Contract spat: WA Supreme Court not having a bar of it

Contract spat: WA Supreme Court not having a bar of it
By Rachel O'Connor on 8 February 2018 The Supreme Court of Western Australia has dismissed an appeal regarding an alleged breach of contract because it did not have jurisdiction to hear the matter.

The court ruled that none of the grounds for appeal fell within s90(1) of the Industrial Relations Act.

Background


Robert Kineen was employed by Whelans Australia. He claimed that it was a term of his contract of employment that he would be provided with all the necessary training to become a licensed surveyor under the Licensed Surveyors Act.

He entered into a professional training agreement with Mr Jonath, a licensed surveyor employed by Whelans, which was registered with the Land Surveyors Licensing Board. The agreement included training to complete the Board's final examination.

In March 2011, after failing the exam, Mr Kineen resigned.

He then made a claim in the Western Australian Industrial Relations Commission that he had been denied a contractual benefit. 

He submitted that the contract stated he would be provided with the necessary training to become a licensed surveyor under the Licensed Surveyors Act. The lack thereof meant he failed his exam and was forced to resign. 

The commissioner dismissed the claim, finding that it was not a term of the contract. It was further held that if it was a term, then the only way the appellant could succeed was if he could prove the training was to be provided prior to March 2011, when he resigned. It was not found to be the case. 

Mr Kineen then unsuccessfully appealed to a full bench of the Commission. It found that the commissioner had erred in his finding that this was not a term of the contract. The plurality further held that the commissioner had erred in his finding that the appellant did not need to become a licensed surveyor to continue employment.

However, the appeal was dismissed on the grounds that the commissioner was correct in finding that the contract did not state that the employee had to acquire training by March 2011. This was fatal to the appeal as it could not have been breached without this element. 

Mr Kineen then appealed to the Supreme Court. He made eight grounds for appeal under s90(1)(b) of the Industrial Relations Act and claimed the full bench was erroneous in law. The appeals included, but were not limited to, the fact that the full bench erred in its decision not to allow the submission of the Employee Management Plan, denying the respondent was obliged to complete the training by March 2011 and suggesting the appellant expected to be trained until he became licensed. 

Judgment


The court held that the grounds of appeal raised arguments about factual findings of the reasoning process of the full bench and "none of these grounds raise any ground that the full bench erred in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making its decision or that the appellant has been denied the right to be heard.

"These grounds in effect ask the court to review the merits of the full bench decision. That is not within the jurisdiction of the court. The court does not have power to review the full bench decision on the grounds set out in the appellant's notice of appeal."

The appeal was dismissed. 

Kinneen v Whelans Australia Pty Ltd [2018] WASCA

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