[2019] FWC 3190
The attached document replaces the document previously issued with the above code on 9
May 2019:
To vary the decision in order to redact certain information.
Associate to Commissioner Johns OAM
Dated 21 June 2019
1
[2019] FWC 3190
DECISION
Fair Work Act 2009
s.394—Unfair dismissal
John Burke
v
University of Technology Sydney (UTS)
(U2018/10775)
COMMISSIONER JOHNS MELBOURNE, 9 MAY 2019
Application for Relief of Unfair Dismissal – minimum employment period – whether breaks in
employment broke continuity of service.
Introduction
[1] On 18 October 2018 John Burke (Applicant) made an application (signed on 17
October 2018) to the Fair Work Commission (Commission) pursuant to section 394 of the
Fair Work Act 2009 (Cth) (FW Act) for a remedy in respect of his dismissal by University of
Technology Sydney (UTS/Employer/Respondent). Mr Burke contended that he was
dismissed on 16 October 2018.
[2] The purported date of dismissal is important. This is because, as events transpired
during the hearing, it became apparent, that (although the Applicant treated himself as having
been constructively dismissed from his employment on 16 October 2018) he continued to be
paid by UTS up until 29 November 2018 in respect of work that he performed in the Spring
Term of 2018 in preparation for the Summer Term 2019.
[3] Curiously, for the first time, in the Applicant’s final closing submissions it was
suggested that there was an alternate date of dismissal being 27 September 2018. Whether the
dismissal date was 27 September 2018 or 16 October 2018 the UFD application was still
made within the 21 day timeframe provided for in the FW Act. However, the submission
made so late in the piece and for the first time is unfairly advanced against the Respondent. It
is also against the evidence. The Applicant treated himself as having been dismissed on 16
October 2018. I therefore treat that as the purported dismissal date.
[4] On 31 October 2018 UTS filed a response to the unfair dismissal application in which
it objected to the Commission exercising jurisdiction in relation to the matter on the basis that,
it submitted, the Applicant was not dismissed (Not Dismissed Objection).
[5] At least from 14 January 2019 UTS made no concession that the Applicant had served
the minimum employment period (MEP). It correctly submitted that the Commission needed
E AUSTRALIA FairWork Commission
[2019] FWC 3190
2
to satisfy itself about the same. In the present matter UTS is not a small business.
Consequently, the MEP is 6 months (s.383 of the FW Act).
[6] Conciliation was attempted, but the matter remained unresolved. Consequently the
matter was listed for hearing on 30 January 2019 and 25 February 2019.
[7] At the hearing the parties were represented by lawyers. I had previously given
permission to the parties to be represented (pursuant to s.596 of the FW Act) because I was
satisfied that the matter was invested with sufficient complexity and, as such, that I would be
assisted in the efficient conduct of the matter if I allowed the parties to be represented:
a) The Applicant was represented by Sebastian McIntosh of Counsel. Mr McIntosh
called the Applicant to give evidence on his own behalf and be cross-examined.
b) The Respondent was represented by Tim McDonald from Moray & Agnew. Mr
McDonald called Professor Carl Rhodes, Professor of Organisation Studies and
Deputy Dean of the UTS Business School to give evidence and be cross-
examined.
[8] In advance of the hearing the parties had filed submissions, witness statements and
documents. After the conclusion of the hearing the Applicant took the unorthodox step of
filing further closing submissions on 1 March 2019. In order to cure any unfairness I provided
the Respondent with a further opportunity to file a closing submission. It did so on 11 March
2019.
[9] Consequently, in coming to this decision the Commission, as presently constituted, has
had regard to the following materials in addition to the evidence received during the hearing:
a) Respondent’s Written Outline of Submissions (Exhibit #1),
b) Outline of Submissions in response on behalf of the Respondent (Exhibit #2),
c) Statement by Professor Carl Rhodes dated 11 December 2018 (Exhibit #3),
d) Supplementary Statement in Reply by Professor Carl Rhodes dated 18 January 2019
(Exhibit #4),
e) Statement in reply by Professor Carl Rhodes dated 14 January 2019 (Exhibit #5),
f) Applicant’s Written Outline of Submissions (Exhibit #6),
g) Witness Statement by John Burke (Exhibit #7),
h) Confidential Witness Statement by John Burke (Exhibit #8),
i) Email exchange between Mr Burke and Professor Alexander (Exhibit #9),
j) Email with Professor Taylor, March 2016 (Exhibit #10),
k) Applicant’s Statement of Facts (Exhibit #11),
l) Applicant’s Amended Statement of Facts (MFI-1),
m) Bundle of documents-emails from 9 July 2018 - 18 July 2018 (Exhibit #12),
n) Applicant’s Objection Schedule to Professor Rhodes’ Statement (Exhibit #13),
o) Background Information of the Respondent (Exhibit #14),
p) Email from Professor Tam to Professor Rhodes dated 27 September 2018 at 6.06 pm
(Exhibit #15),
q) Pages 55 – 69 of Schedule 2A documents (email chain dated 17 September 2018)
[2019] FWC 3190
3
(Exhibit #16),
r) Pages 75 - 79 of Schedule 2A documents (email chain dated 24 August 2018) (Exhibit
#17),
s) Pages 230 - 234 of Schedule 2A documents (email chain dated 27 August 2018)
(Exhibit #18),
t) Email from Associate Professor Carallat to Professor Rhodes dated 31 August 2018
(Exhibit #19),
u) Email from Professor Tam to Professor Rhodes dated 31 August 2018 (Exhibit #20),
v) Email exchange between Professor Rhodes and Professor Tam dated 16 October 2018
(Exhibit #21),
w) Production document schedule 2A page 227 (Exhibit #22),
x) Affidavit of Leona Tam (Exhibit #23),
y) Respondent’s Outline of Submissions (Exhibit #24),
z) Applicant’s (post hearing) Closing Submissions dated 1 March 2019, and
aa) Respondent’s Outline of Submissions in Response to the Applicant’s Written Closing
Submissions dated 11 March 2019.
[10] Further, both the Applicant and the Respondent referred me to various decisions. I
have also had regard the same in coming to this decision.
Background
[11] Although the respective representatives of the parties agreed that the matter was
invested with complexity and, as such, they would assist me in the efficient conduct of the
matter they were unable to agree upon a statement of facts or chronology. The Respondent
filed its version of a statement of facts on 25 January 2019. The Applicant handed up its
amended version at the hearing on 25 February 2019.
[12] Having regard to both documents it seems to me that the following matters were either
agreed between the parties or not otherwise substantially contested. Consequently, I make the
following findings of fact:
1. From 2002 onwards the Applicant has run his own business. This business is called
……………. and provides pricing education and consulting services.1 The Applicant
brought industry experience to his lecturing.2
2. The Applicant was initially engaged by the Respondent’s Business School on 9
August 2010. He was engaged under documents titled Casual Academic Contract to
perform lecturing in various marketing subjects, including Integrated Marketing
Communications, Marketing Foundations, International Marketing and Applied
Project in Marketing.
3. The Applicant has performed coordination duties for the postgraduate pricing subject
each Autumn semester since the Autumn 2012 semester, and coordination duties for
1 Witness Statement of John Burke dated 3 January 2019 (Burke Statement) [10(f)].
2 PN753.
[2019] FWC 3190
4
the undergraduate pricing subject each Autumn semester since the Autumn 2013
semester.3
4. On 14 February 2012, the Applicant signed a document4 that stated:
Period of employment
Date from Date to*
1/01/2012 31/06/2012
*Not to exceed twelve months
5. On 11 October 2012, Associate Professor Sandra Burke (the Respondent’s then head
of Marketing Discipline Group) sent an email5 to the Applicant with the subject line
“2013 Teaching”. In that email, Professor Burke wrote:
Based on overall preferences from all academic staff, the teaching pattern I would
like to suggest for you in 2013 is as follows:
Autumn: Pricing Strategies and Tactics – Coordination and teaching … AND
Pricing and Revenue Management – Coordination and teaching …
6. On 4 February 2013, Michael Lee, Administration (Marketing Department), wrote an
email to the Applicant, and others, with the subject line “Coordinators: Could I please
have your tutor information”. In that email, Mr Lee wrote:
Dear Marketing Subject Coordinators
… if you are coordinating a subject and Sandra has agreed on a plan to employ
casual academics, then I would be grateful if you would provide the following
information …
Thank you to … John Burke (24224) who ha[s] already supplied much of the data
for [the] subject6
7. On 10 April 2013, the Applicant signed a document titled Casual Academic
Employment Contract in respect of the subjects Pricing Strategies and Tactics, and
Pricing Revenue and Management. The document states various “Start Date of
Appointment”, the earliest of which is 16 February 2013, and “End Date of
Appointment” dates, the last of which is 5 July 2013.7
8. On 24 June 2013, Mr Lee wrote an email to the Applicant in which he stated:
To me the real issue is: if UTS is expecting a person to be working with access to
the UTS systems, then we should be paying them. If this is only a small amount of
work (but needs continued access), then I suggest we should engage the person
with a casual contract – even if it’s only one hour per week for coordination. So
maybe if you have a fixed term contract until say, early December, then this could
be followed up with a low-hours casual contract till perhaps early January. After
3 Burke Statement [3].
4 Page 2 of the Annexure to Burke Statement.
5 Page 9 of Annexure to Burke Statement.
6 Page 29 of Annexure to Burke Statement.
7 Page 19 of Annexure to Burke Statement.
[2019] FWC 3190
5
this you would enjoy the 6-month grace person of continued access that is
provided to casual academics, which would carry you through to a possible
subsequent fixed term (or casual) contract in Autumn Semester 2014.8
9. On 4 October 2013, Professor Burke wrote an email to the Applicant with the subject
line 2014 Teaching Confirmation. In that email, Professor Burke wrote:
This is to confirm that in 2014 we will plan to have you teach as follows …9
10. On 21 November 2013, the Applicant signed a document10 that stated:
Period of employment
Date from Date to*
1/12/2014 31/12/2014
*Not to exceed twelve months
11. The Applicant’s engagement was to extend to at least 31 December 2014.
12. On 4 December 2013, Swati Flora, the Respondent’s Acting Superannuation Officer,
wrote the following to the Applicant:
Accepting a new fixed-term appointment takes your total employment
period with UTS to greater than twelve months.
13. On 8 July 2014, the Applicant wrote an email to Professor Burke in which he stated:
As per our discussion, I wish to confirm that I will be resigning from the UTS
effective today.11
14. On 10 September 2014, Mitchell Osmond, Senior Academic Programs Officer, wrote
an email to the Applicant in which he stated:
Attached is an outstanding grade from AUT14 for 24224.
If you know that the grade has been resolved, could you please let me know?
Otherwise it’ll convert to a Z.12
15. On 27 October 2014, John Elliott, Marketing and Communications Manager, wrote an
email to the Applicant in which he stated:
Do you have any time availability to participate in a small working group to work
on a more sophisticated pricing response for the Business School?13
16. On 30 October 2014 at 2pm, the Applicant attended a meeting with John Elliot, the
UTS Business School Marketing and Communications Manager, and Craig Lord,
8 Page 48 of Annexure to Burke Statement.
9 Page 52 of Annexure to Burke Statement.
10 Page 54 of Annexure to Burke Statement.
11 Page 60 of Annexure to Burke Statement.
12 Page 68 of Annexure to Burke Statement.
13 Page 63 of Annexure to Burke Statement.
[2019] FWC 3190
6
General Manager. The purpose was for us to discuss the Respondent’s 2016
university student fee structure.14
17. From October 2014, the University of Technology, Sydney Academic Staff
Agreement 2014 (Agreement) has applied to the Applicant and the Respondent.15
18. Clause 17.3 of the Agreement provides that:
The rates of pay for casual staff will be as contained in Schedule 2. These rates of
pay incorporate a casual loading in lieu of those Agreement benefits for which
casual staff are ineligible including those leave entitlements to which casual staff
are not entitled. The casual loading is 25% (with effect from 1 November 2012).16
19. The Agreement covers lecturing, tutoring and other academic activity. In relation to
casual lecturing, the Agreement provides:
‘Currently, a “lecture” means educational delivery described as a lecture in a
course or subject outline that is a primary form of education delivery where
information on the subject topic is delivered to the students for the first
time’.17
20. The Agreement also provides for ‘other academic activity’ as follows:
‘As for “other academic activities” where subject coordination duties are
required. Subject coordination duties may include the development of
teaching and subject materials such as the preparation of subject guides,
reading lists. The hours allocated will be agreed based on the number of
students involved and the complexity of the task’18
21. Clause 37.9 of the Agreement provides:
The normal pattern of academic workload is 40% teaching, 40% research
and 20% other activities.
22. The rate for lecturing depends on the type of lecture. The post graduate pricing subject
is classified as “Developed” whereas the undergraduate pricing subject is classified as
“Basic”. The nominal hourly rate for lecturing is higher than for coordination,
although it is effectively the same when regard is had to Schedule 4(i) which sets out
assumed non-contract hours associated with each hour of delivery.
23. On 6 November 2014, Dr David Waller, Marketing Discipline Group, wrote an email
to the Applicant stating:
Dear John
This is to confirm that in 2015 we will plan to have you co-ordinate as follows:
Autumn:
24224 Pricing Strategies & Tactics
14 Confidential Burke Statement.
15 Burke Statement [35].
16 Annexure to Burke Statement, JB10.
17 Statement of Professor Carl Rhodes signed 11 December 2018 (Rhodes Statement), [6].
18 Schedule 4 Activity Descriptors – Casual Academic Staff, item 3.
[2019] FWC 3190
7
24760 Pricing and Revenue Management19
24. On 19 December 2014, Mr Lee wrote an email to the Applicant in which he stated:
David Waller has advised me that you will be returning to UTS in Autumn
Semester 2015 to coordinate and teach in 24760 and 24224. David has indicated
that you will be doing this as a casual employee.
To re-establish your email account, and access to UTS systems in general, will
involve two steps.
1. Re-activate you from ‘ex-employee’ status on the HRU database
2. Establish at least one casual contract
In relation to step 2, I propose to establish a contractor for coordination of 24760
which will run from 3 January to 24 July (a 28 week period), although it will pay
only 18 weeks (at 3 hours per week) … Importantly, this will provide access to
UTS computer systems (including email) from 3 January …
Further contracts for coordination of 24224, as well as teaching and marking in
both subjects, will be prepared about 2 weeks before semester begins.20
25. On 22 December 2014, the Applicant replied to Mr Lee’s 19 December 2014 email
stating:
The idea of stretching the payment to 28 weeks is good, but can it be extended to
52 week’s, which would keep year round access…
Also, thought I’d mention that there is plenty of work on the side with these
subjects, especially for the projects and exams. I always make the subjects fresh
with new material …21
26. On 22 December 2014, Mr Lee replied to the Applicant’s 22 December 2014 email, in
which Mr Lee wrote:
No problems. The good aspect of being a casual is that the email account and
access to UTS computer systems remains available for 6 months after the casual
contract ends. So people who only have contracts every Autumn Semester can
retain perpetual access …
Unfortunately, conscientious lecturers and coordinators who do more than the
minimum amount of preparation will tend to be disadvantaged financially, as we
pay standard amounts for coordination and teaching regardless of the actual time
spent performing those duties.
27. On Monday 5 January 2015, Mr Lee wrote an email to the Applicant in which Mr Lee
stated:
Attached is the coordination contract for 24760. Because this contract is being
created early, the actual enrolments might change.22
28. The document attached to Mr Lee’s email was a one-page document titled casual
academic employment contract, and which was signed by the Applicant on 5 January
19 Page 138 of Annexure to Burke Statement.
20 Page 135 – 136 of Annexure to Burke Statement.
21 Page 135 of Annexure to Burke Statement.
22 Page 139 of Annexure to Burke Statement.
[2019] FWC 3190
8
2015. The document states “Start of Appointment” of 3 January 2015, and “End of
Appointment” of 26 June 2015.23
29. Mr Burke was not engaged in research.24
30. Under cross examination the Applicant said the following:
“And each and every time that you were engaged as a casual employee on a
contract, you were given a new contract? Yes.
And you were - it was for you to decide whether to accept it or not? Yes.”25
31. During his evidence, the Applicant said the following:
And so that period from 15 January 2015 to 16 July 2015 is you teaching and
coordinating in the pricing subject in the autumn semester of 2015. Is that
correct?---It ends on 16 July.
Yes. That's what I'm saying. That period from January to July, is that you
teaching and coordinating in the Autumn of 2015?---Yes, Commissioner.
Right. And then you will see the next payment is 24 March 2016. Do you see
that?---Yes.
And so you had 36 weeks break in your employment. Is that right?---From July to
- in paid employment. Yes, Commissioner.
Right. And then look over to page 4 and the sixth last row says 28 July 2016. Do
you see that?---Yes, Commissioner.
So going back to page 3, where it starts on 24 March 2016, over to page 4, 28 July
2016, is that you teaching and coordinating in the pricing subject in the autumn
semester of 2016?---Yes, Commissioner.
And you will see after that, the next entry is 23 March 2017. Is that
right?---That's correct.
So there was a break there are some 34 weeks when you weren't getting paid by
the University. Is that right?---That's correct, Commissioner.
And come across to page 6, a little over halfway down you will see an entry 13
July 2017. Do you see that?---Yes, Commissioner.
For $69.70. So from page 4 where it starts, 23 March 2017, over to page 6 where
it says 13 July 2017, that's you teaching and coordinating the pricing subject in the
Autumn semester of 2017. Is that right?---Yes, Commissioner.
And then the next payment is 22 February. So you had a break of 32 weeks
without being paid by the University. Is that right?---Yes, Commissioner.
Right. So 22 February 2018, then come across to page 9, and you will see an
entry 12 July 2018?---That's right.
So that period of 22 February 2018 through to 12 July 2018, is that you teaching
and coordinating the pricing subject in the autumn of 2018? The autumn
semester?---Yes. I've got a feeling one of the 12th ones is as well. One of the
23 Pages 141 and 144 of Annexure to Burke Statement.
24 PN763.
25 PN670 and 671.
[2019] FWC 3190
9
12 July ones is also. It's possible, because I remember the contract went to July. I
might be wrong on that. I can check.
All right. But then the next entry - so for weeks later there is a payment on
8 August and that goes through to 29 November. Now that's the coordination of
the spring semester. Isn't that right?---That's right. With the exception of the
$55.74.
What's that miscellaneous for?---That was miscellaneous for completing some
training session online. It was separate. It was a University-wide training session
online. It was separate. It was a University-wide training that all staff that all
staff had to do.26
32. The documents titled Casual Academic Employment Contract that were signed by the
Applicant stated:
I have read and accept the Conditions of Appointment below and I accept
Contract of Employment as specified in this form.
33. The document titled “Conditions of Employment” was not always provided to the
Applicant.
34. The version of the document titled “Conditions of Employment” that was most
recently provided to the Applicant is dated 6 August 2015.27
35. The Applicant said during cross examination:
And sometimes it was said to you that you could look on the University's Intranet
and there was a link that you could go to without getting the full contract? Yes.
And other times there were no mention at all.28
36. Point 9 of that Conditions of Employment provided that:
The Employee shall be given two weeks notice or the balance of the period of the
Contract of Employment (whichever is lesser), or payment in lieu of notice should
the University with to terminate his/her employment prior to the conclusion of the
Contract of Employment. Such notice will not be provided where the Employee is
found to be guilty of misconduct, unsatisfactory performance or other action
which would, in the case of a continuing staff member, warrant dismissal.
37. Point 10 of that Conditions of Employment provided that:
A 25% loading is included in the gross salary rate specified in Part B of this
Contract of Employment. This loading is paid in lieu of all leave
entitlements. The employee is not entitled to any termination payment on
completion of this casual contract of employment.
38. Point 12 of that Conditions of Employment stated:
This is a casual contract of employment and does not entitle the Employee
to subsequent employment with UTS.
39. Point 24 of that Conditions of Employment stated:
26 PN709 – 723.
27 Annexure to Burke Statement Page 253.
28 PN662.
[2019] FWC 3190
10
This Contract and the UTS enterprise agreement are relevant to the
Employee’s position (refer to clause 13) constitutes the entire agreement
between the parties as to the Employee’s employment and supersedes all
previous communications, understandings, representations and agreements
and any prior condition, warranty or indemnity or representation imposed,
given or made by a party. In executing this Contract, the Employee
acknowledges that he/she is not relying on any representations by, or on
behalf of, UTS unless expressly incorporated in to this Contract.29
40. On 15 January 2015, the Applicant was allocated a desk at the new Building 8.30
41. On 3 August 2015, Professor Morrison sent an email to the Applicant in which she
stated:
I would like you to be a member of the DG External Engagement Committee.
You wouldn’t be expected to take on a large role, but I feel your advice and
industry contacts would be invaluable …
I’ve also been meaning to arrange a time to have coffee with you and learn a little
about yourself and your ideas relating to the B-School.31
42. On 4 August 2015, the Applicant responded to Professor Morrison’s email, stating:
Would be good to be involved with the DG External Engagement Committee.32
43. Professor Rhodes says the following in his witness statement:
There is a degree of flexibility with UTS’s academic staff and this is
necessary for it to be able to operate effectively. No academic, whether they
be permanent or casual, senior or junior, has the right under their contract of
employment to dictate the subjects that they will teach and/or coordinate, or
when those subjects will be scheduled.33
44. The Applicant’s rates of pay were derived from Schedule 2 of the Agreement and, at
the time he last worked, they were $263.98 per hour for lecturing and a rate of $65.35
per hour for other academic activities, including marking and subject coordination.34
45. On 15 September 2015, the Respondent published an article including the following
words:
Students in the subject Pricing and Revenue management set about the challenge
under the supervision of pricing strategist and subject coordinator John Burke.35
46. On 3 November 2015, Professor Morrison wrote an email to the Applicant stating:
This is to confirm our earlier discussion that we would like you to coordinate and
teach the ug and pg pricing subjects in Autumn 2016.36
47. On 4 November 2015, the Applicant responded to Professor Morrison’s email stating:
29 Annexure to Burke Statement Page 253 – 255.
30 Burke Statement [38].
31 Page 172 of Annexure to Burke Statement.
32 Page 172 of Annexure to Burke Statement.
33 Rhodes Statement, paragraph 10.
34 Schedule to Enterprise Agreement.
35 Page 518 of Annexure to Burke Statement.
36 Page 181 of Annexure to Burke Statement.
[2019] FWC 3190
11
Looking forward to continuing with UG & PG Pricing.
