Ms Sharon F. Idanan-Pagkaliwangan v Mater Misericordiae Health Services Brisbane Limited

[2010] FWA 4029

[2010] FWA 4029

FAIR WORK AUSTRALIA

DECISION

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

Ms Sharon F. Idanan-Pagkaliwangan
v
Mater Misericordiae Health Services Brisbane Limited
(U2009/12171)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 9 JUNE 2010

Summary: termination of employment – jurisdictional objection – whether an outer limit employment contract or a contract for a maximum term – investigation of factual matrix at point of engagement – circumstances as to how the position was represented to the Applicant.

[1] Ms Sharon Flores Idanan (“the Applicant”) applied under s.394 of the Fair Work Act2009 (“the FW Act”) for a remedy in relation to her alleged unfair dismissal from the Mater Misericordiae Health Services Brisbane Limited (“the Respondent”).

[2] The Applicant was employed to fulfil the duties of an Inpatient Billing Officer.

[3] The Applicant commenced employment with the Respondent on 8 September 2008 and that employment relationship ceased on 4 September 2009.

[4] The Respondent objected to the application being heard on the grounds that the Applicant’s employment came to an end for reason of that the Applicant’s employment contract had reached its expiry date. That is, there was no termination at the initiative of the employer.

[5] This decision concerns a determination as to whether that objection can be upheld.

[6] It appears to me that this is a case, at least in the Respondent’s view, that raises issues that relate to the observations made by the Full Bench in Appeal by NT Department of Justice against decision of Whelan C of 19 May 2006 [PR972497] – Re: Lunn, Lawler VP, Harrison SDP, Raffaelli C, 27 November 2006 [PR974185]. Though it was considered under the earlier legislative framework that is not of apparent consequence. In the course of that decision the Full Bench observed as follows:

“Whether the Final Contract was terminated at the initiative of the employer

The WR Act has, for some time, excluded the jurisdiction of the Commission under s.170CE where the employee was "engaged under a contract of a employment for a specified period of time": see s.170CBA(1)(a). It has been held that a contract with a nominated end date does not meet that description if it provides for a broad or unconditional right of termination during its term. In such circumstances, the description of such a contract as an 'outer limit' contract usefully distinguishes it from a contract for a "specified period of time" to which s.170CBA(1)(a) applies. There is no dispute that the Final Contract, executed on or about 16 January 2005, was an 'outer limit' contract thus described.

When a contract for a specified period or an 'outer limit' contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer. Thus, the critical issue is whether what occurred on 24 March 2005 involved a termination at the initiative of the employer.”¹

[7] So to here: the objection advanced by the Respondent is that the contract of employment, as it was a contract was for an outer limit or for a maximum period, was intended to be extinguished (by force of that contract) on a particular date, and as such was not a contract for ongoing employment.

[8] But before such a conclusion is contemplated, it is necessary in the case before me to determine the nature of the contract that existed between the Applicant and the Respondent. This can only be achieved by examining the factual matrix that existed at the time the engagement came into being and the parties’ intentions when they purported to contract with one another.

[9] I should add that the issues in contest in relation to the jurisdictional question pressed by the Respondent and the issue in contest in the arbitration (in respect of whether the termination was harsh, unjust or unreasonable) largely overlap. That is, in the terms of the dispute before me, a finding that the Respondent terminated the Applicant’s employment at its initiative would appear likely to render that termination harsh, unjust or unreasonable.

[10] Notwithstanding this, the Respondent did not consent to me dealing with both these matters in the one proceeding. Rather than risk further delay on a procedural motion, I brought the jurisdictional objection on.

[11] The Applicant claims that at all times she was engaged on an on-going, full time basis and that the cessation of her employment was therefore at the initiative of the Respondent. Such circumstances, in the Applicant’s view, made her application jurisdictionally competent and rendered her dismissal harsh, unjust or unreasonable.

THE APPLICANT’S POSITION

[12] The Applicant’s evidence amounted to the following, in summary.

