3. The Applicant has performed coordination duties for the postgraduate pricing subject each Autumn semester since the Autumn 2012 semester, and coordination duties for the undergraduate pricing subject each Autumn semester since the Autumn 2013 semester.[3]

4. On 14 February 2012, the Applicant signed a document[4] that stated:

5. On 11 October 2012, Associate Professor Sandra Burke (the Respondent's then head of Marketing Discipline Group) sent an email[5] to the Applicant with the subject line "2013 Teaching". In that email, Professor Burke wrote:

Based on overall preferences from all academic staff, the teaching pattern I would like to suggest for you in 2013 is as follows:

Autumn: Pricing Strategies and Tactics - Coordination and teaching ... AND Pricing and Revenue Management - Coordination and teaching ...

1. On 4 February 2013, Michael Lee, Administration (Marketing Department), wrote an email to the Applicant, and others, with the subject line "Coordinators: Could I please have your tutor information". In that email, Mr Lee wrote:

... if you are coordinating a subject and Sandra has agreed on a plan to employ casual academics, then I would be grateful if you would provide the following information ...

Thank you to ... John Burke (24224) who ha[s] already supplied much of the data for [the] subject[6]

7. On 10 April 2013, the Applicant signed a document titled Casual Academic Employment Contract in respect of the subjects Pricing Strategies and Tactics, and Pricing Revenue and Management. The document states various "Start Date of Appointment", the earliest of which is 16 February 2013, and "End Date of Appointment" dates, the last of which is 5 July 2013.[7]

1. On 24 June 2013, Mr Lee wrote an email to the Applicant in which he stated:

To me the real issue is: if UTS is expecting a person to be working with access to the UTS systems, then we should be paying them. If this is only a small amount of work (but needs continued access), then I suggest we should engage the person with a casual contract - even if it's only one hour per week for coordination. So maybe if you have a fixed term contract until say, early December, then this could be followed up with a low-hours casual contract till perhaps early January. After this you would enjoy the 6-month grace person of continued access that is provided to casual academics, which would carry you through to a possible subsequent fixed term (or casual) contract in Autumn Semester 2014.[8]

1. On 4 October 2013, Professor Burke wrote an email to the Applicant with the subject line 2014 Teaching Confirmation. In that email, Professor Burke wrote:

This is to confirm that in 2014 we will plan to have you teach as follows ...[9]

10. On 21 November 2013, the Applicant signed a document[10] that stated:

1. The Applicant's engagement was to extend to at least 31 December 2014.
2. On 4 December 2013, Swati Flora, the Respondent's Acting Superannuation Officer, wrote the following to the Applicant:

Accepting a new fixed-term appointment takes your total employment period with UTS to greater than twelve months.

1. On 8 July 2014, the Applicant wrote an email to Professor Burke in which he stated:

As per our discussion, I wish to confirm that I will be resigning from the UTS effective today.[11]

1. On 10 September 2014, Mitchell Osmond, Senior Academic Programs Officer, wrote an email to the Applicant in which he stated:

Attached is an outstanding grade from AUT14 for 24224.

If you know that the grade has been resolved, could you please let me know? Otherwise it'll convert to a Z.[12]

1. On 27 October 2014, John Elliott, Marketing and Communications Manager, wrote an email to the Applicant in which he stated:

Do you have any time availability to participate in a small working group to work on a more sophisticated pricing response for the Business School?[13]

16. On 30 October 2014 at 2pm, the Applicant attended a meeting with John Elliot, the UTS Business School Marketing and Communications Manager, and Craig Lord, General Manager. The purpose was for us to discuss the Respondent's 2016 university student fee structure.[14]

17. From October 2014, the University of Technology, Sydney Academic Staff Agreement 2014 (Agreement) has applied to the Applicant and the Respondent.[15]

The rates of pay for casual staff will be as contained in Schedule 2. These rates of pay incorporate a casual loading in lieu of those Agreement benefits for which casual staff are ineligible including those leave entitlements to which casual staff are not entitled. The casual loading is 25% (with effect from 1 November 2012).[16]

1. The Agreement covers lecturing, tutoring and other academic activity. In relation to casual lecturing, the Agreement provides:

'Currently, a "lecture" means educational delivery described as a lecture in a course or subject outline that is a primary form of education delivery where information on the subject topic is delivered to the students for the first time'.[17]

1. The Agreement also provides for 'other academic activity' as follows:

'As for "other academic activities" where subject coordination duties are required. Subject coordination duties may include the development of teaching and subject materials such as the preparation of subject guides, reading lists. The hours allocated will be agreed based on the number of students involved and the complexity of the task'[18]

The normal pattern of academic workload is 40% teaching, 40% research and 20% other activities.

1. The rate for lecturing depends on the type of lecture. The post graduate pricing subject is classified as "Developed" whereas the undergraduate pricing subject is classified as "Basic". The nominal hourly rate for lecturing is higher than for coordination, although it is effectively the same when regard is had to Schedule 4(i) which sets out assumed non-contract hours associated with each hour of delivery.
2. On 6 November 2014, Dr David Waller, Marketing Discipline Group, wrote an email to the Applicant stating:

This is to confirm that in 2015 we will plan to have you co-ordinate as follows:

24760 Pricing and Revenue Management[19]

1. On 19 December 2014, Mr Lee wrote an email to the Applicant in which he stated:

David Waller has advised me that you will be returning to UTS in Autumn Semester 2015 to coordinate and teach in 24760 and 24224. David has indicated that you will be doing this as a casual employee.