48. In November 2015, the Applicant attended a Marketing DG meeting.37
49. On 14 March 2016, the Applicant signed a document titled Casual Academic
Employment Contract in respect of the subjects Pricing Strategies and Tactics, and
Pricing Revenue and Management. The document states various “Start Date of
Appointment”, the earliest of which is 19 March 2016, and “End Date of
Appointment” dates, the last of which is 10 June 2016.38
50. On 15 March 2016, the Applicant notified Professor Pam Morrison (‘Professor
Morrison’) (the then Professor and Head of Marketing Discipline Group), that
Autumn 2016 marked his fifth year coordinating the postgraduate pricing subject and
his fourth year coordinating the undergraduate pricing subject. The Applicant stated:
I am assuming it will continue as per normal, but would like some confirmation to
assist with my future plans.39
51. Further, on 15 March 2016, the Applicant emailed Professor Morrison “asking for
your [her] commitment for coordinating 24224 and 24760 in Autumn 2017 and
beyond”.40
52. When Professor Morrison had not responded, he emailed Professor Taylor on
22 March 2016 stating “my coordinating position may come to an end as they plan to
appoint someone else; either with a PHD or for some other reason, to run the two
subjects from next year” and that he did not want to “feel” that “I will be out of a job
in 2017”.41
53. On 23 March 2016, Professor Morrison emailed the Applicant stating that:
Current planning would have you teaching pricing (ug and pg) in Autumn 2017,
and this is the most likely outcome. As I’ve said to you previously I can’t
guarantee what the DG needs will be in 2017, but with current information I have
I will be asking you to teach again in 2017. You do a wonderful job and this is
evidenced by the student feedback.”42
54. On 24 March 2016, the Applicant emailed Professor Morrison stating:
Although I appreciate your comments, your reply does not confirm coordination.
The way I read your email is that the DG is unsure whether it will be offering
pricing next year to students? I am sure that this is not the case and that you have
at least a five year plan in place, and if I have done and continue to do an above
average job over the years, then my name should be in pen.
When we spoke, there were no rumours about and I trusted you and just assumed
all would be fine for next year. However, I started hearing rumours and therefore
sent an email to you for reassurance.43
37 Burke Statement Annexure page 179.
38 Page 202 of Annexure to Burke Statement.
39 Burke Statement Annexure page 187.
40 Statement of John Burke at page 187.
41 Ex 10.
42 Burke Statement Annexure JB19 page 186.
43 Burke Statement Annexure JB19 page 185.
[2019] FWC 3190
12
55. Professor Morrison responded on the same day stating:
When we spoke in 2015 I did say I was unable to guarantee you teaching Pricing
forever, because as the recruitment of new academics continue, at some stage in
the future ‘pricing’ may get taught by one of the new academics. However I don’t
see this happening before 2018 at the earliest”44
56. On 24 March 2016, the Applicant wrote to Professor Pam Morrison stating amongst
other things:
If the commitment for 2017 Coordination and teaching as per current schedule for
2017 is evident, then this is fine for now and hopefully the process for looking
after good coordinators and teaching staff will be improved upon.
BTW, I should be entitled to be very protective of pricing because of the many
many hours required to improve and continue to improve the two subjects. To
have it taken from me for no fair reason is a demotion and an insult and definitely
the students and I don’t really care about your academic replacement policy.
Surely there were certain subjects identified that should have been left as is,
pending performance.
I do not understand why you treat me any different to another coordinator. If it is
because you pay me as a casual, then you could work out how to put me back on a
% permanent basis and then strangely enough, you will treat me differently.45
57. On 7 April 2016, the Applicant wrote an email to Professor Morrison in which he
stated:
thank you for confirming coordination and teaching of pricing for 24224 & 24760
for Autumn 2017.46
58. On 22 April 2016, the Applicant signed a one-page document titled casual academic
employment contract providing a start date of appointment of 19 March 2016 and an
end date of appointment of 8 July 2016.47
59. In June 2016, the Applicant applied for the continuing full-time position of Scholarly
Teaching Fellow but his application was unsuccessful.48
60. On 15 August 2016, the Respondent’s Business School published an article that
included the following words:
Pricing strategist and subject coordinator John Burke says49
61. On 14 November 2016, Professor Morrison emailed the Applicant stating:
This is to confirm our earlier conversation that we would like you to teach the ug
and pg Pricing subjects in AUT 2017.50
62. On 16 November 2016 at 5:30pm, the Applicant attended a function at UTS
Shopfront.51
44 Burke Statement Annexure JB19 pages 185-186.
45 Burke Statement, Annexure JB19 page 184
46 Burke Statement, Annexure page 182
47 Burke Statement page 207
48 Statement in Reply of Professor Carl Rhodes signed 14 January 2019 (Reply Rhodes Statement) [6]
49 Burke Statement, Annexure page 517
50 Burke Statement, Annexure page 210
[2019] FWC 3190
13
63. On 2 March 2017, Professor Morrison wrote a letter to Harvard Business School
Publishing in which she stated:
This is to confirm that John Burke has been the coordinator, lecturer, and
workshop facilitator for postgraduate 24760 Pricing and Revenue Management
since Autumn semester 2012, and also the coordinator and lecturer for
undergraduate 24224 Pricing Strategies and Tactics since Autumn semester
2013.52
64. On 6 March 2017, the Applicant signed a document titled Casual Academic
Employment Contract in respect of the subjects Pricing Strategies and Tactics, and
Pricing Revenue and Management. The document states various “Start Date of
Appointment”, the earliest of which is 13 March 2017, and “End Date of
Appointment” dates, the last of which is 9 June 2017.53
65. On 27 April 2017, the Applicant signed a document titled Casual Academic
Employment Contract in respect of the subjects Pricing Strategies and Tactics, and
Pricing Revenue and Management. The document states a “Start Date of
Appointment” of 27 February 2017, and an “End Date of Appointment” of 1 July
2017.54
66. On 19 September 2017, the Respondent posted on social media:
Our John Burke has been speaking on radio about #strategies for #pricing55
67. On 26 October 2017, the Applicant attended an External Engagement Committee
(EEC) meeting.56
68. On 16 November 2017, the Applicant attended a Marketing Discipline Group
meeting.57
69. On 17 November 2017, Professor Morrison emailed the Applicant stating:
Yesterday I confirmed your AUT ug and pg Pricing subjects, but I forgot to ask if
you’d also be able to teach the pg Pricing subject in Summer 2018 (this spans
2018/19).
I hope you’re interested and available to teach this additional subject.”58
70. On 17 and 20 November 2017, the Applicant emailed Professor Morrison with
proposals in relation to the summer pricing subject.59
71. On 20 November 2017, Professor Morrison wrote to the Applicant stating:
Thanks John. Really good to hear you're able to teach the PG Pricing subject in
Summer 2018 (ie 2018/2019).60
51 Burke Statement, Annexure page 210
52 Burke Statement, Annexure page 216.
53 Page 219 of Annexure to Burke Statement.
54 Page 227 of Annexure to Burke Statement.
55 Page 503 of Annexure to Burke Statement.
56 Page 68 of Annexure to Burke Statement.
57 Page 498 of Annexure to Burke Statement.
58 Burke Statement, Annexure JB30 page 234.
59 Burke Statement Annexure pages 233 – 234.
[2019] FWC 3190
14
72. On 28 November 2017, Paul Burke, Associate Professor, emailed the Applicant a
tentative schedule for the Summer 2018/19 semester.61
73. On 21 December 2017, the Respondent posted on social media:
Our pricing specialist, @JBurkePricing, worked with @UTS_Business postgrad
students to develop a #sustainable #strategy for the Accessing Sydney
Collectively Campaign…62
74. On 21 December 2017, the Respondent posted on social media:
Four UTS students under the academic supervision of Marketing’s pricing
specialist, John Burke …63
75. On 5 January 2018 at 10.17 am the Applicant was included in a list of “Subject
Coordinators and Assessors for 2018”.64 The was in table format,65 stating as follows:
Undergraduate AUTUMN 2018
Subject ID Subject Coordinator Assessor
24224 Pricing Strategies and Tactics John Burke Ping Xiao
Postgraduate AUTUMN 2018
Subject ID Subject Coordinator Assessor
24760 Pricing & Revenue Management John Burke Ping Xiao
Postgraduate SUMMER 2018
Subject ID Subject Coordinator Assessor
24760 Pricing & Revenue Management John Burke Ping Xiao
76. On 16 January 2018, Mr Lee sent an email to the Applicant in which he wrote:
Dear John,
I understand that you are the Subject Coordinator responsible for allocating staff
to the classes shown in the table below.
For Business School teaching data collection, casual academic contracts, and the
Student Feedback Surveys, I need to know who is teaching each of our classes.
Further, I need to ensure that we comply with a number of constraints on casual
staffing, namely:
- an upper limit of 15 hours face-to-face teaching per week for any one
individual
60 Burke Statement Annexure page 233.
61 Burke Statement Annexure page 237.
62 Page 502 of Annexure to Burke Statement.
63 Page 503 of Annexure to Burke Statement.
64 Burke Statement Annexure page 239.
65 Burke Statement Annexure page 241.
[2019] FWC 3190
15
- a DG requirement (new in 2018) that each of our PhD student’s total teaching
and research assistant workload is approved by their supervisor
- all class staffing should comply with AACSB standards
Therefore, would you please supply the following information:
1. the name of each class teacher in the yellow cells
2. check the number of teaching weeks shown is correct for each class and
advise me if there is an error
3. let me know if any of these classes are unlikely to run or additional classes
are planned but not shown
and return the information to me before noon on Friday 23 February?66
77. On 24 January 2018 at 12:31pm, the Applicant replied stating:
Hi Michael
Below is the completed table for pricing.
For 24224, Peter will teach 3 tutes (2pm, 3pm, 4pm) & Belinda 2 tutes (3pm &
4pm). Will allocate actual tute class when classroom confirmation received.
For 24760, Lectures & Workshops will end on 8/6/18, instead of the 15/6/18.
Regards
John67
78. On 9 February 2018 at 2.35 am, the Applicant received an automatic notice that his
email account would be deleted, which he forwarded to Mr Lee.68
79. On 9 February 2018 at 10.10 am, Michael Lee, Administration (Marketing
Department) wrote to the Applicant stating:
I will prepare your Coordination Contract for 24760 to get you back as an
“employee” which should allow you to access your emails etc.69
80. On 12 February 2018 at 1.40 pm, Mr Lee wrote to the Applicant stating:
Attached is a coordination contract for “24760 Pricing and Revenue
Management” for your review.70
81. On 12 February 2018, the Applicant signed a one-page document titled Casual
Academic Employment Contract in respect of the subject Pricing Revenue and
Management. The document states a “Start Date of Appointment” of 19 February
2018, and an “End Date of Appointment” of 8 July 2018.71
82. Before 14 February 2018, the Applicant drafted a document titled “Subject Outline
24760 Pricing and Revenue Management”.72
66 Production Documents Schedule 2(d) page 1.
67 Production Documents Schedule 2(d) page 3.
68 Burke Statement Annexure Page 242.
69 Burke Statement Annexure Page 242.
70 Burke Statement Annexure Page 244.
71 Page 246 of Annexure to Burke Statement.
72 Burke Statement Annexure pages 481 – 482.
[2019] FWC 3190
16
83. Between 2 July 2017 and 18 February 2018, the Applicant sent approximately 219
emails from his UTS email account.73
84. On 29 March 2018, in addition to his employment in relation to the Pricing and
Revenue Management subject, the Applicant was offered work on pricing projects as
a community course coordinator in a non-academic capacity with the UTS
Shopfront.74
85. On 29 March 2018, Lisa Anderson, Manager, UTS Shopfront Community Program,
sent an email into which the Applicant was copied, in which Ms Anderson stated:
John has come on board under a casual contract with Shopfront for the extra hours
he is working on the pricing projects.75
86. The Applicant signed a Casual Employment Contract which said:
“This is a casual Contract of Employment and does not entitle the Appointee to
subsequent employment with UTS.”76
87. On 5 April 2018, Mr Lee sent an email to “Subject Coordinators”, which group
included the Applicant.77
88. On 12 April 2018 at 10.54 am, Mr Lee wrote to the Applicant stating:
Attached is your Autumn Session marking contract and coordination contract…78
89. On 13 April 2018, Mr Lee sent an email to “Coordinators”, which group included the
Applicant.79
90. On or around April 2018, casual academics from the pool of applicants in the
Marketing Department, including the Applicant, were asked what subjects they would
be interested in teaching in 2019.80
91. On 13 April 2018, the Applicant signed a one-page document titled Casual Academic
Employment Contract in respect of the subject Pricing Strategies and Tactics. The
document states a “Start Date of Appointment” of 19 February 2018, and an “End
Date of Appointment” of 8 July 2018.81
92. On 20 April 2018, Professor Leona Tam, Professor and Acting Head of Marketing at
UTS, met with the Applicant. There is disagreement as to what transpired at that
meeting.
93. On 28 June 2018, the Applicant attended an External Engagement Committee
meeting.82
73 Burke Statement [148] and Annexure pages 490 – 497.
74 Burke Statement Annexure page 265.
75 Burke Statement Annexure page 266.
76 Statement of John Burke signed 3 January 2019, paragraph [63].
77 Production Documents Schedule 2(d) pages 69.
78 Burke Statement Annexure page 272.
79 Production Documents Schedule 2(d) pages 76.
80 Rhodes Statement, paragraph 11.
81 Page 275 of Annexure to Burke Statement.
82 Production Documents Schedule 2(d) page 110.
[2019] FWC 3190
17
94. On 29 June 2018, Mr Lee wrote an email into which the Applicant was copied in
which he stated:
Attached are the draft Minutes of yesterday’s Marketing External Engagement
Committee meeting for your review…
- John to talk to his contacts about a possible LinkedIn workshop83
94A. On 9 July 2018 at 1.47 pm the Applicant received an email from “Student
Administration EMS” bearing the subject title “Special Considerations awaiting
assessment”. The email stated:
Dear John Burke,
The special consideration applications listed in this email have been referred to
you for assessment.
…
Please follow your Faculty process for assessment of applications, including
referral to your designated RAO…
To assess the applications referred to you:
- Log …
- Click on ‘EMS Web’ …84
94B. On 10 July 2018 at 12.33 pm, the Applicant was copied into an email from Courtney
O’Regan, which stated:
Please find attached the updated list of Spring and Summer 2018 subject
coordinators and assessors …
94C. Attached to the 10 July 2018 email was a table that listed the Applicant as the
Coordinator of the Summer 2018 Pricing & Revenue Management subject.85
94D. On 11 July 2018, the Applicant received an email from pqu@uts.edu.au with the
subject titled “[SFS] Teaching staff – Results of your Autumn 2018 Student Feedback
Survey (SFS) are now available”, and by which access was provided to the results of
the SFS.86
95. On 12 July 2018 the Applicant received 8 payments from the Respondent.87
95A. On 13 July 2018, the Applicant received an email from pqu@uts.edu.au with the
subject titled “[SFS] Subject coordinators – Results of your Autumn 2018 Student
Feedback Survey (SFS) are now available”, and by which access was provided to the
results of the SFS.88
95B. On 13 July 2018 at 10.52 am, the Applicant was copied into an email regarding the
collection of exam papers.89
83 Burke Statement Annexure page 279.
84 Applicant’s Further Tender Bundle, page 1.
85 Applicant’s Further Tender Bundle, pages 3 – 11.
86 Applicant’s Further Tender Bundle, page 12.
87 Statement of Professor Rhodes dated 14 January 2019, CR3 Page 9.
88 Applicant’s Further Tender Bundle, page 16.
89 Applicant’s Further Tender Bundle, page 15.
mailto:pqu@uts.edu.au
mailto:pqu@uts.edu.au
[2019] FWC 3190
18
95C. On 13 July 2018 at 11.39 am, the Applicant wrote to Courtney O’Regan:
I think this must be the last exam for 24224. Do you mind picking up and
scanning.90
95C. On 13 July 2018 at 11.50 am, Ms O’Regan responded to the Applicant by attaching
the exam.
95E. On 13 July 2018 at 2.07 pm, the Applicant replied to Ms O’Regan with an attachment,
and an email stating:
AVR Attached for … 24224.
95F. On 13 July 2018 at 2.10 pm, Ms O’Regan responded to the Applicant:
Thanks John, I’ve printed this and put it into Leona’s tray for approval.91
95G. On 16 July 2018 at 9.47 am, the Applicant emails Peter Rodgers and Belinda Barton
stating:
I received a report on your SFS’s. Well done to both of you. Fantastic effort and
pleased you have been recognised by the students for your hard work. Very
difficult now to decide who is the World’s Best Pricing Tutor.
95H. On 17 July 2018 at 8.57 am, Ms Barton thanked the Applicant.92
95I. Between 17 July 2018 and 19 July 2018 the Applicant engaged in an email exchange
with a student about their grade.93
95J. On 17 and18 July 2018, the Applicant engaged in an exchange about the pricing
subject in 2019.94
96. On 18 July 2018 at 2.35 am, the Applicant received an autogenerated email advising
that his email account was scheduled for deletion in 30 days’ time.95
97. On 18 July 2018 at 8.47 am, the Applicant asked Mr Lee asking for his assistance.96
98. On 18 July 2018 at 9.41 am, Mr Lee wrote to UTS Payroll stating:
I would like to do a casual academic contract for John Burke (staff ID 110147)
beginning 23 July, but he is “ex-employee”. Would you please reactivate him?97
99. On 18 July 2018 at 9.56 am, Mr Lee wrote to the Applicant stating:
I will do this by creating a very long duration contract for your coordination role
in Summer Session 24760 (same amount of money, but will be trickled through to
your bank account over a 6 month period, from July 2018 to Jan 2019). The only
risk with this approach is that if the subject doesn’t run for some reason (currently
90 Applicant’s Further Tender Bundle, page 14.
91 Applicant’s Further Tender Bundle, page 14.
92 Applicant’s Further Tender Bundle, page 18.
93 Applicant’s Further Tender Bundle, pages 19 and 20.
94 Applicant’s Further Tender Bundle, pages 21.
95 Burke Statement Annexure page 287.
96 Burke Statement Annexure page 286.
97 Production Documents Schedule 2(a) page 227.
[2019] FWC 3190
19
16 students are enrolled), you would have to pay back the coordination
payment).98
100. On 18 July 2018 at 10.28 am, Mr Lee wrote to Professor Tam stating:
John Burke has become an “Ex-employee” due to the completion of his casual
academic contract. This means that he loses access to UTS computer systems,
including his UTS email account. He asked if we can reverse this. There may be
something we can do … but I think we would only want to proceed down this
track if we are (nearly) 100% sure that we will employ John again in the future.99
101. On 18 July 2018 at 10.31 am, Mr Lee wrote to UTS Payroll stating:
Further to my earlier request, could you please hold off restoring John Burke to
the Payroll for the time being? I’ll let you know if we do decide that we want him
reactivated100
102. On 18 July 2018 at 10.39 am, Mr Lee wrote to UTS Payroll stating:
Yes, I have a definite answer – we *do* want to reactivate John Burke so I can do
a casual academic contract starting 23 July.101
103. On 18 July 2018 at 10.56 am, UTS Payroll wrote to Mr Lee stating:
John’s primary assignment is UTS Shopfront and been ended (terminated) could I
please have the casual academic employment request form and a new tax form.102
104. On 18 July 2018 at 11.17 am, Mr Lee wrote to the Applicant stating:
Payroll have advised that it is your UTS Shopfront employment termination that
has triggered the current situation.103
105. On 18 July 2018 at 1.16 pm, Ms Anderson sent an email to Mr Lee in which she
stated:
My understanding is that, as Shopfront is currently in process of being moved
from 'DVC Enterprise' to 'Provost' in NEO -that all non-current contracts were
terminated as a matter of course to make the move easier. Please let me know if
there is anything Shopfront can do, as this should have no impact on his
employment with the Business School, which preceded the contract with
Shopfront and should be his primary employment.104
106. On 19 July 2018, Mr Lee wrote an email into which the Applicant was copied, stating
as follows:
… I am going to have to move our Department meeting again …
I am just about to issue the Outlook invitations moving the Department meeting
from 13 September to 20 September.105
98 Burke Statement Annexure page 286.
99 Productions Documents Schedule 2(a) page 87.
100 Production Documents Schedule 2(d) page 123.
101 Production Documents Schedule 2(d) page 124.
102 Production Documents Schedule 2(a) page 226.
103 Burke Statement Annexure page 291.
104 Production Documents Schedule 2(d) page 129.
105 Production Documents Schedule 2(a) page 143.
[2019] FWC 3190
20
107. The Respondent asserts that:
(a) the contract under which the Applicant was employed and under which he
continued to be employed was #1333911 for the period 23 July to 18
November 2018;
(b) the Applicant had never previously had a casual contract for work at that
time; and
(c) the contract was for a total of one hour’s work/pay and was only issued so
that he would have email access if required.106
108. On 25 July 2018, Mr Lee emailed the Applicant attaching the contract for 24760
Pricing and Revenue Management for Summer Session 2018. Mr Lee’s email states:
Attached is a contract for Coordination of “24760 Pricing and Revenue
Management” in Summer 2018. The contract is provided in advance for this year
only, because of the unexpected termination of your UTS employment …
Note that the coordination contract is split into two components:
1. A small contract #1333911 (1 hour) for coordination work which might be
required in advance of the subject’s commencement, during Spring Session.
2. The normal coordination contract #1333912 for a Summer PG subject with one
class taught by the coordination – 15 weeks at 2.5 hours per week.
