Sue-Ellen Fairall v St George & Sutherland Community College Inc
[2012] FWA 8847
•18 OCTOBER 2012
[2012] FWA 8847 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Sue-Ellen Fairall
v
St George & Sutherland Community College Inc.
(C2012/3141)
Educational services | |
COMMISSIONER ROBERTS | SYDNEY, 18 OCTOBER 2012 |
Application pursuant to s.739 - jurisdictional objection - has employee been terminated - ability to pursue to s.739 application post termination of employment - consideration of employment status.
[1] This decision concerns an application made by Ms Fairall on 21 March 2012, pursuant to s.739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (FWA) to deal with a dispute between her and St George & Sutherland Community College Inc. (the College). The dispute allegedly arises from the dispute resolution procedure set out in clause 31 of the St George and Sutherland Community College Enterprise Agreement, 2011 (the Agreement).
[2] Clause 31 sets out a number of steps to be followed when a dispute arises as to matters covered by the Agreement. It says:
“31.0 DISPUTE RESOLUTION
31.1 If a dispute relates to:
(a) a matter arising under the Agreement; or
(b) the National Employment Standards; this term sets out procedures to settle the dispute.
31.2 An Employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.
31.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management.
31.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to FWA.
31.5 FWA may deal with the dispute in two (2) stages:
(a) FWA will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) if FWA is unable to resolve the dispute at the first stage, FWA may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
Note If FWA arbitrates the dispute, it may also use the powers that are available to it under the Act.
A decision that FWA makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
31.6 While the parties are trying to resolve the dispute using the procedures in this term:
(a) an Employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(b) an Employee must comply with a direction given by the Employer to perform other available work at the same workplace, or at another workplace, unless:
(i) the work is not safe; or
(ii) applicable occupational health and safety legislation would not permit the work to be performed; or
(iii) the work is not appropriate for the Employee to perform; or
(iv) there are other reasonable grounds for the Employee to refuse to comply with the direction.
31.7 The parties to the dispute agree to be bound by a decision made by FWA in accordance with this term.”
[3] Unsuccessful conciliation was conducted on 26 April 2012 before Senior Deputy President Drake. A mention and programming hearing was held before me on 30 August 2012 and the matter came on for jurisdictional hearing before me in Sydney on 16 October 2012. Ms Fairall was represented by Mr R Davies, Agent and the College by Mr P Coleman of Counsel with Mr M Carroll of Carrolls Lawyers.
[4] The College raised a jurisdictional objection, claiming that Ms Fairall’s employment was casual in nature and ended on or about 30 June 2011. Ms Fairall alleges that her employment was permanent part-time in nature. The College went on to argue that Ms Fairall had not commenced any dispute under clause 31 of the Agreement prior to the ending of her employment. The College therefore argues that Ms Fairall has no standing to bring her application pursuant to s.739 of the Act. Ms Fairall claims that a contract between her and the College came to an end on 30 June 2011 but she remained ‘on the books’ of the College and is therefore entitled to bring a claim under s.739.
[5] No oral evidence was adduced at the hearing but an affidavit from Ms T Higgins was admitted into evidence 1 with the consent of Mr Davies.
