Huong Tran v Online Education Services Pty Ltd T/A Swinburne Online

[2017] FWC 3914

[2017] FWC 3914

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Huong Tran
v
Online Education Services Pty Ltd T/A Swinburne Online
(U2016/8793)

COMMISSIONER CIRKOVIC MELBOURNE, 26 JULY 2017

Application for relief from unfair dismissal.

[1] The matter concerns an application by Ms Huong Tran (Applicant) alleging unfair dismissal against her former employer Online Education Services Pty Ltd T/A Swinburne Online (Swinburne Online) (Respondent).

[2] Swinburne Online objects to the application asserting that the Fair Work Commission (Commission) has no jurisdiction to deal with the application because Ms Tran was ‘not dismissed’ within the meaning of s.386 of the Fair Work Act 2009 (Cth)(the Act) and is therefore not entitled to make an unfair dismissal application. Swinburne Online claims that Ms Tran’s contract of employment ended due to the effluxion of time.

[3] At the hearing, Ms Tran gave evidence and made submissions. The following witnesses gave evidence for the Respondent:

• Ms Laura Williams, Human Resources Advisor;



• Ms Diane Robbie, Director of Learning.

Legislation

[4] Section 385 is as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[5] Section 386 is as follows:

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contact 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; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph 2(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[6] It was submitted by the Respondent that the exception in s.386(2)(a) to the primary definition in s.386(1) did not apply in this case. As such I have not considered the s.386(2)(a) exception when coming to my conclusion. The Respondent submits that the termination of Ms Tran’s employment is not a dismissal because it did not occur at the initiative of the employer and thus did not fall within the primary definition of ‘dismissed’ in s.386(1)(a). Instead, the Respondent submits that the term of the sessional engagement agreement (SEA) for Teaching Period 3 2015 (2 November 2015 – 12 February 2016) had expired.

What is agreed?

[7] The Respondent provides online education services under the trading name Swinburne Online. Courses are offered across the TAFE, undergraduate and postgraduate levels with three teaching periods per year. It is not disputed that the Applicant is covered by the Educational Services (Post-Secondary Education) Award 2010 (the Award) 1, which provides for full-time, part-time, casual and, for teaching staff only, sessional employment.

[8] It is not in dispute that the Applicant was employed by the Respondent as an eLearning advisor (eLA) and/or unit coordinator (UC) and that the terms were recorded in accordance with the letter signed by the Applicant on 15 January 2013 and a series of SEAs. The letter provides amongst other things that:

“The Company may from time to time offer to employ you on a sessional basis. The offer of a sessional engagement and any specific terms applying to each sessional engagement will be set out in a schedule provided to you (“Sessional Engagement Agreement”). This letter otherwise sets out the other details of your employment with the Company and should, along with each Sessional Engagement Agreement, be retained as a record of the terms and conditions of your employment. Unless replaced by new written terms, the terms and conditions in this letter will apply to each sessional, engagement, in addition to the terms of the Sessional Engagement Agreement.

…

The company has classified you as a sessional academic teacher in accordance with clause 10.5 and 14 of the Educational Services (Post-Secondary Education) Award 2010. Your rate of pay, hours of work and mode of appointment will be as per the relevant Sessional Engagement Agreement.

…

You agree that you have no guarantee of ongoing employment beyond the current Sessional Engagement.” 2

[9] It is also not in dispute that prior to the commencement of each sessional engagement the Applicant was provided with a SEA detailing amongst other things the engagement period, the hours of work, remuneration for pre-teaching or unit familiarisation or any marking work, if necessary, a brief description of the unit and that following the end of each sessional period that the Applicant could be paid her accrued entitlements. The evidence of the Respondent that at the end of each sessional engagement, the Applicant was in fact paid out her annual leave is unchallenged. 3

The Award

[10] The relevant clauses from the Award are:

“10. Types of employment

…

10.5 Sessional employment

This clause applies only to teaching staff members.

