1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony Hope
v
Rail Corporation New South Wales T/A Rail Corp
(U2013/2562)
SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 JANUARY 2014
Application for relief from unfair dismissal.
[1] Mr Hope has lodged an application pursuant to section 394 of the Fair Work Act 2009
(the Act).
[2] Rail Corporation New South Wales (RailCorp) objects to the application on the basis
that Mr Hope was employed pursuant to a contract of employment for a specified period of
time and that therefore there was no termination of Mr Hope’s employment at RailCorp’s
initiative.
[3] I heard RailCorp's jurisdictional objection to Mr Hope’s application on 8 November
2013. Permission was granted for both parties to be represented by Counsel. Mr Pearce
appeared for Mr Hope and Mr Murphy appeared for RailCorp.
[4] The letter of offer1 dated 29 July 2011, by which Mr Hope was said to be appointed to
temporary employment as a Building Officer, nominated a commencement date of 1 August
2011 for a period of up to six months terminating on 1 February 2012. The contract contained
a Probation clause and a Termination clause. These are set out below.
“Probation
You will be employed on a probationary period for the first 3 months of your
appointment. During this period your employment can be terminated by either you
or RailCorp giving 1 week’s written notice or by RailCorp paying you 1 week’s
pay in lieu of notice.
------
Termination
RailCorp may terminate your employment, without notice or payment in lieu of
notice, in the event of serious misconduct. ‘Serious misconduct’ includes, but is not
[2014] FWC 42
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 42
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limited to, theft, fighting, verbal abuse, and consumption of alcohol and/or drugs and
other matters set out in RailCorp’s policies and procedures.”
(my emphasis)
[5] The letter of appointment dated 29 July 2011 expressly indicates that the RailCorp
Enterprise Agreement 2010 and RailCorp policies and procedures would apply to Mr Hope’s
appointment.
[6] Mr Hope worked for RailCorp beyond the nominated specified period which was to
have ended on 1 February 2012.
[7] Subsequently, by letter dated 7 February 2012, Mr Hope’s employment was said to be
extended from 1 February 2012 until 30 April 2012.2
[8] Mr Hope worked for RailCorp beyond the nominated specified period which was to
have ended on 30 April 2012.
[9] Subsequently, by letter dated 28 May 2012, Mr Hope’s employment was said to be
extended from 1 May 2012 to 31 October 2012.3
[10] Mr Hope continued to work for RailCorp beyond the nominated specified period,
which was to have ended on 31 October 2012.
[11] Subsequently, by letter dated 29 April 2013, Mr Hope’s employment was said to be
extended from 1 May 2013 up to 31 July 2013.4
[12] Subsequently, Mr Hope was advised by letter dated 27 June 2013 that his temporary
employment would cease on 12 July 2013.5
Respondent’s evidence and submissions
[13] RailCorp objected to the application on two grounds:
Mr Hope was employed under a contract of employment for a specified period of time
and the employment had terminated at the end of the period; and/or
There was no termination of employment at the employer’s initiative.
[14] It was submitted for RailCorp that “the employment relationship was a true temporary
arrangement utilised while RailCorp sought to outsource its building management functions
to an external group.”6 RailCorp submitted that this restructure was the reason why the
employment of Mr Hope was temporary. No evidence was called to support this submission.
[15] Mr Hope was employed in the area of Asset Management and Workplace Services,
and RailCorp submitted that employees in these groups “were aware that their area would be
outsourced to DTZ, a UGL company, with a new service commencing from 8 July 2013.”7
Accordingly, RailCorp submitted that Mr Hope was aware that there was never an expectation
of on-going employment.8
[2014] FWC 42
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[16] RailCorp cited the Full Bench of Sarah Lunn v Department of Justice9 which stated
that when an outer limit contract reaches the nominated end date, the contract terminates
through the effluxation of time and there is no termination of employment at the initiative of
the employer.
[17] RailCorp also cited Linda Davies v RMIT University Student Union10 as support, in
particular it relied on Senior Deputy President Kaufman’s statement that: “...she must be
taken to have known that her employment could not be made permanent; all that she could
have hoped for was that she would be considered for the appointment to the position.” (at para
[24]).
