DECISION

Fair Work Act 2009
s.604—Appeal of decision

Cheryl-Anne Murphy
v
University of Southern Queensland
(C2021/2293)

Appeal against decision of Commissioner Hunt at Brisbane on 1 April 2021 in matter number U2020/9506 - Whether there was a dismissal at initiative of the employer – permission to appeal refused.

[1] Ms Cheryl-Anne Murphy (the appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act), for which permission to appeal is required, against a decision (the decision) of Commissioner Hunt issued on 1 April 2021. The decision dealt with an application for an unfair dismissal remedy made by the appellant under s.394 of the Act.

[2] The appellant alleged that she had been unfairly dismissed from her employment with the University of Southern Queensland (the respondent/USQ). The Commissioner found that the appellant was not protected from unfair dismissal as she was not dismissed. On this basis the Commissioner held that the Fair Work Commission (the Commission) did not have jurisdiction to deal with the application and the application was dismissed. 1

[3] The matter on appeal was subject to a hearing via Microsoft Teams at which the parties were granted permission to be legally represented pursuant to s.596(2)(a) of the Act. 2

[4] The Full Bench has heard the parties on permission to appeal and the substantive appeal, and for the reasons that follow, permission to appeal is refused.

The Decision under appeal

[5] The appellant was employed with the respondent at the University of Southern Queensland in the School of Nursing and Midwifery between January 2017 and June 2020 on a series of contracts that were described by the appellant as “fixed-term” contracts. In terms of the employment relationship, the appellant stated that she had an expectation of continuing employment with the respondent. 3

[6] Importantly, the last contract for the period 9 January 2020 to 19 June 2020 (the 2020 contract) included the following terms:

•  ‘This contract of employment is not renewable,’

•  ‘an essential feature of fixed-term employment at USQ is that there is no expectation of continuity of employment unless stated otherwise in writing by the Executive Director, Human Resources’. [original emphasis] 4

[7] During the appellant’s employment, she was also covered by the respondent’s enterprise agreements; with the most recent agreement being the University of Southern Queensland Enterprise Agreement 2018-2021 (the Agreement). 5

[8] On 17 April 2020, after receiving her proposed workload allocation for semester 2, 2020, Ms Murphy sent an email to Professor Christine Neville stating:

“Hi Christine,

I have needed to re-evaluate to my work commitments with USQ for the latter part of this year. As you are aware, from my earlier emails this year, I need to generate some stability with my work arrangement and better work life balance with my family. For this reason, I need to advise you that I am unable to continue working full time in semester 2 for USQ. This decision is in consideration of my son who I will be home schooling in semester 2 and the proposed added expectations of teaching of 5 courses in semester 2. Unfortunately this is something that I am simply unable to do.

I am a person of integrity and have passion for my profession and quality of teaching experiences that I develop and provide for my students. I have over the past three years, been very loyal to USQ and demonstrated a commitment that goes well beyond what a reasonable person might expect, given that I have only ever been employed as a temporary and/or casual employee. I have devoted my efforts to USQ students in their perusal of midwifery as their profession but I feel the work allocations which, consistently change without consultation for semester 2, is simply not achievable.

If you still require my services, I am more than happy to continue working for USQ at a 0.5 or less.

Warm Regards

Cheryl-Anne” 6

(Our underline)

[9] On 4 June 2020, prior to the commencement of the respondent’s second semester, 2020, Ms Murphy was sent an email from Professor Christine Neville stating:

“Dear Cheryl-Anne

In a review of the staffing profile for School of Nursing and Midwifery for Semester 2,

2020, unfortunately USQ is not able to offer you a contract for Semester 2.

I thank you for your contribution to the school, particularly the Midwifery program.

Regards

Christine

Professor Christine Neville
Head of School | School of Nursing & Midwifery” 7

[10] The appellant contends that she was dismissed within the meaning of s.386(1)(a) of the Act, in that her employment with the respondent was terminated at the respondent’s initiative. 8

[11] The respondent submitted that the appellant’s employment did not terminate at their initiative, and accordingly, pursuant to s.386(1)(a) of the Act, the appellant has not been dismissed from her employment and thus the Commission has no jurisdiction to deal with the application. 9

[12] The respondent also submitted that the appellant’s final fixed term contract was a contract of employment for a specified period of time and the employment has terminated at the end of the period because it does not contain an unqualified right for either party to terminate. 10

[13] The Commissioner found that the appellant’s final contract of employment was an outer-limit contract, providing the respondent with an unqualified right to terminate the contract within the term, and the exclusion under s.386(2)(a) of the Act did not apply. 11 This was because the contract included the ability of the respondent to terminate the contract on notice.12 Section 386(2) of the Act provides that a person has not been dismissed if:

“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: or

…”

[14] The Commissioner ultimately found, however, after considering the majority decision in Khayam v Navitas (Navitas), 13 and applying this to the facts in the appellant’s circumstances, that the employment relationship was terminated by reason of agreement between the parties and there was no termination at the initiative of the employer. It was also found that the appellant’s last contract had an end date of 19 June 2020 and her employment ended when that outer-limit contract reached its end date.14

