1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jerome (Ronghua) Jin
v
Sydney Trains
(U2014/16178)
VICE PRESIDENT HATCHER SYDNEY, 7 JULY 2015
Application for relief from unfair dismissal.
Introduction
[1] Mr Ronghua Jin (also known as Jerome Jin) has applied for an unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (FW Act) in relation to his former
employment with Sydney Trains. Sydney Trains is a subsidiary of the NSW statutory
authority RailCorp, and came into operation on 1 July 2013. Mr Jin commenced employment
with RailCorp on 18 April 2011, and his employment transferred to Sydney Trains on 10
March 2014 pursuant to ss.66 and 67 of the Transport Administration Act 1988 (NSW). Mr
Jin’s application identified his dismissal date as 24 December 2014, but at the hearing before
me it was common ground that his employment with Sydney Trains terminated on 31
December 2014 (although his last working day was 23 December 2014).
[2] Mr Jin claims that he was dismissed by Sydney Trains, and that his dismissal was
unfair because his employment was terminated unlawfully on the basis that he was a
temporary employee on a fixed term contract of employment, because there was no valid
reason for his dismissal, and because, to the extent that his position was no longer required, he
was not afforded the redundancy entitlements to which he was entitled as a permanent
employee.
[3] Sydney Trains denies that it dismissed Mr Jin. Its position is that Mr Jin was employed
as a temporary employee on a series of fixed term contracts of employment, and that his
employment ended upon the expiration of the last of those contracts. Alternatively, it
contended that the dismissal was not unfair because Mr Jin was employed on the basis of
fixed term engagements, and that for genuine operational reasons he was not offered a further
engagement at the end of 2014.
Facts
[4] Mr Jin holds qualifications in computer science. He first performed work for RailCorp
as a labour hire employee of Hays IT from 16 August 2010. He worked as an ASP Net
developer. He was then engaged directly by RailCorp as a Technical Specialist – AMS, with
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E AUSTRALIA FairWork Commission
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a position number of 115032. The process by which this was done commenced with an
internal document described as a “Requisition Form”. This form described the temporary
position proposed for Mr Jin as having the function of delivering “the ICT Asset Management
Systems Portfolio’s capital program through provision of technical development (software
enhancement) for RailCorp’s unique Asset Management Systems ...”. The form also described
the “primary project” the role would be assigned to as “CJT417 – Portfolio Upgrade
Program (Asset Management)”.
[5] Mr Jin was then formally offered employment in a letter from RailCorp dated 1 April
2011 (April 2011 offer letter). Omitting formal parts, the opening part of the letter stated:
“I am pleased to formally offer you temporary employment with RailCorp for a period
of up to 3 years from the date of commencement in the role of Technical Specialist –
AMS (Position Number 115032) in the Asset Management Systems Portfolio Unit,
ERP Delivery Division, Level 6, 2-14 Elsie Street Burwood. This Position has been
evaluated at RailCorp Grade 6.
Your appointment to the above position is conditional on your written acceptance of
this offer and agreement to the following employment conditions applicable to this
position.
Should you require clarification of any part of this letter, please do not hesitate to
contact Sara Buchanan on [telephone number omitted].
Role and Responsibilities
Your duties and responsibilities in the above position are set out in the attached
Position Description. You may be required to perform other duties relevant to your
role and within your skill level, even though it may not be specifically detailed in your
Position Description.
Remuneration
Your appointment salary will be $104,621 (RC6C) per annum, including an Industry
Allowance of $2,730. In addition, you will receive the following benefits:
Annual Leave Loading
If applicable shift and other allowances
Superannuation
Progression is available to salary $110,258 pa based on annual reviews.
The Industry Allowance component of your remuneration is subject to you returning
the signed originals of the attached Memorandum of Understanding, Dispute
Settlement Procedures and the Industry Allowance Agreement, regardless of union
membership.
The RailCorp Enterprise Agreement 2010 and relevant RailCorp policies and
procedures will continue to apply to your employment. In accordance with the
RailCorp Enterprise Agreement 2010, your normal working hours for the position are
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76 hours per fortnight (divided into not more than 10 shifts) over a 19 day, 4 weeks
cycle between the hours agreed between you and your manager.”
[6] The letter went on to identify Mr Jin’s entitlements to superannuation and annual and
other forms of leave, and identified obligations in respect of hours of work, RailCorp’s code
of conduct and other policies and procedures including those concerning equal employment
opportunity, drugs and alcohol, safety and information communications technology. It
identified that Mr Jin would be subject to a probationary period of 3 months from the date of
his appointment, during which he could be terminated on a week’s notice or with one week’s
pay in lieu of notice. The letter identified a range of further obligations including in relation to
confidentiality, intellectual property, conflict of interest, other employment and voluntary
work. In relation to termination of employment, the letter said:
“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 limited
to, theft, fighting verbal abuse, and consumption of alcohol and/or drugs and other
matters set out in RailCorp’s policies and procedures.
If you wish to resign from your employment you are required to give 1 week notice in
writing.”
[7] Mr Jin was required to sign and return an attached acceptance letter in order to accept
the offer of employment. The attached acceptance letter opened with the following statement:
“Acceptance and Agreement
I refer to your offer of employment for a period of up to 3 years dated 01 April 2011 to
the position of Technical Specialist – AMS (Position Number 115032) in the ERP
Delivery Division Asset Management Systems Portfolio Unit with RailCorp, at base
salary of $104,621 (RC6C).”
[8] Mr Jin’s evidence was that prior to signing the acceptance letter, he had a conversation
with Mr Aung Myo, his team leader. During this conversation the following exchange
occurred:
Jin: What will happen during the three years?
Aung Myo: For my part I want you to be permanent. The other team
members started as temporaries and after being temporaries
they were changed to permanent automatically.
[9] Mr Jin signed the letter on 1 April 2011, and identified his start date as being 18 April
2011.
[10] A position description was attached to the letter of offer. It described the “Primary
Purpose of Position” as follows:
“Utilising technical expertise of Asset Management Systems to provide timely, expert,
technical support and guidance to the portfolio team in scoping requirements,
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developing schedules and release plans and implementing systems enhancements
across the Asset Management Portfolio.
This position is required to provide out of hours support on a rostered on-call basis, as
part of RailCorp’s commitment to provide 24-hour support for its critical business
applications.”
[11] It is common ground that, as stated in the offer letter, the RailCorp Enterprise
Agreement 2010 (2010 Agreement) applied to Mr Jin’s employment. As earlier stated, Mr
Jin’s employment was transferred from RailCorp to Sydney Trains effective from 10 March
2014. It was also common ground that, after its establishment, Sydney Trains became bound
by the 2010 Agreement, and accordingly that Mr Jin remained covered by the 2010
Agreement when his employment transferred to Sydney Trains.
[12] Mr Jin estimated that he spent 60% of his working time on various new assignments,
5% on assignments concerned with existing systems, 15% dealing with incidents, and 20%
doing other work such as technical meetings and trainings. His uncontradicted evidence was
that his work was never project based and he always performed work that was substantially
similar to that of his permanent colleagues in the Asset Management Systems Team. He
acknowledged that the work he was performing in 2011 when he signed the acceptance letter
was connected with the CJT417 Portfolio Upgrade Program, which he described as a five year
capital project; however his work seems to have changed as time went on.
