Ms Lui Cheng v Griffith University
[2021] FWC 4555
•13 AUGUST 2021
| [2021] FWC 4555 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Lui Cheng
v
Griffith University
(C2019/6531)
COMMISSIONER RIORDAN | SYDNEY, 13 AUGUST 2021 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] Ms Lui Cheng (the Applicant) filed a dispute with the Commission under section 739 of the Fair Work Act (Cth) 2009 (the Act) on 24 October 2019. The application named Griffith University (the Respondent) as the Respondent to the dispute.
[2] The dispute relates to the application of Clause 41 of the Griffith University General Staff Enterprise Agreement 2012 – 2016 (the 2012 Agreement) and whether the Applicant’s employment was confirmed in accordance with the provisions of the Agreement or whether the Respondent has acted illegally and is in breach of the Agreement. The Applicant sought the assistance of the Commission in determining her employment status and the contractual relationship with the Respondent past the expiration of her probationary period.
[3] Clause 41 of the Agreement provides:
“41. PROBATION
Probation will be undertaken in accordance with the Probation Policy and Procedures for General Staff Continuing and Fixed Term Appointments. These Policies and Procedures will not be changed without prior consultation with staff and the unions. Staff members are subject to the following probation periods:
Continuing appointments | Guidelines for Probationary Period |
HEW levels 1-4 | 3 months |
Fixed term appointments | Guidelines for Probationary Period |
All fixed term appointments having regard to the level and probationary period for continuing appointments set out above. | Up to one-third of the contract to a maximum as specified for continuing appointments above with a minimum of 3 months. |
In exceptional circumstances and having regard to the nature of the job, the Head of Element may recommend to the relevant senior officer that a longer period of probation be applied. In the same regard, given a staff member’s experience and qualifications, the Head of Element may recommend to the relevant senior officer that a shorter period of probation be applied, or that the probation period be waived.
Any such recommendation must be forwarded to the Director, OHRM for final approval before an offer of appointment is made. For both fixed term and continuing appointments, the above probationary period only applies to the initial period of the staff member’s employment, except where:
• a staff member is re-employed by the University and the break in service is 3 months or more, such an appointment may include a probationary period; or
• subsequent to a fixed term or continuing appointment, a staff member is appointed to another position that involves duties that are substantially different to those of their current position, a further probationary period may be required.
In the case where, subsequent to a fixed term appointment, a staff member is appointed to a continuing position that involves duties of a similar nature to the fixed term position currently held, then all time served in the fixed term appointment(s) will count as part or all of the probationary period for the continuing position.
The supervisor and staff member will normally discuss and clarify performance expectations within the first week of commencement of employment, and the probation period should include at least 1 probationary review plus the final review of the staff member’s overall performance.
41.1 Unsatisfactory Performance During Probation
In the event that unsatisfactory performance is identified, the supervisor will arrange a meeting with the staff member as soon as possible and advise the staff member of the reason for the meeting. This may be initiated at any time during the probation period.
At the meeting, the supervisor will make the staff member aware of the deficiencies in specific areas of performance; provide an opportunity for the staff member to respond; determine any type of remedial action required to assist the staff member to improve their performance; outline the time frame for improvement; alert the staff member to the consequences of continued unsatisfactory performance.
41.2 Decision to Confirm Appointment
The supervisor should conduct the final review of the staff member’s overall performance at least two weeks prior to the end of the probationary period. As a result of this review, the supervisor will recommend to the Head of Element to either confirm or terminate the appointment. The Head of Element will make a decision to either confirm or recommend termination of appointment to the Director, OHRM.
41.3 Termination for Unsatisfactory Performance during Probation
Termination of employment due to unsatisfactory performance can be instigated at any time during the probationary period.
When the decision of termination of employment due to unsatisfactory performance during the probation period is taken, the staff member shall be advised of and given the opportunity to make, and have considered, a response to any adverse material about the staff member which the University intends to take into account in a decision to terminate the employment upon or before the expiry of the period of probation.
Where the staff member’s performance, at the time of the final review, is determined as unsatisfactory and/or sufficient progress has not been made, the supervisor will recommend termination of employment prior to the end of the probationary period.
In either circumstance of termination, the staff member will be given 2 week’s notice or the equivalent of 2 weeks salary in lieu of notice.
The supervisor’s report, outlining reasons and details, including a record of attempts to address concerns, and any response from the staff member will be forwarded to the Head of Element for consideration.
The Head of Element’s recommendation and all relevant documentation will be forwarded to the Director, OHRM who will make a final decision and notify the staff member in writing prior to the end of the probationary period.”
