Susan Wiener v The Congregation of Presentation Sisters (WA) Incorporated T/A Iona Presentation College

[2017] FWC 3315

[2017] FWC 3315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Wiener
v
The Congregation of Presentation Sisters (WA) Incorporated T/A Iona Presentation College
(U2017/533)

COMMISSIONER GREGORY MELBOURNE, 20 JUNE 2017

Application for an unfair dismissal remedy.

Introduction

[1] Ms Susan Wiener worked at the Congregation of Presentation Sisters (WA) Incorporated T/A Iona Presentation College (“Iona”) from 2005 until 31 December 2016, primarily in the position of Director of Sport. However, after reapplying for the position in 2016 she was not successful in being reappointed. Iona submits that she then failed to pursue other positions at the College that were available to her and, as a consequence, her employment simply came to an end on 31 December 2016 upon reaching the end point of her fixed term contract. As such, it submits Ms Weiner is not a person who has been “dismissed” as required by s.386 of the Fair Work Act 2009 (Cth) (“the Act”).

[2] Ms Weiner submits, in response, that while the term of her appointment as Director of Sport came to an end on 31 December 2016 her employment contract did not come to an end at the same time, and under the terms of that contract she has on-going security of employment post the end of 2016.

[3] The Commission is accordingly now required to determine as a preliminary matter whether Ms Weiner has been “dismissed” in accordance with s.396 of the Act. If the Commission finds she is a person who has been dismissed then her application will be relisted to deal with her substantive unfair dismissal application. However, if the Commission finds she is not a person who has been “dismissed” then her application must also be dismissed.

[4] Mr Patrick Mullally appeared on behalf of Ms Weiner. Mr Ian Curlewis appeared on behalf of Iona. Both were granted permission to appear under s.596(2)(a) of the Act as the matter involves a degree of complexity and their involvement might enable it to be dealt with more efficiently.

The Legislation

[5] Section 385, “What is an unfair dismissal,” of the Act relevantly provides:

“A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable …” 1

[6] Section 386, “Meaning of dismissed,” continues to relevantly provide:

“(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract 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 …” 2

The Evidence and Submissions

[7] Iona submits that Ms Weiner was employed under a fixed term contract that had an end date of 31 December 2016. Her employment accordingly ended with the effluxion of time on this date.

[8] However, it also submits in the alternative that if the Commission does not accept its principal submission then Ms Weiner’s conduct should, in any case, preclude her from claiming she was employed after 31 December 2016. In this context it refers, in particular, to her failure to apply or pursue other employment options open to her. It submits that this failure or inaction negated any obligation Iona might of had as a consequence of the Conditions of Employment of Teachers in Catholic Schools in WA (1994) (“the Conditions of Employment”) being incorporated into her contract of employment, and those Conditions no longer had any on-going application because Ms Weiner failed or declined to apply for other positions, or to act in a way that was consistent with her continuing as an employee of Iona.

[9] Ms Anne Pitos is the Principal of Iona. She states in her evidence that Ms Weiner was employed at Iona on a series of fixed term contracts. The last of these came to an end with the passage of time on 31 December 2016.

[10] Ms Pitos takes issue with the claim by Ms Weiner of having a permanent appointment. However, her evidence indicates that she did provide her with the option of applying for three other positions at Iona, commencing from the beginning of 2017, after the end of her fixed term appointment as Director of Sport. In mid-October 2016 she met with Ms Weiner to advise that her application for a new contract as Director of Sport had been unsuccessful. She then arranged a further meeting on 1 November 2016. In that meeting she told Ms Weiner that if she wanted to continue working at Iona in 2017 there were two positions immediately available for her to apply for, being a position of Technical Production Manager and a position as Performing Arts Administration Assistant. She also advised that a part-time teaching position would become available commencing from the start of term two in 2017.

[11] She asked Ms Weiner whether she wished to apply for any of these positions and was told that she would “get back to [her]”. 3 However, this did not occur, and Ms Weiner made no attempt to meet with her again to discuss these options.

