Stacey West v The University of Sydney
[2024] FWC 3540
•19 DECEMBER 2024
| [2024] FWC 3540 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Stacey West
v
The University Of Sydney
(C2024/7435)
| COMMISSIONER CRAWFORD | SYDNEY, 19 DECEMBER 2024 |
Dispute arising under an enterprise agreement about pro rata long service leave entitlements – employment ended prior to dispute technically arising – jurisdictional objection upheld – application dismissed- recommendation made for payment of entitlement.
BACKGROUND
Stacey West was employed by the University of Sydney (University) under a series of fixed term employment contracts from 21 March 2015 until 31 March 2024. Ms West worked in Research Assistant, Clinical Trial Coordinator, and Clinical Trials Associate roles during her employment with the University. Ms West’s latest fixed term employment contract was for the role of Clinical Trials Associate and was due to end on 25 May 2024. Ms West was working as part of a research team led by Professor Simon Lewis when in March 2024 Professor Lewis announced that he was leaving the University to take up employment with Macquarie University. Ms West and the other members of Professor Lewis’ team were also offered jobs with Macquarie University. These changes led to Ms West resigning from her employment with the University effective 31 March 2024. The University has not paid Ms West any pro rata long service leave because it considers she is not eligible. Ms West lodged a dispute with the Fair Work Commission (Commission) on 18 October 2024 pursuant to s.739 of the Fair Work Act 2009 (FW Act) and the dispute resolution procedure in clause 555 of The University of Sydney Enterprise Agreement 2023 – 2026[1] (Agreement). The University has raised a jurisdictional objection to Ms West’s application. The University argues Ms West is not eligible to utilise the dispute resolution procedure in the Agreement because she is no longer employed by the University and did not raise the dispute while she was employed. This decision concerns whether the Commission has jurisdiction to continue dealing with Ms West’s dispute.
I issued directions for the filing of material and listed a hearing via video on 16 December 2024. Ms West represented herself. The University was represented by Mathew Dean (Solicitor employed by the University) and Kobie Howe (Senior Manager – Industrial Relations).
EVIDENCE
The parties agreed that the following documents constitute the relevant evidence for the jurisdictional issue:
· An automatic email from the University’s Service Portal to Ms West dated 29 February 2024. The email confirms Ms West had raised a query about pro rata long service leave entitlements. The enquiry number is CS1091040. I marked the email Exhibit A1.
· An automatic email from the University’s Service Portal to Ms West dated 18 March 2024. The email confirms Ms West had raised a further query about pro rata long service leave entitlements. The enquiry number is CS1105586. I marked the email Exhibit A2.
· An email from Ms West to Pip Chung and Juliana Carruthers (Senior HR Partner) dated 19 March 2024. The email raises various issues about the research team’s transition from the University to Macquarie University. The email demonstrates Ms West was confused about the exit arrangements with the University and about whether she needed to resign or whether her employment would end automatically. I marked the email Exhibit A3.
· An email from Ms Carruthers to Ms West dated 22 March 2024. Ms Carruthers gives Ms West advice about resigning from her employment with the University and states an effective date needs to be identified. I marked the email Exhibit A4.
· An email from Ms West to Merilyn Heuschkel providing formal notice of resignation dated 22 March 2024. The email states Ms West is resigning effective 31 March 2024. Ms West states:
“As you are aware, Professor Lewis and his research group are transitioning from the University of Sydney to another institution. Given the financial and contractual obligations associated, I am requesting a shortened resignation notice period…”
I marked the email Exhibit A5.
· Excerpts from the University’s ServiceNow portal which is used by staff to raise issues and questions concerning their employment with the University’s human resources team. The excerpts show that three separate case files were opened concerning Ms West’s queries about her long service leave:
-Ticket number CS1091040 was opened on 29 February 2024. This file was closed automatically on 27 March 2024 because Ms West did not respond to an email sent to her on 20 March 2024.
-Ticket number CS1105586 was opened on 18 March 2024. This file was closed on 20 March 2024 apparently because Ms West confirmed her ticket had been resolved.
-Ticket number CS1118381 was opened on 4 April 2024. Various emails were exchanged under this ticket. Ms West was initially complaining about the University omitting to process her long service leave entitlements. On 18 April 2024, the University indicated, seemingly for the first time, that Ms West was not entitled to pro rata long service leave because she had less than 10 years of service and her resignation was not for one of the reasons that trigger a pro rata entitlement in the Agreement. The file was closed automatically on 9 May 2024 because Ms West did not respond to an email sent to her on 2 May 2024.
