Murphy, Cheryl-Anne v University of Southern Queensland - [2021] FWC 1800

1

Fair Work Act 
2009 
s.394 - Application for unfair dismissal remedy

Ms Cheryl-Anne Murphy

v

University of Southern Queensland
(U2020/9506)

COMMISSIONER HUNT BRISBANE, 1 APRIL 2021

Application for an unfair dismissal remedy – terms of fixed term contracts – applicable 
enterprise agreement – consideration of the majority decision in Navitas – relationship 
terminated by reason of agreement between parties – applicant not dismissed – application 
dismissed. 

[1] On 10 July 2020, Ms Cheryl-Anne Murphy applied to the Fair Work Commission (the 
Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that she 
had been unfairly dismissed from her employment with the University of Southern 
Queensland (the Respondent/USQ). 

[2] USQ raised a jurisdictional objection to the application.  USQ say that Ms Murphy 
was not dismissed within the meaning of s.386(1)(a) of the Act, in that she was not terminated 
at the initiative of the employer when her fixed-term appointment concluded on 19 June 2020.

Background 

[3] Between January 2017 and June 2020, Ms Murphy was employed by USQ on a series 
of contracts in the School of Nursing and Midwifery.  The last contract of employment 
entered into between the parties was for the period 9 January 2020 to 19 June 2020.  Ms 
Murphy says that the contracts were described as “fixed-term” contracts but, in terms of the 
employment relationship, Ms Murphy had an expectation of continuing employment with 
USQ.

[4] Over the course of Ms Murphy’s employment with USQ, the terms and conditions of 
her employment were governed, inter alia, by enterprise agreements approved by the 
Commission under the Act; the most recent agreement being the University of Southern 
Queensland Enterprise Agreement 2018-2021 (the Enterprise Agreement). 

[5] On 17 April 2020, following receipt of USQ’s proposed workload allocation to Ms 
Murphy for semester 2, 2020, Ms Murphy sent an email to Professor Christine Neville stating: 

“Hi Christine, 

[2021] FWC 1800 [Note: An appeal pursuant to s.604 (C2021/2293) was 
lodged against this decision - refer to Full Bench decision dated 
6 August 2021 [[2021] FWCFB 3603]  for the result of the appeal.]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3603.htm


[2021] FWC 1800

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

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

If you still require my services, I am more than happy to continue working for USQ at 
a 0.5 or less. 
Warm Regards
Cheryl-Anne”

[6] On 4 June 2020, prior to the commencement of USQ’s semester 2, 2020 teaching 
period, Ms Murphy received an email from Professor Christine Neville, as produced below: 

“Dear Cheryl-Anne

In a review of the staffing profile for School of Nursing and Midwifery for Semester 2, 
2020, unfortunately USQ is not able to offer you a contract for Semester 2.
I thank you for your contribution to the school, particularly the Midwifery program.

Regards
Christine

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

[7] Ms Murphy maintains that she was dismissed within the meaning s.386(1)(a) of the 
Act in that her employment with USQ was terminated at its initiative.

Relevant legislation 

[8] Section 386 of the Act provides the meaning of dismissed: 

“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








[2021] FWC 1800

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

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

(a)  the person was employed under a contract of employment for a specified 
period of time, for a specified task, or for the duration of a specified season, 
and the employment has terminated at the end of the period, on completion of 
the task, or at the end of the season; 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.”

Hearing 

[9] The matter was listed for jurisdiction hearing by video on 7 October 2020.  Mr 
Christopher Tran of Counsel was granted leave to appear for Ms Murphy.  He was instructed 
to appear on behalf of the National Tertiary Education Union (NTEU).  Mr Dan Williams, 
Partner of MinterEllison was granted leave to appear for USQ.  

[10] The following persons appeared and gave evidence in support of USQ’s jurisdictional 
objection: 

 Professor Christine Neville, Head of the School of Nursing and Midwifery; and 
 Associate Professor Victoria Terry, Deputy Head of School and the Associate Head 

Clinical Education. 

[11] Ms Murphy appeared and gave evidence. Ms Elizabeth Rigg, Senior Midwifery 
Lecturer, and Director of the Midwifery Program gave evidence in support of Ms Murphy. 








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Respondent’s Evidence 

Evidence of Professor Christine Neville 

[12] Professor Neville made three witness statements and appeared and gave evidence at 
the hearing.  Professor Neville has been Head of the School of Nursing and Midwifery at 
USQ since June 2018.  Where reference is made to the School in this decision, it is in relation 
to the School of Nursing and Midwifery. 

[13] Professor Neville’s inquiries indicate that prior to her appointment as Head of School, 
Ms Murphy was appointed to the following fixed-term positions: 

(1) Lecturer (Midwifery): 
 Fixed-term appointment from 27 January 2017 - 7 July 2017; 
 0.4 FTE; 
 FTE change to 0.6 on 28 January 2017; 
 Reason for appointment: backfill for a staff member who was on leave

without pay during 2017.

(2) Lecturer (Midwifery): 
 Fixed-term appointment from 8 July 2017 - 1 December 2017; 
 0.6 FTE; 
 FTE varied to 0.8 from 24 August 2017 to 15 September 2017; 
 Reason for appointment: backfill for a staff member who was on leave 

without pay during 2017.

(3) Lecturer (Midwifery): 
 Appointment resulted from a recruitment process – interviews held on 29 

November 2017; 
 Fixed-term appointment from 22 January 2018 - 8 January 2020;  
 0.5 FTE varied to 0.61 from 26 February 2018 - 26 October 2018; 
 Reason for appointment: to cover 0.5 of the position of a staff member who 

was on a temporary FTE reduction from full-time to 0.5;
 The other staff member returned to her full-time substantive role on 4 

February 2019, earlier than planned.

[14] Following Professor Neville’s commencement as Head of School, Ms Murphy was 
appointed to the following fixed-term positions: 

(1) Specified Term/Task: 
 Fixed-term appointment from 4 February 2019 - 8 January 2020; 
 0.5 FTE; 
 Reason for appointment: to fulfil the contractual commitment to Ms 

Murphy for the period through to 8 January 2020, undertaking duties to 
support the teaching of the Midwifery program.

(2) Specified Term/Task: 
 9 January 2020 - 19 June 2020; 








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 1.0 FTE; 
 Reason for appointment: Teaching backfill for a staff member taking 

ADOSP leave. 

[15] Professor Neville gave evidence that the decision to not offer any further employment 
to Ms Murphy was done in consultation with Professor Glen Coleman, Executive Dean of the 
Faculty of Health, Engineering and Sciences, together with Ms Susan Camfferman, Associate 
Director, Workplace Support & Partnering.  The reasons for this decision were:

 the traditional decrease in student load during Semester 2;
 An additional Midwifery staff member had been appointed as required under a 

contractual agreement with industry partner, Tasmanian Health;
 Full-time continuing staff within the school were available and sought the opportunity 

to teach into the Midwifery program; and 
 Ms Murphy had advised that she was no longer available to work full time.

[16] Professor Neville stated that the workload allocation model (‘WAMS’) planning is a 
continuing process within the School.  Initial staff planning for the year begins in mid-
October of the previous year and is reviewed weekly through to February and again at week 
four of each semester, at student census date.  In April/May 2020, Semester 2 WAMS was 
reviewed to ensure staffing needs would be met.

[17] Professor Neville stated that when planning and determining the capacity of potential 
staff to teach into the Midwifery program, Ms Murphy advised her via email on 14 April 2020 
that she was not able to do an expected work allocation. On 17 April 2020, Ms Murphy 
further indicated that she was unable to continue to work full time for Semester 2, 2020 but 
could continue working at a 0.5 FTE or less (per email at [5]).  Professor Neville’s evidence is 
that maximising program stability is a workload principle of the School, therefore it is 
preferred to have as many full-time academics as possible. A continuing staff member 
accepted the offer to teach into the Midwifery program.

Reply evidence to Ms Murphy’s evidence  

[18] Professor Neville noted Ms Murphy states that Ms Rigg expressed concerns to 
Associate Professor Terry (who is the current Deputy Head of School and who she says was 
Acting Head of the School at that time) and Professor Neville in around January 2018 that the 
“Midwifery program was significantly short-staffed.”  Professor Neville’s evidence is that she 
did not have any discussions with Ms Rigg to this effect because she, Professor Neville, was 
not employed USQ at this time. Professor Neville commenced employment with USQ as the 
Head of the School of Nursing and Midwifery on 4 June 2018.  Further, Associate Professor 
Terry was not the “Acting Head of School” in around January 2018.  She believes the Acting 
Head of the School of Nursing and Midwifery at this time would have been Associate 
Professor Clint Moloney.

[19] In reply to Ms Murphy’s evidence that she was informed by someone in HR that her 
contract would need to change because Ms Danielle Gleeson (Lecturer, Midwifery program) 
returned to work on a full-time basis earlier than expected, Professor Neville determined that, 
despite Ms Gleeson’s return, there remained sufficient teaching needs within the program to 
continue Ms Murphy’s engagement and honour the balance of the term of the contract that 








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had been originally offered to Ms Murphy.  Accordingly, Ms Murphy’s contract recorded that 
it was for a “specific task or project” and “to support the teaching of the Midwifery program.”

[20] Professor Neville stated the following to add further context to the staffing profile of 
the Midwifery program:

(a) The University has had a memorandum of understanding (MOU) with the 
Tasmanian Department of Health to offer Midwifery education since 1 January 
2017.  The MOU was reviewed on 18 June 2019 with an extension approved until 
31 December 2020. As a result of this arrangement, approximately 70% of 
students in the Midwifery program are from Tasmania and there are 101 active 
students in the Midwifery program;

(b) Because of the uncertain and potentially changeable nature of the arrangement 
with the Tasmanian Department of Health (and the significant impact it would 
have on student numbers if it ended) as well as normal fluctuations in student 
numbers from semester to semester, the University must ensure that its staffing 
model in the School is flexible enough to respond to both predictable and 
unexpected fluctuations in workload;

(c) Therefore, although USQ does have a preference for ongoing employment when 
circumstances allow, it is also required to employ a proportion of its staff on a 
fixed- term basis, with extensions or further offers of employment to be assessed 
on an ongoing semester-by-semester basis to match its work requirements.

[21] With respect to Ms Murphy’s concerns about her workload allocations in USQ’s 
WAMS and her recount of various discussions in relation to these concerns during early 2018 
to late 2019, Professor Neville gave the below evidence: 

(a) Ms Murphy’s concerns about being overallocated were first brought to her 
attention in around February 2019;

(b) To address her concerns, Professor Neville had meetings with Ms Murphy where 
she reviewed her WAMS allocation, identified areas where she was over-
allocating her time and provided her with workload management strategies to 
ensure she did not ‘over-service’ students or take on additional work from other 
academic staff.  For context, the Midwifery program is highly resourced as it has a 
1:10 teacher-to-student ratio, as compared with the Nursing program which has a 
1:25 teacher-to-student ratio;

(c) Any additional hours worked over and above the allocated hours in the WAMS by 
Ms Murphy were unauthorised.  This is because any additional course teaching 
hours require approval first by the School’s Associate Head for Learning, 
Teaching & Student Success then by Professor Neville as the Head of School, 
where the Midwifery Programs Director would have to justify why additional 
hours were required to be worked and paid;

(d) Nevertheless, Professor Neville acknowledged that additional work had been 
completed by Ms Murphy and wanted to reach an agreement with her to fairly 
compensate her for this work.  For work in 2018 USQ provided a one-off 








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allocation of $3,000 to Ms Murphy, to compensate for the over-allocation of 
hours. For work in 2019, after numerous meetings with Ms Murphy (including 
with her union representative), 196.8 hours was carried across into her WAMS 
allocation for semester 1, 2020.

[22] Referring to a document titled “Academic Staff Workload Report” extracted from the 
WAMS on 4 June 2020, Professor Neville’s evidence is that document is not an accurate 
reflection of the hours ultimately allocated to, and performed by Ms Murphy in semester 1, 
2020 because:

(a) it contains allocations of hours for semester 2, 2020 teaching because Ms Michelle 
Boettcher (School Support Officer) would have entered them as a proposed 
allocation as part of the planning process for staffing needs in semester 2; and 

(b) it also records Ms Murphy as having an availability fraction of 80% (ie FTE 0.8 
across the year), but Professor Neville understands this would have been included 
only as part of the planning process on the basis that Ms Murphy had said she 
would be available only as a FTE 0.5 for semester 2.  When a staff member has 
different fractional appointments over the course of a year this is averaged out for 
the purpose of determining allocation limits. 

[23] Professor Neville provided that the following recorded hours reflect the actual 
allocation for Ms Murphy in semester 1, 2020: 

Description Hours
Teaching focused research allocation (half of the 170.2 
hours recorded in CM-9 as only for semester 1)

85.1

Intercampus travel (non-teaching) 3.0
Service additional allocation (Carry over of additional 
hours as per HoS approval 19.12.2019)

196.8

Service additional allocation (2nd Year Convenor) (half 
of the 108.9 hours recorded in CM-9 as only for 
semester 1)

54.45

MID2101 Course coordination (Moderator) 4.0
MID2102 Teaching hours (Online tutorials) 35.0
MID2102 Teaching hours (Online lectures) 35.0
MID2102 Teaching hours (Residential School 
Facilitator)

84.0

MID2102 Planning and development (Annual update) 40.0
MID2102 Course coordination (Examiner) 21.0
MID2102 Consultation allocation 13.3
MID2102 Repeated teaching hours 9.9
MID2102 Marking and feedback 18.4
MID2199 Course coordination (Moderator) 4.0
MID2299 Planning and development (Annual update) 40.0
MID2299 Consultation allocation 11.7
MID2299 Course coordination (Examiner) 21.0
MID2299 Marking and feedback 30.3
MID2399 Course coordination (Moderator) 1.6
MID3101 Teaching hours (Residential School 
Facilitator)

21.0

MID3102 Teaching hours (Residential School 21.0








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Facilitator)
TOTAL (note: up to 851 hours able to be allocated) 750.55

[24] In respect of the “196.8 hours” allocation, Ms Murphy alleges:

(a) that it “counted towards the maximum hours that could be allocated to me over the 
course of the year;” and 

(b) “There is no way she could have recovered 196 hours in just semester 1. She was 
given theory courses, clinical courses and a new service role in semester 1 2020. It 
would have been impossible to get all 196 back while fulfilling her duties and the 
allocated hours.”

[25] In response to the above, and to Ms Murphy’s apparent assertion that she understood 
she was going to be offered a further contract in semester 2, 2020 because her allocation of 
196.8 hours could not have been “recovered” in semester 1, 2020, Professor Neville says that:

(a) it is correct that allocated hours for research and service can be applied across the 
year, but in this instance, Ms Murphy was allocated the 196.8 hours, and they were 
in fact “recovered,” in semester 1;

(b) the total allocation for Ms Murphy in semester 1, 2020 was 750.55 (out of a 
possible 851 hours).  This is 100.45 hours less than what could have been expected 
of Ms Murphy’s 1.0 FTE workload for that semester and the 196.8 hours credited 
had already been subtracted from this amount referable entirely to semester 1; 

(c) Professor Neville did not make any representation to Ms Murphy or Ms Rigg that:

(i) Ms Murphy’s allocation of 196.8 hours were to be carried across to 
semester 2, 2020; or

(ii) a decision had otherwise been made to employ Ms Murphy in semester 2, 
2020. 

[26] Professor Neville stated that a meeting was held with a number of attendees on 18 
November 2019, including herself, Ms Murphy, Ms Rigg and Ms Murphy’s union 
representative in relation to Ms Murphy’s ongoing workload concerns.  Professor Neville  
attended this meeting however she denies that she made a statement to the effect, “I think this 
is a pretty fair deal, I’ve already guaranteed you a job for 2020. I’m not going to give you any 
more hours.” Her evidence is that she did not guarantee Ms Murphy a job for all of 2020 and 
would not have said words to that effect.

[27] Professor Neville recalls indicating that Ms Murphy would likely be offered a contract 
for semester 1, 2020.  She felt it was appropriate to offer Ms Murphy a contract for semester 1 
because of the agreement in relation to the additional allocation that was carried across to Ms 
Murphy’s WAMS allocation from semester 2, 2019 to semester 1, 2020.  She states that there 
was no discussion about a contract for semester 2, 2020.

[28] It was noted Ms Murphy recounts various discussions with Ms Rigg in relation to 
workload allocations in 2020, including for semester 2, 2020.  Ms Murphy appears to suggest 








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that her understanding that she would be offered employment in semester 2, 2020 was on the 
basis of various discussions with Ms Rigg.  Professor Neville said that:

(a) Ms Rigg, in her role as Programs Director had responsibility for program planning, 
including reviewing the availability of teaching staff for future semesters and 
exploring options in relation to work allocations and teaching needs in 
consultation with Professor Neville; 

(b) Ms Rigg did not (and does not) have the authority to make decisions in relation to 
work allocations and staffing needs.  These decisions are made by Professor 
Neville as Head of the School and are approved by Professor Glen Coleman, 
Executive Dean (Faculty of Health, Engineering and Sciences);

(c) Ms Rigg forwarded a number of emails to Ms Murphy in April 2020 where they 
discussed potential workload allocations for semester 2.  These emails should not 
have been forwarded to Ms Murphy without authorisation;

(d) In any event, at no time did Professor Neville make any representation to Ms 
Murphy (including through Ms Rigg) that any decision had been made to employ 
her for semester 2, 2020.  Any reference to Ms Murphy’s name in planning 
documents or in discussions with Ms Rigg or Ms Murphy was made as part of a 
planning process only.  As a current member of staff, Ms Murphy was certainly 
being considered as part of the planning process as someone who might be 
available for further employment if required, however no decision was made, and 
no promise or representation was made by Professor Neville or with her authority;

(e) Further, Professor Neville could not make any final decisions about staffing needs 
for semester 2, 2020 until much closer to the start of the semester, once student 
numbers were finalised.  For example, the University does not finalise casual 
contracts for the programs until after the census date.

[29] Whilst Professor Neville does recall having staffing discussions with Ms Rigg, she 
does not recall Ms Rigg mentioning Ms Murphy’s employment with Queensland Health.  She 
was not aware Ms Murphy was employed with Queensland Health, however she stated that 
this is  not uncommon for teaching staff.

[30] With respect to Ms Murphy’s expectation that based on her discussions with Ms Rigg 
in September 2019 she would receive a “12-month contract” in 2020, Professor Neville stated 
that due to USQ’s recruitment policy, any appointment which is 12 months or more in 
duration must be publicly advertised and a competitive selection process is followed. She 
stated that Ms Murphy was aware of this requirement, and if a competitive selection process 
had been followed, it is quite possible that Ms Murphy would not have been appointed in 
2020 at all given she does not hold a PhD qualification, is not studying for a PhD and does not 
have a track record in terms of research output.

[31] Noting Ms Murphy’s evidence that in around November 2019, Ms Rigg told her she 
sent a document titled Midwifery Teaching Academics 2020 WAMS Draft Prepared by 
Elizabeth Rigg to Professor Neville for “approval,” Professor Neville stated that the draft was 
not sent to her for approval; rather the draft was a recommendation which was a part of the 
ongoing planning discussions for workload allocation and teaching needs in 2020.








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[32] Professor Neville noted that where Ms Murphy had given evidence that she had been 
offered a Replacement Employee contract, and contended that there was no staff member of 
the School on leave or away, Professor Neville referred to Ms Murphy’s semester 1, 2020 
contract where it refers to the reason for appointment as “Backfill Teaching while Staff 
(#01002835) is on leave – HRAS.”  She gave evidence about that contract that: 

(a) the reference to “Staff (#01002835)” is Ms Gleeson;

(b) USQ’s administration officer, Ms Larissa Pears, appears to have prepared the 
contract based on instructions in an email from Ms Rigg.  In that email Ms Rigg 
asks Ms Pears to raise a contract for Ms Murphy for semester 1, 2020, and states 
“As discussed, with Danielle Gleeson taking ADOS [ie study leave] for six months 
in 2020, Cheryl-Anne will assist by back filling her teaching.”  Ms Rigg’s email 
did not specify that Ms Gleeson’s ADOS leave was to occur in semester 2;

(c) irrespective of any administrative error, Ms Gleeson had significant academic 
commitments in semester 1, 2020 and there was a need to provide additional 
teaching support in the Midwifery program as a consequence.  Accordingly, in 
Professor Neville’s view it was appropriate to appoint Ms Murphy under the 
“replacement employee” category.

[33] Following receipt of Ms Murphy’s email of 17 April 2020 that concludes with the 
words “if you still require my services, I am more than happy to continue working for USQ at 
a 0.5 or less,” Professor Neville made further inquiries about whether USQ could 
accommodate her working at 0.5 FTE or less in semester 2, 2020.  

[34] It is Professor Neville’s evidence that Ms Murphy’s decision to reduce her availability 
was a factor which needed to be taken into account into the School’s planning but did not 
necessarily mean it would not make a further offer of employment to her; it would depend on 
its final decision as to work requirements and what was the best mix of skills and availability 
to meet them. Professor Neville took from the email, however, that Ms Murphy herself 
understood at that point that a further offer of a contract was not guaranteed and would 
depend on the outcome of the planning process.

[35] On the above point, Professor Neville gave further evidence that: 

(a) In around May 2020, Ms Rigg went on extended personal leave;

(b) After Ms Rigg’s departure, a number of current staff members in the School of 
Nursing (including full-time permanent staff members and experienced midwives) 
expressed an interest in teaching into the Midwifery program.  Professor Neville 
understands that some of these staff members were previously reluctant to teach 
into the Midwifery program because of their perceptions of Ms Rigg’s managerial 
style (although she has not formally investigated whether those concerns, to the 
extent they exist, are reasonable);

(c) As a result, there was a larger pool of staff who were willing and able to teach into 
the program in semester 2, 2020, some of which were more experienced than Ms 
Murphy.  Unlike most of the other academics in the School, Mr Murphy does not 








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hold or is not studying for a higher degree and despite having a research and 
service allocation, she has produced limited output in these areas since her 
employment with USQ; 

(d) It is more sensible, from a human resourcing, budgetary and student support (in 
terms of teaching quality and continuity) for USQ to staff teaching programs from 
permanent staff who have been appointed on merit and who are already in the 
budgeted teaching establishment, where it is possible to do so; and 

(e) Accordingly, on or about 4 June 2020, Professor Neville made a final decision 
about staffing for semester 2, which did not involve a requirement for a further 
offer of a contract for Ms Murphy.  She immediately communicated that decision 
to her via an email dated 4 June 2020, reproduced at [6].  

[36] Professor Neville noted that in Ms Murphy’s evidence, she states that she was 
“shocked” when she was not offered a contract for semester 2, 2020 because she had no prior 
indication that anything had changed since Ms Michelle Boettcher's (Senior Operational 
Support Officer) emails in May 2020 which showed Ms Murphy had been allocated hours for 
semester 2 which Ms Murphy and Ms Rigg had considered very excessive.

[37] Professor Neville stated it is not reasonable for Ms Murphy to point to Ms Boettcher’s 
analysis and communications as an indication that a further contract would be offered.  In this 
regard, Professor Neville referred to emails between Ms Boettcher, Ms Murphy and herself in 
early June 2020, and stated: 

(a) Ms Boettcher’s role was to assist with analysis and advice in relation to workload 
planning and she had no role in making decisions about the School’s staffing;

(b) in the email to Ms Murphy on 3 June 2020, Ms Boettcher clearly indicated she was 
“still working on the WAMS so nothing is finalised” and that “[a]ll S2 work across 
the board is a moving feast at the moment and S2 term contracts are not finalised 
so we are moving things around to see how they look;”

(c) after Mr Murphy said that she felt her workload was larger than other staff at the 
same 0.5 FTE, Ms Boettcher reiterated that “we are still working on S2 so the 
hours may not be finalised as yet and it is too early to compare to others until the 
process is complete;”

(d) the WAMS allocation for Ms Murphy was a working document which was yet to 
be finalised (as clearly indicated by Ms Boettcher) and did not reflect any final 
decisions in relation to Ms Murphy’s further employment in semester 2.

[38] Professor Neville accepts that Ms Murphy was disappointed not to receive a further 
offer of a contract for semester 2, and that the email of 4 June 2020 at [6] was the first 
occasion when she had been advised of that decision.  Professor Neville stated that is so 
because prior to that email the decision had not been made.  Professor Neville stated it is not 
unusual for final decisions to be made close to the date of commencement of the coming 
semester and USQ are compelled to wait until the planning, including as to staff availability, 
workload and likely final student numbers is finalised before doing so.  This is not always 
possible until shortly before the semester begins.








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[39] Professor Neville stated that if Ms Murphy had been appointed for semester 2, 2020 
her new fixed term contract would not have commenced until either 29 June 2020 or 6 July 
2020, depending on her teaching load.  Accordingly, there would have been a short break in 
service.