If for some reason we do not proceed with this subject in Summer 2018, or if we
decide to employ a different coordinator, or if you decide you don’t wish to teach
the subject, then the contract #1333912 will be cancelled in its entirety. If the
subject enrolment increases I will review contract #1333912 in November and
provide an additional contract or Variation of Contract, as appropriate.107
109. On 30 July 2018, the Applicant signed the contract.108 The value of the contract was
$2,450.25.109
110. The Applicant never before taught or had coordinator duties in a Summer Session.110
111. The Pricing subjects have not before been offered to students during the Summer
Session.
111A. On 3 August 2018 at 3.15 pm, Professor Tam wrote to Mr Lee stating:
We are looking into potentially doing fixed-term contracts for teaching. Can you
give numbers about Iain, John Burke, and Kaye …111
111B. On 6 August 2018, Mr Lee responded to Professor Tam’s 3 August 2018 request.112
112. BLANK
113. On 24 August 2018, Professor Tam emailed the Applicant
106 PN861/862.
107 Burke Statement Annexure page 305.
108 Rhodes Statement, paragraph 14, Pages 307 and 308 of the Annexure to Burke Statement.
109 Pages 307 and 308 of the Annexure to Burke Statement.
110 Rhodes Statement, paragraph 41(f).
111 Production Documents Schedule 2(a) page 83.
112 Production Documents Schedule 2(a) page 82.
[2019] FWC 3190
21
Thank you for supporting the Department and agreeing to teach 24760 Pricing and
Revenue Management in the Summer 2018 session. As advised by the new
Deputy Dean, subjects need to be coordinated by continuing staff. Ingo Bentrott
will be the subject coordinator for 24760 that you lecture in the Summer. He will
be in touch.113
114. At 10.50 am on 24 August 2018, the Respondent’s website listed the Applicant as
both an Autumn session coordinator, and a summer session coordinator.114
115. The Applicant responded on the same day at 11.45am saying “Before I respond
officially, I would like to know the reasoning behind my demotion.”115
116. Professor Tam responded on the same day at 11.48 am that “I was advised that casuals
should not coordinate subjects …”116
117. The Applicant responded to Professor Tam on the same day stating: “I will not
compromise my principles nor allow my reputation to be damaged by this unjustified
demotion …”117
118. Professor Tam respondent to the Applicant at 5.00 pm on the same day stating:
Please contact the deputy Dean Carl Rhodes directly regarding this.118
119A. As at 27 August 2018, the Applicant remained a member of the marketing external
engagement committee.119
119B. On 27 August 2018 at 10.27 am, Professor Tam forwarded the Applicant’s email to
Professor Rhodes stating:
FYI. Another email from the same casual. Thank you for writing to him.120
119. Professor Rhodes then emailed the Applicant on 27 August 2018 at 11.56 am, and
offered to meet with him in person and asked the Applicant to direct his questions to
Professor Rhodes.121
120. On 27 August 2018 at 12.02 pm, Professor Tam wrote to Michael Lee stating:
John Burke and Iain McDonald both have emailed me about not coordinating.122
121. On 27 August 2018 at 4.03 pm, the Applicant wrote to Professor Rhodes outlining the
good work that he had performed as coordinator of the pricing subjects, and in which
the Applicant wrote:123
Perhaps a fractional contract could be one of the solutions to alleviate the pending
problem
113 Burke Statement Annexure page 317.
114 Burke Statement Annexure pages 318 – 326.
115 Rhodes Statement, paragraph 16.
116 Rhodes Statement, paragraph 17.
117 Rhodes Statement, paragraph 20.
118 Burke Statement Annexure page 315.
119 Production Documents Schedule 2(d) page 189.
120 Production Documents Schedule 2(a) page 75.
121 Production Documents Schedule 2(b) page 278.
122 Production Documents Schedule 2(a) page 73.
123 Production Documents Schedule 2(a) page 231.
[2019] FWC 3190
22
121A. On 27 August 2018 at 4.32 pm, Professor Rhodes forwarded the Applicant’s 27
August 2018 4.03 pm email to Professor Tam stating:
see message below from John Burke. He certainly thinks a lot of himself!
I will reply, but can I just confirm some facts:
- How many hours a week were we paying for coordination?
- Will he still have the option to teach (without coordinating)?124
121B. On 27 August 2018 at 4.42 pm, Professor Tam wrote to Professor Rhodes stating:
After knowing all the special treatment he has been receiving for so many years, I
am not surprised.
For his PG Pricing class (24760), we have been paying 4 hours a week (for 17
weeks in Autumn) for coordination, totalled $4399 per session in 2017 and 2018.
For his UG Pricing class (2422), we have been paying 5.75 hours a week (for (17
weeks in Autumn) for coordination, totalled $5633 of 6323 per session in 2017
and 2018.
Of course he wouldn’t want to give the above numbers up! He can still teach the
summer without coordination. But he need to confirm soon (say, by the end of
August, if possible).
Thank you so much for taking care of this!125
121C. On 30 August 2018 at 2.34 am, Professor Tam wrote an email to Professor Rhodes
with the subject heading “Paid coordination” stating:
For John Burke
- Paid 4 to 5.75 hours per week per subject in 2017-2018 for 4 subjects.
- The total per subject ranged from $4,300 to $6,300.
- Total = $20,646.126
121D. On 30 August 2018 at 8.55 am, Professor Rhodes responded by asking how many
students were in each of these subjects.127 Professor Tam provided a response.128
121E. On 31 August 2018 at 11.58 am, Mr Carrillat wrote to Professor Rhodes stating:
John mentioned to me his disappointment about potentially losing the
coordination of his subject and asked me if I could help. I just wanted to say that
John has been a very good colleague and important contributor to teaching &
learning in the DG not just in the classroom but in getting industry partners
involved.129
121F. On 31 August 2018 at 12.25 pm, Professor Tam wrote to Professor Rhodes stating:
124 Production Documents Schedule 2(a) page 231.
125 Production Documents Schedule 2(a) page 230.
126 Production Documents Schedule 2(a) page 71.
127 Production Documents Schedule 2(a) page 71.
128 Production Documents Schedule 2(a) page 70.
129 Production Documents Schedule 2(b) page 106.
[2019] FWC 3190
23
I have academics coming to me and asked what’s happening with John Burke. He
is now asking people to “put in good words” for him in emails.130
121G. On 11 September 2018 at 10.04 am, Professor Tam wrote to the Applicant, in response
to him being listed in the Top 20 in the UTS Business School from student 2018 – SFS
scores in response to the question: “Overall, I am satisfied with how this staff member
facilitated my learning”, stating:
Congratulations, John!131
121H. On 17 September 2018 at 12.43 pm, Professor Tam wrote to Professor Sara Denize,
Associate Dean Education, cc’ing Professor Rhodes, stating:
Carl and I discussed the qualification required for lecturing, specifically the AQ+1
rule.132
121I. On 17 September 2018 at 5.28 pm, Professor Denize provided an explanation of her
understanding of the AQ+1 rule to Professors Tam and Rhodes.133
121J. On 17 September 2018, Professor Rhodes wrote to Professor Denize and Professor
Tam stating:
The inquiry was mainly in relation to what we should expect from casual
academics.134
121K. On 17 September 2018 at 5.44 pm, Professor Tam responded to Professor Rhodes’
email without copying Professor Denize, stating:
John Burke has no PhD and doesn’t meet any of the four criteria Sara listed.135
122. On 19 September 2018, Professor Rhodes met with The Applicant. There is a dispute
as to what occurred at this meeting.
122A. On 19 September 2018 at 6.06 pm, Professor Tam wrote to Professor Rhodes stating:
Just confirming I will teach the PG subject John Burke taught before, after you
met him today.136
122B. On 20 September 2018 at 11:04am, the Applicant emailed Michael Lee:
Just apologising for not attending the DG Meeting today (if it's on - I get confused
with all the changes). FYI, I never mentioned that I broke some ribs a few weeks
ago and has made travel a little difficult, as in a fair bit of pain at the moment.
Doctor says a few more weeks to recover.137
122C. On 20 September 2018 at 11:33am Michael Lee responded to the Applicant’s email:
130 Production Documents Schedule 2(a) page 67.
131 Production Documents Schedule 2(a) page 62.
132 Production Documents Schedule 2(a) page 61.
133 Production Documents Schedule 2(a) page 60.
134 Production Documents Schedule 2(a) page 59.
135 Production Documents Schedule 2(a) page 59.
136 Production Documents Schedule 2(a) page 58.
137 Production Documents Schedule 2(d) page 199.
[2019] FWC 3190
24
Hi John Your apology will be noted. I have broken ribs myself on more than one
occasion, so I have some idea how you're feeling. Usually takes me more than 6
to 8 weeks to become pain-free. Best wishes Michael Lee138
122D. On 21 September 2018, Professor Denzie wrote a letter to the Applicant in which she
wrote:
Congratulations on your outstanding record of teaching as recognised by students
in the Autumn 2018 SFS scores…
On behalf of the Dean and the School, thank you for your commitment to teach
and learning, and congratulations on your Top 20 Postgraduate achievement in
Autumn.
123. On 27 September 2018 at 11:56 am, the Applicant received an email from executive
assistant Maria Mattiello, which included a letter from Sara Denize (Deputy Dean
Education) dated 21 September 2018 congratulating the applicant on being in the Top
20 of UTS Business School postgraduate teachers for the Autumn 2018 semester.139
124. On 27 September 2018 at 1.35 pm, Professor Rhodes emailed the Applicant stating:
While we very much appreciate the work you have done and contributions you
have made to our teaching program over a long period of time, based on the issues
above we are proceeding with bringing the subject coordination of the subjects
you have taught back in-house and will not be asking you to teach on the
upcoming Pricing subject.140
125. On 2 October 2018 at 5.25 pm, the Applicant responded to the email of 27 September
2018 from Professor Rhodes. In that email, the Applicant stated:
I strongly believe that my dismissal is not in the best interest of the students,
which is the key reason the university exists. The decision to cease my
employment as the coordinator and lecturer after doing the same good job, year
in, year out every Autumn for the last 7 years with well above average student
outcomes, including recognition by ACEN as an exemplar of work integrated
learning, is wrong on all counts.141
125A. On 2 October 2018 at 6.52 pm, Professor Rhodes forwarded to Ms Osborne and
Professor Tam the Applicant’s email to Professor Rhodes. Professor Rhodes stated:
See the email below, and my email to which he is responding
it is from a casual lecturer who we did not give work to this summer, partly
because of the excessive hours he was being paid, but also to avoid casuals
coordinating.
Can you offer advise [sic] on how to respond142
125B. On 3 October 2018 at 9.56 am, Professor Rhodes wrote to Professor Tam stating:
138 Production Documents Schedule 2(d) page 200.
139 Burke Statement Annexure page 353 & 354.
140 Burke Statement Annexure page 339.
141 Burke Statement Annexure pages 334.
142 Production Documents Schedule 2(b) page 153.
[2019] FWC 3190
25
What did you make of the email from John Burke? I thought it was time to hand it
over to the professionals – that’s why I sent it to Jackie so we can make a formal
response.143
125C. On 3 October 2018 at 10.00 am, Professor Tam wrote to Professor Rhodes stating:
I agree with you passing it to HR. He’s becoming aggressive in his email and
doesn’t accept the fact that it’s not his decision. There is no “dismissal” as his
casual contract for summer teaching is not issued yet.
Now I understand why nobody in Marketing dared to take this subject in the
Summer. He got to have talked to a lot of people about this. I am determined to
make this class completely different by flipping it and it will still work.144
125D. On 3 October 2018, Jackie Osborne, Joel Arnott and Felicity Howell met to discuss
what advice they were going to provide to Professor Rhodes.145
125E. BLANK
125F. On 3 October 2018 at 8.01 pm, Ms Taylor wrote to Professor Rhodes stating:
John is a prickly character. Pam and I had some interesting dealings with him too
(I briefed Leona on these). I will forward you some emails re issues with him
which were resolved after F2F meetings. When I met with him he calmed down
and appeared to listen to reason but it was a long meeting plus several emails (I
tried to avoid generating long to and fro communications).
We agreed that Pam was going to replace him when we had new recruits that
could teach these subjects but it seems in the end that she thought it was easier to
keep him on.146
125G. On 3 October 2018 at 8.01 pm, Professor Taylor forwarded to Professor Rhodes an
email chain between the Applicant and Professor Taylor dated 22 March 2016, and
stated to Professor Rhodes:
Carl this is the situation I mentioned – the first email. I then met with him and
subsequently Pam kept him on.147
125H. On 3 October 2018, Professor Rhodes responded to Professor Taylor stating:
Do you know why Pam decided to keep him on?148
125I. On 4 October 2018 at 3.59 am, Professor Taylor wrote to Professor Rhodes stating:
From memory it was because it was easier and she could quarantine some of the
new hires from teaching …149
125J. On 4 October 2018, Professor Rhodes responded to Professor Taylor stating:
seems likes the soft option was taken!
143 Production Documents Schedule 2(a) page 52.
144 Production Documents Schedule 2(a) page 51.
145 Production Documents Schedule 2(c) page 19.
146 Production Documents Schedule 2(b) page 28.
147 Production Documents Schedule 2(b) page 33.
148 Production Documents Schedule 2(b) page 32.
149 Production Documents Schedule 2(b) page 32.
[2019] FWC 3190
26
Also, do you know how he managed to negotiate to be paid so many hours for
coordination? In management we only ever paid 1 hour per week150
125K. Professor Rhodes responded to the Applicant on 4 October 2018 at 1.40pm indicating
that he had reviewed his response and noted his concerns. He offered to further discuss
the matter ‘and hopefully reach a resolution’ and indicated that he would contact him
once he had returned to work (he had been overseas).151
125L. On 4 October 2018 at 1.54 pm, Professor Rhodes wrote the “heads”, cc-ing Professor
Tam, and stating:
Leona and I are dealing with an issue in Marketing concerning payments to casual
staff for coordination and teaching, as we briefly discussed at our meeting last
week.
We need to confirm common practice across the school.
Can I ask:
- Have you employed any casual staff to coordinate subjects over the past year?
- If so,
o How may hours per week and for how many weeks per term are you
paying them and at what rate?
o What rate are you paying them for teaching of the same subject?152
125M. On 4 October 2018 at 5.16 pm, Professor Tam wrote to Professor Rhodes stating:
To summarize, the common practice in the Bus School is either zero (Econ, Acct)
or one (Mgmt, Fin) hour per week for the length of the session at the rate of about
$65.
John Burke has been paid 17 weeks in the range of 4 – 5.75 hours per week at the
same rate of about $65 in Autumn 2018 for each subject coordination.
The over-payment is 68-97.75 hours compared to 12 hours. It’s between 5.5 times
to over 8 times over other DGs.
I am gathering the numbers for his over-payment since he started in
Marketing 7 or 8 years ago.153
125N. On 4 October 2018 at 7.21 pm, Professor Rhodes acknowledged Professor Tam’s
email.154
126. On 5 October 2018 at 12.38 pm, the Applicant responded to Professor Rhodes email
accepting his invitation to meet.155
126A. On 5 October 2018 at 3.13 pm, Professor Tam wrote to Professor Rhodes stating:
150 Production Documents Schedule 2(b) page 32.
151 Burke Statement Annexure page 332.
152 Production Documents Schedule 2(a) pages 40 – 41.
153 Production Documents Schedule 2(a) pages 38 - 39.
154 Production Documents Schedule 2(a) page 38.
155 Burke Statement Annexure page 332.
[2019] FWC 3190
27
John Burke has been paid the following amounts each year for the PG subject for
coordination, lecturing, tutoring and marking. I put the number of students in the
bracket.
2018: $25,554 (102 students)
2017: $23,989 (108 students)
2016: $21,922 (96 students)
2015: $21,816 (89 students)
He didn’t teach it in 2014
2013: $19885 (76 students)
AS a reference point, a Level B Step 5 salary is $112,981 right now. Assuming a
40% teaching load, one subject would be 10% which is $11,298. Adding 17%
super, it’d be $13,219 for one subject. Please note, that includes only the lecture
and one tute. But there are not that many tutes for the student numbers. Just one or
two additional ones.156
126B. On 5 October 2018 at 10.30 pm, Professor Rhodes wrote to Professor Tam stating:
Thanks Leona – good info to have
Do you know how he managed to negotiate this over generous deal?157
126C. On 6 October 2018 at 4.47 am, Professor Tam wrote to Professor Rhodes stating:
He didn’t need to negotiate. It’s our system that allows it.
The coordination was overblown because of our historical way of calculating the
number of coordination hours in Marketing. And he has been doing all the
lectures, tutes, and marking himself since 2013. Nobody else did anything for the
PG subject since 2013.
Looking at the contract history, he only did the lecture and coordination (no tutes
or marking) when he taught this subject for the first time in 2011 (he did tutes
with no coordination for other subjects before). He was paid 97 hours for
coordination.
My guess is, he then understood our system of calculating casual hours and pay.
He started allocating the tutes and marking to himself as coordinator from the next
time he was asked to teach this subject in 2013 (he didn’t teach in 2012 at all for
us). Coordinators decide on the tutors and markers in Marketing.
…
The above explains why neither of them [the Applicant and Iain McDonald] want
to give up the coordinator role. Once you are not the coordinator, not only you
lose the over-generous coordination pay, you have no control over who does how
many tutes or marking.
…
We should have at least one, ideally two, continuing academic who can teach each
subject rather than relying on casuals…158
156 Production Documents Schedule 2(a) pages 37 – 38.
157 Production Documents Schedule 2(a) page 37.
[2019] FWC 3190
28
126D. On 6 October 2018 at 2.04 pm, Professor Rhodes to Professor Tam stating:
Just to be clear, for the $25,554 we paid him in 2018 how many classroom hours
did he have (lectures and tutorials) and how as the coordination hours
calculated?159
126E. On 7 October 2018 at 1.35 am, Professor Tam wrote to Professor Rhodes stating:
For $25,554, we have 24 lecture hours (2-hour lecture * 12 weeks) and 36 tutorial
hours ( 3 one-hour tutes * 12 weeks, I am checking why it is 12 weeks instead of
11 weeks). The total is 60 hours.160
127. On 12 October 2018, the Applicant received a voucher for $150 to acknowledge him
being in the “top 20” of post graduate teaching.161
127A. BLANK
127B. BLANK
127C. BLANK
127D. BLANK
127E. BLANK
127F. BLANK
127G. BLANK
128. On 16 October 2018 at 9.11am, Professor Rhodes sent an email to the Applicant
containing the following words:
“During our meeting, and as Leona had set out in her email to you on 24 August
2018, I mentioned that whilst you were not going to be asked to coordinate the
subject in the Summer session, the Faculty was still happy to offer you casual
work teaching the Pricing subject. During our meeting you refused to consider
teaching into the subject in the upcoming summer session, unless you were also
employed as the subject coordinator. I note that the School retains the discretion
to appoint and vary course coordinators as it sees appropriate, from time to time. I
also point out this subject has never run previously in the new Summer session.
…
As I said previously, the School very much appreciates the work you had done
and contributions you have made to the Faculty, which is why we hoped that you
would continue to teach for the School on the upcoming Pricing subject.
Further, whilst the School will not be offering you casual shifts to coordinate the
Pricing subject in the same subject in that session. I note that Leona has also tried
to understand from you whether you are interesting in teaching into other subjects.
Whilst I had indicated that we would not be asking you to teach on the upcoming
Pricing subject, this was because you had indicated you were not interested in
doing this. If that is no longer the case, we are happy to extend this offer of casual
158 Production Documents Schedule 2(a) pages 36 – 37.
159 Production Documents Schedule 2(a) pages 36.
160 Production Documents Schedule 2(a) pages 35.
161 Burke Statement [114].
[2019] FWC 3190
29
teaching work to you, again, for the Pricing subject in this upcoming summer
session. Further, we are happy to discuss whether there are any other opportunities
for you to teach as a casual in other subjects across the School. Please let me
know if you wish to engage in such casual teaching work.
…
I am happy to discuss any of the above further in our next meeting and hope that
the School and students can continue to benefit from your contributions.”162
128A. On 16 October 2018 at 9.37 am, Professor Tam wrote to Mr Lee stating:
You can cancel the coordination contract for Summer now. We won’t issue any
more casuals coordination contract unless it’s emergency.163
128B. On 16 October 2018 at 10.53 am, Mr Lee wrote to UTS Payroll, cc’ing the Applicant,
stating:
We would like to cancel casual academic contract #1333912 *John Burke, ID
110147), due to run from 19 Nov 2018 to 08-Mar-2019.
I have completed the Variation of Contract form attached, although the entire
contract is being cancelled because we have changed the staffing arrangement so
the position is no longer required.164
129. On 18 October 2018, the Applicant filed a claim for unfair dismissal. The Applicant
did not regard Professor Rhodes’ offer as being one he could reasonably accept.165 Mr
Burke stated in cross-examination:
“But you didn't accept the offer. You filed the unfair dismissal claim
instead?---Yes. Because of that reason. It was a diminished role.”166
130. On 21 October 2018 at 11.34 am, the Applicant responded to Professor Rhodes email
of 16 October 2018 indicating a preparedness to meet again.167
131. Professor Rhodes responded to the Applicant on 24 October 2018 offering to schedule
a meeting on return from an overseas trip for 1.00pm on 13 November 2018. 168
132. Professor Rhodes was notified by the Fair Work Commission later that day (at
5.53pm) that an Application Alleging Unfair Dismissal had been filed by the
Applicant on 18 October 2018. 169
133. On 25 October 2018, Mitchel Osmond, Teaching & Learning Officer (UTS Business
School) provided a reference for the Applicants Learning and Teaching Award
application stating:
While I have worked with many dedicated academics over the years, I believe
John to be the most dedicated in his pursuit of enhancing his student learning and
success in a typically difficult subject for students: 24760 Pricing and Revenue
162 Burke Statement Annexure page 329.
163 Production Documents Schedule 2(d) pages 203.
164 Production Documents Schedule 2(b) pages 323.
165 Burke Statement, paragraph 116.
166 PN522.
167 Burke Statement Annexure page 329.
168 Burke Statement Annexure page 328.
169 Rhodes Statement, paragraph 36.
[2019] FWC 3190
30
Management.” and, “Despite the fact that John only taught as a casual academic in
Autumn sessions, I would frequently be contacted by John throughout the Spring
and Summer sessions, looking for advice, exchanging ideas and looking for the
best possible adjustments to make his assessments more authentic for the students.
