end date is 30 June 2018.
[12] The acting CEO of the Respondent, Ms Sharon Morrow (Ms Morrow) gave evidence that Ms Davis next began work in the role of Housing Support Worker in Karratha on 1 July 2018, for a period of 12 months aligned with the Department of Communities funding for her role.
[13] Her evidence in chief is that the Applicant was advised on commencement that her employment was for a fixed term period of one year, in alignment with the respective funding grant. Her evidence did not suggest there was a written contract for this period.
[14] Under cross-examination Ms Morrow conceded that she herself did not advise Ms Davis or make her aware of anything when she commenced. Ms Morrow at that time was not the CEO or acting CEO.
[15] Her evidence was that all employees of the Respondent are advised and are aware that the contracts of employment are aligned with funding agreements. She says this is fundamental, due to the financial reliance on grant funding to cover all operating and service delivery expenses.
[16] Her evidence, consistent with Ms Davis' evidence, was that the Applicant had previously been employed on two occasions on written fixed term contracts.
[17] Her evidence was that the Applicant was advised by email on 8 June 2019, after she failed to attend a performance meeting, that her current contract was ending on 30 June 2019, and that she would be stood down to the end of such contract of employment. She says the Applicant did not challenge this at the time and was paid until the end of this contract.
[18] The Applicant's evidence is there were only two written contracts she ever had with the Respondent as details above. 3
[19] When the second contract expired, on 30 June 2018, the Applicant’s evidence in chief was that she continued to perform her role as a Housing Support Worker. She says she understood she was a full-time permanent employee and expected she would continue to perform that role for the foreseeable future. She says she was never involved with funding. 4
[20] Under cross-examination the Applicant's evidence was that in the community sector when funding ends contracts of employment, in her case, have not necessarily ended. 5 Her evidence was that she has been employed after funding has expired. 6
[21] The Applicant's evidence was that in 2019, the then CEO and acting CEO, told her not to worry about funding and because she was still employed, she thought her position was secure. Other employees were worried about their contracts, but employees were never given a full and clear explanation that their contracts had ended or ceased, or they were no longer working. The Applicant says employees were told to “...keep working and we'll see what happens”. 7
[22] The Applicant’s evidence in chief 8 was that on 10 June 2019, she received an email dated 8 June 2019 from Ms Morrow. The Applicant’s evidence is that the email states that she had not advised the office receptionist that she would not be attending work the previous Friday or attending to client appointments. The email then states that the scheduled meeting was to discuss a breach of the code of conduct and performance issues due to her late or failure to submit reports for her program and her overall work management. Her evidence is that the email went on to say that her contract expires on 30 June 2019 and because she did not attend the meeting with Ms Morrow on 7 June 2019, Ms Morrow had no choice but to provide the email as a first and final notice and stand her down form her employment on full pay.
[23] Under cross-examination the Applicant's evidence was that when she received Ms Morrow's email sent on 8 June 2019 she knew there was no contract and she was upset and distraught that Ms Morrow was dismissing her so she walked out and sought legal advice from there.
[24] Sometime after the employment ended the Applicant requested by email from the Respondent a copy of any contract of employment ending 30 June 2019, but none was provided.
[25] Based on the evidence above I find that following the end of the second written fixed term contract, on 30 June 2018, the parties did not enter into a third written contract.
[26] The evidence of Ms Morrow that the Applicant was advised, assumedly on 1 July 2018, that her employment was for a fixed term period of one year is, on her own admission, hearsay. Contrary to this evidence is the direct evidence of the Applicant that there was no third contract entered into. Rather the direct evidence of the Applicant is that after 30 June 2018, she simply continued to perform her role as she had done previously.
[27] Section 386(2), set out below, prescribes when a person has not been dismissed.
“…(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.”
[28] A person employed under a contract of employment for a specified period of time, whose employment has terminated at the end of the period has not been dismissed.
[29] A person employed under a contract of employment for a specified task whose employment has terminated on completion of the task has not been dismissed.
[30] The Respondent submits that the Applicant was not dismissed, as her contract simply ended on 30 July 2019.
[31] The Applicant was aware that the Respondent employs all staff on fixed term contracts aligned with government funding agreements and that her Contract of Employment was aligned with the program funding which is consistent with her previous periods of employment with the Respondent.