[4] The 2012 Agreement had a nominal expiry date of 30 September 2016. It continued to operate until commencement of the Griffith University Professional and Support Staff Enterprise Agreement 2017-2021 on 20 November 2018 (the 2018 Agreement).
[5] In its submissions, the Respondent set out a timeline of events regarding Ms Cheng’s employment and the dispute. This timeline is attached as Annexure A to this decision.
[6] Relevantly, a factual matrix is set out in the recent decision in Cheng v Griffith University[2021] FWC 3530, which deals with the termination of Ms Cheng’s employment and Ms Cheng’s subsequent application for unfair dismissal remedy made under s.394.
[7] In brief summary, Ms Cheng was dismissed by the Respondent on 25 October 2018. Ms Cheng filed her unfair dismissal application on 14 November 2018. Ms Cheng subsequently filed this application to deal with a dispute under s.739 of the Act on 24 October 2019, one year after her employment was terminated.
JURISDICTION
[8] The Agreement’s Dispute Resolution is outlined as follows:
“16. DISPUTE AVOIDANCE AND SETTLEMENT PROCEDURES
16.1 The objectives of these procedures are the avoidance and resolution of any disputes over matters covered by any part of this Agreement by measures based on the provision of information and explanation, consultation, cooperation and negotiation.
16.2 In the event that a dispute arises which relates to:
• the interpretation, application or implementation of any provision of this Agreement; or
• the National Employment Standards
the parties to the dispute will first attempt to resolve the matter at the workplace.
16.3 At any stage of this dispute procedure a staff member may choose to be represented by a nominated representative.
16.4 The following procedures shall apply:
16.4.1 In the first instance the matter will be discussed with the relevant supervisor or manager in order to attempt to resolve the dispute. This process should not extend beyond 7 days.
16.4.2 If the dispute is not resolved under 16.4.1, it shall be referred to the GSCC. The GSCC shall attempt to resolve the matter within 15 working days. Any resolution shall be in the form of a written agreement, subject, if necessary to ratification by either party to the dispute.
16.4.3 If the dispute is still not resolved through the steps above, or if either party to the dispute refuses to engage in these steps, the matter may be referred by either party to the dispute to Fair Work Commission
Fair Work Commission may settle the dispute by mediation, conciliation, expressing an opinion or making a recommendation. All efforts will be undertaken to resolve the dispute at this stage, with the parties having regard to any recommendation or opinion presented by Fair Work Commission.
If the conciliation process does not result in the resolution of the dispute, Fair Work Commission may then arbitrate the dispute and make a determination that will be binding.
A decision that Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Division 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
16.4.4 Without prejudice to the position of either party to the dispute, while the matters in dispute are being dealt with in accordance with this clause, work shall continue in a normal manner (other than with respect to bona fide health and safety issues) and no industrial action is to be taken by any party to the dispute.
16.4.5 Nothing contained in this procedure shall prevent representatives of the Union or the University from intervening in respect of matters in dispute, should such action be considered conducive to achieving resolution.
16.4.6 The parties to the dispute agree to be bound by a decision made by Fair Work Commission in accordance with this term.”
[9] The Respondent raised a jurisdictional objection to the dispute on the grounds that the application, as filed by Ms Cheng in 2019, was lodged with the Commission after the termination of the 2012 Agreement and the commencement of the 2018 Agreement.
[10] The Respondent referred to the Full Bench authorities of Simplot 1 and Stephenson v Abetz [2004] AIRC 1059 as well as the decision of Lawler VP in Pulle v Commonwealth of Australia[2011] FWA 7462. The Respondent acknowledged that Ms Cheng had initiated a dispute under the 2012 Agreement by making an application to the Respondent, which was not progressed. The Respondent submitted that the 2018 Agreement replaced the 2012 Agreement prior to Ms Cheng filing her dispute and that, as the 2018 Agreement lacked a savings clause and the 2012 Agreement was no longer on foot, the Commission was not empowered to deal with Ms Cheng’s application. The Respondent further submitted that Ms Cheng had never been covered by the 2018 Agreement as her employment had ended prior to its approval, and that clause 41 of the 2012 Agreement differed significantly to the relevant clause of the 2018 Agreement, being clause 39.
[11] In response, Ms Cheng argued that a dispute raised prior to termination of employment can survive that termination of employment, citing the decision of Asbury DP in CFMEU v Thiess Pty Ltd[2016] FWC 5089. Ms Cheng further submitted that no savings clause was required because the dispute resolution clauses of each agreement were the same, and that clause 41 of the 2012 Agreement applied to her employment as her probation period fell within the operation of the 2012 Agreement.
