Fatima Benel v Legal Aid Commission of NSW

The proceedings

1. On 17 December 2021 the matter was the subject of unsuccessful conciliation and at the conclusion the respondent indicated that it was raising a jurisdictional objection.
2. Directions were made for the hearing of the jurisdictional objection and in accordance with the directions, the parties filed materials and the Motion was heard on 15 February 2022.
3. At the hearing, the respondent relied upon a written outline of submissions and the following evidence: 1. Statement of Tracy McMillan dated 21 January 2022; 2. Reply statement of Tracy McMillan dated 11 February 2022; 3. Series of emails between the applicant, Ms Hitter and Ms Zenassi of 7 and 8 September 2021; and 4. Series of emails between the applicant, Ms Hitter and Ms Zenassi of 7 October 2021.
4. The applicant relied upon a document entitled response to notice of motion dated 5 February 2022 which annexed an article from the Sydney morning Herald dated 30 September 2021. The document contained the applicant's evidence as well as submissions. Additionally, the applicant relied upon an email sent by her to the solicitors for the respondent as well as the Commission dated 11 February 2022.

Background

1. On 25 January 2021, the applicant commenced employment on a temporary basis pursuant to terms and conditions annexed to correspondence dated 13 January 2021. (the "January Contract"). Relevantly, the terms and conditions included that the employment would cease on 30 June 2021, unless otherwise notified. The applicant provided confirmation of acceptance of these terms.
2. On 30 June the applicant was offered a further period of temporary employment pursuant to correspondence dated 30 June 2021 (the "June Contract") which provided that the employment would end on 30 September 2021. Again, the applicant provided confirmation of acceptance of the offer. The confirmation included the following statement: "I understand that this offer of temporary employment does not constitute ongoing employment, and my employment will cease effective from the above date unless otherwise notified."
3. In late August 2021, the applicant was informed that her employment would not be extended beyond 30 September 2021. In response the applicant made an informal complaint, the details of which are unclear from the evidence.
4. At the request of the respondent, the applicant on 8 September 2021 lodged a written formal complaint relating to the treatment that she had received whilst working in the Domestic Violence Unit.
5. On 8 September 2021, the respondent in an email informed the applicant that she was to be placed on special leave until her complaint had been investigated.
6. The respondent concluded its' investigation and determined that there was insufficient evidence to establish grounds to warrant a formal investigation into individual employees conduct. The applicant was informed of this outcome in a telephone call on 7 October 2021 and also in correspondence of the same date which was sent to her by email.
7. Following receipt of the correspondence of 7 October 2021, the applicant requested in an email that her final payment to include her leave and special leave that had apparently been granted until 29 October 2021.
8. On 29 October 2021, the applicant's employment with the respondent concluded.

The submissions

1. The respondent's primary submission is that the ending of the applicant's employment did not constitute a dismissal for the purpose of section 83 of the Act, rather, the employment concluded by the passage of time. In support of this submission, the respondent relied upon the decision of Commissioner Stanton in Stephen York and NSW Department of Education and Communities [2015] NSWIRComm 1011 ("York").
2. During the course of oral submissions, the respondent further submitted that sub-section 83(2) of the Act and Regulation 6 of the Industrial Relations General Regulations 2020 ('the "Regulations") excluded the application as the period of special leave from 1 October 2021 to 29 October 2021 constituted a fixed term contract of less than six months.
3. The applicant's submissions, both in writing and orally, challenged the reason provided by the respondent for the failure to renew her contract and she submitted that the real reason was that she had raised a complaint.

Consideration

1. The respondent's primary submission, particularly when has regard to the reliance on the case of York, that there was in existence what is usually referred to as an "outer limits contract", i.e. they contain express terms which provide that the contract terminates and also permits termination prior to this date.
2. In York, Commissioner Stanton was dealing with an outer limits contract which was not renewed. The Commissioner after considering and adopting the case of Sarah Lunn v Department of Justice [2006] AIRC 756, a decision of a Full Bench of the Australian Industrial Relations Commission, determined that there was no dismissal for the purposes of the Act as the contract terminated by the effluxion of time.
3. The issue of outer limits contracts was also dealt with by a Full Bench of the Fair Work Commission in Khayam v Navitas English Pty LTD t/as Navitas English [2017] FWCFB 5162 ("Navitas") which was recently applied by the Chief Commissioner in Naulty v Shoalhaven City Council [2021] NSWIRComm 1012.
4. In Navitas, at 75(4) it was determined that failure to renew an outer limit contract could constitute a dismissal for the purpose of the Fair Work Act 2009, if there was genuine agreement between the employer and employee as to the employment not continuing beyond the time limit. The Full Bench also determined that there were a number of vitiating factors that may effect this, which they list at 75(5): 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; 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).
5. The respondent in oral submissions put that the period of 1 October 2021 to 29 October 2029 constituted a third contract, but unfortunately adduced little by way of evidence to advance what the terms of that purported contract were.
6. The only evidence in relation to the special leave, was provided by Ms Macmillan. This was that the respondent had agreed with the applicant in late August 2021, that the applicants' employment would be extended and she was placed on special leave until 29 October 2021.
7. The applicant in the hearing provided further detail in relation the extension of the employment and stated that initially there was provision of 2 weeks of special leave which was then then extended for a further period of one month until 29 October 2021. The applicant's recollection of the one month extension was set out in the following passage of transcript: APPLICANT: The day that I was told that the contract would be extended for one month, the people that were in that conversation I remember because I took my children to the park, it was during lockdown. It was Monique, the Deputy CEO of Legal Aid and Yamil - gosh, I've forgotten the surname. Yamil Zam, or something like that. She's the head of HR and I was sitting in the park and both of their faces were on screen and they are the ones directly that told me and perhaps you can get instructions from them directly, I don't know but they're the ones that told me that I'd be extended for another month until the investigation was over……
8. The evidence of both the applicant and the respondent is consistent with the June Contract being extended and not that there had been a third contract of employment for the period of 1 October 2021 to 29 October 2021 as submitted by the respondent.
9. The extension of the June Contract is evidence of genuine agreement that the applicant's employment would end on 29 October 2021 and conversely the evidence does not disclose any of the vitiating factors identified in Navitas.
10. For the above reasons I find that there was no dismissal for the purposes of the Act and accordingly I find for the respondent on the Motion.

Order

1. I order that the application for relief from unfair dismissal filed by the applicant in 2022/320562 be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2022