Boylan v The Roman Catholic Trust Corporation in the Diocese of Cairns

[2016] FCCA 2270

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOYLAN v THE ROMAN CATHOLIC TRUST CORPORATION IN THE DIOCESE OF CAIRNS [2016] FCCA 2270

Catchwords:
INDUSTRIAL LAW – Application claiming dismissal in contravention of a general protection – where contract was for a fixed term – where fixed term expired and contract not renewed – where no adverse action.

WORDS AND PHRASES – dismissal – where dismissal must be by, or by reason of, an act of the employer – where expiry by agreement is not dismissal by, or by reason of, an act of the employer.

Legislation:

Fair Work Act 2009 (Cth)

Victoria v Commonwealth (1995) 187 CLR 416

Applicant: PATRICIA JANE BOYLAN

Respondent: THE ROMAN CATHOLIC TRUST CORPORATION IN THE DIOCESE OF CAIRNS TRADING AS CATHOLIC EDUCATION SERVICES

File Number: BRG 631 of 2015

Judgment of: Judge Jarrett

Hearing dates: 18, 19 and 20 July 2016

Date of Last Submission: 20 July 2016

Delivered at: Cairns

Delivered on: 20 July 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr C. Murdoch

Solicitors for the Respondent: Miller Harris Lawyers

ORDERS

1. The application filed on 9 July 2015 be dismissed.

2. The respondent’s application for costs is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

BRG 631 of 2015

PATRICIA JANE BOYLAN

Applicant

And

THE ROMAN CATHOLIC TRUST CORPORATION IN THE DIOCESE OF CAIRNS TRADING AS CATHOLIC EDUCATION SERVICES

Respondent

REASONS FOR JUDGMENT

1. Patricia Boylan commenced working for the respondent in these proceedings, to which I shall refer as Catholic Education Services, in 2013.  She was employed in the position of grants and partnership officer.  Her employment came to an end on 5 May, 2015 or thereabouts.  These proceedings are about whether the cessation of Ms Boylan’s employment renders the Catholic Education Services liable to Ms Boylan for a contravention of the Fair Work Act 2009 (Cth). She claims that she is entitled to compensation for the breach of the Act that she alleges, and that the imposition of a pecuniary penalty on Catholic Education Services. She also seeks reinstatement to her former position. Catholic Education Services opposes her claim.

2. Although she has been legally represented in the past, Ms Boylan represented herself at this trial.  All of the documents filed in her case have been prepared by lawyers acting on her behalf.  They have, by and large, focused upon the relevant issues to be determined in these proceedings.  However, from time to time during the course of the trial Ms Boylan strayed away from the issues in this case and onto other matters.  It is plain that there are a number of matters that she considers to be of general importance that arose from her employment by Catholic Education Services and that she observed when she was employed there.  None of them, however, have anything to do with this case, given the way it has been framed by her and those that have advised her in the past.

3. Ms Boylan filed her initiating application on 9 July, 2015 together with a form 4 that set out something of a narrative of her claim.  On 20 August, 2015 she filed points of claim in support of her case.  Catholic Education Services has filed points of defence.  The points of claim and the points of defence are critical documents.  They define the factual issues that require determination by the court.  They inform the opposing party of the case that needs to be met.  They frame the theory of the case to be advanced by each of the parties.  Generally speaking, departure from a case revealed by the pleadings filed or delivered by a party is not permitted.

4. Having regard to the points of claim and the points of defence, two critical issues emerge.  The second, although not strictly dependent on the first, technically only arises if the first is decided in Ms Boylan’s favour.  Those issues are (a) whether at the time Ms Boylan’s employment came to an end her employment was for a fixed term or period of time, or whether her employment was permanent, in the sense that it would continue indefinitely until determined by one or other of the parties; and (b) what was the real or operative and substantive reason Ms Boylan’s employment was brought to an end.  Depending upon the resolution of those issues, particularly the first, there may be some auxiliary issues to be determined relating to the relief to which Ms Boylan might be entitled. 

