Mukhwana v Victoria University of Technology

[1996] IRCA 458

DECISION NO: 458/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5321 of 1995

B E T W E E N:

Julius Wangila MUKHWANA
Applicant

A N D

VICTORIA UNIVERSITY OF TECHNOLOGY
Respondent

REASONS FOR DECISION

30  August  1996     PARKINSON JR

This is an application made pursuant to S170EA of the Industrial Relations Act, 1988. The applicant was employed by the respondent as a Lecturer at the Victoria University of Technology, St Albans Campus. The applicant holds a masters degree in economics together with a number of other post graduate qualifications and research projects and was at the time of trial, completing his Ph.d.

The applicant was initially employed by the Western Institute of Technology and as a result of amalgamation between the Western Institute and Footscray Institute of Technology, the Victoria University of Technology was created. As a consequence of this amalgamation the applicant became an employee of the respondent. There is no dispute as to the continuity of the employment, nor as to the continuance of the employment with the respondent after amalgamation. Integration of the entire activities of the amalgamated body, including staffing policy and administration, took place gradually over the period 1991 to 1993 and in some respects continued beyond that period.

The applicant commenced employment with Western Institute on 27 February, 1991 upon a fixed term contract for a short period as a Lecturer 1 (Level B) to 23 July, 1991.  In that capacity he was engaged to perform lecturing and research duties in the marketing department of the economics faculty.  He was offered a further contract position for the period 24 July, 1991 to 23 July, 1992, which he accepted (“the 1991-1992 agreement”). This offer was in writing and was Exhibit A5 in the proceeding. It was a term of this agreement that at the expiration of the specified period the employment would terminate. Whilst the 1991-1992 agreement provided that the terms of the relevant industrial Awards would provide for the applicant’s conditions of employment, those provisions were stated by the terms of the agreement, not to affect the duration of the employment.

On 30 June, 1992, the applicant’s contract was extended by an agreement for the period 24 July, 1992 to 23 July 1993 (“the 1992-1993 agreement”). In that letter of extension there was no reference to employment terminating at the expiration of the term of the contract. The applicant accepted that extension of the term of his contract by letter dated 24 July, 1992. (Exhibit A9) He also sought by that letter to have a review of the salary grade applied to his position. 

In around early 1993 it became apparent to the Vice-Chancellor of the university, that during the course of the amalgamation implementation,  there had been some discussions within the Western Institute as to the future of non-tenured staff arising from the amalgamation.  As a consequence of these discussions, the applicant and various other employees of the Western Institute believed that representations were made to them by senior management, as to the continuance of their employment beyond the date of their existing contracts, in the applicant’s case that was beyond the expiration of the term of the 1992-1993 agreement. As a consequence of these representations, the Vice-Chancellor of the amalgamated body, the Victoria University, acted to extend the contracts of a number of employees, in the terms of the representations he was satisfied had been made to them.

In the applicant’s case this act was to result in an offer of an additional fixed term 2 year contract. In correspondence dated 15 July, 1993 the Vice-Chancellor approved the extension of the applicant’s contract for 2 years on a fixed term basis. This offer was made in writing to the applicant by letter dated 27 July, 1993. (Exhibit A1) The applicant was by this agreement engaged on a new fixed term contract for a period of 2 years to expire on 23 July, 1995. (“the 1993-1995 agreement”) This extension was made on the basis that the Vice-Chancellor understood the undertaking given to the applicant as being one whereby the term of his fixed term appointment would be extended.

One of the terms of the 1993-1995 agreement was that at the expiration of the term of the agreement the position would be advertised. The applicant accepted this agreement and returned signed terms to the respondent under cover of letter dated 18 October, 1993 (Exhibit A12).  In that correspondence, whilst confirming his acceptance of the offer of a fixed term contract, the applicant raised his disappointment as to the salary level applicable to him and discussed his view of the representation made to him as to continuing employment. The applicant contended that the representation made by Professor Sharma was “that everything possible would be done to enable me to be tenured”. It is noted that the applicant did not suggest in his correspondence at this time that any actual guarantee as to future tenured employment had been given, nor is it suggested that there was an express representation that the employment would continue.

