DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aynur Caliskan
v
Ilim College
(U2021/37)

Application for an unfair dismissal remedy – whether applicant dismissed within meaning of s.386.

[1] On 5 January 2021 Ms Aynur Caliskan (Applicant) applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy, alleging that she had been unfairly dismissed from her employment with Ilim College (Respondent).

[2] The Respondent says the Applicant was not dismissed within the meaning of s 386(1) of the Act because the Applicant was employed pursuant to a fixed term contract which came to an end through the effluxion of time. 1 In other words the exception in s 386(2)(a) applies. Alternatively, it contends the Applicant’s dismissal was not unfair.2 The Applicant contends that although she was employed on a fixed term contract for the 2019 school year, no such arrangement was made for 2020, and she was an ongoing employee who was dismissed at the end of the 2020 school year.3

[3] The Respondent maintains that the Applicant’s employment has not been terminated on the employer’s initiative within the meaning of s 386(1)(a) and the circumstances in s 386(1)(b) do not arise. 4 This contention appears in part to relate to the continuation of a casual employment relationship between the Applicant and the Respondent.5 To the extent that the Respondent relies on the ending of the purported fixed term contract, if the Respondent is wrong about the nature of the contract then the events of November 2020, which will be discussed further below, will have had the result that the Respondent, acting under the mistaken belief that the Applicant was employed under a fixed term contract, brought the employment relationship governed by the contract to an end. The Applicant did not resign. If the Respondent is correct that the Applicant was employed under a contract of employment for a specified period of time and the employment terminated at the end of the period within the terms of s 386(2)(a), then the Applicant was not dismissed.

[4] The Applicant commenced employment with the Respondent as a Casual Relief Teacher (CRT) on a casual basis in 2016. 6

[5] The Applicant was employed as a Primary Teacher pursuant to a fixed-term contract of employment for Term 4 of the 2019 school year. 7 On 26 September 2019, the Applicant was provided with a letter of offer by the Respondent enclosing a series of documents providing information about the position, remuneration and general requirements and conditions of employment.8 Relevantly, the enclosed attachments specified the following:

•  the offer of employment was for a full-time position pursuant to a fixed-term contract, commencing on 7 October 2019 and terminating on 13 December 2019; and

•  the fixed term engagement was “offered to replace a teacher who is on leave”. 9

[6] There is no dispute that the Applicant was employed on a fixed-term contract for Term 4 of the 2019 school year. The dispute concerns the nature of the Applicant’s engagement in 2020. The Applicant contends that she was employed on an ongoing basis in 2020 and was dismissed from her employment, with her last day of work being 15 December 2020. 10 The Respondent contends that the Applicant was employed under two contracts in 2020:

•  a fixed-term contract under which the Applicant worked two regular days each week to relieve teachers who were absent or otherwise unavailable; and

•  a casual contract where the Applicant worked on irregular days to relieve teachers who were absent or otherwise unavailable. 11

[7] The Respondent maintains that the casual employment contract remains on foot and therefore, there continues to be an employment relationship between the Applicant and the Respondent and as such, the Applicant has not been dismissed. 12

[8] The Applicant says that she performed the following work throughout the 2020 school year:

•  during Term 1, the Applicant worked two days a week (every Tuesday and Friday) on a regular 0.4FTE basis, relieving for teachers who were absent. The Applicant undertook casual relief teaching on the other days of the week;

•  during Terms 2 and 3, the Respondent moved to remote learning and the Applicant was allocated a regular class and worked each Tuesday and Friday. The Applicant did not relieve for absent teachers; and

•  during Term 4, the Respondent resumed onsite learning and the Applicant worked two days a week (every Tuesday and Friday) on a regular 0.4FTE basis, relieving for teachers who were absent or otherwise unavailable. The Applicant also undertook casual relief teaching on the other days of the week.  13

[9] In early November 2019, the Applicant was invited to attend a meeting with Ms Derya Buyukyazici, Principal of the Respondent (Meeting). 14 The invitation set out the purpose of the Meeting as follows:

“Re: Fixed term contract and 2020 forward planning”

[10] The Applicant attended the Meeting and her evidence was that during the Meeting:

•  Ms Buyukyazici advised the Applicant that her existing fixed-term role was to end at the end of Term 4 15 and there were no teaching positions available for the Applicant in 2020;16

•  Ms Buyukyazici acknowledged the Applicant’s length of service and said the Respondent “did not want to lose me [the Applicant]”; 17

•  Ms Buyukyazici advised the Applicant that she would offer the Applicant a two-day CRT position where the Applicant would work two regular days each week to relieve teachers who were absent or otherwise unavailable (2020 CRT Position); 18 and

•  at the conclusion of the Meeting, Ms Buyukyazici said that “as soon as a classroom position become available that she [Ms Buyukyazici] will place me [the Applicant] in that position.” 19

