Dr Madelé Van Dyk v Flinders University - [2023] FWC 2301

[2023] FWC 2301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dr Madelé Van Dyk
v

Flinders University

(U2023/1956)

COMMISSIONER BISSETT

MELBOURNE, 6 OCTOBER 2023

Application for an unfair dismissal remedy – jurisdictional objection – no dismissal – employment ended at end of fixed term contract – Applicant not dismissed – application dismissed

Dr Madelé van Dyk (Applicant) has made an application to the Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which she seeks a remedy for unfair dismissal. The Applicant’s employment ended with Flinders University (the University or the Respondent) on 16 February 2023. The Applicant says that she was dismissed from her employment at the initiative of the University. The University has raised a jurisdictional objection to the application and says that the Applicant’s employment ended as her contract of employment came to an end according to the terms of the contract.

The Applicant has been associated with the University since 2010 when she commenced as a student studying for a Bachelor of Medical Science. She was awarded that degree in 2012. The Applicant then completed her honours degree in 2013 and, the following year, was offered a PhD in the Department of Clinical Pharmacology which she commenced in March 2014. It appears that the Applicant completed her PhD in late 2018.

In late 2019 the Applicant was awarded a grant though the South Australian Government and Cancer Council administered by the South Australian Health and Medical Research Institute (the ‘Beat Cancer Early Career Cancer Research Fellowship’ (ECR Fellowship)). The value of the grant was $80,000.00 each year for three years and was conditional on the Applicant receiving ‘matched monies’ from the funding partner outlined in her grant application. Such matched monies were provided through the University. The ECR Fellowship commenced in 2020. In November and December 2022 the Applicant became aware that her ECR Fellowship was extended until 31 July 2023.

During the period of the ECR Fellowship and until 16 February 2023 the Applicant was employed by the University pursuant to a fixed term contract in the position of ‘Early Career Research Fellow’ (the ECRF contract). The purpose of the grant and matched monies was to fund the Applicant’s salary under the ECRF contract. However, the Applicant’s contract was a separate matter to the ECR Fellowship, and consequently was not automatically extended by the extension of the ECR Fellowship period.

The Applicant says that she had an expectation that she would continue employment beyond 16 February 2023, in part because she had commitments to supervising students, she had ongoing project commitments and she had been awarded further research grants.

THE TERMINATION

The Applicant says that she did not leave her employment voluntarily. Rather, she submits that the main contributing factor which resulted principally or consequently in the termination of her employment was the reasoning and decision of Professor Jonathan Craig, Vice President and Executive Dean of the University. To this extent the Applicant submits that Professor Craig was the decision maker in deciding not to renew her contract and this amounted to a dismissal for the purposes of s.386(1)(a) of the FW Act.

The University says that the employment of the Applicant ended by the expiration of her contract at the end of its fixed term period. The University says that the contract was clear on its terms and was a genuine agreement. The University says that:

i.    It employed the Applicant in the position of Early Career Research Fellow under a maximum term contract[1] issued on 7 February 2020 which specified a commencement date of 17 February 2020 and expired on 16 February 2023, with capacity for early termination subject to certain conditions;
ii.   There was no guarantee under the contract or otherwise that any further contract of employment would be provided;
iii.    Consistent with the contract, the Applicant was employed for the maximum term under that contract, and she ceased employment at its conclusion on 16 February 2023.

The University says that the mere fact that it did not offer a new contract to the Applicant upon the expiry of the ECRF contract does not constitute a termination of employment at the initiative of the University.

Further, the University submits that the Applicant has not claimed any vitiating or other factors to impugn the integrity of the contract. It follows, it submits, that there is no basis to challenge the contract, through the effluxion of time, bringing the Applicant’s employment to an end.

HEARING

The application in relation to both the jurisdictional objection and the merits of the application was heard by me on 5 and 6 July 2023. Prior to the hearing both parties were granted permission to be represented by lawyers. The proceedings were conducted by way of hearing following consultation with the parties.

Other than the specific jurisdictional objection of the University there was no other barrier to the conduct of the proceedings. The dismissal was not a redundancy, the Small Business Fair Dismissal Code did not apply, the Applicant met the minimum employment period, earned less than the high income threshold, and the application was made within time.

Should the Applicant overcome the jurisdictional objection she is otherwise protected from unfair dismissal.

The Applicant filed witness statements of herself, Mr John Rava, Dr Ganessan Kichenadasse (the Applicant’s clinical supervisor) and Dr Gerd Mikus (although the evidence of Dr Mikus was not relied on).

The Respondent filed witness statements of Professor Damien Keating (the Deputy Director of Flinders Health and Medical Research Institute), Professor Jonathan Craig (Vice President and Executive Dean of the University), Dr Rebecca Keough (Manager, Flinders Health and Medical Research Institute) and Dr Jayanthi Jayakaran (Dean (People and Resources)).

THE APPLICANT’S CONTRACTS WITH THE RESPONDENT

The Applicant had been engaged by the Respondent on a number of fixed term contracts. These are as follows:

First contract
On 18 December 2017 the Applicant was offered appointment to the position of Research Officer (HEO 6) in Clinical Pharmacology in the College of Medicine and Public Health (College) at the Respondent (the first contract). The appointment was on a fixed term basis from 2 January 2018 until 31 December 2018 or until such time as the grant is unable to fund the position, whichever is the earlier.

The contract of employment relevantly stated that the ‘fixed-term appointment does not carry any entitlement to further employment and that, if it was required beyond 31 December 2018, it would be advertised on a competitive basis.’
The fixed term appointment was established in accordance with clause 2.1 of Schedule 9 of the prevailing Enterprise Agreement.[2]
First contract extension
On 7 November 2018 the first contract was extended for one year to end on 31 December 2019.

Second contract
On 5 March 2019 the Applicant was offered appointment to the position of Research Associate (Research Academic Level A) in the College. The position reported to Associate Professor Andrew Rowland who would be the Applicant’s supervisor ‘for all purposes’.

The contract relevantly stated that the appointment was on a fixed term basis with effect from 18 March 2019 to 17 March 2020 or until such time as the external funding for the role is ‘exhausted or unable to sustain the position’. The appointment did not carry any entitlement to further employment.

