Francis Carney v Sydney Catholic Schools Ltd
[2022] FWC 2360
•13 SEPTEMBER 2022
| [2022] FWC 2360 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Francis Carney
v
Sydney Catholic Schools Ltd
(C2022/2966)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 13 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal – jurisdiction – education sector – whether dismissed – whether out of time – whether an employee – volunteerism – vocational placement – no dismissal – application dismissed
On 16 May 2022[1] Francis Carney (Mr Carney or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.
The applicant alleges that he was dismissed by Sydney Catholic Schools Limited (SCS or the respondent) on 26 April 2022, with his dismissal taking effect that day.
SCS oppose the application. It filed a response on 9 June 2022. It raises two jurisdictional issues. It says that Mr Carney was not dismissed because he was never employed. It also says, in the alternative, that if Mr Carney was dismissed, he was not dismissed by SCS. In the further alternative, it says that if Mr Carney was dismissed by SCS, he was dismissed on 7 or 8 April 2022 and his application is out of time.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[2] requires the Commission to determine a dispute about the fact of a dismissal under s 365 of the FW Act before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Mr Carney’s application is to proceed further.
It is not possible to determine whether Mr Carney’s application is out of time without first determining whether he was dismissed and, if so, the date of dismissal.
I issued directions on 11 July 2022.
By consent, I granted permission for SCS to be legally represented. Mr Carney was self-represented. In light of the differing representation, I provided a measure of assistance to Mr Carney, consistent with my statutory duty as an independent decision-maker, to ensure his case was fully presented and that of SCS tested.
I heard the jurisdictional matters by video on 1 September 2022.
Evidence
I heard evidence from Mr Carney on two witness statements[3] filed in his name.
I heard evidence from two persons called by the respondent:
· Patricia Bjornenak, Assistant Principal, St Pius Catholic Primary;[4] and
· Chris Gawidziel, Religious Education Co-ordinator and Year 2 Teacher, St Pius Catholic Primary.[5]
By consent, substantial documentary material was brought into evidence through the witnesses.
The issues in dispute require findings of fact. Whilst not all matters are in dispute, there are factual disputes not just on the primary questions but also on relevant events.
Issues of credit are relevant.
Mr Carney gave evidence politely and respectfully. However, some caution is required. He was conversational and somewhat indirect in answers. He was prone to speculation and self-serving statement. He tended to reconstruct parts of the narrative resulting in some overstatement of the nature and terms of his relationship with SCS.
Ms Bjornenak gave evidence from a hospital bed and, that notwithstanding, was generally a conscientious witness. She was willing to make concessions although her recall was hazy on some issues and required prompting on matters of detail.
Mr Gawidziel was an impressive witness. He was considered and generally displayed good recall. On the occasions his recall was defective he readily made concessions correcting his evidence.
As a general principle, where there is a conflict between the evidence of Mr Carney and that of Ms Bjornenak and Mr Gawidziel, I prefer the evidence of Ms Bjornenak and Mr Gawidziel particularly where it is corroborated by the documentary record.
Where there is disputed evidence, or inexact recall, the documentary record provides, in many instances, an appropriate basis on which to make findings of fact or properly draw inferences.
Facts
I make the following findings.
SCS
SCS operates schools in New South Wales including the St Pius Catholic Primary School in Enmore, Sydney (the School).
Persons working in the School as employees are employed by SCS. An employee is provided a SCS number that designates them as such for payroll, administrative and record-keeping purposes.
All persons in the School who interact with students (whether as employee, contractor or volunteer) require in advance a Working With Children permit issued by relevant State authorities.
Persons engaged in the State of New South Wales to work in schools as a teacher are required to hold accreditation as a teacher. Accreditation is issued by a State authority (New South Wales Education Standards Authority) and follows a person completing an approved course of tertiary education.
The School engages persons other than as teachers. From time to time educational services may be delivered by a contractor (for fee) or the School may invite persons as guest speakers or class presenters (no fee). The School also employs other persons, such as administrative staff and ground-persons.