Reply evidence to Ms Rigg’s evidence  

[40] Professor Neville stated that she understands Ms Rigg “expected” Ms Murphy to work 
for all of 2020 on the basis:

(a) of Ms Rigg’s recommendations and suggestions for workforce planning as 
contained in the WAMS in light of Ms Gleeson’s confirmed absence in semester 2, 
2020;

(b) of Ms Rigg’s discussion with Professor Neville on 11 September 2019 where 
Professor Neville allegedly did not dispute Ms Murphy’s appointment;

(c) of Ms Rigg’s conversation with Associate Professor Terry; and

(d) that at the meeting on 20 May 2020 it was allegedly confirmed Ms Murphy would 
be appointed for semester 2, 2020.

[41] Professor Neville’s evidence below is in reply to Ms Rigg’s “expectations:”

(a) she acknowledges that Ms Rigg’s position as Programs Director requires her to 
make recommendations and suggestions for workforce planning.  However, Ms 
Rigg did not have the authority to make any decisions in relation to  staff; this 
responsibility fell to Professor Neville in consultation with Professor Coleman.  
Although the possibility of Ms Murphy’s appointment was discussed, Professor 
Neville did not make any representation to Ms Rigg that Ms Murphy would be 
offered employment in semester 2, 2020.  Further, Ms Rigg has been on personal 
leave since May 2020 (and remains on leave now, at the time of making the 
statement) and she did not contribute to any final decision-making with respect to 
semester 2 appointments when these decisions were made; 

(b) Professor Neville attended a meeting with Ms Rigg on 11 September 2019. The 
purpose of the discussion was to discuss preliminary staffing options for the 
Midwifery program.  At no point during this meeting did Professor Neville 
confirm Ms Murphy's appointment for semester 2, 2020.  No such confirmation is 
reflected in the minutes which states that “depending on staffing needs, a full-time 
contract may be offered to  Cheryl-Anne Murphy for 2020 if she can accommodate 
this;”

(c) Professor Neville was on leave during November and December 2019 and
Associate 
Professor Terry was Acting Head of the School during this time.  Although she 
was not party to any discussions between Ms Rigg and Associate Professor Terry 
in relation to staffing needs in the Midwifery program or the potential permanent 








[2021] FWC 1800

13

appointment of Ms Murphy in 2020, Associate Professor Terry did not relay any 
conversations with Ms Rigg about these issues to Professor Neville;

(d) Professor Neville attended a meeting on 20 May 2020 with Ms Rigg and Associate 
Professor Terry in relation to semester 2 teaching allocations.  Professor Neville 
acknowledges that they discussed the possibility of Ms Murphy’s employment in 
semester 2.  However, she does not recall Associate Professor Terry offering to 
“generate a 0.5FTE contract” for Ms Murphy.  In any case, if a draft contract for 
Ms Murphy was generated by Associate Professor Terry this still required 
approval from Professor Neville in consultation with Professor Coleman before it 
could be issued.

[42] With respect to Ms Rigg’s evidence that she did not know Ms Jilmy Joy but was aware 
she had been recently appointed having worked as a casual employee for USQ in the 
undergraduate Nursing program, Professor Neville confirmed that Ms Joy’s most recent 
appointment is on a fixed-term basis, and she currently practises as a midwife and is working 
towards a PhD.

[43] Professor Neville denies that she verbally agreed to any semester 2, 2020 teaching 
allocations.  The purpose of the meeting on 20 May 2020 was to discuss options about 
teaching allocations.  At this point, she had not reviewed the suggested teaching allocations 
against the program’s budget or consulted with Professor Coleman.  It is her evidence that Ms 
Rigg is well aware of these approval processes and would have known that teaching 
allocations could not be finalised until these processes occurred.

[44] The teaching team for semester 2, 2020 in the Midwifery program ultimately consisted 
of Ms Emma Turner (who replaced Ms Rigg’s position when she went on leave), Ms Jo 
Buckley, Ms Jilmy Joy and Ms Leah Avery.  Ms Turner is an ongoing/continuing staff 
member and Ms Avery, Ms Joy and Ms Buckley are fixed-term staff members.  The 
following semester 2 subjects were taught by the following:

(a) MID2201: Ms Joy (studying for PhD);
(b) MID2202: Ms Buckley (experience teaching Indigenous midwifery course);
(c) MID2399: Ms Turner (ongoing);
(d) MID2499: Ms Joy (studying for PhD);
(e) MID2299: Ms Turner (ongoing);
(f) MID3201: Ms Turner (ongoing);
(g) MID3202: Ms Joy (studying for PhD);
(h) MID3299: Ms Avery (fixed term under MOU with Tasmanian Health);
(i) MID3399: Ms Joy (studying for PhD); and 
(j) MID3499: Ms Avery (fixed term under MOU with Tasmanian Health).

Professor Neville’s third witness statement 

[45] In Professor Neville’s third witness statement she explained that there had been 
additional hours worked by Ms Murphy in 2018 and 2019, amounting to 196.8 hours being 
carried across to her allocation of hours to be worked in Semester 1, 2020.  She stated that the 
effect would be that her load of hours would be reduced by 196.8 hours.  Professor Neville’s 
table in her evidence demonstrates an allocation of 750.55 hours inclusive of 196.8 hours 
carried over.








[2021] FWC 1800

14

[46] Her evidence is that the table demonstrates that the 196.8 hours were recovered by Ms 
Murphy in Semester 1, 2020.  Professor Neville denied that she had made any representation 
to Ms Rigg that Ms Murphy’s allocation of 196.8 hours were to be carried across to semester 
2, 2020 or that a decision had been made to employ Ms Murphy in semester 2, 2020. 

Oral evidence given at the hearing 

[47] During cross-examination, Professor Neville stated that there were many names in the 
planning document, including the names of individuals who were known not to be available 
to teach in semester 2, 2020.  She stated:1

“So there's a number of people’s names here who, you know, were not necessarily 
available to work in the school at a particular time, you know? It's a roll-over-type 
document where people's names appear but I'm not working from the assumption that 
those people are going to be available at that particular time.”

[48] Professor Neville was asked if the policy requiring advertisement of a role of 12 
months was required if a person was offered two back-to-back six-month contracts?  
Professor Neville answered no, not to her knowledge.2  

[49] Professor Neville stated that she first decided not to offer to Ms Murphy a contract for 
semester 2, 2020 around 4 June 2020, when she sent her the email informing her so. She 
agreed that there had been no concerns regarding Ms Murphy’s teaching performance.3

Evidence of Associate Professor Victoria Terry 

[50] Associate Professor Terry made a witness statement and appeared and gave evidence 
at the hearing.   Associate Professor Terry is employed in the School of Nursing and 
Midwifery.  She is the Deputy Head of School and the Associate Head Clinical Education.  
She had been employed by USQ since July 2001.

[51] Associate Professor Terry denies saying to Ms Rigg shortly after 8 November 2019 
that the intention was that Ms Murphy would have a fixed term contract covering teaching for 
both semester 1 and semester 2, 2020.  She stated that USQ has a policy that a one-year fixed 
term contract is not to be offered without advertising the position.  Associate Professor Terry 
was aware of the policy’s existence, and she stated that she would not have indicated to 
anyone that Ms Murphy would be given a one year fixed-term contract covering both 
semester 1 and 2.

[52] It is Associate Professor Terry’s evidence that the Head of School generally looks at 
staffing for particular courses just prior to the start of each semester, and on a semester-to 
semester basis, because much can happen within a year and it is difficult to predict student 
numbers and staffing needs.  The usual process followed is that the School prioritises 
allocating teaching duties to continuing staff and, where necessary, appoints fixed term and 
casual/sessional staff to cover any remaining teaching needs for the semester.  In line with 
this, Associate Professor Terry denies having discussions with anyone in 2019 about 
appointing certain staff members for semester 2, 2020.








[2021] FWC 1800

15

[53] She recalls having discussions with Professor Neville and Ms Rigg towards the end of 
2019 about Ms Murphy being offered a six-month contract for semester 1, 2020.  She notes 
that one was subsequently offered. She does not recall a discussion specifically in response to 
the email with Ms Rigg on 19 September 2019.  If there was a discussion after 19 September 
2019, she believes she would have been clear about USQ’s position on fixed term contracts. It 
is her evidence that when she responded to Ms Rigg, “you are absolutely right about this,”
she was referring to Ms Rigg’s statement about her being aware about “new processes that we 
must adhere to in relation to appointing FTC that go over 6 months and/or that are rolling 
over.”

[54] Associate Professor Terry further gave the below evidence in reply to the evidence of 
Ms Rigg: 

(a) She does not recall having discussions with Ms Rigg in November or December about 
Ms Murphy having other work commitments at Redcliffe Hospital.  She was not 
aware that Ms Murphy worked at Redcliffe Hospital;

(b) A contract for Ms Murphy for semester 1, 2020 was approved on 13 November 2019. 
This did not automatically constitute a subsequent contract for Ms Murphy in semester 
2, 2020; and 

(c) Where Ms Rigg states that Associate Professor Terry agreed a contract would be 
raised for Ms Murphy for the first six months (semester 1, 2020) and then says “She 
(Dr Terry) did not expressly say anything that I can remember about semester 2,” this 
is consistent with Associate Professor Terry’s recollection.  Her evidence is that she 
would not have made any representation in relation to Ms Murphy being appointed for 
semester 2, 2020.

[55] In relation to the discussion on 20 May 2020 set out in Ms Rigg’s evidence, Associate 
Professor Terry says: 

(a) In her outlook calendar, the only meeting on 20 May 2020 from 1.30pm – 2.00pm 
was in relation to the Bachelor of Midwifery (BMID) and its Accreditations. This 
meeting was scheduled by Ms Melissa Jarrick (Coordinating Operational Support 
Officer) and Associate Professor Jackie Lea (the Associate Head Learning 
Teaching and Student Success) was also in attendance; 

(b) She denies saying that Ms Murphy had a contract through to the end of December 
2020 because she knew that Ms Murphy did not have a contract for semester 2, 
2020; 

(c) She denies saying that she would generate a 0.5 FTE contract for Ms Murphy.  She 
is not responsible for generating contracts nor directing the School Support Officer 
to generate contracts when she is not Acting Head of School. This is Professor 
Neville’s responsibility as Head of School. If Professor Neville had asked her to 
generate a 0.5 FTE contract for Ms Murphy for semester 2, 2020, she would have 
done it, but she did not ask her, and she does not believe a semester 2 contract was 
generated for Ms Murphy; 








[2021] FWC 1800

16

(d) She does not recall requesting Ms Rigg to set out in an email what courses she 
would like the team to teach in semester 2, 2020.  Associate Professor Terry denies 
that she said to Ms Rigg that once she sent through the email she would then make 
the necessary changes to the team’s WAMS, thereby enabling a contract to be 
raised for Ms Murphy and Ms Avery for semester 2, 2020. A contract needs to be 
in place for work to proceed according to what is allocated in WAMS, so it would 
not have made sense for her to say that. Further, she was not managing the 
Midwifery staff workloads; Professor Neville was doing this; 

(e) She denies that Professor Neville had approved for her to raise a contract for Ms 
Murphy for semester 2, 2020; and 

(f) Ms Rigg’s email to her the afternoon of 20 May 2020 records that she is setting 
out her “suggestions for midwifery teaching.”  This in no way reflects any final 
decisions or approvals had been made in relation to who would be appointed to 
teach semester 2, 2020 courses. Further, she does not believe that Professor 
Neville verbally agreed to these suggestions during their discussion on 20 May 
2020.

Oral evidence given at the hearing 

[56] Associate Professor Terry stated that she was not involved in the decision not to award 
a semester 2, 2020 contract to Ms Murphy.  She was informed of that decision in early June 
2020.4

[57] Associate Professor Terry stated that while she was aware Ms Murphy appeared in 
WAMS for semester 2, 2020, it didn’t not automatically mean that Ms Murphy was to teach 
those courses, because a contract had not been generated for her to teach those courses.  She 
stated that a person cannot teach a course in a semester without having their name appear in 
the WAMS, but equally, the contracts are not drawn up based on what is contained in the 
WAMS. 

[58] She agreed that Ms Murphy was being considered by the School to teach in semester 
2, 2020. 

[59] Relevant to whether Associate Professor Terry knew that Ms Murphy worked at 
Redcliffe Hospital, she said the following:5

Mr Tan: Do you agree with me that you knew in 2018 that Ms Murphy was 
working at the Redcliffe Hospital?

Ass Prof Terry: I don't recall that, Mr Tran. I recall after seeing some emails that I had 
discussions with Ms Rigg and Ms Murphy in relation to doing other 
work, clinical facilitation, at Redcliffe Hospital, but I do not recall 
having any conversations around Ms Murphy working at Redcliffe 
Hospital.

Mr Tan: So you don't remember thinking about how it was that she was 
conducting - doing that facilitation in Redcliffe Hospital?








[2021] FWC 1800

17

Ass Prof Terry: Not at all. It was not unusual that an academic staff member would go 
to a facility to support and supervise our students. The fact that Ms 
Murphy was working there was a completely separate issue. Yes.

[60] As to why Ms Murphy’s contract for semester 1, 2020 noted her being a replacement 
employee, when she was not replacing anybody, Associate Professor Terry stated that this 
was an administrative error.  She approved the form electronically and had not approved a 
form electronically before; it was presented to her in a different format. 

Respondent’s Submissions 

[61] USQ made the following submissions, all of which I have had regard, by way of: 

 Written submissions on 25 August 2020; 
 Written submissions in reply on 10 September 2020; and 
 Oral closing submissions at hearing. 

[62] It was submitted Ms Murphy’s employment did not terminate at USQ’s initiative. 
Accordingly, pursuant to section 386(1)(a) of the Act, Ms Murphy has not been dismissed 
from her employment and has no jurisdiction to make this application.

[63] The Respondent submitted that it is entitled to rely upon the terms of the fixed term 
contract as the means by which the employment relationship terminated.  It submitted that 
there was no action of the Respondent that was the principal contributing factor which led to 
the termination of the employment relationship.  At no point did the Respondent agree or 
make any representation that a further contract would be forthcoming.  

Genuine agreement 

[64] It was submitted that all of the fixed-term appointment contracts issued to Ms Murphy 
were for separate and distinct positions that were required to be filled on a short-term basis, 
backfilling for other staff members who were either absent or had a reduction in workload.  It 
was submitted that there was no agreement that the employment relationship would continue 
beyond each set of circumstances. 

[65] The last contract for the period 9 January 2020 to 19 June 2020 (the 2020 contract) 
included: 

 “This contract of employment is not renewable.”; and

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

[66] The Respondent submitted that the above is an explicit statement.  It nominated that 
employment will not continue unless formally authorised in writing.   There is no evidence of 
such a written statement by the Executive Director of Human Resources.  

[67] It was submitted that, to the contrary, Ms Murphy’s own evidence establishes that 
although it was mutually contemplated that it was possible that a further contract would be 








[2021] FWC 1800

18

offered, and in that event the employment would continue, a process of planning and analysis 
of operational needs had to be completed before a decision could be made in that regard – and 
that no commitment was given by the Executive Director of Human Resources or anyone else 
with authority that, before that process was complete, any further employment would be 
offered.

[68] The Respondent says this is a ‘genuine agreement,’ as referred to in the Full Bench 
majority decision in Khayam v Navitas,6 that the employment would also end upon the expiry 
of the contract.  It submitted that there is no evidence that this mutual commitment was a 
sham, was varied, or should be set aside as not reflecting the genuine agreement of the parties.

[69] Ms Murphy and the Respondent engaged in correspondence regarding the possibility 
of the Respondent re-employing Ms Murphy after 19 June 2020, but by June 2020, following 
a review of the Nursing and Midwifery program, including staff movements and student 
numbers, it was determined that the program was adequately resourced. 

[70] It was submitted that an expectation by Ms Murphy of further employment, justified or 
not, would not rise to the threshold required by Navitas before the dismissal would be held to 
be at the Respondent’s initiative.  It said that Professor Neville’s evidence demonstrates that 
any asserted expectation on the part of Ms Murphy and Ms Rigg, that further employment had 
been offered or agreed to was unfounded.  It was submitted that this demonstrates that Ms 
Murphy well understood the nature of her fixed term appointment and that decisions about 
staffing needs for semester 2, 2020 would not be made until just prior to the commencement 
of the semester, once final student numbers and staffing availability was known.

[71] The Respondent submitted that this is a feature of the challenge of staffing a university 
program when student numbers fluctuate, in both a predictable and non-predictable way, from 
semester to semester. Planning and ongoing discussion in relation to staffing and associated 
issues such as workload is an ongoing process and is not indicative of commitment.  The 
Respondent suggests that it demonstrates that planning must occur first, before commitment 
to potential employees can be made.  

[72] The Respondent submitted that Ms Murphy’s email to Professor Neville on 17 April 
2020, where she stated, “If you still require my services, I am more than happy to continue 
working for USQ at 0.5 or less,” clearly demonstrates Ms Murphy’s understanding at that 
point that there was no agreement for further employment and that her employment was to 
come to an end at the conclusion of the fixed term contract.

[73] The Respondent further submitted it also demonstrates Ms Murphy’s understanding 
that she was free to decide for herself what her potential availability would be, and if further 
employment was to be offered, whether or not she would accept it.  This is opposed to the 
obligations a continuing or permanent staff member might have to the Respondent.  The 
Respondent contends that nothing occurred after 17 April 2020 which could have reasonably 
altered Ms Murphy’s clear understanding of her employment status.

Unqualified right to terminate 

[74] The Respondent originally conceded that the 2020 contract provides for either party to 
terminate the contract by the giving of four months’ notice.  It maintains that this is not a 
relevant consideration to a jurisdictional objection under s.386(1)(a) of the Act. 








[2021] FWC 1800

19

Decision not to renew 

[75] It was submitted that the 2020 contract came to an end on 19 June 2020, as agreed.  
Ms Murphy was not offered a new contract of employment because there was no position and 
no duties that were required.  This followed Ms Murphy’s advice that she was unavailable to 
accept or continue to work full time.  It is Professor Neville’s evidence that there was no 
contract that could be offered to Ms Murphy.  It is submitted that consistent with the 
approached of the majority in Navitas at [75], the termination of the employment relationship
was therefore not at the Respondent’s initiative. 

[76] Shortly before the commencement of semester 2, Professor Neville followed her usual 
process of considering the teaching needs and availability of staff, with preference given to 
the allocation of teaching to continuing staff members and those most qualified and/or 
experienced in teaching particular areas.  The Respondent submitted at that point that 
Professor Neville made a decision as to the teaching needs of the Midwifery program and 
determined that Ms Murphy would not be offered further employment.

Breach of agreements 

[77] The Respondent does not accept Ms Murphy’s claim that one or more contracts of 
employment entered into with Ms Murphy were not permitted by the terms of the Enterprise 
Agreement applying at the time.  The Respondent submits, however, that even if a fixed-term 
contract is not technically permitted by the terms of the Enterprise Agreement, it does not 
follow that the contract becomes a contract of permanent employment on the basis of 
illegality or on public policy grounds.7

Other considerations 

[78] The Respondent noted Ms Murphy’s evidence that there had been an agreement 
reached in respect of additional allocated hours to be credited to her.  Professor Neville’s 
evidence is that she thought it appropriate to appoint Ms Murphy for semester 1, 2020 to
allow Ms Murphy to have the benefit of the agreed allocation.  

[79] The Respondent put that if there had been a preference or intention to appoint Ms 
Murphy for the whole of 2020, the Respondent would have been required to have advertised 
the role and Ms Murphy would have been required to compete with other applicants in a 
recruitment process.  As set out in her statement, Ms Murphy had previously applied for an 
ongoing Lecturer (Level B) role and was unsuccessful. 

[80] Ms Murphy does not have and is not studying for a PhD and cannot point to research 
output during her time at USQ.  It was submitted that a six-month appointment was therefore 
to Ms Murphy’s benefit as she may not have been competitive in a recruitment process and 
therefore may not have been employed by the Respondent at all in 2020.  

[81] The Respondent acknowledged that there is a reference to Ms Gleeson’s staff number 
in the fixed term appointment form for semester 1, despite the appointment not being solely to 
cover Ms Gleeson’s work.  The Respondent submitted that the evidence shows, however, that 
Ms Gleeson had significant commitments in semester 1, 2020 and a decision had been made 








[2021] FWC 1800

20

to appoint Ms Murphy as a replacement employee on a short-term basis to support teaching 
commitments (including Ms Gleeson’s) across the Midwifery program for semester 1, 2020. 

Facts distinguishable to Navitas

[82] The Respondent submitted that the circumstances in this matter differ from the 
circumstances in Navitas, as the majority of the Full Bench found that Mr Khayam’s role was 
an ongoing one, and had the employer not had performance concerns, Mr Khayam would 
have continued in that role and the employment relationship continued.

[83] The Respondent says the facts in this case are further distinguishable from Navitas
because:

(a) Ms Murphy had relatively short service with the Respondent, during which she 
had been appointed on a total of five fixed term contracts. The appointments were 
not fixed term merely for ‘administrative convenience.’ The appointments were 
not consecutive.  They were generally on a semester-to-semester basis to cover the 
teaching commitments of continuing staff members who had other commitments 
or were on leave. Further, there is evidence that even if Ms Murphy had been 
offered a further contract for semester 2, 2020, she would not have commenced 
employment until the end of June or mid-July. There would have been another 
break in service in any event and the employment relationship would have come to 
end, albeit for a short period; 

(b) There was no ‘deliberate and considered decision’ to bring Ms Murphy’s 
employment to an end based upon an assessment of performance or disciplinary 
matters (as in Navitas).  Rather, there was a clear and genuine agreement that the 
employment relationship would end upon the expiry of the fixed term contract on 
19 June 2020; and

(c) As addressed further below, Ms Murphy’s final fixed term contract did not provide 
the Respondent with an unqualified right to terminate her employment and 
therefore it was a true fixed term contract and not a ‘maximum term’ or ‘outer 
limits’ contract.

Section 386(2)(a)

[84] Where the Respondent had earlier suggested that it did have a right to terminate the 
2020 contract with the giving of four months’ notice, the Respondent moved from that 
position in reply closing submissions.  It then suggested that it did not have an ‘unqualified 
right’ to terminate Ms Murphy’s employment within the term. 

[85] Ms Murphy’s 2020 fixed term contract contains a list of conditions that apply 
generally to fixed term appointments, the first being that the Enterprise Agreement governs 
the terms and conditions of that employment. The last dot point under the heading 
‘Conditions of Appointment’ refers to the applicable notice period to be provided by the 
Respondent in the event of termination of employment. It submitted that the clause is not a 
termination right. It simply records the applicable notice period if the fixed term contract of 
employment is terminated during its term in accordance with one of the permissible grounds 
in the Enterprise Agreement. 








[2021] FWC 1800

21

[86] The Respondent understands the Enterprise Agreement allows for termination of 
employment on the narrow grounds of serious misconduct, redundancy, ill health/incapacity 
or performance. These grounds are only available once the prescribed process in the 
Enterprise Agreement is followed. The Enterprise Agreement also allows for termination 
during probation, but as a staff member with prior service, Ms Murphy was not subject to a 
period of probation.

[87] The Respondent submitted that in light of the above, Ms Murphy’s final fixed term 
contract was a contract of employment for a specified period of time and the employment has 
terminated at the end of the period because it does not contain an unqualified right for either 
party to terminate. 

[88] It was submitted that an issue of jurisdiction is not one which is amenable to 
concession; the parties are not able to confer jurisdiction if it does not otherwise exist. If the 
Commission does not have jurisdiction to deal with the application it cannot do so, 
irrespective of what the parties say about the matter.  Therefore, if it is accepted that Ms 
Murphy’s employment fell within the exception to jurisdiction in section 386(2)(a) of the Act, 
the application must be dismissed on that basis as well.

[89] The Respondent’s oral submissions have been taken into consideration but need not be 
reproduced. 

Applicant’s Evidence 

Evidence of Ms Cheryl-Anne Murphy 

[90] Ms Murphy made three witness statements and appeared and gave evidence at the 
hearing.  She is a registered Nurse and Midwife holding: 

(a) a Bachelor Degree in Nursing from Monash University (awarded in 1992);
(b) a Certificate in Nursing (Neurosciences) from Victoria University (awarded in 

1994);
(c) a Graduate Diploma in Midwifery from the Australian Catholic University 

(awarded in 2002); and
(d) a Masters of Midwifery from the University of Sunshine Coast (awarded in 2014).

[91] Ms Murphy has worked as an academic teaching in nursing and midwifery programs 
since 2014.  Her most recent position was that of Lecturer (Midwifery) in the School of 
Nursing and Midwifery at USQ.  

Recruitment to USQ

[92] In 2017 Ms Murphy was working at Queensland Health as a midwife on a continuing
contract.  She had been working in that position since 2002. In the first week of January 2017, 
she received a call from Ms Rigg, Senior Lecturer in in the School of Nursing and Midwifery 
at USQ.