To re-establish your email account, and access to UTS systems in general, will involve two steps.

1. Re-activate you from 'ex-employee' status on the HRU database

In relation to step 2, I propose to establish a contractor for coordination of 24760 which will run from 3 January to 24 July (a 28 week period), although it will pay only 18 weeks (at 3 hours per week) ... Importantly, this will provide access to UTS computer systems (including email) from 3 January ...

Further contracts for coordination of 24224, as well as teaching and marking in both subjects, will be prepared about 2 weeks before semester begins.[20]

1. On 22 December 2014, the Applicant replied to Mr Lee's 19 December 2014 email stating:

The idea of stretching the payment to 28 weeks is good, but can it be extended to 52 week's, which would keep year round access...

Also, thought I'd mention that there is plenty of work on the side with these subjects, especially for the projects and exams. I always make the subjects fresh with new material ...[21]

1. On 22 December 2014, Mr Lee replied to the Applicant's 22 December 2014 email, in which Mr Lee wrote:

No problems. The good aspect of being a casual is that the email account and access to UTS computer systems remains available for 6 months after the casual contract ends. So people who only have contracts every Autumn Semester can retain perpetual access ...

Unfortunately, conscientious lecturers and coordinators who do more than the minimum amount of preparation will tend to be disadvantaged financially, as we pay standard amounts for coordination and teaching regardless of the actual time spent performing those duties.

1. On Monday 5 January 2015, Mr Lee wrote an email to the Applicant in which Mr Lee stated:

Attached is the coordination contract for 24760. Because this contract is being created early, the actual enrolments might change.[22]

28. The document attached to Mr Lee's email was a one-page document titled casual academic employment contract, and which was signed by the Applicant on 5 January 2015. The document states "Start of Appointment" of 3 January 2015, and "End of Appointment" of 26 June 2015.[23]

29. Mr Burke was not engaged in research.[24]

1. Under cross examination the Applicant said the following:

"And each and every time that you were engaged as a casual employee on a contract, you were given a new contract? Yes.

And you were - it was for you to decide whether to accept it or not? Yes."[25]

1. During his evidence, the Applicant said the following:

And so that period from 15 January 2015 to 16 July 2015 is you teaching and coordinating in the pricing subject in the autumn semester of 2015. Is that correct?---It ends on 16 July.

Yes. That's what I'm saying. That period from January to July, is that you teaching and coordinating in the Autumn of 2015?---Yes, Commissioner.

Right. And then you will see the next payment is 24 March 2016. Do you see that?---Yes.

And so you had 36 weeks break in your employment. Is that right?---From July to - in paid employment. Yes, Commissioner.

Right. And then look over to page 4 and the sixth last row says 28 July 2016. Do you see that?---Yes, Commissioner.

So going back to page 3, where it starts on 24 March 2016, over to page 4, 28 July 2016, is that you teaching and coordinating in the pricing subject in the autumn semester of 2016?---Yes, Commissioner.

And you will see after that, the next entry is 23 March 2017. Is that right?---That's correct.

So there was a break there are some 34 weeks when you weren't getting paid by the University. Is that right?---That's correct, Commissioner.

And come across to page 6, a little over halfway down you will see an entry 13 July 2017. Do you see that?---Yes, Commissioner.

For $69.70. So from page 4 where it starts, 23 March 2017, over to page 6 where it says 13 July 2017, that's you teaching and coordinating the pricing subject in the Autumn semester of 2017. Is that right?---Yes, Commissioner.

And then the next payment is 22 February. So you had a break of 32 weeks without being paid by the University. Is that right?---Yes, Commissioner.

Right. So 22 February 2018, then come across to page 9, and you will see an entry 12 July 2018?---That's right.

So that period of 22 February 2018 through to 12 July 2018, is that you teaching and coordinating the pricing subject in the autumn of 2018? The autumn semester?---Yes. I've got a feeling one of the 12th ones is as well. One of the 12 July ones is also. It's possible, because I remember the contract went to July. I might be wrong on that. I can check.

All right. But then the next entry - so for weeks later there is a payment on 8 August and that goes through to 29 November. Now that's the coordination of the spring semester. Isn't that right?---That's right. With the exception of the $55.74.

What's that miscellaneous for?---That was miscellaneous for completing some training session online. It was separate. It was a University-wide training session online. It was separate. It was a University-wide training that all staff that all staff had to do.[26]

1. The documents titled Casual Academic Employment Contract that were signed by the Applicant stated:

I have read and accept the Conditions of Appointment below and I accept Contract of Employment as specified in this form.

1. The document titled "Conditions of Employment" was not always provided to the Applicant.

34. The version of the document titled "Conditions of Employment" that was most recently provided to the Applicant is dated 6 August 2015.[27]

And sometimes it was said to you that you could look on the University's Intranet and there was a link that you could go to without getting the full contract? Yes. And other times there were no mention at all.[28]

1. Point 9 of that Conditions of Employment provided that:

The Employee shall be given two weeks notice or the balance of the period of the Contract of Employment (whichever is lesser), or payment in lieu of notice should the University with to terminate his/her employment prior to the conclusion of the Contract of Employment. Such notice will not be provided where the Employee is found to be guilty of misconduct, unsatisfactory performance or other action which would, in the case of a continuing staff member, warrant dismissal.

