THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES



^ THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES


In case U2009/12914, the FWA Commissioner allowed the respondent (a public sector agency in the ACT) to THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES use not just one legal representative, but an experienced two-tiered legal team comprising an experienced ACT Government Solicitor and an experienced barrister, and this barrister was actually appointed as an THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES ACT Magistrate after the 22 February 2010 hearing but before the decision was handed down on 4 May 2010. And I believe the matter was handled in a manner that seemed to assume that I was THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES a lawyer or workplace law expert who had endless time to prepare my submissions and arguments.


The barrister who was allowed to act for the respondent admitted at the main 22 February 2009 jurisdictions hearing that she THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES was not familiar with the Workplace Relations Act 1996, whereas, according to Section 596 of the Fair Work Act 2009, "FWA may grant permission for a person to be represented by a lawyer THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES or paid agent in a matter before FWA only if ... it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter". It is THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES hard to see how a barrister not familiar with relevant legislation could "enable the matter to be dealt with more efficiently".


It is also hard to see how a two-tiered solicitor-barrister THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES legal team could "enable the matter to be dealt with more efficiently" in relation to contested facts – especially in cases like mine in which I'd alleged that several people employed by the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES respondent had been dishonest and breached serious legal and policy obligations (failing to advertise higher duties positions overdue for advertising etc.), and all of these people who I alleged had done wrong THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES had an interest in concealing what they'd done from the respondent's senior management and legal representatives. With a two-tiered solicitor-barrister legal team, there's also a greater likelihood THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES that the barrister speaking at the hearing will be relying upon second or third хэнд accounts, or even fourth or fifth хэнд accounts, taking into consideration the hierarchies within large organisations like THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES my former employer respondent, in which the account of a junior manager – especially if they have a lot to hide in relation to allegations I raised in my case – could be filtered THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES or laundered by several layers of management before it reached the legal team.


When the barrister attempted to describe factual matters in relation to the case, she always said things which showed THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES that she had little idea of what actually happened, and was receiving badly distorted accounts that must have been filtered or laundered at several levels. But the Commissioner never мейд any proper attempt THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES to get to the bottom of disputed accounts, and just allowed the whole matter to be dominated by complex and narrow technicalities of contract law which I've at all times THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES been largely bamboozled by, and I still don't understand the technicalities, despite the fact that I've studied some law myself, but not to the level of a completed THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES university degree.


The matter was also handled in a manner in which many layers of legal technicality just totally squeezed out any proper assessment of facts, meaning that disputed facts that I felt sure THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES were relevant were just never considered, and the respondent was allowed to get away with a huge pack of lies and breaches of laws and agency policies that began in THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the workplace prior to the cessation of my employment, and were allowed to remain unchallenged by the Commissioner, despite evidence I provided in my original Form F2 application and in later submissions that THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES мейд it clear that people were lying and had breached numerous laws and policies that constituted terms of the very contract that was used as the basis to deny FWA jurisdiction to THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES hear my substantive unfair dismissal claims.


It felt to me as though the Commissioner was effectively allowing the legal team to act as personal lawyers for those employed by the respondent who I THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES claimed had told lies and broken various laws and policy requirements in connection with the cessation of my employment.


^ Extracts from my Form F7 Notice of Appeal relevant to this submission here:


Errors THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES of Law (including some process concerns)


[13] The Commissioner's decision errs in failing to acknowledge, take into proper account of or give due weight to the fact that the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES ACT Public Sector Management Act 1994, the ACT Public Sector Management Standards 2006, the applicable collective agreement, the respondent's own agency policies, and ACT government policies, all constitute binding terms and conditions of all of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES my contracts of employment with the respondent, including the contract ending 30 September 2009 which the respondent and Commissioner rely upon to deny FWA jurisdiction in this case, such that the serious breaches described THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES in paragraph [11] above in many relevant instances:


(a) constitute significant and serious breaches of the very contract that the respondent and Commissioner have relied upon to deny jurisdiction;


(b) very significantly and THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES causally contributed to the termination of my employment with the respondent – at the initiative of the respondent by both acts and omissions; and


(c) challenge and render invalid several significant claims and arguments the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Commissioner includes and relies upon in her 4 May 2010 decision and reasoning, including her final decision to deny jurisdiction itself.