[93] Ms Murphy had known Ms Rigg for approximately two years.  They worked together 
at the Australian Catholic University, Banyo Queensland.  Ms Rigg said that USQ was 








[2021] FWC 1800

22

looking for new staff in the School of Nursing and Midwifery. She said that she had spoken to 
Professor Diane Duff, Campus Coordinator, who had approved the School recruiting new 
staff to teach into the Residential Schools and prepare teaching materials for the midwifery 
program. Ms Murphy says the position was originally expressed to her as being a casual 
appointment.

[94] On 12 January 2017, Ms Murphy attended a job interview with Professor Duff and Ms 
Rigg.  She attended the interview with Ms Helen Funk, who was also interviewing for the 
position on a ‘job share’ arrangement.  As neither Ms Funk nor Ms Murphy could work full 
time due to other employment commitments, the arrangement would be that Ms Murphy 
would work 0.6 FTE and Ms Funk would work 0.4 FTE. Ms Gleeson started working at 
around the same time. She was working only a small number of hours as she was completing 
a PhD and her scholarship conditions meant that she was unable to work more hours.

[95] Ms Murphy’s evidence is that different people, including Ms Rigg and Professor Duff 
described the role to her in different ways; sometimes as a casual position, sometimes as a 
part-time position, and sometimes as a fixed-term position.  Ms Rigg told Ms Murphy that a 
staff member, Mrs Bridget Roach, was on a 12-month period of unpaid leave, and she would 
be performing duties that had been allocated to that staff member.  Ms Rigg also told Ms 
Murphy she would be working regular, part time hours.

[96] Ms Murphy stated that she was told at the conclusion of that interview that she would 
be offered the role, but that they needed to confirm the details of the appointment.  She stated 
still did not know whether the appointment would be casual or fixed-term but understood that 
she would be needed for at least 12 months.  Ms Murphy asked whether she would be entitled 
to annual leave, Professor Duff said that she would need to confirm with Ms Cath Rogers.  
Ms Funk was also successful and was offered the other role.

[97] Ms Murphy commenced work on the midwifery program on or about 14 January 2017 
but had not yet received a contract.  She received a contract on 24 January 2017. It includes 
Fixed-Term Employment Entitlements and Conditions.  It states, “This contract of 
employment is not renewable.”

[98] Despite what the contract says, Ms Rigg sent to Ms Murphy a covering email stating, 

“Hi Cherylann, 
Here is your contract of employment.  As discussed, it is for the first six months.  
Once we get to the end of this contract, Cath Rogers has stated that it will be rolled 
over for a second contract for six months.  Can you have a read of this and if happy 
sign and send back…”

[99] The contract Ms Murphy was offered was categorised as a “specific task or project”
contract.  However, her evidence is the duties that she performed could not be described as 
being for a specific task or project.  All of the duties were ongoing and would continue to be 
necessary in the School for as long as the course was being offered.  Ms Murphy was 
appointed to a Level B academic position, and her duties were lecturing, designing course 
content, liaising with clinical facilitators at each site, support for the first and second year 
residential Schools in Queensland, and various other academic duties as required.








[2021] FWC 1800

23

[100] Ms Murphy did not question the fact that she had been given a six-month contract. The 
statement in Ms Rigg’s email that it would be rolled over was consistent with her 
understanding of the terms of the employment; that despite whatever was in the contract, she 
was going to be employed for longer than six months. As Ms Murphy had previously worked 
as a casual academic, she did not think it was strange that she was going to receive contracts 
that only lasted for the length of the semester and did not ask about it further at that time.

[101] In May 2017, Ms Murphy began asking what was happening regarding the renewal of 
her contract.  She spoke with Professor Duff a number of times in person about the status of 
her next contract. She responded that it had been approved and she was just waiting for it to 
be finalised. Whenever Ms Murphy asked Professor Duff about it, she was told that she 
shouldn’t worry about the formality of the contract and that everything had been approved.  
Ms Murphy was not concerned as she had been told in January that this was the process that 
would be followed, and she always understood that another contract would be offered.

[102] On 26 June 2017, Ms Murphy was provided with a new, six-month contract that was 
to run from 8 July until 1 December 2017. I note that one of the terms states, “This contract of 
employment is not renewable.”     

Replacement employee contract

[103] In September or October 2017, one ongoing, Level B Midwifery position became 
available and was advertised online.  Ms Funk, Ms Gleeson and Ms Murphy all applied for 
the position, and all were offered an interview. On 8 November 2017, Ms Rigg emailed Ms 
Funk, Ms Gleeson and Ms Murphy requesting them to do welcome videos for the units they 
had each taught in 2017, which would be shown to incoming students in 2018.  

[104] Around this time, Ms Murphy spoke with Ms Gleeson.  Ms Gleeson told Ms Murphy 
that she was concerned that if she was successful in getting the Level B Midwifery position, it 
may impact on her PhD scholarship conditions, as she would then not be permitted to work 
more than 0.5 FTE.

[105] Ms Murphy was told that she had been shortlisted for the position on 22 November 
2017 and was interviewed on 29 November 2017.  Shortly after the interview, Ms Murphy 
spoke to Ms Rigg as to whether she would be receiving more work in the School in 2018.  Ms 
Rigg told Ms Murphy that she couldn’t tell her the outcome of the interview but assured her 
that she would be needed in the School the following year, and she and Ms Funk would 
receive new contracts even if they weren’t successful in being awarded the ongoing role.     

[106] On 1 December 2017, Ms Murphy’s second contract came to an end. While she was 
not issued a contract with the Respondent, she didn’t look for other work because she had 
been told by Ms Rigg that she would be needed in the School next year.  Ms Murphy had no 
reason to doubt what Ms Rigg told her because the School did not have enough staff to run 
the Midwifery Program for first semester in 2018 without her.  She considered that there 
would not be enough time to advertise, interview candidates and check references. She was 
also comforted because she had been asked to produce welcome videos for the students she 
would be teaching in 2018.

[107] Around early December 2017, Ms Murphy was informed that Ms Gleeson had been 
successful in her application for the ongoing role.  Around 13 January 2018, Professor Duff








[2021] FWC 1800

24

informed Ms Murphy that Ms Gleeson would be reducing her fraction to 0.5 FTE for all of 
2018 and 2019 in order to accommodate the requirements of her scholarship.  Professor Duff
asked Ms Murphy about her availability to work for the School in 2018.    

[108] Subsequently, Ms Murphy received a call from Ms Rigg.  Ms Rigg informed her that 
she would soon receive a part-time “replacement employee” contract as the Midwifery 
program was significantly short-staffed, especially because Ms Gleeson was reducing her 
hours for 2018 and 2019.  

[109] Ms Murphy received a contract on 19 January 2018.  The letter attached to the 
employment agreement was signed by Ms Jane Farmer, Executive Director (Human 
Resources). It commenced on 22 January 2018 and was due to expire on 8 January 2020.   

[110] The Employment Agreement is different from the earlier agreements that had been 
issued to Ms Murphy (or this is the only one provided to the Commission in this format).  It 
was no longer a schedule of terms and conditions; it was set out in numbered paragraphs 
across a number of pages. 

[111] The appointment term clause includes the earlier references, “Please note this contract 
is non renewable.” A note below the signature page mentions the earlier enterprise agreement 
(2014 – 2017), but simply states that the Respondent is a party to it.  It did not inform Ms 
Murphy that she would be covered by the Enterprise Agreement. 

[112] Around 18 January 2019, Ms Gleeson returned to full-time work.  Ms Murphy’s 
understanding was that she had not finished her PhD at that time. As this was earlier than 
expected, Ms Murphy was told by someone in HR (whom she does not recall the name of) 
that her contract would need to change.  Mr Murphy was given another “specific task or 
project” contract that was to run from 4 February 2019 to 8 January 2020, the same end date 
of the contract that was being replaced. The contract stated that it was to “support the 
teaching of the Midwifery program.”

[113] The Fixed Term Appointment Request form nominates the following justification for 
the role: 

“Why is this position needed and what is the impact if appointment is not made at this 
time?
Ms Murphy was appointed from a selection process to provide .5fte back-fill for 
Danielle Gleeson who was a full time continuing appointment and negotiated a 
.5fte appointment in order to work on her PhD.  Ms Gleeson has now returned to 
full time employment and the School still required Ms Murphy’s appointment to 
support the teaching of the Midwifery program.  The School wishes to transfer 
the cost for this appointment from the School’s salaries budget to the School’s 
casual contracts budget.” [original emphasis].

WAMS issue

[114] Ms Murphy stated during the course of semester 1, 2018, she began to feel that she 
was overworked, and the duties she had been assigned in her WAMS were not able to be 
completed within the 0.5 FTE contract that she was working.  Ms Murphy brought this to the 
attention of Professor Duff as the Ipswich Campus Coordinator. However, Professor Clint 








[2021] FWC 1800

25

Moloney was then delegated the role of Deputy Head of School during a transition period 
from 1 March 2018 for a 3-month period, when Dr Rogers retired and the School awaited the 
announcement of a new Head of School.  

[115] Professor Moloney took over the responsibility of attending to WAMS. There were 
differing opinions about how to complete the WAMS between Professor Moloney and 
Professor Duff, and eventually Professor Duff had this responsibility taken away from her and 
given to Associate Professor Terry.  Ms Murphy’s WAMS was not amended at this time.

[116] On or about 13 December 2018, Ms Murphy discussed the WAMS issues with Ms 
Rigg, informing her that she believed her workload was excessive.  She considered it was 
excessive for a 0.5 FTE to coordinate and review material for two residential Schools in both 
February and May for two sites in Queensland and Tasmania for semester 1 in 2019, whilst 
also needing to prepare for theory and clinical courses.

[117] On 7 February 2019, Ms Murphy emailed Ms Rigg stating that in light of the 
enrolment numbers for the units she had been allocated, she did not think that she would be 
able to manage the workload within the 0.5 FTE fraction.  Ms Rigg forwarded that email to 
Professor Neville, copying Ms Murphy in.  Professor Neville responded copying in Associate 
Professor Terry, stating that WAMS was still in progress and each staff member’s load would 
“be systematically looked at.”

[118] Ms Murphy stated there were “many more meetings and discussions about WAMS in 
early 2019.”  Agreement was reached that Ms Murphy had been over-allocated work in 2018 
and continued to be overallocated in 2019, without remuneration for the additional hours.

[119] On 5 June 2019, Ms Murphy received a letter from Professor Coleman, informing her 
that USQ had undertaken a wide review of workloads in the School for 2018 and Ms Murphy 
was identified as a person who had been overallocated in their workload for 2018.  Ms 
Murphy was to receive $3,000 of ADEB funds to be rolled into 2019-2021.  She does not 
know what ‘ADEB’ stands for. The letter stated that she could use the funds in a manner that 
best suits her personal circumstances (e.g. buy out of teaching, research, travel or conference).

[120] On 20 June 2019, Ms Murphy attended a meeting to discuss her workload and a 
possible solution to her workload issues. This meeting was held by Zoom and was attended by 
herself, Professor Neville, Ms Rigg, Ms Susan Camfermann, Associate Director (Workplace 
Support and Partnering) and Mr Robert Rule, NTEU Industrial Officer and Ms Kate Charlton, 
the School Support Officer, who digitally recorded and took minutes of the meeting.

[121] On 18 November 2019 a second meeting was held by Professor Neville in person at 
the Ipswich campus to discuss the action items from the previous meeting on 20 June 2019.  
The meeting was attended by Professor Neville, Ms Rigg, Ms Michelle Boettcher (the School 
Support Officer Paramedicine), ‘Dale’, Mr Rule, and herself.  After some adjustment of Ms 
Murphy’s WAMS, Professor Neville agreed Ms Murphy was owed hours.  There was some 
back and forth about the hours she was owed; Ms Murphy believed that it was more, and 
Professor Neville said that she believed that it was less. Ms Murphy’s evidence is that when 
she pressed this, Professor Neville responded with words to the effect, “I think this is a pretty 
fair deal, I’ve already guaranteed you a job for 2020. I’m not going to give you any more 
hours.”  Ms Murphy understood this to be a reference to the plan for her to cover Ms 
Gleeson’s leave in semesters 2 and 3, 2020. 








[2021] FWC 1800

26

[122] The finalisation of the number of hours Ms Murphy was owed occurred later. That 
number was 196 hours.  The 196 hours is shown as “Carry over of additional hours as per 
HoS approval 19.12.2019” in her WAMS allocation excel sheet for 2020 that she accessed 
from the USQ sharepoint site.  This means that Ms Murphy had extra hours in her WAMS 
allocation; essentially free time that is not allocated to other academic duties such as teaching, 
research, or service to the university.  It is similar to time off in lieu but appropriate to the 
self-directed nature of academic work.  It also counted towards the maximum hours that could 
be allocated to Ms Murphy over the course of the year, effectively reducing the duties that 
could be allocated to her by 196 hours. Professor Neville confirmed in email Ms Murphy’s 
additional hours would be carried over.  

[123] It is Ms Murphy’s evidence that there is “no way” she could have recovered 196 hours 
in just semester 1, 2020.  She was given theory courses, clinical courses and a new service 
role in semester 1, 2020.  She considers that it would have been impossible to get all 196 
hours back while fulfilling her duties and the allocated hours.

2020 Contracts

[124] In early September 2019, Ms Murphy was told by Ms Gleeson that she had applied for 
a type of paid study leave called ADOS, for semester 2 and semester 3, 2020.  The study leave 
was to assist her to complete her PhD, and the leave entitled her to be off from her teaching 
workload for semesters 2 and 3, 2020.

[125]   In September 2019, Ms Rigg began talking to Ms Murphy about which courses she 
would be taking in Semesters 1 and 2, 2020.  Ms Rigg also asked her about her availability.  It 
is Ms Murphy’s evidence that the reason Ms Rigg asked her about her availability is because 
Ms Rigg knew about Ms Murphy’s secondary employment with Queensland Health.  Any 
increase in hours for USQ would affect her role at Queensland Health, and she was trying to 
keep both employers happy. She said this is something she had discussed with Ms Rigg in 
previous years and is something that was pretty common amongst staff teaching into the 
midwifery program. 

[126] Ms Murphy advised Ms Rigg that she could be available to USQ for the whole of 
2020, but she would need confirmation from USQ of their intent to use her teaching services 
for the whole of 2020.  Ms Murphy explained that her manager at Queensland Health had also 
requested that she reapply for the role that she had previously held with them as a student 
facilitator, which would require full-time hours, but that her preference was not to take up full 
time hours there if she could work for USQ.  Ms Rigg replied that she would meet with 
Professor Neville to discuss the 2020 staffing, and share Ms Murphy’s concerns regarding her 
role with Queensland Health, and express her desire to offer her teaching in the Bachelor of 
Midwifery program for both semesters of 2020.

[127] It is Ms Murphy’s evidence that on 13 September 2019, Ms Rigg advised her that she 
had met with Professor Neville and had discussed Ms Murphy’s contracts for 2020.  Ms Rigg 
told Ms Murphy that she expected that she would receive another contract to work in 2020, 
and that she would be covering Ms Murphy’s ADOS leave in semester 2, 2020.  As they had 
discussed that Ms Murphy wanted to work both semesters, Ms Murphy expected it to be a 12-
month contract.








[2021] FWC 1800

27

[128] Ms Murphy’s evidence is that it was not unusual for her to receive information about 
her employment from Ms Rigg.  While Ms Murphy would discuss the WAMS issue with 
Professor Neville or Associate Professor Terry, she did not discuss her employment directly 
with Professor Neville or Associate Professor Terry; Ms Murphy learned what they decided 
through Ms Rigg.   She believed that she could rely on what Ms Rigg had told her, because 
what she had told her in the past was reliable.

[129] On 6 November 2019, Ms Rigg met with Ms Murphy and Ms Gleeson to establish 
what courses they would be happy to teach in 2020.  Ms Murphy discussed with Ms Rigg 
which units she would like to teach in semesters 1 and 2.  She said her preference was to teach 
into MID2102, 2199, 2299, and do some marking and course moderation for MID2191 in 
semester 1.  For semester 2, Ms Murphy said she would like to teach into MID2201 and 2299, 
and do some course moderation and tutorial preparation for MID2399 and 2499.  She also 
volunteered to do the residential School work for first and second years in both semesters of 
2020.

[130] On 8 November 2019, Ms Rigg sent Ms Murphy a document titled Midwifery 
Teaching Academics 2020 WAMS Draft Prepared by Elizabeth Rigg.  The allocation given to 
her reflected the conversation she had had with Ms Rigg and Ms Gleeson on 6 November 
2019. In a covering email Ms Rigg asked for Ms Murphy’s feedback on the draft as soon as 
possible as she was “trying to sort contracts early next week.”  The document showed that Ms 
Murphy was allocated to teach one theoretical unit and allocated to perform work in three 
clinical units in semester 1, 2020, and in semester 2, 2020 she was to teach two theoretical 
units and perform work in five clinical units.

[131] Ms Murphy’s evidence is that shortly afterward, Ms Rigg said to her that she sent this 
draft to Professor Neville or Associate Professor Terry for approval.  A short time later, Ms 
Rigg said to Ms Murphy that she had spoken to Associate Professor Terry who had agreed 
that Ms Murphy would continue to teach into the Midwifery Program in 2020 and that the 
intention was that she would have a one year fixed-term contract covering both semester 1 
and semester 2 teaching.

[132] On 12 November 2019, Ms Murphy was copied into email correspondence between 
Ms Rigg and Ms Larissa Pears, Operational Support Officer, with a request from Ms Pears 
that she supply USQ with her CV.  In that email chain before Ms Murphy was copied in Ms 
Rigg was discussing the staffing needs of the school for 2020 with Ms Pears.  The email 
states: 

“At this stage, the only contract I feel needs to be raised is a six month full time 
contract for Cheryl-Anne Murphy for semester 1.  A second 6 month contract will 
need to be raised for S2 when that time comes commencing 6th Jan to 19th June 
working Monday – Friday. (note, some of these days she may work from home).  As 
discussed, with Danielle Gleeson taking ADOS for six months in 2020, Cheryl-Anne 
will assist by back filling her teaching….”

[133] Ms Murphy read the emails between Ms Rigg and Ms Pears, and understood that this 
would be similar to 2017 when she had been told that she would receive two six-month 
contracts, and then she did.








[2021] FWC 1800

28

[134] Ms Murphy asked Ms Rigg why the contract she was offered was not longer.  Ms Rigg 
told Ms Murphy she had asked this question herself as it had already been agreed that she 
would be working in the School in semester 2, 2020.  When Ms Rigg said that it had been 
agreed, Ms Murphy understood that to be a reference to Professor Neville agreeing that Ms 
Murphy would be replacing Ms Gleeson when she went on leave in the second half of 2020.  
Ms Rigg told Ms Murphy that the response she had received from the School Support Officer 
was that there was a new policy that required fixed-term positions of 12 months’ duration to 
go through external advertising and recruitment.  Ms Rigg told Ms Murphy that as there was 
no time to go through this process, she would be offered two six-month contracts instead.

[135] On or about 13 November 2019, Ms Murphy received and signed a full-time 
“Replacement Employee” contract for semester 1, 2020, due to commence on 9 January 2020.  
To Ms Murphy’s knowledge there was no employee that was on leave in semester 1, 2020 
that she was supposed to be replacing. 

[136] I note that the Fixed-Term Employees Entitlements and Conditions had reverted from 
a numbered paragraph document to a schedule as per the earlier iterations.  There were, 
however, changes such as: 

“ · The provisions of The University of Southern Queensland Enterprise Agreement 
2018 – 2021, and The University of Southern Queensland Act 1998 (as amended) 
apply independently to this employment relationship and do not form part of this 
contract.  In addition, you are required to comply with all management directions, 
including USQ policies and procedures as amended from time to time,although they do 
not form part of this contract. 
· An essential feature of fixed-term employment at USQ is that there is no expectation 
of continuity of employment unless stated otherwise, in writing by the Executive 
Director, Human Resources. 
…..
· This contract of employment is not renewable. 
· Notice of 4 weeks (fixed -term replacement employees on parental leave), 5 weeks 
(all other professional employees) or 4 months (academic employees) will be provided 
by USQ to terminate employment.
…………………”

[137] Ms Murphy provided the following emails sent on 14 April 2020: 

(a) 14 April 2020 at 1:34pm: Ms Rigg to Professor Neville

“Hi Christine, 
Two of the courses Cheryl-Anne has been allocated to teach in Semester two, she 
has never taught before, therefore should attract additional first time teaching 
hours I believe.  This in its self would push her over her hours – this is also the 
case for myself, with several of the 2nd year courses. 
In relation to Cheryl-Anne, a great deal of upset has been generated in relation to 
these recent emails in relation to re-allocating Danielle’s working to Cheryl-Anne.  
I followed up with Cheryl-Anne last week when I saw her comments indicating 
she would not be able to do Danielle’s marking.
Confidentially, I am concerned that if Cheryl-Anne is pushed too far we run the 
risk of her either not re-signing her contract for semester 2 and/or reducing her 








[2021] FWC 1800

29

availability for S2 to a bare minimum and leave us in a very difficult position 
indeed.  Is there any way we can find an alternative solution for teaching the 
MID2202 for S2?
Elizabeth”

(b) 14 April 2020 at 1:57pm: Professor Neville to Ms Rigg

“Dear Elizabeth
First time teaching a course hours no longer exist.  If Cheryl Anne has hours 
available they must be used. 
Regards
Christine”

(c) 14 April 2020 at 2:21pm: Ms Rigg to Professor Neville

“Hi Christine, 
Are you able to send me an updated WAMS record for the midwifery team 
members who have had their WAMS changed thanks
Elizabeth”

(d) 14 April 2020 at 2:42pm: Professor Neville to Ms Boettcher cc. Ms Rigg

“Hi Michelle

Some staff cannot look at the WAMS online, pls could you send a screenshot of 
the updated WAMS when complete to the midwifery team and myself. 
Regards
Christine”

(e) 14 April 2020 at 2:51pm: Ms Boettcher to Professor Neville cc. Ms Rigg, Ms 
Gleeson, Ms Murphy

“Hi All

Attached are workloads for the midwifery team. 
Please note that WAMS is no longer on the VPN and is accessible via Uconnect 
with no restrictions for staff to access. I’ve checked everyone’s access levels and 
you should be able to view them from home. 

Kind regards”

(f) 14 April 2020 at 6:34pm: Ms Rigg to Ms Murphy

“Cheryl-Anne – what has been changed to make your hours lower from what they 
were on Friday? I note this has also been without consultation with you
Elizabeth”

(g) 14 April 2020 at 6:50pm: Ms Murphy to Ms Boettcher

“Hi Michelle, 








[2021] FWC 1800

30

I would like clarification to know how I owed 17 hours last Friday to now owing 
90 hours? Changes have been made without consultation with me and I feel very 
unfair in this process
Regards Cheryl-Anne”

(h) 15 April 2020 at 8:56am: Ms Boetcher to Ms Murphy

“Hi Cheryl-Anne

I have been tasked with correcting N&M WAMS. 
There are a lot of errors and I’m going through cleaning up the basis first in all 
courses. 
I’ve realigned the midwifery courses with how they should have been entered in 
the first instance and as per our meeting earlier this year.  Two courses you had the 
hours of the Examiner in error, when Danielle was the Examiner, so those hours 
are gone. 
Also schools forums have been reduced, with travel for the first forum of the year 
and the rest will be online, so that travel was reduced. 
The major stuff are the changes that Christine has been emailing you about and I 
have not put that in there as yet. 
I’m not doing anything that should not have been done in the first place.  I don’t 
have the authority to do that and I wouldn’t do that without you knowing about it. 
Please feel free to call me on [number] if you wish to discuss this further.
Take care”

(i) 15 April 2020 at 8:57am: Ms Murphy to Ms Rigg

“FYI”

[138] At this time, in other emails, Professor Neville informed Ms Rigg that Ms Murphy 
would be the examiner for MID2202.  Ms Murphy’s evidence is this would mean that she was 
going to be teaching into five courses in semester 2.  Ms Murphy stated she began to feel that 
if the workload issues were going to continue in the same manner as they had last year, she 
would have to revert to part-time employment or she would be grossly overworked.

[139] On 14 April 2020, Ms Rigg forwarded to Ms Murphy emails that he been swirling 
between Professor Neville, Ms Gleeson and Ms Rigg, some of which had copied Ms Murphy 
in, but the latest emails did not.  Clarification was being sought on Ms Gleeson’s 
responsibilities in semester 2, 2020.  The emails read as follows :

(a) 14 April 2020 at 1:01pm: Ms Rigg to Professor Neville

“Hi Christine, 
Thank you for clarifying this.  This would then mean that Danielle should now have 
available time in her work allowance to mark her own assignments. Can I ask, does 
the full year allocation of research still apply? 
Regards
Elizabeth”

(b) 14 April 2020 at 1:03pm: Professor Neville to Ms Rigg








[2021] FWC 1800

31

“I am just doing up an email but she will be reassigned the marking but yes, research 
is reduced and she will be given 80hrs to develop the indigenous course with Vicki 
(20hrs) and CAM will be the examiner for this course in S2.”