(a) A sessional employee is an employee engaged to work on a full-time or part-time basis for a specified period or periods of not less than four weeks or more than forty weeks in any calendar year.

(b) A sessional employee will be paid at the same rate and be entitled to the same conditions as those prescribed for a full-time or part-time teacher with the same qualifications, experience and teaching load.

(c) On termination of a sessional engagement, an employee may elect to be paid out accrued annual leave entitlements or have the employer preserve them for use during a subsequent sessional engagement; provided that where the leave is not taken within 12 months of it accruing, or the employee is not re-engaged within eight weeks, the accrued entitlement will be paid out. See also clause 25—Annual leave.

(d) Subject to the employee’s satisfactory conduct and performance, where an equivalent position will exist at the expiry of the employee’s period of engagement, the employer will offer a further engagement to the employee.

(e) Where practicable, notice of re-engagement will be given at least two weeks prior to the expiry of the current engagement and the employee will give one week’s notice of acceptance to the employer.

10.6 Continuous service

This clause applies only to teaching staff members.

For the purposes of the NES:

(a) One or more engagements of a casual or sessional employee with an employer will be deemed to be continuous unless more than eight weeks have elapsed between those engagements. The period between engagements will not count as service.

(b) Service will be deemed to be continuous notwithstanding that it has been broken if the interruption was caused by the employer with the intention of avoiding an obligation under this award, another industrial instrument or relevant legislation.

10.7 Letter of appointment

On appointment, an employer will provide an employee (other than a casual employee) with a letter of appointment stating their classification, rate of pay and mode of appointment. In the case of a sessional teacher this will also state the cessation date of the employment.

11. Termination of employment

11.1 Notice of termination is provided for in the NES. This clause provides industry specific detail and supplements the NES in relation to termination of employment.

11.2 Notice of termination-teaching staff member

(a) The employment of a teaching staff member (other than a casual employee) will not be terminated without at least four weeks’ notice (inclusive of the notice required under the NES) or the payment of four weeks’ salary instead of notice.

(b) Where a course, previously scheduled, is cancelled because of the failure of students to attend, or to notify the employer that they would not be attending, or because the employer is otherwise made aware that the course will be undersubscribed and therefore have to be cancelled, and the employer cannot give four weeks’ notice of termination of a teaching staff member, notice of at least two weeks will be given provided that the minimum notice period required by the NES must be given.”

[11] It is agreed that the Applicant was engaged under clause 10.5 of the Award as a sessional academic teacher. 4

Submissions of the Applicant

[12] The Applicant maintains that the Commission should question the validity of the letter and SEA on a number of grounds including the following:

• It is defective in parts and does not comply and/or is in contravention of the Award requirements;



• It required acceptance of conditions inconsistent with the terms of the Award as a condition precedent to acceptance of the role;



• It sought to disrupt and undermine the protections of the Award provisions to the Applicant’s detriment;



• It is not defined or contemplated for use under the terms of the Award; and



• It is not commonplace in the industry. 5

[13] The Applicant submits that the correct question to be asked in this matter is not whether the employment of Ms Tran terminated with the effluxion of time, rather, whether the cessation of employment was objectively the probable result of the employees conduct.

[14] The Applicant submits that Ms Tran’s employment did not end with each engagement and although there was no guarantee of follow-up engagement, the employment relationship did not end until the employment relationship was brought to an end by either party giving notice. It submits that there was no evidence led by either party that notice was given in accordance with clause 11 of the Award and as such the Respondent’s actions in failing to offer Ms Tran further engagement was conduct that had the intended consequence of bringing the employment relationship to an end.

Submissions of the Respondent

[15] The Respondent submits that the Applicant’s employment as an eLA and UC ended consistent with the clearly expressed terms of the letter and SEA; both of which are consistent with and based on the Award provisions relating to the employment of sessional employees. 6

[16] The Respondent submits that Ms Tran was employed pursuant to a series of outer limits contracts comprising the letter and the relevant SEA, and that each period of employment ended at the cessation date set out in the SEA.

