Fisher v Edith Cowan University (No 2)

[1997] IRCA 98

DECISION NO:98/97

CATCHWORDS

INDUSTRIAL LAW - termination of employment - fixed term contract - claim under Div 3, Pt VIA of the Industrial Relations Act 1988, that termination was without valid reason - whether the employee validly excluded from the protection of Div 3 - whether termination of employment at the expiration of a fixed term contract can be termination at the employer's initiative - whether it was open on the facts for the review judge to find that the termination was not at the employer's initiative, such that Div 3 would not apply.

Industrial Relations Act 1988 (now the Workplace Relations Act 1996) PtVIA Div 3 (ss170CA-170HB); ss170CA, 170DE, 170CB, 170CC, 170DC, 170DE, 170DF, 376, 377; sub-s170DE(1)

The Constitution s51(xxix)

Byrne v Australian Airlines Limited (1995) 185 CLR 410
Christie v Qantas Airways Ltd (1996) 138 ALR 19
D'Lima v Board of Management, PMH for Children (1995) 64 IR 19
Minister for Health v Ferry (1996) 65 IR 374
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
State of Victoria v Commonwealth of Australia (1996) 138 ALR 129

LYNN FISHER V EDITH COWAN UNIVERSITY
No. WI96/1453

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

IN THE INDUSTRIAL      )
RELATIONS COURT        )
OF AUSTRALIA           )
WESTERN AUSTRALIA      )
DISTRICT REGISTRY      )     NO. WI96/1453

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

B E T W E E N:             LYNN FISHER

Appellant

and

EDITH COWAN UNIVERSITY

Respondent

MINUTE OF ORDER

THE COURT:            LEE, MARSHALL, NORTH JJ

DATE OF ORDER:        2 APRIL 1997

WHERE MADE:           PERTH (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

The appeal be dismissed.

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

IN THE INDUSTRIAL      )
RELATIONS COURT        )
OF AUSTRALIA           )
WESTERN AUSTRALIA      )
DISTRICT REGISTRY      )     NO. WI96/1453

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

B E T W E E N:             LYNN FISHER

Appellant

and

EDITH COWAN UNIVERSITY

Respondent

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

REASONS FOR JUDGMENT

THE COURT:

This appeal concerns the proper construction of provisions of the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) ("the Act") and the application of those provisions to the termination of the employment of the appellant ("Ms Fisher") with the Edith Cowan University ("the University").

Ms Fisher was employed by the University on three consecutive annual contracts from 1 January 1993 until 31 December 1995 as a lecturer in Academic Dance Studies at the Western Australian Academy of Performing Arts ("the Academy"), an academy within the University.  The employment relationship commenced on 31 December 1992 when Ms Fisher accepted a written offer of employment the relevant terms of which were as follows:

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

...

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

On 1 December 1993 Ms Fisher accepted an offer of employment on similar terms "for a one year contract commencing 1 January 1994".

On 22 June 1994, the then Director of the Academy, Dr Howard wrote to Ms Fisher advising that the Academy intended to offer a further contract of one years’ duration.  The letter concluded in the following way:

"I look forward to your continued contribution to the teaching programme at the Academy."

The contracts made between Ms Fisher and the University provided for the employment to be less than full hours, namely, three days per week. On 11 August 1994, Ms Newman (Manager, Recruitment and Staffing of the University) wrote to Ms Fisher advising her that from 28 June 1994 to 25 December 1994 she would be employed for four days per week. The same correspondence advised that her conditions of employment would be “in accordance with the terms and conditions of” inter alia, two awards made under the Act.

On 27 October 1994, Ms Fisher was offered a “fixed-term, full-time contract from 1 January 1995 to 31 December 1997”.  She accepted that offer on 9 December 1994.  On 15 December 1994, Dr Gibbs, the Director of the Academy wrote to Ms Fisher in the following terms:

"Dear Lyn

Offer of Appointment

I do apologise for an error which has occurred in our own division regarding the roll over of your present contract into 1995.  A copy of a letter from Mr Frank Bates from Human Resource Management dated 24 June is appended.  In that letter it was stipulated that the contract would be rolled over for twelve months.  This was confirmed by Mr Duncan Ord when he spoke to you prior to your receiving the contract.

The contract we sent to you erroneously made an offer of three years.  I regret that this is not the correct information.  Would you please therefore sign the amended copy attached and return to us at your convenience.  Once again I apologise for the error.

May I also take this opportunity of wishing you a very happy Christmas and a prosperous and healthy New Year.  Your work for the Academy has been very much appreciated and I look forward to working with you in 1995."