[14] My employment ceased more due to "effluxion of lawful treatment" towards THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES me in accordance with legally binding terms and conditions of the contracts of my employment and my workplace rights generally, at relevant times, including the contract ending 30 September 2009 which the respondent and Commissioner rely THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES upon to deny jurisdiction, rather than effluxion of time.


[15] The Commissioner erred in applying the decisions of ^ D’Lima v Board of Management, Princess Margaret Hospital for Children (1995-1996) 64 IR THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES 19, Department of Justice v Lunn (2006) and Marsh v Macquarie University (2005), to my case as she did in her decision, and by failing to apply a factual inquiry as called for in the Mohazab v Dick THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Smith Electronics Pty Ltd (1995) 62 IR 200 decision and other case decisions, noting that paragraph 1528 of the Fair Work Bill 2008 Explanatory Memorandum is as follows:


^ Clause 386 – Meaning of dismissed

1528. This clause sets out THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).


[16] The THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES facts in the cases of Lunn and Marsh significantly differ from those in my case, for reasons set out in my original 14 October 2009 application, other subsequent submissions for case U2009/12914, and THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES paragraph [11] above.


[17] The commissioner erred my failing to acknowledge the particular significance of the dishonest or fraudulent conduct I have attempted to draw attention to in (b), (e) and (g) of paragraph [11] above, including THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES in relation to the contract the respondent and Commissioner have relied upon to deny FWA jurisdiction in this case, noting paragraph [11](e) above.


[18] Further to paragraph [15], the Commissioner erred in applying and relying THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES upon the Lunn case in making her decision (see decision transcript at paragraphs 42-53), for reasons including as follows:


(a) the ^ Lunn case is not referred to at all in the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Fair Work Bill 2008 Explanatory Memorandum (henceforth "the EM");


(b) the Lunn case does not acknowledge or mane any reference whatsoever to the Full Bench decision of the Mohazab case which, according to THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the EM, in paragraph 1528 (see paragraph [15] above), should guide the interpretation of jurisdictional questions to be decided on section s.386:


(c) the Lunn decision was мейд at a time when the Workplace Relations Act THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES 1996 was in force, and the Commissioner herself implied that she recognised that the new legislation might give rise to different interpretations on matters related to s.386 and the Lunn case, as follows THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES (notwithstanding the Commissioner's oversight – dealt with in paragraph [12](c) above and Appendix 1 lowermost below – in failing to acknowledge my attempt to address the differences in legislation here):


in paragraph 31: At THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the conclusion of the hearing on 23 February 2010 the attention of both parties was drawn to the recent alteration to the relevant provisions of the legislation.

...

    in paragraph 32: As neither party THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES had addressed the differences between the provisions of the ^ Workplace Relations Act 1996 and the Fair Work Act 2009 in relation to the set of circumstances before me I requested that each provide me with THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES further submissions on the point. In order to clarify the question the following question was put to the parties:

"If s.386(1) of the Fair Work Act 2009 (FW Act) operates so as to remove THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES from the jurisdiction of Fair Work Australia terminations of employment under fixed term or "outer limit contracts" that result from the "effluxion of time" (on the basis that there is no THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES termination at the initiative of the employer), what operation is left for that part of s.386(2) of the FW Act that relates to contracts for a specified period, where the employment terminates at THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the end of the period?”


(d) if the legislators who drafted the Fair Work Bill 2008 and Fair Work Act 2009 intended for the Lunn case to (i) guide the interpretation of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES s.386 of the Fair Work Act 2009, and (ii) provide an authority that Commissioners and others in FWA could rely upon, or feel bound by, in support of their decisions on unfair dismissal jurisdictional questions, it THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES is reasonable to assume from a party's perspective that the legislators or Fair Work Australia would have taken care to codify, explain or establish standard operating procedures as follows THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES:


^ Codification Option

(i) ensure that s.386(2) clearly stated that an "outer limit employment contract" and a "contract of employment for a specified period of time" alike provide statutory grounds to deny FWA jurisdiction THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES in unfair dismissal cases under the Fair Work Act 2009 in cases where "employment has terminated at the end of the period "; and

