John Burke v University of Technology Sydney (UTS)
[2019] FWC 3190
•9 MAY 2019
| [2019] FWC 3190 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Burke
v
University of Technology Sydney (UTS)
(U2018/10775)
COMMISSIONER JOHNS | MELBOURNE, 9 MAY 2019 |
Application for Relief of Unfair Dismissal – minimum employment period – whether breaks in employment broke continuity of service.
Introduction
[1] On 18 October 2018 John Burke (Applicant) made an application (signed on 17 October 2018) to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (Cth)(FW Act) for a remedy in respect of his dismissal by University of Technology Sydney (UTS/Employer/Respondent). Mr Burke contended that he was dismissed on 16 October 2018.
[2] The purported date of dismissal is important. This is because, as events transpired during the hearing, it became apparent, that (although the Applicant treated himself as having been constructively dismissed from his employment on 16 October 2018) he continued to be paid by UTS up until 29 November 2018 in respect of work that he performed in the Spring Term of 2018 in preparation for the Summer Term 2019.
[3] Curiously, for the first time, in the Applicant’s final closing submissions it was suggested that there was an alternate date of dismissal being 27 September 2018. Whether the dismissal date was 27 September 2018 or 16 October 2018 the UFD application was still made within the 21 day timeframe provided for in the FW Act. However, the submission made so late in the piece and for the first time is unfairly advanced against the Respondent. It is also against the evidence. The Applicant treated himself as having been dismissed on 16 October 2018. I therefore treat that as the purported dismissal date.
[4] On 31 October 2018 UTS filed a response to the unfair dismissal application in which it objected to the Commission exercising jurisdiction in relation to the matter on the basis that, it submitted, the Applicant was not dismissed (Not Dismissed Objection).
[5] At least from 14 January 2019 UTS made no concession that the Applicant had served the minimum employment period (MEP). It correctly submitted that the Commission needed to satisfy itself about the same. In the present matter UTS is not a small business. Consequently, the MEP is 6 months (s.383 of the FW Act).
[6] Conciliation was attempted, but the matter remained unresolved. Consequently the matter was listed for hearing on 30 January 2019 and 25 February 2019.
[7] At the hearing the parties were represented by lawyers. I had previously given permission to the parties to be represented (pursuant to s.596 of the FW Act) because I was satisfied that the matter was invested with sufficient complexity and, as such, that I would be assisted in the efficient conduct of the matter if I allowed the parties to be represented:
a) The Applicant was represented by Sebastian McIntosh of Counsel. Mr McIntosh called the Applicant to give evidence on his own behalf and be cross-examined.
b) The Respondent was represented by Tim McDonald from Moray & Agnew. Mr McDonald called Professor Carl Rhodes, Professor of Organisation Studies and Deputy Dean of the UTS Business School to give evidence and be cross-examined.
[8] In advance of the hearing the parties had filed submissions, witness statements and documents. After the conclusion of the hearing the Applicant took the unorthodox step of filing further closing submissions on 1 March 2019. In order to cure any unfairness I provided the Respondent with a further opportunity to file a closing submission. It did so on 11 March 2019.
[9] Consequently, in coming to this decision the Commission, as presently constituted, has had regard to the following materials in addition to the evidence received during the hearing:
a) Respondent’s Written Outline of Submissions (Exhibit #1),
b) Outline of Submissions in response on behalf of the Respondent (Exhibit #2),
c) Statement by Professor Carl Rhodes dated 11 December 2018 (Exhibit #3),
d) Supplementary Statement in Reply by Professor Carl Rhodes dated 18 January 2019 (Exhibit #4),
e) Statement in reply by Professor Carl Rhodes dated 14 January 2019 (Exhibit #5),
f) Applicant’s Written Outline of Submissions (Exhibit #6),
g) Witness Statement by John Burke (Exhibit #7),
h) Confidential Witness Statement by John Burke (Exhibit #8),
i) Email exchange between Mr Burke and Professor Alexander (Exhibit #9),
j) Email with Professor Taylor, March 2016 (Exhibit #10),
k) Applicant’s Statement of Facts (Exhibit #11),
l) Applicant’s Amended Statement of Facts (MFI-1),
m) Bundle of documents-emails from 9 July 2018 - 18 July 2018 (Exhibit #12),
n) Applicant’s Objection Schedule to Professor Rhodes’ Statement (Exhibit #13),
o) Background Information of the Respondent (Exhibit #14),
p) Email from Professor Tam to Professor Rhodes dated 27 September 2018 at 6.06 pm (Exhibit #15),
q) Pages 55 – 69 of Schedule 2A documents (email chain dated 17 September 2018) (Exhibit #16),
r) Pages 75 - 79 of Schedule 2A documents (email chain dated 24 August 2018) (Exhibit #17),
s) Pages 230 - 234 of Schedule 2A documents (email chain dated 27 August 2018) (Exhibit #18),
t) Email from Associate Professor Carallat to Professor Rhodes dated 31 August 2018 (Exhibit #19),
u) Email from Professor Tam to Professor Rhodes dated 31 August 2018 (Exhibit #20),
v) Email exchange between Professor Rhodes and Professor Tam dated 16 October 2018 (Exhibit #21),
w) Production document schedule 2A page 227 (Exhibit #22),
x) Affidavit of Leona Tam (Exhibit #23),
y) Respondent’s Outline of Submissions (Exhibit #24),
z) Applicant’s (post hearing) Closing Submissions dated 1 March 2019, and
aa) Respondent’s Outline of Submissions in Response to the Applicant’s Written Closing Submissions dated 11 March 2019.
[10] Further, both the Applicant and the Respondent referred me to various decisions. I have also had regard the same in coming to this decision.
Background
[11] Although the respective representatives of the parties agreed that the matter was invested with complexity and, as such, they would assist me in the efficient conduct of the matter they were unable to agree upon a statement of facts or chronology. The Respondent filed its version of a statement of facts on 25 January 2019. The Applicant handed up its amended version at the hearing on 25 February 2019.
[12] Having regard to both documents it seems to me that the following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:
1. From 2002 onwards the Applicant has run his own business. This business is called Channels Pty Ltd and provides pricing education and consulting services. 1 The Applicant brought industry experience to his lecturing.2
2. The Applicant was initially engaged by the Respondent’s Business School on 9 August 2010. He was engaged under documents titled Casual Academic Contract to perform lecturing in various marketing subjects, including Integrated Marketing Communications, Marketing Foundations, International Marketing and Applied Project in Marketing.
3. The Applicant has performed coordination duties for the postgraduate pricing subject each Autumn semester since the Autumn 2012 semester, and coordination duties for the undergraduate pricing subject each Autumn semester since the Autumn 2013 semester. 3
4. On 14 February 2012, the Applicant signed a document 4 that stated:
Period of employment | |
Date from | Date to* |
1/01/2012 | 31/06/2012 |
*Not to exceed twelve months | |
5. On 11 October 2012, Associate Professor Sandra Burke (the Respondent’s then head of Marketing Discipline Group) sent an email 5 to the Applicant with the subject line “2013 Teaching”. In that email, Professor Burke wrote:
Based on overall preferences from all academic staff, the teaching pattern I would like to suggest for you in 2013 is as follows:
Autumn: Pricing Strategies and Tactics – Coordination and teaching … AND Pricing and Revenue Management – Coordination and teaching …
6. On 4 February 2013, Michael Lee, Administration (Marketing Department), wrote an email to the Applicant, and others, with the subject line “Coordinators: Could I please have your tutor information”. In that email, Mr Lee wrote:
Dear Marketing Subject Coordinators
… if you are coordinating a subject and Sandra has agreed on a plan to employ casual academics, then I would be grateful if you would provide the following information …
Thank you to … John Burke (24224) who ha[s] already supplied much of the data for [the] subject 6
7. On 10 April 2013, the Applicant signed a document titled Casual Academic Employment Contract in respect of the subjects Pricing Strategies and Tactics, and Pricing Revenue and Management. The document states various “Start Date of Appointment”, the earliest of which is 16 February 2013, and “End Date of Appointment” dates, the last of which is 5 July 2013. 7
8. On 24 June 2013, Mr Lee wrote an email to the Applicant in which he stated:
To me the real issue is: if UTS is expecting a person to be working with access to the UTS systems, then we should be paying them. If this is only a small amount of work (but needs continued access), then I suggest we should engage the person with a casual contract – even if it’s only one hour per week for coordination. So maybe if you have a fixed term contract until say, early December, then this could be followed up with a low-hours casual contract till perhaps early January. After this you would enjoy the 6-month grace person of continued access that is provided to casual academics, which would carry you through to a possible subsequent fixed term (or casual) contract in Autumn Semester 2014. 8
9. On 4 October 2013, Professor Burke wrote an email to the Applicant with the subject line 2014 Teaching Confirmation. In that email, Professor Burke wrote:
This is to confirm that in 2014 we will plan to have you teach as follows … 9
10. On 21 November 2013, the Applicant signed a document 10 that stated:
Period of employment | |
Date from | Date to* |
1/12/2014 | 31/12/2014 |
*Not to exceed twelve months | |
11. The Applicant’s engagement was to extend to at least 31 December 2014.
12. On 4 December 2013, Swati Flora, the Respondent’s Acting Superannuation Officer, wrote the following to the Applicant:
Accepting a new fixed-term appointment takes your total employment period with UTS to greater than twelve months.
13. On 8 July 2014, the Applicant wrote an email to Professor Burke in which he stated:
As per our discussion, I wish to confirm that I will be resigning from the UTS effective today. 11
14. On 10 September 2014, Mitchell Osmond, Senior Academic Programs Officer, wrote an email to the Applicant in which he stated:
Attached is an outstanding grade from AUT14 for 24224.
If you know that the grade has been resolved, could you please let me know? Otherwise it’ll convert to a Z. 12
15. On 27 October 2014, John Elliott, Marketing and Communications Manager, wrote an email to the Applicant in which he stated:
Do you have any time availability to participate in a small working group to work on a more sophisticated pricing response for the Business School? 13
16. On 30 October 2014 at 2pm, the Applicant attended a meeting with John Elliot, the UTS Business School Marketing and Communications Manager, and Craig Lord, General Manager. The purpose was for us to discuss the Respondent’s 2016 university student fee structure. 14
17. From October 2014, the University of Technology, Sydney Academic Staff Agreement 2014 (Agreement) has applied to the Applicant and the Respondent. 15
18. Clause 17.3 of the Agreement provides that:
The rates of pay for casual staff will be as contained in Schedule 2. These rates of pay incorporate a casual loading in lieu of those Agreement benefits for which casual staff are ineligible including those leave entitlements to which casual staff are not entitled. The casual loading is 25% (with effect from 1 November 2012). 16
19. The Agreement covers lecturing, tutoring and other academic activity. In relation to casual lecturing, the Agreement provides:
‘Currently, a “lecture” means educational delivery described as a lecture in a course or subject outline that is a primary form of education delivery where information on the subject topic is delivered to the students for the first time’. 17
20. The Agreement also provides for ‘other academic activity’ as follows:
‘As for “other academic activities” where subject coordination duties are required. Subject coordination duties may include the development of teaching and subject materials such as the preparation of subject guides, reading lists. The hours allocated will be agreed based on the number of students involved and the complexity of the task’ 18
21. Clause 37.9 of the Agreement provides:
The normal pattern of academic workload is 40% teaching, 40% research and 20% other activities.