[11] Ms Buyukyazici’s evidence was that she offered the Applicant the 2020 CRT Position during the Meeting 20 but says that if a discussion about a permanent classroom position occurred, she would have told the Applicant that the Respondent would inform the Applicant if a suitable position did become available, as “[i]n the ordinary course, there would be a selection process”.21 Ms Buyukyazici accepted that she did not remember all that was said during the Meeting22 and could not remember specifically whether she discussed fulltime teaching positions becoming available but that if such a discussion did occur, she would have told the Applicant that she would be informed of the position23 as that was “part of my [Ms Buyukyazici’s] practice”.24 Ms Buyukyazici says that she “would not promise to put someone in a role without considering who was the best candidate at the time”25 and when selecting individuals for roles, it is a “competitive process” and she would “select the most suitable candidate based on merit”.26 However, Ms Buyukyazici conceded that the Applicant did not go through a selection process for the appointment to her fixed term contract in Term 4 of 2019 nor for her engagement in 2020.27 As such, in her oral submissions, the Applicant submitted that not all appointments by the Respondent were made on merit.28 Nothing much turns on this, however it seems to me clear that when Ms Buyukyazici referred to merit selection, she was speaking of permanent teaching roles. This was the context of the discussion about the availability of an ongoing classroom teaching role in 2020, not a fixed term CRT role.

[12] A significant point of difference between the evidence of the Applicant and Ms Buyukyazici is whether Ms Buyukyazici told the Applicant during the Meeting that the 2020 CRT Position would be a fixed term position.

[13] The Applicant says that Ms Buyukyazici did not advise her that she was to be employed on a fixed-term contract in 2020 nor did Ms Buyukyazici advise her that an extension was being made to her 2019 fixed-term contract. 29 Though in oral evidence, the Applicant maintained that during the Meeting, Ms Buyukyazici did not advise her that the 2020 CRT Position was fixed-term, the Applicant accepted that Ms Buyukyazici also did not advise her that the 2020 CRT Position was ongoing.30 The Applicant also accepted that Ms Buyukyazici had informed her that she did not have any ongoing positions available for her in 2020.31 As such, in its oral submissions, the Respondent submitted that the agreement reached at the Meeting was not an agreement that the Applicant would be ongoing,32 but rather it was for the 2020 CRT Position for a fixed term, namely the 2020 school year.

[14] Ms Buyukyazici gave evidence that she expressly told the Applicant during the Meeting that the 2020 CRT Position would be a fixed term position. 33 Ms Buyukyazici explained that she anticipated that there would be insufficient permanent staff available to work in a CRT capacity in 2020, and that there would be a need for an additional two days of CRT work in 2020.34 Ms Buyukyazici’s evidence was that the Respondent did not have any permanent ongoing roles for the Applicant35 and so, she decided to offer the 2020 CRT Position to the Applicant on a fixed-term basis and this was “a gesture of goodwill” which “provide[d] the Applicant with some predictability for 2020”.36

[15] Ms Buyukyazici says that the calendar invitation for the Meeting sent to the Applicant with the description “Re: Fixed term contract and 2020 forward planning” 37 made it clear that the purpose of the Meeting was to discuss a fixed-term contract and plan for 2020.38 Ms Buyukyazici also produced a hand-written note she made in her diary following the Meeting to the effect of “2 days CRT for 2020 and if anything suitable thereafter”.39 Ms Buyukyazici expanded on the description of the diary invitation stating that on and around 8 November 2019, she held meetings with other teachers on fixed-term contracts whose contracts were coming to an end in 2019.40 Ms Buyukyazici accepted that she would have issued invitations to these teachers with the same description.41 Therefore, the Applicant submitted that the phrase “fixed term contract” in the description described the current contract as Ms Buyukyazici was holding meetings with all teachers on fixed-term contracts.42

[16] On 4 February 2020, the Applicant sent an email to Mr Yusuf Ozen, Human Resources of the Respondent, inquiring about when she would receive her contract for 2020. 43 The Applicant was sent an email by Mr Ozen stating:

“I’ve already sent the letters for approval and it has been a few weeks, but it takes time for leadership to go through them all.” 44

[17] On 24 February 2020, the Applicant was sent an email by the Respondent, attached to which was a one-page document titled “Employment conditions for 2020 – Ilim College” (Employment Conditions Document). 45 The Employment Conditions Document did not stipulate the nature of the Applicant’s engagement, whether fixed-term contract or ongoing. The text of the Employment Conditions Document in whole is reproduced below:

“We would like to inform you that your 2020 employment conditions will be as per below:

•  Position: Teacher

•  Location: Glenroy

•  Time fraction: 40%

•  Days of work: Tue, Fri

•  Hours of attendance: Tue (8:30 AM 4:15 PM), Fri (8:30 AM 4:15 PM)

•  Level: 3

•  Salary per annum: $27,929.77 Pro rata of your worked time fraction, inclusive of annual leave loading.”