[15] At paragraph [324] of the Decision, the Commissioner stated:

“Considering the employment relationship that existed between Ms Murphy and the Respondent, and particularly in light of the express terms stated to Ms Murphy within each contract issued to her, in my view, Ms Murphy indeed knew that the employment relationship ended each time a contract expired. Ms Murphy’s actions in her email of 17 April 2020 made it clear that she no longer wished to work full-time beyond the contract which bound her. She was home-schooling her child at the height of the COVID-19 lockdown restrictions. Home-schooling had been indicated to be in place for five weeks at that time. Nobody knew as of 17 April 2020 how much longer that might extend. Ms Murphy informed the Respondent unequivocally that she was unable to continue working full time in semester 2 for the Respondent. She was, in my view, drawing a line in the sand and announcing her intentions, as she was entitled to do.”

[16] In finding that the employment relationship was not terminated at the initiative of the employer, the Commissioner found that the appellant was not dismissed and was therefore not protected from the Act’s unfair dismissal remedy provisions.

Principles of Appeal

[17] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 15 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[18] Being an unfair dismissal claim s.400 of the Act applies to this appeal. It provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

(our underline)

[19] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 16 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.17 The public interest is not satisfied simply by the identification of error, or a preference for a different result.18 In GlaxoSmithKline, a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 19

[20] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 20 Where the Member at first instance has made an identified error is not necessarily a sufficient basis for the grant of permission to appeal.²¹

Submissions on permission to appeal

[21] Regarding permission to appeal, the appellant submitted that it was in the public interest to grant permission to appeal for the following reasons:

•  It is not an appeal from a decision that the dismissal was not unfair, which is a kind of decision where it may be less apparent that any individual case presents issues of wider importance, but rather it is a decision made at an anterior stage, that Ms Murphy had not been dismissed, and that this threshold issue is of broader significance.

•  It is the first case to apply the principles in Navitas in any detailed way, and how those principles are to be applied is a matter of general importance.

•  Because the application was dismissed without any consideration on the merits, it is particularly unjust to the appellant to allow the decision to stand if, as the appellant contends, it if affected by significant errors of fact and errors of law.

•  Some issues in the appeal concern the respondent’s compliance with an enterprise agreement and the role of the Commission in considering an allegation of non-compliance.

•  Because the decision is affected by error, as set out in the grounds of appeal. 22

[22] In opposing permission being granted, the respondent submitted that as the decision involved a finding of jurisdictional fact, it is not a matter that involves the exercise of discretion, and accordingly, on appeal, the Commission is concerned with the correctness of the conclusion reached in the decision at first instance, not whether that conclusion was reasonably open. 23

[23] The respondent submitted that whilst it may be accepted that public interest is more likely to be identified if the decision is one going to the Commission’s jurisdiction, it is still necessary for a public interest to be identified, and in the absence of appealable error, none will be found.

[24] The respondent submitted that despite the proliferation of appeal grounds, most of which rely on an assertion of a significant error of fact, no public interest is identified. 24

[25] It was submitted that the only issue for determination was whether the appellant was terminated at the initiative of the respondent, with the Commissioner determining that there was no mutual intention that the appellant’s employment would continue beyond the expiry of the fixed term contract. The respondent contended that that was the only relevant issue, and it is not the case, as the appellant submits, that this appeal raises ‘broader issues’ or issues of general or universal application concerning the role of the Commission. 25

Grounds of Appeal

[26] The appellant provided 11 grounds of appeal, which will be dealt with in the order as argued by the appellant.

Grounds 8 & 9

[27] In summary, grounds 8 and 9 of the appeal concern the appellant’s argument that her contract of employment was inconsistent with the Agreement. In the decision, the Commissioner was not satisfied that the contract was impermissible or inconsistent with the Agreement and made findings regarding the categories in the Agreement that the appellant’s contract may fall within. 26

[28] Ground 8 of the appeal contends that the Commissioner erred and committed a significant error of fact in finding that the appellant had been employed on a “specific task or project” basis, being the work activity set out in clause 13.4.3.1 of the Agreement, 27 and ground 9 contends that the Commissioner erred and committed a significant error of fact, in finding that the appellant had been employed as a “replacement employee” (the requirements of which are set out in clause 13.4.3.3) for Ms Gleeson under the Agreement.28

[29] The appellant submitted that under clause 13.4.3 of the Agreement fixed-term employment “is limited” to “a work activity” set out in clauses 13.4.3.1 to 13.4.3.8. 29

[30] The relevant Agreement clauses are provided below:

“13.4.3 The use of fixed-term employment is limited to the employment of an Employee engaged in a work activity that comes within the description of one (1) or more of the following circumstances:

13.4.3.1 Specific Task or Project

A specific task or project is a definable work activity with a start date and which is expected to be completed within an anticipated timeframe. Without limiting the generality of that circumstance, a specific task or project may include a period of employment provided for from identifiable funding external to the employer, not being funding that is part of an operating grant from government or funding comprised of payments of fees made by, or on behalf of, students.

