Ms Emma Morell v Department Of Education
[2024] FWC 687
•21 MARCH 2024
| [2024] FWC 687 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Emma Morell
v
Department Of Education
(C2024/121)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 21 MARCH 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether dismissed within the meaning of s 386(1)(a) – not dismissed as employed for a specified period within the meaning of s 386(2)(a) – application dismissed.
Introduction
On the 8 January 2024, Ms Emma Morell (the Applicant) lodged an application pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 20 December 2023 by the Department of Education (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raised a jurisdictional objection to the application, that being the Applicant was not dismissed within the meaning of s 386 of the Act.
The Respondent’s jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application[1]. Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s. 368 of the Act[2]. Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s. 386 of the Act.
Following allocation of the matter to my Chambers on 7 January 2024, Directions were issued on 7 January 2024 for the filing of material in relation to the jurisdictional objection. The hearing to deal with the jurisdictional objection was listed for 18 February 2024. On 12 February 2024, the Applicant furnished a medical certificate that indicated she was unable to attend the hearing due to her medical condition. I then proposed in correspondence sent to the parties that the matter be dealt with on the papers. Neither party objected to that course of action.
Background and evidence
According to Scott Diamond, who is the Principal of Northern Bay College (the College), the College is a large multi-campus school in the northern suburbs of Geelong. It has five campuses educating children from Prep to Year 12. The campuses are:
a)the Goldsworthy Year 9-12 Campus (where my office is located);
b)the Hendy Prep-8 Campus;
c)the Peacock Prep-8 Campus;
d)the Tallis Prep-8 Campus; and
d)the Wexford Prep-8 Campus.[3]
The College has some 1700 students and employs approximately 395 staff across the five campuses, which is comprised of 159 Teaching Service staff members and 200 Educational Support staff members[4]. Mr Diamond states that staffing numbers commonly vary from year to year, depending on the funding provided to the College and other circumstances (such as leave arrangements or restructures) and the College typically has between nine and ten Wellbeing Coordinators (approximately two per campus)[5].
On or around 7 January 2023 to 19 January 2023, the College advertised[6] the position of Wellbeing Coordinator (Education Support Class Level 1 Range 3) (the Position) via Recruitment Online which is the Respondent’s online job advertisement and recruitment management system for Victorian Government school jobs[7]. The advertisement stated that the position was a ‘Fixed Term’ position that began on 27 January 2023 and ended on 20 December 2023. According to Mr Diamond, fixed term contracts are used by the College for a variety of reasons which often primarily relate to the school’s budget and the circumstances relating to the particular position. He states for example, a contract may be for a fixed term because an employee is temporarily replacing another employee (who may be on leave), and the College has the funding for that position to be temporarily filled[8].
Mr Diamond states that in accordance with the Respondent’s Recruitment in Schools policy[9], (Recruitment Policy), a selection panel was established for the advertised Position. The panel was comprised of several College staff, those being the panel chair Nathan Brock (Wellbeing Leader), Kathleen Nardi (Campus Principal, Peacock Campus), Courtney Hart (Campus Wellbeing Coordinator), and Joshua Brown (Campus Principal, Hendy Campus)[10]. The Applicant applied for the Position by submitting a written application and was shortlisted for interview. The Applicant attended the College on 3 February 2023 to interview for the Position. The panel then prepared a selection panel report for Mr Diamond in which it was recommended that the Applicant be selected as the preferred candidate for the Position. Mr Diamond states that while he was not present for the Applicant’s interview, he is ultimately responsible for selection decisions made as a delegate for the Department of Education Secertary and was required to sign off on the Applicant’s recruitment[11].
The Applicant was offered the Position on or between 3 February 2023 and 7 February 2023 (via a phone call from the Panel Chair, Nathan Brock). The formal letter of offer and employment contract that was signed by Mr Diamond on 8 March 2023 was sent to the Applicant around this date. The Applicant signed the Fixed Term Employment Contract (the Contract) on 19 March 2023 and returned it to the College[12].
The letter of offer dated 8 March 2023 relevantly states in the first sentence of the opening paragraph of the letter that the College was pleased to offer the Applicant ‘fixed term employment’. The Contract explicitly states in the header that it is for ‘Fixed Term Employment’ and goes on to state in the Contract that the ‘Commencement Date’ is 20 March 2023 and the ‘End Date’ is 20 December 2023. It also states that ‘Employment may terminate earlier than the date indicated if the reason for employment is parental absence replacement.’
The Applicant claims in her Form F8 application that the conditions of the Contract were never explained to her. She further claims that it was not until she started digging and asking questions that she was advised that her contract ended on 20 December 2023[13].