[12] Ms Weiner submits, in response, that after commencing work at Iona in 2005 she primarily worked in the position of Director of Sport, which was an appointment most recently confirmed in a letter dated 30 January 2012. She submits that after a performance review in 2016 her application to reapply for this position was unsuccessful. However, she continues to submit that under the terms of her contract of employment if she reapplied for the position and was unsuccessful she continued to have on-going security of employment with Iona.

[13] Ms Weiner continues to submit in this context that the letter of appointment which she signed on 3 February 2012 specifically incorporates the Conditions of Employment, but Iona has consistently refused to recognise this. In her submission the rationale for the inclusion of these conditions is to protect teachers, who have accepted middle leadership positions for a specific term, from being left without a position when that term concludes. The Conditions of Employment were also attached to her witness statement and the Commission was referred, in particular, to extracts which appear under the heading “Middle Leadership Positions” in sub clause 5.5 and state as follows:

“5.5.4 The tenure of the middle leadership position shall be at the discretion of the Principal, but shall be no less than one year and no longer than eight years, at which time the position is to be advertised. Reviews shall occur at regular intervals of at least three years.

5.5.5 Continuation of the contract is dependent upon a successful review of performance in relation to defined responsibilities.

5.5.6 The position shall be advertised in the final year of tenure. The incumbent may apply. However, should the incumbent be unsuccessful in obtaining a similar position in the current or any other Catholic school, he/she shall have security of employment as a teacher in the current school.” 4

[14] Ms Weiner continues to submit on this basis that her employment did not come to an end at the expiry of a fixed term contract on 31 December 2016, but her contract instead provided by its own terms that she would continue to have on-going employment at Iona post 31 December 2016.

[15] Her submissions continue to refer to a letter she forwarded to the Principal, dated 21 November 2016, which indicates she expects to be deployed elsewhere at Iona from the commencement of 2017. She continues to submit that a response from the Principal to that letter was not received until 15 December 2016. The letter stated from Ms Pitos stated in part:

“Whilst not obliged to offer you employment after 31 December 2016, I have looked for another position within the College; however, we do not have any alternative positions comparable with your skills sets. Accordingly, your employment at the College will end altogether on 31st December 2016.” 5

[16] Ms Weiner denies that she refused or neglected to take up positions that were offered to her and submits instead that she made it plain at all times that she was a permanent employee, and wanted to be deployed at Iona in another role in 2017.

[17] Ms Weiner states in her evidence that she was first appointed to a position at Iona in 2008 when she was appointed to a permanent part-time position of Director of Sport. On 3 February 2012 she signed her current employment contract, which confirmed her appointment to the position of Director of Sport until 31 December 2016. She attached a copy of that change of contract letter to her witness statement, and it indicates that her terms and conditions of employment include, inter alia, the Conditions of Employment of Teachers in Catholic Schools in WA (1994). The position of Director of Sport is also a Middle Leadership Position within the Catholic school system.

[18] On 22 July 2016 she was informed by letter that she was now to be subject to an end of contract review and, as part of that process, she completed and submitted her own appraisal form. Her position was subsequently advertised, and she applied for the position on 28 August 2016. On 10 October 2016 she met with Ms Pitos and was told her application to be reappointed to the position of Director of Sport had been unsuccessful. On 21 November 2016 she wrote to Ms Pitos to confirm her status as a permanent employee, and also indicated that she expected to be deployed elsewhere at Iona from the start of 2017. Her letter states in part:

“Further to several conversations that I have had with you, I consider myself a permanent ongoing employee of the College, the status of which is correctly reflected in my employment records.

As I am no longer to be employed as Director of Sport, I expect to be deployed elsewhere in the College from the start of next year as stated to you previously.” 6

[19] However, on or about 15 December 2016 she received a letter in response from Ms Pitos. A copy of that letter was also attached to her witness statement. It states in part:

“Contrary to what you consider, you are not an ongoing employee of the College, but employed on a fixed term contract.

Your fixed term contract dated 30 January 2012 and signed by you on 3 February 2012, as the Director of Sport, covered the eight-year period commencing 1 January 2009 and concludes on 31 December 2016 as you well know.