[12] In the course of this matter, the decision of Asbury DP in CFMMEU v BIS Industries [2021] FWC 2352 (BIS) was issued on 4 May 2021. I raised this decision with the parties on 6 May 2021 and invited the parties to address the decision at the hearing on 7 May 2021. In particular, I raised the following paragraph of the decision with the parties:
“[136] The issue for the applicant in Simplot was that it sought arbitration by the Commission under a dispute resolution procedure in an agreement that was inoperative at the relevant point, so that there was no source of power to arbitrate the dispute. There is no indication in Simplot either in the appeal or at first instance, that the applicant argued that the dispute could continue under the later agreement and that the dispute settlement term in the later agreement was the source of power for the Commission to arbitrate the dispute. There is also no indication in the Decision that the dispute settlement terms in the two agreements were identical or that it was argued that the steps in the procedure under the earlier agreement were steps for the purposes of the procedure in the later agreement. Neither is it clear whether the disputed term relating to casual conversion was found in both the earlier and the later agreement. In such circumstances it is arguable that an enduring interpretative dispute could survive an expired enterprise agreement and continue under a replacement agreement. It is also arguable that the same dispute could be re-initiated under the later agreement if the relevant clauses were the same or similar.”
(my emphasis)
[13] At the hearing, the Respondent addressed this decision and submitted that clause 39 of the 2018 Agreement was sufficiently different to clause 41 of the 2012 Agreement and that the dispute could not be reinstated in the absence of a savings clause.
[14] Ms Cheng sought a two-month adjournment of this matter to provide written submissions responding to the Respondent’s submissions and my questions at the hearing. Ms Cheng sought the adjournment on the basis that English was not her first language, that she needed to seek legal advice and she needed to have the decision translated or interpreted in its entirety before she could provide a response.
[15] At the hearing, Ms Cheng failed to respond to queries from me and was argumentative and evasive when asked to make submissions. Ms Cheng continued to agitate perceived issues from the hearing in relation to her unfair dismissal application which was heard the previous day.
CONSIDERATION
[16] I note that the relief sought by Ms Cheng concerns her perceived failure by the Respondent to confirm Ms Cheng’s employment in writing. It was admitted by the Respondent in correspondence to Chambers, in its submissions, and in correspondence filed as evidence to the Commission that Ms Cheng’s employment had been confirmed by default.
[17] There is no question that Ms Cheng’s employment was confirmed by the Respondent. I found this to be the case in [2021] FWC 3530:
“[57] Mr Greedy’s correspondence of 25 September 2018 makes it crystal clear that the Respondent does not challenge that the Applicant completed her probationary period on and that she was a permanent and ongoing employee. This information has been relayed to the Applicant in a meeting with Mr Greedy on 24 September 2018 and by email from Ms Dekker (see paragraph 21 above). For the Applicant to suggest that the Respondent simply extended her probation period is contrary to the facts and a deliberate and mischievous attempt to mislead the Commission.
[58] I am also satisfied that the applicant’s employment contract is clear and specific, ie, the Applicant was offered a continuing appointment for an indefinite period subject to the normal cessation provisions of the Respondent. There was never any need or obligation upon the Respondent for a further interview or further correspondence.
…
[63] The Applicant clearly wanted her employment to continue past the probationary period. It is not unusual for an employee to pass over the probationary deadline to permanent employment without fanfare or acknowledgement from the employer. This is what occurred in this circumstance.”
[18] Ms Cheng has advanced the argument that because her continuing employment was not confirmed, her employment came to an end on 25 June 2018 when her probation period came to an end. This notion is ill conceived. Ms Cheng continued to work for the Respondent and was paid for that work.
[19] It is unclear what Ms Cheng is seeking from her application. Her claimed relief seeks a determination that her employment was, in effect, illegal, or appears to seek some form of punitive action from the Commission towards the Respondent for a breach of their Agreement. Ms Cheng seeks no order or relief in her application save for confirmation that there was no legally binding continuing employment contract. The outcome sought by Ms Cheng flies in the face of reality. Ms Cheng worked under the same contract from commencement of her employment until her termination. She passed probation and continued to work. There was clearly a legally binding continuing employment contract formed on 12 March 2018 that ended with her termination.
[20] In the circumstances, I am not persuaded that Ms Cheng’s application was made in good faith. Ms Cheng’s application appears to me to be made deliberately to agitate matters she perceived as having arisen during the conduct of her s.394 application. Ms Cheng seeks no relief or outcome in this application which can be of any assistance to her ambition of ongoing employment.