This culminated in the creation of the best authentic assessment I have seen in the
UTS Business School.170
134. On 26 October 2018 at 11.18 am, the Applicant acknowledged Professor Rhodes’
email of 24 October 2018 and said “Thanks Carl”.171
134A. On 9 November 2018, the Respondent produced a document titled “Subject Outline
24760 Pricing and Revenue Management” in respect of the summer 2018/19 semester.
The document stated:
Subject coordinator
Prof. Leona Tam
…
Teaching staff
Subject lecturer and workshop facilitator
Prof. Leona Tam172
135. On 13 November 2018 at 5.16 pm, UTS wrote to the Applicant. A subject outline was
attached to the letter, and it set out the shifts that the Applicant was being offered,
being:
“● 2.00pm–5.00pm, 7 December 2018: Applying the Basic Pricing Methods
and Understanding Margin Arithmetic; Pricing a Complex Event.
● 2.00pm–5.00pm, 14 December 2018: Pricing a New Product.
● 2.00pm–5.00pm, 25 January 2019: Pricing a Consumer Packaged Good.
● 2.00pm–5.00pm, 1 February 2019: Pricing a B2B Product.
● 6.00pm–9.00pm, 15 February 2019: Pricing a Consumer Durable.”173
136. The Applicant estimates that the value of teaching these classes (being 3 contact hours
per week for five weeks) would be $3,959.70.174
137. Professor Tam, indicated in that letter that “If you wish to accept these shifts, please
advise me within the next 7 days, by no later than 20 November 2018, and we will
issue you with a casual contract.” The letter also stated that ‘the Business School is
happy to consider you for casual teaching in other suitable subjects’ and stated that the
Applicant should let Professor Tam know whether there were any Department of
Marketing subjects that he would be interested in for teaching or tutorial work in
2019.175
170 Burke Statement Annexure page 438.
171 Rhodes Statement, paragraph 37.
172 Production Documents Schedule 2(a) pages 217 – 225.
173 Burke Statement Annexure page 521.
174 Ex 7, JB-65, page 521.
175 Rhodes Statement, paragraph 39.
[2019] FWC 3190
31
138. On 14 November 2018 at 11.03 am, the Applicant stated:
“Thanks Leona
Can you please send through the Coursepack and other material, as well as the
textbook for review.
Regards
John”176
138A. On 14 November 2018, Professor Rhodes wrote to Professor Tam as follows:
Hi Leona,
There is no need to send him the materials in advance. I suggest replying along
the lines:
Thanks John,
The materials are currently under review, but subsequent to a contract being
signed, we can send them to you in ample time for you to prepare for delivering
machines177
139. On 14 November 2018 at 5.24 pm, Professor Tam responded to the Applicant:
“Hi John,
Thank you for your email. The materials are currently under review. Subsequent
to a contract being signed, we can organize to send you the materials. There will
be plenty of time for you to prepare for delivery the classes.
Best,
Leona”178
140. On 16 November 2018, Mr Burke wrote to Professor Alexander, Deputy Vice
Chancellor (Education and Students) seeking her intervention because:
“I need to make two decisions on Monday:
1. To accept to teach an inferior version of PG Pricing…”179
141. Professor Alexander responded to the Applicant on 16 November 2018 and said that
she could not “see a compelling reason to seek overturn the decision made by the
facility’s courses committee or faculty board”. She further said:
“I am told that you have been offered a casual teaching role on the subject which I
do hope you will give strong consideration to accepting…”
142. Professor Alexander also referred the Applicant to the process for staff related
grievances should he wish to take it further.
143. Mr Burke responded to Professor Alexander on 18 November 2018 and stated that
“had a look at the grievance process and it will not provide any benefit for me.”
144. Under cross examination the Applicant stated:
176 Supplementary Statement in Reply of Professor Rhodes dated 18 January 2019, CR10.
177 Production Documents Schedule 2(c) pages 253.
178 The email chain of 14 November 2018 is at annexure CR10 of Statement in Reply of Professor Carl Rhodes signed 18
January 2019.
179 Ex 9.
[2019] FWC 3190
32
“Until the first pay period after 18 November you continued to be employed
and paid by the University? Yes.180”
145. On 19 November 2018 at 12.38 pm, the Applicant emailed Dean Earley, the Dean of
UTS Business School seeking “a genuine apology and be converted to part-time if
necessary, and allow me to continue coordinating and teaching pricing” and stated:
“They have offered me to teach what I believe to be a massively altered inferior
version of a subject including the removal of the real client projects, but not the
coordination. Even if I accepted the offer which is clearly a demotion and
disregard for my past work for no valid reason, this would mean relying on
another contract that they can just cancel anytime based on the previous cancelled
coordination contract.”181
146. On 19 November 2018 at 12.49 pm, Dean Earley responded the Applicant offering to
meet with him to discuss his concerns but indicated that:
“the authority and decisions made by the department are reasonable, appropriate
and within their scope of decision-making. While this may be disappointing
news, I appreciate your inputs into the education of our students and I understand
that you will be continuing some work with the university as a casual academic in
the near future.”182
146A. On or about 20 November 2018, Professor Tam attempted to remove the Applicant as
a user in respect of “UTS Online 24760 Sum 2018”.183
147. On 20 November 2018, UTS received a response to this letter from the Applicant’s
lawyer indicating that his client “refused to accept a diminished role of only teaching
and not coordinating the Pricing and Revenue Management subject”.184
147A. On 28 November 2018 at 2.42 pm, Professor Tam wrote to Mr Tucker stating:
Please go ahead and block … John Burke from UTS Online.185
[13] The Applicant submits he was unfairly dismissed. He seeks an order that he be
reinstated into what he considers to be his former substantive role with UTS, namely an
ongoing role teaching and coordinating the undergraduate and postgraduate Pricing subjects.
[14] As stated above the Respondent contends that the Applicant is not protected from
unfair dismissal because he did not complete a period of employment with UTS of at least the
minimum employment period (being 6 months). In the alternative UTS says it did not dismiss
the Applicant.
[15] Because it must first be established that a person is protected from unfair dismissal
(s.383 of the FW Act), before it is determined if they have been dismissed (s.385(a)), it is
necessary to deal with the MEP objection before the Not Dismissed Objection.
Protection from Unfair Dismissal
[16] An order for reinstatement or compensation may only be issued where the
180 PN677.
181 Burke Statement Annexure 310.
182 Burke Statement Annexure 310.
183 Production Documents Schedule 2(a) pages 258.
184 Rhodes Statement [40].
185
Production Documents Schedule 2(a) pages 304.
[2019] FWC 3190
33
Commission is satisfied the Applicant was protected from unfair dismissal at the time of the
dismissal.
[17] Section 382 sets out the circumstances that must exist for the Applicant to be protected
from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person’s annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in accordance with
the regulations, is less than the high income threshold.
[18] In the present matter there is a dispute about whether the Applicant has completed the
MEP of 6 months. That issue needs to be determined as a preliminary jurisdictional matter.
[19] The Applicant says that the employment ended on 16 October 2018. Without deciding,
at this stage, whether the employment ended at the initiative of UTS, in order for the
Applicant to have served the MEP he must have been employed for the 6 months
“immediately before dismissal” (s.383(a)(ii) of the FW Act) i.e. prior to 16 October 2018.
That means the Applicant must have been continuously employee on and from 16 April 2018.
[20] Although the Applicant has worked for UTS at least since August 2010, the
Applicant’s most recent employment with UTS comprised the following periods186:
Semester Start Finish Description
Autumn 2015 15 January 2015 15 July 2015 Casual academic,
non-continuing
Teaching and
(separately
contracted)
coordination (26
weeks)
36 week break
Autumn 2016 24 March 2016 28 July 2015 Casual academic,
non-continuing
Teaching and
(separately
contracted)
coordination (18
186 From CR-3 to Exhibit 5.
[2019] FWC 3190
34
Semester Start Finish Description
weeks)
34 week break
Autumn 2017 23 March 2017 13 July 2017 Casual academic,
non-continuing
Teaching and
(separately
contracted)
coordination (16
weeks)
32 week break
Autumn 2018 22 February 2018 12 July 2018 Casual academic,
non-continuing
Teaching and
(separately
contracted)
coordination (20
weeks)
4 week break
Spring 2018 9 August 2018 29 November 2019 Contract #1333911
1 hour’s work
$65.45 paid over the
period
Payment in advance
of coordination role
in Summer
2018/2019.
Primary purpose of
the contract was to
keep the Applicant
on the UTS IT
system.
Also, 1 payment on
6 September
($55.74) for
completing a
training session.
Summer 2018/2019
(not ultimately
19 November 2018 8 March 2019 Contract #1333912
$2,450.25 for
[2019] FWC 3190
35
Semester Start Finish Description
worked) coordination.
[21] During the hearing I put the above summary to the Applicant. He agreed with the
same including the fact of the significant breaks.
[22] From the payroll information it is clear that during the breaks there was no work
performed by the Applicant for UTS for which he was paid.
[23] For the first time in the Summer Term the Pricing subject was to be offered in addition
to the usual offering in the Autumn Term.
[24] On or about 25 July 2018 the Applicant was offered:
a) A “small contract #1333911 (1 hour) for coordination work which might be
required in advance of the subject’s commencement, during Spring Session”. This
1 hour payment was spread over the period 9 August 2018 to 29 November 2018.
The primary purpose of this contract was to keep the Applicant on the UTS IT
system.
b) A “normal coordination contract #1333912 for a Summer PG subject with one
class taught by the coordinator – 15 weeks at 2.5 hours per week”. The contract
was due to start on 19 November 2018 through until 8 March 2019. The covering
email to the contract provided that “if we decide to employ a different
coordinator… then the contract #1333912 will be cancelled in its entirety.”
[25] On 30 July 2018 the Applicant accepted these contracts.
[26] At least from August 2018 the Applicant understood that, for the Summer Term
2018/2019 and thereafter, coordination was not going to be offered to him (i.e. that contract
#1333912 was being cancelled).
[27] The Applicant says he did not focus on the words “if we decide to employ a different
coordinator”. His decision not to focus on those words is a matter he should take
responsibility for. The document is clear in its face. The document was only one page in
length. The Applicant is a very intelligent and competent adult. He chose to enter into the
agreement on the basis that it was offered to him.
[28] As noted above, although the Applicant was paid during the Spring Term of 2018 that
payment was in large part manufactured to ensure that the Applicant remained on the UTS IT
system. In reality the Applicant finished the actual performance of work around 12 July 2018.
As the chronology demonstrates there were some emails engaged in by the Applicant after 12
July 2019, but this was not substantial work for which he was paid. The payment
arrangement from August 2018 was then an administrative convenience.
[29] Because of the administrative practice adopted by UTS the $65.45 earned by the
Applicant for that preparatory work was paid in instalments during Spring Term 2018. He
was paid through until 29 November 2019 despite the Applicant contending that the
employment relationship ended on 16 October 2019.
[30] What is clear from the above is that:
a) there was a break between around 12 July 2018 and 9 August 2018 (Most Recent
Break Period),
b) the period from 9 August 2018 to the Applicant’s nominated termination date of
16 October 2018 is a period of approximately 10 weeks. That period of time does
[2019] FWC 3190
36
not meet the MEP, and therefore
c) only if the Most Recent Break Period is counted as service (or not a break in
service) can the Applicant’s period of employment extend back six months from
16 October 2018 to at least 16 April 2018 (thus satisfying the MEP).
[31] The Applicant says the Most Recent Break Period counts for service. He contends
that that “despite the Respondent’s decision to classify the Applicant as a casual, he has had
an ongoing employment relationship with the Respondent, such that his employment is (at
least) an ongoing and systematic casual employee and, more likely as an ongoing employee
incorrectly characterised as a casual.”
Applicant’s final submissions
[32] The Applicant submitted that,
1. “The Applicant makes application for unfair dismissal remedy.
An overview of the Applicant’s contentions
2. The Applicant is a lecturer and coordinator. His specialisation is “pricing”.187
3. The Respondent is a university.
4. The Applicant seeks reinstatement to what was his substantive role at the
Respondent prior to his dismissal – an ongoing role, teaching and coordinating
the undergraduate and postgraduate Pricing Subjects.
5. In support of his position, the Applicant submits:
a. his employment relationship with the Respondent began in 2010;2
b. he commenced performing work as a teacher and coordinator of the
relevant
subjects in 2012;188
c. since 2012, he has worked as the coordinator and teacher of the relevant
subjects on each and every occasion on which these subjects has been
offered by the Respondent (which as been at least annually);189
d. despite the Respondent’s decision to classify the Applicant as a casual, he
has had an ongoing employment relationship with the Respondent, such
that his employment is (at least) as an ongoing and systematic casual
employee and, more likely, as an ongoing employee incorrectly
characterised as a casual;
e. at the end of 2017, it was agreed that the Applicant would work as teacher
and coordinator of the postgraduate Pricing Subject when it was run
during the Summer 2018/19 semester (the first occasion on which it had
been run);190
f. in April 2018, the Applicant was involved in a discussion with during
which there was a discussion about “casuals” coordinating subjects, the
187 Witness statement of John Burke dated 3 January 2019 (Burke Statement) at [10], [11], [19] and [20]
(for example) 2 Burke Statement at [15] .
188 Burke Statement at [19] and [20].
189 Burke Statement at [120] .
190 Burke Statement [55] to [59] .
[2019] FWC 3190
37
Applicant advocated for his continued role as the coordinator of the
undergraduate and postgraduate Pricing Subjects, and (while the Summer
2018/19 semester was not discussed) the balance of the information that
was provided to the Applicant meeting provided him with sufficient
certainty to write to the Respondent “I look forward to continuing in 2019
and beyond”;191
g. in July 2018, as it had already been agreed that the Applicant would work
as teacher and coordinator of the postgraduate Pricing Subject during the
Summer 2018/19 semester, the Applicant was provided with a document
confirming this to be the case;192
h. on 24 August 2018, the Applicant was unilaterally informed by email, and
without prior consultation, that he would not be the coordinator of the
postgraduate Pricing Subject during the Summer 2018/19 semester (and,
by implication, that would not work as coordinator of any future Pricing
Subjects, whether undergraduate or postgraduate), and that this was
because he was a casual employee;193
i. on 19 September 2018, the Applicant met with Professor Rhodes, who
informed the Applicant that he was could not work as a coordinator, and
further could not work as a teacher, of the Pricing Subjects;194 and
j. on 27 September 2018, Professor Rhodes confirmed this position in
writing by email.195
An overview of the Respondent’s contentions
6. The Respondent resists the application, raising a jurisdictional objection –
namely, that the Applicant was not dismissed. In support of this position, the
Respondent submits:
a. the Applicant was a casual employee;196
b. the Respondent offered the Applicant casual teaching work on 16 October
2018 and 13 November 2018, which offers were rejected;197 and
c. the Respondent did not act in a way that forced the Applicant to resign, but
rather that the Applicant has conducted himself unreasonably.198
The issues in dispute
7. There are disputes between the parties as to:
a. the nature of the employment relationship; and
b. whether or not the Applicant has been dismissed.
191 Burke Statement [66] to [68] and JB-36.
192 Burke Statement [74] to [76] .
193 Burke Statement [80] and JB-43.
194 Burke Statement [92] to [103] .
195 Burke Statement [107] to [109].
196 Respondent’s Outline of Submissions [13].
197 Respondent’s Outline of Submissions [6] – [8].
198 Respondent’s Outline of Submissions [17] – [18].
[2019] FWC 3190
38
8. The Applicant submits that the first dispute contextualised the second dispute,
which is the core question that the Commission is called upon in determining
jurisdiction.
The nature of the employment relationship
9. The Respondent does not oppose the Application on the basis of the Applicant’s
period of service as a casual not counting towards the Applicant’s period of
service for the purpose of determining whether or not the Applicant has fulfilled
the minimum period of employment required to be protected from unfair
dismissal.199
10. The Applicant understands this to be a concession that, at minimum, the
Applicant was employed on a regular and systematic basis, and had a reasonable
expectation of continuing employment by the Respondent on a regular and
systematic basis.200 Such a concession is appropriate.
11. The Applicant’s primary case, however, goes further than this concession. The
Applicant contends that the nature of the employment relationship between the
Respondent and the Applicant did not have a fundamental “essence of
casualness”,201 and that this contextualises the events from September 2018
onwards.
12. The Applicant relies upon the ratio of the Full Federal Court of Australia in
WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [159], and [168] to [182] as
setting out what relationships are, and are not, “casual”. Importantly:
a. the Court accepted that “whether any particular employee is a casual
employee depends upon an objective characterisation of the nature of the
particular employment as a matter of fact and law having regard to all the
circumstances”;202
b. ongoing employment does not need to be life-long employment. However,
ongoing employment is for an indefinite term subject to rights of
termination;203
c. by contrast, a casual employee has no firm advance commitment from the
employer to continuing and indefinite work;204
d. the indicia of causal employment – irregular work patters, uncertainty,
discontinuity, intermittency and unpredictability – are manifestations, but
an absence of these usual features does not necessarily mean that the
essence of casualness is absent;205
e. a casual employee may become a permanent employee because the
characteristics of the employment, overtime, have come to reflect ongoing
employment;206 and
199 See sections 383 and 384 of the Fair Work Act 2009 (Cth) (FW Act).
200 Section 384(2)(a) of the FW Act.
201 See WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPack) at [169].
202 WorkPack at [159].
203 WorkPac at [171] .
204 WorkPac at [172] .
205 WorkPac at [173] .
206 WorkPac at [178] to [179].
[2019] FWC 3190
39
f. the nature of the employment relationship may be legitimately examined
by reference to the actual way in which the work was carried out.207
13. In the instant case, the circumstances that support the conclusion that there was
a firm advanced commitment to continuing and indefinite work (subject to the
rights of termination) include as follows:
a. the Applicant has worked as the coordinator of the Pricing Subjects since
2012;
b. the Applicant was given autonomy to determine and develop the
curriculum for these subjects, which he did from 2012 to 2018;208
c. the Respondent asked the Applicant to be involved in work outside of
semesters during which the Pricing Courses were offered;209
d. the Applicant performed unpaid work outside of the semesters during
which the Pricing Courses were offered, which was ultimately recognised
by the Respondent at the start of 2018;210
e. the Respondent recognised the Applicant’s contributions to the Pricing
Subjects, through awards and similar forms of acknowledgment;211 and
f. the Applicant’s contract of employment was not terminable on the
provision of one hour’s, or one day’s, notice.
14. While some written statements by the Respondent’s employees, and some
aspects of the Applicant’s written contract(s) of employment, run contrary to
these propositions, limited weight should be placed on these matters. The
Applicant submits that these matters do not outweigh the factors consistent with
the Applicant having been engaged on an ongoing basis. Further, such
statements should be viewed in the context of the Respondent having an interest
in representing to the Applicant that he was a casual employee.
Whether or not the Applicant was dismissed
15. The Applicant must establish on the balance of probabilities that he was
dismissed.
16. Section 386 of the FW Act provides as follows:
Meaning of dismissed
(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:
207 WorkPac at [180].
208 See, for example, Burke Statement [21] to [23] .
209 See, for example, Burke Statement [42].
210 Burke Statement [61].
211 Burke Statement [8].
[2019] FWC 3190
40
(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; or (b)
the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or
was, for any reason, limited to the duration of the training
arrangement;
and the employment has terminated at the end of the training
arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in
his or her remuneration or duties; and
(ii) he or she remains employed with the employer that
effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a
kind referred to in paragraph (2)(a) if a substantial purpose of the
employment of the person under a contract of that kind is, or was at the
time of the person's employment, to avoid the employer's obligations
under this Part.
17. The Applicant contends that he was dismissed within the meaning of the FW
Act.
The Applicant’s primary contention
18. The Applicant relies upon section 386(1)(a) in support of this position. A
person's employment with his or her employer will have been terminated on the
employer's initiative if there was action by the employer that either intends to
bring the relationship to an end, of has that probable result.212
19. The Applicant submits that the events of September 2018 satisfy this test.
20. Prior to August 2018, the Applicant held the position of coordinator and teacher
of the Pricing Subjects for all upcoming semesters, including the Summer
2018/19 semester. His role as coordinator of the Summer 2018/19 semester had
been confirmed in writing, and signed by the Applicant in July 2018.
21. On 24 August 2018 the Applicant, without notice, received an email stating that
he was no longer engaged as coordinator of the Pricing Subject for the Summer
2018/19 semester. The Applicant complained.
22. On 19 September 2018, the Applicant met with Professor Rhodes who told the
Applicant that he was no longer engaged as coordinator and could no longer
teach the Pricing Subject.
23. On 27 September 2018, Professor Rhodes’ wrote in an email to the Applicant
(unequivocally) as follows (emphasis added):
212 Thi Nho Tran v Bupa Dental Corporation Pty Ltd [2018] FWC 3237 at [78] citing O’Meara v Stanley Works Pty Ltd with
authority.
[2019] FWC 3190
41
While we very much appreciate the work you have done and contributions you
have made to our teaching program over a long period of time, based on the
issues above we are proceeding with bringing the subject coordination of the
subjects you have taught back in-house and will not be asking you to teach on
the upcoming Pricing subject.
24. Even if the Respondent did not intend to bring the employment relationship to
an end (which is a submission that is difficult to accept), the probable result of
removing the Applicant’s two roles at the Respondent (teaching and
coordination) such that he would have no work to perform, and would not be
paid any money, is that his employment would end.
25. The cancellation of shifts of a regular and systematic casual employee (if the
Commission is of the view that the Applicant was a casual employee) has been
treated by the Fair Work as a dismissal.28 The instant situation is analogous. The
Applicant’s primary submission is that he was set to teach and coordinate in the
Summer 2018/19 semester, and that he was then told this would no longer
occur, and thus dismissed. This is different from a circumstance in which an
employee rejects an offer of reduced shifts, and resigns.