1. Point 10 of that Conditions of Employment provided that:

A 25% loading is included in the gross salary rate specified in Part B of this Contract of Employment. This loading is paid in lieu of all leave entitlements. The employee is not entitled to any termination payment on completion of this casual contract of employment.

1. Point 12 of that Conditions of Employment stated:

This is a casual contract of employment and does not entitle the Employee to subsequent employment with UTS.

1. Point 24 of that Conditions of Employment stated:

This Contract and the UTS enterprise agreement are relevant to the Employee's position (refer to clause 13) constitutes the entire agreement between the parties as to the Employee's employment and supersedes all previous communications, understandings, representations and agreements and any prior condition, warranty or indemnity or representation imposed, given or made by a party. In executing this Contract, the Employee acknowledges that he/she is not relying on any representations by, or on behalf of, UTS unless expressly incorporated in to this Contract.[29]

40. On 15 January 2015, the Applicant was allocated a desk at the new Building 8.[30]

1. On 3 August 2015, Professor Morrison sent an email to the Applicant in which she stated:

I would like you to be a member of the DG External Engagement Committee. You wouldn't be expected to take on a large role, but I feel your advice and industry contacts would be invaluable ...

I've also been meaning to arrange a time to have coffee with you and learn a little about yourself and your ideas relating to the B-School.[31]

1. On 4 August 2015, the Applicant responded to Professor Morrison's email, stating:

Would be good to be involved with the DG External Engagement Committee.[32]

1. Professor Rhodes says the following in his witness statement:

There is a degree of flexibility with UTS's academic staff and this is necessary for it to be able to operate effectively. No academic, whether they be permanent or casual, senior or junior, has the right under their contract of employment to dictate the subjects that they will teach and/or coordinate, or when those subjects will be scheduled.[33]

44. The Applicant's rates of pay were derived from Schedule 2 of the Agreement and, at the time he last worked, they were $263.98 per hour for lecturing and a rate of $65.35 per hour for other academic activities, including marking and subject coordination.[34]

1. On 15 September 2015, the Respondent published an article including the following words:

Students in the subject Pricing and Revenue management set about the challenge under the supervision of pricing strategist and subject coordinator John Burke.[35]

1. On 3 November 2015, Professor Morrison wrote an email to the Applicant stating:

This is to confirm our earlier discussion that we would like you to coordinate and teach the ug and pg pricing subjects in Autumn 2016.[36]

1. On 4 November 2015, the Applicant responded to Professor Morrison's email stating:

Looking forward to continuing with UG & PG Pricing.

48. In November 2015, the Applicant attended a Marketing DG meeting.[37]

49. On 14 March 2016, the Applicant signed a document titled Casual Academic Employment Contract in respect of the subjects Pricing Strategies and Tactics, and Pricing Revenue and Management. The document states various "Start Date of Appointment", the earliest of which is 19 March 2016, and "End Date of Appointment" dates, the last of which is 10 June 2016.[38]

1. On 15 March 2016, the Applicant notified Professor Pam Morrison ('Professor Morrison') (the then Professor and Head of Marketing Discipline Group), that Autumn 2016 marked his fifth year coordinating the postgraduate pricing subject and his fourth year coordinating the undergraduate pricing subject. The Applicant stated:

I am assuming it will continue as per normal, but would like some confirmation to assist with my future plans.[39]

51. Further, on 15 March 2016, the Applicant emailed Professor Morrison "asking for your [her] commitment for coordinating 24224 and 24760 in Autumn 2017 and beyond".[40]

52. When Professor Morrison had not responded, he emailed Professor Taylor on 22 March 2016 stating "my coordinating position may come to an end as they plan to appoint someone else; either with a PHD or for some other reason, to run the two subjects from next year" and that he did not want to "feel" that "I will be out of a job in 2017".[41]

1. On 23 March 2016, Professor Morrison emailed the Applicant stating that:

Current planning would have you teaching pricing (ug and pg) in Autumn 2017, and this is the most likely outcome. As I've said to you previously I can't guarantee what the DG needs will be in 2017, but with current information I have I will be asking you to teach again in 2017. You do a wonderful job and this is evidenced by the student feedback."[42]

1. On 24 March 2016, the Applicant emailed Professor Morrison stating:

Although I appreciate your comments, your reply does not confirm coordination. The way I read your email is that the DG is unsure whether it will be offering pricing next year to students? I am sure that this is not the case and that you have at least a five year plan in place, and if I have done and continue to do an above average job over the years, then my name should be in pen.

When we spoke, there were no rumours about and I trusted you and just assumed all would be fine for next year. However, I started hearing rumours and therefore sent an email to you for reassurance.[43]

1. Professor Morrison responded on the same day stating:

When we spoke in 2015 I did say I was unable to guarantee you teaching Pricing forever, because as the recruitment of new academics continue, at some stage in the future 'pricing' may get taught by one of the new academics. However I don't see this happening before 2018 at the earliest"[44]

1. On 24 March 2016, the Applicant wrote to Professor Pam Morrison stating amongst other things:

If the commitment for 2017 Coordination and teaching as per current schedule for 2017 is evident, then this is fine for now and hopefully the process for looking after good coordinators and teaching staff will be improved upon.