5. Before proceeding further, it is necessary to deal with a matter of evidence.  Objections were taken to some of Ms Boylan’s evidence.  Those objections were put in writing.  Ms Boylan or her lawyers responded to the objections.  Counsel for Catholic Education Services indicated at the commencement of the trial that his client was generally content with Ms Boylan’s responses, save for a few items.  They were the subject of argument, and in due course I ruled on those questions that were the subject of argument.

6. One passage of evidence relied upon by Ms Boylan, however, was provisionally admitted by me subject to a determination about its relevance.  I am now in a position to rule on the question of relevance insofar as that evidence is concerned.  The relevant passage is paragraphs 5 to 13 inclusive of Ms Boylan’s affidavit filed on 1 October, 2015.  In my view, none of that evidence is relevant to the issues that need to be determined in this case.  Accordingly, that evidence is struck out.

7. I need also to say some things about the evidence more generally in this case.  Ms Boylan gave evidence in her proceedings by way of affidavit and was cross-examined; so too did the witnesses who were called by the respondent.  Each of them filed affidavits, and some of the witnesses were cross-examined.

8. Ms Boylan’s affidavit evidence from problematical.  Large parts of her evidence were subject to objection and the objections by and large were well-taken.  In the course of her evidence-in-chief and in the course of her cross-examination she had difficulty focusing on the questions that were asked of her and answering directly those questions.  Her evidence tended to take the form of assumption and conclusion, the truth and accuracy of which should not and could not be open to challenge.  But many of those assumptions and conclusions upon which she relied were not made out in the evidence, nor were they accepted by the other witnesses in the case.

9. I found too that Mr Dixon, called by the respondent was, at times, an unfocused witness who wished to advance a particular line of argument without reference to the questions that he was asked.  His evidence suffered by reason of that. 

10. However, generally speaking, I found that all of the witnesses in the case, Ms Boylan and the others, were all generally attempting to give their evidence truthfully and to the best of their ability.  The differences that arise between the evidence of the various witnesses, I think, arises because they have different points of view.

11. The onus of proof in this case is established by s.140 of the Evidence Act 1995 (Cth). The onus of proof lies on a party asserting a fact, and the standard of proof is that generally applied in civil proceedings, that is, the balance of probabilities. I am to be satisfied of the various matters that require determination in this case on the balance of probabilities.

12. There are some matters in this application that are not in dispute.  The parties agree that Ms Boylan commenced work with Catholic Education Services on 29 April, 2013 as a grants and partnership officer.  Her employment was governed by a written document that recorded, amongst other things, the commencement and conclusion dates of her appointment.  Her appointment was to conclude on 2 May, 2014.

13. Pursuant to that appointment, Ms Boylan was to work 30 hours per week.  Subsequently, perhaps about a week later, she received a letter enclosing a document entitled “Employment Agreement” from Catholic Education Services, which provided more detail as to the terms and conditions of her employment.  She was invited to sign it, but it seems however, that it was never executed by either of the parties.  She also received a position description for her position.  I think, at the end of her cross-examination, one could comfortably reach the conclusion that she received those documents, the employment agreement and the position description, about a week after she started work.  I so find.

14. All seemed to be going well.  At a performance review conducted on 27 November, 2013 Ms Boylan’s manager, Mr Andrew McKenzie, was given to note on her review documentation, “Intent is to make this a permanent position if it proves successful, and there is no reason to suggest it won’t.”  The intent to make the position a permanent one is consistent with Ms Boylan’s evidence that shortly after she commenced her employment, Brother Paul Hoff, the Catholic Education Services Executive Officer at the time, said to her that it was a trial position for 12 months and that if it was successful, it would become permanent.

15. In January, 2014 Ms Boylan’s hours of work expanded from the 30 hours per week that she originally signed up to, to 38 hours per week.  Those additional hours commenced in February, 2014.  That change was documented by a further notice of appointment signed by each of the parties to these proceedings, or, at least, on their behalf.  The updated notice of appointment is exhibit 1.

