Ms Muria Roberts v TasTAFE
[2024] FWC 2586
•26 SEPTEMBER 2024
| [2024] FWC 2586[Note: An appeal pursuant to s.604 (C2024/7477) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Muria Roberts
v
TasTAFE
(C2024/3412)
| COMMISSIONER LEE | MELBOURNE, 26 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal-jurisdictional objection that the Applicant was not dismissed and that the Applicant’s employment ended in accordance with the time limited contract-Applicant claims she was terminated at the initiative of the employer-jurisdictional objection upheld-application dismissed.
Introduction
This decision concerns an application made by Ms Muria Roberts (the Applicant) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (the Act). The Applicant contends that TasTAFE (the Respondent) contravened various provisions of Part 3-1 of the Act by dismissing her from her employment. The Respondent disputes that the Applicant was dismissed asserting that she was employed under a contract of employment for a specified period of time and that period of time came to an end and pressed a jurisdictional objection on that basis.
The Fair Work Commission (Commission) generally does not have a determinative function in relation to applications brought under s.365 of the Act unless the parties agree to the Commission arbitrating the matter. Rather, the Commission’s role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that the Applicant was dismissed withing the meaning of s.386 of the Act and objects to the application on this basis, the Commission is required first to determine whether the Applicant was in fact dismissed or not.[1]
The Background
The parties filed materials in accordance with the Directions[2]. The Applicant filed a document which was a combination of submissions and her witness statement. The Respondent filed submissions and provided a witness statement from Troy Anning, the Digital and Business EM at TasTafe, and Kate Elliot, the Education Project Manager for the Respondent. A hearing by Microsoft Teams was held on 30 July 2024. Neither party sought to cross examine any witness and all evidence was admitted. Permission was granted for the Respondent to be represented by a lawyer, Ms Barclay. The Applicant was self-represented.
The Evidence
Most of the evidence in this matter is not in contest. The Respondent provides vocational education and training. It has an ongoing need to recruit teachers in various professions. Teachers are recruited through a program where industry professionals are offered employment as associate teachers for a fixed period of time, ordinarily 12 months.
During that period, employees are supported to obtain the qualifications required for employment as a Teacher. This includes a Certificate IV in Training and Assessment (TAE) but may also include additional licences or qualifications that are relevant to the employee’s field of expertise. After completing the TAE, the Respondent generally offers employment as a Teacher without a further recruitment process because that is the purpose of the program.
By recruiting Associate Teachers, the Respondent is attempting to ensure that it has qualified Teachers available to teach students across its industry areas. It does not have a need per se for Associate Teachers. As such, these roles are only offered on a time-limited basis. In his statement, Mr Anning of the Respondent gives evidence that most Associate Teachers become qualified within the 12-month period. Further, that where an employee does not become qualified as a Teacher during that period, they are rarely offered further employment as an Associate Teacher. Rather, the Respondent endeavours only to make further offers of employment where the employee is qualified, and it can offer a role as a qualified Teacher. The Applicant has specialist skills in cyber security and was recruited as an Associate Teacher as part of the program described above with a view that she would be qualified within 12 months.
On 1 March 2023 the Applicant commenced employment as a fixed-term employee with the Respondent in the role of Teacher under supervision. Her contract of employment dated 1 March 2023 provides the following:
On page 1:
We are pleased to offer you (Employee) fixed-term employment with TasTAFE
ABN 54 248 304 374 (TasTAFE).
In the schedule:
Schedule
1(a) Commencement Date 6 March 2023
1(a) End Date 5 March 2024For the avoidance of doubt, no notice is required to bring your employment to an end on this date.
You acknowledge and agree that nothing in this
contract is to be construed as providing you with an entitlement to ongoing employment with TasTAFE.
On page 9:
…Alternatively, your acceptance of this offer of employment with be signified by
your attendance at work on or after the Commencement Date[3]
During the onboarding process in or around March 2023, the Applicant was provided with a copy of the Associate Teacher Procedure. The procedure outlines that: (a) An Associate Teacher is engaged for a fixed term period of up to 12 months; (b) In exceptional circumstances the appointment may be extended for a further period of up to 12 months; and (c) Only once an Associate Teacher completes the essential requirements (which includes their TAE) can they seek approval for “conversion to permanency”.