[13] On 9 April 2014 a requisition form seeking a three-month extension of Mr Jin’s
employment was approved. This form described Mr Jin’s position as being a “Temporary Full
Time Technical Specialist position”, and said that the position would focus on the
“Maintenance Directorate MPM – Asset Information Systems and Service 3 years Program”
and the “Finance, Corporate Directorate Capital program – My Time & Pay Integration”
during the extension. The approval was subject to the comment: “Only prepared to support
till 30 June 2014. If their [sic] is an ongoing need past 30 June, then a submission needs to be
submitted prior to that to establish TFT position within Sydney Trains IT and needs to be
advertised”. Upon approval, Sydney Trains sent Mr Jin the following letter dated 9 April
2014 (April 2014 appointment letter), which stated (omitting formal parts):
“Extension of Temporary Employment to Technical Specialist – AMS (Position no:
115032) in the IT Division
I am pleased to advise you that approval has been given for an extension of your
temporary employment to the position of Technical Specialist – AMS (Position no:
115032) commencing from 18 April 2014 up to 30 June 2014.
You will continue to be paid at RailCorp Grade 6E with a salary at $118,111 (which
includes the industry allowance).
The RailCorp Enterprise Agreement 2010 and relevant RailCorp policies and
procedures will continue to apply to your employment. In accordance with the
RailCorp Enterprise Agreement 2010, your normal working hours for the position are
76 hours per fortnight (divided into not more than 10 shifts) over a 19 day, 4 week
cycle between the hours agreed between you and your manager.
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All other conditions as set out in your original letter of offer remain unchanged.
If you have any questions regarding this letter of offer you can contact Sara Buchanan
on [telephone number omitted].”
[14] There was no requirement for Mr Jin to sign any acceptance of the further employment
identified in this letter, and he apparently just continued working.
[15] A further requisition form sought an extension of Mr Jin’s employment to 31
December 2014. It again described the position as a “Temporary Full Time Technical
Specialist position”, and stated that the role would be required for 24 months to work on a
variety of identified matters. The recommendation for which approval was sought was:
“Seeking to extend Jerome Jin at current grade RC6E for 6 months to provide coverage
during critical transition activities and in-flight projects.
Competitive recruitment will be conducted during these 6 months to fill the position
for the remaining months (up to 24 months – depending on TNSW ERP/EAM
implementation schedule).”
[16] Upon the approval of this requisition, the following letter dated 1 July 2014 (July 2014
appointment letter) was sent to Mr Jin (omitting formal parts):
“Extension of Temporary Employment to Technical Specialist – AMS (Position no:
3012117) in the IT Division
I am pleased to advise you that approval has been given for an extension of your
temporary employment to the position of Technical Specialist – AMS (Position no:
3012117) commencing from 01 July 2014 up to 31 December 2014.
You will continue to be paid at RC Grade 6E with a salary at $118,111 (which
includes the industry allowance).
The Enterprise Agreement 2010 and relevant policies and procedures will continue to
apply to your employment. In accordance with the Enterprise Agreement, your normal
working hours for the position are 76 hours per fortnight (divided into not more than
10 shifts) over a 19 day, 4 week cycle between the hours agreed between you and your
manager.
All other conditions as set out in your original letter of offer remain unchanged.
If you have any questions regarding this letter of offer you can contact Sara Buchanan
on [telephone number omitted].”
[17] Again, Mr Jin was not required to sign any acceptance of the further employment
identified in the letter.
[18] In a letter dated 23 July 2014, an official of Professionals Australia (the operating
name of The Association of Professional Engineers, Scientists and Managers, Australia) made
representations on behalf of Mr Jin to Sydney Trains concerning the status of his
employment. The evidence did not explain what prompted this letter being sent. One
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possibility is that Mr Jin became aware that his position would be opened up for competitive
recruitment at the end of 2014. The letter asserted that Mr Jin performed similar work to that
of his colleagues and that his work was not project-based or intended to cover maternity
leave. It went on to refer to the 2010 Agreement in the following terms:
“I refer to the various clauses of the current Enterprise Agreement, including clause
17.5(b) which provides that “[a] Temporary Employee may be employed for a fixed
period of not more than 12 months”. Given that the stated exclusions (maternity leave
and project-based work) do not apply, it is clear that Jerome’s employment is outside
this limitation.”
[19] The letter then stated that it had been countersigned by a number of Mr Jin’s
colleagues as a “demonstration of their objection to Sydney Trains’ failure to meet its own
employment standards, and as a show of support for Jerome’s claim for permanent
employment”. The letter concluded by asking for a response to this claim by 30 July 2014.
[20] Mr Stephen Cooney, the General Manager, Workplace Relations for Sydney Trains,
reviewed the documents pertaining to Mr Jin’s employment upon receiving this letter. No
immediate reply was sent to Mr Jin. There was a discussion with him about his employment,
and he was sent emails providing links to the Transport for NSW jobs notifications and
informing him of the availability of coaching in resume writing and interview skills. A reply
email to the Professionals Australia letter was finally sent on 15 September 2014, which
stated (omitting formal parts):
“I refer to your enquiry in relation to Jerome Jin who has temporary employment with
ICT section of Sydney Trains until December 2014.
I understand that consideration is being given to the creation of a new temporary
position in the ICT establishment for a period of two years. This proposed temporary
position is driven by project funding and does require Executive Management
approval. Whether the position will be created will be clarified in the near future. If
this temporary position is created, it will be the subject to merit selection. To give him
the best possible chance through any application process, HR have contacted Jerome
to arrange coaching sessions around CV writing and interview skills.
As outlined above, Sydney Trains will continue to work with Jerome to identify
opportunities for further employment within Sydney Trains and across the cluster.
I can confirm that Sydney Trains does not intend to treat Mr Jin adversely on the basis
that he has asserted his employment rights. As you noted, Jerome has raised legitimate
concerns regarding his job security which ST continues to work through with Jerome.”
[21] However approval for the 24-month temporary position referred to in the above email,
for which it was envisaged Mr Jin could apply, was not obtained. This was confirmed in the
following email sent to Mr Jin on 25 September 2014 (formal parts omitted):
“Following on from our conversation on Tuesday the 23rd September 2014, I wanted to
provide you a summary of the discussion. In that meeting I had informed that we will
not be proceeding with a 2 year TFT position, due to funding and changes which will
be implemented as a result of ERP.
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At this point in time we are not in a position to confirm any further extensions of your
temporary employment. Further resourcing requirements will be subject to obtaining
funding and seeking relevant approvals.
We will continue to keep you informed as we both obtain further information in
relation to resourcing requirements.
Please let me or Stephen know if you have any further questions.”
[22] On 14 October 2014, a new enterprise agreement, the Sydney Trains Enterprise
Agreement 2014 (2014 Agreement) came into effect.
[23] Sometime later, Mr Jin queried with Sydney Trains why, having regard to the
provisions of the 2010 Agreement, he was not a permanent rather than a temporary employee.
On 12 December 2014 he sent an email to Sydney Trains headed “How about my job future?”
which requested information on whether he was being dismissed or not, and, if he was, the
reason for the dismissal if any. The response to this email, sent on 15 December 2014,
relevantly stated:
“Please note that the temporary position you are employed to fill ceases at the end of
the year.
Therefore your employment with Sydney Trains ceases 31 December 2014.
With the IT shutdown, this means your last day in the office is 24 December 2014.
As this is an agreed temporary employment, the letter of offer (and amendments)
cover both the initiation and the conclusion of the engagement. Therefore, there will
be no additional documents.
