[2021] FWC 1800

FAIR WORK COMMISSION

DECISION

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

Ms Cheryl-Anne Murphy
v
University of Southern Queensland
(U2020/9506)

COMMISSIONER HUNT

BRISBANE, 1 APRIL 2021

Application for an unfair dismissal remedy – terms of fixed term contracts – applicable enterprise agreement – consideration of the majority decision in Navitas – relationship terminated by reason of agreement between parties – applicant not dismissed – application dismissed.

[1] On 10 July 2020, Ms Cheryl-Anne Murphy applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with the University of Southern Queensland (the Respondent/USQ).

[2] USQ raised a jurisdictional objection to the application. USQ say that Ms Murphy was not dismissed within the meaning of s.386(1)(a) of the Act, in that she was not terminated at the initiative of the employer when her fixed-term appointment concluded on 19 June 2020.

Background

[3] Between January 2017 and June 2020, Ms Murphy was employed by USQ on a series of contracts in the School of Nursing and Midwifery. The last contract of employment entered into between the parties was for the period 9 January 2020 to 19 June 2020. Ms Murphy says that the contracts were described as “fixed-term” contracts but, in terms of the employment relationship, Ms Murphy had an expectation of continuing employment with USQ.

[4] Over the course of Ms Murphy’s employment with USQ, the terms and conditions of her employment were governed, inter alia, by enterprise agreements approved by the Commission under the Act; the most recent agreement being the University of Southern Queensland Enterprise Agreement 2018-2021 (the Enterprise Agreement).

[5] On 17 April 2020, following receipt of USQ’s proposed workload allocation to Ms Murphy for semester 2, 2020, Ms Murphy sent an email to Professor Christine Neville stating:

“Hi Christine,

I have needed to re-evaluate to my work commitments with USQ for the latter part of this year. As you are aware, from my earlier emails this year, I need to generate some stability with my work arrangement and better work life balance with my family. For this reason, I need to advise you that I am unable to continue working full time in semester 2 for USQ. This decision is in consideration of my son who I will be home schooling in semester 2 and the proposed added expectations of teaching of 5 courses in semester 2. Unfortunately this is something that I am simply unable to do.

I am a person of integrity and have passion for my profession and quality of teaching experiences that I develop and provide for my students. I have over the past three years, been very loyal to USQ and demonstrated a commitment that goes well beyond what a reasonable person might expect, given that I have only ever been employed as a temporary and/or casual employee. I have devoted my efforts to USQ students in their perusal of midwifery as their profession but I feel the work allocations which, consistently change without consultation for semester 2, is simply not achievable.

If you still require my services, I am more than happy to continue working for USQ at a 0.5 or less.

Warm Regards

Cheryl-Anne”

[6] On 4 June 2020, prior to the commencement of USQ’s semester 2, 2020 teaching period, Ms Murphy received an email from Professor Christine Neville, as produced below:

“Dear Cheryl-Anne

In a review of the staffing profile for School of Nursing and Midwifery for Semester 2, 2020, unfortunately USQ is not able to offer you a contract for Semester 2.

I thank you for your contribution to the school, particularly the Midwifery program.

Regards

Christine

Professor Christine Neville

Head of School | School of Nursing & Midwifery”

[7] Ms Murphy maintains that she was dismissed within the meaning s.386(1)(a) of the Act in that her employment with USQ was terminated at its initiative.

Relevant legislation

[8] Section 386 of the Act provides the meaning of dismissed:

“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

(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.”

Hearing

[9] The matter was listed for jurisdiction hearing by video on 7 October 2020. Mr Christopher Tran of Counsel was granted leave to appear for Ms Murphy. He was instructed to appear on behalf of the National Tertiary Education Union (NTEU). Mr Dan Williams, Partner of MinterEllison was granted leave to appear for USQ.

[10] The following persons appeared and gave evidence in support of USQ’s jurisdictional objection:

• Professor Christine Neville, Head of the School of Nursing and Midwifery; and

• Associate Professor Victoria Terry, Deputy Head of School and the Associate Head Clinical Education.

[11] Ms Murphy appeared and gave evidence. Ms Elizabeth Rigg, Senior Midwifery Lecturer, and Director of the Midwifery Program gave evidence in support of Ms Murphy.

Respondent’s Evidence

Evidence of Professor Christine Neville

[12] Professor Neville made three witness statements and appeared and gave evidence at the hearing. Professor Neville has been Head of the School of Nursing and Midwifery at USQ since June 2018. Where reference is made to the School in this decision, it is in relation to the School of Nursing and Midwifery.

[13] Professor Neville’s inquiries indicate that prior to her appointment as Head of School, Ms Murphy was appointed to the following fixed-term positions:

(1) Lecturer (Midwifery):

• Fixed-term appointment from 27 January 2017 - 7 July 2017;

• 0.4 FTE;

• FTE change to 0.6 on 28 January 2017;

• Reason for appointment: backfill for a staff member who was on leave without pay during 2017.

(2) Lecturer (Midwifery):

• Fixed-term appointment from 8 July 2017 - 1 December 2017;

• 0.6 FTE;

• varied to 0.8 from 24 August 2017 to 15 September 2017;

• Reason for appointment: backfill for a staff member who was on leave without pay during 2017.

(3) Lecturer (Midwifery):

• Appointment resulted from a recruitment process – interviews held on 29 November 2017;

• Fixed-term appointment from 22 January 2018 - 8 January 2020;

• 0.5 FTE varied to 0.61 from 26 February 2018 - 26 October 2018;

• Reason for appointment: to cover 0.5 of the position of a staff member who was on a temporary FTE reduction from full-time to 0.5;

• The other staff member returned to her full-time substantive role on 4 February 2019, earlier than planned.

[14] Following Professor Neville’s commencement as Head of School, Ms Murphy was appointed to the following fixed-term positions:

(1) Specified Term/Task:

• Fixed-term appointment from 4 February 2019 - 8 January 2020;

• 0.5 FTE;

• Reason for appointment: to fulfil the contractual commitment to Ms Murphy for the period through to 8 January 2020, undertaking duties to support the teaching of the Midwifery program.

(2) Specified Term/Task:

• 9 January 2020 - 19 June 2020;

• 1.0 FTE;

• Reason for appointment: Teaching backfill for a staff member taking ADOSP leave.

[15] Professor Neville gave evidence that the decision to not offer any further employment to Ms Murphy was done in consultation with Professor Glen Coleman, Executive Dean of the Faculty of Health, Engineering and Sciences, together with Ms Susan Camfferman, Associate Director, Workplace Support & Partnering. The reasons for this decision were:

• the traditional decrease in student load during Semester 2;

• An additional Midwifery staff member had been appointed as required under a contractual agreement with industry partner, Tasmanian Health;

• Full-time continuing staff within the school were available and sought the opportunity to teach into the Midwifery program; and

• Ms Murphy had advised that she was no longer available to work full time.

[16] Professor Neville stated that the workload allocation model (‘WAMS’) planning is a continuing process within the School. Initial staff planning for the year begins in mid-October of the previous year and is reviewed weekly through to February and again at week four of each semester, at student census date. In April/May 2020, Semester 2 WAMS was reviewed to ensure staffing needs would be met.

[17] Professor Neville stated that when planning and determining the capacity of potential staff to teach into the Midwifery program, Ms Murphy advised her via email on 14 April 2020 that she was not able to do an expected work allocation. On 17 April 2020, Ms Murphy further indicated that she was unable to continue to work full time for Semester 2, 2020 but could continue working at a 0.5 FTE or less (per email at [5]). Professor Neville’s evidence is that maximising program stability is a workload principle of the School, therefore it is preferred to have as many full-time academics as possible. A continuing staff member accepted the offer to teach into the Midwifery program.

Reply evidence to Ms Murphy’s evidence

[18] Professor Neville noted Ms Murphy states that Ms Rigg expressed concerns to Associate Professor Terry (who is the current Deputy Head of School and who she says was Acting Head of the School at that time) and Professor Neville in around January 2018 that the “Midwifery program was significantly short-staffed.” Professor Neville’s evidence is that she did not have any discussions with Ms Rigg to this effect because she, Professor Neville, was not employed USQ at this time. Professor Neville commenced employment with USQ as the Head of the School of Nursing and Midwifery on 4 June 2018. Further, Associate Professor Terry was not the “Acting Head of School” in around January 2018. She believes the Acting Head of the School of Nursing and Midwifery at this time would have been Associate Professor Clint Moloney.

[19] In reply to Ms Murphy’s evidence that she was informed by someone in HR that her contract would need to change because Ms Danielle Gleeson (Lecturer, Midwifery program) returned to work on a full-time basis earlier than expected, Professor Neville determined that, despite Ms Gleeson’s return, there remained sufficient teaching needs within the program to continue Ms Murphy’s engagement and honour the balance of the term of the contract that had been originally offered to Ms Murphy. Accordingly, Ms Murphy’s contract recorded that it was for a “specific task or project” and “to support the teaching of the Midwifery program.”

[20] Professor Neville stated the following to add further context to the staffing profile of the Midwifery program:

(a) The University has had a memorandum of understanding (MOU) with the Tasmanian Department of Health to offer Midwifery education since 1 January 2017. The MOU was reviewed on 18 June 2019 with an extension approved until 31 December 2020. As a result of this arrangement, approximately 70% of students in the Midwifery program are from Tasmania and there are 101 active students in the Midwifery program;

(b) Because of the uncertain and potentially changeable nature of the arrangement with the Tasmanian Department of Health (and the significant impact it would have on student numbers if it ended) as well as normal fluctuations in student numbers from semester to semester, the University must ensure that its staffing model in the School is flexible enough to respond to both predictable and unexpected fluctuations in workload;

(c) Therefore, although USQ does have a preference for ongoing employment when circumstances allow, it is also required to employ a proportion of its staff on a fixed- term basis, with extensions or further offers of employment to be assessed on an ongoing semester-by-semester basis to match its work requirements.

