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DAVID RALPH  COOPER  v.  DARWIN  RUGBY LEAGUE INC [1994] IRCA 41 (20 September 1994)

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] HCA 69;  (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:
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