Practicums
The School participates in programmes of vocational training whereby students seeking future accreditation as teachers are, in their final years of tertiary education, placed for a defined period at the School (by the educational institution in which they are enrolled) to experience a classroom setting and observe or assist in the delivery of lessons under the supervision of a teacher. Such programmes of vocational training are called practicums.
Practicums are only conducted where the tertiary institution and the School agree to the placement.
One such tertiary institution in Sydney which, with the agreement of the School, places students at the School for vocational training is Excelsia College (Excelsia).
Mr Carney
At the commencement of 2022, Mr Carney was a mature aged student enrolled to complete his final years of a Master of Education at Excelsia, having completed earlier years of the course at the University of Southern Queensland.
Mr Carney is resident of Sydney and lives in proximity to the School.
Mr Carney is not an accredited teacher but is studying to obtain that accreditation.
Mr Carney is an engineer and has experience delivering ad hoc educational services (for fee and not for fee, and variously as employee, contractor or guest) in the educational sector in his areas of interest which include maths and STEM subjects. He has developed certain products (one called ‘Tableau’) that he promotes to the sector.
Work prior to practicum
On 4 February 2022, upon the commencement of the School year and unsolicited, Mr Carney went to the St Pius Primary School with his resume and spoke to the Assistant Principal, Ms Bjornenak.
Mr Carney was seeking to make a connection with the School with a view to the School placing him in a practicum that he intended to undertake later in 2022, and with a view to creating a network of contacts that could facilitate permanent employment once accredited, and to use his experience to benefit the work of the School.
The 4 February 2022 meeting went well. Agreement was reached for Mr Carney to attend the School from 7 February 2022 and observe and assist a year 2 teacher (Mr Gawidziel) until such time as Mr Carney was able to provide more information about his proposed practicum.
Ms Bjornenak introduced Mr Carney to Mr Gawidziel, who agreed to allow Mr Carney to assist him with his year 2 class.
Although initial discussion concerned Mr Carney attending on Tuesdays, he and Mr Gawidziel agreed that he could attend more regularly as suited him. Mr Carney was asked to complete a handwritten roster of when he attended, which he did.
Mr Carney was required to provide a Working With Children permit before he commenced on 7 February 2022. He did so.
Mr Carney was not provided with a SCS number for the purposes of this association with the School.
Mr Carney was not asked to nor did he provide a tax file number or bank account or superannuation details prior to or following 7 February 2022.
Mr Carney received no payment for any period that he attended the School.
Mr Carney attended year 2 classes under the supervision of Mr Gawidziel on approximately fourteen days between 7 February and 4 March 2022.[6]
When attending during this period, Mr Carney would sit in class and observe, and from time to time was asked by Mr Gawidziel to make a presentation on maths or STEM subjects. On one occasion, Mr Carney used his ‘Tableau’ product and promoted its use to Mr Gawidziel. After considering the product, Mr Gawidziel advised Mr Carney that the School would continue with its existing (Google) product. Mr Carney would assist Mr Gawidziel or other teachers with yard duty.
Mr Carney was not permitted to control a class without the direct supervision of Mr Gawidziel or a teacher, though from time to time (and I find very occasionally) this momentarily occurred (for example when Mr Gawidziel required a toilet break).
During the period that Mr Carney was assisting Mr Gawidziel, Mr Carney was advancing his planning for a practicum. He formed the view that undertaking a practicum at the School would be his preference. He advised this to Excelsia, and to the School.
Commencement of practicum
On 17 March 2022 agreement was reached between Excelsia and the School that Mr Carney could undertake his practicum at the School. The practicum was scheduled to commence on 28 March 2022 and conclude on 9 May 2022.
Mr Carney commenced his vocational placement. Aside from being at the School full time (five days per week rather than one or two), the practicum in practice largely took the same form as the activities he had undertaken in the preceding month. He was assigned to the supervision of Mr Gawidziel and his year 2 class. He observed, assisted and occasionally taught.
