Stanton-Long v Federation Training
[2018] FCCA 2125
•16 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STANTON-LONG v FEDERATION TRAINING | [2018] FCCA 2125 |
| Catchwords: INDUSTRIAL LAW – Claims of multiple infractions of industrial instruments and related contraventions of the Fair Work Act – claim that applicant the subject of adverse action in contravention of a protection provision – claims involving detailed consideration of award provisions that are difficult to construe – adverse action claims made out only in part – other contraventions largely made out – parties to be further heard as to form of orders to be made. |
| Legislation: Fair Work Act 2009, ss.50, 119, 341(1)(c) Fair Work Regulations 2009, reg.3.31, 3.32, 3.33, 3.42, 3.42(4), 361 |
| Cases cited: Andersen v Umbakumba Community Council (1994) 126 ALR 121 |
| Applicant: | ROBYN STANTON-LONG |
| Respondent: | FEDERATION TRAINING |
| File Number: | MLG 1118 of 2017 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 4, 5 & 6 June 2018 |
| Date of Last Submission: | 13 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Knowles |
| Solicitors for the Applicant: | Australian Education Union – Victorian Branch |
| Counsel for the Respondent: | Mr Donaghey |
| Solicitors for the Respondent: | PCC Employment Lawyers |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1118 of 2017
| ROBYN STANTON-LONG |
Applicant
And
| FEDERATION TRAINING |
Respondent
REASONS FOR JUDGMENT
Introductory
By her amended Statement of Claim filed 23 October 2017, the applicant seeks remedies, including the imposition of pecuniary penalties, in respect of some 14 alleged contraventions by the respondent of various industrial obligations. Some are, it should be noted, in the alternative. Because of the widely varying nature of the alleged contraventions, it is not possible to make any meaningful brief introductory remarks. Rather, once the facts are set out, it will be necessary to examine each claim seriatim. For the reasons that follow, however, it will be seen that the applicant is in the main part successful.
Agreed or Uncontroversial Facts
It should be noted that Ms Stanton‑Long, who was born on 16 June 1962 (CB2), has a number of qualifications, set out at paragraph 3 of her affidavit filed 12 December 2017 (CB101). I note that she deposed in that affidavit at paragraph 4, not the subject of cross‑examination:
“Before I started my career in vocational education and training, I worked in fashion retailling for about 25 years, this included owning and operating a fashion business….” [sic]
She is obviously a person with lengthy experience in retail.
In March 2009, Ms Stanton‑Long took up employment with the Board of Central Gippsland Institute of TAFE working as a casual fashion teacher. Her employment contract is at CB118-121. Relevantly, it provided that the position was casual, commencing 2 March 2009. There is reference within the contract to an attached Duty Statement which is not attached, although I note that Ms Stanton‑Long was to be supervised by James Farmer, Team Leader Delivery Fashion/Business/Horticulture (CB118).
On or about 5 April 2010, Ms Stanton‑Long was employed as a casual again. Her position was Casual Skills For Growth Specialist. She was to be initially employed at the GETT Centre (CB123). Once again, there is reference in the contract to an attached Position Description but that is not included.
Ms Stanton‑Long deposed (CB102, paragraphs 9 and 10) that in 2010 she also worked in the Access Department of GippsTAFE to deliver an employment‑focused, English as a Second Language (ESL) pilot program at the Morwell campus and, additionally, did other casual work involving, inter alia, teaching English to students with low levels of literacy and to newly‑arrived migrants.
In 2011 to 2013, Ms Stanton‑Long worked for another organisation, TRY Youth & Community Services. She deposed, and was not challenged, to working as a teacher and manager of Social Enterprises which, inter alia, involved extensive work with students with high needs, including juveniles. She delivered programs at the Global Studio for English as a second language to students, migrants and refugees, and other disadvantaged individuals.
In early October 2013, Ms Stanton‑Long met Natasha Hunt, who asked Ms Stanton‑Long if she wished to return to TAFE as a teacher. Relevantly (CB103), she sent an email to Ms Hunt saying:
“I would like to say that I am very interested in a position at GippsTAFE and being part of building the SEE into the fabulous program it can be. So long as I can see at least two / three days per week sessional over the next 12 - 18 months as a minimum
I would be prepared to leave my current employer and join your team.”
From late November 2013 until 20 December 2013, Ms Stanton‑Long was employed by GippsTAFE as a Casual Teacher, Skills Education Employment (“SEE program”). Her contract is at CB140-142. The contract was to be primarily located at the Warragul/Morwell campuses.
Towards the end of 2013, Ms Stanton‑Long decided to undertake
a Bachelor of Adult and Vocational Education (Language, Literacy and Numeracy), which included supervised teaching practice and studies in teaching methodologies a component. Ms Hunt provided a letter of support (CB147).
In 2014, Ms Stanton‑Long was employed by GippsTAFE in the position of Casual Teacher, Skills Education & Employment. Her contract is at CB149-151. This was described as a casual position, but the period of appointment was from the 6th day of January 2014 until the 12th day of December 2014, unless terminated earlier. It had differential rates of pay for teaching and non‑teaching work. The work in 2014 was performed at the Morwell campus. Ms Stanton‑Long has deposed (CB104) that she taught literacy and numeracy units required under the SEE contract, being vocational skillsets relating to employment and training.
Ms Stanton‑Long has deposed to a pattern of hours of work in 2014 to which, given that there is a measure of challenge, it will be necessary to return.
In the week commencing 6 July 2014, Ms Stanton‑Long attempted to upload her hours to the respondent’s payroll system. She was not able to do so and received an automatically‑generated notice that she had worked more than 720 hours for the 2014 year and should speak to her team leader. She did so. Although she took some initial steps, Ms Stanton‑Long did not take that aspect of the matter further (CB105).
In October 2014, Ms Stanton‑Long completed a subject “High Level Facilitation Skills” (EPT320) at Charles Sturt University (CSU) as part of her studies towards a Bachelor of Adult and Vocational Education (Language, Literacy and Numeracy). (CB106). There is a dispute as to whether she forwarded a copy of her academic transcript to
Ms Laidlaw at the Morwell campus of the respondent.
In January 2015, Ms Stanton‑Long again received a casual position. Her contract is at CB195-197. She was to be supervised by Mark Shelton, Education Manager Foundation & General Education, and the position was Casual Teacher Foundation. The “attached Casual Teacher Duty Statement” is not attached in the Court Book.
Ms Stanton‑Long has deposed as to a pattern of work to which it will be necessary to return. She has deposed (CB107) that in 2015 she taught Work‑related Skills (WRS) Horticulture, Hospitality, Aged Care, Numeracy, SEE and VCAL at the Morwell campus. She deposed to a diverse range of students across foundation and intermediate levels of VCAL.
She also deposes at paragraphs 38-39 (CB107):
“38. In addition, I set up a pilot program called “Paddock to Plate” for WRS training sessions for SEE and VCAL students. In addition, I organised WRS excursions to various worksites including a weekly session for students at Federation Training’s Engineering Department as part of the WRS assessments.
39. The students who were enrolled in these programs were from a wide range of backgrounds and included students aged between 15 and 65 categorised as being culturally and linguistically diverse (CALD), long‑term unemployed, youth and disabled.”
In about April 2015, Ms Stanton‑Long applied for the position of Language, Literacy and Numeracy (LLN) Specialist teacher. She was successful but, for reasons deposed to in her affidavit, did not take up the position. On 25 May 2015, Ms Stanton‑Long and other teachers met Mr Shelton. One of the questions put to Mr Shelton is (CB214, paragraph 21) as follows:
“I have an Advanced Diploma of LLN in VET; this is a level 5 qualification. HR has been aware of this for over 12 months – I am still being paid at a Certificate 4 level? Mark to discuss with HR when contract is discussed.”
The last sentence I understand to constitute Mr Shelton’s response.
On 17 September 2015, Ms Stanton‑Long applied to be converted from casual employment to ongoing employment by an email to Mr Shelton (at CB216). Mr Shelton did not, it appears, reply to that email. In about December 2015, Mr Shelton informed Ms Stanton‑Long that she would be provided with fixed‑term employment in 2016.
In 2016, Ms Stanton‑Long worked in the position of Teacher & Paddock to Plate Coordinator. She was given a .8 teaching contract with .4 load for Paddock to Plate Coordinator/project duties and .4 load for classroom teaching. Her contract is at CB218-221. The position was from 11 January 2016 to 31 December 2016.
From this point on, the narrative becomes more a matter of controversy and it is appropriate to deal with that when we get to each particular item that the Court will be required to consider.
It should be noted that there is no meaningful dispute between the parties as to a number of formal matters, such as the incorporation of the respondent, its corporate identity from time to time (various bodies merged and the like), and the applicability of the relevant industrial instruments and the provisions of the Fair Work Act 2009 (“the FW Act”).
The Various Claims
The Underpayment Claim
The underpayment claim is primarily set out at paragraphs 35 to 36 of the amended Statement of Claim, together with paragraphs 71 to 74 which set out the alleged effect of the failure to correctly classify
Ms Stanton‑Long’s employment. The alleged underpayments amount to $16,655.15 in respect of salary and $1,500.67 in superannuation contributions.
Given that the rates of pay incorporate references not only to individual’s qualifications but, also, to their work experience, it is no easy matter to work out exactly what classification might apply.
Indeed I should make it clear that this is an area of this dispute I have found extremely difficult. It appears that the pay rates for people who did the work that Ms Stanton-Long did are calibrated by a combination of professional or other relevant qualifications taken in conjunction, in certain cases, with their actual experience. Both parties use terminology clearly understood by them but which is not easy to actually follow.
The Victorian TAFE Teaching Staff Multi‑Enterprise Agreement 2015 (“MEA”) is annexed to the affidavit of Michael Joseph McIver affirmed 12 December 2017 as annexure MJM-3. The parties agree that it covered the respondent at all applicable times. By Clause 8 (CB336) there was “ROLLOVER OF VICTORIAN TAFE TEACHING STAFF MULTI‑BUSINESS AGREEMENT 2009” (“MBA”). Subject to certain modifications in clause 9 of the MEA, the terms of the MEA were to be read in conjunction with the MBA, save that the former would prevail in the case of any inconsistency. Pay rates and classifications were set out in Schedule 1 to the MEA but Schedule 3 was the MBA. Clause 19.2 (CB358) provided that:
“The commencing salary of an Employee shall be determined by the Employer in accordance with Schedule 5.”
By clause 19.3 it was relevantly provided:
“19.3 Subject to this clause, within the rates specified in Schedule 1, Employees shall proceed by annual increment from the minimum to the maximum of the sub-divisional range appropriate to their classification and level on the anniversary of their date of appointment subject to the following:
19.3.1 Progression beyond the first incremental point of the Teacher classification is subject to the Employee possessing the Certificate IV in Training and Assessment or equivalent;
19.3.2 Progression beyond the fourth incremental point of the Teacher classification is subject to the Employee completing a course of teacher training accredited at diploma (Australian Qualifications Framework Level 5) which includes supervised teaching practice and studies in teaching methodology, or equivalent;”
While Schedule 1 sets out salaries, it is noteworthy that these start at T1.1 and go up to T4.2. Thereafter, a level described as AST is provided.