[17] Whilst the Respondent accepts that the Award contemplates termination by either party in accordance with clause 11, it submits that the provision is not inconsistent with the letter and SEA, rather, that the option to terminate before the cessation date distinguishes such employment contracts from contracts for a specified period of time.

[18] It further submits that there is no inconsistency between the letter and clause 10.5(d) of the Award, rather, the Award clause expressly recognises that there will be situations in which the Respondent is not required to offer a sessional employee with further sessional engagement at the expiry of the employee’s period of engagement. The requirement to offer or not offer such further sessional engagements is subject to an employee’s conduct and performance and the existence of an equivalent position at the expiry of the employee’s period of engagement.

[19] The Respondent submits that the language of the Award clause recognises that each sessional engagement shall stand alone as a separate period of employment and is consistent with the Respondent’s position that the employment of Ms Tran ended due to the effluxion of time at the expiry of the sessional teaching engagement on 12 February 2016.

Evidence

[20] Evidence was led by both parties as to the circumstances that led to the Respondent not offering Ms Tran further allocations beyond Teaching Period 3 2015. Much of that evidence surrounded Ms Tran’s rejection of the role of UC for the subject LAW60003, a masters’ subject.

[21] Ms Robbie explains that there are up to 500 eLAs who may or may not be available for each teaching period. 7 She states that each course comprises a number of discrete units that typically are taught in a single teaching period that runs for 12 weeks and 16 weeks for a UC.8 Ms Robbie describes enrolments as unpredictable, that uncertainty exists as to unit offers and the gaps between teaching periods.9 She provides this information as an explanation for the engagement of eLAs on a sessional basis for a specified period of time associated with a particular teaching period.10 She states that at the end of the specified period, the employment ends.11

[22] Ms Robbie states that Swinburne Online maintains a database of suitably qualified persons who are contacted before the commencement of each teaching period to remind them to nominate the unit preferences for the forthcoming teaching period. 12 She further states that whilst a nomination indicates an eLA’s availability for employment it does not guarantee that the eLA will be offered employment in that unit or any other unit.13 She states that depending on the type of units being offered and the number, there may be a significant number of eLA’s not allocated groups or are not allocated to the groups they prefer.14 She states that the eLA preference process is open for around five weeks for any eLAs to submit their preferences and availabilities.15 Ms Robbie’s evidence is that on some occasions Ms Tran was either offered work which she refused or did not submit preferences for units.16

[23] Ms Williams gave evidence that once the information regarding allocations was made available to human resources she, or someone else in her role, would send an eLA an email advising them of their allocations in week 12 which they would either reject or accept. 17 She described these allocations as tentative because they are based on the current forecast of student enrolment numbers.18 Ms Williams stated that eLA’s remained on the data pool indefinitely and would be taken off if they asked to be removed.19

[24] Ms Williams states that Ms Tran signed a sessional employment letter on 15 January 2013. 20 Ms Williams witness statement attached Ms Tran’s sessional engagement agreement’s for the following teaching periods:

• Teaching Period 1 2013 (11 March 2013 – 7 June 2013) 21

• Teaching Period 2 2013 (1 July 2013 – 4 October 2013) 22

• Teaching Period 3 2013 (4 November 2013 – 14 February 2014) 23

• Teaching Period 2 2014 (30 June 2014 – 19 October 2014) 24

• Teaching Period 3 2014 (3 November 2014 – 13 February 2015) 25

• Teaching Period 1 2015 (9 March 2015 – 5 June 2015) 26

• Teaching Period 3 2015 (2 November 2015 – 12 February 2015) 27

[25] Ms Tran was also employed in Teaching Period 1 2014 (10 March 2014 – 8 June 2014), however Ms Williams was unable to locate the sessional engagement agreement for that period. 28

