Dr Simin Maleknia v University of Sydney
[2015] FWCFB 509
•5 FEBRUARY 2015
| [2015] FWCFB 509 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
University of Sydney
(C2014/7228)
VICE PRESIDENT HATCHER | SYDNEY, 5 FEBRUARY 2015 |
Appeal against decision [2014] FWC 7773 of Senior Deputy President Drake at Sydney on 6 November 2014 in matter number U2014/5331.
[1] Dr Simin Maleknia (the Appellant) alleges that she was dismissed from her employment with the University of Sydney (the Respondent) effective from 14 February 2014. On 7 March 2014 the Appellant lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act).
[2] The Respondent, in its response to the application which it lodged on 3 April 2014, identified two jurisdictional objections to the application arising from its factual contention that the Appellant’s employment with the Respondent had in fact terminated on 31 December 2013 upon the expiration of a fixed-term contract of employment. The first was that the Appellant’s application was filed out of time. Under s.394(2) of the FW Act, an unfair dismissal remedy application must be made within 21 days after the dismissal took effect or within such further time as the Commission allows under s.394(3). Section 394(3) allows the Commission to allow a further period for the application to be made where it is satisfied that there are “exceptional circumstances” taking into account a number of specified matters. The Respondent contended that the application was filed well outside the 21-day time limit, and there were no exceptional circumstances permitting the grant of an extension of time.
[3] The second was that the Respondent did not dismiss the Appellant. Section 386 defines when a person is dismissed for the purpose of Part 3.2 of the Act. Relevantly, s.386(2)(a) provides:
(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 ...
[4] The Respondent contended that because the Appellant’s employment terminated at the end of a fixed-term contract, she had not been dismissed.
[5] On 6 November 2014 Senior Deputy President Drake issued a decision in relation to the Respondent’s jurisdictional objection. 1 The Senior Deputy President found that the Appellant’s employment with the Respondent ended on 31 December 2013 when her contract expired, with the consequence that the application was filed after the 21-day time period. The Senior Deputy President then went on to find that she was not satisfied that there were exceptional circumstances to warrant the grant of an extension of time, and dismissed the Appellant’s application. The Appellant has appealed the Senior Deputy President’s decision and that is the matter before us.
[6] The decision subject to appeal was made under Part 3.2 - Unfair Dismissal - of the FW Act. Section 400(1) provides that permission to appeal must not be granted from such a decision unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a “significant error of fact” (s.400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 2 The Commission must not grant permission to appeal unless it considers that it is “in the public interest to do so”.
[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment 3. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 4
[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 5 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.6
[9] The facts of this matter may be summarised as follows:
(1) The Appellant was employed by the Respondent in its Faculty of Science pursuant to a fixed-term contract of employment which provided that, unless terminated earlier, the Appellant’s employment would cease on 31 December 2013.
(2) Any further offer of employment was required to be approved by Professor Hambley, the Dean of the Faculty of Science.
(3) On 18 November 2013 the Appellant’s supervisor, Dr Downard, applied for a further offer of employment to be made to the Appellant for the period 1 January 2014 to 28 February 2014 in a document headed “Further Offers of Employment or Ending Fixed-Term Employment”. This appears to be an internal administrative document by which authorisation was obtained for further offers of employment to employees on fixed-term contracts. The document contained further spaces for signatures attesting authorisation by Finance, HR, and the “Head of School/Head of Area”. A Finance officer signed the document, but the other signatures were not obtained.
(4) By letter dated 13 December 2013 addressed to the Appellant, Professor Hambley noted that her current fixed-term employment contract ended on 31 December 2013, and informed her that the Respondent was not yet in a position to determine whether it would be retaining her position and if she would be offered further employment for a further term. He also informed her that if the position was retained, it was appropriate to fill it through a merit selection process, and because no decision had been made, payment of any severance payments owing to her would be delayed until four weeks after the expiry of the fixed term, or upon notification that a further offer of employment would be made, whichever occurred first.
(5) No further offer of employment was ever made by the Respondent.
(6) The Respondent did not cancel the Appellant’s accesses to its premises and computer system after 31 December 2013. The Appellant continued to attend the Respondent’s premises after 31 December 2013 and continued to perform work which, pursuant to a direction of Dr Downard, she had been performing before that date.
(7) By letter dated 17 January 2014 addressed to the Appellant, Professor Hambley asserted that the Respondent had complied with the notice requirements in relation to the non-renewal of the Appellant’s employment, and rejected the proposition that any decision not to renew her contract would also amount to retributive action. He also identified evidence from which he said it could reasonably be inferred that there was a personal and/or financial relationship between the Appellant and Dr Downard. He indicated that he had formed a preliminary view that he would not offer her a further period of employment, but invited her to respond to the matters he had raised before he made a final decision.