13.4.3.3 Replacement Employee

A Replacement Employee is one who is:

•  undertaking work activity replacing a full-time or fractional Employee for a definable period for which the latter is either on authorised leave of absence or is temporarily seconded away from their usual work area; or

•  performing the duties of:

•  a vacant position for which the University has made a definite decision to fill and has commenced recruitment action; or

•  a position the normal occupant of which is performing higher duties pending the outcome of recruitment action initiated by the University,

until a full-time or fractional Employee is engaged for the vacant position or vacant higher duties position as applicable.

Upon the notification of the return of the incumbent Employee due to unforeseen circumstances, including the early return of an Employee absent on parental leave, replacement Employees may be terminated with the provision of four (4) weeks notice.”

[31] Regarding ground 8, the ‘Specific Task or Project’ finding of the Commissioner, it was contended by the appellant that this was contrary to the evidence, that there was no probative evidence to support this finding, and that no party advanced it. 30

[32] Regarding ground 9, the ‘Replacement Employee’ finding, the appellant submitted that all of the evidence was to the effect that the requirements of clause 13.4.3.3 were not satisfied, and that the respondent purported to employ Ms Murphy as a fixed term employee in contravention of the Agreement. 31

[33] We do not accept the appellant’s contentions in the above grounds.

[34] In finding that the appellant had been employed as a ‘replacement employee’, the Commissioner made a finding of fact based on the evidence that was before her. The Commissioner also made an alternative finding of fact, to the effect that another category might have also supported the issuing of the contract, that being the ‘specific task or project’ category. The Commissioner also pointed to the breadth of the definition of the category ‘specific task or project’ in her alternative finding, noting the wording, “Without limiting the generality of that circumstance”.

[35] In our view, both of these findings were open to the Commissioner.

[36] Further, we do not accept, as submitted by the appellant, that these grounds amount to significant errors, nor do we accept that they are material to the ultimate decision. Even if the appellant was incorrectly classified as a replacement employee, and if the contract was not authorised by the ‘Specific Task or Project’ category, we do not accept that these factors would alter the Commissioner’s final conclusion.

[37] For the reasons above, we reject appeal grounds 8 and 9.

Ground 10

[38] Ground 10 contends that the Commissioner erred in saying that any non-compliance with the Agreement was a matter for a court, and implicitly not for the Commission, and in doing so failed to exercise her jurisdiction and/or acted upon a wrong principle. 32

[39] The relevant paragraph of the decision is provided below:

“[365] If I am incorrect about this, it is a matter for consideration of a court as to whether there has been a breach of the Enterprise Agreement. Arguably, if it is demonstrated to have been a breach with the issuance of the semester 1, 2020 contract, it might also be in 2019 when Ms Murphy’s two-year contract was cut short, and ways and means were found to provide to her the work promised, but under a different head. If Ms Murphy was found to be a replacement employee on account of Ms Gleeson’s return (but diversion from teaching to academic work), there would be no breach of the Enterprise Agreement.”

[40] It was the appellant’s submission that if this is to be understood as the Commissioner reasoning that it was not for her to consider Ms Murphy’s argument of a breach of the Agreement, then it misunderstands the Commission’s jurisdiction. The appellant contended that as an administrative tribunal, the Commission cannot determine questions of law on a final basis, but it can determine questions of law in the course of discharging its functions, and that it does so commonly. 33

[41] We do not accept the contention that the Commissioner misunderstood the Commission’s jurisdiction.

[42] In our view, the Commissioner did consider Ms Murphy’s argument regarding a breach of the Agreement, as set out in her findings regarding the potential fixed term classifications of the appellant under the Agreement, however her comment, which was made in the alternate, regarding the jurisdiction of a court was correct. It is not for the Commission to determine on a final basis whether a breach of the Agreement has occurred, and this, in our view, is what the Commissioner’s reasoning at [365] clearly stated.

[43] As submitted by the appellant, the Commission cannot determine questions of law on a final basis. If the appellant desired to prosecute a breach of the Agreement, this must be taken to a court with appropriate jurisdiction.

[44] Appeal ground 10 is rejected.

Ground 11

[45] Ground 11 contends that the Commissioner erred in finding that any non-compliance with the Agreement did not result in Ms Murphy’s employment converting to one of continuing employment, because that was not an argument that Ms Murphy made, and the Commissioner did not deal with the argument that was made (namely that non-compliance meant that the respondent could not rely on the employment contract to contend that there was no dismissal). 34

[46] Citing the decision in Navitas, the appellant submitted that her argument was that because the final contract of employment is inconsistent with the Agreement, the respondent cannot rely upon it under s.386(2)(a) to avoid consideration of Mr Murphy’s unfair dismissal application. It was submitted that the Commissioner simply ignored this argument in her decision. 35

[47] We do not accept that the Commissioner ignored the appellant’s argument in this regard. The Commissioner, in summarising the appellant’s submissions, clearly made reference to this argument at [310] of the decision:

“[310] Moreover, because the contract is inconsistent with the Agreement (in purporting to employ Ms Murphy as a replacement employee), USQ cannot rely upon it under s 386(2)(a), consistently with the holding in Navitas in respect of s 386(1)(a).”