An "amended" offer was signed by Ms Fisher on 13 January 1995, which provided for a "fixed-term, part-time contract from 1 January 1995 to 31 December 1995."  The offer stipulated that there was "no entitlement to continued employment beyond the completion date of the contract".

On 23 June 1995, Ms Fisher received a memorandum from Mr Ord, the Dean of the School of Dramatic Arts at the Academy.  The memorandum provided that:

"You will be aware that your one year contract will expire at the end of 1995 and it is the decision of the School to formally advertise a three year appointment now that we have had the opportunity of consolidating the Dance Department staff structure.

It is University and Academy Board policy that all positions be advertised, but obviously I strongly encourage you to apply.

The selection criteria and duties and responsibilities for the position will be prepared by August/September with the selection process being undertaken throughout October.  I will advise you when the advertisement for the position is to be placed before the public."

Ms Fisher applied for the advertised position which, in all relevant respects, was the position she had occupied for the preceding three years.  Ms Fisher was one of two applicants short-listed for the position but was not re-appointed.

Ms Fisher was advised of her lack of success by a letter dated 31 October 1995 from Dr Gibbs.  It was in the following terms:

"Dear Lynn

Thank you for participating in the interview process for the position of Lecturer in Dance (Academic Studies).

I am sorry to advise you that your application on this occasion has not been successful.  The selection panel was very impressed with the quality of your application and the supporting documentation you provided.

We see the Academy as being a growth area and are optimistic that in the not too distant future a further position would be available.  We sincerely hope that if and when that is advertised you will be  prepared to consider a further application.

We thank you once again for your interest in the Western Australian Academy of Performing Arts."

In November 1995, Ms Fisher lodged a complaint with the University that the selection process followed in respect of the position for which she had applied had been unsatisfactory.  The complaint did not alter the outcome of the process however, and on 31 December 1995 Ms Fisher's employment with the University ceased.

On 12 January 1996 Ms Fisher filed an application in this Court alleging that the University had unlawfully terminated her employment under s170DE of the Act by terminating that employment without a valid reason.

The relevant provisions of the Act appear in Div 3 of PtVIA. Part VIA is headed "Minimum Entitlements of Employees". Division 3 of PtVIA is headed "Termination of employment" and is comprised of ss170CA-170HB.

Section 170CA of the Act states that the object of Div 3 is "to give effect, or give further effect, to" the Termination of Employment Convention, 1982 ("the Convention") and the Termination of Employment Recommendation 1982 ("the Recommendation").

The Convention and the Recommendation are set out in Schedules 10 and 11 of the Act respectively. The Convention and the Recommendation were adopted on 22 June 1982 by the General Conference of the International Labour Organisation as the form of the proposals adopted by the Conference with regard to termination of employment at the initiative of an employer. In the words which adopt the Recommendation the Recommendation is expressed to be supplementary to the Convention.

Section 170CB of the Act states that an expression has the same meaning in Div 3 as in the Convention.

If, as appears to be accepted, the Recommendation is appropriate and adapted to giving effect to the terms of the Convention (see: State of Victoria v Commonwealth of Australia (1996) 138 ALR 129 at 164, 175-176) and if due regard is given to the terms of s170CA of the Act, it may be taken to be implied in s170CB of the Act, that a reference to the Convention includes the Recommendation. In the context provided by Div 3 such a construction would be appropriate if the Recommendation itself was relied upon for the exercise of the legislative power of the Commonwealth under s51(xxix) of the Constitution (see Article 31, Vienna Convention on the Law of Treaties; State of Victoria v Commonwealth of Australia at 164).

In the preamble reciting the events which led to the adoption of the Convention by the General Conference it is stated "that since the adoption of the Termination of Employment Recommendation, 1963, significant developments have occurred in the law and practice of many member States on the questions covered by that Recommendation, and...these developments have made it appropriate to adopt new international standards on the subject, particularly having regard to the serious problems in this field resulting from the economic difficulties and technological changes experienced in recent years in many countries,..."

Article 1 of the Convention imposes an obligation on a Member State to give effect to the Convention by laws or regulations but acknowledges that the provisions of the Convention may be made effective by means of collective agreements, arbitration awards or court decisions.  Paragraph 1 of the Recommendation states that a Member State may apply the provisions of the Recommendation "by national laws or regulations, collective agreements, works rules, arbitration awards or court decisions or in such other manner consistent with national practice as may be appropriate under national conditions".  By Article 3 of the Convention and para4 of the Recommendation the terms "termination" and "termination of employment" as used in each instrument mean "termination of employment at the initiative of the employer".  The meaning of that expression has been considered and explained by a Full Court of this Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 203 et seq. and it is unnecessary to restate it.