[32] The Respondent states that the Applicant was employed on a fixed term contract which ended on 30 June 2019.
[33] The funding for the Housing Support Workers ended on 30 June 2019, and that all Housing Support Workers including the Applicant employed by the Respondent would end on 30 June 2019.
[34] This is supported by the decision in Dale v Hatch Pty Ltd [2015] FWC 4970 (12 October 2015). His Honour Chief Justice Wilcox held that the exclusion does not apply whenever an employer employs a person to work on a particular project, whatever its size and duration. His Honour further held that:
“The words "for a specified task" qualify the words "contract of employment ". The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words "for a specified task" have nothing to do with the employer's task, or project.”
[35] His Honour also observed that it is understandable that the provisions relating to unfair dismissal should not be available to people who undertake only a specified task, and that it would be anomalous to restrict the employer's right to terminate the contract after the task is completed. Conversely, given that many projects continue for many years while employees come and go, it would be equally anomalous to exclude relief from unfair dismissal simply because an employee was engaged in connection with a particular project.
[36] These principles have been applied in a number of decisions of the Fair Work Commission (Commission) including:
• Hewitt v ACTek Custom Engineering Pty Ltd, in which it was emphasised that the phrase “a specified task” covers situations: “where an employee has been employed to perform a project or job which is distinct or identifiable in its own right...”.
• Derar v Recruitco Pty Ltd, where it was held that an employment offer from a labour hire company restricted to an engagement by a host organisation, defines the specific duration of that particular employment and results in the employee being engaged for a specified task.
• Henderson v John Holland Pty Ltd where it was held that an employee was employed for a specified task in circumstances where the employee had been engaged on a number of successive projects under a series of separate employment contracts relating to each project, specifying the task of ‘concrete finisher’, that the employee performed on each project.
[37] The Respondent also submits that the Applicant at no time between the 8 June 2019 and the end of the contract being 30 June 2019, contacted the Respondent to dispute the end date of the contract.
[38] Also, the Applicant was aware that she was not employed as a permanent employee as supported by her previous fixed term contracts.
[39] The Respondent submits therefore that the application must be dismissed.
[40] For the Applicant it is submitted that the most recent fixed term employment contract executed between the parties was dated the 30 April 2018, ending on 30 June 2018.
[41] At the expiry of this, the last written employment contract, employment of the Applicant was rolled over and she continued to work and be paid in her role as a Housing Support Officer on a full-time basis.
[42] There was no agreement between the parties that the employment of the Applicant was time limited to the 30 June 2019 as asserted by the Respondent.
[43] Significantly the Respondent does not rely upon a written contract, nor does it set out the terms of any oral agreement in which the position of Housing Support Officer was time limited.
[44] The Applicant has made an application to the Commission for an unfair dismissal remedy arising from her dismissal by the Respondent by email on the 8 June 2019.
[45] The Applicant states she was not on a fixed term contract at the date of dismissal.
[46] A dismissal will have occurred if the employment of the Applicant was terminated at the initiative of the employer.
[47] However, the Applicant will not have been dismissed if she was employed under a contract of employment for a specified period of time.
[48] Relevantly Section 386 provides as follows:
A person has been dismissed if:
• the person's employment with his or her employer has been terminated on the employer's initiative;
However, a person has not been dismissed if:
• the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task.
[49] Accordingly, it can be seen that the exclusion from the definition of dismissed requires that the contract of employment be for a specified period of time and that the employment has terminated at the end of that period.
[50] This case involves no contract of employment and termination at the end of the period but rather conduct of the employer initiating the termination by email dated 8 June 2019.
[51] The termination was not previously agreed by the Applicant nor did she consent to leaving on 30 June 2019.
[52] The correct approach to the interpretation of s.386(1) and s.386(2) was set out in the Full Bench decision of Saied Khayam v Navitas English Pty Ltd.
[53] From the material filed by the Respondent including the witness statements, the case for the jurisdictional objection appears to be:
• The Applicant's contract of employment was for the period ending on the 30 June 2019;
• There was no written contract between the parties to that effect;
• There can be inferred a contract for a specified period of time;
• The Applicant knew that she was employed for a specified period of time ;
• She would have known that because another worker was employed on a fixed term contract; and
• She would have known that because of the funding arrangements.
[54] The Applicant states that she was not employed on a fixed term contract which was to expire on the 30 June 2019.