[48] Further, we do not accept that the Commissioner erred in making the finding that any non-compliance with the Agreement does not result in the conversion of the appellant’s employment to ongoing employment. In the decision, the Commissioner states that if she is incorrect about the appropriateness of a ‘replacement employee’ description applying to the appellant’s last contract, she is not satisfied that it would provide a conversion under the Agreement to continuing employment pursuant to clause 13.2 of the Agreement, which states:

“13.2 Continuing Employment

Continuing employment is employment entered into for an indefinite period subject to the termination, change and redundancy provisions of this Agreement.” 36

[49] We are of the view that this finding was open to the Commissioner, and we agree with this finding. Taking into account the express terms within the contract of employment and considering all of the circumstances and history of the employment relationship, we do not consider that the appellant and the respondent entered into an agreement that the Appellant’s employment would be for an indefinite period as per clause 13.2 of the Agreement.

[50] In any event, the Commissioner determined that the exclusion under s.386(2)(a) of the Act did not apply, and the respondent was not able to rely on it. It was determined that ultimately, the employment ended by reason of agreement between the parties and when the outer limit contract reached its end date. 37

[51] For the reasons above, ground 11 is rejected.

Grounds 2 & 3

[52] Grounds 2 and 3 refer to the email sent by the appellant to Professor Neville on 17 April 2020 stating that she was unable to continue working full time.

[53] Ground 2 contends that the Commissioner erred, and committed a significant error of fact, in concluding that, via an email sent on 17 April 2020, the employment relationship was not to extend beyond 19 June 2020, 38 whilst ground 3 contends the Commissioner erred, and committed a significant error of fact, in finding that “in Professor Neville’s mind, the employment relationship ended at the expiration of the last contract”.39

[54] The appellant’s submissions regarding these grounds contend that the central problem with the Commissioner’s analysis is that she regarded the 17 April 2020 email of the appellant as conclusive and definitive, and that this is a ‘blinkered approach’ that focuses on a snapshot in time abstracted from the parties’ entire course of dealings.

[55] The appellant further submitted that the evidence did not sustain a finding that Professor Neville knew that the employment relationship was to end on 19 June 2020 because of the 17 April 2020 email. 40

[56] It was submitted that the conduct of the parties after 17 April 2020, including the discussions and emails about Ms Murphy’s work in semester two, Professor Neville’s evidence about making further enquiries about accommodating Ms Murphy, and Ms Murphy’s evidence that she had not sought employment elsewhere, indicated that the employment relationship was ongoing. 41

[57] Simply put, the appellant argues that the Commissioner should not have placed as much significance on the 17 April 2020 email as she did in her decision.

[58] A fair reading of the email, however, does not support the appellant’s contentions. The words in Ms Murphy’s email are clear, “I need to advise you that I am unable to continue working full time in semester 2 for USQ… if you still require my services, I am more than happy to continue working for USQ at 0.5 or less”. 42

[59] At [327] of the decision, the Commissioner states:

“In my considered view, the employment relationship between Ms Murphy and the Respondent did not extend beyond 19 June 2020 because of Ms Murphy announcement that she would not be able to work full-time in semester 2, 2020. I am satisfied that in Professor Neville’s mind, the employment relationship ended at the expiration of the last contract, and I support that conclusion.”

[60] In our view, Ms Murphy’s email of 17 April 2020 made clear that she had no intention of committing to employment with the respondent other than on a part-time basis, and that it was up to the respondent to decide whether to make an offer of further employment. Whilst the appellant’s evidence was that she was attempting to negotiate her workload in that email, 43 it is our view that even if this was accepted, such negotiation could only rationally be for a potential offer of further employment.

[61] At [328-330] of the decision, the Commissioner in our view correctly states:

“[328] If Ms Murphy’s reasoning is to be accepted, the employment relationship would continue for the second part of 2020 even if she were available to work only 0.3FTE or 0.4FTE or some other figure equal to or less than 0.5FTE. She would, effectively, decide how much time she could offer to the Respondent and the Respondent would be obliged to accept or negotiate with her as to how much time she could accommodate around her other obligations.

[329] With respect, it is not for Ms Murphy to determine how many hours of work the Respondent should provide to her if it does not suit the Respondent’s needs. The Respondent might have been able to consider Ms Murphy’s needs, and I am certain that it did give thorough consideration to Ms Murphy’s needs throughout May 2020, but ultimately, it determined that it would adopt an alternative course.

[330] I am not satisfied that the Respondent’s decision to adopt the alternative course – having an existing employee Ms Joy perform the work she is contracted to do and accept Ms Murphy’s announcement that she is unable to work full time in semester 2, 2020 – constitutes termination of the employment relationship at the initiative of the Respondent.”