BTW, I should be entitled to be very protective of pricing because of the many many hours required to improve and continue to improve the two subjects. To have it taken from me for no fair reason is a demotion and an insult and definitely the students and I don't really care about your academic replacement policy. Surely there were certain subjects identified that should have been left as is, pending performance.

I do not understand why you treat me any different to another coordinator. If it is because you pay me as a casual, then you could work out how to put me back on a % permanent basis and then strangely enough, you will treat me differently.[45]

1. On 7 April 2016, the Applicant wrote an email to Professor Morrison in which he stated:

thank you for confirming coordination and teaching of pricing for 24224 & 24760 for Autumn 2017.[46]

58. On 22 April 2016, the Applicant signed a one-page document titled casual academic employment contract providing a start date of appointment of 19 March 2016 and an end date of appointment of 8 July 2016.[47]

59. In June 2016, the Applicant applied for the continuing full-time position of Scholarly Teaching Fellow but his application was unsuccessful.[48]

1. On 15 August 2016, the Respondent's Business School published an article that included the following words:

Pricing strategist and subject coordinator John Burke says[49]

1. On 14 November 2016, Professor Morrison emailed the Applicant stating:

This is to confirm our earlier conversation that we would like you to teach the ug and pg Pricing subjects in AUT 2017.[50]

62. On 16 November 2016 at 5:30pm, the Applicant attended a function at UTS Shopfront.[51]

1. On 2 March 2017, Professor Morrison wrote a letter to Harvard Business School Publishing in which she stated:

This is to confirm that John Burke has been the coordinator, lecturer, and workshop facilitator for postgraduate 24760 Pricing and Revenue Management since Autumn semester 2012, and also the coordinator and lecturer for undergraduate 24224 Pricing Strategies and Tactics since Autumn semester 2013.[52]

64. On 6 March 2017, the Applicant signed a document titled Casual Academic Employment Contract in respect of the subjects Pricing Strategies and Tactics, and Pricing Revenue and Management. The document states various "Start Date of Appointment", the earliest of which is 13 March 2017, and "End Date of Appointment" dates, the last of which is 9 June 2017.[53]

65. On 27 April 2017, the Applicant signed a document titled Casual Academic Employment Contract in respect of the subjects Pricing Strategies and Tactics, and Pricing Revenue and Management. The document states a "Start Date of Appointment" of 27 February 2017, and an "End Date of Appointment" of 1 July 2017.[54]

1. On 19 September 2017, the Respondent posted on social media:

Our John Burke has been speaking on radio about #strategies for #pricing[55]

67. On 26 October 2017, the Applicant attended an External Engagement Committee (EEC) meeting.[56]

68. On 16 November 2017, the Applicant attended a Marketing Discipline Group meeting.[57]

1. On 17 November 2017, Professor Morrison emailed the Applicant stating:

Yesterday I confirmed your AUT ug and pg Pricing subjects, but I forgot to ask if you'd also be able to teach the pg Pricing subject in Summer 2018 (this spans 2018/19).

I hope you're interested and available to teach this additional subject."[58]

70. On 17 and 20 November 2017, the Applicant emailed Professor Morrison with proposals in relation to the summer pricing subject.[59]

1. On 20 November 2017, Professor Morrison wrote to the Applicant stating:

Thanks John. Really good to hear you're able to teach the PG Pricing subject in Summer 2018 (ie 2018/2019).[60]

72. On 28 November 2017, Paul Burke, Associate Professor, emailed the Applicant a tentative schedule for the Summer 2018/19 semester.[61]

1. On 21 December 2017, the Respondent posted on social media:

Our pricing specialist, @JBurkePricing, worked with @UTS_Business postgrad students to develop a #sustainable #strategy for the Accessing Sydney Collectively Campaign...[62]

1. On 21 December 2017, the Respondent posted on social media:

Four UTS students under the academic supervision of Marketing's pricing specialist, John Burke ...[63]

75. On 5 January 2018 at 10.17 am the Applicant was included in a list of "Subject Coordinators and Assessors for 2018".[64] The was in table format,[65] stating as follows:

1. On 16 January 2018, Mr Lee sent an email to the Applicant in which he wrote:

I understand that you are the Subject Coordinator responsible for allocating staff to the classes shown in the table below.

For Business School teaching data collection, casual academic contracts, and the Student Feedback Surveys, I need to know who is teaching each of our classes. Further, I need to ensure that we comply with a number of constraints on casual staffing, namely:

- an upper limit of 15 hours face-to-face teaching per week for any one individual

- a DG requirement (new in 2018) that each of our PhD student's total teaching and research assistant workload is approved by their supervisor

- all class staffing should comply with AACSB standards

Therefore, would you please supply the following information:

1. the name of each class teacher in the yellow cells

1. check the number of teaching weeks shown is correct for each class and advise me if there is an error
2. let me know if any of these classes are unlikely to run or additional classes are planned but not shown

and return the information to me before noon on Friday 23 February?[66]

1. On 24 January 2018 at 12:31pm, the Applicant replied stating:

For 24224, Peter will teach 3 tutes (2pm, 3pm, 4pm) & Belinda 2 tutes (3pm & 4pm). Will allocate actual tute class when classroom confirmation received.