(8) By letter dated 5 February 2014 addressed to the Respondent, solicitors acting for the Appellant made a number of allegations including that the Respondent had been “obstructing the extension of our client’s current appointment for a two month period requested in November 2013” and demanded, among other things, that the Respondent “should immediately approve the two month extension to our client’s employment ...”.
(9) The Respondent paid the Appellant’s accrued and untaken leave entitlements on 6 February 2014.
(10) By letter dated 13 February 2014 addressed to the Respondent, solicitors acting for the Appellant contended that payment of her severance pay was overdue, and claimed its immediate payment plus interest. The letter also stated: “Should our client’s position be extended for two months as was requested back in November 2013, she will be entitled to additional severance payments at the conclusion of the employment extension”.
(11) By letter dated 14 February 2014, the Respondent informed the Appellant’s solicitors that, among other things, a further term of employment would not be offered to the Appellant and that the Respondent had formed the view that there were no severance payments owing to her.
(12) The Appellant did not purport to perform any further work after 14 February 2014.
(13) The Respondent did not pay the Appellant any salary for any period after 31 December 2013.
[10] In her decision, the Deputy President stated the following findings and conclusions:
“[10] The failure of the Human Relations Department to cancel Dr Maleknia’s access card and computer access, the fact that she was seen on campus by the school’s manager and HR administrators and that she might have been seen by any other number of persons in January and February 2014, does not persuade me that Dr Maleknia’s employment continued past 31 December 2013. Any number of people could have seen Dr Maleknia. It would not have been their business to enquire and resolve what she might or might not be doing on campus. She could have been emptying her office or attending to any number of tasks consequent upon her cessation of employment. If Professor Hambley had seen her he would not have formed any view about the continuation of her employment because he would not have recognised her.
[11] I do not have to decide this issue but it may well have been the responsibility of Dr Downard to bring an end to this attendance on the campus, since he was aware that her employment had not been continued by USYD despite his request that it do so. Again, Professor Downard was not called to give evidence.
[12] I am satisfied and find that the attendance of Dr Maleknia at USYD was a wilful exercise engaged in by her to bring about a situation which could be interpreted as a continuation of her employment contract. The continuation of an employment relationship cannot be unilaterally imposed by one party on another. By attending the campus without Professor Hambley’s knowledge, Dr Maleknia could not impose an employment relationship on USYD which it had already brought to an end by the proper application of the contractual arrangements between it and Dr Maleknia.
[13] I have not dealt with the allegation of possible bias of Professor Hambley against Dr Maleknia and possibly Professor Downard. I do not consider that the resolution of that issue would have assisted in my determination of the factual matters before me.
[14] I am not persuaded that a possible breach of the relevant enterprise agreement provisions regarding notice affected the effective date of termination of Dr Maleknia’s employment.
[15] I am satisfied and find that Dr Maleknia’s employment with USYD ended on 31 December 2013 when her contract expired.”
[11] The Appellant’s notice of appeal and submissions have raised a large range of matters concerning the proceedings before the Senior Deputy President in an attempt to demonstrate appellable error and a basis upon which permission to appeal should be granted in the public interest. We do not consider it necessary to canvass all the matters raised by the Appellant, since in large part we consider that they are irrelevant to the issue determined by the Senior Deputy President, namely the date of the termination of the Appellant’s employment. We also consider that on facts as earlier stated (which were either not in dispute or incontrovertibly established by the evidence), the conclusion reached by the Senior Deputy President was clearly correct. Under the Appellant’s contract of employment, the term of her employment ended on 31 December 2013, and there was no evidence to support the proposition that the Respondent entered into any further contract for employment after that date.
[12] We will however briefly deal with some of the main points raised by the Appellant in her submissions. Firstly, the Appellant contended that the document of 18 November 2013 constituted an “executed” extension of her employment term. We reject this. As earlier stated, it is apparent that the document was an internal administrative one by which approval was sought by Dr Downard for an offer of further employment to be made to the Appellant. The necessary authorisations were not obtained, and no further offer was ever made.
[13] Secondly, the Appellant submitted that Professor Hambley should not have made the decision not to renew her contract because he was subject to a conflict of interest, and that the circumstances of that non-renewal constituted a breach of the University of Sydney Enterprise Agreement 2009-2012. As the Senior Deputy President correctly concluded, these contentions were irrelevant to the issue since, even if accepted, they could not lead to a conclusion that a further contract of employment had ever been entered into with the Appellant.
