Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2016] FWC 6624 of Senior Deputy President O'Callaghan at Adelaide on 17 October 2016 in matter number U2016/3008.

Introduction and background

[1] Mr Boguslaw Bienias has applied for permission to appeal and appealed a decision of Senior Deputy President O’Callaghan issued on 17 October 2016 1 (Decision) and Order,2 dismissing Mr Bienias’ application made pursuant to s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. In the Decision, the Senior Deputy President concluded that the termination of Mr Bienias’ employment with Iplex Pipelines Australia Pty Ltd (Iplex) was not a dismissal within the meaning of s.386 of the Act, that is, the termination of Mr Bienias’ employment had not occurred on Iplex’s initiative.

[2] Mr Bienias had been employed by Iplex since December 1983, and from 1992 he was employed as a Team Leader, which required him to supervise employees in his team and have over-sight of quality assurance functions. 3 Before the Senior Deputy President, it seems to have been accepted that Mr Bienias’ employment was with Iplex, and that he was covered by the Manufacturing and Associated Industries Occupations Award 2010 (Award) and the Award applied.4

[3] Throughout Mr Bienias’ employment until 2015, there is no record of any performance or disciplinary matters involving him. On 2 June 2015, Mr Bienias was given a written warning for failing to comply with the required quality standards. 5 On 21 December 2015, Mr Bienias was stood down following a positive alcohol test reading while at work. He was provided with a letter detailing an allegation that he had breached the Iplex alcohol policy in this respect. On 18 January 2016, Mr Bienias was advised that he would be given a written warning and he was given the written warning on 19 January 2016.6

[4] Mr Bienias was absent from work for his rostered shifts on 19, 20, 21 and 22 January 2016. Before the Senior Deputy President, there was a contest about the extent to which Mr Bienias had notified Iplex of his absence on these days. On 28 January 2016, Mr Holmes met with Mr Bienias to discuss those absences. There is no dispute that during the meeting Mr Holmes told Mr Bienias that he was required to call Mr Holmes in the case of future absences prior to the commencement of his rostered shift. 7

[5] Mr Bienias was absent from work on 7 March 2016. He did not notify Mr Holmes of that absence because it was a public holiday. On 10 March 2016, Mr Bienias was given a written warning relating to his absenteeism and failure to comply with notification requirements. 8

[6] On 19 April 2016, Mr Bienias participated in a meeting at which he was told that information he had given Mr Holmes about a quality assurance fault would be further investigated and there would be a follow-up discussion between Mr Holmes and Mr Bienias. 9

[7] Mr Bienias did not attend work on 2 and 3 May 2016. On 3 May 2016, he advised Mr Fairhurst, the Interim Production Manager of Iplex, that he could not attend for work because he was ill. Mr Bienias attended work on 4 May 2016, but was stood down with pay pending investigation of this absence. 10

[8] By letter dated 5 May 2016, Mr Bienias was advised, inter alia, of allegations about his absence on 2 and 3 May 2016 and the quality assurance issue identified on 19 April 2016. 11 The letter informed Mr Bienias of a meeting to be held on 10 May 2016 at which Mr Bienias would be given the opportunity to respond to the allegations. The letter also advised Mr Bienias that he could attend the meeting with a support person and he could also provide a written response by midday on the day prior to the meeting.

[9] Mr Bienias attended the meeting on 10 May 2016 with a support person and Iplex had three representatives present. 12 The meeting concluded on the basis that Iplex would consider Mr Bienias’ responses and there would be a further meeting on the following day. During the meeting on 11 May 2016, Mr Bienias was advised that he would be issued with a final written warning and would be placed on a performance improvement plan.13 A warning letter was subsequently prepared but not given to Mr Bienias as the meeting on 11 May 2016 was the last occasion on which Mr Holmes had seen or spoken with Mr Bienias.14