For 24760, Lectures & Workshops will end on 8/6/18, instead of the 15/6/18.

78. On 9 February 2018 at 2.35 am, the Applicant received an automatic notice that his email account would be deleted, which he forwarded to Mr Lee.[68]

1. On 9 February 2018 at 10.10 am, Michael Lee, Administration (Marketing Department) wrote to the Applicant stating:

I will prepare your Coordination Contract for 24760 to get you back as an "employee" which should allow you to access your emails etc.[69]

1. On 12 February 2018 at 1.40 pm, Mr Lee wrote to the Applicant stating:

Attached is a coordination contract for "24760 Pricing and Revenue Management" for your review.[70]

81. On 12 February 2018, the Applicant signed a one-page document titled Casual Academic Employment Contract in respect of the subject Pricing Revenue and Management. The document states a "Start Date of Appointment" of 19 February 2018, and an "End Date of Appointment" of 8 July 2018.[71]

82. Before 14 February 2018, the Applicant drafted a document titled "Subject Outline 24760 Pricing and Revenue Management".[72]

83. Between 2 July 2017 and 18 February 2018, the Applicant sent approximately 219 emails from his UTS email account.[73]

84. On 29 March 2018, in addition to his employment in relation to the Pricing and Revenue Management subject, the Applicant was offered work on pricing projects as a community course coordinator in a non-academic capacity with the UTS Shopfront.[74]

1. On 29 March 2018, Lisa Anderson, Manager, UTS Shopfront Community Program, sent an email into which the Applicant was copied, in which Ms Anderson stated:

John has come on board under a casual contract with Shopfront for the extra hours he is working on the pricing projects.[75]

1. The Applicant signed a Casual Employment Contract which said:

"This is a casual Contract of Employment and does not entitle the Appointee to subsequent employment with UTS."[76]

87. On 5 April 2018, Mr Lee sent an email to "Subject Coordinators", which group included the Applicant.[77]

1. On 12 April 2018 at 10.54 am, Mr Lee wrote to the Applicant stating:

Attached is your Autumn Session marking contract and coordination contract...[78]

89. On 13 April 2018, Mr Lee sent an email to "Coordinators", which group included the Applicant.[79]

90. On or around April 2018, casual academics from the pool of applicants in the Marketing Department, including the Applicant, were asked what subjects they would be interested in teaching in 2019.[80]

91. On 13 April 2018, the Applicant signed a one-page document titled Casual Academic Employment Contract in respect of the subject Pricing Strategies and Tactics. The document states a "Start Date of Appointment" of 19 February 2018, and an "End Date of Appointment" of 8 July 2018.[81]

1. On 20 April 2018, Professor Leona Tam, Professor and Acting Head of Marketing at UTS, met with the Applicant. There is disagreement as to what transpired at that meeting.

93. On 28 June 2018, the Applicant attended an External Engagement Committee meeting.[82]

1. On 29 June 2018, Mr Lee wrote an email into which the Applicant was copied in which he stated:

Attached are the draft Minutes of yesterday's Marketing External Engagement Committee meeting for your review...

- John to talk to his contacts about a possible LinkedIn workshop[83]

94A. On 9 July 2018 at 1.47 pm the Applicant received an email from "Student Administration EMS" bearing the subject title "Special Considerations awaiting assessment". The email stated:

The special consideration applications listed in this email have been referred to you for assessment.

Please follow your Faculty process for assessment of applications, including referral to your designated RAO...

- Log ...

- Click on 'EMS Web' ...[84]

94B. On 10 July 2018 at 12.33 pm, the Applicant was copied into an email from Courtney O'Regan, which stated:

Please find attached the updated list of Spring and Summer 2018 subject coordinators and assessors ...

94C. Attached to the 10 July 2018 email was a table that listed the Applicant as the Coordinator of the Summer 2018 Pricing & Revenue Management subject.[85]

94D. On 11 July 2018, the Applicant received an email from pqu@uts.edu.au with the subject titled "[SFS] Teaching staff - Results of your Autumn 2018 Student Feedback Survey (SFS) are now available", and by which access was provided to the results of the SFS.[86]

95. On 12 July 2018 the Applicant received 8 payments from the Respondent.[87]

95A. On 13 July 2018, the Applicant received an email from pqu@uts.edu.au with the subject titled "[SFS] Subject coordinators - Results of your Autumn 2018 Student Feedback Survey (SFS) are now available", and by which access was provided to the results of the SFS.[88]

95B. On 13 July 2018 at 10.52 am, the Applicant was copied into an email regarding the collection of exam papers.[89]

95C. On 13 July 2018 at 11.39 am, the Applicant wrote to Courtney O'Regan:

I think this must be the last exam for 24224. Do you mind picking up and scanning.[90]

95C. On 13 July 2018 at 11.50 am, Ms O'Regan responded to the Applicant by attaching the exam.

95E. On 13 July 2018 at 2.07 pm, the Applicant replied to Ms O'Regan with an attachment, and an email stating:

95F. On 13 July 2018 at 2.10 pm, Ms O'Regan responded to the Applicant:

Thanks John, I've printed this and put it into Leona's tray for approval.[91]

95G. On 16 July 2018 at 9.47 am, the Applicant emails Peter Rodgers and Belinda Barton stating:

I received a report on your SFS's. Well done to both of you. Fantastic effort and pleased you have been recognised by the students for your hard work. Very difficult now to decide who is the World's Best Pricing Tutor.

