UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00277

DELIVERED : FRIDAY, 7 JUNE 2024

FILE NO. : U 87 OF 2023

Applicant

AND

EAST METROPOLITAN HEALTH SERVICE

Respondent

CatchWords : Jurisdiction - Applicant employed on fixed-term contract - No dismissal - Application dismissed for want of jurisdiction

Legislation : Industrial Relations Act 1979 (WA): s 27(1)(a)    

Result : Application dismissed

Representation:

Applicant : In person

Respondent : Mr P Heslewood (as agent)

Cases referred to in reasons:

Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166

Gallotti v Argyle Diamonds Pty Ltd [2003] WAIRC 07928

Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611

Townes-Vigh v North Metropolitan Health Service [2020] WAIRC 00188; (2020) 100 WAIG 256

Reasons for Decision

1         Miss Nancy Mathew says East Metropolitan Health Service (Health Service) unfairly dismissed her. The Health Service says it did not dismiss Miss Mathew. Rather, her employment ended with the passing of time when her fixed-term contract ended.

2         For Miss Mathew to pursue her unfair dismissal claim, she must first establish that the Health Service dismissed her.

What must the Commission decide?

3         To resolve this matter, the Commission must decide whether the Health Service dismissed Miss Mathew from her employment.

Background

4         The following background is not in dispute.

5         In late November 2022, the Health Service offered Miss Mathew a fixed-term contract of employment to work as a Registered Nurse. The fixed term of employment started on 19 December 2022 and ended on 17 December 2023.

6         On 21 October 2023 Miss Mathew sent an email to the Nurse Unit Manager, Ms Beata Adamczyk:

Good morning Betty,

Could I please request for an extension of my contract of full time fixed contract for another 6 months please, as I am sure I will get some placements at WA health by then.

Or how can you ensure that there is a job for me at RPH please?

My situation is that I cannot live without the RPH job due to the matters going on in my life.

I thought, my contract will be renewed, before offering positions to others, as I am already in the WA health system for more than 13 years.

Thank you

Nancy Mathew

7         Miss Mathew was not offered a further full-time fixed-term contract and the last day she worked was 15 December 2023.

Evidence and submissions

8         At the hearing Miss Mathew gave evidence about an email she received on 28 October 2022 from Mr Gavin Ekholm, who was the Acting Nurse Unit Manager at the time. It says:

Hi Nancy,

Apologies for the delay.

I appreciate you would prefer Permanent Full Time but at this stage would you please consider a Fixed Term start with us?

Contract Offer:  12 MONTHS FIXED TERM-  with potential to transfer to PERMANENT

Contract Hours:  72 HOURS

Start Date 19 DECEMBER 2022                        

Please advise if the listed offer & start date is acceptable to you. Please do not hesitate to call me if you would like to discuss further.

Many Thanks

9         Miss Mathew says that this email shows that she was ‘asked to start with a fixed-term contract and then convert to a permanent placement’.

10      Having not complied with several directions by the Commission to file the evidence, documents and written submissions she relies on, Miss Mathew eventually sent this email to the Commission:

Good morning,

As per the request for evidence,

I can address these points of concerns to the commission.

1.I was rotated and being treated badly by the staff in that speciality, staff allocation and theatre management system is evidence, while I had quiet [sic] a lot of experience in theatre as well at RPH.

2.

My annual leave was scheduled for February 2024, and I was advised that My contract will be renewed

3.

In the offer letter, It was mentioned to me that my contract will be renewed later (by E mail)

4.

I have started working weekends and after hours and has completed all speciality rotation

5.I have a lot of experience in trauma and theatre management system is evidence.

5.(sic) Ms Betty informed us in meeting that she recruited some ones friend, and she somewhat belongs to the same nationality as Betty. Minutes of the meeting on that day would be an evidence

I am denied job again at RPH for an RN position, for which I have been successfully and has been orientated to the department and finally refused the job.

Manager said there is no concern with me, still not given RN position, which is way beyond less to my qualifications.

I am extremely upset.