In or around November 2023 Ms Elliot became concerned that the Applicant would not complete her TAE by the 5 March 2024 employment end date and by January 2024 it became apparent to Ms Elliot that the Applicant would not complete her TAE by 5 March 2024. In light of the Applicant’s personal circumstances, and the Respondent’s need for qualified cyber security Teachers, the Respondent offered the Applicant an extension to the time-limited employment by two months. The new employment end date became 3 May 2024. According to the Respondent, the Applicant indicated her acceptance of the second contract by continuing to work past the 5 March 2024 end date.
By email on 13 February 2024, Ms Eliott (on behalf of the Respondent) advised the Applicant that the Respondent had approved an extension to the Applicant’s contract to 3 May 2024. In her email, Ms Eliott unambiguously states “this is the only extension that you can receive...”[4] and further “If you do not complete your TAE in that time frame your employment will be terminated..”[5] The Applicant admits that she received that email dated 13 February 2024.[6]
On 29 February 2024 an offer of employment was uploaded to the Respondent’s online portal. That offer could be accessed by the Applicant by logging into the portal.
Consistent with the 1 March 2023 contract, the 29 February 2024 contract states:
On page 1:
We are pleased to offer you (Employee) fixed-term employment with TasTAFE
ABN 54 248 304 374 (TasTAFE).
In the schedule:
Schedule
1(a) End Date 3 May 2024
For the avoidance of doubt, no notice is required to
bring your employment to an end on this date.You acknowledge and agree that nothing in this
contract is to be construed as providing you with an
entitlement to ongoing employment with TasTAFE.
The 29 February 2024 contract also states on page 7:
These terms will apply to your employment with TasTAFE on and from the
Commencement Date.[7]
The Commencement Date is defined in the schedule as 6 March 2024.
On Thursday 7 March 2024 an email was sent from [email protected] to the Applicant congratulating her on her “fixed-term appointment” and giving instructions on how she could view and accept the offer via the Respondent’s online portal.
On 7 April 2024 the Applicant sent an email to Ms Robeka Somers, the TAE teacher, and others of the Respondent outlining her plan to complete her TAE. The Applicant indicated her intention to submit all of her assessment tasks by Friday 26 April 2024.
On 8 April 2024 Ms Somers responded, advising the Applicant that she would not be able to mark all of the assessment tasks between Monday 29 April and Friday 3 May 2024. Instead, Ms Somers advised the Applicant to “submit tasks as you complete them to allow me time to mark, and time for you to resubmit/amend, your assignments as necessary.”[8] She further added that a due date of 30 April would help.
Despite Ms Somers advice that she would not be able to mark all of the assessment tasks between Monday 29 April and 3 May 2024 and the request that the Applicant submit tasks as they were completed, the Applicant submitted 15 tasks for Assessment on or after Friday 26 April 2024 as follows:
a)On Friday 26 April 2024 the Applicant submitted one task for assessment.
b)On Saturday 27 April 2024 the Applicant submitted one task for assessment.
c)On Sunday 28 April 2024 the Applicant submitted 12 tasks for assessment.
d)On Monday 29 April 2024 the Applicant submitted part of one task for assessment.
As at Monday 29 April 2024 there were a further 8 tasks to be submitted for assessment.
The Respondent submits that the effect of the Applicant submitting her assessments in this manner, and the fact that there were still 8 assessments left to submit was that it was not possible for all the assessments to be marked and resubmitted (if necessary) on or before 3 May 2024.
On 29 April 2024 the Applicant was invited to a meeting with the Respondent. The Applicant did not agree to attend the meeting.
The Respondent decided not to make a further offer of employment to the Applicant because:
a)The Applicant was not qualified to work as a Teacher; and
b)The Respondent had already extended the period of employment for the role of Associate Teacher.
On 30 April 2024 the Respondent sent an email to the Applicant attaching a letter with the subject ‘Certificate IV in Training and Assessment Progress’. The letter confirmed that the Applicant’s employment would end on 3 May 2024. It also advised that the Respondent would not make a further offer of employment because the Applicant had not completed her TAE.
The Respondent submits that having regard to this background, in accordance with the extended fixed-term or time limited contract agreed between the parties, the Applicant’s employment with the Respondent ceased on 3 May 2024.
The Applicant made extensive submissions. In essence the Applicant argues that it was the actions of the Respondent that caused the termination of the employment relationship because they prevented completion of the TAE upon which the continuing employment relationship depended.[9]
In particular, the Applicant claims that:
The Respondent’s determination that the Applicant would not complete the TAE within the required time frame were purely speculative at the time the action was taken.