22. The rate for lecturing depends on the type of lecture. The post graduate pricing subject is classified as “Developed” whereas the undergraduate pricing subject is classified as “Basic”. The nominal hourly rate for lecturing is higher than for coordination, although it is effectively the same when regard is had to Schedule 4(i) which sets out assumed non-contract hours associated with each hour of delivery.
23. On 6 November 2014, Dr David Waller, Marketing Discipline Group, wrote an email to the Applicant stating:
Dear John
This is to confirm that in 2015 we will plan to have you co-ordinate as follows:
Autumn:
24224 Pricing Strategies & Tactics
24760 Pricing and Revenue Management 19
24. On 19 December 2014, Mr Lee wrote an email to the Applicant in which he stated:
David Waller has advised me that you will be returning to UTS in Autumn Semester 2015 to coordinate and teach in 24760 and 24224. David has indicated that you will be doing this as a casual employee.
To re-establish your email account, and access to UTS systems in general, will involve two steps.
1. Re-activate you from ‘ex-employee’ status on the HRU database
2. Establish at least one casual contract
In relation to step 2, I propose to establish a contractor for coordination of 24760 which will run from 3 January to 24 July (a 28 week period), although it will pay only 18 weeks (at 3 hours per week) … Importantly, this will provide access to UTS computer systems (including email) from 3 January …
Further contracts for coordination of 24224, as well as teaching and marking in both subjects, will be prepared about 2 weeks before semester begins. 20
25. On 22 December 2014, the Applicant replied to Mr Lee’s 19 December 2014 email stating:
The idea of stretching the payment to 28 weeks is good, but can it be extended to 52 week’s, which would keep year round access…
Also, thought I’d mention that there is plenty of work on the side with these subjects, especially for the projects and exams. I always make the subjects fresh with new material … 21
26. On 22 December 2014, Mr Lee replied to the Applicant’s 22 December 2014 email, in which Mr Lee wrote:
No problems. The good aspect of being a casual is that the email account and access to UTS computer systems remains available for 6 months after the casual contract ends. So people who only have contracts every Autumn Semester can retain perpetual access …
Unfortunately, conscientious lecturers and coordinators who do more than the minimum amount of preparation will tend to be disadvantaged financially, as we pay standard amounts for coordination and teaching regardless of the actual time spent performing those duties.
27. On Monday 5 January 2015, Mr Lee wrote an email to the Applicant in which Mr Lee stated:
Attached is the coordination contract for 24760. Because this contract is being created early, the actual enrolments might change. 22
28. The document attached to Mr Lee’s email was a one-page document titled casual academic employment contract, and which was signed by the Applicant on 5 January 2015. The document states “Start of Appointment” of 3 January 2015, and “End of Appointment” of 26 June 2015. 23
29. Mr Burke was not engaged in research. 24
30. Under cross examination the Applicant said the following:
“And each and every time that you were engaged as a casual employee on a contract, you were given a new contract? Yes.
And you were - it was for you to decide whether to accept it or not? Yes.” 25
31. During his evidence, the Applicant said the following:
And so that period from 15 January 2015 to 16 July 2015 is you teaching and coordinating in the pricing subject in the autumn semester of 2015. Is that correct?---It ends on 16 July.
Yes. That's what I'm saying. That period from January to July, is that you teaching and coordinating in the Autumn of 2015?---Yes, Commissioner.
Right. And then you will see the next payment is 24 March 2016. Do you see that?---Yes.
And so you had 36 weeks break in your employment. Is that right?---From July to - in paid employment. Yes, Commissioner.
Right. And then look over to page 4 and the sixth last row says 28 July 2016. Do you see that?---Yes, Commissioner.
So going back to page 3, where it starts on 24 March 2016, over to page 4, 28 July 2016, is that you teaching and coordinating in the pricing subject in the autumn semester of 2016?---Yes, Commissioner.
And you will see after that, the next entry is 23 March 2017. Is that right?---That's correct.
So there was a break there are some 34 weeks when you weren't getting paid by the University. Is that right?---That's correct, Commissioner.
And come across to page 6, a little over halfway down you will see an entry 13 July 2017. Do you see that?---Yes, Commissioner.
For $69.70. So from page 4 where it starts, 23 March 2017, over to page 6 where it says 13 July 2017, that's you teaching and coordinating the pricing subject in the Autumn semester of 2017. Is that right?---Yes, Commissioner.
And then the next payment is 22 February. So you had a break of 32 weeks without being paid by the University. Is that right?---Yes, Commissioner.
Right. So 22 February 2018, then come across to page 9, and you will see an entry 12 July 2018?---That's right.
So that period of 22 February 2018 through to 12 July 2018, is that you teaching and coordinating the pricing subject in the autumn of 2018? The autumn semester?---Yes. I've got a feeling one of the 12th ones is as well. One of the 12 July ones is also. It's possible, because I remember the contract went to July. I might be wrong on that. I can check.
All right. But then the next entry - so for weeks later there is a payment on 8 August and that goes through to 29 November. Now that's the coordination of the spring semester. Isn't that right?---That's right. With the exception of the $55.74.
What's that miscellaneous for?---That was miscellaneous for completing some training session online. It was separate. It was a University-wide training session online. It was separate. It was a University-wide training that all staff that all staff had to do. 26
32. The documents titled Casual Academic Employment Contract that were signed by the Applicant stated:
I have read and accept the Conditions of Appointment below and I accept Contract of Employment as specified in this form.
33. The document titled “Conditions of Employment” was not always provided to the Applicant.
34. The version of the document titled “Conditions of Employment” that was most recently provided to the Applicant is dated 6 August 2015. 27
35. The Applicant said during cross examination:
And sometimes it was said to you that you could look on the University's Intranet and there was a link that you could go to without getting the full contract? Yes. And other times there were no mention at all. 28
36. Point 9 of that Conditions of Employment provided that:
The Employee shall be given two weeks notice or the balance of the period of the Contract of Employment (whichever is lesser), or payment in lieu of notice should the University with to terminate his/her employment prior to the conclusion of the Contract of Employment. Such notice will not be provided where the Employee is found to be guilty of misconduct, unsatisfactory performance or other action which would, in the case of a continuing staff member, warrant dismissal.
37. Point 10 of that Conditions of Employment provided that:
A 25% loading is included in the gross salary rate specified in Part B of this Contract of Employment. This loading is paid in lieu of all leave entitlements. The employee is not entitled to any termination payment on completion of this casual contract of employment.
38. Point 12 of that Conditions of Employment stated:
This is a casual contract of employment and does not entitle the Employee to subsequent employment with UTS.
39. Point 24 of that Conditions of Employment stated:
This Contract and the UTS enterprise agreement are relevant to the Employee’s position (refer to clause 13) constitutes the entire agreement between the parties as to the Employee’s employment and supersedes all previous communications, understandings, representations and agreements and any prior condition, warranty or indemnity or representation imposed, given or made by a party. In executing this Contract, the Employee acknowledges that he/she is not relying on any representations by, or on behalf of, UTS unless expressly incorporated in to this Contract.29
40. On 15 January 2015, the Applicant was allocated a desk at the new Building 8. 30
41. On 3 August 2015, Professor Morrison sent an email to the Applicant in which she stated:
I would like you to be a member of the DG External Engagement Committee. You wouldn’t be expected to take on a large role, but I feel your advice and industry contacts would be invaluable …
I’ve also been meaning to arrange a time to have coffee with you and learn a little about yourself and your ideas relating to the B-School. 31
42. On 4 August 2015, the Applicant responded to Professor Morrison’s email, stating:
Would be good to be involved with the DG External Engagement Committee. 32
43. Professor Rhodes says the following in his witness statement:
There is a degree of flexibility with UTS’s academic staff and this is necessary for it to be able to operate effectively. No academic, whether they be permanent or casual, senior or junior, has the right under their contract of employment to dictate the subjects that they will teach and/or coordinate, or when those subjects will be scheduled. 33
44. The Applicant’s rates of pay were derived from Schedule 2 of the Agreement and, at the time he last worked, they were $263.98 per hour for lecturing and a rate of $65.35 per hour for other academic activities, including marking and subject coordination. 34
45. On 15 September 2015, the Respondent published an article including the following words:
Students in the subject Pricing and Revenue management set about the challenge under the supervision of pricing strategist and subject coordinator John Burke. 35
46. On 3 November 2015, Professor Morrison wrote an email to the Applicant stating:
This is to confirm our earlier discussion that we would like you to coordinate and teach the ug and pg pricing subjects in Autumn 2016. 36
47. On 4 November 2015, the Applicant responded to Professor Morrison’s email stating:
Looking forward to continuing with UG & PG Pricing.
48. In November 2015, the Applicant attended a Marketing DG meeting. 37
49. On 14 March 2016, the Applicant signed a document titled Casual Academic Employment Contract in respect of the subjects Pricing Strategies and Tactics, and Pricing Revenue and Management. The document states various “Start Date of Appointment”, the earliest of which is 19 March 2016, and “End Date of Appointment” dates, the last of which is 10 June 2016. 38
50. On 15 March 2016, the Applicant notified Professor Pam Morrison (‘Professor Morrison’) (the then Professor and Head of Marketing Discipline Group), that Autumn 2016 marked his fifth year coordinating the postgraduate pricing subject and his fourth year coordinating the undergraduate pricing subject. The Applicant stated:
I am assuming it will continue as per normal, but would like some confirmation to assist with my future plans. 39
51. Further, on 15 March 2016, the Applicant emailed Professor Morrison “asking for your [her] commitment for coordinating 24224 and 24760 in Autumn 2017 and beyond”. 40
52. When Professor Morrison had not responded, he emailed Professor Taylor on 22 March 2016 stating “my coordinating position may come to an end as they plan to appoint someone else; either with a PHD or for some other reason, to run the two subjects from next year” and that he did not want to “feel” that “I will be out of a job in 2017”. 41
53. On 23 March 2016, Professor Morrison emailed the Applicant stating that:
Current planning would have you teaching pricing (ug and pg) in Autumn 2017, and this is the most likely outcome. As I’ve said to you previously I can’t guarantee what the DG needs will be in 2017, but with current information I have I will be asking you to teach again in 2017. You do a wonderful job and this is evidenced by the student feedback.” 42
54. On 24 March 2016, the Applicant emailed Professor Morrison stating:
Although I appreciate your comments, your reply does not confirm coordination. The way I read your email is that the DG is unsure whether it will be offering pricing next year to students? I am sure that this is not the case and that you have at least a five year plan in place, and if I have done and continue to do an above average job over the years, then my name should be in pen.
When we spoke, there were no rumours about and I trusted you and just assumed all would be fine for next year. However, I started hearing rumours and therefore sent an email to you for reassurance. 43
55. Professor Morrison responded on the same day stating:
When we spoke in 2015 I did say I was unable to guarantee you teaching Pricing forever, because as the recruitment of new academics continue, at some stage in the future ‘pricing’ may get taught by one of the new academics. However I don’t see this happening before 2018 at the earliest” 44
56. On 24 March 2016, the Applicant wrote to Professor Pam Morrison stating amongst other things:
If the commitment for 2017 Coordination and teaching as per current schedule for 2017 is evident, then this is fine for now and hopefully the process for looking after good coordinators and teaching staff will be improved upon.