On 23 April, 1995 the applicant was reminded by the respondent that the term of the contract was to expire on 23 July, 1995 and advised that the position was to be advertised in the near future. The letter also advised as to the arrangements made for any entitlements and thanked the applicant for his contribution to the university. A position was then advertised as a tenured position and the applicant was an applicant for the tenured position within the university. He, together with others was interviewed for the position, the applicant’s interview taking place on 12 July, 1995. No decision as to appointment of any person had been made by 21 July, 1995.

On  21 July, 1995 the applicant contacted the joint course co-ordinators in his department to ascertain what his position was as his contract was to expire during the weekend, on 23 July, 1995. He was advised that as his contract had expired the employment had ceased and he was not required to attend at the university. He then contacted the office of the Head of Department who made arrangements in the circumstances to extend the contract to 25 August, 1995, in view of the impending decision as to the tenured appointment.

In about mid August, 1995, the applicant was notified that he was not successful in his application for the tenurable position and that the selection committee had decided not to appoint to the position at that time. On 15 August, 1995, the applicant lodged a complaint as to the selection process for the tenured position. As a consequence of this complaint, the university set in train  a process of investigation and the Deputy Vice-Chancellor wrote to the applicant on 28 August, 1995 to advise the applicant of this fact and in that correspondence further advised him “ that even though your appointment with the university has ended you will continue to enjoy the use of your office until I advise otherwise.”  There was no continuation or renewal of any employment on the part of the university by this act and this was made clear by the terms of the correspondence.  On 4 September, 1995 the applicant was informed by the respondent that the review process being completed, and there having been no irregularity in the selection process established, he was required to vacate his university premises. (Exhibit R6) The application in this court was filed on  18  October, 1995.

The applicant contends that his employment was terminated at the initiative of the employer by its failure to renew his contract of employment, or to appoint him to a tenured position at the university. The applicant contends that the termination occurred without valid reason and as a consequence of his race and that his employment was terminated harshly, unjustly and unreasonably.

The respondent contends that the employment ended as a consequence of the expiration of a fixed term contract and consequently there had been no termination of employment at the initiative of the employer, or alternatively, the applicant is precluded by S170CC and Regulation 30B from bringing the application. It further contended that the employment was not terminated for reason of or including reasons of the applicant’s race.

It is appropriate to first consider the jurisdiction issues raised by the respondent. The respondent relies upon the fixed term contracts as precluding the applicant from bringing these proceedings. I turn first to consider whether the employment falls within that class of employment excluded by operation of S170CC and Regulation 30B of the Act. The regulation provides as follows:

"30B (1) For the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of division 3 of Part VIA of the Act:

(a)subject to subregulation (2) employees engaged under a contract of employment for a specified period of time;

(b)... "

A useful analysis of the approach to be taken to the application of Regulation 30B is found in the decision of Northrop J. in Cooper v Darwin Rugby League (1995) 57 IR 238 where his honour states:
(page 241 )

“The clause headed "Notice of Termination" appears to give either party the right to terminate the employment on notice at any time during the three year period. This conclusion follows from the fact that the clause excludes termination in the case of misconduct where the employer terminates the employment "in accordance with the clause relating to the Employment Period in" the contract, but provides for termination of either party by notice. In the context, this must relate to notice given within the three year period. There is no reason to suggest that this clause is limited by implication to apply to any extension of the employment period after 10 December 1995. In my opinion, the contract of employment is for a specified time but can be terminated before the expiration of that period by either party on notice or by the respondent, as employer, for the misconduct of the applicant, as employee. On this construction of the contract of employment, the applicant is not a worker engaged under a contract of employment for a specified period of time within the meaning of paragraph 2 of Article 2 of the Termination of Employment Convention and thus is not excluded, for the purpose of S170CC of the Act, from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act. Of more importance generally is the fact that, even if the contract of employment was such a contract, the respondent, possibly, was not entitled to the immunity conferred by S177CC of the Act. One thing is clear. The employment of the applicant was terminated by the unilateral act of the respondent. The employment was not terminated by agreement of the employer and employee. It was not terminated by effluxion of the period of time specified in the contract of employment. In these circumstances, it is only fair that the issue of whether the termination was lawful or not depends upon all of the facts leading up to the unilateral termination of employment by the respondent. ”

I have adopted this approach in my consideration of this aspect of the proceeding. It is apparent from the facts set out earlier herein, that each of the contracts, provided for a fixed period of employment. Each of those contracts provided that the employment may be terminated by the applicant on one month’s notice and by the respondent pursuant to the provisions of the relevant industrial award, although it does not appear from the terms of the industrial award that there is any specific provision for termination of a fixed term contract contained therein and the award redundancy provisions are specifically excluded from operating in relation to any employee engaged upon a fixed term contract. It is settled law that if there is a provision for termination of the contract by notice at a time prior to the expiration of the term of the contract, then the contract is not for a fixed term in the sense contemplated by S170CC and Regulation 30B. There has been consideration of the meaning of the expression “fixed term contract” in a number of judgements in this court, including Cooper discussed earlier. It is apparent from these decisions that a contract which provides for its termination by means other than the expiration of the term of the contract is not a contract for a fixed term in the sense provided for by Regulation 30B of the Act. In this regard I have also had regard to  Anderson v Umbakumba Community Council (1994) 1 IRCR 457 and  D’Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 and Ferry v Minister for Health, Western Australia (1995) 64 IR 28.

I am satisfied that the applicant was not precluded from bringing this proceeding by operation of S17OCC and Regulation 30B of the Act. I am satisfied that the employment was not for a fixed term of the type excluded by that section or regulation. I turn now to consider whether there was a termination of the employment of the applicant at the initiative of the employer, this being the type of termination of employment contemplated by S170EA of the Act.

In this case I am not satisfied that there was a termination of employment at the initiative of the employer. I am of the opinion that the employment ceased as a consequence of the effluxion of time, in the sense described by his honour in Cooper.  Whilst there have been a number of cases where employment upon a series of short term contracts has been characterised as truly a “continuous employment relationship”, I view this criteria as being the starting point in determining whether there has been a termination of employment at the initiative of the employer. It has been the individual factual circumstances of the matters which caused them to be so characterised and this was the case in D’Lima where at page 25 his honour observed:

“I likewise reject the submission of Mr Hooker that the dismissal of Ms D’Lima was not a termination of employment at the initiative of the employer.  The fact of the matter was that Ms D’Lima was continuously employed from 18 June 1993 to 11 December 1994 on which latter date her employment was terminated by the hospital. The practice of signing further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the court to ignore the weight of strong counterveiling factors indicating a continuous employment relationship. Mr Hooker described the relationship as ‘relatively’ continuous. I find no basis for the use of the adjective ‘relatively’ in that context.      ”

It is clear in the present case that there has been a continuous employment relationship between the parties. However, in my view the existence of a continuous relationship is one of a number of factors relevant to determining whether there has been a termination of employment at the initiative of the employer and I do not understand his honour’s judgment in D’Lima to suggest otherwise. In my view other relevant factors include the expressed intention between the parties at the time of entering the employment arrangements and continuing them, what in fact the employment arrangements were, and what in practice occurred in relation to the employment. An additional and important factor is what expectation the parties had as to the continuance of the employment at or after the expiration of any term specified in the agreement. Having regard to these matters, I am not satisfied there was in this case a termination of employment at the initiative of the employer.

It was clear to the applicant in the terms of the employment entered between himself and the university, that the engagement was not a tenured position, nor was it tenurable, but rather what was known as a contract for a fixed term. The consequence of this is well known to the academic community and set out in the various academic awards and agreements tendered in the proceeding, as well as being set out in the various employment agreements signed by the applicant. The applicant knew that for the employment to continue it would be necessary for him to have his contract renewed, about which there was no representation as at the time of the 1993 agreement, or,  for him to be appointed to a tenured or tenurable position. The applicant also knew that these latter appointments were required, by the terms of industrial agreements between the academic staff unions and the university, to be advertised and open to general application. The applicant did in fact apply for the position when it was advertised in August, 1995. He also utilised the appeal processes available to him as a consequence of being unsuccessful in his application for appointment to a  tenured position. I do not accept that the representation alleged by the applicant as being made by Professor Sharma, constituted a basis for a reasonable expectation in the applicant that his employment would continue beyond the period specified in the 1993 agreement. At best it was a promise to try to achieve such an outcome. That promise must be construed as being subject to the known procedures operating in the university as to tenured appointments and ongoing employment. Whatever representation was made to the applicant in 1991 or 1992 as to extension of employment, whether in the terms suggested by the applicant,  or merely as accepted by the Vice-chancellor and met in the 1993 agreement, it was known to the parties that no guarantee could be made of tenured appointment because of the selection process required to be undertaken.   The applicant did not have any anticipation or expectation that the employment would continue at the expiration of the 1993-1995 agreement. This is evidenced by his own conduct in contacting the course co-ordinators to inquire as to what he was to do at the expiration of his contract and further by his accepting that an extension of his term was necessary before he was entitled to continue in the employment after the expiration of the 1993-1995 agreement.