16. I am satisfied by the evidence that Mr Dixon and Ms Boylan would talk regularly; they both gave evidence to that effect.  I am also satisfied that by April, 2014 Ms Boylan had expressed her desire for a permanent position with Catholic Education Services.  I accept her evidence set out in her affidavit filed on 9 July, 2015 and 1 October, 2015 that at a meeting that occurred on or about 11 April, 2014 she told Mr Dixon that she would not be staying on unless she had a permanent position.  I accept that Mr Dixon said that consideration was being given to Ms Boylan’s position.  However, I do not accept Ms Boylan’s assertion that, at the meeting, Mr Dixon suggested to her that her position would become permanent.  At the commencement of her cross-examination, I invited Ms Boylan to give oral evidence about some matters that I had struck from her affidavit for want of form.  In the course of giving oral evidence about what she said was the offer and acceptance which she asserted should lead to the conclusion that there was a permanent position offered to her, she gave evidence about some antecedent discussions between she and Mr Dixon.

17. In particular, she said this in answer to a question from me:

    Well, okay. It started in April—the first conversation. I said to Bill “I’m leaving”—he said “Oh, you’re doing a great job”—I said “I’m leaving soon because I need a permanent job. Our house was lost in the cyclone and I need to have an income. And I have got—I put my feelers out for a few positions at JCU”—and he said to me “No, I don’t want you to leave. I want you to stay here and I will organise to make sure that you get a permanent position and a . . . a permanent position here”.

18. That evidence was plainly a reference to the meeting that Ms Boylan asserted took place on 11 April.  But her evidence is quite different to the evidence that she gave in her two earlier affidavits.  In her two earlier affidavits the suggestion was that her position was under consideration.  In her oral testimony, her evidence was that Mr Dixon was going to make sure that she would get a permanent position.

19. There is a significant difference between the two.  I accept the former, but not the later.  I accept the former because it is consistent with the other evidence in the case.  It is consistent with the fact that at about that time Ms Boylan’s position was, indeed, under consideration.  In that respect, it seems that Ms Boylan was not aware that her position had been discussed at a meeting of what is described in the evidence as the executive leadership team.  At that meeting, which was attended by Mr Dixon, there were discussions about the continuation of Ms Boylan’s role, including, according to Mr Dixon, the overlap of her role with other roles in Catholic Education Services, a lack of clear priorities with respect to her position, and the objective measurements of performance and success of that position.

20. Mr Dixon gave evidence – there is no reason not to accept it – that the outcome of the executive leadership team meeting, which he says was held on 17 March, was that Mr McKenzie would have discussions with the then executive director, Brother Hoff, and the matter would be brought back to a subsequent executive leadership team meeting.  As matters transpired, Brother Hoff left the organisation in early April, 2014 and the matter was not brought back to the executive leadership team, it seems. 

21. I accept that at the meeting between he and Ms Boylan in April, 2014 Mr Dixon said to her that her position was under consideration as it plainly was.  However, the conversation did not, I am satisfied, go any further than to suggest that her position was under consideration.

22. In May, 2015 Mr McKenzie took to Ms Boylan another notice of appointment for signature by her.  That notice of appointment, she says, concerned her, because she considered, at least on one version of her evidence, that she had a permanent position with the respondent and so no further letter of appointment was required.  It will be recalled that her first contract of employment had expired in early May, 2014.

23. The third letter of appointment provided for a contract of employment that started on 5 May, 2014 and ended on 4 May, 2015.  It contained this notation:

    Trial position funded in CES 2014 budget.

24. It contained a number of other details, including that the position was for a 38 hour week.  Ms Boylan gave evidence that when this was presented to her for signature, as I have already said, it concerned her.  She took up with Mr Dixon, she says, the requirement for her to sign that document.

25. According to Ms Boylan’s evidence Mr McKenzie had told her that the document was a formality, that it was only required for the purposes of the pay roll office, and that it was really nothing to be particularly concerned about.  Certainly it is the case that Mr McKenzie’s own evidence suggested that when he asked Ms Boylan to sign the document he said to her that it was necessary to ensure continuity of pay for her, because it needed to be sent to the pay office.