[13] A job placement agency recruiting for the Inpatient Billing Officer position on behalf of the Respondent, through its Principal, Ms Shona Grant, represented the position as an Inpatient Billings Officer verbally (in her original telephone conversation with the Applicant) as being a permanent position.²

[14] The Applicant further claimed that Ms Grant had informed her that she would be replacing a (named) person who had resigned her employment (a Ms Belinda Clatworthy), who had been a permanent employee.³

[15] The Applicant was provided an interview form by Ms Grant which detailed the location of the Applicant’s interview at the Respondent’s complex. The Applicant contended that the interview form stipulated that the position was full time. The Applicant did not possess the interview form she alleged Ms Grant provided to her as she recalled disposing of it at an earlier point.⁴

[16] After the Applicant’s interview with Ms Grant, which is referred to above, the Applicant attended an interview with Ms Marshall, Manager – Patient Financial Services, for the Respondent. Ms Marshall, the Applicant claims, represented the position as being “a permanent full time position” with a salary starting at $45,000 per annum and “increases across the board each year”.⁵

[17] The Applicant contends Ms Marshall made no reference to a restructuring or re-organisation of the billings area.⁶

[18] When the job placement agency confirmed the offer of employment to the Applicant, the Applicant says it did so again on the basis that the position was a “permanent full time position”.⁷

[19] The job placement agency thereafter sent two items of correspondence to the Applicant (one of which was a copy of correspondence directed to Ms Marshall of the Respondent) confirming acceptance of the position. Both items of correspondence (which I will refer to as the ‘placement correspondence’) were both headed “Permanent Placement”.⁸

[20] The Applicant therefore contends that in all the interactions with her at the time of her recruitment and engagement, Ms Grant and Ms Marshall represented the position for which she was being recruited as a full time, permanent position.

[21] The Applicant thereafter commenced employment with the Respondent on 8 September 2008.

[22] The Applicant claims to have shortly thereafter approached the Respondent’s HR Help Desk to acquire, amongst other things, about her Tax File Declaration Form and a form for purposes of registering her personal details (such as emergency contact and financial institution details). These were provided to her without query and she duly completed them.⁹

[23] The Respondent notified its superannuation fund subsequently that the Applicant was a “full-time” employee.¹⁰

[24] In this regard, the Applicant came to submit that a “full time” category of employment was distinguished from a “temporary” category of employment at clause 4.2.1 of the District Health Services Employees’ Award – State¹¹ and therefore the reference in her superannuation details was suggestive of the objective intent of the parties (to contract for a permanent position).

[25] In May 2009, some eight months after she commenced work for the Respondent, the Applicant sought to have a written confirmation of her employment for purposes of obtaining a home loan. At that point the Respondent (through its HR Service Advisor, Ms Harrison) referred to her employment as being “full-time and she is contracted for 76 hours per fortnight”.¹²

[26] The Applicant subsequently contacted (on 14 May 2009) her supervisor, Ms Marshall, for purposes of clarifying her employment status in relation to the reference to her hours being “contracted”.¹³

[27] For reasons given in the proceedings, Ms Marshall was unable to bring any clarification to the situation until 3 August 2009, where-upon she informed she was a temporary employee on a contract that would expire on 4 September 2009 and her employment could not be extended beyond that date.¹⁴

[28] Upon contacting the job agency to clarify the terms of the original offer, the Applicant was directed, eventually, back to the Respondent.¹⁵

[29] On 5 August 2009 the Respondent’s HR Department gave advice to the Applicant that:

• The employment contract for the Applicant was drafted “quite late” and had not been signed by the Applicant; and



• A copy would be sent to the Applicant for signature.¹⁶

[30] The following day the Applicant was sent a “letter of offer”, which was her employment contract, dated 6 August 2009, which stated that she was employed on a temporary basis between 8 September 2008 and 4 September 2009.¹⁷

[31] A further letter from the HR Department received by the Applicant on 7 August 2009 (which appears to be a re-drafted letter of confirmation for the purposes of seeking a loan – as cited above - stated that the Applicant was a temporary employee.¹⁸

[32] On 4 September 2009 the Applicant claimed that “the Respondent terminated its employment contract with me allegedly on grounds that my employment was intended to be temporary only and had thereupon expired”.¹⁹

[33] The Applicant also alleged various breaches of the District Health Services Employee Award – State (Clause 4.2) (“the Award”), the Queensland Public Health Service Certified Agreement (“the Agreement”) and the Public Service Commission Directives in relation to failing to provide a letter of engagement, a position description, a contract of employment and notifying any contracted duration.²⁰

[34] In all, the Applicant contended that the documentation and language used to describe her employment at the time of the initial interviews and thereafter favoured her being a permanent employee, as did the oral representations made to her by both the job placement agency and the Respondent.

[35] Along with this, the Respondent’s conduct in applying a probationary period to her employment, which it was claimed was inconsistent with a contracted or temporary period of employment (under the Respondent’s internal policy and the above cited State Award and the Agreement) also gave supplementary support for a finding that the Respondent at all times represented the Applicant’s engagement as a permanent role.