(c) 14 April 2020 at 1:06pm: Ms Rigg to Ms Murhpy

“Just received this from Christine.. !! lets see what she comes up with but I am not 
sure how you are going to do the MID2202 as well??
Eliz”

(d) 14 April 2020 at 1:10pm: Ms Murphy to Ms Rigg

“I am not! I am not doing MID2201, 3201, MID2299, MID2399 and now MID2202 
moderator and marker for other courses. Two courses I have never taught in either. I 
am not signing another contract under those requirements. I am just being used and 
possibly flogged here! 
Regards Cheryl-Anne”

[140] Ms Murphy’s evidence is that she was incredibly stressed about the continued 
additions to her workload.  She didn’t think that she could handle having another “fight” to 
fix her WAMS allocations as she had found this very difficult in 2019.  She felt like the only 
way to get the hours she was working down to a manageable level was formally to reduce her 
fraction.

[141] On 17 April 2020, Ms Murphy emailed Professor Neville the email at [5].  Her 
evidence is that she thought by sending this email, she hoped that Professor Neville would see 
that she couldn’t manage the workload allocation Professor Neville was proposing.  She 
hoped that the email would start an open discussion about what Ms Murphy thought was an 
unreasonable and unfair allocation.  Ms Murphy did not receive a response to her email.      

[142] Ms Murphy also spoke to Mr Rule as her NTEU representative about the issue. He 
said he that he was going to have a meeting with Professor Neville in the coming days and 
would bring up Ms Murphy’s WAMS issue with her.

[143] On 7 May 2020, Ms Murphy and Ms Rigg exchanged the following emails: 

(a) 7 May 2020 at 1:04pm: Ms Murphy to Ms Rigg

“Hi Elizabeth, 
You asked me to check my WAMS to see the updated teaching for semester 2. It states 
2200 hours with no changing in the teaching of courses. 
Regards Cheryl-Anne”

7 May 2020 at 1:30pm: Ms Rigg to Ms Murphy

“2200 hours.. something is not right there are your availability is not full time. I would 
email Michelle and ask her if that is right. Don’t forget, we all need to have 
moderation now added into our WAMS according to Jackie Yesterday!! 
Elizabeth Rigg”








[2021] FWC 1800

32

7 May 2020 at 1:52pm: Ms Rigg to Ms Murphy

“Hi Cheryl-Anne, 
I just took a look at everyone else’s WAMS in the school and nurse lecture allocations 
in the School range between 1100-1550. The lowest allocation being 600 hours for 
HoS. All staff in senior positions have allocations well below 1400 most sitting around 
1200-1300..  This is so disheartening to see.”

7 May 2020 at 1:57pm: Ms Murphy to Ms Rigg

“Yes especially I now have to go part-time because of this, I feel we are totally 
unsupported. 
Regards Cheryl-Anne”

[144] Ms Murphy stated what she viewed online in the USQ sharepoint site was very 
different to the discussions and WAMS draft sheet.  She had been allocated 2200 hours for 
the year 2020, instead of what she previously viewed at 1642 hours.  Ms Murphy knew that 
under the WAMS model her hours should be close to 1702 hours for one year, including the 
hours she still had in credit from the WAMS overallocation issue in 2019.

[145] Ms Murphy was down to teach the courses she had expected to teach, but additional 
teaching had been added.  She was now supposed to teach MID2202: Aboriginal and Torres 
Strait Islander: Health and Cultural Practice for the Midwife (no longer moderator but full 
teaching) and MID3202: Perinatal Mental Health.  

[146] On 11 May 2020, Ms Murphy was copied into an email chain between Ms Rigg and 
Ms Boettcher.  The table in the email from Ms Boettcher of 7.36pm on 11 May 2020 shows 
that Ms Murphy was down to teach semester 2 units.

[147] On 11 May 2020, the following emails were sent: 

(a) 11 May 2020 at 3:28pm: Ms Rigg to Ms Boettcher

“Hi Michelle, 
I just had a look at Cheryl-Anne’s WAMS and they are now sitting at 2200 odd hours.  
As advised, her fraction for S2 may only be 0.5 which represents 0.75 availability. Can 
you have a look at this and advise what’s happening to make such hours for her? 
Elizbeth Rigg”

(b) 11 May 2020 at 4:56pm: Ms Boettcher to Ms Rigg

“Hi Elizabeth
I haven’t been formally advised of her new agreed terms as yet and as such her 
WAMS do not represent beyond her existing contract. 
Regards”

(c) 11 May 2020 at 5:26pm: Ms Rigg to Ms Boettcher

“Does this mean that the 2,200 hours represent what she has worked in S1?








[2021] FWC 1800

33

Elizbeth Rigg”

(d) 11 May 2020 at 7:36pm: Ms Boettcher to Ms Rigg

“Hi Elizabeth

She has hours in there already for S2
[table attached]”

(e) 11 May 2020 at 11:40pm: Ms Rigg to Ms Boettcher

“Hi Michelle, 
Would it be possible to look at her WAMS to try and fix them up.  For example, her 
fraction availability is not 50% - she worked full time in S1 and at this stage, has 
advised Christine she is happy to accept 0.5 contract in S2. This means her availability
for the year is not 0.5 – it should be 0.75 I think?  Is this how it is done? I also note her 
moderation for S2 has not been allocated, and S1 has (this is the same in mine also). 
Leaving her WAMS sitting up in the order of 2200 is very problematic. Can you have 
a look at this and have a discussion with her to resolve her WAMS. Thanking you in 
advance. 
Thank you
Elizabeth Rigg”

(f) 12 May 2020 at 8:26am: Ms Boettcher to Ms Rigg

“When I’m advised that her new contract is finalised I will then adjust the WAMS.”

[148] On 3 June 2020, the following emails were sent: 

(a) 3 June 2020 at 2:09pm: Ms Murphy to HoS – Nursing and Midwifery, cc Ms 
Boettcher

“Hi Michelle, I know you are still working with WAMS and I appreciate this. I have 
CC’d HOS into this email as I have just looked at my WAMS and have noticed that I 
am down to work in semester 2 at a .8Fte finishing on the 4.12.2020. I had thought this 
would be for a .5Fte?. I do want to ask if O.K as this contact will be ending much 
earlier than all other of my contracts, as I have normally worked during this busy time 
preparing residential school for semester 1. December is a hard time to look for other 
employment. Danielle will also be away until mid to late January to my knowledge. I 
will await your response
Warm regards Cheryl-Anne”

(b) 3 June 2020 at 2:20pm: Ms Boettcher to Ms Murphy and HoS

“Hi Cheryl 
Yes we are still working on WAMS so nothing is finalised. All S2 work across the 
board is a moving feast at the moment and S2 term contracts are not finalised so we 
are moving things around to see how they look. 
WAMS works on annual basis.
You had a contract in S1 for 1.0FTE.








[2021] FWC 1800

34

For S2 it was proposed 0.5FTE. 
For WAMS purposes the two contracts are put together and averaged out over the 
calendar year. This equates to 0.8FTE.
I am unable to comment on the rest of your email. Christine would have to respond. 
Hope that all makes sense.”

(c) 3 June 2020 at 2:34pm: Ms Murphy to Ms Boettcher, cc HoS

“Thanks for the clarification. I was looking at the overall total 1645 hours which 
equates to a near full-time Fte. I was thinking I would be three quarters of a fulltime 
employee. I have looked at the workloads across the Midwifery teaching team in 
semester 2 and feel personally my workload for semester 2 is larger than others at the 
same Fte, and is not fairly distributed. I will await your finalising this for me. 
Warm Regards Cheryl-Anne”

(d) 3 June 2020 at 3:12pm: Ms Boettcher to Ms Murphy, cc HoS

“Hi Cheryl-Anne 
Regardless of whether you are full time, part-time, on a 48/52, or reduced hours due to 
extended sick leave, everyone’s workload has to equate to 1702.5. The availability 
fraction takes into account the time that you are not available to work. For example: 

Employee is 0.8FTE 80% of 1702.5 total working hours in a year = 1362 working 
hours 
This means that for 340.5 hours you are not available to work. This is shown in 
WAMS as the Availability Fraction. 

1362 working hours 
+            340.5 non-work hours 
=            1702.5 total hours 

As mentioned in my previous email, we are still working on S2 so the hours may not 
be finalised as yet and it is too early to compare to others until the process is 
complete.”

[149] On 4 June 2020, Ms Murphy received an email from Professor Neville informing that 
she would not be receiving a contract for semester 2, 2020, at [6].

[150] Ms Murphy stated that at all times in 2020, she believed that she was to be employed 
by USQ in the second semester of 2020.  She did not apply for the student facilitator position 
at Queensland Health because it was her understanding that she would have employment at 
USQ throughout 2020.  Had Ms Murphy known that this was not to be the case, she would 
have applied for the student facilitator role, and she would have arranged any fractional 
arrangement at USQ accordingly.

Other opportunities foregone

[151] Throughout 2019, Ms Murphy’s other employer, Queensland Health, hired five new 
people on full-time ongoing contracts.  She did not bother applying because she understood 








[2021] FWC 1800

35

that USQ had an ongoing need for her teaching and she would continue to receive contracts.  
For example, while Ms Gleeson was only supposed to be on leave for the second half of 2020, 
Ms Murphy knew that Ms Rigg would be busy with reaccreditation in 2021, and therefore the 
School was likely to need Ms Murphy to continue teaching through that year.

[152] Ever since Ms Murphy worked as a casual academic at the Australian Catholic 
University (ACU), she been on a list of contacts for potential casual employees. Since taking 
up the role at USQ she never bothered to take herself off the list. On 17 December 2019, Ms 
Murphy received an email from the School of Nursing, Midwifery and Paramedicine School 
Team Leader inviting expressions of interest in teaching in 2020.  If Ms Murphy had not 
known that she would be employed at USQ for the whole of 2020, she would have applied for 
work as a casual at ACU for the second semester of 2020.

Ms Murphy’s second witness statement 

[153] In reply to the evidence of Professor Neville about short staffing, Ms Murphy accepted 
that Professor Neville couldn’t have said the things about short staffing that had been put in 
Ms Murphy’s first witness statement, because Professor Neville was not yet employed.  
However, it is her evidence that Ms Rigg has reported to Ms Murphy that she has had some 
discussions with Professor Neville regarding short-staffing in the School. 

[154] Ms Murphy stated that, for example, when Ms Leah Avery was hired in early 2020, 
Ms Rigg and Ms Murphy had a conversation to the effect that Ms Rigg had raised concerns 
with Professor Neville that hiring Ms Avery would have very little impact on the 
understaffing issue in the school.  This was because Ms Avery was only qualified to teach 
into residential or clinical subjects, and therefore couldn’t teach theory subjects.

[155] Ms Murphy disagrees that Professor Neville only became aware of her WAMS issues 
in February 2019.  Just prior to Professor Neville coming into the Head of School role there 
were a number of meetings held to raise the issue of overwork in the School.  Ms Funk and 
Ms Murphy had approached Ms Rigg about the fact that they were being overworked, and Ms 
Rigg then organised meetings with the relevant school executive members to try to sort out 
the issue.  By 4 June 2018, Professor Neville had become the Head of School and Professor 
Maloney suggested that they now involve Professor Neville in these discussions. A number of 
these meetings were organised by email. 

[156] It was Ms Murphy’s evidence that the outcome about the abovementioned issue of 
overwork was that in December 2018 many staff were recognised as having been 
overallocated. Professor Neville and Professor Coleman sent an email to affected staff letting 
them know that the executive of the School was aware of the issue and making efforts to 
remedy it. The end of the email stated that Professor Neville and Professor Coleman were 
confident that measures, such as the hiring of additional staff, had been taken to ensure that 
the workload issues would not arise again.

[157] Ms Murphy only had had two meetings with Professor Neville about her 
overallocation of hours.  Those meetings were on 20 June 2019 and 18 November 2019.  At 
neither of those meetings did Professor Neville communicate “workload management 
strategies” to Ms Murphy.  At the second meeting, Professor Neville did say that if Ms 
Murphy was going to do any work on the courses, she was to get approval from her first.  It 
was stated that it could not have been the case that work needed to be approved by the 








[2021] FWC 1800

36

Associate Head for Learning, Teaching and Student Success when the overallocation in 2018 
occurred, as this role did not exist until August 2019.

[158] Ms Murphy disagrees with Professor Neville statement that there is a 1:10 teacher-to-
student ratio in some subjects; Ms Murphy is not aware of any such ratio existing.  In the 
WAMS, Ms Murphy is not ever shown as having ten students. For example, on the line for 
course MID2101, there are 30 students.

[159] Ms Murphy does not agree with Professor Neville where she says that the additional 
hours Ms Murphy had worked were “unauthorised.”  Ms Murphy had told Ms Rigg that she 
was working them, and no one told her not to do them. Also, there was work that needed to be 
done on the courses she was teaching in 2018 and 2019.  Someone had to prepare and update 
the content to be taught to students, because it didn’t exist or was badly outdated before Ms 
Murphy prepared or updated it.

[160] Ms Murphy spoke with Ms Jackie Lea, the School’s Associate Head for Learning by 
Zoom on 4 June 2020 about two subjects.  One subject was the residential Schools which Ms 
Avery and Ms Murphy were going to teach in July 2020.  The second subject was course 
2201– “Developing the midwife.”  Students had given it a 3.4 score out of 5 the previous 
year, and Ms Lea spoke with Ms Murphy about suggestions to improve the content of the 
course.  Ms Murphy’s evidence is that Ms Lea never said anything to suggest she was not 
going to be teaching the course herself in semester 2. 

[161] Referring to Professor Neville’s evidence that Ms Murphy’s 196.8 hours were carried 
across into her WAMS for semester 1, 2020 only, Ms Murphy stated that is not right.  The 
WAMS records the 196.8 hours as carry over in line four. In the first column, it says semester 
“0.”  That means that entry is for the entire year.  Similarly, the other line items for Semester 
“0” are for the entire year.

[162] Ms Murphy provided detailed evidence is to how she says she did not enjoy the 
benefit of a reduced workload in semester 1 on account of the 196.8 hours.  She stated that 
with Ms Rigg’s agreement she would take a half day Friday off. She usually marked this as 
“not available” or “TOIL” in her calendar which was shared with others. She estimates that 
she only took 35 of the 196.8 hours. 

[163] With respect to the meeting of 18 November 2019 about ongoing workload concerns, 
Ms Murphy stated that at the meeting Professor Neville never referred specifically and only to 
semester 1, 2020.  She did refer to Ms Gleeson being on ADOS during semester 2 and that Ms 
Murphy would be there to support that leave. Her evidence is that it would not make sense for 
this to be only referring to semester 1, 2020 as Ms Gleeson was not on leave then.

[164] Ms Murphy stated that she does not know what authority Ms Rigg has.  However, in 
her time at USQ, Ms Rigg was the person who communicated to Ms Murphy that she was to 
be working in a particular capacity in the coming semester or year and was the person with 
whom Ms Murphy discussed her teaching preferences.

[165] Never until the recent events in relation to semester 2, 2020 were Ms Rigg’s 
communications to Ms Murphy that she was to be employed in the future inaccurate or 
wrong.  What Ms Rigg told Ms Murphy about her hours might have been different from what 
she ultimately worked, but never was she wrong or inaccurate about the fact she would be 








[2021] FWC 1800

37

employed.  It was very normal, and consistent with previous years, for Ms Rigg to 
communicate decisions about contracts to her. 

[166] Ms Murphy’s evidence is other than the two meetings she had with Professor Neville 
in the context of the WAMS discussions, she only ever spoke with Professor Neville on one 
occasion, when she first arrived at the school. Ms Murphy considered it very usual to have 
communications with Ms Rigg about decisions and contracts issued to her.  

[167] Ms Murphy stated that Ms Rigg never conveyed to her that she, Ms Rigg, had made 
the decisions about her contracts in 2020.  Ms Rigg said to Ms Murphy that Associate 
Professor Terry and/or Professor Neville had said Ms Murphy would be employed.

[168] Ms Murphy believed that Associate Professor Terry could make hiring decisions 
especially when acting in Professor Neville’s position. While Ms Murphy understood that the 
ultimate authority for approving employment for staff in the School rested with Professor 
Neville, it seemed in her experience that she had largely delegated these responsibilities to 
Associate Professor Terry and Ms Rigg. 

[169] It is Ms Murphy’s evidence that WAMS documents are not “planning” documents in 
the sense of working drafts or the like that cannot be depended upon.  Ms Murphy accessed 
the WAMS document regularly during her employment at USQ to ascertain what work she 
was to do for the university.  While the WAMS was sometimes updated from time to time 
(usually to add hours or tasks or work), it was not treated by staff as a draft or something that 
could not be depended upon as reflecting the teaching responsibilities of the employee, and is 
viewed by staff as the primary source of duties and responsibilities for each individual staff 
member. While it is subject to change, it should remain relatively static during semester 
unless duties are reallocated for some reason that was not foreseen at the start of the semester.

[170] With respect to Professor Neville’s evidence about student number finalisation at the 
census date, Ms Murphy stated she does not know what Professor Neville means by 
“finalised.”  Student numbers are only “finalised” in a sense on census date, which is usually 
four or so weeks after the semester begins. Teaching allocations need to be in place before 
census date, otherwise there would not be a teacher to teach the course before the census date.

[171] Ms Murphy says that Ms Gleeson did not ever say to her that she had “significant 
academic commitments” in semester 1, 2020 that meant Ms Murphy had to be employed to 
provide cover for her.  No one ever said to Ms Murphy that was why she was employed in 
semester 1, 2020.  

[172] On 14 April 2020, Professor Neville asked Ms Boettcher to provide her and the rest of 
the Midwifery team with their completed WAMS documents. Ms Boettcher responded, 
copying in the rest of Midwifery and attaching all of the staff’s WAMS allocation documents. 
Ms Gleeson’s WAMS allocation shows that she was allocated 561 hours in semester 1, 2020, 
and would be on leave for all of semester 2. This means that the WAMS document shows she 
was under-allocated by about 282 hours in semester 1, 2020. 

[173] Also on 14 April 2020, Professor Neville emailed the Midwifery team allocating an 
extra 80 hours of work to Ms Gleeson because she was under-allocated at that time.  In the 
same email Professor Neville notes that she had assigned Ms Murphy to be the examiner for 
MID2202 for semester 2, 2020.








[2021] FWC 1800

38

[174] Referring to the email she sent on 17 April 2020, Ms Murphy stated that she sent it at 
a time when she was highly distressed.  She sent it in the hope that Professor Neville would 
understand that the amount of work they were suggesting Ms Murphy do at that time was too 
much.  At that time, Ms Murphy’s WAMS was showing some 2200 hours for the whole year, 
and she thought that saying she would go down to 0.5 FTE would show that they were asking 
too much in terms of hours.

[175] In sending that email, Ms Murphy stated it was not the case that she thought she didn’t 
have a job in semester 2, 2020.  She did think the hours she would be working remained to be 
determined, but not the fact that she would be working at USQ.

[176] Ms Murphy stated that she had planned on working in semester 2, 2020, and through 
June and July would have been preparing for the courses.  She had spoken with Ms Jackie Lea 
and Ms Susan Bown from Learning and Teaching in person and by email to help create online 
modules for what had been face-to-face lessons.  Ms Murphy does not know if the semester 2 
contract would have started when Professor Neville says it would have, but she would have 
been actively engaged getting ready for second semester. This is especially so because Ms 
Murphy had been asked to undertake a service role as “2nd Year Convenor,” which would 
have involved work through the whole year including the break between semesters. This 
allocation is represented at the fifth line item in the WAMS document. 

Ms Murphy’s third witness statement 

[177] Ms Murphy disagrees with a number of the statements made by Professor Neville and  
Associate Professor Terry in the evidence given by them. 

[178] In particular, where Associate Professor Terry states that a contract must be in place 
before workflow can be allocated in WAMS, this is not Ms Murphy’s understanding of how 
the WAMS software works.  For example, while Ms Murphy expected a contract for semester 
2, 2020, she did not have one as of 14 April 2020.  However, Ms Murphy still had duties 
allocated to her for that period. 

[179] Ms Murphy disagrees that Associate Professor Terry was not aware that she worked at 
Redcliffe Hospital. She stated that if she was not aware of it then she should have been. Ms 
Murphy did some facilitation work with a USQ student based at Redcliffe at the request of 
Associate Professor Terry and Ms Rigg in 2018, and this was only possible because of her 
existing role at the hospital. 

[180] The abovementioned facilitation work arose in the following circumstances.  Around 
late 2017 or early 2018, Ms Rigg approached Ms Murphy and told her that USQ had three 
students who would require student facilitation at Redcliffe Hospital.  Ms Rigg said that USQ 
had a problem because they did not have anyone that could perform clinical facilitation work 
at Redcliffe, and she asked if Ms Murphy could do it as she already worked there 0.5 EFT.  
Ms Murphy said that she could do it if it could be accommodated in her workload. The details 
of this arrangement were then sorted out with discussions between herself, Associate 
Professor Terry, Ms Rigg, and Professor Moloney.  In April and June of 2018 an issue arose 
as to how these hours were to be paid, and all involved persons had an email discussion in a 
series of email trails. 








[2021] FWC 1800

39

Oral evidence given at the hearing 

[181] In cross-examination, Ms Murphy agreed that while it was contained within the 
contract she entered into for semester 1, 2020, she never read the following provision:8

“An essential feature of fixed-term employment at USQ is that there is no expectation of 
continuity of employment unless stated otherwise in writing by the executive director, 
human resources. Appointment is contingent upon work being available and 
performed meeting required standards.”

[182] In cross-examination, Ms Murphy stated that while she understood only the Head of 
School could have a contract issued for her, and she knew that Ms Rigg did not have such 
authority to issue written contracts, she found Ms Rigg’s oral communication to generally 
prove to be accurate. 

[183] Relevant to the gap in work between 1 December 2017 and 22 January 2018, Ms 
Murphy agreed that she did not perform any work for the Respondent during this time, nor 
was she employed.9   

[184] Ms Murphy agreed that in September 2019, she had a free choice as to whether to 
make herself available for any work for the Respondent in 2020.  She agreed that if she was 
going to be committed to work in either semester in 2020, it required further agreement 
between her and the Respondent.10

[185] Ms Murphy learned in December 2019 that if a contract was to be offered for a period 
of 12 months, it would require the Respondent to advertise the position.11

[186] The following exchange occurred relevant to Ms Murphy’s desire to not be over-
worked in semester 2, 2020: 

Mr Williams: “If you still require my services, I am more than happy to continue working 
for USQ at point 5 or less.”
…………………….

We can take it from the final sentence that you understood that your 
decision might have an impact on whether or not there would be a contract 
for you in semester 2?

Ms Murphy: I was attempting to negotiate my workload.

Mr Williams: Were you? You say:

“If you still require my services, I am more than happy to continue working 
for USQ at point 5 or less.”

So, really, you must have understood that the decision you had made, and I 
am sure you had good reasons for it, so I am not criticising that at all, but 
you understood that the decision you had made would have an impact on 
whether or not there could be work offered to you in semester 2, and surely 
it would, wouldn't it?








[2021] FWC 1800

40

Ms Murphy: I don't know.

Mr Williams: For a start, that opportunity in relation to backfilling Danielle would have 
to be at least reviewed, wouldn't it?

Ms Murphy: I don't know, I didn't get a reply.

Mr Williams: If you knew that Danielle had to be backfilled at full time and that you 
were only prepared to work point 5, then the backfill solution would have 
to be reconsidered at the very least, wouldn't it?

Ms Murphy: I wasn't prepared to just work point 5, I wanted to work full time in a 
reasonable workload.

Mr Williams: Right. You won't agree with me that this was as clear statement to the 
university that you were not prepared to work more than point 5 in 
semester 2 2020?

Ms Murphy: I was attempting to negotiate.

Mr Williams: I know you say that, but we have got the email in front of us, don't we, we 
can read what it says. It wasn't an invitation to negotiation, it was a 
statement to the university about your intentions in relation to your working 
life, wasn't it?

Ms Murphy: I don't agree.

Mr Williams: It really was this: you had given USQ an ultimatum, and I don't mean that 
rudely at all, you are entitled to pick and choose your workload you are 
prepared to do, and you were prepared to accept the consequences of that, 
which might be no offer of work in semester 2 2020?

Ms Murphy: I don't agree.

Mr Williams: How can we read the last sentence any different to that, Ms Murphy, being 
fair? If you received an email like that in Professor Neville's position, 
that's what you would assume, wouldn't it be?

Ms Murphy: It states, “I'm still happy to continue working for USQ.”

Mr Williams: But you have left out the last few words, “at point 5 or less”. In fairness to 
you, Ms Murphy, and as I said, please raise your hand if you do need a 
break at any time, we can handle that, we can accommodate that, but I just 
want to make a brief comment about your workload. The lead-up to your 
email of 17 April appears to start at paragraph 50 of your first statement, 
which is also, as it turn out, at 50 of the record?