An email exchange took place between the Applicant and the College’s HR/Finance Manager Kandice O’Leary in the period between 25 July and 1 August 2023[14]. The following summary of the exchange is provided;
(i)the Applicant asked Ms O’Leary about what her position would be when her Contract ended on 20 December and whether she would be paid over the summer holidays if she was offered a further contract;
(ii)Ms O’Leary informed the Applicant that contracted Educational Support Class employees are paid out accrued leave when their contracts end. Ms O’Leary told the Applicant that those employees do not receive pay over the holidays;
Ms O’Leary also informed the Applicant that if she were offered another contract it would commence at the start of the new school year in 2024;
(iv)the Applicant acknowledged that this made sense and then asked the follow up question of what would happen if she went on maternity leave while still in a contracted role; and
Ms O’Leary responded that in those circumstances she would only remain on maternity leave until the contract end date[15].
The Applicant states that on or about July 2023, she was advised that she was doing a great job, and that campus did not want to lose her and that she would be changed over to an on-going contract. Following this, she says she and her husband made the decision to have another child as she believed herself to be in secure employment that included 16 weeks paid maternity leave from the education department[16].
Mr Diamond states that during 2023, the College undertook a restructure of its Wellbeing staff at the ES 1.4 level (called Campus Wellbeing Leader Roles ES 1.4) and one at the existing ES 1.3 level. Wellbeing staff were informed of the changes and were encouraged to apply for the ES 1.4 role if they wished to be considered. These positions which were advertised in October 2023 attracted applications from College staff including from the Applicant. The Applicant was unsuccessful in her application for an ES 1.4 role and for two further ES 1.3 level roles that were advertised in November 2023[17]. The Applicant opines that the successful candidates for the roles were less experienced than she was, which fuels her belief that she was not offered a job because of her pregnancy[18].
The Applicant accepts that she became aware that she was employed on a fixed term contract and states that she was not confused about the nature of the contract. She points to the email exchange between herself and Ms O’Leary in which it was clear she understood that the Contract was due to end on 20 December 2023. She claims however that she was verbally assured on multiple occasions orally and in writing that she would have a job in 2024 and that when the above-referred restructure was announced she was assured along with other staff by Mr Brock that all their jobs were safe.
Mr Brock confirms that he announced the restructure in August 2023 to the Wellbeing staff employed at the time at an in-person meeting, to which meeting he recalls the Applicant attending. He rejects that he said words to the effect to the Applicant or the staff more generally that “do not worry, all your jobs are safe”. He says he recalls answering various questions at the meeting but emphasised in his responses that what would happen would depend on the particular contract situation that applied to each staff member. He further states that he invited staff to come and speak with him later if they had a specific question about their own role or contract[19].
Mr Brock further states that he encouraged team members to apply for the new positions and remembers saying that he was hopeful that the positions could be filled by current staff but that he was not able to give assurances to any staff member that they would be offered a position, as the candidate selections for the roles would be merit based. Mr Brock further rejects emailing or telling the Applicant that she would have a job in 2024 and recalls having conversations with her regarding the options available to her in terms of applying for the new Wellbeing roles[20].
Statutory framework and case authority
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. Section 368 of the Act confers authority on the Commission to deal with a dismissal dispute in the event that an application is made under s 365.
The circumstances in which a person is taken to be “dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:
(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.
Importantly, s 386(2)(a) goes on to state however that 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:”
Consideration of when termination of employment is taken to have occurred at the initiative of the employer in circumstances of ‘outer limit’ and ‘fixed term’ contracts was considered at length in Khayam v Navitas English Pty Ltd t/a Navitas English[21] (Navitas). The Full Bench in Navitas after having considered the various authorities relevantly said;
“[72] However it should be made clear that the mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end not later than a specified date will not by itself constitute a termination at the initiative of the employer………”[22]
The Full Bench then went on summarise the principles to be applied in determining whether an employee’s employment has been terminated at the initiative of the employer in circumstances where the employer has declined to offer a new contract of employment at the end of a time-limited contract;
“[75] Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:
(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.
(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is 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.
(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.
(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.
(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 the parties did not intend it 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.
(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). 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).”
Consideration
The Contract
The Applicant was employed on a time-limited contract that commenced on 20 March 2023 and ended on 20 December 2023. While the Applicant claims to have not received an explanation of the terms of the contract when she initially commenced employment with the Respondent, it is implausible that she was not aware that the contract she signed on 19 March 2023 was for a fixed term period. The advertisement for the Position made this clear as did the letter of offer and the Contract that the Applicant signed. In any case, the Applicant accepted that at least by mid-2023 she was fully aware that her contract of employment would end on 20 December 2023. Evidence of the Applicant’s understanding can be seen in the email exchange between herself and Ms O’Leary in the period between 26 July and 1 August 2023.
The Contract contained provisions that confirmed the legal relationship between the Applicant and the Respondent. The Contract set out the Applicant’s classification, the place of employment, the salary range for the Position and the commencement and end dates of employment. The header of the Contract also relevantly stated ‘Fixed Term Employment’. The express terms of the Contract, to the extent that regard may be had to those terms, confirms that the employment relationship may be correctly characterised as a time-limited contract. The express terms of the Contract must be given effect unless contrary to statute[23]. There is no material before me to suggest that the Contract did not represent a “genuine agreement” between the parties within the meaning of the term as used in Navitas.