THE RESPONDENT’S POSITION

[36] The Respondent contends that it did not offer the Applicant employment on a permanent basis.

[37] To this end, the Respondent claimed as follows.

[38] The job placement agency, at the instruction of the Respondent, recruited both temporary and permanent employees²¹ for which it was paid a fee. That is, it did not only recruit permanent employees.

[39] Ms Grant gave further, related evidence, that Ms Droy (Director, Revenue) had instructed her, prior to the Applicant being referred to the Respondent, that no permanent recruiting was to be undertaken (until otherwise advised) for reasons that the various billings areas were to be merged into a single, centralised billings area.²²

[40] This was because the Respondent was at that time centralising a number of remote billings areas and the head count for this new structure was uncertain, and there had been a deal of movement of staff over that period.

[41] Neither Ms Droy nor Ms Grant contended that no permanent positions had been filled at or around the relevant time period, but only that Ms Grant was directed not to recruit for such positions at the time the Applicant was under consideration.

[42] Ms Grant gave evidence that she made no representation to the Applicant that she was being recruited to a permanent position nor was in a position to do so given she had been advised at the time that the Respondent was not recruiting on a permanent basis owing to a re-organisation.²³

[43] Ms Grant’s evidence, further, was that she informed the Applicant by a telephone conversation on 26 August 2008 that the position was “a full time temporary contract for a period of 12 months”.²⁴ Ms Grant also claims she went to some lengths to ensure the Applicant understood the position was for 12 months, and informed the Applicant there might be a prospect of extension or an opportunity to apply for a permanent position as the Respondent was a large organisation.²⁵

[44] Ms Grant gave evidence that that she again represented the role as a 12 month position at a meeting on 28 August 2008 at which she also commented to the Applicant that by accepting a temporary contract this might enable her to “get her foot in the door” and that the Applicant confirmed expressly her willingness to accept the position on that basis.²⁶

[45] Ms Grant gave further evidence that she provided the Applicant with an interview form (prior to the Applicant’s interview with Ms Marshall) that stated that the position was a “12 month contract”.²⁷ That form was tendered as part of Ms Grant’s evidence.

[46] Though the Applicant agitated the matter, having heard the evidence, it is reasonable to assume that the computer date on which the form was created was not fabricated in some manner and reflects the date contemporaneous with the interview with the Applicant (with Ms Grant).²⁸ That is, I have no doubt on the basis of the evidence before me, including Ms Grant’s testimony, that the interview form is a copy of the form provided to the Applicant. The Applicant was not able to produce an alternative rendition of the form.

[47] Ms Grant appears to contend that the reference to the Applicant taking over another nominated employee’s position (for reason that person had resigned) was wrong. The reference to that person, so Ms Grant contended, was made, amongst other reasons, for the purpose of describing the position and the range of duties that the Applicant would be performing.²⁹

[48] Upon being advised by the Respondent through Ms Marshall (following the interview of 29 August 2008) that it wished to offer the Applicant the position, Ms Grant claims she spoke to the Applicant by telephone and stated that the Applicant informed her that she would accept the position and commence duties on the date desired by the Respondent - 8 September 2008. At that time, Ms Grant contends that she did not advise the Applicant that the position was a permanent position.³⁰

[49] During this discussion Ms Grant advised the Applicant that she would forward a letter of confirmation to her but that this should not be confused with a contract of employment that would be provided by the Respondent.³¹

[50] Ms Grant subsequently forwarded (on 30 August 2008) to the Applicant (and to Ms Marshall) a letter headed Permanent Placement with Mater Health Services” (the placement correspondence referred to above). Because of a mistake on her (Ms Grant’s) part, Ms Grant inadvertently described the position as being “Permanent” rather than “Temporary” on the Placement Letter.³²

[51] Ms Grant contends that she was only advised of this error on her part some time later by Ms Marshall when the issue of the Applicant’s employment status was agitated. The error, as Ms Grant explained it, arose from using a template document and not amending its heading.³³

[52] I note that the placement correspondence created by Ms Grant was not at the direction of the Respondent, and the Respondent reasonably cannot be held responsible for its content.

[53] I further note that the placement correspondence also states at its conclusion:

“This letter does not constitute an employment contract. This will be provided to you by Mater Human Resources.”