95H. On 17 July 2018 at 8.57 am, Ms Barton thanked the Applicant.[92]

95I. Between 17 July 2018 and 19 July 2018 the Applicant engaged in an email exchange with a student about their grade.[93]

95J. On 17 and18 July 2018, the Applicant engaged in an exchange about the pricing subject in 2019.[94]

96. On 18 July 2018 at 2.35 am, the Applicant received an autogenerated email advising that his email account was scheduled for deletion in 30 days' time.[95]

97. On 18 July 2018 at 8.47 am, the Applicant asked Mr Lee asking for his assistance.[96]

1. On 18 July 2018 at 9.41 am, Mr Lee wrote to UTS Payroll stating:

I would like to do a casual academic contract for John Burke (staff ID 110147) beginning 23 July, but he is "ex-employee". Would you please reactivate him?[97]

1. On 18 July 2018 at 9.56 am, Mr Lee wrote to the Applicant stating:

I will do this by creating a very long duration contract for your coordination role in Summer Session 24760 (same amount of money, but will be trickled through to your bank account over a 6 month period, from July 2018 to Jan 2019). The only risk with this approach is that if the subject doesn't run for some reason (currently 16 students are enrolled), you would have to pay back the coordination payment).[98]

1. On 18 July 2018 at 10.28 am, Mr Lee wrote to Professor Tam stating:

John Burke has become an "Ex-employee" due to the completion of his casual academic contract. This means that he loses access to UTS computer systems, including his UTS email account. He asked if we can reverse this. There may be something we can do ... but I think we would only want to proceed down this track if we are (nearly) 100% sure that we will employ John again in the future.[99]

1. On 18 July 2018 at 10.31 am, Mr Lee wrote to UTS Payroll stating:

Further to my earlier request, could you please hold off restoring John Burke to the Payroll for the time being? I'll let you know if we do decide that we want him reactivated[100]

1. On 18 July 2018 at 10.39 am, Mr Lee wrote to UTS Payroll stating:

Yes, I have a definite answer - we *do* want to reactivate John Burke so I can do a casual academic contract starting 23 July.[101]

1. On 18 July 2018 at 10.56 am, UTS Payroll wrote to Mr Lee stating:

John's primary assignment is UTS Shopfront and been ended (terminated) could I please have the casual academic employment request form and a new tax form.[102]

1. On 18 July 2018 at 11.17 am, Mr Lee wrote to the Applicant stating:

Payroll have advised that it is your UTS Shopfront employment termination that has triggered the current situation.[103]

1. On 18 July 2018 at 1.16 pm, Ms Anderson sent an email to Mr Lee in which she stated:

My understanding is that, as Shopfront is currently in process of being moved from 'DVC Enterprise' to 'Provost' in NEO -that all non-current contracts were terminated as a matter of course to make the move easier. Please let me know if there is anything Shopfront can do, as this should have no impact on his employment with the Business School, which preceded the contract with Shopfront and should be his primary employment.[104]

1. On 19 July 2018, Mr Lee wrote an email into which the Applicant was copied, stating as follows:

... I am going to have to move our Department meeting again ...

I am just about to issue the Outlook invitations moving the Department meeting from 13 September to 20 September.[105]

1. The Respondent asserts that:
   • (a) the contract under which the Applicant was employed and under which he continued to be employed was #1333911 for the period 23 July to 18 November 2018;
   • (b) the Applicant had never previously had a casual contract for work at that time; and

(c) the contract was for a total of one hour's work/pay and was only issued so that he would have email access if required.[106]

1. On 25 July 2018, Mr Lee emailed the Applicant attaching the contract for 24760 Pricing and Revenue Management for Summer Session 2018. Mr Lee's email states:

Attached is a contract for Coordination of "24760 Pricing and Revenue Management" in Summer 2018. The contract is provided in advance for this year only, because of the unexpected termination of your UTS employment ...

Note that the coordination contract is split into two components:

1. A small contract #1333911 (1 hour) for coordination work which might be required in advance of the subject's commencement, during Spring Session.

2. The normal coordination contract #1333912 for a Summer PG subject with one class taught by the coordination - 15 weeks at 2.5 hours per week.

If for some reason we do not proceed with this subject in Summer 2018, or if we decide to employ a different coordinator, or if you decide you don't wish to teach the subject, then the contract #1333912 will be cancelled in its entirety. If the subject enrolment increases I will review contract #1333912 in November and provide an additional contract or Variation of Contract, as appropriate.[107]

109. On 30 July 2018, the Applicant signed the contract.[108] The value of the contract was $2,450.25.[109]

110. The Applicant never before taught or had coordinator duties in a Summer Session.[110]

1. The Pricing subjects have not before been offered to students during the Summer Session.

111A. On 3 August 2018 at 3.15 pm, Professor Tam wrote to Mr Lee stating:

We are looking into potentially doing fixed-term contracts for teaching. Can you give numbers about Iain, John Burke, and Kaye ...[111]

111B. On 6 August 2018, Mr Lee responded to Professor Tam's 3 August 2018 request.[112]

