Monica Nash v St Vincent's Hospital Sydney Limited
[2024] FWC 1583
•18 JUNE 2024
| [2024] FWC 1583 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Monica Nash
v
St Vincent’s Hospital Sydney Limited
(C2024/821)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 18 JUNE 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether the applicant was dismissed at Respondent’s initiative – initial contract end date extended – whether applicant agreed to extension – method of acceptance considered – contract extension agreed – contract valid and enforceable – contractual terms clear as to contract end date – no dismissal at employer’s initiative - application dismissed.
Overview
On 10 February 2024, Ms Monica Nash (Applicant), filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by St Vincent’s Hospital Sydney Limited (Respondent) in contravention of Part 3-1 of the Act.
The Respondent has raised a jurisdictional objection to the Application, namely, that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act. The Respondent says that the Applicant’s employment came to an end pursuant to the terms of her employment contract.[1] It further says that even if the Applicant was dismissed, she has not been dismissed in contravention of Part 3-1 of the Act.
Events leading up to, and post, the hearing
The Application was allocated to my Chambers on 5 March 2024. Directions were issued on 7 March 2024 for the filing of submissions and evidence. Those directions were amended on two occasions at the request of the parties.
A hearing was conducted on 29 April 2024. Post the hearing, the parties filed written closing submissions, with the Respondent filing its closing submissions in reply on 11 June 2024.
At the hearing, the Applicant appeared for herself, and the Respondent was represented, with permission, by Ms Kate Peterson, Partner, assisted by Ms Ali Redfern, Senior Associate, McCullough Roberston lawyers.[2]
Factual findings
I make the factual findings that follow for the purposes of these proceedings.
The Applicant was employed by the Respondent from 24 October 2022 to 20 January 2024 (Employment) as the Operations Manager of the Respondent’s Haematology Clinical Trials Unit (HCTU). In this role, she managed the operations and logistics of HCTU clinical trials for Principal Investigators, and the HCTU Clinical Trials Coordination team.[3]
The Applicant was first employed by the Respondent pursuant to an offer of employment dated 21 October 2022 (First Contract).[4] The Applicant signed as accepting the First Contract on 22 October 2022.[5] The First Contract was a ‘Maximum Term’ contract and specified a contract end date of Friday, 20 October 2023. The Applicant initially reported to “[Dr] Nada Hamad (Senior Staff Specialist) or otherwise as required by the Network” under the terms of the First Contract. On 26 May 2023, the Respondent determined that all staff in the HCTU (where the Applicant worked) would report to Dr Philip Cunningham OAM (Associate Professor). There were no exceptions to this redirection of reporting lines. This included the Applicant, who as of 26 May 2023 ceased reporting to Dr Hamad (as she had previously done), and immediately commenced reporting directly to Dr Cunningham.
On 18 October 2023,[6] the Applicant was made aware that she was to be offered a three month outer limit contract for the period 21 October 2023 to 20 January 2024 (Extended Contract).[7] Under the Extended Contract, the Applicant continued to report to Dr Cunningham, pursuant to the express terms of the Extended Contract (and consistent with the 26 May 2023 Email).
The terms and conditions set out in the First Contract and the Extended Contract are identical, apart from their respective start and end dates.[8] However, unlike the First Contract, the Extended Contract does not contain a method of acceptance term. Such a term is normally, but need not be, prescribed by an offeror employer (as opposed to an offeree employee). In this case, there is no reason as to why, in circumstances where a method for acceptance of the Extended Contract has not been prescribed (intentionally or unintentionally), acceptance would not be found to have occurred pursuant to ordinary common law contractual principles.[9] That is:
a)upon express (written or oral) communication of such acceptance; or
b)on the basis of performance, whereby an offeror (in this case the Respondent) may wholly dispense with, ignore, or not require (expressly or impliedly) the need for expressly communicated acceptance (i.e. at or from the time that any performance by the relevant offeree (employee) occurs, or at any time thereafter). Of course, the test to be applied here concerns the lower bar of ‘acceptance’ of an offer, which is to be contrasted with the law concerning the test for the ‘acceptance’ of a repudiatory breach.
