1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Helen Akee
v
Link-Up (Queensland) Aboriginal Corporation
(U2014/11162)
VICE PRESIDENT HATCHER SYDNEY, 9 FEBRUARY 2015
Application for relief from unfair dismissal.
[1] This decision reproduces in edited form the decision and reasons which were stated on
transcript at the conclusion of the hearing conducted in relation to this matter on 15 January
2015.
[2] Ms Helen Akee has filed an application for an unfair dismissal remedy under s.394 of
the Fair Work Act 2009 (FW Act). She contends that she was dismissed by her former
employer, Link-Up (Queensland) Aboriginal Corporation (Link-Up) effective from 3 July
2014.
[3] Link-Up contends that Ms Akee’s application should be dismissed on the basis that it
does not properly invoke the Commission’s jurisdiction. It contends that Ms Akee was never
“dismissed” within the meaning of that word in the FW Act. “Dismissed” is given a definition
in s.386 of the FW Act. Relevantly s.386(1)(a) provides:
(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; …
[4] Section 386(2)(a) provides:
(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; ...
[5] The basic facts relevant to Link-Up’s jurisdictional objection are as follows:
(1) Ms Akee was employed as acting CEO for Link-Up on 22 July 2013.
[2015] FWC 555
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 555
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(2) On 12 February 2014 Ms Akee entered into a written and executed contract of
employment with Link-Up to serve as the CEO. Clause 3, “Term”, of that contract
provides:
“Applicable from date of signing from 12 February 2014 which is subject to
continued funding.”
(3) At a meeting on 30 June 2014, the Board of Link-Up resolved that it “would not
offer the CEO a further contract”. This resolution appears to have been based on a
belief that Ms Akee’s employment contract of 12 February 2014 expired on 30
June 2014. Ms Akee seems to have held the same belief.
(4) Ms Akee continued to attend for work for some days after that, without any
objection from Link-Up, although she restricted her duties because of uncertainty
as to her status.
(5) On 4 July 2014 the Chairperson of Link-Up sent Ms Akee a letter containing an
offer from the Board to employ Ms Akee under a short term work contract on the
same pay and conditions until 16 July 2014 in order for Ms Akee to be involved in
a “handover transition” to a new Acting CEO. On 8 July 2014, by email, a written
contract consistent with the terms of the 4 July 2014 letter was sent to Ms Akee.
(6) Ms Akee never executed the new contract. Nor did she ever involve herself in the
handover to the new Acting CEO as contemplated by the letter of 4 July 2014. In
an email dated 8 July 2014 Ms Akee indicated that she was prepared to sign the
new contract, but she never did.
(7) On 9 July 2014 Link-Up sent Ms Akee a further letter that alleged Ms Akee had
harassed certain staff and had indicated to Link-Up that she was not prepared to
come in to do a handover with the new CEO. The letter then said:
“You will not be required to work out the notice period or required to work up
until the 16th July, 2014 as previously offered. You will be paid in lieu of
working the notice out and those monies will be forwarded to you in due
process.”
The letter also required Ms Akee to return/delete confidential information by the
following day.
(8) Ms Akee received payment of salary for the period 1-16 July 2014. It is not clear
when this payment was received by her.
[6] Link-Up contends that there was no dismissal by reason of s.386(2)(a) on the basis
that Ms Akee was employed for a specified period from 12 February 2014 to 30 June 2014,
and that the only employment contract after that was that offered for a further specified period
until 16 July 2014. The employment, Link-Up says, terminated at the end of that further
contract on 16 July 2014.
[2015] FWC 555
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[7] I do not accept that contention on the evidence before me. The contract of 12 February
2014, which was written and executed, contained no provision indicating that it operated for a
specified period until 30 June 2014. Its continuation was subject to the condition of a
continuation of funding, but there was no evidence that funding stopped as at 30 June 2014.
The Board arguably may have by its conduct repudiated the contract on 30 June 2014, but Ms
Akee did not accept any such repudiation since she continued to attend for work.
[8] Any subjective belief which the parties may have had that the contract terminated on
30 June 2014 is not relevant. The contract is to be interpreted objectively according to its
terms and not on the basis of the subjective beliefs of the parties.1 Further, the parol evidence
rule prevents Link-Up from relying on extrinsic evidence to subvert the express written terms
of the contract.
[9] I am not positively persuaded, as I need to be, that Ms Akee accepted the terms of the
4 July 2014 offer and the 8 July 2014 proposed contract such as to form a separate contract
replacing the earlier written and executed contract of 12 February 2014. The proposed new
contract was not executed. Acceptance was never unequivocally conveyed. The duties under
the putative new contract were never performed, and in the termination letter of 9 July 2014,
it was stated that Ms Akee had indicated she was not prepared to perform those duties.
[10] I am therefore not satisfied that there was a further contract for a specified period as
submitted by Link-Up. Even if there was, Link-Up has the further problem concerning
whether Ms Akee’s employment terminated at the end of any such contract on 18 July 2014.
The letter of 9 July 2014 clearly terminated the employment with a payment in lieu of notice.
Where a payment in lieu of notice is made, there may be doubt as to when it is intended that
the employment ends. In Siagian v Sanel Pty Ltd2, the Industrial Relations Court of Australia
(Wilcox CJ) said:
“The question whether a payment in lieu of notice immediately terminates the
employment is always one of fact. In Leech [Leech v Preston Borough Council [1985]
ICR 192] 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.”3
[11] The letter of 9 July 2014 is not pellucidly clear as to its intent but, on balance, I
consider it evinces an intention to terminate the employment forthwith. No further duties were
required to be performed, and confidential information was to be returned or deleted the
following day. The more conventional situation these days is that a payment in lieu of notice
is intended to terminate the employment immediately, and notions of “gardening leave” are
relatively unusual. Further, I consider that the reference in the letter to Ms Akee not being
required to work up until 16 July 2014 “as previously offered” indicates a withdrawal of the
offer of 4 July 2014 rather than predicates it being in operative effect.
1 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at [40]
2 (1994) 122 ALR 333
3 Ibid at 352; see also Mihajlovic v Lifeline Macarthur [2013] FWC 9804.
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1985%5d%20ICR%20192?stem=0&synonyms=0&query=
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1985%5d%20ICR%20192?stem=0&synonyms=0&query=
[2015] FWC 555
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[12] Link-Up argues in the alternative that the dismissal was not at the initiative of the
employer, since any further employment after 30 June 2014 was on the basis of a series of
casual engagements which concluded at the end of each day or a temporary contract which
terminated on the happening of a defined event. This contention is likewise rejected because:
(1) I have already held that the 12 February 2014 contract did not expire on 30 June
2014;
(2) there was no evidence that Ms Akee was employed on a casual basis;
(3) in any event the FW Act recognises that casual employees may be the subject of a
dismissal;
(4) there was no further temporary contract as I have earlier found;
(5) the letter of 9 July 2014 was one which, according to its terms, effected a
termination of an ongoing contract, and the provision of a payment in lieu of
notice is inconsistent with casual or temporary employment.
[13] The jurisdictional objection is therefore dismissed.
VICE PRESIDENT
Appearances:
H. Akee on her own behalf.
R. E. Reed of counsel for the Respondent.
Hearing details:
2015.
Brisbane:
15 January.
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OF THE FAIR WORK MISSION THE
