Susan Joy Nichols v University of Canberra
[2022] FWC 1991
•18 AUGUST 2022
| [2022] FWC 1991 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Susan Joy Nichols
v
University Of Canberra
(C2022/2516)
| COMMISSIONER MCKINNON | SYDNEY, 18 AUGUST 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – whether jurisdiction to deal with dispute.
Dr Susan Nichols was employed by the University of Canberra for approximately 28 years. She was employed under successive contracts, firstly on a casual basis from 1994 until 1998 and then on a rolling fixed-term basis from 1998 until 24 December 2021.
On 22 April 2022, Dr Nichols applied to the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (Act) in relation to her employment with the University. The dispute is about Dr Nichols’ entitlement to notice and severance pay on termination of employment. The application was made under clause 9 of the University of Canberra Enterprise Agreement 2019-2022 (the Agreement). At the time the application was made, Dr Nichols was no longer an employee of the University.
The question is whether the Commission has jurisdiction to deal with the dispute.
Dr Nichols says the Commission has jurisdiction because the dispute arose when she was still employed by the University. Dr Nichols points to the unfairness of being put in a position where she was unable to raise a dispute with the University until after her employment ended, because she was waiting on information from the University about her final pay and this was not provided until after the employment ended. Dr Nichols submits that this potentially leaves her without recourse to deal with the dispute.
The University says there is no jurisdiction because the dispute only arose after the employment came to an end. Before that time, Dr Nichols asked questions about her entitlements and responses were given. Dr Nichols gave no clear indication during the employment that she was not satisfied with the University’s response to her inquiries or that she intended to progress the matter in dispute. Further, the University submits that Dr Nichols is not left without recourse as there are other ways for Dr Nichols to pursue her claim.
I have decided that the Commission does not have jurisdiction to deal with the dispute. The dispute is about underpayment of monies due on termination of employment. Claims of this kind can be dealt with in the courts.
Power to deal with the dispute
Section 739 of the Act applies if, relevantly, an enterprise agreement includes a term that provides for a procedure for dealing with disputes, including a term referred to in sub-s.186(6) of the Act. Under sub-s.186(6), the Commission must be satisfied, before approving an enterprise agreement, that the agreement provides a procedure requiring or allowing the Commission or another independent person to settle disputes about any matters arising under the agreement and in relation to the National Employment Standards, as well as allowing for representation of employees covered by the agreement. There is no dispute that clause 9 of the Agreement is a procedure to which s.739 of the Act applies.
Clause 9 of the Agreement provides as follows:
“9. Grievance and Dispute Resolution
9.1 The procedure for resolving complaints and/or grievances is set out in Schedule 5 - Grievance Resolution Procedure of this Agreement.
9.2 If a dispute relates to:
(a) a matter arising under this Agreement; or
(b) the NES;
then this clause sets out procedures to settle the dispute.
9.3 An Employee who is a party to the dispute may appoint a Chosen Representative for the purposes of the procedures in this clause. Alternatively a Union may notify the existence of a dispute.
9.4 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level (i.e. between an Employee and their Manager).
9.5 If discussions at the workplace level do not resolve the dispute, then the matter may be referred to Senior Management or the Executive.
9.6 If discussions with University Management or the Executive do not resolve the dispute, a party to the dispute may refer the matter to the FWC.
9.7 The FWC may deal with the dispute in two stages:
(a) the FWC 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 the FWC is unable to resolve the dispute at the first stage, the FWC may then:
(i)arbitrate the dispute; and
(ii)make a determination that is binding on the parties.
9.8 While the parties are trying to resolve the dispute using the procedures in this clause:
(a) until the internal procedures described in the preceding clauses have been exhausted, the Employee will continue to work in accordance with this Agreement and their contract of employment unless there is a reasonable concern about an imminent workplace health and safety risk; and
(b) an Employee must comply with a direction given by the University 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.
9.9 The parties to the dispute agree to be bound by a decision made by the FWC.
9.10 A dispute formally commenced under the University of Canberra Enterprise Agreement 2015-2018 (Enterprise Agreement), but not concluded at the time at which this agreement commences, shall continue to be dealt with in accordance with the relevant provisions that applied under that Enterprise Agreement.”
As noted above, the dispute is about the entitlement of Dr Nichols to notice of termination and severance pay on termination of employment. These are matters arising under clauses 12.1(a) and 39 of the Agreement. It is a dispute of the kind to which clause 9 of the Agreement applies.
However, clause 9 only operates in relation to persons who were covered by the Agreement at the time the dispute arose – which in this case, included the University, its employees (other than the Vice Chancellor and Executive Staff) and relevant unions.[1] Employers and employees are covered by an enterprise agreement if it is expressed to cover them.[2] The Agreement is expressed to cover the University and its staff in clause 2 of the Agreement, where the word ‘staff’ refers to employees of the University. “Employee” is defined in the Agreement to mean “all persons who are employed by the University and to whom this Agreement has application by virtue of Clause 2 Application.” Separately, the unions are covered by the Agreement because the Commission has noted in its decision to approve the Agreement that the unions are covered.[3]
Clause 9.3 of the Agreement permits an employee who “is a party to the dispute” to appoint a chosen representative for the purposes of the dispute resolution process. Alternatively, a union may notify the existence of a dispute. Under clause 9.4, the parties to the dispute (the University and the employee(s) and/or relevant union(s)) must try to resolve it in the first instance at the workplace level. In a dispute between the University and an employee, ‘workplace level’ means between the employee and their Manager. If discussions at that level do not resolve the dispute, the matter may be referred to Senior Management or the Executive (clause 9.5). If those discussions do not resolve the dispute, it may then be referred to the Commission (clause 9.6).
The effect of clause 9 of the Agreement is that the Commission can deal with a dispute of the kind raised by Dr Nichols, but only if Dr Nichols was an employee of the University when the dispute arose and only then if the dispute resolution process has been followed.
Did the dispute arise during the employment?
On 4 November 2021, Dr Nichols was told that her contract with the University would not be renewed due to lack of funding. This advice was followed with formal notice on 9 December 2021 that her contract would not be renewed.
After receiving this notice, Dr Nichols emailed the University on 9 December 2021 asking for the details of her entitlements and final pay, including notice of termination. Specifically, Dr Nichols asked:
“Can you please provide me with the details of my entitlements and final monies to be paid to me on termination. Is this my official notice of termination after 28 years of continuous service for UC?”
The University replied on 9 December 2021, providing information about the quantum of entitlements to be paid to Dr Nichols. The reply was shortly followed by a further email advising that the University was “still working out the finer details of whether you are eligible for anything additional”. Dr Nichols asked the University to let her know as soon as possible.
This was the last correspondence between the parties in 2021. The employment relationship came to an end on 24 December 2021 coinciding with the expiry of Dr Nichols’ contract of employment.
On 6 January 2022, Dr Nichols emailed the University asking for an itemised breakdown of her final pay, noting that she was still waiting for the details of her entitlements on termination.
On 14 January 2022, the University provided Dr Nichols with a copy of her final payslip. Dr Nichols replied by asking for more detail, noting that the payslip did not itemise the different components of her final pay and the basis for their calculation.
Dr Nichols followed up again on 19 January 2022. Her email said as follows:
“Hello,
On further inspection, I do see that the payslip provides a degree of itemisation. However, can you please explain how the ETP payment was calculated? I think this amount represents just 8 weeks severance pay (which you stated below I was definitely entitled to but you were still working out the finer details). If that is the case then I believe this is incorrect after 28 years of continuous service for UC.
The EA states that (Clause 12.1) ….where employment exceeds a period of tens years of continuous service, including multiple fixed-term contracts a payment based on 2 weeks’ salary for each year of continuous service will apply up to a maximum of 52 weeks.
Also, clause 39.2 states that the period of notice to terminate the employment of Academic staff is 3 months’ notice, or payment instead of notice.
I assumed these were the finer details you still had to work out.
Can you please respond and let me know if these details are still being finalised?”
On 2 February 2022, Dr Nichols again advised the University that there was a dispute about the amount of severance paid to her on termination. The University responded to Dr Nichols to advise its belief that “the severance is correct” while also indicating that the matter was under further investigation and review. On 15 February 2022, the University finally confirmed its view that the severance payment made to Dr Nichols was correct having regard to clauses 12 and 13 of the Agreement and the particular history of employment.
On 16 February 2022, Dr Nichols replied, disputing the University’s interpretation of the Agreement. She then contacted the Fair Work Ombudsman and sought advice about her entitlements under the Agreement. Further correspondence between Dr Nichols and the University failed to resolve the dispute and Dr Nichols advised the University on 29 March 2022 that she was considering taking the matter to the Commission. After further advice from the University that its position remained unchanged, Dr Nichols applied to the Commission on 22 April 2022.
Consideration
I find that the dispute between Dr Nichols and the University arose on 19 January 2022. This was when Dr Nichols advised the University of her belief that the calculation of her final pay was incorrect, having regard to clauses 12.1 and 39.2 of the Agreement. While Dr Nichols asked for information about her entitlements on 9 December 2021, she did not indicate that she had a different view to the University about what her entitlement to severance pay should be. The University provided its response and indicated that a further response would be forthcoming. The employment came to an end without further correspondence between them.
It follows that at the time the dispute arose, Dr Nichols was not an employee of the University. Dr Nichols was not covered by the Agreement either then or when the application was made to the Commission. In other words, no applicable enterprise agreement dispute settlement term applied to Dr Nichols that could have required or allowed the Commission to deal with the dispute. Sections 738 and 739 of the Act do not apply and the Commission cannot deal with the dispute.
I accept that Dr Nichols might consider this to be an unfair outcome. However, the Commission can only exercise the powers that it has. The Commission’s lack of jurisdiction does not mean there is no recourse for Dr Nichols to address her concerns. The dispute is about the underpayment of entitlements on termination of employment. Dr Nichols can bring her claim in a relevant court – which in this case is likely to be either the Federal Circuit and Family Court of Australia or the ACT Magistrates Court.
The application is dismissed.
COMMISSIONER
Appearances:
S Nichols on her own behalf.
N West-Foy of Clayton Utz for the Respondent.
Hearing details:
2022.
Sydney (by video):
July 4.
[1] University of Canberra Enterprise Agreement 2019-2022, clause 2.
[2] Fair Work Act 2009, s.53.
[3] Fair Work Act 2009, s.53 and s.201(2).
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