[21] With respect to Ms Murphy’s concerns about her workload allocations in USQ’s WAMS and her recount of various discussions in relation to these concerns during early 2018 to late 2019, Professor Neville gave the below evidence:

(a) Ms Murphy’s concerns about being overallocated were first brought to her attention in around February 2019;

(b) To address her concerns, Professor Neville had meetings with Ms Murphy where she reviewed her WAMS allocation, identified areas where she was over-allocating her time and provided her with workload management strategies to ensure she did not ‘over-service’ students or take on additional work from other academic staff. For context, the Midwifery program is highly resourced as it has a 1:10 teacher-to-student ratio, as compared with the Nursing program which has a 1:25 teacher-to-student ratio;

(c) Any additional hours worked over and above the allocated hours in the WAMS by Ms Murphy were unauthorised. This is because any additional course teaching hours require approval first by the School’s Associate Head for Learning, Teaching & Student Success then by Professor Neville as the Head of School, where the Midwifery Programs Director would have to justify why additional hours were required to be worked and paid;

(d) Nevertheless, Professor Neville acknowledged that additional work had been completed by Ms Murphy and wanted to reach an agreement with her to fairly compensate her for this work. For work in 2018 USQ provided a one-off allocation of $3,000 to Ms Murphy, to compensate for the over-allocation of hours. For work in 2019, after numerous meetings with Ms Murphy (including with her union representative), 196.8 hours was carried across into her WAMS allocation for semester 1, 2020.

[22] Referring to a document titled “Academic Staff Workload Report” extracted from the WAMS on 4 June 2020, Professor Neville’s evidence is that document is not an accurate reflection of the hours ultimately allocated to, and performed by Ms Murphy in semester 1, 2020 because:

(a) it contains allocations of hours for semester 2, 2020 teaching because Ms Michelle Boettcher (School Support Officer) would have entered them as a proposed allocation as part of the planning process for staffing needs in semester 2; and

(b) it also records Ms Murphy as having an availability fraction of 80% (ie FTE 0.8 across the year), but Professor Neville understands this would have been included only as part of the planning process on the basis that Ms Murphy had said she would be available only as a FTE 0.5 for semester 2. When a staff member has different fractional appointments over the course of a year this is averaged out for the purpose of determining allocation limits.

[23] Professor Neville provided that the following recorded hours reflect the actual allocation for Ms Murphy in semester 1, 2020:

Description	Hours
Teaching focused research allocation (half of the 170.2 hours recorded in CM-9 as only for semester 1)	85.1
Intercampus travel (non-teaching)	3.0
Service additional allocation (Carry over of additional hours as per HoS approval 19.12.2019)	196.8
Service additional allocation (2nd Year Convenor) (half of the 108.9 hours recorded in CM-9 as only for semester 1)	54.45
MID2101 Course coordination (Moderator)	4.0
MID2102 Teaching hours (Online tutorials)	35.0
MID2102 Teaching hours (Online lectures)	35.0
MID2102 Teaching hours (Residential School Facilitator)	84.0
MID2102 Planning and development (Annual update)	40.0
MID2102 Course coordination (Examiner)	21.0
MID2102 Consultation allocation	13.3
MID2102 Repeated teaching hours	9.9
MID2102 Marking and feedback	18.4
MID2199 Course coordination (Moderator)	4.0
MID2299 Planning and development (Annual update)	40.0
MID2299 Consultation allocation	11.7
MID2299 Course coordination (Examiner)	21.0
MID2299 Marking and feedback	30.3
MID2399 Course coordination (Moderator)	1.6
MID3101 Teaching hours (Residential School Facilitator)	21.0
MID3102 Teaching hours (Residential School Facilitator)	21.0
TOTAL (note: up to 851 hours able to be allocated)	750.55

[24] In respect of the “196.8 hours” allocation, Ms Murphy alleges:

(a) that it “counted towards the maximum hours that could be allocated to me over the course of the year;” and

(b) “There is no way she could have recovered 196 hours in just semester 1. She was given theory courses, clinical courses and a new service role in semester 1 2020. It would have been impossible to get all 196 back while fulfilling her duties and the allocated hours.”

[25] In response to the above, and to Ms Murphy’s apparent assertion that she understood she was going to be offered a further contract in semester 2, 2020 because her allocation of 196.8 hours could not have been “recovered” in semester 1, 2020, Professor Neville says that:

(a) it is correct that allocated hours for research and service can be applied across the year, but in this instance, Ms Murphy was allocated the 196.8 hours, and they were in fact “recovered,” in semester 1;

(b) the total allocation for Ms Murphy in semester 1, 2020 was 750.55 (out of a possible 851 hours). This is 100.45 hours less than what could have been expected of Ms Murphy’s 1.0 FTE workload for that semester and the 196.8 hours credited had already been subtracted from this amount referable entirely to semester 1;

(i) Ms Murphy’s allocation of 196.8 hours were to be carried across to semester 2, 2020; or

(ii) a decision had otherwise been made to employ Ms Murphy in semester 2, 2020.

[26] Professor Neville stated that a meeting was held with a number of attendees on 18 November 2019, including herself, Ms Murphy, Ms Rigg and Ms Murphy’s union representative in relation to Ms Murphy’s ongoing workload concerns. Professor Neville attended this meeting however she denies that she made a statement to the effect, “I think this is a pretty fair deal, I’ve already guaranteed you a job for 2020. I’m not going to give you any more hours.” Her evidence is that she did not guarantee Ms Murphy a job for all of 2020 and would not have said words to that effect.

[27] Professor Neville recalls indicating that Ms Murphy would likely be offered a contract for semester 1, 2020. She felt it was appropriate to offer Ms Murphy a contract for semester 1 because of the agreement in relation to the additional allocation that was carried across to Ms Murphy’s WAMS allocation from semester 2, 2019 to semester 1, 2020. She states that there was no discussion about a contract for semester 2, 2020.

[28] It was noted Ms Murphy recounts various discussions with Ms Rigg in relation to workload allocations in 2020, including for semester 2, 2020. Ms Murphy appears to suggest that her understanding that she would be offered employment in semester 2, 2020 was on the basis of various discussions with Ms Rigg. Professor Neville said that:

(a) Ms Rigg, in her role as Programs Director had responsibility for program planning, including reviewing the availability of teaching staff for future semesters and exploring options in relation to work allocations and teaching needs in consultation with Professor Neville;

(b) Ms Rigg did not (and does not) have the authority to make decisions in relation to work allocations and staffing needs. These decisions are made by Professor Neville as Head of the School and are approved by Professor Glen Coleman, Executive Dean (Faculty of Health, Engineering and Sciences);

(c) Ms Rigg forwarded a number of emails to Ms Murphy in April 2020 where they discussed potential workload allocations for semester 2. These emails should not have been forwarded to Ms Murphy without authorisation;

(d) In any event, at no time did Professor Neville make any representation to Ms Murphy (including through Ms Rigg) that any decision had been made to employ her for semester 2, 2020. Any reference to Ms Murphy’s name in planning documents or in discussions with Ms Rigg or Ms Murphy was made as part of a planning process only. As a current member of staff, Ms Murphy was certainly being considered as part of the planning process as someone who might be available for further employment if required, however no decision was made, and no promise or representation was made by Professor Neville or with her authority;

(e) Further, Professor Neville could not make any final decisions about staffing needs for semester 2, 2020 until much closer to the start of the semester, once student numbers were finalised. For example, the University does not finalise casual contracts for the programs until after the census date.

[29] Whilst Professor Neville does recall having staffing discussions with Ms Rigg, she does not recall Ms Rigg mentioning Ms Murphy’s employment with Queensland Health. She was not aware Ms Murphy was employed with Queensland Health, however she stated that this is not uncommon for teaching staff.

[30] With respect to Ms Murphy’s expectation that based on her discussions with Ms Rigg in September 2019 she would receive a “12-month contract” in 2020, Professor Neville stated that due to USQ’s recruitment policy, any appointment which is 12 months or more in duration must be publicly advertised and a competitive selection process is followed. She stated that Ms Murphy was aware of this requirement, and if a competitive selection process had been followed, it is quite possible that Ms Murphy would not have been appointed in 2020 at all given she does not hold a PhD qualification, is not studying for a PhD and does not have a track record in terms of research output.

[31] Noting Ms Murphy’s evidence that in around November 2019, Ms Rigg told her she sent a document titled Midwifery Teaching Academics 2020 WAMS Draft Prepared by Elizabeth Rigg to Professor Neville for “approval,” Professor Neville stated that the draft was not sent to her for approval; rather the draft was a recommendation which was a part of the ongoing planning discussions for workload allocation and teaching needs in 2020.

[32] Professor Neville noted that where Ms Murphy had given evidence that she had been offered a Replacement Employee contract, and contended that there was no staff member of the School on leave or away, Professor Neville referred to Ms Murphy’s semester 1, 2020 contract where it refers to the reason for appointment as “Backfill Teaching while Staff (#01002835) is on leave – HRAS.” She gave evidence about that contract that:

(a) the reference to “Staff (#01002835)” is Ms Gleeson;

(b) USQ’s administration officer, Ms Larissa Pears, appears to have prepared the contract based on instructions in an email from Ms Rigg. In that email Ms Rigg asks Ms Pears to raise a contract for Ms Murphy for semester 1, 2020, and states “As discussed, with Danielle Gleeson taking ADOS [ie study leave] for six months in 2020, Cheryl-Anne will assist by back filling her teaching.” Ms Rigg’s email did not specify that Ms Gleeson’s ADOS leave was to occur in semester 2;

(c) irrespective of any administrative error, Ms Gleeson had significant academic commitments in semester 1, 2020 and there was a need to provide additional teaching support in the Midwifery program as a consequence. Accordingly, in Professor Neville’s view it was appropriate to appoint Ms Murphy under the “replacement employee” category.

[33] Following receipt of Ms Murphy’s email of 17 April 2020 that concludes with the words “if you still require my services, I am more than happy to continue working for USQ at a 0.5 or less,” Professor Neville made further inquiries about whether USQ could accommodate her working at 0.5 FTE or less in semester 2, 2020.

[34] It is Professor Neville’s evidence that Ms Murphy’s decision to reduce her availability was a factor which needed to be taken into account into the School’s planning but did not necessarily mean it would not make a further offer of employment to her; it would depend on its final decision as to work requirements and what was the best mix of skills and availability to meet them. Professor Neville took from the email, however, that Ms Murphy herself understood at that point that a further offer of a contract was not guaranteed and would depend on the outcome of the planning process.

