Despina Drakoulis v TAFE Online Pty Ltd t/a Chisholm Online
[2022] FWCFB 127
•7 JULY 2022
| [2022] FWCFB 127 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Despina Drakoulis
v
TAFE Online Pty Ltd t/a Chisholm Online
(C2022/2997)
| VICE PRESIDENT HATCHER COMMISSIONER HAMPTON | SYDNEY, 7 JULY 2022 |
Appeal against decision [2022] FWC 895 of Commissioner Johns at Melbourne on 29 April 2022 in matter number U2022/1076.
Introduction and background
Ms Despina Drakoulis has lodged an appeal, for which permission to appeal is required, against a decision made by Commissioner Johns on 29 April 2022[1] to refuse to grant her an extension of time pursuant to s 394(3) of the Fair Work Act 2009 (Cth) to file her unfair dismissal application against TAFE Online Pty Ltd (Chisholm), and the order made by the Commissioner on the same day[2] dismissing Ms Drakoulis’ application. Ms Drakoulis’ appeal grounds are as follows:
“1.Commissioner Johns in his decision said in part 3 that on 11 February 2022 the Respondent contended in the alternative, that if there had been a cessation of employment it occurred on 31 December 2021 and therefore the application was out of time.
2.I refer to correspondence from the employer dated 11 February 2022 and this is not what the employer has said. The employer advised that I remain employed with [Chisholm] on a casual basis and went on to offer sessional employment of 10 weeks duration.
3.The employer later withdrew that offer of employment because I crossed out two sentences in the Deed of Release document. The first sentence stated that both parties agreed I was terminated on the 31 December 2021 which was inconsistent with the employer saying I had not been terminated and the second sentence stating that my re-employment pursuant to the offer is separate from and not continuous with the Employment again inconsistent with the employer saying that I had not been terminated.
4.The employer did not wish to participate in conciliation.
5.Commissioner Johns then went on to say in parts 18, 19 and 20 of his decision that the termination of my employment took effect on the 31 December 2021 and that the contract of employment operated in such a way as to be a maximum term contract having regard to the " indicative expiry date" in the contract. The employer did not agree saying that the employment relationship continued beyond the 31 December 2021.
6.If the contract operated in such a way as to be a maximum term contract then should I have received entitlements such as personal leave and annual leave?”
The relevant statutory framework may be summarised as follows. Part 3-2 of the FW Act provides for a scheme by which applications may be made and determined in respect of unfair dismissal. Section 385(a) provides that, for a person to have been unfairly dismissed, the Commission must be satisfied that the person has been dismissed within the meaning of s 386. Section 386(1) provides (subject to certain exceptions in s 386(2)) that a person has been dismissed if their employment with the employer has been terminated on the employer’s initiative or the person has resigned from their employment but was forced to do so because of the employer’s conduct. Section 394(2) provides that an unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission may allow under s 394(3). Section 394(3) provides that the Commission may allow a further prior for filing an application if satisfied that there are exceptional circumstances, taking into account a number of prescribed matters.
The facts of this matter are not in dispute. Ms Drakoulis is a teacher. Chisholm provides educational services. On 6 April 2021, Mr Drakoulis entered into a contract of employment (Contract) with Chisholm. The Contract took the form of a letter of appointment addressed to Ms Drakoulis together with an attached schedule. Clause 1, Appointment of the Contract includes the following provisions:
“As a casual employee, each time you work is a separate period of employment. Each time you are offered and agree to work, the terms of this letter of appointment will apply to your employment. Once a period of employment ends, there is no obligation on you to accept, or on Chisholm to offer, any further work. You expressly acknowledge and agree that you have no expectation of fixed term or ongoing employment with Chisholm.”
Clause 2, Nature of Engagement provides:
“As a casual employee you will be engaged and paid by the hour and employed on an irregular basis or for a short period of time. You acknowledge and agree that nothing in this letter of appointment is to be construed to suggest that there should be any expectation of continuity of employment from day to day.
You will remain a casual employee until your employment ceases in accordance with clause 13. You may only become a fixed-term, ongoing employee if Chisholm Online offers you such as position in writing and you accept such an offer.
You may also have a right to formally apply for conversion to non-casual employment. Where an application is refused, you will be notified in writing.”
The cross-reference to clause 13 in the above provision appears to be erroneous; it should refer to clause 14, Cessation of Casual Employment which provides:
“Chisholm Online has no obligation to offer you any hours of work, or any regular or systematic hours, or to offer you further hours or fixed-term or ongoing employment. As a casual employee, Chisholm Online may inform you at any time that you are not being offered further hours of work, or that your services are no longer required.