The fixed term appointment was established in accordance with clause 2.1 of Schedule 9 of the prevailing Enterprise Agreement.[3]
Third contract (the ECRF contract)
On 7 February 2020 the Applicant was offered appointment to the position of Early Career Research Fellow (Research Academic Level B) in the College.

The contract in this instance relevantly stated that:
·The appointment is available on a fixed term basis from 17 February 2020 to 16 February 2023 or until such time as the grant is unable to fund the position, whichever is earlier
·The Applicant was named in the grant that supported the position and, should the grant extend beyond 16 February 2023, the Applicant may be offered a further period of fixed term employment. If this was the case (and the Applicant remained the named party to the grant) she would occupy the position without the need to go through a competitive process. Any such further period of employment would not go beyond the period of the grant
·The fixed term appointment was established in accordance with clause 2.1 of Schedule 9 of the prevailing Enterprise Agreement.
·The Applicant would report to the Dean (Research) of the College
·The Applicant’s duties were set out in a position description but this did not form part of her contract of employment
·In the absence of any other advice the letter of offer serves as notice that the contract will cease on 16 February 2023[4]

RELEVANT CASES

Both parties referred to the decision in Khayam v Navitas English t/a Navitas English[5] (Navitas) as containing the principles relevant to the determination of the matter before me. In Navitas the Full Bench of the Commission said:

[75] Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:
(1)The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(2)As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(3)In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.

(4)Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(5)In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:
· the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;
· the employee entered into the contract as a result of a serious mistake about its contents or subject matter;
· there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;
· the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;

· the employee lacked the legal capacity to make the contract; or
· the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).
(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).
(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).
(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher).
(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).

The University also referred to the decision of the High Court in Workpac Pty Ltd v Rossato[6] (Workpac) as relevant to the issue of whether the parties had entered into a genuine agreement in relation to the employment contract. While Workpac was decided in the context of a casual employee and whether the employee had been given a firm advance commitment to ongoing work, the High Court found that such a firm commitment was provided in the contract of employment. The plurality said, referring to the decision of the High Court in Commonwealth Bank of Australia v Barker[7]:

The employment relationship, in Australia, operates within the legal framework defined by statute and by common law principles, informing the construction and context of the contract of employment.

The University says that, while the decision in Workpac was in relation to casual employment, it is equally relevant to understanding the notion of dismissal in s.386(1)(a) of the FW Act.

In response to the Applicant’s questioning the relevance of the decision in Workpac to the matter before the Commission, the University referred to the decision in Alouani-Roby v National Rugby League Limited & Mr Bernard Sutton and Another[8] (Alouani-Roby) in which the Full Bench said:

[151] In relation to appeal ground 9, we also accept that recent decisions of the High Court have directed attention to comprehensive written contracts of employment where they exist. In Workpac v Rossato the plurality held that a court can determine the legal relationship between parties only by reference to the legal rights and obligations which constitute the relationship.[9] Further, the plurality observed:

“To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasilegislative judgement as to the just settlement of an industrial dispute has been emphatically the case in Australia at the Federal level since the Boilermakers Case.

To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce ‘something more than an expectation’ but less than a contractual obligation.”[10]

[152] We agree with the Respondent’s submissions to the effect that it was entirely appropriate for the Deputy President to have considered the decision of the High Court in Workpac v Rossato, given that it concerns the function of courts with respect to legal obligations under contracts. The approach to that task as elucidated by the High Court has relevance in the present case. As we have stated, the Commission is not free to simply wave the application through on the basis that it would be unfair to deny the Appellant the right to advance a claim predicated on his employment being terminated on the initiative of the employer, when this is not the case. The Appellant cannot make the application unless he has been dismissed and it is no part of the Commission’s role to allow an application to proceed to a court if it is not satisfied that prerequisite has not been met. We are also of the view that the decision in Workpac v Rossato underscores the analysis of matters in principle 5 of the decision in Khayam v Navitas. While the Full Bench in that case did not exhaustively identify all matters relevant to the analysis of whether it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time, the decision in Workpac v Rossato indicates that such matters should relate to established contractual principles rather than amorphous assertions of unfairness.

[footnotes in original, underlining added]

LEGISLATION

Section 386 of the FW Act states:

Meaning of dismissed

(1)A person has been dismissed if:

(a)the person's employment with his or her employer has been terminated on the employer's initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2)However, a person has not been dismissed if:

(a)the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b)the person was an employee:

(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c)the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3)Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

The University claims that the Applicant was employed under a contract of employment for a specified time and her employment was terminated at the expiration of that period. It follows that, if this is the case, the Applicant was not dismissed and therefore cannot have been unfairly dismissed.

Further, the University submits that, contrary to the submissions of the Applicant, her employment was not terminated at the University’s initiative.

SUBMISSIONS OF THE PARTIES

Submissions of the Applicant

The Applicant accepts that the ECRF contract expired by the effluxion of time however she distinguishes this from the employment relationship and submits that both parties intended for that to continue. The Applicant says that the University engaged in representations during her employment which indicated the employment relationship would continue beyond 16 February 2023. Further, she says that the principal contributing factor that caused the end of the relationship was the University’s decision not to renew her contract, therefore dismissing her within the meaning of the FW Act.

In particular, and relying on the principles enunciated in Navitas, the Applicant says there are four matters that are relevant to the determination of whether she was dismissed from her employment at the initiative of the employer or whether her employment ended due to the end of the contract period.

The four matters are:

i.    That she had a series of contracts of employment with the University and a reasonable expectation that the employment would continue
ii.   That she was promised, by inference, a continuation of her employment at a meeting on 21 December 2022
iii.    That she had sufficient funding to complete her research
iv.    That the principal factor that led to the termination of her employment was the reasons for ‘dismissal’ provided by Professor Craig - the Applicant did not voluntarily leave her employment

A series of employment contracts and a reasonable expectation that her employment would continue

The Applicant says that the series of employment contracts she worked under (see paragraph [15] above) demonstrate that she was employed on a number of fixed term contracts that were, in fact continuous (and did, in fact, overlap). She therefore was continuously employed by the University from January 2018 until her employment was terminated on 16 February 2023. The Applicant submits that, consequently, she had a reasonable expectation of continued employment with the University.

Further the Applicant took on supervising a series of PhD students and the extra work this entailed. She also put time and effort into applying for grants and says she did this because the ‘reward is continuing employment.’[11]

The Applicant also submits that she has displayed loyalty to the University, rejecting offers to undertake her PhD studies on scholarships outside the University.