I’ve attached these relevant letters.
However, we do need to schedule an exit discussion in the coming days.”
[24] There were some further communications about Mr Jin’s status as an employee having
regard to the provisions of the 2010 Agreement. However Sydney Trains never actually
provided any substantive response to the contention that the engagement of him as a
temporary employee was inconsistent with the provisions of the 2010 Agreement.
[25] Consistent with the email of 15 December 2014, Mr Jin’s last day of work was 23
December 2014 and his employment terminated on 31 December 2014.
Was Mr Jin dismissed?
[26] As earlier stated, Sydney Trains contended that Mr Jin was not a person who had been
dismissed for the purposes of the unfair dismissal provisions in Part 3-2 of the FW Act
because his employment terminated upon his fixed-term contract of employment expiring as a
result of the effluxion of time. That contention requires consideration at the outset.
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[27] Section 385(a) of the FW Act requires that, for a person to be found to have been
unfairly dismissed, the Commission must be satisfied in the first instance that the person has
been dismissed. Section 386 of the FW Act defines “dismissed” as follows:
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.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the
person under a contract of that kind is, or was at the time of the person’s
employment, to avoid the employer’s obligations under this Part.
[28] It was not Sydney Trains’ submission that the exception in s.386(2)(a) to the primary
definition in s.386(1) applied in this case. It was held in Andersen v Umbakumba Community
Council (in the context of the termination of employment provisions of the Industrial
Relations Act 1988) that an employment contract will not be one for a specified period of time
if it gives either party an unqualified right to terminate the contract on notice or with payment
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in lieu of notice within any specified term.1 Such a contract has been described as one which
merely has an “outer limit” period of operation during which it will not be known when the
employment will terminate. I presume that Sydney Trains’ implicit concession that
s.386(2)(a) did not apply involved a recognition that the April 2011 offer letter, the conditions
of which were carried over by the April 2014 appointment letter and the July 2014
appointment letter, allowed the employee to resign on one weeks’ notice, and also allowed the
employer to dismiss on notice during the probation period. It may have also involved a
recognition that under the terms of the 2010 Agreement and the 2014 Agreement, persons
employed on a temporary basis could be terminated by the employer during the period of their
employment on notice (see clause 17.5(g) of the 2010 Agreement, set out below, and clause
15.5(g) of the 2014 Agreement).
[29] Arguably the applicability of Andersen to the proper interpretation of s.386(2)(a) has
been called into question as a result of paragraph [1532] of the Explanatory Memorandum for
the Fair Work Bill 2009 which said (emphasis added):
[1532] Paragraph 386(2)(a) reflects the common law position that termination in these
circumstances would not be a dismissal. The fact that an employment contract may
allow for earlier termination would not alter the application of this provision as the
employment has terminated at the end of the period, task or season. However, if a
person engaged on this sort of contract is terminated prior to the end time specified in
the contract, they may seek an unfair dismissal remedy if they satisfy the other
requirements.
[30] However no such point was raised by Sydney Trains, and since there was no
contention before me that Mr Jin was not dismissed by reason of the applicability of
s.386(2)(a), I do not propose to consider this issue any further.
[31] Sydney Trains’ submission was rather that the termination of Mr Jin’s employment
was not a dismissal because it did not occur at the initiative of the employer (and thus did not
fall within the primary definition of “dismissed” in s.386(1)(a)) but rather because the term of
the third contract of temporary employment established by the July 2014 appointment letter
expired. Mr Jin’s primary answer to this submission was that he was not a temporary
employee at all because his initial employment did not satisfy the conditions for temporary
employment under clause 17.5 of the 2010 Agreement, and he was in fact a full-time
employee for the purposes of the 2010 Agreement and subsequently the 2014 Agreement.
That submission requires consideration of the relevant provisions of those agreements and
their application to Mr Jin’s employment.
Was Mr Jin initially engaged in accordance with clause 17.5 of the 2010 Agreement?
[32] Clause 17.1 of the 2010 Agreement requires employees covered by it to be engaged in
one of four ways as follows:
17.1 The Employer may engage Employees either on a full-time, part-time,
temporary/fixed term or casual basis, in all classifications to provide
flexibility of employment and to accommodate variability of business
activities.
1 (1994) 126 ALR 121 at 125-6; see also Cooper v Darwin Rugby League Inc. (1994) 57 IR 238
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[33] The expression “Temporary Employee” is defined in clause 4 of the 2010 Agreement
as follows:
“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.”
[34] Insofar as there is a reference in clause 17.1 to employees engaged on a
“temporary/fixed term” basis, I would read “fixed term” as being a reference to temporary
employees engaged for a fixed period (that is, temporary employees engaged other than for a
special project or to cover maternity leave).
[35] Clause 17.5 establishes a scheme of provisions applicable to temporary employment.
The clause provides:
“17.5. Temporary Employment, including Fixed Term Employment
(a) The Employer will use temporary employment to address peaks and
troughs in workload and not to negatively impact on full-time and part -time
employment.
(b) A Temporary Employee may be employed for a fixed period of not more
than 12 months or for a specified project, or maternity relief of not more
than 24 months, on either a full-time or part-time basis.
(c) A Temporary Employee shall be provided with a letter of employment
stipulating the basis of their employment, and their daily and weekly hours of
work.
(d) An offer of temporary employment must specify the period of the
employment or the parameters and expected duration of the project.
(e) Where Temporary Employees are engaged for more than 12 months in
relation to the same role, other than for a defined project role or maternity
relief, the role will be reviewed to determine if a permanent position should
be created.
(f) If a roll over of temporary employment is proposed that would extend the
engagement for more than 12 months in relation to the same role (other than
in a defined project role), the role will be reviewed to determine if a permanent
position is to be created.
(g) Other than in cases of misconduct that warrants summary dismissal, the
Employer may terminate a Temporary Employee in accordance with the notice
provided in Clause 21 (Termination of Employment).
(h) Temporary Employees will only be employed on a full-time or part-time
basis in addition to Full-Time and Part-Time permanent Employees and
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will be employed under the same terms and conditions of employment
as equivalent permanent Employees.
(i) Payment in lieu of notice will be made if the appropriate notice period is not
given by the Employer. The Employer may require all or part of the period
of notice to be worked out with any remainder to be paid out.
(j) Temporary Employees are not entitled to redundancy payments.”
[36] Mr Jin’s submission was that because he had initially been engaged for a period that
was longer than 12 months, and was not engaged for a specified project or for maternity
relief, he was not employed in accordance with the requirements of clause 17.5(b). It
followed, he submitted, that he was initially employed as a “permanent” employee and
remained as such until the date his employment terminated.
[37] Sydney Trains’ response to this was twofold. First, it submitted that Mr Jin had been
employed to work on particular projects. On the basis that “project” in clause 17.5(b) may be
read in the plural as well as the singular, the submission was that it did not matter that he was
initially engaged for more than 12 months because he had been engaged to work on specified
projects. The employment was therefore in accordance with clause 17.5(b).
[38] I reject this first submission. Although Mr Jin was undoubtedly assigned to work on
aspects of various projects during the course of his employment with RailCorp/Sydney
Trains, there is no indication that his employment was for the specific purpose or duration of a
particular project or projects. The April 2011 offer letter made no mention of any specific
project(s) let alone the “parameters and expected duration of the project” as required by
clause 17.5(d). The April 2011 offer letter defined what was described as temporary
employment by reference to its maximum duration only.