(ii) ensure that s.386(3) clearly stated in plain English how the s.386(2) jurisdictional THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES exclusion could be overcome, noting that s.386(3) states that s.386(2) "does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES", whereas the Full Bench decision in Lunn specifically rejects the "substantial purpose argument – at paragraph 42 stating that "even if it were shown that the purpose of the policy was to avoid THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the Commission's unfair dismissal jurisdiction ... this would still not render such contracts a "sham" in the sense that, viewed objectively, the parties to those contracts had a common intention that they would THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES not create binding legal rights and obligations according to their terms – and sets out grounds for overcoming the common law jurisdictional exclusion asserted which differ from the "substantial purpose" basis THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES, including as follows:


Fraud, mistake or misrepresentation basis and established categories of exceptions basis in paragraph 30, citing the decision of Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in the High Court case THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES of ^ Equuscorp Pty Ltd v HFT Investments Pty Ltd (2004) 218 CLR 471 (see paras [32]-[36] – emphasis in original paragraph 30 in the Lunn decision):


The respondents each having executed a loan agreement, each is bound by it THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES. Having executed the document, and not having been induced to do so by fraud, mistake, or misrepresentation, the respondents cannot now be heard to say that they are not THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES bound by the agreement recorded in it.

...

this is not a time to ignore the rules of the common law upholding obligations undertaken in written agreements. It is a time to maintain those THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES rules. They are not unbending. They allow for exceptions. But the exceptions must be proved according to established categories. The obligations of written agreements between parties cannot simply be ignored or brushed aside THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES.


Further on the established categories of exceptions basis, in paragraph 31 of Lunn:


    Thus, under the general law, in contexts where binding contracts are the norm (and employment, like commerce generally, is such a THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES context), executed written contracts are taken to be binding according to their terms unless one of the well established categories of exception is established (and we note that these were THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES not listed exhaustively in the passage from Equuscorp we have just set out). The established categories of exception do not include an amorphous assessment that there exist "strong countervailing factors" indicating that THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the agreement between the parties is something other than what appears in an executed written contract.


^ Sham contract basis in paragraphs including paragraph 31 of Lunn as follows:

Of course, it is open to THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES a party to show that a written contract that gives the appearance of creating binding legal rights and obligations was a "sham" and did not in truth have that effect.



    ^ Oral THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES agreement basis in paragraph 37 of Lunn:

    ... as suggested by the passage in Equuscorp, it may be open to an employee to demonstrate that the true contract with the employer was partly THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES oral and partly written - and that although the written part of the contract specified an end date, the parties had orally agreed that the contract would be renewed - or that there was a collateral agreement THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES to the same effect. In such circumstances there may well be a "termination of employment at the initiative of the employer" if the employer insisted that the employment had THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES come to an end through the expiry of the written contract (or the written part) because this would involve the employer breaching the oral term or the collateral agreement as the case may be THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES.


^ Explanation Option

(ii) ensure that the Explanatory Memorandum (or addendum thereto) or explanatory notes in the legislation (akin to the explanatory notes provided with section 638 of the Workplace Relations Act 1996) clearly explain these exceptions THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES to the effluxion of time grounds for defeating jurisdiction, noting that Lunn stops short of this, merely referring to vague and unhelpful terms like "countervailing factors" and "well established categories of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES exception" that leave FWA parties wondering if they need to complete a law degree to take part in an FWA unfair dismissal process despite all the Fact Sheets and sections 3 and 381 of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the Fair Work Act 2009 itself that expressly emphasise the intention to minimise legal technicality and the involvement of lawyers and so on.


Standard Operating Procedure Option - to ensure clear explanation THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES to parties of what s.386 means and any common law considered relevant to its interpretation and decisions to мейд based on it ... noting President's rights to establish rules and procedures as in Section 609. Need THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES to have a standard operating procedures to distinguish between "contracts of employment for a specified period of time" and "outer limit contracts" at the earliest opportunity after an application is submitted, and THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES to provide directions to parties accordingly.