[26] Ms Williams confirms Ms Robbie’s evidence that there were occasions where Ms Tran was not employed as an eLA because she did not submit a preference for a particular teaching period. She also states that there were occasions where Ms Tran was not offered an allocation. 29 Ms Williams confirms the evidence of Ms Robbie as to the mechanisms in place for the engagement of eLA’s.30 She states that there are three teaching periods per year and that Swinburne Online employs approximately 250 eLA’s per teaching period, although the number fluctuates depending on the number of units being offered, the number of students enrolled in those units and the number of groups of students in each unit.31 She states that Swinburne Online maintains a database of around 460 qualified teachers and tutors who submit preferences for teaching periods within weeks four and five of the current teaching period by logging into the eLA portal.32 She states that a reminder email is sent to the eLA’s to advise them that the form is open.33

[27] She states that once an eLA accepts the unit offered to them they are sent a SEA around two weeks before the commencement of teaching, which they are asked to sign by the end of the week in which they receive it. 34

[28] Ms Tran confirms she was engaged by Swinburne Online as an eLA and UC and that she signed her sessional employment letter on 15 January 2013. 35 She does not take issue with much of the evidence of Ms Williams as it relates to the circumstances surrounding the terms of her employment with Swinburne Online. To the extent that she disputes Ms Williams evidence in relation to the contractual arrangements, she states that she does not agree with the proposition that she was not employed for Teaching Period 2 2015 (6 July 2015 - 2 October 2015). She states that whilst she did not put in preferences for that period by virtue of her aunt’s terminal illness, she did perform non-teaching work for the unit LAW10004 which included reviewing exams and providing feedback to students, corresponding and meeting Swinburne Online staff to discuss improvements to the unit. Ms Tran produced a series of payslips as evidence for this period of work.36 Whilst I accept Ms Tran’s evidence as to the work performed during this period I do not accept her characterisation of it as evidence of an ongoing employment relationship.

[29] Ms Tran also gave evidence that she received an offer to put in preferences for Teaching Period 1 in 2016 (14 March 2016 - 10 June 2016), for which she submitted six preferences, but was not offered any work. 37 She states that she did not receive an offer to put in preferences for Teaching Period 2 in 2016 (11 July 2016 – 7 October 2016) and that when she emailed Ms Mansourpour and Ms Robbie between 18-21 July 2016 to ask why she had not been sent an email requesting her preferences to work during Teaching Period 2 2016, she was told the following factors were taken into account when the decision was made not to allocate her work:

• her withdrawal from the UC duties for Teaching Period 3 2015 at the last minute;



• that this withdrawal did not meet Swinburne Online’s expectation of how an eLA or UC should conduct themselves; and



• that due to the current pool of eLA’s in the law discipline, there was a small likelihood that she would be offered any units in future teaching periods. 38

[30] Ms Tran believes that Swinburne Online stopped giving her work because she made enquiries about her pay and because she refused to accept an allocation of work without clarification regarding the appropriate remuneration. 39

[31] Ms Tran also gave evidence as to the ‘removal’ of the UC role for LAW10004 in Teaching Period 3 2015 (2 November 2015 -12 of February 2016). Ms Tran states that she was disappointed that the role was removed from her allocation as she had put in a lot of paid and unpaid work developing the unit. 40 Ms Tran states that when Ms Robbie informed her that the role would not be allocated to her, she queried the decision with Ms Robbie, who asked her to contact the program director Mr Whitefield.41 In response to an enquiry from Ms Tran, Mr Whitefield sent an email advising that the role was offered to another employee because Swinburne Online needed to see if the other employee could undertake a UC role in a first year law unit and not because of Ms Tran’s performance in the role.42

[32] Despite the fact that Mr Whitefield specifically denied there being any performance issues relating to Ms Tran taken into consideration, Ms Tran maintains that the decision to ‘remove’ her allocation, coincided with Ms Tran’s decision to refuse the allocation of UC for LAW60003. 43

