WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Serco (Australia) Pty Limited (Appellant) and John Joseph Moreno (Respondent). No. 1281 of 1995. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY. COMMISSIONER A R BEECH. COMMISSIONER P E SCOTT. 19 March 1996. Reasons for Decision. THE PRESIDENT: This is an appeal against the decision of the Commission at first instance, constituted by a single Com- missioner. The appellant company was the employer of the respond- ent. The respondent, Mr Moreno, claimed before the Com- mission at first instance that his employment was terminated by the appellant company on 5 May 1995. This was denied by the appellant company which claimed that on 5 May 1995 the respondent had resigned. The Commission at first instance, having heard an applica- tion by the respondent brought under s.29(1)(b) of the Indus- trial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”), alleging that he had been unfairly dismissed, made orders (see page 6 of the appeal book (hereinafter re- ferred to as “AB”)). Those orders were that the appellant com- pany offer to the respondent the position which he formerly held with the appellant company with effect from 3 January 1995, namely that of a casual Storeman/Picker engaged on an on-going basis. The Commission further ordered that such offer be made within seven days of the date of the order, namely 6 November 1995. It is against that decision that the appellant company brings this appeal. The grounds of such appeal are as follows (see page 2 (AB))— “1. Commissioner R H Gifford erred in fact and in law by finding that the termination of Mr Moreno’s em- ployment was effected by the appellant. 2. Commissioner R H Gifford erred in fact and in law by finding that the respondent was engaged by the appellant as a casual employee on an ongoing basis, particularly (a) there is no such employment classification as a casual employed on an ongoing basis. (b) even if such classification exists, the finding that Mr Moreno fell under that classification went against the weight of evidence at hear- ing; (c) as there was no ongoing employment relation- ship, the Commission lacked jurisdiction to deal with the application. 3. Even if Mr Moreno’s employment was terminated by the appellant, which is denied, Commissioner R H Gifford erred in fact and in law by finding that this termination was unfair and the appellant further says that termination was carried out in accordance with the relevant provisions of the Industrial Rela- tions Act 1979.” BACKGROUND The background to the appeal was this. Before 3 January 1995 the respondent had been employed by a Western Aus- tralian Government Department named “Supply West” as what is described as a Storeman/Picker. As at 3 January 1995, the respondent was employed as a Storeman/Picker by the appel- lant company, Serco (Australia) Pty Limited, which had se- cured a contract to assume responsibility for certain services previously provided by Supply West. Whether he was a casual employee or not is a question which arose before the Commission at first instance. Mr Moreno asserted that notwithstanding his engagement as a casual em- WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 938 76 W.A.I.G. ployee he was, in fact, a permanent employee. The appellant company maintained at all times that Mr Moreno was engaged as and remained a casual employee. Accordingly, it was as- serted that he was engaged on an “as required” basis and was required, were his contract to be terminated, to be given one hour’s notice in terms of the applicable award, namely the Shop and Warehouse (Wholesale and Retail Establishments) State Award No R 32 of 1976) (hereinafter referred to as “the award”). The offer of employment accepted by the respondent was confirmed in writing on 21 December 1994 (see pages 205- 208 (AB)), and its terms accepted by him on 18 January 1995. The agreement provided, inter alia, that he would be employed as a Storeperson, and that he would be employed as a casual employee. The following words were used “You will be em- ployed as a Casual employee”. The agreement also provided that he would be paid a commencing base weekly wage of $485.04 to be paid fortnightly, which included a “20% casual loading”. Working hours were prescribed in the agreement. There was also a provision that when working the afternoon shift a 15% loading would apply. Mr Moreno regularly worked 38 ordinary hours per week. A number of casual employees had been engaged by the appellant company on 17 April 1995 in order to attempt to deal with a backlog of orders for schools. The employment of some 18 of these was terminated on 30 April 1995, with five to follow on 3 May 1995 and five others to follow on 5 May 1995. Mr Mark Fitzgerald, the appellant company’s Manager, de- cided on 4 May 1995 that the five casual employees in ques- tion should not be dismissed until the following week. He advised the Stores Supervisor, Mr