BTW, I should be entitled to be very protective of pricing because of the many many hours required to improve and continue to improve the two subjects. To have it taken from me for no fair reason is a demotion and an insult and definitely the students and I don’t really care about your academic replacement policy. Surely there were certain subjects identified that should have been left as is, pending performance.
I do not understand why you treat me any different to another coordinator. If it is because you pay me as a casual, then you could work out how to put me back on a % permanent basis and then strangely enough, you will treat me differently. 45
57. On 7 April 2016, the Applicant wrote an email to Professor Morrison in which he stated:
thank you for confirming coordination and teaching of pricing for 24224 & 24760 for Autumn 2017. 46
58. On 22 April 2016, the Applicant signed a one-page document titled casual academic employment contract providing a start date of appointment of 19 March 2016 and an end date of appointment of 8 July 2016. 47
59. In June 2016, the Applicant applied for the continuing full-time position of Scholarly Teaching Fellow but his application was unsuccessful. 48
60. On 15 August 2016, the Respondent’s Business School published an article that included the following words:
Pricing strategist and subject coordinator John Burke says 49
61. On 14 November 2016, Professor Morrison emailed the Applicant stating:
This is to confirm our earlier conversation that we would like you to teach the ug and pg Pricing subjects in AUT 2017. 50
62. On 16 November 2016 at 5:30pm, the Applicant attended a function at UTS Shopfront. 51
63. On 2 March 2017, Professor Morrison wrote a letter to Harvard Business School Publishing in which she stated:
This is to confirm that John Burke has been the coordinator, lecturer, and workshop facilitator for postgraduate 24760 Pricing and Revenue Management since Autumn semester 2012, and also the coordinator and lecturer for undergraduate 24224 Pricing Strategies and Tactics since Autumn semester 2013. 52
64. On 6 March 2017, the Applicant signed a document titled Casual Academic Employment Contract in respect of the subjects Pricing Strategies and Tactics, and Pricing Revenue and Management. The document states various “Start Date of Appointment”, the earliest of which is 13 March 2017, and “End Date of Appointment” dates, the last of which is 9 June 2017. 53
65. On 27 April 2017, the Applicant signed a document titled Casual Academic Employment Contract in respect of the subjects Pricing Strategies and Tactics, and Pricing Revenue and Management. The document states a “Start Date of Appointment” of 27 February 2017, and an “End Date of Appointment” of 1 July 2017. 54
66. On 19 September 2017, the Respondent posted on social media:
Our John Burke has been speaking on radio about #strategies for #pricing 55
67. On 26 October 2017, the Applicant attended an External Engagement Committee (EEC) meeting. 56
68. On 16 November 2017, the Applicant attended a Marketing Discipline Group meeting. 57
69. On 17 November 2017, Professor Morrison emailed the Applicant stating:
Yesterday I confirmed your AUT ug and pg Pricing subjects, but I forgot to ask if you’d also be able to teach the pg Pricing subject in Summer 2018 (this spans 2018/19).
I hope you’re interested and available to teach this additional subject.” 58
70. On 17 and 20 November 2017, the Applicant emailed Professor Morrison with proposals in relation to the summer pricing subject. 59
71. On 20 November 2017, Professor Morrison wrote to the Applicant stating:
Thanks John. Really good to hear you're able to teach the PG Pricing subject in Summer 2018 (ie 2018/2019). 60
72. On 28 November 2017, Paul Burke, Associate Professor, emailed the Applicant a tentative schedule for the Summer 2018/19 semester. 61
73. On 21 December 2017, the Respondent posted on social media:
Our pricing specialist, @JBurkePricing, worked with @UTS_Business postgrad students to develop a #sustainable #strategy for the Accessing Sydney Collectively Campaign… 62
74. On 21 December 2017, the Respondent posted on social media:
Four UTS students under the academic supervision of Marketing’s pricing specialist, John Burke … 63
75. On 5 January 2018 at 10.17 am the Applicant was included in a list of “Subject Coordinators and Assessors for 2018”. 64 The was in table format,65 stating as follows:
Undergraduate AUTUMN 2018 | |||
Subject ID | Subject | Coordinator | Assessor |
24224 | Pricing Strategies and Tactics | John Burke | Ping Xiao |
Postgraduate AUTUMN 2018 | |||
Subject ID | Subject | Coordinator | Assessor |
24760 | Pricing & Revenue Management | John Burke | Ping Xiao |
Postgraduate SUMMER 2018 | |||
Subject ID | Subject | Coordinator | Assessor |
24760 | Pricing & Revenue Management | John Burke | Ping Xiao |
76. On 16 January 2018, Mr Lee sent an email to the Applicant in which he wrote:
Dear John,
I understand that you are the Subject Coordinator responsible for allocating staff to the classes shown in the table below.
For Business School teaching data collection, casual academic contracts, and the Student Feedback Surveys, I need to know who is teaching each of our classes. Further, I need to ensure that we comply with a number of constraints on casual staffing, namely:
- an upper limit of 15 hours face-to-face teaching per week for any one individual
- a DG requirement (new in 2018) that each of our PhD student’s total teaching and research assistant workload is approved by their supervisor
- all class staffing should comply with AACSB standards
Therefore, would you please supply the following information:
1. the name of each class teacher in the yellow cells
2. check the number of teaching weeks shown is correct for each class and advise me if there is an error
3. let me know if any of these classes are unlikely to run or additional classes are planned but not shown
and return the information to me before noon on Friday 23 February? 66
77. On 24 January 2018 at 12:31pm, the Applicant replied stating:
Hi Michael
Below is the completed table for pricing.
For 24224, Peter will teach 3 tutes (2pm, 3pm, 4pm) & Belinda 2 tutes (3pm & 4pm). Will allocate actual tute class when classroom confirmation received.
For 24760, Lectures & Workshops will end on 8/6/18, instead of the 15/6/18.
Regards
John 67
78. On 9 February 2018 at 2.35 am, the Applicant received an automatic notice that his email account would be deleted, which he forwarded to Mr Lee. 68
79. On 9 February 2018 at 10.10 am, Michael Lee, Administration (Marketing Department) wrote to the Applicant stating:
I will prepare your Coordination Contract for 24760 to get you back as an “employee” which should allow you to access your emails etc. 69
80. On 12 February 2018 at 1.40 pm, Mr Lee wrote to the Applicant stating:
Attached is a coordination contract for “24760 Pricing and Revenue Management” for your review. 70
81. On 12 February 2018, the Applicant signed a one-page document titled Casual Academic Employment Contract in respect of the subject Pricing Revenue and Management. The document states a “Start Date of Appointment” of 19 February 2018, and an “End Date of Appointment” of 8 July 2018. 71
82. Before 14 February 2018, the Applicant drafted a document titled “Subject Outline 24760 Pricing and Revenue Management”. 72
83. Between 2 July 2017 and 18 February 2018, the Applicant sent approximately 219 emails from his UTS email account. 73
84. On 29 March 2018, in addition to his employment in relation to the Pricing and Revenue Management subject, the Applicant was offered work on pricing projects as a community course coordinator in a non-academic capacity with the UTS Shopfront. 74
85. On 29 March 2018, Lisa Anderson, Manager, UTS Shopfront Community Program, sent an email into which the Applicant was copied, in which Ms Anderson stated:
John has come on board under a casual contract with Shopfront for the extra hours he is working on the pricing projects. 75
86. The Applicant signed a Casual Employment Contract which said:
“This is a casual Contract of Employment and does not entitle the Appointee to subsequent employment with UTS.” 76
87. On 5 April 2018, Mr Lee sent an email to “Subject Coordinators”, which group included the Applicant. 77
88. On 12 April 2018 at 10.54 am, Mr Lee wrote to the Applicant stating:
Attached is your Autumn Session marking contract and coordination contract… 78
89. On 13 April 2018, Mr Lee sent an email to “Coordinators”, which group included the Applicant. 79
90. On or around April 2018, casual academics from the pool of applicants in the Marketing Department, including the Applicant, were asked what subjects they would be interested in teaching in 2019. 80
91. On 13 April 2018, the Applicant signed a one-page document titled Casual Academic Employment Contract in respect of the subject Pricing Strategies and Tactics. The document states a “Start Date of Appointment” of 19 February 2018, and an “End Date of Appointment” of 8 July 2018. 81
92. On 20 April 2018, Professor Leona Tam, Professor and Acting Head of Marketing at UTS, met with the Applicant. There is disagreement as to what transpired at that meeting.
93. On 28 June 2018, the Applicant attended an External Engagement Committee meeting. 82
94. On 29 June 2018, Mr Lee wrote an email into which the Applicant was copied in which he stated:
Attached are the draft Minutes of yesterday’s Marketing External Engagement Committee meeting for your review…
- John to talk to his contacts about a possible LinkedIn workshop 83
94A. On 9 July 2018 at 1.47 pm the Applicant received an email from “Student Administration EMS” bearing the subject title “Special Considerations awaiting assessment”. The email stated:
Dear John Burke,
The special consideration applications listed in this email have been referred to you for assessment.
…
Please follow your Faculty process for assessment of applications, including referral to your designated RAO…
To assess the applications referred to you:
- Log …
- Click on ‘EMS Web’ … 84
94B. On 10 July 2018 at 12.33 pm, the Applicant was copied into an email from Courtney O’Regan, which stated:
Please find attached the updated list of Spring and Summer 2018 subject coordinators and assessors …
94C. Attached to the 10 July 2018 email was a table that listed the Applicant as the Coordinator of the Summer 2018 Pricing & Revenue Management subject. 85
94D. On 11 July 2018, the Applicant received an email from [email protected] with the subject titled “[SFS] Teaching staff – Results of your Autumn 2018 Student Feedback Survey (SFS) are now available”, and by which access was provided to the results of the SFS. 86
95. On 12 July 2018 the Applicant received 8 payments from the Respondent. 87
95A. On 13 July 2018, the Applicant received an email from [email protected] with the subject titled “[SFS] Subject coordinators – Results of your Autumn 2018 Student Feedback Survey (SFS) are now available”, and by which access was provided to the results of the SFS. 88
95B. On 13 July 2018 at 10.52 am, the Applicant was copied into an email regarding the collection of exam papers. 89
95C. On 13 July 2018 at 11.39 am, the Applicant wrote to Courtney O’Regan:
I think this must be the last exam for 24224. Do you mind picking up and scanning. 90
95C. On 13 July 2018 at 11.50 am, Ms O’Regan responded to the Applicant by attaching the exam.
95E. On 13 July 2018 at 2.07 pm, the Applicant replied to Ms O’Regan with an attachment, and an email stating:
AVR Attached for … 24224.
95F. On 13 July 2018 at 2.10 pm, Ms O’Regan responded to the Applicant:
Thanks John, I’ve printed this and put it into Leona’s tray for approval. 91
95G. On 16 July 2018 at 9.47 am, the Applicant emails Peter Rodgers and Belinda Barton stating:
I received a report on your SFS’s. Well done to both of you. Fantastic effort and pleased you have been recognised by the students for your hard work. Very difficult now to decide who is the World’s Best Pricing Tutor.