Article 2 of the Convention, in relevant respects, reads as follows:

"2.1This Convention applies to all branches of economic activity and to all employed persons.

2.2A Member may exclude the following categories of employed persons from all or some of the provisions of this Convention:

(a)workers engaged under a contract of employment for a specified period of time or a specified task;

(b)workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration;

(c)workers engaged on a casual basis for a short period.

2.3Adequate safeguards shall be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from this Convention.

..."

Paragraphs 2 and 3 of the Recommendation state:

"2(1)This Recommendation applies to all branches of economic activity and to all employed persons.

2(2)A Member may exclude the following categories of employed persons from all or some of the provisions of this Recommendation:

(a)workers engaged under a contract of employment for a specified period of time or a specified task;

(b)workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration;

(c)workers engaged on a casual basis for a short period.

...

3(1)Adequate safeguards should be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Termination of Employment Convention, 1982, and this Recommendation.

3(2)To this end, for example, provision may be made for one or more of the following:

(a)limiting recourse to contracts for a specified period of time to cases in which, owing either to the nature of the work to be effected or to the circumstances under which it is to be effected or to the interests of the worker, the employment relationship cannot be of indeterminate duration;

(b)deeming contracts for a specified period of time, other than in the cases referred to in clause (a) of this subparagraph, to be contracts of employment of indeterminate duration;

(c)deeming contracts for a specified period of time, when renewed on one or more occasions, other than in the cases mentioned in clause (a) of this subparagraph, to be contracts of employment of indeterminate duration."

The Commonwealth has exercised the discretion to exclude some employees from "the provisions of the Convention" by a combination of principal and delegated legislation.

In s170CC of the Act it is stated that:

"170CCThe regulations may exclude specified employees from the operation of specified provisions of this Division.  An exclusion has effect only if:

(a)it is permitted by paragraph 2, 4 or 5 of Article 2 of the Termination of Employment Convention; and

(b)in respect of an exclusion permitted by paragraph 2 of that Article - it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article."

For the reasons expressed earlier, having regard to the terms of s170CA the word "Convention" as used in s170CC should be read as inclusive of relevant supplementary provisions set out in the Recommendation which clarify the meaning of the Convention.

Regulation 30B of the Industrial Relations Regulations purports to exercise the power conferred by s170CC and reads as follows:

"30B(1)Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:

(a)an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into before 16 November 1994;

(aa)an employee engaged under a contract of employment for a specified period of time, being a contract that was entered into on or after 16 November 1994, if the specified period is less than 6 months;

(b)an employee engaged under a contract of employment for a specified task;

(c)an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period, as the case requires:

(i)is determined in advance; and

(ii)is reasonable, having regard to the nature and circumstances of the employment;

(d)a casual employee engaged for a short period within the meaning of subregulation (3)."

The permitted exclusions contemplated by Article 2 of the Convention are employees employed under contracts for specified terms or for specified tasks; employees whose employment contracts provide for service of a probationary period that is reasonable and not of undue length; and employees who are engaged as casual workers for a short period.  The exclusions described appear to be directed at contracts of employment for short periods or for specific tasks to which the application of the provisions of the Convention would not be appropriate.

The exclusionary terms of reg30B(1)(a) are quite broad in that an employee engaged under a contract for employment for a specified period made before 16 November 1994 is denied the right to apply under Div 3 for relief in respect of termination of that employment at the initiative of the employer. Given that the class of contracts described in reg30B(1)(a) may include contracts for employment for a period of years such an exclusion may be inconsistent with the provisions of the Convention.

In respect of contracts of employment for a specified period made on or after 16 November 1994, reg30B(1)(aa) denies an employee access to the remedies of Div 3 only if the period specified in the contract of employment is less than six months.

The extent of the obligation in Article 2.3, and of the need recognized in para3(1) of the Recommendation, to provide "adequate safeguards" "against recourse to contracts of employment for a specified period of time" is not free from doubt.

It may refer to an obligation to provide safeguards against the purported use of such contracts by an employer to convert indeterminate employment to employment for fixed periods by a series of fixed-term contracts, the termination of employment at the end of each period being ostensibly mutual but in truth being at the employer's initiative.  Alternatively, it may refer to the class of fixed-term contracts by which a Member State defines the categories of employed persons who are excluded from all or some of the provisions of the Convention.

As "recourse" to a contract for employment of an employee for a specified period of time does not in itself avoid the protection that results from implementation of the Convention, unless it is within the class of contracts a Member State has enacted as defining the categories of employees excluded from all or some of the provisions of the Convention, the latter construction may appear to be appropriate.  However, in its terms para3 of the Recommendation, in particular para3(2), addresses the effects the use of such contracts may have upon the employment relationship generally and is not restricted to those contracts under which employees are excluded from access to Convention-based remedies by a law enacted by a Member State.