Whilst not obliged to offer you employment after 31 December 2016, I have looked for another position within the College; however, we do not have any alternative positions comparable with your skill sets. Accordingly, your employment at the College will end altogether on 31 December 2016.” 7

[20] On 13 December 2016 Ms Weiner completed an Employee Exit Form which was also attached to her witness statement. It indicates alongside the heading “REASON FOR LEAVING” – “ ? Forced/Pushed out.” 8

[21] Ms Weiner also denies that she was ever offered any on-going positions at the College by Ms Pitos and any discussions about part-time teaching positions were “very vague and no details were given.” 9 She also states that when the Principal’s Secretary asked her to attend a meeting with the Principal she felt upset and vulnerable at this point, and asked to be allowed to have a support person with her. However, she states that the meeting was then cancelled.

Consideration

[22] As indicated, the issue for determination at this time is whether Ms Weiner was a person employed under a contract of employment for a specified period of time, and whether her employment simply “terminated at the end of [that period]”. 10 If so, then she cannot be considered to be a person who has been “dismissed.”

[23] The most recent contract of employment entered into by the parties during Ms Weiner’s period of employment at Iona is dated 30 January 2012, and was signed by Ms Weiner on 3 February 2012. It confirms her appointment to the position of a Director of Sport until 31 December 2016. However, it also makes clear that the Conditions of Employment of Teachers in Catholic Schools in WA (1994) are incorporated into and form part of the contract of employment entered into by the parties.

[24] Relevant extracts from those Conditions of Employment have been set out at an earlier point in this decision and are not restated in full now. However, I am satisfied that the following extract is of particular relevance to the determination of this matter.

“5.5.6 The position shall be advertised in the final year of tenure. The incumbent may apply. However, should the incumbent be unsuccessful in obtaining a similar position in the current or any other Catholic school, he/she shall have security of employment as a teacher in the current school.” 11

[25] This extract appears under the heading “Middle Leadership Positions” and there appears to be no contest between the parties that Ms Weiner, in her position of Director of Sport, occupied a “Middle Leadership Position.” In addition, the processes set out in sub clause 5.5.6 replicate the process that Ms Weiner went through in unsuccessfully reapplying for the position of Director of Sport. Her submissions also provided an explanation about the rationale for this in terms of providing security of employment for employees who are prepared to take on Middle Leadership Positions. I am accordingly satisfied that this condition is applicable to her employment.

[26] I am also satisfied, in response, that while Ms Weiner had been appointed to the position of Director of Sport for a specified period of time, the incorporated Conditions of Employment meant that she also had an on-going contract of employment if not reappointed to that position at the end of the specified period. I am accordingly satisfied that Ms Weiner was not a person “employed under a contract of employment for a specified period of time.” 12

Conclusion

[27] It follows from this conclusion that Ms Weiner has been “dismissed” in accordance with s.386 of the Act on the basis that her employment “has been terminated on the employer’s initiative.” However, I also emphasise at this point that it obviously does not follow from this conclusion that Ms Weiner has been unfairly dismissed, and it may well be open to Iona in dealing with her unfair dismissal application to argue that she failed to pursue employment options that were made available to her. However, these are issues for another day and I am not expressing any view at all at this time about whether or not Ms Weiner has been unfairly dismissed.

[28] Having concluded that Ms Weiner is a person who has been “dismissed” her application will now be relisted to enable her substantive unfair dismissal claim to be dealt with.

COMMISSIONER

Appearances:

P Mullally for the Applicant.

I Curlewis for The Congregation of Presentation Sisters (WA) Incorporated T/A Iona Presentation College.

Hearing details:

2017.

Melbourne and Perth (video hearing):

June 7.

 1   Fair Work Act 2009 (Cth) s 385.

 2   Fair Work Act 2009 (Cth) s 386.

 3   Exhibit IPC2 at [9.4].

 4   Exhibit SW1 at Annexure SMW4.

 5   Exhibit SW1 at Annexure SMW12.

 6   Exhibit SW1 at Annexure SMW11.

 7   Exhibit SW1 at Annexure SMW12.

 8   Exhibit SW1 at Annexure SMW13.

 9   Exhibit SW1 at [28.3].

 10   Fair Work Act 2009 (Cth) s 386(2)(a).

 11   Exhibit SM1 at Annexure SMW4.

 12   Fair Work Act 2009 (Cth) s 386(2)(a).

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