The Applicant submits that these matters bring her dismissal within the principles in Navitas that it is the termination of the employment relationship and not the termination of the contract of employment in place immediately prior to the cessation of employment that is the relevant consideration to analyse whether there has been a termination at the initiative of the employer.[12]

Promise by inference of a continuation of employment

The Applicant submits that, by the conduct of the University, she was promised, by inference, a continuation of employment. This inference was reasonably drawn from the meeting attended by the Applicant with Professor Eastwood and Professor Keating on 21 December 2022. The Applicant submits that, given what was (and was not) said at that meeting, she had reasonable grounds to leave the meeting believing that she would have continuing employment until at least 31 July 2023. Further, the Applicant says that the onus is on the University to show how it could be that she could not have reached the conclusion she did following the meeting. In these circumstances the Applicant submits that the University is estopped from claiming that the employment relationship came to an end by virtue of the employment contract coming to an end.

The Applicant also submits that I should draw a Jones v Dunkel[13] inference from the failure of the University to call Professor Eastwood as a witness. For this reason she submits that I am better able to accept her evidence and, ‘at the very least [infer] that the employment relationship was to be extended at least until the end of the current fellowship.’[14]

There was funding to pay for the Applicant’s position

The ECRF contract specified that the appointment was available until 16 February 2023 or until such time as the grant is unable to fund the position.

The Applicant says that she had successfully secured further grant funding that would enable her position to be funded to the end date of the extended ECR Fellowship of 31 July 2023.

The Applicant submits that, as Dr Jayakaran calculated that she would need at least $63,000.00 to fund her salary through to 31 July 2023, she clearly had sufficient funds to do so.

The Applicant relies on money she says remained from unspent grants up to the date of her termination and new money in the form of a further Beat Cancer grant of $75,000.00 (the Beat Cancer grant) and a Tour de Cure grant of $100,000.00 (the Tour de Cure grant).

The Applicant says that I should draw a Jones v Dunkel inference over the failure of the University to call any witnesses from the Research Grants and Tenders Office to provide an overview of funding and accounting of the Applicant’s available funds. She submits that I should find such evidence would be adverse to the University’s case and am better able to accept her evidence that she did have adequate funding.

In addition, the Applicant submits that the evidence of Professor Keating and, to a lesser extent, of Professor Craig, is that if a researcher has funding ‘they will be employed’.[15] Accordingly, the Applicant reasonably believed that despite the terms of the contract, if further funding was secured (as she says it was), her employment was guaranteed.

The principal factor leading to the termination of her employment were the reasons given by Professor Craig

The Applicant says that she did not voluntarily leave her employment with the University. Rather, she submits that her employment was terminated for the reasons set out in Professor Craig’s evidence.

The Applicant submits that the evidence of Professor Craig is that he determined not to renew her contract because:
·     The Applicant was not part of a broader team of multiple academics with whom she could collaborate or part of a critical mass of research academics where various members of the team can offset shortfalls in funding within the team.
·     The Applicant could not demonstrate the capacity to generate her own research income.
·     He thought the Applicant was seeking employment in perpetuity and was not aware the Applicant’s ECR fellowship ended on 31 July 2023.
·     He was not aware that, if the Applicant did not complete her research by September 2023, she would be considered to be ‘falling behind in her career’.
·     The lack of funding was only one of a number of reasons the Applicant’s employment was not extended.
·     The Applicant’s research did not have scale and impact.
·     The Applicant was not receiving Category One grants to support her research and she was therefore not suitable to continue as a researcher at the University.

The Applicant submits that the failure to renew her contract, for these reasons, constituted a dismissal pursuant to s.386(1)(a) of the FW Act.

Submissions of the University

The University says that the Applicant’s submissions that the ECRF contract did not state that the employment relationship would end on 16 February 2023, and therefore was not a genuine agreement that the employment relationship would end on that date, must be rejected. It says this because:
i.    The Applicant’s contention that it was only the appointment as an ECR Fellow that was on a fixed term basis and the contract only stated that the ‘contract’ would end on 16 February 2023 fails to take into account the totality of the contract
ii.   Had the parties not intended that the Applicant’s employment would cease on 16 February 2023 there would be no reason for the Applicant to initiate a discussion with Professor Eastwood to ‘talk about [her] contract to best understand how it [worked] given the end date’.[16] It is apparent that it was only after achieving an extension in time to the ECR Fellowship that the Applicant sought to understand any change to her employment with the University
iii.    Had the parties not agreed that the Applicant’s employment would end on 16 February 2023 there would be no reason for the Applicant to convey to Professor Eastwood that she believed she had the money to cover her wages through to 31 July 2023 or to seek to understand how to extend her employment contract[17]
iv.    The contract was not an administrative convenience but rather the University has a proper basis for the use of such contracts
v.   The University did not make representations to the Applicant or engage in conduct which could reasonably be taken to indicate to the Applicant that her employment would continue after the end of the contract:
a.   The conduct of the Applicant in seeking discussions with Professor Eastwood and Professor Keating in an effort to secure further employment establishes that she was under no misapprehension that her employment would continue past 16 February 2023
b.   That the Applicant was encouraged to apply for grants does not indicate a commitment to further employment with the University[18] and the Applicant misconstrues and mischaracterises the processes and support to research academics in their endeavours to secure grant funding
c.   The awarding of a PhD scholarship to Jason Van Leuven (whom the Applicant was supervising) by the Flinders Foundation (not the University) is not a representation to the Applicant about her employment with the University
d.   The supervision of students generally is not a representation in relation to future employment with the University
e.   In the meeting with Professor Eastwood and Professor Keating on 21 December 2022 there was no conversation of the Applicant’s employment being on a continuing basis or being extended and no assurance was given to the Applicant that she would be provided with a new contract

For these reasons the University submits that it did not dismiss the Applicant but rather, her employment ceased due to the expiration of her fixed term contract.

In reply to the final submissions of the Applicant, the University submits as follows.

Continuous employment and series of contracts

The University submits that the Applicant was employed subject to a number of unrelated fixed term contracts (paragraph [15] above). The University submits that, collectively, these contracts do not constitute a series of rolling, outer limit contracts.