I marked these excerpts Exhibit A6[2] and Exhibit A7.[3]
The University filed written submissions dated 20 November 2024, 6 December 2024, and 11 December 2024. Mr Dean made oral submissions during the hearing on 16 December 2024.
Ms West provided written submissions dated 29 November 2024 and 12 December 2024. Ms West made oral submissions during the hearing on 16 December 2024.
RELEVANT TERMS OF THE AGREEMENT
The dispute concerns the pro rata long service leave entitlements in clause 279 of the Agreement. This clause provides that an employee, like Ms West, who has between 5 and 10 years of service is entitled to receive payment for accrued pro rata long service leave if they resign due to “illness, incapacity or domestic necessity.” This dispute is essentially whether Ms West resigned due to “domestic necessity” because she needed to accept employment with Macquarie University to remain part of Professor Lewis’ research team.
The jurisdictional objection to Ms West’s dispute turns on the dispute resolution procedure in clause 555 of the Agreement which states:
“DISPUTE SETTLING PROCEDURES
555. It is agreed that all staff and the University have an interest in the proper application of the Agreement. The following procedures apply to any dispute about the application or operation of this Agreement or the National Employment Standards:
a)in the first instance the affected staff member, and where they choose, their Representative, should discuss the matter with the staff member’s Supervisor. A Union may also initiate this procedure by raising a dispute with the University in writing;
b)where the dispute is not resolved under clause 555(a) the affected staff member or their Representative may request a discussion with a more senior level of management. If no such request is made within five working days of the discussions under clause 555(a) the matter will be deemed to have been resolved, unless the parties agree to extend the time for discussions. Where a meeting is requested, it will be convened within five working days of the request or at such later time as the parties may agree;
c)if the dispute remains unresolved, either party may refer the matter to the Fair Work Commission. If no party refers the matter to the Fair Work Commission within ten working days of the discussions under clause 555(b), the matter will be deemed to have been resolved, unless the parties agree to extend the time for discussions; and
d)the Fair Work Commission may resolve the dispute by conciliation, and if conciliation is not successful, by arbitration. The parties to the dispute agree to be bound by and implement any order, decision or recommendation of the Fair Work Commission, subject to any right of appeal under the Fair Work Act 2009.”
AUTHORITIES
The legal principles applicable to the task of interpreting an enterprise agreement are not controversial. I consider the critical points are:
i.The starting point for construction is the text of the agreement, with that text considered in context and in light of the industrial purpose of the particular provision in question.[4]
ii.Words in an industrial instrument are not to be interpreted in a vacuum divorced from industrial realities. The construction of ambiguous terms should favour a sensible and practical industrial result, shorn of legalism and pedantry.[5]
Ms West was not an employee of the University when she filed a dispute with the Commission on 18 October 2024. However, the Full Bench in Jonathan Mitchell v University of Tasmania confirmed the Commission can arbitrate a dispute where the provisions of the relevant dispute resolution procedure had been invoked while the employment remained on foot.[6]
The jurisdictional issue therefore turns on whether Ms West had invoked the dispute settling procedures in clause 555 of the Agreement before her resignation took effect on 31 March 2024.
CONSIDERATION
The documentary evidence establishes Ms West took the following steps in relation to the issue of whether she was entitled to receive pro rata long service leave when her employment with the University terminated:
i.Ms West contacted the University’s human resources team on 29 February 2024 to enquire about her long service leave entitlements.[7]
ii.Ms West contacted the University’s human resources team again on 18 March 2024 in relation to her long service leave entitlements.[8]
iii.Ms West exchanged several emails with the University’s human resources team from 4 April 2024 to 2 May 2024.
The documentary evidence suggests the University’s human resources team provided generic advice about pro rata long service leave entitlements in response to Ms West’s communications on 29 February 2024 and 18 March 2024.[9]
On 22 March 2024, Ms Carruthers provided written advice to Ms West about resigning from her employment with the University. Ms Carruthers is the University’s Senior HR Partner. Ms Carruthers did not refer to Ms West’s long service leave entitlements in her email.[10]
Ms West provided written notice of her resignation on 22 March 2024 and requested a shorter notice period with her resignation to take effect on 31 March 2024.