[62] Further, we do not accept that the Commissioner erred, and committed a significant error of fact, in finding that “in Professor Neville’s mind, the employment relationship ended at the expiration of the last contract”. The appellant submits that the evidence of Professor Neville did not sustain a finding that the employment relationship was to end on 19 June 2020 because of the 17 April 2020 email, however we are of the view that this is not the case. 44

[63] Professor Neville’s evidence states that she made enquiries as to whether the respondent could accommodate Ms Murphy part-time in semester 2, and that “Ms Murphy’s decision to reduce her availability was a factor which needed to be taken into account in our planning, but did not necessarily mean we would not make a further offer of employment to her.” 45

[64] The respondent submits that if it did decide to make an offer to Ms Murphy for further employment, it would have been different employment, and that relevant authorities such as Navitas and Broadlex Services Pty Ltd v United Workers’ Union (Broadlex) 46 reflect the position that ‘one employment can terminate even though a different employment commences simultaneously’.47 Paragraph 70 of Broadlex provides:

“Here, in contrast to Visscher, there was, in effect, a wrongful dismissal constituted by Broadlex’s repudiation of the employment contract, which brought the employment relationship to an end. The relationship in which Ms Vrtkovski entered after she accepted the repudiation was a fundamentally different relationship from the relationship the parties previously enjoyed. She was no longer a full-time employee but a part-time employee, performing a fraction of the work she formerly undertook for a fraction of the remuneration she formerly received.” 48

[65] It was submitted by the respondent that what is relevant, is the employment which terminated at the expiry of the appellant’s fixed term contract, and that there was no possibility of that employment continuing beyond 19 June 2020, because the appellant had said that it would not. 49

[66] We agree with the submissions put forward by the respondent on this issue. It was clear to Professor Neville that the employment relationship was coming to an end on 19 June 2020, due to the appellant’s email. Any contemplation or planning for future employment role was for exactly that, a future employment opportunity, and a future employment relationship with fundamentally different terms.

[67] For the reasons above, grounds 2 and 3 are rejected.

Ground 4

[68] The appellant submitted that the Commissioner erred in her analysis of Ms Rigg’s conduct in finding that “Ms Rigg may have inadvertently over-promised to Ms Murphy”, because the Commissioner failed to go on to analyse the significance of these findings in terms of the attribution of Ms Rigg’s conduct to the respondent by reason of principles of agency and/or s.793 of the Act, such that the Commissioner applied the wrong principle and/or failed to take into account relevant matters. 50

[69] The appellant submitted that the evidence indicates that Ms Rigg functioned as a conduit who conveyed decisions of management to Ms Murphy and further that it appeared this view was shared by the Commissioner. 51 To this end, the appellant referred to [344] of the decision where the Commissioner stated:

“[344] I do consider though, and without any disrespect to Ms Rigg, she appears to have overstepped her levels of authority, at times.”

[70] The appellant further relied on [345] and [348]. The appellant states that whilst the Commissioner had made findings that Ms Rigg had overstepped her authority, she did not then go on to consider whether the conduct should be attributed to the respondent. 52 The appellant submitted that the consequences of a finding that Ms Rigg’s conduct was attributable to the respondent was that the respondent would be prevented, by reason of estoppel, from relying upon the expiration of the contract.53 It was conceded that in order for estoppel to be made out reliance (which is dealt with at ground 6 below) would need to also be made out.54

[71] The respondent submitted that the Commissioner had engaged with the appellant’s submissions at [303-305], however had preferred the submissions and evidence of the respondent that Ms Rigg did not have any authority in any form to offer the appellant a further contract of employment nor make any final decisions about staffing matters. 55

[72] The respondent submits that the evidence does not support that Ms Rigg 'was communicating not what Ms Rigg had decided but what senior management had decided' as alleged by the appellant, nor that Ms Rigg organised the respondent’s affairs in such a way that Ms Rigg acted as a conduit between the appellant and the respondent. 56

[73] Further, the respondent put that whatever the validity of clothing Ms Rigg in the role of a conduit, there is no evidence that Ms Rigg represented to Ms Murphy that she had a further contract or that the respondent would offer a further contract. 57

[74] The respondent also submitted that leaving all other factors aside, reliance by Ms Murphy on anything said by Ms Rigg in relation to the likelihood of a further offer of employment could not have been reasonable in the circumstances. 58

[75] We do not accept the appellant’s contention that the Commissioner erred in her analysis of Ms Rigg’s conduct in finding that “Ms Rigg may have inadvertently over-promised to Ms Murphy”, nor do we accept the successive argument that therefore Ms Rigg’s communications to Ms Murphy are attributable to the respondent.

[76] The evidence provided by Ms Rigg and Ms Murphy, make it clear that Ms Rigg had no authority to make decisions regarding the issuing of and commitment to employment contracts, on behalf of the respondent, and this was known and accepted by both Ms Murphy and Ms Rigg as was evidenced during their cross-examination:

(Ms Murphy)

PN435
You were also, I think, aware, as I read your evidence, that responsibility for offering contracts was held by the head of school - perhaps in consultation with others, but ultimately the head of school?---That's correct.

PN436
At the beginning of 2018, as I read paragraph 24 of your statement, page 46, it was Victoria - I assume that's Associate Professor Victoria Terry?---Yes.

PN437
She was the acting head of school at that particular time, and Professor Christine Neville was the permanent head of school at that time?---Sorry, can you just repeat what that time period was?

PN438
If you go back to paragraph 23, it seems like it's shortly after January 2018?---No, that was - in 2018 was Victoria Terry.