[6] Ms Higgins is the Executive Assistant to the Chief Executive Officer and the Human Resources Manager of the College. In her affidavit, Ms Higgins said, in part:
“Itismy understanding that sessional tutors employed by the College are employed on a term by term casual basis as stated in the SGSCC Enterprise Agreement 2011. Employment of the sessional tutor commences at the beginning of the teaching term and finishes at the end of the teaching term;
Future employment for sessional tutors is subject to work being available. If such employment is available the sessional tutor informs the College whether they are available for work and then, if appropriate, enters into a fresh contract of employment for each teaching term;
Sessional tutors are not paid outside the teaching term. They are paid by the hour for work performed during the teaching term;
The names of the sessional tutors and their details are kept on the computerised system of the College so that they may be utilized in the future for potential future work and re-employment. That is what I meant when I referred to the Applicant being: ‘on the books of the College’ in my conversation with her on 27 March 2012;
In the light of the provision of the Long Service Act (1955) NSW, the College keeps tutors ‘on the books’ in anticipation of future work and employment for accrual of Long Service Leave; …”
[7] Ms Higgins went on to say:
“As at the termination of the AMEP [Adult Migrant Education Program] Contract on 30 June 2011, twenty (20) tutors were affected. Ten (10) tutors had more than five (5) years service. The College paid four (4) tutors their respective Long Service Leave entitlements after receiving a request from each of them to be taken off the College system. Five (5) of the remaining six (6) tutors have also left during 2011and beginning of 2012 and all have been paid their Long Service Leave. Only one (1) tutor of the original twenty (20) remains with the College;
The College has no formal termination documentation for casual tutors because it enters into a written agreement with the tutor on a teaching term by teaching term basis. Three (3) samples of such agreements are Attachment 5 to the application. The employment terminates at the end of the teaching term. There is no need for a formal termination process;
On 30 July 2011 an informal party to celebrate the success of the AMEP contract and to mark the end of the contract was organised by the College for all those including sessional tutors involved in the AMEP where employment had come to end in the circumstance where the AMEP contract had been lost and where there was limited scope to offer further employment to tutors in the future. Each tutor was given a thank you gift voucher for their past work in the AMEP with the College.”
[8] Mr Davies filed an outline of submissions on behalf of Ms Fairall prior to the hearing. 2 Those submissions said, in part:
- That Ms Fairall never sought to cease her employment and there is no documentation to show that the employment relationship has ended.
- That she spoke to Ms Higgins on 27 March 2012 and Ms Higgins informed her that she was still ‘on the books of the College as a casual’.
- That Ms Fairall has now received payment for her long service leave entitlement.
- “The applicant submits that she was, according to the college, and in the absence of any documentation regarding termination, an employee at the time of the application. It also follows that had the employee ceased employment in June 2011, then the Long Service Leave entitlement would have been paid to her at that time - this did not occur, nor did it occur in relation to any other tutor.”
- That the College informed some 20 Sessional Tutors (including her) that the AMEP contract had been lost but the letter did not mention any formal process about termination of employment.
- That, if all Sessional Tutors ceased their employment with the College on 30 June 2011 “then we submit the college had an obligation to advise those employees of their entitlement to Long Service Leave (where applicable). This did not occur.”
- That the College did not comply with the National Employment Standards in relation to Long Service Leave.
[9] Mr Davies’ submissions contain the following summary:
“We submit that there is no documentary evidence that the applicant or the other sessional tutors ceased employment with the college as of 30 June 2011. On the contrary, the College HR Representative advised the applicant, post the FWA application, that she (the applicant) was still an employee on the books of the College. Had the applicant and the other 19 Sessional tutors ceased employment as of 30 June 2011, then the College was obliged to advise those employees of their entitlements. This did not occur.”
[10] The College’s letter referred to above was dated 16 February 2011 and was in the following terms 3:
“Dear Coordinators and Teachers,
It is with deep regret that I have to inform you that our current AMEP contract will terminate June 30, 2011.
We have been waiting on overtures from the new AMEP providers to discuss the transition period. I did not wish to notify everyone formally until we had received that response. Unfortunately the college has not received a formal reply to date.
Whilst the loss of the contract has been a setback I would like to take this opportunity to assure you that SGSCC English will emerge in a new light, stronger than before and will continue to be an innovative and dynamic learning environment for both teachers and students.
The college is currently working on new directions with many new exciting ventures. We value your expertise and experience and hope that many of you will continue working with the English department.
I will contact you as all new employment opportunities arise as well as information regarding the transition into the next AMEP contract.
Thank you for your continuing professionalism and dedication to our AMEP students in these changing times.