[14] Thirdly, the Appellant made various allegations of bias (whether actual or apprehended was not made clear) against the Commission members who dealt with her matter. She contended that Deputy President Booth, who originally was allocated her matter, was biased because of her late disclosure of an association with the Respondent. This could not be relevant because the Deputy President recused herself from the matter and played no part in the decision under appeal. The Appellant also submitted that the Senior Deputy President was biased because of two interventions she made during the course of the hearing. We have examined the transcript of the relevant parts of the hearing. The interventions were entirely innocuous and provide no support whatsoever for a contention of apprehended or actual bias. We note that the Appellant, who was legally represented at first instance, never made any disqualification application on the basis of actual or apprehended bias on the part of the Senior Deputy President.
[15] Fourthly, the Appellant relied on difficulties she had in having the Respondent produce certain documents she requested for the purpose of the hearing. It appears that her application for an order for production of documents was, on the first attempt granted but with the order subsequently being set aside, on the second attempt refused, and on the third attempt granted. This, contended the Appellant, was a further indication of bias. The Appellant further complained that the documents eventually produced were not all that she expected to receive and that, because the documents were only produced a few days before the hearing and she was denied an adjournment of the hearing, she did not have a proper opportunity to examine them. We detect nothing of substance in this. The Appellant characterised the documents sought, which were communications internal to the Respondent, as significant because they went to the motives of the Respondent in not renewing her contract. However, the motives of the Respondent were irrelevant to the task of identifying the date the Appellant’s employment ended.
[16] Fifthly, the Appellant contended that the Respondent’s representatives had breached the Solicitors Rules and had generally acted unethically. Nothing was identified that supported this contention. The Appellant appears to regard the adduction of any evidence or the making of any submission with which she disagrees as an unethical act.
[17] Sixthly, the Appellant submitted that the Senior Deputy President erred in removing from evidence a witness statement made by Dr Downard. However, once the sequence of events by which this came about is understood, it is clear that there was no error. The statement was initially tendered by the Appellant, without the Respondent having had prior notice of it, and was marked as an exhibit. After having had an opportunity to properly peruse the statement, the Respondent required Dr Downard to attend for cross-examination. The Appellant’s counsel stated that Dr Downard was not available for cross-examination, but was unable to provide the Senior Deputy President with a reason for this. He eventually told the Senior Deputy President that the Appellant no longer relied upon the statement, whereupon the Senior Deputy President removed the statement from the evidence and returned it to the Appellant. That was an entirely normal course to take. The Appellant is bound by the conduct of her counsel, although in the circumstances it appears to us that her counsel’s withdrawal of reliance upon the statement was entirely appropriate.
[18] Seventhly, the Appellant submitted that permission to appeal should be granted in the public interest because the Respondent is a publicly funded institution. There is no substance in this submission. Many employer parties to appeals before this Commission are publicly funded, but that has never been regarded as a reason by itself to grant permission to appeal. The appellant also argued that the public interest was attracted because there was a “diversity of decisions” in that the advice she had received from her various legal advisors as to the date of the termination of employment was different to the position taken by the Respondent and the outcome determined by the Senior Deputy President. This submission is misconceived, since the reference to “diversity of decisions” in the passage from GlaxoSmithKline quoted in paragraph [7] above means a diversity in different first instance decisions of this Commission (and its statutory predecessors). No diversity of this nature was identified.
[19] The Appellant’s notice of appeal and submissions, as we understand them, only challenged the Senior Deputy President’s determination of the date of the termination of employment, and did not in the alternative challenge the refusal to extend time. For completeness, we cannot identify any error in the Senior Deputy President’s refusal to extend time. All the matters identified in s.394(3) were taken into account, and the conclusion reached was one that was reasonably available.
[20] No arguable case of appealable error has been demonstrated by the Appellant, and no other basis upon which the public interest is attracted has been identified. We are not satisfied that it would be in the public interest to grant permission to appeal, and accordingly as required by s.400(1) permission to appeal is refused.
VICE PRESIDENT
Appearances:
S. Maleknia on her own behalf
J. Wright on behalf of the Respondent
Hearing details:
2015.
Sydney:
20 January.
1 [2014] FWC 7773
2 (2011) 192 FCR 78 at [43]
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] -[46].
4 (2010) 197 IR 266 at [27]
5 Wan v AIRC [2001] FCA 1803 at [30]
6 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
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