[39] Sydney Trains’ second submission was that clause 17.5(e) permitted temporary
engagements for fixed periods in excess of 12 months subject to the condition that the role
would be reviewed to determine if a permanent position should be created. The condition was
satisfied by the fact that, in re-appointing Mr Jin to further fixed-term periods of employment
after his initial three-year engagement expired, there had been an implicit consideration and
rejection of the proposition that a permanent position should be created.
[40] This submission raises an issue about the proper construction of clause 17.5(e). At first
blush it appears to deal with the situation where an employee is placed on further fixed-term
engagements in the same role after the initial fixed-term engagement has expired, and where
the engagements cumulatively exceed 12 months in duration. However, as was pointed out by
Sydney Trains, that is the function that is served by clause 17.5(f). Clause 17.5(f) applies
where a “roll over of temporary employment is proposed that would extend the engagement
for more than 12 months in relation to the same role”, and requires that this may occur only
on the condition that a review is conducted to determine if a permanent position is to be
created. An interpretation of clause 17.5(e) which resulted in it performing the same work as
clause 17.5(f) was not sustainable, Sydney Trains submitted, because it would render one of
the two provisions otiose.
[41] I accept that it is necessary to identify an interpretation of clause 17.5(e) which gives it
work to do that is distinct from that of clause 17.5(f). However, I do not consider that the
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interpretation advanced by Sydney Trains can be the correct one. The primary reason for this
is that it is directly inconsistent with the fact that temporary employment in clause 4 is by
definition confined to a fixed period of not more than 12 months except in the case of special
projects or maternity leave. The proposition that clause 17.5(e) is an exception to the 12
month fixed-term limit imposed by clause 17.5(b) that operates conditional upon there being a
review to determine whether a permanent position should be created is simply irreconcilable
with this definition.
[42] Additionally, Sydney Trains’ interpretation leaves it unclear when the review
condition would have to be satisfied. Reading clause 17.5(e) literally, it would mean that
immediately after someone has actually been engaged for a period which exceeds 12 months,
then the review must take place. In the case of Mr Jin, that would mean that once he was
engaged in 2011 for a period of up to 3 years, the review was required to occur. The purpose
of a review occurring when the fixed-term engagement has already been effected is not
apparent; it would only make sense if the review was to occur before the fixed-term
engagement was entered into. However Sydney Trains’ submission in relation to Mr Jin, as
earlier stated, was that the posited review condition occurred at the time his initial three-year
period of employment had ended and he was re-appointed for a further period of six months.
That submission appears to assume that clause 17.5(e) only requires the review to take place
at the end of the initial fixed-term engagement and before the next engagement. If so, that
would render the condition meaningless, since it would allow an employee to be engaged on a
fixed-term basis for any length of time without the condition having to be satisfied at any time
before or during the engagement. That makes it no condition at all, and would render both the
definition in clause 4 and the time limitation in clause 17.5(b) entirely meaningless.
[43] I should add that in any event I am not satisfied that there was evidence of any review
of Mr Jin’s position being conducted to consider whether it should be converted into a
permanent position. The mere fact that there was a decision to extend Mr Jin’s employment
on a temporary basis is not evidence of any consideration as to whether the position should be
made into a permanent one. No witness or document indicated that any consideration of that
nature ever occurred.
[44] Mr Jin advanced an alternative interpretation of clause 17.5(e) which focused on the
fact that clause 17.5(e) refers to temporary employees in the plural. The significance of that
plural usage, Mr Jin submitted, was that it pointed to the subject matter of the provision being
a situation in which different persons are sequentially engaged for fixed-term periods in the
same role which cumulatively exceed 12 months. On that interpretation, once the total period
of separate fixed-term engagements of different persons exceeded 12 months, the review is
required to be carried out.
[45] That interpretation is attractive for a number of reasons. It is consistent with the
ordinary meaning of the words used in the provision. It is one that maintains consistency with
the 12-month cap on individual fixed-term engagements (except for specified projects and
maternity leave) established by the definition in clause 4 and by clause 17.5(e). It also gives
the provision a distinctly different function to clause 17.5(f), which is concerned with a “roll
over” of fixed term engagements for the same person in the same role. Clause 17.5(f) does
not, as Sydney Trains pointed out, expressly refer to it being the same person, but the use of
the words “roll over” - which connotes an arrangement being repeated for a further period in
identical terms - strongly suggests that that is what the provision is concerned with. Sydney
Trains also submitted that Mr Jin’s interpretation was one which required the clause to be read
[2015] FWC 4248
13
as if the word “consecutively” appeared in clause 17.5(e) so that it read “Where temporary
employees are engaged consecutively …”. I do not agree. While the clause would no doubt be
clearer if that word was used, I consider that as a matter of ordinary English the interpretation
advanced by Mr Jin is sustainable on the words actually used.
[46] I note for completeness that I requested the parties to provide information concerning
the industrial instruments which preceded the 2010 Agreement in order to consider whether
the historical context provided some explanation for the apparent similarity between clauses
17.5(e) and 17.5(f). In response to that request, Sydney Trains usefully provided further
submissions and extracts from instruments. However that material, as Sydney Trains
acknowledged, did not provide any real assistance in identifying what the distinct purposes of
clauses 17.5(e) and 17.5(f) were. It demonstrated that, with some minor modifications that are
not presently relevant, the clause in the 2010 Agreement reproduced clause 16.6 of RailCorp’s
2005 enterprise agreement, and that clauses 17.5(b), (d), (e) and (j) were sourced from the
Rail Infrastructure Corporation Enterprise Bargaining Agreement 2002. The other parts of
clause 17.5 appear to have originated in the 2005 agreement.
[47] The poor drafting of clauses 17.5(e) and (f) means that no interpretation of the
provisions is readily obvious or wholly satisfactory. However, for the reasons stated, I prefer
the interpretation advanced by Mr Jin. It allows the provision to operate in a way which is
more harmonious with the other parts of the clause. That is the interpretation which I will
adopt for the purpose of this decision.
[48] That requires the conclusion that the initial period of engagement of Mr Jin was not a
temporary engagement in accordance with the requirements of clause 17.5, because it was not
limited to 12 months contrary to clause 17.5(b).
[49] There is an alternative basis for the conclusion that Mr Jin’s initial engagement was
not one in accordance with clause 17.5 of the 2010 Agreement, regardless of the view taken
about the construction of clause 17.5(e). It is apparent having regard to the whole of clause
17.5 that if a temporary employee is engaged on a basis that is not connected with a specified
project or maternity leave, it must be for an identifiable fixed period. However, the period of
Mr Jin’s initial engagement was stated by the April 2011 offer letter to be “for a period of up
to 3 years from the date of commencement”. That does not constitute a fixed period, since it
permitted Mr Jin’s employment to be for any length of time within a three year period.
[50] I therefore accept Mr Jin’s submission that his initial engagement under the terms of
the April 2011 offer letter did not constitute temporary employment in accordance with clause
17.5 of the 2010 Agreement. However the legal and practical consequences of that conclusion
need to be identified.