The University says that the Applicant does not contend that the contracts and associated position descriptions as put forward by the University are wrong or did not apply to her. These contracts demonstrate the Applicant was engaged in wholly different positions, classifications and pay rates. Further, the uncontested evidence of Professor Keating is that research academic roles are ordinarily on a fixed term basis tied to the available funding.[19] For these reasons the University submits that the circumstances of this case can be distinguished from the principle at paragraph [75](5)(b) of the decision in Navitas.

The Applicant did not provide any evidence that the various positions were ‘only slightly’ different[20] or that there was any connection between the roles besides the employer.

The University says that the Applicant was not under a misapprehension that her employment was ongoing. If she did consider her employment to be ongoing she would have had no reason to seek to meet with Professor Eastwood and Professor Keating to discuss her ongoing employment on 21 December 2022, or for her to organise the ‘proper extension and the continuation of the contract’[21] and she would not have needed to assert any fixed term extension to her contract.

The University says that the Applicant was aware that her employment was subject to a fixed term contract. In her closing submissions (as to merits) the Applicant said that she ‘understood the need for continued funding for her salary’[22] and, by inference therefore knew her ongoing employment was not guaranteed.

The University submits that the Applicant’s contention that she achieved continuity of employment by way of a series of fixed term contracts should be rejected.

No representation of ongoing employment was made in the meeting of 21 December 2022

The University says that no representation was made to the Applicant in the meeting on 21 December 2022 that her contract would be extended or renewed. Further, it submits that the Applicant’s evidence as to what was said in that meeting between the Applicant, Professor Eastwood and Professor Keating should be rejected for a number of reasons.

Firstly, the University says that the Applicant’s evidence as to what Professor Eastwood purportedly said at that meeting is hearsay. The University says that the submissions of the Applicant that an adverse inference should be drawn from the failure to call Professor Eastwood should be rejected. Professor Eastwood was travelling on a boat without internet access at the time originally scheduled for the hearing, his absence is therefore explained and a failure to call him should therefore not be viewed adversely given the reasonable explanation for his absence.

Secondly, The University says there is no basis for the contention that Professor Eastwood was aware in any way that the Applicant had been awarded the Beat Cancer grant or the Tour de Cure grant except for the representations of the Applicant. Emails in relation to the award of the Beat Cancer grant and information about the Tour de Cure grant were sent to the Applicant but not Professor Eastwood (and, in any event, neither email said what the grant money could be used for). There is no evidence the Applicant provided these emails to Professor Eastwood. In addition, the evidence of Dr Keough was that no funding agreement in relation to the Beat Cancer grant had been entered into by the University and there was no funding agreement in relation to the Tour de Cure grant and the funding notification did not guarantee the funding.

The Applicant did not contest the evidence of Professor Keating as to the business record in relation to grants awarded and that report does not contain any information in relation to the Beat Cancer grant or Tour de Cure grant. Further, the undated handwritten notes the Applicant says she made at the meeting on 21 December 2022[23] are ‘extremely rudimentary’ and do not corroborate that the grants were confirmed.

In these circumstances there is no proper explanation as to how Professor Eastwood would have become aware of the grants absent the Applicant advising him at the meeting on 21 December 2022. Even if Professor Eastwood did say words to the effect that the grants ‘sort out the contract for the existing fellowship’ that cannot be taken as any representation as to her ongoing employment in the circumstances described above.

Thirdly, Professor Keating’s evidence was that no assurance or guarantee as to the extension or renewal of the ECRF contract was given to the Applicant. Professor Keating’s evidence that Professor Eastwood ‘did not tell [the Applicant] that she would not have ongoing employment’[24] is not persuasive as a representation of ongoing employment. An omission in general conversation that the Applicant would not have ongoing employment cannot be taken as a representation that she would have ongoing employment.

Fourthly, the University submits that the Applicant had poor recollection of the events leading up to the cessation of employment. For this reason her evidence of what occurred at the meeting on 21 December 2022 should not be regarded as reliable or persuasive.

The University submits that the Applicant’s evidence is, in any event, unreliable as she has a tendency to mischaracterise evidence.

For these reasons the University submits that there is no credible basis to say that any representation was made by the University to the Applicant that she would have further employment beyond the end of her contract.

Grant applications constitute a representation as to ongoing employment

It is not disputed by the University that the Applicant applied for grants. That she did so, however, is not a representation as to ongoing employment.

The Applicant’s evidence that spending time on grant application was an investment ‘and the reward is continuing employment’[25] was contested by the evidence of Professor Keating[26] and by Professor Craig.[27]

The University submits that Professor Craig’s evidence is that:

· Research academic staff are aware there is no guarantee of further employment beyond a fixed term contract and that any contract extension must be sustainable, ordinarily through the person obtaining independent grant funding[28]

· It is not reasonable that applying for grants is equivalent to representation of further employment. Grant money is typically for a fixed term and a lack of sufficient funding means research will stop[29]

· There is no guaranteed employment even with grant funding secured

· The University does everything to assist researchers but researchers know they need to secure grant funding for potential further periods of employment.[30]

Professor Keating’s evidence is that the process of applying for funding is ‘simply business as usual’ for researchers and does not constitute any guarantee of employment beyond the existing contract. Professor Keating describes continuing in a research role as an ‘extremely tenuous and cut-throat environment, especially at an early to mid-career stage’.[31]

Professor Keating acknowledged that, without further external funding for salary purposes a researcher is unlikely to secure employment, but that a grant of funding for salary does not, of itself, automatically generate an employment offer.[32]

Supervising students constituted a representation of ongoing employment

That the Applicant supervised students is not contested. Such supervision is not, however, a representation as to continuing employment and this was reflected in Professor Keating’s evidence. Further, Professor Craig’s uncontested evidence was that the Applicant’s belief that such supervision constituted a representation was incorrect.

Further, the Applicant failed to call evidence that such supervision could be construed as such a representation.