Ron Williams, accordingly. At about 8.00 am on Friday, 5 May 1995 Mr Williams ap- proached the respondent and informed him that he was not one of the employees whose employment was terminated. Mr Williams had a different version of what occurred. However, Mr Moreno’s evidence was that he was relieved when he re- ceived Mr Williams’ advice. The Commission at first instance accepted that Mr Moreno had no forewarning of his immanent dismissal. At about 11.15 am on the same day Mr Moreno was ap- proached by Mr Stan Littler, the Leading Hand in charge of the receipts section, asking him how he would feel taking up a permanent position as an Inventory Goods Clerk. Mr Moreno said that he accepted that position. It was in dispute that it had been offered to him in any concrete form, but it is certain that he had been sounded out about it, as the Commission at first instance found. At 11.30 am that day Mr Fitzgerald approached Mr Moreno and asked him whether anyone had seen him about when he would be “finishing up”. When Mr Moreno asked him what he meant by that Mr Fitzgerald answered that Mr Moreno would be finishing up “one day next week”. The conversation ended and Mr Moreno was shocked and then felt very an- noyed. Indeed, the Commission at first instance found that he was devastated by this news. About 15 minutes later there was a meeting between Mr Moreno, Mr Littler, Mr Williams and Mr Fitzgerald in the computer room adjoining Mr Fitzgerald’s office. There was a discussion, and, indeed, a heated discussion, between Mr Fitzgerald and Mr Moreno. The Commission at first instance accepted Mr Fitzgerald’s and Mr Littler’s version of the final and crucial part of this discussion. However, it is clear that Mr Moreno was critical of Mr Fitzgerald and angry about what had occurred. It is clear that he said that he had three different pieces of information, that he had a wife and child to feed and that Mr Fitzgerald was getting rid of all the good workers. The Commission found, accepting Mr Fitzgerald’s version, however, that, in the end, Mr Moreno said that he would pre- fer to leave and that Mr Fitzgerald responded “On the basis of that, I accept”. Mr Moreno’s version was that Mr Fitzgerald said “If that’s how you feel you can leave now”, although he said, several answers later, in evidence, that Mr Fitzgerald said “If you’re not happy with that you can go now”. Mr Moreno then left the meeting, went to the warehouse to ad- vise his colleagues that he was leaving, spoke to the Adminis- trative Manager and left. There was a barbecue scheduled at 12.00 noon which all employees were invited to attend so there was no question of work continuing that day. FINDINGS The Commission at first instance found that the context of the whole discussion was that Mr Moreno had been advised that his services would be terminated at a point the following week. That advice did not constitute formal notice to termi- nate, but rather the foreshadowing of an intention to termi- nate Mr Moreno’s employment. Mr Moreno, the Commission found, could not accept his employment ending in the manner proposed. The Commission also found that the statement by Mr Moreno that he preferred to leave was not a statement confirming an intention to leave, but merely an indication of an option which was open to him. The Commission further found that Mr Fitzgerald’s statement in response was a confir- mation of the notice foreshadowed. The Commission accord- ingly found that Mr Fitzgerald’s statement in the computer room on Friday, 5 May 1995 effected the termination of Mr Moreno’s employment. UNFAIRNESS The Commission at first instance also found that the dis- missal was unfair because— (1) There were conflicting messages conveyed to Mr Moreno on 5 May 1995, the Supervisor conveying a message of on-going employment, the Leading Hand from the receipts section foreshadowed or canvassed the prospect of another on-going position being avail- able to him, and then the Contract Manager, Mr Fitzgerald, foreshadowed a termination of employ- ment the following week, and all in the course of one morning. (2) The Commission also found that the reason for the dismissal, namely easing up of work, fitted the term “operational requirements” used in s.23AA of the Act. (3) The Commission found that Mr Fitzgerald made the statement that he was under instructions from the appellant company’s Sydney office to get rid of all of the casuals, that he was treating all of the casuals as being employed on an “as required” basis. (4) The Commission found that that was not the basis of his employment, and that the failure to draw a distinction between Mr Moreno’s employment and the “as required” employees was where unfairness arose. This was compounded by the fact that in the lead up to the meeting in the computer room on 5 May 1995 Mr Moreno received conflicting messages from three persons in authority. (5) The Commission found that there was an unfair dis- missal