WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00381

DELIVERED : thursday, 21 June 2012

FILE NO. : U 200 OF 2011

Applicant

AND

Sharyn O'Neill, Director General,

Department of Education

Respondent

CatchWords : Unfair dismissal – jurisdiction – no standing to file the application – fixed term contracts – relief and casual engagements – refusal to employ

Legislation : Industrial Relations Act 1979  s 29(1)(b)(i)

Result : Application dismissed for want of jurisdiction

Representation:

Applicant : Mr P Appleton on his own behalf

Respondent : Ms S Bhar and with her Mr J O’Brien

Reasons for Decision

(Given extemporaneously at the conclusion of the proceedings,

taken from the transcript as edited by the Commission)

1          The applicant claims that he was harshly, oppressively or unfairly dismissed from his employment as a teacher with the respondent.  The respondent denies that the applicant was dismissed and says that his employment came to an end by the effluxion of time.  Accordingly, the respondent says that the applicant has no standing to bring the application and the Commission does not have jurisdiction to deal with it.

2          Two bundles of documents were submitted by the applicant, the first titled Evidence in Chief and the second being Evidence in Chief (Addendum).  For ease of reference, I will refer to documents in the first bundle simply by reference to their number and the second as Addendum and number.

The background to this matter and the appointment process

3          The parties agree that the applicant was first assessed by the respondent as suitable to teach in public schools in Western Australia on 31 October 1990, and he was first given a departmental identification number of 0102833 by the Department on 31 October 1990.  The applicant says he was also given an identification number of 2013996 by around December 2001.  However, the respondent says this number was his personal file number, which is a separate number.

4          I note a letter to the applicant from the Department dated 10 September 2004 (document 2) and this says the number 0102833 was the applicant’s Human Resource Management Information Systems number (HRMIS number).  This letter noted that identification cards were to no longer be issued and the applicant was required to quote the identification number above to a school each time he undertook relief teaching.  This letter also says that should he require a part-time or full-time teaching position he would need to submit a Placement Request Form which was to be sent to the Staffing Directorate of the Department.

5          This is consistent with the applicant’s submission that to obtain relief teaching work he would contact up to 35 schools’ administrators by telephone or in writing (for example Addendum document 1I), advising them of his availability for relief teaching and citing his identification number, being his HRMIS number.  On some occasions he also cited the personal file number, although it is clear to me that the applicant did not realise the differentiation between the two numbers.  The administrators would then contact the applicant when they had work to be performed and arrangements would be made between them.

6          However, when the applicant sought fixed-term appointments he would submit a Placement Request Form (for example Addendum document 1H), citing his HRMIS number, and the Staffing Directorate would contact him and ascertain his availability for a fixed-term contract.  Once the details were resolved, he would be provided with a letter setting out the terms of the fixed-term contract, including commencement and end dates, the status of the position and his status, both being cited as ‘fixed-term’, the name of the school, its code, and the work fraction of a full-time equivalent, such as 1.0 (for example document 3), or 0.30, as in Addendum document 2F.  The letters of appointment contained no reference to any future contracts or extensions of contract.

7          The parties agree that the applicant has had numerous contracts of employment with the respondent since 1990.  The applicant’s Addendum document 89 shows that he has had two types of engagements: relief or casual, and fixed-term.  He commenced in 1990 with a fixed-term appointment between the 23 October and 21 December 1990 at Bruce Rock District High School.  From then until 2000 he has numerous single-day or part-day engagements at more than 20 schools.  Some engagements involved work on consecutive days for a number of days.  For example, in the 1998/1999 financial year he undertook 80 days’ at Ocean Reef Senior High School, some of which were part of a couple of weeks’ work, others being single days.

8          In the 1999/2000 financial year he undertook three fixed-term contracts at Ocean Reef Senior High School, from 19 July to 24 September, 24 September to 22 December 1999 and, inexplicably, from 11 October to 22 December 1999.  He also undertook two fixed-term contracts at Balcatta Senior High School from 7 February to 7 April and from 26 April to 30 June 2000.  He also had a single-day engagement on 2 July 1999 at that school and a single-day at Padbury Senior High School.

9          From July 2000 until February 2001 there were no engagements.  From February 2001 to June 2001 there were 55 days of casual engagements at six schools, and from 17 July to 20 December 2000 there was a single fixed-term contract at Balcatta Senior High School.