26. Ms Boylan says that Mr Dixon said words to the same effect.  There is no reason to doubt that either Mr McKenzie or Mr Dixon said the things that I have just recorded.  But I am not satisfied, as Ms Boylan alleges, that Mr Dixon said that documents relating to a permanent role or permanency would soon follow.  Indeed, the proposition that, at that stage, she had been given a permanent position is inconsistent with her own case.  For example, on 1 April, 2015 Ms Boylan lodged a general protections application with the Fair Work Commission.  In that application she alleged at paragraph 5 of part 3 of that application (page 4 of 8) the following:

    Both Mr McKenzie and Bill Dixon have been highly satisfied in my role as grants of partnership officer.  And following my meeting with Mr Dixon in early July 2014 he was committed to changing my job description to a permanent position following my two year contract of employment, and will revise and increase my salary to reflect my strong and positive position in securing substantial funding grants to CES, and changing and increasing my work toward focusing on “parent engagement projects”.

27. Secondly, in an application for an order to stop bullying that Ms Boylan filed with the Fair Work commission on 15 April, 2015 she said, in paragraph 5 of the statement of her claim, (in part 2, page 4 of 10) words to the same effect.  Similar words also appear in a general protections application involving dismissal that she filed with the Fair Work Commission on 20 May, 2015.

28. Again, there are similar words or a similar case set out in her form 4 that was lodged when these proceedings were commenced.  In her form 4 she sets out that there was two year-long contracts of employment.  That will be found at paragraph 4 of that document where she says:

    On 29 April 2014 the one year contract of employment ended, and another one year contract of employment commenced.

29. Finally, in the statement of agreed facts that Ms Boylan has filed in this case for the purposes of this trial the very first fact that she records as having been agreed is that the applicant agreed to enter into a further one year employment contract on or about 29 April, 2014 with the employment to begin on 5 May, 2014 and – I think it means – to end on 4 May, 2015.

30. So to the extent that it might be suggested that by whatever words Ms Boylan suggests Mr Dixon said when she approached him about Mr McKenzie’s request that she should sign the further notice of appointment, it is clear that she did not consider that those words meant that she was a permanent employee, or, up until that point in time, had become a permanent employee.

31. That is, again, consistent with her case that the real offer and acceptance resulting in a contract of permanent employment took place at a meeting on or about 11 July, 2014 between she and Mr Dixon.  At that meeting she alleges that she was offered a permanent position as a grants and partnership officer with an increased focus on parental engagement.  She alleges that she accepted that position.  Her evidence about that meeting in her affidavits was struck out because of its form, as I have already indicated.  I invited Ms Boylan to give some evidence about that when she commenced her oral testimony.  In respect of that issue what he said was this:

    Ms Boylan:Okay. The conversation started like this: Mr Dixon walked past me and we’d had many discussions prior. He walked past me and he said “I’ve got time now—

    [I said to Ms Boylan that she needed to slow down.]

    Ms Boylan:Okay. “I’ve got time now to talk to you and we’ll get your job position organised ”. And as we walked into the office—

32. I then said something else to Ms Boylan.  After we cleared up a misunderstanding about a word that Ms Boylan had used, she continued:

    Ms Boylan:As we walked along he asked me why I had got considerable funding from Melbourne University and why I was getting funding from Melbourne University  and I said “oh, um, they’ve got the most money and they’ve offered to put in $7 million for indigenous education in this region as long as work across catholic, state, and independent schools” and I said “but, you know, I’ve got funding from many organisations, many universities” I said “last year we sent indigenous students to an aspirational camp with funding from Sydney University” and I said—actually he said “who did that” and I said “oh, Manjic Casana did that—she and some teachers from St Augustines’ were involved in taking some students down to Melbourne University”—sorry, “Sydney University”. And he said to me “Manjic Casana, she’s a prostitute”. And I said “Bill, she’s not a prostitute—she’s a science teacher”. And he said “Well, she’s a loose woman”. And I said “Bill, if she’s a loose, so is your daughter and my daughter. The only problem she’s got was she was attractive”. And I could have that kind of conversation with Bill because we’ve known each other for a while. And then we went in and we sat down and we talked about my position and we’d had long conversations over time from April—