In early April 2022 the relationship between Mr Gawidziel and Mr Carney soured. Mr Gawidziel became concerned about aspects of Mr Carney’s conduct, whereabouts and teaching.
Mr Gawidziel raised these concerns with Ms Bjornenak, who shared those concerns.
Ending of relationship
On 7 April 2022 Mr Gawidziel and Ms Bjornenak decided to escalate their concerns. They considered the School needed to bring them formally to the attention of Mr Carney and Excelsia. They decided that they would need to formally advise Excelsia that Mr Carney’s vocational placement was “at risk” and that it could not continue with the support of the School unless there was improvement.
A meeting between Ms Bjornenak, Mr Gawidziel and Mr Carney was held immediately after lunch on Thursday 7 April 2022.
Mr Gawidziel and Ms Bjornenak outlined to Mr Carney their concerns. They advised that they intended to advise Excelsia that his placement was ‘at risk’. Mr Carney was advised that the School was open to the placement continuing but only if there was improvement. They asked Mr Carney to countersign a document that would be submitted to Excelsia indicating as much so that Excelsia’s protocols for an ‘at risk’ placement could be put in place. Those protocols could lead to termination of a placement.
Mr Carney refused to sign the document, indicating that it had not been prepared on the correct form. Mr Gawidziel and Ms Bjornenak agreed to adjourn the meeting whilst they transcribed the document (including ‘areas of concern’) onto the correct form. They did so. They then sought to bring Mr Carney back into the meeting.
Mr Carney was not to be located. He had left the School without notice. Mr Gawidziel and Ms Bjornenak were disturbed by that further and unexpected development.
The School proceeded to send the ‘at risk’ form to Excelsia. It was signed by Mr Gawidziel but not by Mr Carney. It was notated:[7]
“Frank left the School at 2.45pm without notifying us.”
Mr Gawidziel and Ms Bjornenak telephoned an officer of Excelsia (Ms Webster) to advise of the development.
On the morning of 8 April 2022 (the next day) Mr Carney sent an email to the School advising that “due to illness I will not be attending St Pius primary school today”.[8]
That same morning Mr Gawidziel emailed Ms Webster:[9]
“Morning Vivienne
Thank you for your support regarding Frank. With him leaving the school site at 2.40pm on the 7th April and not letting any staff member know, I can no longer accept Frank as a prac student.
Leaving in that manner is definitely a sign that he is unable to accept feedback and it is highly unprofessional to leave before the end of the scheduled school time.
I have no problem communicating this to him as well, if that is what you want me to do.
Thanks again for all of your support.
Kind regards,
Chris Gawidziel”
At 1.11pm that afternoon (8 April 2022) an officer of Excelsia (Mr Boadu) sent an email to Mr Carney terminating the placement. It read:[10]
“Termination of Professional Experience at St Pius Primary School
I hope your (sic) are doing well. St Pius’ Primary School have advised us that they are not able to continue having you as a practicum student in their school. In light of this, I am sorry to inform you that your professional experience placement in the school has been terminated effective today. The reasons for the termination are determined by the school, but relate generally some tendency not to engage professionally with colleagues (Standard 7) and Engage with colleagues and improve practice (Standard 6).
The College is not able to change the decision of the School at this time. We are also unable to place you in another school until we are satisfied that satisfactory progress has been made. I am aware that Vivienne has discussed this issue with you. However, if you wish to discuss this termination further please contact the School and your supervising teacher.
Relevant College staff will meet next week to discuss the issue in detail and provide further advice. We will advise you of next steps once our discussions have been finalised. Thank you.
Kind regards,
Gideon”
The School had no independent contact with Mr Carney concerning the termination of the placement.
A two week school vacation then occurred from 11 April to 25 April 2022.
A new school term started on Tuesday 26 April 2022.
On the evening of 25 April 2022 Mr Carney sent an email to Mr Gawidziel and others:[11]
“Guys
I hope you have enjoyed your Easter.