If you intend to discontinue work with Chisholm Online, you must inform Chisholm Online in writing.
If Chisholm Online offers you no further hours or your employment is terminated by either party, you will not be entitled to any notice, nor payment in lieu of notice, or to any payment in compensation of your employment ceasing.”
The Contract contains a range of other provisions consistent with casual teaching employment. The Schedule includes the following:
“Indicative Expiry Date 31 December 2021
Note: this is indicative only for Chisholm Online administration purposes and any casual hours will be as allocated by Chisholm Online and as approved on Chisholm Online's timesheet system.”
Ms Drakoulis subsequently performed work pursuant to the Contract in the period April-December 2021. The last day she performed work was on 9 December 2021, and she was not offered any work after that date. During the course of 2021, Ms Drakoulis was advised that Chisholm intended to change its resourcing model for 2022, and she was invited to apply for an ongoing or sessional position as a teacher. Ms Drakoulis thereupon applied for an ongoing role, and was interviewed for the role on 17 November 2021. In assessing Ms Drakoulis’ application, Chisholm became aware that she did not hold a Diploma of Vocational Education and Training (DVET) and, accordingly, her application was unsuccessful. Chisholm also considered that it was a mistake for Ms Drakoulis to have been employed as an unsupervised casual teacher without a DVET, and arranged supervision for the balance of Ms Drakoulis’ duties in 2021.
On 21 January 2022, Ms Drakoulis advised Ms Susan Delahunty, who had been her supervisor in 2021, that she had completed her DVET (on a recognition of prior learning basis) and asked “…can you please let me know what happens now?” In a reply email sent the same day, Ms Delahunty asked Ms Drakoulis to provide documents verifying her DVET and “then I can speak to the Ed Leader … and see what vacancies we have left (if any).” On 24 January 2022, Ms Drakoulis sent Ms Delahunty an email in which she asked her to “please confirm if you will be offering me any work this year while I am waiting to receive the certificate/transcript of results for the Diploma in VET…”. Ms Delahunty replied the same day, stating that Chisholm was still working through its requirements as the numbers were fluctuating, the process was very rigid and it was not a matter of verbally offering a role beforehand, and that “We have a TAE contract coming up and there are a few applicants for this role so we are starting this process this week … Hope this helps?” Ms Drakoulis responded with an email which said:
“As you know I have already participated in the interview process and have been teaching in the TAE program since April 2021. Can you kindly confirm if you will be offering me work by the end of day tomorrow Tuesday 25 January 2022.”
Ms Delahunty’s response to this (also sent on 24 January 2022) was that she was unable to offer Ms Drakoulis work by the end of the day as this would be outside the process. Ms Drakoulis then replied: “I will take that to mean that my employment with Chisholm has been terminated”.
On 25 January 2022, Ms Drakoulis filed her unfair dismissal application. She contended in her application that she had been notified of her dismissal, and it had taken effect, on 24 January 2022. On 11 February 2022, Chisholm filed its Form F3 response to the application in which it contended that Ms Drakoulis had not been dismissed from her employment and, as a consequence, the Commission had no jurisdiction in the matter. In the alternative, Chisholm contended that Ms Drakoulis’ employment terminated effective from 31 December 2021 by operation of the Contract (and not at the initiative of Chisholm) and therefore the application was both beyond jurisdiction and lodged out of time. On the same day, Chisholm sent Ms Drakoulis a “without prejudice” offer (Offer) to settle the matter, but this did not result in any settlement agreement being reached.
The Commissioner conducted a hearing in relation to Chisholm’s jurisdictional objections on 19 April 2022 (after having received written submissions from the parties). At the hearing, Mr Drakoulis sought to have the Offer admitted into evidence (as an attachment to a written statement made by her), but this was objected to by Chisholm on the basis that it was privileged evidence of settlement negotiations, and this objection was upheld by the Commissioner.
The decision
At the outset of his decision, the Commissioner identified that issue of the need for an extension of time to be granted had clearly been raised by Chisholm.[3] In paragraph [3] of his decision (which is referenced in ground 2 in the notice of appeal), the Commissioner said:
“[3] The Applicant contended that her application was not late. On 11 February 2022 the Respondent contended, in the alternative, that if there had been a cessation of employment it occurred on 31 December 2021 and therefore the application was out of time. In its submission on 24 March 2022 the Respondent expanded upon the out of time contention. Although being provided with every opportunity to do so, when the Applicant filed her submissions of 7 April 2022, she did not engage with the out of time issue. I am satisfied that the Applicant was put on notice about the out of time issue and had a fair opportunity to address it.”