33. I then reminded Ms Boylan that she needed to tell me what was said.  She continued:

    Ms Boylan:I said … No he said “let’s sit down and sort this out. What we’re going to do is I want you not to work at St Bernard’s anymore. I want you to—with this new position I’m going to give you, I want you to be involved in parent education. Are you happy with that?” And I said “yes”. “What else comes with it?” And see, why this conversation is weird is because we’d talked about permanency some time ago. So, in the context of the discussion, it was already known what we were doing. So, he was going to give me a larger salary, a permanent position, and ... Sorry. So, yes. So we discussed the information and … I’m just trying to go “he said…”, “she said …”. Okay. He continued to ask me was I happy not to be working at Mt St Bernard’s. I said it didn’t matter were I worked. I felt we’d got Mt St Bernard’s fairly established over the last 18 months or year and it was coming along quite well and I could see I could be helpful working elsewhere. And he asked me about what sort of area would I work and I suggested—my comment to was “It would be best if I worked in the education award rather than the professional award where I was working as a journalist. He sat and thought about that and questioned me on why the education award and I said as I was on the Cairns High School Committee I watched the need for people in my position to be involved in making sure parents were engaged in the school because you got more funding that way. And we talked along those lines. He said he’d follow up with an email which he did. And it was already established in previous conversations that it was going to be permanent and that was—

1. And then I directed Ms Boylan to tell me about the conversations which happened earlier.  That is when she gave her evidence about the April conversation that I have recorded earlier.  So it can be seen from that evidence that there was in fact no discussion with Mr Dixon about permanency in either April or on 11 July, 2014.  There was no assertion by Ms Boylan that he had suggested to her that there was anything on offer about permanency, but rather she had inferred that from what she says were earlier discussions.  That is, therefore, as far as Ms Boylan’s case is concerned, the extent of the evidence about the alleged offer and acceptance that took place on 11 July. 

2. For the respondent’s part, Mr Dixon asserts that there was no meeting at all on 11 July.  He suggests that there were some meetings leading up to 11 July and some email correspondence, but there was no meeting on 11 July.  His evidence was that there was a meeting between he and Ms Boylan on 2 June and at that meeting, they discussed the first employment contract, which had been approved for a further 12-month extension.  The parties had known that because the third notice of appointment had been signed by Ms Boylan on or about 20 May and by Mr Dixon at about the same time and by Mr McKenzie at about the same time. 

3. The meeting also discussed the position that Ms Boylan held.  Mr Dixon’s evidence is that he told her that it was unlikely that the position would continue beyond the 12-month extension because there was concern about the value of the role.  He said that he intended to propose, through the respondent’s normal budget process, to establish a new fixed-term position that would focus on parent engagement and he asked Ms Boylan whether she would like to include parent engagement in her current duties.  There is, I think, according to the evidence, a consensus that there were discussions between Mr Dixon and Ms Boylan about an increased focus on parental engagement in her role.  She, however, did not accept that some of the things that were put to her as alleged by Mr Dixon in that meeting in fact occurred. 

4. In any event, Mr Dixon and Ms Boylan, had another meeting on 18 June according to Mr Dixon’s evidence.  That meeting concerned matters which, in my view, were not particularly important to this case.  There was another meeting on 25 June, 2014.  The meeting took place following the receipt by Mr Dixon of an email from Ms Boylan on the 18^th of June at about half past 5 in the afternoon.  That email is instructive for a number of reasons.  First, it seems to set out Ms Boylan’s understanding of what was then being discussed between the parties.  It says:

   As per our discussion re changing my position to that of a professional education officer –

5. It refers to “the new contract”.  That new contract, according to Ms Boylan’s evidence in cross-examination was the contract that was presented to her following the execution by her of the third notice of appointment.  The evidence is that, following the third notice of appointment, there was a letter sent to Ms Boylan or perhaps left on her desk with another employment contract.  The letter is dated 6 June.  This time, the employment contract was signed on behalf of Catholic Education Services.  That was the contract to which Ms Boylan’s email of 18 June referred.