Thank you 

Nancy Mathew 

11      The effect of Miss Mathew’s evidence was:

a. when she raised permanency with Ms Adamczyk, Ms Adamczyk would say ‘let’s see after two months, or three months or four months’;

b.  no issues were raised with her performance;

c.  in February 2023, Ms Adamczyk included Miss Mathew’s February 2024 annual leave dates in the leave register, which shows that her contract would be extended;

d.  the Health Service rotated Miss Mathew through specialties, which shows that her employment would continue. Further, the Specialist Staff Development Nurse told Miss Mathew: ‘you will be getting a full time permanent contract’;

e.  in October 2023, Ms Adamczyk met with Miss Mathew and told her she could not extend her contract because her hands were tied and there were budgetary constraints. When Miss Mathew approached Ms Kerry Hodgkinson, the Co-Ordinator of nursing, she was unaware of why Miss Mathew’s contract could not be extended; and

g.  after Miss Mathew’s fixed-term contract ended, other people were recruited to high paid nursing positions.

12      Miss Mathew argues that this means the Health Service dismissed her.

13      In effect, the Health Service says there was no dismissal and Miss Mathew’s employment ended with the passing of time when her fixed-term contract expired.

14      The Health Service submits that it appointed Miss Mathew to the position to cover an employee’s parental leave and Miss Mathew ‘was advised in October 2023 that her contract would not be extended beyond its end date’.

15      Ms Adamczyk gave evidence for the Health Service. She was the Nurse Unit Manager at the time Miss Mathew was employed by the Health Service. Her role included responsibility for recruitment, rostering, budgeting, management of FTE contracts and payroll matters.

16      Ms Adamczyk gave evidence that:

a.  annual leave was planned 12 months in advance. Accordingly, in February 2023 she included Miss Mathew’s leave dates for February 2024 in the leave register to secure Miss Mathew’s annual leave in the event that her contract were extended, but that Ms Adamczyk told Miss Mathew then that she did not know if her contract would be extended;

b. in October 2023 the Directors of Nursing and Executive Directors sent an ‘overall directive’ to all divisions (Executive Directive) that there could be no more recruitment because the Health Service was over budget for FTE; and

c. her general practice is to make it very clear that any potential contract extension or permanent contract will depend on the Health Service’s budget and FTE at the time of consideration.

17      Ms Adamczyk disputed that she ever promised Miss Mathew permanency, a new fixed-term contract or a further fixed-term contract. She gave evidence that she offered Miss Mathew casual employment after her fixed-term contract ended, but Miss Mathew did not accept.

18      The Health Service argues that not offering a further contract, fixed-term or otherwise, does not amount to a decision to dismiss. It says the evidence does not show that the Health Service dismissed Miss Mathew. Accordingly the Health Service says the Commission should dismiss application U 87 of 2023 for want of jurisdiction.

Consideration

19      The Public Service Appeal Board chaired by Emmanuel C in Townes-Vigh v North Metropolitan Health Service [2020] WAIRC 00188; (2020) 100 WAIG 256 (Townes-Vigh) considered what constitutes a dismissal from [25] – [36] of that decision. I respectfully adopt and apply that reasoning in this matter.

20      It is clear that a dismissal involves being sent away or removed from office, employment or position: Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611; Gallotti v Argyle Diamonds Pty Ltd [2003] WAIRC 07928 (Gallotti (1)) at [55] – [62]. The Commission is bound by Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166 (Gallotti (2)) and EM Heenan J’s reasoning at [5]: ‘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”’ and at  [7]: ‘There will not be a dismissal where the term of a contract of employment expires’.