[33] Ms Tran accepts that she performed the role of eLA for LAW10004 in Teaching Period 3 2015 (2 November 2015 – 12 February 2016), that this was her last sessional employment and that she was paid for that work, including being paid out her holiday pay. Ms Tran states that her employment with Swinburne Online was terminated in March 2016. 44

[34] Ms Tran takes no issue with Swinburne’s contention that her employment is regulated by the Award or that she was given a letter of employment at commencement in January 2013 in the terms of the letter reproduced at paragraph [8]. Nor does she dispute that she was provided a series of sessional employment agreements in the terms of those exhibited to the statement of Ms Williams, prior to the commencement of the relevant teaching period.

[35] For the purposes of coming to my conclusion in this matter I have accepted the evidence of Ms Robbie and Ms Williams as to the method of engagement adopted by Swinburne Online in the allocation of staff.

Consideration

[36] In determining the question of whether Ms Tran’s employment was terminated at Swinburne Online’s initiative, the decision of Department of Justice v Lunn 45 while concerned with the Workplace Relations Act 1996 (Cth), provides useful guidance:

“[9] The WR Act has, for some time, excluded the jurisdiction of the Commission under s 170CE where the employee was “engaged under a contract of a employment for a specified period of time”: see s 170CBA(1)(a). It has been held that a contract with a nominated end date does not meet that description if it provides for a road or unconditional right of termination during its term. In such circumstances, the description of such a contract as an “outer limit” contract usefully distinguishes it from a contract for a “specified period of time” to which s 170CBA(1)(a) applies. There is no dispute that the Final Contract, executed on or about 16 January 2005, was an “outer limit” contract thus described.

[10] When a contract for a specified period or an “outer limit” contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer. Thus, the critical issue is whether what occurred on 24 March 2005 involved a termination at the initiative of the employer.

…

[20] In short, the decision of the High Court in Blackadder is not authority for the proposition for which it is cited (“It is no longer accepted that the mere payment of wages is sufficient to sustain an employment relationship.”). The proposition that the mere payment of wages is not sufficient to sustain the employment relationship is correct only for those categories of exception to the general common law rule that an employer has no obligation to provide work to an employee. Of course, where there is a common law obligation to provide work, a refusal to provide work may amount to a repudiation of the contract of employment. We can see no basis in the evidence for concluding that Ms Lunn’s employment fell within one of the categories of exception to the general common law rule that an employer has no obligation to provide work to an employee such that the conversation of 24 March 2005 involved a repudiation of the Final Contract, accepted by Ms Lunn, with the result that the Final Contract was terminated at the initiative of the employer rather than coming to an end through the effluxion of time.

Repudiation argument advanced on appeal

[21] On the appeal counsel for Ms Lunn advanced a repudiation argument on a different basis. The Commissioner found that the series of contracts that preceded the Final Contract was “a ‘sham’ arrangement” but nevertheless proceeded on the basis that the Final Contract was operative as between Ms Lunn and the Department. Counsel for Ms Lunn argued that the Commissioner erred in proceeding in that way and that, having regard to the circumstances and representations alleged by Ms Lunn in connection with the Final Contract, the Commissioner should have found that the Final Contract was also part of the same “sham” arrangement such that the true contract between Ms Lunn and the Department as at 24 March 2005 was an ongoing contract of employment and not the “outer limit” Final Contract. Counsel for Ms Lunn argued that the conversation of 24 March 2005 involved a repudiation of that alleged ongoing contract of employment, which repudiation was accepted by Ms Lunn with the result that the alleged ongoing contract of employment had been terminated at the initiative of the Department.