and that there should be an order for re-em- ployment of Mr Moreno. CASUAL The Commission at first instance found that there was a clear understanding that Mr Moreno was employed under the award. The Commission found that because Mr Moreno worked regularly 38 hours plus overtime in the manner in which a full time employee under the award might work, he was nonethe- less engaged as a casual employee and continued to be so described and was paid as a casual. The basis of the engage- ment did not conform with the requirements of the definition of “casual worker” under the award. There was, the Commis- sion found, a technical breach. The Commission applied Squirrell v Bibra Lakes Adven- ture World Pty Ltd t/a Adventure World 64 WAIG 1834 per Fielding C, and found that whilst the engagement was clearly as a casual it was also on an on-going basis subject to the notice of termination provisions contained in the award, namely one hour’s notice exercisable by either party. Mr Moreno’s employment was not that of an “as required” nature, so the Commission at first instance found. Accord- ingly, the Commission held that it could determine the fair- ness or otherwise of the dismissal. In other words, it found that it had jurisdiction. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 939 76 W.A.I.G. CONCLUSIONS WAS THE RESPONDENT A CASUAL EMPLOYEE? A crucial question in this appeal was whether Mr Moreno was employed as a casual employee. The significance of this question was that if Mr Moreno were a casual then his con- tract of service was for a very short period which had termi- nated by process of the effluxion of time, so that therefore there could not be a reinstatement. The corollary to that is, of course, the submission that there was no jurisdiction to make an order for reinstatement because of that fact. Let me say at the outset that nothing in the Act precludes a casual employee from bringing an application under s.29 of the Act, as Mr Moreno did. Next, and more particularly, there is nothing in the defini- tion of “employee” or “industrial matter” which prevents a casual employee (qua casual employee) bringing an applica- tion under s.29 of the Act alleging unfair dismissal or claim- ing relief as such. As to whether an order for reinstatement should be made where an employee is a genuine casual employee employed for a contract of some hours, or an hour, which expires after that period of time, and whose employment consists of a se- ries of such contracts randomly entered into, that is another question. The Commission at first instance found that, whilst Mr Moreno was clearly engaged as a casual employee, it was also “on an on-going basis”, subject, of course, to the notice of termination provisions contained in the award. The Commission also found, and found correctly, that other persons employed and dismissed about the same time by the appellant company may well have been engaged on an “as required” basis. In other words, there is a distinction between the nature of their contracts of employment and the nature of Mr Moreno’s contract of employment. The question of whether Mr Moreno was employed as a casual employee by the appellant company is a question of fact, and the answer will depend on the facts and circumstances of this case as it does in each case where a tribunal is faced with that question (see Squirrell v Bibra Lakes Adventure World Pty Ltd t/a Adventure World (op cit) at page 1835 per Fielding C and Licensed Clubs Association of Victoria and Another v Higgins 4 VIR 43 at 55 (IRCV in Full Session)). The relevant facts are that Mr Moreno was employed by the appellant company continuously for four months, during which time he worked for 38 hours per week, and, in addition to that, from time to time, worked overtime. During the course of these four months he was sent twice on training courses. His offer of employment, which he had accepted, provides, as I have said above, that he would be employed as a casual employee, but also provided that he would receive a base weekly wage of $485.04, inclusive of a 20% casual loading to be paid fortnightly. His employment also prescribed that he would receive a 15% loading when he was working the after- noon shift. He also worked fixed shifts with fixed regular times. The award was recognised as applying to his employment, and, indeed, the Commission at first instance suggested that there may have been a breach of the award, in the Commis- sion’s reasons. The definition of “casual worker” and other provisions re- lating to casual employees appear in clause 7 of the award. Clause 7 reads as follows— “7.