(e) the Fair Work Act 2009 is codified legislation drafted in plain English, in which common law considered relevant to its interpretation has been either (i) incorporated THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES into the Fair Work Act 2009 itself by codification, or (ii) explicitly mentioned in the Fair Work Bill 2008 Explanatory Memorandum, as in the case of Mohazab v Dick Smith Electronics Pty Ltd THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES (1995) 62 IR 200 (see paragraph 1528 of the Explanatory Memorandum as in paragraph [15] herein above), so the fact that the jurisdictional exclusion basis set out in Lunn had not been incorporated into the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Fair Work Act 2009 by codification nor any mention in the Explanatory Memorandum, coupled with the extremely significant fact that Fair Work Australia has been intentionally designed and intended for non-lawyer parties, suggests on the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES face of it that the legislators were not sufficiently impressed by the Lunn decision to consider it relevant to the Fair Work Act 2009 and binding on Fair Work Australia decisions THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES, and that non-lawyer parties in an unfair dismissal case can't be reasonably expected to digest the meaning of a complex case like Lunn and prepare arguments in relation to it in THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES any event, let alone as occurred with me where I was expected to digest it all over lunch on the day of the 22 February 2010 jurisdiction hearing at a time when I THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES had my own ideas how I hoped to be able to present my case in the limited time I was given to state my case in terms of what I considered to THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES be my strongest lines of argument and evidence.


(f) Lunn acknowledges exceptions as in item (d) above here, but the Commissioner did not provide me with time or reasonable opportunity to develop THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES my arguments along the lines of those exceptions at or after the 22 February 2010 jurisdiction hearing, despite the fact that my original 14 October 2009 application and subsequent submissions for this case did raise THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES arguments along the lines required to defeat the jurisdiction objection based on the Lunn reasoning; and


(g) further to (f): neither party nor the Commissioner raised the Lunn Full Bench decision that the Commissioner has THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES heavily relied upon in her decision, in case U2009/12914, prior to the 22 February 2010 jurisdiction hearing itself, and I only received the Lunn decision transcript for the first time when the Commissioner THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES handed it to me to just prior to the lunch adjournment of the 22 February hearing, to look at over lunch, apparently with the expectation that I fully digest it over lunch to THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the point where I could do justice to it all in support of my case.


^ 3. Public interest in permitting the appeal:

[Set out the matters that the appellant contends make it in the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES public interest for FWA to grant permission for the appeal.]

Note: s.400(1) prohibits FWA from granting permission for an appeal from a decision мейд under Part 3-2 of the Act relating to unfair dismissal THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES unless FWA “considers that it is in the public interest to do so”.





[21] There is a particular public interest in clarifying any potentially or actually complex legislation in the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES early days of its operation, and it is now still less than 11 months after the new Fair Work Act 2009 came into force on 1 July 2009. This appeal can provide a good opportunity to clarify the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES operation of s.386 of the Fair Work Act 2009 as clearly appears to be necessary.


[22] The complexity of s.386 in relation to case U2009/12914 is very clear from the decision transcript THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES itself, I believe, and certainly in the transcript of the 22 February 2010 jurisdiction hearing, in which an experienced FWA Commissioner and an experienced solicitor and barrister legal team for the respondent clearly remained uncertain THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES as to the meaning of s.386 throughout the hearing, as did I too of course as the non-lawyer involved in this process trying to grapple with the complexities arising, whereas natural justice THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES and procedural fairness demanded that these complexities were translated into language comprehensible to non-lawyers – and specifically to me as a non-lawyer party – prior to submissions, let alone the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES hearing itself, as suggested earlier in this appeal document (see especially paragraphs [2] and [18] above).


[23] Parties such as myself may believe they have good grounds for a claim under unfair dismissal or general protection dismissal or THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES other parts of the Fair Work Act 2009, but the General Protection claim can quickly end up in the Federal Magistrates Court, so a party may well be attracted to the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES less risky and costly unfair dismissal pathway. It is in the public interest to acknowledge the point here, and I'd like the chance to elaborate on it if I've THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES not done justice to it here.