There is no basis upon which the terms as to “commencement date” and “contract end date” under the First Contract and the Extended Contract are to be construed as being other than what they say they are, i.e. the contract, or its extension, starts on the date specified in the contract, or its extension, and ends on the date specified in the contract, or its extension. The express terms of the Contract must be given effect unless contrary to statute.[10] In this case no question arises as to the terms of the Extended Contract being contrary to statute, or contrary to the enterprise agreement that applied to the Applicant’s employment with the Respondent.[11]
Dr Cunningham is employed by the Respondent as its Chief Operating Officer for Applied Medical Research (AMR), and Deputy Executive Director of Research. From 1 August 2023, Dr Cunningham has also been acting in the role of Executive Director of Research. The scope and nature of Dr Cunningham’s duties, responsibilities and accountabilities are evident from a review of the National Clinical Trials Governance Framework and user guide for health service organisations conducting clinical trials,[12] and the other attachments to Dr Cunningham’s witness statement.[13]
Dr Cunningham gave the following uncontested evidence (which I accept and make findings accordingly):
“6. In my role as Chief Operating Officer at the AMR and Acting Director of Research, I lead a multidisciplinary team of more than 100 staff. My responsibilities include managing research across clinical and basic discovery laboratory-based research. This includes managing the majority of clinical trials spanning nine clinical disciplines that are actively engaged in clinical trials. The role involves effective strategic management of the research environment, business development, workplace health and safety, human resources, finance, intellectual property and commercialisation both locally and across St Vincent’s Health Australia Group facilities (which includes the Hospital).
7. As the Deputy Director of Research, I reported to the Executive Director of Research and now as the Acting Executive Director of Research, I report to the Chief Executive Officer, which is currently Anna McFadgen.
Haematology Clinical Trials Unit
8. In or around 2013, the Executive Director of Research, Emeritus Professor Terry Campbell AM, commenced a strategic review of the healthcare research activities, including clinical trials, for the St Vincent’s Health Network Sydney ahead of the introduction of the Australian Commission on Safety and Quality in Healthcare (ACSQHC) national accreditation scheme for healthcare services.
9. The National Model Clinical Governance Framework was introduced in 2017. This framework is used to assess healthcare organisations compliance with National standards specifically relating to the conduct of clinical trials. At this time, the Hospital was selected as one of more than 10 luminary sites to undergo pilot accreditation in 2020. In the lead up to this pilot accreditation, considerable effort and preparation was invested to bring the Hospital’s collective clinical trials activities across the campus to a high standard.
10. At that time, the Hospital undertook a review of Clinical Trials in Sydney, one of the aims of that review being to consolidate, where possible, the various clinical trials activities under one operational governance structure to improve quality and functionality. Accordingly, the Haematology and the Oncology Clinical Trial Units were combined. Those units were to run independently from other clinical trials units in the AMR. As a result, an Operations Manager role within the HCTU was created to manage the operations of the clinical trials that unit undertook. Other than the overall research governance of the organisation, AMR had little to no oversight or control of HCTU and I had no operational management of the activities of that unit.
11. In or around May 2023, the Chief Executive Officer at the time, Adjunct Professor Anthony Schembri, met me and asked if I would, in addition to the AMR, also manage the HCTU as an interim arrangement to review the governance and operations of the unit. I was aware at that time that the HCTU had some governance, communication, operational and financial issues.
12. Mr Schembri noted to me that the Research Directorate was to be assessed through the accreditation process at some time in late 2024-2025. One of the key components in the accreditation framework for clinical trials against which the Hospital would be assessed is clinical performance and effectiveness. A copy of the National Clinical Trials Governance Framework and user guide for health service organisations conducting clinical trials (Accreditation Framework) is attached to this statement and marked “PC-1”.
13. I appreciated the importance of ensuring the Hospital was re-accredited and complied with the Accreditation Framework, so I agreed with Mr Schembri to take on the review of the HCTU.
14. Accordingly, on 26 May 2023, I received an email from Mr Schembri (as a member of the “SVHS Senior Leadership Team” email group) to the Director of the HCTU, Associate Professor Nada Hamad and other senior members of that team, including Ms Monica Nash who was the Operations Manager of the HCTU. In that email, Mr Schembri announced that I was to commence a review of the clinical and operational aspects of the HCTU. Mr Schembri also said that during this interim review period, all HCTU staff would report to me and clinical governance matters would remain the responsibility of the relevant principal investigators. A copy of Mr Schembri’s email is attached to this statement and marked “PC-2”.