[54] Finally, Ms Grant claimed that on 15 September 2008, the Respondent’s HR Department forwarded to her office the Applicant’s employment commencement package (which is further discussed below). This package was recognised by Ms Grant as the HR Department had forwarded her similar packages in the past. Ms Grant handed up an email sent to Ms Marshall that same day informing her that she was in receipt of the package and that she would telephone the Applicant. Ms Grant stated that she did so and subsequently hand delivered the employment commencement package to the Applicant’s home address (which was confirmed at the hearing).³⁴

[55] Ms Marshall’s evidence was that while she interviewed the Applicant on 29 August 2009 and made reference to “getting her foot in the door” in relation to other opportunities, she did not make reference to the position being permanent, temporary or for a fixed period of employment.³⁵

[56] Ms Marshall contended that she explained to the Applicant that the billings area into which she was being recruited was being re-structured. For her part, the Applicant denied any such conversation taking place.

[57] Ms Marshall had assumed Ms Rachael Droy (Ms Marshall’s supervisor) had communicated the temporary nature of the position to Ms Grant and that Ms Grant had in turn communicated this to the Applicant prior to the interview.³⁶ That is, Ms Marshall gave evidence that she conducted the interview on the presumption that the Applicant was aware at all times that it was a position of a limited term in the context of the context of the re-structure of the billings area. Ms Marshall presumed this given her knowledge of the uncertainties in relation to staffing levels in the billings areas as they were centralised, and her knowledge of Ms Droy’s directions.

[58] Though Ms Marshall received a copy of Ms Grant’s letter of placement (referred to above as the placement correspondence) she did not observe the reference to the position being “Permanent” (which was an error on Ms Grant’s part, as discussed) and focused instead on the start date, which was seemingly her operational priority.³⁷

[59] Ms Marshall also stated that on 2 September 2008, she created a “Joining Notification” for human resource reasons and that document stated the position was for 12 months. Ms Marshall was advised subsequently (by the HR Department) that as the position was for 12 months she would also need to remove a default setting that referred to the contract not expiring. Upon advising the HR Department, the Joining Notification was amended and the words “4 September 2009” inserted, being the date on which the position would cease.³⁸

[60] Ms Marshall had also indicated in that Joining Notification that the 12 month contract was to cover a period of maternity leave for another employee, a Ms Eastley.³⁹

[61] Ms Droy for her part gave evidence that she provided on-line approval of the position upon receiving the Joining Notification from Ms Marshall. In doing so she approved a position that was described on the notification in two separate places as being a “12 month contract” and to fill a maternity leave position. That Joining Notification that was cited by Ms Droy did not stipulate a precise date for the contract in the relevant box (though its other elements may have sufficiently alluded to this).

[62] In May 2009, the Applicant raised the issue as to why the HR Department had referred to her as being on a contract (when she had sought confirmation of employment for loan purposes). Ms Marshall gave evidence that after some delay (which was not occasioned by any doubt the Applicant was a temporary employee) she informed the Applicant that her employment status was dependent upon Ms Eastley’s decision whether to return to work.⁴⁰

[63] Ms Eastley subsequently confirmed that she would be returning from maternity leave on 29 July 2009 and on 3 August 2009 Ms Marshall so informed the Applicant, and offered her assistance in finding other duties (though the Applicant had already taken some steps in this regard at her own initiative).⁴¹

[64] When the Applicant subsequently agitated the issue of her employment status Ms Marshall gave her a copy of her employment contract on 5 August 2009. This followed some confusion (as discussed immediately below) as the contract of employment was located in the HR Department’s electronic data system. The contract of employment confirmed the temporary period of the employment.

[65] Ms Lona Young, Team Leader of the Respondent’s Human Resources Information Management Division, gave evidence that some of her responsibilities are to prepare employment contracts and commencement packs for new employees (that are either mailed or pick up the same).

[66] The commencement packs contain such documents as the contract of employment, the Employment Commencement Notification Form (which comprises contact information) and a Tax File Declaration form.

[67] Such a pack would have been provided to the Applicant, and it would have contained the contract of employment.⁴²

[68] The Applicant collected the pack, as it was, and returned the signed forms but not the employment contract.⁴³

[69] Though the Respondent initially indicated (in correspondence dated 24 August 2009 to the ASU) that the Applicant might not have received a copy of her employment contract, a further search of the division’s contracts folder within the HR Department’s electronic data system located the contract (and is therefore reasonably assumed to have been included in the original commencement pack).⁴⁴

[70] The Respondent acknowledges informing the relevant superannuation fund that the Applicant was full time employee, but that was a reference to the hours she was working per week, not the duration of her employment.