[24] In relation to case U2009/12914 in particular, it is in the public interest, in terms of natural justice and procedural fairness to me and potentially others facing similar THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES situations, that s.386 and associated case law can be clarified to provide me and the respondent also with clear knowledge of the proof burdens we have to address in our THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES submissions and arguments.


[25] There is a deep public interest need to clarify the case law deemed relevant to s.386, or to otherwise ensure that parties in unfair dismissal cases are in all THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES cases provided with clear directions on what s.386 means, earlier enough in the process to enable them a fair chance to present their submissions and achieve fair hearings, especially if Fair Work Australia and THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the Australian Government wish for Fair Work Australia to remain accessible for non-lawyer parties as claimed to be the case in DEEWR and Fair Work Australia fact and information THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES sheets, the Fair Work Act 2009 itself (including sections 3 and 381 setting out objects of the Act in full, and the part dealing with unfair dismissal, respectively), and the Fair Work Bill 2008 Explanatory Memorandum.


[26] Fair Work Australia THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Full Bench clarification of what is meant by the term "countervailing factors" and "exceptions [that] must be proved according to established categories", in terms comprehensible no no-lawyer unfair dismissal parties THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES, is clearly in the public interest, noting the prominent appearance of such terms in the Lunn Full Bench decision transcript (see paragraph [18](d) above), and further reliance of the "countervailing factors" expression THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES in the Commissioner's decision in this current case U2009/12914.


[27] Further to and related to [26] above: Full Bench clarification of the apparently wide gap between the ^ D'Lima Full Bench decision THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES on the one хэнд, and the Lunn Full Bench decision on the other, is clearly in the public interest, noting that some recent cases have suggested that the Lunn decision may represent something of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES an over-correction to the case law position adopted in the D'Lima case, such that a new Full Bench decision is needed to address the shades of grey arising THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES in many real life cases.


[28] It is in the public interest that it is clarified once and for all that subsection s386(2) does not apply to so-called "outer limit contracts", noting that the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES term "outer limit contract" only appears extremely infrequently in industrial tribunal and court decisions, employment law textbooks, on the internet and so on.


[29] Clarification of whether or not the Lunn decision remains THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES valid in view of the changes from s638 of the old Workplace Relations Act 1996 to s386 of the new Fair Work Act 2009 is clearly in the public interest in view of this THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES case and how challenging this transition has proven in this case in terms of questions over whether changes have been significant.


[30] Full Bench or Federal Court clarification of the proof burdens of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES parties arguing for or against FWA jurisdiction in unfair dismissal cases based on s.386(1) for cases of "outer limit contracts", when it is found that s.386(2) and s.386(3) do not apply THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES, is clearly in the public interest, as workplace law expert Professor Andrew Stewart and at least one person making a submission to a Senate Inquiry on the Fair Work Bill 2008 have THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES commented that the unfair dismissal provisions in the Workplace Relations Act 1996 have been especially challenging, perhaps especially in relation to arguing under what is now s.386(3). But at least s.386(2) and s.386(3) provide codification THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES for one class of contract which has been consistently defined and interpreted in legislation and case law for well over a decade. There is no codification at all for the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES "outer limit contract" I was found to be employed under, and very little reference indeed to outer limit contracts in industrial tribunal decisions, employment law books and so on. So if s.386(2) and s THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES.386(3) are challenging parts of the unfair dismissal legislation to contend with and prepare submissions for, then surely a case like case U2009/12914 here must be considered very much more challenging, difficult THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES, legally technical and so on again, hence rendering such cases for all practical purposes inaccessible to the non-lawyers presumed to be parties in a Fair Work Australia unfair dismissal case. In this THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES case, an experienced Counsel for the respondent and [the Commissioner] were both unsure of the meaning of the legislation in its new form even at the end of the main hearing, and THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES I left the hearing hoping that the Commissioner would explain what it all means and then give parties in this case a chance to make submissions again based on what the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES law actually means.