15. When I commenced my review with the HCTU, it had the following structure:
(a) A/Professor Hamad, Director.
(b) Nine (9) Principal Investigators (Haematology medical specialists). At the time the Director would be responsible to ensure that the research undertaken in the HCTU complied with the international requirements for Good Clinical Practice (GCP) assuring the proper conduct of trials in the HCTU.
(c) Ms Nash, Operations Manager. Ms Nash managed the operations and logistics of the clinical trials for the Principal Investigators and the Clinical Trials Coordination team.
(d) Five (5) Trial Coordinators. Trial Coordinators (a role usually occupied by registered nurses or allied health professionals) assist the Principal Investigators with conducting the clinical trials.
(e) One (1) Finance support officer and one (1) Regulatory Affairs Officer.
16. I observed that the structure of the HCTU meant the various clinical trials were fragmented and I did not think it was running as effectively as it could. At the unit level, there did not appear to be cohesive communication between the HCTU leadership and the Principal Investigators, or a consistent expectation of a structured approach to clinical trial supervision.
17. During the first month of my review (May to June 2023), I had several discussions with A/Professor Hamad and Ms Nash about the financial situation of the HCTU. I recall that on one occasion, but cannot now recall the date of this discussion, A/Professor Hamad and Ms Nash asked me if HCTU could join the AMR on the basis that it retained the same structure it had, just within the AMR. I told A/Professor Hamad that it would not be possible for the HCTU to retain its structure if it joined the AMR and that the HCTU would need to be aligned with the AMR organisational structure. I also explained that A/Professor Hamad needed to demonstrate financial viability of the unit and I was not prepared at that time to accept the financial risk of merging the HCTU into the AMR.
18. In the course of my review, I considered there to be three different options to address the issues I had identified in the HCTU:
(a) dissolve the HCTU and rebuild it afresh;
(b) merge the HCTU into the structure of the AMR; or
(c) merge the HCTU with the Oncology Clinical Trials Unit.
19. In or around 20 September 2023, Ms McFadgen and I were considering seeking some external advice from the St Vincent’s Haematology Unit in Melbourne to understand how they were operating that unit as a standalone unit. However, in my discussions with Ms McFadgen, I advised her that I had formed the view that the HCTU was much smaller and at the time did not generate enough revenue for us to consider having it as a standalone unit and recommended that the HCTU be merged into the AMR.
…
28. There is no ‘Operations Manager’ position in the AMR. As part of the progressing the option of merging the HCTU into AMR, I mapped out the roles and duties that the Operations Manager role performed in the HCTU against the duties performed by the Clinical Research Manager, the Quality Manager Clinical Trials and the Business and Finance Manager in the AMR (including their support teams) and found that those duties performed by the Operations Manager role were already being performed, albeit by various team members as opposed to one particular role. This mapping task involved me listing the main responsibilities and cross referencing these against the responsibilities and duties of the existing roles in the AMR team. By doing this, I identified that the role of the Operations Manager would not be required if the HCTU was merged into the AMR. A copy of the position description for the Operations Manager relevant to my assessment is attached to this statement and marked “PC-3” and my mapping assessment is attached and marked “PC-4”.
Contract extensions of HCTU staff
29. In or around early October 2023, I began to get asked by numerous staff of the HCTU about the status of their employment contracts and whether or not they would be renewed. It was prior to the introduction of the industrial reforms which changed the rules regarding fixed term contracts. At that time, it was quite typical for us to employ clinical trial staff on 12-month contracts, given the temporary nature of clinical trials, and staff could sometimes have a sequence of specified term contracts. I recall that Ms Nash was one of the HCTU staff who had asked me about the status of her contract.
30. At this point, I had not yet formed a view on which change option was preferred and so it was decided that all staff in the HCTU who had contracts that were expiring would be extended. This would allow time for a proposed structure to be agreed and staff to be consulted on that proposed structure.