[71] Ms Young’s evidence was that the Respondent’s HR Services team works to protocols to ensure that new employees are provided with a commencement package that comprises at least the Tax File Declaration, the Employee Personal Information Form and the Employment Contract (or Letter of Offer).

[72] Ms Young’s evidence was that the HR Department’s team created the Applicant’s employment contract on 5 September 2008 upon being advised by the approved Joining Notification (that is, as approved by Ms Droy and created by Ms Marshall) that the Applicant’s employment was for a 12 month period (and ostensibly replacing a maternity leave position). Other matters of detail were clarified subsequently.

[73] The HR Department’s electronic data system records the date of the creation of the letter of offer or employment contract, who generated that letter of offer and the name of the further team member who quality assured that letter. A screen shot of this record was brought into evidence in these proceedings.⁴⁵ This screen shot records “05/09 letter and commencement pack at reception for collection”. 46

[74] The letter of offer or employment contract that was provided to the Applicant in August 2009 was a copy of that original document as created and checked on 5 September 2008. The letter of offer stipulated that the period of employment was for 12 months and would end on 4 September 2009.

[75] Ms Young gave further evidence that the quality assurance procedures applied by the HR Department’s team in the circumstances where an employment agency is involved in the recruitment ensures that two commencement packages are created. One is either left at reception for the prospective or new employee to collect, or if time permits it is forwarded to the home address of that prospective or new employee. Where an employment agency is involved in the recruitment process, a second copy is also sent to the employment agency. It was that copy of the commencement package that Ms Grant is said to have received on 15 September 2008 and hand delivered to the Applicant’s address.

[76] The Applicant denies having received either copy of these commencement packages and to have returned some elements of the package (the Tax File Declaration and Personal details Form) as a result of having made an inquiry about these forms at the time she was arranging a salary sacrifice arrangement at the HR Help Desk after such time as she was employed.

[77] Ms Young’s evidence was that this was an improbable scenario because the salary sacrifice personnel would not have had access to the relevant forms and if an inquiry was made of the HR Department’s team to provide such forms that would “definitely ring alarm bells” as to whether the employee had possession of the commencement package proper. This in turn would have meant inquiries would have been made and a new employment package generated.⁴⁷

CONSIDERATION

[78] As I have mentioned above, I was taken to both the applicable Agreement, Award, to Public Service Directions and the Employer’s HR Manual in an effort to adduce surrounding circumstances that might ground a reasonable inference that the Respondent had intended the contract of employment to be permanent (and the Applicant accepted the contract on such a term).

[79] Whether or not there were breaches of any of these instruments (which are not matters before me as such), the particular terms of these instruments at no stage appear to have been invoked, or expressly referred to, on either side’s evidence, in the contractual process that unfolded between the parties. This is perhaps unsurprising as, at least from the Applicant’s perspective, as she gave evidence she had negligible appreciation of the wider industrial regulatory context of her employment, other than she was given an expectation of permanency.⁴⁸

[80] It is the factual matrix at the relevant time of the engagement that has the most bearing on the determination of the jurisdictional objection.

[81] The Applicant’s contentions rely on me finding that Ms Grant and Ms Marshall both verbally represented the job opportunity as being a permanent position, and that Ms Grant supplemented this verbal guidance intentionally with a written comment to the same effect (by way of the interview form, which reflected the placement correspondence as discussed above).

[82] I do not accept on the evidence that both Ms Grant represented the position as being a permanent position or that the Respondent (Ms Marshall in this case) acted to contract with the Applicant for a permanent position, and then (seemingly immediately after recruiting her on such a pretext) sought to disguise their actions so as to make the contract appear to have been one of a temporary nature (with an outer limit or a maximum term).

[83] Having heard the evidence in this matter, I do not consider that there is any inconsistency in the evidence of Ms Droy and Ms Marshall that it was established at the relevant time that the billings area into which the Applicant was recruited was subject to restructure and only temporary recruitment was sought and that both persons acted in consort to ensure that the position for which the Applicant was recruited was temporary one.

[84] I cannot accept the Applicant’s claims that Ms Marshall informed her that the position for which she was being interviewed was a permanent position. That claim is entirely inconsistent with the organisational milieu about which Ms Marshall and Ms Droy gave evidence. Ms Marshall’s evidence was also given ‘matter of fact’, and without uncertainty or confusion. Nor did the evidence of Ms Marshall, like that of Ms Droy, give rise to any suggestion concoction or of a concealed purpose. Indeed, Ms Marshall’s evidence, which was uncontested, that she made efforts to assist the Applicant to find other duties did not suggest an ulterior motive was afoot, in any event.