Ms Murphy: Which would you like me to refer to?








[2021] FWC 1800

41

Mr Williams: I just wanted to make sure I have referred you to all of the evidence that 
was relevant to the questions I wanted to ask you. Paragraph 49 is about 
November 2019 and then the story of what happened in April appears to 
begin at paragraph 50. You have got that email chain that we have seen?

Ms Murphy: Yes.

[187] I had the following discussion with Ms Murphy relevant to the email sent by her on 17 
April 2020: 

Commissioner: All right, thank you. Ms Murphy, your email of 17 April, that's, what, 
towards the end of school holidays at the height of COVID?

Ms Murphy: Yes.

Commissioner: Your son his how old?

Ms Murphy: Fifteen.

Commissioner: And there's been home schooling for the last week of term 1 and then 
there's anticipated five more weeks of home schooling for term 2, so that's 
what you say, do you, to the university, you say, “I'm going to home 
school in semester 2”, which is, what, term 3 and term 4 of school?

Ms Murphy: I think it was undetermined at that point for schooling in semester 2.

Commissioner: No, it had been announced that there was five weeks of home schooling 
across Queensland?

Ms Murphy: Yes.

Commissioner: So you knew you might have been up for five weeks or maybe even three, 
because they let kids of essential workers go to school. Did your son go 
to school because you were an essential worker?

Ms Murphy: He did for a short period, yes.

Commissioner: But you announced to your employer that you are going to home school 
term 3 and term 4, essentially?

Ms Murphy: Yes, because, after a few days, he found it very difficult with no one there 
at school.

Commissioner: Right. So, on 17 April, we're probably in the early stages of term 2?

Ms Murphy: Yes.

Commissioner: And that is what you tell your employer that that's what you plan to do?

Ms Murphy: That was my idea, yes, that - sorry, I wasn't sure if it was from me or the 








[2021] FWC 1800

42

school at that time, I can't recall.

Commissioner: You can't recall what, sorry, you or the school?

Ms Murphy: Yes, that instigated that, sorry, in terms of needing to home school him 
because it was completely shut at that time. Do you mind just rephrasing 
that question, sorry?

Commissioner: It's your email of 17 April I am trying to understand?

Ms Murphy: Yes.

Commissioner: You have told your employer that you can only work half an FTE in 
semester 2, which is term 3 and term 4?

Ms Murphy: Yes, to accommodate schooling and the workload, yes.

Commissioner: But the email was sent at the height of COVID reaction?

Ms Murphy: Yes.

Commissioner: You were at work, were you? Were you face to face with students?

Ms Murphy: I was at home at that point, working from home.

Commissioner: Were the classes running, your classes?

Ms Murphy: Yes.

Commissioner: I see. What if you had said that you can only do point 2 FTE or point 
3? What did you expect the university to do about your decision to not 
work one FTE?

Ms Murphy: I would have hoped that Christine would have had a discussion with me 
around my workload.

Commissioner: But your intention was to home school your son?

Ms Murphy: Only for the necessary time that was required.

Commissioner: The email is sent in April?

Ms Murphy: Yes.

Commissioner: And you were talking about home schooling, as I understand it, in 
semester 2, which is terms 3 and 4 of school, so that's essentially July to 
December. You weren't talking about home schooling, were you, from 
April, May, June, were you, or were you?

Ms Murphy: It was just in that immediate period of when the COVID and the schools 








[2021] FWC 1800

43

had shut in Queensland.
Commissioner: Well, you say in your email, “This decision is in consideration of my son, 

who I will be home schooling in semester 2”, which is July to December?

Ms Murphy: Maybe I've made a mistake in exactly the length of that time. It wasn't 
specific.

Commissioner: Nearly everybody was home schooling in April?

Ms Murphy: Yes.

Commissioner: The first five weeks, everybody was home schooling but for the children 
of essential workers?

Ms Murphy: Yes.

Commissioner: But you wrote in your email that you were planning on home schooling in 
semester 2, which is July to December?

Ms Murphy: Yes. It was in the first semester and I wasn't clear what was going to 
happen for the second semester from the school, but it was, yes, 
potentially semester 2.

Commissioner: Right, but you were announcing in mid-April your plans for July through 
to December. Do you accept that?

Ms Murphy: I've made a mistake in my email as I was very emotional with what I'd 
seen.

Commissioner: If you were going to be home schooling in April, May, June?

Ms Murphy: Yes.

Commissioner: Home schooling a 15 year old, then how would you have been meeting 
your full-time equivalent role? There was much juggle, I understand, and 
probably some understanding for employers about the juggle?

Ms Murphy: Yes.

Commissioner: But it had been announced by the government that it was anticipated to be 
five weeks?

Ms Murphy: Yes.

Commissioner: And if your child could go to school, if you were an essential worker, then 
that was permitted for most schools. That is what your email says, doesn't 
it, that you will be home schooling in semester 2, so that's what you told 
your employer that you were thinking about for one of the reasons, 
because you had two reasons, didn't you?








[2021] FWC 1800

44

Ms Murphy: Yes.

Commissioner: Two reasons for announcing that you would drop to point 5?

Ms Murphy: Yes, and, incorrectly semester 2 has been stated in my email without clear 
clarification about when the schools were reopening.

Commissioner: I am trying to understand your evidence. Was it the case that on 17 April 
when you sent this, you anticipated home schooling your son for term 3 
and 4 of school?

Ms Murphy: I was - I was unsure what I needed to have to doubt, but I was putting that 
email out thinking that I had to potentially and it's worded incorrectly.

Commissioner: It was put to you by Mr Williams that your last sentence is not a 
negotiation, it's a statement, it's unambiguous?

Ms Murphy: Yes.

Commissioner: Do you accept that, that you - - -?

Ms Murphy: I accept that it's unambiguous.

Commissioner: You said to your employer that it's 0.5 or less?

Ms Murphy: I was - I was hoping to attempt to have some discussion with Christine, to 
initiate a discussion.

Commissioner: Well, thinking about the reality of the situation, what if the employer said, 
“We can't accommodate a point 5 person, we're looking for a full-time 
person”? You have brought your unfair dismissal application to the 
Commission?

Ms Murphy: Yes.

Commissioner: What if they couldn't accommodate point 5, then where does that stand 
you?

Ms Murphy: I would have - - -

Commissioner: Does it stand you in repudiation of the offer that you think was made in 
late 2019?

Ms Murphy: I would have remained full time, I would have.

Commissioner: Why did you cast this email in such language?

Ms Murphy: It was very emotional seeing my workload as I experienced in 2019, it 
was very difficult and I emotionally responded based on my past 
experience.








[2021] FWC 1800

45

Commissioner: You continued on in emails through to June, though, didn't you? Was 
your son back at school by that stage?

Ms Murphy: I can't recall exactly. He would have been, I think, yes.

Commissioner: Schools went back in full swing in week 6?

Ms Murphy: Yes.

Commissioner: Which would have been late May, but you and Ms Rigg were insistent, 
weren't you, that the workload would not be - was not fair?

Ms Murphy: Yes.

Commissioner: If you were emotional in April in the email that you sent, that's not 
necessarily the case in June, is it?

Ms Murphy: In terms of the workload allocation in June?

Commissioner: Well, yes?

Ms Murphy: Yes, I still had, yes, problems, yes.

Evidence of Ms Elizabeth Rigg

[188] Ms Rigg made four witness statements and appeared and gave evidence at the hearing.  
Ms Rigg commenced employment at USQ on 11 July 2016, initially on a part-time 
arrangement.  She is employed as a Senior Midwifery Lecturer and is the Director of the 
Midwifery Program (formerly known as the Program Coordinator).  Since approximately 
January 2017, she has worked full-time and holds a continuing position.  Ms Rigg reports to 
Professor Neville. 

Ms Murphy’s Recruitment to USQ

[189] In Ms Rigg’s role as Director of the Midwifery Program, it is her responsibility to 
advise the Head of School about teaching needs for the program in line with the Australian 
Nursing and Midwifery Accreditation Council accreditation standards for the program.  In late 
2016 and early 2017, Ms Rigg reported as Director of the Midwifery Program to Professor 
Duff, Campus Coordinator and Dr Rogers, Head of School.

[190] Professor Duff asked Ms Rigg if she knew any suitably qualified midwives who may 
have availability to assist with the teaching of the program until 2018.  At that point, the 
School did not have time to conduct a recruitment process because the new academic year 
was to start at the end of January 2017.  

[191] Ms Rigg thought of Ms Murphy because she had previously worked with her at the 
Australian Catholic University.  She believed that she was appropriately qualified and had 
some experience of teaching into a postgraduate midwifery program of training.








[2021] FWC 1800

46

[192] On about 5 January 2017, Ms Rigg called Ms Murphy to discuss her availability to 
teach at USQ in 2017.  Ms Murphy said she could have 0.5FTE availability to work for USQ.  
Ms Rigg also called Ms Funk, another midwife, and asked her if she might have availability 
to assist Ms Rigg teach the program that year.  Ms Rigg asked both Ms Murphy and Ms Funk 
to submit an expression of interest to join the USQ casual staff data bank.

[193] Once Ms Murphy and Ms Funk had completed their application to join the USQ casual 
staff, Professor Duff and Ms Rigg reviewed their details and both each said that they were 
suitably qualified to teach into the midwifery program.  

[194] At some point in the days prior to meeting Ms Murphy and Ms Funk, Professor Duff 
spoke to Ms Rigg about contract options.  At the time, Ms Rigg was still new to the School; 
this was her first recruitment experience at USQ.  Professor Duff was also a relatively new 
employee to USQ (approximately one year).  Professor Duff said that USQ might offer a 
casual or fixed term contract to Ms Murphy and Ms Funk.  Professor Duff said that this would 
be a semester-based contract. She said that having a break in contracts between semesters was 
a cost-saving strategy for USQ and it also enabled flexibility for the School.  She said she 
would speak with Dr Rogers about the contracts and rates of pay.

[195] Professor Duff and Ms Rigg interviewed Ms Murphy and Ms Funk on 12 January 
2017. Afterwards, when Professor Duff, Ms Murphy, Ms Funk and Ms Rigg were together in 
the same room, Professor Duff said words to the effect that they would both be employed to 
assist with the teaching of the Bachelor of Midwifery program.  She said words to the effect 
this would be in the form of two six-month fixed term contracts covering semester 1 and 
semester 2 respectively.  Professor Duff said words to the effect that a second contract would 
need to be raised after the first one expired and that there needed to be a minimum of one day 
break between contracts.  Ms Rigg stated that she did not pursue a more detailed explanation 
from her.

[196] On 14 January 2017, Ms Rigg received an email from Professor Duff. It reads, 
relevantly: 

“Hi Elizabeth
……………..She needs to sign off Bridget’s leave request, and have that approved 
prior to being able to progress contracts for Helen and Cheryl-Anne. She is suggesting 
40% and 60% contracts January 23-June 15 (and yes, vacation pay etc are included). 
Then renew the contracts July 15-December 1.  By then we should know what Bridget 
is doing……”

[197] Ms Rigg confirmed that Ms Murphy commenced work in late January 2017.  She 
worked 0.5FTE to cover for Ms Roach’s absence. Ms Funk worked a 0.4FTE fixed term 
contract.  A third academic, Ms Gleeson, also commenced in semester 1 in 2017.  She worked 
0.2FTE, but the fraction was later increased to 0.4FTE sometime later in semester 1 of that 
year.

Employment in 2018

[198] Towards the end of semester 2 in 2017, Dr Rogers informed Ms Rigg that Ms Roach 
was not returning to work for USQ.  USQ ran a recruitment process to fill her position, and 
Ms Gleeson was the successful applicant.  Ms Gleeson was undertaking her PhD full time on 








[2021] FWC 1800

47

a scholarship that limited the hours she could work. Ms Gleeson therefore asked for 
permission to work a 0.5FTE fraction for two years, which she was granted.

[199] Ms Murphy had also applied for this position and had said she had 0.5FTE 
availability. Ms Murphy received a 0.5FTE two-year fixed term contract to back-fill Ms 
Gleeson. The two-year term matched the period of time in which Ms Gleeson was to be on a 
0.5FTE fraction.  Ms Rigg stated the term “back-fill” simply means fill in for another person. 
Ms Murphy commenced this two-year fixed term contract in January 2018.

Employment in 2019

[200] Dr Rogers retired from her position as Head of School towards the end of semester 1, 
2018.  Professor Neville commenced as the new Head of School at the beginning of semester 
2, 2018.  Ms Rigg’s evidence is that towards the end of semester 2, 2018, Ms Gleeson told her 
that she was thinking of taking up her full-time position in 2019. She said she was reluctant to 
do this if it compromised Ms Murphy’s contract.

[201] On 3 December 2018, Ms Rigg met with Professor Neville and spoke with her about 
Ms Gleeson’s request.  Professor Neville asked Ms Rigg to seek support from the then Deputy 
Head of School, Dr Moloney, to draft the midwifery team workload allocation for 2019, and 
to contact HR to inquire where USQ stood contractually about Ms Gleeson’s request and 
implications for staffing.  Ms Rigg did so, and on 4 December 2018 she sent an email to Dr 
Moloney.

[202] Ms Rigg scheduled a Zoom meeting with Dr Moloney for 17 December 2018.  He was 
unable to attend but they spoke a day or so later.  He said that until the new WAMS came into 
operation to inform determining workload allocations, trying to estimate the midwifery 
allocation would be difficult.  He suggested Ms Rigg wait until the new year when the new 
model was in operation and then to discuss this with Professor Neville upon her return.

[203] Ms Rigg stated that: 

(a) in 2018 and previously, USQ used the WAMS to allocate work to academics 
teaching staff. The allocations of WAMS are informed by the Academic Division 
Academic Workload Allocation Model (ADAWAM). The WAMS software 
program enables an allocation of time to be delegated to teaching staff relative to 
tasks. For example, a one-hour lecture attracts one hour of delivery time and two 
hours of preparation the first time the lecture is delivered. A repeat lecture may 
only be awarded one hour; 

(b) in 2018, the Dean, Professor Glen Coleman, called for a review of the 
ADAWAMS model. A new ADAWAMS was proposed to be in place for the 
commencement of 2019; 

(c) towards the end of November early December 2018, Professor Neville and 
Associate Professor Terry told the School staff that they would not be undertaking 
work on the WAMS for the School academic teaching staff until the new 
ADAWAMS was launched in 2019. Consequently, the 2019 staff workloads were 
not completed in 2018 at that time; 








[2021] FWC 1800

48

(d) this was a problematic scenario for the midwifery teaching team. Residential 
Schools associated with courses taught in semester 1 each year need to be prepared 
and delivered during semester 3 (normally the second and third week of February 
each year). This means that staff teaching those residential Schools should know 
their hours and any temporary staff should have their contracts raised and 
preferably signed for that period; and 

(e) when Ms Rigg refers to Professor Neville asking her to draft the workload 
allocation, this was because Professor Neville was going on leave and the School 
staff had been advised that no WAMS allocations were being undertaken until the 
new ADAWAMS had been released.

[204] As Professor Neville had instructed Ms Rigg to draft workload allocations for the 
midwifery team (end of year 2018), she attempted to do so.  Ms Rigg sent it by email to
Professor Neville and copied Ms Kate Charlton into that email.  She later re-sent this to Ms 
Charlton and Associate Professor Terry upon their request.  Ms Rigg prepared it on the basis 
that Ms Gleeson would work full-time. 

[205] Ms Rigg does not recall exactly how or when she became aware that Ms Murphy 
would continue to be employed on a 0.5FTE contract in 2019.  Ms Murphy told Ms Rigg 
sometime in semester 1, 2019 that HR had written to her advising her about cost centre 
amendments that needed to be made to her two-year fixed term contract.

WAMS and 2019

[206] Ms Rigg stated there was a lot of discussion within the School about the WAMS and 
the old and new ADAWAMS in 2019. At the beginning of 2019, academics in the School 
were told by Professor Neville that the new ADAWAMS was not ready and that further 
consultation would occur throughout 2019.

[207] Unlike previous years, workloads were not allocated until sometime later in early 
semester 1, 2019 when teaching had already started, rather than in November or December 
the year prior. Several meetings relating to WAMS allocations for the midwifery team 
occurred throughout semester 1, 2019.  Ms Rigg stated that in short, the old ADAWAMS was 
used to calculate School teaching staff’s workloads in 2019 and the new ADAWAMS did not 
come into operation until January 2020.

[208] Further, in 2019, a USQ staff member working on a review of the ADAWAMS model 
spoke to School teaching staff at a staff meeting.  Ms Rigg does not remember his name. He 
said that the review had revealed under and over-allocation of teaching staff workloads, 
meaning a person who had a 0.5FTE fraction may have been allocated to work less hours than 
that (an under-allocation) or more hours that that (an over-allocation).

[209] Ms Rigg stated a full-time employee has an annual workload cap of 1,702 hours. In 
allocating workloads, it is desirable to allocate work hours so they sit somewhere under this 
cap of 1,702 hours to allow for some flexibility and possibility of an unexpected work 
demand such as covering for sick leave. In Ms Rigg’s experience of working with USQ since 
2016, her own WAMS has frequently exceeded this.








[2021] FWC 1800

49

[210] Upon review, it was found that Ms Murphy had been overallocated hours; she had 
previously been allocated and worked more hours than she had been contracted to work. This 
was resolved by “rolling over” the extra hours into 2020.  Ms Rigg understood this to mean 
that Ms Murphy would be allocated a workload that would include all her previous 
overallocated hours.  That is, the “extra” work she performed in 2019 would be incorporated 
into her WAMS for 2020.

[211] On 17 December 2019, Ms Rigg received an email from Professor Neville attaching 
excel spreadsheets about WAMS rollovers and 2020 course coordinators and moderators.  
The spreadsheet showed that Ms Murphy was expected to be allocated duties in relation to 
seven courses in semester 2, 2020. 

Workload management for 2020

[212] On 11 September 2019, Ms Rigg met with Professor Neville to discuss staffing for the 
midwifery program in 2020.   Ms Gleeson had been approved to go on study leave (ADOS 
leave) in Semester 2, 2020, and Ms Rigg wanted to know from Professor Neville who would 
cover her absence.  Professor Neville asked Ms Rigg to draft a WAMS document similar to 
what she had prepared in 2018, demonstrating the teaching needs for program in 2020. 

[213] Ms Rigg does not recall precisely when, but it is her evidence she told Ms Murphy 
about Professor Neville’s comment in this meeting that Ms Murphy may be offered a full-
time contract if Ms Murphy could accommodate it.

[214] In the months after this meeting, Ms Rigg prepared a draft allocation for the midwifery 
teaching team for 2020.  She shared this document with her team for their input and 
agreement. Ms Rigg prepared this in response to Professor Neville’s instruction to inform her 
about the program’s teaching needs for 2020. This document was based on her professional 
judgement as the director of the program as to appropriate staff and hours, given her 
knowledge of their experience and skill mix.  Ms Rigg’s suggested allocations for a newly 
appointed conjoint position “Midwifery academic Ms Avery,” accounted for her need to be 
orientated and supported to become familiar with teaching at a tertiary level for the first time, 
study options to become enrolled in a post graduate HDR study program, and the USQ 
learning platform systems and processes.

[215] When Ms Rigg prepared this document, she tried to ensure each academic’s annual 
workload did not exceed the annual workload of 1,702 hours.  Additionally, Ms Rigg tried to 
ensure the teaching allocations were relative to individual staff availability to work for USQ.

[216] Ms Rigg stated the document allocates hours to Ms Murphy in semester 2 because Ms 
Rigg believed that, at a minimum, someone was needed to backfill Ms Gleeson’s ADOS 
leave. Moreover, Ms Avery was only a newly appointed staff member employed in a 
“Conjoint Appointments between USQ and the Department of Health Tasmania.”  She was 
less experienced as a tertiary academic and held a more administrative role for the Tasmanian
site with her conjoint position.

Teaching preferences in 2020

[217] In September 2019, Ms Rigg spoke with the midwifery team about their teaching 
preferences for 2020.  She then sent this information through to Associate Professor Terry for 








[2021] FWC 1800

50

discussion at a meeting she had set for 26 September 2019, to discuss the 2020 teaching 
preferences for the whole of School.  The School did not ultimately discuss the midwifery 
team teaching preferences because they ran out of time at meetings, but Associate Professor 
Terry asked Ms Rigg to send through the midwifery teaching preferences to her so that she 
could populate this data on a master copy of the “SoNM Teaching Preferences 2020” she was 
collating at the time, which Ms Rigg did.

[218] It was stated that teaching preferences help the Head of School to ensure programs of 
study and associated courses have a teaching academic allocated to teach them in a given 
semester.  It sets out the self-selected teaching preferences made by academic staff who have 
indicated a preference/request be teach a given course/s in both undergraduate and post 
graduate programs of training in the school for a given year.  Once prepared, this document 
assists the Head of School to allocate WAMS to academic staff in the School for a given year 
across all three semesters. The teaching preferences document does not guarantee an 
academic will be teaching their preferred courses. But its purpose is to inform the Head of 
School about what the academic staff employed for those semesters would like to teach.

Ms Murphy’s appointment for 2020

[219] Ms Rigg’s evidence is that she expected Ms Murphy to work at USQ for all of 2020. 
This was based on: 

(a) her recommendations and suggestions for workforce planning as contained in the 
WAMS in light of Ms Gleeson’s confirmed absence in semester 2; 

(b) her discussion with Professor Neville on 11 September 2019 where Professor Neville 
did not dispute Ms Murphy’s appointment; and 

(c) her conversation with Professor Neville (outlined below); and 

(d) as outlined below, where at the 20 May 2020 meeting it was confirmed Ms Murphy 
would be appointed for semester 2.

[220] On 13 September 2019, Ms Boettcher told Ms Rigg via email about a revised 
recruitment process from the DVC. This accorded with a conversation Ms Rigg had with a 
HR representative, Ms Camfferman in late August.  This revised recruitment process required 
that any fixed-term positions longer than six months needed to be outsourced via an external 
recruitment process and this needed to be approved through the Recruitment Review 
Committee.  Ms Camfferman had told Ms Rigg that fixed-term appointments had greater 
flexibility in that it was easier and quicker to appoint as a recurring six-month contract.

[221] Also on 13 September 2019,  Ms Rigg emailed Professor Neville informing her of this 
information.  Ms Rigg requested her direction on how she would like her to manage contracts 
for 2020.  She does not recall receiving a response to this question.  In the email, Ms Rigg 
contemplates that Ms Murphy will be teaching throughout 2020 because of the conversation 
she had with Professor Neville on 11 September 2020.  The email reads: 

“Hi Christine, 
I hope this email finds you well. I have been working on the WAMS for Mid 2020 and 
corresponding with Michelle Boettcher regarding the Fixed Term appointment for 








[2021] FWC 1800

51

Leah Avery and the possibility of a year long FT contract for Cheryl-Ann Murphy for 
next year. Michelle has advised me that new strict recruitment process that are now 
in place as directed by VC. This may be problematic for what we want to do with 
Leah’s contract.  I could just proceed to put her on a 6 month FT contract but we will 
need to advertise her position – suggest commence this early next year so we can 
proceed with that.  This would be my preferred option and suggestion at this stage.
Hopefully we will have the results of the evaluation early next year and be able to get 
Francine to resign our MOU early! 

In relation to Cheryl-Anne, she is interested in a full time position, but has some 
holiday booked already which may take her away for 4 weeks in S1 2020. I would 
recommend Jo Buckley back fill her on a short FT contract for that month, and then 
another short term FT contract for Jo to back fill Danielle in Semester 2.  The issue 
here is that we may need to advertise Cheryl-Ann’s year long FT contract. We could 
put her on a 6 month FT contract but advertise for the S2 component.  – My 
suggestion at this stage would be to advertise now for the year long contract for 
Cheryl-Anne’s position. 

I seek your direction on which way you would like me to go. 
Regards
Elizabeth Rigg” [original emphasis] 

[222] Similarly, Ms Rigg emailed Associate Professor Terry about staffing needs for the 
Midwifery program for 2020 on 19 September 2019: 

“Dear Victoria, I am writing to advise you about the following staffing needs for 
midwifery for 2020. As Danielle Gleeson will be going on ADOS in second semester, 
we will most likely need to re-instate Cheryl-Anne Murphy for another 1 year FTE 
contact to help cover this. I am aware that there are new processes that we must 
adhere to in relation to appointing FTC that go over 6 months and/or that are rolling 
over. Essentially I believe we will need to advertise the position formally. This means 
the School will need to abend to this now. This new process has implications for the 
conjoint appointment also, as this same process applies. 