31. Accordingly, on 17 October 2023, I sent an email to Ms Nash confirming the contract extensions for all HCTU staff contracts and letting her know that I had actioned these in the Work Day system (the human resources system that managed contracts). A copy of my email to Ms Nash and her response is attached to this statement and marked “PC-5”. As Ms Nash was the HCTU Operations Manager, she was required to approve the changes in Work Day before contracts would be offered to the team. At this point, all HCTU support staff contracts were proposed to be extended for 12 months, with the exception of Nick Kakaroubas because his contract did not expire until 2025.
32. I do not recall whether or not I had a verbal discussion with Ms Nash about the length of the contract extensions before or after I sent my email on 17 October 2023, however the majority of my communications with Ms Nash around this time was via email.
33. On 18 October 2023, I was blind copied to an email from Ms Roberts to Ms Nash which stated:
“I have discussed with Anna and the local team clarity re the contract renewal. The contract renewal for all people (including you) is intended to be 3 months (while Anna obtains external advice re the structure). The 12 months was an error and a miscommunication with Phil returning from leave. I have asked HR to process these 3 month renewals now. I understand that this does not give you long-term certainty over your role, for which I am sorry.
I also confirm that I have communicated to Phil that you will be away for 2 weeks and that I have placed you on special leave returning 1 November 2023.”
34. A copy of this email is attached to the Application Submission.
35. I note that I was on annual leave from 2 to 6 October 2023 and then again from 23 to 27 October 2023.
36. I did not have any conversations with any HCTU staff, including Ms Nash, about any issues they may have had with their contract extensions between October 2023 to January 2024.”[14]
The email of 26 May 2023 (26 May Email), sent directly from Mr Anthony Schembri AM, former Chief Executive Officer, as referred to in Dr Cunningham’s evidence above, was sent to Dr Hamad, the Applicant, and the SCHN Leadership Team. It reads:
“Dear Barbara, would you kindly forward to our haematologists.
Dear Monica, similarly for trials unit staff.
Dear Phil, for relevant folks in AMR.
Thanks, ADear colleagues,
I write to advise that A/Professor Phil Cunningham has accepted my invitation to work with all stakeholders on reviewing the governance arrangements both clinical and operational aspects for the haematology clinical research unit. During this time, Phil will consult widely and I would encourage you to contact Phil for input into this process. During this interim period, haematology clinical trials unit staff will report to Phil and all clinical governance matters remain the responsibility of the relevant principal investigators. Phil will progress this in the coming weeks with A/Professor Dion Forstner as Cancer Clinical Stream Director.
Thank you for your ongoing work to ensure our haematology patients have access to clinical trials.
Regards, Anthony”[15]
Based upon the evidence of Mr Rio Pun, Human Resources Business Partner, I make the following findings:
a) The Respondent uses an electronic Human Resources Information System called “Workday”. Each employee has a secure Workday network account, that can be accessed via clicking on a desktop icon on a computer linked to Workday.
b) When an employee accesses their Workday account, if an employment contract is to be renewed, updated or extended, an “action item” will appear on the employee’s Workday individual landing screen, that the employee then clicks on to provide them with details about such renewal, update or extension (i.e. via a downloaded document containing the contract). There is no requirement on Workday for an employee to ‘accept’ their renewal, update or extension. Rather, acceptance is deemed to have occurred when the relevant action item is posted to an employee’s individual Workday landing page.
c) Human resources and other authorised employees can access individual staff Workday accounts to make changes to same, and create action items.
d) In her role as HCTU Operations Manager, the Applicant was authorised, and did, access staff Workday accounts to make changes to same. In other words, accessing relevant staff Workday accounts to make changes was part of the duties that the Applicant was required to, and regularly did, perform. She accessed Workday on 11 occasions after 18 October 2018.[16]
e) The Extended Contract was loaded onto the Applicant’s secure Workday account on 23 October 2023, by Ms Lucy Dawson, Human Resources Partner.[17] This created an action item on the Applicant’s personal Workday account landing page. This action item appeared on the Applicant’s initial landing page as a clearly visible miniature icon of the first page of the Extended Contract (Visible Action Item). In other words, the Visible Action Item was clearly visible to the Applicant, upon opening her Workday account, as a contractual document.[18] The Applicant accepts that she saw the Visible Action item when she accessed her personal Workday account (i.e. post Ms Dawson loading same onto her account).