She was not given support by key staff which she required to complete certain aspects of the assessment. Notably her TAE teacher and her supervising teacher were unavailable during the final five weeks of the contract extension due to three of those weeks being school holidays.
The termination was initiated by the Respondent, not as a natural conclusion of the Applicant’s fixed term contract, and the termination of the employment relationship was something she became powerless to prevent due to the actions of the Respondent.
That a colleague Mr Martain was given an additional 2 weeks to complete his TAE.
She considered she would have completed her TAE in the time required if the Respondent had not engaged in the actions which prevented her from doing so.
The Respondent was motivated to terminate the employment relationship.
There was an expectation of guaranteed unconditional transition from fixed term contract to permanency.
The law to be applied
S.365 of the Act specifies that a person may make an application to the Commission to deal with a dispute if they have been “dismissed” in contravention of Part 3-1 of the Act.
S.386 of the Act sets out the meaning of dismissed.
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;
The Respondent set out a concise summary of the relevant law to be applied and that is replicated here for convenience:
In the decision of Khayam v Navitas English Pty Ltd t/a Navitas English[10] (Navitas) a Full Bench of the Commission considered the interpretation of section 386 with respect to time-limited contracts.
Navitas established that time-limited contracts, which grant either party an unqualified right to terminate the contract at any time with notice, are not contracts for a “specified period of time.” This is due to the inherent uncertainty regarding the contract’s end date, despite the presence of a ‘maximum term.’ Consequently, such contracts do not qualify as contracts for a “specified period,” and the exclusion in section 386(2)(a) of the Act does not apply.
Both the contract dated 1 March 2023 and the contract dated 29 February 2024 contain an unqualified right for either party to terminate the employment by giving notice. As such, and as indicated above at paragraph 3, the Respondent does not press its section 386(2)(a) jurisdictional objection.
The majority in Navitas also affirmed that, in the absence of vitiating or other circumstances (discussed below), where the parties have genuinely agreed to a time-limited contract, and the employment ends on the specified date, then the employment will have been terminated by reason of the agreement between the parties:[11]
“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…”
The recent Full Bench decision of Isacc Howard v Falls Creek Ski Lift Pty Ltd T/AFalls Creek Ski Lift Group[12] (Falls Creek) upheld this majority decision. In Falls Creek the Full Bench determined that the Applicant had not been dismissed when his time-limited contract ended and he was not offered a new contract for a subsequent season.
At paragraph [75](5) the majority in Navatas set out a non-exhaustive list of matters which are likely to be relevant, and “may in some cases be determinative” to whether the parties have genuinely agreed to end the employment relationship at a particular time:
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…
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...
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…
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…
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…
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…[13]
I agree with those principles and will apply them here so far as they are relevant.
However, I also note that a recent decision of Justice Raper in Alouni-Roby v National Rugby Leage Ltd [2024] FCA 12 (Alouni-Roby) at [97] considered the decision of the majority in Navitas, and found that s. 386(2)(a) applies to outer limit contracts which allow for early termination but only applies where the employee’s employment has been terminated at the end of the specified period of time.
While that aspect of the decision may be considered obiter, it nevertheless indicates that the Federal Court has expressed a clear view on the matter which is contrary to the decision of the majority in Navitas. Nevertheless, I will apply the principles espoused by the majority in Navitas.
Consideration
There has been no termination at the initiative of the employer as required by s.386(1) because:
a)There was an operative time-limited contract between the Applicant and Respondent which reflected a genuine agreement that the employment relationship would not continue after 3 May 2024 and the employment relationship came to an end on 3 May 2024 (Genuine Agreement).
b)There are no vitiating or other factors of the type referred to in paragraph [75] (5) of Navitas which suggest that the termination was at the initiative of the Respondent.
c)The Respondent’s decision not to offer any further contract of employment is not relevant to the question of whether there was a termination at the initiative of the Respondent.[14]
In respect to the considerations at [75](5) of Navitas I find the following.
There is no evidence that the contract was not valid, a sham or that the Applicant lacked the legal capacity to enter into the contract as a result of misleading or other improper conduct of the Respondent.
The contract was clearly not illegal or contrary to public policy. The time limited contract, which was the subject of one extension in order to allow the Applicant additional time beyond the usual amount of time one takes to complete the qualification, was an appropriate part of a scheme to recruit professionals as Teachers.
