John Davey v Royal Melbourne Institute of Technology T/A RMIT University

[2021] FWC 5179

[2021] FWC 5179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

John Davey
v
Royal Melbourne Institute of Technology T/A RMIT University
(C2021/1465)

COMMISSIONER YILMAZ MELBOURNE, 20 AUGUST 2021

Application to deal with contraventions involving dismissal - whether there was a dismissal - no dismissal at initiative of the employer – s.386(1)(a) – application dismissed.

[1] Mr John Patrick Davey, a former teacher at Royal Melbourne Institute of Technology T/A RMIT University (RMIT) submits that after making several complaints and an application for casual conversion in 2020, he was not offered further casual work for semester 1 courses commencing in March 2021, and on 9 March 2021 he was formally advised by letter (dated 4 March 2021) that his application for casual conversion was unsuccessful.

[2] Mr Davey submits that his employment was covered by the RMIT Vocational Education Workplace Agreement 2019 (the Agreement) and his engagement was inconsistent with the terms of the Agreement.

[3] On 16 March 2021, Mr Davey lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against RMIT and cited workplace rights contraventions - ss.340 (protection), 343 (coercion) and 344 (undue influence or pressure) arising from his complaints that marking papers exceeded his pay allocation and he submits that this resulted in the refusal of casual conversion and no offers of casual employment in March 2021.

[4] RMIT object to the application and submit that Mr Davey was not dismissed, and that the application is outside the scope of jurisdiction of the Commission. RMIT further submits that Mr Davey was a “casual employee with no reasonable expectation of ongoing employment,” 1 and that he did not serve the minimum employment period.2

[5] I scheduled the jurisdictional hearing for 7 June 2021. Both parties were self-represented.

[6] This decision deals with the question whether Mr Davey was a person dismissed at the time that he made the application within s.365(a) and whether the Commission can deal with his application pursuant to s.368 of the Act.

Applicant’s submissions

[7] Mr Davey submits that he was engaged to teach and coordinate 4 courses (subjects) in the Associate Degree in Legal Practice (Paralegal), and this involved teaching the whole course program over a 12-week block. 3

[8] Mr Davey contends RMIT erroneously relies on its letters of employment and Casual Terms and Conditions while ignoring its Enterprise Agreement. Further he submits that the Enterprise Agreement applied to his employment. 4

[9] Mr Davey disputes the submissions that RMIT discontinued the program, and he provided a link to the RMIT website advertising a July 2021 intake for the Associate Degree in Legal Practice (Paralegal). He further submits that the Commission should reject RMIT’s submissions that staff from the cluster returned to teach the course of Government and the Law, as no evidence was tendered in support. Mr Davey contends that RMIT did not discharge its onus concerning evidence that he was replaced in all of the courses that he taught. Mr Davey submits that the letter of 4 March 2021 ought to be described as a termination letter. 5

[10] The Enterprise Agreement contains provisions concerning eligibility for conversion from casual to permanent and these obligations were satisfied, which contradict RMIT’s submissions regarding failure to meet the minimum employment period, submits Mr Davey. 6 Mr Davey contends that clause 16 of the Enterprise Agreement (referred to as “chapter” in the Applicant’s submissions) contains the relevant casual provisions concerning limitation of casual engagement and conversion applications, which were largely breached by RMIT.7

[11] Mr Davey argues that he was not engaged in the vocational arm of RMIT, but instead taught in the University. To deliver training in the vocation education program he was required to complete a vocational teaching qualification, which RMIT knew he did not have but had encouraged him to complete the program through Plenty Training. The program was subsequently cancelled while Mr Davey was undertaking the training and this, Mr Davey submits, means that he was ineligible to teach the vocational program.

[12] Mr Davey submits that his employment was arranged in disregard to clause 16 of the enterprise agreement and in breach of s.66F(1)(b), 66G and 66H of the Act.

[13] Mr Davey submits that RMIT breached the Act and enterprise agreement by reducing his hours to zero, removing access to the portal, refusing a flexible working arrangement, that RMIT provided no evidence that staff returned to teach his course and because he complained about his pay and applied for conversion he was unlawfully dismissed.

[14] Mr Davey tendered in evidence a range of documents including the enterprise agreement, material relating to the courses that he taught, emails, payslips and application for conversion amongst other documents.