[35] On the above point, Professor Neville gave further evidence that:

(a) In around May 2020, Ms Rigg went on extended personal leave;

(b) After Ms Rigg’s departure, a number of current staff members in the School of Nursing (including full-time permanent staff members and experienced midwives) expressed an interest in teaching into the Midwifery program. Professor Neville understands that some of these staff members were previously reluctant to teach into the Midwifery program because of their perceptions of Ms Rigg’s managerial style (although she has not formally investigated whether those concerns, to the extent they exist, are reasonable);

(c) As a result, there was a larger pool of staff who were willing and able to teach into the program in semester 2, 2020, some of which were more experienced than Ms Murphy. Unlike most of the other academics in the School, Mr Murphy does not hold or is not studying for a higher degree and despite having a research and service allocation, she has produced limited output in these areas since her employment with USQ;

(d) It is more sensible, from a human resourcing, budgetary and student support (in terms of teaching quality and continuity) for USQ to staff teaching programs from permanent staff who have been appointed on merit and who are already in the budgeted teaching establishment, where it is possible to do so; and

(e) Accordingly, on or about 4 June 2020, Professor Neville made a final decision about staffing for semester 2, which did not involve a requirement for a further offer of a contract for Ms Murphy. She immediately communicated that decision to her via an email dated 4 June 2020, reproduced at [6].

[36] Professor Neville noted that in Ms Murphy’s evidence, she states that she was “shocked” when she was not offered a contract for semester 2, 2020 because she had no prior indication that anything had changed since Ms Michelle Boettcher's (Senior Operational Support Officer) emails in May 2020 which showed Ms Murphy had been allocated hours for semester 2 which Ms Murphy and Ms Rigg had considered very excessive.

[37] Professor Neville stated it is not reasonable for Ms Murphy to point to Ms Boettcher’s analysis and communications as an indication that a further contract would be offered. In this regard, Professor Neville referred to emails between Ms Boettcher, Ms Murphy and herself in early June 2020, and stated:

(a) Ms Boettcher’s role was to assist with analysis and advice in relation to workload planning and she had no role in making decisions about the School’s staffing;

(b) in the email to Ms Murphy on 3 June 2020, Ms Boettcher clearly indicated she was “still working on the WAMS so nothing is finalised” and that “[a]ll S2 work across the board is a moving feast at the moment and S2 term contracts are not finalised so we are moving things around to see how they look;”

(c) after Mr Murphy said that she felt her workload was larger than other staff at the same 0.5 FTE, Ms Boettcher reiterated that “we are still working on S2 so the hours may not be finalised as yet and it is too early to compare to others until the process is complete;”

(d) the WAMS allocation for Ms Murphy was a working document which was yet to be finalised (as clearly indicated by Ms Boettcher) and did not reflect any final decisions in relation to Ms Murphy’s further employment in semester 2.

[38] Professor Neville accepts that Ms Murphy was disappointed not to receive a further offer of a contract for semester 2, and that the email of 4 June 2020 at [6] was the first occasion when she had been advised of that decision. Professor Neville stated that is so because prior to that email the decision had not been made. Professor Neville stated it is not unusual for final decisions to be made close to the date of commencement of the coming semester and USQ are compelled to wait until the planning, including as to staff availability, workload and likely final student numbers is finalised before doing so. This is not always possible until shortly before the semester begins.

[39] Professor Neville stated that if Ms Murphy had been appointed for semester 2, 2020 her new fixed term contract would not have commenced until either 29 June 2020 or 6 July 2020, depending on her teaching load. Accordingly, there would have been a short break in service.

Reply evidence to Ms Rigg’s evidence

[40] Professor Neville stated that she understands Ms Rigg “expected” Ms Murphy to work for all of 2020 on the basis:

(a) of Ms Rigg’s recommendations and suggestions for workforce planning as contained in the WAMS in light of Ms Gleeson’s confirmed absence in semester 2, 2020;

(b) of Ms Rigg’s discussion with Professor Neville on 11 September 2019 where Professor Neville allegedly did not dispute Ms Murphy’s appointment;

(d) that at the meeting on 20 May 2020 it was allegedly confirmed Ms Murphy would be appointed for semester 2, 2020.

[41] Professor Neville’s evidence below is in reply to Ms Rigg’s “expectations:”

(a) she acknowledges that Ms Rigg’s position as Programs Director requires her to make recommendations and suggestions for workforce planning. However, Ms Rigg did not have the authority to make any decisions in relation to staff; this responsibility fell to Professor Neville in consultation with Professor Coleman. Although the possibility of Ms Murphy’s appointment was discussed, Professor Neville did not make any representation to Ms Rigg that Ms Murphy would be offered employment in semester 2, 2020. Further, Ms Rigg has been on personal leave since May 2020 (and remains on leave now, at the time of making the statement) and she did not contribute to any final decision-making with respect to semester 2 appointments when these decisions were made;

(b) Professor Neville attended a meeting with Ms Rigg on 11 September 2019. The purpose of the discussion was to discuss preliminary staffing options for the Midwifery program. At no point during this meeting did Professor Neville confirm Ms Murphy's appointment for semester 2, 2020. No such confirmation is reflected in the minutes which states that “depending on staffing needs, a full-time contract may be offered to Cheryl-Anne Murphy for 2020 if she can accommodate this;”

Professor Terry was Acting Head of the School during this time. Although she was not party to any discussions between Ms Rigg and Associate Professor Terry in relation to staffing needs in the Midwifery program or the potential permanent appointment of Ms Murphy in 2020, Associate Professor Terry did not relay any conversations with Ms Rigg about these issues to Professor Neville;

(d) Professor Neville attended a meeting on 20 May 2020 with Ms Rigg and Associate Professor Terry in relation to semester 2 teaching allocations. Professor Neville acknowledges that they discussed the possibility of Ms Murphy’s employment in semester 2. However, she does not recall Associate Professor Terry offering to “generate a 0.5FTE contract” for Ms Murphy. In any case, if a draft contract for Ms Murphy was generated by Associate Professor Terry this still required approval from Professor Neville in consultation with Professor Coleman before it could be issued.

[42] With respect to Ms Rigg’s evidence that she did not know Ms Jilmy Joy but was aware she had been recently appointed having worked as a casual employee for USQ in the undergraduate Nursing program, Professor Neville confirmed that Ms Joy’s most recent appointment is on a fixed-term basis, and she currently practises as a midwife and is working towards a PhD.

[43] Professor Neville denies that she verbally agreed to any semester 2, 2020 teaching allocations. The purpose of the meeting on 20 May 2020 was to discuss options about teaching allocations. At this point, she had not reviewed the suggested teaching allocations against the program’s budget or consulted with Professor Coleman. It is her evidence that Ms Rigg is well aware of these approval processes and would have known that teaching allocations could not be finalised until these processes occurred.

[44] The teaching team for semester 2, 2020 in the Midwifery program ultimately consisted of Ms Emma Turner (who replaced Ms Rigg’s position when she went on leave), Ms Jo Buckley, Ms Jilmy Joy and Ms Leah Avery. Ms Turner is an ongoing/continuing staff member and Ms Avery, Ms Joy and Ms Buckley are fixed-term staff members. The following semester 2 subjects were taught by the following:

(a) MID2201: Ms Joy (studying for PhD);

(b) MID2202: Ms Buckley (experience teaching Indigenous midwifery course);

(d) MID2499: Ms Joy (studying for PhD);

(e) MID2299: Ms Turner (ongoing);

(f) MID3201: Ms Turner (ongoing);

(g) MID3202: Ms Joy (studying for PhD);

(h) MID3299: Ms Avery (fixed term under MOU with Tasmanian Health);

(i) MID3399: Ms Joy (studying for PhD); and

(j) MID3499: Ms Avery (fixed term under MOU with Tasmanian Health).

Professor Neville’s third witness statement

[45] In Professor Neville’s third witness statement she explained that there had been additional hours worked by Ms Murphy in 2018 and 2019, amounting to 196.8 hours being carried across to her allocation of hours to be worked in Semester 1, 2020. She stated that the effect would be that her load of hours would be reduced by 196.8 hours. Professor Neville’s table in her evidence demonstrates an allocation of 750.55 hours inclusive of 196.8 hours carried over.

[46] Her evidence is that the table demonstrates that the 196.8 hours were recovered by Ms Murphy in Semester 1, 2020. Professor Neville denied that she had made any representation to Ms Rigg that Ms Murphy’s allocation of 196.8 hours were to be carried across to semester 2, 2020 or that a decision had been made to employ Ms Murphy in semester 2, 2020.

Oral evidence given at the hearing

[47] During cross-examination, Professor Neville stated that there were many names in the planning document, including the names of individuals who were known not to be available to teach in semester 2, 2020. She stated: 1

“So there's a number of people’s names here who, you know, were not necessarily available to work in the school at a particular time, you know? It's a roll-over-type document where people's names appear but I'm not working from the assumption that those people are going to be available at that particular time.”

[48] Professor Neville was asked if the policy requiring advertisement of a role of 12 months was required if a person was offered two back-to-back six-month contracts? Professor Neville answered no, not to her knowledge. 2

[49] Professor Neville stated that she first decided not to offer to Ms Murphy a contract for semester 2, 2020 around 4 June 2020, when she sent her the email informing her so. She agreed that there had been no concerns regarding Ms Murphy’s teaching performance. 3

Evidence of Associate Professor Victoria Terry

[50] Associate Professor Terry made a witness statement and appeared and gave evidence at the hearing. Associate Professor Terry is employed in the School of Nursing and Midwifery. She is the Deputy Head of School and the Associate Head Clinical Education. She had been employed by USQ since July 2001.

[51] Associate Professor Terry denies saying to Ms Rigg shortly after 8 November 2019 that the intention was that Ms Murphy would have a fixed term contract covering teaching for both semester 1 and semester 2, 2020. She stated that USQ has a policy that a one-year fixed term contract is not to be offered without advertising the position. Associate Professor Terry was aware of the policy’s existence, and she stated that she would not have indicated to anyone that Ms Murphy would be given a one year fixed-term contract covering both semester 1 and 2.

[52] It is Associate Professor Terry’s evidence that the Head of School generally looks at staffing for particular courses just prior to the start of each semester, and on a semester-to semester basis, because much can happen within a year and it is difficult to predict student numbers and staffing needs. The usual process followed is that the School prioritises allocating teaching duties to continuing staff and, where necessary, appoints fixed term and casual/sessional staff to cover any remaining teaching needs for the semester. In line with this, Associate Professor Terry denies having discussions with anyone in 2019 about appointing certain staff members for semester 2, 2020.