[18] The Applicant submits that it is the practice of the Respondent to issue all ongoing teachers with a document like the Employment Conditions Document. 46 Mr James Rankin, as Organiser for the Respondent, gave evidence that the Employment Conditions Document issued to the Applicant is “exactly the same format of document that Ilim College [Respondent] issues to teachers employed on an ongoing basis”.47

[19] The Applicant therefore maintains that she “had no reason to” think the 2020 CRT Position was a fixed-term position considering she was issued with the Employment Conditions Document. 48 This proposition was challenged by the Respondent on the following grounds:

•  the Employment Conditions Document was received by the Applicant “as an administrative function performed by an automated HR process as it existed at the [Respondent] at that time”; 49

•  the terms of the Applicant’s contract for 2020 had been agreed to at the Meeting and therefore, given the Employment Conditions Document was provided more than three months after the Meeting and almost a month after the Applicant commenced work for the 2020 school year, the Employment Conditions Document is “of no (or, if any, very limited) relevance in the proper construction of the contract”; 50

•  the Employment Conditions Document “does not indicate anything to the effect that the [2020 CRT Position] is ongoing, or permanent, nor as to what her [the Applicant’s] terms would be if she [the Applicant] were to continue as an employee of the College [Respondent] after the end of 2021;” 51 and

•  the Employment Conditions document instead supports a finding that the 2020 CRT Position was of a fixed-term nature as it is consistent with Ms Buyukyazici’s evidence about the Meeting as it specifies that the Applicant is to work two days per week as a CRT in 2020. 52

[20] During her oral evidence, Ms Buyukyazici stated that the Employment Conditions Document was “issued via internal system” and “could be issued to any employee”. 53 Ms Buyukyazici also stated that “because she [the Applicant] was already in our [Respondent’s] internal system, it’s a matter of putting in her [the Applicant’s] details and it would print out this exact letter [the Employment Conditions Document].”54 Ms Buyukyazici gave evidence that it was due to “human error” that the Applicant’s appointment for 2020 was not entered into the system as being “fixed term”, and human error was what resulted in the Applicant receiving the Employment Conditions Document.55

[21] The Applicant submits that in the absence of any written contract, the Commission ought to consider all the surrounding circumstances. 56 The Applicant asserts that when and how the Employment Conditions Document was issued “does not change the fact that” the Employment Conditions document is a template document issued by the Respondent to ongoing teachers and not to fixed-term teachers and therefore, the fact that it was issued following the Meeting is an “admission and is consistent with a finding that the common intention of the parties was that the [Applicant’s] employment was ongoing”.57

[22] Ms Buyukyazici’s evidence that the Employment Conditions Document received by the Applicant was performed by an automated process was also challenged by the Applicant during cross examination. It was put to Ms Buyukyazici that it was not an automated process as the email of 4 February 2020 from Mr Ozen to the Applicant, the contents of which has been earlier extracted, stated that letters had been sent “for approval”. 58 Ms Buyukyazici accepted that while the generation of the Employment Conditions Document is an automated process, the Employment Conditions Document must first be approved by management and therefore, has a “human check” before it is generated and issued to an employee.59

[23] On 20 November 2020, the Applicant attended a meeting with Ms Buyukyazici. The Applicant gave evidence that during the meeting she was advised by Ms Buyukyazici of the following:

•  that the Applicant’s employment would be terminated because there were no positions available for her in 2021; and

•  that the Applicant may be considered for a position if one becomes available and the Applicant is found to be fit for that position. 60

[24] Ms Buyukyazici says that the purpose of the above-mentioned meeting was to communicate to the Applicant the impact of a fixed-term contract and to outline what options (if any) were available in 2021. 61

[25] Ms Buyukyazici gave the following evidence in relation to determining the Applicant’s employment with the Respondent for 2021:

•  Ms Buyukyazici assessed whether the Respondent could renew the Applicant’s 2020 CRT Position in which the Applicant worked two days each week, or an ongoing teaching role in the new year;

•  Ms Buyukyazici assessed that the level of CRT work that would be required in 2021 would be covered from ongoing permanent teaching staff who could be allocated CRT work as part of their work load; and

•  the Respondent decided it would no longer offer fixed-term contracts for the purposes of CRT work and instead, CRT work would be covered by permanent staff and casual CRT staff. 62

[26] Ms Buyukyazici’s evidence was that during the meeting of 20 November 2020, she advised the Applicant that the Respondent did not have a fixed-term nor permanent role to offer her in 2021 but that it could offer her casual CRT work. 63 Ms Buyukyazici says that she asked the Applicant if the Applicant was willing to do casual CRT work, to which the Applicant responded she would be available to do casual CRT work in 2021.64