6. Her evidence, to the extent that it suggested that the letter of 6 June and the employment contract was not received until about a month after 6 June, must be rejected.  It is clear from her email of 18 June that Ms Boylan had received it by then.  She never signed that contract, but this email is evidence that she had (a) received it and (b) wished to discuss some of the matters contained within it and in particular, the description of her position.  What it does not do is take issue with what might be described as the lack of permanency in the position.  There is no mention at all in the email that the position provided for in the contract or the notice of appointment is not permanent.  To the extent that there may have been discussions about permanency that led Ms Boylan to think that she had a permanent appointment on its way, it seems surprising that those things would not have been included in the email.  In any event, they were not. 

7. So, on 25 June, Mr Dixon met with Ms Boylan about that and the email that she had sent him.  She accepted that Mr Dixon told her that the title “education officer” applied to positions that required a person to be a registered teacher.  She accepted that he told her that there were internal processes that would need to be followed to reclassify her position and that a change of duties did not always result in a change of salary.  She accepted, ultimately I think, that she was asked to attend a meeting with him and the president of the Diocesan Parents and Friends Association on 27 June.  But she did not accept that she and Mr Dixon discussed about her providing support for Diocesan Parents and Friends Associations – I am not sure of what the significance of that is in any event – and she did not accept that Mr Dixon had told her that he had not used the title “level 3 education officer” in their discussions that took place earlier. 

8. In any event, they had that meeting.  It was not suggested that there was anything about permanency said at that meeting or anything about permanency agreed at that meeting.  That is curious if Ms Boylan’s evidence about her understanding of the permanency of her position is correct.  The new contract of employment which she plainly had received was at odds with what she claimed to be her understanding about that.

9. There are then some further emails.  Mr Dixon says that he was on leave between 30 June and 7 July, 2014.  On 8 July, Ms Boylan sent an email to Mr Dixon.  That email was short.  It said this:

   Please can you let me know when my pay salary will be reviewed.  I am interested in seeing [seeing is my word] the research process and would be keen to be involved.  Will my salary be back-paid to the date of renewed contract?

10. Again, no mention of permanency.  Again, no mention of the discussions that might have been had about permanency.  Again, there was reference to the renewed contract, that is the contract for a further 12 months of employment. 

11. Mr Dixon, according to his evidence, did not see that email until about 11 July because when he returned from leave, he went through his emails, presumably methodically, and came across the email of 11 July.  He responded by an email of 11 July.  That email says this:

    As discussed, we need to follow a process for this. 

    (1) I need to review the position description (this will include any change of duty, etcetera).

    (2) We need to complete a job evaluation questionnaire.

    (3) The position needs to be evaluated externally.

    (4) The result will determine the salary.

    (5) The salary will be applicable from when the new position description was applied.

    Therefore, we can do step 1 and agree on the revised position quite quickly, then the rest will follow over a four to six week period.  I will ask Sharon to make an appointment for me to meet with Andrew and yourself to review the position description next week.

12. The subject of the email is “salary review”.  That’s the same subject matter in the email to which it responds from Ms Boylan.  That email was sent at about 9.21 in the morning.  There is no evidence about at what time of the day it was suggested the alleged meeting between Ms Boylan and Mr Dixon took place on 11 July. 

13. Given that there had been email correspondence between the two about things concerning employment such as salary and position descriptions, it seems to me improbable that had there been the type of discussion that Ms Boylan asserts there was on 11 July that it would not have formed the subject of some confirmatory email correspondence on that day or soon thereafter.  But there is none.

14. I accept Mr Dixon’s evidence.  I am not satisfied that a meeting took place between Mr Dixon and Ms Boylan on or about 11 July as she alleges.  Mr Dixon’s evidence is precise and was given by reference to diaries that he kept, according to the answers he gave in cross-examination.  There is no reason to doubt his evidence about that. 