[18] RailCorp submitted that Mr Hope’s employment was not terminated at the initiative
of RailCorp as his employment was only for a specified time. RailCorp relied on as evidence,
the letters in Annexures B to E, which explicitly refer to the temporary nature of the contract
and offer.
[19] During proceedings RailCorp submitted that “...this was an employment for a
specified period of time and therefore is excluded from the Act, and going then hand in hand
with that is that the employment was not terminated at the initiative of the employer because
the contract itself terminated the employment.”11
Applicant’s evidence and submissions
[20] It was submitted for Mr Hope that Mr Hope was not aware of the impending
outsourcing of his position to DTZ.
[21] Mr Hope submitted that the contract of employment between Mr Hope and RailCorp
was not for a specified period, but ongoing. In support of this submission, Mr Hope cited
Andersen v Umbakumba Community Council12 in particular, Justice Von Doussa’s statement
that “If the terms of the contract of employment, instead of identifying ... the period of time
during which it is to run, provides that it is to run until some future event, the timing of the
happening which is uncertain when the contract is made, the contract will be for an
indeterminate period of time.”
[22] Mr Hope submitted that “...there was no fixed termination date - and that same
terminology continued to be used throughout all of the letters.”13 Accordingly, Mr Hope
submitted that “this is not a contract for a specified period of time because it doesn’t have
certainty as to its commencement or time of completion.”14
[23] Mr Hope relied on the decision of the Full Bench in SPC Ardmona Operations Ltd v
Esam15, which stated: “A series of fixed term contracts may give rise to an understanding that
the employment is in fact ongoing and not genuinely fixed term in nature. The whole of the
contract is to be taken into account and provisions that are inconsistent with an intention to
provide a fixed term (such as references of long service or entitlements beyond the stated
period) may create ambiguity and need to be taken into account.”
[24] Mr Hope also submitted that the terms of the RailCorp Enterprise Agreement 2010
were expressly imported into the contract of employment between Mr Hope and RailCorp,
citing Justices Gummow, Haynes and McHugh in Re Pacific Coal; ex Parte CFMEU16 as
support.
[2014] FWC 42
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[25] Mr Hope submitted that the express incorporation of the terms of the enterprise
agreement into Mr Hope’s contract of employment meant that Mr Hope was employed as a
full time employee at the time his employment was terminated. It submitted:
Mr Hope was employed for a period of more than 24 months at the time of
termination.
Mr Hope’s employment status did not meet the definition of “Temporary Employee”
under clause 4 of the enterprise agreement, which provides that “Temporary
Employee is a person recruited externally for a fixed period of not more than 12
months or for a special project, or maternity relief of not more than 24 months on
either a full time or part time basis.”
Mr Hope’s employment status did not meet the definition of “Casual Employee” under
clause 4 of the enterprise agreement, which provides that “Casual Employee is a
person for whom the periods of engagement are irregular or uncertain or, if regular,
for a fixed or limited duration only.”
[26] Section 386 of the Act is set out below:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.
(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.
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[27] Subsection 386(3) provides an exception to the exclusion. Subsection 386(2) does not
apply to a person employed under a fixed period or fixed task contract if a substantial purpose
of the employment of the person under such type of contract is, or was at the time of
employment, to avoid the employer’s obligations in relation to unfair dismissal.
Conclusion
Temporary contract
[28] I am not persuaded that Mr Hope was employed pursuant to a temporary appointment.
The terms under which there can be a temporary appointment to RailCorp are set out in clause
17.5 of the RailCorp Enterprise Agreement 2010. The arrangements in relation to the
employment of Mr Hope do not meet those terms.
Contract for a specified task
[29] I am not persuaded that Mr Hope was employed for a specified task. Although Mr
Murphy made submissions concerning what was known by employees of RailCorp, including
Mr Hope, concerning future outsourcing arrangements for Mr Hope's area of work, there was
no evidence before me about those matters.
[30] There was some suggestion that the early termination of Mr Hope's employment prior
to the last specified expiration date of 31 July 2013 was because the specified task for which
he was employed had been completed. There was no evidence before me of this contract of
employment having been entered into for the purpose of completing a specified task.
[31] Submissions from the bar table about what was known or might have been known by
various employees including Mr Hope, or what might have been the purpose of Mr Hope's
employment, were of no evidentiary value.