[53] She recalls having discussions with Professor Neville and Ms Rigg towards the end of 2019 about Ms Murphy being offered a six-month contract for semester 1, 2020. She notes that one was subsequently offered. She does not recall a discussion specifically in response to the email with Ms Rigg on 19 September 2019. If there was a discussion after 19 September 2019, she believes she would have been clear about USQ’s position on fixed term contracts. It is her evidence that when she responded to Ms Rigg, “you are absolutely right about this,” she was referring to Ms Rigg’s statement about her being aware about “new processes that we must adhere to in relation to appointing FTC that go over 6 months and/or that are rolling over.”

[54] Associate Professor Terry further gave the below evidence in reply to the evidence of Ms Rigg:

(a) She does not recall having discussions with Ms Rigg in November or December about Ms Murphy having other work commitments at Redcliffe Hospital. She was not aware that Ms Murphy worked at Redcliffe Hospital;

(b) A contract for Ms Murphy for semester 1, 2020 was approved on 13 November 2019. This did not automatically constitute a subsequent contract for Ms Murphy in semester 2, 2020; and

(c) Where Ms Rigg states that Associate Professor Terry agreed a contract would be raised for Ms Murphy for the first six months (semester 1, 2020) and then says “She (Dr Terry) did not expressly say anything that I can remember about semester 2,” this is consistent with Associate Professor Terry’s recollection. Her evidence is that she would not have made any representation in relation to Ms Murphy being appointed for semester 2, 2020.

[55] In relation to the discussion on 20 May 2020 set out in Ms Rigg’s evidence, Associate Professor Terry says:

(a) In her outlook calendar, the only meeting on 20 May 2020 from 1.30pm – 2.00pm was in relation to the Bachelor of Midwifery (BMID) and its Accreditations. This meeting was scheduled by Ms Melissa Jarrick (Coordinating Operational Support Officer) and Associate Professor Jackie Lea (the Associate Head Learning Teaching and Student Success) was also in attendance;

(b) She denies saying that Ms Murphy had a contract through to the end of December 2020 because she knew that Ms Murphy did not have a contract for semester 2, 2020;

(c) She denies saying that she would generate a 0.5 FTE contract for Ms Murphy. She is not responsible for generating contracts nor directing the School Support Officer to generate contracts when she is not Acting Head of School. This is Professor Neville’s responsibility as Head of School. If Professor Neville had asked her to generate a 0.5 FTE contract for Ms Murphy for semester 2, 2020, she would have done it, but she did not ask her, and she does not believe a semester 2 contract was generated for Ms Murphy;

(d) She does not recall requesting Ms Rigg to set out in an email what courses she would like the team to teach in semester 2, 2020. Associate Professor Terry denies that she said to Ms Rigg that once she sent through the email she would then make the necessary changes to the team’s WAMS, thereby enabling a contract to be raised for Ms Murphy and Ms Avery for semester 2, 2020. A contract needs to be in place for work to proceed according to what is allocated in WAMS, so it would not have made sense for her to say that. Further, she was not managing the Midwifery staff workloads; Professor Neville was doing this;

(e) She denies that Professor Neville had approved for her to raise a contract for Ms Murphy for semester 2, 2020; and

(f) Ms Rigg’s email to her the afternoon of 20 May 2020 records that she is setting out her “suggestions for midwifery teaching.” This in no way reflects any final decisions or approvals had been made in relation to who would be appointed to teach semester 2, 2020 courses. Further, she does not believe that Professor Neville verbally agreed to these suggestions during their discussion on 20 May 2020.

Oral evidence given at the hearing

[56] Associate Professor Terry stated that she was not involved in the decision not to award a semester 2, 2020 contract to Ms Murphy. She was informed of that decision in early June 2020. 4

[57] Associate Professor Terry stated that while she was aware Ms Murphy appeared in WAMS for semester 2, 2020, it didn’t not automatically mean that Ms Murphy was to teach those courses, because a contract had not been generated for her to teach those courses. She stated that a person cannot teach a course in a semester without having their name appear in the WAMS, but equally, the contracts are not drawn up based on what is contained in the WAMS.

[58] She agreed that Ms Murphy was being considered by the School to teach in semester 2, 2020.

[59] Relevant to whether Associate Professor Terry knew that Ms Murphy worked at Redcliffe Hospital, she said the following: 5

Mr Tan: Do you agree with me that you knew in 2018 that Ms Murphy was working at the Redcliffe Hospital?

Ass Prof Terry: I don't recall that, Mr Tran. I recall after seeing some emails that I had discussions with Ms Rigg and Ms Murphy in relation to doing other work, clinical facilitation, at Redcliffe Hospital, but I do not recall having any conversations around Ms Murphy working at Redcliffe Hospital.

Mr Tan: So you don't remember thinking about how it was that she was conducting - doing that facilitation in Redcliffe Hospital?

Ass Prof Terry: Not at all. It was not unusual that an academic staff member would go to a facility to support and supervise our students. The fact that Ms Murphy was working there was a completely separate issue. Yes.

[60] As to why Ms Murphy’s contract for semester 1, 2020 noted her being a replacement employee, when she was not replacing anybody, Associate Professor Terry stated that this was an administrative error. She approved the form electronically and had not approved a form electronically before; it was presented to her in a different format.

Respondent’s Submissions

[61] USQ made the following submissions, all of which I have had regard, by way of:

• Written submissions on 25 August 2020;

• Written submissions in reply on 10 September 2020; and

• Oral closing submissions at hearing.

[62] It was submitted Ms Murphy’s employment did not terminate at USQ’s initiative. Accordingly, pursuant to section 386(1)(a) of the Act, Ms Murphy has not been dismissed from her employment and has no jurisdiction to make this application.

[63] The Respondent submitted that it is entitled to rely upon the terms of the fixed term contract as the means by which the employment relationship terminated. It submitted that there was no action of the Respondent that was the principal contributing factor which led to the termination of the employment relationship. At no point did the Respondent agree or make any representation that a further contract would be forthcoming.

Genuine agreement

[64] It was submitted that all of the fixed-term appointment contracts issued to Ms Murphy were for separate and distinct positions that were required to be filled on a short-term basis, backfilling for other staff members who were either absent or had a reduction in workload. It was submitted that there was no agreement that the employment relationship would continue beyond each set of circumstances.

[65] The last contract for the period 9 January 2020 to 19 June 2020 (the 2020 contract) included:

• “This contract of employment is not renewable.”; and

• “an essential feature of fixed-term employment at USQ is that there is no expectation of continuity of employment unless stated otherwise in writing by the Executive Director, Human Resources”. [original emphasis]

[66] The Respondent submitted that the above is an explicit statement. It nominated that employment will not continue unless formally authorised in writing. There is no evidence of such a written statement by the Executive Director of Human Resources.

[67] It was submitted that, to the contrary, Ms Murphy’s own evidence establishes that although it was mutually contemplated that it was possible that a further contract would be offered, and in that event the employment would continue, a process of planning and analysis of operational needs had to be completed before a decision could be made in that regard – and that no commitment was given by the Executive Director of Human Resources or anyone else with authority that, before that process was complete, any further employment would be offered.

[68] The Respondent says this is a ‘genuine agreement,’ as referred to in the Full Bench majority decision in Khayam v Navitas, 6that the employment would also end upon the expiry of the contract. It submitted that there is no evidence that this mutual commitment was a sham, was varied, or should be set aside as not reflecting the genuine agreement of the parties.

[69] Ms Murphy and the Respondent engaged in correspondence regarding the possibility of the Respondent re-employing Ms Murphy after 19 June 2020, but by June 2020, following a review of the Nursing and Midwifery program, including staff movements and student numbers, it was determined that the program was adequately resourced.

[70] It was submitted that an expectation by Ms Murphy of further employment, justified or not, would not rise to the threshold required by Navitas before the dismissal would be held to be at the Respondent’s initiative. It said that Professor Neville’s evidence demonstrates that any asserted expectation on the part of Ms Murphy and Ms Rigg, that further employment had been offered or agreed to was unfounded. It was submitted that this demonstrates that Ms Murphy well understood the nature of her fixed term appointment and that decisions about staffing needs for semester 2, 2020 would not be made until just prior to the commencement of the semester, once final student numbers and staffing availability was known.

[71] The Respondent submitted that this is a feature of the challenge of staffing a university program when student numbers fluctuate, in both a predictable and non-predictable way, from semester to semester. Planning and ongoing discussion in relation to staffing and associated issues such as workload is an ongoing process and is not indicative of commitment. The Respondent suggests that it demonstrates that planning must occur first, before commitment to potential employees can be made.

[72] The Respondent submitted that Ms Murphy’s email to Professor Neville on 17 April 2020, where she stated, “If you still require my services, I am more than happy to continue working for USQ at 0.5 or less,” clearly demonstrates Ms Murphy’s understanding at that point that there was no agreement for further employment and that her employment was to come to an end at the conclusion of the fixed term contract.

[73] The Respondent further submitted it also demonstrates Ms Murphy’s understanding that she was free to decide for herself what her potential availability would be, and if further employment was to be offered, whether or not she would accept it. This is opposed to the obligations a continuing or permanent staff member might have to the Respondent. The Respondent contends that nothing occurred after 17 April 2020 which could have reasonably altered Ms Murphy’s clear understanding of her employment status.

Unqualified right to terminate

[74] The Respondent originally conceded that the 2020 contract provides for either party to terminate the contract by the giving of four months’ notice. It maintains that this is not a relevant consideration to a jurisdictional objection under s.386(1)(a) of the Act.

Decision not to renew

[75] It was submitted that the 2020 contract came to an end on 19 June 2020, as agreed. Ms Murphy was not offered a new contract of employment because there was no position and no duties that were required. This followed Ms Murphy’s advice that she was unavailable to accept or continue to work full time. It is Professor Neville’s evidence that there was no contract that could be offered to Ms Murphy. It is submitted that consistent with the approached of the majority in Navitas at [75], the termination of the employment relationship was therefore not at the Respondent’s initiative.

[76] Shortly before the commencement of semester 2, Professor Neville followed her usual process of considering the teaching needs and availability of staff, with preference given to the allocation of teaching to continuing staff members and those most qualified and/or experienced in teaching particular areas. The Respondent submitted at that point that Professor Neville made a decision as to the teaching needs of the Midwifery program and determined that Ms Murphy would not be offered further employment.