PN439
And that's what you say at paragraph 24, but you say she was the acting head of school?---Yes.

PN440
So I think as you accept, Elizabeth Rigg herself, in her role, did not have authority to make decisions to issue contracts herself?---She did not make that (indistinct) yes.

PN441
No, and she never told you that she had authority to commit to contracts on behalf of the university, did she?---No. 59

…

(Ms Rigg)

PN1022
Okay, so paragraph 22, and you're responding to some evidence from Professor Neville here, you say you agree that you did not have authority to make hiring decisions, that's correct, isn't it?---Correct, yes.

PN1023
Yes, and as you say there, your role was to provide advice to the head of school about teaching needs, correct?---Correct.

PN1024
And it would always be up to the head of school to make the hiring decisions based on your advice, or taking into account your advice?---Correct.

PN1025
Yes. And you've referred to you being the conduit and you say that you would communicate hiring decisions. Hiring decisions when they were made would normally be accompanied by a contract, wouldn't they?---Not normally.

PN1026
Well, leaving aside ongoing employees, if we're talking about fixed term contract staff, if a decision is made then that would be followed up by a contract, wouldn't it?---It would eventually be followed up by a contract.

PN1027
Yes, that's right. So if a decision is made to put someone on a fixed term contract, you get a fixed term contract issued?---Eventually, yes.

PN1028
Yes. Now if you did make a hiring decision, or tell someone that you've made a hiring decision, that would be beyond your authority, wouldn't it?---Correct.

PN1029
So we can be very confident that you never advised Ms Murphy, for example, that you had authority to make any kind of recruitment decision?---No, I did not tell her that.

PN1030
No, and she would have had no reason to believe that you were responsible for making recruitment decisions, would she?---No.

PN1031
No. And you certainly wouldn't have told her that you had authority to offer, or not offer a contract to her?---No, I - sorry, could you just say that again?

PN1032
Well, you didn't have authority to make a recruitment decision and you didn't tell her that. You also never told her that you hadn't authority to approve a contract to be offered?---Yes. No, I - no.

PN1033
And she herself would have known that your role was to provide advice but not to make decisions on behalf of the university?---Correct. 60

[77] It therefore follows, that it would be unreasonable for Ms Murphy to rely on anything said by Ms Rigg in relation to the likelihood of a further contract employment. In any event, as pointed out by the respondent, there is no evidence that Ms Rigg told Ms Murphy that she had a contract or that the respondent would offer her a contract. Ms Murphy and Ms Rigg both clearly knew that Ms Rigg did not have the relevant decision-making authority.

[78] Whilst the Commissioner commented that “Ms Rigg may have inadvertently over-promised to Ms Murphy”, we do not accept that upon any analysis Ms Rigg’s comments could be said to have represented those of the respondent or that any contract was offered.

[79] For the reasons above, ground 4 is dismissed.

Ground 6

[80] The appellant also submitted that the Commissioner erred, and committed a significant error of fact, in finding that the respondent did not know that the appellant was abstaining from other employment, in that the Commissioner ignored relevant considerations, being Ms Rigg’s knowledge. The appellant submitted that it was appropriate for Ms Rigg’s knowledge to be attributed to the respondent under the under s 793(1)-(2) of the Act and also under the under general law rules of attribution, because Mrs Rigg was the “conduit” between staff and senior management. She was in a position to be told things by staff to be relayed to senior management, and in that role, it is appropriate for her knowledge to be attributed to the respondent. 61

[81] Having dismissed ground 4 above, it follows that ground 6 is also to be dismissed.

Ground 1

[82] Appeal ground 1 states that “The Commissioner erred, and committed a significant error of fact, at [319]-[320], contributing to the findings at [323]-[324], in observing that “there was then a gap between 1 December 2017 and 22 January 2018. Ms Murphy was released, and on her evidence, not required”, because the Commissioner failed to consider, alternatively gave insufficient consideration to, relevant material at paragraph [21] of Ms Murphy’s statement of 1 September 2020 [CB 46]”. 62

[83] The respondent submitted that regardless of the appellant's evidence at paragraph [21] (which was to the effect that she had an expectation that she would be re-employed in semester 1, of 2018 – as she subsequently was), it was open to the Commissioner to find that there was a gap in employment for that period. 63 Further, the respondent submitted that it was also irrelevant to the issue before the Commissioner relating to the circumstances of the appellant's employment in 2020.64

[84] We agree that the issue is irrelevant to the issue before the Commissioner and accordingly, ground 1 is dismissed.

Ground 5

[85] Ground 5 contends that the Commissioner erred, and committed a significant error of fact, in finding that the excess hours the parties agreed Ms Murphy could recover in 2020 were recoverable in semester 1 only. 65

[86] The appellant submitted that she had been overworked in previous years, such that she had been allowed to recover 196.8 excess hours in 2020. In the decision, it was disputed whether the excess hours were able to be recovered in semester 1 only (the respondent’s case) or across 2020 (the appellant’s case).