[21] Section 587 of the Act sets out in dealing with when the Commission may dismiss an application:
“Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[22] An application will be considered frivolous or vexatious where the application:
• is so obviously untenable that it cannot possibly succeed
• is manifestly groundless
• is so manifestly faulty that it does not admit of argument
• discloses a case which the Commission is satisfied cannot succeed, or
• does not disclose a cause of action.
[23] I note that Ms Cheng’s application appears to have been made in the context of her s.394 application and agitates arguments that she advanced in that application. Given Ms Cheng’s s.394 application has been dismissed, it appears that there is no utility in dealing with this application.
[24] I consider Ms Cheng’s application discloses no rational cause of action and discloses a case I am satisfied is illogical. Further, I consider it is manifestly groundless and faulty. I also note Ms Cheng’s conduct in the course of this matter has been to significantly and deliberately delay in dealing with the application, seeking significant adjournments throughout the process.
CONCLUSION
[25] Having previously found in Cheng v Griffith University[2021] FWC 3530, that the Applicant had an on-going employment relationship with the Respondent, I am satisfied that the application should be dismissed under s.587 of the Act on the grounds that it is frivolous because the Applicant’s question has already been determined by the Commission. Due to the incessant and unnecessary delays instigated by Ms Cheng in her unfair dismissal application, Ms Cheng was unaware of the Commission’s decision on her employment status until many years after this application was lodged.
[26] I have made no decision in relation to the Respondent’s Jurisdictional Objection. The Respondent’s argument is in accordance with the Full Bench authorities, however, I endorse the comments of Deputy President Asbury in BIS. However, based on my earlier decision where I found that the Applicant was an on-going employee and that the Respondent has not breached the Agreement, there is little utility in determining the Respondent’s Jurisdictional Objection.
[27] I so Order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR732226>
Annexure A.
A Timeline of Ms Cheng’s employment with Griffith University:
26 March 2018 | Ms Cheng commences employment with Griffith University |
4 April 2018 | Informal Unsatisfactory Performance discussions commence |
25 June 2018 | Ms Cheng’s probationary period expires with her continuing employment is confirmed by default |
28 August 2018 | Informal Unsatisfactory Performance discussions cease, and formal discussions commence |
19 September 2018 | Formal Unsatisfactory Performance discussions cease and a recommendation to terminate employment is made Ms Cheng is provided with 10 working days to respond to the recommendation |
21 September 2018 | Ms Cheng emails Ms Jelena Dekker stating that as her enquiries regarding her employment had not been answered, she was seeking to refer the dispute to the General Staff Consultative Committee (GSCC) in accordance with the Dispute Settlement Procedure of the first EA. Ms Dekker acknowledges receipt of Ms Cheng’s email |
24 September 2018 | Ms Cheng forwards her email to Mr Ken Greedy, notifying him of a formal dispute |
25 September 2018 | Mr Greedy responds to Ms Cheng’s email: answering her queries; informing her of concerns he has with her notification of dispute; that the dispute would not be forwarded to the GSCC; informing her of her ability to lodge a dispute with the FWC if she was not happy with the outcome; and encouraging Ms Cheng to focus on responding to the termination recommendation. Ms Cheng sends an email to Mr Greedy outlining that she would like to notify the University of a dispute under the first EA. |
26 September 2018 | Mr Greedy responds to Ms Cheng’s email of 25 September 2018 reiterating: the concerns he has with the notification; that she is able to refer the matter to the FWC; and his encouragement that she focus on responding to the recommendation to terminate her employment. |
24 October 2018 | Following several extensions of time (to a total of 23 working days), Ms Cheng provides a response to the recommendation with a series of questions and a request for a further extension of time to respond |
25 October 2018 | Ms Cheng is informed that her extension request has not been granted and that her employment is to be terminated effective immediately on the grounds of unsatisfactory performance. Ms Cheng is informed that she can seek a review of the decision through a Committee of Review under the first EA. |
1 November 2018 | Ms Cheng requests a Committee of Review and the University commences the process of establishing the Committee The Committee of Review was unable to be established until such time that Ms Cheng advised whether NTEU or Together was the relevant Union. Ms Cheng did not provide this advice. |
14 November 2018 | Ms Cheng files an unfair dismissal application (U2018/11728). The outcome remains pending. |
15 November 2018 | Ms Cheng advises that she does not wish to continue with the Committee of Review The University informs the members of the Committee |
1 Simplot Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)[2020] FWCFB 5054.
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