Breach of agreements

[77] The Respondent does not accept Ms Murphy’s claim that one or more contracts of employment entered into with Ms Murphy were not permitted by the terms of the Enterprise Agreement applying at the time. The Respondent submits, however, that even if a fixed-term contract is not technically permitted by the terms of the Enterprise Agreement, it does not follow that the contract becomes a contract of permanent employment on the basis of illegality or on public policy grounds. 7

Other considerations

[78] The Respondent noted Ms Murphy’s evidence that there had been an agreement reached in respect of additional allocated hours to be credited to her. Professor Neville’s evidence is that she thought it appropriate to appoint Ms Murphy for semester 1, 2020 to allow Ms Murphy to have the benefit of the agreed allocation.

[79] The Respondent put that if there had been a preference or intention to appoint Ms Murphy for the whole of 2020, the Respondent would have been required to have advertised the role and Ms Murphy would have been required to compete with other applicants in a recruitment process. As set out in her statement, Ms Murphy had previously applied for an ongoing Lecturer (Level B) role and was unsuccessful.

[80] Ms Murphy does not have and is not studying for a PhD and cannot point to research output during her time at USQ. It was submitted that a six-month appointment was therefore to Ms Murphy’s benefit as she may not have been competitive in a recruitment process and therefore may not have been employed by the Respondent at all in 2020.

[81] The Respondent acknowledged that there is a reference to Ms Gleeson’s staff number in the fixed term appointment form for semester 1, despite the appointment not being solely to cover Ms Gleeson’s work. The Respondent submitted that the evidence shows, however, that Ms Gleeson had significant commitments in semester 1, 2020 and a decision had been made to appoint Ms Murphy as a replacement employee on a short-term basis to support teaching commitments (including Ms Gleeson’s) across the Midwifery program for semester 1, 2020.

Facts distinguishable to Navitas

[82] The Respondent submitted that the circumstances in this matter differ from the circumstances in Navitas, as the majority of the Full Bench found that Mr Khayam’s role was an ongoing one, and had the employer not had performance concerns, Mr Khayam would have continued in that role and the employment relationship continued.

[83] The Respondent says the facts in this case are further distinguishable from Navitas because:

(a) Ms Murphy had relatively short service with the Respondent, during which she had been appointed on a total of five fixed term contracts. The appointments were not fixed term merely for ‘administrative convenience.’ The appointments were not consecutive. They were generally on a semester-to-semester basis to cover the teaching commitments of continuing staff members who had other commitments or were on leave. Further, there is evidence that even if Ms Murphy had been offered a further contract for semester 2, 2020, she would not have commenced employment until the end of June or mid-July. There would have been another break in service in any event and the employment relationship would have come to end, albeit for a short period;

(b) There was no ‘deliberate and considered decision’ to bring Ms Murphy’s employment to an end based upon an assessment of performance or disciplinary matters (as in Navitas). Rather, there was a clear and genuine agreement that the employment relationship would end upon the expiry of the fixed term contract on 19 June 2020; and

(c) As addressed further below, Ms Murphy’s final fixed term contract did not provide the Respondent with an unqualified right to terminate her employment and therefore it was a true fixed term contract and not a ‘maximum term’ or ‘outer limits’ contract.

Section 386(2)(a)

[84] Where the Respondent had earlier suggested that it did have a right to terminate the 2020 contract with the giving of four months’ notice, the Respondent moved from that position in reply closing submissions. It then suggested that it did not have an ‘unqualified right’ to terminate Ms Murphy’s employment within the term.

[85] Ms Murphy’s 2020 fixed term contract contains a list of conditions that apply generally to fixed term appointments, the first being that the Enterprise Agreement governs the terms and conditions of that employment. The last dot point under the heading ‘Conditions of Appointment’ refers to the applicable notice period to be provided by the Respondent in the event of termination of employment. It submitted that the clause is not a termination right. It simply records the applicable notice period if the fixed term contract of employment is terminated during its term in accordance with one of the permissible grounds in the Enterprise Agreement.

[86] The Respondent understands the Enterprise Agreement allows for termination of employment on the narrow grounds of serious misconduct, redundancy, ill health/incapacity or performance. These grounds are only available once the prescribed process in the Enterprise Agreement is followed. The Enterprise Agreement also allows for termination during probation, but as a staff member with prior service, Ms Murphy was not subject to a period of probation.

[87] The Respondent submitted that in light of the above, Ms Murphy’s final fixed term contract was a contract of employment for a specified period of time and the employment has terminated at the end of the period because it does not contain an unqualified right for either party to terminate.

[88] It was submitted that an issue of jurisdiction is not one which is amenable to concession; the parties are not able to confer jurisdiction if it does not otherwise exist. If the Commission does not have jurisdiction to deal with the application it cannot do so, irrespective of what the parties say about the matter. Therefore, if it is accepted that Ms Murphy’s employment fell within the exception to jurisdiction in section 386(2)(a) of the Act, the application must be dismissed on that basis as well.

[89] The Respondent’s oral submissions have been taken into consideration but need not be reproduced.

Applicant’s Evidence

Evidence of Ms Cheryl-Anne Murphy

[90] Ms Murphy made three witness statements and appeared and gave evidence at the hearing. She is a registered Nurse and Midwife holding:

(a) a Bachelor Degree in Nursing from Monash University (awarded in 1992);

(b) a Certificate in Nursing (Neurosciences) from Victoria University (awarded in 1994);

(d) a Masters of Midwifery from the University of Sunshine Coast (awarded in 2014).

[91] Ms Murphy has worked as an academic teaching in nursing and midwifery programs since 2014. Her most recent position was that of Lecturer (Midwifery) in the School of Nursing and Midwifery at USQ.

Recruitment to USQ

[92] In 2017 Ms Murphy was working at Queensland Health as a midwife on a continuing contract. She had been working in that position since 2002. In the first week of January 2017, she received a call from Ms Rigg, Senior Lecturer in in the School of Nursing and Midwifery at USQ.

[93] Ms Murphy had known Ms Rigg for approximately two years. They worked together at the Australian Catholic University, Banyo Queensland. Ms Rigg said that USQ was looking for new staff in the School of Nursing and Midwifery. She said that she had spoken to Professor Diane Duff, Campus Coordinator, who had approved the School recruiting new staff to teach into the Residential Schools and prepare teaching materials for the midwifery program. Ms Murphy says the position was originally expressed to her as being a casual appointment.

[94] On 12 January 2017, Ms Murphy attended a job interview with Professor Duff and Ms Rigg. She attended the interview with Ms Helen Funk, who was also interviewing for the position on a ‘job share’ arrangement. As neither Ms Funk nor Ms Murphy could work full time due to other employment commitments, the arrangement would be that Ms Murphy would work 0.6 FTE and Ms Funk would work 0.4 FTE. Ms Gleeson started working at around the same time. She was working only a small number of hours as she was completing a PhD and her scholarship conditions meant that she was unable to work more hours.

[95] Ms Murphy’s evidence is that different people, including Ms Rigg and Professor Duff described the role to her in different ways; sometimes as a casual position, sometimes as a part-time position, and sometimes as a fixed-term position. Ms Rigg told Ms Murphy that a staff member, Mrs Bridget Roach, was on a 12-month period of unpaid leave, and she would be performing duties that had been allocated to that staff member. Ms Rigg also told Ms Murphy she would be working regular, part time hours.

[96] Ms Murphy stated that she was told at the conclusion of that interview that she would be offered the role, but that they needed to confirm the details of the appointment. She stated still did not know whether the appointment would be casual or fixed-term but understood that she would be needed for at least 12 months. Ms Murphy asked whether she would be entitled to annual leave, Professor Duff said that she would need to confirm with Ms Cath Rogers. Ms Funk was also successful and was offered the other role.

[97] Ms Murphy commenced work on the midwifery program on or about 14 January 2017 but had not yet received a contract. She received a contract on 24 January 2017. It includes Fixed-Term Employment Entitlements and Conditions. It states, “This contract of employment is not renewable.”

[98] Despite what the contract says, Ms Rigg sent to Ms Murphy a covering email stating,

“Hi Cherylann,

Here is your contract of employment. As discussed, it is for the first six months. Once we get to the end of this contract, Cath Rogers has stated that it will be rolled over for a second contract for six months. Can you have a read of this and if happy sign and send back…”

[99] The contract Ms Murphy was offered was categorised as a “specific task or project” contract. However, her evidence is the duties that she performed could not be described as being for a specific task or project. All of the duties were ongoing and would continue to be necessary in the School for as long as the course was being offered. Ms Murphy was appointed to a Level B academic position, and her duties were lecturing, designing course content, liaising with clinical facilitators at each site, support for the first and second year residential Schools in Queensland, and various other academic duties as required.

[100] Ms Murphy did not question the fact that she had been given a six-month contract. The statement in Ms Rigg’s email that it would be rolled over was consistent with her understanding of the terms of the employment; that despite whatever was in the contract, she was going to be employed for longer than six months. As Ms Murphy had previously worked as a casual academic, she did not think it was strange that she was going to receive contracts that only lasted for the length of the semester and did not ask about it further at that time.

[101] In May 2017, Ms Murphy began asking what was happening regarding the renewal of her contract. She spoke with Professor Duff a number of times in person about the status of her next contract. She responded that it had been approved and she was just waiting for it to be finalised. Whenever Ms Murphy asked Professor Duff about it, she was told that she shouldn’t worry about the formality of the contract and that everything had been approved. Ms Murphy was not concerned as she had been told in January that this was the process that would be followed, and she always understood that another contract would be offered.

[102] On 26 June 2017, Ms Murphy was provided with a new, six-month contract that was to run from 8 July until 1 December 2017. I note that one of the terms states, “This contract of employment is not renewable.”

Replacement employee contract

[103] In September or October 2017, one ongoing, Level B Midwifery position became available and was advertised online. Ms Funk, Ms Gleeson and Ms Murphy all applied for the position, and all were offered an interview. On 8 November 2017, Ms Rigg emailed Ms Funk, Ms Gleeson and Ms Murphy requesting them to do welcome videos for the units they had each taught in 2017, which would be shown to incoming students in 2018.

[104] Around this time, Ms Murphy spoke with Ms Gleeson. Ms Gleeson told Ms Murphy that she was concerned that if she was successful in getting the Level B Midwifery position, it may impact on her PhD scholarship conditions, as she would then not be permitted to work more than 0.5 FTE.

[105] Ms Murphy was told that she had been shortlisted for the position on 22 November 2017 and was interviewed on 29 November 2017. Shortly after the interview, Ms Murphy spoke to Ms Rigg as to whether she would be receiving more work in the School in 2018. Ms Rigg told Ms Murphy that she couldn’t tell her the outcome of the interview but assured her that she would be needed in the School the following year, and she and Ms Funk would receive new contracts even if they weren’t successful in being awarded the ongoing role.

