Mr Syed Bokhari v Australian Campus Network Pty Ltd T/A ACN conducting courses on behalf of La Trobe University

[2014] FWC 67

[2014] FWC 67

FAIR WORK COMMISSION

DECISION

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

Mr Syed Bokhari
v
Australian Campus Network Pty Ltd T/A ACN - conducting courses on behalf of La Trobe University
(U2013/2046)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 JANUARY 2014

Application for unfair dismissal remedy - jurisdictional objection - termination at the initiative of the employer - representation - costs - Fair Work Act 2009 ss.386, 611

[1] Mr Bokhari lodged an application for relief in respect of the termination of his employment pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] This decision arises from a jurisdictional objection to Mr Bokhari’s application lodged by Australian Campus Network Pty Ltd (ACN). ACN objects to the application on the basis that Mr Bokhari was not “dismissed” within the meaning of s.385 of the Act. ACN alleges that Mr Bokhari was employed on a fixed term contract which came to an end at the completion of the fixed term period within the meaning of s.386(2) of the Act. ACN also sought costs pursuant to s. 611 of the Act.

[3] In his Application for Unfair Dismissal Remedy Mr Bokhari stated that he commenced employment with ACN on 4 December 2010 and that his dismissal took effect on 31 May 2013.

[4] I heard ACN’s jurisdictional objection on 8 November 2013. Submissions were received on 13 September 2013 from ACN and 25 September 2013 from Mr Bokhari.

[5] Mr Bokhari opposed the Commission granting permission to appear to ACN’s legal representative. I determined the issue at commencement of the hearing. Permission for a solicitor to appear on behalf of ACN was not granted.

[6] Documents were tendered at the hearing by Mr Braithwaite, the Human Relations Manager of ACN. 1

[7] ACN submitted that Mr Bokhari was engaged as a casual teacher pursuant to a number of fixed term contracts. Each fixed term contract period coincided with an ACN teaching semester. In the last contract Mr Bokhari was employed as a casual teacher from 4 March 2013 to 24 May 2013.

[8] With the exception of the first fixed term, each contract contained identical terms and each contained an express provision to the effect that Mr Bokhari was not guaranteed further employment following the expiry of the current fixed term.

[9] The contract stated:

“ACN is under no obligation and does not give any guarantee or make representation that it will offer employment to you. Similarly, you are under no obligation to accept or perform work for ACN”. 2

[10] ACN submitted that it has a genuine business need to engage teaching staff on a casual basis through fixed term contracts because of the volatility of student enrolments and it did not do so to avoid its obligations under the Act.

[11] In support of its objection to the application ACN relied on Karmakar v Australian Campus Network Pty Ltd 3 (Karmaker), and Mark Drummond v Canberra Institute of Technology4 (Drummond).

[12] Mr Bokhari taught at the same institution and was employed through fixed term contracts which were substantially the same as those involved in Karmaker. In Karmaker Commissioner Cambridge stated:

“Having examined the evidence in this matter and in particular the nature of the contracts which governed the employment of Mr Karmaker, I am of the view that there is no intention of those contracts to in any way avoid the employer obligations as is considered by subsection (3) of section 386 of the Fair Work Act.”

[13] In Drummond Commissioner Deegan determined:

“The applicant’s employment terminated with the expiration of that contract. In these circumstances there is no jurisdiction for an application to be made pursuant to s.386 of the Act as there is no termination of employment at the initiative of the employer”.

[14] ACN sought costs of its jurisdictional objection as it “...should have been apparent to Mr Bokhari after receiving correspondence explaining the jurisdictional objection, that the application had no reasonable prospect for success”.

[15] In support of his application Mr Bokhari contended the following:

● he had regular and systematic employment;

● he had a reasonable expectation of continuity of employment on a regular and systematic basis; and

● after engagement for eight semesters without a break, his termination of employment should be considered in accordance with s.385

[16] Mr Bokhari relied on his submission of 25 September 2013 to support his contention that he was unfairly dismissed.

[17] Both ACN and Mr Bokhari were granted an opportunity to lodge further submissions after the hearing.

[18] Legislative background

“386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

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

(a) the person was employed under a 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) the person was an employee:

(i) to whom a training arrangement applied; and

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

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

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

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

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

611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).

Conclusion

[19] The contract of employment pursuant to which Mr Bokhari was last employed coincided with an ACN teaching semester. That was the usual arrangement for Mr Bokhari and many other teachers employed by ACN. I am persuaded that this arrangement suits the business needs of ACN and is entered into to meet a genuine business need. I am satisfied that it is not a sham arrangement intended to avoid ACN's obligations pursuant to the Act.

[20] It is often the case that a series of fixed term contracts of employment over a number of years will give rise to an understanding of permanent employment or an inference that what is occurring is long-term permanent employment and not a series of fixed term appointments. There is certainly a series of fixed term contracts in this case of a duration which might reasonably give rise to such an inference. However, the particular terms of these contracts of employment make it very clear that there is no obligation arising to offer further contracts of employment and no permanent employment intended to be engaged in. I am satisfied that the terms of the contracts offered to Mr Bokhari answer any understanding or inference which might otherwise have arisen.

[21] I am satisfied that Mr Bokhari has been engaged in a series of contracts of employment for a specified term and that his employment ceased at the end of the last contract by the effluxion of time. There was not a termination of employment at the initiative of ACN.

[22] I am not satisfied that the contracts of employment offered to Mr Bokhari were contracts for casual employment, but that question does not arise for resolution since this application is excluded from the jurisdiction of the Fair Work Commission pursuant to the operation of section 386(2).

[23] I am not persuaded that I should order costs against Mr Bokhari. ACN submits that it should have been clear to Mr Bokhari that he could not be successful once ACN's submission was provided to him. Mr Bokhari does not have any legal training. Unlike ACN he did not have the benefit of advice from a lawyer.

[24] I have considered ACN submissions on this issue. I am not persuaded that Mr Bokhari should have understood his position. The question for determination is complicated. It is clear from Mr Bokhari’s submissions that he confused the jurisdictional objection with the question of his casual employment. I have a discretion to exercise in relation to this application. I have decided in all the circumstances of this case to exercise my discretion and refuse the application for costs.

[25] This application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

S Bokhari, applicant, unrepresented

Mr Braithwaite for Australian Campus Network Pty Ltd T/A ACN

Hearing details:

2013

Sydney

November 8

 1   Exhibits ACN 1 - 5

 2   Exhibit ACN 1

 3   [PR538000]

 4   [PR996761]

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