Dadey v Edith Cowan University

[1997] IRCA 97

DECISION NO:97/97  

CATCHWORDS

INDUSTRIAL LAW  -  termination of employment  -  fixed term contract  -  whether termination unlawful under the Industrial Relations Act 1988 - whether employment terminated at the initiative of the employer.

Industrial Relations Act 1988, (now the Workplace Relations Act 1996)

Fisher v Edith Cowan University, Unreported (Industrial Relations Court of Australia, Madgwick J, 12 November 1996)
Fisher v Edith Cowan University, Unreported (Industrial Relations Court of Australia, Full Court, 2 April 1997)

PATRICK DADEY v EDITH COWAN UNIVERSITY
No. WI96/1454

LEE, MARSHALL, NORTH JJ
PERTH (HEARD IN MELBOURNE)
2 APRIL 1997

IN THE INDUSTRIAL      )
RELATIONS COURT        )
OF AUSTRALIA           )
WESTERN AUSTRALIA      )
DISTRICT REGISTRY      )     NO. WI96/1454

ON APPEAL FROM A JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

B E T W E E N:             PATRICK DADEY

Appellant

and

EDITH COWAN UNIVERSITY

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:     LEE, MARSHALL, NORTH JJ

DATE OF ORDER:         2 APRIL 1997

WHERE MADE:            PERTH (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court of Australia Rules.

IN THE INDUSTRIAL      )
RELATIONS COURT        )
OF AUSTRALIA           )
WESTERN AUSTRALIA      )
DISTRICT REGISTRY      )     NO. WI96/1454

ON APPEAL FROM A JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

B E T W E E N:             PATRICK DADEY

Appellant

and

EDITH COWAN UNIVERSITY

Respondent

CORAM:     LEE, MARSHALL, NORTH JJ
DATE :     2 APRIL 1997
PLACE:     PERTH (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

THE COURT:

The appellant ("Mr Dadey") was employed by Edith Cowan University ("the University") under a written contract for employment for a three year period commencing on 1 January 1993 and ending on 31 December 1995.  He was engaged as a full-time lecturer in Dance (Classical) at the Western Australian Academy of Performing Arts, an academy within the University.

The terms of the contract were contained in a written offer of appointment accepted by Mr Dadey.  The relevant clauses of the offer provided as follows:

"2.The appointment offered is for a three year contract commencing 1 January 1993.  While it may be that your appointment will be extended to a further contract, or that you may apply for and obtain a tenured position, there is no entitlement to continued employment beyond the date of completion of the contract as set out above.

...

8.The University will enter into no undertaking regarding your employment and associated conditions beyond the terms of this offer of appointment and the attachment."

On 23 June 1995, the Dean of the School of Dramatic Arts at the Academy advised Mr Dadey that his contract was due to expire at the end of the year, that the position would be advertised in August or September 1995 and that the successful applicant would be chosen in a selection process to commence in October 1995.  He was given strong encouragement to re-apply for the position he then occupied.

Mr Dadey submitted his application on 3 October 1995.  He was interviewed on 30 October 1995 and was one of two applicants short listed for the position.  By majority, the interview panel preferred the other candidate.  On 31 October 1995, Mr Dadey was informed that his application was unsuccessful.  On 14 November 1995, Mr Dadey wrote to the University requesting a formal review of the selection process.  A review was conducted but it did not alter the University’s decision.  On 12 January 1996 Mr Dadey applied to the Court for an order that his employment had been unlawfully terminated by the University under the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) ("the Act").

The application came before a Judicial Registrar for hearing on 4 July 1996. On 8 July 1996, the Judicial Registrar delivered reasons for judgment in which he found that the employment of Mr Dadey had been terminated at the initiative of the University but that reg30B(1)(a) of the Industrial Relations Regulations precluded Mr Dadey from applying to the Court in that he was "an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994".

The decision of the Judicial Registrar was reviewed by a Judge of this Court (Madgwick J) upon a motion filed by Mr Dadey.  His Honour conducted the review in conjunction with the hearing of the matter of Fisher v Edith Cowan University, Unreported (Industrial Relations Court of Australia, 12 November 1996) and for the reasons expressed by his Honour in Fisher his Honour concluded that Mr Dadey's claim could not succeed.

The appeal from his Honour's decision was heard by this Court concurrently with the appeal from his Honour's decision in Fisher, the reasons of the Court in that matter being delivered contemporaneously with the reasons in this appeal.

We are satisfied that on the facts presented to his Honour, in substantial respects in agreed form, it was open to his Honour to conclude that Mr Dadey's employment was not terminated at the initiative of the University.

As noted in our reasons in Fisher it was not submitted to his Honour in this matter that the use of an employment contract for a fixed term was controlled or prevented by the provisions of an award made under the Act, nor was it argued that on the facts of the case the terms of the employment contract set out in the offer did not reflect the entire employment relationship or that those terms had been abandoned, amended or negated.

Accordingly, the reasons we have expressed in Fisher apply equally to the matter under appeal and the appeal must be dismissed.  It is unnecessary to deal with the application of reg30(B)(1)(a) to the facts of this case.

I certify that this and the preceding     three pages are a true copy of the Reasons for Judgment of the Court.

Associate:
               Date:

APPEARANCES

Counsel for the Appellant:  W D Claydon
  C Ryan

National Tertiary Education Industry Union on behalf of the Appellant

Counsel for the Respondent:  C N Jessup QC
  P D Burchardt

Solicitors for the Respondent:  Mallesons Stephen Jaques

Date of Hearing  :  3 February 1997
Date of Judgment :  2 April 1997