I am planned to continue with my prac tmow morning, 8.20am.
Pls confirm ok?
Will I bring my own laptop or can I use yours again?
Regards,
Frank”
Mr Gawidziel immediately replied (8.29pm):[12]
“To Frank
I have been informed by Excelsia College that your prac at St Pius has been terminated as of 8th April.
I wish you well in your future endeavours.”
Mr Carney was not permitted to enter the School or participate in year 2 classes on 26 April 2022 or thereafter. The last day he had done so was on 7 April 2022.
Mr Carney lodged these proceedings on 16 May 2022 by application dated 12 May 2022 (having lodged an incomplete application on 13 May).
Submissions
Mr Carney
Mr Carney submits that he was employed by SCS from 7 February 2022 until 26 April 2022.
Mr Carney submits that even though he did not hold teacher accreditation, he was employed to provide educational services as a teacher’s assistant to the year 2 teacher Mr Gawidziel.
Mr Carney submits that even though no written contract of employment existed, it was formed in part orally and in part by emails between the parties.
Mr Carney submits that even though he was not paid income for services rendered, contractual ‘consideration’ existed in the form of benefit to the School from his services and in the form of benefit to him in establishing a network of contacts at the School and with SCS that led to his practicum placement and could have potentially led to future employment at the School upon teacher accreditation being secured.
Mr Carney submits that a contract of employment existed separate from being placed in the School by Excelsia to undertake a practicum. He points to the fact that his ‘work’ at the School preceded his practicum placement by a number of weeks. He points to the fact that no-one from the School advised him that he was not to return until the evening of 25 April 2022, a fortnight after his practicum had been terminated by Excelsia.
SCS
SCS submit that Mr Carney was a volunteer assisting a year 2 teacher in February 2022 in advance of and until he was placed by Excelsia at the School (with the School’s agreement) in March 2022 to undertake a practicum.
SCS submit that the relationship was one of volunteer pending a vocational placement until the placement occurred, and not a relationship of employer/employee.
SCS submit that the necessary elements of a contract did not exist even in this initial period, let alone the necessary elements of a contract of employment.
SCS submit that from the time the practicum commenced in March 2022, Mr Carney’s relationship with the School was only as a vocational student placed by his tertiary institution (Excelsia College) at the School (by agreement with the School).
SCS submit that there was never a dual relationship with Mr Carney (between he and Excelsia as a vocationally placed student at the School and separately between he and the School as an employee) either at the time of the alleged dismissal or otherwise.
SCS submit that Mr Carney’s association with the School ended on 8 April 2022 when Excelsia, having received an at-risk report from the School concerning his conduct (including leaving without notice on 7 April 2022), terminated the practicum.
SCS submit this was termination on 8 April 2022 of a practicum by Excelsia, not termination of a contract between it and Mr Carney, let alone a contract of employment.
In any event, SCS submit that at the time Mr Carney alleges he was dismissed (26 April 2022), he had no continuing association with the School, either as a volunteer, employee or vocational student.
SCS submit that Mr Carney was not permitted to re-enter the School on 26 April 2022 or to attend year 2 classes because his practicum had been terminated by the College two weeks prior.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:
“386 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.”
Was Mr Carney employed by SCS at the date of alleged dismissal (26 April 2022) and was he was dismissed by SCS on that date?
Was Mr Carney an employee?
For the purposes of an application under s 365, a dismissal is required to have occurred from a contract of employment between the applicant (person dismissed) and the respondent (employer).
Whether a person is an employee of a particular entity at a given time is a combined question of fact and law. This question must be determined on an objective basis, not a subjective belief.
The requirement that there be a contract of employment involves two elements; the existence of a contract, and the existence of an employer/employee relationship.
Both issues are in dispute in these proceedings.
Contract
For a contract of employment to exist, there must, at law, be a contract. The elements that comprise a contract must exist. This involves a meeting of minds in which there is a legally binding exchange of promises in return for some mutually agreed benefit. In legal terms the elements include:
· an offer;
· an acceptance of the offer;
· valuable consideration; and
· an intention to create legal relations on agreed and enforceable terms.