21      In my view, the evidence in this matter does not establish that Miss Mathew was dismissed. In particular, the following factors weigh against her argument that she was dismissed:

a. Miss Mathew’s employment contract clearly states that it is for a fixed-term and the parties agree that ‘upon expiration of this fixed-term contract there is no obligation on either party to enter into any further employment arrangement’;

b. at best, before offering the fixed-term contract, the Health Service noted Miss Mathew’s preference for permanent employment and flagged the potential to transfer to permanency. Although in her email to Mr Ekholm dated 28 October 2022, Miss Mathew said: ‘I am happy to start as a Fixed Term contract on December 19 2022, and eventually can change to a Permanent contract’, it is clear that no one promised Miss Mathew that she would be permanently appointed or that her contract would be renewed;

c. Miss Mathew’s email to Ms Adamczyk dated 21 October 2023 set out at [6] above, requesting an extension of her fixed-term contract, supports a finding that Miss Mathew was aware that her contract would come to an end because it was for a fixed-term; and

d. there is no evidence that the Health Service said or did anything that could reasonably lead to an expectation of ongoing employment.

22      As in Townes-Vigh, in the circumstances of this matter, the failure to offer a subsequent contract is not a dismissal and nor is the contract coming to an end by the effluxion of time. Even if the Commission were to go beyond the four corners of the fixed-term contract, it would not lead to a finding that that Miss Mathew was dismissed.

23      Miss Mathew’s contract was clear that employment was for a fixed-term only. Indeed that short document says at least six times that the employment is for a fixed-term. The parties expressly agreed in writing that the employment would end when the term of the contract came to an end.

24      None of the matters Miss Mathew relies on lead me to conclude that the Health Service removed or sent Miss Mathew away from her office, employment or position. In particular:

a. That Ms Adamczyk was aware that Miss Mathew wanted a further contract because of Miss Mathew’s family circumstances at the time does not mean that Ms Adamczyk promised or offered Miss Mathew a further contract or permanency. I accept Ms Adamczyk’s evidence and prefer it to that of Miss Mathew to the extent of any inconsistency. Ms Adamczyk presented as a reliable, forthcoming witness. Her evidence was not materially disturbed or undermined, whereas at times Miss Mathew would not make concessions that were plainly due. I find Ms Adamczyk never promised Miss Mathew permanency or a further full-time fixed-term contract. Rather Ms Adamczyk told Miss Mathew that those matters would depend on budgetary constraints and approval at the relevant time.

b. That Ms Adamczyk included Miss Mathew’s February 2024 leave dates in the leave register in February 2023 does not mean that Ms Adamczyk promised or offered Miss Mathew a further full-time fixed-term contract or permanency. I accept that Ms Adamczyk included Miss Mathew’s February 2024 leave dates in the leave register just in case Miss Mathew were to be offered a further contract, in circumstances where annual leave was planned 12 months in advance.

c. That Miss Mathew was rotated through specialties does not mean her employment would continue beyond the fixed-term of her contract. Miss Mathew did not call the Specialist Staff Development Nurse to give evidence. But even if that person did tell Miss Mathew that she would be made permanent, I accept Ms Adamczyk’s evidence that only Co-Directors and Executive Directors had delegated authority to approve permanent employment. Accordingly, I am satisfied that that the Specialist Staff Development Nurse did not have delegated authority to offer Miss Mathew permanent employment.

d. That performance issues were not raised with Miss Mathew does not mean Miss Mathew would be made permanent or given a further full-time fixed-term contract. Moreover, it does not have a bearing on whether Miss Mathew was dismissed.

e. That other staff were recruited while Miss Mathew was not offered a further full-time fixed-term contract or permanency does not assist Miss Mathew. Further and any event, I accept Ms Adamczyk’s evidence that the employees who started employment from October 2023 had been recruited before the Executive Directive was sent.

25      In the circumstances of this matter, I find that although Miss Mathew wanted a further contract, there was no reasonable basis on which she could conclude that she would be given a further contract or converted to permanency.

26      Even though Miss Mathew wanted her employment to continue beyond the end of the fixed‑term contract, on the evidence I cannot find that she was removed or sent away from employment. Rather, I find Miss Mathew’s employment ended in accordance with what she and the Health Service agreed when they entered into the fixed-term contract. It was the effluxion of time in accordance with the parties’ agreement, and not any action on the part of the Health Service, that resulted in the contract and the employment relationship ending. I must find that Miss Mathew was not dismissed.

Conclusion

27      Accordingly, an order will issue dismissing this application for want of jurisdiction.