[10] Mr Bienias said that he attended work on 12 May 2016, but that he did not consider that he was able to work and he asked the relief Team Leader, Mr Culver to replace him before leaving work. 15 Mr Bienias did not attend work at Iplex again. He said that the following days he stayed at home in bed and was barely aware that the phone had rung or that he had to eat, take his medication or even care for his life, and that he was appalled and did not want to talk to anyone.16

[11] Mr Holmes said that Mr Bienias did not attend for work on 12 and 13 May 2016, and had failed to notify him of the absence on 13 May 2016, that he telephoned Mr Bienias on 13 May 2016 and left a message advising him that he was required to produce a medical certificate in support of his absence. 17

[12] Mr Bienias was next rostered to work on 18 May 2016. He did not attend work on that day, or the following three rostered work days and did not notify Iplex of his absence. 18 On 23 May 2016, Iplex arranged for a letter to be delivered to Mr Bienias. This letter requested that Mr Bienias urgently contact Mr Holmes.19 Whilst the circumstances of the delivery of this letter are disputed, there is no dispute that it was ultimately delivered to Mr Bienias. Mr Bienias said that, for reasons relating to his mental health, he did not become aware of this letter until sometime in June 2016.20

[13] A management employee of Iplex contacted the Western Australian Police on 26 May 2016 to request that the police conduct a welfare check on Mr Bienias, and was advised that the police had been able to make contact with him. 21 On 30 May 2016, Iplex prepared and dispatched by courier a letter to Mr Bienias, the relevant text of which provided as follows:

“Re: Absence From Work

You have been absent from work since 13 May 2016 without our consent and without notification.

We have tried to contact you in writing on 23 May 2016 (via courier), 26 May 2016 (via express post), attempted to call your phone several times, and also arranged a welfare check via of the West Australian police on Thursday, 26 May 2016. To date have not had a response from you.

As such, we have determined that you have abandoned your employment with Iplex Pipelines and, consequently, your employment with the company is terminated with effect on 13 May 2016, being the last shift you worked for the company.

All final monies, including your five weeks’ notice period, will be paid to you through our payroll department on receipt of all tools and equipment, keys or any other company property in your possession.”

The Decision

[14] After setting out some of the relevant factual matters, the Senior Deputy President identified an initial issue requiring determination as follows:

“. . . whether Mr Bienias was dismissed by Iplex or whether the termination of his employment was an event which he precipitated by virtue of his unexplained absences.” 22

[15] At paragraph [59] of the Decision, the Senior Deputy President set out the relevant provisions of the Act which deal with the meaning of “dismissed”, and the text of clause 21 of the Award which provides:

“21. Abandonment of employment

21.1 The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification to the employer is prima facie evidence that the employee has abandoned their employment.

21.2 If within a period of 14 days from their last attendance at work or the date of their last absence in respect of which notification has been given or consent has been granted an employee has not established to the satisfaction of their employer that they were absent for reasonable cause, the employee is deemed to have abandoned their employment.

21.3 Termination of employment by abandonment in accordance with clause 21—Abandonment of employment operates as from the date of the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the employer, whichever is the later.”

[16] At paragraph [60] of the Decision, the Senior Deputy President set out Iplex’s contention that Mr Bienias’ failure to notify of his absence from work met the circumstances described in the Award with the result that the termination of the employment was not at the initiative of Iplex.

[17] The Senior Deputy President next discussed various decisions dealing with similar award provisions and abandonment of employment and their relevance to the question whether Mr Bienias’ employment had been terminated on Iplex’s initiative.

[18] At paragraph [70] of the Decision the Senior Deputy President identified that it was necessary to consider the specific provisions of clause 21 of the Award to determine its effect, and thereafter set out the principles of construction pertaining to an award. As to the meaning and effect of clause 21 of the Award, the Senior Deputy President reasoned as follows:

“[72] Clause 21 of the Award is a provision which is replicated in only a very small number of Awards. In this sense it is rare. Most industrial instruments either do not address the issue of abandonment of employment, or do so in a less prescriptive fashion. The current provision has remained largely unchanged since it was inserted into a predecessor of the Award in 1970.