No vitiating factors

The University submits that the context within which the contract was made supports the genuine nature of the ECRF contract as a fixed term contract for the following reasons:

i.    The 2020 Beat Cancer grant referred to in the ECRF contract [see paragraph [3] above] and matched monies provided by the University was to fund the Applicant’s salary while on the ECRF contract
ii.   It was clear, on entering the ECRF contract, that the 2020 Beat Cancer grant provided the funding directly tied to the ECRF contact and the Applicant’s employment was limited to a three year period consistent with the term of the grant. It was not the case that the Applicant’s employment was funded by several grants and sources with the 2020 Beat Cancer grant as the primary source (as claimed by the Applicant). The Applicant does not claim that there was any other source of funding available at the time she commenced the ECRF contract.
iii.    The Applicant entered the contract without duress and not as a result of misrepresentation, unconscionable conduct, coercion or incapacity
iv.    The use of maximum term contracts in relation to the engagement of Research Academics is a long standing feature of the employment relationship of research Academics and the University and the Respondent has genuine operational reasons for using such contracts

Conclusion as to the jurisdictional objection

The University submits that employment was offered to the Applicant on the basis that the position was funded by a successful Beat Cancer Early Career Cancer Research Fellowship awarded to the Applicant in December 2019. That contract was clear as to its term with a clear end date to the contract of 16 February 2023.

The University submits that the Applicant has failed to establish any vitiating or other factors as identified in Navitas to impugn the fixed term contract from operating according to its term. Further, the University submits that a failure to offer a further contract is not relevant to the question of whether there was a termination at the initiative of the employer, as the decision to not offer a further contract is separate and distinct from the earlier agreement.[33]

The Respondent also submits that to accept that the Applicant’s expectations of ongoing employment had the effect of varying the actual contract would be an error. The terms of the employment relationship were comprehensively committed to writing such that any expectation of the Applicant could not vary those terms.[34]

ASSESSMENT OF EVIDENCE AND THE JONES v DUNKEL INFERENCES

There are differences between the evidence of the Applicant and witnesses called by her and the evidence of the witnesses for the University.

I have assessed the evidence of the witnesses based on their overall credibility, the relevance of their evidence to the matters I need to decide, and their willingness to make concessions, even when these are not in their obvious favour.

The evidence of the Respondent’s witnesses was given in an open and forthright manner. Each considered the questions carefully and responded openly as to what they knew or had done and what they did not know or had not done even where such an admission was not to their benefit. I found each of them credible and the evidence given reliable.

I found the evidence of the Applicant to be selective and incomplete. The Applicant was not dishonest in the evidence she gave but I am not convinced that her evidence was fulsome. The Applicant generally did not have good recall or was dismissive of the importance of those things she saw as disadvantageous to her case (for example, why she had not advised the University through the appropriate channels of her success in the Beat Cancer grant application). In addition the Applicant exaggerated matters and misrepresented communications where she thought this would advantage her case (for example, the amount of funding available). The Applicant also misquoted emails to her advantage. For example she said in her witness statement that ‘Professor Keating acknowledged [she] would be disappointed’ not to have her contract extended but that the University needed to take into account sensitivities regarding other team members.[35] In fact, the email to which she referred was about the location of her desk.[36]

For these reasons where there is a conflict in the evidence of the Applicant and the University I have generally preferred the evidence of the University over that of the Applicant.

The witness statement of Mr John Rava for the Applicant was not relevant to any matters I need to determine and is not further considered in this decision.

The evidence of Dr Ganessan Kichenadasse was, in respect of funding and grants, inaccurate and hence could not be relied on for such a purpose. I have not had regard to his evidence in this respect.

The University says that the Applicant's evidence in relation to what Professor Eastwood said in the meeting of 21 December 2022 is hearsay (and hence should not be accorded much weight). Such an assessment must also apply to Professor Keating’s evidence of the meeting. In any event, I am not prepared to disregard the evidence given of the meeting of 21 December 2022. To the extent the Applicant and Professor Keating agree on what was (or was not) said at that meeting I will accept that evidence. I will otherwise weigh the evidence of both the Applicant and Professor Keating and make findings as necessary.

I am not prepared to draw any adverse inference as to the absence of Professor Eastwood. I accept that, on the initial programming of the application Professor Eastwood was unavailable due to travel. I do not know if Professor Eastwood was remained unavailable with the re-scheduled hearing date as this was not explored but, in any event, I note that the re-scheduled hearing date was brought about by a request of the Applicant so that she might secure alternative legal representation.

Further, I am not prepared to draw an adverse inference from the failure of the Respondent to call evidence from the Research Grants and Tenders Office.[37] The Applicant, in submitting that I should draw such an adverse inference, has not indicated what critical evidence could have been given by such an (unnamed) person that was not otherwise available to the Commission. In any event I note that the Applicant asserts she had funds available. The evidence of the University is in reply to that claim.

CONSIDERATION AND FINDINGS

Several contracts and continuing employment

I am not satisfied that the variety of contracts on which the Applicant was employed at the University operated so as to constitute continuing employment. I acknowledge that the periods of those contracts overlapped. However, the evidence before me does not substantiate that the roles were all essentially the same or similar. I am not satisfied that this is a case where the Applicant was on series of fixed term contracts that were essentially ‘rolled over’.

In particular I consider that the ECRF contract was of a different species to the earlier contracts. The ECRF contract, unlike the others, was predicated on the Applicant having sought and received a grant. The ECRF contract notes that the Applicant is ‘named in the grant’ and that ‘should the grant continue beyond 16 February 2023 (and [she] remain a named party to this grant) [she] may be offered a further period of fixed-term employment.’[38] The earlier contracts do not contain any similar provision or note. Further, a review of the position descriptions associated with each contract supports the different nature of the ECR Fellowship to the earlier work undertaken by the Applicant.

My conclusion is supported by the evidence of the Applicant that, having received the ECR Fellowship she ‘was no longer working with [her] supervisor and had to work independently.’[39]

I accept that the Applicant was aware that, for her employment to continue beyond 16 February 2023, she would need to secure further funding.

Further, I am satisfied that the University had good cause to place research only academics on fixed term contracts tied to funding. To not do so could result in the University being exposed to extraordinary costs outside of its control. The use of fixed term contracts for research only academics does not appear to be an administrative convenience.

For these reasons I am satisfied that I can consider the ECRF contract alone (and not the employment relationship) in determining whether the Applicant was dismissed within the meaning of the FW Act.

Did the Applicant have funding available post 16 February 2023?

On the terms of the ECRF contract the Applicant was employed ‘until such time as the grant is unable to fund the position or 16 February 2023, whichever is earlier.’[40] The ECRF contract provided that the Applicant may be offered an extension or continuation of her appointment if the grant was extended beyond 16 February 2023.

