Nimet Zeybek v University of Melbourne
[2024] FWC 1988
•26 JULY 2024
| [2024] FWC 1988 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nimet Zeybek
v
University Of Melbourne
(U2023/13051)
| COMMISSIONER PERICA | MELBOURNE, 26 JULY 2024 |
Application for an unfair dismissal remedy
On 23 December 2023, Ms. Nimet Zeybek made an application to the Fair Work Commission alleging she had been unfairly dismissed from her employment with the University of Melbourne (UniMelb). The remedy she seeks is compensation.
On 3 April 2024, the matter was heard by determinative conference in-person. Ms. Zeybek represented herself and gave evidence. UniMelb was represented by Mr. Bower, Director of Workplace Relations. Ms. Brooke Whyte, the Service Centre Team Lead in the Client Services Team within the Business Services Unit of UniMelb, gave evidence for UniMelb.
For the reasons that follow, I find:
Ms. Zeybek was not dismissed as required by s 385(a). Her employment was not terminated at the initiative of UniMelb. Her employment was terminated by the expiration of the maximum term of her last employment contract; and
Ms. Zeybek could not have had a reasonable expectation of continuing employment under s 384(2) and therefore she did not meet the minimum employment period required by s 382(a).
The Application is therefore dismissed.
BACKGROUND FACTS
Ms. Zeybek was employed by UniMelb as a casual service centre consultant in the Client Services Team from 28 March 2022 until 22 December 2023. Her role involved interacting with UniMelb staff concerning human resources and financial issues arising out of their employment.
The four contracts
Ms. Zeybek was employed under four separate maximum term contracts: the first for the period 28 March 2022 to 7 October 2022;[1] the second for the period 8 October 2022 to 7 April 2023;[2] and the third for the period 8 April 2023 to 6 October 2023.[3] The letter of offer for the fourth contract was expressed as “casual employment with UniMelb to be scheduled from time to time throughout the period of engagement” (hereon referred to as the Fourth Contract). The period of engagement was from 7 October 2023 to 22 December 2023.[4]
The terms of the letter of offer of the Fourth Contract included the following:
“I am pleased to offer you casual employment with the University of Melbourne (University) to be scheduled from time to time throughout the period from 07/10/2023 to 22/12/2023 (Period of Engagement).
CASUAL ENGAGEMENT DETAILS
The University anticipates that it will have casual hours of work to offer you throughout the Period of Engagement. By accepting this offer you confirm that you will be available for casual employment with the University as outlined below.
The Period of Engagement provides a timeframe in which casual hours of employment might be offered by the University. As a casual employee you will be employed by the University on an hourly basis, as scheduled by the University from time to time throughout the Engagement Period, and where continuing hours of work are not guaranteed.
The duration of the Period of Engagement and anticipated categories of work specified in this offer of casual employment are indicative only.
Employment with the University ceases at the end date of the Period of Engagement unless otherwise ended earlier by the University. The University is under no obligation, does not guarantee, nor make any representation that it will offer employment to you beyond the Period of Engagement.
…
Termination
The anticipated end date and anticipated number of hours specified in this offer of casual employment is subject to change at the University's discretion. The University is under no obligation and does not guarantee or make any representation that it will offer employment to you up to the Anticipated End Date, or for all of the anticipated hours referred to above. This casual contract of employment is subject to termination without notice.”
It is not contested Ms. Zeybek accepted this offer and commenced working under the terms of the Fourth Contract.
October 2023 call for expressions of interest for ongoing employment
Ms. White gave evidence around “late 2023” the volume of tasks coming into the Client Services Team created a need for new positions to manage the work on an ongoing basis.[5] This process aligned with the project across UniMelb to reduce reliance on casual employees.[6]
On 9 October 2023, Ms. White sent an email seeking expressions of interest by 13 October 2023 for continuing and fixed term Service Delivery Consultant positions and attached a position description. Ms. Zeybek’s work email address was included within that email list.[7]
On 17 October 2023, Ms. Zeybek sent Ms. Whyte an email which read:[8]
“Dulara just told me that the roles for Continuing/Fixed-term were advertised and closed on the 13th! I did not receive/see that email so I haven’t applied!! Is there any way I can still apply or is it closed for good?”
On 18 October 2023, Ms. White replied to Ms. Zeybek:
“Did you not receive the email? … I checked and saw you are subscribed to the email. If you are not receiving these emails we will need to raise this with IT asap.
I know we have previously discussed but wanted to mention again they will be full time positions.
If you are interested in applying please send through your resume and expression of interest by COB today 18/20/23 and I will schedule an interview with yourself.”
Ms. Zeybek did not send Ms. Whyte an expression of interest and did not say anything further about wishing to apply for the positions.
Ms. Zeybek explains her failure to apply for the ongoing positions in her submissions of fact which were received into evidence.
Ms. Zeybek “does not disagree that she had an opportunity to apply for one of the continuing roles and failed to do so”.[9] She explains: “…I failed to receive the initial email advertising the roles internally. I had issues with my university email in not receiving certain correspondence, to which Ms. Whyte had previously known”.[10]
Ms. Zeybek’s evidence was she had emailed Ms. Whyte asking for another opportunity to apply for one of those roles to which she granted. She “had reached out to Ms. Whyte on 17 October 2023 regarding this and Ms. Whyte did not respond to me until the 18th”. She explained that on 18th October, she “began the work day as normal but had to leave early due to immense pains caused by a menstrual cycle. Ms. Whyte and Ms. Kim Adie were both informed of this reason, and I was given permission to log off for the day. Ms. Whyte responded to my email from the day before after I had already logged off for the day, asking me to submit all my documents before COB same day”.[11]
Ms. Zeybek contends “it is unreasonable for Ms. Whyte, to expect any of her staff members to be viewing and responding to emails on their days off”. She continues: “Therefore, it was impossible for me to know that she had responded to me and it is unreasonable, especially since Ms. Whyte [was] aware of the reasoning behind logging off early, to expect her staff, in agony, to view and/or respond to any emails sent on days off.”[12]
Ms. Whyte gave evidence that, in mid-November 2023, four internal casual employees were appointed to the positions. Three were employed on a continuing basis and one on a fixed term contract to backfill a seconded employee. The four successful candidates were all from the internal casual pool, like Ms. Zeybek.[13]
End of Ms. Zeybek’s casual employment
Ms. Whyte’s evidence on the reasons why Ms. Zeybek’s contract was not renewed was that “while it remained necessary to engage some casual employees in the role of Service Centre Consultant, the total number of casual employees required in the role reduced because of the successful ongoing appointments”. She explains that “the head count was reduced by two, as there were only three continuing roles created”.
On 11 December 2023, Ms. Whyte met with Ms. Zeybek by Zoom and confirmed that no further casual employment would be offered and that her employment would end on the date set out in the Fourth Contract on 22 December 2023.
At the hearing, Ms. Zeybek was cross examined about the Zoom meeting 11 December 2023:[14]
Martin Bower
So, Ms. Zeybek, notwithstanding your views about the rolling contracts you had a discussion with Ms. Whyte on 11 December; is that right?
Nimet Zeybek
Yes.
Martin Bower
In which she confirmed that the contract would not be renewed?
Nimet Zeybek
Yes.
Martin Bower
So why did you feel you had an ongoing expectation of employment after that conversation?
Nimet Zeybek
I did not have an expectation after that conversation, especially after the 12th when I had received more information in writing, because on the 11th it was very broad and I was not given a real like explanation of why the contract was not being renewed.
Martin Bower
Okay. So on the 12th you say you were given an explanation and you understood that there would be no further work after 22 December?
Nimet Zeybek
Yes.
At 9:03 AM on 12 December 2023, Ms. Zeybek sent an e-mail to Ms. Whyte:
“Yesterday I was pretty distraught, for obvious reasons, and so I still do not understand the reason why my contract is not being renewed. It would be appreciated if you could just pop in writing why, for my understanding.”
At 5:22 PM on the same day, Ms. Whyte responded:
“I am sorry we didn’t get a chance to discuss this further in depth during our catch up. As mentioned, the requirement for casual rostered shifts in 2024 has reduced because of the successful continuing appointments across the team.
During the later part of this year, we opened an expression of interest for continuing Service Centre consultant roles within our team in which you were able to apply for. On your request I also extended a submission deadline for you to apply.
Upon completion of the process, I appointed the successful candidates."
As we had discussed please reach out should you require any support or assistance during this time.”
Ms. Zeybek’s employment at UniMelb ceased on 22 December 2023.
Relevant Law
Dismissal at the initiative of the employer and contracts for a specified period
Before I can determine whether Ms. Zeybek has been “unfairly dismissed”, I must be satisfied that she has been “dismissed” under s 385(a). Under s 386(1), a person is dismissed if the person’s employment has “terminated at the initiative of the employer”. However, under s 386(2)(a), a person is not dismissed if the person is employed under a contract of employment for a specified period of time and the employment is terminated at the end of the period.
Minimum employment period
Section 382 provides that a person is protected from unfair dismissal if the employee has completed a period of employment with her employer of “at least the minimum employment period”.
As UniMelb is not a small business under s 383, the minimum employment period is 6 months.
Ms. Zeybek was a casual employee. The term of the Fourth Contract was for a period of two months and fifteen days. Under s 384(2), her employment does not count towards her “period of employment” unless she was employed as a “regular casual employee” and during the period of service Ms. Zeybek had a “reasonable expectation of continuing employment by the employer on a regular and systematic basis”.
Was Ms. Zeybek dismissed at the initiative of UniMelb?
Ms. Zeybek argues that the cessation of her employment on 22 December 2023 was initiated by UniMelb.
UniMelb relies on a number of arguments why the ending of the Fourth Contract at the expiration of its maximum term should not be regarded as a termination at the initiative of the employer under s 386(1):
“• Ms. Zeybek was not dismissed at the University's initiative because the Fourth Contract naturally expired on 22 December 2023, thereby ending the employment relationship between the Applicant and the University. There was no action by the University that either intended to bring the employment relationship to an end or had that probable result.
· The Fourth Contract is a maximum-term casual contract. There is no inconsistency between casual employment and a maximum term contract. The Fourth Contract reflects a genuine agreement between the University and the Applicant that the employment would end on the End Date. The leading case of Khayam[15] indicates that where there is such genuine agreement, and in the absence of vitiating factors, dismissal at the End Date will not be at the employer's initiative.
· None of the vitiating factors described in Khayam exist The use of successive maximum-term casual contracts by UniMelb did not reflect the use of standard-form contracts used for merely administrative convenience. UniMelb used successive six-month casual contracts because the Client Services team was in a state of flux, with new work being absorbed into the team as part of the evolving service delivery model. UniMelb conducted six-monthly reviews of work absorption and resources required, with casual contracts offered in line with that planning cycle. At the end of 2023, the University concluded that the workflow justified the creation of new continuing positions.
· UniMelb made no representation to Ms. Zeybek that following the end of the Fourth Contract, there would be another. There was no broken promise of future work. There is no evidence that the agreement to end the employment relationship on 22 December 2023 was not genuine.
· In Drakoulis v. TAFE Online,[16] Commissioner Johns accepted that the expiry of a casual contract with an anticipated expiry date was not at the employer's initiative. In its decision regarding Ms. Drakoulis' unsuccessful appeal, the Full Bench noted that the terms of the particular casual contract included an "anticipated expiry date" but also provided that employment would end when the employee was notified she would not be offered further hours of work. The Full Bench said that it would have regard to all the terms of the contract to assess whether an employment relationship ended on an "anticipated expiry date" by operation of the contract.
· By contrast with the terms. of the contract in Drakoulis, the Fourth Contract very clearly states that “Employment with the University ceases at the end date of the Period of Engagement unless otherwise ended earlier by the University”. The Commission should find that the terms of the Fourth Contract demonstrate that the employment relationship between the parties ended on the End Date by operation of the Contract.”
It also relied on an alternative argument in relation to s 386(2)(a) that I should not follow the Full Bench decision in Khayam and find that a maximum term contract is not a contract “for a specified period of time”. This argument relies on adopting obiter statements of Justice Raper in the Federal Court in Alouani-Roby v. National Rugby League Ltd.[17]
Consideration
Khayam is the principal authority on whether the failure to renew a maximum term contract is a dismissal for the purposes of s 386. It stands for the proposition that a maximum term contract is not a “contract of employment for a specified time” under s 386(2)(a). I see no reason to depart from that decision and therefore reject the alternative argument of UniMelb in relation to s 386(2)(a).
The Full Bench in Khayam did not decide whether Mr. Khayam was dismissed “on the employers’s initiative” within the meaning of s 386(1)(a). That matter was referred back to Commissioner Hunt. In the course of its decision, the Full Bench provided an interpretation of s 386(1)(a) based on its analysis of relevant case law. At paragraph [75] subparagraph (4), the Bench stated (with emphasis added and excluding case names):
“Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:
…
(4)Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor , 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. However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.”
The relevant “vitiating factors” referred to in that paragraph include:
· 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 a consideration relevant to an examination of the employer’s purpose for entering into such contracts;
· The employment contract may not be limited to the terms of a written document. It may 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; and
· During the term of the employment relationship, the employer may have engaged in conduct or made representations 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
It is clear the Full Bench in Khayam considered a maximum term contract could be a genuine agreement that the employment relationship will not continue after a specified date, and that the employment relationship comes to an end on that date. In those circumstances (and absent one of the “vitiating factors”), the employment relationship will have terminated by reason of the agreement and there will be no termination at the initiative of the employer.
Was there a genuine agreement here?
The terms of the Fourth Contract which Ms. Zeybek accepted two months and fifteen days before the expiration of the maximum term are pellucidly clear and unequivocal. The “employment would end at the end date of the period of engagement”, which was 7 October 2023 until 22 December 2023. It also clearly states that UniMelb is under “no obligation and does not guarantee, nor make any representation that it will offer employment beyond the period of engagement”.
Ms. Zeybek does not dispute that she accepted these terms. Following Khayam, unless there are vitiating circumstances the effect of those terms is that the contract terminated according to its terms and therefore there was no termination at the initiative of UniMelb.
Are there vitiating circumstances?
I accept the evidence of Ms. Whyte (which was not contested by Ms. Zeybek) that the reason Ms. Zeybek was offered casual employment for six-month periods was because of an ongoing review of work coming into the client services team. Reviews of the required resources occurred every six months. Casual contracts were offered in line with the planning cycle where it was determined there was a need for casual resources.[18] I consider the use of maximum term contracts was appropriate in the relevant field of employment and was not merely for administrative convenience. There were appropriate reasons why the contracts were used.
Ms. Zeybek relies on “past practice and custom’ to argue that the renewal of her maximum term contract three times established “a pattern of behaviour that created a legitimate expectation on my part that my contract would be renewed”. She also relies on “explicit and implicit assurances and representations regarding renewal” of her contract.
I do not consider Ms. Zeybek’s expectation that she would be offered a new contract on the basis that she had been offered three previous contracts is sufficient as a “representation” that her contract would be renewed.
Ms. Zeybek provides no evidence of explicit representations that another contract would be offered to her. The evidence before me establishes the opposite. She was informed on 11 and 12 December 2023 that her contract would not be renewed. This is well before the maximum term expired on 22 December 2023.
Finding
I accept that on or about 7 October 2023, Ms. Zeybek entered into a genuine agreement which included an express term that her contract would expire on 22 December 2023. There were no vitiating circumstances that affected the genuineness of the agreement she had reached.
In those circumstances, applying the test in Khayam, I consider the termination of her employment was not initiated by the employer. It merely expired according to the terms of her contract of employment. It follows she was not “dismissed” as defined by s 386 and required under s 385(a).
Did Ms. Zeybek have a “reasonable expectation of continuing employment” and meet the minimum employment period?
If I am wrong in finding that Ms. Zeybek was not dismissed, I must consider whether or not she had a “reasonable expectation of continuing employment” under s 384(2) for the purpose of determining whether she had been employed for the minimum employment period as defined by s 3s84 and 385 and as required by s 382(a).
The period of her last contract was two months and 15 days - well short of the minimum employment period of six months. As a casual employee, her total period of employment with UniMelb under the successive contracts will only count if, during the period of her employment, she had a “reasonable expectation of continuing employment on a regular and systematic basis” under s 384(2).
Ms. Zeybek’s arguments
Ms. Zeybek argues that despite the length of the maximum term of the Fourth Contract, she has a “reasonable expectation of continuing employment”. She makes a series of arguments why she had a “reasonable expectation of continuing employment”:[19]
· Ms. Zeybek’s employment contract had been “consistently renewed without fail. This established pattern of behaviour created a legitimate expectation on her part that her contract would be renewed for subsequent periods of employment”.
· Ms. Zeybek had “consistently demonstrated exemplary performance and conduct in my role, consistently meeting and exceeding performance expectations.” She explains: “My performance appraisals and feedback from supervisors have consistently reflected my dedication, reliability, and contribution to the success of the team and the organisation.”
· UniMelb had made “assurances and representations either explicitly or implicitly, regarding the renewal of my contract. Positive performance feedback and discussions about future plans within the organisation have all contributed to my reasonable expectation of contract renewal”.