The communications identified above demonstrate that Ms West was concerned about losing her long service entitlements from at least 29 February 2024. However, it is clear the University did not confirm its position on whether Ms West was entitled to pro rata long service leave until after Ms West’s employment had ended. The first time the University communicated to Ms West that it did not consider she was entitled to pro rata long service leave was when Edria Liem (Senior Payroll Officer) communicated that position to Ms West in an email dated 18 April 2024.[11]
The way that the University communicated with Ms West about her long service leave entitlements deprived her of any opportunity to utilise the dispute settling procedures in clause 555 of the Agreement before her employment ended. It is clear Ms West considers she is entitled to pro rata long service leave under clause 279 of the Agreement, and that she would have contested any decision by the University to the contrary. The problem for Ms West was that the University did not communicate its position until 18 April 2024. That was despite the University being fully aware of the reason for Ms West’s resignation since at least 22 March 2024. Given Ms West’s previous queries about her long service leave entitlements on 29 February 2024 and 18 March 2024, the University clearly should have provided Ms West with updated specific advice about her long service leave entitlements between the date Ms West provided written notice of her resignation on 22 March 2024 and when her employment ended on 31 March 2024. Ms West could then have taken further steps to contest the University’s decision while she remained employed.
The University’s failure to adequately respond to Ms West’s enquiries technically means there was no “dispute” about Ms West’s long service leave entitlements when her employment ended. That means Ms West did not invoke the dispute settlement procedure in clause 555 of the Agreement when she was an employee of the University and there is no jurisdiction for the Commission to deal with the dispute.
I am very uncomfortable about my conclusion in this case. I consider it results in style prevailing over substance. Ms West clearly took steps to try and confirm whether she would receive her long service leave entitlements before her employment ended. It is also abundantly clear that any further steps Ms West took to resolve her dispute with the University would have been unsuccessful given the University is maintaining Ms West is not entitled to pro rata long service leave and is attempting to force Ms West to use a court instead of the Commission to ventilate her dispute. There are also statutory directions in the FW Act for the Commission to perform its functions and exercise its powers in a manner that is “fair and just,” and in a manner that is “quick, informal and avoids unnecessary technicalities.”[12] The outcome of this case does not sit well with those provisions. However, I am required to apply the terms of the Agreement. The actions Ms West took prior to her dismissal did not enliven the dispute settlement procedure.
I find the Commission does not have jurisdiction to resolve Ms West’s dispute about her pro rata long service leave entitlements. I dismiss Ms West’s application.
Subject to any appeal, this decision means that if Ms West wishes to have her argument about long service leave entitlements heard, she would need to consider pursuing an application in a court such as the NSW Industrial Court small claims division.
For almost nine years Ms West was an employee of the University, engaged on rolling fixed term contracts, working in the School of Psychology and assisting in the research of degenerative diseases such as Dementia. In all the circumstances of this case, I recommend that the University pays Ms West her pro rata long service leave entitlements. I consider the reason provided by Ms West falls within the term “domestic necessity” because she needed to resign from employment with the University and to commence employment with Macquarie University to ensure she had a job after her fixed term contract expired. An array of domestic problems can arise from unemployment. I also consider the University treated Ms West unfairly by not disclosing its position on Ms West’s long service leave before her employment ended.
For Ms West’s benefit, I confirm the University is not bound to comply with my recommendation.
COMMISSIONER
Appearances:
Ms West representing herself.
Mr Dean and Ms Howe representing the University.
Hearing
2024.
Sydney (by video via Microsoft Teams).
16 December.
[1] AE521047.
[2] Page 443 to 458 of the Digital Hearing Book (DHB).
[3] Page 495 to 499 of the DHB.
[4] AmcorLimited v CFMEU (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J) (“Amcor”); ARTBIU v KDR VictoriaPty Ltd [2021] FCA 1377 at [39] (Wheelahan J).
[5]Amcor at [96] (Kirby J); ABCC v CFMMEU (The Nine Brisbane Sites Appeal) (2019) 269 FCR 262 at [5] (Allsop
CJ). See also Ridd v James Cook University (2021) 274 CLR 495 at [17].
[6] Jonathan Mitchell v University of Tasmania[2022] FWCFB 165 at [30].
[7] Exhibt A7 – Ticket CS1091040.
[8] Exhibit A6 – Ticket CS1105586.
[9] Exhibits A6 and A7.
[10] Exhibit A5.
[11] Exhibit A6.
[12] Fair Work Act 2009 (Cth) s 577.
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