[106] On 1 December 2017, Ms Murphy’s second contract came to an end. While she was not issued a contract with the Respondent, she didn’t look for other work because she had been told by Ms Rigg that she would be needed in the School next year. Ms Murphy had no reason to doubt what Ms Rigg told her because the School did not have enough staff to run the Midwifery Program for first semester in 2018 without her. She considered that there would not be enough time to advertise, interview candidates and check references. She was also comforted because she had been asked to produce welcome videos for the students she would be teaching in 2018.

[107] Around early December 2017, Ms Murphy was informed that Ms Gleeson had been successful in her application for the ongoing role. Around 13 January 2018, Professor Duff informed Ms Murphy that Ms Gleeson would be reducing her fraction to 0.5 FTE for all of 2018 and 2019 in order to accommodate the requirements of her scholarship. Professor Duff asked Ms Murphy about her availability to work for the School in 2018.

[108] Subsequently, Ms Murphy received a call from Ms Rigg. Ms Rigg informed her that she would soon receive a part-time “replacement employee” contract as the Midwifery program was significantly short-staffed, especially because Ms Gleeson was reducing her hours for 2018 and 2019.

[109] Ms Murphy received a contract on 19 January 2018. The letter attached to the employment agreement was signed by Ms Jane Farmer, Executive Director (Human Resources). It commenced on 22 January 2018 and was due to expire on 8 January 2020.

[110] The Employment Agreement is different from the earlier agreements that had been issued to Ms Murphy (or this is the only one provided to the Commission in this format). It was no longer a schedule of terms and conditions; it was set out in numbered paragraphs across a number of pages.

[111] The appointment term clause includes the earlier references, “Please note this contract is non renewable.” A note below the signature page mentions the earlier enterprise agreement (2014 – 2017), but simply states that the Respondent is a party to it. It did not inform Ms Murphy that she would be covered by the Enterprise Agreement.

[112] Around 18 January 2019, Ms Gleeson returned to full-time work. Ms Murphy’s understanding was that she had not finished her PhD at that time. As this was earlier than expected, Ms Murphy was told by someone in HR (whom she does not recall the name of) that her contract would need to change. Mr Murphy was given another “specific task or project” contract that was to run from 4 February 2019 to 8 January 2020, the same end date of the contract that was being replaced. The contract stated that it was to “support the teaching of the Midwifery program.”

[113] The Fixed Term Appointment Request form nominates the following justification for the role:

“Why is this position needed and what is the impact if appointment is not made at this time?

Ms Murphy was appointed from a selection process to provide .5fte back-fill for Danielle Gleeson who was a full time continuing appointment and negotiated a .5fte appointment in order to work on her PhD. Ms Gleeson has now returned to full time employment and the School still required Ms Murphy’s appointment to support the teaching of the Midwifery program. The School wishes to transfer the cost for this appointment from the School’s salaries budget to the School’s casual contracts budget.” [original emphasis].

WAMS issue

[114] Ms Murphy stated during the course of semester 1, 2018, she began to feel that she was overworked, and the duties she had been assigned in her WAMS were not able to be completed within the 0.5 FTE contract that she was working. Ms Murphy brought this to the attention of Professor Duff as the Ipswich Campus Coordinator. However, Professor Clint Moloney was then delegated the role of Deputy Head of School during a transition period from 1 March 2018 for a 3-month period, when Dr Rogers retired and the School awaited the announcement of a new Head of School.

[115] Professor Moloney took over the responsibility of attending to WAMS. There were differing opinions about how to complete the WAMS between Professor Moloney and Professor Duff, and eventually Professor Duff had this responsibility taken away from her and given to Associate Professor Terry. Ms Murphy’s WAMS was not amended at this time.

[116] On or about 13 December 2018, Ms Murphy discussed the WAMS issues with Ms Rigg, informing her that she believed her workload was excessive. She considered it was excessive for a 0.5 FTE to coordinate and review material for two residential Schools in both February and May for two sites in Queensland and Tasmania for semester 1 in 2019, whilst also needing to prepare for theory and clinical courses.

[117] On 7 February 2019, Ms Murphy emailed Ms Rigg stating that in light of the enrolment numbers for the units she had been allocated, she did not think that she would be able to manage the workload within the 0.5 FTE fraction. Ms Rigg forwarded that email to Professor Neville, copying Ms Murphy in. Professor Neville responded copying in Associate Professor Terry, stating that WAMS was still in progress and each staff member’s load would “be systematically looked at.”

[118] Ms Murphy stated there were “many more meetings and discussions about WAMS in early 2019.” Agreement was reached that Ms Murphy had been over-allocated work in 2018 and continued to be overallocated in 2019, without remuneration for the additional hours.

[119] On 5 June 2019, Ms Murphy received a letter from Professor Coleman, informing her that USQ had undertaken a wide review of workloads in the School for 2018 and Ms Murphy was identified as a person who had been overallocated in their workload for 2018. Ms Murphy was to receive $3,000 of ADEB funds to be rolled into 2019-2021. She does not know what ‘ADEB’ stands for. The letter stated that she could use the funds in a manner that best suits her personal circumstances (e.g. buy out of teaching, research, travel or conference).

[120] On 20 June 2019, Ms Murphy attended a meeting to discuss her workload and a possible solution to her workload issues. This meeting was held by Zoom and was attended by herself, Professor Neville, Ms Rigg, Ms Susan Camfermann, Associate Director (Workplace Support and Partnering) and Mr Robert Rule, NTEU Industrial Officer and Ms Kate Charlton, the School Support Officer, who digitally recorded and took minutes of the meeting.

[121] On 18 November 2019 a second meeting was held by Professor Neville in person at the Ipswich campus to discuss the action items from the previous meeting on 20 June 2019. The meeting was attended by Professor Neville, Ms Rigg, Ms Michelle Boettcher (the School Support Officer Paramedicine), ‘Dale’, Mr Rule, and herself. After some adjustment of Ms Murphy’s WAMS, Professor Neville agreed Ms Murphy was owed hours. There was some back and forth about the hours she was owed; Ms Murphy believed that it was more, and Professor Neville said that she believed that it was less. Ms Murphy’s evidence is that when she pressed this, Professor Neville responded with words to the effect, “I think this is a pretty fair deal, I’ve already guaranteed you a job for 2020. I’m not going to give you any more hours.” Ms Murphy understood this to be a reference to the plan for her to cover Ms Gleeson’s leave in semesters 2 and 3, 2020.

[122] The finalisation of the number of hours Ms Murphy was owed occurred later. That number was 196 hours. The 196 hours is shown as “Carry over of additional hours as per HoS approval 19.12.2019” in her WAMS allocation excel sheet for 2020 that she accessed from the USQ sharepoint site. This means that Ms Murphy had extra hours in her WAMS allocation; essentially free time that is not allocated to other academic duties such as teaching, research, or service to the university. It is similar to time off in lieu but appropriate to the self-directed nature of academic work. It also counted towards the maximum hours that could be allocated to Ms Murphy over the course of the year, effectively reducing the duties that could be allocated to her by 196 hours. Professor Neville confirmed in email Ms Murphy’s additional hours would be carried over.

[123] It is Ms Murphy’s evidence that there is “no way” she could have recovered 196 hours in just semester 1, 2020. She was given theory courses, clinical courses and a new service role in semester 1, 2020. She considers that it would have been impossible to get all 196 hours back while fulfilling her duties and the allocated hours.

2020 Contracts

[124] In early September 2019, Ms Murphy was told by Ms Gleeson that she had applied for a type of paid study leave called ADOS, for semester 2 and semester 3, 2020. The study leave was to assist her to complete her PhD, and the leave entitled her to be off from her teaching workload for semesters 2 and 3, 2020.

[125] In September 2019, Ms Rigg began talking to Ms Murphy about which courses she would be taking in Semesters 1 and 2, 2020. Ms Rigg also asked her about her availability. It is Ms Murphy’s evidence that the reason Ms Rigg asked her about her availability is because Ms Rigg knew about Ms Murphy’s secondary employment with Queensland Health. Any increase in hours for USQ would affect her role at Queensland Health, and she was trying to keep both employers happy. She said this is something she had discussed with Ms Rigg in previous years and is something that was pretty common amongst staff teaching into the midwifery program.

[126] Ms Murphy advised Ms Rigg that she could be available to USQ for the whole of 2020, but she would need confirmation from USQ of their intent to use her teaching services for the whole of 2020. Ms Murphy explained that her manager at Queensland Health had also requested that she reapply for the role that she had previously held with them as a student facilitator, which would require full-time hours, but that her preference was not to take up full time hours there if she could work for USQ. Ms Rigg replied that she would meet with Professor Neville to discuss the 2020 staffing, and share Ms Murphy’s concerns regarding her role with Queensland Health, and express her desire to offer her teaching in the Bachelor of Midwifery program for both semesters of 2020.

[127] It is Ms Murphy’s evidence that on 13 September 2019, Ms Rigg advised her that she had met with Professor Neville and had discussed Ms Murphy’s contracts for 2020. Ms Rigg told Ms Murphy that she expected that she would receive another contract to work in 2020, and that she would be covering Ms Murphy’s ADOS leave in semester 2, 2020. As they had discussed that Ms Murphy wanted to work both semesters, Ms Murphy expected it to be a 12-month contract.

[128] Ms Murphy’s evidence is that it was not unusual for her to receive information about her employment from Ms Rigg. While Ms Murphy would discuss the WAMS issue with Professor Neville or Associate Professor Terry, she did not discuss her employment directly with Professor Neville or Associate Professor Terry; Ms Murphy learned what they decided through Ms Rigg. She believed that she could rely on what Ms Rigg had told her, because what she had told her in the past was reliable.

[129] On 6 November 2019, Ms Rigg met with Ms Murphy and Ms Gleeson to establish what courses they would be happy to teach in 2020. Ms Murphy discussed with Ms Rigg which units she would like to teach in semesters 1 and 2. She said her preference was to teach into MID2102, 2199, 2299, and do some marking and course moderation for MID2191 in semester 1. For semester 2, Ms Murphy said she would like to teach into MID2201 and 2299, and do some course moderation and tutorial preparation for MID2399 and 2499. She also volunteered to do the residential School work for first and second years in both semesters of 2020.