[27] On 24 November 2020, the Applicant attended a meeting with Ms Buyukyazici, Mr Glenn Ahern, Head of Human Resources of the Respondent, and Mr Rankin. 65 The Applicant gave evidence that during this meeting Mr Ahern advised the Applicant that she was employed on a fixed-term contract for 12 months in 2020, and the fixed-term contract was to conclude at the end of the 2020 school year.66 The Applicant says that Mr Rankin queried how the Employment Conditions Document the Applicant had received from the Respondent could purport to be a fixed-term contract and not an ongoing contract. The Applicant says that Mr Ahern, in response, stated that the Applicant was employed on a fixed-term contract in 2019 and this contract has been extended for a further 12 months.67

[28] On 7 December 2020 Mr Rankin sent an email to Mr Ahern raising concerns in relation to the nature of the Applicant’s employment with the Respondent in 2020.⁶⁸ On 9 December 2020 Mr Ahern sent an email to Mr Rankin, copying Ms Buyukyazici and the Applicant, stating, inter alia, that the Applicant’s fixed-term contract from 7 October 2019 to 13 December 2019 was extended for 2020.⁶⁹

[29] The Respondent’s proposition that the Applicant’s fixed-term contract in 2019 was extended was challenged by the Applicant on the following grounds:

•  no letter of extension was issued. The Applicant maintains that it was within the practice of the Respondent to issue letters of extension where the Respondent was extending an existing fixed-term contract; 70

•  the teacher the Applicant replaced in 2019 returned to her role at the commencement of the 2020 school year;

•  the Applicant worked full-time in 2019 but her time fraction was reduced to 0.4FTE in 2020; and

•  the Applicant’s annual leave was paid out on 20 December 2019. 71 The Applicant submits this is consistent with the termination of the fixed-term contract and is required by s 90(2) of the Act. More specifically, the Applicant contends that the paying out of leave is inconsistent with any extension to the contract and supports the view that the Applicant’s fixed-term contract in 2019 came to an end.72

[30] The Applicant also submits that her employment was covered by the terms of the Ilim College Enterprise Agreement 2018 (Agreement). Clause 5 of the Agreement specifies that the Agreement will operate “in conjunction with the Awards” and the relevant award in respect of the Applicant’s employment is the Educational Services (Teachers) Award 2020 (Award). The Applicant therefore maintains that the Award (operating as an incorporated terms of the Agreement) applied. 73

[31] Clause 13 of the Award provides:

“13 Fixed term employees

13.1 An employee may be employed for a fixed period of time for a period of at least 4 weeks but not more than 12 months on either a full-time or part-time basis to:

(a) undertake a specified project for which funding has been made available;

(b) undertake a specified task which has a limited period of operation; or

(c) replace an employee who is on leave, performing other duties temporarily or whose employment has terminated after the commencement of the school year.

13.2 Where the replacement arrangement under clause 13.1(c) extends beyond 12 months, the fixed term employment may be extended for up to a further 12 months.”

[32] Clause 9 of the Award specifies information which must be provided to employees in their letter of appointment. Specifically, clause 9.3 of the Award states:

“9.3 Where the employer engages the employee on a fixed term basis, the letter of appointment will inform the employee of:

(a) the reason the employment is fixed term;

(b) the date of commencement; and

(c) the period of the employment.”

[33] Accordingly, the Applicant submits that her 2019 fixed-term contract was not extended as clause 13.2 of the Award limits extensions to circumstances where “the replacement arrangement” extends beyond 12 months. The Applicant submits that in her case the duration of the replacement arrangement was less than 12 months, being from 7 October 2019 to 13 December 2019, such that no right to extend arose under clause 13.2. 74 In the result, the Applicant contends that the Respondent did not have grounds under clause 13.2 of the Award to extend her fixed-term contract of 2019.75

[34] The Applicant also contends that she was not employed under a new fixed-term contract in 2020 for the following reasons:

•  during the Meeting, the Applicant was expressly advised by Ms Buyukyazici that the reason for her continued employment in 2020 was to undertake relief for unavailable or otherwise absent teachers and that the Respondent “did not wish to lose her”. 76 The Applicant contends that neither of these reasons is a complying reason under clause 13.1 of the Award;77

•  Relief teaching could not constitute “a specified task” per clause 13.1(a) as performing the core functions of an organisation falls outside the definition of a specified task, which has a limited period of operation; 78

•  the Respondent did not issue the Applicant with a letter of appointment for 2020. The provision of a letter of appointment to her on 26 September 2019 by the Respondent, specifying the reason for the Applicant’s fixed-term engagement in 2019 and its commencement and end dates, is “compelling evidence that the respondent was well aware of its obligations in respect of fixed-term employment of teachers”; 79 and

