David Ralph Cooper v Darwin Rugby League Inc [1994] IRCA 37

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY No DI 118 of 1994 B E T W E E N : DAVID RALPH COOPER Applicant A N D : DARWIN RUGBY LEAGUE INC COURT: NORTHROP J PLACE: MELBOURNE DATE: 20 SEPTEMBER 1994 REASONS FOR JUDGMENT On 10 December 1992, David Ralph Cooper, the applicant, was appointed the General Manager of the Darwin Rugby League Inc, the respondent. The appointment was effective from 1 October 1992. The terms of the appointment are contained in a letter from the respondent to the applicant dated 10 December and confirmed in writing by the applicant on the same day. On 7 April 1994, the respondent terminated the employment of the applicant. By application dated 24 May 1994, the applicant sought remedies in the Federal Court against the respondent pursuant to s170EA of the Industrial Relations Act 1988 ("the Act"). No issue arises from the delay between the termination of employment and the filing of the application in the Court. In conformity with s170EC of the Act, the Court directed that the matter be referred to the Australian Industrial Relations Commission for conciliation. By a certificate dated 14 July 1994, the Commission certified that it had been unable to settle the matter by conciliation. Thus, the matter is to be heard and determined by the Court. By motion, notice of which is dated 25 July 1994, the respondent seeks an order that the applicant's claim be dismissed. The motion is based on O 22 r2(1)(a) of the Industrial Relations Court Rules on the ground that the application discloses no reasonable cause of action. On the hearing of the motion, counsel for the applicant contended that the Court had no jurisdiction to hear and determine the application but, in truth the better view is to adopt the practice specified in the Rules. The Court is required to consider all matters relevant to the application and to the motion. At the same time it must be remembered that a Court will grant summary relief of the kind sought by the motion before the court in very clear cases; see, for example, General Steel Industries Inc v Commission for Railways (NSW) (1964) 112 CLR 125 especially Barwick CJ at 128-130. In the present case, apart from the fact of the unilateral termination of the applicant's employment by the respondent, which fact is not in dispute, the motion can be decided by reference to the written terms of the contract of employment and the provisions of the Act. At the same time, it must be remembered that this is not the final determination of the application and the opinions expressed in these reasons are not binding on the Court which has to determine the application after a full hearing. For the purposes of determining the motion, reference is made to two clauses of the terms of appointment which constitute the written terms of the contract of employment between the applicant and the respondent. The first clause is headed "Employment Period" and is as follows: "Except in the case of misconduct, the period of employment is three (3) years from the confirmation date." The confirmation date is 10 December 1992. The other clause is headed "Notice of Termination" and is as follows: "Except in the case of misconduct, and in accordance with the clause relating to the Employment Period in this document, at least one calender month's notice by either party will terminate the employment." In the present case, the respondent, as the employer, terminated the employment of the applicant. The termination was not by agreement. The employment did not continue for the period of three years from 10 December 1992. Part VIA of the Act is headed "Minimum Entitlements of Employees". Division 3 of Part VIA is headed "Termination of Employment". Subdivision C of Division 3 is headed "Remedies in respect of unlawful termination". Subdivision C comprises sections 170EA to 170EH. The applicant, pursuant to s170EA, applied to the Court for a remedy in respect of his employment. By its motion, the respondent claims that it is excluded from the operation of the provisions contained in Subdivisions B, C, D and E of Division 3 of Part VIA of the Act and thus the application should be dismissed. Subdivision A of Division 3 of Part VIA of the Act is headed "Object and Interpretation". Section 170CC is within Subdivision A. The parts of s170CC relevant to the motion, are: "170CC The regulations may exclude specified employees from the operation of specified provisions of this Division. An exclusion has affect only if: (a) it is permitted by paragraph 2 of Article 2 of the Termination of Employment convention; and (b) ... " In the present case the provisions of paragraph 170CC(b) and paragraph 3 of Article 2 have no effect since the contract of employment was entered into long before Division VIA was enacted. For the purposes of the motion, the relevant part of paragraph 2 of Article 2 of the Convention is as follows: "2. A Member may exclude the following categories of employed persons from all or some of the provisions of this Convention: (a) workers engaged under a contract of employment for a specified period of time or a specified task, (b) ... " For present purposes, Australia is the "Member" which has exercised the power conferred by s170CC to exclude specified employees from the operation of the relevant provisions of Division 3. It has done this by regulations made under s359 of the Act. For the purposes of the motion, the relevant part of Reg 30B is as follows: "30B (1) For the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of division 3 of Part VIA of the Act: (a) subject to subregulation (2) employees engaged under a contract of employment for a specified period of time; (b) ... " Counsel for the respondent contended that the applicant was "engaged under a contract of employment for a specified period of time", namely three years from 10 December 1992, within the meaning of Reg 30B(1)(a) and paragraph 2 of Article 2 of the Convention and thus was not entitled to the remedies conferred by the Act. The issue to be determined is whether the letter from the respondent, as confirmed by the applicant, constitutes "a contract of employment for a specified