Consequence of inconsistency between the April 2011 offer letter and the 2010 Agreement
[51] Provisions of a contract of employment which are inconsistent with the provisions of a
statutory instrument such as an enterprise agreement will be displaced in their operation and
rendered inoperative, as was explained by the Full Bench in DL Employment Pty Ltd
v Australian Manufacturing Workers' Union2:
2 [2014] FWCFB 7946
[2015] FWC 4248
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“[42] The terms of the contract of employment may, of course, be affected in their
operation by a statutory instrument such as an award or agreement made or approved
under industrial legislation applying to the same employment. The contract of
employment may provide for matters additional to and not inconsistent with such a
statutory instrument, and in that circumstance the instrument and the contract may be
said to co-exist, but where the contract contains provisions inconsistent with those in
the instrument, the provisions in the instrument will apply by virtue of the statute
which gives it effect, and the inconsistent provisions of the contract will be displaced
in their operation and rendered inoperative (Ansett Transport Industries (Operations)
Pty Ltd v Wardley (1980) 142 CLR 237 at 287 per Wilson J; Byrne v Australian
Airlines Ltd (1995) 185 CLR 410 at 420-421 per Brennan CJ and Dawson and Toohey
JJ; Quickenden v O’Connor (2001) 184 ALR 260 at [69] per Black CJ and French J (as
he then was) and at [131] per Carr J). In the case of an enterprise agreement made and
approved under the FW Act, the effect of s.50 of the FW Act is that a person bound by
the enterprise agreement must not contravene any of its terms. Section 50 is a civil
remedy provision (FW Act s.539) which may be enforced under Part 4-1 of the FW
Act and a breach of which may attract a pecuniary penalty....”
[52] To the extent that the April 2011 offer letter purported to describe Mr Jin as a
temporary employee, it was displaced and rendered ineffective by the provisions of the 2010
Agreement which restricted temporary employment to 12-month engagements where it was
not for the purpose of a specified project or covering maternity leave. Absent that label, Mr
Jin was otherwise entitled to be classified as a “Full-Time Employee” under the 2010
Agreement. That category of employment was defined in clause 17.3 of the 2010 Agreement
as follows:
“17.3. Full-Time Employment
A Full-Time Employee is one who is employed to work consistent with the provisions
of Clause 28 (Hours of Work).”
[53] There was no issue that Mr Jin was employed to work full-time hours in a manner
consistent with the provisions of clause 28. Not being capable of classification as a temporary
employee under clause 17.5, he was therefore entitled to the benefits of a “Full-Time
Employee” under the 2010 Agreement.
[54] In his submissions, Mr Jin described himself as being entitled to be treated as a
“permanent employee”. It is true that in the 2010 Agreement, the category of “Full-Time
Employee” is sometimes accompanied by the description “permanent” (principally to
distinguish it from temporary employment on full-time hours). It is also the case that,
generally speaking, employees who are not casuals or temporaries are often described as
being “permanent”. However, that is something of a misnomer in that such employment is not
in fact permanent in any real sense. The main characteristic of a “permanent” employee
generally (leaving aside leave entitlements) is that the employment is ongoing until such time
as the employee terminates it by resignation or the employer terminates it by dismissal. Where
a dismissal occurs, there is an entitlement to be provided with notice of termination of
employment except where the employee has engaged in misconduct of a nature that would
justify summary dismissal. That is the case under the 2010 Agreement, in which clause 21
relevantly provides:
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15
“21. TERMINATION OF EMPLOYMENT
21.1. The Employer will not terminate an Employee’s employment (other than a
probationary, Temporary or Casual Employee) unless:
(a) the Employee has been given the period of notice required by this
clause;
(b) the Employee is guilty of serious misconduct; or
(c) all relevant legislative provisions have been complied with.
21.2. The required period of notice by the Employer will be:
Employees’ Continuous Service with the Employer Period of Notice
Not more than 1 year 1 week
Up to but no more than 3 years 2 weeks
More than 3 years but no more than 5 years 3 weeks
More than 5 years 4 weeks
Employees over 45 years of age who have more than 2 years service, an
additional one (1) week’s notice is required.
21.3. Payment in lieu of notice will be made if the appropriate notice period is not
given. The Employer may require the Employee to work for all or part of the
notice period, with any remainder of the notice period to be paid out.
21.4. Employees may terminate their employment by giving 4 weeks notice in
writing or by forfeiting 4 weeks salary or wages in lieu, unless the Employer
agrees to a lesser period of notice.
21.5. Where RailCorp has given notice of termination to an Employee, the Employee
will be allowed up to one day’s time off without loss of pay for the purpose of
seeking other 28 employment. The time off is to be taken at times that are
convenient to the Employee after consultation with RailCorp.
21.6. Temporary Employees are to provide one (1) week notice of termination.
21.7 ...”
[55] There being no question of Mr Jin having committed misconduct or resigned, Mr Jin’s
“Full-Time” employment could only be terminated upon the provision of the notice required
by clause 21.2 (or payment in lieu thereof). RailCorp was not entitled to treat Mr Jin’s
employment as having terminated through the effluxion of time after the first three years
because it was not entitled under clause 17.5 to engage him on a fixed-term basis for a period
that long.
[56] The April 2014 appointment letter, on its face, contemplated temporary employment
consistent with clause 17.5 of the 2010 Agreement. However, it would have required
termination of Mr Jin’s “Full-Time” employment in accordance with clause 21 in order for
[2015] FWC 4248
16
him then to have been freshly employed on a different basis as a temporary employee. There
was no evidence or even suggestion that Mr Jin had been given the requisite notice to effect
that outcome. The only available conclusion is that the continuation of Mr Jin’s employment
after the April 2014 appointment letter constituted a continuation of his full-time employment
under the terms of the 2010 Agreement.
[57] That then requires consideration of the position in relation to the continuation of
employment effected by the July 2014 appointment letter. The April 2014 appointment letter,
which has earlier been set out, stated that the purported temporary employment would
continue until 30 June 2014. The characterisation of the employment until this date as
temporary was ineffective because Mr Jin’s pre-existing employment was, as already
discussed, “Full-Time” in nature under the terms of the 2010 Agreement, and that
employment had not been terminated in accordance with the 2010 Agreement. However, to
the extent that the April 2014 appointment letter did have the effect of notifying Mr Jin that
the employment would terminate on 30 June 2014, there is no reason to treat that notification
as totally inconsistent with the provisions of the 2010 Agreement and therefore as having no
effect. Once it is accepted that Mr Jin was a “Full-Time Employee” for the purposes of the
2010 Agreement, then a notification that employment would terminate on a specified date is
capable of having validity as a notice of termination of employment under clause 21, provided
that the requisite period of notice is provided (which it was).
[58] I am therefore prepared to treat the April 2014 appointment letter as giving notice that
that the then existing employment relationship would terminate on 30 June 2014. That means
that the letter had the effect, under clause 21, of validly terminating Mr Jin’s “Full-Time”
employment under the 2010 Agreement on that date. This is a conclusion which allows the
July 2014 appointment letter to have effect according to its terms. Mr Jin’s “Full-Time”
employment having been terminated, it was open to Sydney Trains to engage Mr Jin on a
different basis as a temporary employee. The July 2014 appointment letter was one which
validly established a temporary engagement under clause 17.5, in that it identified a fixed
term of employment that was less than 12 months. Under the prevailing legal doctrine that
employment is founded on contract, Mr Jin’s conduct in continuing to work after the July
2014 appointment letter was issued means, inferentially, that he accepted the terms of that
letter and that its contents became the terms of his contract of employment from that point
forth.
[59] That conclusion requires a consideration of whether the termination of Mr Jin’s
employment at the end of that temporary fixed-term engagement on 31 December 2014 was
one which occurred “on the employer’s initiative” for the purpose of s.386(1)(a).
