Alexandra Hoschke v Curtin University of Technology

[2012] FWA 3990

[2012] FWA 3990

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexandra Hoschke
v
Curtin University of Technology
(U2012/4048)

DEPUTY PRESIDENT MCCARTHY PERTH, 18 MAY 2012

Application for unfair dismissal remedy.

Background

[1] Ms Alexandra Hoschke (the Applicant) was employed by Curtin University (the Respondent) under 12separate contracts of employment over a period of nearly seven years. The Applicant asserts that the nature of her employment over that period was regular and systematic full-time work of a continuing nature with an expectation that her employment would continue.

[2] The Applicant filed an application for unfair dismissal remedy on 14 January 2012.

[3] The Respondent asserts that that the Applicant was not dismissed from her employment but that her employment ceased when the Applicant’s fixed term employment came to an end. They argue that the fixed term contract that the Respondent says was applicable to the Applicant’s employment is dated 14 December 2010 and signed by the Applicant on 15 December 2010. The period of the fixed term under the contract was from 1 January 2011 to 31 December 2011.

[4] The Respondent argues that the Applicant is not a person protected from unfair dismissal by the provisions of the Fair Work Act 2009 (the FW Act). 1 I therefore heard evidence and argument on the Respondent’s assertions as an initial matter which I am obliged to determine before dealing with the merits of the application.2

Submissions

[5] The Applicant submitted that she had been engaged at the Respondent under contiguous academic contracts for a period of six years, nine months and three weeks, from 7 March 2005 until 31 December 2011. The first six contracts were covered by the Curtin University of Technology Academic Staff Enterprise Agreement 2005- 2008 (the 2005-2008 EBA), and the seventh contract was covered by the Curtin University of Technology Academic Staff Enterprise Agreement 2009 - 2012 (the 2009-2012 EBA). She outlined her history of employment by the Respondent as follows:

• Academic Contract 1: 7 Mar 2005 - 7 Mar 2006 (2005-2008 EBA) (casual/sessional)



• Academic Contract 2: 8 Mar 2006 - 8 Mar 2007 (2005-2008 EBA) (casual/sessional)



• Academic Contract 3: 9 Mar 2007 - 9 Mar 2008 (2005-2008 EBA) (casual/sessional)



• Academic Contract 4: 10 Mar 2008 - 10 Mar 2009 (2005-2008 EBA) (casual/sessional)



• Academic Contract 5: 19 Jan 2009 - 31 Dec 2009 (2005-2008 EBA) (fixed term)



• Academic Contract 6: 1 Jan 2010 - 31 Dec 2010 (2005-2008 EBA) (fixed term)



• Academic Contract 7: 1 Jan 2011- 31 Dec 2011 (2009-2012 EBA) (fixed term)

[6] Throughout that period the Applicant was also engaged on separate periods as follows:

• Project Officer Contract 1: 5 Sept 2005 - 5 Sept 2006 (casual)



• Reviewer Contract 1: 20 Oct 2005 - 20 Jan 2006 (casual)



• Project Officer Contract 2: 6 Sep 2006 - 6 Sep 2007 (casual)



• Project Officer Contract 3: 7 Sep 2007 -7 Sep 2008 (casual)



• Project Officer Contract 4: 5 Sep 2008 - 5 Sep 2009 (casual)



• Independent Contractor: 15 Apr 2005 - 31 Dec 2009(casual)

[7] The Applicant asserts that the composite picture of her employment relationship with the Respondent represents regular, systematic and continuous employment since 5 May 2005.

The last fixed term contract was entered into on 1 January 2011. The Applicant asserts that this fixed term contract (2011) was not justified on the basis of “Organisational Change” as described under the 2009-2012 EBA. 3 She submitted that “my job dimensions had not changed in years and I had never been consulted as per Clause 60. I believe that several aspects of Clause 60 have not been adhered to. Also, the inclusion of the term as the basis to my contract was never explained to me, so I believe there is procedural fairness lacking in terms of the validity of the contract.”4

[8] The terms of her letter of appointment for this contract state “This appointment is for a fixed term due to organisational change. There is no provision within this contract for a continuing appointment.” 5

[9] Clause 14.2 of the 2009-2012 EBA deals with the circumstances that must exist for appointments to be able to be made on a fixed term basis. The clause provides as follows:

“The use of fixed term appointments will be limited to the employment of staff members on work activity that comes within the description of one or more of the following circumstances:

Specific Task of Project

A definable work activity which has a starting time and which is expected to be completed within an anticipated timeframe.

Without limiting the generality of that circumstance, a specific task Or project also includes a period of employment provided from identifiable external funding.

...

Organisational Change

A work activity for an initial single period of up to 2 years, undertaken when a new organisational structure is being implemented, in accordance with Clause 60, Change Management and Consultation, provided that the new organisational structure being implemented affects no less than 3 staff members. The University may offer a further fixed term appointment of a maximum of 12 months subsequent to the initial contract.”

[10] The Respondent asserts that the reason for the fixed term contract was ‘organisational change’ that ended on 31 December 2011. They argue that organisational change had been taking place in the Applicant’s work area throughout the period 2006 to 2011.