95H. On 17 July 2018 at 8.57 am, Ms Barton thanked the Applicant. 92
95I. Between 17 July 2018 and 19 July 2018 the Applicant engaged in an email exchange with a student about their grade. 93
95J. On 17 and18 July 2018, the Applicant engaged in an exchange about the pricing subject in 2019. 94
96. On 18 July 2018 at 2.35 am, the Applicant received an autogenerated email advising that his email account was scheduled for deletion in 30 days’ time. 95
97. On 18 July 2018 at 8.47 am, the Applicant asked Mr Lee asking for his assistance. 96
98. On 18 July 2018 at 9.41 am, Mr Lee wrote to UTS Payroll stating:
I would like to do a casual academic contract for John Burke (staff ID 110147) beginning 23 July, but he is “ex-employee”. Would you please reactivate him? 97
99. On 18 July 2018 at 9.56 am, Mr Lee wrote to the Applicant stating:
I will do this by creating a very long duration contract for your coordination role in Summer Session 24760 (same amount of money, but will be trickled through to your bank account over a 6 month period, from July 2018 to Jan 2019). The only risk with this approach is that if the subject doesn’t run for some reason (currently 16 students are enrolled), you would have to pay back the coordination payment). 98
100. On 18 July 2018 at 10.28 am, Mr Lee wrote to Professor Tam stating:
John Burke has become an “Ex-employee” due to the completion of his casual academic contract. This means that he loses access to UTS computer systems, including his UTS email account. He asked if we can reverse this. There may be something we can do … but I think we would only want to proceed down this track if we are (nearly) 100% sure that we will employ John again in the future. 99
101. On 18 July 2018 at 10.31 am, Mr Lee wrote to UTS Payroll stating:
Further to my earlier request, could you please hold off restoring John Burke to the Payroll for the time being? I’ll let you know if we do decide that we want him reactivated 100
102. On 18 July 2018 at 10.39 am, Mr Lee wrote to UTS Payroll stating:
Yes, I have a definite answer – we *do* want to reactivate John Burke so I can do a casual academic contract starting 23 July. 101
103. On 18 July 2018 at 10.56 am, UTS Payroll wrote to Mr Lee stating:
John’s primary assignment is UTS Shopfront and been ended (terminated) could I please have the casual academic employment request form and a new tax form. 102
104. On 18 July 2018 at 11.17 am, Mr Lee wrote to the Applicant stating:
Payroll have advised that it is your UTS Shopfront employment termination that has triggered the current situation. 103
105. On 18 July 2018 at 1.16 pm, Ms Anderson sent an email to Mr Lee in which she stated:
My understanding is that, as Shopfront is currently in process of being moved from 'DVC Enterprise' to 'Provost' in NEO -that all non-current contracts were terminated as a matter of course to make the move easier. Please let me know if there is anything Shopfront can do, as this should have no impact on his employment with the Business School, which preceded the contract with Shopfront and should be his primary employment. 104
106. On 19 July 2018, Mr Lee wrote an email into which the Applicant was copied, stating as follows:
… I am going to have to move our Department meeting again …
I am just about to issue the Outlook invitations moving the Department meeting from 13 September to 20 September. 105
107. The Respondent asserts that:
(a) the contract under which the Applicant was employed and under which he continued to be employed was #1333911 for the period 23 July to 18 November 2018;
(b) the Applicant had never previously had a casual contract for work at that time; and
(c) the contract was for a total of one hour’s work/pay and was only issued so that he would have email access if required. 106
108. On 25 July 2018, Mr Lee emailed the Applicant attaching the contract for 24760 Pricing and Revenue Management for Summer Session 2018. Mr Lee’s email states:
Attached is a contract for Coordination of “24760 Pricing and Revenue Management” in Summer 2018. The contract is provided in advance for this year only, because of the unexpected termination of your UTS employment …
Note that the coordination contract is split into two components:
1. A small contract #1333911 (1 hour) for coordination work which might be required in advance of the subject’s commencement, during Spring Session.
2. The normal coordination contract #1333912 for a Summer PG subject with one class taught by the coordination – 15 weeks at 2.5 hours per week.
If for some reason we do not proceed with this subject in Summer 2018, or if we decide to employ a different coordinator, or if you decide you don’t wish to teach the subject, then the contract #1333912 will be cancelled in its entirety. If the subject enrolment increases I will review contract #1333912 in November and provide an additional contract or Variation of Contract, as appropriate. 107
109. On 30 July 2018, the Applicant signed the contract. 108 The value of the contract was $2,450.25.109
110. The Applicant never before taught or had coordinator duties in a Summer Session. 110
111. The Pricing subjects have not before been offered to students during the Summer Session.
111A. On 3 August 2018 at 3.15 pm, Professor Tam wrote to Mr Lee stating:
We are looking into potentially doing fixed-term contracts for teaching. Can you give numbers about Iain, John Burke, and Kaye … 111
111B. On 6 August 2018, Mr Lee responded to Professor Tam’s 3 August 2018 request. 112
112. BLANK
113. On 24 August 2018, Professor Tam emailed the Applicant
Thank you for supporting the Department and agreeing to teach 24760 Pricing and Revenue Management in the Summer 2018 session. As advised by the new Deputy Dean, subjects need to be coordinated by continuing staff. Ingo Bentrott will be the subject coordinator for 24760 that you lecture in the Summer. He will be in touch. 113
114. At 10.50 am on 24 August 2018, the Respondent’s website listed the Applicant as both an Autumn session coordinator, and a summer session coordinator. 114
115. The Applicant responded on the same day at 11.45am saying “Before I respond officially, I would like to know the reasoning behind my demotion.” 115
116. Professor Tam responded on the same day at 11.48 am that “I was advised that casuals should not coordinate subjects …” 116
117. The Applicant responded to Professor Tam on the same day stating: “I will not compromise my principles nor allow my reputation to be damaged by this unjustified demotion …” 117
118. Professor Tam respondent to the Applicant at 5.00 pm on the same day stating:
Please contact the deputy Dean Carl Rhodes directly regarding this. 118
119A. As at 27 August 2018, the Applicant remained a member of the marketing external engagement committee. 119
119B. On 27 August 2018 at 10.27 am, Professor Tam forwarded the Applicant’s email to Professor Rhodes stating:
FYI. Another email from the same casual. Thank you for writing to him.120
119. Professor Rhodes then emailed the Applicant on 27 August 2018 at 11.56 am, and offered to meet with him in person and asked the Applicant to direct his questions to Professor Rhodes.121
120. On 27 August 2018 at 12.02 pm, Professor Tam wrote to Michael Lee stating:
John Burke and Iain McDonald both have emailed me about not coordinating.122
121. On 27 August 2018 at 4.03 pm, the Applicant wrote to Professor Rhodes outlining the good work that he had performed as coordinator of the pricing subjects, and in which the Applicant wrote:123
Perhaps a fractional contract could be one of the solutions to alleviate the pending problem
121A. On 27 August 2018 at 4.32 pm, Professor Rhodes forwarded the Applicant’s 27 August 2018 4.03 pm email to Professor Tam stating:
see message below from John Burke. He certainly thinks a lot of himself!
I will reply, but can I just confirm some facts:
- How many hours a week were we paying for coordination?
- Will he still have the option to teach (without coordinating)?124
121B. On 27 August 2018 at 4.42 pm, Professor Tam wrote to Professor Rhodes stating:
After knowing all the special treatment he has been receiving for so many years, I am not surprised.
For his PG Pricing class (24760), we have been paying 4 hours a week (for 17 weeks in Autumn) for coordination, totalled $4399 per session in 2017 and 2018.
For his UG Pricing class (2422), we have been paying 5.75 hours a week (for (17 weeks in Autumn) for coordination, totalled $5633 of 6323 per session in 2017 and 2018.
Of course he wouldn’t want to give the above numbers up! He can still teach the summer without coordination. But he need to confirm soon (say, by the end of August, if possible).
Thank you so much for taking care of this!125
121C. On 30 August 2018 at 2.34 am, Professor Tam wrote an email to Professor Rhodes with the subject heading “Paid coordination” stating:
For John Burke
- Paid 4 to 5.75 hours per week per subject in 2017-2018 for 4 subjects.
- The total per subject ranged from $4,300 to $6,300.
- Total = $20,646.126
121D. On 30 August 2018 at 8.55 am, Professor Rhodes responded by asking how many students were in each of these subjects.127 Professor Tam provided a response.128
121E. On 31 August 2018 at 11.58 am, Mr Carrillat wrote to Professor Rhodes stating:
John mentioned to me his disappointment about potentially losing the coordination of his subject and asked me if I could help. I just wanted to say that John has been a very good colleague and important contributor to teaching & learning in the DG not just in the classroom but in getting industry partners involved.129
121F. On 31 August 2018 at 12.25 pm, Professor Tam wrote to Professor Rhodes stating:
I have academics coming to me and asked what’s happening with John Burke. He is now asking people to “put in good words” for him in emails.130
121G. On 11 September 2018 at 10.04 am, Professor Tam wrote to the Applicant, in response to him being listed in the Top 20 in the UTS Business School from student 2018 – SFS scores in response to the question: “Overall, I am satisfied with how this staff member facilitated my learning”, stating:
Congratulations, John!131
121H. On 17 September 2018 at 12.43 pm, Professor Tam wrote to Professor Sara Denize, Associate Dean Education, cc’ing Professor Rhodes, stating:
Carl and I discussed the qualification required for lecturing, specifically the AQ+1 rule.132
121I. On 17 September 2018 at 5.28 pm, Professor Denize provided an explanation of her understanding of the AQ+1 rule to Professors Tam and Rhodes.133
121J. On 17 September 2018, Professor Rhodes wrote to Professor Denize and Professor Tam stating:
The inquiry was mainly in relation to what we should expect from casual academics.134
121K. On 17 September 2018 at 5.44 pm, Professor Tam responded to Professor Rhodes’ email without copying Professor Denize, stating:
John Burke has no PhD and doesn’t meet any of the four criteria Sara listed.135
122. On 19 September 2018, Professor Rhodes met with The Applicant. There is a dispute as to what occurred at this meeting.
122A. On 19 September 2018 at 6.06 pm, Professor Tam wrote to Professor Rhodes stating:
Just confirming I will teach the PG subject John Burke taught before, after you met him today. 136
122B. On 20 September 2018 at 11:04am, the Applicant emailed Michael Lee:
Just apologising for not attending the DG Meeting today (if it's on - I get confused with all the changes). FYI, I never mentioned that I broke some ribs a few weeks ago and has made travel a little difficult, as in a fair bit of pain at the moment. Doctor says a few more weeks to recover. 137
122C. On 20 September 2018 at 11:33am Michael Lee responded to the Applicant’s email:
Hi John Your apology will be noted. I have broken ribs myself on more than one occasion, so I have some idea how you're feeling. Usually takes me more than 6 to 8 weeks to become pain-free. Best wishes Michael Lee 138
122D. On 21 September 2018, Professor Denzie wrote a letter to the Applicant in which she wrote:
Congratulations on your outstanding record of teaching as recognised by students in the Autumn 2018 SFS scores…
On behalf of the Dean and the School, thank you for your commitment to teach and learning, and congratulations on your Top 20 Postgraduate achievement in Autumn.