15. There is nothing in the documents, the emails or the employment contracts or the notices of appointment that would support any assertion that the appointment of Ms Boylan to the positions that she occupied was an appointment which was permanent.  The only evidence that I have suggests that her appointment was for a fixed term, a term which was to expire on 4 May, 2015. 

16. The only email correspondence at all from Ms Boylan which mentions the word permanent mentions it in a way which suggests that, as her evidence confirmed, was merely a discussion - nothing more and nothing less.

17. I am satisfied that the employment relationship between Ms Boylan and Catholic Education Services was, as at April and up to and including 4 May, 2015 a contract for a fixed term.  It was not permanent and ongoing employment.

18. I have considered Ms Boylan’s argument that, having regard to the overall circumstances of the case and the dealings between the parties that this is not a case where there is a clearly delineated offer and acceptance.  I should infer the existence of the relevant contract of employment from the parties’ dealings and their conduct. 

19. The difficulty with that argument, however, is that it is not the case that she has ever pleaded.  The case that she has pleaded has always been that there was an offer accepted by her on or about 11 July, 2014. 

20. In any event, even if that was not a difficulty, the circumstances do not lead to the conclusion that there was a contract of employment which was not anything other than a fixed term. 

21. The adverse action claimed to have been taken by Catholic Education Services against Ms Boylan is the termination of her employment; that is, her dismissal. Dismissal in this area of the law has a technical meaning. It is defined in the Fair Work Act and, by that definition, it requires the dismissal or termination of the employment to be by an act of the employer or at the instigation of the employer.

22. In that sense, the Fair Work Act generally echoes the common law as it has been long developed in this country. Perhaps, the most authoritative statement of the position is to be found in Victoria v Commonwealth (1995) 187 CLR 416 at 520 where the plurality said by reference to the Industrial Relations Act as it then existed (but which was a provision of a very similar term to the present):

    As a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires.  Rather, employment comes to an end by agreement or, where the term is fixed by award or statute, by operation of law. 

23. Here, there has been no dismissal.  If there is no dismissal, there is no adverse action.  If there is no adverse action, the claim must fail. 

24. The first issue to which I referred when I began these reasons must be decided against Ms Boylan. 

25. It is technically unnecessary to decide the second issue but were it necessary to do so, I would have no hesitation in finding that the operative and substantive reason for the failure of the respondent to renew her contract was the operational reason given in evidence by the witnesses for the respondent.  The fact that the respondent’s operating budget was $600,000 short, that the work to be undertaken by Ms Boylan was at least in part to be undertaken by another person on a state-wide or, perhaps even national basis and the fact that the respondent needed to make financial contribution to that state-wide or nation-wide approach to the work otherwise undertaken by Ms Boylan all made it uneconomic for the respondent to continue to employ Ms Boylan.  Those operational matters, I am satisfied, led to the respondent’s decision not to renew the relevant contract of employment. 

26. For all of those reasons, the application filed by Ms Boylan on 9 July 2015 will be dismissed. 

RECORDED:   NOT TRANSCRIBED

1. I am neither satisfied that the proceedings were instituted without reasonable cause nor that the unreasonable act or omission by Ms Boylan caused the respondent to incur any costs. 

2. As to the first matter, Ms Boylan’s case was always that there was an offer and acceptance.  That was her evidence.  I found that parties generally gave their evidence honestly and to the best of their ability.  This case is not like Weeks, to which I have been referred.  Weeks involved a solicitor.  Ms Boylan is not a solicitor.  She has had the benefit of legal advice, it is said, for a certain period of time but I am not sure whether that is correct or not.  

3. This is a case that has turned on findings of fact.  It is not a case which, for example, has turned on the interpretation of a statute or on the interpretation of agreed facts where one of the interpretation intended for by the parties was not open.  In any event, she has in my view not pursued these proceedings unreasonably because it may well have been the case that findings could have been made in her favour.  Had those findings been made in her favour, then the outcome would have been different.  

4. As to the question of the offer, the same considerations apply.  There is nothing in my view unreasonable in these circumstances on the part of Ms Boylan in refusing to accept that offer.   

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  31 August 2016