The Recommendation and, therefore, the Convention recognize that whilst on their face contracts of employment for a specified period of time may provide for consensual termination of the employment relationship by the effluxion of the period specified in the employment contract, that termination may, in certain circumstances, be a termination at the initiative of the employer.  For example, if an employer arranges for an employee to render service under consecutive contracts of employment for specified periods of short duration, where the nature of the employment is appropriate for a contract of indeterminate duration, and the employee had no say in the terms of the agreement, it may be said that the contract served the purpose of the employer by providing additional control over the employee.  In such circumstances if the employment relationship is terminated by the refusal of the employer to "roll-over" the employment contract, the termination may be seen as part and parcel of an initiative taken by the employer at the commencement of the contract of employment to reserve that power.

By referring to "recourse to contracts of employment for a specified period the aim of which is to avoid the protection resulting from the Convention (and the Recommendation)", the terms of the Convention and the Recommendation recognize that the use of such contracts may be at the direction, and for the benefit, of the employer and that entry into such a contract by an employee may not signify either the intention or the desire of the employee to  terminate the employment relationship at the end of the period specified in the employment contract.

Whether "adequate safeguards" have been provided as required by Art 2.3 of the Convention, and recommended by sub-s3(1) and para3(2)(c) of the Recommendation, was not addressed.

In State of Victoria v Commonwealth of Australia (at p173) the High Court, in considering the terms of ss170DC, 170DE(1) and 170DF of the Act, stated that there was no indication in those sections that the words "[a]n employer must not terminate an employee's employment" used therein were to be construed as applying to employment terminated by expiration of the term during which the employment relationship is to exist according to the terms of the contract.

Of course, whether an employment relationship continues to exist is a question of fact (see:  Byrne v Australian Airlines Limited (1995) 185 CLR 410 per Brennan CJ, Dawson, Toohey JJ at 428) and a law deeming the employment relationship to exist irrespective of the effect of the employment contract would be a relevant consideration in making such a finding of fact.

That is to say, if to give effect to the Convention and the Recommendation provision of "adequate safeguards" is made by deeming contracts of employment for a specified period to be of indeterminate duration, reliance by the employer upon the expiration of such a contract according to its terms would, unless the employer and the employee had a mutual intention that the employment relationship be terminated, be a repudiation of the employment relationship and a termination of employment at the initiative of the employer to which the provisions of Div 3 would apply.

If an industrial dispute has been in part resolved by an award made under, and given force by, the Act and the award prescribes the minimum conditions to apply in an employment relationship and regulates or prevents the use of fixed term employment contracts, the provisions of that award would be part of the material on which a finding of fact may be made that an employment relationship exists beyond the term fixed by an employment contract made between an employer and an employee bound by the award. (See: Byrne per Brennan CJ, Dawson, Toohey JJ at p442.) In such a case the statutory remedies provided by Div 3 would apply to a termination of an employment relationship governed by the award, if the termination is effected by reliance by the employer, contrary to the terms of the award, on the expiration of the period for employment specified in the contract as the occurrence that has terminated the employment relationship. In such a circumstance the employee would not be restricted to the remedies provided by the Act for the breach of an award, it being clear in its terms that Div 3 provides a right to apply for a remedy in such a circumstance. It was not submitted to his Honour that, as between Ms Fisher and the University, the use of an employment contract for a fixed term was controlled or prevented by the provisions of an award.

There may also be termination of the employment at the initiative of the employer and not pursuant to the mutual will of the parties if the terms of a fixed period contract have been varied in the course of performance of the contract, or the contract has been abandoned and replaced by another agreement, or the employer has engaged in conduct or representations which estop the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated.  In those circumstances an employee may show that reliance by the employer upon the purported effluxion of a period of time for employment is, in fact, termination of the employment at the employer's initiative.

Having regard to the foregoing, the proceedings in this matter may be said to have followed an unusual course.

Ms Fisher's application under Div 3 was set down to be heard before a Judicial Registrar on 8 July 1996. On 4 July 1996 the University filed a motion seeking an order that the proceeding be dismissed pursuant to O20 r2(1)(a) of the Industrial Relations Court Rules ("the Rules"). In relevant respects O20 r2(1)(a) reads as follows:

"Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:

(a)no reasonable cause of action is disclosed;

...

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding."

The motion was heard by a Judicial Registrar on 8 July 1996 and was dismissed on 16 July 1996.  The reasons of the Judicial Registrar are included in the appeal book.  It appears that the argument submitted in support of the motion relied on a contention that the Court did not have "jurisdiction" to hear the application.