Appendix 1

Evidence of efforts to address the differences between the provisions of the Workplace Relations Act 1996 and the Fair Work Act 2009 in relation to the set of circumstances arising THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES in Case U2009/12914


I specifically stated as follows in the fifth of six emails I submitted on 10 February 2010 and the single attachment to that fifth of six emails, with emphasis added here THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES in bold italics:

^ From: Mark Drummond

To: [deleted]

Cc: canberra@fwa.gov.au

Sent: Wednesday, February 10, 2010 10:31 AM

Subject: Submissions in response to [the employer's] jurisdictions submissions RE Case U2009/12914


To

 

^ Commissioner [Deleted]

Fair THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Work Australia

Canberra

 

and

 

Mr [Deleted]

[Deleted]

 

 

Submissions in response to [the employer's] jurisdictions submissions RE Case U2009/12914

 

 

Dear Commissioner [Deleted],

 

1.   Please find attached documents that form part of my response to the respondent's THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES jurisdiction submissions as directed on 20 January 2009.

 

2.  I wish for this email here to form part of my submissions here.

 

3.  One of my leading arguments is that the fixed term contract that the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES respondent has relied upon in support of it's claim to have this matter dismissed on jurisdictional grounds does not satisfy the requirements of a fixed term contract in THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES view of several industrial court and tribunal decisions and associated reasoning including those referred to in note 1 below subsection 638(1) of the Workplace Relations Act.  I also submit that the new Fair Work THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Act 2009 has not changed in any significant way, if at all, in relation to the narrow question of FWA's jurisdiction to hear my substantive claim.


4.  I apologise for the fact that the attachment 'Contracts THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES not fixed term Arg ...' is only very rough beyond page 12 or so, and similarly for some other attachments which I'll tidy up as soon as possible.

 

5.  Will send THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES more later today.

 

Yours sincerely,

 

Mark Drummond

[address details deleted]


The single attachment to the email as above, titled 'Jurisdictional arguments at 100210 1656.doc', contained as follows on pages 4-7 and 9.


9. Section 386 of the Fair Work Act 2009 is THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES 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 THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES this Part.


10. Subsection 386(2)(a) of the Fair Work Act 2009 states the following exclusion in relation to unfair dismissal:


"a person has not been dismissed if ... the person was employed THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES 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 THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES period, on completion of the task, or at the end of the season".


11. The respondent claims that FWA "has no jurisdiction to order any remedy for the applicant in the substantive matter and should THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES therefore dismiss it" as "s386 applies, namely that the applicant was not dismissed because he was a person employed under a contract of employment for a specified period of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES time and that his employment terminated at the end of that period by effluxion of time" (as quoted from items 1 and 3 of the respondent's 18 December 2009 jurisdictional submission, with emphasis added here in bold italics THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES).


12. The phrases emphasised in item 11 above, as quoted from item 3 of the respondent's 18 December 2009 submission, are identical to the corresponding phrases in Subsection 386(2)(a) of the Fair Work THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Act 2009 except that the respondent writes "that period" whereas the Act states "the period". It is clear, therefore, that the respondent's jurisdictional claim here relies upon subsection 386(2)(a) of the Fair THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Work Act 2009, and it is also clear that subsections 386(2)(b) and 386(2)(c) are neither relied upon by the respondent nor able to be relied upon to support the respondent's claim that FWA "has no THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES jurisdiction to order any remedy for the applicant in the substantive matter and should therefore dismiss it". It is further clear that my contract of employment ending on 30 September 2009 was not a THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES contract of employment "for a specified task, or for the duration of a specified season", so the respondent's claim relies upon the following wording within 386(2)(a) of the Fair Work Act THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES 2009:

"a person has not been dismissed if ... the person was employed under a contract of employment for a specified period of time ... and the employment has terminated at the end of the THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES period.


13. The exclusion in subsection 386(2)(a) of the Fair Work Act 2009 – as in items 9-12 above – is in form and substance very largely or wholly identical to the corresponding exclusion that applied THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES prior to 1 July 2009 under subsection 638(1) of the Workplace Relations Act 1996, as follows, along with subsection 638(3), where section 638 aligns with section 170CBA in earlier versions of the Workplace Relations Act:

638 Exclusions

Exclusions from Subdivisions B THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES, D and E and sections 660 and 661

(1) The following kinds of employee are excluded from the operation of Subdivisions B, D and E and sections 660 and 661:

(a) an employee engaged under a contract THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES of employment for a specified period of time;