It would seem, however, from Schedule 3 (CB371), that AST corresponds with Teacher Level 5. It is this level which,
as I understand it, Ms Stanton-Long says she should have been paid.
Schedule 5 sets out the qualification requirements and commencing salaries. This assessment involves not only the employee’s qualification but also their work experience. Unsurprisingly, the higher your academic qualification, the less work experience you need to be paid as a Teacher Level 1.
By Clause 4 of Schedule 5, it was provided that:
“An Employee who has the qualifications and experience listed in clause 3(a) or (b) or (c) or (d) and who has also completed a Certificate IV in Training and Assessment or equivalent is entitled to be paid as a Teacher Level 1.2.”
As I understand it, the battlefield between the parties is concerned
(at least in part) with Clause (5) of Schedule 5, which reads:
“An Employee who has the qualifications specified in clause 4 above and who has completed a course of teacher training accredited at diploma (Australian Qualifications Framework Level 5) which includes supervised teaching practice and studies in teaching methodology or equivalent is entitled to be paid as a Teacher Level 3.1.”
Clause 8 reads:
“8. Subject to meeting the qualification requirements for incremental progression in this Agreement, a maximum of two increments on commencement shall be paid for experience and qualifications approved in the circumstances, or combination of circumstances, as detailed below:
8.1 for each two years of approved actual teaching experience prior to becoming fully qualified a teacher shall receive one increment;
8.2 for each two years of approved industrial experience in excess of the years listed in clause 3 of this schedule a teacher shall receive one increment;
…
8.4 for each year of approved additional studies a teacher shall receive one increment.
“Fully qualified” means possessing qualifications which entitle an Employee to be appointed at, or progress to, the maximum sub-divisional point of the Teacher classification.”
Clause 9 provides:
“Subject to meeting the qualification requirements in this Schedule and Clauses 19.3.1 and 19.3.2 of this Agreement, where a casual employee is converted to a fixed term or ongoing position by the employer each 400TDH casual prior service with the employer shall be recognised as one increment when establishing the commencing salary.”
Ms Stanton-Long has also deposed that, in October 2014, she completed the subject High Level Facilitation Skills (EPT320) at Charles Sturt University as part of studies towards a Bachelor of Adult and Vocational Education (Language, Literacy and Numeracy) which is a unit of study that includes supervised teaching practice and studies in teaching methodologies component. She has deposed that once she completed the subject, she provided a copy of the academic transcript to Ms Laidlaw, a Human Resources employee at the Morwell campus of the respondent (paragraph 29, CB106). She deposed to having given the original Statement of Attainment to Human Resources at Federation Training. I note that, as part of annexure RHSL-14 at CB214,
Ms Stanton-Long records a question put to Mr Shelton on 20 May 2015 in the following terms:
“I have an Advanced Diploma of LLN in VET; this is a level 5 qualification. HR has been aware of this for over 12 months –
I am still being paid at a Certificate 4 level? Mark to discuss with HR when contract is discussed.”
As previously noted, the last sentence was apparently added by
Mr Shelton himself.
In August 2016, Ms Stanton-Long raised again her rate of pay with
Mr Shelton (CB228-229). The matter was forwarded to Ms Junker. The resulting email exchanges involved are annexure RHSL-18 at CB225-227. Ms Junker’s reply, at CB227, confirms that Ms Stanton-Long did indeed have an ASQA Level 5 qualification (Advanced Diploma of LLN practice in VET) but was required to have 200 hours practicum in addition to the above. Ms Junker said that there was no record of the practicum being completed. She said:
“4. There is a handwritten note on your Advanced Diploma of LLN that you were to approach GoTAFE to do the practicum and you would provide those details to HR. It does not appear that HR have been provided with this information.
5. In line with the MEA once you provide us with the relevant requirements this means that you are then allowed to progress through the levels up to Level 5. In other words you will receive an annual increment each year until you reach level 5.”
Ms Stanton-Long replied that she had completed the practicum component and it was submitted to HR the previous year (CB226). She complained of shifting goalposts. It should be noted that the Advanced Diploma in Language, Literacy and Numeracy Practicing VET was achieved by Ms Stanton-Long in 2010. Clearly, therefore, she had qualified for these purposes by 2010.
The respondent resists the applicant’s claim on various bases set out in submissions (see CB856-857). First, it is put that Ms Stanton-Long did not provide proof that she met the Australian Qualifications Framework Level 5 until 29 November 2016. This can be dealt with shortly. I have no difficulty at all in accepting Ms Stanton-Long’s evidence that she provided it substantially earlier. Her oral evidence was that she physically took the original document and left it with the respondent. Not only was she a good and careful witness, but her contemporaneous correspondence in September 2016 (CB226) is entirely consistent with her oral evidence.
The second basis upon which the matter is resisted an asserted lack of proof that Ms Stanton-Long had in fact undertaken the required supervision teaching practice. I do not accept this submission. The email from Ms Junker (which I note accepted that Ms Stanton-Long did indeed have ASQA Level 5 Qualification) set out the “200 hours practicum” requirement in terms. Ms Stanton-Long’s response said she had completed it. I find Ms Stanton-Long, if it is not clear already, to be an honest person. She clearly had completed the 200 hours and, as already indicated, had notified Ms Laidlaw of the completion.
The final basis, and alternative basis, upon with Ms Stanton-Long’s claim is resisted by the respondent relates to the treatment of her prior casual service. It is put that the provisions of Clause 9 of Schedule 5 are only available subject to the other requirements of the Schedule.
It is submitted that, in effect, the provisions of Clause 9 only operate subject to all the other Clauses including Subclause 7 and 8.
In my opinion there is no room for doubt that by the time Ms Stanton-Long moved from casual employment at the end of 2015 to fixed term employment in 2016 she had worked in excess of 1600 teaching duty hours in positions as a casual teacher. That is Ms Stanton-Long’s evidence, and I repeat that she was a good and careful witness whose evidence I accept. Furthermore in 2014, she had reached 720 hours for the year by 14 July. That fact alone, given that she worked a regular reasonably precise number of hours each week that she worked, goes to fully support her assertion of the calibration of her hours.
The construction that the respondent seeks to put on Schedule 5 seeks to assert that subclause 9 is in some fashion subject to subclauses 7 and 8. I do not read Schedule 5 in that way notwithstanding the words at the start of subclause 9 “subject to meeting the qualification requirements of this Schedule”. I accept that the Schedule is not entirely clearly drafted and indeed I have had considerable difficulty with it but the circumstances of Clauses 7 and 8 stand apart in my view from the conversion from casual employment to provisions of subclause 9. I should point out furthermore that in so far as complaint appears made by the respondent about post qualification experience, Ms Stanton-Long was fully qualified by 2010 in any event.
Finally, on this question of Ms Stanton-Long’s pay, I note the submission at paragraph 17, CB856 that Ms Stanton-Long should have been paid in 2016 at Teacher Level 1.2. This assertion sits in stark contrast to the sworn evidence of Ms Junker at paragraph 22 of her affidavit (CB601):
“In the 2016 year, the Applicant was paid at Level 3.1 of the Victorian TAFE Teaching Staff Multi-Enterprise Agreement 2015 (MEA), which was in line with her qualifications.”
Not only do I accept that the evidence taken as a whole shows that
Ms Stanton-Long was clearly entitled to be paid at least at Level 3.1, that Ms Junker’s evidence supports that proposition.
The underpayment claim is made out.
The Contract of Employment Contraventions
In substance there are two subsets to these complaints. In the first it is alleged that in the contracts of employment offered to Ms Stanton-Long in the years 2013, 2014 and 2015 as a casual employee, the respondent failed in contravention of Clause 12.1(g) of the MBA to give an estimate of the number of hours she would work.
The respondent pleads, and emphasises in written submissions, that the hours of work were ascertainable from the nature of the “details of appointment” provided to the applicant. It is submitted that the applicant had effectively the same information as she would have had with a letter of appointment which stipulated the number of hours to be worked and further that this is in any event, even if made out, a minor and technical breach of the obligation concerned.
It is formally conceded that if the breach is made out the respondent breached s.50 of the FW Act as a result.
Clause 12.1(g) reads as follows (CB352):
“12.1 On appointment the Employer shall provide Employees with a letter of appointment which stipulates the type of employment and contains the following information:
…
(g) for casual Employees, the duties required, the estimated number of hours required, the rate of pay for each class of duty required and a statement that any additional duties required during the term will be paid for.”
The terms of each of Ms Stanton-Long’s contracts of employment as a casual employee for 2013, 2014 and 2015 are materially indistinguishable. The letters of offer clearly described the employment as casual and denoted a period of appointment in each instance with a commencement and conclusionary date. It is clear however that there is nothing in the document that would meet the description of “the estimated number of hours required”. It is noteworthy that the letters of offer (see for example CB140-142) directly address the other matters required by Clause 12.1(g) of the Agreement. The duties required are set out, the rate of pay for each class of duty is set out. The contract does not in terms say that any additional duties required during the term will be paid for albeit that that might be thought implicit taking the agreement as a whole.
I do not accept the respondent’s argument that the nature of the contract makes it immediately apparent what the estimated number of hours that may be required are. It is true that the casual employment is defined and that there is a maximum of up to 800 hours over the term of the contract foreshadowed.
Nonetheless on the ordinary reading of the words, there is no indication of what “the estimated number of hours required” is going to be. Putting the matter shortly, it is one thing to know that you are a casual employee with all the qualifications that necessarily implies. It is another again to have an idea of how many hours of work you are going to be required to undertake (and more importantly be paid for from the employee’s point of view). If the construction urged by the respondent was to be adopted, there would simply be no work for the phrase “the estimated number of hours of work” to do. In my view the applicant plainly succeeds in these three claims.
The next matter relates to an alleged failure on the part of the respondent in the two contracts awarded to Ms Stanton-Long governing the 2016 year, both of which are conceded to be fixed-term contracts, to set out the reasons for the fixed-term contract of employment.
The respondent’s defence is really analogous to that in relation to the casual employment matters just dealt with. It is submitted that the reasons in particular for the 2017 extension agreement are apparent from the face of the document. In the event that this defence does not succeed the contraventions of the FW Act are admitted.