…

[27] Whatever may have been the position in the past, under the modern law, there can be no employment relationship without there also being a contract of employment in existence between the parties to the employment relationship. However, as the Full Court of the Federal Court in Brackenridge v Toyota Motor Corporation Australia Ltd made clear, the termination of a contract of employment does not necessarily result in the termination of the employment relationship between the parties to that contract of employment: if the parties enter, or are taken to have entered, a new contract of employment of employment, the employment relationship continues notwithstanding the termination of the prior contract of employment. Thus, a “continuous employment relationship” is not inconsistent with a series of back-to-back fixed term or “outer limit” contracts, each of which takes effect according to its terms. On the other hand, as noted by Dixon J in Automatic Fire Sprinklers Pty Ltd v Watson, it is possible for a contract of employment, and thus an entitlement to wages, to survive a termination of the employment relationship.

[28] Prior to 1996, s 170CB of the WR Act required the expression “termination of employment at the initiative of the employer” in s 170CE to be interpreted by reference to the meaning of the expression “termination of employment” in the Termination of Employment Convention. In that Convention the expression “termination of employment” refers to termination of the employment relationship rather than termination of an employment contract. In 1996 s 170CB was amended and, since that time, the expression “termination of employment at the initiative of the employer” in s 170CE has its ordinary meaning and refers to termination of a contract of employment. Thus, in this case we are concerned with whether there was a termination of Ms Lunn’s contract of employment at the initiative of the employer and not with whether there was a termination of the employment relationship.

[29] A particular consequence of the fact that the law of employment in the modern era rests on contract is that, with some qualifications and subject to any statutory provisions to the contrary, ordinary contractual principles apply in relation to employment contracts. A fundamental feature of the general law of contract, applicable in relation to the contracts of employment, is that the intention of the parties is determined objectively and, indeed, evidence of the subjective intention of the parties is not admissible in construing a contract. Subjective intention is relevant in determining whether the parties to a written document intended to create binding legal rights and obligations but it is not determinative and the objective test will prevail where, to all outward appearances, there was an intention to create legal relations.” [Endnotes not reproduced]

[37] The decision in Lunn was considered by Commissioner Deegan in Mark Drummond v Canberra Institute of Technology, 46 which also involved a series of outer limits contracts. She concluded:

“[42] On the basis of the Full Bench decision in Department of Justice v Lunn (relying on the High Court decision in Victoria v the Commonwealth) it is clear that under the legislative scheme in existence at the time of that decision, when a contract for a specified period or an ‘outer limit’ contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer.”

[38] Commissioner Deegan continued to consider whether the decision in Lunn remains “good law” under the existing legislative framework. In this context she had regard to the extract from the Explanatory Memorandum which accompanied the Fair Work Bill 2008, and is also relied on by the RACV. She concluded:

“[51] In my view the intention of the legislature is clear. Paragraph 1532 of the Explanatory Memorandum, in dealing with the new provisions relating to contracts for a specified term, notes that “(t)he fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season”. An employment contract which allowed for an earlier termination would encompass a contract for a fixed term. The intention of the legislature appears to be to retain the common law position that a contract which ends with the effluxion of time does not terminate at the initiative of the employer. The only change to the operation of the relevant provisions that is intended is to provide that an employee employed under a contract for a specified period of time, whose employment is terminated other than at the expiration of that contract, may make an application under the unfair dismissal provisions of the legislation.

[52] The applicant was employed under a fixed term contract which expired on 30 September 2009. The applicant’s employment terminated with the expiration of that contract. In these circumstances there is no jurisdiction for an application to be made pursuant to s.386 of the Act as there is no termination of employment at the initiative of the employer.”

[39] An appeal against that decision was dismissed by a Full Bench which found “that Commissioner Deegan did not err when she concluded that Dr Drummond was not dismissed from his employment at the initiative of CIT, but that his contract expired by the ordinary passing of time.” 47

[40] In Jerome (Ronghua) Jin v Sydney Trains (Sydney Trains) 48, Vice President Hatcher also considered these authorities. In that matter, Sydney Trains also contended that the Applicant had not been dismissed because his employment ended upon his fixed term contract of employment expiring as a result of the effluxion of time.