On 27 and 28 August 1996 Ms Fisher's application came on for hearing before another Judicial Registrar who found that the respondent had contravened the provisions of Div 3 and made orders on the application in favour of Ms Fisher.

On 16 September 1996 the respondent applied by motion for an order that the orders of the Judicial Registrars be set aside and that "the issue whether the [appellant's] employment was terminated by the employer be determined as a separate preliminary question pursuant to O29 r2".

Although the motion did not refer to s377 of the Act it may be assumed that by the motion the respondent applied to the Court for review of the exercise of a power delegated to a Judicial Registrar by the Court under s376 of the Act and that the motion requested that the review be conducted by deciding a question separately from other questions under O29 r2 of the Rules.

The application for review came on for hearing before a Judge on 30 October 1996 and, by agreement, the "issue of jurisdiction" was heard separately.  His Honour held that the Court had no "jurisdiction" to hear the principal application and made orders dismissing it.  The appellant appeals from those orders.

The findings of fact and the reasons for decisions recorded by the Judicial Registrar who made orders on the appellant's application are not included in the appeal book and do not appear to have been the subject of the review hearing conducted before his Honour.

Normally, the hearing of a "preliminary question" would be inappropriate if matters of fact are to be expected to be decided on evidence given by witnesses.  The parties, however, were content to use that procedure and the result was that the form of hearing conducted was truncated.

Ms Fisher's representative sought to rely on cases in which it had been determined that a termination of employment had been at the initiative of the employer notwithstanding that the employer maintained that the employment had been brought to an end by the expiration of a period of employment specified in the contract of employment.  It is plain that in each of those cases, namely, Christie v Qantas Airways Ltd (1996) 138 ALR 19; Minister for Health v Ferry (1996) 65 IR 374; and D'Lima v Board of Management, PMH for Children (1995) 64 IR 19, the success of the respective applications depended upon particular findings of fact. In Christie and Ferry the relevant findings of fact were that the contracts of employment did not specify a period for employment and in D'Lima it was held that the evidence established that the employment contract was not restricted to the terms of a written document.

In the present case it appeared to be accepted that the employment relationship was as set out in the terms of the employment contract, and, therefore, it was open to his Honour to conclude that the termination of employment had been effected by the expiration of the period specified in the contract and not at the initiative of the University.

His Honour noted that the case had to be decided on the particular circumstances put before him and determined that on those facts it could not be concluded that there had been a termination of employment at the initiative of the University.

His Honour was aware that on different facts a contrary conclusion could have been reached.  His Honour referred to a fixed term contract that was "unreal, unconscientious or oppressive as against an employee of any special vulnerability" as an example of termination of employment at the expiration of a fixed term as termination at the employer's initiative, and also acknowledged that such a conclusion may follow in a case in which it was shown that fixed term contracts were not regarded as appropriate in the relevant field of employment and where there was continuation of the employee's position after termination of the employee's employment.  It follows that the particular facts of other cases, possibly including cases of academic appointments made by successive short term contracts of employment, may support a determination that a termination of employment was at the initiative of the employer.

In the conduct of this case as presented by her representative, Ms Fisher concentrated on the question of law.  The fact that issues were dealt with by a procedure to determine a preliminary question may have led to some confusion.  Not only was the procedure out of the ordinary, but the question to be determined was not clearly formulated.  Had the question been defined it would have indicated that it involved both a question of law, whether the ending of a fixed term contract at the expiration of the term could amount to a termination at the initiative of the employer, and a question of fact, whether the circumstances of the case amounted to a termination at the initiatve of the employer.  If such a question had been defined and Ms Fisher's case put accordingly, facts such as the continuation of the employment position after the expiration of the period of Ms Fisher's contract and Ms Fisher's expectation that she would continue in the position, would have been relevant to that case.  Of course, to establish that case Ms Fisher would have had to present additional evidence and, no doubt, the University would have considered whether it would adduce evidence in response.

There are indications in the transcript that Ms Fisher's representative might have been under the impression that factual issues would be dealt with after the determination of the preliminary question when the Court would deal with the "merits" of the case.  If Ms Fisher was under such a misapprehension, the matter was not raised as a ground of appeal, nor was it argued on the appeal as a reason for upholding the appeal.

The appeal must be dismissed.

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

Associate:
               Date:

APPEARANCES

Counsel for the Appellant:  W D Claydon
  C Ryan

National Tertiary Education Industry Union on behalf of the Appellant

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

Solicitors for the Respondent:  Mallesons Stephen Jaques

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