[87] In her decision the Commissioner states at [350]:

“On the face of the calculations, it appears to me that Ms Murphy was afforded time off in her work allocation within semester 1, 2020. I do not agree that it was expressed by the Respondent to be carried over across two semesters.”

[88] In summary, the appellant submitted that the Commissioner’s finding that the recovery of excess hours was recoverable in semester 1 only, is objectively against the finding that the excess hours were confined to semester 1.

[89] It was the respondent’s submission, that on Professor Neville’s evidence, which was accepted by the Commission, that the report extracted from the work allocation management system (WAMS) on 4 June 2020 was not an accurate reflection of the hours ultimately allocated to, and performed by, the appellant in semester 1, 2020. The respondent submitted that Professor Neville clearly set out the actual allocation for semester 1, 2020, and that it was open for the Commissioner to prefer the evidence of the respondent to the evidence of the appellant on this point. 66

[90] The respondent submitted that the appellant was carefully cross-examined on this issue, and that if there was anything to be drawn from this cross-examination it was that the appellant was not familiar with the argument which was being put on her behalf. 67

[91] The respondent also contended that following the filing of Professor Neville's evidence in respect of the 4 June 2020 WAMS document, the appellant sought to emphasise and rely on an earlier version of the WAMS document dated 14 April 2020. This document was further out of date and an even less accurate reflection of the actual hours. 68

[92] Having reviewed the submissions of the parties and the evidence, we are of the view that it was open to the Commissioner to find that Mr Murphy’s hours were not allocated across all of 2020. In light of the evidence of Professor Neville, we do not see the existence of any persuasive reason to disturb the Commissioner’s finding, on this point.

[93] Accordingly, we do not accept that the Commissioner committed a significant error of fact. Ground 5 is dismissed.

Ground 7

[94] It was submitted by the appellant that the Commissioner erred, and committed a significant error of fact, at [357] when stating, “I do not accept Ms Murphy’s argument that she acted on the basis of continued employment into semester 2, 2020”. The appellant submitted that the Commissioner gave two reasons.

[95] First, the Commissioner drew attention to the fact that the Ms Murphy did not give four months’ notice of termination as required by the Agreement. 69 The appellant submitted that there was no evidence regarding the requirements of the Agreement and that the matter was never part of the respondent’s case or put to her.70 Therefore, it was said that Ms Murphy had been denied procedural fairness.71

[96] Second, the Commissioner stated that the 17 April 2021 email “… would have been repudiating her year-long agreement, or seeking the employer agree to changes. She did not seek for the employer to agree to changes to accommodate her personal circumstances”. 72 The appellant submitted that the unchallenged evidence was that she was attempting to seek changes to her employment and that she would have remained full time.73

[97] The respondent submitted that the appellant's submission misunderstands the finding of the Commission. As set out above (in respect of Grounds 2 and 3), the finding is that any attempt at negotiation could only logically be concerned with the terms of any subsequent and separate potential offer of employment, rather than couched on the understanding that the employment was ongoing. 74

[98] Further, the respondent characterised the Commissioner’s comments with respect to this point as simply reinforcing the Commissioner’s assessment of the appellant’s evidence, which was that she did not accept the appellant acted on the basis of continuing employment. 75

[99] We agree with the characterisation of the Commissioner’s decision as put by the respondent.

[100] Even accepting that the Commissioner’s reliance on Ms Murphy not providing four months’ notice of termination as required by the Agreement was never put to her was a procedural fairness failing, it does not automatically follow that the appellant has a right of relief. No prejudice to the appellant was demonstrated, nor was it submitted that the alleged failure was a determinative factor in the Commissioner’s decision. A denial of procedural fairness must work a practical injustice on the appellant. 76

[101] It follows that ground 7 should also be dismissed.

Conclusion on appeal grounds

[102] Having considered the appellant’s submissions, we are not satisfied that any of the appeal grounds can be upheld. No significant error of fact has been identified. It is appropriate to note at this juncture, that the decision of an administrative decision maker, should be read fairly, in context and as a whole, and not to be read “minutely and finely with an eye keenly attuned to the perception of error”. 77

Permission to appeal

[103] This appeal is one to which s.400(1) of the Act applies Accordingly, we must be satisfied that the grant of permission to appeal would be in the public interest, otherwise, we are required to refuse permission.

[104] In considering whether this appeal attracts the public interest, we are not satisfied, for the purposes of s.400(1) that:

•  There is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;

•  The appeal raises issues of importance and/or general application;

•  The decision at first instance manifests an injustice, or the result is counter intuitive; or

•  The legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

[105] The Commissioner reached her decision by considering and dealing with the evidence that was before her, and then made findings of fact based on the evidence. We have not identified any error in this process.

[106] While the appellant has submitted that this is the first case to apply the principles in Navitas in any detailed way, and is therefore a matter of general importance, for the reasons given by the Commissioner, which we accept, there is no requirement of this Full Bench to deal in any detail with the findings in Navitas.

[107] Based on the appellant’s email of 17 April 2020, she indicated her intention to no longer continue with full time employment with the respondent and stated that if the respondent still required her services, she would work at 0.5 or less. The appellant’s services were not required by the respondent on these terms, thus her employment ended at the expiration of her last contract.