26. In circumstances where the Applicant was informed that he could no longer
perform any of the roles that he had hitherto performed, it is difficult to see how
this conduct could be characterised as anything but a dismissal at the initiative
of the employer.
The Respondent’s position, and the Applicant’s response
27. The above notwithstanding, the Respondent contents that “in circumstances
where work is offered it cannot be said that UTS had decided to terminate his
employment, or acted to terminate his employment”.213 No authority is cited by
the Respondent for this proposition.
28. The Respondent says that the Applicant must prove that the Applicant was
forced to resign because of the conduct, or a course of conduct, engaged in by
the UTS.214
29. First, there is no evidence that the Applicant ever used the word “resign”.
30. Second, even if the Commission were minded to accept the Respondent’s
submission (which is, apparently, that the employment limped along until 16
October 2018, when the Respondent offered the Applicant a reduced teaching
role in the Summer 2018/19 semester) section 386(2)(c) of the FW Act
recognises that a demotion involving a significant reduction in duties may
amount to a dismissal.
31. A “demotion” may result in the Applicant resigning his or her employment.
Alternatively, a “demotion” may result in the contract of employment being
terminated by the employer and, if the employee continues to work, the creation
of a new contact of employment.215
213 Respondent’s Outline of Submissions at [11].
214 Respondent’s Outline of Submissions at [16].
215 See, for example, Andrew Kenneth Charlton v Eastern Australia Airlines Pty Limited (C2006/2519) PR972773 (7 July
2006) .
[2019] FWC 3190
42
32. Whatever the case, the Applicant submits that where the removed (or not
offered) duties or responsibilities are substantive (in the sense of being a very
important aspect of the employment), and there is no right for the employer to
unilaterally remove those duties from the employee, a unilateral decision of an
employer to remove those duties (or to cancel a contract whereby those duties
are offered, and offer a new contract without those duties) will amount to a
dismissal (whether directly at the initiative of the employer, or by the rejection
of an offer by the employee).216
33. The significance of the Applicant’s coordination role is set out in the
Applicant’s evidence.217 It was the Applicant’s coordination role that facilitated
the Applicant developing and implementing the practical engagement aspect of
the postgraduate pricing subject. Coordination is also recognised as a significant
role by the Respondent. Lists of those employees who are coordinators of
particular subjects are published on the Respondent’s website.
34. Third, if the Commission considers that by the Applicant rejecting an offer on
16 October 2018 of employment in the position of teacher (but not coordinator),
the Applicant brought the employment relationship to an end, the following
facts are relevant:
a. the explanation(s) provided by the Respondent for the decision to not offer
coordination were that the Applicant’s employment cost too much
money,218 and that the Respondent had decided that casual employees
were not to perform coordination duties;219 and
b. the Applicant was being offered employment in circumstances where he
had:
i. already been told that he would perform coordination work and
teaching work in the Summer 2018/19 semester;
ii. been told, without notice by email, that he would not perform
coordination work;
iii. he had been told during a meeting that he would not perform
coordination or teaching work; and
iv. he had been told by subsequent email that he would not perform
coordination or teach work.
35. As to the reasons advanced by the Respondent (cost and basis of engagement),
neither provides a valid reason for the Respondent’s position.
36. The Applicant’s rate of pay is determined by the Respondent’s enterprise
agreement. The Respondent cannot punish the Applicant for an entitlement
arising under that document.
37. The characterisation of the Applicant as a casual employee is an issue in
contention. However, even if that characterisation is correct, the Applicant asked
to be recognised as a permanent part time employee. Again, the Applicant
216 See, for example, Mulhallen v Roy Morgan Interviewing Services Pty Ltd [2017] FWC 1942 at [19].
217 See for example, Burke Statement at [23].
218 Burke Statement [99].
219 Burke Statement [99].
[2019] FWC 3190
43
should not be the subject of an adverse determination simply because of his type
of employment.
38. Finally, the Respondent’s reliance on Andrew Kim v ORC International Pty Ltd
[2016] FWC 1029 (Kim) and City of Sydney RSL and Community Club v Ms
Roxana Balgowan [2018] FWCFB 5 (Balgowan) as authority for the proposition
that the common law concept of repudiation is not applicable to casual
employees does not assist the Commission.
39. In Kim, the Commission considered whether or not a decision to temporarily
remove an employee from a shift roster, subject to the return of a manager,
constituted a dismissal ([50] to [52]), and in the alternative whether or not the
conduct in removing the employee from a shift roster left the employee with no
alternative but to resign ([53] – [66]).
40. In Balgowan the Full Bench of the Commission was dealing with the question
of whether a decision to not offer shifts to a casual employee in the hospitality
industry was a constructive dismissal. The Full Bench held that it was not on the
basis that there was no contractual entitlement to work particular shifts at a
particular club ([29]). In the present case, the Applicant signed a contract on 30
July 2018 in respect of which the coordination work was expressly
contemplated.
41. Further, and consistent with the Applicant’s primary contention, the Full Bench
also observed that where an Applicant contends that he or she has not resigned,
which is the instant case, it is necessary for the Commission to determine
whether or not there has been a dismissal pursuant to section s386(1)(a) ([30]).
Conclusion
42. The Applicant submits that the issues in dispute should be resolved in favour of
the Applicant. Namely:
a. the Applicant was, in substance, engaged on an ongoing basis; and
b. the Applicant was dismissed within the meaning of section 386 of the FW
Act.”
[33] After the close of the hearing the Applicant further submitted that,
1. “There are two questions that the Commission is required to determine.
a. Was the Applicant dismissed, and if so on what date?
b. As at the date of dismissal, had the Applicant completed the minimum
period of employment, whether by reason of his being a permanent part-
time employee, or regular and systematic casual employee?
2. During oral submissions, the Commission was provided with a folder of
authorities on behalf of the Applicant. Due to time constraints, the Applicant
was unable to assist the Commission by directing the Commission’s attention to
those aspects of each decision that the Applicant considers to be relevant.
3. These submissions are provided in order to assist the Commission in its task.
Dismissal
4. The Applicant provides the following brief chronology.
2011 to 2017 – Applicant teaches and coordinates the pricing subjects
[2019] FWC 3190
44
As to the importance, status and pay of the Applicant’s role as a coordinator,
the Applicant refers particularly to the following:
o Paragraphs [23], [24], [31], [55], [59], [123] [132] of the Applicant’s
Statement (which were unchallenged);
o The Applicant’s evidence on re-examination; and
o Professor Rhodes evidence during cross-examination, particularly
following the lunch adjournment.
November 2017 – Applicant offered teach and coordination work in the
Summer 2018/19 semester: Applicant’s Statement [55] – [57], Applicant’s
Facts [69] – [71]
5 January 2018 – Applicant listed as coordinator for Autumn 2018 and
Summer 2018/19; Applicant’s Facts [75]
Autumn 2018 – Applicant teaches and coordinates the pricing subjects
18 July 2018 – email exchanges regarding the summer 2018/19 coordination
contract
23 July 2018 – Summer 2018/19 “Appointment” nominally starts: ASoF [109]
+ Pages 307 and 308 of the Annexure to Burke Statement
24 August 2018 – Applicant thanked for agreeing to “teach” in Summer
2018/19, but advised he will not “coordinate” in Summer 2018/19: Applicant’s
Facts [113]
24 August 2018 – Applicant remains listed as coordinator on website:
Applicant’s Facts [114]
24 August 2018 – Applicant describes events as a demotion: Applicant’s Facts
[115]
24 August 2018 to 19 September 2018 - August 2018 – Professor Rhodes and
Professor Tam confer regarding the Applicant: Rhodes XXM
27 August 2018 – Professor Tam sends email to Professor Rhodes: Applicant’s
Facts [119B]
27 August 2018 – Rhodes emails Applicant: Applicant’s Facts [119]
27 August 2018 – Applicant proposes fractional contract: Applicant’s Facts
[121]
30 August 2018 – Professor Tam and Professor Rhodes discuss the Applicant’s
remuneration: Applicant’s Facts [121C] – [121D]
17 September 2018 – Professor Tam and Professor Rhodes email Professor
Denize about AQ+1 RULE: Applicant’s Facts [121H]
17 September 2018 – Professor Tam says to Professor Rhodes that Applicant
does not meet any of the four criteria: Applicant’s Facts [121K]
19 September 2018 – Meeting between Applicant and Professor Rhodes
19 September 2018 – Professor Tam confirms that she will teach the “PG
subject John Burke taught before”: Applicant’s Facts [122A]
27 September 2018 – Professor Rhodes writes that (emphasis added) “subject
coordination of the subjects you have taught back in-house and will not be
asking you to teach on the upcoming Pricing subject: Applicant’s Facts [124]
16 October 2018 – Rhodes email to Applicant, position changes re teaching:
ASoF [128]
17 October 2018 – Unfair dismissal filed
[2019] FWC 3190
45
5. The Applicant says that there are two different dates on which a dismissal
occurred. The arguments are run in the alternative.220 Either:
a. 27 September 2018 (being the date on which the Respondent said in
writing that the Applicant would not coordinate any subjects, and would
no longer teach during the Summer 2018/19 semester); or
b. 16 October 2018 (being the date on which the Applicant confirmed that
the Applicant would not coordinate any subjects, but would again be asked
to teach during the Summer 2018/19 semester).
6. In considering whether the conduct of 27 September 2018 amounted to a
dismissal event, the Applicant relies upon:
a. Tab 2 of the authorities bundle, being Barkla v G4S Custodial [2011]
FWAFB 3769, and particularly [24] at which reliance in placed on the
decision of Mohazab. Particularly, the Applicant says that if the conduct
has the “probable result of bringing the employment relationship to an
end” a dismissal event has occurred. In other words, an intention to
dismiss on behalf of the Respondent is not a necessary ingredient in a
finding that a dismissal has occurred.
b. Tab 7 of the authorities bundle, being O’Meara v Stanley Works Pty Ltd
PR 973462, at [23].
c. Tab 11 of the authorities bundle, being Thi Nho Tran v Bupa Dental
Corporation Pty Ltd [2018] FWC 3237 at [78].
d. Tab 6 of the authorities bundle, being Mulhallen v Roy Morgan [2017]
FWC 1942 at [19].
7. The Applicant, in short, submits that conduct by which the Applicant determined
that it would no longer offer coordination work, or teaching work to the
Applicant – being the very work that the Applicant had performed regularly for
the past six to seven years, objectively viewed is conduct that would have the
probable result of bringing the employment relationship to an end.
8. The Respondent’s conduct after that date, as a means to alter the effect of its
earlier decision, do not transform the events leading up to and including 27
September 2019.
9. In the event the Commission is not persuaded by this submission, the
Applicant’s alternate argument is that the Respondent’s conduct on 16 October
2018 amounted to a demotion dismissal.
10. In this regard, the Applicant relies on the following authorities.
a. Tab 4 of the authorities bundle, being Harrison v FLSmidth Pty Ltd [2018]
FWC 6695 generally, but particularly at [33], and [36] – [38].
b. Tab 5 of the authorities bundle, being Moyle v MSS Security [2016]
FWCFB 372 at [8] – [9].
c. Tab 1 of the authorities bundle, being Charlton v Eastern Australian
Airlines Pty Limited [2006] AIRC 393 generally.
220 See Questions 1.2, 1.3 and 1.4 of the Unfair Dismissal Application. At 1.4 the Applicant writes “I am realty not sure what
date to apply…”.
[2019] FWC 3190
46
11. The Applicant submits that, in determining whether or not there has been a
demotion, the Commission should compare the position of the Applicant as at 23
August 2018 (as a teacher and coordinator) with the offer on 16 October 2018
(to work as a teacher).
Minimum Employment
12. The Applicant provides the following brief chronology.
9 August 2010 – employment starts: Applicant’s facts [2]
11 October 2012 – Applicant informed of plan to have him coordination in
2013: Applicant’s facts [5]
24 June 2013 – Mr Lee acknowledges that the Applicant needs year round
access as he continues to perform a small amount of work between semesters:
Applicant’s facts [8]
4 October 2013 – Confirmation of Respondent’s “plan” to have the Applicant
teach and coordinate in 2014: Applicant’s facts [9]
8 July 2014 – Applicant “resigns”: Applicant’s facts [13]
10 September 2014 – Applicant asked to perform coordination work:
Applicant’s facts [14]
27 October 2014 – Applicant asked to participate in working group for
Respondent: Applicant’s facts [15]
30 October 2014 – Applicant meets to discuss Respondent’s pricing structure:
Applicant’s facts [16]
6 November 2014 – Respondent confirms “plan” to have Applicant teach and
coordinate in 2015: Applicant’s facts [23]
19 to 22 December 2014 – Respondent recognises the need for the Applicant
to maintain year-round access to Respondent’s IT systems: Applicant’s facts
[24] – [25]
3 January 2015 – Appointment nominally starts: Applicant’s facts [28]
15 January 2015 – Applicant is allocated new desk: Applicant’s facts [40]
26 June 2015 – Appointment nominally ends: Applicant’s facts [28]
3 August 2015 – Applicant invited to be member of DG external engagement
committee: Applicant’s facts [41]
4 August 2015 – Applicant accepts invitation: Applicant’s facts [42]
15 September 2015 – Respondent describes Applicant as subject coordinator:
Applicant’s facts [45]
3 November 2015 – Respondent confirms discussion that would coordinate
and teach in 2016: Applicant’s facts [46]
November 2015 – Applicant attends a DG external engagement committee
meeting: Applicant’s facts [48]
14 March 2016 – Applicant signs 2016 document: Applicant’s facts [49]
19 March 2016 – Appointment nominally starts: Applicant’s facts [49]
7 April 2016 – Teaching pricing for Autumn 2017 is confirmed: Applicant’s
facts [57]
8 July 2016 – 2016 appointment nominally ends: Applicant’s facts [58]
15 August 2016: Respondent refers to Applicant in article: Applicant’s facts
[60]
14 November 2016: Teaching for Autumn 2017 confirmed again: Applicant’s
facts [61]
[2019] FWC 3190
47
16 November 2016: Applicant attends UTS event: Applicant’s facts [62]
27 February 2017 – Appointment nominally starts: Applicant’s facts [64]
6 March 2017 – Applicant signs contract: Applicant’s facts [64]
1 July 2017 – Appointment nominally ends: Applicant’s facts [64]
Between 2 July 2017 and 1 February 2018:
o the Applicant sends around 219 UTS Related Emails JB [148].
Evidence unchallenged that “some emails are replying to students and
staff and some were liaising with Shopfront” JB [148] and PN954.
o Handles last minute problems, rescheduling exams, finalising marks,
varying student results, responding to students about their results,
reviewing their projects, reviewing their assessments, planning for the
new semester: PN953
o Performs coordination work: PN377, PN379
19 September 2017: Reference to the Applicant as “our John Burke”:
Applicant’s facts [66]
26 October 2017: Applicant attends Respondent committee meeting:
Applicant’s facts [67]
16 November 2017: Applicant attends Respondent committee meeting:
Applicant’s facts [68]
16 November 2017: Applicant confirmed for Autumn 2018: Applicant’s facts
[69]
17 November 2017: Applicant asked for Summer 2018/19: Applicant’s facts
[70]
20 November 2017: Applicant confirmed for Summer 2018/19: Applicant’s
facts [70]
28 November 2017: Applicant receives Summer 2018/19 schedule:
Applicant’s facts [70]
21 December 2017: Respondent refers to Applicant twice on social media:
Applicant’s facts [73] – [74]
5 January 2018: Applicant listed as subject coordinator for Autumn 2018 and
Summer 2018/19: Applicant’s facts [75]
16 January 2018: Applicant asked to undertake subject coordination work:
Applicant’s facts [76]
24 January 2018: Applicant performs subject coordination work: Applicant’s
facts [77]
12 February 2018: Applicant signs Autumn 2018 contract: Applicant’s facts
[81]
14 February 2018: Applicant completes subject outline document: Applicant’s
facts [82]
19 February 2018 – Appointment nominally starts: Applicant’s facts [81]
8 July 2018 – Appointment nominally ends: Applicant’s facts [81]
9 July 2018 – Applicant receives email relating to employment as coordinator:
Applicant Facts [94A]
10 July 2018 – Applicant receives email relating to employment as
coordinator: Applicant Facts [94B]
11 July 2018 - Applicant receives email relating to employment as coordinator:
Applicant Facts [94C]
12 July 2018 – 8 payments to Applicant: ASoF [95]
[2019] FWC 3190
48
13 July 2018 – Applicant performs coordination work: Applicant Facts [95A]
– [95F]
16 July 2018 – Applicant performs coordination work: Applicant Facts [95G]
– [95H]
17 July 2018 – Applicant performs coordination work: Applicant Facts [95I]
18 July 2018 – Autogenerated email and discussions about offering contract
19 July 2018 Applicant performs coordination work: Applicant Facts [95J]
19 July 2018 Applicant performs coordination work: Applicant Facts [95I]
19 July 2018 – Applicant included in email planning for 20 September 2018
meeting: Applicant’s facts [106]
23 July 2018 – Appointment nominally starts: Applicant’s facts [109] + Pages
307 and 308 of the Annexure to Burke Statement
25 July 2018 – Email explaining contract: Applicant’s facts [108]
30 July 2018 – Applicant signs contract: Applicant’s facts [109] + Pages 307
and 308 of the Annexure to Burke Statement
13. The Applicant does not abandon the submission that he was, at the time of his
employment, a part-time employee. The Applicant respectfully submits that the
test as outlined in the decision of WorkPac Pty Ltd v Skene [2018] FCAFC 131
is that which is to be applied in determining the question. The Applicant relies
upon its opening written submissions in this regard, particularly [12].
14. In resisting this argument, the Respondent relies heavily on the words of the
contract. The Applicant makes the following observations:
a. the Respondent has not established, in evidence, that the Applicant was
provided with the full terms and conditions document on each occasion
that he was nominally appointed; and
b. close regard should be had to the words of the document signed by the
Applicant. The document stats (emphasis added):
I have read and accept the Conditions of Appointment below and I
accept Contract of Employment as specified in this form
c. there is no document in evidence described or titled “conditions of
appointment”. The document relied upon by the Respondent as containing
terms relevant to the Applicant is titled “Conditions of Employment”:
Applicant’s Facts [32] – [34]; and
d. the “form” is described as the contract of employment. The “form” makes
no reference to casual loading, or other features ordinarily associated with
casual employment.
15. In the alternative, the Applicant contends that his employment was as a regular
and systematic employee, and that he had, during his employment, a reasonable
expectation of ongoing employment.
16. The Applicant relies upon the following authorities:
a. Tab 10 of the authorities bundle, being Ponce v DJT Staff Management
Pty Ltd [2010] FWA 2078 at [64] – [66].
b. D Grey v Ardmona Foods [2000] AIRC 338 at [31] – [33] (a copy of
which was provided to the Commission in hard copy).
[2019] FWC 3190
49
c. Tab 12 of the authorities bundle, being Thomas v Warra Vineyard [2014]
FWC 513 at [21].
d. Tab 8 of the authorities bundle, being Hartson v Australian Leisure &
Hospitality [2019] FWC 41 at [69] and [71].
e. Tab 17 of the authorities bundle, being Shortland v Smiths Snackfood Co
Limited [2010] FWAFB 5709 at [10] – [13].
f. Tab 9 of the authorities bundle, being Palpal-Latoc v Cloud Catcher
[2018] FWC 3746 at [10].
g. Tab 13 of the authorities bundle, being Tital Plant Hire v Van Malsen
[2016] FWCFB 5520 at [26].
h. Tab 18 of the authorities bundle, being Beeton v Toowoomba Community
Housing Services Inc [2013] FWC 896 at [29] – [31].
i. Tab 16 of the authorities bundle, being Price v United Management
Services Pty Ltd [2013] FWC 4227 at [16] and [28].
j. Tab 19 of the authorities bundle, being Tilbrook v Willall Industries Pty
Ltd [2011] FWA 6300 at [24], [31] and [36].
k. Tab 3 of the authorities bundle, being Calleri v Swinburne Uni of Tech
[2017] FWC 2702 at [44], and noting that the facts at [39] and [55]
demonstrate that the facts in Calleri are distinguishable from the facts in
the instant case.”
Respondent’s final submissions
[34] Prior to the close of the hearing the Respondent submitted that,
1. “UTS has taken two jurisdictional objections to the application.
2. First, that Mr Burke is not protected from unfair dismissal because he has not
completed a period of employment with UTS of at least the minimum
employment period.
3. Second, that Mr Burke was not dismissed.
4. UTS has filed an Outline of Submissions dated 6 December 2018 and Outline of
Submissions in Response dated 14 January 2018. UTS supplements these
submissions below.
5. The Commission indicated at the hearing:
“Before I can establish whether someone has been unfairly dismissed,
which means I have to be satisfied that they have been dismissed, I must
first satisfy myself that they are protected from unfair dismissal. So the
ME point, the MEP point, has to be determined in advance of the dismissal
point because if I determine he hasn't met the minimum employee period
then I don't need to go on to determine whether or not he was
dismissed. I'm just telling you that's how I propose to deal with it. I plan
to deal with the MEP point first. I'm required to, and then if he satisfied
the minimum employment period I will then address the dismissal point
under 385.”221
221 PN 93.
[2019] FWC 3190
50
6. If either jurisdictional objection was upheld, then the Application should be
dismissed and the other objection need not be determined.
Minimum Employment Period
7. UTS contends that Mr Burke has not had continuous service on a regular and
systematic basis or could have had a reasonable expectation of continuing
employment on that basis.
8. The Fair Work Act 2009 (FW Act) provides that a person who is protected from
unfair dismissal includes a person who is an employee who has completed a
period of employment with his or her employer of at least the minimum
employment period. The relevant minimum period of employment for this
matter is six months.
9. The FW Act defines ‘period of employment’ in s.384(1) as follows:
“An employee’s period of employment with an employer at a particular
time is the period of continuous service the employee has completed with
the employer at that time as an employee.”
10. The FW Act then goes on to provide in s.384(2) that:
“(2) However:
(a) a period of service as a casual employee does not count towards
the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular
and systematic basis; and
(ii) during the period of service as a casual employee, the
employee had a reasonable expectation of
continuing employment by the employer on a regular
and systematic basis; and
....”