The Applicant’s evidence is that on or about 31 December 2022 (six weeks prior to the termination of her employment) she had the following funding available for her position:

i.    $51,557.00 remaining in one of her accounts
ii.   $55,865.00 remaining in a second account (although disputes $23,481 being allocated to a PhD student)[41]
iii.    A further $75,000.00 awarded from the Beat Cancer Research Project on 16 December 2022[42]
iv.    $100,000.00 promised from the Tour de Cure.[43]

The Applicant says that the $75,000.00 and $100,000.00 were awarded for 2023 and 2024 and were ‘approved and certified by Flinders University’.[44] She says that there was further funding available through a philanthropic funding program.

The Applicant provided a copy of the email she received from the Cancer Council South Australia which said that to accept the offer of the Beat Cancer grant funding she should ‘engage with [her] administering institution’ to complete details in the funding schedule.[45] The Applicant agreed that she failed to send a copy of her application to the University as requested on 20 December 2022, despite saying she would do so in a reply email on 23 December 2022.[46]

The level of funding available to the Applicant is disputed by the Respondent.

Dr Rebecca Keough said that the University’s Research and Development Support Office (RDS Office) sought a copy of the 2022 Beat Cancer grant application made by the Applicant, but this was not submitted to the RDS Office. The Supplementary Questions associated with the grant and filed by the Applicant in these proceedings[47] had also not been sighted by the RDS Office.

In the Supplementary Questions the Applicant answered a question with respect to leveraging funding by saying that this ‘Cancer Council project will be co-funded by Flinders University in the exact same way as CIA’s current ECR Beat Cancer project ending December 2022’.[48] Professor Craig said to the contrary, that the University had not approved any co-funding of the grant.[49] Further, Professor Keating said the Applicant was advised on 21 December 2022 that there was no funding available from the University.

Professor Keating said that he had not sighted a copy of the Beat Cancer funding agreement the Applicant said she secured for 2023 so cannot say whether it could be used for salary purposes. Further, he said that the congratulatory email received by the Applicant for her project having been selected by the Tour de Cure Grants Committee does not specify the amount that might be awarded but rather says it would be up to $100,000.00 with the funds to flow after the South Australia Discovery Tour in mid-2023. Professor Keating said that the email is not a funding agreement with the University and contains no information of how the funding, when it is provided, could be used.

Dr Jayanthi Jayakaran gave evidence that, after some investigation by her, she determined that there was no awarded Tour de Cure grant, and while the Beat Cancer grant had been awarded to the Applicant there was no agreement in place with the funder. The University was waiting on the Applicant to provide information needed for approval and finalisation of that grant. In addition, Dr Jayakaran said that it was not clear if the $150,000.00 or so from philanthropic donations the Applicant said she had could be used for salary purposes, although the Applicant said that previous grants received from such sources had been allocated to salary.

The evidence presented to the Commission in relation to the availability of funding for the Applicant such that her salary could be covered from 16 February 2023 to 31 July 2023 is haphazard at best. The Applicant’s assertions as to availability of funding are based on emails that only provide for what may become available (the Tour de Cure grant) and on incorrect information (that the Beat Cancer grant would receive matched funding from the University when she had not secured matched funding and where it was not available).

While it may be argued that information in relation to funding was in the control of the University, it is the Applicant who claims to have secured funding and it falls to her to produce evidence of her claim. I do note that the Applicant has had legal representation at all stages of her application’s progress through the Commission. No orders for production of material to support her claims has been sought. To suggest that an adverse inference should be drawn in such circumstances is not sustainable.

In addition, while much has been put by the Applicant and Dr Ganessan Kichenadasse (the Applicant’s clinical supervisor) with respect to grants sought, there is little or no accounting of the success of such applications or information on any restrictions on how grants received may have been expended.

I would observe that while the email relied on by the Applicant to show she had been awarded the Beat Cancer grant does not clearly show the date, the email appears to have been replicated in the University’s evidence as part of an email thread. In that thread, the date can be clearly seen as 16 December 2022.[50] I accept that, at this stage, there was still work required of the Applicant to have that grant finalised (the email says ‘to accept this offer of funding, please engage your administering institution…’ [emphasis added]). Further I accept that, in terms of discussions held with Professor Eastwood and Professor Keating on 21 December 2022, Professor Eastwood would not have been aware of that grant, the email or the attachments to the email (which were not provided to the Commission).

As for the Tour de Cure grant, while the Applicant was advised in July 2022[51] that her project had been selected for funding, that email also sets out clear limitations. Firstly the final grant amount is not known and will depend on fundraising. Second, the funds would not flow until mid-2023 (at the time, or close to the conclusion of her extended ECR Fellowship). In addition neither Professor Eastwood nor the RDS Office was aware of the grant. For these reasons it cannot be said that the Applicant had secured the Tour de Cure grant.

Ultimately, whether the Applicant had money available to fund her salary to complete the ECR Fellowship is not a determinative factor as to whether her employment ended through the effluxion of time or whether she was dismissed on the initiative of the University. It is enough to note, at this point, that the existence of funding was necessary, but not enough, to guarantee an extension, or a further contract, of employment with the University.

Representations of ongoing employment

On 7 December 2022 the Applicant was scheduled to meet with Professor Eastwood. She says she initiated the meeting to ‘talk about [her] contract to best understand how it works given the end date’ but the meeting was cancelled by Professor Eastwood on 5 December 2022. After several attempts to have the meeting re-scheduled the Applicant met with Professor Eastwood on 21 December 2022.

To the extent the Applicant submits that ‘the very reason for the meeting was to discuss her ongoing employment’ there is nothing in the evidence, including the email from Professor Eastwood in which he advised the meeting needed to be postponed,[52] to support such a contention, nor that the Applicant had arranged the meeting.

The meeting was attended by the Applicant, Professor Eastwood and Professor Keating (in his role as her supervisor). The Applicant says that she was congratulated on having received the Beat Cancer grant but was told by Professor Eastwood that the grant would not be matched by the University. The Applicant says that she told Professor Eastwood that her ECR Fellowship had been extended to which he ‘mentioned, “that sorts out the contract for the existing fellowship then.”’[53]

The Applicant says that she advised Professor Eastwood that the Beat Cancer grant and the Tour de Cure grant could both be used for salary purposes. She says that Professor Eastwood did not know what she needed to do about the contract extension.