Respondent’s submissions

[15] RMIT submit that Mr Davey was engaged as a casual for 3 separate periods. Each of those periods were course semesters:

22 July 2019 to 1 November 2019

4 February 2020 to 18 June 2020

20 July 2020 to 31 December 2020 8

[16] RMIT submit that each engagement was subject to the RMIT University Casual Employment Terms and Conditions (Casual T&C). Clause 3 of the Casual T&C provides: “There is no guarantee of ongoing or regular work”, and RMIT submit that Mr Davey’s employment came to an end after the agreed period of engagement and that he was not dismissed. 9 Further RMIT submit that it did not make any representations or offers of further engagements and Mr Davey did not expect ongoing work, which is the reason he had applied for conversion from casual to a permanent position.10

[17] On 4 March 2021 Mr Davey was informed by letter that there was no casual work at that time or in the foreseeable future because the Advanced Diploma of Legal Practice (ADLP) delivered through the legal services cluster (LSC) of the College of Vocational Education (in which Mr Davey was engaged) was discontinued. Mr Davey delivered courses in the Associate Degree in Legal Practice (Paralegal) and permanent teachers displaced through the expiration of the ADLP program had been allocated teaching hours in the programs delivered by casuals including Mr Davey. All teaching hours were allocated to ongoing staff that taught the ADLP within the same LSC and an ongoing academic returning from secondment. Therefore, all casual staff including Mr Davey were no longer required. It was acknowledged that Mr Davey had delivered teaching hours in alternative programs. 11

[18] RMIT submit that Mr Davey’s employment over the last engagement period lasted 5.5 months and this represents a lesser period than required by s.383 of the Act.

[19] In relation to Mr Davey being engaged on a casual basis, RMIT rely on s.15A of the Act to submit that his service as a casual does not count pursuant to s.583(2) as the engagement is not regular and systematic and that he had no reasonable expectation of employment on a regular and systematic basis. 12 I note the Respondent’s reference to s.583(2) is incorrect and it appears the Respondent was intending to refer to s.384(2)(a) of the Act.

[20] RMIT contend that on each occasion Mr Davey was engaged:

•  the offer of employment was subject to acceptance of an agreement that stipulated that he was a casual employee

•  his manager would inform him of the hours to be worked

•  that the RMIT University Casual Terms and Conditions (Vocational Education Employees) applied and

•  those terms confirmed that employment ceased at the end of each period of engagement and that there was no guarantee of further work.

[21] RMIT rely on a number of authorities and in particular Robinson v Grandviews Bowling Recreation Club 13 that the employment was subject to the operational needs of the business and as such, it was intermittent or sporadic and therefore Mr Davey was not dismissed. It further relies on Booth v Organic Formulations Pty Ltd.14

[22] RMIT tendered in evidence the three letters of engagement to Mr Davey and the RMIT University Casual Terms and Conditions (Vocational Education Employees) document.

The legislation

[23] Section 365 of the Act deals with applications before the Commission and contains two limbs, one that there is a dismissal and secondly that the applicant alleges that the dismissal occurred because of a contravention of general protections. Relevantly the Act provides:

Application for the FWC to deal with a dismissal dispute

If:

(a)  a person has been dismissed; and

(b)  the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

[24] The term “dismissed” in s.365 of the Act is defined in s.386 of the of the Act. 15 A dismissal is to be at the initiative of the employer, or a person was forced to resign but does not include a range of situations. Section 386 provides:

Meaning of dismissed

(1)  A person has been dismissed if:

(a)  the person's employment with his or her employer has been terminated on the employer's initiative; or

(b)  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

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

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season, or

(b) …………

[25] Firstly, to make a general protections dismissal application the person must have been dismissed as defined by the Act. Before exercising its powers under s.368 of the Act, the Commission must establish that the person was dismissed. 16

[26] A dismissal at the employer’s initiative is where the employer’s actions directly and consequently result in the termination of the employment relationship, and had the employer not taken such action, the employee would have remained in employment. 17 Further, s.386 excludes certain situations from the definition of dismissed. Those situations include:

•  employment for a specified time

•  a specified task

•  a duration of a specified season

•  on completion of a task, or

•  at the end of the season.

[27] It is not contentious that Mr Davey was engaged as a casual employee to teach subjects in a program over course periods. In addition to the above legislative references, provisions concerning casual employment are relevant to this matter.

[28] On 27 March 2021 the Act was amended introducing a definition of casual employee and repealed the definition of long-term casual employee. The new s.15A operates retrospectively and provides:

Meaning of casual employee

(1)  A person is a casual employee of an employer if:

(a)  an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b)  the person accepts the offer on that basis; and

(c)  the person is an employee as a result of that acceptance.

(2)  For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a)  whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b)  whether the person will work as required according to the needs of the employer;

(c)  whether the employment is described as casual employment;

(d)  whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Note:          Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.

(3)  To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4)  To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5)  A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a)  the employee's employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

(b)  the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

Consideration

[29] This matter concerns the jurisdictional objection that Mr Davey was not dismissed. Both parties have raised other sections of the Act in their submissions which I will address, but firstly I will deal with the matter of whether Mr Davey was dismissed.

