1
Fair Work Act 2009
s.604 - Appeal of decisions
Kirsten Dale
v
Hatch Pty Ltd
(C2015/7125)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BULL
COMMISSIONER PLATT SYDNEY, 15 FEBRUARY 2016
Appeal against decision [2015] FWC 4970 and order (PR572764) of Deputy President
Asbury at Brisbane on 12 October 2015 in matter number U2014/16010.
Introduction
[1] Ms Kirsten Dale has appealed a decision issued on 12 October 2015 by Deputy
President Asbury1 in which her application for an unfair dismissal remedy against Hatch Pty
Ltd (Hatch) was dismissed (Decision). A formal order dismissing the application was
separately made2 (Order). On 27 November 2015 a differently constituted Full Bench
(Hatcher VP, Hamilton and Bull DPP) granted Ms Dale permission to appeal. The full hearing
of her appeal took place before us on 22 December 2015.
[2] The basic facts concerning Ms Dale’s employment with Hatch were summarised in the
Decision as follows:
“[1] … Hatch is a consultancy business that provides engineering, procurement and
construction management services to its clients in various industries including mining.
Hatch has a contract with Anglo American Metallurgical Coal (AAMC) to provide
services in relation to AAMC’s Grosvenor Project. As part of that contract Hatch
employs persons to work with AAMC employees in an integrated team, to undertake
specific tasks. Ms Dale was employed by Hatch on the Grosvenor Project in the
position of Site and Facilities Administration Lead from 3 September 2012 until her
employment ended on 10 December 2014.”
[3] Ms Dale’s unfair dismissal remedy application was heard by the Deputy President in
relation to all issues. The application was ultimately dismissed by the Deputy President on the
basis of a jurisdictional issue raised by Hatch, namely that the termination of Ms Dale’s
1 [2015] FWC 4970
2 PR572764
[2016] FWCFB 922
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 922
2
employment did not fall within the definition of “dismissed” in s.386 of the Fair Work Act
2009 (FW Act). Section 386 relevantly provides:
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;...
(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
...
(3) …
[4] It appears not to have been in contest between the parties that, if the exception in
s.386(2)(a) did not apply, then the termination of Ms Dale’s employment fell within that part
of the general definition of “dismissed” in s.386(1)(a). It was certainly never argued by Hatch
either at first instance or in the appeal that Ms Dale’s employment was not terminated on its
initiative. The Decision reflects the basis upon which the proceedings were conducted, in that
the Deputy President stated:
“[70] If Ms Dale was not employed under a contract of employment for a specified
task, or if she was employed under such a contract and was dismissed for a reason
other than that the task had been completed, it will be necessary to consider whether
Ms Dale’s dismissal was unfair on the grounds that it was harsh, unjust or
unreasonable by applying the criteria in s.387 of the Act …”
[5] The Deputy President determined that Ms Dale had been employed by Hatch under a
contract of employment for a specified task and thus fell within the exception in s.386(2)(a).
Her conclusion was that Ms Dale was employed “for the specified task of carrying out the
administration role of Site and Facilities Administration Lead on the Grosvenor Project”3,
and, in relation to the document that constituted her contract of employment, the Deputy
President said:
“[78] … When both documents are read in conjunction, it is apparent that Ms Dale was
employed for a specified task. Notwithstanding that the contract of employment states
that Ms Dale was employed for a specified period, it is clear that Ms Dale was
employed specifically for the Grosvenor Project. It is also clear that she was employed
in the position of Site and Facilities Administration Lead and that her employment
would terminate on demobilisation from site, when that position was no longer
required.”
3 Decision at [76]
[2016] FWCFB 922
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[6] The Deputy President rejected the propositions that the fact that under the contract Ms
Dale could be required to perform tasks other than those required for her role, and that the
contract could be terminated by Hatch with notice at any time, derogated from it being a
contract for a specified task.4 The Deputy President went on to find that Ms Dale’s
employment had been terminated on completion of the task, in that termination occurred upon
Hatch’s client for the Grosvenor Project, AAMC, informing it that Ms Dale’s role had been
“demobilised”.5
[7] Ms Dale submits that the Deputy President erred in concluding her contract of
employment was for a specified task and in dismissing her unfair dismissal remedy
application on that basis, and that she was entitled to have her application determined on its
merits.