The Applicant submits that, based on the evidence of Professor Keating, Professor Eastwood did not tell the Applicant that she would not have ongoing employment.[54]

Professor Keating said he met briefly with the Applicant on 20 December 2022. This meeting was initiated by the Applicant as she wanted to talk to him about the purpose of the meeting with Professor Eastwood scheduled for the next day. Professor Keating said that he gave the Applicant the ‘heads up’ that the College could not support her salary into the future. Professor Keating said he cannot recall details of any grant funding discussed by the Applicant in the meeting of 20 December 2022 but said he did not provide any guarantee or assurance to the Applicant that she would be provided with an ongoing or further limited term contract. Further he said that no such representation was made by him or Professor Eastwood at the meeting on 21 December 2022.

Professor Keating said that both he and Professor Eastwood took at face value what the Applicant said in relation to grant funding she had secured and that they, otherwise, had no way of knowing whether such funding was successful or not or whether it could be used for salary purposes.

In his witness statement Professor Keating said of the meeting on 21 December 2022:

I do not agree that either I or Professor Eastwood provided any indication in that meeting that she could use the ‘Beat Cancer Grant monies to fund her salary’ (this is the phrase she uses in her Application at clause 9 of section 3.2). Neither I nor Professor Eastwood discussed any ‘Beat Cancer Grant monies’ on that occasion or whether this grant was to be used to fund her salary. I do not know exactly what Dr Van Dyk means in relation to that phrase and if she is referring to an existing grant she had or something different. But in any event, what we did try to emphasise was that we were aware that her employment in the Position had an end date. We encouraged her to search for new funding opportunities for salary costs if she wanted further employment opportunities to conduct research at the College of Medicine and Public Health.[55]
I do not agree that Professor Eastwood and I provided reassurances to Dr Van Dyk that she would have her employment contract extended. Those conversations did not happen. There was no assurance or guarantee given to Dr Van Dyk at the 21 December 2022 meeting that the College would provide her with a new limited contract for further research.[56]

During cross examination the following exchange took place between the Applicant’s representative and Professor Keating:

And from your evidence you said that no representations were made regarding future ongoing employment, but to put it the other way, did Professor Eastwood tell the applicant, that is Dr van Dyk, at that meeting, that she would not have continuing employment in 2023? - Peter did not tell Dr van Dyk that she would not have ongoing employment.[57]

The Applicant provided her ‘notes’ of the meeting of 21 December 2022.[58] The difficulty with these notes is that, in the state they are presented, it is not apparent – beyond the statement of the Applicant – that they were taken on 21 December 2022 or that the slant the Applicant puts on them in support of her evidence is what occurred. In circumstances where there is conflicting evidence of the meeting from Professor Keating and where I have found that, where there is a conflict in evidence I prefer the evidence of the University’s witnesses, I am not satisfied that I can rely on what the Applicant says the notes mean. It is not otherwise possible to draw any conclusions from the notes.

I accept that Professor Eastwood did not say, in that meeting, that the Applicant’s employment would not continue. However, the absence of this statement does not make the contrary statement or contention true. That is, that the Applicant was not told her employment would not continue does not allow an inference to be drawn that her employment would continue. In any event I am cognisant of the entirety of the evidence of Professor Keating, which I have accepted.

The evidence before me does not support a conclusion that there was any representation to the Applicant that her employment would continue beyond 16 February 2023. In coming to my conclusion I consider that evidence of what did occur is more reliable than an inference I am asked to draw from what was did not occur or was not said.

Further, at no stage in her evidence did the Applicant say that she was told that securing funding sorted out her ongoing employment. The best that can be taken from the evidence of the Applicant is that Professor Eastwood congratulated her on securing an extension to the ECR Fellowship period (giving her a further five months in which to complete the Fellowship) not that it constituted an extension of her employment contract. This much was also clear from the ECRF contract signed by the Applicant in 2020.

In addition, I do not consider that Attachments 8A and 8B (the emails in relation to the Beat Cancer grant and Tour de Cure grant) to the Applicant’s witness statement to be a representation from the University as to ongoing employment should she secure funding.[59]

For these reasons I cannot conclude that the Applicant was told at any stage that securing funding would ‘have resulted in an offer of a continuation of employment’ as put in her evidence.

The Applicant’s supervision of students

During the period of her ECR Fellowship the Applicant was responsible for supervising a number of PhD students. Some of these had completed their studies at the time the Applicant’s employment came to an end while others were still studying.

Professor Craig said that the supervision of students is not a representation of ongoing employment. Further, he said it is not unusual for fixed term contracts to come to an end and for employees of the College and students being supervised to then be allocated to alternative supervisors.

I do not accept that the supervision of PhD students amounted to a representation that the Applicant’s employment would continue beyond 16 February 2023. I accept the evidence of Professor Craig in this respect.

While it was not a matter on which a determination is necessary or canvassed at the hearing, I hope that PhD students are advised that their preferred supervisor is on a limited contract such that the student is aware that they may have to change supervisor mid-course. To do otherwise would be a disservice to PhD candidates.

Making further grant applications

The Applicant’s evidence is that the ‘reward [for writing (and succeeding in) grant applications] is continued employment.’[60]

I do not accept that the encouragement of the Applicant to make further grant applications was, in some way, a representation that her employment would continue beyond 16 February 2023.

I accept the evidence of Professor Keating that the making of grant applications is part of the life of a research academic. I also accept that grant funding often attaches to the academic and not the institution at which the research is being undertaken at a particular time.

I accept the evidence of Professor Craig that the encouragement of a researcher to apply for grants, write grant applications or have grants approved is not a representation to the researcher of ongoing employment. Professor Craig said that typically research grants are for a fixed term and, if no further grant is made to continue research, the research will stop.

The ECR Fellowship position occupied by the Applicant clearly existed by virtue of the funding provided to it. The ECRF contract made clear that the position would end when the grant funding ended. The grant referred to in the contract was the 2020 Beat Cancer grant. It was for a finite amount and a finite period. It is clear from the ECRF contract that the appointment would be until that funding ended or 16 February 2023, whichever was earlier.

For these reasons I do not find that the ‘reward’ for achieving grant funding was continuing employment or that such a representation was made to the Applicant. Although I acknowledge that employment would not be possible without grant funding, it is not accurate to say that the securing of grant funding guarantees employment.

Are there other vitiating factors?

I am satisfied, based on the evidence before me, that there are no factors which vitiate the time-limited nature of the ECRF contract.