123. On 27 September 2018 at 11:56 am, the Applicant received an email from executive assistant Maria Mattiello, which included a letter from Sara Denize (Deputy Dean Education) dated 21 September 2018 congratulating the applicant on being in the Top 20 of UTS Business School postgraduate teachers for the Autumn 2018 semester. 139
124. On 27 September 2018 at 1.35 pm, Professor Rhodes emailed the Applicant stating:
While we very much appreciate the work you have done and contributions you have made to our teaching program over a long period of time, based on the issues above we are proceeding with bringing the subject coordination of the subjects you have taught back in-house and will not be asking you to teach on the upcoming Pricing subject. 140
125. On 2 October 2018 at 5.25 pm, the Applicant responded to the email of 27 September 2018 from Professor Rhodes. In that email, the Applicant stated:
I strongly believe that my dismissal is not in the best interest of the students, which is the key reason the university exists. The decision to cease my employment as the coordinator and lecturer after doing the same good job, year in, year out every Autumn for the last 7 years with well above average student outcomes, including recognition by ACEN as an exemplar of work integrated learning, is wrong on all counts. 141
125A. On 2 October 2018 at 6.52 pm, Professor Rhodes forwarded to Ms Osborne and Professor Tam the Applicant’s email to Professor Rhodes. Professor Rhodes stated:
See the email below, and my email to which he is responding
it is from a casual lecturer who we did not give work to this summer, partly because of the excessive hours he was being paid, but also to avoid casuals coordinating.
Can you offer advise [sic] on how to respond 142
125B. On 3 October 2018 at 9.56 am, Professor Rhodes wrote to Professor Tam stating:
What did you make of the email from John Burke? I thought it was time to hand it over to the professionals – that’s why I sent it to Jackie so we can make a formal response. 143
125C. On 3 October 2018 at 10.00 am, Professor Tam wrote to Professor Rhodes stating:
I agree with you passing it to HR. He’s becoming aggressive in his email and doesn’t accept the fact that it’s not his decision. There is no “dismissal” as his casual contract for summer teaching is not issued yet.
Now I understand why nobody in Marketing dared to take this subject in the Summer. He got to have talked to a lot of people about this. I am determined to make this class completely different by flipping it and it will still work. 144
125D. On 3 October 2018, Jackie Osborne, Joel Arnott and Felicity Howell met to discuss what advice they were going to provide to Professor Rhodes. 145
125E. BLANK
125F. On 3 October 2018 at 8.01 pm, Ms Taylor wrote to Professor Rhodes stating:
John is a prickly character. Pam and I had some interesting dealings with him too (I briefed Leona on these). I will forward you some emails re issues with him which were resolved after F2F meetings. When I met with him he calmed down and appeared to listen to reason but it was a long meeting plus several emails (I tried to avoid generating long to and fro communications).
We agreed that Pam was going to replace him when we had new recruits that could teach these subjects but it seems in the end that she thought it was easier to keep him on. 146
125G. On 3 October 2018 at 8.01 pm, Professor Taylor forwarded to Professor Rhodes an email chain between the Applicant and Professor Taylor dated 22 March 2016, and stated to Professor Rhodes:
Carl this is the situation I mentioned – the first email. I then met with him and subsequently Pam kept him on. 147
125H. On 3 October 2018, Professor Rhodes responded to Professor Taylor stating:
Do you know why Pam decided to keep him on? 148
125I. On 4 October 2018 at 3.59 am, Professor Taylor wrote to Professor Rhodes stating:
From memory it was because it was easier and she could quarantine some of the new hires from teaching … 149
125J. On 4 October 2018, Professor Rhodes responded to Professor Taylor stating:
seems likes the soft option was taken!
Also, do you know how he managed to negotiate to be paid so many hours for coordination? In management we only ever paid 1 hour per week 150
125K. Professor Rhodes responded to the Applicant on 4 October 2018 at 1.40pm indicating that he had reviewed his response and noted his concerns. He offered to further discuss the matter ‘and hopefully reach a resolution’ and indicated that he would contact him once he had returned to work (he had been overseas). 151
125L. On 4 October 2018 at 1.54 pm, Professor Rhodes wrote the “heads”, cc-ing Professor Tam, and stating:
Leona and I are dealing with an issue in Marketing concerning payments to casual staff for coordination and teaching, as we briefly discussed at our meeting last week.
We need to confirm common practice across the school.
Can I ask:
- Have you employed any casual staff to coordinate subjects over the past year?
- If so,
• How may hours per week and for how many weeks per term are you paying them and at what rate?
• What rate are you paying them for teaching of the same subject?152
125M. On 4 October 2018 at 5.16 pm, Professor Tam wrote to Professor Rhodes stating:
To summarize, the common practice in the Bus School is either zero (Econ, Acct) or one (Mgmt, Fin) hour per week for the length of the session at the rate of about $65.
John Burke has been paid 17 weeks in the range of 4 – 5.75 hours per week at the same rate of about $65 in Autumn 2018 for each subject coordination.
The over-payment is 68-97.75 hours compared to 12 hours. It’s between 5.5 times to over 8 times over other DGs.
I am gathering the numbers for his over-payment since he started in Marketing 7 or 8 years ago.153
125N. On 4 October 2018 at 7.21 pm, Professor Rhodes acknowledged Professor Tam’s email.154
126. On 5 October 2018 at 12.38 pm, the Applicant responded to Professor Rhodes email accepting his invitation to meet. 155
126A. On 5 October 2018 at 3.13 pm, Professor Tam wrote to Professor Rhodes stating:
John Burke has been paid the following amounts each year for the PG subject for coordination, lecturing, tutoring and marking. I put the number of students in the bracket.
2018: $25,554 (102 students)
2017: $23,989 (108 students)
2016: $21,922 (96 students)
2015: $21,816 (89 students)
He didn’t teach it in 2014
2013: $19885 (76 students)
AS a reference point, a Level B Step 5 salary is $112,981 right now. Assuming a 40% teaching load, one subject would be 10% which is $11,298. Adding 17% super, it’d be $13,219 for one subject. Please note, that includes only the lecture and one tute. But there are not that many tutes for the student numbers. Just one or two additional ones. 156
126B. On 5 October 2018 at 10.30 pm, Professor Rhodes wrote to Professor Tam stating:
Thanks Leona – good info to have
Do you know how he managed to negotiate this over generous deal? 157
126C. On 6 October 2018 at 4.47 am, Professor Tam wrote to Professor Rhodes stating:
He didn’t need to negotiate. It’s our system that allows it.
The coordination was overblown because of our historical way of calculating the number of coordination hours in Marketing. And he has been doing all the lectures, tutes, and marking himself since 2013. Nobody else did anything for the PG subject since 2013.
Looking at the contract history, he only did the lecture and coordination (no tutes or marking) when he taught this subject for the first time in 2011 (he did tutes with no coordination for other subjects before). He was paid 97 hours for coordination.
My guess is, he then understood our system of calculating casual hours and pay. He started allocating the tutes and marking to himself as coordinator from the next time he was asked to teach this subject in 2013 (he didn’t teach in 2012 at all for us). Coordinators decide on the tutors and markers in Marketing.
…
The above explains why neither of them [the Applicant and Iain McDonald] want to give up the coordinator role. Once you are not the coordinator, not only you lose the over-generous coordination pay, you have no control over who does how many tutes or marking.
…
We should have at least one, ideally two, continuing academic who can teach each subject rather than relying on casuals… 158
126D. On 6 October 2018 at 2.04 pm, Professor Rhodes to Professor Tam stating:
Just to be clear, for the $25,554 we paid him in 2018 how many classroom hours did he have (lectures and tutorials) and how as the coordination hours calculated? 159
126E. On 7 October 2018 at 1.35 am, Professor Tam wrote to Professor Rhodes stating:
For $25,554, we have 24 lecture hours (2-hour lecture * 12 weeks) and 36 tutorial hours ( 3 one-hour tutes * 12 weeks, I am checking why it is 12 weeks instead of 11 weeks). The total is 60 hours. 160
127. On 12 October 2018, the Applicant received a voucher for $150 to acknowledge him being in the “top 20” of post graduate teaching. 161
127A. BLANK
127B. BLANK
127C. BLANK
127D. BLANK
127E. BLANK
127F. BLANK
127G. BLANK
128. On 16 October 2018 at 9.11am, Professor Rhodes sent an email to the Applicant containing the following words:
“During our meeting, and as Leona had set out in her email to you on 24 August 2018, I mentioned that whilst you were not going to be asked to coordinate the subject in the Summer session, the Faculty was still happy to offer you casual work teaching the Pricing subject. During our meeting you refused to consider teaching into the subject in the upcoming summer session, unless you were also employed as the subject coordinator. I note that the School retains the discretion to appoint and vary course coordinators as it sees appropriate, from time to time. I also point out this subject has never run previously in the new Summer session.
…
As I said previously, the School very much appreciates the work you had done and contributions you have made to the Faculty, which is why we hoped that you would continue to teach for the School on the upcoming Pricing subject.
Further, whilst the School will not be offering you casual shifts to coordinate the Pricing subject in the same subject in that session. I note that Leona has also tried to understand from you whether you are interesting in teaching into other subjects.
Whilst I had indicated that we would not be asking you to teach on the upcoming Pricing subject, this was because you had indicated you were not interested in doing this. If that is no longer the case, we are happy to extend this offer of casual teaching work to you, again, for the Pricing subject in this upcoming summer session. Further, we are happy to discuss whether there are any other opportunities for you to teach as a casual in other subjects across the School. Please let me know if you wish to engage in such casual teaching work.
…
I am happy to discuss any of the above further in our next meeting and hope that the School and students can continue to benefit from your contributions.” 162
128A. On 16 October 2018 at 9.37 am, Professor Tam wrote to Mr Lee stating:
You can cancel the coordination contract for Summer now. We won’t issue any more casuals coordination contract unless it’s emergency. 163
128B. On 16 October 2018 at 10.53 am, Mr Lee wrote to UTS Payroll, cc’ing the Applicant, stating:
We would like to cancel casual academic contract #1333912 *John Burke, ID 110147), due to run from 19 Nov 2018 to 08-Mar-2019.
I have completed the Variation of Contract form attached, although the entire contract is being cancelled because we have changed the staffing arrangement so the position is no longer required. 164
129. On 18 October 2018, the Applicant filed a claim for unfair dismissal. The Applicant did not regard Professor Rhodes’ offer as being one he could reasonably accept. 165 Mr Burke stated in cross-examination:
“But you didn't accept the offer. You filed the unfair dismissal claim instead?---Yes. Because of that reason. It was a diminished role.” 166
130. On 21 October 2018 at 11.34 am, the Applicant responded to Professor Rhodes email of 16 October 2018 indicating a preparedness to meet again. 167
131. Professor Rhodes responded to the Applicant on 24 October 2018 offering to schedule a meeting on return from an overseas trip for 1.00pm on 13 November 2018. 168
132. Professor Rhodes was notified by the Fair Work Commission later that day (at 5.53pm) that an Application Alleging Unfair Dismissal had been filed by the Applicant on 18 October 2018. 169
133. On 25 October 2018, Mitchel Osmond, Teaching & Learning Officer (UTS Business School) provided a reference for the Applicants Learning and Teaching Award application stating:
While I have worked with many dedicated academics over the years, I believe John to be the most dedicated in his pursuit of enhancing his student learning and success in a typically difficult subject for students: 24760 Pricing and Revenue Management.” and, “Despite the fact that John only taught as a casual academic in Autumn sessions, I would frequently be contacted by John throughout the Spring and Summer sessions, looking for advice, exchanging ideas and looking for the best possible adjustments to make his assessments more authentic for the students. This culminated in the creation of the best authentic assessment I have seen in the UTS Business School. 170
134. On 26 October 2018 at 11.18 am, the Applicant acknowledged Professor Rhodes’ email of 24 October 2018 and said “Thanks Carl”. 171
134A. On 9 November 2018, the Respondent produced a document titled “Subject Outline 24760 Pricing and Revenue Management” in respect of the summer 2018/19 semester. The document stated:
Subject coordinator
Prof. Leona Tam
…
Teaching staff
Subject lecturer and workshop facilitator
Prof. Leona Tam 172
135. On 13 November 2018 at 5.16 pm, UTS wrote to the Applicant. A subject outline was attached to the letter, and it set out the shifts that the Applicant was being offered, being:
• 2.00pm–5.00pm, 7 December 2018: Applying the Basic Pricing Methods and Understanding Margin Arithmetic; Pricing a Complex Event.