Contract of employment for a specified task
[8] The consideration of Ms Dale’s appeal must start with determining the meaning of the
expression “contract of employment … for a specified task” in s.386(2)(a). The ordinary
meaning of the word “task” is, as stated in the Decision6, a piece of work to be performed or
undertaken. That was the meaning assigned to the term in the decision of a Full Bench of the
Australian Industrial Relations Commission (AIRC) in Qantas Airways Limited v Fetz7. It
must be the task of the employee, not the employer, as was pointed out by Wilcox CJ in Drury
v BHP Refractories Pty Ltd8 in relation to the same expression then appearing in
reg.30B(1)(b) of the Industrial Relations Regulations:
“The words "for a specified task" qualify the words "contract of employment". The
contract of employment must be for a specified task; it must be a contract under which
the employee is to carry out a specified task. The words "for a specified task" have
nothing to do with the employer's task, or project. This seems clear as a matter of
grammar and it makes sense in policy terms. One can understand a view that the
protections provided by Division 3 of Part V1A should not be available to people who
undertake only a specified task. Especially after the task is completed, it would be
anomalous to restrict the employer's right to terminate the contract of employment.
Bearing in mind that many projects undertaken by employers continue for many years,
while employees come and go, it would be equally anomalous to exclude relief under
Part V1A simply because the employee was engaged in connection with a particular
project.”
[9] The task must be “specified” - that is, identified in definite terms. In a written contract
of employment, it could usually be expected that the task would be identified in express
words, although it is not impossible to conceive of a case whereby the task might be specified
as a matter of necessary implication. Further, the relevant contract of employment must be
“for” the specified task, meaning that it has been entered into for the purpose of the
performance and completion of that task.
4 Decision at [80]-[81]
5 Decision at [83]-[87]
6 Decision at [76]
7 (1998) 84 IR 52 at 66
8 [1995] IRCA 293
[2016] FWCFB 922
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[10] A critical element in this part of the exception in s.386(2)(a) is, we consider, that the
task be sufficiently definite in its nature and delineation such that identification of when the
task is completed is not a matter of doubt or speculation or contingency but is clear and
predictable. We draw that inference from the fact that s.386(2)(a) requires the termination of
employment to occur at the end of the completion of the task, thus requiring it to be
identifiable with certainty. The context supports that inference in that the other exceptions
contained in s.386(2)(a) - a contract for a specified period terminating at the end of that
period, or for the duration of a specified season terminating at the end of the season - likewise
involve the termination of employment occurring at an identifiable time or upon an
identifiable event.
[11] In the Decision the Deputy President said “For the purpose of the phrase ‘specified
task’ the term ‘task’ has been treated as being synonymous with the terms role, job or project
that an employee is employed specifically to perform as distinct from the employer’s
undertaking”.9 We do not accept that “task” in s.386(2)(a) necessarily means the same thing
as a role, job or project which the employee is engaged to perform. A “role”, as a matter of
the ordinary meaning of the term, usually involves a collection of work duties and functions
required to be performed on an ongoing basis for an indefinite period of time. It does not
usually involve the completion of a discrete piece of work. A “job”, if the word is used in the
narrow sense of “a piece of work; an individual piece of work done in the routine of one's
occupation or trade”10, would equate to a task, but not if it is used in its wider sense as “a post
of employment”. A project, if it is a project to be undertaken and completed by the employee,
may equate to a “task” but not if the project is the broader employer’s project upon which the
employee works, for the reasons explained in Drury. In Qantas Airways Limited v Fetz the
Full Bench referred to a “task” as normally applying to an “identifiable project or job” able to
be described with sufficient particularity. In doing so, we consider that “project” and “job” are
to be understood in the narrower senses we have identified.