I make the following additional findings arising from the evidence at the hearing:
a) The Applicant was on notice prior to 20 October 2023 (the expiry date of the First Contract) that she would only have job certainty for another three month period. More specifically, the Applicant was directly told (prior to 20 October 2023) that she is very unlikely to have a job in three months’ time.[19]
b) The Applicant received the following email from Ms Rebecca Roberts, Chief People & Culture Officer, on 18 October 2023 (18 October Email):
“Hi Monica
Thanks for your call earlier. I can hear how distressed you are.
I have discussed with Anna and the local team clarity re the contract renewal. The contract renewal for all people (including you) is intended to be 3 months (while Anna obtains external ad long term certainty over your role, for which I am sorry.
I also confirm that I have communicated to Phil that you will be away for 2 weeks and that I have placed you on special leave returning 1 November 2023.
I really encourage you to take this time to look after yourself. I am sure you have access to EAP but just in case the number is 1800818728.
Please take care of yourself
Rebecca”[20]
c) The Chief Executive Officer, Ms Anna McFadgen (who replaced Mr Schembri), was copied into the above email, noting that she is referenced therein in respect of Ms Roberts discussions with her. Ms McFadgen at no time revised anything said in the 18 October Email.
d) The Applicant did not have any communication (orally or in writing), at all, with Ms Roberts, Mr Pun, Ms McFadgen, Ms Laura Sayan (the Human Resources Business Partner that was mapped to her at the time), or Dr Cunningham, about the 18 October Email.[21] It is apparent that there were various avenues or persons available to the Applicant to engage in such communications. The Applicant opportunistically characterises her failure to communicate with anyone as no one communicating with her, despite there being the ability and opportunity for the Applicant to engage in such communication (e.g. with Ms Roberts). The only point here is that there was no communication. Why there was no communication, and who was to blame, is not relevant for the purposes of these proceedings. If the Applicant disputed the Extended Contract, it was up to her to take that issue up with management. She never did.
e) The Applicant accepts that she could see the Visible Action Item on Workday as at the time it was placed there by Ms Dawson in October 2023, but she intentionally chose, or made the conscious decision, not to click on (or open) it.[22] In view of this evidence, and the surrounding facts and circumstances at the time,[23] the Applicant’s decision to not click on (or open) the Visible Action Item is not one that the Applicant can now hide behind to assert that she was not aware that it contained a three month extension, or that the Extended Contract was not communicated to her.
f) The Applicant made no objection to the three month contract extension,[24] nor did she seek any clarification of it, or around it.[25]
g) The three month (as opposed to, for example, 12 month) extension to the First Contract occurred in the context of the review that was being undertaken by Dr Cunningham.[26] However, it was not Dr Cunningham’s decision to extend relevant employment contracts for only three months. That was a decision made by the Chief Executive Officer.[27] The Applicant was never offered a contract extension for 12 months via Workday.[28] Any confusion around the Extended Contract being for a term other than 3 months was put to rest (as far as the Applicant is directly concerned) by the 18 October Email.
h) The change in reporting lines directly to Dr Cunningham applied to the whole of the HCTU, not just the Applicant.[29] In other words, the Applicant was not singled out to report to Dr Cunningham. If the Applicant chose (as she suggests in her evidence) to continue to report to Dr Hamad, that was a matter for her, but she was not following the mandated reporting line to Dr Cunningham, meaning that whatever she was reporting to Dr Hamad was pointless, and contrary to the Respondent’s 26 May Email directive.
i) The review undertaken by Dr Cunningham determined that the Applicant’s role of Operations Manager would not be required post January 2024. It has not since been replaced by anyone.[30]
j) Post the reporting line change to Dr Cunningham on 26 May 2023, Associate Professor Nada Hamad held no relevant authority or responsibility for the Applicant, nor was she part of any applicable or authorised decision making structure in respect of the Applicant’s terms and conditions of employment. It follows that, in relation to the Extended Contract, whatever was:
·told to the Applicant by Dr Hamad (which is not clear on the evidence, or not in evidence);
·said by the Applicant to Dr Hamad (which is not clear on the evidence, or not in evidence); or
·done by Dr Hamad, formally or informally (which is not clear on the evidence, or not in evidence),
is irrelevant.
k) The Applicant’s assertions that she simply did not know why her contract was only extended for three months (as opposed to 12 months) cannot be accepted in the context of Dr Cunningham’s review, the 26 May Email, the 18 October Email, and the evidence at the hearing.[31]
‘Dismissal’ under s.386(1) of the Act
Section 365 of the Act reads:
“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.”