10       In the 2001/2002 financial year the applicant undertook five consecutive days’ casual work at Morley Senior High School, two fixed-term contracts at Ballajura Community College from 23 July to 28 September and 15 October to 21 December 2001, and a fixed-term contract at Cyril Jackson Senior College from 23 March to 19 April 2002.

11       In the 2002/2003 financial year there were two fixed-term contracts one at John Forrest Senior High School from 27 July to 20 December 2002 and one at Belridge Senior High School from 5 May to 19 December 2003.  There were no casual contracts.

12       In the 2003/2004 financial year there was no fixed-term contracts other than the continuation of the contract referred to above, at Belridge Senior High School, and 9.5 days of casual contracts in April and May 2004 at six schools.

13       In the 2004/2005 financial year there were 9 days’ casual work at six schools and one fixed-term contract from 26 April to 1 July 2005.

14       In the 2005/2006 financial year there were 76.5 days’ casual employment at seven schools and one fixed-term contract from 15 February to 23 July 2006.

15       In the 2006/2007 financial year there was 7 days’ casual employment at four schools and one fixed-term contract from 24 July to 13 December at John Forrest Senior High School; two fixed-term contracts of 0.3 of a full time equivalent at Perth Modern, one from 13 February to 18 December 2007 and one from 13 February to 5 April 2007.  There was a fixed-term contract at Warwick Senior High School from 23 April to 18 December 2007.  There was a fixed-term contract at Duncraig Senior High School from 29 January to 18 December 2007. 

16       In the 2007/2008 financial year there were 5 days’ casual at Churchlands Senior High School.  There were two fixed-term contracts at Churchlands Senior High School from 28 April to 23 May, and 26 May to 20 June 2008.  There was a fixed-term contract at Shenton College from 31 January to 11 April 2008.  There was also a fixed-term contract at Morley Senior High School from 21 July to 18 December 2008.

17       The last fixed-term contract was from 29 January to 18 December 2009 (document 3).

18       I note there appears to be an inexplicable arrangement for 2007 or 2008 which suggests that the applicant was engaged for two contracts equating to 0.6 FTE over the two contracts and then in excess of one full-time equivalent for a number of periods.

19       However, there is no dispute that over 20 years, the applicant has been engaged increasingly in fixed-term contracts, some back-to-back, but not necessarily so.  These contracts have varied in length from four weeks to the full academic year.  They have varied from 0.3 to a full-time equivalent.

20       During that time his casual single-day engagements have reduced, but were still present.  It is true that the last two years out of the 20 years of employment saw the applicant engaged for the full academic year over five contracts at five schools.  The contracts varied in length.  In 2008, there were 5 consecutive days’ casual at one school and no casual engagements in 2009.

21       In examining these contracts I conclude that the employment was not regular and systematic, as it was, in fact, irregular and unpredictable, although it was frequent and took up considerable periods of the academic year.  There was no discernible pattern of engagements.

22       The applicant acknowledges that he never sought permanency, due to what he referred to as a “lifestyle matter”.  He said in submissions that he accepts that he could never guarantee employment from the respondent.

23       After his last fixed-term contract expired, the applicant sought, but was not provided with, further contracts of employment, except for one day in April 2010.

24       The evidence demonstrates that on 17 February 2010 the applicant was charged with a criminal offence which was later not pursued and was dismissed.  However, on that day Ms Carol Westland, the respondent’s Acting Senior Consultant, Teacher Entry and Administration, instructed the Payroll Operations Manager to terminate the applicant’s casual identification number and noted that she had flagged his record as ‘not suitable for future employment with the Department without prior reference to Director Standards & Integrity’ (document 5).

25       On 22 April 2010 the applicant was offered, accepted and performed, work under a casual contract as a relief teacher at John Forrest Senior High School.

26       There was a process then of providing the applicant with an opportunity to be heard, and subsequently the respondent cancelled the applicant’s departmental payroll number and advised him of this and of the decision to note on his employment record that, should he seek employment in the future, his application would be referred to the Standards and Integrity Director (document 23).

27       The applicant says that cancellation of his identification number and the placing on his file of the direction regarding future employment constitutes the respondent’s actions in bringing the employment relationship to an end.  That, he says, constitutes a dismissal because without an identification number he is unable to obtain work with the respondent.

