Scherbakova v Royal Melbourne Institute of Technology

[1996] IRCA 457

DECISION NO: 457/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5403 of 1995

B E T W E E N:

Sveta Mary SCHERBAKOVA
Applicant

A N D

ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY
Respondent

REASONS FOR DECISION

30 August 1996  PARKINSON JR

This is a decision in relation to a preliminary jurisdiction issue arising in the course of the trial of an application made pursuant to S170EA of the Industrial Relations Act 1988 (“the Act”). A notice of motion filed by the respondent seeking the dismissal of the S170EA application pursuant to Order 20 Rule 2(1)(a) of the Rules of Court was adjourned to the trial of this matter by order of Judicial Registrar Millane on 19 March, 1996. At the trial on 1 July, I decided to hear and determine the preliminary issue of jurisdiction raised by the notice of motion, prior to proceeding to hear the substantive aspects of the S170EA application.

The respondent contends that there has been no termination of employment at the initiative of the employer. It contends that the employment came to an end as a result of effluxion of the time specified in the written agreement between the parties, as to the term of the employment. The respondent, quite properly in view of the provision in the agreement for termination on notice, did not seek to rely upon the operation of S170CC and Regulation 30B of the Act. The applicant contends that her employment was terminated by the act of the respondent or the failure to act of the respondent in not appointing her to a tenured position or providing her with a further fixed term appointment at the expiry of the term.

In my opinion the key question in this proceeding is whether, despite the terms of the agreement, the employment would have in the ordinary course continued, or was there a reasonable expectation that the employment would continue beyond the expiration of the term, having regard to the circumstances of the employment and the agreement and practices between the parties. It is appropriate to consider the  background to the employment and in particular the scheme of industrial regulation and agreements operating in respect of the university and the applicant’s employment, both at the time of the employment and the cessation of employment and I turn now to do so.

The applicant was employed by the respondent as a lecturer in the faculty of nursing on 21 January, 1991. The applicant was engaged upon a fixed term contract which was in writing and specified to commence on 21 January, 1991 and expire on  31 December, 1995. (“the contract”)  On 26 September, 1995, the respondent, in accordance with its obligations pursuant to an industrial agreement, notified the applicant in writing, that she could not be guaranteed further employment beyond the expiry of her contract on 31 December, 1995 and that she should assume that no further employment would be available after that date.(Exhibit  R2; Annexure MB2)
In 1991  the engagement of short term contracted academics was regulated by a memorandum of agreement. In 1993 an agreement was reached between the union representing academic staff, the Council of Academic Staff Associations (CASA) and the university, as to the terms of engagement of sessional and fixed term academic staff (“the Industrial Agreement”). That agreement is Exhibit R1. The applicant’s engagement and the steps taken by the respondent at the expiration of the term of the engagement, were consistent with the Industrial Agreement.

Whilst the terms of the Industrial Agreement were not expressly relied upon by the respondent in dealing with the applicant’s employment, nor was she a party to the agreement, nevertheless the court is assisted by the terms of the Industrial Agreement for the purpose of ascertaining the context within which employment arrangements were made at the university. This is particularly so because the applicant was in some aspects of her dealings with the university represented by the academic staff union and the terms of the Industrial Agreement were applied. Further the notices to the applicant as to the expiration of her term were given only because of the consequence of the industrial agreements. 

This is a case where there was a settled and regulated basis for the employment of persons on contracts for a fixed term and an understanding between all parties, both to the employment agreement and the industrial agreement that the employment raised by the fixed term agreement would come to an end automatically as a consequence of the expiration of the term specified in that agreement. There evidence establishes that there was no circumstance to suggest that the applicant was entitled to expect or assume continuation of the employment beyond the expiration of the term specified.

Whilst the applicant may have had a desire that the employment continue, I am satisfied that the only basis upon which the employment could continue was in the event that a positive decision was taken to offer a new fixed term of employment or a tenured position became available for which the applicant might apply. I am satisfied that the reality of the arrangements between the parties, did not involve a continuing employment relationship, nor a reasonable expectation in that regard.