Aside from consent arbitration, the Commission’s only role in a general protections involving dismissal application made under s.365 of the Act is to conduct a conference between the relevant parties (so as to assist them in attempting to resolve the unlawful termination application by agreement), or issue a certificate if a resolution is unable to be agreed (a certificate is a prerequisite to being able to progress a claim onto an eligible court for judicial determination). That said, the power to conduct such a conference and issue a certificate is provided for under the Act, and the Commission has no jurisdiction to conduct a conference, or issue a certificate post that conference (where resolution is unable to be reached), unless a ‘valid’ (or within jurisdiction) general protections involving dismissal application has been filed. It is for the Commission to resolve any disputes or issues as to its jurisdiction in this regard for itself.[32]
I concur with the Respondent that the meaning of the term “dismissed” under s.365(a) of the Act is to be defined in accordance with the meaning of that term under s.12 and (relevantly) s.386(1)(a) of the Act, and applicable case law authorities in respect of same.[33]
Section 386(1) of the Act reads:
“(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.”
In Khayam v Navitas English Pty Ltd t/a Navitas English[34] (Navitas), the Full Bench majority held that the analysis as to whether there has been a termination (dismissal) at the initiative of the employer for the purposes of s.386(1)(a) of the Act is to be conducted by reference to the employment relationship.
Post the decision in Navitas, the Full Bench majority in NSW Trains v James[35] determined that the expression “employment … has been terminated” (in s.386(1)(a) of the Act) refers to termination of the employment relationship and/or termination of the contract of employment.[36]
In Alouani-Roby v National Rugby League Limited[37], the Full Bench of the Commission stated:
“[125] The employment relationship and the employment contract are interrelated. The contract of employment creates the basis of and underpins, the employment relationship. As McHugh and Gummow JJ observed in Byrne v Australian Airlines Ltd:
“The evolution in the common law as to the relationship of employment has been seen as a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee).”
[126] And in WorkPac v Rossato the plurality cited the judgement of French CJ, Bell and Keane JJ in Commonwealth Bank v Barker who said:
“The employment relationship in Australia operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment.”
[127] Also, as Katzman J observed in Broadlex: “The employment relationship is inherently a contractual one. Consequently, there can be no employment relationship without a contract of employment.”
[128] The Full Bench in Khayam v Navitas did not determine that the contract of employment is irrelevant to the question posed by s.386(1)(a) and nor did it establish a principle that the circumstances of the entire employment relationship trump the terms of an employment contract in all cases. Rather, it emphasised that there may be cases where, notwithstanding that employment has ended at the same time as the end date in a time-limited contract, and ostensibly in accordance with the terms of the contract, it will be necessary to analyse the entire employment relationship to determine whether an employee has been dismissed within the meaning of s.386(1)(a).
