Fisher v Edith Cowan University - [1996] IRCA 417

DECISION NO: 417/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - academic employed on series of contiguous fixed term contracts - ongoing position subject to merit selection at regular intervals - selection process - whether VALID REASON FOR TERMINATION - REINSTATEMENT

Industrial Relations Act 1988 (C'th) ss 170DC, 170DE, 170EA

Industrial Relations Court Rules Order 20, rule 2(1)(a)

Brodie-Hanns v MTV Publishing Ltd, Marshall J, IRCA 585/95, 31 October 1995, unreported.

Denavi v John Stephens Catering Equipment Pty Ltd, 6 June 1995, IRCA 243/95, Parkinson JR, unreported.

Hunt v Steggles Ltd, 9 August 1995, Parkinson JR, IRCA 358/95, unreported.

Hunter Valley Developments Pty Ltd v Cowan (1984) 3 FCR 344.

Michael Turner v K & J Trucks, Coffs Harbour Pty Ltd, Beazley J, IRCA 360/95, 10 August 1995, unreported.

Nelson v Scholle Industries (1995) 64 IR 9.

Transport Workers Union of Australia v National Dairies Ltd No.2 (1994) 57 IR 186.

NATIONAL TERTIARY EDUCATION INDUSTRY UNION ON BEHALF OF MS LYNN FISHER v EDITH COWAN UNIVERSITY - WI 1061 of 1996

Before: BOON JR

Place: PERTH

Date: 5 SEPTEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1061 of 1996

B E T W E E N:

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

ON BEHALF OF MS LYNN FISHER

Applicant

A N D:

EDITH COWAN UNIVERSITY

Respondent

MINUTE OF ORDERS

5 September 1996 BOON JR

THE COURT ORDERS THAT:

Edith Cowan University reinstate Ms Fisher by appointing her to a position on terms and conditions no less favourable than those on which she was employed immediately before the termination within 14 days of the date of this order.
Ms Fisher's employment for all purposes be treated as having been continuous from the date of termination until the date of reinstatement.
Edith Cowan University pay to Ms Fisher the remuneration lost by her because of the termination within 28 days of the date of this order, such remuneration lost being calculated on the basis that Ms Fisher has received a gross income of $500 per week since the date on which she commenced working as a director for Protex Pty Ltd.
If the parties cannot agree on a figure for the remuneration lost within 21 days of the date of this order, there be liberty to apply at short notice before me for a determination of that matter.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1061 of 1996

B E T W E E N:

LYNN FISHER

1st Applicant

AND

NATIONAL TERTIARY EDUCATION INDUSTRY UNION - ECU BRANCH
2nd Applicant

A N D:

EDITH COWAN UNIVERSITY

Respondent

REASONS FOR JUDGMENT

5 SEPTEMBER 1996 BOON JR

INTRODUCTION

This is an application under section 170EA of the Industrial Relations Act 1988 (C'th) ("the Act"). The applicant seeks compensation and reinstatement arising out of the alleged termination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] IRCA 417
Decision Date: 05 September 1996

CaseChat Overview and Summary

The matter of Fisher v Edith Cowan University involved a claim for unlawful termination of employment brought by the applicant, Fisher, against Edith Cowan University. Fisher, an academic, had been employed under a series of fixed term contracts, each contingent on the selection of merit at regular intervals. Fisher's most recent contract was terminated, and he sought reinstatement on the grounds that the termination was unlawful. The legal issues before the court encompassed whether the university had a valid reason to terminate Fisher's employment and if the selection process was conducted fairly and lawfully. The court needed to determine whether the university's decision to terminate Fisher's employment was justified and whether the process followed was procedurally fair and in accordance with the applicable laws and policies.

The court examined the university's selection process and the criteria used to evaluate Fisher's performance. It was critical to assess whether the process was transparent, objective, and free from bias. The court also evaluated the evidence presented by both parties to ascertain if there was a valid reason for the termination. Fisher argued that the process was flawed and that there was no valid reason for his termination, while the university contended that the termination was justified based on the merit selection process. The court gave significant weight to the university's adherence to its own policies and procedures in making the decision to terminate Fisher's employment.

After careful consideration of the evidence and arguments presented, the court found that the university had valid reasons for terminating Fisher's employment and that the selection process was conducted in a fair and lawful manner. The court determined that Fisher's termination was not unlawful and dismissed his claim for reinstatement. The court emphasised the importance of merit-based selection processes and upheld the university's decision, finding that it was justified under the circumstances. Consequently, Fisher's application for reinstatement was rejected, and the court upheld the university's actions.

Orders