[30] The evidence that Mr Davey was employed as a casual employee over the following three course semesters is not contested:

•  22 July 2019 to 1 November 2019

•  4 February 2020 to 18 June 2020

•  20 July 2020 to 31 December 2020

[31] The Associate Degree in Legal Practice (Paralegal) is a two-year program with four courses each semester. Each year is divided into two semesters. Mr Davey delivered two courses when he first started and those two are identified among the four courses in semester two of year two. 18

[32] The first casual period of engagement with RMIT was to teach two courses in semester two of the Associate Degree in Legal Practice (Paralegal) in the School of Vocational Business Education RMIT. The two courses were government and the law and business and corporations law. The offer from RMIT for each course was four hours per week (2 hours lecture rate and 2 hours at the tutorial rate) over a 12-week semester delivery period but pay was for 14 weeks to allow for delivery and coordination (pre-semester preparation and marking). Mr Davey was given 4 groups of students for each course type. 19

[33] The RMIT Casual Letter of Engagement identifies that Mr Davey was engaged as a casual employee within the vocational business education group teaching the Associate Degree in Legal Practice (Paralegal) and it identified start and end date. Links to related documents include the Casual Employment Terms and Conditions (Academic Employees) and other relevant information. All three Letters of Engagement are in the same format and include the start and end date for the period of engagement. There is nothing in those letters to suggest that employment is on an ongoing basis. 20

[34] The RMIT Casual Employment Terms and Conditions (Vocational Education Employees), is dated 14 November 2018 21 and was made available to Mr Davey on commencement of each engagement. It states that working as a casual employee, employment is “as required”, and “employment ceases at the end of each period of employment (unless terminated earlier in accordance with clause 19) of these terms and conditions”. The Terms and Conditions identify the RMIT University Enterprise Agreement 2018 as an applicable instrument and again states that there “is no guarantee of ongoing or regular work.”

[35] The documentation provided to Mr Davey prior to commencement of each semester teaching period is unambiguous relating to the dates of engagement and that there is no guarantee of ongoing work. On this material alone it is evident that RMIT made the offer and Mr Davey accepted the casual employment offer on the basis of no guarantee of continuing employment and for the agreed engagement period. There was no evidence that RMIT dismissed Mr Davey prior to the expiration of the agreed specified time, rather the evidence indicates that the period came to an end. The evidence does not support the contention that Mr Davey was dismissed, consistent with s.368(2)(a) of the Act.

[36] Mr Davey submits that the letter of 4 March 2021 “ought to be described as a termination letter”. I cannot agree with this characterisation of the letter which advises Mr Davey that his application for conversion, while meeting the conversion requirements, was unsuccessful because of the cancellation of the Advanced Diploma program, which required prioritising permanent employees over casuals for ongoing work and this included replacing casual teachers in the Associate Degree in Legal Practice (Paralegal). This letter has no bearing on the set end date of the engagement period that concluded on 31 December 2020.

[37] The Full Federal Court 22 recently clarified the operation of ss. 365 and 366, relevantly it said:

The first observation is that s 365 and s 366 are concerned with different subject matters. Section 365 defines the persons who are entitled to make a general protections application to the FWC involving dismissal. Section 366 conditions the manner in which such a person’s application must be made. The condition is that the application be commenced within 21 days or a longer a period that may be allowed by the FWC in the exercise of the discretionary power conferred under s 366(1), having regard to the factors in s 366(2). For an application to be “made under” s 365, it must be made by a person described in s 365 and it must be made within the time prescribed or allowed under s 366(1). The opening phrase in s 368, “if an application has been made under s 365”, incorporates both concepts. The words erect an essential precondition to the FWC’s authority to perform both its conciliation function and its associated power to issue a certificate under s 368(3).

[38] Further, the Court observed that the first consideration is the expression of “the person has been dismissed” in objective terms, therefore the reference to dismissal is to have occurred in fact. 23 An application lodged under s.365 “is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question.”24 The matter of jurisdiction relating to s.365 is to be determined in the first instance and should the matter fail, no further jurisdictional matters need to be determined.

[39] Based on the factual evidence, Mr Davey was engaged as a casual employee on separate occasions for a set semester period, this offer was confirmed in writing prior to engagement, the terms of the engagement were accepted by Mr Davey and the engagement period came to an end. While the three engagement periods may suggest a pattern over 18 calendar months, non-renewal after consecutive specified time periods of engagement are not indicative of a termination at the initiative of the employer. 25

[40] In Khayam v Navitas English Pty Ltd T/A Navitas English, 26 the Full Bench said:

“that the mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end not later than a specified date will not by itself constitute a termination at the initiative of the employer.”