•  the Employment Conditions Document issued to her on 24 February 2020 did not comply with clause 9.3 of the Award and was instead consistent with ongoing employment given the Respondent’s practice in issuing such a document to all ongoing teaching staff and not to fixed-term employees. 80

[35] The proposition that the terms of the Award apply is contested. The Respondent submits that “[i]t is by no means clear that the words “operates in conjunction” are words of incorporation of the [Award]”. 81 The Respondent also submits that the question of enterprise agreement construction is one that need not be determined by the Commission in this proceeding as it is not determinative of any questions before the Commission.82

[36] The Respondent also challenges the Applicant’s contention that the Respondent could not have appointed the Applicant on a new fixed term contract on the following grounds:

•  proceedings before the Commission are not Award compliance proceedings and therefore, there is no basis for the Commission to make findings as to award contravention;

•  the Award does not “apply” to the Applicant or the Respondent in relation to the Applicant’s employment as s 57 of the Act provides that a modern award does not apply to an employee or employer in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment;

•  there is no dispute that the Agreement “does not provide conditions or limits on the appointment of fixed-term teachers, nor the requirements for the provision of letters of appointment” and in the absence of such conditions, limits or requirements, there can be no contravention of the Agreement unless a court determines that the terms of the Award are incorporated into the Agreement. No court proceedings have been filed by the Applicant or the IEU against the Respondent alleging contravention of the Award or Agreement; and

•  should the Commission consider there was a contravention of the Award, it would not be determinative of the question of the proper construction of the Applicant’s contract of employment in 2020. The Respondent submits that this question “falls to be determined on the basis of the words used by the parties” in reaching agreement on the Applicant’s employment for 2020. 83

[37] In her reply submissions, the Applicant maintains that the Commission is not being asked to determine award contraventions, but “is entitled to make findings of law and fact in the course of exercising its arbitral powers.” 84 The Applicant also notes that the Respondent, in its submissions, “leaves open” the question of whether it was bound, by operation of clause 5 of the Agreement, to comply with clauses 9 and 13 of the Award, and the Respondent does not offer an alternative interpretation of clause 5 of the Agreement.85 In oral submissions, the Applicant submitted that she does contend that there has been a contravention by the Respondent of the Award or Agreement as her employment in 2020 was not a fixed-term engagement.86

[38] Before resolving some of the disputed factual matters surrounding the nature of the contractual arrangements made with the Applicant for the 2020 school year, it is convenient to deal with the import of the Agreement and the contended incorporated Award terms on the question of the nature of the contract made. I consider it likely that the Award terms are incorporated into the Agreement by reason of clause 5. As the Respondent correctly points out, a modern award does not apply to an employee’s employment at a time when an enterprise agreement applies to that employment. When clause 5 is read as a whole it seems clear that the Award terms are intended to operate as incorporated Agreement terms. Were it otherwise, the inconsistency provisions in clause 5.2 of the Agreement would have no work to do in light of s 57 of the Act. Moreover, what other work do the words this “Agreement operates in conjunction with the Awards” (defined in clause 3 of the Agreement to include the Award) undertake, than to make clear that the Award terms operate as terms of the Agreement. The phrase “in conjunction” means “together” and is synonymous with, inter alia, “jointly, conjointly, in cooperation and cooperatively”. The effect of s 57 of the Act is to the opposite effect – there is no work for the Award while the Agreement applies to particular employment. Except by incorporating the Award or particular terms of the Award, the Agreement cannot overcome the effect of s 57 of the Act.

[39] In addition, the Respondent appears to have represented to the Applicant in its letter of 26 September 2019 offering fixed term employment for Term 4 of 2019 87 (the Agreement having commenced operation on 4 May 2018), that the Award applied to her employment88 and it appears to have complied with the fixed term employment obligations under the Award.89

[40] However, that is not the end of the matter. Accepting (without needing to decide) that the Respondent did not comply with the relevant Award incorporated obligations in connection with the purported 2020 fixed term contract, it does not follow that the contract, if for a fixed term ceases to be so, by reason of the default or breach. The consequence of any breach would be to render the Respondent liable for the imposition of a pecuniary penalty. It would not necessarily void, vitiate, or change the character of, the contract of employment that was made between the Applicant and the Respondent. It is appropriate therefore to proceed on the basis that the contract of employment, whatever its character, was validly made.