The evidence does not support a conclusion that the Applicant entered into the contract as a result of misrepresentation, through some serious mistake as to its content or subject matter, through unconscionable conduct, under duress or coercion, due to a lack of legal capacity or that the contract is a sham.

I am not satisfied, based on the evidence before me, that the ECRF contract was illegal or contrary to public policy. Further, I am satisfied that contracts of this nature are common in the academic research field. This view should not be taken as to any preference as to how researchers can or should be employed and in an ideal world they would not be subject to the search for grant money to support their research. Unfortunately this is not the case.

I am satisfied, based on the evidence before me, particularly that of Professor Eastwood, that the use of contracts of a time-limited nature is not a mere administrative convenience for the University but reflects the time-limited nature of funding available.

I do not consider any vitiating factor to exist.

The actions of Professor Craig

The Applicant submits that it was the actions of Professor Craig that brought her employment to an end.

I firstly note the principle in Navitas that:

Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date.[61]
[emphasis added]

I observe that most of the matters raised by the Applicant as evidencing that it was the decision of Professor Craig that brought the employment to an end are, in my view, reasons why she was not offered a further contract.

Professor Craig was clear on the matters he considered, including the lack of a sustainable research trajectory, the lack of a critical team size and a lower level than expected in her research output.[62] These matters clearly informed the decision to not offer further employment and are highly relevant to that decision but this does not overrule the ECRF contract and its terms. The actions of Professor Craig are relevant only if I find the Applicant’s employment did not end by the effluxion of time.

CONCLUSION

For the reasons given above I am satisfied that the Applicant was engaged on a genuine, time-limited contract. I do not consider that the wording of the contract is unclear when all the circumstances are taken into account. The employment of the Applicant was not to continue after 16 February 2023. On that date, absent any further contract of employment, the employment relationship between the Applicant and the University would come to an end due to the effluxion of time.

Having reached this conclusion I am not satisfied that the Applicant was dismissed at the initiative of the employer and therefore has not been dismissed within the meaning of the FW Act.

The Applicant is therefore not protected from unfair dismissal and her application for a remedy for unfair dismissal must be dismissed.

COMMISSIONER

Appearances:

P Mullally of Workclaims Australia for the applicant
M Harvey of Minter Ellison for the respondent.

Hearing details:

2023.
Adelaide:
July 5, 6.

Final written submissions:

Applicant, 18 August 2023
Respondent, 11 August 2023

[1] ‘Maximum term contract’ and ‘fixed term contract’ were used interchangeably in proceedings. This decision uses the alternating phrases in context of the submissions or evidence

[2] Court Book (CB) page 519

[3] CB page 529

[4] CB page 537

[5] SaeidKhayam v Navitas English t/a Navitas English[2017] FWCFB 5162

[6] [2021] HCA 23

[7] [2014] HCA 32

[8] [2022] FWCFB 171

[9] [2021] HCA 23 at [57]

[10] Ibid at [62]

[11] Witness statement of Madelé van Dyk [108], CB page 63

[12] See Navitas [75](1)

[13] (1959) 101 CLR 298

[14] Closing submissions of the Applicant [50].

[15] Closing submissions of the Applicant [65]

[16] Witness Statement of Madelé van Dyk [87]

[17] Witness Statement of Madelé van Dyk [95]

[18] Witness Statement of Jonathan Craig [27]

[19] First Witness Statement of Damien Keating [20], CB page 512

[20] Closing submissions of the Applicant [29]

[21] Witness Statement of Madelé van Dyk [95], CB page 59

[22] Closing submissions of the Applicant [126]

[23] Witness Statement of Madelé van Dyk, Annexure 8B, CB page 106

[24] Transcript PN850

[25] Witness Statement of Madelé van Dyk [108] CB page 63

[26] Second Witness Statement of Damien Keating [4] CB page 1083

[27] Witness Statement of Jonathan Craig [8], [9], [26]-[28] CB pages 691, 694, 695

[28] Witness Statement of Jonathan Craig [8] CB page 691

[29] Witness Statement of Jonathan Craig [28] CB page 695

[30] Witness Statement of Jonathan Craig [29] CB page 695

[31] Second Witness Statement of Damien Keating [4](c), CB page 1083

[32] Second Witness Statement of Damien Keating [4](e)(f), CB page 1084

[33] See Navitas at [75](4) and Aloini-Roby at [152]

[34] See Workpac at [63]

[35] Witness Statement of Madelé van Dyk [131] CB page 66

[36] CB page 550

[37] Closing submissions of the Applicant [62]

[38] CB page 537

[39] Witness statement of Madelé van Dyk [43], CB page 53

[40] CB page 537

[41] Witness Statement of Madelé van Dyk [59]-[60], CB page 55

[42] CB page 869

[43] Witness Statement of Madelé van Dyk [4], CB page 48-49

[44] Witness statement of Madelé van Dyk [79], CB page 57

[45] Witness statement of Madelé van Dyk, Annexure 8A, CB page 95

[46] Witness statement of Jayanthi Jayakaran, Annexure JJ-10, CB page 860

[47] Witness Statement of Madelé van Dyk attachment 8AAA, CB page 97

[48] See Witness Statement of Madelé van Dyk attachment 8AAA, CB page 101 (last paragraph)

[49] Transcript PN617-618

[50] Witness statement of Madelé van Dyk, attachment 8A, see numerals in top right-hand corner which are suggestive of a date, CB page 95 and Witness Statement of Jayanthi Jayakaran, Annexure JJ-10, CB page 861

[51] Witness statement of Madelé van Dyk, attachment 8B, CB page 106

[52] Witness statement of Madelé van Dyk, Attachment 12, CB page 112

[53] Witness statement of Madelé van Dyk [94], CB page 59

[54] See evidence of Damien Keating, Transcript PN850

[55] Witness Statement of Damien Keating [38], CB pages 514-515

[56] Second Witness Statement of Damien Keating [9](d), CB page 1088

[57] Transcript PN850

[58] Witness Statement of Madelé van Dyk, Attachment 12, CB page 113

[59] Witness Statement of Madelé van Dyk [79] and Attachments 8A and 8B, CB pages 57, 95 and 96

[60] Witness Statement of Madelé van Dyk [108], CB page 63

[61] Navitas at [75](4)

[62] Transcript PN576

Printed by authority of the Commonwealth Government Printer