[129] Further, the Full Bench in Khayam v Navitas did not assert in the first principle [at paragraph [75] of its decision] that in all cases, the question of whether a person has been dismissed, is answered by focusing only on the employment relationship and whether it has ended, in isolation from whether there has been a termination of the contract of employment. The paragraphs preceding the principle in paragraph [75](1) deal with propositions that the definition of “dismissed” in s.386(1) is not to be read as excluding in all circumstances, a termination of employment that occurs at the end of a time limited contract of employment, and 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 parties that employment should come to an end not later than a specified date, will not by itself, constitute termination of employment.”[38] (citations omitted)
…
[133] A finding as to whether a person has been dismissed within the meaning in s.386(1) is a jurisdictional pre-requisite to the person making a general protections application involving dismissal, under s.365 of the FW Act. The Commission is not empowered to determine whether a person has been dismissed, based on a view that it would be fair or just for the person to be eligible to seek a particular remedy. Neither is the Commission empowered to find that that because a person claims to have been subjected to adverse action, the person should be permitted to make a claim for a remedy for which dismissal is a jurisdictional pre-requisite, in circumstances where the person has not been dismissed. There is no discretion, even where the Commission is satisfied that it is probable that adverse action has been taken, to extend remedies for dismissal to persons who have not been dismissed. Furthermore, a person who is employed on a time limited contract that reflects a genuine agreement that the employment relationship will not continue after a specified date, cannot seek to effectively set aside the contract by altering his or her position, and asserting that employment is not ending voluntarily, simply to access a remedy under the FW Act that requires that the person was dismissed.”[39] (citations omitted)
Consideration
In the facts and circumstances of this case, and having regard to the findings I have made in this decision, I do not accept that any reasonable person in the Applicant’s or the Respondent’s position would not have understood that:
a) the Extended Contract was an offer open to be accepted or rejected by the Applicant;
b) to reject the Extended Contract the Applicant would need to do so unequivocally. The evidence discloses that this never occurred;
c) choosing not to click on the Visible Action Item, for whatever reason, including for the purposes of later attempting to assert that the Extended Contract is not valid and enforceable (including as to its end date), is not a means by which ‘agreement’ to, or the validity and enforceability of, the Extended Contract (including its end date) is to be undermined or compromised; and
d) the fact that the Applicant chose not to resign but remain employed (whether on leave or otherwise) post the receipt of the 18 October Email (and post her viewing the Visible Action Item), and in the absence of her unequivocal express rejection of the Extended Contract, is sufficient at law (from the facts) to make a finding that the Extended Contract (including its end date) was agreed to by the Applicant, resulting in the Extended Contract (including its end date) being valid and enforceable. In the formal sense, I make this finding for the purposes of these proceedings.
The Applicant’s written closing submissions (dated 4 June 2024) make a multitude of different assertions as to why she considers herself to have been dismissed by the Respondent. However, all of those assertions, to the extent that they are relevant and alive for resolution in these proceedings, are predicated upon the Applicant not agreeing to enter into, or otherwise not being bound by, the terms of the Extended Contract. Given my ultimate finding in paragraph 24(d) above, none of the assertions made by the Applicant as to her employment being terminated at the Respondent’s initiative are sustainable. As correctly stated in the Respondent’s closing submissions:
“The Respondent submits that in the present case there is no fact or circumstance warranting a departure from the orthodox position in relevant case law that a genuine outer limit contract may expire by effluxion of time and it is that legal event that brings the employment relationship to an end. There is no separate question as to whether there was an initiative of the employer that brought that expiry about. This is consistent with the reasons of the Full Bench in Alouani-Roby at [118].”[40]
The employment relationship in this case is deferrable to the terms of the Extended Contract.[41] Having found that the Applicant is bound by its terms, I equally find that the Applicant’s employment came to an end on 20 January 2024 pursuant to the express terms of the Extended Contract. It follows that I find that the Applicant was not “dismissed” within the meaning of s.386 of the Act (at the Respondent’s initiative).[42] Given this finding, it is unnecessary for me to deal with this matter any further.
Conclusion
For the reason set out in this decision, based upon the evidence tendered at the hearing, and the submissions of the parties, I have upheld the Respondent’s jurisdictional objection that it did not “dismiss” the Applicant. It is therefore necessary that the Application filed by the Applicant on 10 February 2024, be dismissed as being without jurisdiction to proceed. I will make an Order to this effect, to be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant, Ms Monica Nash, appeared for herself.
Ms Kate Peterson, Partner, McCullough Roberston lawyers, assisted by Ms Ali Redfern, Senior Associate, appeared with permission for the Respondent (St Vincent’s Hospital Sydney Limited.
[1] The employment contract in this case was made in October 2023 (i.e. before the commencement of the legislative changes under the Fair Work Act 2009, that apply to fixed term contracts entered into on or after 6 December 2023).