Evidence

[11] Evidence was given by Professor Josephine Anne Ward, the Dean of Science and Head of School of Science at Curtin University. She explained the appointment of the Applicant for 2011 as follows:

“The situation was that we were (a) implementing a change, a significant organisational change. We were also required by the university to undertake an external review of the school. Now, the school is a large school - in fact, by far the largest school in the university - and I had had approval to actually break this up into a number of smaller reviews, which would then be consolidated into our response. The review of the new department of ENA was intended to happen in the final quarter of 2011. Part of that would be developing a new staff plan appropriate for the admission of the department. That was one of the very serious reasons why we opted to wait until we had our staff plan in place. I could do very little else, actually, at that stage. I could have sought to advertise the position at the end of 2010. I would not have got permission to actually make it a continuing position at that time, because of the uncertainties within the department. So we would have just advertised a fixed-term position for a period. In discussion with Ms Hoschke, she agreed to accept a one-year fixed-term contract to allow these other things to roll out, but she did ask that as part of her agreement, that she be made full-time rather than .7, and we ultimately agreed to that once we saw our way through the budget to allow us to increase a fraction.”  6

and

“In those last two years, with the amount of organisational change that was occurring, not just in the restructuring of departments, but alongside of that we had directives from the vice chancellor to consolidate our course offerings, to eliminate small, unviable units. We also have a directive from the vice chancellor to improve our research productive, and where we have areas that are not research productive, to actually get rid of them.” 7

[12] She also explained that:

“So a well-balanced department has a mixture of core staff, continuing staff, some fixed term. The coastal zone management course is a relatively new course. With any new course, particularly if it is a niche course - which is what this would be regarded as - the university feels its way to see whether or not it’s going to be attractive to students. This one has proved to be attractive to date, but whether it’s sustainable into the future is something that still is a little questionable. We’ve had courses that we’ve run for six years with good student numbers, and then the numbers have dived because the students have moved on to something else. So it’s getting that - allowing ourselves to have some flexibility in terms of being able to have the right staff to do the job as it’s needed at the time; balancing that with giving staff security as best we can.” 8

...

“...what we did, we made a strategic decision, given the vice chancellor’s directives, to look at our staffing profile, revamp a position that had been filled on a fixed-term basis for three periods, and to go to advertisement as we needed to do. Ms Hoschke was certainly made aware of that, was, I believe, encouraged to apply for it. I’m thinking there that if that happened, it would have happened through her head of department. She was not successful in demonstrating that she was the best applicant for the position. The reality is that the university has a lot of people across the university who are contributing through sessional and casual contracts on a long-term basis. We in fact have a number of people who have been on fixed-term contracts over a number of - quite a large period for various reasons. In one case that I can think of, they were largely working in a research area where they’re very dependent on external funding. That funding could dry up any day. Fixed term is the appropriate way to go. In this case, where we’re talking about a relatively new degree, we foreshadowed that we were going to review the major. We were reviewing the department to look at where it was heading - where its future was heading. All of these things indicated that it was not appropriate to actually move to a continuing position until we reached the point where we decided that it was appropriate to look at doing that in the last part of last year, and so we revamped the position, as was appropriate. Any position that comes up for renewal should be reassessed. It should be looked at to see that it is still appropriate for what the area is after - what the area needs in terms of its skill set. We did that. We advertised, and that’s how we got to today.” 9

[13] A witness statement was provided by Professor Gibberd. Professor Gibberd was not available on the day of hearing and hence unable to be cross-examined. I have disregarded the witness statement in my deliberations and taken no account of it in making my decision.

Consideration

[14] From what I can ascertain from the Applicant’s submissions she was endeavouring to establish two different lines of argument but also to link those two lines. Firstly, she was arguing that the nature of the employment relationship when it ended was not a fixed term contract because it did not comply with the terms of the agreement that allowed the appointment on a fixed term. Secondly, she was trying to establish that the employment was on a regular and systematic basis with the expectation of continuing employment.

[15] The first of those arguments was not established by the Applicant. I accept the evidence of Professor Ward as to the reasons why the fixed term contract was entered into for 2011. It appears to me that the underlying reasons fit comfortably within the grounds upon which a fixed term contract can be entered into under the 2009-2012 EBA. The Professor’s reasons were, to me, sound and her evidence was compelling.

[16] The second of those two arguments in essence deals with employment of a casual nature that can be deemed to be regarded as continuous service under certain circumstances. 10

[17] Those provisions are for the purpose of determining whether an employee had completed the minimum period of continuous service. That issue is not in contention here at all. Here, at the time that termination of employment is alleged to have occurred, the Applicant was not a casual employee at all and indeed had completed the minimum period of service but not as a casual employee. Indeed, if what the Applicant is trying to assert is that the Applicant was a casual employee, the last occasion that the Applicant had been engaged as a casual was some two years beforehand. On the facts here I cannot see how that the provisions of s.384 are relevant at all.

[18] I find that the Applicant was employed under a contract of employment for a specified period of time and the employment was terminated at the end of that period.

[19] The Applicant is therefore not able to make an application for an unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

Mr G Whisson for the Applicant

Mr I Curlewis for the Respondent

Hearing details:

2012.
Perth:
April, 11.

Final written submissions:

Applicant: 17 April 2012

Respondent: 27 April 2012

 1   See s.386(2)(a)

 2   s.396(b)

 3   See clause 14.2 of 2009-2012 Agreement

 4   Para 14 of Form F2

 5   Document 12, para 2 of Applicant’s supporting documents.

 6   PN229

 7   PN253

 8   PN250

 9   PN256

 10   s.384(2)

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