(c) If there was a term of the contract of employment such as that the appellant contends for, it remained operative in March 2011 and had not been breached as at that time, it not being time limited, and the appellant's resignation ended its operation. (d) No comment is made on the nature or adequacy of the training given to the appellant during his employment or under the professional training agreement. It is not necessary to do so in light of the above findings. It is noted, however, that the appellant failing the Boya examination proves nothing in relation to the adequacy or otherwise of that training. No argument is properly available that because the appellant failed the Boya examination his training must have been inadequate. Exhibit 6 in fact suggests other reasons for the appellant's failure but there is no need to make findings in relation to this issue. Grounds of appeal The grounds of appeal are largely in the form of a convoluted submission which to some degree is repetitive. However, from the arguments put by the appellant the grounds can be discerned as follows: (a) Ground 1 and ground 2 The learned Commissioner erred in fact and in law in finding that it was not a term of the appellant's contract of employment that the respondent was obligated to train the appellant to become a licensed surveyor. The appellant's particulars of these grounds can be summarised as: (i) the learned Commissioner misunderstood the duties of the appellant's role as survey party leader; (ii) in accordance with the terms of exhibit 1 and cl 15 of exhibit 4 the appellant entered into a professional training agreement at which time he became an articled surveyor (cadet) under the supervision of a licensed surveyor employed by the respondent, Mr Jonath; and (iii) pursuant to s 16 of the Licensed Surveyors Act only a licensed surveyor and by extension a surveyor under training can carry out licensed survey work.
having regard to all of the background circumstances, the appellant was employed by the respondent as a Survey Party Leader, and the terms and conditions of his employment were as set out in exhibit 4. It was also not in dispute that the process by which a person becomes a licensed surveyor is prescribed by the Licensed Surveyors Act 1909 (WA) and the Licensed Surveyors (Licensing and Registration) Regulations 1990 (WA). This statutory scheme requires a person intending to embark on a course of becoming a licensed surveyor, to enter into a separate contract of training with a qualified surveyor. In this case, the appellant entered into a “Professional Training Agreement” with Mr Jonath, a licensed surveyor employed at the time by the respondent. A copy of this Agreement was exhibit 3 at first instance. The agreement set out the training program to be undertaken by the appellant under the supervision of Mr Jonath. The appellant was described in the Agreement as a “Graduate Surveyor” and Mr Jonath was described as the “Supervising Surveyor”. The training was to be conducted in accordance with the requirements of The Land Surveyors Licensing Board Guidelines for Supervising Surveyors. Notably in cl 6 – The Graduate Surveyor’s Competencies, the appellant set out his knowledge, experience and qualifications, which included at (1) (and presumably current) his position as “Survey Party Leader”. It is plain that the Agreement was entirely separate to the contract of employment between the applicant and respondent. It was entered into by different parties. The respondent was not a party to it. It was entered into under the specific statutory scheme for the training and licensing of graduate surveyors, to enable them to become “admitted” to the profession of licensed surveyors. I do not consider from the evidence at first instance that the appellant was employed by the respondent as an “Articled Surveyor” or as a “Articled Position”. His position for which he was paid his salary was that of Survey Party Leader. The appellant, in conjunction with his employment, also was subject to the Agreement, by which he would be provided the training to enable him to satisfy the statutory requirements to be registered by the Board as a licensed surveyor. The employment contract and the Agreement were separate and one did not depend on the other for the operation of each. The learned Commissioner’s conclusions in this respect were not in error and I agree with them.