It is note further that despite the description adopted by the parties in the proceedings that the applicant was not applying for a position which could be described as ‘his own position’, when he applied for the advertised position in July, 1995,  but rather a position different in character, in that it was tenured. The selection committee was not obliged to appoint any person to the advertised position and was entitled to leave the position vacant, which in the result was what occurred. The respondent in advertising the position and in employing the applicant on the terms contained in the fixed term contracts, was acting in conformity with the relevant industrial regulation and agreements. No tenured appointment was to be made without advertisement of the position. The applicant was on notice as to this in the terms of the written agreements and his own understanding of the process and procedure. This process is a matter which has no doubt been the subject of industrial regulation for a particular purpose. that is throwing open to all qualified persons the opportunity to apply for tenured and tenurable positions at the country’s tertiary institutions.  The applicant availed himself of the opportunity to apply for the position which was advertised after the expiration of his term. The position was tenured. It is in that sense not the same position as that to which he was appointed by the 1993 to 1995 agreement.  He was unsuccessful in his application. He was advised of this fact on around 17 August, 1995.  The applicant did not file the application with this court at the expiration of the 1993 - 1995 agreement, but filed the application after he knew the result of his application for appointment to the advertised position.

As to the process of selection, the validity of the reason given by  the respondent as to why the applicant was not appointed to the tenured position or why no appointment was made, was disputed by the applicant. However, whilst the validity of the reason for the employers conduct would be relevant in circumstances where the proceeding was within the jurisdiction of the court, in this case the action and conduct of the selection process was a matter which occurred subsequent to the cessation of the employment, and whilst appropriate for review in the context of the appeal processes applicable to selection processes, is not a matter which of itself this court may be concerned where it lacks jurisdiction to otherwise hear the claim.

In view of the above matters I am not satisfied that the applicant had an expectation of or entitlement to continued employment beyond the expiration of the term set out in the 1993-1995 agreement, as extended to August 25 1995. I am not satisfied that there were circumstances or practices in the employment which would provide a basis for finding this was so. Nor am I satisfied that the applicant was entitled to expect there would be a renewal of the employment contract or a further period of employment, in short there was no entitlement to ongoing employment with the respondent. There were no steps taken by the respondent to terminate the employment of the applicant prior to the specified period expiring, and the employment ceased as a result of the effluxion of the period set out in the agreement between the parties. That occurred at 25 August, 1995 when the agreed extended date of expiry of the 1993-1995 agreement was reached. I have concluded that there was no termination of the applicant’s employment at the initiative of the employer. The employment came to an end as a consequence of the expiration of the time set out in the agreement between the parties. Consequently this court has no jurisdiction to hear and determine the application.  The application is dismissed.

I certify that this and the preceding eleven (11) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate      : Paul Ferguson
Dated             : 30  August  1996

APPEARANCES

Counsel appearing for the applicant:                   Mr. P. Bingham
Solicitors for the applicant:  Lewis Hutchinson

Counsel appearing for the respondent:               Mr. F. Turner

Solicitor for the respondent:  Mr. Steven Stern

Dates of hearing:  26 April & 6 June 1996.

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5321 of 1996

B E T W E E N:

Julius Wangila MUKHWANA
Applicant

A N D

VICTORIAN UNIVERSITY OF TECHNOLOGY
Respondent

MINUTES OF ORDERS

30  August  1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court            Rules

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - JURISDICTION - whether TERMINATION at the initiative of the employer or end of SPECIFIED PERIOD CONTRACT - VALID REASON - HARSH, UNJUST OR UNREASONABLE - racial DISCRIMINATION

Industrial Relations Act 1988 - ss 170EA, 170CC
Industrial Relations Regulations - Regulation 30B

Anderson v Umbakumba Community Council (1994) 1 IRCR 457;
Cooper v Darwin Rugby League Inc. (1995) 57 IR 238;
Ferry v Minister for Health, Western Australia (1995) 64 IR 28;

D’Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19

JULIUS WANGILA MUKHWANA v VICTORIA UNIVERSITY OF TECHNOLOGY

VI 5321 of 1996

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  30  August  1996