The Commissioner noted that, in her application, Ms Drakoulis did not acknowledge that her application was filed late because she claimed that her employment ended on 24 January 2022, and he said that he would explain why her conclusion in that respect was wrong.[4] The Commissioner then described Chisholm’s jurisdictional objections,[5] the procedural course of the matter,[6] the legislative scheme and the applicable legal principles,[7] and made findings of fact which we do not understand to be controversial in the appeal.[8] The Commissioner then addressed the question of when the termination took effect, and found that the employment came to an end on 31 December 2021. The Commissioner reasoned as follows:
“[17] I reject the Applicant’s contention that the Respondent dismissed her on 24 January 2022. The Respondent took no action to end the employment relationship with the Applicant. Nothing in the email exchange that occurred on 24 January 2022 evidences an intention, on behalf of the Respondent, to end the employment relationship. The only thing that was being communicated to the Applicant, at that time, was that the Respondent was unable to offer work within the arbitrary timeframe set by the Applicant. The Applicant could point to no other evidence which would support a finding that, at any time, there was a termination of the employment relationship at the initiative of the Respondent.
[18] The Respondent says that it did not dismiss the employee and that the employment relationship continues. I also reject this contention.
[19] This is because, the better view is that the contract of employment operated in such a way as to be a ‘maximum term’ contract. By the effluxion of time, having regard to the ‘Indicative Expiry Date’ the contract of employment ceased to operate on 31 December 2021. Consistent with the expiration of the contract of employment, the Applicant’s access to her Chisholm email ceased after this date.”
The Commissioner then dealt with Ms Drakoulis’ application on the basis that it was filed after the period of 21-days allowed by s 394(2)(a) of the FW Act, and considered whether Ms Drakoulis should be allowed an extension of time under s 394(2). The Commissioner took into account, and made findings about, each of the matters specified in paragraphs (a)-(f) of s 394(3).[9] The Commissioner concluded that he was not satisfied that the s 394(3) factors, when considered in totality, demonstrated exceptional circumstances as required by s 394(3) and, accordingly, refused to grant an extension of time.[10]
Appellant’s submissions
Notwithstanding that Ms Drakoulis was directed to file written submissions concerning both the issue of permission to appeal and the merits of the appeal, the written submissions she filed were confined to the identification of the grounds upon which permission to appeal was sought. Ms Drakoulis submitted that:
the matter raises issues of importance and general application, there is a diversity of decision at first instance requiring appellate guidance, the Commissioner’s decision manifests an injustice and is attended with sufficient doubt to warrant its reconsideration, and substantial injustice would result if permission is refused;
the Commissioner’s finding that her employment came to an end on 31 December 2022 was inconsistent with the Offer, which stated that Ms Drakoulis remained employed on a casual basis, and was also contrary to Chisholm’s contention at the hearing that Ms Drakoulis had not been dismissed and that the employment relationship continued beyond 31 December 2021;
she had rejected those parts of the Offer which referred to her employment having been terminated on 31 December 2021, and the Offer was then withdrawn; and
the important issues raised by the matter are: (1) whether an “indicative expiry date” in a casual contract should be considered as the end date of the contract; (2) whether such casual contracts should operate as maximum-term contracts at the same time; (3) if the employer contends that employment relationship has not terminated but rather continues, should a determination otherwise be made; and (4) should Mr Drakoulis be “penalised” for raising inconsistent terms in the Offer.
Ms Drakoulis’ oral submissions reiterated the matters contained in her notice of appeal and her written submissions. Ms Drakoulis was invited by the Bench at the hearing to make submissions challenging the Commissioner’s finding at paragraph [17] that she was not dismissed on 24 January 2022 and that there was no evidence to support a finding that she was dismissed at any time. However, beyond reasserting her position that she was dismissed on 24 January 2022, Ms Drakoulis declined to do so and emphasised that her appeal was concerned with challenging the Commissioner’s finding in paragraph [19] that the Contract terminated by effluxion of time on 31 December 2021.
Consideration
The Commissioner’s decision is one to which s 400 of the FW Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s 400(1)). Further, appeals on a question of fact can only be made on the ground that the decision involved a significant error of fact (s 400(2)).
This test in s 400(1) a stringent one.[11] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[12] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[14] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[15]
For the reasons which follow, we do not consider that Ms Drakoulis’ appeal, even were we to uphold it on the grounds upon which it is advanced, would serve any useful purpose. Consequently, we are not satisfied that it would be in the public interest to grant permission to appeal.