Fixed term contract
[32] I am not persuaded that Mr Hope was employed under a contract for a specified period
of time at the date of termination of his employment for the following reasons.
[33] The letters of appointment which are said by RailCorp to set out fixed term or
specified time appointments refer to appointments up to instead of to a specified date,
indicating that termination of the contract of employment might take place earlier than the
specified date. This weighs against the contract being a contract for a specified period of time
with a specified end date.
[34] At commencement of employment Mr Hope was employed pursuant to a contract that
contained a probation clause. That clause provided RailCorp with an unqualified right to
terminate the contract on notice during the probationary period. This weighs against the
contract being a contract for a specified period of time with a specified end date.
[35] The letter of appointment, dated 29 July 2011, specifies a progression in salary based
on annual reviews. This weighs against the contract being a contract for a specified period of
time with a specified end date.
[2014] FWC 42
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[36] During the last of the alleged contracts for a specified time, which was set to expire
on the 31 July 2013, Mr Hope's employment was terminated on 12 July 2013. This weighs
against the contract being a contract for a specified period of time with a specified end date.
[37] The contract of employment incorporated the terms of the enterprise agreement, many
of which are inconsistent with a contract for a specified period of time.
[38] Although the original contract of employment appointed an end date, Mr Hope was
allowed to continue in employment past the proposed end date. When he continued in
employment past the original proposed end date I am satisfied that Mr Hope became a
permanent employee and remained so despite the fact that, at various times thereafter,
RailCorp proposed to retrospectively create further fixed term contracts. There was a period
from 1 November 2012 to 31 April 2013 when there was no contract in place, retrospective or
otherwise. I am satisfied that such retrospective creations were ineffective.
[39] I am satisfied that the gaps, some of them substantial, between the end of any of the
proposed retrospective fixed term contracts and the fact that there were a series of such
proposed contracts, could well have given rise to an understanding that Mr Hope’s
employment was ongoing permanent employment.
Dismissal
[40] Since I have determined that Mr Hope was not employed by a contract for a specified
task the completion of such a task could not bring his employment to an end.
[41] Since I have determined that Mr Hope was not employed pursuant to a contract for a
specified period of time when his employment was terminated, the effluxion of that period of
time could not bring his employment to an end.
[42] I have concluded that Mr Hope was engaged by RailCorp in full-time employment and
that his employment was brought to an end at RailCorp’s initiative. His application is
therefore not excluded from the jurisdiction of the Fair Work Commission.
[43] However, given that the work which was performed by Mr Hope may not have
continued to be performed in-house, this is an application which would benefit from early
conciliation. I will therefore refer the file to the Panel Head for allocation.
[2014] FWC 42
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[44] The jurisdictional objection of RailCorp to the application of Mr Hope is dismissed.
SENIOR DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR546424
1 Exhibit RailCorp 1 Annexure B
2 Exhibit RailCorp 1 Annexure C
3 Exhibit RailCorp 1 Annexure D
4 Exhibit RailCorp 1 Annexure E
5 Exhibit RailCorp 1 Annexure F
6 Respondent’s Submission, U2013/2562, para 2.
7 Respondent’s Submission, U2013/2562, para 11.5
8 Respondent’s Submission, U2013/2562, para 12.
9 [2006] AIRC 756 (27 November 2006)
10 [2010] FWA 9968
11 Transcript of Proceedings, 1049149-1, U2013/2562, Mr Anthony Hope v Rail Corporation New South Wales T/A Rail
Corp, Sydney, 8 November 2013, para. 20, Mr. Murphy.
12 (1994) 56 IR 102
13 Transcript of Proceedings, 1049149-1, U2013/2562, Mr Anthony Hope v Rail Corporation New South Wales T/A Rail
Corp, Sydney, 8 November 2013, para. 31, Mr. Pearce.
14 Transcript of Proceedings, 1049149-1, U2013/2562, Mr Anthony Hope v Rail Corporation New South Wales T/A Rail
Corp, Sydney, 8 November 2013, para. 36, Mr. Pearce.
15 (2005) 141 IR 338, para 95
16 (2008) 172 ALR 257 at paras [211, 120]
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