[12] The Deputy President cited three authorities to support the approach taken by her to
the interpretation of “specified task” in the Decision. Two of these authorities are, we
consider, entirely consistent with the approach we prefer. In the first, Hewitt v ACTek Custom
Engineering Pty Ltd11, a decision of the AIRC, an employee engaged to personally develop a
piece of software for cash registers for an employer with no software expertise was held to
have been employed under a contract of employment for a specified task. In that decision the
AIRC (Lacy SDP) articulated the meaning of “specified task” in a manner with which we
agree as follows (footnotes omitted):
“[22] The phrase "a specified task", as it relates to reg 30B(1)(b), has been defined
narrowly in the relevant authorities. In Qantas Airways Limited v Fetz, the Full Bench
of this Commission stated that the phrase "a specified task" would "normally apply to
an identifiable project or job." The Full Bench cited three dictionary definitions which
define "task" as being, "[1] a piece of work imposed on or undertaken by a person ...
9 Decision at [76]
10 Macquarie Online Dictionary
11 PR904665, [2001] AIRC 500
[2016] FWCFB 922
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[2] A definite piece of work assigned or falling to a person; a duty ... [3] any piece of
work."
[23] Another definition which may provide assistance in understanding the meaning of
the phrase "a specified task" can be found in The CCH Macquarie Dictionary of
Employment and Industrial Relations. In it, the word "task", relevantly, is defined as
being, "an element or group of elements of work by which a specific result is
achieved."
[24] I agree that the phrase "a specified task" should be interpreted narrowly so as to
cover only situations where an employee has been engaged under a contract to
perform a project or job which is distinct or identifiable in its own right. The task to
which the original employment contract relates should be self-contained and not leave
open the possibility of the employee performing any work outside the realm of the
specific task for which the employee is being employed. That is not to say that an
employee engaged under a contract for a specified task could not agree, during the
performance of the contract, to undertake some other work for the employer that was
peripheral to the original contract. In those circumstances, a question might arise as to
whether there has been a variation of the terms of the original contract.”
[13] In the second decision (chronologically speaking), Henderson v John Holland Pty
Ltd12, an employee engaged to undertake the concrete finishing work on a specific
construction project was held to have been employed under a contract of employment for a
specific task. In that case it is reasonably apparent that there was a discrete piece of work on a
project which the relevant employee had to complete.
[14] The third decision, Derar v Recruitco Pty Ltd13, is problematic. That case involved a
casual employee of a labour hire company who was assigned to work for a particular client (a
retail grocery distributor) and did so, on a regular and systematic basis, for a period of over
six years. The employee claimed his employment with the labour hire company terminated
when the client informed the labour hire company his assignment was terminated. This
occurred after some absences from work by the employee, alleged to be unauthorised, due to
the birth of his child. The following conclusion was stated in that decision:
“[39] I have concluded that in this case, where the employment offer is clearly
restricted to an engagement by a host organisation, that must define the specific
duration of that particular employment arrangement. Accordingly, Mr Derar was
engaged for a specified task. That task concluded when IGA terminated the
assignment. It follows then that Mr Derar was not dismissed for the purposes of s.386
and accordingly, is not able to pursue this application. Had Mr Derar been dismissed
by Recruitco whilst his assignment to IGA continued, a different conclusion relative to
s.386 would have resulted. In this instance however, it was the termination of the
assignment with IGA which ended the employment with Recruitco.”
[15] We cannot, with respect, accept that an employment contract to perform work of an
ongoing and generic nature for a third party client until that client no longer requires the
12 PR917230, [2002] AIRC 475
13 [2013] FWC 9791
[2016] FWCFB 922
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person to perform the work constitutes an employment contract for a specified task. There
was no identifiable or distinct piece of work that was required to be performed or any specific
result required to be achieved. The facts did not suggest that the employee had completed any
particular piece of work or even that the work performed by the employee was no longer
required to be performed when the assignment was terminated, but only that the client did not
want him to perform it anymore. We do not consider that the employment “task” of an
employee can be defined simply by reference to the currency of a commercial labour hire
arrangement between the employer and a client without doing violence to the ordinary
meaning of the word. Nor do we consider that a task is something which can be regarded as
completed for the purpose of s.386(2)(a) when a third party client decides it does not want the
employee of the employer to perform the relevant work anymore. A “task”, properly
understood, is one which is completed when the employee finishes the work involved in it.