—CASUAL WORKERS (1) “Casual Worker” shall mean a worker engaged by the hour and who may be dismissed or leave the em- ployer’s service at any moment without notice and except as hereinafter provided shall not be engaged for more than 30 hours per week in ordinary hours. Notwithstanding the aforementioned a casual worker may be engaged in ordinary hours for 38 hours per week for periods not in excess of 4 consecutive weeks. Any casual worker engaged and not permitted to commence work shall receive two hours’ pay at the rate of 20 per centum in addition to the appropriate rates of wages prescribed in this award. (2) The minimum period of engagement for casual work- ers shall be three consecutive hours on any day. Pro- vided that— (a) School students who are employed solely to collect trolleys in or about a shopping centre complex may be employed for a minimum of two consecutive hours between 4.00 p.m. and 6.00 p.m. Monday to Saturday inclusive; (b) Employees who are undergoing a period of training may be employed for a minimum of two consecutive hours in each of two such training periods which shall be undertaken in the first fortnight of employment; (3) The rate for casual workers within ordinary time shall unless otherwise stated, be determined by dividing the appropriate wage rate prescribed by Clause 28.— Wages of this Award by thirty eight (38) and adding the appropriate loading prescribed by the award. (4) A casual worker shall be paid an additional loading in accordance with the following scale: (a) where the casual engagement on any day is for a full day’s work—a loading of twenty (20) per cent. (b) where the casual engagement on any day is for less than a full day’s work—a loading of twenty-five (25) per cent. ...” There is no evidence that Mr Moreno was a casual worker in terms of the definition in the award. He was not engaged by the hour, nor was he paid or employed by the hour. His evi- dence and the evidence of the written terms of his employ- ment bear that out. There was no prohibition upon his being engaged for more than 30 hours per week in ordinary hours, and, in fact, he was engaged in ordinary hours for 38 hours per week. No provision was made as to the term of his notice of termi- nation, but the award would apply in any event. “The concept of casual employment within the common law of employment, untrammelled by award prescription, is generally taken to connote an employee who works under a series of separate and distinct contracts of em- ployment entered into for a fixed period to meet the exi- gencies of particular work requirements of an employer, rather than under a single and ongoing contract of indefi- nite duration.” (See Squirrell v Bibra Lakes Adventure World Pty Ltd t/a Adventure World (op cit) at page 1835 per Fielding C and Stewart v Port Noarlunga Hotel Ltd (1980) 47 SAIR 406 at 420). The parties, of course, cannot by use of a label render the nature of a contractual relationship something different to what it is (see Stewart v Port Noarlunga Hotel Ltd (op cit) per Haese DPP at pages 5-6). Certain indicia may be indicative of the nature of the con- tract, but they are not determinative, taken alone. These may include the classifying name given to a worker and initially accepted by the parties, the provisions of the relevant award, the reasonable expectation that work would be available to him, the number of hours worked per week, whether his em- ployment was regular, whether the employee worked in ac- cordance with a roster published in advance, whether there was reasonable mutual expectation of continuity of employ- ment, whether the notice is required by an employee prior to the employee being absent on leave, whether the employer reasonably expected that work would be available, whether the employee had a consistent starting time and set finishing time, and there may be other indicia. Firstly, let me say that the award definition of “casual worker” excludes a person who is employed on an on-going basis. For that reason, Mr Moreno was not a casual employee within the definition contained in the award, and he was, in fact, em- ployed on an indefinite and on-going basis. He certainly was not employed under a series of separate and distinct contracts of employment entered into each for a fixed period. Indeed, the evidence was that he was not employed on an “as required” basis, unlike other employees designated by the employer as WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 940 76 W.A.I.G. casual. He was employed on an indefinite on-going basis to work “fixed ordinary hours” as that is defined in the award, being 38 hours weekly, and was paid fortnightly for so doing. He was paid overtime when he worked outside ordinary hours, as the award requires. He was paid a casual worker’s penalty, but he was also paid a shift rate penalty. He worked fixed shift hours. There was no evidence that he was on a roster notified to him in advance. There was an expectation in him of con- tinuing employment, and a legitimate one. Although it is not determinative, he received training which one would think inconsistent with the position of a casual employee or some- one who was to remain one. Both under the award and at com- mon law Mr Moreno was, for those reasons, not a casual