• 2.00pm–5.00pm, 14 December 2018: Pricing a New Product.
• 2.00pm–5.00pm, 25 January 2019: Pricing a Consumer Packaged Good.
• 2.00pm–5.00pm, 1 February 2019: Pricing a B2B Product.
• 6.00pm–9.00pm, 15 February 2019: Pricing a Consumer Durable.” 173
136. The Applicant estimates that the value of teaching these classes (being 3 contact hours per week for five weeks) would be $3,959.70. 174
137. Professor Tam, indicated in that letter that “If you wish to accept these shifts, please advise me within the next 7 days, by no later than 20 November 2018, and we will issue you with a casual contract.” The letter also stated that ‘the Business School is happy to consider you for casual teaching in other suitable subjects’ and stated that the Applicant should let Professor Tam know whether there were any Department of Marketing subjects that he would be interested in for teaching or tutorial work in 2019. 175
138. On 14 November 2018 at 11.03 am, the Applicant stated:
“Thanks Leona
Can you please send through the Coursepack and other material, as well as the textbook for review.
Regards
John” 176
138A. On 14 November 2018, Professor Rhodes wrote to Professor Tam as follows:
Hi Leona,
There is no need to send him the materials in advance. I suggest replying along the lines:
Thanks John,
The materials are currently under review, but subsequent to a contract being signed, we can send them to you in ample time for you to prepare for delivering machines 177
139. On 14 November 2018 at 5.24 pm, Professor Tam responded to the Applicant:
“Hi John,
Thank you for your email. The materials are currently under review. Subsequent to a contract being signed, we can organize to send you the materials. There will be plenty of time for you to prepare for delivery the classes.
Best,
Leona” 178
140. On 16 November 2018, Mr Burke wrote to Professor Alexander, Deputy Vice Chancellor (Education and Students) seeking her intervention because:
“I need to make two decisions on Monday:
1. To accept to teach an inferior version of PG Pricing…” 179
141. Professor Alexander responded to the Applicant on 16 November 2018 and said that she could not “see a compelling reason to seek overturn the decision made by the facility’s courses committee or faculty board”. She further said:
“I am told that you have been offered a casual teaching role on the subject which I do hope you will give strong consideration to accepting…”
142. Professor Alexander also referred the Applicant to the process for staff related grievances should he wish to take it further.
143. Mr Burke responded to Professor Alexander on 18 November 2018 and stated that “had a look at the grievance process and it will not provide any benefit for me.”
144. Under cross examination the Applicant stated:
“Until the first pay period after 18 November you continued to be employed and paid by the University? Yes. 180”
145. On 19 November 2018 at 12.38 pm, the Applicant emailed Dean Earley, the Dean of UTS Business School seeking “a genuine apology and be converted to part-time if necessary, and allow me to continue coordinating and teaching pricing” and stated:
“They have offered me to teach what I believe to be a massively altered inferior version of a subject including the removal of the real client projects, but not the coordination. Even if I accepted the offer which is clearly a demotion and disregard for my past work for no valid reason, this would mean relying on another contract that they can just cancel anytime based on the previous cancelled coordination contract.” 181
146. On 19 November 2018 at 12.49 pm, Dean Earley responded the Applicant offering to meet with him to discuss his concerns but indicated that:
“the authority and decisions made by the department are reasonable, appropriate and within their scope of decision-making. While this may be disappointing news, I appreciate your inputs into the education of our students and I understand that you will be continuing some work with the university as a casual academic in the near future.” 182
146A. On or about 20 November 2018, Professor Tam attempted to remove the Applicant as a user in respect of “UTS Online 24760 Sum 2018”. 183
147. On 20 November 2018, UTS received a response to this letter from the Applicant’s lawyer indicating that his client “refused to accept a diminished role of only teaching and not coordinating the Pricing and Revenue Management subject”. 184
147A. On 28 November 2018 at 2.42 pm, Professor Tam wrote to Mr Tucker stating:
Please go ahead and block … John Burke from UTS Online. 185
[13] The Applicant submits he was unfairly dismissed. He seeks an order that he be reinstated into what he considers to be his former substantive role with UTS, namely an ongoing role teaching and coordinating the undergraduate and postgraduate Pricing subjects.
[14] As stated above the Respondent contends that the Applicant is not protected from unfair dismissal because he did not complete a period of employment with UTS of at least the minimum employment period (being 6 months). In the alternative UTS says it did not dismiss the Applicant.
[15] Because it must first be established that a person is protected from unfair dismissal (s.383 of the FW Act), before it is determined if they have been dismissed (s.385(a)), it is necessary to deal with the MEP objection before the Not Dismissed Objection.
Protection from Unfair Dismissal
[16] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[17] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[18] In the present matter there is a dispute about whether the Applicant has completed the MEP of 6 months. That issue needs to be determined as a preliminary jurisdictional matter.
[19] The Applicant says that the employment ended on 16 October 2018. Without deciding, at this stage, whether the employment ended at the initiative of UTS, in order for the Applicant to have served the MEP he must have been employed for the 6 months “immediately before dismissal” (s.383(a)(ii) of the FW Act) i.e. prior to 16 October 2018. That means the Applicant must have been continuously employee on and from 16 April 2018.
[20] Although the Applicant has worked for UTS at least since August 2010, the Applicant’s most recent employment with UTS comprised the following periods 186:
Semester | Start | Finish | Description |
Autumn 2015 | 15 January 2015 | 15 July 2015 | Casual academic, non-continuing Teaching and (separately contracted) coordination (26 weeks) |
36 week break | |||
Autumn 2016 | 24 March 2016 | 28 July 2015 | Casual academic, non-continuing Teaching and (separately contracted) coordination (18 weeks) |
34 week break | |||
Autumn 2017 | 23 March 2017 | 13 July 2017 | Casual academic, non-continuing Teaching and (separately contracted) coordination (16 weeks) |
32 week break | |||
Autumn 2018 | 22 February 2018 | 12 July 2018 | Casual academic, non-continuing Teaching and (separately contracted) coordination (20 weeks) |
4 week break | |||
Spring 2018 | 9 August 2018 | 29 November 2019 | Contract #1333911 1 hour’s work $65.45 paid over the period Payment in advance of coordination role in Summer 2018/2019. Primary purpose of the contract was to keep the Applicant on the UTS IT system. Also, 1 payment on 6 September ($55.74) for completing a training session. |
Summer 2018/2019 (not ultimately worked) | 19 November 2018 | 8 March 2019 | Contract #1333912 $2,450.25 for coordination. |
[21] During the hearing I put the above summary to the Applicant. He agreed with the same including the fact of the significant breaks.
[22] From the payroll information it is clear that during the breaks there was no work performed by the Applicant for UTS for which he was paid.
[23] For the first time in the Summer Term the Pricing subject was to be offered in addition to the usual offering in the Autumn Term.
[24] On or about 25 July 2018 the Applicant was offered:
a) A “small contract #1333911 (1 hour) for coordination work which might be required in advance of the subject’s commencement, during Spring Session”. This 1 hour payment was spread over the period 9 August 2018 to 29 November 2018. The primary purpose of this contract was to keep the Applicant on the UTS IT system.
b) A “normal coordination contract #1333912 for a Summer PG subject with one class taught by the coordinator – 15 weeks at 2.5 hours per week”. The contract was due to start on 19 November 2018 through until 8 March 2019. The covering email to the contract provided that “if we decide to employ a different coordinator… then the contract #1333912 will be cancelled in its entirety.”
[25] On 30 July 2018 the Applicant accepted these contracts.
[26] At least from August 2018 the Applicant understood that, for the Summer Term 2018/2019 and thereafter, coordination was not going to be offered to him (i.e. that contract #1333912 was being cancelled).
[27] The Applicant says he did not focus on the words “if we decide to employ a different coordinator”. His decision not to focus on those words is a matter he should take responsibility for. The document is clear in its face. The document was only one page in length. The Applicant is a very intelligent and competent adult. He chose to enter into the agreement on the basis that it was offered to him.
[28] As noted above, although the Applicant was paid during the Spring Term of 2018 that payment was in large part manufactured to ensure that the Applicant remained on the UTS IT system. In reality the Applicant finished the actual performance of work around 12 July 2018. As the chronology demonstrates there were some emails engaged in by the Applicant after 12 July 2019, but this was not substantial work for which he was paid. The payment arrangement from August 2018 was then an administrative convenience.
[29] Because of the administrative practice adopted by UTS the $65.45 earned by the Applicant for that preparatory work was paid in instalments during Spring Term 2018. He was paid through until 29 November 2019 despite the Applicant contending that the employment relationship ended on 16 October 2019.
[30] What is clear from the above is that:
a) there was a break between around 12 July 2018 and 9 August 2018 (Most Recent Break Period),
b) the period from 9 August 2018 to the Applicant’s nominated termination date of 16 October 2018 is a period of approximately 10 weeks. That period of time does not meet the MEP, and therefore
c) only if the Most Recent Break Period is counted as service (or not a break in service) can the Applicant’s period of employment extend back six months from 16 October 2018 to at least 16 April 2018 (thus satisfying the MEP).
[31] The Applicant says the Most Recent Break Period counts for service. He contends that that “despite the Respondent’s decision to classify the Applicant as a casual, he has had an ongoing employment relationship with the Respondent, such that his employment is (at least) an ongoing and systematic casual employee and, more likely as an ongoing employee incorrectly characterised as a casual.”
Applicant’s final submissions
[32] The Applicant submitted that,
1. “The Applicant makes application for unfair dismissal remedy.
An overview of the Applicant’s contentions
2. The Applicant is a lecturer and coordinator. His specialisation is “pricing”.187
3. The Respondent is a university.
4. The Applicant seeks reinstatement to what was his substantive role at the Respondent prior to his dismissal – an ongoing role, teaching and coordinating the undergraduate and postgraduate Pricing Subjects.