Clause 12.1(f) of the agreement reads:
“12.1 On appointment the Employer shall provide Employees with a letter of appointment which stipulates the type of employment and contains the following information:
(f) for a fixed-term Employee, the reasons for the fixed-term contract of employment;”
It should be noted, as with the matters relating to the casual employment contracts, that subclauses (f) and (g) are just two subclauses in relation to what is a comprehensive set of requirements about contracts of employment contained in Clause 12. It is reasonable to suppose that a similar degree of precision is required for all the matters set out. It is clear that the period of employment to the position of the earlier contract was from 11 January 2016 to 31 December 2016 (CB218). It is clear that the letter does not in terms set out “the reasons for the fixed-term contract of employment”. Rather it sets out what the position was. The contravention alleged is plainly made out.
The extension contract is at CB234. It sets out the date of the contract from 1 January 2017 to 28 February 2017 and is plainly therefore a fixed-term contract. Although the Contract asserts inter alia “all other terms and conditions remain as per your original Contract of Employment” once again it is clear that there is no express reference to the reasons why the fixed-term contract of employment was to be awarded. Once again the contravention is made out. The terms of the agreement might well be thought to be somewhat prescriptive for such a short-term contract extension, but that does not gainsay the force of the terms of the agreement itself.
The Status of Employment Contraventions
A number of matters are subsumed within this general complaint. The first two are set out at paragraphs 80 and 81 of the amended Statement of Claim. It is alleged that the respondent contravened Clause 13 of the MBA by employing Ms Stanton-Long on a casual basis where the work to be performed was not of an irregular nature or for a short period of time during 2014 and 2015.
Clause 13 of the MBA relevantly reads:
“13.1. A teacher may only be employed on a casual basis where the work to be performed is of an irregular nature or for a short period of time.
13.2. For the purposes of clause 13.1, ‘a short period of time’ means:
13.2.1. Where the purpose of the casual employment is to replace a teacher on approved leave, for up to 30 days.
A casual teacher in this circumstance may be required to take the full allocation of teaching duties of the teacher being replaced; or
13.2.2 The work to be performed does not exceed 8 hours per week or, by mutual consent, up to a maximum of 21 hours in any 1 week, to a maximum of 720 hours per year providing that the maximum of 21 hours per week may be exceeded by mutual agreement subject to no Employee exceeding 40 hours in a two week roster period.”
It should be noted that both parties, as I understand it, agree that the 720-hour maximum limit would not include time spent at meetings or on professional development.
Ms Stanton-Long has deposed at CB104-105 that in 2014, which was the first full year she worked, she worked in accordance with a general pattern of work from 9:00 am to 3:30 pm with a half-hour break; for four days per week for 40 weeks. She has deposed to working an additional one hour per day for administration of the SEE Program and about 4.5 hours per week of non-teaching duties.
As already indicated, she also deposed at CB105 that she attempted to update her hours to Federation Training’s payroll system on 6 July 2014 and was not able to do so because an automatically generated notice that she had worked for more than 720 hours for the 2014 year came up.
At CB106-107 Ms Stanton-Long deposed that in 2015 she worked in accordance with a general pattern of work on Monday to Thursday with occasional Fridays when requested from 8 am to 4.30 pm with additional evening classes on Tuesdays and Thursdays in the second half of the year from 6 pm to 8.30 pm.
Ms Stanton-Long expanded on this evidence in her evidence-in-chief and it is sufficient to say that the tenor of her evidence was that particularly in 2015 there was little if any professional development and that her hours of work in the sense comprehended within the 720 hours remained constant.
Ms Stanton-Long was cross-examined about these matters but it is sufficient for me to say as I would do generally in relation to her evidence that she was a quite outstanding witness. She was careful and direct in her answers. She responded clearly and directly to the questions put to her and was readily prepared to make concessions when they were there to be made.
Given these findings I have no doubt that Ms Stanton-Long as she says she did exceeded the 720 hours by a wide margin in each of 2014 and 2015.
It is immediately apparent that Ms Stanton-Long’s teaching load in 2014 from 9 till 3.30 pm with a half-hour break for four days per week would be some 24 hours per week. Her workload in 2015 being from
8.00 am to 4.30 pm (I infer with a half-hour break) from Monday to Thursday (together with additional evening teaching) would likewise exceed 21 hours per week. She clearly exceeded 40 hours in two-week roster periods.
Once these facts are accepted, the parties’ detailed and convoluted arguments and points of construction about the clause in my view fall away. Ms Stanton-Long’s evidence is that she was employed to perform work on a basis that had an entirely regular pattern to it. It exceeded the minimum amounts described in the award in any event. It could not possibly be said to be of an irregular nature. Nor was it for a short period of time.
In these circumstances, it follows that the contraventions alleged are made out.
The Matters Pleaded at Paragraphs 82 to 83 of the amended Statement of Claim
These matters are put in the further alternative to the matters dealt with immediately above. In my view the matters in paragraphs 82 and 83 so substantially overlap with the alleged failures asserted in paragraphs 80 and 81 that it is inappropriate to consider them further. It may well be that there is some additional minor infraction of the industrial instruments involved but once it is established that the employment as a casual contravened the award there is nothing further to be gained by moving to ancillary findings that logically the employer must also have failed to provide ongoing employment as the award requires.
The Matter in Paragraph 84 of the amended Statement of Claim
This alleges a failure to adhere to the terms of Clause 8.1.1 of the MBA by not recognising the preferred mode of employment in TAFE is ongoing.
The respondent pleads that the failure to engage the applicant on any such basis is not in its true sense a failure to do any particular thing and that the terms of Clause 8.1.1 are aspirational only.
The relevant paragraph reads as follows:
“8.1.1. The parties are committed to recognising the preferred mode of employment in TAFE being ongoing. However the parties also recognise that some fixed term or casual employment will continue to be necessary. Such employment will be in accordance with the terms of the Award and this Agreement. It is agreed that fixed-term and casual employment will not be used to substitute for ongoing employment.”
The applicant’s written submissions at paragraph 54 (CB833) assert:
“Further, Federation Training purported to employ Ms Stanton-Long on a casual basis in 2014 and 2015 and on a fixed term basis from 11 January 2016 to 9 February 2017. In so doing, Federation Training did not adhere to the commitment to recognise the preferred mode of employment in TAFE is ongoing and thereby contravened clause 8.1 and, thereby, section 50 of the FW Act.”
While it is true that I have found that the casual employment as it purported to be led to a contravention of the Agreement and the fixed-term contract also, there is no evidence, certainly no sufficient evidence, to show that the decision to employ Ms Stanton-Long as a casual was itself done necessarily in breach of the commitment that Clause 8.1.1 provides. True it is that as I have found Ms Stanton-Long turned out to have regular hours of work for extended periods of time, but there is no evidence either from Ms Stanton-Long or self-evidently from the respondent to suggest that this took place because of a lack of proper commitment. Indeed it seems far more probable to me that the matter simply was overlooked. The same is true of the fixed-term employment in 2016 to 2017. There is nothing to suggest that the contract was not perceived as a fixed-term one for 2016. It involved the setting up of the Paddock to Plate program. In my view this aspect of the applicant’s case is not made out.
Consultation Contravention
Here it is asserted that the respondent contravened Clause 9.5 of the MBA by not consulting with Ms Stanton-Long in accordance with that Clause. The facts as pleaded to support this application are paragraphs 55, 56, 57, 58, 60, 61, 62, 64, 67 and/or 69 of the amended Statement of Claim. It is fair to say that these paragraphs cover the period from about mid-December 2016 until the termination of the employment of Ms Stanton-Long by letter dated 9 February 2017.
It should be noted that Clause 9.5 is one of a number of broadly expressed commitments in the Agreement which would seem to me to be, at least to an extent, aspirational in their character.
Clause 9.5 of the MBA reads as follows:
“Where the Institute proposes changes that are likely to have a significant effect on Employees covered by this Agreement, the Institute will consult with those Employees, their elected representatives and the Union through the ICC prior to the proposed changes being implemented.”
The ICC is, pursuant to Clause 9.2, the Institute Consultative Committee. It was to be formed for the purpose of implementing and monitoring the Agreement and would be the forum through which the parties would consult generally on matters affecting employees.
This suggests to me that the scope and effect of Clause 9.5 was designed to cover what might be described as generalised matters likely to have a significant effect on a number of employees. The notion that the ICC would be required to consult on all changes imposed upon individual employees seems to me to be in the context of the Agreement as a whole misconceived.
In these circumstances, while there may be much yet to be said about the process whereby Ms Stanton-Long’s employment came to an end, and while I readily accept the terms of Clause 9.5 were not applied to whatever view one may take of the competing versions of those events, it did not in my view give rise to an infraction or contravention of Clause 9.5.
The Adverse Action Claims
This aspect of the dispute brings into play the series of events that led to the termination of Ms Stanton-Long’s employment.
The applicant submits that Ms Stanton-Long made three complaints within the meaning of s.341(1)(c) of the FW Act. It is first asserted that on 25 January 2017 Ms Stanton-Long told Mr Shelton that she was a teacher and was not employed to do data entry. It is next asserted that on 31 January 2017 Ms Stanton-Long sent Mr Shelton an email in which she made various complaints as to failure of consultation with her and about Mr Shelton’s lack of responses more generally. Finally it is asserted that on 2 February 2017 Ms Stanton-Long sent an email to Mr Davis and Ms Karen Bird, Executive Director to Education Programs, Quality and Compliance, where she made a complaint about Mr Shelton and other matters.
Ms Stanton-Long has deposed at CB110 that at the end of 2016 and prior to the Christmas break she was told by Mr Shelton that Gtec campus would no longer deliver AFS and that funding for the Paddock to Plate Program had been cut. Mr Shelton told her that in 2017 she would be teaching .06 in the Certificate I in Work Education which
Ms Stanton-Long understood to involve teaching a cohort of disabled students. She told Mr Shelton that she was not confident in teaching high-needs disabled students, (although she deposed that she has experience in teaching low-needs high-functioning disabled students as well as non-English speakers and adult low-level learners). She deposed that Mr Shelton assured her she would have plenty of in-class support, that the student group was high-functioning and that the requirements of the proposed teaching were not much different to the teaching she had been doing for the past two years.
Ms Stanton-Long deposed that she offered to take other courses but
Mr Shelton was adamant that she would not need to. At the end of 2016 Ms Stanton-Long deposed she was offered and accepted an extension to the 2016 employment contract from 1 January 2017 to
9 February 2017. Ms Stanton-Long does not depose to why she accepted that position given that it was her understanding she would be teaching .06 in Certificate I in Work Education throughout 2017. I note that the contract itself (CB234) was at .08 EFT.
Ms Stanton-Long has deposed at CB111 that in about late December 2016 or early January 2017 Mr Shelton telephoned her to discuss her duties and asked her if she would like to help out in recruitment. She asked what this would entail and he said he would get back to her. She deposes to having told Mr Shelton that she was happy to help out doing anything while waiting for students to return and classes to begin.