Conclusion

[108] Because we are not satisfied that the grant of permission would be in the public interest, we must refuse permission in accordance with s 400(1). For the above reasons, permission to appeal is refused.

VICE PRESIDENT

Appearances:

Mr C Tran of Counsel for the appellant

Mr D Williams Solicitor for the respondent

Hearing details:

2021.

Telephone hearing.

7 June.

Printed by authority of the Commonwealth Government Printer

<PR730962>

 1   Ms Cheryl-Anne Murphy v University of Southern Queensland [2021] FWC 1800 at [368-369]

 2   Transcript at PN5

 3   Ibid at [3]

 4   Appeal book at [304]]

 5   Ibid at [4]

 6   Appeal book at [306]

 7   Appeal book at [393]

 8   Ibid at [7]

 9   Ibid at [62]

 10   Ibid at [84-88]

 11   Ms Cheryl-Anne Murphy v University of Southern Queensland [2021] FWC 1800 at [317]

 12   Ibid at

 13   Khayam v Navitas [2017] FWCFB 5162 at [75]

 14   Ms Cheryl-Anne Murphy v University of Southern Queensland [2021] FWC 1800 at [368]

 15   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd)

 16   (2011) 192 FCR 78; (2011) 207 IR 177 [43]

 17   O’Sullivan v Farrer and another (1989) 168 CLR 210 [216] – [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 [44]-[46]

 18   See: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266 (‘GlaxoSmithKline’); Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]

 19   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27]; (2010) 197 IR 266

 20   Wan v AIRC (2001) 116 FCR 481 at [30]

21 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

 22   Appellant’s submissions of 14 May 2021 at [3-8]

 23   Respondent’s submissions of 2 June 2021 at [2.5]

 24   Ibid at [2.5-2.6]

 25   Ibid at [3.1; 3.13; 3.14; 3.20]

 26   Ms Cheryl-Anne Murphy v University of Southern Queensland [2021] FWC 1800 at [364-367]

 27   Appellant’s Form F7 at 2.1; Appellant’s submissions of 14 May 2021 at [12]

 28   Ibid; Appellant’s submissions of 14 May 2021 at [9-11]

 29   Appellant’s submissions of 14 May 2021 at [9]

 30   Appellant’s submissions of 14 May 2021 at [12-13]

 31   Ibid at [10]

 32   Appellant’s Form F7 at 2.1; Appellant’s submissions of 14 May 2021 at [15]

 33   Ibid at [15]

 34   Appellant’s Form F7 at 2.1; Appellant’s submissions of 14 May 2021 at [16-18]

 35   Appellant’s submissions of 14 May 2021 at [17-18]

 36   Ms Cheryl-Anne Murphy v University of Southern Queensland [2021] FWC 1800 at [366]; University of Southern Queensland Enterprise Agreement 2018-2021 at cl 13.2

 37   Ibid at [368]

 38   Appellant’s Form F7 at 2.1; Appellant’s submissions of 14 May 2021 at [20-21]

 39   Ibid; Appellant’s submissions of 14 May 2021 at [26-27]

 40   Appellant’s submissions of 14 May 2021 at [25-27]

 41   Ibid at [22-25]

 42   Ms Cheryl-Anne Murphy v University of Southern Queensland [2021] FWC 1800 at [5]

 43   Appellant’s submissions of 14 May 2021 at [23]

 44   Appellant’s submissions of 14 May 2021 at [22]

 45   Ibid

 46   [2020] FCA 867

 47   Transcript at PN131-132

 48   Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867 at [70]

 49   Transcript at PN132

 50   Appellant’s Form F7 at 2.1; Appellant’s submissions of 14 May 2021 at [28-30]

 51   Appellant’s submissions of 14 May 2021 at [28]; Transcript at PN80

 52   Transcript at PN86

 53   Transcript at PN90

 54   Transcript at PN91-92

 55   Respondent’s submissions of 2 June 2021 at [4.19]

 56   Ibid at [4.20]

 57   Transcript at PN169

 58   Respondent’s submissions of 2 June 2021 at [4.21]

 59   Appeal Book at 134-135

 60   Appeal Book at 188-189

 61   Appellant’s Form F7 at 2.1; Appellant’s submissions of 14 May 2021 at [32]

 62   Appellant’s Form F7 at 2.1; Appellant’s submissions of 14 May 2021 at [34-35]

 63   Respondent’s submissions of 2 June 2021 at [4.24]

 64   Ibid at [4.25]

 65   Appellant’s Form F7 at 2.1; Appellant’s submissions of 14 May 2021 at [36]

 66   Respondent’s submissions of 2 June 2021 at [4.28]

 67   Ibid; Appeal Book at 141-145

 68   Ibid at [4.29]

 69   Appellant’s submissions of 14 May 2021 at [38], Decision at [357]

 70   Ibid

 71   Ibid

 72   Decision at [357]

 73   Appellant’s submissions of 14 May 2021 at [40]

 74   Respondent’s submissions of 2 June 2021 at [4.32]

 75   Ibid at [4.33]

 76   Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 14 [38] per Gleeson CJ

 77   Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2