Was Mr Jin’s employment terminated on the employer’s initiative?
[60] Sydney Trains relied on the Australian Industrial Relations Commission (AIRC) Full
Bench decision (made under the Workplace Relations Act 1996) in Department of Justice v
Lunn3, as authority for the proposition that where an “outer limit” contract reaches its
nominated end date, there is no termination of employment at the initiative of the employer.4
Lunn has been treated as applicable to s.386(1)(a) of the FW Act in a significant number of
3 PR974185, (2006) 158 IR 410
4 See Lunn at [10]
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first instance decisions.5 Most notably, in Drummond v Canberra Institute of Technology6
Commissioner Deegan rejected an argument that differences in the relevant provisions of the
FW Act made Lunn inapplicable. Only one decision which I can identify, that of
Commissioner Roe in Papalia v Co.As.It. - Italian Assistance Association7, has cast doubt as
to the applicability of Lunn.
[61] Lunn concerned the termination of the employment of an employee in a government
department of the Northern Territory. The employee, like most other employees in that
department, had been engaged pursuant to a succession of fixed-term contracts. Following a
deterioration in the relationship between the employee and her supervisor, the employee was
informed that her next contract would only be three months in duration. Towards the end of
the term of that three-month contract, the employee was informed that she would not be
offered a further contract. Her employment, which had lasted a total of almost seven years,
thereby terminated at the end date of the last three-month contract.
[62] Under s.170CE(1) of the Workplace Relations Act 1996 as it then stood, an application
to the AIRC for relief in respect of termination of employment could only be made by “an
employee whose employment has been terminated by the employer”. Section 170CD defined
“termination or termination of employment” to mean “termination of employment at the
initiative of the employer”. The employee claimed that her employment had been terminated
at the initiative of her employer. She was successful in that contention at first instance. The
employer appealed.
[63] The Full Bench upheld the appeal. It said:
“[5] The central issue before the Commission, and on this appeal, is whether the
conversation on 24 March 2005 involved a termination of employment at the initiative
of the employer within the meaning of s.170CE.
. . .
[9] The WR Act has, for some time, excluded the jurisdiction of the Commission
under s.170CE where the employee was "engaged under a contract of a employment
for a specified period of time": see s.170CBA(1)(a). It has been held that a contract
with a nominated end date does not meet that description if it provides for a broad or
unconditional right of termination during its term (See the summary of authorities
adopted by the Full Bench in Ledington v University of Sunshine Coast (PR937250,
Munro J, Drake SDP and Redmond C, 3 September 2003) at para [34]). In such
circumstances, the description of such a contract as an 'outer limit' contract usefully
distinguishes it from a contract for a "specified period of time" to which
s.170CBA(1)(a) applies. There is no dispute that the Final Contract, executed on or
about 16 January 2005, was an 'outer limit' contract thus described.
5 E.g. Barnett v Goodman Fielder Consumer Foods Pty Limited T/A Goodman Fielder Home Ingredients [2012] FWA 1516;
Coventry v Southern Gulf Catchments Limited [2012] FWA 1546; Idanan-Pagkaliwangan v Mater Misericordiae Health
Services Brisbane Limited [2010] FWA 4029.
6 [2010] FWA 3534; affirmed on appeal in Drummond v Canberra Institute of Technology [2010] FWAFB 5455 (although
arguably on a different basis).
7 [2013] FWC 7996
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[10] When a contract for a specified period or an 'outer limit' contract reaches the
nominated end date, the contract terminates through the effluxion of time and there is
no termination of employment at the initiative of the employer (Victoria v The
Commonwealth (1996) 187 CLR 416 at 519-520). Thus, the critical issue is whether
what occurred on 24 March 2005 involved a termination at the initiative of the
employer.”
[64] An important part of the Full Bench’s reasoning was that it considered that, when
considering whether there was a termination of employment by the employer, the analysis
proceeded by reference to the employment contract, not the employment relationship. The
Full Bench said:
“[28] Prior to 1996, s.170CB of the WR Act required the expression "termination of
employment at the initiative of the employer" in s.170CE to be interpreted by reference
to the meaning of the expression "termination of employment" in the Termination of
Employment Convention (Brackenridge v Toyota Motor Corporation Australia Ltd
[1996] IRCA 628; (1996) 142 ALR 99). In that Convention the expression
"termination of employment" refers to termination of the employment relationship
rather than termination of an employment contract (ibid). In 1996 s.170CB was
amended and, since that time, the expression "termination of employment at the
initiative of the employer" in s.170CE has its ordinary meaning and refers to
termination of a contract of employment (See discussion in Charlton v Eastern
Australian Airlines (2006) 154 IR 239, PR972773, Lawler VP, Blain DP and Gay C, 7
July 2006). Thus, in this case we are concerned with whether there was a termination
of Ms Lunn's contract of employment at the initiative of the employer and not with
whether there was a termination of the employment relationship.”
[65] Having rejected the proposition that the final contract to which the employee was a
party was a sham, the Full Bench determined that the employee had not been dismissed by the
employer in accordance with the principle stated above.
[66] The Full Bench’s conclusion was plainly founded on a statement made by the High
Court in Victoria v The Commonwealth.8 In that matter, the High Court considered, among
other things, whether the termination of employment provisions of the Industrial Relations
Act 1988 were beyond the legislative power of the Commonwealth on the basis that they
offended the principle stated in Re Australian Education Union9, namely that the
Commonwealth cannot legislate to prevent a State from exercising its right to determine the
number and identity of the persons whom it wishes to employ, the term of appointment of
such persons and the number and identity of the persons whom it wishes to dismiss with or
without notice from its employment on redundancy grounds. In relation to whether the
provisions interfered with the rights of the State to determine the term of appointment of its
employees, the Court said10 (footnotes omitted):
“It is also necessary to consider whether, in terms, the prohibitions in ss 170DB,
170DC, 170DE(1) and 170DF impair the right of the States to determine "the term of
appointment (of those whom they wish to employ)". The relevant words of each
8 (1996) 187 CLR 416
9 (1995) 184 CLR 188
10 (1996) 187 CLR 416 at 519-520
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prohibition are that "(a)n employer must not terminate an employee's employment". In
the case of s 170DC, the prohibition is elaborated by reference to a specific reason
and, in the case of ss 170DE(1) and 170DF, by reference to specific reasons. As a
matter of ordinary language, an employer does not terminate an employee's
employment when his or her term of employment expires. Rather, employment comes
to an end by agreement, or, where the term is fixed by award or statute, by operation
of law.
There is nothing in the Act to suggest that the words "(a)n employer must not
terminate an employee's employment" are to be construed other than in accordance
with their ordinary meaning. So construed, they do not apply to the situation where
employment comes to an end because its term has expired. To put the matter another
way, the prohibitions are concerned with termination for reasons unconnected with the
term of employment. And that is manifestly clear when regard is had to ss 170DC,
170DE(1) and 170DF. The prohibitions effected by those sections are directed,
respectively, to termination for a specified reason and termination for one or more
specified reasons, none of which includes the expiry of the employee's term of
appointment.”
[67] In my view, there are good grounds for reconsideration as to whether Lunn should
continue to be regarded as giving correct guidance concerning the interpretation and
application of s.386(1)(a). I will not undertake a full re-analysis of Lunn in relation to the
current statutory framework, but simply identify three matters which I consider give rise to
serious doubt on my part as to whether it should continue to be followed in relation to “outer
limit” fixed-term engagements to which s.386(2)(a) does not apply (on the assumption that
the analysis in Andersen v Umbakumba Community Council remains applicable to
s.386(2)(a)).