On 17 January 2017 Ms Stanton-Long sent an email to Mr Davis, the respondent’s Managing Director. That is annexure RHSL-21 and is at CB236-237. The email is an overview of what Ms Stanton-Long says she had done the year before and inter alia says:
“I am concerned, that going into 2017 no time fraction has been allowed for me to continue to grow and maintain the Paddock to Plate concept that we envisioned. Our plan was to grow the Gtec garden into a sustainable small business; one that was capable of supplying our training restaurants and also be able to set up a small market garden enterprise, to teach small business practice and horticultural skills to those students who otherwise find it difficult to engage in regular mainstream education. These students require daily doses of fresh air and sunshine in a hands-on environment, this goes without question but WHO is going to maintain this site? Previously, my contract was for .4 teaching and .4 Paddock to Plate. Yesterday I was dropped back to .6 teaching only with no time allowed for management of the site. I understand that P2P no longer exists in its former state but I would like to state my case for at least a .2 fraction for maintenance, planning, crop rotation and ongoing improvements at Gtec.”
The email concluded, clearly relevantly to Ms Stanton-Long’s view of herself, “but the project and the site requires a coordinator”.
Mr Davis replied:
“Hi Robyn,
Thank you for your email. I will talk to Karen Bird about this. However, the funding for the P2P program is limited which is why your contract has reverted to 0.6.”
Ms Stanton-Long has deposed that she has continued in January 2017 to prepare material for the Certificate I in Work Education (Disability) Course. Annexure RHSL-22 dated 24 January 2017 from Shae McGregor to Ms Stanton-Long at CB239 strongly suggests that her role at that stage was envisaged within teaching.Ms Stanton-Long has deposed that she was told in mid-January 2017 to expect a training session on 25 January 2017 at the Fulham campus of the respondent but when she went there nobody knew why she was there. The administration staff told her that her job was processing enrolments and sending out packs to prospective and new students and that she should return to the Gtec campus which she did. She was then asked to go back to Fulham. Mr Shelton according to Ms Stanton-Long telephoned and asked what she was up to. Ms Stanton-Long deposed that
Mr Shelton told her to return to Fulham and “do the training as I would be staying in the recruitment team. I said to Mr Shelton that I was
a teacher and that I was not employed to do data entry”. Mr Shelton said he would call her back but did not do so.This episode according to Ms Stanton-Long was distressing to her (CB112, paragraph 74).
Ms Stanton-Long deposes that on 30 January 2017 she arrived ready to teach but was told by Ms Karen Kitto that she would not be teaching and that Ms Shae McGregor would take the two classes previously envisaged which would be combined. Her endeavours to contact
Mr Shelton or others did not produce a response.
On 31 January 2017 Ms Stanton-Long arrived for school again. She sent Mr Shelton an email (annexure RHSL-23 at CB244-245). On any view of the matter that letter was a complaint about her employment. The email in my opinion recapitulates the prior history as I have set it out above and in my view relevantly asserts:
“After returning to Gtec from Fulham I received a phone call from Jo, telling me that you had directed I return, which I did. You called me on the way to Fulham to drop the bombshell that I was no longer a teacher but instead, I had become admin. For all of my current 0.8 and into the foreseeable future I would be in the Recruitment Team!
I have been prompted to write this letter today as it has been a week since you last called me. I still have no answers to any of my questions regarding my teaching. No one seems to have any idea what I am doing here and I am confused and upset. I have attended Gtec to teach and been told by Karen and Shae that the classes would be combined and that I had no teaching. I have also been told today that even though Shae is teaching in Bairnsdale on Thursday, rather than let me take the class I have prepped for, TAFE will pay a sessional teacher (Kirsten) to come and teach! What is going on?”
Ms Stanton-Long asked for enlightenment about the questions she had raised and requested a meeting with Mr Shelton.
When Ms Stanton-Long next attended, on 2 February 2017, Ms Shae McGregor was not available to take the combined class but Mr Shelton had organised for a sessional teacher, Karen Sciberras, to do so. On the same day, Mr Shelton directed Ms Stanton-Long to attend a meeting with him and an in-house lawyer from Federation Training the following day and to bring a support person.
Onto February 2017, Ms Stanton-Long sent an email to Mr Davis and Ms Karen Bird (and a P. Smith), which is annexure RHSL-24. It is at CB247-248. Once again, on any reading of the document, it was
a complaint about her work. The email made a number of complaints about Mr Shelton’s conduct. In my view, relevantly, it asserted:
“Today, I arrived for work at Gtec to teach a class that I had spent the past weeks preparing for, only to find that a sessional teacher had been brought in to teach. I have a current 0.8 teaching contract until the end of February 2017 and by all accounts, was expected to have a 0.6 teaching contract for the remainder of 2017 (with a hope of obtaining 0.2 through P2P once all the budgets had been set, but I knew this was not a sure thing).”
Having set out details of her experience and commitment, she went on to say:
“I decided to come home today and work from home. I have some final figures for Paddock to Plate to get off to Linda Austin and I will continue to hope that I get some response from someone at TAFE, other than being summoned to a HR meeting. It was very uncomfortable and upsetting, for both me and the other staff members, for me to stay at Gtec today. I try not to use the word “bullying” lightly, but the way I have been ignored and kept in the dark regarding my employment, is tantamount to just that. I feel very sad and disappointed that all the work I have put in to TAFE over the years seems to mean nothing. I am very distressed about the whole situation. This is not some part-time, gap-fill job to me, this is my career and one I have worked hard to achieve and build a strong reputation among the CALD and LLN communities, in both the Latrobe Valley & Wellington Shire. Gipps/Advance TAFE was once an employer of choice, it is depressing and frustrating to see what it has become. Unfortunately, many more great staff are looking elsewhere for work.
I am available via telephone or email, should you wish to discuss this with me further.”
Mr Davis’ response, at CB248, was short:
“Dear Robyn
Thank you for your email. It’s difficult for me to respond at this stage as I have not had the opportunity to speak with Mark or HR. Can you leave it with me please.
Best Regards,
Jonathan”
Thereafter, Mr Shelton sought to press for a meeting with Ms Stanton-Long but this did not occur and Ms Stanton-Long became unwell. On 9 February 2017, the respondent sent Ms Stanton-Long a letter terminating her employment with immediate effect. It is at CB260. It should be noted that prior to this Ms Stanton-Long had provided medical certificates covering her from 6 to 21 February 2017 and that she had on 8 February 2017 confirmed to Mr Shelton that she would not be able to attend a meeting with him for that period of time.
The letter of dismissal at CB260 is as follows:
“Dear Robyn
I confirm that your Manager Mark Shelton had arranged to meet with you today to discuss your contract of employment with Federation Training which you declined. I understand that you are currently on sick leave until 21 February 2017.
I refer to your current Contract with Federation Training. Your Contract states that there is nothing implicit or explicit in the Contract that imposes any obligation on either party to offer or accept any future employment. At the expiry of the term of the Contract, your employment with Federation Training would cease.
In accordance with the terms of your Contract, your employment contract ends as of 28 February 2017. In this case Federation Training has determined that your employment will end immediately and you will be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including 28 February 2017. The decision to make a payment in lieu of the remainder of your contract to you has been made to assist you so you can be free to look for alternative work and as there is no specific work required for you to undertake at Federation Training at present.
I wish to take this opportunity to thank you for your contribution to the Institute. We wish you well in your future endeavours.”
The Affidavit of Mr Davis
Mr Davis gives details of his employment with Federation Training
(he is no longer so employed). It would appear that he was in fact employed from 27 June 2016 until 15 February 2018. I note that in 2014 Federation Training was formed when Advanced TAFE based in East Gippsland was merged with Central Gippsland TAFE based in Central Gippsland. The organisation operates from 11 campuses and therefore has obvious organisational complexities.
Mr Davis deposed (CB573) in mid-2016 when he joined the organisation he determined that there were excess employees and that staff should be made redundant. This led to media attention in late-2016 which was unwelcome. He deposed that he was instructed by
Dr Xavier Csar, Executive Director TAFE and Participation Division at the Victorian Department of Education, to extend the contracts of any teaching staff whose fixed-term contracts were due to expire in December 2016 to the end of February 2017 to avoid any further negative media comment. He deposed that (paragraph 17, CB574):
“The approach from then on was that employees in late 2016 (including the Applicant in this case) did not have their employment ended when the curriculum year ended in December 2016. Rather, many employees were given an extension to 28 February 2017. This allowed Federation Training to reduce the announcement of any further redundancies or non-renewable of contracts, in accordance with the Department’s wishes, and retain staff pending enrolments in early 2017.”
Mr Davis went on to give evidence about the Paddock to Plate Program and deposed that funding for it had largely been exhausted by the end of 2016 although the course was required to be offered in 2017. He deposed that in 2017 the Paddock to Plate training was conducted exclusively by chefs.
Mr Davis deposed that there were low student enrolments in early 2017, which were interrelated with, or addressed in part by, enrolment days on 1 February 2017 and 8 February 2018. He deposes at CB576 that after the enrolment days at Traralgon and Warragul (Saturday
8 February 2017) he was “concerned to ensure that employees (including Ms Stanton-Long) who had no work to do were properly utilised by Federation Training.” He deposed that on 17 January 2017 he sent an email to his then Education Managers asking if they had any staff who were under-utilised and available for recruitment and to identify those staff.
It is immediately obvious that either this affidavit has been poorly crafted or that its terms are nonsensical. The email of 17 January 2017 long predated the enrolment days at Traralgon and Warragul.
In fact the email (CB581) is not entirely consistent in my view with the terms of Mr Davis’ affidavit. What it says is:
“Good Afternoon
Customer enquiries to the recruitment team are increasing and
I would like to expand the team in the short term to meet demand.
I would like each Education Manager to identify up to 2 teaching staff that we can second to the recruitment team to deal with demand up to middle of February 2017.
Can you please provide me with a list of names of suitable staff by the end of the day.”
It should be noted that contrary to what he was saying in his affidavit, this extract suggests that in fact enquiries for student enrolments, which may indeed have been down, were nonetheless of such significance that additional staff had to be applied to deal with their numbers.
Mr Shelton responded on the same day (CB583) stating:
“Hi Jonathan,
The only contract staff member I currently have who will be under-loaded this year is Robyn Stanton-Long. I’m happy to nominate her for this role, she is currently on a .8 time fraction.”
I note that at least two other persons were so nominated as was
Ms Stanton-Long, but I note that they were persons who were expressly described as having good marketing skills.
Mr Davis went on to depose that he had ongoing discussions during December/January 2017 about staff who had been identified as surplus due to no teaching. He deposes (without more) “One of the employees who had been identified as potentially having no teaching in 2017 was the Applicant in this case.” He deposed (CB577) that on 9 February 2017 Ms Junker the Human Resources Manager sent him a copy of a proposed termination letter. The effect of the email was that it recommended that he provide his electronic signature to the letter to terminate the employment of the Applicant. Annexure JSD-5 is a copy of the email. It is at CB591-592. The email exchange thus disclosed is worthy of note. It begins with Ms Stanton-Long’s email to Mr Shelton earlier referred to explaining that she would not be available for two weeks for meetings because of ill health. Ms Junker was forwarded that message and herself forwarded it to Ms Helen Carter with a message in these terms:
“Hi Helen,
I have refdrafted the letter to Robyn,
Can you have a look over for me.
Please see also email she sent Mark last night.” [sic]
It should be noted that the email from Ms Stanton-Long was making a complaint as to what was going on in her employment.
Ms Junker’s email message to Mr Davis simply says:
“Hi Jonathan,
Helen has reviewed this letter can you please authorise Alison to put your signature on it. I would like to get of by COB today.” [sic]
I would infer that Ms Carter is the in-house lawyer for the respondent.
Mr Davis deposes that the decision to approve the termination letter was solely based on Ms Junker’s recommendation. He deposes to having no other reason in mind save the lack of work available for
Ms Stanton-Long.
The Evidence – the Affidavit of Ms Junker
Ms Junker is and has been for some three or more years the Human Resources Manager of the respondent. Relevantly for these purposes she deposes that the process of annual planning is complicated, as one might imagine, by the question of enrolments. She deposed to the difficulties in November 2016 in relation to the terminations of employment. She deposed to being present when Dr Csar allegedly spoke to Mr Davis about extending fixed-term contracts. She went on to depose that following an abortive endeavour to have the applicant attend “training” in recruitment Mr Shelton told her that he had no teaching load for the applicant. No date is given for this conversation. She then goes on to depose, without more, that on or about 3 February 2017 she spoke with Mr Davis and advised him that the applicant’s contract could not be extended as there was not a current workload for her as advised by Mr Shelton. She then went on to depose to the abortive endeavours of Mr Shelton to meet the applicant. At CB603 she deposes:
“On 9 February 2017, given that the Applicant had only three weeks left of her contract, and I knew from my conversations with Shelton (paragraph [41] above) and Davis (paragraph [42] above) that we would not be renewing the Applicant’s contract, I drafted a letter to the Applicant informing her of this decision. I did this to increase the amount of time the Applicant had to seek alternative employment. I forwarded the Applicant’s email shown in the exhibit ‘SJ-1’ at page 95 to Davis, and attached the draft letter I had prepared asking him to provide his electronic signature and approval.”
She went on to depose to that being executed. She went on to say at paragraph 48 (CB604):
“At the time of recommending to Davis that the Applicant’s employment not be extended I had only one reason for that decision. That reason was the lack of work available for the Applicant at Federation Training.”
It should be noted that Ms Stanton-Long’s status in December 2016 had been described (CB681) as “Fixed term contract end pending enrolments”.
The Affidavit of Mr Shelton
Mr Shelton was employed until mid-2017 by the respondent when his employment was terminated. He deposed to the end of the SEE programs in 2015 but he was able to find Ms Stanton-Long
an opportunity as the coordinator at the Paddock to Plate Program at the Gtec campus in Sale. She was also doing some VCAL teaching. He deposed that he had managed to get Ms Stanton-Long onto a longer contract as a teacher at the beginning of 2016. The use of coordinators for Paddock to Plate was to get the program off the ground.
He deposed that by the end of 2016 the funding for that program was almost exhausted and there was no budget left for coordination (CB699). He deposed the focus of the program shifted to the delivery of hospitality and horticultural training and the budget was entirely devoted to teaching staff in those areas. He deposed that to his knowledge Ms Stanton-Long was not a qualified hospitality
or horticultural trainer. He deposed to this affecting other employees as well. He deposed that the breakeven point for Work Eduation Certificate I was 10 students per group. He deposed that Ms Stanton-Long did not have the necessary qualification to teach the Adult Migrant English program, something that had been discussed. I note that on 17 January 2017 Mr Shelton received an email already referred to from Mr Davis asking who might be able to assist in recruitment. He deposed paragraph 19, CB700 “I responded to Mr Davis’ emails to the effect that ‘only Robyn had no teaching load’ and would be available for recruitment”.
It should be noted that the phraseology of the affidavit is incorrect. What he actually said was “the only contract staff member I currently have who will be under-loaded this year is Robyn Stanton-Long”.
At CB701 Mr Shelton deposed to a conversation on 25 January 2018 with Ms Stanton-Long whom he deposed said words like “I am a teacher, I should not be doing admin”. He deposed “My reason for putting the Applicant forward as a person with no teaching load (as I did in the email exhibited as ‘MS-1’ above) was only that there was no such teaching load at the end of 2016 or in January 2017. I had no other reason other than the lack of teaching load in my mind for sending my response contained in ‘MS-1’ to Mr Davis”. He went on to depose numbers for the Work Education Certificate I classes towards the end of January reached 22 but that the ultimate outcome was only 17, not being enough. He deposed:
“There was nothing for the Applicant to teach. This was not ‘plan B’ or some fall-back arrangement, trying to ensure there was work for Ms Stanton-Long. I was out of options, and down to ‘plan E’ with the SEE program and Adult VCAL program no longer running; The Youth VCAL program not an option due to Robyn’s desire not to teach this cohort; and the lack of qualifications she possessed to teach the AMEP program.
Once I realised that I could not split the Work Education Group, and that the Applicant would not have a teaching load for 2017, I phoned Sharon Junker and told her words to this effect.”
He then went on to depose to the unsuccessful subsequent endeavours to meet Ms Stanton-Long.
The Evidence Given About this Matter at Court – the Applicant
What follows is taken from my notes.
The applicant adopted her affidavits as true and correct.
Under cross-examination she confirmed that she had undertaken VCAL work. It was not just overseas students but some native speakers of English. In January 2017 she was on a 0.8 contract which was
a continuation of her previous contract. She had a teaching load for 2017. Her position was not extended to see if she might or might not have a workload. The extension was to start the year and get everything started. Mr Shelton had told her in late-2016 there would be a further contract extension. When taken to the 2016 contract dated 2 February 2015 (an error all parties accept) she said the contracts were always late. The 2017 contract was very unusual. It was only for a month until the end of February 2017. She said there was no such thing as Adult VCAL.
When cross-examined about the Paddock to Plate Program she denied that hospitality and other teachers took over. She said she did exactly the same work in 2016. She changed campuses and Mr Shelton was the Team Leader. She did not agree with paragraph 10 of Mr Shelton’s affidavit (CB699). She has qualifications in English and work-related skills. Until the end of 2016 Mr Shelton was still getting her to extend the garden. She also delivered VCAL as well as hospitality and horticulture. The focus was always on hospitality and horticulture. Her contract was split fifty-fifty between teaching and administration. Ms Lisa Kuhne resigned and Mr Chris Kleine was on sick leave from Gtec. Mr Kleine is still contracted to Paddock to Plate. Ms Kuhne was working at West Gippsland and resigned. The courses at Leongatha and Paddock to Plate were going well. They have reinstated the restaurant and Yooralla is also interested.
Ms Stanton-Long denied refusing to teach Youth VCAL. She did not tell Mr Shelton this. She would not say “I don’t want to work with these people”.
She confirmed that she sought to teach the Adult Migrant English Program but Mr Shelton thought she did not have the qualifications, whereas in fact she does. Classes in Sale ceased in December 2016 but continued in Traralgon. She could have taught any of the VCAL classes. She has a Certificate in Literacy and Numeracy. She could teach Disability classes and others were not more qualified. She could teach Certificate I in Work Education and this was allocated to her and Ms Shae McGregor. They already had two classes ready to go.
Ms Stanton-Long said that she had been asked to work in Certificate of Literature and Numeracy which was her preference. There was still
.2 available in Paddock to Plate which usually started a bit later. It was always on-going and had not changed. She had offered to undertake anything needed of her until teaching started. Mr Shelton told her she would be staying in recruitment to which she then said “I am a teacher and should not be doing administration”. She did not leave the Recruitment Team. All teachers do some recruitment in holidays. She said that Mr Shelton told her “Go and do the training. You’ll be staying there.”
In re-examination, Ms Stanton-Long confirmed that an employee
Mr David Wakefield who covered for her in February 2017 when she was ill was still employed. This was several months after her dismissal when she went to get her belongings. She confirmed that Paddock to Plate was always about hospitality and horticulture. Teaching required generic work skills.
The Evidence of Dr Xavier Csar
Dr Csar is, without worrying too much about his title, a Senior Government Official having responsibility for TAFE. In evidence-in-chief, (he appeared under subpoena) he said he had discussions with Mr Davis at various times. He said he had no power to direct any employment. He would have talked about community confidence in the TAFE system. A number of fixed-term contracts were ending at the end of 2016 and he had asked Mr Davis whether they were ready for the next year. He had asked whether it was appropriate for the contracts to end so close to the start of the New Year. He had never operated a TAFE himself but it is towards the end of February that one gets an idea of class sizes. He had discussed this often with Mr Davis by phone. He had no power to direct extension of contracts although he could request that thought be given to what operational matters might be. He had noted media comments and noted the need for confidence in TAFE. His principal concern was to optimise enrolments. He did not recall saying that the Department could advance funds to enable continued employment. No specific money had been advanced for the employees who were to be dismissed.
Under cross-examination by counsel for the respondent Dr Csar confirmed that he had a number of discussions with Mr Davis in December 2016. Mr Davis had started employment some 6-7 months before. TAFEs are independent.
The Evidence of Mr Jonathan Davis
In evidence-in-chief, Mr Davis confirmed that he is employed in NSW TAFE. He was Managing Director of the respondent until February 2018. He adopted his affidavit as true and correct. A number of staff had contracts which were due to end at the end of the academic year and which were extended until February to see how many students they might have. There was a recommendation from Ms Junker that there was no teaching available for Ms Stanton-Long. He was asked not to approve new contracts for staff including Ms Stanton-Long.
Under cross-examination Mr Davis recalled the article at CB579 on the ABC News about cuts to jobs in Gippsland. He had spoken to the reporter. He believed that the respondent should have more permanent employment. He was familiar with the respondent’s Financial Report. He noted that there was a significant improvement in the respondent’s Financial Report for 2016 over 2015. He said it was very much dependent on your grants. You had to bid each year. In 2017 the budget was for a deficit. There was only one certain grant for the sum of $6.5 million. The deficit in the budget was $13.5 million whereas the deficit the previous year was $14 million. He conceded that there were no student numbers in his affidavit. Several courses turned out to have very small numbers. He was adamant that Dr Csar did issue a directive to him to maintain the employment of the fixed-term employees. He also said that some funds had been provided by the government notwithstanding Dr Csar’s evidence. He said it was provided but not specifically for those positions.
He said there is a grant to boost TAFE funding which is provided toward the end of the year to ensure that TAFE breaks even. There was $11 million in the TAFE boost which led to a $1.1 million surplus.
Dr Csar said that the funds would be available until the end of February 2017. Dr Csar wanted to extend the contracts to see what enrolments would be and did say this was in part to avoid media coverage.
Mr Davis understood he had to consult with staff who might be surplus to requirements.
When taken to Ms Stanton-Long’s email of 17 January 2017 (CB236-237) he said he thought he would talk to Ms Karen Bird about it. The discussion would be about how much work they needed. He could not recall when these discussions took place.
Mr Davis confirmed that he had used Ms Stanton-Long to assist recruitment. He wanted to use staff to answer customer enquiries. When taken to CB236 and Ms Stanton-Long’s request for a .2 fraction he conceded that she was down from .8 to .6. He did not know
Ms Stanton-Long. He was not aware of her complaints at the time.
He conceded that Ms Stanton-Long’s email of 2 February 2017 (CB247-248) was a complaint about Mr Shelton.
He conceded that he was familiar with the respondent’s Code of Conduct. If the applicant had been bullied it would be a breach of the Code. He was also aware of the employee disciplinary procedure.
He said he had spoken to Ms Junker about the applicant on 3 February 2017 but could not recall the conversation. He could not recall if he had asked Ms Junker to investigate Ms Stanton-Long’s complaint. Several staff had contracts due to expire. Mr Davis conceded that no investigation into Mr Shelton’s conduct had occurred. He did not ask Ms Junker to investigate Mr Shelton’s conduct as alleged by
Ms Stanton-Long. If Ms Stanton-Long had stayed on until the end of February they would have had to investigate her complaint. He said it was clear there was no work there for her in 2017. He said that they would have a clearer picture of enrolments by the end of February.
It was clear there were not enough students to run Ms Stanton-Long’s course. He conceded there is no reference to Ms Stanton-Long’s complaint in his affidavit at all. The decision to dismiss had been based on the fact that there was no work for the applicant.
The Evidence of Mr Mark Shelton
Mr Shelton adopted his affidavit as true and correct. He had been the Education Manager and Ms Stanton-Long reported to him. He ascertained whether there was work for the applicant and referred this information to Ms Sharon Junker. The reason for the termination was lack of work and no other reason.
Under cross-examination Mr Shelton confirmed that his employment was terminated on 12 July 2017. In 2014 Ms Stanton-Long taught work-related skills at Morwell in the SEE program. In 2015 SEE was transferred into VCAL along with the WRS unit. The applicant reported to him in 2015, 2016 and 2017. He was familiar with her qualifications. Mr Shelton was cross-examined about paragraph 42 of the applicant’s affidavit CB108. He said that any teacher in VET needs a training assessment. If employed at a higher level it would be levels 3, 4 or 5. AQF is level 5. The applicant was on the lower of two levels for casuals. He would have said he would discuss the matter with Human Resources. An Advanced Diploma of LLN is grade 5. He spoke to someone in Human Resources but could not remember if he had got back to the applicant. The question had been about the Advanced Diploma of LLN.
Mr Shelton said, the applicant was due to be employed in 2017 dependent upon student numbers. She had no teaching load in mid-January 2017. The applicant had been assigned to teach depending upon the numbers.
Mr Shelton confirmed that he had a conversation with Ms Stanton-Long on 25 January 2018. He did not appreciate the call. Ms Stanton-Long made it clear she did not want to help with recruitment. He had been asked by Mr Davis to find people to assist with recruitment. He was aware of enrolment days held at Bairnsdale and Sale on 1 February 2017 and at Traralgon and Warragul on 8 February 2017.
He was also aware of Ms Stanton-Long’s email to him on 31 January 2017 (CB244-245). He had told Ms Junker by 3 February that there was no workload for the applicant. He said that Ms Stanton-Long refused to teach the Younger Cohort of VCAL. He denied that she had ever been rostered into Youth VCAL. When it was put to him that there was no such thing as separate Adult and Youth VCAL he said this was not true. SEE was mainly adults. The existing cohort is VCAL. The Adult Cohort is different. When it was put to him that Ms Stanton-Long had offered to teach the Youth VCAL Mr Shelton said this was contrary to every discussion they had had. She had no experience with the Youth Cohort.
The Adult Group at Gtec had disbanded. This was the group that Ms Stanton-Long taught. He got two adult youth students into the ongoing course. Ms Stanton-Long was not confident with the VCAL Cohort on her own. She had told him on numerous occasions that she was not competent in Youth VCAL. The class she was going to teach was the Work Education Group. It did not end up running the following year.
When cross-examined about the Adult Migrant Education Program,
Mr Shelton said you needed a Bachelor Degree and other qualifications. You needed Post-Grad TESOL plus 60 hours of experience. This evidence was given with conviction and I accept it. While he conceded that Ms Stanton-Long may be teaching AMEP at Kangan Batman, he went through this with another teacher who had to do their practical.
Mr Shelton was adamant that Paddock to Plate when implemented would move from coordination to horticulture and hospitality. Paddock to Plate involved people getting ready for work. It needed hospitality or horticultural skills. The applicant’s contract was half teaching and half administration in 2016. Mr Shelton conceded that Mr Kleine had been on extended sick leave at the end of 2016 and that Ms Kuhne had resigned. Mr Wakefield had been engaged in February 2017. When it was put to him that the applicant could have done Mr Wakefield’s work Mr Shelton said he could not get the applicant to have a meeting to discuss options. Mr Wakefield had been at Morwell for at least two years and Mr Shelton asked him to come to teach the class in Youth VCAL. This was not backfill for the applicant but for Ms Kuhne.
Mr Shelton conceded he had not mentioned Ms Stanton-Long’s complaint in his affidavit. It was not part of the reason there was no work. The reality was that her class did not run. The complaint had no impact on him.
In re-examination Mr Shelton said that he had to decide what classes were going to run. 95 per cent of Youth Cohort come from special schools. He had to start earlier than other managers. There were two Work Education Groups. The 2016 course was up and running. There were enough for one group. He wanted one at Bairnsdale and one at Sale and Ms Stanton-Long was to do Sale. In the event however only one course ran in 2017. The applicant was the last of the three coordinators in the Paddock to Plate to go.
The Evidence of Ms Sharon Junker
Ms Junker adopted her affidavit as true and correct.
Under cross-examination, Ms Junker recalled the list of employees at CB681-682 and said that Ms Stanton-Long’s employment depended upon enrolments. She did not know whether Mr Shelton had replied to her email dated 4 December 2016 (CB679).
Ms Junker had read Ms Stanton-Long’s complaint (exhibit A7). Bullying would be a breach of the Code of Conduct. She was familiar with the disciplinary procedures. Bullying is serious.
She had had a discussion with Mr Davis on 3 February 2017. She could not remember their conversation. She presumed it discussed the email. She remembered Mr Shelton saying that Ms Stanton-Long made a forceful phone call. She saw the email Ms Stanton-Long sent to Mr Shelton and the email she sent to Mr Davis. It was a more formal complaint. The decision had already been made by Mr Shelton. The respondent was obliged to investigate Ms Stanton-Long’s complaint. She did not investigate it. She accepted Mr Shelton’s view. The decision to terminate Ms Stanton-Long’s employment was made in November 2016 (together with a number of other employees) then the department said to keep them on longer. The end of the applicant’s employment was brought forward to 9 February 2017. When it was put to her that this meant that they did not have to investigate the complaint against Mr Shelton, Ms Junker agreed. They had not addressed her complaints. She had not mentioned these complaints in her affidavit because they were not relevant.
Exhibit A10
Exhibit A10 is a document produced under subpoena pursuant to a call for production by counsel for the applicant during the running of the case. I have given a separate ruling as to why I did not allow the parties to make further submissions about it. This shows that on the
3 February Stephanie Finch sent to what I suspect must have been departmental heads but, for these purposes relevantly sent Ms Junker an email on the subject of fixed term teaching contracts. It showed
a spreadsheet of all fixed term contacts due to end on 28 February 2017 and stated:
“To assist with the planning for this busy time could you please provide me with the existing CELCAT data of all current Teachers and student numbers. Could you please also review the below list and advise if these staff will be required past the 28th of February.
Could you please have this information to me by Monday afternoon, February 6th.”
Ms Stanton-Long was one of these teachers in the group concerned.
On 8 February 2017 Ms Junker forwarded Ms Finch’s email to
Ms Carter and Mr Davis. The text of the email stated:
“Steph sent this out to all Ed managers on Friday. We have only received one response from Carol.
This will need to be discussed on Friday and Monday in our meetings as we need to let these staff members know if they have a contract or not going forward.
Just wanted to flag with you. I know they may not be able to access accurate data.”
The parties positions about the Adverse Action Claim
As the applicant’s written submissions point out there is no issue between the parties that:
a)the termination of Ms Stanton-Long’s employment constituted adverse action against her within the meaning of s.342 of the FW Act by dismissing her; and
b)Ms Stanton-Long had made complaints or inquiries in relation to her employment and thus exercised a workplace right within the meaning of s.340(1)(c) of the FW Act (CB835).
The first issue identified by the applicant’s submissions is whether there was a refusal to employ Ms Stanton-Long in 2017. This is said to be constituted by the failure to offer her a point .6 EFT contract referred to by Mr Shelton in mid-December 2016 and Mr Davis in the email dated 17 January 2017, and the failure to offer her any employment after her dismissal and employing other people instead of Ms Stanton-Long to perform work. It is further put, and this matter is to my way of thinking preliminary to the other, that the decision to terminate
Ms Stanton-Long’s employment was as a result of her workplace complaint.
The applicant says that the reverse onus in s.361 of the FW Act is engaged in these circumstances.
The respondent denies that there was any dismissal (see written submissions paragraphs 76-81 (CB863)) because the contract terminated through the effluxion of time and there was no termination of employment at the initiative of the employer. The matter is encapsulated at paragraph 81 as follows:
“Ms Stanton-Long was informed by letter on 9 February 2017 that no new contract would be offered, and that she would be paid until the nominated end date on 28 February 2018, and that she would not offered [sic] a new contract of employment. Subsequently, this cannot be characterised as the employee being ‘dismissed’ for the purposes of the FW Act section 342(1)(a).”
The respondent also submits further that in any event such actions as were taken in respect of Ms Stanton-Long were not taken because of her workplace complaints. Rather it is put that there was “no teaching for her to do in 2017” (paragraph 89, CB864).
Findings on the Adverse Action Claim
Ms Stanton-Long was employed in 2016 as teacher and Paddock to Plate Coordinator. The contract is at CB218-221.
Mr Davis, who had only commenced employment in June 2016, embarked upon an endeavour to make a number of employees redundant. This attracted adverse media coverage (see CB579). This then led to an intervention by Dr Csar. Dr Csar was at great pains to put it that he had not instructed the respondent to extend staff contracts and had no power to do so. It became quite clear from the evidence given as a whole, however, that he is a man of great authority in the TAFE system and I have no doubt that any suggestion he might make would be likely to attract favourable responses from individual TAFE organisations. I have no doubt that he made it clear that the government did not appreciate the negative press and that he intimated one way or another that a number of employees should be rolled over to 2017 to avoid this. It should be noted however that the majority of the employees concerned are described by Mr Davis in his own affidavit as support staff.