[2] The determination to grant permission for the Respondent to be legally represented generally in these proceedings was made at the conference between the parties on 16 April 2024. Permission was granted having regard to the Respondent’s submissions on permission filed on 12 April 2024, and the complexities of the facts and the law that arise in these proceedings, with my finding that the Respondent being legally represented would make the proceedings (including the hearing) be more efficiently conducted (s.596(2)(a) of the Act).
[3] Exhibit R4, Attachment PC-3, CB pp.215-219.
[4] Annexure ‘A’ to Form F8A, CB pp.54-56.
[5] CB p.56.
[6] Exhibit R3, CB p.44. See also at Tab 26, CB p.325.
[7] Annexure ‘B’ to Form F8A. CB pp.57-60.
[8] Transcript, PN97-PN98.
[9] R v Clarke (1927) 20 CLR 227.
[10] Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at 479-80 [65].
[11] CB p.58, first paragraph of page.
[12] Exhibit R4, Annexure PC-1, CB pp.92-213.
[13] For example, Exhibit R4, Attachment PC-4 (CB pp.220-221).
[14] Exhibit R4. See also CB pp.323-326, 685, and 691 (as set out in MFI-1), and Transcript, PN257-PN258, and PN269-PN270.
[15] CB p.214.
[16] Transcript, PN611-PN619.
[17] Ibid, PN91, and CB p.691.
[18] Ibid, PN92-PN96, PN619-PN620, PN624, and PN629-PN630.
[19] Form F8, CB p.18, second last dot point. Transcript, PN501-PN504, PN528.
[20] Exhibit R3, CB p.44. See also at Tab 26, CB p.325.
[21] Transcript, PN54, PN107, PN255, PN531, PN537, PN567-PN569, PN610, PN64, PN703-PN710 (albeit note PN403)
[22] Ibid, PN112, PN594-PN603.
[23] Including the review of the HCTU that was occurring, and the changed reporting lines to Dr Cunningham from 26 May 2023 (see the evidence set out in this decision, and Transcript, PN727-PN729), the Applicant being acutely aware that the First Contract was expiring on 20 October 2023 (See Transcript, PN681, and PN685), the Applicant already being told that her role as Operations Manager was very unlikely to exist in three months, receipt by the Applicant of the 26 May and 18 October Emails, and the three month contract extensions being made for other HCTU employees that the Applicant was aware of at the time (See Transcript, PN660-PN667, PN673),
[24] Transcript, PN367-PN368.
[25] Ibid, PN402 (I concur with this submission as to the absence of evidence), PN689, and PN696-PN701.
[26] Ibid, PN127, PN327.
[27] Ibid, PN332 and PN376.
[28] Note exchange at Transcript, PN356-PN357. There is no evidence that the offer of a 12 month extension was ever fully loaded into Workday, or otherwise sent to Ms Nash.
[29] Ibid, PN259, and PN263-PN265.
[30] Ibid, PN249-PN250.
[31] Ibid, PN54, PN107, PN255, PN529, PN531, PN537, PN567-PN569, and PN580-PN587 (albeit note PN403)).
[32] See the decision of the Full Federal Court in Coles Supply Chain v Milford [2020] FCAFC 152, at [74]-[75], and Lipa Pharmaceuticals Ltd v Mariam Jarouche[2023] FWCFB 101, at [23].
[33] In relation to the application of s.386 of the Act to general protections involving dismissal claims, see Coles Supply Chain v Milford (2020) 300 IR 146, and Fair Work Ombudsman v Austrend International (2018) 273 IR 439. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589, at [116] and [117], and Searle v Moly Mines Limited [2008] AIRCFB 1088; (2008) 174 IR 21, at [17].
[34] [2017] FWCFB 5162; (2017) 273 IR 441.
[35] [2022] FWCFB 55; (2022) 316 IR 1.
[36] Ibid, at [45].
[37] [2022] FWCFB 171; (2022) 318 IR 389.
[38] Ibid.
[39] Ibid.
[40] Respondent’s submissions, 2 April 2024, at [10].
[41] Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, at 479-80 [65].
[42] This outcome is consistent with the decision of Deputy President Cross in Glenn Charles Baughen v Bawinanga Aboriginal Corporation[2022] FWC 1499, at [56]-[60] (upheld on appeal in Glenn Charles Baughen v Bawinanga Aboriginal Corporation[2022] FWCFB 146).
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