[68] First, the meaning assigned to “dismissed” in s.386 is constructed on the basis that
s.386(2)(a) operates as one of a number of specified exceptions to the general definition in
s.386(1). That exception applies, among other things, to a termination of employment at the
end of a contract of employment for a specified period. Under conventional principles of
statutory interpretation, it is necessary to interpret s.386 in a way which gives the exception in
s.386(2)(a) practical operation in relation to time-limited contracts of employment. However,
if the reasoning in Lunn is applied to s.386, s.386(2)(a) is otiose with respect to such time-
limited contracts. Because, under Lunn, a termination of employment at the expiration of any
employment contract which is limited in its operation by reference to a period of time is not a
termination at the initiative of the employer, whether the contract is one which meets the
description of a contract “for a specified period of time” or not, the exception in s.386(2)(a) is
unnecessary. The logic in Lunn would apply equally to seasonal and task based contracts: a
termination of employment at the end of the specified season or task would not be a
termination of employment at the initiative of the employer under s.386(1)(a), with the result
that the exception in s.386(2)(a) has no work to do.
[69] That suggests that the application of Lunn to the current statutory framework may be
flawed. The existence of s.386(2)(a) as a specific exception suggests that it represents the
means by which the legislature proposed that time-limited contract be addressed, so that an
approach to s.386(1)(a) which renders the exception redundant is unlikely to be correct.
[2015] FWC 4248
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[70] The statutory frameworks the subject of consideration in Victoria v The
Commonwealth, upon which critical reliance was placed in Lunn was quite different. At the
time of Victoria v The Commonwealth, the relevant prohibition in relation to harsh, unjust or
unreasonable termination of employment in s.170DE(1) of the Industrial Relations Act 1988
was expressed with the formulation “An employer must not terminate an employee’s
employment…”. There was no provision in the statute excluding from this formulation any
termination of employment at the end of a contract for a specified period of time. Section
170CC empowered the making of regulations to exclude specified employees from the
operation of specific provisions of Division 3 of Part VIA of the Act (in which s.170DE was
located) provided that exclusion was permitted by identified provisions of the Termination of
Employment Convention. Pursuant to this power, reg.30B(1) of the Industrial Relations
Regulations exempted any employee engaged under a contract of employment for a specified
period of time that was entered into before 16 November 1994, and any employee engaged
under a contract of employment for a specified period of time entered into on or after 16
November 1994 that was less than six months. The general rule being that delegated
legislation made under an Act is not to be taken into account for the purpose of interpretation
of the Act itself11, it is not surprising that in Victoria v The Commonwealth no regard was had
by the Court to the exception in the regulations in its construction of the statutory termination
of employment provisions. That is of course a very different position to the FW Act where the
exceptions relate directly to the definition of “dismissed” and are part of the statutory scheme
itself.
[71] For the above reasons, I consider that the automatic reliance in Lunn on Victoria v The
Commonwealth to construe a different scheme of legislation in which there was a specific
statutory exception for contracts for a specified period of time was highly problematic. In my
view a fresh consideration of the proper interpretation of s.386(1)(a) of the FW Act which
takes into account how it relates to the exception in s.386(2)(a) and leaves that exception with
a substantive function in the statutory scheme might well result in Lunn being distinguished.
[72] Second, as earlier stated, Lunn proceeds on the basis that the relevant question is
whether the contract of employment and not the employment relationship was terminated on
the initiative of the employer. That approach was based on the proposition that, as a result of
the 1996 legislative amendments by which the Industrial Relations Act 1988 metamorphosed
into the Workplace Relations Act 1996, the termination of employment provisions in the
legislation were fundamentally altered in that they were no longer founded upon and to be
interpreted by reference to the Termination of Employment Convention. Under that approach
the earlier decision of the Full Court of the Industrial Relations Court of Australia in
Brackenridge v Toyota Motor Corporation Australia Ltd12, which concerned the legislation as
it was before those amendments, was treated as no longer applicable. In Brackenridge,
termination of employment under the legislation was interpreted, by reference to the
provisions of the Termination of Employment Convention, as meaning termination of the
employment relationship, not termination of the contract of employment.
[73] There is significant doubt in my view as to whether “termination of employment” in
s.386(1)(a) should be read as referring to the contract of employment and not the employment
relationship. There are a number of reasons why I hold that view, but it is sufficient for
11 See Pearce and Geddes, Statutory Interpretation in Australia, 7th edition at 3.41
12 (1996) 142 ALR 99
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present purposes to refer to paragraph [1528] of the Explanatory Memorandum, which
explains the clause which became s.386 in the following way:
“1528. This clause sets out the circumstances in which a person is taken to be
dismissed. A person is dismissed if the person's employment with his or her employer
was terminated on the employer's initiative. This is intended to capture case law
relating to the meaning of 'termination at the initiative of the employer' (see, e.g.,
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).”
[74] Mohazab v Dick Smith Electronics Pty Ltd (No 2)13 was a decision of the Full Court of
the Industrial Relations Court. The legislation at that time (s.170CB of the Industrial
Relations Act 1988) required that expressions in the termination of employment provisions of
the legislation be treated as having the same meaning as in the Termination of Employment
Convention. In the Convention, the terms “termination” and “termination of employment”
were defined as meaning “termination at the initiative of the employer”. The Court gave
consideration to the meaning of the expression “termination at the initiative of the employer”,
and said (emphasis added)14:
“It is necessary to consider the ordinary meaning of the expression "termination at the
initiative of the employer" in context in the Convention having regard to its object and
purpose. The word "initiative" is relevantly defined in the New Shorter Oxford
Dictionary in the following way:
"initiative 1. The action of initiating something or of taking the first step or the
lead; an act setting a process or chain of events in motion; an independent or
enterprising act."
And in the Concise Macquarie Dictionary in the following way:
"initiative 1. an introductory act or step; leading action; to take the initiative. 2.
Readiness and ability in initiating action; enterprise: to lack initiative."
These definitions reflect the ordinary meaning of the word "initiative". Viewed as a
whole, the Convention is plainly intended to protect workers from termination by the
employer unless there is a valid reason for termination. It addresses the termination of
the employment relationship by the employer. It accords with the purpose of the
Convention to treat the expression "termination at the initiative of the employer" as a
reference to a termination that is brought about by an employer and which is not
agreed to by the employee. Consistent with the ordinary meaning of the expression in
the Convention, a termination of employment at the initiative of the employer may be
treated as a termination in which the action of the employer is the principal
contributing factor which leads to the termination of the employment relationship. We
proceed on the basis that the termination of the employment relationship is what is
comprehended by the expression termination of employment: Siagian v Sanel (1994) 1
IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the
employer that terminates the employment relationship is not only the act that puts in
train the process leading to its termination but is, in substance, the entire process. An
13 (1995) 62 IR 200
14 Ibid at 204-5
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example would be a situation where the employer decided to dismiss an employee and
did so orally or in writing with immediate effect. Other situations may be more
complex as exemplified by the circumstances considered by Moore J in Grout v
Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given
written notice purporting to terminate the employment relationship. The notice was not
reasonable but was accepted by the employer which later refused to allow the
employee to withdraw the notice. A question arose as to whether that was a
termination of the employment at the initiative of the employer and his Honour held it
was. His Honour said at 372:
"I have already said that Div 3 concerns termination at the initiative of the
employer. The respondent submits that 'initiate' means 'to begin, commence,
enter upon; to introduce, set going, or initiate': see Shorter Oxford English
Dictionary. In this matter, it is submitted, it was the applicant and not the
respondent that initiated the termination by writing the letter of 18 May. This,
in my opinion, gives the expression 'termination' in the Act, read in conjunction
with Art 3 of the Convention which speaks of 'termination ... at the initiative of
the employer', a narrow meaning that was not intended. A principal purpose, if
not the sole purpose, of Div 3 is to provide an employee with a right to seek a
remedy in circumstances where the employee did not voluntarily leave the
employment. An employee may do some act which is the first in a chain of
events that leads to termination. An example would be an employee who
engaged in misconduct at work which ultimately led to the employer
dismissing the employee. However, that situation and the present are not
situations where the termination was at the initiative of the employee. In both
instances the step or steps that effectively terminated the employment or
purported to do so were taken by the employer."