11. The determination of whether an employee’s period of employment “at a
particular time” meets the six month minimum requirement of s.383 of the FW
Act is prescribed by s.384(1) of the FW Act. If “the” period of “continuous”
service “at that time” is six months, then the requirement of s.383 is met.
12. Section 384(2) of the FW Act provides which periods of casual service should
count in ascertaining the employee’s period of employment. A period of casual
service may only count in that calculation if the circumstances of s.384(2)(a)(i)
and s.384(2)(a)(ii) exist.
13. The approach to be taken to the minimum employment period is summarised by
DP McCarthy in Leslie Holland v UGL Resources Pty Ltd,222 with reference to
Shortland v The Smith’s Snack Co. Ltd223 as follows:
“The determination of whether an employee’s period of employment “at a
particular time” meets the six month minimum requirement of s.383 is
222 [2012] FWA 3453.
223 [2010] FWCAFB 5709.
[2019] FWC 3190
51
prescribed by s.384(1). If “the” period of “continuous” service “at that
time” is six months, then the requirement of s.383 is met.”224
“Section 384(2) provides which periods of casual service should count in
ascertaining the employee’s period of employment. A period of casual
service may only count in that calculation if the circumstances of (a)(i) and
(ii) exist.”225
…
“The wording in s.384 with respect to various times and periods is
specific. Firstly, s.384 refers to “a” period of employment “at a particular
time”. It also states that “the” period of employment is “the” period of
service completed “at that time”. The period of employment clearly must
be “a” singular period of service and not multiple or a plurality of periods
of service. That singular period also must be a singular “continuous”
period of service “at that time”. The meaning of a period of service then
envisages different periods of service but only the last of those periods of
service count for the purpose of ascertaining the length of the period.
Other periods, which may be previous periods of service, do not count.
What s.384(2) then specifies is that “a” period of service as a casual does
not count towards the employee’s period of employment unless it has the
characteristics of being regular and systematic and expected to continue on
that basis. The period of service referred to in s.384(2)(a) is “a” singular
period. What s.384(2)(a) and (b) do is to regard regular and systematic
engagements as “a” period of service.
Importantly, s.384(2) does not refer to a plurality of periods of service to
determine the nature of the relationship but rather, the nature of the
relationship is determined by the nature of the one singular period. There
is no notion of counting discrete periods of prior service. Thus, s.384(2)
does not alter the condition attached to s.384(1) viz; that the period of
service at a particular time needs to be a continuous period.
Section 12 of the FW Act prescribes that “continuous service” has a
meaning affected by s.22. “Service” and “continuous service” are dealt
with in s.22 as follows:
“(1) A period of service by a national system employee with his or her
national system employer is a period during which the employee is
employed by the employer, but does not include any period (an
excluded period) that does not count as service because of
subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other
than:
224 At [13].
225 At [14].
[2019] FWC 3190
52
(i) a period of absence under Division 8 of Part 2-2 (which
deals with community service leave); or
(ii) a period of stand down under Part 3-5, under an
enterprise agreement that applies to the employee, or
under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the
regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s
continuous service with his or her national system employer, but
does not count towards the length of the employee’s continuous
service.”
Continuous service is not expressly defined by either s.12 or s.22. Rather,
s.22(3) deems what would otherwise be service that is not continuous, to
be continuous for periods of particular types of “absences”. Therefore,
other than for the deeming effect of s.22(3), “continuous service” should
be given its ordinary meaning. The Macquarie Dictionary gives two
meanings to “continuous” relevant here:
1. having the parts in immediate connection, unbroken; and
2. uninterrupted in time; without cessation.
In addressing the meaning of continuous the service at the time of the
termination I should consider answers to questions such as whether it had
parts in immediate connection? Was it unbroken? Was it uninterrupted in
time? Was it without cessation? The services cannot be continuous if there
were periods of absence. But if the absences were of a type within the
meaning of s.22(2), then the service is deemed to be continuous.
Whether “a” period of service which is casual counts for that calculation
and purpose, depends on whether it meets the requirements of s.384(2).”226
14. Leslie Holland v UGL Resources Pty Ltd was also applied by DP Booth in Van
Kampen v Transfield Services [2013] FWC 8127 at [36] to [38].
Continuous Employment on a regular and systematic basis?
15. UTS contends that Mr Burke’s service was not continuous for the purposes of
s.384 of the FW Act when he alleges, contrary to the position of UTS, that he
was dismissed.
16. The contract under which Mr Burke was employed, and under which UTS say
he continued to be employed, was #1333911 for the period 23 July to 18
November 2018.
17. Work under that contract could not be recorded as regular and systematic. Mr
Burke had never previously had a casual contract for work at that time. The
226 At [16] to [22]
[2019] FWC 3190
53
contract was for a total of one hour’s work/pay and was only issued so that he
would have email access if required.227
18. Mr Burke could not have had a reasonable expectation that such work would
continue as, for amongst other reasons, this was the first time the subject had
been offered in the Summer session. Michael Lee alerted him to the risk in an
email of 18 July 2018 “that the subject doesn’t run for some reason”.228
19. His previous casual contracts for the pricing subjects were for the Autumn
Session 2018 (the period 10 March 2018 to 30 June 2018) and the Autumn
sessions only in 2017, 2016 and 2015.
20. Each casual engagement was pursuant to a separate casual academic contract.
Each such contract stated, amongst other things:
“This is a casual contract of employment and does not entitle the
Employee to subsequent employment with UTS.”
21. Mr Burke has not been employed continuously by UTS. Mr Burke had various
casual engagements with UTS between 2010 and 5 July 2013. This was
followed by a number of fixed term contracts, the last of which ceased, due to
Mr Burke’s resignation, on 8 June 2014. The cessation of this fixed term
contract constituted a break in service. While difficult circumstances are pointed
to for this resignation, it does not matter for the purposes of determining
“continuous service” under the FW Act as to what the circumstances were of the
employment ending. It still means that the employment and the service at that
juncture came to an end.229
22. Mr Burke gave the following evidence in relation to his employment from 2015:
“And so that period from 15 January 2015 to 16 July 2015 is you teaching
and coordinating in the pricing subject in the autumn semester of 2015. Is
that correct? It ends on 16 July.
Yes. That's what I'm saying. That period from January to July, is that you
teaching and coordinating in the Autumn of 2015? Yes, Commissioner.
Right. And then you will see the next payment is 24 March 2016. Do you
see that? Yes.
And so you had 36 weeks break in your employment. Is that right? From
July to - in paid employment. Yes, Commissioner.
Right. And then look over to page 4 and the sixth last row says 28 July
2016. Do you see that? Yes, Commissioner.
So going back to page 3, where it starts on 24 March 2016, over to page 4,
28 July 2016, is that you teaching and coordinating in the pricing subject
in the autumn semester of 2016? Yes, Commissioner.
And you will see after that, the next entry is 23 March 2017. Is that right?
That's correct.
227 PN861/862
228 PN862
229 Leslie Holland v UGL Resources Pty Ltd at [34].
[2019] FWC 3190
54
So there was a break there are some 34 weeks when you weren't getting
paid by the University. Is that right? That's correct, Commissioner.
And come across to page 6, a little over halfway down you will see an
entry 13 July 2017. Do you see that? Yes, Commissioner.
For $69.70. So from page 4 where it starts, 23 March 2017, over to page 6
where it says 13 July 2017, that's you teaching and coordinating the
pricing subject in the Autumn semester of 2017. Is that right? Yes,
Commissioner.
And then the next payment is 22 February. So you had a break of 32
weeks without being paid by the University. Is that right? Yes,
Commissioner.
Right. So 22 February 2018, then come across to page 9, and you will see
an entry 12 July 2018? That's right.
So that period of 22 February 2018 through to 12 July 2018, is that you
teaching and coordinating the pricing subject in the autumn of 2018? The
autumn semester? Yes. I've got a feeling one of the 12th ones is as well.
One of the 12 July ones is also. It's possible, because I remember the
contract went to July. I might be wrong on that. I can check.
All right. But then the next entry - so for weeks later there is a payment on
8 August and that goes through to 29 November. Now that's the
coordination of the spring semester. Isn't that right? That's right.”230
Mr Burke later corrected this evidence to say that he did not teach in Spring
semester and that this payment related to the Summer semester.
23. In summary, there were breaks of 36 weeks between the 2015 and 2016
engagements, 34 weeks between the 2016 and 2017 engagements and 32 weeks
between the 2017 and 2018 engagements.231
24. These contracts may be considered to be a plurality of periods of service but
could not be considered to be one singular period for the purposes of the FW
Act, and should not be regarded as part of the minimum employment period
required by the FW Act.
25. This is particularly so having regard to the fact that each casual contract was
separate and expressed to not entitle Mr Burke to further casual contracts, and
the very substantial intervals (over 30 weeks) between each of the contracts.
26. Such lengthy breaks between engagements breaks continuous service.
27. These intervals could not be regarded as due to leave or factors referred to in
s.22 of the FW Act. These intervals related to periods when employment had
come to an end because the contract had been completed. Further, during these
intervals Mr Burke was conducting a separate business, ……….
Reasonable expectation of Continuing Employment
230 PN 709 to 723.
231 PN734.
[2019] FWC 3190
55
28. Even if it could be argued that the engagement was regular and systematic, it
needs to also be established under s.384(2)(a)(ii) of the FW Act that the
employee had a reasonable expectation of continuing employment on that basis.
29. The expectation must be “reasonable”. An expectation based “upon inferences
that could not reasonably be drawn from the material” would be unreasonable232.
30. What is clear from the requirement in s.384(2)(a)(ii) of the FW Act of a
reasonable expectation that work would continue on a regular and systematic
basis is that more is required then establishing that there has previously been
regular and systematic work as required by s.384(2)(a)(i) of the FW Act.
31. In this regard, there is nothing that Mr Burke points to that UTS had said or done
to give him such a reasonable expectation. In fact, it is clear that UTS was
careful not to give him any such expectation despite Mr Burke making it clear to
UTS that he was concerned that it was not providing him with a firm
commitment to future engagements.
32. The fact that there was no firm advanced commitment to future engagements
was expressly stated in each casual academic employment contract under which
Mr Burke was engaged. Point 12 of the Conditions of Employment, which were
part of the Casual Academic Contract, stated:
“This is a casual contract of employment and does not entitle the
Employee to subsequent employment with UTS.”
33. When such statements have been made, the FWC has accepted that there should
be no expectation of continuing employment. In Leslie Holland v UGL
Resources Pty Ltd it was stated:
“Even if the periods of employment were regular and systematic, I do not
consider the Applicant should have had a reasonable expectation of
continuing employment on that basis. UGL made it clear on each occasion
that there should be no expectation.”233
34. UTS acted consistently with Mr Burke’s contract in not giving him an
expectation of continuing employment.
35. When he was engaged in 2015 Professor Pam Morrison (Professor Morrison)
(the then Professor and Head of Marketing Discipline Group) said to him that
there was no guarantee of continuing engagements.234
36. On 15 March 2016, Mr Burke emailed Professor Morrison “asking for your [her]
commitment for coordinating 24224 and 24760 in Autumn 2017 and beyond”.235
37. When Professor Morrison had not responded, he emailed Professor Taylor on 22
March 2016 concerned that “my coordinating position may come to an end as
they plan to appoint someone else; either with a PHD or for some other reason,
to run the two subjects from next year” and that he did not want to “feel” that “I
will be out of a job in 2017”.236
232 See Byrne v Australian Airlines Ltd (1995) 185 CLR at 465.
233 At [32].
234 PN 619.
235 Statement of John Burke at page 187.
236 Ex 10.
[2019] FWC 3190
56
38. On 23 March 2016, Professor Morrison, emailed the Mr Burke stating that:
“Current planning would have you teaching pricing (ug and pg) in
Autumn 2017, and this is the most likely outcome. As I’ve said to
you previously I can’t guarantee what the DG needs will be in 2017,
but with current information I have I will be asking you to teach
again in 2017.”237
39. On 24 March 2016, Mr Burke emailed Professor Morrison again about
uncertainty as to whether he would continue to be involved in the Pricing
subject. Professor Morrison responded on the same day stating:
“When we spoke in 2015 I did say I was unable to guarantee you
teaching Pricing forever, because as the recruitment of new
academics continue, at some stage in the future ‘pricing’ may get
taught by one of the new academics. However I don’t see this
happening before 2018 at the earliest.”238
40. Mr Burke responded on 24 March 2016 saying “I don’t really care about your
academic replacement policy”.239
41. In 2016, Mr Burke applied for the continuing full-time positon of Scholarly
Teaching Fellow so that he could have certainty about his employment
continuing but his application was unsuccessful.240
42. Similarly, no firm advanced commitment to casual contracts was expected of Mr
Burke. Mr Burke was free to accept or reject each contract when it was offered:
“And each and every time that you were engaged as a casual employee on
a contract, you were given a new contract? Yes.
And you were - it was for you to decide whether to accept it or not?
Yes.”241
43. This absence of a requirement for a firm advanced commitment from Mr Burke
was also apparent from the email of Michael Lee of 25 July 2018242 in which it
is indicated that the contract can be cancelled if Mr Burke decides that he does
not wish to teach the subject in the Summer Session.
44. Professor Morrison’s successor, Professor Tam, similarly gave no firm
commitment but invited expressions of interest from the pool of academics in
the Marketing Department, including Mr Burke, as to the subjects that each
academic would be interested in teaching (pricing being one such subject).
45. Asking other academics, as well as Mr Burke, to express interest in teaching
pricing, could not give any expectation to Mr Burke that there was a firm
commitment to his involvement in the subject.
46. It is also noteworthy in the emails referred to above (in which Mr Burke sought
certainty as to coordinating and teaching pricing) that he received the responses
237 Statement of John Burke signed 3 January 2019, Annexure JB-19 page 186.
238 Statement of John Burke signed 3 January 2019, Annexure JB-19 pages 185-186.
239 Statement of John Burke, Annexure JB-19 pages 185 to 188.
240 Statement in Reply of Professor Carl Rhodes signed 14 January 2019, paragraph 6.
241 PN670 and 671.
242 Attachment C to Professor Rhodes Statement.
[2019] FWC 3190
57
set out above addressing teaching but at no stage was any representation made to
him, despite his empathic requests, in relation to coordinating the pricing
subjects.
47. There was generally no certainty of engagement until a casual contract was
issued. Casual contracts were generally not issued until the time of the
engagement commencing.
48. In relation to the Summer Session, while a contract had been issued for
coordination of the post graduate pricing subject it could not be regarded as a
firm commitment as it was conditional upon whether Mr Burke was to be the
coordinator, whether he wanted to teach the subject and whether the subject was
to run at all.
49. Accordingly, there was never a firm advanced commitment from UTS, or Mr
Burke, in relation to the contract for the Summer session.
Mr Burke’s alternate submission – part-time employment
50. Despite it being patently clear that Mr Burke was engaged and paid as a casual
employee, he puts an alternate submission that he was a part-time employee.243
51. It is not apparent how, if it cannot ever be established that the employment was
regular and systematic with a reasonable expectation that it would continue on
that basis, that it could be reasonably asserted that Mr Burke was a part-time
employee.
52. The meaning to be given to casual employment for the purposes of Part of the
FW Act dealing with unfair dismissal was set out by the Full Bench in Telum244
as follows:
“The FW Act makes special provision in relation casual employees
accessing the unfair dismissal remedy. Relevantly for present purposes, an
employee is not protected from unfair dismissal by the FW Act unless her
or she has “has completed a period of employment with his or her
employer of at least the minimum employment period” (s.382(a)). The
minimum employment period is 6 months or 12 months depending upon
whether the employer is a “small business employer” (s.383). The
expression “period of employment” is defined in s.384 which relevantly
provides:
384 Period of employment
(1) An employee’s period of employment with an employer at a
particular time is the period of continuous service the employee has
completed with the employer at that time as an employee.
(2)However:
(a) a period of service as a casual employee does not count
towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular
and systematic basis; and
243 PN 96.
244 Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434.
[2019] FWC 3190
58
(ii) during the period of service as a casual employee, the
employee had a reasonable expectation of continuing
employment by the employer on a regular and systematic
basis; ...
Again, the language of s.383(2)(a) presupposes that an employee
employed on a regular and systematic basis with a reasonable expectation
of continuing employment on a regular and systematic basis can still be a
“casual employee”. A conclusion at odds with the general law approach
adopted by the Commissioner.
In summary, the FW Act provides for the regulation of terms and
conditions of employment of national system employees through an
interrelated system of the National Employment Standards, modern
awards, enterprise agreements (and, in some cases, workplace
determinations or minimum wage orders). Having regard to the objects
and purpose of the legislation, it is obvious that the legislature intended
that those components should interact consistently and harmoniously. We
conclude that on the proper construction of the FW Act the reference to
“casual employee” in s.123(3)(c) and the rest of the NES - and, indeed,
elsewhere in the FW Act - is a reference to an employee who is a casual
employee for the purposes of the Federal industrial instrument that applies
to the employee, according to the hierarchy laid down in the FW Act (and,
if applicable, the Transitional Act). That is, the legislature intended that a
“casual employee” for the purposes of the NES would be consistent with
the categorisation of an employee as a “casual employee” under an
enterprise agreement made under Part 2-4 of the FW Act (or under an
“agreement based transitional instrument” such as a workplace agreement
or certified agreement made under the WR Act) that applies to the
employee or, if no such agreement applies, then consistent with the
categorisation of an employee as a “casual employee” within the modern
award that applies to the employee. Subject to any terms to the contrary, a
reference to a “casual employee” in an enterprise agreement (or agreement
based transitional instrument) will have a meaning consistent with the
meaning in the underpinning modern award (or pre-reform
award/NAPSA).”245
53. In the subsequent case of MacMahon246, which, like WorkPac Pty Ltd v
Skene247, was considering annual leave entitlements, the Federal Court took a
more general law approach to the meaning of casual to that taken by the Full
Bench in Telum.
54. The MacMahon judgment was considered by the Full Bench in the Casual
Conversion case but the Full Bench followed and endorsed its approach in
Telum.248
55. The judgment in Skene dealt with annual leave entitlements not the minimum
employment period provisions for access to unfair dismissal. These provisions
245 At [56] to [58].
246 MacMahon Mining Services Pty Ltd v Williams [2010] FCA 1321.
247 [2018] FCAFC 131.
248 Skene at [78] to [82].
[2019] FWC 3190
59
have a very different history to the NES provisions. While the Full Court in
Skene makes more broad ranging comments regarding casual employment, they
are properly described as obiter.
56. The effect of Telum is that, even if a casual is employed on a regular and
systematic basis for a long period with a commitment to ongoing employment
they can remain, subject to any casual conversion rights, characterised as a
casual employee.
57. The approach of the Full Bench in Telum remains the appropriate authority for a
member of the FWC to apply in an unfair dismissal case.
58. Even if the more narrow view of casual employment referred to in Skene was
taken, Mr Burke would not be considered to be a part-time employee.
59. In Skene, the Full Court discusses the distinction between the types of
employment as follows:
“A “type” of anything is usually distinguished by a characteristic or
perhaps several characteristics not present in other categories of a like
nature. The characteristic that distinguishes full-time and part-time
employment is that those employments are on-going (sometimes called
“permanent”) employments. On-going employment does not mean
life-long employment (McClelland v Northern Ireland General Health
Services Board [1957] 1 WLR 594 at 601 (Lord Goddard); Haley v Public
Transport Corporation of Victoria (1998) 119 IR 242 at [82] (Ashley J) but
on-going employment is employment for an indefinite term subject to
rights of termination (McClelland at 601 (Lord Goddard)). It is
characterised by a commitment by the employer, subject to rights of
termination, to provide the employee with continuous and indefinite
employment according to an agreed pattern of ordinary time (as distinct
from overtime) work. A corresponding commitment to provide service is
given by the employee. What distinguishes a full-time employee from a
part-time employee is the pattern of work agreed to. A full-time
employee’s pattern of work will be the ordinary full-time hours applicable
at the particular workplace (eg eight hours each week-day). A part-time
employee’s pattern of work will be a fixed number of ordinary hours, the
number of hours being less that the full-time ordinary hours applicable at
the workplace, worked at a regular time on regular days (eg 9.00 am to
1.00 pm every Monday, Tuesday and Thursday)”. 249
“Whether the requisite firm advance commitment to continuing and
indefinite work (subject to rights of termination) is absent or present must
be objectively assessed including by reference to the surrounding
circumstances created by both the contractual terms and the regulatory
regime (including the FW Act, awards and enterprise agreements)
applicable to the employment.”
“The payment by the employer and the acceptance by the employee of a
casual loading, like the description of the type of employment given by the
parties in their contractual documentation, speaks to the intent of the
parties to create and continue a casual employment. But the objective
249 At [171].
[2019] FWC 3190
60
assessment will need to consider whether that intent has been put into
practice and if achieved, has been maintained. The objectively
demonstrated existence of a firm advance commitment to continuing and
indefinite work (subject to rights of termination) according to an agreed
pattern of work will ordinarily demonstrate a contrary intent and the
existence of on-going full-time or part-time employment rather than casual
employment. The key indicators of an absence of the requisite firm
advance commitment will be irregularity, uncertainty, unpredictability,
intermittency and discontinuity in the pattern of work of the employee in
question. Those features will commonly reflect the fact that, whilst
employed, the availability of work for the employee is short-term and not-
ongoing and that the employer’s need for further work to be performed by
the employee in the future is not reasonably predictable.”250
“Furthermore, WorkPac contended that the fact that the WorkPac
Agreement defined or described Mr Skene as a casual employee was
“highly relevant if not determinative”. We agree that if the Agreement had
defined or described Mr Skene as a casual employee, for the purposes of s
86 of the FW Act, that fact would have been a relevant factor to be taken
into account just as a designation in a contract would be a relevant factor.