Even where these elements exist, a contract can be void if it is made for an illegal purpose or by persons without capacity or without genuine consent.
Mr Carney needs to establish that he was dismissed from a contract of employment; thus he needs to establish, at a minimum, that a contract existed between he and SCS at the time he alleges he was dismissed.
In this matter, Mr Carney’s case is that there were two relationships he had with the School – one whereby he was an employee delivering educational services (7 February 2022 until 26 April 2022) and separately but in parallel one where he was a vocational student undertaking a practicum at the School (28 March 2022 until 8 April 2022).
It is clear from the evidence that there are three distinct periods in issue:
· from 7 February 2022 until the practicum commenced (28 March 2022) (the first period);
· during the period of the practicum (28 March 2022 until 8 April 2022) (the second period); and
· following the termination of the practicum until the commencement of term 2 (9 April 2022 until 26 April 2022).
Characterising the relationship (if any) in each of these periods assists in determining this matter.
First period – volunteer or employee?
Whether a person is a volunteer, an employee (contract of service) or contractor (contract for services) is a question of fact, to be determined by applying relevant legal principles concerning the nature of each relationship.
Aside from a contract being required if a person is to be an employee, relevant considerations as to whether a person is performing ‘work’ as a volunteer or intern include:[13]
· whether the placement is mainly for the benefit of the person rather than the business;
· whether the periods of placement are relatively short;
· whether the person is not required to or expected to do productive work; and
· whether there is no significant commercial gain or value for the business derived out of the work performed by the person.
In this matter, the evidence overwhelmingly supports a finding that Mr Carney was a volunteer. Further, the evidence supports a finding that his volunteering work was in contemplation of Mr Carney requesting a future practicum placement at the School if he found the relationship to his liking.
Of significance are the following facts:
· the School was not seeking the services of Mr Carney. It had no position vacant for an ‘educationalist’ or teacher’s aide providing educational services. It neither sought nor advertised such a role. Mr Carney arrived unannounced with his resume;
· the School did not enter into a formal or written contract with Mr Carney to provide educational services, nor was it asked to do so. There was no intention to create legal relations orally or in writing. There were no terms on which legal action for breach could be actionable;
· the School did not remunerate Mr Carney for ‘services’ nor was it asked to do so. Legally required consideration to an employee (payment of monies at a legal minimum under an industrial instrument in return for services) was absent;
· Mr Carney neither sought from the School nor was provided an SCS number designating him an employee or contractor for the performance of these services in return for payment of monies;
· Mr Carney neither provided the School nor was he asked to provide a tax file number or superannuation fund details that would have been required were he to have been remunerated as an employee; and
· Mr Carney was not an accredited teacher and thus could not teach a class except under supervision and on terms set by the School.
The intention of the parties is also relevant. From the outset Mr Carney sought a volunteer role. His initial email of 3 February 2022 stated:[14]
“Rita kindly received the paper copy of some of my details (resume) on Wednesday afternoon, many thanks. I am available immediately (local final year student with local schools experience) for either voluntary or otherwise “Practicum” type assistance to the school…”
“If an opportunity for me to do “practicum-type”/Covid/voluntary assistance could meet your requirement, I would be grateful if you would let me know.”
From the outset (4 February 2022), the School advised Mr Carney that he was engaged “as a prac student” with a potential future offer of casual employment once provided a SCS number:[15]
“Hi Frank
We would be very happy to have you onboard at St Pius in a prac student capacity. When you receive your SCS working number we will be able to offer you casual work…”
Kind regards
Trish Bjornenak”
In early March 2022, and prior to the practicum being formalised, the volunteer status of the relationship was confirmed by the School. Mr Gawidziel wrote to Mr Carney:[16]
“As you are only volunteering, this does not officially count towards your prac…You can attend to volunteer to assist the class with their learning, but you do not need to teach anything as of yet.”