This information impacts my ability to plan who is teaching what next year at this 
stage. Would you have some time tomorrow to speak about this, perhaps after our 
meeting with OCN. 
Regards
Elizabeth Rigg”

And: 

“Dear Elizabeth, thank you for this, My sincere apologies I had to rush off this 
afternoon. You are absolutely right about this and I have cc’d to Hardus to consider 
plans and approvals for fixed term recruitment for Midwifery 2020. Look forward to 
catching up tomorrow. 
With kind regards, 
Victoria”








[2021] FWC 1800

52

[223] At that time, Ms Rigg had in mind that the School would advertise for a 12-month 
position in accordance with what Ms Boettcher had told her about the revised recruitment 
processes.  Ms Rigg also requested some guidance from Associate Professor Terry about this 
on 30 October 2019.  She sent the following email: 

“Hi Victoria, 
This was the email I sent to Christine – I am just re-sending for your information. I 
will proceed to organise two FT contracts for Cheryl-Anne and Jo Buckley for 2020. 
Can you confirm that we do not need to put these positions out to public recruiting as 
pe USQ recent policy changes regarding re-appointing fixed term appointments?
Regards
Elizabeth Rigg”

[224] Ms Rigg’s evidence is that when Associate Professor Terry was acting as Head of 
School in November and December 2019, Ms Rigg discussed Ms Murphy’s contract for 2020 
with her.  Ms Rigg told Associate Professor Terry about Ms Murphy’s other work 
commitments at the Redcliffe Hospital and that she would need transparency with respect to a 
possible one-year contract with USQ in 2020 if she was going to pass on a work offer at the 
Redcliffe Hospital. She asked Associate Professor Terry if USQ could offer Ms Murphy not 
only work in semester 2, to backfill Ms Gleeson, but also work in semester 1 to continue 
teaching the semester courses she had taught since 2016.

[225] Ms Rigg’s evidence is that Associate Professor Terry agreed that Ms Murphy should 
be offered a contract for 2020.  She understood this meant Ms Murphy would be offered a 
full-time contract for semester 1 and a second contract would be raised for semester 2.  That 
was Ms Rigg’s understanding because there was in her mind no doubt that the School needed 
Ms Murphy in semester 2 to backfill Ms Gleeson. She considered that the only outstanding 
issue was whether the School could get enough hours in semester 1 for Ms Murphy so that 
she did not take up more hours at Redcliffe Hospital and less hours at USQ.

[226] Ms Rigg’s evidence is that she said to Associate Professor Terry:

“Look, I really just need to know what’s happening with this. I don’t want to mess her 
around, she just needs to know where she stands so she can finalise her decisions 
about her availability to the Redcliffe Hospital. I would like to maximise her hours in 
semester one to tide her over and then she’d be with us in semester two.”

[227] Ms Rigg also informed her that Ms Murphy had booked a month-long holiday for 
some time in semester 1, 2020, and suggested that Ms Jo Buckley could assist with these 
hours in Ms Murphy’s absence.

[228] Ms Rigg’s evidence is that Associate Professor Terry said she would raise the contract 
for the first six months.  She did not expressly say anything that Ms Rigg can remember about 
semester 2.  Associate Professor Terry advised Ms Rigg to proceed to have a contract raised 
for Ms Murphy.  Ms Rigg contacted Ms Boettcher to inquire whom she should speak to in 
order to undertake this.  Ms Boettcher advised Ms Rigg to send it to Ms Larissa Pearson and 
that she would talk Ms Pearson through the process.








[2021] FWC 1800

53

[229] Ms Rigg does not specifically recall when or how she told Ms Murphy that she would 
be employed by USQ in 2020.  However, the emails raising Ms Murphy’s contracts were in 
mid-November 2019.

[230] Because Ms Rigg had seen USQ employ other people on six-month contracts even 
though she believed and proceeded on the basis that they would be teaching in her program in 
the next semester, she did not find it unusual that Associate Professor Terry would advise her 
to only raise a contract for semester 1.  Ms Rigg proceeded on the basis that Ms Murphy 
would be offered another contract for semester 2 when her first contract ran out. The same 
process was undertaken for Ms Avery.  As at the time of Ms Rigg making her first statement 
in these proceedings, Ms Avery continues to work at USQ, teaching into the midwifery 
program.

[231] On 13 November 2019, Ms Pearson requested a fixed-term contract for Ms Murphy. 
Ms Rigg stated this was to follow on from the end of her two-year contract.  She does not 
know why Ms Pearson selected “specific task/term.”  This was one of the options available on 
the electronic request form.  

[232] On 15 November 2019, Ms Rigg sent an email to Professor Neville with a draft 
WAMS allocation for 2020.  It included Ms Murphy, because Ms Rigg believed she was to be 
employed throughout 2020.

[233] As far as Ms Rigg was aware, Ms Murphy was to be provided with a full-time fixed-
term contract initially for six months and then a follow up contract for semester 2, 2020.  This 
understanding was reflected in the work allocation document Ms Rigg had earlier prepared, 
the staff teaching preferences document prepared by Associate Professor Terry, the final 
School preferences document sent 17th December 2019 by Professor Neville and 
conversations between Professor Neville, Associate Professor Terry and Ms Rigg on 20 May 
2020.

Employment in 2020

[234] In semester 1, 2020 none of Ms Rigg’s teaching staff were on study or other leave, 
other than Ms Murphy who took some annual leave in 2020.  

[235] As of 20 May 2020, the midwifery academic teaching team consisted of the following 
teaching staff mix, according to Ms Rigg:

 Ms Rigg (full-time, continuing contract); 

 Ms Gleeson (full time but ADOS commencing 10 July 2020); 

 Ms Horner (full-time continuing contract, teaching one midwifery Indigenous course 
(MID2202) in semester 2, 2020), although Ms Rigg believes Ms Horner was not 
appointed this course for semester 2 in the end); 

 Ms Murphy (full-time, fixed-term contract 5/12/2019 -19/6/2020, but back-filling to 
cover Ms Gleeson semester 2 ADOS leave); 

 Ms Jo Buckley (part-time casual contract 0.2FTE for semester 1); 








[2021] FWC 1800

54

 Ms Leah Avery (part-time conjoint appointment with Tasmanian Department of 
Health, fixed term contract between 20/01/2020 and a date in June 2020, but with an 
understanding that there would be another fixed-term contract for the same hours for 
semester 2, 2020); and 

 clinical hospital facilitators based within hospitals in Tasmania and Queensland.

Semester 2 WAMS

[236] In about April 2020, Ms Murphy told Ms Rigg that she had been allocated five courses 
to teach in semester 2 in her WAMS. Ms Rigg considered five courses to be a lot of work, 
particularly as experienced full-time academics are not usually allocated this many courses.  
Ms Rigg would describe Ms Murphy as a beginning career teaching academic.

[237] Ms Rigg referred to the emails set out above in Ms Murphy’s evidence above at [143].

[238] At one point during these communications, Ms Murphy told Ms Rigg that her WAMS 
reflected her to work 2,200 hours for the year. This well exceeds the cap of 1,702 for a full-
time worker, let alone a part-time staff member. Ms Rigg’s evidence is that Ms Murphy was 
very distressed. Ms Rigg said the following about Ms Murphy’s email of 17 April 2020:  

“Consequently, having reviewed her options, Ms Murphy told Professor Neville and me 
that she could only be available for a part-time (0.5) work fraction in semester 2, 2020.  
I was copied into an email Ms Murphy sent to Professor Neville setting out her 
concerns and requirements.”

[239] On 11 May 2020, Ms Rigg sent Ms Boettcher an email asking about Ms Murphy’s 
WAMS and why they were so high.  Ms Rigg asked Ms Boettcher if she could assist to adjust 
this.  Ms Rigg believes she also called Ms Boettcher, in which she explained that this 
allocation was not a true reflection for what the WAMS would reflect once the semester 2 
WAMS were finalised.  In her email response to Ms Rigg, Ms Boettcher stated that she would 
only be able to adjust the WAMS when Ms Murphy’s contract was finalised. 

[240] On 20 May 2020, Ms Rigg had a meeting with Professor Neville and Associate 
Professor Terry (over Zoom) about semester 2 teaching allocations.  Ms Rigg needed final 
confirmation for what they were going to do given Ms Murphy was not now available full-
time and Ms Gleeson was departing on about 10 July 2020 for her ADOS.  Ms Rigg asked 
who would meet this shortfall, and if she could allocate some hours to Ms Buckley.

[241] Ms Rigg’s evidence is that Professor Neville said, “No you cannot have Jo Buckley.”  
She then stated words to the effect that Ms Rigg would have Ms Murphy and Ms Avery 
assisting her to teach the program in semester 2, 2020.  Ms Rigg does not recall her exact 
words, but she reminded Professor Neville that Ms Avery only had 0.4FTE availability and 
Ms Murphy’s 0.5FTE availability.

[242] Ms Rigg proceeded to question the details of Ms Murphy’s contract.  It is her evidence 
that Associate Professor Terry said that Ms Murphy already had a contract until the end of 
December 2020. This was consistent with Ms Rigg’s previous discussions with Associate 
Professor Terry and her understanding about employing Ms Murphy in 2020.  Ms Rigg 








[2021] FWC 1800

55

questioned Associate Professor Terry further about this comment about Ms Murphy having an 
employment contract to December 2020.  Ms Rigg told Associate Professor Terry that she 
understood Ms Murphy’s contract was due to expire on 18 June 2020, and she asked if a 
second contract would need to be raised.  Ms Rigg does not recall Professor Neville’s exact 
words, but she mentioned that Ms Murphy was available for a 0.5FTE.  It is her evidence that 
Associate Professor Terry told Ms Rigg that she would generate a 0.5FTE contract for Ms 
Murphy.

[243] At one point during this conversation, Ms Rigg said words to the effect, “so I have 
Cheryl-Anne for 0.5 and Leah for 0.4. Leah Avery will also be assisting me to coordinate the 
Tasmanian students and recruitments of new Tasmanian enrolments as part of her 0.4FTE -
teaching fraction and Department of Health 0.1FTE.” Following these comments Associate 
Professor Terry interjected, expressing to Professor Neville that she could also check with Ms 
Joy if she would assist with some teaching in the midwifery program in addition to Ms 
Murphy in semester 2.  Ms Rigg did not know Ms Joy but was aware she had been recently 
appointed having worked as a casual employee for USQ in the undergraduate nursing 
program. Ms Rigg asked Professor Neville and Associate Professor Terry what qualifications 
she had. They told Ms Rigg she was also a midwife.

[244] Ms Rigg gave evidence that Associate Professor Terry told her she would contact Ms 
Joy and then asked her to set out in an email what courses she would like this teaching team 
to teach in semester 2, 2020.  Associate Professor Terry asked Ms Rigg to allocate the courses 
she wanted to this teaching team, which included Ms Murphy and herself for semester 2.  She 
told Ms Rigg that once she had sent this through, she would then make the necessary 
arrangements, thereby enabling a contract to be raised for Ms Murphy and Ms Avery for 
semester 2, 2020.

[245] At this point in the conversation, Ms Rigg understood that Professor Neville had given 
her approval for Associate Professor Terry to raise a contract for Ms Murphy in semester 2, 
2020.

[246] After this meeting, Ms Rigg immediately attended to the requested action. As Ms 
Murphy would essentially be Ms Rigg’s most experienced team member for semester 2, she 
called her and asked her if she was happy with the teaching allocations she had drafted for 
Associate Professor Terry.   She agreed with her suggested balance of teaching allocations.  
Ms Rigg then sent the following email to Associate Professor Terry outlining her suggested 
semester 2 teaching allocations for the teaching team Professor Neville had verbally agreed:

“Good afternoon Victoria, 
Thank you for meeting this afternoon. I had a discussion with Cheryl-Anne about 
teaching for semester 2. 
To spread the load these are the suggestions for midwifery teaching are made in 
consideration of the knowledge of the program, areas of expertise, team availability 
for next semester. 

MID2201 - Cheryl-Anne Murphy (Course Examiner ) MID2202 Moderator
MID2202 - Jimley MID2199 Moderator
MID2399 - Cherly-Anne Murphy (Course Examiner) MID2299 Moderator
MID2499 - Cherly-Anne Murphy (Course Examiner) MID2399 Moderator








[2021] FWC 1800

56

MID2299 - Jimley (Course Examiner) - noting enrolments will be very low

MID3201- Elizabeth Rigg (Course Examiner) MID3202 Moderator
MID3202- Leah Avery (Course Examiner) MID3201 Moderator
MID3199 -Elizabeth Rigg (Course Examiner) MID3299 Moderator
MID3299 - Leach Avery (Course Examiner )
MID3399 - Leah Avery (Course Examiner ) - noting enrolments will be very
Low”

Ms Rigg’s third witness statement  

[247] Ms Rigg stated that Professor Neville’s evidence gives the impression that fixed-term 
staff are needed due to some instability or fluctuations flowing from the MOU with the 
Tasmanian Department of Health.  Ms Rigg disagrees that the Tasmanian arrangement results 
in there needing to be fixed-term staff.  The Tasmanian arrangement is the most stable cohort 
in the program. The number of students who enrol in the program and stay in the program 
from Tasmania is more stable than the Queensland cohort.  

[248] Ms Rigg’s evidence is that fixed-term staff may be needed on an ad-hoc basis 
depending on teaching and clinical education requirements for the BMid Program. But that is 
not to say that it was not possible to plan ahead with staffing, when it was known that an 
existing staff member would be unavailable, for example when taking holiday or ADOS 
leave.

[249] Ms Rigg does not recall workload management strategies being discussed with Ms 
Murphy during the meetings outlined by Professor Neville in 2019 which Ms Rigg attended.

[250] Ms Rigg stated that she doesn’t know how Professor Neville arrives at the 1:10 
teacher-to-student ratio that she refers to. That is not a ratio that Ms Rigg uses in her planning.  
Rather, according to the Australian Nursing and Midwifery Accreditation Council the School 
should have 4.5 full-time academic lecturers teaching into the program.  At present, the 
School only has two (Ms Gleeson and Ms Rigg). All remaining staff that have taught 
periodically into the program have been employed on a casual or fixed-term contract for 
specified periods.

[251] Ms Rigg does not agree with Professor Neville that Ms Murphy was “over-allocating 
her time.”  Ms Rigg said that if Professor Neville intends by this to suggest that it was Ms 
Murphy’s own fault if she was working too many hours, as far as Ms Rigg is aware, Ms 
Murphy only undertook work she was asked to complete by USQ.

[252] In 2019, Ms Murphy was doing work to try to improve the MyOpinion scores for a 
course she had inherited (MID2102).  Ms Rigg regarded that work as authorised. During a 
School forum meeting, Professor Neville said words to the effect that: 

(a) Professor Coleman had reviewed the School’s MyOpinion scores and wanted the 
School to work towards improving them; and 

(b) Professor Neville wanted staff to undertake whatever work was needed to raise 
these student satisfaction scores during 2019, and to reach at least 4 out of 5 in 
2020.








[2021] FWC 1800

57

[253] Ms Rigg noted that Ms Murphy met with the Ms Susan Bown, a learning support 
officer, seeking her advice and support to review MID2102 and address student feedback 
provided for it in semester 1, 2018, when it was last run by Ms Gleeson.  Ms Rigg says that 
Ms Bown kept her informed about the work she was instructing Ms Murphy to undertake to 
improve scores. This involved several changes to update and improve the teaching resources, 
including the need to develop and include content that had been missing from the course since 
it was first run in 2016.  She recommended these changes would support improved student 
“MyOpinion” satisfaction scores for 2019.

[254] As far as Ms Rigg is aware, Ms Murphy’s extra hours were spent updating courses 
which she and Ms Rigg taught.  She disagrees with Professor Neville that Ms Murphy’s hours 
were “unauthorised.”

[255] Ms Rigg agrees that 196.8 hours were carried across into Ms Murphy’s WAMS but 
she do not agree that this was to be taken in semester 1 specifically.  Ms Rigg does not recall 
Professor Neville saying these hours needed to be taken during any specific semester during 
the meeting on the 18 November 2019.  No one ever told Ms Rigg that Ms Murphy was 
required to take the 196.8 hours in the first semester of 2020.

[256] It is Ms Rigg’s evidence that Ms Murphy told her towards the start of semester 1, 2020 
(but after the running of the 2020 residential Schools) that she was planning to take, where 
possible, half a day off per week on Friday afternoons in 2020 to try and take back some of 
196.8 additional hours. 

[257] The WAMS document that can be downloaded online from the academic workload 
site may change from time to time to accommodate exigencies that arise, but in Ms Rigg’s 
experience the document that is downloaded can be and is expected by USQ and by staff to be 
relied upon as reflecting an accurate snapshot of teaching allocations. It was always Ms 
Rigg’s understanding that the WAMS document shows the work which each staff member is 
meant to do for a given year and within specific semesters as allocated in the document. 

[258] Ms Rigg gave the below evidence with respect to Ms Murphy’s WAMS document as 
of 14 April 2020: 

(a) the number in the “SEM” (meaning semester) column represents the semester in 
which the envelope of work and associated activity and hours is to undertaken; 

(b) “0” indicates that the work is to be undertaken as and when the academic can 
accommodate it across the full academic year; 

(c) “1” means this work needs to be undertaken in semester 1 of that academic year; 
(d) “2” means this work needs to be undertaken in semester 2; 
(e) this means for example, the standard research block allocation for annual a full-

time academic for a year is 170 hours; 
(f) the academic may use these hours when she/he can but they must be used by the 

end of the given academic year; 
(g) service allocations for individual academics can vary depending on the position 

they hold and any agreed additional delegated service work by Professor Neville;
(h) in Ms Murphy’s case, she was asked by Professor Neville to undertake a service 

role in 2020. This was to act as a course convenor. This type of service role 
required her to undertake some of these duties in semester 1, 2020 as the role 








[2021] FWC 1800

58

required her to support and communicate with clinical facilitators throughout the 
semesters, and would also extend into semester 2; 

(i) precise hours and student numbers may change due to student attrition or students 
dropping courses after the census date, but it is and was Ms Rigg’s understanding 
that a staff member’s WAMS document should not change materially after the 
census date; and 

(j) any changes to a staff member WAMS document should only occur after 
discussion and agreement with the staff member.

[259] With regards to the meeting of 18 November 2019, Ms Rigg’s evidence is that 
Professor Neville never referred specifically to semester 1, although she also doesn’t 
remember her referring specifically to semester 2.  Ms Rigg stated that Professor Neville said 
to Ms Murphy “I have given you work in 2020 what more do you want?.”

[260] Ms Rigg agrees that she did not have authority to make hiring decisions. But as 
program director, she would provide advice to the Head of School about teaching needs. 
Moreover, she was the conduit between the Head of School and/or her delegate (including the 
Deputy Head of School) and midwifery staff.  Ms Rigg would communicate hiring decisions, 
and she never communicated such decisions without being told to do so by the Head of 
School and/or her delegate (including the Deputy Head of School).

[261] It was Ms Rigg’s experience that academic staff in the Midwifery program would 
always have their contracts finalised before teaching commenced in a semester. Otherwise, if 
they had to wait for contracts to be finalised after the census date, they would be working 
some three or so weeks without having any contract in place.  Ms Rigg understood this had 
insurance and legal implications for USQ.  A casual contract might be offered if, for example, 
once student numbers were locked in after census date it became apparent that marking 
assistance in a course was needed.

[262] Ms Rigg stated that she did inform Professor Neville that Ms Murphy worked for 
Queensland Health when Professor Neville first joined USQ.  She also mentioned it in the 
September 2019 meeting, which she suggests the minutes reflect it because she orally stated 
that Ms Murphy was working at Queensland Health: “Depending on staffing needs, a full-time 
contract may be offered to Cheryl-Anne Murphy for 2020 if she can accommodate this.”

[263] It is her evidence that she also told Associate Professor Terry when she was acting 
Head of School about Ms Murphy’s other opportunity. 

[264] It was Ms Rigg’s evidence that no one ever said to her that Ms Murphy was employed 
in semester 1, 2020 as teaching relief, or as support, for Ms Gleeson. As program director, she 
would have expected Professor Neville to have said that to her if that were the case so that she 
could properly manage and oversee, and support, her staff.

[265] With regard to Ms Murphy’s email sent on 17 April 2020, Ms Rigg had spoken to Ms 
Murphy by Zoom before she sent it.  Ms Rigg’s evidence is that Ms Murphy said to her that 
she was going to tell Professor Neville she couldn’t do the five courses. She said to Ms Rigg 
that, if she was going to be forced to teach five courses in semester 2, then she would have to 
reduce her availability to 0.5.  Ms Murphy said, “I physically can’t do that level of work, I’ll 
have to reduce my availability.”  Ms Rigg’s understanding was that she felt that if she said she 
was only available for 0.5 then Professor Neville would have to allocate her less courses.








[2021] FWC 1800

59

[266] Ms Rigg’s understanding was that Ms Murphy was negotiating the hours in the next 
contract she was to receive.  She did not understand her to be saying she would not work for 
USQ at all.

[267] Ms Rigg agrees with Professor Neville’s evidence that she does not have authority to 
make decisions in relation to staff employment.  However, she disagrees with Professor 
Neville’s statement that she “did not make any representation to Ms Rigg that Ms Murphy 
would be offered employment in semester 2, 2020.”  It is Ms Rigg’s evidence that Professor 
Neville did lead her to believe that Ms Murphy would be employed by USQ in semester 2, 
2020.  

[268] On 21 April 2020, Ms Rigg received the following email from Professor Neville:

“Hi Elizabeth, 

If Cheryl Anne wants to drop back to 0.5, Jo may be able to increase her hours for 
semester 2 but in the long term it could become Danielle’s course? Give some thought 
to what the teaching team will need to be for Sem 2 with Cheryl Anne at 0.5. 

Regards

Christine”

[269] Ms Rigg completed her third witness statement by stating: 

“I agree I did not and do not have authority to make decisions in relation to staff 
employment.  I always understood Professor Neville’s responsibilities to include 
approving fixed-term and casual appointments.  I understood a purpose of the meeting 
held 20 May 2020 was for Professor Neville to tell me what staff she would approve to 
assist me teach the BMid Program in semester 2, 2020.”

Ms Rigg’s fourth witness statement  

[270] Ms Rigg clarified that the 196.8 additional hours worked by Ms Murphy was for 2019 
only, and did not include additional hours worked by her in 2018, for which she received the 
one-off $3,000 ADEB funds.  

[271] Ms Rigg does not understand the table set out in Professor Neville’s evidence, and 
suggests that it does not accurately reflect Ms Murphy’s WAMS as of 4 June 2020. They are 
significantly different. She does not understand how Professor Neville has arrived at an 
allocation of 85.1 hours for research, or 54.45 hours for service for semester 1, 2020.

[272] Ms Rigg also does not agree that the 4 June 2020 WAMS document accurately reflects 
Ms Murphy’s workload for semester 1, 2020.  She does not know why this document has 
been changed from the WAMS document that Ms Rigg received on 14 April 2020 but she 
doesn’t think it’s correct. Further, the WAMS document extracted on 4 June 2020 does not 
reflect the significant work performed by Ms Murphy in response to the COVID-19 
pandemic. That work was not recognised in the WAMS document, indeed any WAMS 
document.








[2021] FWC 1800

60

[273] Referring to Associate Professor Terry’s evidence where she denies that she indicated 
to Ms Rigg that she had the intention of offering Ms Murphy a 12-month contract for 2020, 
Ms Rigg stated that she was also aware of the policy that would have prohibited such a 
contract being offered, but her understanding was that it also applied to rolling over contracts 
such that they would in effect be 12-month appointments in circumstances where it was 
known that the employee would be employed for the whole year.

[274] In Ms Rigg’s time at the School, her experience is that this aspect of the policy was 
not adhered to, and staff would be given rolling 6-month (or just less than 6-month) contracts 
instead of appointing them for 12-months, even when the School knew that they would be 
needed in the second semester.  Ms Rigg noticed that when this was done, there would often 
be a short break in between the contracts, meaning the policy was not breached.  Professor 
Duff told Ms Rigg when she commenced employment at USQ that employing staff in this 
way was also a “cost saving measure,” and that conversation was in association with the 
drawing up of Ms Murphy’s initial contract in 2017.  This has occurred with Ms Avery and 
Ms Buckley consistently since they were initially employed by USQ in 2016. It also occurs 
for the current ongoing Tasmanian clinical facilitators Ms Story and Ms Clay whose salaries 
comes out of the School budget.

[275] Ms Rigg stated that the purpose of the email she sent to Associate Professor Terry was 
to remind her of the policy, and the difficulty it could create in having Ms Murphy appointed 
to cover Ms Gleeson’s ADOS leave in semester 2, 2020 if the School did not advertise the 
position in a timely manner.  Ms Rigg was asking for a meeting to discuss urgently 
advertising the position in order to comply with the policy, on the understanding that it would 
result in Ms Murphy being appointed for 12 months. She understood Associate Professor 
Terry’s positive response as her acknowledging not that Ms Murphy would be receiving a 12-
month contract, but that management would figure out a way to appoint her across the year 
without falling foul of the recruitment policy, and that she was copying in Mr Venzke to assist 
in that regard.