Was Ms Dale employed under a contract of employment for a specified task?
[16] With these observations in mind, it is necessary to analyse the provisions of Ms Dale’s
contract of employment with Hatch. The contract was in writing and was entered into on 27
August 2012. It was contained in a document entitled “Kirsten Dale - Contract of
Employment: Project Specific - Fixed Term Full Time” (Contract). It contained the following
relevant provisions:
“ 1. Position: You will commence with Hatch in the position of Site
& Facilities Administration Lead within the PDG -
Project Support Group.
…
4. Duties: You are employed on a fixed term basis to provide
support on the Grosvenor Project. You will be
required to perform the duties of your position and
such other duties, within your skill and capability, as
are requested of you. If you have any queries in this
regard please contact [name removed].
5. Location: Your initial place of work is Moranbah; however, you
may be required to work at other locations according
to business or operational needs. This clause is to be
read in conjunction with Clause 19 - Mobility and
Travel.
…
6. Commencement date: 3 September 2012
7. Completion date: This Project Specific Contract and your employment
with Hatch will automatically terminate upon your
demobilisation from the Grosvenor Project.
Hatch will notify you as soon as possible of its
reasonable satisfaction that your position on the
Grosvenor Project has been completed. Termination of
this contract, however, is not conditional upon Hatch
having given you such notice.
[2016] FWCFB 922
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…
27. Notice of Termination: This contract will terminate on your demobilisation
from the Grosvenor Project as specified in Clause 7 –
Completion Date. Should you wish to terminate your
employment prior to the completion of your role on
the Grosvenor Project, you must give, if within your
probation or minimum employment period, at least
one (1) week written notice, thereafter four (4) weeks
written notice to your Manager.
Hatch reserves the right at any time to terminate your
employment by giving, if within your probation or
minimum employment period, at least one (1) week
written notice, thereafter four (4) weeks written notice
or payment in lieu thereof, except in the case of
serious misconduct when you may be dismissed
without notice.
The notice period provided by Hatch will be increased
by one (1) week if you are over 45 years of age and
employed for more than two (2) years of continuous
service with Hatch.”
[17] Ms Dale was also provided with a letter dated 28 August 2012 which was headed “Re
Grosvenor Project - Brisbane Assignment” (Assignment Letter). The Assignment Letter
included the following statements:
“We are pleased to confirm your assignment to the Grosvenor Project. The conditions
of your assignment are detailed below. These conditions are specific to your
Grosvenor Project – Brisbane and Moranbah assignment and are not part of your
standard conditions of employment with Hatch. These conditions may be subject to
change due to project operational requirements.
BRISBANE ASSIGNMENT
Work Location: 152 Wharf St, Brisbane
Commencement Date: 3 September 2012
Completion Date: The assignment to the Brisbane office will conclude upon your
mobilisation to the Moranbah site.
MORANBAH ASSIGNMENT
Work Location: Grosvenor Site, Moranbah
Commencement Date: To be confirmed
Completion Date: This assignment and the project specific conditions contained herein
will automatically terminate upon your demobilisation from the Grosvenor Project.
[2016] FWCFB 922
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Hatch will notify you as soon as possible of its reasonable satisfaction that your
position on the Grosvenor Project has been completed.
…”
[18] There is nothing in the provisions of the Contract which either specifies a task to be
performed or provides that the Contract is coterminous with any such task. Clause 4 of the
Contract specified that employment is on a “fixed term basis”, but no fixed period of time is
specified anywhere in the Contract and Hatch did not contend that it was a “contract of
employment for a specified period of time” for the purpose of s.386(2)(a). Clause 7 referred to
the Contract, and the employment, terminating on Ms Dale’s “demobilisation” from the
Grosvenor Project, but it is not apparent that this was referrable to the completion of any
particular task or piece of work. The same can be said in relation to the reference in clause 7
to Ms Dale being notified of the completion of her position: for the reasons already stated, a
“position” is not the same thing as a task. Read in its commercial context, we consider that the
Contract is to be read as providing that the purpose of the employment was for Ms Dale to
undertake an administrative role on the Grosvenor Project, and that this was to terminate
when AAMC decided that it did not require Hatch to provide Ms Dale’s services any further.
[19] There was some debate between the parties about the contractual effect, if any, of the
Assignment Letter, and whether it operated to alter the effect of the Contract. We do not think
anything turns on this because the nature and purpose of the employment in both the Contract
and the Assignment Letter are expressed in consistent terms.
[20] The circumstances in which the employment actually terminated confirm our
understanding of the Contract and the employment. The evidence disclosed that as the
construction phase of the Grosvenor Project began to wind down, AAMC decided it was no
longer necessary to maintain the discrete position of Site & Facilities Administration Lead in
its structure, and accordingly that it was no longer necessary for Hatch to supply the services
of Ms Dale to fill that position. The facts in this respect were described by the Deputy
President in the Decision as follows:
“[84] Hatch contends that Ms Dale’s employment ended in accordance with the terms
of her contract of employment when the role she had been employed to perform on the
Grosvenor Project was no longer required by its client for that Project - AAMC. In
support of this proposition, Hatch tendered organisational charts for the Project
demonstrating that the role was no longer being performed by Hatch. There was also
evidence that there had been a restructuring on the Project so that roles which had
been performed by Hatch were either no longer required or had been taken on by
AAMC. Further, there was evidence that such processes are a feature of Hatch’s
undertaking of providing engineering, procurement and management services for
projects such as the Grosvenor Project.
[85] Ms Dale accepted that during the period of her employment there had been a
gradual decrease in Hatch employees and a corresponding increase in AAMC
employees and that when Hatch employees were demobilised they were replaced with
AAMC employees. Ms Dale also accepted that this is what happened with respect to
her role. Further, Ms Dale accepted that her contract of employment would terminate
upon her demobilisation from the site and that she understood what demobilisation
meant.”
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[21] There is no issue that the Deputy President correctly described the facts. However the
above passage confirms that Ms Dale’s employment did not end because she had completed
any particular task. Although the volume of the duties she performed had diminished, the
work which she had been required to perform continued and was performed by AAMC
employees. The cause of her termination was the decision by AAMC to restructure its
workforce with the result that the role filled by Ms Dale was abolished. For the reasons we
have already stated, a “role” as ordinarily understood is not a task, and the abolition of a role
does not constitute completion of a task. We do not consider therefore that Ms Dale was
employed under a contract of employment for a specified task or that her employment
terminated on completion of any specified task.
[22] There is one other aspect of the Contract which requires comment. Clause 27 of the
Contract provided, among other things, that Ms Dale’s employment could be terminated by
Hatch without cause on one week’s notice during the probation or minimum employment
period and on four weeks’ notice thereafter. In relation to employment contracts for a
specified time, it was held in Andersen v Umbakumba Community Council14 (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 in lieu of notice within
any specified term.15 The basis for this proposition is that a specified period of time is a
period of employment that has certainty as to its commencement and time of completion, and
where a contract provides a broad or unconditional right of termination during its term, the
period of the contract is indeterminate and thus not for a specific period of time.16
[23] We would be inclined to the view that, by parity of reasoning, this proposition would
apply to the exception for contracts of employment for a specified task. Employment for a
specified task would equally suggest certainty that the period of employment began and ended
with the commencement and completion of the task, and that a broad or unconditional right of
termination is inconsistent with that certainty. If so, the existence of such a right in clause 27
would provide further support for our conclusion that Ms Dale’s contract of employment was
not for a specified task. However we note the following comment made by Hatcher VP in Jin
v Sydney Trains17 as follows (emphasis added):
“[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
14 (1994) 126 ALR 121
15 (1994) 126 ALR 121 at 125-6; see also Cooper v Darwin Rugby League Inc. (1994) 57 IR 238 and Ledington v University
of Sunshine Coast (2003) 127 IR 152
16 Ledington at [34]
17 [2015] FWC 4248
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prior to the end time specified in the contract, they may seek an unfair
dismissal remedy if they satisfy the other requirements.”
[24] We were not addressed in relation to this issue, and it is not necessary for us to express
a final view about it in order to determine this appeal. Accordingly it can be left for another
day.
[25] We conclude therefore that the “specified task” exception in s.386(2)(a) was not
applicable, and that the Decision was in error to the extent that the contrary conclusion was
reached. As earlier stated, it was not in dispute that the termination of employment otherwise
fell within the general definition of “dismissed” in s.386(1)(a). We note, having regard to the
terms of the Contract, that there might have been available an argument that the Contract, and
the employment, terminated not at the initiative of Hatch but according to its terms upon
Hatch being notified by AAMC that Ms Dale’s position was no longer required. However,
that was not argued before us, and we propose to proceed on the basis that Ms Dale was
dismissed by Hatch. It is therefore now necessary for there to be a determination as to whether
Ms Dale’s dismissal was harsh, unjust or unreasonable (there being no other jurisdictional
objection raised by Hatch).
Was Ms Dale’s dismissal unfair?
[26] In the hearing before the Deputy President, Ms Dale ran her case substantially on the
basis that the real reason for her dismissal was not the abolition of her position but rather that
she had made a complaint about certain conduct by the AAMC Site Manager at the Grosvenor
Project. In the course of her consideration of Hatch’s jurisdictional objection to Ms Dale’s
unfair dismissal remedy application, the Deputy President rejected this contention:
“[86] In light of Ms Dale’s complaint about the AAMC Site Manager and her assertion
that this was the reason for her dismissal, I have considered the sequence of events and
the evidence about the complaint in some detail to determine whether this was in fact
the case. On the basis of the evidence before me, I consider that the complaint made
by Ms Dale about the AAMC Site Manager, was appropriately dealt with by Hatch. In
this regard, I note that notwithstanding Ms Dale’s stated desire to Hatch HR
representatives that she did not wish to formalise the complaint and the advice that she
received to the effect that Hatch would support her should she wish to do so, Ms Dale
made a formal complaint to management of AAMC.
[87] There is no evidence upon which I could be reasonably satisfied that AAMC
determined to require Hatch to terminate Ms Dale’s employment for any other reason
than that the role for which she had been employed was no longer required to be filled
by a Hatch employee. The role was removed from the Project organisational chart
along with other roles which had also been filled by Hatch employees…”
[27] The other aspect of Ms Dale’s case at first instance was that there were other roles she
could have filled, and therefore that her dismissal was not required by the abolition of her
existing position. The Deputy President also rejected this contention in the course of her
consideration of the jurisdictional objection in the following terms:
“[89] Once the dismissal was excluded, the question of whether some alternative
position should have been offered to Ms Dale could not arise and her dismissal could
[2016] FWCFB 922
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not be found to be unfair on that basis. In any event the roles Ms Dale asserts she
could have performed were filled by other employees, one of whom was employed by
a labour hire contractor to AAMC and not by Hatch. That Hatch did not place Ms Dale
into one of those roles does not alter the fact that Ms Dale is excluded from making an
unfair dismissal application.”
[28] Importantly, at the hearing of the appeal counsel for Ms Dale submitted that, for the
purpose of the determination of her unfair dismissal remedy application, he did not challenge
the above findings, and was content to have the application determined on the basis of those
findings. His submission was that, should his appeal succeed, this Full Bench should
determine Ms Dale’s application on the material before it rather than remit the matter to a
single member for a re-hearing. Hatch did not oppose this course being taken.
[29] Accordingly we will determine Ms Dale’s unfair dismissal remedy application
ourselves on the basis of the evidence as it currently stands and the findings of the Deputy
President to which we have referred.
[30] Section 387 of the FW Act requires the Commission, in considering whether a
dismissal was harsh, unjust or unreasonable, to take into account a number of matters
specified in paragraphs (a) to (h) of the section. We will deal with each of these matters in
relation to Ms Dale’s application in turn below.