Yours sincerely
Patricia Carroll
Principal”
[11] In her form F10 Application for FWA to Deal with a Dispute in Accordance with a Dispute Settlement Procedure, Ms Fairall said that the dispute could be described as follows:
“1. Ms Fairall (the applicant) worked for the St George and Sutherland Community College (the college) on a continuing basis from 1 April 2003 until 30 June 2011 - a period of approximately 8 and one half years. See letter of appointment at Attachment 3).
2. The applicant was employed as a sessional tutor pursuant to the (then current) St George and Sutherland Community College Tutor’s Certified Agreement 2004. (Attachment 4)
3. The applicant’s employment duties were both regular and systemic, where the work program, starts and completions, days of work and hours of work were all specified and published by the management of the college.
4. The college communicated to the applicant that the work was ongoing and that long term contracts for the work would continue. The College had a 5 year contract to deliver the particular course the applicant taught.
5. The college communicated to the applicant that there was no flexibility whereby the applicant could seek not to fulfil her tutoring obligations, ie be absent at any time during the published work program. The applicant was advised by management that any absence would result in her termination.
6. The course the applicant taught required students to attend for a number of terms and in many cases the entire teaching year. Despite this requirement, the applicant would receive a form letter around the commencement of each term, formally advising her that she was a sessional tutor (casual employee) and that her employment was only for the term in question. This letter was sometimes handed to the applicant after the teaching term had commenced. The letter did not require the applicant to respond to the college in any way, so there was no formal acknowledgement by the applicant either confirming receipt of the letter or agreement to its content. See examples at Attachment 5.
7. The applicant disputes her casual employment classification and submits that her employment is ongoing and part time.
8. The applicant submits that her employment was terminated due to the non-renewal of a teaching contract with the government and the college. The applicant did not resign. In all the circumstances, the applicant is entitled to:
(a) Payment of accrued Long Service Leave in accordance with the National Employment Standards,
(b) Severance pay equivalent to 20 weeks pay, and
(c) Payment of 4 weeks notice period, in accordance with the St George and Sutherland Community College Inc. Enterprise Agreement 2011 PR506948 AE884269.”
[12] The relief sought by Ms Fairall was set out in her form F10 as: “The application seeks payment of entitlements specified in Para 4, ie pro rata Long Service Leave and redundancy payment.”
[13] In submissions, Mr Davies said that the allegation that her employment had been terminated was now withdrawn by Ms Fairall, who maintains that she remains ‘on the books’ or ‘on the payroll’ of the College and that her employment should have been categorised as part-time rather than casual.
[14] The College argues that the Tribunal is jurisdictionally barred from consideration of Ms Fairall’s s.739 application because it was filed some nine months after the employment relationship ended and further that Ms Fairall did not agitate a dispute under clause 31 of the Agreement prior to the ending of the employment relationship.
[15] My task in this decision is to firstly decide whether there is a continuing employment relationship between Ms Fairall and the College. Secondly, if that relationship was terminated by the College on or about 30 June 2011, and given that Ms Fairall does not claim to have raised a grievance or dispute under clause 31 of the Agreement prior to that date, is Ms Fairall able to pursue relief pursuant to s.739.
[16] Ms Fairall commenced employment with the College on or about 18 March 2003 as a sessional tutor whose conditions of employment were governed by the St George and Sutherland Community College Tutors’ Certified Agreement 2004. Her Letter of Appointment 4, dated 1 April 2003, stated that her employment was to be casual and said, in part:
“Any offer of future employment is at the discretion of the College and will be on a term by term casual basis, subject to enrolments and satisfactory performance. A letter seeking your availability and a further letter confirming that your course has been included in the Brochure will be sent to you each term.”
[17] Ms Fairall’s engagement as a sessional tutor continued under a series of contracts based on a hourly rate. Each contract appears to have been for a specified period corresponding with Terms at the College for the teaching of English. The last of those contracts expired on 30 June 2011. Ms Fairall was not paid for periods of time which fell outside the teaching Terms for which she was engaged.