1. BLANK
2. On 24 August 2018, Professor Tam emailed the Applicant

Thank you for supporting the Department and agreeing to teach 24760 Pricing and Revenue Management in the Summer 2018 session. As advised by the new Deputy Dean, subjects need to be coordinated by continuing staff. Ingo Bentrott will be the subject coordinator for 24760 that you lecture in the Summer. He will be in touch.[113]

114. At 10.50 am on 24 August 2018, the Respondent's website listed the Applicant as both an Autumn session coordinator, and a summer session coordinator.[114]

115. The Applicant responded on the same day at 11.45am saying "Before I respond officially, I would like to know the reasoning behind my demotion."[115]

116. Professor Tam responded on the same day at 11.48 am that "I was advised that casuals should not coordinate subjects ..."[116]

117. The Applicant responded to Professor Tam on the same day stating: "I will not compromise my principles nor allow my reputation to be damaged by this unjustified demotion ..."[117]

1. Professor Tam respondent to the Applicant at 5.00 pm on the same day stating:

Please contact the deputy Dean Carl Rhodes directly regarding this.[118]

119A. As at 27 August 2018, the Applicant remained a member of the marketing external engagement committee.[119]

119B. On 27 August 2018 at 10.27 am, Professor Tam forwarded the Applicant's email to Professor Rhodes stating:

FYI. Another email from the same casual. Thank you for writing to him.[120]

119. Professor Rhodes then emailed the Applicant on 27 August 2018 at 11.56 am, and offered to meet with him in person and asked the Applicant to direct his questions to Professor Rhodes.[121]

1. On 27 August 2018 at 12.02 pm, Professor Tam wrote to Michael Lee stating:

John Burke and Iain McDonald both have emailed me about not coordinating.[122]

121. On 27 August 2018 at 4.03 pm, the Applicant wrote to Professor Rhodes outlining the good work that he had performed as coordinator of the pricing subjects, and in which the Applicant wrote:[123]

Perhaps a fractional contract could be one of the solutions to alleviate the pending problem

121A. On 27 August 2018 at 4.32 pm, Professor Rhodes forwarded the Applicant's 27 August 2018 4.03 pm email to Professor Tam stating:

see message below from John Burke. He certainly thinks a lot of himself!

- How many hours a week were we paying for coordination?

- Will he still have the option to teach (without coordinating)?[124]

121B. On 27 August 2018 at 4.42 pm, Professor Tam wrote to Professor Rhodes stating:

After knowing all the special treatment he has been receiving for so many years, I am not surprised.

For his PG Pricing class (24760), we have been paying 4 hours a week (for 17 weeks in Autumn) for coordination, totalled $4399 per session in 2017 and 2018.

For his UG Pricing class (2422), we have been paying 5.75 hours a week (for (17 weeks in Autumn) for coordination, totalled $5633 of 6323 per session in 2017 and 2018.

Of course he wouldn't want to give the above numbers up! He can still teach the summer without coordination. But he need to confirm soon (say, by the end of August, if possible).

Thank you so much for taking care of this

121C. On 30 August 2018 at 2.34 am, Professor Tam wrote an email to Professor Rhodes with the subject heading "Paid coordination" stating:

- Paid 4 to 5.75 hours per week per subject in 2017-2018 for 4 subjects.

- The total per subject ranged from $4,300 to $6,300.

- Total = $20,646.[126]

121D. On 30 August 2018 at 8.55 am, Professor Rhodes responded by asking how many students were in each of these subjects.[127] Professor Tam provided a response.[128]

121E. On 31 August 2018 at 11.58 am, Mr Carrillat wrote to Professor Rhodes stating:

John mentioned to me his disappointment about potentially losing the coordination of his subject and asked me if I could help. I just wanted to say that John has been a very good colleague and important contributor to teaching & learning in the DG not just in the classroom but in getting industry partners involved.[129]

121F. On 31 August 2018 at 12.25 pm, Professor Tam wrote to Professor Rhodes stating:

I have academics coming to me and asked what's happening with John Burke. He is now asking people to "put in good words" for him in emails.[130]

121G. On 11 September 2018 at 10.04 am, Professor Tam wrote to the Applicant, in response to him being listed in the Top 20 in the UTS Business School from student 2018 - SFS scores in response to the question: "Overall, I am satisfied with how this staff member facilitated my learning", stating:

121H. On 17 September 2018 at 12.43 pm, Professor Tam wrote to Professor Sara Denize, Associate Dean Education, cc'ing Professor Rhodes, stating:

Carl and I discussed the qualification required for lecturing, specifically the AQ+1 rule.[132]

121I. On 17 September 2018 at 5.28 pm, Professor Denize provided an explanation of her understanding of the AQ+1 rule to Professors Tam and Rhodes.[133]

121J. On 17 September 2018, Professor Rhodes wrote to Professor Denize and Professor Tam stating:

The inquiry was mainly in relation to what we should expect from casual academics.[134]

121K. On 17 September 2018 at 5.44 pm, Professor Tam responded to Professor Rhodes' email without copying Professor Denize, stating:

John Burke has no PhD and doesn't meet any of the four criteria Sara listed.[135]

1. On 19 September 2018, Professor Rhodes met with The Applicant. There is a dispute as to what occurred at this meeting.