[73] Clause 21.1 of the Award must be read on the basis that an absence, without the consent of the employer and without notification to the employer, for a continuous period exceeding three working days, creates a presumption that the employee has abandoned his or her employment and that there is, in effect, an obligation on that employee to establish that this is not the case. In terms of the concept of repudiation of the contract of employment such as was the case in the circumstances addressed in Moly Mines and Gauci, if an employee’s absence met the requirements of clause 21.1, the provisions of this clause would appear to create an obligation on the employee to establish whether that prima facie case was appropriate in a given circumstance.

[74] However, Clause 21.2 takes this concept a step further. The reference to 14 days must refer to 14 calendar days rather than “working days”. That much is clear from the different expressions used in sub-clauses 21.1 and 21.2. The concept of “the employee is deemed” must be construed such that it equates with the concepts of “judged”, or “regarded” (The Macquarie Dictionary). I have adopted the position that this provision must be read in the context that it specifies that a failure to notify the employer, or obtain the employer’s consent to an absence within 14 days of the employee’s last attendance at work means that the employee is regarded or judged as having abandoned their employment. That abandonment must be regarded as an employment termination on the basis that it ends the employment relationship. Clause 21.3 establishes further certainty associated with this “deeming” provision in that it provides a date upon which that employment termination takes effect, being the date of the last attendance at work, or the last day’s absence with respect to which consent was given.

[75] This approach potentially gives rise to obvious inequities. For instance, if an employee is clearly incapacitated such that they are unable to communicate with the employer for more than 14 days, clause 21.2 appears to regard the employee as, nevertheless, having abandoned his or her employment. I have considered whether that type of iniquity means that the Award clause 21.2 should be regarded as a discretionary provision which does not operate until the employer accepts the repudiation of the contract. I am unable to apply this approach. The Award represents mandatory minimum employment provisions which apply to both employers and employees. Clause 21 is within Part 3, Types of Employment and Termination of Employment. Other clauses within this Part set out obligatory provisions relating to, for instance, full-time and casual employment definitions, termination of employment and redundancy obligations. Like the other clauses in this Part of the Award, clause 21.2 cannot be regarded as some form of discretionary provision. It is absolute in its terms. Indeed, if this provision is capable of being regarded as a discretionary provision, then so too must other provisions which are clearly prescriptive.

[76] That said, it must be open to an employer, not to regard an employee who has been absent, without notice for more than 14 days to have abandoned their employment. In that situation, it may well be that there is some form of new, or renewed employment contract. Because that circumstance has not arisen here, I have not further addressed it.

[77] Notwithstanding my significant reservations about the potential inequities created by this strict approach to the application of clause 21 of the Award, I am unable to apply that clause in any other manner.” 23

[19] In so doing, the Senior Deputy President concluded that failure by Mr Bienias “to give notification to Iplex of his absence for more than 14 days, means that he must be judged to have abandoned his employment” 24 and that “the letter of 30 May 2016 must then be taken to simply acknowledge that employment abandonment”.25 The Senior Deputy President also concluded that the letter, which provided for the payment of five weeks’ pay in lieu of notice, cannot be construed as an acceptance of a repudiation by Mr Bienias, because to do so would introduce an element of discretion in the interpretation of clause 21.2 of the Award.26

Appeal grounds and submissions

[20] Mr Bienias advances three grounds of appeal which together with Iplex’s submissions on each are shortly stated below.

[21] First it is said that the Senior Deputy President misconstrued or misapplied clause 21 of the Award by concluding in effect that clause 21 of the Award operated to automatically terminate the employment. Apart from the construction point, Mr Bienias advances two further bases on which it is said the clause does not have the effect contended for by Iplex and found by the Senior Deputy President, neither of which were advanced at first instance.

[22] Mr Bienias contends that clause 21 of the Award is neither a permitted nor a required term of a modern award, and that contrary to s.136 of the Act and by reason of s.137 of the Act, the term has no effect.