[18] Each of the recent contracts between Ms Fairall and the College which is available to me 5, clearly states the period of employment, teaching session times and a proviso that the running of the relevant course is subject to minimum student numbers being achieved.
[19] On the totality of the material before me, I am satisfied and find that Ms Fairall’s employment with the College ended on 30 June 2011. In fact, it is arguable that Ms Fairall was employed as neither a casual nor part-time employee but rather, on a series of contracts of employment “for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season.” 6 The ending of the employment relationship was the result of the end of Ms Fairall’s last employment contract and a decision by the College not to offer her a new contract. The College then held out the prospect of possibly offering future work to Ms Fairall but this did not occur.
[20] The letter set out at paragraph 10 above provides a clear statement to Ms Fairall that her employment with the College would end on 30 June 2011. The statement in that letter that Ms Carroll will contact tutors “as all new employment opportunities arise” is a clear indicator of the casual or short term contract nature of Ms Farrell’s previous employment.
[21] The determination of the jurisdictional objection does not require me to define or determine what the employment relationship was between Ms Fairall and the College, it requires that I determine whether there was a continuing employment relationship between the College and Ms Fairall post 30 June 2011. I am satisfied that there was not.
[22] Having determined that the employment relationship ended on 30 June 2011, I must now determine whether in those circumstances Ms Fairall has standing to seek relief pursuant to s.739.
[23] In reaching a conclusion about Ms Fairall’s ability to make an application pursuant to s.739, I am guided by the decision of a Full Bench of this Tribunal in ING Administration v Jajoo 7 (Jajoo). In that decision, the majority of the Full Bench said:
“[38] We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. However, many disputes will arise while employment exists and continue after the termination of employment. In such a case, when the dispute arises, it is a dispute between an employee and an employer…” 8
[24] The majority of the Bench went on to observe:
“[41] In the circumstances of this matter, Mr Jajoo sought to progress a dispute under the relevant dispute settlement procedure while still employed. It was unresolved when his employment was terminated. We do not believe that there is a sound basis for construing the terms of s 170LW in a way which would deprive him of the right to progress his dispute to other levels of the procedure, including to the Commission, after the termination of his employment.” 9
[25] Jajoo was decided under s.170LW of the Workplace Relations Act 1996 but the principle is equally applicable to s.739 of the current Act.
[26] In Dr Shields and Anor v Alfred Health 10 (Shields), Senior Deputy President Kaufman adopted similar reasoning as that applied in Jajoo. His Honour found that the Tribunal lacks jurisdiction to deal with an application made pursuant to s.739 if the dispute between the applicant and the respondent “did not arise, or at the very least was not agitated, until after their employment … had come to an end.”11
[27] It is not contentious that no dispute was raised by Ms Fairall with the College whilst she was employed. It is further not contentious that Ms Fairall has not received any payment for teaching services from the College since 30 June 2011.
[28] All in all, I find that Ms Fairall lacks standing to bring her application pursuant to s.739 of the Act and therefore that the Tribunal is jurisdictionally barred from further consideration of her application. Ms Fairall’s application is therefore dismissed.
[29] Nothing in this decision limits any right Ms Fairall may have to pursue any alleged underpayment of entitlements arising from her employment with the College. However, this Tribunal is not the proper forum in which to pursue such a claim.
COMMISSIONER
Appearances:
R Davies for Sue-Ellen Fairall.
P Coleman of Counsel with M Carrollfor St George and Sutherland Community College.
Hearing details:
2012.
Sydney:
August 30;
October 16.
1 Exhibit St George 3.
2 Exhibit Fairall 1.
3 See Attachment 1 to Exhibit Fairall 1.
4 Attachment 3 to form F10.
5 See Exhibit St George 5.
6 Fair Work Act 2009, s.386(2).
7 PR974301, 4 December 2006 per Vice President Watson, Senior Deputy President Acton, Commissioner Cargill.
8 Ibid at para 38.
9 Ibid at para 41.
10 [2012] FWA 162.
11 Ibid at para 29.
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