However, as we later determine, the Agreement did not define or describe
Mr Skene to be a casual employee.251
(Our underline)
60. Mr Burke was not a part-time employee as described by the Full Court above.
61. Mr Burke’s engagements were not ongoing, continuous or of indefinite duration.
Mr Burke did not work each week but for a small part of the year under a
specific contract for a specific time and which was expressed to not entitle Mr
Burke to further engagements with breaks in between each contracts of over 30
weeks. He was clearly engaged and paid as a casual employee under the
Agreement and his contracts of employment.
62. As set out in Skene252 the fact the Agreement defines or describes Mr Burke as a
casual employee is “highly relevant if not determinative”. The Full Court also
indicated that “just as a designation in a contract would be a relevant factor”’.253
Casual employment under the Agreement
63. Unlike Mr Skene, Mr Burke was defined or described as a casual employee
under the Agreement.
64. The Agreement provides the following definition or description of casual
employment in clause 42.4.3:
“Casual employment shall mean a staff member engaged in
accordance with the provisions of clause 44 of the Agreement.’
65. Clause 44 of the Agreement sets out the circumstances in which casual
employment is appropriate. These circumstances include:
250 At [182].
251 At [187].
252 At [187].
253 At [187].
[2019] FWC 3190
61
“- provision of industry or professional experience to teaching
programs;
…
- where the work is of a temporary, irregular or intermittent
nature.”
66. Clause 44.4 of the Agreement provides for employment contracts for casual staff
which specify, amongst other things, the duties, the amount of time expected for
each duty, and the appropriate rate/s of pay.
67. Rates of pay and activity descriptors for casual employees are referred to at
clause 44.5 of the Agreement as follows:
“The rates of pay and activity descriptors for casual staff are
described in Schedule 2 and Schedule 4, respectively of this
Agreement. The rate of pay includes a loading in lieu of agreements
benefits for which a casual staff member is ineligible including some
leave entitlements (eg annual leave, sick leave, etc) [see Schedule 2
for details of the casual loading].”
68. Schedule 2 of the Agreement sets out the casual rates of pay and states that:
“(b) The rates of pay include a casual loading of 25%.”
69. Unlike for casual academic staff, the work performed by continuing academic
staff is prescribed by the Agreement. Clause 37.9 of the Agreement provides:
“The normal pattern of academic workload is 40% teaching, 40%
research and 20% other activities.”
70. Mr Burke is a casual academic employed under the Agreement.254
71. He is engaged in circumstances deemed appropriate for casual employment by
clause 44. In particular, he is “providing industry or professional experience to
teaching” and his work is of a temporary irregular or intermittent nature.255
72. Each time Mr Burke was engaged a ‘casual academic contract of employment’
was generated.256 This contract specified the duties, the amount expected for
each and the appropriate rates of pay.
73. Mr Burke was paid the rates of pay for casual staff set out in Schedule 2 of the
Agreement which include a 25% loading which is designed to compensate a
casual or benefits for which a casual staff member is ineligible, including some
leave entitlements (eg annual leave, sick leave, etc).257
74. Mr Burke’s work did not satisfy the description of a continuing part-time
academic. For example, Mr Burke was not engaged in research which would
normally constitute 40% of the normal workload of a continuing academic.258
Designation in Contract
254PN269.
255 PN753.
256PN670.
257PN273 and PN277.
258PN763.
[2019] FWC 3190
62
75. Unlike Mr Skene, Mr Burke’s contract also designated him as a casual
employee. From 2015 any engagement of Mr Burke as a casual employee was
subject to a Casual Academic Contract of Employment (‘the Casual Contract’)
under which he was clearly designated as a casual employee. The Casual
Contract included Conditions of Employment.259
76. Point 10 of those Conditions of Employment provided that:
“A 25% loading is included in the gross salary rate specified in Part
B of this Contract of Employment. This loading is paid in lieu of all
leave entitlements. The employee is not entitled to any termination
payment on completion of this casual contract of employment.”
77. Point 12 of those Conditions of Employment stated:
“This is a casual contract of employment and does not entitle the
Employee to subsequent employment with UTS.”
78. Point 24 of those Conditions of Employment stated:
“This Contract and the UTS enterprise agreement are relevant to the
Employee’s position (refer to clause 13) constitutes the entire
agreement between the parties as to the Employee’s employment and
supersedes all previous communications, understandings,
representations and agreements and any prior condition, warranty or
indemnity or representation imposed, given or made by a party. In
executing this Contract, the Employee acknowledges that he/she is
not relying on any representations by, or on behalf of, UTS unless
expressly incorporated in to this Contract.”260
79. Even if it were to be accepted that Mr Burke work was regular and systematic, it
does not follow from Skene that he cannot be a casual employee261. Throughout
Skene, the Full Court cites with approval the decision of the Full Court in
Hamzy v Tricon International Restaurants trading as KFC.262 The Full Court
stated in Hamzy:
“the essence of casualness is the absence of a firm advance commitment as
to the duration of the employee’s employment or the days (or hours) the
employee will work. But that is not inconsistent with the possibility of the
employee’s work pattern turning out to be regular and systematic.”
[emphasis added]
80. Altobelli J in Newcombe v Amrou Metawa Pty Ltd263 commented upon this
statement as follows:
“In other words, the Full Court was not being dogmatic about a regular
and systematic work pattern being inconsistent with casual employment.
The Full Court appeared to contemplate the possibility that an employee
could still be a casual if their work pattern was regular and systematic.”
259PN669.
260 See CR2 of the Statement in Reply of Professor Rhodes.
261 See [173].
262 [2001] FCA 1589.
263 [2016] FCCA 89 at [34].
[2019] FWC 3190
63
81. Unlike in Skene, there was no firm advance obligation upon Mr Burke to
provide ongoing work and he therefore had a capacity to take a break from
work. There was no need for a guarantee of annual leave like in Skene because
his employment was not continuing. As the Full Court stated in Skene:
“the purpose of Div 6 includes providing to employees a guaranteed break
from work, an entitlement which it is likely was directed at employees in
continuous employment rather than those in irregular, intermittent,
occasional or discontinuous employment.”264
82. For the same reasons given earlier in relation to whether there was a reasonable
expectation of ongoing employment, it is submitted that there was no firm
advanced commitment to continuing and indefinite work from either UTS or Mr
Burke. In fact, there was not continuing and indefinite work.
Comparison between Mr Skene and Mr Burke’s employment
83. The Full Court in Skene referred to the factual findings regarding Mr Skene’s
employment as follows:
“The primary judge found that for the entire period of his employment at
the Clermont mine, Mr Skene performed the duties of a dump-truck
operator working a pattern of seven shifts of 12.5 hours per shift, followed
by seven days off in accordance with a pre-set roster provided by Rio
Tinto. Throughout the duration of that employment, Mr Skene remained
part of C Crew. He did not work any other shifts apart from those
provided for by his rosters.”265
and
“There were further findings made by the primary judge recorded at [81]
of his Honour’s reasons. The primary judge found that, on the evidence,
Mr Skene’s employment at the Claremont mine was:
1. regular and predictable. His working arrangements and shifts were set 12
months in advance in accordance with a stable and organised roster;
2. his employment was continuous, save for one period of seven days that
went unpaid but which was arranged with the respondent’s client. For that
purpose, Mr Skene was under the direction and control of the client, not
the respondent (see cl.5.7 of the general terms and conditions);
3. his employment was facilitated by the fly in, fly out arrangement and the
provision of accommodation at no cost to himself;
4. the fly in, fly out arrangement was inconsistent with the notion that Mr
Skene could elect to work on any day and not work for others without first
making the necessary arrangements with the respondent’s client;
5. there was plainly an expectation that Mr Skene would be available, on an
ongoing basis, to perform the duties required of him in accordance with
his roster, until such time as the assignment was complete: cl.5.4 of the
general terms and conditions; and
264 At [164].
265 At [30].
[2019] FWC 3190
64
6. the evidence suggests that the work undertaken by Mr Skene was not
subject to significant fluctuation from one day, or one week, or one month,
or one year to the next. The hours of work were regular and certain as
revealed by Mr Skene’s pay slips.”266
84. Unlike Mr Skene, Mr Burke:
(a) Was not subject to a roster;
(b) Was not contracted for work 12 months in advance (contracts were
generally made when the session was commencing);
(c) Was not engaged continuously;
(d) Apart from attending UTS for a few hours each week in Autumn, Mr
Burke was free to do what he wanted, including working from home when
he wished, and engaging in his business, ………;
(e) Was not required to give an ongoing commitment to UTS (other than for
the period specified in this contract);
(f) Worked for only about 3 or 4 months of the year, and then for only a few
hours twice per week;267
(g) Was defined or described by the Agreement and his employment contracts
as a casual employee;
(h) Was paid a 25% casual loading.
Dismissal?
85. Notwithstanding his claim that he was dismissed on 27 September 2018, Mr
Burke continued to be employed for coordination duties for postgraduate pricing
in the Summer session on casual contract 1333911. He confirmed this in cross
examination:
“Until the first pay period after 18 November you continued to be
employed and paid by the University? Yes.268”
86. The position of UTS is that the employment relationship was still on foot when
Mr Burke filed his Application, and the Application should be dismissed.
87. If the Commission considers that there was a termination of Mr Burke’s
employment, UTS submits that it did not dismiss him.
88. The approach to determining whether there was a dismissal was recently set out
in in Ligou Zhou v Central Capital:269
“In this case, the applicant says the respondent dismissed him. Obviously,
then, he does not contend that he was forced to resign, so s.386(1)(b) of
the FW Act is not relevant to this application. The issue for determination
is whether the applicant’s employment was terminated at the respondent’s
initiative.
266 At [33].
267 At PN836.
268 PN677.
269 [2018] FWC 6747; [2019] FWCFBC23.
[2019] FWC 3190
65
In City of Sydney RSL & Community Club Limited v Balgowan, a Full
Bench of the Commission considered s.386 of the FW Act and noted that:
‘Section 386(1)(a) seems plainly to be intended to capture the case law
determining the meaning of termination (of the employment relationship)
at the initiative of the employer. In Mohazab the Court considered that the
expression “termination at the initiative of the employer” was:
“… a reference to a termination that is brought about by an employer
and which is not agreed to by the employee. Consistent with the
ordinary meaning of the expression in the Convention, a termination
of employment at the initiative of the employer may be treated as a
termination in which the action of the employer is the principal
contributing factor which leads to the termination of the employment
relationship. We proceed on the basis that the termination of the
employment relationship is what is comprehended by the expression
‘termination of employment’.”
Importantly, in Mohazab the Court did not decide that the termination of
employment in that case was at the initiative of the employer because there
had been a constructive dismissal. Indeed, the Court expressly observed
that it was “… unnecessary to consider whether the facts fall within or
without the notion of constructive dismissal.”.
A Full Bench of the Australian Industrial Relations Commission has also
found that for a termination to be at the initiative of the employer, there
must be:
‘… some action on the part of the employer which is either intended
to bring the employment to an end or has the probable result of
bringing the employment relationship to an end.”270
89. It was Mr Burke’s decision not to accept UTS’s offers of employment.
90. UTS had made it clear to Mr Burke that it offered him further teaching
engagements but he did not find that acceptable, initially because he was not
prepared to teach the subject Pricing and Revenue Management unless he could
also coordinate the subject, and subsequently because he had concerns about the
quality of the content of the subject he was being asked to teach. UTS indicated
a preparedness to work through his issues but Mr Burke instead elected to
pursue this Application.
91. This was apparent in relation to teaching postgraduate pricing in the Summer
Session.
92. On 17 September 2017, Professor Morrison emailed the Applicant stating:
“Yesterday I confirmed your AU Tug and pg Pricing subjects, but I
forgot to ask if you’d also be able to teach the pg Pricing subject in
Summer 2018 (this spans 2018/19).
I hope you’re interested and available to teach this additional subject.”271
270 At [26] to [28].
271 Statement of John Burke signed 3 January 2019, Annexure JB30 page 234.
[2019] FWC 3190
66
93. UTS had not only offered the Applicant further teaching work but it had been
very encouraging of his teaching272 and on 12 October 2018 (only 5 days before
Mr Burke filed this Application), Professor Tam sent him a voucher for $150 to
acknowledge him being in the “top 20” of postgraduate teaching.273
94. On 16 October 2018 at 9.11am, Professor Rhodes emailed Mr Burke confirming
his preparedness to offer casual teaching to Mr Burke. He indicated, amongst
other matters:
“During our meeting, and as Leona had set out in her email to you on 24
August 2018, I mentioned that whilst you were not going to be asked to
coordinate the subject in the Summer session, the Faculty was still happy
to offer you casual work teaching the Pricing subject. During our meeting
you refused to consider teaching into the subject in the upcoming summer
session, unless you were also employed as the subject coordinator. I note
that the School retains the discretion to appoint and vary course
coordinators as it sees appropriate, from time to time. I also point out this
subject has never run previously in the new Summer session.
…
As I said previously, the School very much appreciates the work you had
done and contributions you have made to the Faculty, which is why we
hoped that you would continue to teach for the School on the upcoming
Pricing subject.
Further, whilst the School will not be offering you casual shifts to
coordinate the Pricing subject in the same subject in that session. I note
that Leona has also tried to understand from you whether you are
interesting in teaching into other subjects.
Whilst I had indicated that we would not be asking you to teach on the
upcoming Pricing subject, this was because you had indicated you were
not interested in doing this. If that is no longer the case, we are happy to
extend this offer of casual teaching work to you, again, for the Pricing
subject in this upcoming summer session. Further, we are happy to discuss
whether there are any other opportunities for you to teach as a casual in
other subjects across the School. Please let me know if you wish to engage
in such casual teaching work.
…
I am happy to discuss any of the above further in our next meeting and
hope that the School and students can continue to benefit from your
contributions.”274
95. However, Mr Burke did not regard Professor Rhodes’ offer as being one he
could reasonably accept.275
96. Mr Burke indicated this in cross-examination:
272 Ibid, paragraph 41(c).
273 Statement of John Burke signed 3 January 2019, paragraph 114.
274 Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 33.
275 Statement of John Burke signed 3 January 2019, paragraph 116.
[2019] FWC 3190
67
“But you didn't accept the offer. You filed the unfair dismissal claim
instead?---Yes. Because of that reason. It was a diminished role.”276
97. Professor Rhodes emailed Mr Burke on 24 October 2018 offering to schedule a
meeting on return from an overseas trip for 1.00pm on 13 November 2018 to
discuss any concerns. 277
98. Professor Rhodes was notified by the Fair Work Commission later that day (at
5.53pm) that an Application Alleging Unfair Dismissal had been filed by Mr
Burke on 17 October 2018. 278
99. On 26 October 2018 at 11.18am, Mr Burke acknowledged Professor Rhodes’
email of 24 October 2018 and said “Thanks Carl”.279
100. The conciliation of the Unfair Dismissal Application occurred by telephone on
13 November 2018. Following that conciliation, UTS wrote to Mr Burke
extending the previous offer made in Professor Rhodes’ email of 16 October
2018 to teach in Pricing and Revenue Management (24760). The subject outline
was attached to the letter, and it set out the casual shifts that he was being
offered, being:
“● 2.00pm–5.00pm, 7 December 2018: Applying the Basic Pricing
Methods and Understanding Margin Arithmetic; Pricing a Complex
Event.
● 2.00pm–5.00pm, 14 December 2018: Pricing a New Product.
● 2.00pm–5.00pm, 25 January 2019: Pricing a Consumer Packaged
Good.
● 2.00pm–5.00pm, 1 February 2019: Pricing a B2B Product.
● 6.00pm–9.00pm, 15 February 2019: Pricing a Consumer Durable.”280
101. Professor Tam, indicated in that letter that “If you wish to accept these shifts,
please advise me within the next 7 days, by no later than 20 November 2018,
and we will issue you with a casual contract.” UTS also reiterated that ‘the
Business School is happy to consider you for casual teaching in other suitable
subjects’ and invited him to let Professor Tam know whether there were any
Department of Marketing subjects that he would be interested in for teaching or
tutorial work in 2019. 281
102. Mr Burke stated:
“Thanks Leona
Can you please send through the Coursepack and other material, as well as the
textbook for review.
276 PN522.
277 Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 35.
278 Ibid, paragraph 36.
279 Ibid, paragraph 37.
280 Ibid, paragraph 38.
281 Ibid, paragraph 39.
[2019] FWC 3190
68
Regards
John”
103. Professor Tam responded to Mr Burke:
“Hi John,
Thank you for your email. The materials are currently under review. Subsequent
to a contract being signed, we can organize to send you the materials. There will
be plenty of time for you to prepare for delivery the classes.
Best,
Leona”282
104. On 16 November 2018, Mr Burke wrote to Professor Alexander, Deputy Vice
Chancellor (Education and Students) seeking her intervention because:
“I need to make two decisions on Monday:
1. To accept to teach an inferior version of PG Pricing…”283
105. Importantly, it was Mr Burke’s decision whether to accept the offer of teaching
not UTS.284
106. Professor Alexander responded to Mr Burke in a detailed way on 16 November
2018 after investigating the issues raised and reviewing the proposed subject
outline but could not “see a compelling reason to seek overturn the decision
made by the faculty’s courses committee or faculty board”. She says:
“I am told that you have been offered a casual teaching role on the subject
which I do hope you will give strong consideration to accepting…”
107. Professor Alexander also refers him to the process for staff related grievances
should he wish to take it further. Mr Burke responds to Professor Alexander on
18 November 2018 and says that “had a look at the grievance process and it will
not provide any benefit for me.”
108. On 19 November 2018, Mr Burke emailed Dean Earley, the Dean of UTS
Business School, seeking “a genuine apology and be converted to part-time if
necessary, and allow me to continue coordinating and teaching pricing” and
stated:
“They have offered me to teach what I believe to be a massively altered
inferior version of a subject including the removal of the real client
projects, but not the coordination.”
109. Later that day, Dean Earley responded to Mr Burke offering to meet with him to
discuss his concerns but indicated that:
“the authority and decisions made by the department are reasonable,
appropriate and within their scope of decision-making. While this may be
disappointing news, I appreciate your inputs into the education of our
282 The email chain of 14 November 2018 referred to at paragraphs 46 and 47 is outlined in annexure CR10 of Statement in
Reply of Professor Carl Rhodes signed 18 January 2019.
283 Ex 9.
284 PN201, 462, 515, 522 and 523.
[2019] FWC 3190
69
students and I understand that you will be continuing some work with the
university as a casual academic in the near future.”285
110. On 20 November 2018, UTS received a response to this letter from Mr Burke’s
lawyer indicating that his client (“refused to accept a diminished role of only
teaching and not coordinating the Pricing and Revenue Management
subject”).286
111. None of these actions by UTS suggest that they did not wish to engage Mr
Burke in further employment. Indeed, it is difficult to understand what more
UTS could have done to have Mr Burke teach:
(a) Professor Morrison, Head of Marketing of the UTS Business School,
asked if he would be prepared to teach postgraduate pricing in the Summer
Session;
(b) Professor Tam, the successor to Professor Morrison, asked him to teach
postgraduate pricing in the Summer Session;
(c) Professor Rhodes, the Deputy Dean of the UTS Business School asked
him to teach postgraduate pricing in the Summer Session and to discuss
teaching other subjects if he wished, as well as having ongoing dialogue
about his concerns;
(d) Professor Alexander, Deputy Vice Chancellor (Education and Students) of
UTS, also encouraged him to teach postgraduate pricing in the Summer
Session, reviewed and responded in detail to his concerns about the subject
outline and offered him access to the grievance procedure if his concerns
were unresolved;
(e) Professor Early the Dean of the UTS Business School also made it clear
that he understood Mr Burke was going to teach.
Demotion
112. Mr Burke contends that he was “dismissed” because he was demoted in his
employment. The position of UTS is that Mr Burke was not demoted.
113. The Macquarie Dictionary defines “demote” as follows:
“to reduce to a lower grade or class (opposed to promote).”
114. There was no change to Mr Burke’s contract to reduce his grade or rate of pay.
115. Mr Burke continued to be employed and paid as at the alleged date of dismissal
until such time as that contract expired due to the effluxion of time.
116. The contract which was to commence in November was cancelled in accordance
with the terms upon which it had been offered (if UTS did not decide another
coordinator would be appointed or if Mr Burke decided not to teach the
subject).287
285 The email chain of 19 November 2018 at paragraphs 48 and 49 of the Statement of Facts is CR11 of the Supplementary
Statement in Reply of Professor Carl Rhodes signed 18 January 2019.
286 Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 40.
287 The rate for lecturing depends on the type of lecture. The post graduate pricing subject is classified as “Developed”
whereas the undergraduate pricing subject is classified as “Basic”.
[2019] FWC 3190
70
117. In any event, the rate for “lecturing” and “other academic activity - subject
coordination” as prescribed in Schedule 2 of the Agreement, are both calculated
on the same grade using Level A step 3 (as referred to in note 3 found at the end
of page 54 of the Agreement).288
118. As set out in the statement of Professor Rhodes had Mr Burke accepted the offer
to teach his remuneration would have been higher not lower:
“(e) Subject coordination tasks are paid at a significantly lower hourly
rate ($65.35) compared to lecturing (about $263.98), and are
therefore less remunerative. Accordingly, the offer of additional
lecturing also offered the potential for increased remuneration.
(f) The teaching that was offered to Mr Burke over the Summer Session
involved additional work over Summer that he had never done
before (Pricing had traditionally only been offered to students in the
Autumn semester).
(g) The work being offered would have meant that Mr Burke’s
remuneration from UTS would have been substantially higher than
in previous years as he had not previously taught in the Summer
Session.”289
119. Mr Burke’s remuneration for coordination of post graduate pricing in the
Summer Session, as set out in the contract, would have been $2,450.25.290 On
Mr Burke’s own estimation, he would have earned considerably more if he
accepted the offer to teach the subject ($3,959.70).291
Conclusion
120. The Application should be dismissed because either Mr Burke is not protected
from unfair dismissal because he has not completed a period of employment
with UTS of at least the minimum employment period, or, Mr Burke was not
dismissed.
[35] UTS’ further submissions were as follows,
1. The Applicant filed ‘Applicant’s closing submissions’ following the adjournment
of the proceedings; the decision on the jurisdictional issues having been reserved.