5. In support of his position, the Applicant submits:
a. his employment relationship with the Respondent began in 2010;2
b. he commenced performing work as a teacher and coordinator of the relevant
subjects in 2012;188
c. since 2012, he has worked as the coordinator and teacher of the relevant subjects on each and every occasion on which these subjects has been offered by the Respondent (which as been at least annually);189
d. despite the Respondent’s decision to classify the Applicant as a casual, he has had an ongoing employment relationship with the Respondent, such that his employment is (at least) as an ongoing and systematic casual employee and, more likely, as an ongoing employee incorrectly characterised as a casual;
e. at the end of 2017, it was agreed that the Applicant would work as teacher and coordinator of the postgraduate Pricing Subject when it was run during the Summer 2018/19 semester (the first occasion on which it had been run);190
f. in April 2018, the Applicant was involved in a discussion with during which there was a discussion about “casuals” coordinating subjects, the Applicant advocated for his continued role as the coordinator of the undergraduate and postgraduate Pricing Subjects, and (while the Summer 2018/19 semester was not discussed) the balance of the information that was provided to the Applicant meeting provided him with sufficient certainty to write to the Respondent “I look forward to continuing in 2019 and beyond”;191
g. in July 2018, as it had already been agreed that the Applicant would work as teacher and coordinator of the postgraduate Pricing Subject during the Summer 2018/19 semester, the Applicant was provided with a document confirming this to be the case;192
h. on 24 August 2018, the Applicant was unilaterally informed by email, and without prior consultation, that he would not be the coordinator of the postgraduate Pricing Subject during the Summer 2018/19 semester (and, by implication, that would not work as coordinator of any future Pricing Subjects, whether undergraduate or postgraduate), and that this was because he was a casual employee;193
i. on 19 September 2018, the Applicant met with Professor Rhodes, who informed the Applicant that he was could not work as a coordinator, and further could not work as a teacher, of the Pricing Subjects;194 and
j. on 27 September 2018, Professor Rhodes confirmed this position in writing by email.195
An overview of the Respondent’s contentions
6. The Respondent resists the application, raising a jurisdictional objection – namely, that the Applicant was not dismissed. In support of this position, the Respondent submits:
a. the Applicant was a casual employee;196
b. the Respondent offered the Applicant casual teaching work on 16 October 2018 and 13 November 2018, which offers were rejected;197 and
c. the Respondent did not act in a way that forced the Applicant to resign, but rather that the Applicant has conducted himself unreasonably.198
The issues in dispute
7. There are disputes between the parties as to:
a. the nature of the employment relationship; and
b. whether or not the Applicant has been dismissed.
8. The Applicant submits that the first dispute contextualised the second dispute, which is the core question that the Commission is called upon in determining jurisdiction.
The nature of the employment relationship
9. The Respondent does not oppose the Application on the basis of the Applicant’s period of service as a casual not counting towards the Applicant’s period of service for the purpose of determining whether or not the Applicant has fulfilled the minimum period of employment required to be protected from unfair dismissal.199
[54] It is important to note that nothing in the conduct of UTS reflected, on its behalf, an adverse view about the performance of the Applicant. On the contrary, at all times and still to this day, the Applicant is held in high regard. There is no doubt that he is an excellent teacher and was a very competent coordinator of the Pricing subject. The decision by UTS to only offer teaching reflected its desire that, for the most part, subject coordination should not be undertaken by casual employees. UTS was clear in making this known to the Applicant. To the extent that the Applicant treated the proposed removal of coordination as a reflection upon his performance or standing, he was being precious.
[55] It seems that the Applicant treated the act of removing coordination duties, and the events leading up to it, as the conduct or course of conduct engaged in by UTS that forced him to resign (or having been terminated).
[56] Having had the offer of only teaching confirmed on 16 October 2018 the Applicant commenced the present UFD Application on 18 October 2018.
[57] However, at all relevant times on and before 16 October 2018 UTS was offering the Applicant teaching roles. In fact, even as late as 13 November 2018 UTS continued to offer the Applicant teaching roles.
[58] On any analysis the factual circumstances in this matter do not give rise to a finding that the Applicant was dismissed by UTS pursuant to s.386(1)(a).
[59] However, it is necessary to determine whether the conduct of UTS forced the Applicant to resign. It is important to note that the Commission is not required to determine if UTS repudiated the Applicant’s contract. As a casual employee the concept of repudiation is foreign. 295
[60] In order to be satisfied that the Applicant was forced to resign I must be satisfied, based on an objective analysis, the conduct of UTS had the probable result that the Applicant would resign or that he had no effective or real choice but to do so. 296 No doubt the Applicant felt that he had no choice in the matter, however, his subjective view is not relevant.
[61] I am not satisfied that an objective analysis of the factual matrix left the Applicant with no choice but to resign or that it was the probable result of the conduct of UTS. On 27 October 2018, 16 October 2018 and even as at 13 November 2018 UTS very clearly demonstrated that it wanted the employment relationship to continue. It was prepared to be engaged in an ongoing dialogue with the Applicant about teaching in the Pricing subject and other subjects. Despite those offers the Applicant acted pre-emptively in commencing his UFD Application on 18 October 2018.
[62] The decision of UTS to not offer coordination duties (communicated as early as 24 August 2018) was not an act that could, objectively viewed, be characterised as forcing the Applicant to resign (or otherwise end the employment relationship).
[63] Had the Applicant engaged with UTS about its preparedness for him to teach in subjects in addition to the Pricing subject he could have been remunerated more advantageously. This is because subject coordination is paid at an hourly rate of $65.35, whereas lecturing is paid at around $263.98. Even agreeing to teach Pricing in the Summer Term and then Pricing in the Autumn Term would have seen the Applicant better off financially. This is because the Pricing subject was not previously taught in the Summer Term, but only in the Autumn Term.
[64] Because UTS provided the Applicant with an opportunity to earn more than he would have by offering multiple teaching opportunities as compared with the coordination and teaching role I’m not satisfied that, if the removal of the coordination role is to be considered a demotion, it involved a significant reduction in the Applicant’s remuneration (s.386(2)(c)).
[65] I’m also not satisfied that the removal of the coordination duties involved a significant reduction in duties. It was an adjunct role, necessary, but subordinate to the teaching role. The relative importance is reflected in the payment schedule for teaching as compared with coordination. In his own mind, and in these proceedings, the Applicant elevated the status of the coordination role beyond its actual importance. I have had regard to the Applicant’s characterisation of the coordination duties. 297 Coordination does not require any particular skill or competency. That is to be contrasted with the in-depth subject matter knowledge that is required to teach a subject. This leads to a conclusion that the Applicant was overly concerned with or attached to the notion of being recognised as a “Coordinator”.
[66] In any case it was always the intention of UTS that the Applicant remain an employee of UTS following the removal of the coordination duties (which the Applicant characterises as something akin to a demotion) (s.386(2)(c)(i)). A proper application of s.386 of the FW Act leads to a conclusion that the Applicant was not dismissed.
[67] There was nothing in the decision of UTS (to prefer that ongoing employees undertake coordination duties) that was unreasonable. As stated above, it was not a reflection on the coordination skills or ability of the Applicant. It was entirely an operational decision that was rightly within the remit of UTS to make. The Commission should not lightly interfere with the employer’s right to manage its business 298 and I decline to do so.
Conclusion
[68] For the reasons above I am not satisfied that the Most Recent Break Period should be counted as service. Rather there was, between July 2018 and August 2018 a break in the Applicant’s continuity of service. Consequently, by the time the Applicant treated himself as having been dismissed by UTS (16 October 2018) he had only worked (in that most recent period) for a period of around 10 weeks. That period does not meet the MEP.
[69] Consequently, the Commission, as presently constituted, is not satisfied that the Applicant was protected from unfair dismissal because he did not complete the MEP. Consequently, his application for an unfair dismissal remedy must be dismissed.
[70] An order will be issued with this decision.
COMMISSIONER
Appearances:
Mr S McIntosh for the Applicant
Mr T McDonald for the Respondent
Hearing Details:
Sydney
30 January 2019
25 February 2019
Final Written Submissions:
Applicant’s Closing Submissions filed on 1 March 2018.
Respondent’s Closing Submissions filed on 11 March 2018.