[130] On 8 November 2019, Ms Rigg sent Ms Murphy a document titled Midwifery Teaching Academics 2020 WAMS Draft Prepared by Elizabeth Rigg. The allocation given to her reflected the conversation she had had with Ms Rigg and Ms Gleeson on 6 November 2019. In a covering email Ms Rigg asked for Ms Murphy’s feedback on the draft as soon as possible as she was “trying to sort contracts early next week.” The document showed that Ms Murphy was allocated to teach one theoretical unit and allocated to perform work in three clinical units in semester 1, 2020, and in semester 2, 2020 she was to teach two theoretical units and perform work in five clinical units.

[131] Ms Murphy’s evidence is that shortly afterward, Ms Rigg said to her that she sent this draft to Professor Neville or Associate Professor Terry for approval. A short time later, Ms Rigg said to Ms Murphy that she had spoken to Associate Professor Terry who had agreed that Ms Murphy would continue to teach into the Midwifery Program in 2020 and that the intention was that she would have a one year fixed-term contract covering both semester 1 and semester 2 teaching.

[132] On 12 November 2019, Ms Murphy was copied into email correspondence between Ms Rigg and Ms Larissa Pears, Operational Support Officer, with a request from Ms Pears that she supply USQ with her CV. In that email chain before Ms Murphy was copied in Ms Rigg was discussing the staffing needs of the school for 2020 with Ms Pears. The email states:

“At this stage, the only contract I feel needs to be raised is a six month full time contract for Cheryl-Anne Murphy for semester 1. A second 6 month contract will need to be raised for S2 when that time comes commencing 6th Jan to 19th June working Monday – Friday. (note, some of these days she may work from home). As discussed, with Danielle Gleeson taking ADOS for six months in 2020, Cheryl-Anne will assist by back filling her teaching….”

[133] Ms Murphy read the emails between Ms Rigg and Ms Pears, and understood that this would be similar to 2017 when she had been told that she would receive two six-month contracts, and then she did.

[134] Ms Murphy asked Ms Rigg why the contract she was offered was not longer. Ms Rigg told Ms Murphy she had asked this question herself as it had already been agreed that she would be working in the School in semester 2, 2020. When Ms Rigg said that it had been agreed, Ms Murphy understood that to be a reference to Professor Neville agreeing that Ms Murphy would be replacing Ms Gleeson when she went on leave in the second half of 2020. Ms Rigg told Ms Murphy that the response she had received from the School Support Officer was that there was a new policy that required fixed-term positions of 12 months’ duration to go through external advertising and recruitment. Ms Rigg told Ms Murphy that as there was no time to go through this process, she would be offered two six-month contracts instead.

[135] On or about 13 November 2019, Ms Murphy received and signed a full-time “Replacement Employee” contract for semester 1, 2020, due to commence on 9 January 2020. To Ms Murphy’s knowledge there was no employee that was on leave in semester 1, 2020 that she was supposed to be replacing.

[136] I note that the Fixed-Term Employees Entitlements and Conditions had reverted from a numbered paragraph document to a schedule as per the earlier iterations. There were, however, changes such as:

“ · The provisions of The University of Southern Queensland Enterprise Agreement 2018 – 2021, and The University of Southern Queensland Act 1998 (as amended) apply independently to this employment relationship and do not form part of this contract. In addition, you are required to comply with all management directions, including USQ policies and procedures as amended from time to time,although they do not form part of this contract.

· An essential feature of fixed-term employment at USQ is that there is no expectation of continuity of employment unless stated otherwise, in writing by the Executive Director, Human Resources.

…..

· This contract of employment is not renewable.

· Notice of 4 weeks (fixed -term replacement employees on parental leave), 5 weeks (all other professional employees) or 4 months (academic employees) will be provided by USQ to terminate employment.

…………………”

[137] Ms Murphy provided the following emails sent on 14 April 2020:

(a) 14 April 2020 at 1:34pm: Ms Rigg to Professor Neville

“Hi Christine,

Two of the courses Cheryl-Anne has been allocated to teach in Semester two, she has never taught before, therefore should attract additional first time teaching hours I believe. This in its self would push her over her hours – this is also the case for myself, with several of the 2^nd year courses.

In relation to Cheryl-Anne, a great deal of upset has been generated in relation to these recent emails in relation to re-allocating Danielle’s working to Cheryl-Anne. I followed up with Cheryl-Anne last week when I saw her comments indicating she would not be able to do Danielle’s marking.

[330] I am not satisfied that the Respondent’s decision to adopt the alternative course – having an existing employee Ms Joy perform the work she is contracted to do and accept Ms Murphy’s announcement that she is unable to work full time in semester 2, 2020 – constitutes termination of the employment relationship at the initiative of the Respondent.

(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

[331] The Respondent’s communication within each of the contracts issued to Ms Murphy and accepted by her could not be any clearer; the contract of employment is not renewable. In later contracts, only one authorised person within the Respondent could make such an offer to her. Disappointingly for Ms Murphy, she did not read such provision.

(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:

• the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;

• the employee entered into the contract as a result of a serious mistake about its contents or subject matter;

• there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;

• the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;

• the employee lacked the legal capacity to make the contract; or

• the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction 82). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).

(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).

(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).

(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher).

(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).

[332] I am not satisfied that Ms Murphy entered into the contract as a result of misrepresentation or misleading conduct by the Respondent. It was known that for a 12-month contract to be in place, the role would need to be advertised. It seems that there wasn’t sufficient time to do so, and in any event, it would have opened Ms Murphy up to a competitive process. On the Respondent’s evidence, Ms Murphy might have been exposed given her lack of particular qualifications.

[333] Ms Murphy was, quite sensibly, a good fit for a six-month role. She had satisfactorily performed the role for around three years, was well regarded, and had a strong supporter in Ms Rigg. Ms Murphy enthusiastically entered into the contract and she was familiar with it.

[334] Ms Murphy would have known that contracts are offered and accepted. She had some time away from the Respondent in late 2017, and awaited her new contract in January 2018. She wasn’t asked about her availability until mid-January 2018. For all the Respondent knew, Ms Murphy might not have been available in mid-January 2018 to commence a few days later when that particular contract was issued. Ms Murphy’s evidence is that the discussions didn’t occur until then, which demonstrates a detachment from the Respondent which is necessary to give weight to.

[335] Regarding the semester 1, 2020 contract, while it appears that it was an administrative error to nominate the reason being backfill teaching for Ms Gleeson, this did not affect Ms Murphy’s decision to accept the role. There was no serious mistake about its contents or subject matter.

[336] Ms Murphy has no disability. There has not been any unconscionable conduct associated with the making of the contract.

[337] Ms Murphy was not under any duress or coercion to enter into the contract.

[338] Ms Murphy did not lack the legal capacity to make the contract.

[339] The contract was not a sham. Where Ms Rigg might have been advocating for two six-month contracts for Ms Murphy to cover the two semesters in 2020, on Ms Rigg’s evidence, in her discussions with Associate Professor Terry, it was a suggestion but not one that Associate Professor Terry committed the Respondent to. It seemed to make perfect sense for Ms Rigg, and I appreciate her loyalty and decisiveness in trying to ensure what she considers to be the best staff in the right positions, but it wasn’t what took effect. I am satisfied that Associate Professor Terry didn’t over-promise, nor did she reach beyond her delegated authority.

[340] Having satisfied myself that none of the above relevant considerations in Navitas apply, it cannot be said that there is no legally effective time-limit on the employment.

[341] I am not satisfied that the time-limited employment contract was illegal or contrary to public policy. It is not, for example a contract with a cleaner who must learn regularly whether their employment is permitted to continue by the issuing of rolling contracts. Having regard to the field of employment being academic teaching in a tertiary institution, I consider it appropriate for the Respondent to have entered into the time-limiting contract in the manner in which it did. It was suitable for the circumstances.

[342] In particular, it was suitable given the knowledge between the parties, and including Ms Rigg and Ms Murphy, that a tougher standard applied for contracts of 12 months’ duration. The contract issued to Ms Murphy meant that she did not need to be tested against the competition, nor was there any delay. Ms Murphy was earmarked for the role.

[343] I do not accept that the contract had been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally such that its ostensible time limit no longer applies. Much has been made of Ms Rigg’s discussions with both Professor Neville and Associate Professor Terry, and then her subsequent discussions with Ms Murphy. I understand that Ms Rigg was the conduit between the parties. Professor Neville’s role is far too large a role for her to have regular direct contact with staff. Ms Rigg was a person who wanted Ms Murphy in the role and advocated for her. For Ms Rigg, it was a seamless fit.

[344] I do consider though, and without any disrespect to Ms Rigg, she appears to have overstepped her levels of authority, at times. For example, at [98], it was unnecessary for Ms Rigg to provide information to Ms Murphy beyond her first contract, even if it is Ms Rigg’s evidence that Ms Murphy was in attendance at the meeting with Professor Duff. I consider it was beyond her authority to do so, especially when the Respondent is an organisation that requires flexibility, and Ms Rigg then made representations on behalf of Dr Rogers. Particularly so when Ms Murphy had just signed a formal contract stating it was not renewable. Further, at [105], Ms Rigg continued to make Ms Murphy promises, it seems, without authority to do so.

[345] It was not Ms Rigg’s place to suggest to Ms Murphy that where there was no time in late 2019 to advertise for a 12-month contract, she would be issued with two six-month contracts. It was an incorrect statement to make, particularly as the action of doing so skirts around the Respondent’s policy. I accept there have been occasions when the Respondent has sought to work around the policy, but Ms Rigg does not act for the Respondent on each and every issue or occasion, and it is for more senior decision makers to determine how a person is employed.

[346] Where Ms Rigg may have considered at around 20 May 2020 that Ms Murphy was pretty much guaranteed a further contract, and Ms Murphy’s name was attached to courses in the WAMS, it was ultimately Professor Neville’s decision to make as to the School’s staffing requirements. It would have been helpful for there to have been greater clarity and dialogue directly between Professor Neville and Ms Murphy beyond 17 April 2020 if Professor Neville was still considering Ms Murphy for a role in semester 2, 2020.

[347] There appears to have been a surprising turn of events in late May 2020. Professor Neville’s evidence is that upon Ms Rigg going on extended leave, others indicated their willingness to teach within the School. This, of course, opened up greater choice for Professor Neville. This was, it seems, unexpected.