period of time". This involves the proper construction of the contract of employment, and in particular the two clauses set out earlier in these reasons, in the context of Division 3 of Part VIA of the Act and the Termination of Employment Convention. In this context it is not necessary to express any opinion with respect to the apparent conflict between the views expressed by Wilcox CJ in Siagian v Samel Pty Ltd (1994) 122 ALR 33 and Gray J in APESMA v Skilled Engineering Pty Ltd, 10 June 1994, unreported concerning the relationship between the relationship of employment and the contract of employment. Here the Court is required to construe a contract of employment in a particular context where the Act and the Convention are dealing with the termination of employment at the initiative of the employee, see paragraph 3 of Article 2 of the Convention. This matter was discussed by Gray J in APESMA and I adopt his reasoning. There is no doubt that the word "termination" by itself is ambiguous. This is made clear by what was said in Reg v Social Services Secretary Ex parte Khan (1973) 1 WN 187 per Denning MR at 189 and Buckley LJ at 191. I had occasion to consider the meaning to be given to the word "terminate" in State of Victoria v Australian Teachers' Union 8 June 1993, unreported, particularly at pp14-20. Essentially the word "terminate" means "bring to an end", but of itself the word is not determinative of how the end is bought about. It is neutral in this regard. In the context of the employment of an employee, the termination of the employment of the worker may be brought about at the initiative of the employer, at the initiative of the employee, by involuntary act, as the death of the employee, or by agreement between the employer and the employee. It is in this context that when used in Part VIA of the Act and in the convention, the terms "termination" and "termination of employment" are limited to termination of employment at the initiative of the employer. Thus the right conferred by subsection 170EA of the Act on a person to "apply to the Court for a remedy in respect of termination of his or her employment" is limited to an employee whose employment has been terminated by the employer and, one may add, without the consent or agreement of the employee. This is the context in which the contract of employment in this case must be construed and in the light of s177CC of the Act and Reg 30B(1). The essence of the contention on behalf of the respondent was that the contract of employment was for a specified period of time being three years. It did not matter that the contract was entered into before 30 March 1994. It was contended that the employment would be terminated by effluxion of time on the expiration of the contract and that, upon termination, a new contract could be entered into to operate for an indefinite period of time but terminable by one month's notice by either party. Reliance was placed on Khan's case. The essence of the contention on behalf of the applicant was that the contract of employment was for an indefinite period capable of being terminated by either party on one month's notice, subject to the proviso that the employment not be terminated within the first three year period except in the case of misconduct. In my opinion, neither contention is correct. The terms of the contract are not elegantly expressed. The clause headed "Employment period" suggests the period of employment is for three years from 10 December 1992, but there is a qualification, namely that the employment could be terminated, presumably by the respondent, at any time "in the case of misconduct", presumably by the applicant. The clause headed "Notice of Termination" appears to give either party the right to terminate the employment on notice at any time during the three year period. This conclusion follows from the fact that the clause excludes termination in the case of misconduct where the employer terminates the employment "in accordance with the clause relating to the employment Period in" the contract, but provides for termination of either party by notice. In the context, this must relate to notice given within the three year period. There is no reason to suggest that this clause is limited by implication to apply to any extension of the employment period after 10 December 1995. In my opinion, the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant, as employee. On this construction of the contract of employment, the applicant is not a worker engaged under a contract of employment for a specified period of time within the meaning of paragraph 2 of Article 2 of the Termination of Employment convention and thus is not excluded, for the purpose of s170CC of the Act, from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act. Of more importance generally is the fact that, even if the contract of employment was such a contract, the respondent, possibly, was not entitled to the immunity conferred by s177CC of the Act. One thing is clear. The employment of the applicant was terminated by the unilateral act of the respondent. The employment was not terminated by agreement of the employer and employee. It was not terminated by effluxion of the period of time specified in the contract of employment. In these circumstances, it is only fair that the issue of whether the termination was lawful or not depends upon all of the facts leading up to the unilateral termination of employment by the respondent. The Court has not considered those facts. There is much to be said for the view that the exclusion of the operation of the provisions of the Act specified by regulation made under s177CC arises only where the term specified by the contract of employment has ended by effluxion of time. The relevant provisions cannot apply where the employment is terminated by agreement or by the unilateral action of an employee. In these events, the employer has no remedy and the exclusion provisions cannot apply. In all circumstances, the motion is refused. The District Registrar is directed to fix a time for the hearing of the application. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of The Honourable Mr Justice R.M. Northrop. Associate: Date: