Scherbakova v RMIT University

[1996] IRCA 534

DECISION NO:534/96

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether applicant excluded from operation of Div 3 of Part VIA of Industrial Relations Act - whether applicant employed pursuant to SPECIFIED PERIOD CONTRACT

Industrial Relations Act 1988 ss 170EA
Industial Relations Court Rules  o 20 r 2(1)(a), o 74 r 3

No. VI 5403R of 1995

SVETA MARY SCHERBAKOVA v RMIT UNIVERSITY

JUDGE:    Marshall J
PLACE:    Melbourne
DATE:     12 November 1996

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA          )
VICTORIA DISTRICT REGISTRY   )   
  No. VI 5403R of 1995

BETWEEN:     SVETA MARY SCHERBAKOVA

Applicant

AND:                RMIT UNIVERSITY
  Respondent

JUDGE:    Marshall J
PLACE:    Melbourne
DATE:     12 November 1996

ORDER

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.

IN THE INDUSTRIAL RELATIONS  )
COURT OF AUSTRALIA          )
VICTORIA DISTRICT REGISTRY   )   
  No. VI 5403R of 1995

BETWEEN:     SVETA MARY SCHERBAKOVA

Applicant

AND:                RMIT UNIVERSITY

Respondent

JUDGE:    Marshall J
PLACE:    Melbourne
DATE:     12 November 1996

EX-TEMPORE REASONS FOR JUDGMENT

BACKGROUND - THE PROCEEDING

On 23 October 1995 the applicant, Ms Scherbakova, filed in the Victoria District Registry an application under s 170EA Industrial Relations Act 1988 (“the Act”) in respect of what she alleged to be the unlawful termination of her employment by the respondent, RMIT University (“RMIT”). On 7 February 1996, Deputy President Drake of the Australian Industrial Relations Commission (“the Commission”) certified that the Commission was unable to settle the matter by conciliation. On 12 March 1996, RMIT issued a notice of motion seeking that the application be dismissed pursuant to O 20 r 2(1)(a) of the Court’s rules for want of jurisdiction. On 30 August 1996, Judicial Registrar Parkinson granted RMIT the relief sought in the notice of motion.

On 2 October 1996, Ms Scherbakova sought a review of the exercise of power by the Judicial Registrar.  She also sought an extension of time within which to apply for the review.  Due to an interstate absence and some confusion between Ms Scherbakova and registry staff, her notice of motion seeking a review was filed almost a fortnight out of time.  On 28 October 1996, the Court extended the time allowed for the filing of the application for the review pursuant to O 74 r 3 of the Rules of Court.

The review was heard this morning on the basis that the Court would only consider the jurisdictional issue and that if it came to a different conclusion than the one reached by the Judicial Registrar, it would hear the merits of the matter on a later occasion.

BACKGROUND - THE FACTS

Ms Scherbakova commenced employment with Phillip Institute of Technology (a body with which RMIT later amalgamated) on 21 January 1991 as a Lecturer Grade II, Level 5, to work under the direction of the Dean of the School of Nursing in the Department of Clinical Nursing.  On commencing her employment, Ms Scherbakova signed an agreement with her employer in which her position was described as:

“... a member of the full time fixed-term academic staff for a period commencing on the 21st January 1991 and terminating on 31st December 1995 (unless sooner terminated pursuant to this Agreement) ...” (emphasis supplied)

On 26 September 1995, RMIT’s Personnel Manager wrote to Ms Scherbakova in the following terms:

“Dear Ms Scherbakowa (sic)

In accordance with the provisions of the Untenured Academic Staff Agreement and the University practice of advising staff employed on fixed-term contracts regarding the possibility of a further period of employment beyond the current contract, I write to confirm your employment is due to expire on 31 December 1995.

The University cannot guarantee further fixed term or tenurable employment and you should assume that no further such employment will be available on the expiry of your current term of appointment.

Further advice shall be given to you from your Dean/Head of Department regarding employment prospects beyond the expiry date of your current appointment.

Yours faithfully,

for

Manager Personnel Operations

Human Resources Management Group”

On 13 October 1995, Ms Scherbakova received a memorandum from RMIT.  It provided as follows:

“To:      Sveta Scherbakova

From:Assoc Prof Lina Shahwan-Akl

Date:Friday, 13 October 1995

Subject:EXPIRY OF CONTRACT

Dear Sveta

Further to our conversation yesterday, and following the letter you received from HRMG on 26 September, 1995 notifying you that no guarantee can be provided for further employment on expiry of your contract (on 31 December 1995), I regrettably inform you that the position you occupy will not be continuing.

It has been decided at this time to discontinue this position.  I cannot confirm our intentions of advertising any other contract positions.  Should we advertise any positions, you may of course apply for them and you will be considered amongst the other applicants.

May I take this opportunity to thank you for your service to RMIT over the last five years.  I wish you all the best in your future endeavours.”

It was the above memorandum which prompted Ms Scherbakova to apply under s 170EA of the Act to the Court. In her view the decision to abolish the position she occupied meant that RMIT had terminated her employment. She contended that she had an expectation that her employment would continue. She relied upon an agreement between her union, National Tertiary Education Industry Union (“NTEU”) and RMIT which provided that tenure should “normally” be offered “following a five year contract”.

CONCLUSION

In my view the agreement between NTEU and RMIT did not oblige RMIT to offer tenure to Ms Scherbakova.  What might normally apply is a different matter to what an employer is obliged to do by an award or industrial agreement.  The terms of the contract by which Ms Scherbakova was appointed to the position of Lecturer Grade II, Level 5 leave no room for doubt that she was appointed for a fixed term of slightly less than five years.  It is not to the point that the industrial agreement provided that tenure should normally follow a five year fixed term appointment.  The agreement does not make it mandatory for the employer to grant tenure.

Ms Scherbakova had been on notice at least since late September 1995 that she had no guarantee of employment beyond the end of her fixed term contract.  It was apparent by October 1995 that no extension of the fixed term contract would be offered to Ms Scherbakova because the position which she had occupied was to be abolished.  In the circumstances it made no sense to extend the period of the relevant employment when there was no requirement for the relevant position to be filled.  This was a situation where it was understandable that the normal position of a five year contract leading to tenure was not applied.

This is a clear case where an employment has ended with the effluxion of time and has not been terminated at the initiative of the employer.  Therefore the application must be dismissed.

I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:  

Date:  

The Applicant in person               
Advocate for the Respondent:           Mr D Shelton

Date of hearing:               12 November 1996
Date of judgment:               12 November 1996