[348] It appears that throughout the years of engagement, where Ms Rigg has acted as messenger between the Head of School and Ms Murphy, Ms Rigg may have inadvertently over-promised to Ms Murphy. If she did, it was without the knowledge of Professor Neville or Associate Professor Terry when she was acting in the role. I consider it to have been inadvertent, and not malicious or for any improper purpose. Ms Rigg, understandably, was keen to have skilled people to place in the teaching role of the courses the School offered.

[349] I do not accept that having Ms Murphy’s name in various columns of the WAMS, suggesting she would be teaching particular courses in semester 2, 2020 constitutes an appropriate change to the employment relationship. Ms Murphy had given formal notification that she was not available full-time. If the Respondent had, even as of 20 May 2020 been considering placing Ms Murphy into teaching positions in semester 2, 2020 of a 0.5FTE or less, and Ms Murphy said, “No, I have communicated my unavailability”, simply, the Respondent would have been left with a dilemma. It could not have insisted that Ms Murphy uphold her promise that she would be available up to 0.5FTE. There was no obligation from either party. No party was required to do or say anything. Whatever was said beyond 17 April 2020 did not affect the fact that the contract would come to an end on 19 June 2020, and with it the employment relationship.

[350] Much was made of Ms Murphy’s additional 196.8 hours that needed to be recovered due to her being over-worked in earlier years. On the face of the calculations, it appears to me that Ms Murphy was afforded time off in her work allocation within semester 1, 2020. I do not agree that it was expressed by the Respondent to be carried over across two semesters. Ms Murphy regularly took half days off on Fridays. If she ended up working additional hours because of the necessary response to the COVID-19 pandemic, and can demonstrate so, that is a matter for a court’s consideration. I accept that the workload for semester 1, 2020 largely took into account the hours in the workload model, and the hours were not allocated across all of 2020.

[351] I do not consider that the contracts entered into by Ms Murphy were for administrative convenience. They were considered appointments, with due and proper regard for the circumstances. I am satisfied that the contracts entered into between Ms Murphy and the Respondent represented the reality of the terms of the employment relationship.

[352] Despite whatever occurred after Ms Murphy’s announcement on 17 April 2020, I am not satisfied that the Respondent engaged in conduct or made representations which provide a proper legal foundation to prevent the Respondent from relying upon the terms of the contract as a means by which the employment relationship has been terminated.

[353] While I am of the view that Ms Murphy assumed that the Respondent was going to employ her in semester 2, 2020, on account of Ms Gleeson’s absence, it was not a complete certainty. If Ms Gleeson had cancelled her study leave, she would be entitled to her substantive role. There was precedent for Ms Murphy to be displaced when the substantive employee resumed her role. If Ms Gleeson had decided, for her own reasons not to partake in study leave, there would be no semester 2, 2020 role for Ms Murphy to perform. Nothing was guaranteed.

[354] This is particularly evidenced at [139(d)] where Ms Murphy, understandably upset with the proposed work allocation said that she would not sign another contract under those circumstances. She knew, therefore, that there are dynamics at play, and she had the ability to undertake an action if something objectionable was put to her. She would not, it seems, offer her services to the Respondent in a manner that she considered the Respondent expected.

[355] Where Ms Murphy submitted that the Respondent was not free to withdraw from the employment that was assumed by Ms Murphy for semester 2, 2020, this is incorrect. If Ms Murphy made such an assumption, it was not on solid grounds. If she had truly thought that was the case, she would have been exposed to a 12-month contract and recruitment that goes with such.

[356] I do not accept that the Respondent knew that Ms Murphy was abstaining from taking other employment on account of her assumption or expectation that she was to be employed by the Respondent in semester 2, 2020. Professor Neville certainly did not know this, and if Associate Professor Terry did know of alternative employment, I’m certain she did not comprehend this at the time for it to be any purposeful act.

[357] I do not accept Ms Murphy’s argument that she acted on the basis of continued employment into semester 2, 2020. If she had done so, on her proposed scenario, she would have been required, pursuant to 34.4.1 of the Enterprise Agreement to give four months’ notice of termination of employment. She did not do so, instead informing Professor Neville that she was unable to work full-time in semester 2, 2020. If she considered that she was employed to work full-time in semester 2, 2020, she would have been repudiating her year-long agreement, or seeking the employer agree to changes. She did not seek for the employer to agree to changes to accommodate her personal circumstances.

[358] Relevant to the terms of the Enterprise Agreement, Professor Neville’s evidence is that when Ms Murphy’s contract in February 2019 was re-issued on account of Ms Gleeson’s early return, specific reasons were stated in the justification section of the request form. The box ticked was “Specific Task/Project”, and it was reasoned that although Ms Gleeson had returned early, and Ms Murphy had approximately one year to run on her contract, Ms Murphy’s services were needed to support the teaching of the midwifery program.

[359] The alternative would have been, of course, to finish Ms Murphy up early on Ms Gleeson’s return. This was decided not to be the best course of action, and Ms Murphy was provided the alternative contract. It appears that there is no contention that this was not lawful.

[360] On the evidence before the Commission, when the last contract was prepared, Associate Professor Terry received it in electronic form and approved it, even though it stated it was for a replacement employee (Ms Gleeson), and this was not strictly correct. Associate Professor Terry had not approved other forms in electronic format and didn’t see how it was presented. She stated that it was an administrative error.

[361] In any event, everybody wished for Ms Murphy to be appointed, including her biggest advocate, Ms Rigg. Nobody had any objection at the time that Ms Murphy was not being appointed to replace Ms Gleeson; rather, the needs of the School required Ms Murphy to teach certain courses. Professor Neville’s evidence at [32(c)] is that Ms Gleeson was focussed on academic work in semester 1, 2020, diverting her away from teaching responsibilities. Accordingly, Professor Neville does not consider it to have been an error as such and considers that it was appropriate to have Ms Murphy’s contract as a “replacement employee”.

[362] Whether Ms Murphy was a replacement employee pursuant to the Enterprise Agreement, or she was employed for a specific task or project is a relevant consideration.

[363] The relevant clause of the Enterprise Agreement is produced below:

“13.4.3.1 Specific Task or Project

A specific task or project is a definable work activity with a start date and which is expected to be completed within an anticipated timeframe. Without limiting the generality of that circumstance, a specific task or project may include a period of employment provided for from identifiable funding external to the employer, not being funding that is part of an operating grant from government or funding comprised of payments of fees made by, or on behalf of, students.”

[364] I consider the terms, “without limiting the generality of that circumstance” to be a very broad allowance. If Professor Neville thought it appropriate and lawful to, in February 2019, appoint Ms Murphy on such a basis, and move the budgetary cost from the School’s salaries budget to the School’s casual contracts budget, and this is the effect of the last contract in semester 1, 2020, then I am comfortable with it being defined as a specific task or project with a definable work activity with a start date and expected to be completed within an anticipated timeframe. This is particularly so when regard is had for the Tasmanian Department of Health obligations. I accept Professor Neville’s evidence relevant to the potential fluctuations of students across semesters and the requirement to, where possible, employ permanent employees, but have some flexibility with fixed-term employees. I prefer this evidence over Ms Rigg’s evidence on account of Professor Neville having greater oversight of the School.

[365] If I am incorrect about this, it is a matter for consideration of a court as to whether there has been a breach of the Enterprise Agreement. Arguably, if it is demonstrated to have been a breach with the issuance of the semester 1, 2020 contract, it might also be in 2019 when Ms Murphy’s two-year contract was cut short, and ways and means were found to provide to her the work promised, but under a different head. If Ms Murphy was found to be a replacement employee on account of Ms Gleeson’s return (but diversion from teaching to academic work), there would be no breach of the Enterprise Agreement.

[366] Further, if I am incorrect about the appropriateness of a “replacement employee” description applying to Ms Murphy’s last contract, I am not satisfied that it would provide conversion under the Enterprise Agreement to continuing employment pursuant to clause 13.2:

“13.2 Continuing Employment

Continuing employment is employment entered into for an indefinite period subject to the termination, change and redundancy provisions of this Agreement.”

[367] I do not accept that Ms Murphy and the Respondent entered into employment for an indefinite period. Further, if it is the fall-back position, and they did, Ms Murphy gave notice of the termination of the employment by her email of 14 April 2020.

Conclusion

[368] In light of the above, I find that the employment relationship was terminated by reason of the agreement between the parties and there was no termination at the initiative of the employer. I also find that Ms Murphy’s last contract had an end date of 19 June 2020 and her employment ended when that outer-limit contract reached its end date.

[369] For these reasons Ms Murphy was not dismissed. Therefore, she is not protected from unfair dismissal. The Commission does not have jurisdiction to deal with her application and it follows that the application is dismissed. An Order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Tran C, for the Applicant.
Williams D, for the Respondent.

Hearing details:

7 October 2020, by Video.

Printed by authority of the Commonwealth Government Printer

1 Transcript, PN99.

2 Transcript, PN186.

3 Transcript, PN217.

4 Transcript, PN328.

5 Transcript, PN349.

6 Khayam v Navitas English Pty Ltd [2017] FWFCB 5162; (2017) 275 IR 44 at [72] and [75(4)].

7 NEIU v University of Wollongong [2002] FCA 31.

8 Transcript, PN430.

9 Transcript PN502.

10 Transcript, PN694.

11 Transcript, PN710.

12 Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867 at [89]-[90] (Katzmann J).

13 (2017) 275 IR 44 at 80 [75(2)].

14 (2017) 275 IR 44 at 80 [75(3)].

15 (2017) 275 IR 44 at 80-81 [75(4)].

16 (2017) 275 IR 44 at 81 [75(5)], 82 [75(5)(e)].

17 (2017) 275 IR 44 at 88 [89].

18 (1997) 72 IR 464 at 471 (Lee, Marshall and North JJ).

19 (1988) 164 CLR 387 at 428-429.

20 (2017) 275 IR 44 at 82 [75(f)].

21 (1997) 72 IR 464 at 471 (Lee, Marshall and North JJ).

22 [2002] FCA 31.

23 (1975) 133 CLR 72 at 78 (Gibbs, Mason and Jacobs JJ).

24 [2013] 1 AC 450 at 459-460.

25 Energy Australia Yallourn Pty Ltd v AFMEPKIU (2018) 264 FCR 342 at 364 [90].

Ms Cheryl-Anne Murphy v University of Southern Queensland

[2021] FWC 1800

1 APRIL 2021

DECISION