Consideration and conclusions

28       I have carefully considered what is before me, and I find that the applicant, for his own reasons, never sought permanency with the respondent.  Over 20 years he sought, was offered and accepted an increasingly large proportion of his work through fixed-term contracts with the respondent and a decreasing number of casual contracts.  His last fixed-term contract was for the period of the school year for 2009.  The contract letter was in the usual form citing the commencement date of 29 January 2009 and the end date as 18 December 2009 (document 3).

29       I conclude that, while he might have had a reasonable expectation of being offered further work by the respondent, such further work may have been single-day relief contracts of any number of days at any number of schools, or one or more fixed-term contracts at one or more schools.  As he acknowledged, there was no guarantee of this.

30       I conclude that when the applicant’s last fixed-term contract came to an end his employment ended; not at the respondent’s initiative, but by mutual consent in accordance with the terms of the contract the parties had entered into.  This is consistent with the applicant’s employment with the respondent being made up of individual part-day, single-day, weekly and other contracts of up to a year’s duration.  They were not regular or predictable, and varied in duration and location. 

31       The applicant obtained those contracts by applying to the individual schools or, in respect of the lengthier fixed-term contracts, by submitting Placement Requests to the respondent.  Each contract represented a single engagement.  Although some contracts were contiguous, it was not simply a matter of contracts being rolled over or extended.  Each was a separate contract.  The letters of appointment set out the commencement and end date of the contract, the school name and the work fraction.  Each stated the position status as fixed-term and the employee status as fixed-term.

32       I find too that at the end of each contract the employment relationship between the parties came to an end until the commencement of the next contract.  This was not a case of continuous employment.

33       The purpose of the applicant having identification and payroll numbers was for administrative ease.  They acted as reference points to his personal records and payment arrangements within the respondent’s organisation.  Of themselves, the numbers did not signify that the applicant and respondent were at any particular time engaged in an employment relationship.  Such a relationship relied on having a extant contract.

34       Therefore, when the last fixed-term contract came to an end according to its terms and by the effluxion of time, there was no longer an employment relationship, even though for administrative purposes the applicant still had an identification and a payroll number.  In the circumstances, as the applicant acknowledges, there was no guarantee of future employment and the arrangement had until then suited both parties.

35       Therefore, I conclude that there was no dismissal by the respondent.  The cancellation of the identification numbers and the marking of the file were to deal with future issues.  That is, a potential refusal to employ, not a dismissal.

36       In Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166, Heenan J noted, in respect of an application by an employee under section 29(1)(b)(i) of the Industrial Relations Act 1979, that:

The question is whether the termination of the appellant’s employment by the effluxion of time fixed for the duration of that employment constitutes a dismissal by the employer.  If not, no question of relief for alleged harsh, oppressive or unfair dismissal could arise under ss 23A, 29(1)(b) of the Industrial Relations Act or at all.

37       His Honour then went on to cite with approval the reasons for decision in the Full Bench matter below in which the learned President said:

A dismissal is well understood to be the termination of the contract at the initiative of the employer and this may be done by notice or summarily (see Macken, O’Grady, Sappideen & Warburton 5th edition, ‘The Law of Employment’).  Where a contract provides for employment for a fixed term, the contract will automatically end when the time expires, unless, of course, it is lawfully terminated in some other way in the meantime (see ‘The Law of Employment’ op cit at page 235).

If, however, a contract of employment is terminated by agreement between the parties (ie consensually) or by effluxion of time then there is obviously not a dismissal because there is no termination at the initiative of the employer.

38       Heenan J went on to say:

There is ample authority for the proposition that the cessation of the relationship of employer and employee by the effluxion of an agreed term of employment is not a “dismissal”.

39      He also said:

Unfair dismissal should be distinguished from the refusal to employ or re-employ for which the Commission has express jurisdiction by virtue of the definition of “industrial matter” in s 7(1).

40       I also note my own comments in Sandercock v E.J. Powell & Co (2004) [84 WAIG 2674] at paragraph 5, where I said:

I note that the refusal to employ is an industrial matter.  However, section 29(1)(b) provides that individual employees have the capacity to refer only particular industrial matters to the Commission, one of them being a claim of harsh, oppressive or unfair dismissal from employment.  There is no capacity for an individual employee to refer to the Commission any industrial matter and, in this case, a refusal to employ.  The only matters which can be referred by the individual are those which relate to dismissal from employment or denied contractual benefits.

41       In all of those circumstances, I find that there is no standing for the applicant to file the application and the Commission is without jurisdiction to hear and determine it.

42       Accordingly, an Order will issue dismissing the application for want of jurisdiction.