employee. He was employed under a single and on-going con- tract of indefinite duration, and he was not a casual employee as the award defines. Further, he was not, insofar as it is nec- essary to say so, a casual employee in the common law sense. Accordingly, it is quite plain that the Commission at first instance was right in finding that there was jurisdiction to hear and determine the matter. Indeed, there was jurisdiction to make an order for reinstatement or for re-employment. Mr Moreno was not a casual employee, but even if he were and was employed on an on-going basis, as the Commission found, there may well still have been jurisdiction and power to rein- state. WAS THERE A DISMISSAL? I have canvassed the facts in some detail above. The Com- mission at first instance accepted Mr Fitzgerald’s version of the heated interchange between Mr Fitzgerald and Mr Moreno commencing at about 11.15 am on 5 May 1995. That had been preceded, as was found by the Commission, by three different intimations to Mr Moreno of what his employment future might be. He had been told that he would not be dismissed, at the least sounded out as to his interest in another position, and told that his employment would be terminated. In the course of the heated discussion, in a finding which was not seriously challenged, the Commission found that Mr Moreno said that he could not work under the conditions obtaining and he pre- ferred to leave. The Commission also found that Mr Fitzgerald said that he accepted this. The Commission also found that the conflict of messages given to Mr Moreno from three dif- ferent persons in authority was “quite devastating upon Mr Moreno”, and this brought about his annoyance and his de- sire for clarification. That finding was open to the Commis- sion, on the evidence, very clearly. The appellant company’s case was that he was not dismissed, that Mr Moreno resigned, or, alternatively, that there was a consensual termination of the contract. The respondent’s sub- missions were contrary to these and put some store in the ad- vantage enjoyed by the Commission at first instance in seeing the witnesses. The Commission at first instance found that the statement by Mr Moreno that he preferred to leave and Mr Fitzgerald’s words “I accept that” constituted a statement by Mr Moreno that he preferred to leave, not a statement confirming an in- tention to leave. It was merely an indication of an option that was open to him, whereas Mr Fitzgerald’s statement in re- sponse was the confirmation of the foreshadowed notice. What Mr Fitzgerald did, the Commission found, when Mr Fitzgerald finished, was that he accepted that Mr Moreno would leave there and then. This, the Commission found, was confirma- tion of the foreshadowed advice given earlier in the day. The Commission therefore found that the contract of employment was terminated, and, as a result, Mr Moreno left, but was paid for the whole day, namely 5 May 1995. The Commission had the benefit of seeing the witnesses in the witness box, and its findings were made with that advan- tage. It was open to the Commission at first instance to find that Mr Moreno was stating a preference to leave rather than be treated in the manner in which he was, given that the Com- mission found that Mr Moreno was devastated by what had occurred earlier. It seems perfectly clear that he was devas- tated. Indeed, it might be said that Mr Moreno was really com- plaining about how he was treated and his words were seized upon not as a complaint but to effect his dismissal. That was a finding open to the Commission. However, the Commission, in attaching the meaning which it did to the crucial words used by Mr Moreno and Mr Fitzgerald, has not been demon- strated to have misused its advantage. To find as it did was open to the Commission, having seen Mr Littler, Mr Moreno and Mr Fitzgerald and having heard them give their evidence. Accordingly, the Commission correctly found that Mr Fitzgerald, by his statement to Mr Moreno in the computer room on Friday, 5 May 1995, effected the termination of Mr Moreno’s employment and was correct in not finding that Mr Moreno was giving his resignation or that the contract of em- ployment was consensually terminated. What, in fact, he did, given my observations as to the nature of the contract, was to purport to summarily dismiss Mr Moreno. If that is right, clause 20 of the award required that he be given one week’s notice or be paid one week’s pay in lieu because there was no evidence justifying a summary dismissal. In any event, there was no resignation by Mr Moreno and no consensual termination of the contract of employment. The Commission at first instance was entitled to find that there was a dismissal of Mr Moreno by the appellant com- pany. WAS THE DISMISSAL UNFAIR? The Commission at first instance found that it was not un- fair to Mr Moreno to advise that he would not be required beyond one day the following week, since