I note that in his discussion with Ms Junker (see Ms Junker’s affidavit paragraphs 29 and following CB601) there were originally 30 support and administrative employees whose employment would not continue. Discussions were to be undertaken with teaching staff.
On 4 December 2016 Ms Junker wrote to Mr Shelton (CB679) with details of “summary of fixed term and casual staff contracts with required status for 2017 from our budget meetings (please note that unless there is a change in contract details ongoing staff are not on this list)”.
Ms Stanton-Long’s name is on the list (CB681), and it was seen that Ms Stanton-Long was one of those whose fixed term contracts at the least that might not have been renewed.
Ms Stanton-Long has deposed without material challenge that prior to the Christmas break in 2016 she was told by Mr Shelton that Gtec campus would no longer deliver AFS and that funding for the Paddock to Plate Program had been cut. Mr Shelton told her that in 2017 she would be teaching 0.6 in Certificate I in Work Education. They discussed the question of the teaching of high needs students (a matter somewhat in issue).
Ms Stanton-Long was then offered the addendum contract extension as a level of 0.8 EFT on 13 December 2016 (CB234) which extended the extant contract due to end at the end of the year. On 17 January 2017 Mr Davis sent his email to various persons inquiring the identity of two teaching staff to be seconded to recruitment to deal with demand until the middle of February 2017 (CB581). Mr Shelton replied the same day that “The only contract staff member I currently have who will be under-loaded this year is Robyn Stanton-Long. I’m happy to nominate her for this role, she is currently on a .8 time fraction.” (CB583).
Thereafter, the matter was, as I find, scarcely very well communicated to Ms Stanton-Long who was sent from pillar to post with no very clear instructions as to what she should do. I accept, as Mr Shelton says, that at some point Ms Stanton-Long said to him that she was a teacher and should not be doing administration. This was in the circumstances scarcely an unreasonable response.
It appears there was said to be low student enrolments in early 2017 (Mr Davis affidavit, CB576). Enrolment days were foreshadowed for the first 10 days or so of February 2017. It is important to note that additional staff had had to be recruited to deal with the excess number of inquiries coming in.
On 17 January 2017 Ms Stanton-Long wrote to Mr Davis and Ms Bird. She set out the work she had done. She pointed out that her contract had previously been for 0.4 teaching and 0.4 Paddock to Plate but that she had been dropped back to 0.6 teaching only the day before with no time allowed for management of the site. Mr Davis responded relevantly “the funding for the P2P program is limited, which is why your contract has reverted to 0.6” (CB236).
It is clear that Ms Stanton-Long continued to work in preparation for the Certificate I in Work Education Disability Course with
Ms McGregor (see annexure RHSL-22).
On 30 January 2017 Ms Stanton-Long arrived ready to teach but was told that she would not be teaching. Her endeavours to contact
Mr Shelton proved unproductive. On the next day she had still not heard from Mr Shelton and sent him annexure RHSL-23. This is at CB244-245. This document in my view is telling because it is a contemporaneous recitation of the history. It sets out the various things that Ms Stanton-Long was prepared to do and sought a meeting to sort matters out.
Thereafter, Ms Stanton-Long became unwell but on 2 February 2017 Ms Stanton-Long attended work only to find that Ms Kirsten Sciberras had been given her class. She sent an email to Mr Davis and Ms Bird complaining about this and about Mr Shelton. Relevantly, CB247
Ms Stanton-Long asserted:
“Today I arrived for work at Gtec to teach a class that I had spent the past weeks preparing for, only to find that a sessional teacher had been brought in to teach. I have a current 0.8 teaching contract until end of Feb 2017 and by all accounts, was expecting to have a 0.6 teaching contract for the remainder of 2017 (with a hope of obtaining 0.2 through P2P once all the budgets had been set, but I knew this was not a sure thing) I was prepared to continue building the gardens in my own time until something was sorted. Upon arrival at Gtec this morning I was met by the campus manager, Karen Kitto. She was obviously upset and not prepared to talk to me regarding this matter or give me any idea on what I was supposed to be doing for the day. All she could say to me was “take it higher”.
Ms Junker has said that on 3 February 2017 she spoke with Mr Davis and advised him that Ms Stanton-Long’s current contract could not be extended as there was not a current workload for her, as advised by
Mr Shelton. Ms Junker and Mr Shelton endeavoured to organise
a meeting with Ms Stanton-Long but for reasons including her health this was not immediately possible. Ms Stanton-Long notified
Mr Shelton on 8 February 2017 that she would be unable to attend meetings for several weeks and sought a clear outline of the agenda of the proposed meeting (CB691). This then led to Ms Junker sending
a draft letter of termination of employment to Ms Helen Carter on
9 February 2017 which, following review, Ms Junker forwarded to
Mr Davis, as earlier indicated, stating “Helen has reviewed this letter can you please authorise Alison to put your signature on it. I would like to get of [sic] by COB today” (CB692).
The same day the letter was sent. Relevantly, the termination letter CB694 states:
“In accordance with the terms of your Contract, your employment contract ends as of 28 February 2017. In this case Federation Training has determined that your employment will end immediately and you will be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including 28 February 2017. The decision to make a payment in lieu of the remainder of your contract to you has been made to assist you so that you can be free to look for alternative work and as there is no specific work required for you to undertake at Federation Training at present.”
It should be noted that the same email observed, “I understand that you are currently on sick leave until 21 February 2017.” The letter accuses Ms Stanton-Long of declining to meet Mr Shelton. This was true but, in circumstances where Ms Stanton-Long was known to be ill, the accusation sits rather unpleasantly.
The first issue to be decided is the respondent’s preliminary assertion that the employment contract did not constitute a dismissal because it came to an end according to its terms. This matter may be dealt with shortly. The contract did not come to an end according with its terms and therefore expire through effluxion of time. The actions of the respondent in terminating Ms Stanton-Long’s employment summarily on 9 February 2017 was not in accordance with the contract as extended, and the contract therefore did not come to an end according to its terms through effluxion of time.
The next issue is why this action, which clearly was adverse action, took place. Lest there be any need to expand on the proposition,
Ms Stanton-Long was on any view of the matter deprived of the opportunity to continue in employment from 21 February 2017 until
28 February 2017.
I have observed Mr Davis, Ms Junker and Mr Shelton give their evidence. Each of them has denied that the complaints made by
Ms Stanton-Long operated in any way upon the course of events. Rather, it is put that there was simply not enough teaching load available for Ms Stanton-Long to perform.
This proposition derived essentially from the evidence of Mr Shelton. It is clear that had student numbers been greater Ms Stanton-Long’s employment would have continued. This was Mr Shelton’s evident purpose in having her liaise with Ms McGregor.
I formed the clear impression that Mr Shelton did not like Ms Stanton-Long. He was, in my view, overly dismissive of her qualifications and went out of his way to be so. Nonetheless, notwithstanding some anomalies in Mr Shelton’s evidence, I accept the general thrust of his position that there were not enough students, as it were, to go round.
All this sits uneasily with a number of objective features of the evidence. The thrust and gravamen of the respondent’s position is that there were simply not enough students to justify Ms Stanton-Long’s continuing employment. She had already been told by Mr Davis that her contract had reverted to 0.6 because of the reduction in funding to the Paddock to Plate. Furthermore, student inquiries were such that extra people had to be allocated to deal with the possible recruitments. Furthermore, another teacher, Ms Sciberras, was engaged to teach
a class that the applicant proposed to teach. As if that is not enough, there were enrolment days due at or about the time of Ms Stanton-Long’s dismissal. All of these matters are also to an extent supported by exhibit A10, which shows that as late as 8 February 2017 the further employment of the employees extended to 28 February 2017 was still under active consideration.
While I think that Mr Shelton, who was clearly irritated by his conversation with Ms Stanton-Long in which she indicated a disdain for administrative work and who, it seems to me, disliked him more generally, allowed these matters to influence the way he went forward, I do not think it was the making of complaints by Ms Stanton-Long that led to this outcome. Despite the anomalies I have just referred to,
I accept Mr Shelton’s evidence about his perception of whether there was work for Ms Stanton-Long to do in 2017.
In the ultimate, therefore, I am prepared to accept that so far as
Mr Shelton is concerned the assertion he made to Ms Junker that there was not enough work to retain Ms Stanton-Long was not one activated in any way by her complaints.
With Ms Junker, however, the position is different. I did not find
Ms Junker a particularly impressive witness. She was at pains, in my view, to respond to questions unhelpfully in cross-examination. Whereas the position as expounded to her by Mr Shelton may not have been activated in any way by Ms Stanton-Long’s complaints, I think that the decision to bring forward the term of the cessation of
Ms Stanton-Long’s employment was quite clearly motivated at least in part by the fact that she had made an ongoing complaint against
Mr Shelton. The haste with which the matter was addressed (“I want to get this out today”) is not in my view otherwise explained.
Ms Stanton-Long was known to be on sick leave for several weeks. There was no need for haste. However, once one accepts that
Ms Stanton-Long had made a complaint, a complaint which Ms Junker admitted in cross-examination was rendered effectively inoperable by the cessation of the employment, it is quite clear that this matter did indeed operate upon the decision.
The same, in my view, is true of Mr Davis. He says there was no other reason than the lack of students. It is plain that he was aware of
Ms Stanton-Long’s complaint. Her early cessation of employment removed a problem. I am not satisfied in respect of therefore Mr Davis or Ms Junker that the action that they took was not at least in part as
a result of the complaints that Ms Stanton-Long had made.
However, it should be noted that the failure to offer Ms Stanton-Long further employment was not, in my view, caused by her complaints. Albeit that the matter was handled in a fashion unfair and inconsiderate to Ms Stanton-Long, who had every reason to suppose that her employment would continue based upon what both Mr Shelton and
Mr Davis had told her, the true reason despite its awkward handling and indeed inappropriate handling by the respondent was simply a lack of students.
Failure to follow redundancy processes and failure to pay
Ms Stanton-Long redundancy payment
Clause 22 of the MBA sets out a process to deal with circumstances where the employer seeks to identify employees in excess of employer requirements. Clause 22, CB363 reads:
“22.1. Subject to this clause, the parties agree that Institute policies in relation to Redeployment and Termination of Employment are to apply for the life of this Agreement. Such policies may only be varied following consultation with and agreement of the ICC. It is acknowledged that such policies are not to be taken to abrogate any rights an Employee may have in equity or in law.
22.2. The Employer will adopt the following process to identify Employees in excess of Employer requirements and therefore to be considered for selection.
22.3. The Employer will convene meetings of potentially affected Employees to seek volunteers.”
The Clause then goes on to set out a process whereby people may volunteer. If insufficient volunteers are forthcoming, employees will then be selected and identified as surplus to the requirements of the employer.