The School’s projection on 4 February 2022 of a future offer of casual employment was not an immediate offer of employment (noting also that an offer is not a contract unless accepted). An offer was a prospective future event. To the extent the prospect constituted a promise (I make no such finding as it was expressed in conditional terms), a promise is capable of constituting contractual consideration. However, in the immediate sense and throughout the first period Mr Carney was simply a “prac student” – without a SCS number or accreditation.
Mr Carney relies in part on the fact that he was required to produce a Working With Children permit before commencing, and did so. This does not advance his case. Whether as employee, contractor or volunteer, a Working With Children permit was required by SCS. Mr Carney had been previously advised by SCS (in May 2021):[17]
“Please note that completion of this process does not guarantee that you will be offered work as a contractor or volunteer in a Sydney catholic school but is a prerequisite to engaging with a school in that capacity.”
Mr Carney also relies in part on the fact that from time to time he was asked by Mr Gawidziel to present to the year 2 class and assist with yard duty. I find that this occasionally occurred. There is nothing inconsistent with a volunteer prac student being asked under supervision to make a presentation to a class or to accompany a teacher on yard duty. When not doing so, Mr Carney was observing usually from the back of the class. This neither made him a teacher nor an employee.
Mr Carney relies on the fact that he was asked by Mr Gawidziel to provide a record of attendance during the first period. He did so in a handwritten schedule.[18] This is not evidence that he was an employee. The handwritten attendance record was prepared primarily for the benefit of the supervising teacher and School administration so they could keep abreast of when Mr Carney had been present in class.
In summary, the placement in the first period was relatively short (approximately twenty-seven days across seven weeks), the benefit accrued overwhelmingly to Mr Carney and not the School, Mr Carney was present under supervision, there was no significant educational or other gain to the School from Mr Carney’s participation, and the period was in anticipation of a vocational placement being formalised.
I find that in the first period Mr Carney was a volunteer “prac student” in advance of his practicum placement being formalised. There was no contract by which the parties created legal relations, let alone a contract of employment.
Second period – vocational student and/or continuing employee?
The practicum was formalised by letter from Excelsia College to the School dated 17 March 2022. It commenced on 28 March 2022 and was scheduled to conclude on 9 May 2022[19] Excelsia’s letter stated:
“Thank you for providing a supervised Professional Experience (practicum) placement for Frank Carney (EDPE502). This email acknowledges confirmation of the 20-day (4 week) placement…It is expected that Frank will observe classes for the first few days, and then build up to teaching approximately 60% of a full load.”
SCS submit that Mr Carney was not dismissed in any sense by SCS. SCS submit that Excelsia College terminated his vocational placement and that this was the only termination which occurred.
Mr Carney submits that the termination of his vocational placement was separate from a dismissal by SCS. He agrees that Excelsia terminated his vocational placement on 8 April 2022 but says that SCS terminated a separate relationship on 25 or 26 April 2022 when he was advised that he was not permitted to attend the School.
I do not agree.
Mr Carney’s submission presupposes that he had dual relationships operating in tandem during the second period; one with SCS as an employee to deliver educational services, and one with Excelsia College for a vocational placement at the School.
Mr Carney’s submission is a reformulation of his earlier submission that he was employed by SCS to provide educational services prior to commencing the practicum.
I have not found that he was so employed.
The pre-practicum volunteer work was offered and accepted on the basis that it would precede a potential practicum placement. That is what occurred. There was no materially different ‘work’ Mr Carney did in and around the year 2 class during the practicum than what he did as a volunteer weeks earlier. He observed, assisted and occasionally led a class under supervision, and participated in yard duty.
No separate agreement exists or was negotiated.
It follows that Mr Carney had no separate relationship with the School once the practicum commenced other than that the School had agreed to be the host location for his vocational placement.
Mr Carney was not in the employment of SCS in any sense during the period of the practicum.
Third period – continuing employee?