As earlier stated, Ms Drakoulis’ appeal was confined to a challenge to the Commissioner’s finding that her employment relationship with Chisholm ended on 31 December 2021 by operation of the Contract. We accept that, in this narrow respect, the appeal is clearly arguable. The Commissioner relied upon the “Indicative Expiry Date” of 31 December 2021 contained in the Schedule, but the notation appearing immediately under this states that this date is only for administrative purpose, and the substantive terms of the Contract do not make any reference to this part of the Schedule or otherwise provide that the Contract or the employment would terminate on any specified date. Rather, clause 14 of the Contract governs its termination and provides, in effect, that the employment would end when Chisholm informed Ms Drakoulis that she would not be offered further hours of work or that her services were no longer required, or when Ms Drakoulis informed Chisholm that she intended to discontinue work with Chisholm. There is no evidence that any of these events occurred on or before 31 December 2021. Further, it is arguable that the conduct of the parties after 31 December 2021 evidences a mutual understanding that an employment relationship remained on foot.
However, it remains the case that, for the Commission to have jurisdiction to entertain Ms Drakoulis’ unfair dismissal application, it must be satisfied that she was dismissed within the meaning of s 386 of the FW Act. Ms Drakoulis’ application was premised on there having been a dismissal effected during the course of her email exchange with Ms Delahunty on 24 January 2022, but this was rejected by the Commissioner in paragraph [17] of the decision. As earlier stated, Ms Drakoulis’ appeal grounds and submissions did not include any contention of error in respect of the Commissioner’s finding that she was not dismissed on 24 January 2022 and, in any event, we consider that this finding was plainly correct. The email exchange demonstrates that Chisholm, far from indicating any intention to terminate Ms Drakoulis’ employment, was positively engaging with her about the provision of further work. That Chisholm was not in a position to provide a definitive confirmation that it would be able to offer work to Ms Drakoulis in 2022 within her self-imposed and arbitrary deadline of the following day is not indicative of any intention to terminate the employment relationship.
The Commissioner also found in paragraph [17] of the decision that Ms Drakoulis did not identify any evidence supporting her having been dismissed by Chisholm at any time, and again this is not challenged by Ms Drakoulis in her appeal. We agree with the Commissioner’s finding in this respect as well. We note that, even if the Commissioner was correct in finding that the employment relationship ended on 31 December 2021 because of the “Indicative Expiry Date”, this was not a termination at the initiative of the employer but rather one effected by operation of the Contract. To the extent that Ms Drakoulis contended in her appeal that the employment relationship extended beyond 31 December 2021, she did not point to anything other than the email exchange on 24 January 2022 as constituting a dismissal.
Ms Drakoulis’ reliance on the contents of the Offer in her appeal was improper, since the Offer was correctly excluded from the evidence by the Commissioner on the basis of the privilege attaching to evidence of settlement negotiations. However, the terms of the Offer as improperly disclosed to us in Ms Drakoulis’ submissions do not in any event support the proposition that she was dismissed at any time prior to her filing her unfair dismissal application.
On any view therefore, Ms Drakoulis was not dismissed by Chisholm, her unfair dismissal application was incompetent, and the Commissioner was correct to dismiss it. The appeal, taken at its highest, could only lead to the conclusion that the Commissioner should have dismissed Ms Drakoulis’ application on a different basis. The appeal therefore has no practical utility.
For completeness, we do not accept Ms Drakoulis’ contention that the appeal raises any broader question of law or principle. This is a case which turned on its own particular facts, and no general issue of importance concerning the terms of the Contract is identifiable. Nor did the decision manifest any injustice because, for the reasons stated, Ms Drakoulis’ unfair dismissal application was clearly incompetent.
Conclusion
Because we do not consider that the grant of permission to appeal would be in the public interest, s 400(1) prohibits such permission being granted. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
D Drakoulis, the appellant, in person.
D Ternovski (of counsel), for the respondent.
Hearing details:
2022.
Sydney, Melbourne and Adelaide (via video link):
6 July.
[1] [2022] FWC 895
[2] PR740460
[3] [2022] FWC 895 at [2]
[4] Ibid at [6]
[5] Ibid at [7]-[8]
[6] Ibid at [9]-[11]
[7] Ibid at [12]-[13]
[8] Ibid at [14]
[9] Ibid at [22]-[37]
[10] Ibid at [38]-[39]
[11] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed)
[12] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
[13] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27]
[14] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
[15] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
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