work was declin- ing and he was a casual. It should be said that the evidence was that that dismissal could have occurred at any time be- tween the Monday and Friday of the following week, and could have occurred on the following Monday, that is Monday, 8 May 1995. However, when that termination was foreshadowed, as the Commission correctly found, no reason was given. The Commission accepted that there was an easing up of work which satisfied the phrase “operational requirements” con- tained in s.23AA of the Act. The Commission found, too, that Mr Fitzgerald said that he was under instructions from the Sydney office to get rid of all “casuals”. The Commission found that Mr Fitzgerald regarded casuals as those employed on an “as required” basis and treated all casuals, including Mr Moreno, as fitting that description. Of course, it is quite clear that Mr Moreno was not a casual. The Commission found that because Mr Fitzgerald did not draw a distinction in relation to the case of Mr Moreno unfair- ness arose. This unfairness, the Commission found, too, was compounded by three conflicting messages given by the three persons in authority that morning to which I have referred above. It was submitted by Counsel for the appellant com- pany that there was no unfairness. However, it was unfair, on the Commission’s finding, with which I agree, to treat Mr Moreno as a required casual when, on the Commission’s find- ing, he was a casual employed on an on-going basis, particu- larly when, in my view, he was not a casual but was a permanent employee. It was certainly unfair to tell Mr Moreno that he would be dismissed next week after he was told that he was not to be dismissed and after he was sounded out as to his interest in another position. I might also add that it was open to the Commission to find that the dismissal of the respondent was unfair. It was also open to the Commission to find that, having brought about a devastated frame of mind in Mr Moreno, as the Commission at first instance found, the appellant seized upon his frustra- tion, did not answer his grievances, and then peremptorily, and, indeed, summarily dismissed him. I would further add that, in my opinion, since he was not a casual employee, it was unlawful and unfair to summarily dis- miss him where there was no reason to do so and was contrary to s.20(1) of the award, which required one week’s notice to be given or that Mr Moreno be paid one week’s pay in lieu of notice. I have considered all of the evidence and all of the submis- sions with care and taken them into account. For all of the reasons which I have expressed above, no ground of appeal is made out. There was no miscarriage of the exercise of the discretion of the Commission in terms of House v The King 55 CLR 499 (HC) established, and there was no error in law or fact otherwise demonstrated which would justify the grounds of appeal being made out. I would dismiss the appeal. BEECH C: I have had the advantage of reading in draft form the Reasons for Decision of His Honour the President. I agree that the appeal should be dismissed. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 941 76 W.A.I.G. I wish to add the following observations. In the proceedings before the Full Bench the appellant relied extensively on Mr Moreno’s status as a casual to argue either that for that reason there was not a dismissal, or alternatively that Mr Moreno’s status as a casual prevented the Commission from exercising jurisdiction in this matter. However the designation “casual” does not have any fixed or precise meaning and does not ad- mit of only one definition. In industrial relations the term “casual” may be used to describe a number of different factual contracts of employment. On the facts in this matter, Mr Moreno was not employed pursuant to a series of separate contracts. Rather, he was employed pursuant to a single ongo- ing contract of employment. The parties agreed that Mr Moreno’s employment would be designated casual, but that description does not, of itself, define the contract of employ- ment between the parties. The Commission’s jurisdiction to entertain a claim of unfair dismissal does not depend upon whether the employee was or was not a casual, but rather whether or not there was a dismissal. Further, it is conceded that Mr Moreno’s employment was governed by the terms of The Shop and Warehouse (Whole- sale and Retail Establishments) State Award 1977. That award defines a casual according to certain criteria. However Mr Moreno’s employment did not meet those criteria and there- fore Mr Moreno was not a casual in the terms of the award. Mr Moreno cannot otherwise be considered a casual because that would be contracting out of the award, and that is not permitted by s.114 of the Act. I therefore have grave doubts whether Mr Moreno was a casual employee either in fact or in law. However, the point does not need to be determined. For the purposes of his