There is disagreement between the parties as to which redundancy policy was actually in force at the respondent’s operations in 2017. The applicant’s written submissions at paragraph 77, CB839-840 assert that “the GippsTAFE Redeployment and Redundancy Policy and Procedure dated 5 August 2010 was made following consultation with and agreement of the Institute Consultative Committee (ICC)”, but that “the Federation Training Redundancy and Redeployment Policy 2016 and the subsequent amendment in May 2017 were not made following consultation with and agreement of the ICC”. The respondent’s written submissions make no concessions as to which was the applicable policy (see paragraph 92, CB865). No direct evidence has been led by either party to resolve this dispute. The policies are annexed to the affidavit of Mr Phillip Smith, affirmed 12 December 2017. Mr Smith’s affidavit, however, does not directly depose as to whether or not the 2017, or for that matter the 2010, policies were varied following consultation with and the agreement of the ICC. All that Mr Smith says is that (CB5419) in April 2016, the CEO issued a new Redundancy and Redeployment Policy and Procedure. Bearing in mind that Mr Smith has been employed by the respondent or its predecessors since 2001, I construe his affidavit as confirming the state of affairs asserted by the applicant’s submissions.
Doing the best I can in the circumstances, it seems to me that the 2010 policy is therefore the applicable policy to Ms Stanton-Long’s circumstances in early 2017, as the unilateral introduction by the CEO of the 2016 documentation was, it would seem, not the subject of consultation and agreement of the ICC.
The 2010 Agreement relevantly asserts (CB552) at paragraph 1:
“This document outlines the policy and procedure associated with the redeployment and redundancy processes to be followed where positions have been identified as excess to Institute needs.
It does not apply to casual employees, employees on probation or employees on fixed term contracts.
This document should be read in conjunction with any redeployment or redundancy provisions within relevant Certified Agreements.”
The written submissions, and for that matter the pleadings and the amended Statement of Claim, traverse a number of issues about the way in which Ms Stanton-Long’s employment came to an end.
It should be remembered that exhibit A10 asserts:
“Below is a spreadsheet of all Fixed Term Contracts which are due to end on 28th February 2017.
To assist with the planning for this busy time could you please provide me with the existing CELCAT data of all current Teachers and student numbers.
Could you please also review the below list and advise if these staff will be required past the 28th of February.
Could you please have this information to me by Monday afternoon, February 6th.”
One of the recipients of this document was Mr Shelton.
On 8 February 2017 Ms Junker, who had been copied into the earlier document, wrote an email both to Ms Carter and Mr Davis which said relevantly:
“Steph sent this out to all Ed managers on Friday. We have only received one response from Carol.
This will need to be discussed on Friday and Monday in our meetings as we need to let these staff members know if they have a contract or not going forward.
Just wanted to flag with you. I know they may not be able to access accurate data.”
Ms Stanton-Long was one of those in the spreadsheet. The processing of this, as it were, procedural review of the fixed term contracts that were going to end is thrown into sharp relief by the dismissal on Thursday, 9 February 2017 of Ms Stanton-Long.
In the end, my view about the redundancy claims other than the statutory claims can be stated shortly. The 2010 policy, which I find was the extant policy, clearly did not apply to casuals or fixed term employees. Ms Stanton-Long was a fixed term employee and the policy therefore had no application to her. If the 2016 policy had applied it was plainly not followed, but that is immaterial in these circumstances.
The applicant has also sought, in the alternative, payment of redundancy pay pursuant to the NES. Section 119 of the FW Act undoubtedly sets out an entitlement to redundancy pay if:
“(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour;”
However, pursuant to s.123(1) of the FW Act, those provisions do not apply relevantly to:
“(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;”
Ms Stanton-Long’s Contract (the Addendum Contract Extension) is at CB234. Relevantly, it asserts:
“I wish to confirm that it has been agreed that your current fixed term contract of employment (hereinafter referred to as the addendum) be extended as follows:
Effective Dates: 1 January 2017 to 28 February 2017.”
The Contract also asserted:
“All other terms and conditions remain as per your original Contract of Employment.”
The original Contract of Employment is at CB218-221. That Contract provided that:
“The period of the appointment to this position (unless terminated earlier) is 11 January 2016 to 31 December 2016.”
The Contract also included, at CB220, provisions for either party to terminate the contract by two weeks’ notice. The question that therefore arises is - was the Addendum Contract a fixed term Contract from 1 January 2017 to 28 February 2017 or, incorporating by reference the provisions for its determination by earlier notice,
a Contract that could be ended by either party giving two weeks’ notice?The letter of termination (CB260) does not offer any definitive guidance as to how the respondent saw the matter. The letter says that the Contract would come to an end on 28 February 2017 and purported to terminate that employment immediately, albeit subject to payment up until 28 February 2017.
In my view, the better view is that the incorporation of the terms of the earlier 2006 Contract expressly into the Addendum Contract meant that the Contract was to last no longer than 28 February 2017 but was terminable by either party in accordance with the particular requirements of the earlier Contract by two weeks’ notice.
In my view, the decision of von Doussa J in Andersen v Umbakumba Community Council (1994) 126 ALR 121 is directly on point and determines this issue. The headnote, which accurately paraphrases his Honour’s findings states:
“(i) A ``specified period of time'’ is a period of time that has certainty about it. A contract of employment for a specified period of time is one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract's stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment.
(ii) Where, as here, both parties to the contract have rights to terminate the contract of employment which are not conditioned on a breach of any term of the contract, then the period of the contract is indeterminate. The cessation date merely records the outer limit of a period beyond which the contract of employment will not run. Such a contract is not one for a specified period of time.”
Those findings are directly on point and the term of the Contract to which I have referred previously makes it clear that the contract could be ended by either party and not for breach of Contract. Accordingly, the Contract was not one for a specified period of time. It was certainly not for a specified task (and this has not been argued in any event by the respondent). Accordingly, Ms Stanton-Long is entitled to be paid by the redundancy pay prescribed by s.119 of the FW Act. This, however, depends on what her continuous service is found to be.
Continuous service is relevantly defined in s.22 of the FW Act as follows:
“22(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).”
Subsection (2) relevantly excludes periods of unpaid leave or unpaid authorised absence.
The respondent further submits that the applicant was excluded from the operation of s.119 because she was a casual employee (s.123(1)(c)).
It is clear that Ms Stanton-Long’s employment in 2014/2015 was casual. She was employed from 25 November 2013 until about
20 December 2013 (affidavit paragraph 17, CB103). She was employed from 6 January 2014 to 12 December 2014 (CB149). From 11 January 2016 to 9 February 2017 (CB218 and CB234) she was fixed term from 5 January 2015 to 31 December 2015 (CB195). It is an anomaly of the way the FW Act is drafted that, while casual employees are not covered by the division giving rise to the obligation to pay redundancy pay, a person who has been casual but whose employment ends as a non-casual (and in this instance, not been for a specified period of time) can still have that casual service included in continuous service. There is no exclusion in s.22 of continuous service of casual employment.
Ms Stanton-Long worked for 25 days in 2013, for 340 days in 2014, for 361 days in 2015 and 355 days in 2016 and 38 days in 2017 (concluding on 7 February 2017). She accordingly worked a total of 1119 days. She accordingly worked 3.06 years. She is accordingly entitled, pursuant to s.119(2), to seven weeks’ redundancy pay.
The Claim for Minimum Notice
Much of the reasoning applicable to the redundancy payment claim immediately above is directly applicable to the minimum notice claim. On 9 February 2017, the respondent terminated Ms Stanton-Long’s employment forthwith but she was paid until 28 February 2017. This was a period of 18 days, excluding the day upon which the payment was made. Ms Stanton-Long had been employed for more than three years but not more than five years and was thus entitled to three weeks’ notice.
Additionally, Ms Stanton-Long was over 45 years old and had completed at least two years of continuous service at the end of the day the notice was given. She was therefore entitled to four weeks’ notice. 9 February 2017 was a Thursday. She should have been given notice or payment in lieu thereof to the fourth Thursday thereafter. This was
6 February 2017. The respondent is therefore liable to pay her six days’ pay.
The Record Keeping Contraventions
The parties agree that, pursuant to s.535 of the FW Act, the respondent was required to make and keep records in relation to Ms Stanton-Long of a kind prescribed by the Fair Work Regulations 2009
(“the Regulations”). Relevantly, it is also agreed that:
(a)Pursuant to reg.3.31 of the Regulations, an employer must make and keep a record that is in a form readily accessible to an inspector.
(b)Pursuant to reg.3.32 of the Regulations, an employer must make and keep a record that specifies whether the employee’s employment is full-time or part-time, whether the employee is permanent, temporary or casual, the date on which the employee’s employment began and the Australian Business Number of the employer.
(c)Pursuant to reg.3.33(1) of the Regulations, an employer must make and keep a record that specifies the rate of remuneration paid to the employee.
It is also agreed that, pursuant to s.535(3) of the FW Act and reg.3.42 of the Regulations, that at all times, the respondent was required to make a copy of an employee record relating to Ms Stanton-Long available for inspection and copying on request by her. It is agreed that the AEU, on 29 August 2017, made such request on behalf of
Ms Stanton-Long by email.
On 29 August 2017, Mr McIver wrote to the solicitor for the respondent seeking various pay records (CB474). He also requested copies of Ms Stanton-Long’s Contracts of Employment and asserted that Ms Stanton-Long was available to attend the respondent’s Morwell office on 1 September 2017 to inspect and copy the records (CB474-475). On 1 September 2017, the respondent’s lawyers sent Mr McIver copies of Ms Stanton-Long’s Contracts of Employment (paragraph 8, CB271). On 13 September 2017, the respondent’s lawyers sent
Mr McIver an email with two Excel spreadsheets, which are annexed to his affidavit marked MJM-5. I note that, on 31 August 2017, the respondent’s solicitors emailed Mr McIver, pointing out that the relevant records for Ms Stanton-Long were not kept at Morwell where she worked but that they would seek to provide the records in accordance with the timeline in reg.3.42(4), which is “as soon as practicable after receiving the request”.
Various aspects of this subset of the dispute are, in truth, very difficult fully to understand. The conclusions I would reach, in broad terms, are:
a)the amount of time it took the respondent to provide the relevant documents was not, in all the circumstances, unreasonable. The respondent, in its current form, represents a merger of prior entities, operates on numerous campuses and employs a very substantial number of people. The correspondence from the respondent’s solicitors was at all times courteous and in my view, reasonably prompt.
b)It seems clear beyond doubt that some of the materials provided were not in the form the Regulations required. They were only able to be provided by a screen dump which did not, in fact, comply with the Regulations. I will hear from the parties further as to quite what findings would be appropriate in this regard.
Conclusion
As I hope is apparent, the applicant has had a measure both of success and failure. I will hear from the parties further as to what orders should be made.
I certify that the preceding two-hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 16 August 2018
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