(b) an employee engaged under a contract of employment for a specified task;

(c) an employee serving a period of probation THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES, if the duration of the period or the maximum duration of the period, as the case may be, is determined in advance and, either:

(i) the period, or the maximum duration, is THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES 3 months or less; or

(ii) the period, or the maximum duration:

(A) is more than 3 months; and

(B) is reasonable, having regard to the nature and circumstances of the employment;

(d) a casual employee engaged THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES for a short period, within the meaning of subsection (4);

(e) a trainee whose employment under a traineeship agreement or an approved traineeship:

(i) is for a specified period; or

(ii) is, for THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES any other reason, limited to the duration of the agreement;

(f) an employee:

(i) who is not employed under award derived conditions (see subsection 642(6)); and

(ii) to whom subsection (6) or (7) applies;

(g) an employee engaged THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES on a seasonal basis, within the meaning of subsection (8).

Note 1: The expression employee engaged under a contract of employment for a specified period of time (used in paragraph (a)) has THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council (1994) 126 ALR 121, D’Lima v Board of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Management, Princess Margaret Hospital for Children (1995 1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgment of Madgwick J, 12 November 1996, No. WI 1061 of 1996).

Note 2: An employee who is excluded from the provisions of THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the Act specified in this subsection may still be eligible to apply for a remedy in relation to the termination of employment under a provision of a State law that THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES is not excluded under section 16.

Note 3: The definitions in section 642 apply for the purposes of this section.

...

(3) Subsection (1) does not apply to an employee engaged under a contract of a kind THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES mentioned in paragraph (1)(a) or (b) if a substantial purpose of the engagement of the employee under a contract of that kind is, or was at the time of the employee’s engagement, to avoid THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES the employer’s obligations under Subdivision B or D or section 660 or 661.


14. The following table shows the correspondence of wording in the

^ Workplace Relations Act 1996 as amended at 30 June 2009, the Fair THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES Work Act 2009 (subsections ??? and ???), and the respondent's 18 December 2009 submission (item 3):



^ Workplace Relations Act 1996

subsections

638(1) and 638(3)

Fair Work Act 2009

subsections

386(2)(a) and 386(3)

Respondent's

18 December 2009

submission (item 3)

s638(1):

(1) The following kinds of employee are THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES excluded from the operation of Subdivisions B, D and E and sections 660 and 661:

(a) an employee engaged under a contract of employment for a specified period of time;

...

s386(2)(a):

"a person has not been THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES dismissed if ... the person was employed under a contract of employment for a specified period of time ... and the employment has terminated at the end of the period."

The respondent THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES asserts that s386 applies, namely that the applicant was not dismissed because he was a person employed under a contract of employment for a specified period of time and that his THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES employment terminated at the end of that period by effluxion of time.

s638(3):

Subsection (1) does not apply to an employee engaged under a contract of a kind mentioned in paragraph (1)(a) or (b) if a THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES substantial purpose of the engagement of the employee under a contract of that kind is, or was at the time of the employee’s engagement, to avoid the employer THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES’s obligations under Subdivision B or D or section 660 or 661.

s386(3):

Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES this Part.





15. According to note 1 at the end of s638(1) of the Workplace Relations Act 1996:


The expression employee engaged under a contract of employment for a specified period of time (used in paragraph (a THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES)) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc (1994) 57 IR 238, Andersen v Umbakumba Community Council THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES (1994) 126 ALR 121, D’Lima v Board of Management, Princess Margaret Hospital for Children (1995 1996) 64 IR 19 and Fisher v Edith Cowan University (unreported judgment of Madgwick J, 12 November 1996, No. WI 1061 of 1996).


...

1. The respondent's jurisdictional claim should THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES fail because:


(1) none of my temporary employment contracts with [the employer] from June 2003 until September 2009 were fixed term contracts falling within the definition of s386 of the Fair Work Act 2009 as all THE USE OF TWO-TIERED SOLICITOR-BARRISTER LEGAL TEAMS AND LAWYERS GENERALLY IN UNFAIR DISMISSAL CASES could be terminated prior to their end date by either [the employer] or myself following the provision of notice;
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