[55] When she received the dismissal email the Applicant queried the Respondent's administration about the existence of such a contract and none was produced.
[56] In the circumstances the evidence from the Applicant that she was not on a fixed term contract is a complete answer to the objection.
[57] There is nothing more from the Respondent other than purported inferences all of which have been negatived by the Applicant. She states that she had nothing to do with funding and expressed the view that she considered herself a permanent employee. Whether others were employed on fixed terms contracts in the same or similar positions is not to the point and irrelevant.
[58] There is nothing in the employment relationship and the way it ended to trigger the jurisdictional objection. The Applicant was dismissed by the employer and the termination was at the initiative of the employer. The jurisdictional objection ought to be dismissed and the case proceed on the merits.
[59] This is not a case where the Applicant’s employment relationship was made up of a sequence of time-limited contracts of employment.
[60] The facts, which are not in dispute, are that the Applicant was first employed by the Respondent under a written contract of employment for a specified period of time, from 27 February 2017 until 31 October 2017.
[61] The Applicant was then not employed again until six months later.
[62] The Applicant was next employed by the Respondent under a written contract of employment for a specified period of time, from 30 April 2018 until 30 June 2018.
[63] It is also agreed that the Applicant was employed from 1 July 2018 until 30 June 2019.
[64] What is in dispute however is the Respondent’s assertions that the Applicant’s employment from 1 July 2018 onwards was under a contract of employment for a specified period of time that ended on 30 June 2019 or was for a specified task which was completed on 30 June 2019.
[65] Given this decision deals with the Respondent’s jurisdictional objection the onus is on the Respondent to put forward evidence to the Commission in support of its objection.
[66] The parties agree there was no written contract dealing with the period of employment from 1 July 2018 to 30 June 2019.
[67] What little evidence there is as to what occurred before 1 July 2018, does not demonstrate there was an oral contract made between the Applicant and the Respondent which was either a contract of employment for a specified period of time end 30 June 2019 or for the completion of a specified task by 30 June 2019.
[68] This is not an instance where it could be argued that it was an implied term of the contract between the Applicant and the Respondent that the contract of employment was for a specified period of time or for the completion of a specified task. There is no evidence that such a term was in the circumstances absolutely necessary for the effective operation of the contract, such that it should be taken by the Commission to have been implied.
[69] Further the Respondent sought to adduce evidence to support their submission that it was custom and practice in the sector for employees to have fixed term contracts which temporally aligned with the period of grant funding, however the evidence of the Applicant rejected this proposition. The evidence in this case does not demonstrate that there was an industry custom or practice so well-known as to be implied as a term of the contract in this instance, that the contract was for a specified term or for the completion of a specified task.
[70] Simply put on the evidence before the Commission, I am not satisfied that the Applicants contract of employment from 1 July 2018, was in fact either for a specified period of time ending on 30 June 2019 or alternatively for a specified task which was completed on 30 June 2019.
[71] I find the Applicant’s employment was ended by the email by Ms Morrow sent to her dated 8 June 2019.
[72] This was not a case where the employment relationship was left voluntarily by the employee. It is clear that the termination was not agreed to by the Applicant and resulted directly from Ms Morrow’s email.
[73] My decision is that the Applicant’s employment with the Respondent was terminated on the employer’s initiative.
[74] Consequently, I hereby dismiss the Respondents jurisdictional objection. An order to this effect will be issued in conjunction with this decision.
[75] The matter in due course will be listed for a further hearing to determine the merits of the Applicant’s unfair dismissal remedy application and directions will be issued to the parties regarding further witness statements and submissions concerning issues of merit.
[76] The Commission recommends the parties enter into private discussions in an attempt to resolve this matter by compromise, as an alternative to both parties incurring the additional costs which will arise from a second hearing.
Appearances:
Patrick Mullally of Work Claims Australia for the Applicant
Sharyn Morrow from the Respondent
Hearing details:
2020.
Perth:
14 February.
Printed by authority of the Commonwealth Government Printer
<PR717815>
1 Witness Statement of Sophia Davis (Davis Statement), Attachment B.
2 Ibid, Attachment A.
3 PN40.
4 Davis Statement, at [6].
5 PN78.
6 PN79.
7 PN80 – PN84.
8 Davis Statement at [26].