· Ms. Zeybek had “relied on the expectation of contract renewal to my detriment, making financial commitments and turning down other employment opportunities based on the assurance of continued employment with the University of Melbourne. The sudden and unexpected non-renewal of my contract has therefore caused significant financial and emotional hardship”.
UniMelb’s arguments
UniMelb’s argument is that Ms. Zeybek could not have had a reasonable expectation of continued employment. It argues that:
· Ms. Zeybek “may have had a subjective expectation of continuing employment but that expectation was not reasonable”.
· The clear terms of the contracts take primacy over other factors including Ms. Zeybek’s own expectations. Each of her contracts (including the Fourth Contract) clearly provide UniMelb is under no obligation and does not guarantee or make any representation that it will offer employment beyond the end point of the contract.
· UniMelb made no representations to Ms. Zeybek that she would be offered a further employment contract after the Fourth Contract. She was not rostered to any shifts after the end date.
· Ms. Zeybek was aware of changes to the Client Services team workforce. She was invited to apply for a continuing position within the team such that she could not reasonably have anticipated that the University’s need for casual employment.
Consideration
Ms. Zeybek’s argument that she had an expectation that she would be offered a further contract because she was offered three continuous casual contracts previously could not have been reasonable in the circumstances in which the Fourth Contract came to an end:
· In October, just over two months before her employment ceased, Ms. Zeybek had entered into a contract which included a clear and express terms that “Employment with the University ceases at the end date of the Period of Engagement unless otherwise ended earlier by the University. The University is under no obligation, does not guarantee, nor make any representation that it will offer employment to you beyond the Period of Engagement”.
· She was informed by Ms. Whyte on 11 December 2023, 11 days before the end of the contract period, that “no further casual employment would be offered, and her employment would end on 22 December 2023”.
· On 12 December 2023, she asked for an explanation “why my contract is not being renewed”. Later that day Ms. Whyte replied by e-mail with an explanation.
· In cross examination, Ms. Zeybek conceded that at the meeting on 11 December 2023, Ms. Whyte “confirmed her contract would not be renewed” and that “she did not have an expectation of employment after that conversation”; she added, “Especially after the 12th December when I received more information in writing.”
Ms. Zeybek argues she had explicit or implicit assurances and representations regarding the renewal of her contract. Other than an implication arising from the fact that she had her contracts renewed on three earlier occasions there is no evidence before me of any assurances or representations that the Fourth Contract would be renewed. I accept the evidence of UniMelb that there were none.
The evidence shows to the contrary, Ms. Zeybek was explicitly told orally on 11 December 2023 and in writing on 12 December 2023 that her contract would not be renewed. Further, Ms. Zeybek herself concedes that by 12 December 2023 she knew the Fourth Contract would not be renewed.
CONCLUSION
Ms. Zeybek presents as an intelligent and competent person. I accept that during her employment with UniMelb her work was often praised. Through a series of unfortunate events, in October 2023 she missed the chance of securing ongoing employment when she failed to reply to the expressions of interest for those positions. Had Ms. Zeybek applied she may have continued to be employed at UniMelb.
None of those facts change my decision that her application fails for want of jurisdiction on the following bases:
· She was not dismissed. Her employment was not terminated at the initiative of the employer as required by s 385(a). Her employment was terminated by the expiration of the maximum term in the Fourth Contract; and
· She could not have had a reasonable expectation of continuing employment under s 384(2) and therefore she did not meet the minimum employment period required by s 382(a).
The application in this matter is therefore dismissed.[20]
COMMISSIONER
Appearances:
Ms. Nimet Zeybek, the Applicant, for herself
Mr. Martin Bower for the Respondent
Hearing details:
3 April 2024
Melbourne
[1] DCB at 42-48.
[2] DCB at 49-55.
[3] DCB at 56-59.
[4] DCB at 60-63.
[5] DCB at 40.
[6] PN202 – submission of fact made by Mr. Bower.
[7] DCB at 40.
[8] Ibid.
[9] DCB at 14.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] DCB at 40.
[14] PN123 to PN126.
[15] Khayam v. Navitas English Pty Ltd trading as Navitas English [2017] FWCFB 5612.
[16] [2022] FWCFB 127.
[17] [2024] FCA 12.
[18] DCB at 14.
[19] DCB at 12.
[20] PR777578.
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