In these proceedings it is unnecessary and undesirable to endeavour to formulate an
exhaustive description of what is termination at the initiative of the employer but
plainly an important feature is that the act of the employer results directly or
consequentially in the termination of the employment and the employment relationship
is not voluntarily left by the employee. That is, had the employer not taken the action it
did, the employee would have remained in the employment relationship.”
[75] The above approach is plainly founded upon the proposition, contrary to that taken in
Lunn, that the relevant question was whether the employment relationship had been
terminated at the initiative of the employer, and that this encompassed any situation where an
act of the employer results in the employment terminating and the employee does not
voluntarily leave the employment relationship.
[76] That an analysis of this type might lead to a different result than that which would
flow from the application of the narrower, contract-based approach in Lunn is well illustrated
by the decision of the Industrial Relations Court (Marshall J) in D’Lima v Board of
Management, Princess Margaret Hospital for Children.15 In that case the employee was
employed under a succession of short-term temporary appointments which the employer
characterised as fixed-term contracts of employment. During the period of the last of these,
the employee was informed that at the end of the period her employment would cease. The
15 (1995) 64 IR 19
[2015] FWC 4248
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employer contended, among other things, that this was not a termination of employment at the
initiative of the employer but simply the result of the expiry of a fixed-term contract of
employment. The Court rejected this, and said16:
“I likewise reject the submission of Mr Hooker that the dismissal of Ms D'Lima was not
a termination of employment at the initiative of the employer. The fact of the matter
was that Ms D'Lima was continuously employed from 18 June 1993 to 11 December
1994 on which latter date her employment was terminated by the hospital. The
practice of signing of further contracts for alleged periods of temporary employment
appears to have been one of mere administrative convenience and cannot compel the
Court to ignore the weight of strong countervailing factors indicating a continuous
employment relationship. Mr Hooker described the relationship as "relatively"
continuous. I find no basis for the use of the adjective "relatively" in that context. As
Ms D'Lima said in unchallenged evidence on the review:
"... I had continuous employment ... except for my father's death [on] which I
approached Ms Dyson and asked her to grant me leave.".”
[77] D’Lima was decided before Mohazab, but the approach taken is consistent with it, in
that the analysis was conducted by reference to the employment relationship as a whole and
not merely the final contract of employment. It may also be noted that Marshall J was part of
the Full Court in Mohazab. In Lunn, the Full Bench sought to distinguish D’Lima on the basis
that the contracts were treated as a sham.17 However, it is apparent from a plain reading of
D’Lima that the decision did no such thing; the result there arose from a different approach to
the meaning of the expression “termination at the initiative of the employer”.
[78] It is apparent that if the legislative intention was that s.386 be interpreted and applied
in accordance with the approach stated in Mohazab, then that would necessarily make Lunn
inapplicable.
[79] The third is that the approach in Lunn creates insuperable problems in relation to
unfair dismissal cases involving casual employees. It is apparent from the exclusion in
s.384(2)(a) from the definition of “period of service” in s.384(1) that the legislature intended
that casual employees employed for the length of the applicable minimum employment period
prescribed in s.383 on a regular and systematic basis, and with a reasonable expectation of
continuing employment on that basis, would be able to make an unfair dismissal claim.
However, the conventional contractual construct for casual employees is that they are engaged
by the day, so that each day’s engagement represents a separate contract of employment that
is limited to the period of that working day.18 If that is so, then on the approach in Lunn, a
long-term regular casual who completes a particular day’s engagement and is thereafter not
engaged by the employer can never be regarded as having been dismissed, since this must be
treated as an agreed termination of employment occurring at the end of the contract period as
a result of the effluxion of time. This again strongly indicates, in my view, that it is a flawed
approach to apply Lunn to the provisions of the FW Act.
16 Ibid at 25-26
17 Lunn at [38]
18 See Re Metal, Engineering and Associated Industries Award 1998 (2000) 110 IR 247 at [54]
[2015] FWC 4248
24
[80] The above does not represent the totality of my concerns about the application of
Lunn, but identifies some of the main reasons why I consider it is necessary to reconsider its
correctness in relation to the current statutory framework. In my view, the question of whether
a person’s employment has been terminated at the initiative of the employer requires an
analysis of what, as a matter of practical reality, brought about the end of the employment
relationship. In the case of an employment relationship which is constructed of a series of
“outer limit” fixed-term engagements not encompassed by s.386(2)(a) (again assuming
Andersen remains applicable), where such engagements are utilised by the employer on an
essentially unilateral basis as an administrative mechanism, I consider that it may be open to
find that the decision of the employer to bring the employment relationship to an end by not
offering any further engagements constitutes a termination of employment at the initiative of
the employer under s.386(1)(a). That is an approach which is in substance the same as in
Mohazab and D’Lima. I consider that in the situation described an approach which confines
the analysis to the circumstances of the termination of the final employment contract is far too
narrow and is likely to lead to a result that is at odds with practical reality.
[81] However Lunn is a Full Bench authority which has become well entrenched in the
Commission’s jurisprudence under the FW Act. I do not think it is appropriate that I
determine this matter in disregard of it. Any reconsideration of Lunn should take place at the
Full Bench level. Therefore I will apply Lunn to determine the outcome of this case.
[82] I note at this point that Mr Jin relied upon the decision in Hope v Rail Corporation
New South Wales T/A Rail Corp19 to support his position. In that case, an employee who had
been engaged by RailCorp on the basis that he was a temporary employee over a series of
fixed-term engagements was held in fact to be a “permanent” employee whose employment
had been terminated at the initiative of the employer. However, the facts of that case make it
distinguishable - particularly the fact that the employee’s employment was terminated prior to
the end date of his final employment contract.20 Had that been the case here, I would not have
hesitated in concluding that Mr Jin’s employment had been terminated at the initiative of the
employer. But it was not.
[83] Applying Lunn, my conclusion is therefore that Mr Jin’s employment was not
terminated at the initiative of the employer, but rather terminated as a result of the expiration
of his final contract of employment. In short, he was not dismissed.
Conclusion
[84] Mr Jin’s application must be dismissed.
VICE PRESIDENT
19 [2014] FWC 42
20 Ibid at [11]-[12], [36]
OF THE FAIR WORK MISSION THE
[2015] FWC 4248
25
Appearances:
J. Pearce of counsel for J. Jin.
T. Woods solicitor for Sydney Trains.
Hearing details:
2015.
Sydney:
25 May.
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