These ‘closing submissions’ were submitted without leave of the Commission and
without seeking the Respondent’s consent. Leave was given by the Commission to
the Respondent to put submissions in response.
2. We note that the Applicant proposes a very detailed chronology which cannot be
engaged at this late stage which appears to be based on the Applicant’s proposed
facts. This document does not reflect agreed facts and is no substitute for the
evidence itself. For example, the first point in paragraph 4 of the Applicant’s
Closing Submissions refers to the Applicant teaching and coordinating the pricing
288 The rate for lecturing depends on the type of lecture. The post graduate pricing subject is classified as “Developed”
whereas the undergraduate pricing subject is classified as “Basic”. The hourly rate for lecturing is higher than for
coordination (although it is effectively the same when regard is had to Schedule 4(i) which sets out assumed non-contract
hours associated with each hour of delivery).
289 Statement of Professor Carl Rhodes signed 11 December 2018, paragraphs 41(e), (f) and (g).
290 Ex 3, Attachment C.
291 Ex 7, JB-65, page 521.
[2019] FWC 3190
71
subjects from 2011 but this is inconsistent with the Applicant’s own evidence: see
Annexure 1 to Exhibit 7
Dismissal/Date
3. Until receipt of the ‘Applicant’s Closing Submissions’, the Respondent had
understood that the date of dismissal being alleged was 16 October 2018. This is
set out in the Applicant’s Unfair Dismissal Application in answer to question 1.3
“what Date did your dismissal take effect?” which was answered “16/10/2018
Coordination for Summer postgraduate pricing contract cancelled.”
4. In the ‘Applicant’s Closing Submissions’ at paragraph 1(a), it is now put that the
date of the dismissal is now an issue to be determined by the Commission. The
Applicant should not be permitted to change such a significant part of his case at
this time particularly when the proceedings have concluded.
5. The Applicant now alleges that 27 September 2018 was the date of his alleged
dismissal. He then advances a case that Professor Rhodes email of that date,
indicating that he would not be offered teaching in Summer Session, was a
dismissal.
6. This contention, however, ignores the evidence given by Professor Rhodes who
explained that the email was written in the context of the Applicant stating that he
was only prepared to accept the offer of teaching in circumstances where there was
also an offer of coordination duties. As Professor Rhodes, and numerous other
senior staff of the Respondent, have made clear to the Applicant they had wanted
him to accept their offer to teach in the Summer Session.
7. If there was any doubt about this, it would certainly have been dispelled by
Professor Rhodes’ email of 16 October 2018 (the day before the Applicant filed
his Application alleging unfair dismissal) making it clear that the Respondent was
prepared to offer him teaching work not only in pricing but even in other subjects.
8. Indeed, the Applicant accepts that there was an offer of casual teaching work from
Professor Rhodes but he “did not regard Professor Rhodes’ offer being one that I
could reasonably accept”292
9. As the Respondent has previously submitted, the Applicant was not only actually
employed when he claims to have been dismissed but he was being offered further
teaching work which he refused.
10. It is important to observe that the Applicant’s claim is not being pursued as a
constructive dismissal under s.386(1)(a) of the FW Act (nor could it having regard
to City of Sydney RSL & Community Club Limited v Roxana Balgowan) but
whether he was dismissed within the meaning of s.386(1)(b) of the FW Act. When
there is a current contract in place and future work is being offered there simply
cannot be a dismissal within the meaning of s.386(a) of the FW Act.FN See Zhou
v Central Capital [2018] FWC 6747
11. The Applicant’s alternate argument was that he was demoted and therefore
dismissed.
12. The Respondent submits that there was no demotion on 16 October 2018 as
alleged. Contract #1333911, under which the Applicant was employed at the time,
292 Exhibit 7, paragraph 116.
[2019] FWC 3190
72
and which continued to 18 November 2018 was not changed at all. This Contract
was honoured by the Respondent and it continued to pay the Applicant pursuant to
it until 18 November 2018 (well after the alleged date of dismissal). On any view
of it, leaving a contract as it is, cannot constitute a demotion.
13. In any event, it is difficult to imagine how the concept of a demotion could ever be
applicable to casual employment as, in the law of contract, casual employment is
on a per engagement basis.293 The Applicant provides no authorities that would
support the view that a casual employee could be demoted at law and the
Respondent is not aware of any such authority.
14. There was no change to the Applicant’s existing casual contract, or potential future
casual contracts to reduce his grade or rate of pay. The Applicant was, however,
being offered a contract to teach which involved work at the same grade and a not
inferior rate of pay than for coordinating duties. In fact, the rate for lecturing is
considerably higher than for coordination duties but it is accepted that the rate for
lecturing assumes some preparation time. There is no disagreement that the hourly
rate has not been reduced; see paragraph 22 of the Applicants proposed facts-
Exhibit 11. As set out in Schedule B of the University of Technology Sydney
Academic Staff Agreement 2014 at note (3) the rates for ‘lecturing’ and the rates
for ‘other academic activity-coordination’ are both calculated by using level B,
step 2, as defined in Schedule 3.
15. The Respondent submits that the Applicant could earn more as a result of being
offered teaching hours than would have been available if performing coordinating
duties. While the Applicant takes issue about how his pay may be impacted when
speculating as to what contracts may or may not be offered in the future, this does
not amount to a demotion.
16. Minimum employment period
17. At paragraph 14 of the Closing Submission the Applicant seeks to make
observations about the casual contract. These observations should not be
permitted. If the Applicant wanted to advance a case that the Applicant did not
understand that he was engaged pursuant to a casual contract it could have done so
during the evidence.
18. When regard is had to the evidence, while the Applicant appeared unhappy that he
would be engaged on a casual basis and did not consider that the Respondent gave
him the commitment to further engagements that he desired, he was never under
any doubt, from 2015, that his employment was only ever offered on a casual
basis. The Applicant conceded this on numerous occasions throughout his
evidence. The Conditions of Employment of casual contracts were clear and the
Applicant had been engaged under numerous such contracts. He was also clearly
engaged and paid in accordance with the UTS Academic Staff Enterprise
Agreement 2014. So much is clear even from the Applicant’s Proposed Facts.
19. The Respondent contends that the Applicant’s service was not ‘continuous’ for the
purposes of s.384 of the FW Act when he alleges, contrary to the position of the
Respondent, that he was dismissed.
293 Andrew Kim v ORC International Pty Ltd [2016] FWC 1029 at [47]; City of Sydney RSL & Community Club Limited v
Roxana Balgowan [2018] FWCFB 5 at [27].
[2019] FWC 3190
73
20. The Applicant argues that, despite his designation as a casual employee, that he
was a part time employee. The Respondent relies on previous submissions in this
regard.
21. The Respondent also submits that, if the Applicant was considered to be a part-
time employee, he would also not satisfy the minimum employment period for
part-time employees prescribed by the FW Act.
22. If the Applicant was correct in his argument that he was a part time employee, he
would have to satisfy the Commission under s.384 of the FW Act that he was
employed on a ‘continuous’ part time basis during the six months preceding the
alleged dismissal occurring on 16 October 2018 (the six months being the period
16 April 2018 to 16 October 2018). This would require him to establish that there
were no breaks in service other than of the kinds specified in s.22 of the FW Act.
23. During this six month period the Applicant had been engaged under two relevant
contracts. The first contract was the Autumn session contract (19 February to
8 July 2018). After a break, the second contract was issued for coordination duties
for the Summer session (18 July 2018 to 18 November 2018 for a total of one hour
of work for the whole of that period).
24. The Respondent submits that the one hour contract for coordination would not
constitute part time employment. If this contract was not counted as service as
apart time employee, this would mean that the Applicant would have only worked
between 16 April and 8 July 2018-well short of the requisite six month period.
25. Also, to be considered a part-time employee, the Applicant’s contracted one hour
would not go remotely close to meeting the minimum hours required of part time
employees in clause 41.2.2 of the University of Technology Sydney Academic
Staff Agreement 2014 (generally at least 0.2 of a full time load).
26. However, even if contrary to the submission of the Respondent, this one hour
contract is considered to constitute part time employment and therefore count as
service, there was not ‘continuous’ service for the purposes of the FW Act as there
was a break between the contracts for reasons other than those set out in s.22 of the
FW Act.
27. In relation to the alternative argument that the applicant was otherwise a casual
employee engaged on a regular systematic basis, the applicant has referred to
various authorities which base their decisions on the Full Bench decision in
Shortland v Smiths Snack Food Co Ltd (2010) FWAFB 5709 (‘Shortland’) or
cases which rely upon it, like Price v United Management Services (2013) FWC
4227 (‘Price’).
28. The Respondent has referred in previous submissions to the decision of DP
McCarthy in Lesley Holland v UGL Resources Pty Ltd t/a UGL Resources (2012)
FWA 3453 (‘Holland’). That decision specifically considers the need for
‘continuous’ service as set out in s.384 of the FW Act even in circumstances where
there may be contiguous periods of casual employment. In this regard, the decision
emphasises the need to consider the circumstances of the engagements
29. DP McCarthy distinguishes the circumstances of Holland from those considered in
Shortland given the significantly larger breaks involved. In particular His Honour
states
[2019] FWC 3190
74
30. ‘There, the applicant had been employed almost every week or over three years.
His only time off was for four isolated weeks, presumably as a period of
authorised absence. Shortland sustained an injury in 2009 and had been on workers
compensation or other absences since that time until his employment was
terminated.’
31. Like in Holland, the Applicant’s periods of work and the period of absences are
significantly different from Shortland and Price. The substantial breaks between
the Applicant’s engagements of over 30 weeks, combined with the provisions in
the contract which made it clear that he is not entitled to further engagements.
32. The Holland decision also draws attention to the importance of the words in s.384
of the FW Act to service ‘at a particular time’ that being the service under the one
hour contract for coordination duties between 18 July and 18 November 2018. As
previously submitted, there was nothing regular and systematic about that contract.
It was a one off contract that had never been offered before, nor had any other
contract been offered before for one hour or for work at that time of year.
33. The Applicant appears to make much of the fact that he continued to use his email
address even between contracts. Details of all the emails are not in evidence and
care has to be taken in making any assumptions in relation to them. These emails
cannot be counted towards the Applicant’s ‘period of employment’ for the
purposes of s384 of the FW Act as it is only the periods when the Applicant was
actually employed which are relevant. Outside of the casual contracts that had
been issued by the Respondent, the various elements that could found a contract of
employment are lacking, such as offers and acceptance of employment at those
times, an intention to create a legal relationship and that the contract be supported
by valuable consideration: see the Full Bench decision in Fox v Kangan Batman
TAFE; Print S0253
Conclusion
34. It is respectfully submitted that he Application should be dismissed as the
Applicant has not completed the minimum employment period nor was he
dismissed as he alleges.
Consideration – MEP Objection
[36] Determining the MEP Objection also requires a consideration of the status of the
Applicant’s employment. As can be seen from the table above at least since the Autumn Term
in 2015 the Applicant’s employment was characterised by a period when he was teaching and
coordinating the Pricing subject (usually for around a 20 week period, teaching on Friday
nights once a week) followed by a lengthy break usually in excess of 30 weeks.
[37] The exception to this pattern is that at the end of the Autumn Term 2018 the Applicant
did not take his usual break of in excess of 30 weeks, but rather after a shorter break he was
placed “back on the books” and paid 1 hour’s pay over a lengthy period of time. The primary
purpose of which was to allow the Applicant continuing UTS IT access. Payments were
spread out over the Spring Term.
[38] I accept that during each term time the applicant was employed on a regular and
systematic basis. During term time the Applicant was a casual employee engaged on a regular
and systematic basis. He was paid a casual loading of 25% in lieu of other benefits that non-
casuals are entitled to.
[39] Alternatively, it was argued that the Applicant was, during term time, a part-time
[2019] FWC 3190
75
employee. If so he was engaged on a fixed term basis. There are indicia either way. On one
analysis there was a casual relationship because that is the basis upon which it was paid and
how the parties characterised it in their contractual documents.
[40] Against the notion that the employment was ongoing is the fact that, having regard to
the decision in WorkPac,294 it may be that the regular and systematic casual characterisation is
the correct one because it is clear that the work was not of an indefinite term subject to rights
of termination. However, because of what I say below about the breaks between term times
not very much turns on a final determination about the nature or status of the Applicant’s
employment.
[41] This is because I’m not satisfied that the break between each term did not cause there
to be a break in continuity of service. The Applicant runs his own business called
……………. under which he provides pricing education and consulting services. It is in this
pursuit that he is engaged during the long term break periods.
[42] Despite the fact that at the end of each term (or at some point thereafter):
a) there was a discussion about the Autumn term in the following year; and
b) the Applicant and UTS (at least since 2015) agreed that the Applicant would return
the following year,
there was still a substantial break in service between each engagement. Each engagement,
each year was separately contracted. The teaching and the coordination too were separately
contracted. In the break periods, the Applicant did not render service for which he was paid,
nor was he paid, during those long breaks. He was running his own business.
[43] The meaning of continuous service is addressed in s.22 of the FW Act. Relevantly for
present purposes s.22 provides that,
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national
system employer is a period during which the employee is employed by the
employer, but does not include any period (an excluded period ) that does not
count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2-2 (which deals
with community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise
agreement that applies to the employee, or under the employee's contract of
employment; or
(iii) a period of leave or absence of a kind prescribed by the
regulations;
(c) any other period of a kind prescribed by the regulations.
294 WorkPac Pty Ltd v Skene [2018] FCAFC 131.
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s23.html#subsection
[2019] FWC 3190
76
(3) An excluded period does not break a national system
employee's continuous service with his or her national system employer, but does not
count towards the length of the employee's continuous service.”
[44] In the present matter the lengthy breaks in term time cannot be characterised as
“authorised absences”. They are not periods of unpaid leave.
[45] Each time term ended the contract of employment ceased. This was not “downtime”.
It was a break in the continuity of service to enable the Applicant to pursue his own personal
business interests. During those breaks the Applicant did not perform work for UTS in
respect of which he was paid. His continuing use of email during this time is irrelevant. It is
not evidence of the existence of a wages/work bargain continuing between the Applicant and
UTS.
[46] For this reason even if I treat the period August – November 2018 as an employment
period it does not meet the MEP because of the break in service following the end of teaching
in July 2018.
[47] However, noting that all that was occurring in the period August – November 2018
were payments to the Applicant it is arguable that, to consider that period as a period of
employment is a fiction. The payments were in advance of the coordination contract used to
facilitate the Applicant’s continuing access to the UTS IT system The payments were an
administrative convenience not made in respect of work undertaken in that period.
[48] Properly considered, it is more likely than not that the employment ended around in
July 2018 when the Applicant finished the Autumn Term 2018. If that is the case then his
UFD application is out of time. If an extension of time was granted the employment period
would only then be the Autumn 2018 term time. That is not sufficient to meet the MEP
because the break from July 2017 to the Autumn Term in 2018 broke continuity of service.
[49] For these reasons, on any analysis, I am not satisfied that the Applicant meets the
MEP, no matter what dates are used.
Consideration – Not Dismissed Objection
[50] If I am wrong about whether the Applicant served the MEP then it becomes necessary
for me to decide whether the Applicant was dismissed. Having regard to the factual matrix
I’m not satisfied that the Applicant was dismissed as that term is understood pursuant to
s.386(1)(a) of the FW Act. There is nothing in the factual matrix which evidences that UTS
terminated the employment relationship or that it ever intended to do so. Nor was there
anything in the conduct of UTS that had the probable result of bringing the employment
relationship to an end.
[51] The question then becomes whether the Applicant was forced to resign “because of
conduct, or a course of conduct, engaged in by his … employer” (s.386(1)(b) FW Act).
While I accept that the Applicant never used the word “resign” (or anything like it) it is
difficult to see how the Applicant can establish that there was a dismissal unless he says that,
by reason of the conduct of UTS, he had no option but to resign.
[52] At all times, during the employment relationship between the Applicant and UTS,
teaching and coordination were contracted separately.
[53] On 27 September 2018 UTS decided not to offer the Applicant coordination duties.
He was only to be offered teaching the Pricing subject. On 16 October 2018 UTS confirmed
an offer that comprised only of casual teaching in Pricing for the Summer Term. UTS also
indicated a preparedness to discuss other subjects with the Applicant.
[2019] FWC 3190
77
[54] It is important to note that nothing in the conduct of UTS reflected, on its behalf, an
adverse view about the performance of the Applicant. On the contrary, at all times and still to
this day, the Applicant is held in high regard. There is no doubt that he is an excellent teacher
and was a very competent coordinator of the Pricing subject. The decision by UTS to only
offer teaching reflected its desire that, for the most part, subject coordination should not be
undertaken by casual employees. UTS was clear in making this known to the Applicant. To
the extent that the Applicant treated the proposed removal of coordination as a reflection upon
his performance or standing, he was being precious.
[55] It seems that the Applicant treated the act of removing coordination duties, and the
events leading up to it, as the conduct or course of conduct engaged in by UTS that forced
him to resign (or having been terminated).
[56] Having had the offer of only teaching confirmed on 16 October 2018 the Applicant
commenced the present UFD Application on 18 October 2018.
[57] However, at all relevant times on and before 16 October 2018 UTS was offering the
Applicant teaching roles. In fact, even as late as 13 November 2018 UTS continued to offer
the Applicant teaching roles.
[58] On any analysis the factual circumstances in this matter do not give rise to a finding
that the Applicant was dismissed by UTS pursuant to s.386(1)(a).
[59] However, it is necessary to determine whether the conduct of UTS forced the
Applicant to resign. It is important to note that the Commission is not required to determine if
UTS repudiated the Applicant’s contract. As a casual employee the concept of repudiation is
foreign.295
[60] In order to be satisfied that the Applicant was forced to resign I must be satisfied,
based on an objective analysis, the conduct of UTS had the probable result that the Applicant
would resign or that he had no effective or real choice but to do so.296 No doubt the Applicant
felt that he had no choice in the matter, however, his subjective view is not relevant.
[61] I am not satisfied that an objective analysis of the factual matrix left the Applicant
with no choice but to resign or that it was the probable result of the conduct of UTS. On 27
October 2018, 16 October 2018 and even as at 13 November 2018 UTS very clearly
demonstrated that it wanted the employment relationship to continue. It was prepared to be
engaged in an ongoing dialogue with the Applicant about teaching in the Pricing subject and
other subjects. Despite those offers the Applicant acted pre-emptively in commencing his
UFD Application on 18 October 2018.
[62] The decision of UTS to not offer coordination duties (communicated as early as 24
August 2018) was not an act that could, objectively viewed, be characterised as forcing the
Applicant to resign (or otherwise end the employment relationship).
[63] Had the Applicant engaged with UTS about its preparedness for him to teach in
subjects in addition to the Pricing subject he could have been remunerated more
advantageously. This is because subject coordination is paid at an hourly rate of $65.35,
whereas lecturing is paid at around $263.98. Even agreeing to teach Pricing in the Summer
Term and then Pricing in the Autumn Term would have seen the Applicant better off
financially. This is because the Pricing subject was not previously taught in the Summer
Term, but only in the Autumn Term.
295 Kim v ORC International Pty Ltd [2016] FWC 1029.
296 O’Meara v Stanley Works Pty Ltd [2006] AIRC 496.
[2019] FWC 3190
78
[64] Because UTS provided the Applicant with an opportunity to earn more than he would
have by offering multiple teaching opportunities as compared with the coordination and
teaching role I’m not satisfied that, if the removal of the coordination role is to be considered
a demotion, it involved a significant reduction in the Applicant’s remuneration (s.386(2)(c)).
[65] I’m also not satisfied that the removal of the coordination duties involved a significant
reduction in duties. It was an adjunct role, necessary, but subordinate to the teaching role. The
relative importance is reflected in the payment schedule for teaching as compared with
coordination. In his own mind, and in these proceedings, the Applicant elevated the status of
the coordination role beyond its actual importance. I have had regard to the Applicant’s
characterisation of the coordination duties.297 Coordination does not require any particular
skill or competency. That is to be contrasted with the in-depth subject matter knowledge that
is required to teach a subject. This leads to a conclusion that the Applicant was overly
concerned with or attached to the notion of being recognised as a “Coordinator”.
[66] In any case it was always the intention of UTS that the Applicant remain an employee
of UTS following the removal of the coordination duties (which the Applicant characterises as
something akin to a demotion) (s.386(2)(c)(i)). A proper application of s.386 of the FW Act
leads to a conclusion that the Applicant was not dismissed.
[67] There was nothing in the decision of UTS (to prefer that ongoing employees undertake
coordination duties) that was unreasonable. As stated above, it was not a reflection on the
coordination skills or ability of the Applicant. It was entirely an operational decision that was
rightly within the remit of UTS to make. The Commission should not lightly interfere with the
employer’s right to manage its business298 and I decline to do so.
Conclusion
[68] For the reasons above I am not satisfied that the Most Recent Break Period should be
counted as service. Rather there was, between July 2018 and August 2018 a break in the
Applicant’s continuity of service. Consequently, by the time the Applicant treated himself as
having been dismissed by UTS (16 October 2018) he had only worked (in that most recent
period) for a period of around 10 weeks. That period does not meet the MEP.
[69] Consequently, the Commission, as presently constituted, is not satisfied that the
Applicant was protected from unfair dismissal because he did not complete the MEP.
Consequently, his application for an unfair dismissal remedy must be dismissed.
[70] An order will be issued with this decision.
COMMISSIONER
297 See in particular para 23 of Exhibit 7.
298 Australian Federated Union of Locomotive Employees v State Rail Authority of New South Wales (XPT Case) (1984) 295
CAR 188, 191.
HE WORK COMMISSION THE SEAL OF
[2019] FWC 3190
79
Appearances:
Mr S McIntosh for the Applicant
Mr T McDonald for the Respondent
Hearing Details:
Sydney
30 January 2019
25 February 2019
Final Written Submissions:
Applicant’s Closing Submissions filed on 1 March 2018.
Respondent’s Closing Submissions filed on 11 March 2018.
Printed by authority of the Commonwealth Government Printer
PR708118