Paragraph 387(a)
[31] Ms Dale was not dismissed for a reason relating to her capacity or conduct, so the
question as to whether any such reason was a valid one does not arise.
Paragraph 387(b)
[32] Ms Dale was not dismissed for a reason relating to her capacity or conduct, so no issue
arises as to the notification of such a reason.
Paragraph 387(c)
[33] Ms Dale was not dismissed for a reason relating to her capacity or conduct, so the
issue of whether she was given an opportunity to respond to any such reason does not arise.
Paragraph 387(d)
[34] There was no evidence that suggested that Hatch denied Ms Dale the assistance of a
support person at any discussion which may have occurred concerning her dismissal.
Paragraph 387(e)
[35] The dismissal was not related to any unsatisfactory performance on the part of Ms
Dale, so no issue arises as to whether she had previously been warned about unsatisfactory
performance.
Paragraphs 387(f) and (g)
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[36] Hatch is a large employer with a dedicated human resources team, and accordingly
there was no adverse impact on its capacity to follow appropriate procedures in effecting the
dismissal.
Paragraph 387(h)
[37] We consider that the following matters are relevant and weigh against the proposition
that Ms Dale’s dismissal was unfair:
(1) Ms Dale was employed, and understood that she was employed, on the basis
that her employment with Hatch would come to an end when AAMC decided
that it no longer required Hatch to provide her services.
(2) This eventuality came to pass when AAMC, in the context of the winding
down in the construction phase of the Grosvenor Project, decided to abolish the
position filled by Ms Dale as part of a broader restructuring which involved a
number of roles being removed.
(3) The decision to abolish Ms Dale’s role was not in Hatch’s control, and the
termination of her employment as a result of this accorded with the
expectations of both parties.
(4) Hatch did not have another role to which it was able to transfer Ms Dale.
(5) Hatch paid Ms Dale two weeks’ salary upon the termination of her
employment.
(6) Ms Dale was able to find alternative employment approximately six weeks
after her dismissal, so that the financial consequences of the dismissal were not
significant.
[38] The only contention advanced before us as to why the dismissal was unfair was that
Ms Dale was not afforded her entitlements under “the Act and the Award”, and that she
should be compensated for this. It appears that this is a reference to notice payments and
redundancy pay benefits. The requirement for a payment in lieu of notice (since the dismissal
had immediate effect) would appear to have been satisfied by the payment of two weeks’
salary (see s.117 of the FW Act). Ms Dale was not dismissed on the basis of redundancy,
which explains why Hatch did not pay her any redundancy pay benefits under s.119 of the
FW Act or under any applicable modern award, if any. We do not propose to express a view
as to whether the circumstances of Ms Dale’s dismissal gave rise to any entitlement to
redundancy pay benefits because we do not consider that the unfair dismissal provisions of
the FW Act are properly to be used as a substitute mechanism for the recovery of monetary
entitlements under the FW Act or a modern award. If Ms Dale believes she has an entitlement
to redundancy pay, then she should make an appropriate application to a relevant court for the
recovery of this entitlement. We do not regard this as a matter relevant to whether Ms Dale’s
dismissal was unfair in circumstances where her dismissal is not now alleged to be unfair on
any other basis.
Conclusion
[2016] FWCFB 922
13
[39] Having regard to the above matters, we are not satisfied that Ms Dale’s dismissal was
harsh, unjust or unreasonable. There is therefore no reason to disturb the Deputy President’s
Order dismissing Ms Dale’s unfair dismissal remedy application.
Orders
[40] Having regard to the above conclusions, we make the following orders (in addition to
the order we have already made granting permission to appeal):
(1) The appeal is upheld.
(2) The Order (dismissing Ms Dale’s unfair dismissal remedy application) is
confirmed.
[41] Finally we note that Ms Dale was represented in this appeal by Mr Shepley of counsel
pro bono. We express our gratitude to him for appearing and providing us with appropriate
assistance on this basis.
VICE PRESIDENT
Appearances:
J. Shepley of counsel for Kirsten Dale.
L. Copley of counsel for Hatch Pty Ltd.
Hearing details:
2015.
Brisbane:
22 December.
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