[276] Ms Rigg stated that she sometimes found Associate Professor Terry forgetful in 
matters of staffing and contracts, and she would often ask Ms Rigg for background 
information on staff and their roles to “get her up to speed.”  Ms Rigg took this to mean she 
was asking to be reminded and sometimes informed of things they had discussed already, or 
that Professor Neville would have been aware of but wasn’t in the knowledge of Associate 
Professor Terry. Ms Rigg found that when Associate Professor Terry was acting as Head of 
School she would rely quite heavily on Ms Rigg for her knowledge of the midwifery staff in 
the School.

[277] On 29 October 2019, Ms Monique Holmes from the USQ Payroll Department emailed 
Associate Professor Terry (who was then acting as Head of School) regarding contracts for 
Ms Yvette Story. Associate Professor Terry forwarded the email to Ms Rigg, asking if she 
could assist.  Ms Rigg explained to Associate Professor Terry what they would need to do. 
She also raised the issue of the recruitment policy and how it would affect staff planning for 
2020, because they knew at that point that Ms Story would be employed for 12 months.  Ms 
Rigg mentioned that she had asked Professor Neville about Ms Murphy’s contract, and the 
concerns she had regarding the recruitment policy. Associate Professor Terry responded 
asking Ms Rigg to get the contracts drawn up and she would approve them. She understood 
this, and previous conversations that she had had with Associate Professor Terry and 








[2021] FWC 1800

61

Professor Neville that Ms Murphy would be covering Ms Gleeson’s leave in semester 2, 
2020.

[278] A few days later, in reliance on that understanding, Ms Rigg emailed Ms Pears 
reminding her that the contract would need to be rolled over in semester 2.  She then emailed 
Professor Neville on 15 November 2019, attaching a proposed workload allocation with the 
explanation that Ms Murphy would be covering Ms Gleeson’s ADOS leave in semester 2, 
2020.

[279] Relevant to Associate Professor Terry’s evidence that she did not know that Ms 
Murphy was also working at Redcliffe Hospital, Ms Rigg produced the following emails: 

(a) 4 April 2018 at 7:31am: Ms Murphy to Ms Rigg, cc. Associate Professor Terry

“Hi Elizabeth and Victoria, 
I just wanted to check on whether there has been further discussion of me facilitating 
Helen Gunter at Redcliffe maternity? She is working this week till Saturday. I had 
been catching up with her in my own time up until 1-2 weeks ago and she may now 
need further contact. I will wait for your decision thanks Cheryl-anne”

(b) 4 April 2018 at 10:45am: Associate Professor Terry to Mr Clint Moloney and Ms 
Diane Duff, cc. Ms Rigg

“Dear Clint and Diane, 
A BMID student in Redcliffe Hospital is with a CF, and Cheryl-Anne has been 
spending quite a bit of time with her each week. May you please add an additional 4 
hours/week into Cheryl-Anne’s WAMS, which would cover travel time etc?
Thanks for your consideration. 
Kind regards, 
Victoria”

(c) 4 April 2018 at 10:52am: Ms Duff to Associate Professor Terry and Mr Moloney, 
cc. Ms Rigg

“Hi Victoria
Thanks for the note..I spoke to Elizabeth this morning about Helen/Redcliffe..but in 
adding it to WAMS along with some more marking it does not change her contract 
(she was under hours).. however, Elizabeth is way over on hours so we need to work 
on WAMS to equalize and then Elizabeth and I will meet with the MID team next 
week to sort all this. Meantime Client and I are meeting re WAMS on Friday.  Cheers, 
Diane”

[280] Quite unsatisfactorily, this issue continued to go around in circles for some months, 
with Ms Murphy and Ms Rigg continually having to chase up others, including Associate 
Professor Terry to deal with the extra hours Ms Murphy was performing in clinical 
facilitation.  

Oral evidence given at the hearing 

[281] In cross-examination, the following discussion was had: 








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62

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

Ms Rigg: Correct.

Mr Williams: So we can be very confident that you never advised Ms Murphy, for 
example, that you had authority to make any kind of recruitment 
decision?

Ms Rigg: No, I did not tell her that.

Mr Williams: No, and she would have had no reason to believe that you were 
responsible for making recruitment decisions, would she?

Ms Rigg: No.

Mr Williams: No. And you certainly wouldn't have told her that you had authority to 
offer, or not offer a contract to her?

Ms Rigg: No, I - sorry, could you just say that again?

Mr Williams: Well, you didn't have authority to make a recruitment decision and you 
didn't tell her that. You also never told her that you hadn't authority to 
approve a contract to be offered?

Ms Rigg: Yes. No, I - no.

Mr Williams: And she herself would have known that your role was to provide 
advice but not to make decisions on behalf of the university?

Ms Rigg: Correct.

Mr Williams: Yes, thank you. So to be more specific, although you do give evidence 
at varying parts of your statements to the effect that you, yourself, 
thought that Ms Murphy would be required for work in the second 
semester '20 and was likely to be offered a contract. We can be 
comfortably assured that you never told Ms Murphy that she would be 
given a contract in second semester?

Ms Rigg: Not - no. I will have communicated information that was given to me 
from the head of school and/or Ms Terry to Ms Murphy.

Mr Williams: Yes. Yes, and it would have been beyond your authority to say to Ms 
Murphy that she would be given a contract in second semester if the 
university had not decided that she would be given a contract in second 
semester?

Ms Rigg: Correct.








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63

[282] A further discussion occurred relevant to Ms Murphy’s availability: 

Mr Williams: So we can take it that since 17 April when she sent the email, and I'm 
sure you're familiar with the email, from 17 April, 2020 to 20 May, 
2020 Ms Murphy had not said anything to you that suggested she was 
prepared to work other than maximum point five, correct?

Ms Rigg: (No audible reply)

Mr Williams: Is that correct? Sorry, you have to say so?

Ms Rigg: Yes.

Mr Williams: And you and Ms Murphy were relatively friendly, weren't you ?

Ms Rigg: We are professional colleagues, yes.

Mr Williams: Yes. You had a good working relationship?

Ms Rigg: We had a good working relationship.

Mr Williams: And she understood that your role was to provide advice to the head of 
school in relation to availability of staff to be appointed?

Ms Rigg: Correct.

Mr Williams: So you'd expect that if Ms Murphy had changed her mind between 17 
April, 2020 and 20 May, 2020 you would have been the first to know?

Ms Rigg: Yes, I would.

Mr Williams: Yes. And the second thing is, the head of school, with your advice, 
perhaps, would have had to reconsider how to deal with the problem of 
backfilling Ms Gleeson now, wouldn't she?

Ms Rigg: She would need to - yes, she would need to reconsider backfilling the 
point five availability that Cheryl-Anne did no longer have.

Mr Williams: Well, the head of school might reasonably take the view that she 
wanted to backfill a full-time employee with a full-time employee, 
mightn't she? Wouldn't that be a reasonable position for her to take?

Ms Rigg: She could.

Mr Williams: Yes, because that would provide better continuity for the students than, 
say, two point five appointments?

Ms Rigg: I - well, there are two aspects to that. Ms Murphy had worked in the 
program from 2016 and had clear and very intimate knowledge of the 








[2021] FWC 1800

64

program and the students, and the cohort of students. To allocate an
new person who had not taught into that program in semester 2 would 
have meant that that individual, whilst they may be a midwife they 
would need a significant amount of support to be familiarised with the 
program and supported throughout the remainder of the 
semester. Therefore my suggestions, as they had been all along to the 
head of school, was to have Cheryl-Anne there because that made my 
role a lot easier - - -

Mr Williams: Yes?

Ms Rigg: Therefore, you know, to allocation of a person who had never taught 
into the program and who in fact had only been qualified as a midwife 
since 2014, was not in my opinion the most preferable selection of 
persons to teach into the program. Someone with over 20 years of 
experience and who did have a higher degree, or masters was in my 
opinion the most appropriate and would have been - was and is my 
recommendation to the head of school.

Mr Williams: Well, it might have been your recommendation but it was still a matter 
for the head of school, wasn't it?

Ms Rigg: It is ultimately her decision to make that final decision but those were 
my professional recommendations, which in the past she had always 
taken.

Mr Williams: I understand that. You also understand that she's filled the position 
with a PhD candidate. Are you aware of that?

Ms Rigg: I am aware of that. The individual that has only just started her PhD, 
to teach into the midwifery program you do not need a PhD. The 
individual that was thinking about it, Ms Jilmy, I understand is on a 
fixed term contract, not a continuing contract. Generally speaking at 
universities it is a continuing appointment that is asked to have a PhD, 
not a person who is on a fixed term contract. The minimum for the 
requirement for that sort of person to be teaching into the program is to 
have a masters in midwifery, and that masters preferably would be a 
masters that they have undertaken as additional training, not their basic 
training in midwifery, which is what Ms Jilmy has.

Mr Williams: Yes, so you think Ms Murphy would have been better than Ms Jilmy, 
is that what you're telling me?

Ms Rigg: Yes, I do.

Mr Williams: This is your view. So you were quite determined that Ms Murphy 
should get this role, weren't you?

Ms Rigg: Well, I had worked with Ms Murphy and there had been no issues with 
her performance, her work the whole time that she had worked with 








[2021] FWC 1800

65

USQ. And so I did not have an issue with continuing her employment.

[283] The following arose as to whether Associate Professor Terry had said that Ms Murphy 
had a contract for all of 2020: 

Mr Williams: Well, I'd suggest to you, and I have to do this formally, I suggest to 
you that Associate Professor Terry did not say at that meeting that 
Cheryl-Anne had a contract until the end of December, 2020?

Ms Rigg: Well, I respectfully deny that. She did actually say that.

Mr Williams: Yes, well, thank you. But if she did say it or if she had said it, it would 
have been quite wrong, wouldn't it?

Ms Rigg: It was incorrect and that is why I corrected her.

Applicant’s Submissions 

[284] Ms Murphy made the following submissions, all of which I have had regard, by way 
of: 

 Written submissions on 1 September 2020; 
 Written submissions in reply on 22 September 2020; and  
 Oral closing submissions at hearing. 

[285] Ms Murphy noted that in relation to s.386(1)(a): 

(a) Section 386(1)(a) directs attention to the termination of the employment 
relationship, which is not necessarily the same thing as the termination of a 
particular contract of employment especially when that relationship has been 
marked by a sequence of time-limited contracts of employment.  The Federal 
Court has recently cited Navitas with approval on the distinction between the 
employment relationship and the contract of employment.12

(b) Section 386(1)(a) focuses on “whether an action on the part of the employer was 
the principal contributing factor which results, directly or consequentially, in the 
termination of the employment.”13  The employment relationship may terminate 
with the expiration of a time-limited contract, but this “does not exclude the 
possibility that the termination of employment relationship occurred at the 
initiative of the employer.”14

(c) The termination of employment upon the expiration of a time-limited contract will 
not result in a dismissal within s 386(1)(a) if “the terms of an operative time-
limited contract reflect a genuine agreement on the part of the employer and 
employee that the employment relationship will not continue after a specified 
date” and the contract is not otherwise vitiated.15

(d) It can be appropriate “to go further than just examining the terms of any contract in 
which the parties have ostensibly agreed to terminate the employment relationship 
at a particular time”, for example if representations were made “which provide a 








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66

proper legal foundation to prevent the employer from relying upon the terms of the 
contract as the means by which the employment relationship has been 
terminated”.16

[286] In relation to s 386(2)(a), Hatcher VP and Saunders C held that “it did not include an 
employment contract which had a maximum or outer time limit but contained an unqualified 
right to terminate the employment beforehand.”17

Section 386(1)(a)

[287] Ms Murphy submitted that USQ terminated her employment, on its own initiative, 
when it decided not to give her a contract for the second semester of 2020. 

[288] First, the terms of Ms Murphy’s final contract, which said that the contract would end 
on 19 June 2020, did not “reflect a genuine agreement on the part of the employer and 
employee that the employment relationship will not continue after a specified date.”  It was 
submitted that Ms Murphy and Ms Rigg’s evidence makes it clear that it was expected that 
Ms Murphy would continue to be employed in the second semester of 2020.

[289] It was submitted that, indeed, the “specific reason for employment” in the contract 
corroborates their evidence. The specific reason is said to be: “Backfill Teaching while Staff 
(#01002835) is on Leave – HRAS.”  That staff member is Ms Gleeson, who was to be on 
study leave in second semester 2020. She was not on study leave in the first semester. 

[290] Second, an estoppel provides “a proper legal foundation to prevent the employer from 
relying upon the terms of the contract as the means by which the employment relationship has 
been terminated”.  Indeed, in Fisher v Edith Cowan University [No 2], the Industrial 
Relations Court of Australia referred expressly to estoppel.18  It was submitted that here, two 
estoppels arise.

[291] Ms Murphy submitted that the first estoppel is a promissory estoppel. The elements of 
promissory estoppel were set out by Brennan J in Waltons Stores (Interstate) Ltd v Maher19 as 
follows:

“In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove 
that (1) the plaintiff assumed that a particular legal relationship then existed between 
the plaintiff and the defendant or expected that a particular legal relationship would 
exist between them and, in the latter case, that the defendant would not be free to 
withdraw from the expected legal relationship; (2) the defendant has induced the 
plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from 
acting in reliance on the assumption or expectation; (4) the defendant knew or intended 
him to do so; (5) the plaintiff's action or inaction will occasion detriment if the 
assumption or expectation is not fulfilled; and (6) the defendant has failed to act to 
avoid that detriment whether by fulfilling the assumption or expectation or otherwise. 
For the purposes of the second element, a defendant who has not actively induced the 
plaintiff to adopt an assumption or expectation will nevertheless be held to have done 
so if the assumption or expectation can be fulfilled only by a transfer of the defendant's 
property, a diminution of his rights or an increase in his obligations and he, knowing 
that the plaintiff's reliance on the assumption or expectation may cause detriment to the 








[2021] FWC 1800

67

plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the 
assumption or expectation on which the plaintiff is conducting his affairs.”

[292] Applied to this case:

(a) Ms Murphy assumed that USQ was going to employ her in the second semester of 
2020 and that USQ was not free to withdraw from that employment (save in 
accordance with law).

(b) USQ induced Ms Murphy to adopt that assumption or expectation through 
representations made to her by USQ through Ms Rigg and in documents. 

(c) Ms Murphy abstained from applying for a position at Queensland Health and 
elsewhere in reliance on the assumption or expectation that she would be 
employed by USQ in semester two of 2020.

(d) USQ knew that Ms Murphy was abstaining from doing so.

(e) Ms Murphy will suffer detriment if her assumption or expectation is not fulfilled.

(f) USQ has not acted to avoid that detriment, and indeed has sought not to employ 
her in second semester. 

[293] It was submitted the second estoppel is an estoppel by convention. The elements of 
such an estoppel are:

(1) the plaintiff has adopted an assumption as to the terms of its legal relationship with 
the defendant;

(2) the defendant has adopted the same assumption;

(3) both parties have conducted their relationship on the basis of that mutual 
assumption;

(4) each party knows or intends that the other will act on that basis; and

(5) departure from the assumption will cause detriment to one of them.

[294] Applied to this case:

(a) Ms Murphy assumed that she was employed for the whole of 2020.

(b) USQ assumed that she was employed for the whole of 2020.

(c) Both parties conducted their relationship on the basis that she was employed for 
the whole of 2020.

(d) Each party knew or intended the other to act on that basis. 

(e) Departure from the assumption would cause detriment to Ms Murphy. 








[2021] FWC 1800

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[295] Third, clause 13.4.3 of Agreement permits a fixed-term contract to be given in certain 
circumstances only. Specifically, it provides that “[t]he use of fixed-term employment is 
limited to the employment of an Employee engaged in a work activity that comes within the 
description of one (1) or more of the following circumstances,” after which nine 
circumstances are identified, in so far as USQ seeks to rely upon her final contract, which 
purports to be for a fixed-term, there was no employee whom she was replacing. Replacing an 
employee is one of the circumstances. But Ms Murphy was not replacing any employee in 
semester 1. And no other circumstance is engaged. Accordingly, Ms Murphy submitted the 
contract was inconsistent with the enterprise agreement, and cannot be relied upon to avoid 
s.386(1)(a). As said in Navitas:20

“The terms of the contract time-limiting the employment may be inconsistent with the 
terms of an award or enterprise agreement given effect by the FW Act which prohibit 
or regulate fixed-term employment, in which case the terms of the award or agreement 
will prevail over the contract”

[296] Fourth, as Navitas makes clear, the fact that the employment relationship terminates 
upon the expiration of a time-limited contract does not necessarily exclude s.386(1)(a). And 
here, it is clear on Professor Neville’s own statement that USQ took some positive action in 
bringing her employment to an end. It purported to decide not to offer any further 
employment to Ms Murphy.  This is a case where, to quote Fisher v Edith Cowan University 
[No 2], “reliance by the employer upon the purported effluxion of a period of time for 
employment is, in fact, termination of the employment at the employer’s initiative.”21

[297] Ms Murphy submitted that USQ’s arguments should be rejected. 

[298] It was submitted that the fact there might have been specific reasons for the previous 
sequence of contracts does not mean that the parties had agreed that Ms Murphy’s 
employment was to end in June 2020 upon expiration of the last contract.  This part of USQ’s 
submissions cannot be sustained on the evidence and fails to grapple with Navitas.

[299] On USQ’s case “the employee would have continued in that role and the employment 
relationship continued [had the applicant been available to accept or continue full time 
work].”  Such submission does not advance USQ’s case and tends to assume that Ms Murphy 
did otherwise expect to be employed in the second semester otherwise the matters set out in 
that paragraph are simply not to the point.

[300] The Respondent’s submissions, Ms Murphy says, do not explain how USQ was 
entitled to offer Ms Murphy a fixed-term contract.  Nor has USQ put on any evidence to 
explain how it was entitled to do so.  The Commission should readily infer that no evidence it 
could file would help it in this regard.

[301] NTEIU v University of Wollongong,22 which USQ cites, is distinguishable. There, Dr 
Rodwell sought to argue that he should be taken to have been employed on a continuing 
employment basis because the fixed-term contract that he had been offered and accepted was 
in breach of the enterprise agreement. That is not this case and that is not what Ms Murphy 
argues. She argues that USQ cannot rely upon a contract that is in breach of an enterprise 
agreement to avoid s 386(1)(a). That is what was said in Navitas. And in this regard, Navitas 
is supported by Fisher v Edith Cowan University [No 2]. 








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[302] With respect to the Respondent’s submissions relevant to Ms Murphy’s advice in her 
email to Professor Neville on 17 April 2020, Ms Murphy submitted the submissions overstate 
and misunderstand her evidence.  The email on 17 April 2020 is not to be, and cannot be, 
understood as evidencing any belief on Ms Murphy’s part that she was not to be employed by 
USQ in the second semester of 2020. What remained to be finalised is the hours to be worked, 
not the fact that she was to work for USQ.

[303] USQ contends that Ms Rigg had no actual authority to make employment decisions. 
Ms Rigg’s third statement makes it clear that that is so. But lack of actual authority does not 
mean that there is not ostensible or apparent authority (see also s.793).  The communications 
by Ms Rigg (and from Dr Terry to Ms Rigg) were within apparent authority.  

[304] Ms Murphy referred the Commission to the High Court in Crabtree-Vickers Pty Ltd v 
Australian Direct Mail Advertising & Addressing Co Pty Ltd, that said:23

“There are circumstances where the actual representation of authority may be made by 
the agent but in such cases it will be found that the relevant representation is made by 
the principal (or by the person to whom the principal has given actual authority) either 
by a previous course of dealing or by putting the agent in a position or by allowing him 
to act in a position from which it can be inferred that his actual representation of 
authority in himself is in fact correct. It is therefore always necessary to look at the 
conduct of the principal (or the person to whom he has actually delegated authority).”

[305] And as Lord Sumption explained in Kelly v Fraser:24

“An agent cannot be said to have authority solely on the basis that he has held himself 
out as having it. It is, however, perfectly possible for the proper authorities of a 
company (or, for that matter, any other principal) to organise its affairs in such a 
way that subordinates who would not have authority to approve a transaction are 
nevertheless held out by those authorities as the persons who are to communicate 
to outsiders the fact that it has been approved by those who are authorised to 
approve it or that some particular agent has been duly authorised to approve it. 
These are representations which, if made by some one held out by the company to 
make representations of that kind, may give rise to an estoppel.” [Applicant’s 
emphasis]

[306] As to USQ’s contention that as to Ms Murphy’s employment as a “replacement 
employee”, Ms Murphy submitted that is unconvincing on the evidence and cannot be 
accepted.  In any event, it would remain contrary to the Agreement, and thus goes nowhere.

[307] It was submitted that USQ’s attempt to distinguish Navitas fails.  First, Ms Murphy 
was employed on fixed term contracts for some time, and new fixed term contracts was given 
rather than have her employment cease. The employment relationship was more than each 
individual contract. Second, it will be shown that employment was not terminated merely 
because the last such fixed term contract ceased.

[308] It was submitted that USQ is wrong that it is not open to a party to concede matters 
going to jurisdiction. That is not the same as parties by agreement seeking to give power or 
jurisdiction to a decision-maker who does not otherwise have it. A party can be precluded by 








[2021] FWC 1800

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its conduct from denying the existence of a fact or matter relevant to jurisdiction. That is well 
established.25 That is what happened by its previous concession, which it should not be 
permitted to withdraw. 

[309] Ms Murphy submitted that, in any event, USQ’s submissions are wrong.  As a matter 
of interpretation, the contract does not “simply record” the applicable notice period if the 
fixed term contract of employment is terminated during its term in accordance with one of the 
permissible grounds in the EA.”  The contract refers or cross-references to the Agreement 
when that is what is intended. 

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

Section 386(2)(a)

[311] Applying Navitas, s.386(2)(a) plainly does not apply. In Ms Murphy’s final contract of 
employment, USQ had a right to terminate her employment with notice. One of the conditions 
of appointment said: “Notice of 4 weeks (fixed-term replacement employees on parental 
leave), 5 weeks (all other professional employees) or 4 months (academic employees) will be 
provided by USQ to terminate employment.”  And indeed, USQ in its written submissions 
concedes that this contract “was terminable by the Respondent, for valid reason, on the giving 
of 4 months’ notice.”

[312] Ms Murphy’s oral submissions have been taken into consideration but need not be 
reproduced. 

Observation relevant to enterprise agreement

[313] During the hearing, after the lunch adjournment, I canvassed with the parties if Ms 
Murphy would, by agreement, be entitled to a severance payment pursuant to the Enterprise 
Agreement.  Clause 13.4.6 is produced below:  

“13.4.6 Severance Pay 

13.4.6.1 A fixed-term Employee with more than twelve (12) months continuous 
service, whose contract of employment is not renewed in circumstances where the 
Employee seeks to continue the employment, is entitled to the following severance
payment provided that: 

(a) the Employee seeks to continue the employment; and 

(b)     (i) in the case of an Employee on a second or subsequent fixed-term 
appointment for a specific task or project or research, and the same or 
substantially similar duties are no longer required by the University; or 

(ii) in the case of an Employee employed on a fixed-term appointment 
for a specific task or project or research, and the duties of the kind 
performed during the contract continue to be required but another 








[2021] FWC 1800

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person has been appointed or is to be appointed to the same or 
substantially similar duties.”

[314] I pointed out that if the gap in service between 1 December 2017 and 22 January 2018 
could be forgiven by the Respondent, Ms Murphy could be paid seven weeks’ pay, an amount 
of $15,126.58 paid and taxed as a bona fide redundancy.  Mr Williams confirmed the 
Respondent would be agreeable to this payment, forgiving the gap in service if the application 
was withdrawn. Mr Tran sought instructions from Ms Murphy and the offer was rejected. 

Consideration 

Section 386(2)(a)

[315] I am not satisfied that Ms Murphy’s semester 1, 2020 contract was for a specified 
period of time; rather, it was an outer-limits contract.  The contract contained the following 
condition: 

“Notice of 4 weeks (fixed-term replacement employees on parental leave), 5 weeks (all 
other professional employees) or 4 months (academic employees) will be provided by 
USQ to terminate employment.”

[316] Clearly, if the Respondent wished to finish the contract early, it could seek to do so in 
reliance on the above term.  Where the contract commenced on 19 January 2020, the 
Respondent could have, for example, terminated on 1 February 2020 and paid to Ms Murphy 
four months’ notice.  If it had sought to finish Ms Murphy up earlier than 19 June 2020, but 
less than four months from 19 June 2020, it would have been required to have paid to Ms 
Murphy the balance of the contract term. 

[317] I determine that Ms Murphy’s semester 1, 2020 contract was an outer-limit contract, 
providing the Respondent with an unqualified right to terminate within the term.  The contract 
was therefore not a contract of employment for a specified period, and the exclusion in 
s.386(2)(a) does not apply. 