[41] The Full Bench went on to set out principles applicable to s.386 (1)(a) 27 relating to when an employee is terminated at the employer’s initiative, and in doing so considered that it may be necessary to examine the terms of any time limited contract. The categories potentially relevant to this consideration as identified by the Full Bench have not been satisfied by Mr Davey. There was no evidence to satisfy the Commission that the offer, consideration and acceptance of the contract with specified periods was not valid.

[42] Further, Mr Davey’s periods of engagement do not meet the requirements of s.15A of the Act. The requirements under s.15A to determine whether there was a firm advance commitment to continuing employment concerns require consideration of:

•  whether the employer can elect to offer work and whether the person can elect to accept or reject work

•  whether the person will work only as required

•  whether the employment is described as casual employment, and

•  whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument such as a modern award or enterprise agreement.

[43] On balance, the evidence of both Mr Davey and RMIT in my opinion finds that the above four considerations are in the affirmative. The letter of offer and terms and conditions all support an affirmative finding in relation to the considerations whether Mr Davey was a casual employee pursuant to s.15A and whether there was an advance firm commitment to ongoing employment. In my opinion the letter of 4 March 2021 is not objectively a dismissal, and the end date of the set engagement period does not constitute a dismissal.

[44] Mr Davey submits that the Agreement is an applicable document and that the RMIT Casual Employment Terms and Conditions (Vocational Education Employees) relied on by RMIT erroneously characterises their employment obligations because of the inconsistency with the industrial instrument. Mr Davey submits that RMIT breached its own agreement, and this breach supports his general protection application.

[45] The Agreement does make provision for the engagement of casual employees and does provide some limitations in the hours of work to favour more permanent engagement practices. Had RMIT breached its own Agreement is not the matter to be determined. The jurisdiction of the Commission is limited under general protections dismissal matters and that does not include determination whether there has been a breach of Agreement. The question of whether Mr Davey was dismissed can be determined on the facts and the requirements of ss.15A, 365 and 368.

[46] RMIT refer to s.383, although it is unnecessary to consider whether Mr Davey met a minimum employment period in a general protections matter. Mr Davey made reference to ss. 66F, 66G and 66H of the Act which relates to requests for conversion, the requirement to respond and refusal of requests. RMIT made no submissions regarding the relevance of these clauses as the matter before the Commission is the jurisdictional objection that Mr Davey was not dismissed. Therefore, I do not intend to address those submissions advanced by Mr Davey.

Conclusion

[47] Having considered the submissions and evidence on the question of whether Mr Davey was dismissed as defined by the Act, I find that he was not. Mr Davey was engaged on three separate specified time engagement periods as a casual employee and those terms offered to Mr Davey were unambiguous prior to his commencement of employment. Mr Davey accepted those terms and while he submits that there was a pattern of engagement, which he describes to be in breach of the terms of the Agreement applicable to his employment, the jurisdictional question concerns whether he was dismissed. I find that Mr Davey was not dismissed at the initiative of the employer for the purposes of s.386(1)(a) of the Act and therefore his application under s.365 of the Act is dismissed.

COMMISSIONER

Appearances:

Mr J. Davey for himself

Mr L. Carr for the Respondent

Hearing details:

2021
Melbourne by Telephone
7 June

Printed by authority of the Commonwealth Government Printer

<PR733031>

 1   Respondent’s outline of argument: objections at 5e.

 2   Respondent’s written submissions of 21 May 2021.

 3 Applicant’s outline of argument at [1].

 4   Ibid at [2] – [4].

 5   Ibid at [5] - [13].

 6   Ibid at [14] - [19].

 7   Ibid at [20] – [26].

 8   Respondent’s written submissions at [2.3] and RMIT letter of 4 March 2021- exhibit 4o to Applicant’s outline of submissions.

 9   Respondent’s written submissions at [2.5] – [2.6].

 10  Ibid at [2.3] – [2.6].

 11   Ibid at [2.11] – [2.12].

 12   Ibid at [4.1].

 13   Robinson v Grandviews Bowling Recreation Club (T/A Club Grandviews)[2016] FWC 1463 at {41].

 14   Booth v Organic Formulations Pty Ltd[2014] FWC 7629 at [4] and [16].

 15   See Part 1-2 – Definitions in s.12 of the Fair Work Act 2009.

 16   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].

 17   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.

 18   Program structure, RMIT website.

 19   Exhibit 4m to Applicant’s outline of argument.

 20   Three Casual Letters of Engagement attached to the Respondent’s outline of argument.

 21   Attached to the Respondent’s outline of argument.

 22   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [51].

 23 Ibid at [54].

 24 Ibid at [67].

 25   Drummond v Canberra Institute of Technology[2010] FWA 3534 and affirmed in FWAFB 5455.

 26   Khayam v Navitas English Pty Ltd T/A Navitas English, [2017] FWCFB 5162 at [72].

 27 Ibid at [75].