Printed by authority of the Commonwealth Government Printer
<PR708118>
1 Witness Statement of John Burke dated 3 January 2019 (Burke Statement) [10(f)].
2 PN753.
3 Burke Statement [3].
4 Page 2 of the Annexure to Burke Statement.
5 Page 9 of Annexure to Burke Statement.
6 Page 29 of Annexure to Burke Statement.
7 Page 19 of Annexure to Burke Statement.
8 Page 48 of Annexure to Burke Statement.
9 Page 52 of Annexure to Burke Statement.
10 Page 54 of Annexure to Burke Statement.
11 Page 60 of Annexure to Burke Statement.
12 Page 68 of Annexure to Burke Statement.
13 Page 63 of Annexure to Burke Statement.
14 Confidential Burke Statement.
15 Burke Statement [35].
16 Annexure to Burke Statement, JB10.
17 Statement of Professor Carl Rhodes signed 11 December 2018 (Rhodes Statement), [6].
18 Schedule 4 Activity Descriptors – Casual Academic Staff, item 3.
19 Page 138 of Annexure to Burke Statement.
20 Page 135 – 136 of Annexure to Burke Statement.
21 Page 135 of Annexure to Burke Statement.
22 Page 139 of Annexure to Burke Statement.
23 Pages 141 and 144 of Annexure to Burke Statement.
24 PN763.
25 PN670 and 671.
26 PN709 – 723.
27 Annexure to Burke Statement Page 253.
28 PN662.
29 Annexure to Burke Statement Page 253 – 255.
30 Burke Statement [38].
31 Page 172 of Annexure to Burke Statement.
32 Page 172 of Annexure to Burke Statement.
33 Rhodes Statement, paragraph 10.
34 Schedule to Enterprise Agreement.
35 Page 518 of Annexure to Burke Statement.
36 Page 181 of Annexure to Burke Statement.
37 Burke Statement Annexure page 179.
38 Page 202 of Annexure to Burke Statement.
39 Burke Statement Annexure page 187.
40 Statement of John Burke at page 187.
41 Ex 10.
42 Burke Statement Annexure JB19 page 186.
43 Burke Statement Annexure JB19 page 185.
44 Burke Statement Annexure JB19 pages 185-186.
45 Burke Statement, Annexure JB19 page 184
46 Burke Statement, Annexure page 182
47 Burke Statement page 207
48 Statement in Reply of Professor Carl Rhodes signed 14 January 2019 (Reply Rhodes Statement) [6]
49 Burke Statement, Annexure page 517
50 Burke Statement, Annexure page 210
51 Burke Statement, Annexure page 210
52 Burke Statement, Annexure page 216.
53 Page 219 of Annexure to Burke Statement.
54 Page 227 of Annexure to Burke Statement.
55 Page 503 of Annexure to Burke Statement.
56 Page 68 of Annexure to Burke Statement.
57 Page 498 of Annexure to Burke Statement.
58 Burke Statement, Annexure JB30 page 234.
59 Burke Statement Annexure pages 233 – 234.
60 Burke Statement Annexure page 233.
61 Burke Statement Annexure page 237.
62 Page 502 of Annexure to Burke Statement.
63 Page 503 of Annexure to Burke Statement.
64 Burke Statement Annexure page 239.
65 Burke Statement Annexure page 241.
66 Production Documents Schedule 2(d) page 1.
67 Production Documents Schedule 2(d) page 3.
68 Burke Statement Annexure Page 242.
69 Burke Statement Annexure Page 242.
70 Burke Statement Annexure Page 244.
71 Page 246 of Annexure to Burke Statement.
72 Burke Statement Annexure pages 481 – 482.
73 Burke Statement [148] and Annexure pages 490 – 497.
74 Burke Statement Annexure page 265.
75 Burke Statement Annexure page 266.
76 Statement of John Burke signed 3 January 2019, paragraph [63].
77 Production Documents Schedule 2(d) pages 69.
78 Burke Statement Annexure page 272.
79 Production Documents Schedule 2(d) pages 76.
80 Rhodes Statement, paragraph 11.
81 Page 275 of Annexure to Burke Statement.
82 Production Documents Schedule 2(d) page 110.
83 Burke Statement Annexure page 279.
84 Applicant’s Further Tender Bundle, page 1.
85 Applicant’s Further Tender Bundle, pages 3 – 11.
86 Applicant’s Further Tender Bundle, page 12.
87 Statement of Professor Rhodes dated 14 January 2019, CR3 Page 9.
88 Applicant’s Further Tender Bundle, page 16.
89 Applicant’s Further Tender Bundle, page 15.
90 Applicant’s Further Tender Bundle, page 14.
91 Applicant’s Further Tender Bundle, page 14.
92 Applicant’s Further Tender Bundle, page 18.
93 Applicant’s Further Tender Bundle, pages 19 and 20.
94 Applicant’s Further Tender Bundle, pages 21.
95 Burke Statement Annexure page 287.
96 Burke Statement Annexure page 286.
97 Production Documents Schedule 2(a) page 227.
98 Burke Statement Annexure page 286.
99 Productions Documents Schedule 2(a) page 87.
100 Production Documents Schedule 2(d) page 123.
101 Production Documents Schedule 2(d) page 124.
102 Production Documents Schedule 2(a) page 226.
103 Burke Statement Annexure page 291.
104 Production Documents Schedule 2(d) page 129.
105 Production Documents Schedule 2(a) page 143.
106 PN861/862.
107 Burke Statement Annexure page 305.
108 Rhodes Statement, paragraph 14, Pages 307 and 308 of the Annexure to Burke Statement.
109 Pages 307 and 308 of the Annexure to Burke Statement.
110 Rhodes Statement, paragraph 41(f).
111 Production Documents Schedule 2(a) page 83.
112 Production Documents Schedule 2(a) page 82.
113 Burke Statement Annexure page 317.
114 Burke Statement Annexure pages 318 – 326.
115 Rhodes Statement, paragraph 16.
116 Rhodes Statement, paragraph 17.
117 Rhodes Statement, paragraph 20.
118 Burke Statement Annexure page 315.
119 Production Documents Schedule 2(d) page 189.
120 Production Documents Schedule 2(a) page 75.
121 Production Documents Schedule 2(b) page 278.
122 Production Documents Schedule 2(a) page 73.
123 Production Documents Schedule 2(a) page 231.
124 Production Documents Schedule 2(a) page 231.
125 Production Documents Schedule 2(a) page 230.
126 Production Documents Schedule 2(a) page 71.
127 Production Documents Schedule 2(a) page 71.
128 Production Documents Schedule 2(a) page 70.
129 Production Documents Schedule 2(b) page 106.
130 Production Documents Schedule 2(a) page 67.
131 Production Documents Schedule 2(a) page 62.
132 Production Documents Schedule 2(a) page 61.
133 Production Documents Schedule 2(a) page 60.
134 Production Documents Schedule 2(a) page 59.
135 Production Documents Schedule 2(a) page 59.
136 Production Documents Schedule 2(a) page 58.
137 Production Documents Schedule 2(d) page 199.
138 Production Documents Schedule 2(d) page 200.
139 Burke Statement Annexure page 353 & 354.
140 Burke Statement Annexure page 339.
141 Burke Statement Annexure pages 334.
142 Production Documents Schedule 2(b) page 153.
143 Production Documents Schedule 2(a) page 52.
144 Production Documents Schedule 2(a) page 51.
145 Production Documents Schedule 2(c) page 19.
146 Production Documents Schedule 2(b) page 28.
147 Production Documents Schedule 2(b) page 33.
148 Production Documents Schedule 2(b) page 32.
149 Production Documents Schedule 2(b) page 32.
150 Production Documents Schedule 2(b) page 32.
151 Burke Statement Annexure page 332.
152 Production Documents Schedule 2(a) pages 40 – 41.
153 Production Documents Schedule 2(a) pages 38 - 39.
154 Production Documents Schedule 2(a) page 38.
155 Burke Statement Annexure page 332.
156 Production Documents Schedule 2(a) pages 37 – 38.
157 Production Documents Schedule 2(a) page 37.
158 Production Documents Schedule 2(a) pages 36 – 37.
159 Production Documents Schedule 2(a) pages 36.
160 Production Documents Schedule 2(a) pages 35.
161 Burke Statement [114].
162 Burke Statement Annexure page 329.
163 Production Documents Schedule 2(d) pages 203.
164 Production Documents Schedule 2(b) pages 323.
165 Burke Statement, paragraph 116.
166 PN522.
167 Burke Statement Annexure page 329.
168 Burke Statement Annexure page 328.
169 Rhodes Statement, paragraph 36.
170 Burke Statement Annexure page 438.
171 Rhodes Statement, paragraph 37.
172 Production Documents Schedule 2(a) pages 217 – 225.
173 Burke Statement Annexure page 521.
174 Ex 7, JB-65, page 521.
175 Rhodes Statement, paragraph 39.
176 Supplementary Statement in Reply of Professor Rhodes dated 18 January 2019, CR10.
177 Production Documents Schedule 2(c) pages 253.
178 The email chain of 14 November 2018 is at annexure CR10 of Statement in Reply of Professor Carl Rhodes signed 18 January 2019.
179 Ex 9.
180 PN677.
181 Burke Statement Annexure 310.
182 Burke Statement Annexure 310.
183 Production Documents Schedule 2(a) pages 258.
184 Rhodes Statement [40].
185 Production Documents Schedule 2(a) pages 304.
186 From CR-3 to Exhibit 5.
187 Witness statement of John Burke dated 3 January 2019 (Burke Statement) at [10], [11], [19] and [20] (for example) 2 Burke Statement at [15] .
188 Burke Statement at [19] and [20].
189 Burke Statement at [120] .
190 Burke Statement [55] to [59] .
191 Burke Statement [66] to [68] and JB-36.
192 Burke Statement [74] to [76] .
193 Burke Statement [80] and JB-43.
194 Burke Statement [92] to [103] .
195 Burke Statement [107] to [109].
196 Respondent’s Outline of Submissions [13].
197 Respondent’s Outline of Submissions [6] – [8].
198 Respondent’s Outline of Submissions [17] – [18].
199 See sections 383 and 384 of the Fair Work Act 2009 (Cth) (FW Act).
200 Section 384(2)(a) of the FW Act.
201 See WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPack) at [169].
202 WorkPack at [159].
203 WorkPac at [171] .
204 WorkPac at [172] .
205 WorkPac at [173] .
206 WorkPac at [178] to [179].
207 WorkPac at [180].
208 See, for example, Burke Statement [21] to [23] .
209 See, for example, Burke Statement [42].
210 Burke Statement [61].
211 Burke Statement [8].
212 Thi Nho Tran v Bupa Dental Corporation Pty Ltd[2018] FWC 3237 at [78] citing O’Meara v Stanley Works Pty Ltd with authority.
213 Respondent’s Outline of Submissions at [11].
214 Respondent’s Outline of Submissions at [16].
215 See, for example, Andrew Kenneth Charlton v Eastern Australia Airlines Pty Limited (C2006/2519) PR972773 (7 July 2006) .
216 See, for example, Mulhallen v Roy Morgan Interviewing Services Pty Ltd[2017] FWC 1942 at [19].
217 See for example, Burke Statement at [23].
218 Burke Statement [99].
219 Burke Statement [99].
220 See Questions 1.2, 1.3 and 1.4 of the Unfair Dismissal Application. At 1.4 the Applicant writes “I am realty not sure what date to apply…”.
221 PN 93.
222 [2012] FWA 3453.
223 [2010] FWCAFB 5709.
224 At [13].
225 At [14].
226 At [16] to [22]
227 PN861/862
228 PN862
229 Leslie Holland v UGL Resources Pty Ltd at [34].
230 PN 709 to 723.
231 PN734.
232 See Byrne v Australian Airlines Ltd (1995) 185 CLR at 465.
233 At [32].
234 PN 619.
235 Statement of John Burke at page 187.
236 Ex 10.
237 Statement of John Burke signed 3 January 2019, Annexure JB-19 page 186.
238 Statement of John Burke signed 3 January 2019, Annexure JB-19 pages 185-186.
239 Statement of John Burke, Annexure JB-19 pages 185 to 188.
240 Statement in Reply of Professor Carl Rhodes signed 14 January 2019, paragraph 6.
241 PN670 and 671.
242 Attachment C to Professor Rhodes Statement.
243 PN 96.
244 Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union[2013] FWCFB 2434.
245 At [56] to [58].
246 MacMahon Mining Services Pty Ltd v Williams [2010] FCA 1321.
247 [2018] FCAFC 131.
248 Skene at [78] to [82].
249 At [171].
250 At [182].
251 At [187].
252 At [187].
253 At [187].
254 PN269.
255 PN753.
256 PN670.
257 PN273 and PN277.
258 PN763.
259 PN669.
260 See CR2 of the Statement in Reply of Professor Rhodes.
261 See [173].
262 [2001] FCA 1589.
263 [2016] FCCA 89 at [34].
264 At [164].
265 At [30].
266 At [33].
267 At PN836.
268 PN677.
269 [2018] FWC 6747; [2019] FWCFBC23.
270 At [26] to [28].
271 Statement of John Burke signed 3 January 2019, Annexure JB30 page 234.
272 Ibid, paragraph 41(c).
273 Statement of John Burke signed 3 January 2019, paragraph 114.
274 Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 33.
275 Statement of John Burke signed 3 January 2019, paragraph 116.
276 PN522.
277 Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 35.
278 Ibid, paragraph 36.
279 Ibid, paragraph 37.
280 Ibid, paragraph 38.
281 Ibid, paragraph 39.
282 The email chain of 14 November 2018 referred to at paragraphs 46 and 47 is outlined in annexure CR10 of Statement in Reply of Professor Carl Rhodes signed 18 January 2019.
283 Ex 9.
284 PN201, 462, 515, 522 and 523.
285 The email chain of 19 November 2018 at paragraphs 48 and 49 of the Statement of Facts is CR11 of the Supplementary Statement in Reply of Professor Carl Rhodes signed 18 January 2019.
286 Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 40.
287 The rate for lecturing depends on the type of lecture. The post graduate pricing subject is classified as “Developed” whereas the undergraduate pricing subject is classified as “Basic”.
288 The rate for lecturing depends on the type of lecture. The post graduate pricing subject is classified as “Developed” whereas the undergraduate pricing subject is classified as “Basic”. The hourly rate for lecturing is higher than for coordination (although it is effectively the same when regard is had to Schedule 4(i) which sets out assumed non-contract hours associated with each hour of delivery).
289 Statement of Professor Carl Rhodes signed 11 December 2018, paragraphs 41(e), (f) and (g).
290 Ex 3, Attachment C.
291 Ex 7, JB-65, page 521.
292 Exhibit 7, paragraph 116.
293 Andrew Kim v ORC International Pty Ltd [2016] FWC 1029 at [47]; City of Sydney RSL & Community Club Limited v Roxana Balgowan[2018] FWCFB 5 at [27].
294 WorkPac Pty Ltd v Skene [2018] FCAFC 131.
295 Kim v ORC International Pty Ltd[2016] FWC 1029.
296 O’Meara v Stanley Works Pty Ltd[2006] AIRC 496.
297 See in particular para 23 of Exhibit 7.
298 Australian Federated Union of Locomotive Employees v State Rail Authority of New South Wales (XPT Case) (1984) 295 CAR 188, 191.
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