The applicant contends that there was evidence of a decision being taken to terminate her employment as a consequence of a decision taken by the faculty in September or October 1995 to abolish the position occupied by the applicant. It is a question of interpretation as to the nature of  the decision actually made by the faculty at that time, although in this regard I am not satisfied that the applicant was ever appointed to a position which the respondent decided to abolish. This is apparent from the terms of the contract of  21 January, 1995 where the applicant was appointed as a member of the full time fixed term academic staff, in the classification of Lecturer Grade II, Level 5. Her duties were to work under the direction of the Dean of the School of Nursing and to perform such duties in connection with the organisation teaching and discipline of the School as are required by the Dean of School and outlined in the job description.

The evidence of the respondent as to why it did not renew a contract with the applicant is not central to the question as to whether there was a continuing employment despite the terms of the contract. The respondent’s evidence was that there was no need to offer the applicant a new contract as a consequence of decisions taken as to staffing requirements. This is not a process of a decision being made not to continue any ongoing or continuous employment of the applicant, but rather a process of deciding not to make an offer of future employment to the applicant after the term of her existing employment expired. I am satisfied that there was no act on the part of the employer which operated to bring the employment to an end or which initiated the termination of the employment.

I am also satisfied that the applicant was not entitled to assume in the circumstances, that the employment would continue. Professor Bennett’s evidence was that had there been a decision to continue the position, it would have been converted to a tenured position and advertised in accordance with the terms of the industrial agreement. I accept this evidence.  Further the terms of the Industrial Agreement upon which the applicant relies, provides specifically for the appointment of academics on fixed terms of up to five years.  The agreement, does not as is contended for by the applicant provide for the automatic appointment of any person to a tenured position after the expiration of 5 years.  In any event the applicant’s term appointment was for a period of less than five years from the outset of the agreement, and thus were the applicant’s contention correct, would not have operated to assist her.

These matters do not assist the applicant in establishing that there existed

an expectation or entitlement to continuing employment beyond the term

set out in the agreement.  I am satisfied that the respondent has established that

there was no such expectation or entitlement. It is clear on the evidence before

the court, that for any continuation of the employment to occur positive steps to

initiate a new employment on new terms would need to have been taken by the

parties. In Cooper v Darwin Rugby League Inc. (1995) 57 IR 238 his honour,

Northrop J. after considering the application of Regulation 30B to the particular

circumstances of that case, made the following observation in relation to the

question as to whether there was a termination of employment at the initiative

of the employer: (at page 241)

“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 consider the decisions of Judicial Registrar Murphy in Bolotin v University of Melbourne, (unreported), VI 3990 of 1995, 6 December 1995 and Judicial Registrar Linkenbagh in O’Neill v Australian National University (unreported), AI 1176 of 1995, 29 August 1995 and respectfully agree with the analysis in those decisions. I am satisfied that there was no termination of employment at the initiative of the respondent and consequently that there is no jurisdiction in the court to hear and determine the application made pursuant to S170EA of the Act.

For the reasons set out herein the orders sought in the notice of motion filed on 12 March, 1996 are granted. The application made pursuant to S170EA of the Industrial Relations Act 1988 is dismissed.

I certify that this and the preceding five (5) 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. R. Spicer
Solicitors for the applicant  :          McNab, McNab & Starke

Counsel appearing for the respondent     :          Ms. S. Long
Representative for the respondent  :          Australian Higher Education   Industrial Association

Date of hearing  :          1  July  1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5403 of 1995

B E T W E E N:

Sveta Mary SCHERBAKOVA
Applicant

A N D

ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY
Respondent

MINUTES OF ORDERS

30 August 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application made pursuant to the respondent’s notice of motion filed on 12 March, 1996 be granted and the S170EA 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 -
COURT RULES - whether TERMINATION at the initiative of the employer or the effluxion of time in SPECIFIED PERIOD CONTRACT - expectation of employment to continue -

Industrial Relations Act 1988 - ss 170EA,
Industrial Relations Court Rules   - Order 20 Rule 2 (1)(a)

Bolotin v University of Melbourne (unreported), VI 3990 of 1995, 6 December 1995;

Cooper v Darwin Rugby League Inc. (1995) 57 IR 238

O’Neill vAustralian National University (unreported), AI 1176 of 1995, 29 August 1995

SVETA MARY SCHERBAKOVA v
ROYAL MELBOURNE INSTITUE OF TECHNOLOGY

VI 5403 of 1996

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