Consideration of s.386(1)(a) 

[318] I am bound to give proper consideration of the majority decision in Navitas.  I will do 
so by breaking up each of the elements in [75] of the majority decision, applying the facts in 
Ms Murphy’s circumstances: 

(1) The analysis of whether there has been a termination at the initiative of the 
employer for the purpose of s 386(1)(a) is to be conducted by reference to termination 
of the employment relationship, not by reference to the termination of the contract of 
employment operative immediately before the cessation of the employment. This 
distinction is important in the case of an employment relationship made up of a 
sequence of time-limited contracts of employment, where the termination has occurred 
at the end of the term of the last of those contracts. In that situation, the analysis may, 
depending on the facts, require consideration of the circumstances of the entire 
employment relationship, not merely the terms of the final employment contract.








[2021] FWC 1800

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[319] The employment relationship existed between Ms Murphy and the Respondent from 
January 2017.  Ms Murphy was issued with two contracts in 2017 covering semesters 1 and 2; 
the contracts were back-to-back.  Following that there was then a gap between 1 December 
2017 and 22 January 2018.  Ms Murphy was released, and on her evidence, not required.  She 
continued in her other employment during this time.  

[320] Ms Murphy was not formally offered a new contract until 19 January 2018, just days 
before the employment on 22 January 2018 commenced.  The offer was made by Ms Jane 
Farmer, Executive Director (Human Resources).  If that offer had not been made, presumably, 
Ms Murphy’s employment relationship with the Respondent would have ended on 1 
December 2017 when her second contract expired. 

[321] The employment relationship between Ms Murphy and the Respondent has been 
dependent upon a number of various issues including; 

(a) Ms Murphy’s willingness to work for the Respondent having regard to her other 
employment, family responsibilities and happiness in the role; 

(b) Ms Murphy’s FTE availability;

(c) the Respondent’s staffing needs having regard to Ms Murphy’s FTE availability;
and 

(d) whether Ms Murphy was required outside of semesters. 

[322] I consider the employment relationship was one of equal power relationship; Ms 
Murphy made herself available as it suited her, and the Respondent offered a number of 
contracts as it suited it. 

[323] I consider, however, the Respondent was very clear to Ms Murphy each time it offered 
to her a contract that the contract was not renewable.  Stronger terms were in place 
particularly in the last contract, stating that there is no expectation of continuity of 
employment unless stated otherwise, in writing by the Executive Director, Human Resources.  
That is, nobody within the Respondent had any authority to offer continuation of the 
employment but that person.  Ms Murphy’s evidence is that she did not read that condition 
within the contract. 

(2) As stated in Mohazab, the expression “termination at the initiative of the 
employer” is a reference to a termination that is brought about by an employer and 
which is not agreed to by the employee. In circumstances where the employment 
relationship is not left voluntarily by the employee, the focus of the inquiry is whether 
an action on the part of the employer was the principal contributing factor which 
results, directly or consequentially, in the termination of the employment.

[324] Considering the employment relationship that existed between Ms Murphy and the 
Respondent, and particularly in light of the express terms stated to Ms Murphy within each 
contract issued to her, in my view, Ms Murphy indeed knew that the employment relationship 
ended each time a contract expired.  Ms Murphy’s actions in her email of 17 April 2020 made 
it clear that she no longer wished to work full-time beyond the contract which bound her.  She 
was home-schooling her child at the height of the COVID-19 lockdown restrictions.  Home-








[2021] FWC 1800

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schooling had been indicated to be in place for five weeks at that time.  Nobody knew as of 17 
April 2020 how much longer that might extend.  Ms Murphy informed the Respondent 
unequivocally that she was unable to continue working full time in semester 2 for the 
Respondent.  She was, in my view, drawing a line in the sand and announcing her intentions, 
as she was entitled to do. 

[325] Where in her evidence she has stated that she was intending to negotiate with 
Professor Neville to work 0.5 FTE or less, she did not state so in writing.  Her email could 
have said so, but it didn’t.  Ms Murphy’s evidence was particularly confusing when I 
questioned her on her home-schooling activity in term 2, 2020.  Ms Murphy sent her son to 
school from week 6, term 2, which is within semester 1, 2020.  Ms Murphy’s notification to 
Professor Neville was for semester 2, 2020, which is from July 2020.  

[326] I accept that there were meetings and discussions which occurred throughout May 
2020 in an effort to see if Ms Murphy’s availability and the Respondent’s needs aligned, but 
there was ultimately no success in those attempts.  I accept that the Respondent made the 
decision that it would prefer to have Ms Joy cover Ms Gleeson’s absence in semester 2, 2020.  
Ms Joy was employed in early 2020 pursuant to a 12-month contract.  The Respondent was 
fulfilling its responsibility to Ms Joy to provide appropriate work to her.  

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

(3) In Mahony v White the Full Court stated that a termination of employment may be 
done at the initiative of the employer even though it was not done by the employer. 
In circumstances where the parties to a time-limited contract have agreed that 
their contract will expire on a specified date but have not agreed on the 
termination of their employment relationship, it may be the case that the 
termination of employment is effected by the expiry of the contract, but that does 
not exclude the possibility that the termination of employment relationship 
occurred at the initiative of the employer - that is, as a result of some decision or 
act on the part of the employer that brought about that outcome.

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

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








[2021] FWC 1800

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

(4) Where the terms of an operative time-limited contract reflect a genuine agreement 
on the part of the employer and employee that the employment relationship will not 
continue after a specified date and the employment relationship comes to an end on 
the specified date, then, absent a vitiating or other factor of the type to which we refer 
in (5) below, the employment relationship will have been terminated by reason of the 
agreement between the parties and there will be no termination at the initiative of the 
employer. Further, in those circumstances a decision by the employer not to offer any 
further contract of employment will not be relevant to the question of whether there 
was a termination of employment at the initiative of the employment. The decision not 
to offer further employment is separate and distinct from the earlier agreement 
between the parties to end the employment relationship on a particular date 
(Griffin/Fisher). However if the time-limited contract does not in truth represent an 
agreement that the employment relationship will end at a particular time (as, for 
example, in D’Lima), the decision not to offer a further contract will be one of the 
factual matters to be considered in determining whether an action on the part of the 
employer was the principal contributing factor which results, directly or 
consequentially, in the termination of the employment.

[331] The Respondent’s communication within each of the contracts issued to Ms Murphy 
and accepted by her could not be any clearer; the contract of employment is not renewable.  In 
later contracts, only one authorised person within the Respondent could make such an offer to 
her.  Disappointingly for Ms Murphy, she did not read such provision.  

(5) In some cases it will be necessary to go further than just examining the terms of 
any contract in which the parties have ostensibly agreed to terminate the employment 
relationship at a particular time. It is not necessary or appropriate that we attempt to 
identify exhaustively all relevant matters, but the authorities to which we have earlier 
referred indicate that the following are likely to be relevant and may in some cases be 
determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised 
categories by which the law excuses parties from performance of a contract. 
The categories potentially relevant in an employment context include the 
following:

● the employee entered into the contract as a result of misrepresentation 
or misleading conduct by the employer;  

● the employee entered into the contract as a result of a serious mistake 
about its contents or subject matter;

● there has been unconscionable conduct associated with the making of 
the contract, which may relevantly include that the employer took 
advantage of a disability affecting the employee such as lack of 
education, lack of information, lack of independent advice or illiteracy;








[2021] FWC 1800

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● the employment contract was entered into by the employee under 
duress or coercion (which might include the types of coercion prohibited 
in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the 
part of the employer;

● the employee lacked the legal capacity to make the contract; or

● the contract was a sham in the sense that it was not intended by the 
parties to give legal effect to its apparent terms or in the broader sense 
dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-
limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy 
(for example, it contains relevantly objectionable terms as defined in s 12 of the FW 
Act or has the purpose of frustrating the policy or operation of the FW Act or 
preventing access to the Commission’s unfair dismissal jurisdiction 82). Whether the 
employment was constituted by successive short term contracts or the use of time-
limited contracts was appropriate in the relevant field of employment may be some of 
the considerations relevant to an examination of the employer’s purpose for entering 
into such contracts (D’Lima/Fisher).

(c) The contract may have been varied, replaced or abandoned by way of a separate 
agreement, whether in writing and/or orally, such that its ostensible time limit no 
longer applies (Fisher).

(d) The employment contract may not be limited to the terms of a written document 
and may, for example, be one of a series of standard-form contracts which operated 
for administrative convenience and did not represent the reality or the totality of the 
terms of the employment relationship (Fisher/D’Lima).

(e) During the term of the employment relationship the employer may have engaged in 
conduct or made representations (for example, representing to the employee that the 
employment will continue subject to conduct and performance notwithstanding a 
contractual time limit on the employment) which provide a proper legal foundation to 
prevent the employer from relying upon the terms of the contract as the means by 
which the employment relationship has been terminated (Fisher).

(f) The terms of the contract time-limiting the employment may be inconsistent with the 
terms of an award or enterprise agreement given effect by the FW Act which prohibit 
or regulate fixed-term employment, in which case the terms of the award or agreement 
will prevail over the contract (Fisher).

[332] I am not satisfied that Ms Murphy entered into the contract as a result of 
misrepresentation or misleading conduct by the Respondent.  It was known that for a 12-
month contract to be in place, the role would need to be advertised.  It seems that there wasn’t 
sufficient time to do so, and in any event, it would have opened Ms Murphy up to a 






https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm#P586_110577


[2021] FWC 1800

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competitive process.  On the Respondent’s evidence, Ms Murphy might have been exposed 
given her lack of particular qualifications.  

[333] Ms Murphy was, quite sensibly, a good fit for a six-month role.  She had satisfactorily 
performed the role for around three years, was well regarded, and had a strong supporter in 
Ms Rigg.  Ms Murphy enthusiastically entered into the contract and she was familiar with it. 

[334] Ms Murphy would have known that contracts are offered and accepted.  She had some 
time away from the Respondent in late 2017, and awaited her new contract in January 2018.  
She wasn’t asked about her availability until mid-January 2018.  For all the Respondent knew, 
Ms Murphy might not have been available in mid-January 2018 to commence a few days later 
when that particular contract was issued.  Ms Murphy’s evidence is that the discussions didn’t 
occur until then, which demonstrates a detachment from the Respondent which is necessary to 
give weight to. 

[335] Regarding the semester 1, 2020 contract, while it appears that it was an administrative 
error to nominate the reason being backfill teaching for Ms Gleeson, this did not affect Ms 
Murphy’s decision to accept the role.  There was no serious mistake about its contents or 
subject matter.  

[336] Ms Murphy has no disability.  There has not been any unconscionable conduct 
associated with the making of the contract. 

[337] Ms Murphy was not under any duress or coercion to enter into the contract. 

[338] Ms Murphy did not lack the legal capacity to make the contract. 

[339] The contract was not a sham.  Where Ms Rigg might have been advocating for two 
six-month contracts for Ms Murphy to cover the two semesters in 2020, on Ms Rigg’s 
evidence, in her discussions with Associate Professor Terry, it was a suggestion but not one 
that Associate Professor Terry committed the Respondent to.  It seemed to make perfect sense 
for Ms Rigg, and I appreciate her loyalty and decisiveness in trying to ensure what she 
considers to be the best staff in the right positions, but it wasn’t what took effect. I am 
satisfied that Associate Professor Terry didn’t over-promise, nor did she reach beyond her 
delegated authority. 

[340] Having satisfied myself that none of the above relevant considerations in Navitas 
apply, it cannot be said that there is no legally effective time-limit on the employment. 

[341] I am not satisfied that the time-limited employment contract was illegal or contrary to 
public policy.  It is not, for example a contract with a cleaner who must learn regularly 
whether their employment is permitted to continue by the issuing of rolling contracts.  Having 
regard to the field of employment being academic teaching in a tertiary institution, I consider 
it appropriate for the Respondent to have entered into the time-limiting contract in the manner 
in which it did.  It was suitable for the circumstances. 

[342] In particular, it was suitable given the knowledge between the parties, and including 
Ms Rigg and Ms Murphy, that a tougher standard applied for contracts of 12 months’ 
duration.  The contract issued to Ms Murphy meant that she did not need to be tested against 
the competition, nor was there any delay.  Ms Murphy was earmarked for the role. 








[2021] FWC 1800

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[343] I do not accept that the contract had been varied, replaced or abandoned by way of a 
separate agreement, whether in writing and/or orally such that its ostensible time limit no 
longer applies.  Much has been made of Ms Rigg’s discussions with both Professor Neville 
and Associate Professor Terry, and then her subsequent discussions with Ms Murphy.  I 
understand that Ms Rigg was the conduit between the parties.  Professor Neville’s role is far 
too large a role for her to have regular direct contact with staff.  Ms Rigg was a person who 
wanted Ms Murphy in the role and advocated for her.  For Ms Rigg, it was a seamless fit. 

[344] I do consider though, and without any disrespect to Ms Rigg, she appears to have 
overstepped her levels of authority, at times.  For example, at [98], it was unnecessary for Ms 
Rigg to provide information to Ms Murphy beyond her first contract, even if it is Ms Rigg’s 
evidence that Ms Murphy was in attendance at the meeting with Professor Duff.  I consider it 
was beyond her authority to do so, especially when the Respondent is an organisation that 
requires flexibility, and Ms Rigg then made representations on behalf of Dr Rogers.  
Particularly so when Ms Murphy had just signed a formal contract stating it was not 
renewable. Further, at [105], Ms Rigg continued to make Ms Murphy promises, it seems, 
without authority to do so.

[345] It was not Ms Rigg’s place to suggest to Ms Murphy that where there was no time in 
late 2019 to advertise for a 12-month contract, she would be issued with two six-month 
contracts.  It was an incorrect statement to make, particularly as the action of doing so skirts 
around the Respondent’s policy.  I accept there have been occasions when the Respondent has 
sought to work around the policy, but Ms Rigg does not act for the Respondent on each and 
every issue or occasion, and it is for more senior decision makers to determine how a person 
is employed. 

[346] Where Ms Rigg may have considered at around 20 May 2020 that Ms Murphy was 
pretty much guaranteed a further contract, and Ms Murphy’s name was attached to courses in 
the WAMS, it was ultimately Professor Neville’s decision to make as to the School’s staffing 
requirements.  It would have been helpful for there to have been greater clarity and dialogue 
directly between Professor Neville and Ms Murphy beyond 17 April 2020 if Professor Neville 
was still considering Ms Murphy for a role in semester 2, 2020.  

[347] There appears to have been a surprising turn of events in late May 2020.  Professor 
Neville’s evidence is that upon Ms Rigg going on extended leave, others indicated their 
willingness to teach within the School.  This, of course, opened up greater choice for 
Professor Neville.  This was, it seems, unexpected. 

[348] It appears that throughout the years of engagement, where Ms Rigg has acted as 
messenger between the Head of School and Ms Murphy, Ms Rigg may have inadvertently
over-promised to Ms Murphy.  If she did, it was without the knowledge of Professor Neville 
or Associate Professor Terry when she was acting in the role.  I consider it to have been 
inadvertent, and not malicious or for any improper purpose.  Ms Rigg, understandably, was 
keen to have skilled people to place in the teaching role of the courses the School offered.    

[349] I do not accept that having Ms Murphy’s name in various columns of the WAMS, 
suggesting she would be teaching particular courses in semester 2, 2020 constitutes an 
appropriate change to the employment relationship.  Ms Murphy had given formal 
notification that she was not available full-time.  If the Respondent had, even as of 20 May 








[2021] FWC 1800

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2020 been considering placing Ms Murphy into teaching positions in semester 2, 2020 of a 
0.5FTE or less, and Ms Murphy said, “No, I have communicated my unavailability”, simply, 
the Respondent would have been left with a dilemma. It could not have insisted that Ms 
Murphy uphold her promise that she would be available up to 0.5FTE.  There was no 
obligation from either party.  No party was required to do or say anything.  Whatever was said 
beyond 17 April 2020 did not affect the fact that the contract would come to an end on 19 
June 2020, and with it the employment relationship. 

[350] Much was made of Ms Murphy’s additional 196.8 hours that needed to be recovered 
due to her being over-worked in earlier years.  On the face of the calculations, it appears to 
me that Ms Murphy was afforded time off in her work allocation within semester 1, 2020.  I 
do not agree that it was expressed by the Respondent to be carried over across two semesters.  
Ms Murphy regularly took half days off on Fridays.  If she ended up working additional hours 
because of the necessary response to the COVID-19 pandemic, and can demonstrate so, that is 
a matter for a court’s consideration.  I accept that the workload for semester 1, 2020 largely 
took into account the hours in the workload model, and the hours were not allocated across all 
of 2020. 

[351] I do not consider that the contracts entered into by Ms Murphy were for administrative 
convenience.  They were considered appointments, with due and proper regard for the 
circumstances.  I am satisfied that the contracts entered into between Ms Murphy and the 
Respondent represented the reality of the terms of the employment relationship. 

[352] Despite whatever occurred after Ms Murphy’s announcement on 17 April 2020, I am 
not satisfied that the Respondent engaged in conduct or made representations which provide a 
proper legal foundation to prevent the Respondent from relying upon the terms of the contract 
as a means by which the employment relationship has been terminated.  

[353] While I am of the view that Ms Murphy assumed that the Respondent was going to 
employ her in semester 2, 2020, on account of Ms Gleeson’s absence, it was not a complete 
certainty.  If Ms Gleeson had cancelled her study leave, she would be entitled to her 
substantive role.  There was precedent for Ms Murphy to be displaced when the substantive 
employee resumed her role.  If Ms Gleeson had decided, for her own reasons not to partake in 
study leave, there would be no semester 2, 2020 role for Ms Murphy to perform.  Nothing was 
guaranteed.

[354] This is particularly evidenced at [139(d)] where Ms Murphy, understandably upset 
with the proposed work allocation said that she would not sign another contract under those 
circumstances.  She knew, therefore, that there are dynamics at play, and she had the ability to 
undertake an action if something objectionable was put to her. She would not, it seems, offer 
her services to the Respondent in a manner that she considered the Respondent expected.    

[355] Where Ms Murphy submitted that the Respondent was not free to withdraw from the 
employment that was assumed by Ms Murphy for semester 2, 2020, this is incorrect.  If Ms 
Murphy made such an assumption, it was not on solid grounds.  If she had truly thought that 
was the case, she would have been exposed to a 12-month contract and recruitment that goes 
with such.  

[356] I do not accept that the Respondent knew that Ms Murphy was abstaining from taking 
other employment on account of her assumption or expectation that she was to be employed 








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by the Respondent in semester 2, 2020.  Professor Neville certainly did not know this, and if 
Associate Professor Terry did know of alternative employment, I’m certain she did not 
comprehend this at the time for it to be any purposeful act.  

[357] I do not accept Ms Murphy’s argument that she acted on the basis of continued 
employment into semester 2, 2020.  If she had done so, on her proposed scenario, she would 
have been required, pursuant to 34.4.1 of the Enterprise Agreement to give four months’ 
notice of termination of employment.  She did not do so, instead informing Professor Neville 
that she was unable to work full-time in semester 2, 2020.  If she considered that she was 
employed to work full-time in semester 2, 2020, she would have been repudiating her year-
long agreement, or seeking the employer agree to changes.  She did not seek for the employer 
to agree to changes to accommodate her personal circumstances. 

[358] Relevant to the terms of the Enterprise Agreement, Professor Neville’s evidence is that 
when Ms Murphy’s contract in February 2019 was re-issued on account of Ms Gleeson’s 
early return, specific reasons were stated in the justification section of the request form.  The 
box ticked was “Specific Task/Project”, and it was reasoned that although Ms Gleeson had 
returned early, and Ms Murphy had approximately one year to run on her contract, Ms 
Murphy’s services were needed to support the teaching of the midwifery program. 

[359] The alternative would have been, of course, to finish Ms Murphy up early on Ms 
Gleeson’s return.  This was decided not to be the best course of action, and Ms Murphy was 
provided the alternative contract.  It appears that there is no contention that this was not 
lawful. 

[360] On the evidence before the Commission, when the last contract was prepared, 
Associate Professor Terry received it in electronic form and approved it, even though it stated 
it was for a replacement employee (Ms Gleeson), and this was not strictly correct. Associate 
Professor Terry had not approved other forms in electronic format and didn’t see how it was 
presented.  She stated that it was an administrative error.  

[361] In any event, everybody wished for Ms Murphy to be appointed, including her biggest 
advocate, Ms Rigg.  Nobody had any objection at the time that Ms Murphy was not being 
appointed to replace Ms Gleeson; rather, the needs of the School required Ms Murphy to 
teach certain courses. Professor Neville’s evidence at [32(c)] is that Ms Gleeson was focussed 
on academic work in semester 1, 2020, diverting her away from teaching responsibilities.  
Accordingly, Professor Neville does not consider it to have been an error as such and 
considers that it was appropriate to have Ms Murphy’s contract as a “replacement employee”. 

[362] Whether Ms Murphy was a replacement employee pursuant to the Enterprise 
Agreement, or she was employed for a specific task or project is a relevant consideration. 

[363] The relevant clause of the Enterprise Agreement is produced below: 

“13.4.3.1 Specific Task or Project 

A specific task or project is a definable work activity with a start date and which is 
expected to be completed within an anticipated timeframe. Without limiting the 
generality of that circumstance, a specific task or project may include a period of 
employment provided for from identifiable funding external to the employer, not being 








[2021] FWC 1800

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funding that is part of an operating grant from government or funding comprised of 
payments of fees made by, or on behalf of, students.”

[364] I consider the terms, “without limiting the generality of that circumstance” to be a very 
broad allowance.  If Professor Neville thought it appropriate and lawful to, in February 2019, 
appoint Ms Murphy on such a basis, and move the budgetary cost from the School’s salaries 
budget to the School’s casual contracts budget, and this is the effect of the last contract in 
semester 1, 2020, then I am comfortable with it being defined as a specific task or project with 
a definable work activity with a start date and expected to be completed within an anticipated 
timeframe.  This is particularly so when regard is had for the Tasmanian Department of 
Health obligations.  I accept Professor Neville’s evidence relevant to the potential fluctuations 
of students across semesters and the requirement to, where possible, employ permanent 
employees, but have some flexibility with fixed-term employees.  I prefer this evidence over 
Ms Rigg’s evidence on account of Professor Neville having greater oversight of the School. 

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

[366] Further, if I am incorrect about the appropriateness of a “replacement employee”
description applying to Ms Murphy’s last contract, I am not satisfied that it would provide 
conversion under the Enterprise Agreement to continuing employment pursuant to clause 
13.2:

“13.2 Continuing Employment 

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

[367] I do not accept that Ms Murphy and the Respondent entered into employment for an 
indefinite period. Further, if it is the fall-back position, and they did, Ms Murphy gave notice 
of the termination of the employment by her email of 14 April 2020. 

Conclusion 

[368] In light of the above, I find that the employment relationship was terminated by reason 
of the agreement between the parties and there was no termination at the initiative of the 
employer. I also find that Ms Murphy’s last contract had an end date of 19 June 2020 and her 
employment ended when that outer-limit contract reached its end date. 








[2021] FWC 1800

81

[369] For these reasons Ms Murphy was not dismissed. Therefore, she is not protected from 
unfair dismissal. The Commission does not have jurisdiction to deal with her application and 
it follows that the application is dismissed. An Order to this effect will be issued in 
conjunction with this decision.

COMMISSIONER

Appearances:

Tran C, for the Applicant. 
Williams D, for the Respondent. 

Hearing details:

7 October 2020, by Video. 

Printed by authority of the Commonwealth Government Printer

PR728319
                                               
1 Transcript, PN99.
2 Transcript, PN186.
3 Transcript, PN217.
4 Transcript, PN328.
5 Transcript, PN349.
6 Khayam v Navitas English Pty Ltd [2017] FWFCB 5162; (2017) 275 IR 44 at [72] and [75(4)].
7 NEIU v University of Wollongong [2002] FCA 31.
8 Transcript, PN430.
9 Transcript PN502.
10 Transcript, PN694.
11 Transcript, PN710.
12 Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867 at [89]-[90] (Katzmann J). 
13 (2017) 275 IR 44 at 80 [75(2)]. 
14 (2017) 275 IR 44 at 80 [75(3)]. 
15 (2017) 275 IR 44 at 80-81 [75(4)]. 
16 (2017) 275 IR 44 at 81 [75(5)], 82 [75(5)(e)]. 
17 (2017) 275 IR 44 at 88 [89].
18 (1997) 72 IR 464 at 471 (Lee, Marshall and North JJ). 
19 (1988) 164 CLR 387 at 428-429.
20 (2017) 275 IR 44 at 82 [75(f)].
21 (1997) 72 IR 464 at 471 (Lee, Marshall and North JJ).


THE ALORS FA THE COMMISSION THE SEAL




 



[2021] FWC 1800

82

                                                                                                                                                  
22 [2002] FCA 31.
23 (1975) 133 CLR 72 at 78 (Gibbs, Mason and Jacobs JJ).
24 [2013] 1 AC 450 at 459-460.
25 Energy Australia Yallourn Pty Ltd v AFMEPKIU (2018) 264 FCR 342 at 364 [90].

Cases cited by this decision: