The attached document replaces the document previously issued with the above code on 28 July 2022.

Numbering for paragraphs [30] and [31] have been added

[2022] FWC 1994

Fair Work Act 2009

s.394 - Unfair dismissal

Secretary to the Department of Education and Training

Application for an unfair dismissal remedy - no dismissal - application dismissed.

• [1] On 3 May 2022, the Applicant made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy (Application), alleging that he had been unfairly dismissed from his employment with the Secretary to the Department of Education and Training (Respondent).

• [2] The Respondent objected to the Application on the basis that the Applicant was not dismissed within the meaning of section 386(1) of the Act (Jurisdictional Objection).

• [3] The Respondent submits that the Applicant's employment ceased by operation of law pursuant to section 2.4.59(5) of the Education and Training Reform Act 2006 (Cth) (ETR Act)

• [4] The Jurisdictional Objection was listed for hearing before me on 6 July 2022.

• [5] Directions were issued on 2 June 2022 for the filing of material by the parties in relation to the Jurisdictional Objection and at the request of the Respondent Amended Directions were issued on 9 June 2022. The Respondent filed its material on 17 June 2022 and the Applicant filed their material on 24 April 2022, both filing one day date after the due dates of the Amended Directions. I note that in addition to the material directed to be filed, in response to a Form F52 filed by the Applicant, the Respondent voluntarily filed further materials sought by Applicant. Additionally, on the morning of the hearing, the Applicant filed three payslips for the period 21 April 2022 to 21 May 2022.

• [6] Pursuant to section 596 of the Act, Mr J Tracey of Counsel appeared for the Respondent and Ms F Knowles of Counsel appeared for the Applicant.

• [7] Dr David Howes, Deputy Secretary, Schools and Regional Services for the Respondent, filed a witness statement and gave evidence on behalf of the Respondent. The Applicant filed a witness statement and attended the hearing, however was not required for cross examination by the Respondent.

• [8] The following matters are uncontested:

(a) The Applicant was employed by the Respondent in various Victorian Government School teaching positions between 11 February 1982 and 3 April 2022.

(b) The Respondent employed the Applicant pursuant to Part 2.4 of the ETR Act.

(c) On 18 January 2021 the Respondent suspended the Applicant from duty with pay on the basis that there may be ground for taking disciplinary action against the Applicant. A subsequent investigation into the Applicant's alleged misconduct was commenced (Misconduct Investigation).

(d) Commencing on 2 April 2021, the Applicant's teaching registration was suspended by the Victorian Institute of Teaching (VIT). That suspension was on an interim basis initially.

(e) From 8 April 2021 the Department suspended the Applicant from duty without pay on the basis that the Applicant did not hold registration as a teacher and was unable to undertake duties in a Victorian Government school.

(f) On 25 June 2021 the VIT suspended the Applicant's teaching registration on an ongoing basis because the Applicant had been issued with an interim Working With Children (WWC) exclusion from 26 April 2021.

(g) On 21 September 2021 the VIT cancelled the Applicant's teaching registration due to the Applicant being excluded from holding a WWC clearance.

(h) On 3 April 2022 the Applicant had been unregistered with VIT as a teacher for a continuous period of 12 months, being the period 2 April 2021 and 2 April 2022.

(i) On or about 27 April 2022, Dr Howes received a briefing paper from the Executive Director, People Division, of the Respondent. The briefing paper recommended that Dr Howes sign a letter advising the Applicant that their employment had ceased on 3 April 2022 pursuant to section 2.4.59 of the ETR Act as a consequence of being unregistered with VIT as a teacher for a continuous period of 12 months.

(j) By letter dated 27 April 2022, the Respondent notified the Applicant that the Applicant's employment with it had ceased with effect on 3 April 2022, pursuant to section 2.4.59 of the ETR Act as a consequence of being unregistered with VIT as a teacher for a continuous period of 12 months (Cessation Letter).

(k) The Cessation Letter was provided to the Applicant by email by the Respondent on 29 April 2022.

(l) The Misconduct Investigation continued after 3 April 2022.

• [9] Part 3-2 of the Act contains the statutory scheme concerning access to remedies for unfair dismissal. Section 394(1) of the Act provides that "A person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy." Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied as to four specified matters, the first of which is that "the person has been dismissed".

• [10] Section 386(1) of the Act, relevantly, defines when a person has been dismissed as follows:

(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."

• [11] Section 2.4.58 of the ETR Act provides as follows:

"Section 2.4.58 Dismissal of disqualified and unregistered teachers

If an employee has, at any time, been convicted or

found guilty of a category A offence in Victoria or

• [12] Section 2.4.59 of the ETR Act, relevantly, provides as follows:

"Section 2.4.59 Suspension and dismissal of unregistered teachers

(a) Is refused registration under Part 2.6 or has had his or her registration under that Part suspended or cancelled; and

(b) Remains unregistered for a continuous period of 12 months

the employment of that person ceases, by virtue of this subsection, at the end of that period of 12 months.

(7) The Secretary must notify in writing a person whose employment has ceased under subsection (5)."

• [13] The Respondent submits that the Applicant's employment ended on 3 April 2022 by operation of statutory law pursuant to section 2.4.59(5) of the ETR Act. As such, it submits that the Applicant's employment was not terminated on the employer's initiative for the purposes of section 386(1)(a) of the Act and therefore the Applicant was not dismissed for the purposes of the Act. It submits that the cessation of the Applicant's employment was as a consequence of the actions of the VIT and not of the Respondent.[1] The notification on 27 April 2022 to the Applicant that the Applicant's employment had ceased on 3 April 2022 was required by section 2.4.59(7) of the ETR Act and did not amount to a termination of employment at the Respondent's initiative.[2]

• [14] Consequently, the Respondent submits that:[3]

• (a) the cessation of the Applicant's employment was not "brought about by the employer" nor was any act of the Respondent the "principal contributing factor which led to the termination of the employment relationship";[4]

• (b) there was no action on the part of the Respondent which "directly or consequentially resulted in the termination of the Applicant's employment";[5] and

• (c) there was no action on the part of the Respondent which was either "intended to bring the employment relationship to an end (or which would have had that probable result)."[6]

• [15] At hearing, in oral submissions in relation to the Applicant's submissions (which are addressed below) the Respondent submitted, in summary:

(a) section 2.4.58 of the ETR Act is not relevant. The Applicant's employment was not terminated pursuant to section 2.4.58. It is irrelevant whether termination should have occurred under a different section at a previous point in time. The Commission must determine the matter on the basis of what occurred not what is said should have occurred;

(b) it cannot be said that the heading of Division 9 and section 2.4.59 somehow affect the operation of section 2.4.59(5). That subsection is quite clear. It deals with cessation of employment in certain circumstances. There is earlier scope in the section for the Secretary to dismiss employees at her initiative;

(c) the notification under section 2.4.59(7) is notification of the cessation of employment which occurred on 3 April 2022 and nothing that the parties did after that point did, or could, have had the effect of recommencing or continuing the employment of the Applicant;

(d) the employment relationship terminated on 3 April 2022. The matters relied upon by the Applicant as establishing that the employment relationship continued until 27 April 2022 are simply the "administrative aftermath" of the cessation of the Applicant's employment and do not support a conclusion that the employment relationship remained on foot after 3 April 2022. The continuation of the Misconduct Investigation is a consequence of the Respondent's mandatory reporting obligations.

• [16] At hearing, the Respondent relied upon the decision of Wilcox J in Peacock v Commonwealth of Australia (1998) 88 FCR 110 (Peacock). At issue in Peacock was whether the termination of a public servant pursuant to section 76v of the Public Service Act 1922 (Cth) was a termination of employment by the employer for the purposes of the Industrial Relations Act 1988 (Cth). Section 76v provided that "Subject to subsection (2), an officer shall, by force of this subsection, be retired from the Service upon attaining the maximum retiring age." Following the decision of Moore J in Australian Liquor Hospitality and Miscellaneous Workers' Union (1994) 55 IR 18, his Honour held that the officer's employment was not brought to an end at the initiative of the employer; rather the termination was one "resulting from the operation of an act of Parliament."[7] His Honour held that that analysis drew directly upon the words of section 76v (1) "by force of this subsection be retired."[8] The Respondent submitted that section 2.4.59(5) of the ETR Act was analogous to the section 76v of the Public Service Act 1922 (Cth).

• [17] Firstly, the Applicant submits that pursuant to section 2.4.58 of the ETR Act the Respondent was required to dismiss the Applicant on account of the Applicant having a WWC exclusion.[9] It submits that the use of the word "must" in section 2.4.58 imposes an obligation on the Respondent to do so and offers no discretion.[10] It submits that it is not open to the Respondent to breach their statutory obligation under section 2.4.58 by not dismissing the Applicant and then assert that the Applicant's employment has ceased by operation of law pursuant to section 2.4.59(5) of the ETR Act. The Applicant submits that section 2.4.59(5) is inapplicable given the Respondent was required to take action under section 2.4.58.[11]

• [18] Secondly, and in the alternative, the Applicant submits that the Applicant was dismissed under section 2.4.59(7) at the employer's initiative. The Applicant submits that section 2.4.59 of the ETR Act is in Division 9 of Part 2.4 of the ETR Act, which is headed "Division-9 Dismissal and Suspension". Further, section 2.4.59 is headed "Suspension and Dismissal of Unregistered Teachers". As such, and with reference to section 36(1) and (2A) of the Interpretation of Legislation Act 1984 (Vic), the Applicant submits that the division and section must be construed as dealing with the dismissal of unregistered teachers.[12] The Applicant submits that the act of Dr Howes signing the Cessation Letter and Applicant being notified of it pursuant to section 2.4.59(7) were the acts that brought about the Applicant's termination of employment. Accordingly, the Applicant submits that the Applicant's termination was at the initiative of the Respondent within the meaning of section 386(1)(a) of the Act.[13]

• [19] Thirdly, the Applicant submits that the employment relationship continued between 3 April 2022 and 29 April 2002. The Applicant submits this is evidenced by:

(a) the continuation of the Misconduct Investigation;

(b) the Applicant's written contract of employment was not terminated in accordance with its terms;

(c) the Cessation Letter referred to Applicant's "current suspension from duty";

(d) the Applicant's Edumail account remained active until 29 April 2022; and

• (e) the Applicant's accrued but untaken leave was not paid until 5 May 2022 (for the pay period 24 April 2022 to 7 May 2022).[14]

• [20] The Applicant submits that the Respondent brought the employment relationship to an end on 29 April 2022 by the Applicant being informed that there was a letter from the Respondent dismissing him, associated discussions seeking return of the Respondent's property and collection of the Applicant's property from the Respondent's premises, the Respondent emailing the Cessation Letter to the Applicant on 29 April 2022 and the cancellation of the Applicant's Edumail account.[15] Accordingly, it is submitted, the actions of the Respondent were the principal contributing factors which led to the termination of the employment relationship.[16]

• [21] I reject the Applicant's submission that because the Respondent breached section 2.4.58 of the ETR Act section 2.4.59 is inapplicable. The text of section 2.4.58 of the ETR Act is set out above. I accept the Applicant's submission that the use of the word "must" in section 2.4.58 denotes a mandatory requirement. Further, it is uncontested that the Applicant had been given a WWC exclusion for the purposes of section 2.4.58 in 2021. Accordingly, I accept that section 2.4.58 requires that the Respondent dismiss the Applicant. Firstly, however, this is not what occurred. Secondly, section 2.4.58 does not state when the Secretary must dismiss the employee. Further, this drafting is to be contrasted with the drafting of section 2.4.59(5) which does provide a time at which the employee's employment ceases. Accordingly, I do not consider it clear that the Respondent has breached section 2.4.58 as contended for by the Applicant. However, even if it be the case that the Respondent has breached section 2.4.58, breach of one section of a statute does not, in and of itself, deprive other provisions of the statute of their force. Section 2.4.59(5) is not conditional upon or subject to section 2.4.58, nor is section 2.4.59 limited by reference to section 2.4.58 in any way. While a breach of section 2.4.58 of the ETR Act (should it have occurred) may give rise to other consequences and remedies, it does not have the consequence that section 2.4.59 is no longer able to be relied upon. Accordingly, I consider that section 2.4.59 is applicable to the cessation of the Applicant's employment with the Respondent.

Must section 2.4.59 of the ETR Act be construed as dealing with dismissal?

• [22] For the following reasons, I reject the Applicant's submission that section 2.4.59 of the ETR Act must be construed as dealing with the dismissal of unregistered teachers and therefore the Applicant's employment was terminated at the initiative of the employer. Firstly, whilst the headings to divisions and sections within an act form part of it,[17] the proper interpretation of a statute commences with a consideration of the text of the statute itself, having regard to its context and purpose.[18] Secondly, on a plain reading I do not consider that the word "ceased" is synonymous with "dismissed". Thirdly, subsection (3)(b) provides that a suspension under subsection (2) continues at the Secretary's discretion until the employee is "dismissed or removed from the teaching service" Similarly, subsection (4) provides that the Secretary may "dismiss or terminate" the employment of a temporary employee in certain circumstances. The use of the word "dismiss" and "dismissed" in subsections (3) and (4) is to be contrasted with the language used in subsection (5) and (7). Subsection (5) provides that an employee's employment "ceases" by virtue of that subsection, whilst subsection (7) requires the Secretary to notify a person whose employment "has ceased" under subsection (5). In light of the use of the word "dismiss" in other subsections of Division 9, I consider that the language in subsection (5) and (7) cannot properly be construed so as to mean dismissal. Further, that cessation under subsection (5) is something other than termination at the initiative of the employer is, in my view, supported by the phrase "by virtue of this subsection" in subsection (5). Such a phrase would not be necessary and would have no work to do if the Applicant's construction was accepted.

Construction of section 2.4.59(5) of the ETR Act

• [23] Subsection 2.4.59(5) of the ERT Act is set out above. Subsection (5) provides that if the pre-conditions of subclauses (a) and (b) are satisfied, the employee's employment ceases "by virtue of this subsection". Subsection (7) provides that the Secretary must notify in writing a person whose employment "has ceased" under subsection (5). For the following reasons I consider subsection (5) to be clear and to afford no interpretation other than that once subsections (a) and (b) have been satisfied, the cessation of the employee's employment is brought about by the operation of the subsection. Firstly, the cessation is "by virtue of" the subsection. I consider that the phrase "by virtue of", given its ordinary meaning, means because of, or as a result of. Accordingly, the cessation of employment is because of, or as a result of, the subsection. It is, therefore, the subsection which brings about the cessation; no other act is necessary or required. Secondly, the word "ceases" is in the present tense. It denotes something that is occurring. No further actions are necessary or required to bring about the cessation of employment. Thirdly, I consider this construction to be supported by the use of the phrase "has ceased under subsection (5)" as used in subsection (7). The language used is in the past tense, denoting that the employment has already ceased. Further, that cessation occurred "under subsection (5)". It follows that I reject the Applicant's submission that it was the signing of the Cessation Letter and the notification under subsection (7) which brought about the termination of the Applicant's employment. I consider that the employment ceased by operation of section 2.4.59(5) of the ETR Act on 3 April 2022.

• [24] In Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 (Navitas) the Full Bench found that termination at the initiative of the employer in section 386(1)(a) did not, on its ordinary meaning, refer to termination of a contract of employment. Rather, the Full Bench found that that a termination of employment at the initiative of the employer for the purposes of section 386(1)(a) occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.[19] In NSW Trains v Mr Todd James [2022] FWCFB 55 (NSW Trains) the Full Bench, in the context of a case concerning demotion, found that that the expression 'employment ... has been terminated' in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment.[20] In Mr Shane Varichak v COG Regional Team Pty Ltd [2022] FWCFB 37 the Full Bench said:

"The reference to the termination of the employment relationship in Navitas must now be considered in light of the subsequent Full Bench decision in NSW Trains v James which held, in effect, that s.386(1)(a) of the Act means termination of the employment relationship and/or the contract of employment, depending in part upon the factual and statutory context. That is, at least in the context of demotion matters, Navitas should be understood as meaning that the termination of a contract will not necessarily lead to a dismissal where the persisting employment relationship remains on foot and largely unchanged, not that contract termination is irrelevant. (footnotes omitted)"[21]

• [25] I consider it clear that neither Navitas nor NSW Trains suggests that the termination of the employment contract is irrelevant to the consideration of whether there has been a dismissal for the purposes of section 386(1)(a) of the Act. Indeed, as identified in those cases, in most circumstances termination of the contract of employment will also result in termination of the employment relationship.

• [26] The Applicant submits, in summary, that the employment relationship continued after 3 April 2022 until 29 April when the Applicant was provided with the Cessation Letter by reason of the matters set out in paragraph [19] above. Under cross examination Dr Howes' evidence was that the Misconduct Investigation for the purposes of taking any disciplinary action against the Applicant concluded on 27 April 2022 when the Cessation Letter was issued. His further evidence was that the Respondent's investigation into the Applicant's conduct is, however, continuing, to enable the Respondent to discharge its reporting obligations to the Commission For Children and Young People.

• [27] I reject the Applicant's submissions that the employment relationship continued after 3 April 2022. I first address the specific matters raised by the Applicant. Whilst I accept that at first blush the continuation of the Misconduct Investigation appears to indicate the continuation of the employment relationship, I am unable to see how that submission can be sustained in light of Dr Howes' evidence that that investigation is, as at the date of the hearing, on going. There is no suggestion by the Applicant that the employment relationship continued after 29 April 2022; however the investigation has, albeit that it cannot now lead to any disciplinary outcome against the Applicant. The fact that this is so demonstrates that the continuation of the Misconduct Investigation after 3 April 2022 does not, of itself, establish that the employment relationship continued after that time. As to the deactivation of the Applicant's edumail account on 29 April 2022 and the payment of accrued but unused entitlements on 5 May 2022, I consider those matters are, as submitted by the Respondent, administrative processes following the cessation of employment and do not support a conclusion that the employment relationship continued beyond 3 April 2022. As to the language of the Cessation Letter, I do not consider anything turns on that. I consider it simply reflects the fact that the Applicant had been suspended from duty without pay since 8 April 2021. Finally, as to the termination of the Applicant's contract of employment, notwithstanding the Applicant's submission that the contract was not terminated in accordance with its terms, I do not understand the Applicant to suggest that the contract remained on foot beyond 3 April 2022. Accordingly, how that might demonstrate that the employment relationship continued until 29 April 2022 is, in my view, entirely unclear.

• [28] In oral submissions, the Applicant submitted that if contrary to the Applicant's submissions section 2.4.59(5) applied, what "ceased" under that section was the Applicant's employment in the teaching service under the ETR Act and that was separate and distinct from the contract of employment or the employment relationship. I reject that submission. It is uncontentious that the contract of employment is distinct from the employment relationship. I also accept that section 2.4.59(5) brings about the cessation of the Applicant's employment in the teaching service and that such employment is pursuant to the ETR Act. However, I do not consider that in such circumstances the employment relationship can continue. The employment relationship is a relationship of employment: it is not simply any relationship that has some connection to employment. 'Employment' means the 'state of being employed' or the 'state of having paid work'.[22] The Applicant's employment relationship with the Respondent was a relationship of employment in the Principal class in the teaching service under the ETR Act. There was no other employment relationship. In circumstances where the ETR Act provides that that employment has ceased, I do not consider that there can be a continuing relationship of employment. If the employment relationship continued notwithstanding the cessation of the Applicant's employment in the teaching service under the ETR Act, in the present circumstances I am unable to see what the basis for that relationship is, what the terms of that employment contract now are, what position the Applicant is employed in or how that contract of employment was formed. I consider that the cessation of the Applicant's employment under section 2.4.59(5) brought about not only the cessation of the Applicant's employment in the teaching service under the ETR Act but also the relationship of employment between the Applicant and the Respondent.

• [29] Further, even if I am wrong and the relationship of employment did continue until 29 April 2022 as contended by the Applicant, I do not consider that the Applicant was dismissed, within the meaning of section 386(1)(a), by the signing of or the provision of the Cessation Letter. The Cessation Letter, after setting out the cancellation of the Applicant's teacher registration by VIT and the provisions of section 2.4.59(5), provides as follows:

"For the purposes of section 2.4.59(7) of the ETR Act, I wish to inform you that your employment with the department ceased with effect 3 April 2022."

• [30] Accordingly, the Cessation Letter does not terminate the Applicant's employment. It advises, as is required by section 2.4.59(7), that pursuant to the provisions of the ETR Act the Applicant's employment had already ceased on 3 April 2022. Accordingly, neither the signing nor the provision of the Cessation Letter was an act which brought about the termination of the Applicant's employment, which directly or consequentially resulted in the termination of the Applicant's employment or which was the principal contributing factor which led to the termination of the employment relationship. That had already occurred. The Cessation Letter was simply notification of that fact.

• [31] In light of my conclusion above, it is not necessary that I consider the Respondent's reliance on Peacock. Further, I note that the Respondent did not address me as to the language of the provisions of Division 3 of Part VIA of the Industrial Relations Act 1988 (Cth) at issue in Peacock, nor whether, at that time, termination of employment by the employer was considered to be termination of the contract of employment or termination of the employment relationship.

• [32] In light of the above matters, I find that the Applicant's employment ended on 3 April 2022 by operation of statutory law pursuant to section 2.4.59(5) of the ETR Act. I find that that was the principal contributing factor which led to the termination of the employment relationship. As such, I find that the Applicant's employment was not terminated on the employer's initiative for the purposes of section 386(1)(a) of the Act. I therefore find that the Applicant was not dismissed for the purposes of the Act. Accordingly, the Applicant is not a person protected from unfair dismissal.

• [33] The application is therefore dismissed.

[1] Respondent's Outline of Submissions at [18]

[4] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP and Saunders C) at

[37], [75]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200 at 205-6 (Lee

[6] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769; (2011) 212 IR 248 (Watson VP, O'Callaghan

SDP, Cargill C) at [24]; citing O'Meara v Stanley Works Pty Ltd, (2006) 58 AILR 100; PR973462 (AIRCFB,

Giudice J, Watson VP, Cribb C, 11 August 2006) at [19] - [23]

[7] Australian Liquor Hospitality and Miscellaneous Workers' Union (1994) 55 IR 18, 115.

[9] Applicant's Outline of Submissions at [1]

[17] See section 36(1) and (2A) of the Acts Interpretation of Legislation Act 1984 (Vic)

[18] See, for example, R v A2 [2019] HCA 35, at [32], [124], [163], Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].

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