[41] Returning to the meeting of 20 November 2020, the Applicant denies Ms Buyukyazici’s account of a discussion about the Applicant performing casual CRT work during 2021. The Applicant states that she only became aware of the CRT work on 14 January 2020 when she received an email from Mr Ahern, attached to which was a contract for causal CRT work. 90

[42] The Respondent put to the Applicant that she was made aware of the casual CRT arrangement on at least three occasions prior to 14 January 2020, including:

•  during the meeting of 24 November 2020. 91 The Respondent noted that Mr Rankin also gave oral evidence that during this meeting, the Applicant was offered a contract for CRT work for 2021 by the Respondent.92 The Applicant stated that she could not recall whether she was informed about a casual CRT position during that meeting.93 The Applicant however maintained that she could recall that there was no discussion about any casual CRT work during the meeting of 20 November 2020;94

•  in the email of 9 December 2020 sent by Mr Ahern to Mr Rankin into which the Applicant was copied. The email stated, inter alia, that the Respondent “welcomes Aynur [the Applicant] as a casual teacher (CRT) for 2021”. The Applicant accepted that whilst she saw this email, she may not have read the email in its entirety; 95

•  in the email of 23 December 2020 sent by Mr Ahern to the Applicant, the last line of which reads:

“As discussed with you [the Applicant] previously, your employment with Ilim College [Respondent] will revert to your original CRT role on action HRM and you can expect to receive a new CRT contract on 23/24 December 2020.” 96

The Applicant said that she read the entirety of this email but did not understand the meaning of a “CRT contract”. The Applicant accepted that by the email sent to her on 23 December 2020 by Mr Ahern, she was aware of the possibility that a new CRT contract would be sent to her. 97

[43] The Respondent contends that the 2020 CRT Position was a fixed term contract and whilst this contract has ended, the casual arrangement to perform CRT work on an as needed basis has continued in 2021, 98 with the Applicant having worked nine days during Term 1 of 2021.⁹⁹ In the result the Respondent submits that there continues to be an extant employment relationship and as such, the Applicant has not been dismissed within the meaning of s 386(1) of the Act.

[44] It is convenient to deal with this aspect of the Respondent’s case – that there is no dismissal because there continues to be an employment relationship pursuant to a casual CRT contract of engagement. It is well established that termination of the employment with which s 386(1) is concerned is the ending of the employment relationship. The Respondent says a casual arrangement to perform CRT work on an as needed basis “has continued” in 2021. This submission cannot be sustained on the Respondent’s own evidence.

[45] First, Ms Buyukyazici’s evidence was that during the meeting of 20 November 2020, she advised the Applicant that the Respondent did not have a fixed-term nor permanent role to offer her in 2021 but that it could offer her casual CRT work. 100

[46] Second, Mr Rankin gave evidence that during the 24 November 2020 meeting, the Applicant was offered a contract for CRT work for 2021 by the Respondent. 101

[47] Third, the Applicant was sent a letter by the Respondent dated 14 January 2021 with the subject line “Offer of employment – Casual Relief Teacher” and attachment 2 thereto providing that “Your employment will be on a casual basis in the position of Casual Relief Teacher commencing on 27 January 2021”. 102 Had there been a continuation of the previous CRT role on a casual basis, there would be no need for the offer.

[48] Fourth, the Applicant accepted the offer. 103

[49] It is clear from the above that whatever may have been the position relating to the previous casual CRT arrangement, that which was being offered was new casual employment. It is that offer which was accepted. The previous employment relationships (governed by the purported fixed term contract and the casual CRT arrangement) ceased at the end of the 2020 school year and as is apparent from the above, a new employment relationship commenced on or around 27 January 2021. The offer of casual CRT employment in 2021 communicated to the Applicant during meetings in November 2020, was clearly intended to supersede and thereby end any previous casual arrangement. Attachment 5A to the letter dated 14 January 2021 says as much. 104 As already noted, if it were otherwise, and the earlier casual employment arrangements were to continue, there would be no need to “offer” employment as a casual CRT employee. That a new employment relationship commenced on or around 27 January 2021, and is continuing, is in the circumstances no bar to finding the Applicant was dismissed. The resolution of that issue turns on determining the character of the contractual arrangement that was agreed at the Meeting.

[50] Only the Applicant and Ms Buyukyazici attended the Meeting. Both gave evidence about the Meeting but their versions cannot stand together. I consider that both witnesses gave an honest account of their respective recollections of the Meeting. The Meeting occurred more than 15 months before the two gave their evidence before me. Allowance must be made for fading recollections in the circumstances. Allowance must also be made for the fact that it is not uncommon for recollections of the same event to differ. No-one suggested that either witness was being dishonest or untruthful. Ultimately, the factual dispute will need to be resolved by an objective assessment of that which is more likely to have occurred at the Meeting.

[51] For the following reasons, I consider that the Applicant and Ms Buyukyazici agreed that the Applicant would be employed as a part time (2 days per week) CRT teacher in 2020 on a fixed term contract.