[41] Sydney Trains relied on the decision in Lunn as authority for the proposition that where an outer limit contract reaches its nominated end date, there is no termination of employment at the initiative of the employer. Although Vice President Hatcher expressed some concerns as to “whether Lunn should continue to be regarded as giving correct guidance concerning the interpretation and application of s.386(1)(a).” 49 He concluded:

“[81] However Lunn is a Full Bench authority which has become well entrenched in the Commission’s jurisprudence under the FW Act. I do not think it is appropriate that I determine this matter in disregard of it. Any reconsideration of Lunn should take place at the Full Bench level. Therefore, I will apply Lunn to determine the outcome of this case.” 50

[42] I have considered the concerns expressed above by Vice President Hatcher, but as a single member dealing with a matter, unless I consider a Full Bench authority plainly wrong, which in this case I do not, I will apply the authority.

[43] I now turn to consider the circumstances in the present case in light of the authorities, applying the Full Bench authority in Lunn. The determination of the application depends on whether the evidence establishes Ms Tran’s employment ended as a result of the effluxion of time or the outer limits contract of employment, in which case she was not dismissed, or whether it discloses that her employment was terminated at the initiative of the employer.

[44] I am satisfied that by and large, each of the witnesses gave their evidence in a forthright manner to the best of their abilities and recollection given the time that had elapsed between certain events and conversations and the date of the hearing.

[45] I am not persuaded by the submission advanced by the Applicant in paragraphs [12]–[14] that the terms of the award prevent a finding in favour of the Respondent. I do not accept the submission that clause 10.5 of the Award operates so as to guarantee ongoing engagements, nor do I accept that clause 10.5 is inconsistent with the terms of the letter or the SEAs. Rather, it sets out a series of conditions (one of which is an employee’s satisfactory conduct and performance) which need to be met before an offer of further engagement. I am not persuaded by the submission sought to be advanced by the Applicant that any perceived potential award non-compliance is a factor which bears on the question before me for consideration.

[46] I am satisfied that the evidence establishes that the terms of Ms Tran’s employment were set out in a letter dated 15 January 2013 and a series of SEAs entered into thereafter prior to the commencement of each sessional teaching period. I am satisfied that each sessional engagement constituted a new and separate period of employment.

[47] Ms Tran’s last engagement with Swinburne Online was Teaching Period 3 2015 (2 Nov 2015-12 Feb 2016) when she was engaged as an eLA for two groups in LAW10004. On the last day of Teaching Period 3, 12 February 2016, Ms Tran was paid out her annual leave as per her SEA. Two further payslips are in evidence after the 12 February 2016, one dated 26 February 2016 and another dated 11 March 2016.  51 The parties were asked to provide information to the Commission regarding the two payslips and how they sought to characterise them.

[48] The parties characterise the payslips as follows:

• The Respondent submits that the 26 February payslip applies to superannuation paid in respect to Ms Tran’s previous sessional engagement in Teaching Period 3 2015 and that the 11 March payment was for marking completed as a casual in relation to Ms Tran’s sessional engagement in Teaching Period 3 2015. 52



• The Applicant submits the 11 March payment was for work performed in the role of an eLA during the week beginning 27 February 2016, after the SEA expired. 53

[49] The Applicant submits that this bolsters her proposition that her engagement is properly characterised as ongoing. I do not agree with this statement. On the face of them, the 26 February and 11 March payslips relate to superannuation, and in the latter case it also includes a sum for marking.

[50] The evidence before me supports a conclusion that Ms Tran was employed under a series of SEAs which had a specific beginning and end. I am satisfied that the Respondent’s construction of the circumstances, in relation to the Applicant’s employment, is made out. There is no weight of strong countervailing factors that might, instead, indicate a continuous employment relationship. The forms of the contract offered to Ms Tran are explicit and unambiguous in that they are for non-ongoing employment and for defined terms. The evidence accords with the proposition that each of those extensions was a separate offering of employment that was within the discretion of the respondent to make.

[51] It follows that Ms Tran employment ended as a result of the effluxion of time. I do not accept that Swinburne was under any obligation to offer any further engagements to Ms Tran and as such she was not dismissed, nor could it be said that Swinburne took steps to terminate her employment.

[52] Given my findings above, the evidence and submissions of the parties regarding Ms Tran’s decision to refuse an allocation of UC for LAW60003 and the reasons for Swinburne Online’s decision to offer the UC role for LAW10004 to an employee other than Ms Tran have not formed part of my overall considerations.

Conclusion

[53] Having made these findings, it follows that Ms Tran’s application for unfair dismissal remedy is without jurisdiction and must now be dismissed. An order 54 to that effect will be issued at the same time as the decision.

COMMISSIONER

Appearances:

Sonja Terpstra, of NTEU for Applicant;

Jacinta Lane, of Kliger Partner Lawyers for Respondent.

Hearing details:

2016

20 December.

Final written submissions:

Respondent’s Final Submission, 27 January 2017

Applicant’s Final Submission, 10 February 2017

Respondent’s Final Submission, 24 February 2017

 1   Respondent’s Closing Submissions, lodged 27 January 2017, par.4&6; Outline of Applicant’s Closing Submissions, lodged 10 February 2017, par.10.

 2   Exhibit R1, attachment LW1.

 3   Outline of Applicant’s Closing Submissions, lodged 10 February 2017, par.14.

 4   Respondent’s Closing Submissions, lodged 27 January 2017, par.4&7; Outline of Applicant’s Closing Submission, lodged 10 February 2017, par.10-11.

 5   Outline of Applicant’s Closing Submission, lodged 10 February 2017, par.12.

 6   Respondent’s Closing Submissions, lodged 27 January 2017, par.27.

 7   Exhibit R2, par.6.

 8   Ibid.

 9   Exhibit R2, par.7.

 10   Ibid.

 11   Ibid.

 12   Exhibit R2, par.9.

 13   Exhibit R2, par.11.

 14   Exhibit R2, par.12.

 15   Exhibit R2, par.10.

 16   Exhibit R2, par.15 and attachment DR1.

 17   Exhibit R1, par.11.

 18   Ibid.

 19   PN230-231.

 20   Exhibit R1, par.13 & attachment LW1.

 21   Exhibit R1, attachment LW2.

 22   Exhibit R1, attachment LW3.

 23   Exhibit R1, attachment LW4.

 24   Exhibit R1, attachment LW5.

 25   Exhibit R1, attachment LW6.

 26   Exhibit R1, attachment LW7.

 27   Exhibit R1, attachment LW8.

 28   Exhibit R1, par.14.

 29   Exhibit R1, par.15.

 30   Exhibit R1, par.7&12.

 31   Exhibit R1, par.6.

 32   Exhibit R1, par.8.

 33   Ibid.

 34   Exhibit R1, par.12.

 35   Exhibit A1, par.2-4.

 36   Exhibit A1, attachment HT5.

 37   Exhibit A1, par.20.

 38   Exhibit A1, par.21.

 39   Exhibit A1, par.23.

 40   Exhibit A1, par.6.

 41   Exhibit A1, par.5.

 42   Exhibit A1, attachment HT1.

 43   Exhibit A1, par.7.

 44   Exhibit A1, par.19.

 45   PR974185, (2006) 158 IR 410

 46   [2010] FWA 3534.

 47   [2010] FWAFB 5455 AT [1] [sic].

 48   [2015] FWC 4248.

 49   [2015] FWC 4248 at [67].

 50 Ibid at [81].

 51   Exhibit A1, attachment HT5.

 52   Respondent’s Further Submissions in Reply, 31 May 2017.

 53   Applicant’s Further submission, 24 May 2017.

 54   PR594846.

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