[85] Generally speaking, I have accepted Ms Marshall’s evidence as being authentic. I cannot discern any alternative motivation which would have influenced her conduct and I find that her narrative of events is internally consistent. There is further discussion of the last mentioned matter below.

[86] There is potential, on the evidence, for Ms Grant to have mistakenly represented the position for which the Applicant was recruited. One reason, which I have touched upon above in passing, is that Ms Grant recruited the Applicant to replace a permanent employee who had resigned, Ms Belinda Clatworthy.⁴⁹

[87] But to accept that contention would require me to conclude that Ms Grant lied under oath that she informed the Applicant three times (twice verbally and once in writing) that the position was a temporary position.

[88] The likelihood of this situation is not attractive to me on the evidence. This is because Ms Droy gave evidence that she had informed Ms Grant that for reasons of the restructure of the Billings area, recruitment must be on a temporary basis only.⁵⁰ Ms Grant would therefore need to have ignored or forgotten about this direction from Ms Droy, through whom she has a commercial relationship with the Respondent, or perhaps concealed the term of the position in order to ensure that she was able to successfully recruit the Applicant without delay. Neither alternative construction (which I have surmised as being potentially available) is credible.

[89] Ms Grant’s evidence, of course, was that she was aware at all times that she was only to recruit for temporary assignments and that her reference in any conversation with the Applicant to Belinda Clatworthy, it appears, was for reason only of creating a reference in the Applicant’s mind of the duties she would be fulfilling.

[90] Ms Grant also went on to create at the time the Applicant was referred to Ms Marshall for interview an interview form, which stipulated that the position was for a 12 month period only.

[91] The Applicant challenged this form and claimed that there was evidence that it was fabricated or could have been fabricated. There is no such serious challenge in my view. Ms Grant’s evidence was unequivocal on this point. I have also discussed this matter above.

[92] The Applicant, as I noted above, claimed that the interview form that she was given by Ms Grant stated the position was permanent. The Applicant was not able to produce that interview form.

[93] On the balance of probability, I am of the view that Ms Grant responded to the direction of Ms Droy, recruited the Applicant for a temporary position, informed her that the position would enable her to get her “foot in the door” and provided her with an interview form to the same effect. It would appear that on receipt of the placement correspondence, the Applicant took a different view going forward from that time as to the basis of the position on which she had been recruited.

[94] It seems to me on the evidence that I have heard that this is a compelling narrative of the events. It is also interlocking as it reflects the evidence of Ms Droy (that she had directed Ms Grant not to recruit any permanent employees at the relevant time) and the evidence of Ms Droy and Ms Marshall that the billings areas were being restructured, staffing levels and positions were uncertain and positions were not being filled on a permanent basis at the relevant time.

[95] In any event, Ms Grant’s conduct in its own right in relation to this matter is not directly relevant to the jurisdictional objection that is before me. Ms Grant did not act as the Respondent’s agent in representing the offer of employment to the Applicant, and there seems to me to be no reason that would cause the Respondent to be bound by the representations of an unauthorised third party. The plain words of the placement letters cited above indicate above that the Applicant was contracting with the Respondent and not through her.

[96] Does the conduct of the Respondent demonstrate that it represented to the Applicant that the position was a permanent position?

[97] I have already found above that given the organisational circumstances at the time the Respondent itself would have had no motivation to represent the position as a permanent position.

[98] The conduct of Ms Marshall is consistent with this conclusion.

[99] Ms Marshall gave evidence of her knowledge of the inability of the Respondent to accommodate permanent employment at the time of the Applicant’s recruitment owing to the centralisation of the billings teams.

[100] After the interview and the Applicant’s acceptance of the position, Ms Marshall created a Joining Notification that stipulated that the position was for 12 months and was to replace another employee on maternity leave.

[101] It strikes me as improbable that Ms Marshall would represent the position as being permanent (as the Applicant states she did) and then (effectively) immediately generate a Joining Notification that is describes the position as being for 12 months.

[102] There is no serious argument that the Joining Notification is not a genuine document.

[103] The Joining Notification (specifying that the position was for 12 months) was approved, on 2 September 2008, by Ms Droy.⁵¹

[104] The HR Department’s team, after clarifying some matters including the precise date on which the Applicant’s employment would end, subsequently generated a letter of offer and included the same in two employment collection packages, one which was left at the HR Department’s reception and the other which was mailed to Ms Grant (who subsequently delivered it personally to the Applicant on 15 September 2008).⁵²

[105] The quality assurance process described by Ms Young (which I have discussed above in which the letter of offer was generated by one HR advisor and checked by another) gives me reason on conclude that on the balance of probability that the Respondent indeed generated that letter from the (clarified) Joining Notification (which stipulated that the Applicant was employed for 12 months) and that this was placed in the standard commencement package provided to the Applicant.

[106] I am further satisfied, on Ms Young’s evidence that two employment packages were made available to the Applicant: one left at the HR Department’s reception and the other provided to the Applicant at her home address by Ms Grant on 15 September 2008. The HR Department’s database records a notation to this effect.

[107] I am also satisfied that this offer of employment was the offer of employment that was retained on the HR Department’s document management system, a copy of which was provided to the Applicant in August 2009.

[108] It appears to me that on the balance of probability that the Applicant received one or both these commencement packages, and that these included a copy her employment contract, which stipulated the end date of her employment. The standard operating procedures of the Respondent seem to me to have been programmatic in this regard and I have no reason to believe they were not applied as they ordinarily are in this instance. The quality assurance notations in relation to actions in providing the commencement packages to the Applicant are recorded in the HR database.

[109] Further, the Applicant was informed by the placement correspondence provided to her by Ms Grant that she was to obtain an employment contract from the Respondent. It appears somewhat at odds with the Applicant’s general disposition, and the attention that she gave to the placement correspondence, to have been inclined to have overlooked that critical document when the Respondent’s obligation to provide the same was made clear to her (though the Applicant claimed to have been disinterested in such matters).

[110] The Respondent contends further that the Applicant was in possession of the employment package(s) and that is how she sourced her Tax Declaration File form and her Personal Details form and returned them to the HR Department’s Help Desk. Given the persuasive account of Ms Young as to the protocols which regulate the handling of commencement materials at the Help Desk, this construction of events is highly prospective.

[111] Generally speaking, as I have explained above, I have accepted the interlocking evidence of Ms Droy, Ms Marshall and Ms Grant that at the time of the recruitment of the Applicant, that:

• the Respondent was undergoing organisational changes that precluded permanent employment;



• Ms Grant was directed and acknowledged being directed to recruit an employee for a 12 month duration only;



• Ms Grant created and gave to the Applicant an interview form that described the position as being for 12 months;



• Ms Grant subsequently erred on her own part in preparing the placement correspondence that described the position as being a permanent position (albeit the same document stating that this letter was not an employment contract and the Applicant should expect an employment contract from the Respondent);



• two employment packages were generated for the Applicant which included a copy of her letter of offer (which stipulated the position was for a 12 month period);



• the Applicant, on the balance of probability, was in receipt of the commencement package(s) both or either by receiving a copy hand delivered to her address by Ms Grant or by picking up a copy at the HR Department’s reception; and



• the employment packages ordinarily contained the letter of offer or employment contract (which was consistent with the Joining Notification and represented the position as having an end date at 4 September 2009).

[112] In my view, on the balance of probability having heard the evidence in this matter, it appears to me but for Ms Grant’s inadvertent error in the heading of the placement correspondence after the Applicant had advised that she would accept the position, at all other times (before and afterwards) the position was represented by the Respondent and Ms Grant to the Applicant as a contract for a temporary period of 12 months.

[113] I do not accept the Applicant’s version of the factual matrix. For reasons given above, it requires me to accept not only that the evidence and the interlocking narratives to which it gave rise was falsified (in a context where the witnesses for the Respondent gave evidence with a high degree of authenticity), but that and related documents (the computer generated interview form, Joining Notification and letter of employment created on the basis of the Joining Notification) have themselves all been falsified in various ways.

[114] Such findings cannot be substantiated on the evidence I have explored.

CONCLUSION

[115] In view of the above discussion, I uphold the jurisdictional objection and find that the contract of employment (along with the employment relationship itself) between the Applicant and the Respondent was one which was terminated for reasons of the operation of a contractual term. That is, the contract between the parties was for a maximum term or for an outer limit (of 12 months).

[116] Consequently, the contract terminated through the effluxion of time and there was no termination of employment at the initiative of the employer.

[117] The application for relief by the Applicant under s.394 of the FW Act is therefore also dismissed, as a consequence.

SENIOR DEPUTY PRESIDENT

Appearances:

Mrs. S. Idanan for herself

Ms. J. Urquhart for the Respondent

Hearing details:

2010.
Brisbane.
May 20, 21 and 24.

¹ Appeal by NT Department of Justice against decision of Whelan C of 19 May 2006 [PR972497] – Re: Lunn, Lawler VP, Harrison SDP, Raffaelli C, 27 November 2006 [PR974185] at PN 9-10

² Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 8

³ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 7(g)

⁴ Transcript of Proceedings dated 21 May 2010 at PNS 1632-1646

⁵ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 9

⁶ Transcript of Proceedings dated 21 May 2010 at PN 1556-1561

⁷ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 10

⁸ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PNS 11-12

⁹ Transcript of Proceedings dated 21 May 2010 at PNS 1596-1601

¹⁰ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PNS 17-18

¹¹ Amended Application for Unfair Dismissal dated 19 April 2010 at PNS 29-32

¹² Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 19-20

¹³ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 21

¹⁴ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 26

¹⁵ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 27

¹⁶ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 27

¹⁷ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 28

¹⁸ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 30

¹⁹ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 32

²⁰ Witness Statement of Mrs Sharon Flores Idanan sworn 10 May 2010 at PN 34 (a)-(i)

²¹ Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PN 5(d); Affidavit of Ms Rachael Droy sworn on 23 March 2010 at PN 6

²² Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PN 6

²³ Respondent’s Amended Response to the Applicant’s Application dated 14 May 2010 at PN 2; Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PN 7; Affidavit of Ms Christine Marshall sworn 9 March 2010 at PNS 7-8; Affidavit of Ms Rachael Droy sworn on 23 March 2010 at PNS 7-8

²⁴ Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PN 10

²⁵ Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PN 10; Transcript of Proceedings dated 20 May 2010 at PN 229

²⁶ Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PN 15

²⁷ Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PN 17 and Attachment 1

²⁸ Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PNS 17-18 and Attachment 2

²⁹ Transcript of Proceedings dated 20 May 2010 at PN 474

³⁰ Transcript of Proceedings dated 20 May 2010 at PNS 236-237

³¹ Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PNS 22-23

³² Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PNS 24-25; Exhibit IP 4

³³ Amended Affidavit of Ms Shona Grant sworn 19 May 2010 at PN 15

³⁴ Transcript of Proceedings dated 20 May 2010 at PNS 253, 257, 348 – 351 and Exhibit M3

³⁵ Affidavit of Ms Christine Marshall sworn 9 March 2010 at PN 14

³⁶ Affidavit of Ms Christine Marshall sworn 9 March 2010 at PN 15

³⁷ Affidavit of Ms Christine Marshall sworn 9 March 2010 at PN 19

³⁸ Affidavit of Ms Christine Marshall sworn 9 March 2010 at PNS 23-24 and Attachments 2 and 3; Affidavit of Ms Rachael Droy sworn on 23 March 2010 at PNS 12-13

³⁹ Affidavit of Ms Christine Marshall sworn 9 March 2010 at PN 22 and see Attachment 1; Affidavit of Ms Rachael Droy sworn on 23 March 2010 at PN 11

⁴⁰ Affidavit of Ms Christine Marshall sworn 9 March 2010 at PN 34

⁴¹ Affidavit of Ms Christine Marshall sworn 9 March 2010 at PN 34

⁴² Affidavit of Ms Lona Young sworn on 12 March 2010 at PNS 6-7

⁴³ Affidavit of Ms Lona Young sworn on 12 March 2010 at PNS 11 and 21

⁴⁴ Affidavit of Ms Lona Young sworn on 12 March 2010 at PNS 16-22

⁴⁵ Affidavit of Ms Lona Young sworn on 12 March 2010 at Attachment 2

 46   Affidavit of Ms Lona Young sworn on 12 March 2010 at Attachment 2

⁴⁷ Transcript of Proceedings dated 21 May 2010 at PNS 1094-1096

⁴⁸ Transcript of Proceedings dated 21 May 2010 at PNS 1750-1761

⁴⁹ Transcript of Proceedings dated 20 May 2010 at PNS 474, 553-554

⁵⁰ Transcript of Proceedings dated 20 May 2010 at PNS 84-89, 118

⁵¹ Transcript of Proceedings dated 20 May 2010 at PN 168

⁵² Transcript of Proceedings dated 20 May 2010 at PNS 253-262

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<Price code {C}, PR997523>