[52] First, the Respondent invited the Applicant to a meeting with the subject line “Fixed term contract and 2020 forward planning”. I do not accept the Applicant’s contention that the reference to “fixed term contract” was intended to refer to the existing contract which was due to expire on 13 December 2019. There would seem little need to discuss this at a meeting since that contract would end according to its terms and no further action was required. The employment under that contract had only commenced a month earlier on 7 October 2019. 105 The subject matter is likely intended to convey that the subject matter for discussion at the Meeting was a fixed term contract for 2020.

[53] Second, in the context of the purpose of the Meeting, I consider it more likely that Ms Buyukyazici said to the Applicant during the Meeting that she could “offer [the Applicant] a fixed term role for 2020, performing two days of CRT teaching per week”. I accept her evidence in preference to the Applicant’s about the nature of the contract offered.

[54] Third, Ms Buyukyazici’s diary note which provides “2 days CRT for 2020”, is consistent with the offer of employment being for a fixed period – “for 2020” – and inconsistent with ongoing part time employment.

[55] Fourth, the Applicant acknowledges in her evidence that Ms Buyukyazici did not say that the position offered was on going.

[56] Fifth, the Applicant also acknowledges that during the Meeting, Ms Buyukyazici said to her that the school did not have any ongoing teaching roles for her in 2021.

[57] Sixth, the Applicant’s email to Mr Ozen, the Respondent’s HR Officer, of 4 February 2020 106 states that she is still “waiting for my 2020 contract”, which is consistent with the offer earlier made was for a fixed term and inconsistent with the notion that employment as a part time CRT was ongoing.

[58] Seventh, the Employment Conditions Document sent to the Applicant dated 24 February 2020 107 carrying the subject line “Employment Conditions for 2020” is also not inconsistent with the employment being for a fixed term, that is for the 2020 school year. But in any event, it does not change that which was earlier agreed.

[59] Taken together these matters tend to support Ms Buyukyazici’s version of events and I consider that the more likely result of the Meeting and what occurred at the Meeting was that employment for a fixed term was offered and accepted for the 2020 school year as a part time CRT. The contract and the employment under it ended at the conclusion of the 2020 school year being the end of the period of time specified.

[60] I should indicate that I do not accept Mr Ahern’s evidence that the 2019 fixed term contract under which the Applicant was employed during Term 4 of 2019 was extended for the 2020 school year. Mr Ahern was not at the Meeting so he cannot say what occurred. Ms Buyukyazici did not give any evidence to that effect and the fact that the Applicant was paid out accrued annual leave at the end of 2019 suggests that employment under the 2019 contract came to an end. If that employment was continuing by reason of the purported extension, there would be no reason, indeed no authority, to pay out accrued annual leave. Moreover, the 2019 fixed term position was as a teacher to replace another teacher who is on leave. That which was offered at the Meeting was a position of an entirely different character.

[61] It follows from the foregoing that the Applicant was employed under a contract of employment for a specified period of time, namely the 2020 school year, and the employment terminated at the end of the period. Section 386(2)(a) is therefore engaged and applies.

[62] The circumstances in which a person has been unfairly dismissed is set out in s.385 of the Act as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[63] Relevantly, dismissed is defined in s.386(1) of the Act as follows:

“(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

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

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

(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

(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.”

[64] Section 386(1) operates subject to the exceptions in s.386(2), sub-section 386(2)(a) of which is presently relevant. Having determined that sub-section 386(2)(a) applies, it follows that the Applicant was not dismissed. Because I am not satisfied that the Applicant has been dismissed, it is unnecessary to consider the remaining matters in s 385. Consequently, the Applicant cannot have been unfairly dismissed.

[65] For the foregoing reasons the application for an unfair dismissal remedy must be dismissed.

Order

[66] The application for an unfair dismissal remedy in U2021/37 is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr D Matson of the Independent Education Union for the Applicant
Mr B Avallone of Counsel for the Respondent

Hearing details:

2021

Melbourne

26 and 27 April

Written submissions

Applicant, 26 February 2021 and 23 March 2021
Respondent, 16 March 2021

Printed by authority of the Commonwealth Government Printer

<PR730236>

 1   Respondent’s Outline of Submissions dated 16 March 2021 at [2]

 2   Ibid at [4]

 3   Applicant’s Outline of Submissions dated 26 February 2021 at [27]-[28]

 4   Respondent’s Outline of Submissions dated 16 March 2021 at [8]

 5   Ibid at [3]

 6   Exhibit 9 at [3]

 7   Applicant’s Outline of Submissions dated 26 February 2021 at [12]; Exhibit 3 at [6] and AC-1

 8   Exhibit 3 and attachment AC-1

 9   Ibid; Exhibit 9 at [4] and attachment DB-1

 10   Exhibit 3 at [32]

 11   Transcript (27 April 2021) PN2233-PN2234

 12   Ibid PN2234-PN2238

 13   Exhibit 3 at [19], [22]

 14   Ibid at [8], attachment AC-3

 15   Ibid at [10]

 16   Ibid at [10]

 17   Ibid at [10]

 18   Ibid at [10]

 19   Ibid at [10]

 20   Exhibit 9 at [11]

 21  Ibid at [18]

 22   Transcript (27 April 2021) PN1884

 23   Ibid PN1873-1875

 24   Ibid PN1872

 25   Exhibit 9 at [39.2]

 26   Ibid at [40.1]

 27   Transcript (27 April 2021) PN1789-PN1794

 28   Ibid PN2209

 29   Applicant’s Outline of Submissions at [19]

 30   Transcript (26 April 2021) PN439, PN441

 31   Ibid PN434, PN442

 32   Transcript (27 April 2021) PN2309

 33   Respondent’s Outline of Submissions at [12]; Exhibit 9 at [12]-[15]

 34   Respondent’s Outline of Submissions at [13]; Exhibit 9 at [10]

 35   Exhibit 9 at [8]

 36   Ibid at [7]

 37   Exhibit 3 and attachment AC-3

 38   Exhibit 9 at [15]-[16]

 39   Ibid at [17]; Exhibit 11

 40   Transcript (27 April 2021) PN1555

 41   Ibid PN1556-PN1561

 42   Transcript (27 April 2021) PN2154

 43   Exhibit 3 at [16] and attachment AC-6

 44   Ibid

 45   Exhibit 3 at [17] and attachment AC-7; Exhibit 9 at [20] and attachment DB-4

 46   Exhibit 3 at [17] and attachment AC-8

 47   Exhibit 1 at [28]

 48   Exhibit 3 at [18]

 49   Respondent’s Outline of Submissions at [15]; Exhibit 9 at [20]

 50   Respondent’s Outline of Submissions at [15]

 51   Ibid

 52   Ibid

 53   Transcript (27 April 2021) PN1579

 54   Ibid PN1625

 55   Ibid PN1842-PN1845

 56   Applicant’s Rely Submissions dated 23 March 2021 at [1]

 57   Applicant’s Rely Submissions at [3]

 58   Transcript (27 April 2021) PN1852-PN1861

 59   Ibid PN1863-PN1864

 60   Exhibit 3 at [25]

 61   Exhibit 9 at [25]

 62   Respondent’s Outline of Submissions at [25]; Exhibit 9 at [26]-[28]

 63   Exhibit 9 at [29]

 64   Ibid at [29]

 65   Exhibit 3 at [28]; Exhibit 1 at [33]

 66   Exhibit 3 at [29]; Exhibit 1 at [33]

 67   Exhibit 3 at [30]

68 Exhibit 1, attachment JR-7

69 Exhibit 1, attachment JR-8

 70   Exhibit 3 and attachment AC-8

 71   Exhibit 3 at [14] and attachment AC-5; Exhibit 9 at [19] and attachment DB-3

 72   Applicant’s Outline of Submissions at [26]

 73   Ibid at [5]-[10]

 74   Ibid at [22]

 75   Ibid at [21]

 76   Ibid at [20]

 77   Ibid at [20]

 78   Transcript (27 April 2021) PN2152

 79   Applicant’s Outline of Submissions at [17]

 80   Ibid at [24]

 81   Respondent’s Outline of Submissions at [19]

 82   Ibid at [19]

 83   Ibid at [16]-[24]

 84   Ibid at [8]

 85   Ibid at [10]

 86   Transcript (27 April 2021) PN2258

 87   Exhibit 9, attachment DB-1

 88   Exhibit 9, attachment DB-1 at attachment 1

 89   Exhibit 9, attachment DB-1 at attachment 2

 90   Exhibit 4 at [6]; Exhibit 3 at [33], Exhibit 6; Transcript (26 April 2021) PN551-PN554

 91   Transcript (26 April 2021) PN555

 92   Ibid PN97-PN98

 93   Ibid PN555, PN559

 94   Ibid PN560, PN564-PN565

 95   Ibid PN592-PN596

 96   Exhibit 5

 97   Transcript (26 April 2021) PN625-PN631

 98   Respondent’s Outline of Submissions at [30]

99 Transcript (26 April 2021) PN400; Transcript (27 April 2021) PN1330

 100   Exhibit 9 at [29]

 101   Transcript (26 April 2021) PN97-PN98

 102   Exhibit 6

 103   Exhibit 3 at [33] and Exhibit 7

 104   Exhibit 6 and 7

 105   Exhibit 3, Attachment AC-1 at attachment 2

 106   Exhibit 3, Attachment AC-6

 107   Exhibit 3, Attachment AC-7