[23] Additionally, Mr Bienias contends that clause 21 of the Award is an objectionable term because it has the effect of requiring or permitting a dismissal in contravention of the general protections provisions set out in Part 3–1 of the Act and specifically s.352, which prohibits an employer dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009. By reason of s.356 of the Act, such a term has no effect to the extent that it is an objectionable term.

[24] As to the first ground, Iplex maintains that the Senior Deputy President’s construction of clause 21 of the Award and its effect, was correct. It submitted that clause 21 is a term that may be included in a modern award because it is a term that is either ancillary or incidental to the operation of the termination of employment provisions in the National Employment Standards, or supplements those standards. It says further that clause 21 of the Award is not detrimental in the manner contemplated in s.55(4) of the Act.

[25] Moreover, Iplex submits that clause 21 is not an objectionable term because it relates only to the termination of employment in circumstances of an unauthorised absence from work whereas s.352 of the Act prohibits dismissal because of an authorised temporary absence from work.

[26] Secondly, Mr Bienias says that the Senior Deputy President erred in law and in fact, by finding that abandonment of employment terminated the employment of Mr Bienias and in concluding Mr Bienias’ employment was not terminated on Iplex’s initiative.

[27] As to the second ground of appeal, Iplex submits that the Senior Deputy President did not in effect decide that “abandonment of employment terminated the employment of Mr Bienias”; rather the Senior Deputy President determined, consistent with authorities dealing with deemed abandonment of employment in accordance with an award, there was no action on the part of Iplex which brought Mr Bienias’ employment to an end. It submitted that Mr Bienias’ employment terminated automatically by operation of clause 21 of the Award, and that the Senior Deputy President was correct in this respect.

[28] Thirdly, Mr Bienias says that the Senior Deputy President significantly erred in fact by unreasonably concluding that Mr Bienias had abandoned his employment and that Iplex merely acknowledged that abandonment, and that such a conclusion is contrary to the weight of the evidence.

[29] As to this ground, Iplex submits that it did not rely, as a reason for the termination of Mr Bienias’ employment, on any common law principles of abandonment of employment. Accordingly, a failure by the Senior Deputy President to consider whether Mr Bienias abandoned his employment in accordance with common law principles is irrelevant and does not amount to an appealable error. It submits further, that Mr Bienias has not identified any errors of fact in the Senior Deputy President's conclusion that Mr Bienias abandoned his employment in accordance with the provisions of clause 21 of the Award.

Consideration

[30] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 27 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[31] This appeal is one to which s.400 of the Act applies. Section 400 provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[32] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 28 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.29 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 30

[33] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 31 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.32

[34] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 33

[35] We are persuaded that Mr Bienias has made out a case of error on at least one of the bases underpinning the first ground of the appeal. The error is of the type described in House v The King 34 – namely, that the decision-maker has acted on a wrong principle, has mistaken the facts, has taken into account an irrelevant consideration or failed to take into account a relevant consideration, or has made a decision which is unreasonable or manifestly unjust. In our view, the appellable error identified is one that attracts the public interest and so permission to appeal must be granted. We are also persuaded that the appeal should be upheld and our reasons for that conclusion follow below.

[36] We consider that clause 21 of the Award does not have the effect of automatically terminating employment and did not have that effect in this case. Both textual and contextual considerations tell against such a conclusion.

[37] The first paragraph of clause 21 says nothing at all about termination of employment. It merely sets out that an employee’s absence from work for a continuous period exceeding three working days for which there is no consent by the employer, and for which there is no notification to the employer, is prima facie evidence that the employee has abandoned the employment. There is at this stage, no termination of the employment. There is only prima facie evidence of abandonment.

[38] The second paragraph of clause 21 is no more than a deeming provision which has the effect of deeming an employee to have abandoned the employment if the employee, relevantly, within 14 days from the last attendance at work has not established to the satisfaction of the employer that the employee was absent for reasonable cause. It seems to us that the employer must take the positive step of concluding that it is not satisfied that the employee was absent for reasonable cause before the deeming provision operates. However, that an employee is deemed to have abandoned his employment within the meaning of the clause does not mean that the employee’s employment is thereby at an end.

[39] A deeming provision by its nature deems that a thing, act or event having particular characteristics but which may or may not also be another thing, act or event, to be that other thing, act or event. In this case, an employee’s absence for the period described in the paragraph is deemed to be abandonment of employment after taking on the characteristics described in the paragraph, whether or not as a matter of fact or law the employee has abandoned his or her employment.

[40] The employment has not been terminated by reason thereof, nor does the paragraph suggest that the employment is terminated. In our view, it would be extraordinary for the paragraph to operate as automatically terminating the employment irrespective of the wishes of the employer. Thus under the automatic termination theory, the employer would be prevented from continuing to employ the employee, waiting a further period before deciding whether to terminate the employment of the employee or taking other disciplinary action short of termination of employment.

[41] In truth, once an employee is deemed pursuant to clause 21 of the Award to have abandoned his or her employment, the employment of the employee does not come to an end nor is the employer required to end the employment by terminating it. In order to do so, we consider the employer must take the additional step of terminating the employment and if it does not do so employment continues.

[42] In this respect, the question of whether there was a termination on the employer’s initiative by reason of clause 21 of the Award is somewhat analogous to the question raised for consideration in the Federal Court Full Court decision in Mahony v White 35, namely whether the operation of a statutory provision prohibiting an employer from employing or continuing to employ a person in particular circumstances meant that a termination of employment as a consequence of the operation of the statutory provision was on the initiative of the employer. In Mahony the Court accepted that whether or not an employer was required to dismiss an employee by some legislative, contractual or other obligation, if the employer did not take that step the employment would continue and employment did not come to an end by operation of the statute.36

[43] Thus termination of employment by abandonment as set out in the third paragraph of clause 21, though said to operate as from the date, relevantly, of the last attendance at work, cannot operate at all until the employer reaches the conclusion that it is not satisfied that the employee was absent for reasonable cause, and decides to act. Therefore, it is not the unauthorised absence of the employee which causes employment to terminate, nor is it the deeming of the unauthorised absence to be an abandonment. Rather, it is the act of the employer that brings about the termination of the employee’s employment.

[44] In Mahony, the Court affirmed as remaining good authority that connotation of the formula “at the initiative of the employer” set out in the judgment of the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 37, in which the Court said:

“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.” 38

[45] So construed, there was no automatic termination of Mr Bienias’ employment under clause 21, rather it was the act of Iplex which brought about the termination of that employment, and so it follows that there was a termination of employment on Iplex’s initiative.

[46] Moreover, the conduct of Iplex merely serves to reinforce the fact that the termination of employment occurred on the employer’s initiative. That is so even if the construction of clause 21 of the Award that we prefer is not correct. In its correspondence to Mr Bienias of 30 May 2016, Iplex advised him that he had been absent from work since 13 May 2016 without its consent and without notification. It then set out the steps that it took to locate and contact Mr Bienias. Iplex then said that (underlining added):

“. . . we have determined that you have abandoned your employment with Iplex Pipelines and, consequently, your employment with the company is terminated with effect on 13 May 2016, being the last shift you worked for the company.” 39

[47] It is clear from the above that Iplex made a determination that Mr Bienias had abandoned his employment with the consequence that his employment with the company was terminated. We consider that this clearly points to a conclusion that the termination of Mr Bienias’ employment was on the initiative of Iplex. It is to be observed also that the correspondence neither references clause 21 of the Award nor suggests that clause 21 had the effect of automatically terminating the employment in the circumstances.

[48] Furthermore, the payment to Mr Bienias of five weeks’ pay in lieu of notice is inconsistent with the employment having been terminated other than on the initiative of Iplex. The correspondence makes no suggestion that the payment in lieu is by way of gratuity or without obligation to make it.

[49] We are also persuaded that even if clause 21 of the Award operates in the manner determined by the Senior Deputy President, it is of no effect because it is a term that is neither a permitted nor a required term of a modern award, contrary to s.136 of the Act. It would therefore be of no effect by virtue of s.137.

[50] Section 136 provides the following:

“136 What can be included in modern awards

Terms that may or must be included

(1) A modern award must only include terms that are permitted or required by:

(a) Subdivision B (which deals with terms that may be included in modern awards); or

(b) Subdivision C (which deals with terms that must be included in modern awards); or

(c) Section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d) Part 2-2 (which deals with the National Employment Standards).

Note 1: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2: Part 2-2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2) A modern award must not include terms that contravene:

(a) Subdivision D (which deals with terms that must not be included in modern awards); or

(b) Section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note: The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).”

[51] It seems to be accepted by Iplex, 40 and in any event we consider, that clause 21 is not a term which is either permitted by any provision enumerated in Subdivision B or required to be included by any provision enumerated in Subdivision C of Part 2-3 Division 3 of the Act.

[52] As earlier indicated, Iplex points to s.55(4) of the Act as the relevant source of authority for the inclusion of clause 21 in the Award. That section provides that a modern award may also include terms that are:

“(a) ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards; and

(b) terms that supplement the National Employment Standards, to the extent that any of the terms are not detrimental to an employee in any respect when compared with the National Employment Standards.”

[53] Iplex submits that clause 21 of the Award concerns the termination of an employee's employment in particular circumstances; namely, where the employee is deemed to have abandoned his or her employment. It says that termination of employment is a matter addressed by the National Employment Standards contained in Part 2-2 of the Act (Division 11) and, on this basis, clause 21 of the Award is a permitted term either as one that:

“(a) is ancillary or incidental to the operation of Division 11 of the National Employment Standards; or

(b) supplements the National Employment Standards.”

[54] Iplex further submits that clause 21 of the Award is not detrimental within the circumscribed meaning of s.55(4) of the Act.

[55] We do not accept that clause 21 of the Award operating in the manner suggested by Iplex, that is as an automatic termination of employment, is either ancillary or incidental to the operation of Division 11 or that it supplements any provision of the National Employment Standards. Division 11 deals with notice of termination, payment in lieu of notice and redundancy pay. Relevantly, s.117 of the Act provides that:

“(1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre-paid post to the employee’s last known address.

Amount of notice or payment in lieu of notice

(2) The employer must not terminate the employee’s employment unless:

(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.”

[56] It is self-evidently the case that s.117 deals with termination of the initiative of the employer and the employer’s obligation to an employee in those circumstances. It seems to follow that a provision in an award which would operate to automatically terminate employment cannot reasonably be described as ancillary or incidental to the operation of a provision which deals with the obligations of an employer when the employer seeks to terminate the employment of an employee. Nor can it reasonably be said that such a provision supplements that National Employment Standard or for that matter, any other of the National Employment Standards.

[57] For completeness, we make the observation that clause 21 is also not a term of the kind contemplated by s.118 of the Act; that is, it is not is not a term specifying the period of notice an employee must give in order to terminate his or her employment.

[58] Iplex further submits that clause 21 of the Award is not detrimental within the circumscribed meaning of s.55(4) of the Act. In our view, even if clause 21 of the Award, operating as an automatic termination of employment as suggested by Iplex, could be regarded as either ancillary or incidental to the operation of the National Employment Standards or as supplementing those standards, the “not detrimental” submission does not bear scrutiny. The effect of the clause operating this way would be to deprive an employee of both the written notice of the day of termination requirement in s.117(1), and except in the case of serious misconduct, the receipt of notice or compensation in lieu of notice as required ss.117(2) and (3). On any view, the effect of such a term would be detrimental to an employee in the respects we have identified.

[59] Given our conclusions above it is unnecessary for us to deal with the other matters raised by the appeal and we are persuaded for the reasons given that the appeal should be upheld.

Rehearing

[60] Upon a rehearing, we are satisfied, for the reasons given above, that the termination of employment of Mr Bienias was on Iplex’s initiative. It follows that there was a dismissal within the meaning of s.386 of the Act. The jurisdictional objection raised by Iplex must therefore be dismissed.

