Harry Bleas v Victoria University

[2016] FWC 6056

[2016] FWC 6056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Harry Bleas
v
Victoria University
(U2016/4409)

VICE PRESIDENT WATSON MELBOURNE, 26 AUGUST 2016

Application for relief from unfair dismissal – whether termination at the initiative of the employer – whether contract for a specified period of time – Fair Work Act 2009, ss.385, 386, 394.

[1] This decision is an amended version of a decision given on transcript on 19 August 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Mr Harry Bleas arising from the termination of his employment with Victoria University.

[2] The issue for determination is whether the jurisdictional requirement of a dismissal is met in the circumstances of this case. The university contends that the circumstances do not fall within the concept of a dismissal and ask that the application therefore be dismissed. That submission is based on the terms of s.386 of the Act. That section contains a positive notion of the meaning of "dismissal" and provisos in s.386(2). Elements of both the positive element and the provisos are invoked in the evidence and submissions in this matter.

[3] The first issue is whether Mr Bleas’ employment has been terminated on the employer's initiative consistent with the terms of s.386(1)(a). The second issue is whether Mr Bleas was employed under a contract of employment for a specified period of time and the employment terminated at the end of the period within the terms of section 386(2)(a). If either of those matters lead to the conclusion that Mr Bleas was not dismissed, then the Commission does not have jurisdiction to deal further with the matter.

[4] The evidence establishes that Mr Bleas had been employed on a number of contracts of a very similar nature.  Several of these contracts were put into evidence, but these were not necessarily an exhaustive list of all of the contracts as he performed work in relation to a number of subjects, both in the university and the predecessor technical college.

[5] The contract at the relevant time was signed by the parties in December 2015.  It provides for the teaching of a unit "Wills and Administration of Estates" and it is expressed, apparently, to commence on 30 November 2015 and to end on 29 February 2016.  It was for the purpose of teaching the relevant unit for the university summer term.  The relevant teaching occurred from 30 November 2015 to 4 December 2015.  Thereafter, there was intended to be a refresher session, assessment and marking.  Both the teaching and the marking were expressly referred to in the contract as "anticipated academic hours" and rates of pay attaching to that work were specified in the contract.

[6] In the application for an unfair dismissal remedy lodged in this Commission, Mr Bleas contends that his employment was terminated on 19 January 2016.  In his further submissions to this Commission for the purposes of the jurisdictional argument, he also submitted that he was dismissed on 19 December 2015.  It is necessary to consider the circumstances in relation to both of those dates to assess whether Mr Bleas' employment terminated on either of those dates and whether the circumstances took the matter outside the terms of the contract which provided for termination at the expiry of the fixed term specified in that contract.

[7] The evidence in relation to communications on or about 19 December 2015 includes an email sent from Ms Xynas to Andrew Clarke and to Daniel Goldsworthy and, apparently, also students studying the course regarding the further programming of the matter.  Included in that email was reference to further assessment tasks that were being set and the conclusion of the assessment process Ms Xynas was embarking upon.

[8] The evidence establishes that after the lectures were completed on 4 December 2015, Mr Bleas became quite ill.  Various attempts were made by Ms Xynas to contact him via email and there was limited response.  Ms Xynas then embarked on steps to have the various other necessary tasks undertaken for the subject.  Those communications, or attempted communications, continued in the New Year and were the subject of further email correspondence in January 2016. These are also alleged to amount to a termination of employment.

[9] There is a build-up to January communication commencing with an email of 18 January from Ms Xynas to Mr Bleas. This included a request to attend a meeting the following Monday, 19 January.  Mr Bleas responded to that email saying that he needed to make arrangements with his NTEU delegate to come to the meeting and sought information regarding complaints that had apparently been received and were the subject of some brief discussions between the parties.  Ms Xynas responded to that email in an email of 19 January which also indicated the purpose of the meeting.  She said:

“The purpose of the forthcoming meeting is to simply complete the teaching and learning provision of the summer unit Wills and Administration of Estates with a focus on the finalising of the exam and the related revision session to be run in early February.  As the Unit Coordinator for this unit over the summer, I am responsible for all aspects of quality control and delivery.  Also, as Director of Teaching and Learning in the college of law and justice, I work with many academic colleagues to support their development of teaching practices…”

[10] I do not quote the rest of the email, which does not appear to be particularly relevant.

[11] There was no response to that email from Mr Bleas and Ms Xynas sent a further email dated 2 February 2016, which was sent with "High Importance". It said:

“I refer to my email to you below dated 19 January 2016.  To date, I have not had a reply from you.  Time is now very tight and, as a result of you not replying, alternative arrangements with respect to the revision session and the drafting of the exam for the unit will need to be undertaken.”

[12] The question before me is whether any of those communications from the university amount to a termination of employment by the employer or otherwise take the matter outside the notion of a contract for a specified period of time terminated at the end of the period.

[13] The nature of the contract is obviously at the heart of the matter.  The primary duties were the delivery of academic hours at the end of November and early December. The follow-up activities were also tasks to be performed, for which payment was due to be made. It is clear on the evidence that the health problems experienced by Mr Bleas presented difficulties in the completion of a number of the necessary tasks.

[14] In my view, an objective view of the circumstances indicates that Ms Xynas followed up the tasks that needed to be performed, attempted to communicate with Mr Bleas to ascertain whether he was in a position to produce the material, requested steps to be taken, but, in the absence of responses, took steps herself to set the assessment and ultimately to make alternative arrangements with regard to the revision session and the drafting of the exam.

[15] Properly viewed, I do not consider that any of the activities of Ms Xynas or the university amounted to the termination of Mr Bleas' employment.  The scope of the contract is specified in the contract.  The contention that by describing herself as the "course coordinator", his employment was terminated or his role had been removed does not gel with the nature of those communications. The communications appear to have been intended to seek his input into the final tasks rather than take them off him.  Indeed, it was only after unsuccessful attempts were made to chase up the provision of those services that Ms Xynas took the steps to make alternative arrangements. Ms Xynas was acting within her responsibilities. I do not consider that, on the evidence, any of those steps amounted to a termination of employment.

[16] I find on the evidence that the employment operated and was terminated in accordance with the terms of the contract.  It was a contract for a specified period of time. The contract specified the relevant dates. I find that the contract terminated at the end of the period as specified in the contract, being 29 February 2016.  I therefore find, on the evidence, that Mr Bleas' employment was not terminated on the employer's initiative. I also find that the contract of employment, as I have said, was for a specified period of time and it terminated at the end of that period.

[17] On both of those findings, the termination of employment was not a dismissal within the meaning of that term in s.386 of the Act. Therefore, an essential requirement for an unfair dismissal in s.385 is not met in the circumstances of this case. I therefore dismiss the application.

VICE PRESIDENT

Appearances:

Mr Bleas, H on his own behalf.

Mr Harrington, N, of counsel, with Ms D’Costa, G, on behalf of Victoria University.

Hearing details:

2016.

Melbourne.

19 August.

Final written submissions:

Mr Bleas on 12 August 2016.

Victoria University on 3 August 2016.

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