application the issue of whether Mr Moreno was a casual employee or not will arise if the termination of his employment came about due to effluxion of time. That is, if Mr Moreno was employed pursuant to a series of separate contracts of employment and his employment came to an end at the expiry of one of those separate contracts of employ- ment, then it is arguable that there was not a dismissal for the purposes of the Industrial Relations Act 1979. On the facts in this matter Mr Moreno’s contract of employment did not come to an end by the simple effluxion of time. Mr Moreno’s con- tract of employment ended part-way through a shift and not when, if indeed he was a casual employee engaged on a daily basis, the contract of employment naturally came to an end at the end of the shift. The appellant company complains that the Commission at first instance was wrong in finding that Mr Moreno was in fact dismissed. Whilst the circumstances of the termination of his employment may be open to more than one interpretation, the Commission at first instance, with the benefit of observ- ing the witnesses, concluded that those circumstances consti- tuted a dismissal, and that the dismissal was unfair. I have not been persuaded by the submissions in these proceedings that the Commission made an error in reaching that conclusion which should be corrected on appeal. As Mr Moreno’s con- tract of employment came to an end by way of a dismissal then the Commission has the jurisdiction to entertain his claim that he was unfairly dismissed whether or not he was regarded as a casual. This reasoning is entirely consistent with the rea- soning of the Commission in Squirrel v. Bibra Lakes Adven- ture World Pty Ltd T/A Adventure World ((1994) 64 WAIG 1834) upon which the appellant in this matter relies. Indeed, that decision appears to me to be an authority which is of little assistance to the appellant in the arguments it sought to present to the Commission in this matter. SCOTT C: The reasons for decision of His Honour, the President, set out the grounds of appeal and background to this matter and there is no need to repeat them. The first ground of appeal is based on the view that the assessment of the evidence made by the Commission at first instance does not lead to the conclusion reached by the learned Commissioner. It is said that the Commission erred by con- cluding that Mr Fitzgerald effected the termination of employ- ment—i.e. the employer’s actions constituted a dismissal such as to warrant consideration of the fairness of that dismissal. On the morning of the termination of employment, Mr Moreno was approached by Mr Fitzgerald who asked whether anyone had seen him about when he would be finishing up. Mr Moreno questioned as to what he meant by that, to which Mr Fitzgerald responded that he would be finishing up “one day next week”. After this Mr Moreno arranged for Mr Williams and Mr Littler to accompany him to Mr Fitzgerald’s office at which time a heated discussion took place. There was a conflict in the evidence as to what was said and this is essential to the question of whether or not a termination of employment took place at the instigation of the employer. The Commissioner found: “The context of the whole discussion is that Mr Moreno had been advised that his services would be terminated at a point the following week. The advice did not consti- tute formal notice to terminate but rather the foreshad- owing of an intention to terminate. Whatever its status, however, the intention was clear: Mr Moreno, a casual employee, was to be terminated, during the course of the next week.” The Commissioner preferred the version of the conversa- tion provided by Mr Fitzgerald particularly on the basis that there was supporting evidence from Mr Littler. Mr Fitzgerald’s version was that, in accordance with the Commissioner’s de- cision: “Mr Fitzgerald’s recollection of events was that at about 11.30am, Mr Moreno approached him at his office, ac- companied by Mr Williams and Mr Littler, in an annoyed and angry manner, and uttered expletives to him at the outset. The meeting moved to the computer room. Mr Moreno stated that he had been told three different pieces of information the same day; that he had a wife and child to feed and that Mr Fitzgerald was getting rid of all the good workers. The conversation then became heated and tempers flared. Mr Fitzgerald recalled explaining to Mr Moreno that casu- als, such as he, were brought in on an “as required” ba- sis. The discussion came to an end with him stating that the work load had eased off, and that he was under mount- ing pressure to bring the contract into budget. He didn’t recall making any reference to a direction from Sydney. In response to Mr Moreno’s statement concerning his re- jection of the basis upon which he was to leave, Mr Fitzgerald recalled Mr Moreno actually saying that he would prefer to leave, to which Mr Fitzgerald responded: “On the