There is no evidence that the contract was varied or modified such that the set time limit no longer applied. The relevant terms in the second contract specified the employment was time limited in the same manner as the first contract and I am satisfied on the evidence that the Applicant was aware of the new employment end date. The evidence shows that the Applicant was indeed seeking to complete her TAE prior to that date.
The contract represents the reality and totality of the terms of employment, and this is set out expressly in the contract.
There's no evidence of any representations being made by the Respondent inconsistent with the terms of the contract. While I accept that the Applicant had an expectation based on representations from the Respondent for further employment, that expectation was clearly contingent on completion of the TAE. There is no evidence that the Respondent made any representation that the Applicant’s employment would be ongoing or was on terms different to what is expressly stated in the contracts.
The contractual terms were not inconsistent with the Award.
I have considered the Applicant’s arguments regarding the alleged lack of support in the final weeks of the second contract, her claim that the Respondent’s conclusion that she would not complete the assessments in time was reached days before the second contract expired, her assertion that the assumption she would not complete the TAE in time was speculative and she believes she would have in fact completed it and, that these actions should be considered as actions that can be construed as action by the Respondent to terminate the employment relationship on their initiative. However, I do not accept that is the case when all of the circumstances are considered.
The Applicant was afforded 14 months to complete the TAE qualification which on Mr Anning's evidence only requires 6 to 9 months to complete. It was the Respondent on its own initiative that provided a further eight week contract to allow the Applicant to complete her TAE. It was made clear if it was not completed in the time frame there would be no further offers of employment. When the Applicant wrote to the Respondent setting out her rather last-minute time frame to complete assessments, she was told by the Respondent that the proposed time frame was not appropriate and was given guidance as to when she would need to provide the assessments. The Applicant did not meet that time frame. Ultimately, I agree with the Respondent’s oral submissions on this matter as follows:
The Respondent submits that the decision to not submit assignments until the last week of her employment contract, or in fact at all in relation to approximately 9 of them, in circumstances where she was advised on the 8th of April that submitting them in this manner would leave insufficient time to mark them, cannot on any reasonable basis be used to support a finding that the Respondent took steps to prevent her from completing her TAE.[15]
In conclusion, having regard to the consideration above:
The Applicant was not “dismissed” in accordance with the meaning of that term in section 386(1) because her employment did not end at the initiative of the employer. Rather, the employment ended by reason of the agreement between the parties which is evidenced in the employment contract.
Consistent with majority in Navitas, the Respondent’s decision not to offer any further contract of employment (including as a Teacher) is not relevant to the question of whether there has been termination at the initiative of the employer.
In any event, if the consideration above is wrong, the decision in Alouni-Roby of Justice Raper is authority for the proposition that the exemption in s.386(2)(a) applies to the type of contract that applied to the Applicant. Consistent with the reasoning of her Honour, as the Applicant’s second contract was a time limited contract of the type contemplate as falling within the scope of s.386(2)(a) as per the consideration of Justice Raper, it follows that there was no dismissal within the meaning of the Act.
Conclusion
The Applicant’s employment ended on 3 May 2024 by way of agreement between the Applicant and Respondent. With respect to s.365(a), the Respondent the Applicant was not dismissed within the meaning of that term in s.386 of the Act. For the reasons stated above I am not satisfied that there was a termination at the initiative of the employer. Therefore, I'm not satisfied the Applicant was dismissed within the meaning of s.386 of the Act.
The jurisdictional objection is upheld, and the application is dismissed.
An order[16] to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Ms M Roberts, Applicant
Ms C Barclay, Representative for the Respondent
Mr V Foot, for the Respondent
Hearing details:
30 July 2024.
Microsoft Teams.
[1] See Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and Ahmad v MPA Engineering Pty Ltd[2020] FWCFB 5365).
[2] Digital Court Book at page 215-216.
[3] Ibid at page 124.
[4] Ibid at page 125.
[5] Ibid.
[6] Ibid at page 35.
[7] Ibid at page 27.
[8] Ibid at page 126.
[9] Ibid at page 7.
[10] [2017] FWCFB 5162 (8 December 2017).
[11] Navitas at [75](4).
[12] Isaac Howard v Falls Creek Ski Lift Pty Ltd T/A Falls Creek Ski Lift Group [2023] FWCFB 154.
[13] Digital Court Book at page 128-130.
[14] Ibid at page 130.
[15] PN53.
[16] PR779661.
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