Conclusion

[61] For the reasons given we consider that it is in the public interest that permission to appeal should be granted and the appeal should be upheld and we order as follows.

Order

1. Permission to appeal is granted;

2. The appeal is upheld;

3. The decision in [2016] FWC 6624 and order in PR585426 are quashed;

4. Iplex’s objection to jurisdiction is dismissed; and

5. The application by Mr Bienias for an unfair dismissal remedy (U2016/3008) is remitted to Senior Deputy President O’Callaghan for hearing and determination.

VICE PRESIDENT

Appearances:

Mr D. Kiel, Solicitor for Mr Bienias.

Mr R. Wade of Counsel for Iplex Pipelines Australia Pty Ltd.

Hearing details:

2016.

Melbourne:

14 December.

 1   [2016] FWC 6624

 2   PR585426

 3   Decision at [4]

 4   Ibid. There may be some doubt as to the correctness of that acceptance. There is an enterprise agreement titled Iplex Pipelines Australia Pty Ltd Enterprise Agreement 2014 – Osborne Park Manufacturing which commenced operation on 14 September 2015 and has a nominal expiry date of 30 June 2017 ([2015] FWCA 6143). That agreement is expressed to cover all employees employed within the manufacturing division of Iplex located at 25 King Edward Road Osborne Park WA (clause 2.3) but excludes any employees engaged as a salaried employee (clause 2.3) or salaried staff employed on individual contracts (clause 1.1). The agreement contains a classification titled “Team Leader” (clause 4 of Attachment A). Evidence as to Mr Bienias’ status as a salaried employee or salaried staff employed on an individual contract appears at AB183 – AB 184 [15] with a copy of that which is described as Mr Bienias’ employment contract found at AB 198 – AB 211. That document carries a notation that it was issued on 7 October 2015 (AB 198) and that the commencement date is 1 October 2015 (AB 198). Both these dates postdate the date on which the agreement commenced to operate. Furthermore the employment contract appears on a Fletcher Building letterhead and provides that the document outlines "your individual terms of employment which are specific to you" and that these "are to be read in conjunction with the Fletcher Building Standard Terms and Conditions of Employment" (AB 198). The employment contract specifies the place of work as Osborne Park and the classification as Team Leader (AB 198). The employment contract does not appear to make any reference to Iplex but makes continual reference to Fletcher Building and relevantly makes reference to an acknowledgement by Mr Bienias that he has "not deliberately failed to disclose any material which may have materially influenced Fletcher Building Limited's decision to employ me" (AB 200). Fletcher Building Limited appears to be the parent company of Iplex. However as there is no evidence of the internal arrangements concerning employment as between these related entities and since neither party quarrelled either at first instance or during the appeal about the status of Iplex as Mr Bienias’ employer or about the Award’s coverage and application to that employment at all relevant times we will proceed to determine the appeal on that basis.

 5   Decision at [5]

 6   Decision at [9]

 7   Decision at [10]

 8   Ibid

 9   Decision at [11]

 10   Decision at [12]

 11   Decision at [13]

 12   Decision at [14]

 13   Ibid

 14   Ibid

 15   Decision at [15]

 16   Ibid

 17   Decision at [16]

 18   Decision at [17]

 19   Ibid

 20   Ibid

 21   Decision at [18]

 22   Decision at [57]

 23   Decision at [72] – [77]

 24   Decision at [78]

 25   Ibid

 26   Ibid

 27   This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

 28   (2011) 192 FCR 78 at [43]

 29   O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]

 30   [2010] FWAFB 5343, 197 IR 266 at [27]

 31   Wan v AIRC (2001) 116 FCR 481 at [30]

 32   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 33   Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

 34   (1936) 55 CLR 499

 35   [2016] FCAFC 160

 36   See also O'Connell v Catholic Education Office, Archdiocese of Sydney [2016] FWCFB 1752

 37   (1995) 62 IR 200

 38   Ibid at 205 – 206

 39   AB 426

 40   Appeal Transcript PN73- PN76

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