basis of that: I accept”.” The Commissioner said that he accepted that as the version of the evidence to be preferred. However he says at page 7 of his decision “the statement by Mr Moreno, of preferring to leave, how- ever, was not a statement confirming an intention to leave, but merely an indication of an option that was open to him. Mr Fitzgerald’s statement in response was confir- mation; that is, finishing with the words that he accepted Mr Moreno leaving then and there. It was the confirma- tion of the foreshadowed advice given earlier in the day.” The decision then goes on to say: “the Commission accordingly finds that Mr Fitzgerald, by his statement to Mr Moreno in the computer room, on Friday 5 May 1995, he effected the termination of his employment.” Whilst it may appear inconsistent to find that Mr Moreno was merely indicating an option open to him when he said he was not prepared to work under the circumstances of the fore- shadowed termination and would prefer to leave there and then, it is the context which the learned Commissioner also noted which is also important. He had the opportunity to see the witnesses first hand and to place their competing evidence in context, and he did so. Whilst it may be that a number of interpretations of the evi- dence and thus the circumstances of the end of the contract are possible, it was open to the Commissioner at first instance to find as he did. I would dismiss this ground of appeal. The second ground of appeal is based on a view that a casual employee has no entitlement to claim unfair dismissal. No such prohibition exists in the Industrial Relations Act 1979, nor, to my knowledge, in any of the case law associated with this jurisdiction. Whether, in a particular case, the casual con- tract is terminated by way of dismissal rather than by the WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 942 76 W.A.I.G. completion of the contract, thus allowing a claim of unfair dismissal, would depend upon the circumstances and the terms of the contract. In this case, the learned Commissioner found that Mr Moreno’s contract was as an ongoing casual. Whether or not such a classification or category exists is not material as the learned Commissioner correctly found that Mr Moreno had a reasonable expectation, created by the expressions of his em- ployer, that his employment was to be ongoing. I find this ground is not made out. In respect of ground 3, the Appellant refers the Full Bench to the finding of the Commission at first instance at page 22 that— “The fact that Mr Fitzgerald, acting on advice from Syd- ney, did not draw the distinction between Mr Moreno and the “as required” casuals, is, in the Commission’s view, where unfairness arose.” The Appellant submits that there was no real basis upon which the Commission could determine whether Mr Moreno was engaged on a different basis to that of the other casuals. There was no evidence as to the status of these other employ- ees or the arrangements which the Appellant had with them. They may have been treated in exactly the same way as Mr Moreno. It should be noted however that the Commission also found that this unfairness was— “further compounded when regard is had to the lead up to the meeting in the computer room, namely the con- flicting messages Mr Moreno received from the three persons in authority. Without seeking to explore how this came about, whether it was inadequate communication, or misunderstanding as to Mr Moreno’s status, its effect was quite devastating upon Mr Moreno. Hence the Com- mission’s understanding of Mr Moreno’s annoyance, and desire for clarification.” Although the Commission found that, in accordance with the provisions of section 23AA(1) the “easing up” of work provided valid reason for termination on the basis of opera- tional requirements, nonetheless he concluded, according to the reasons set out on page 22 of the Appeal Book, that there were at least two reasons for there to have been unfairness in the manner of termination. I am satisfied that the Commission erred in making a com- parison with other casuals when there was no evidence of the arrangements for other casuals upon which to base this con- clusion. However, this does not negate the unfairness which arose by Mr Moreno having been given reason to believe that his employment was not in jeopardy, and then this changing without warning or reason. I would uphold ground three but it is of no practical effect on the basis of the other aspects of unfairness found. In this respect, I am satisfied that the other circumstances surround- ing the dismissal, in accordance with the decision of the Com- mission at first instance, constitute unfairness. On this basis, I would dismiss the appeal. THE PRESIDENT: For those reasons, the appeal is dis- missed. Order accordingly Appearances: Mr J O Kennedy (of Counsel), by leave, on behalf of the appellant. Mr T C Crossley, as agent, on behalf of the respondent.