I have found that the vocational placement was terminated by Excelsia College on 8 April 2022. The College was the educational institution which placed Mr Carney at the School because it was the College, not the School, where Mr Carney was enrolled in a Master of Education and which controlled the placement of its students in vocational programmes.
Termination of the vocational placement followed a request by the School on 7 April 2022 that Mr Carney “be placed elsewhere”. The next morning Mr Gawidziel had advised:[20]
“I can no longer accept Frank as a prac student. Leaving in that manner is definitely a sign that he is unable to accept feedback …”
This triggered the decision by Excelsia College on 8 April 2022 to terminate the placement. This does not mean that Mr Carney was dismissed by SCS in any relevant sense. SCS was simply the host school where Mr Carney was placed to undertake a vocational placement. The School had expressed concerns to the College concerning one of its students that the School was hosting.
To the extent any arrangement was terminated, it was a termination of a vocational placement by the College, not the respondent.
I have found that during the period of vocational placement no other contract or relationship for the provision of educational services existed between Mr Carney and the School.
There is no evidence that following the termination of the practicum, a new relationship or new contract was created. Mr Carney does not assert as much. His case is that an existing and separate contract from the practicum existed. I have found that not to be so.
It follows that in the third period Mr Carney had no contractual relationship with the School once the vocational placement ceased.
What occurred during the third period was that a school vacation commenced the day after the practicum was terminated. A fortnight later (on the evening before term 2 commenced) the School confirmed to Mr Carney its understanding, correctly held, that his practicum at the School had been terminated by Excelsia and that he thereby had no authority to enter the School or participate further in its classes.
No relationship of employer/employee existed at that time.
Conclusion on dismissal
For the purposes of an application under s 365, the dismissal needs to be a dismissal by an employer in the sense of the dismissal being “on the employer’s initiative” or caused by “conduct engaged in by the employer”.
My conclusions are:
· in the first period Mr Carney was a volunteer, not an employee. That volunteer work ended upon the commencement of the practicum and was superseded by the practicum;
· in the second period, Mr Carney was a vocational student undertaking a practicum. This was the sole nature of his association with the School. There were no dual or tandem relationships or contracts; and
· in the third period there was no relationship between Mr Carney and the School (let alone one as an employee) as the practicum at the School had been terminated by the tertiary institution at which Mr Carney was enrolled as a student, No seperate relationship with the School existed beyond that date.
It follows that Mr Carney was not dismissed by SCS on 26 April 2022 as alleged, nor dismissed at any time by SCS.
There was no dismissal within the meaning of the FW Act.
Is Mr Carney’s application out of time?
As Mr Carney was not dismissed by SCS on 26 April 2022 as alleged nor dismissed by SCS at an earlier time, no issue arises whether his application is out of time or whether time should be extended.
Conclusion
As Mr Carney was not dismissed by SCS on 26 April 2022 or otherwise, his application fails for want of jurisdiction.
That being so, and upon the authority of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford further proceedings by the Commission (such as a conference under s 368 of the FW Act) cannot occur.
The application is therefore dismissed. An order[21] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
Mr F Carney, on his own behalf
Mr T Makamure (of counsel) with Ms S Ordanoska, with permission and on behalf of Sydney Catholic Schools.
Hearing details:
2022
Adelaide (by video conference)
1 September.
[1] An incomplete application was sent by email on 13 May 2022
[2] [2020] FCAFC 152
[3] FC1; FC2
[4] SCS1
[5] SCS2; SCS3
[6] FC2 Annexure B
[7] SCS1 PB6
[8] SCS1 PB7
[9] SCS1 PB7
[10] SCS14
[11] SCS2 CG9
[12] SCS2 CG9
[13] As summarised in Barbour v Derbas[2021] FWC 1718 at [70]
[14] SCS4
[15] SCS5
[16] SCS7
[17] SCS4
[18] FC2 Annexure B
[19] SCS9
[20] SCS10; SCS2 Attachment 8
[21] PR745514
Printed by authority of the Commonwealth Government Printer
<PR745513>
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