The terms of the Contract are not the end of the matter, however. As the Full Bench made clear in Navitas, ‘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’. The terms of a contract may be ‘vitiated by one of the recognised categories by which the law excuses parties from performance of a contract’. It is to those categories that I turn.
Navitas – Vitiating Factors
The Applicant did not contend and nor was any material or evidence led by her to indicate that;
·she entered into the Contract as a result of misrepresentation or misleading conduct by the employer;
·she entered into the Contract as a result of a serious mistake about its contents or subject matter;
·there had been unconscionable conduct associated with the making of the Contract, which may relevantly include that the Respondent took advantage of a disability affecting the Applicant such as lack of education, lack of information, lack of independent advice or illiteracy;
·the Contract was entered into by the Applicant under duress or coercion;
·the Applicant lacked the legal capacity to make the Contract; or
·the Contract was a sham in the sense that the parties did not intend it 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.
Nor has the Applicant contended that the time-limited Contract was either;
illegal or contrary to public policy, or
that it 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 applied; or
that the Contract may not be limited to the terms of a written document; or
that the Contract was contrary to the terms of an award or enterprise agreement that covered the Applicant in her employment with the Respondent.
I discern from the limited material filed by the Applicant that she claims that the Respondent made representations to her that her employment would continue notwithstanding the contractual time limit on the employment. These claims were made in general terms by the Applicant save for her attributing comments to Mr Brock in the meting held in August 2023 when Mr Brock announced the restructure of the Wellbeing roles. Mr Brock rejected that he gave any assurances to the Applicant that her employment would continue beyond 20 December 2023 when the Contract was due to expire. Tellingly, no documentary evidence was provided in support of the Applicant’s claim that both written (via multiple email chains) and oral representations had been made to her that she would get a ‘rollover’ contract.
I am not persuaded on the material filed by the Applicant that the Respondent, either orally or in writing, made representations to her that her role was safe and that she would receive a rollover contract. I am fortified in my view by the fact that the Applicant knew in July 2023 that she had no guaranteed employment beyond 20 December 2023 and that she was specifically encouraged and did in fact apply for the roles that arose out of the restructure of the Wellbeing team which were advertised in October and November 2023. That the Applicant was disappointed at not securing one of the new roles is understandable as is her concern at the financial impact that loss of employment has had on her family. However, the Applicant’s subjective belief or understanding of what was to occur beyond the expiry of her Contract does not provide a proper legal foundation to prevent the Respondent from relying upon the terms of the Contract as the means by which the employment relationship was to be terminated.
It follows from the foregoing that there are no vitiating factors as identified by the Full Bench in Navitas applicable to the Applicant’s circumstances.
Conclusion
I find that the Applicant was engaged on a single time-limited contract. I also find that the terms of the Contract reflected the genuine agreement of the parties that the employment relationship would end upon the expiry of the Contract. I find that there are no vitiating factors as identified by the Full Bench in Navitas applicable to the Applicant’s circumstances.
Accordingly, I find that the employment relationship between the Applicant and the Respondent ended by the effluxion of time upon the expiry of the Contract. I therefore find that the Applicant’s employment was not terminated on the initiative of the Respondent. The Applicant was therefore not dismissed within the meaning of s 386(1)(a) of the Act and the application must therefore be dismissed.
The application is therefore dismissed. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.
[2] Ibid at [51].
[3] Exhibit R1, Witness Statement of Scott Diamond, dated 23 February 2024, at [14].
[4] Exhibit R1, at [15].
[5] Exhibit R1, at [16].
[6] Exhibit R1, Attachment SD-1, Advertisement for Wellbeing Coordinator (Education Support Class Level 1 Range 3) position, dated 19 January 2024.
[7] Exhibit R1, at [18].
[8] Exhibit R1, at [23].
[9] Exhibit R1, Attachment SD-2, Recruitment Policy.
[10] Exhibit R1, at [19].
[11] Exhibit R1, at [19]-[21].
[12] Exhibit R1, at [24]-[25], Attachment SD-5, Signed Fixed Term Employment Contract, dated 19 March 2023.
[13] Form F8 Application of Emma Morell, at question 3.1.
[14] Exhibit R1, Attachment SD-7, Email exchange between Applicant and Kandice O’Leary, dated 26 July - 1 August 2023.
[15] Ibid.
[16] Form F8, question 3.1.
[17] Exhibit R1, at [36]-[38].
[18] Form F8, at question 3.1.
[19] Exhibit R2, Witness Statement of Nathan Brock, dated 14 March 2024, at [7]-[9].
[20] Exhibit R2, at [10]-[11].
[21] [2017] FWCFB 5162.
[22] Ibid at [72].
[23] WorkPac Pty Ltd v Rossato & Ors(Workpac), [2021] HCA 23, at [65].
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