122A. On 19 September 2018 at 6.06 pm, Professor Tam wrote to Professor Rhodes stating:

Just confirming I will teach the PG subject John Burke taught before, after you met him today.[136]

122B. On 20 September 2018 at 11:04am, the Applicant emailed Michael Lee:

Just apologising for not attending the DG Meeting today (if it's on - I get confused with all the changes). FYI, I never mentioned that I broke some ribs a few weeks ago and has made travel a little difficult, as in a fair bit of pain at the moment. Doctor says a few more weeks to recover.[137]

122C. On 20 September 2018 at 11:33am Michael Lee responded to the Applicant's email:

Hi John Your apology will be noted. I have broken ribs myself on more than one occasion, so I have some idea how you're feeling. Usually takes me more than 6 to 8 weeks to become pain-free. Best wishes Michael Lee[138]

122D. On 21 September 2018, Professor Denzie wrote a letter to the Applicant in which she wrote:

Congratulations on your outstanding record of teaching as recognised by students in the Autumn 2018 SFS scores...

On behalf of the Dean and the School, thank you for your commitment to teach and learning, and congratulations on your Top 20 Postgraduate achievement in Autumn.

123. On 27 September 2018 at 11:56 am, the Applicant received an email from executive assistant Maria Mattiello, which included a letter from Sara Denize (Deputy Dean Education) dated 21 September 2018 congratulating the applicant on being in the Top 20 of UTS Business School postgraduate teachers for the Autumn 2018 semester.[139]

1. On 27 September 2018 at 1.35 pm, Professor Rhodes emailed the Applicant stating:

While we very much appreciate the work you have done and contributions you have made to our teaching program over a long period of time, based on the issues above we are proceeding with bringing the subject coordination of the subjects you have taught back in-house and will not be asking you to teach on the upcoming Pricing subject.[140]

1. On 2 October 2018 at 5.25 pm, the Applicant responded to the email of 27 September 2018 from Professor Rhodes. In that email, the Applicant stated:

I strongly believe that my dismissal is not in the best interest of the students, which is the key reason the university exists. The decision to cease my employment as the coordinator and lecturer after doing the same good job, year in, year out every Autumn for the last 7 years with well above average student outcomes, including recognition by ACEN as an exemplar of work integrated learning, is wrong on all counts.[141]

125A. On 2 October 2018 at 6.52 pm, Professor Rhodes forwarded to Ms Osborne and Professor Tam the Applicant's email to Professor Rhodes. Professor Rhodes stated:

See the email below, and my email to which he is responding

it is from a casual lecturer who we did not give work to this summer, partly because of the excessive hours he was being paid, but also to avoid casuals coordinating.

Can you offer advise [sic] on how to respond[142]

125B. On 3 October 2018 at 9.56 am, Professor Rhodes wrote to Professor Tam stating:

What did you make of the email from John Burke? I thought it was time to hand it over to the professionals - that's why I sent it to Jackie so we can make a formal response.[143]

125C. On 3 October 2018 at 10.00 am, Professor Tam wrote to Professor Rhodes stating:

I agree with you passing it to HR. He's becoming aggressive in his email and doesn't accept the fact that it's not his decision. There is no "dismissal" as his casual contract for summer teaching is not issued yet.

Now I understand why nobody in Marketing dared to take this subject in the Summer. He got to have talked to a lot of people about this. I am determined to make this class completely different by flipping it and it will still work.[144]

125D. On 3 October 2018, Jackie Osborne, Joel Arnott and Felicity Howell met to discuss what advice they were going to provide to Professor Rhodes.[145]

125F. On 3 October 2018 at 8.01 pm, Ms Taylor wrote to Professor Rhodes stating:

John is a prickly character. Pam and I had some interesting dealings with him too (I briefed Leona on these). I will forward you some emails re issues with him which were resolved after F2F meetings. When I met with him he calmed down and appeared to listen to reason but it was a long meeting plus several emails (I tried to avoid generating long to and fro communications).

We agreed that Pam was going to replace him when we had new recruits that could teach these subjects but it seems in the end that she thought it was easier to keep him on.[146]

125G. On 3 October 2018 at 8.01 pm, Professor Taylor forwarded to Professor Rhodes an email chain between the Applicant and Professor Taylor dated 22 March 2016, and stated to Professor Rhodes:

Carl this is the situation I mentioned - the first email. I then met with him and subsequently Pam kept him on.[147]

125H. On 3 October 2018, Professor Rhodes responded to Professor Taylor stating:

Do you know why Pam decided to keep him on?[148]

125I. On 4 October 2018 at 3.59 am, Professor Taylor wrote to Professor Rhodes stating:

From memory it was because it was easier and she could quarantine some of the new hires from teaching ...[149]

125J. On 4 October 2018, Professor Rhodes responded to Professor Taylor stating:

Also, do you know how he managed to negotiate to be paid so many hours for coordination? In management we only ever paid 1 hour per week[150]

125K. Professor Rhodes responded to the Applicant on 4 October 2018 at 1.40pm indicating that he had reviewed his response and noted his concerns. He offered to further discuss the matter 'and hopefully reach a resolution' and indicated that he would contact him once he had returned to work (he had been overseas).[151]

125L. On 4 October 2018 at 1.54 pm, Professor Rhodes wrote the "heads", cc-ing Professor Tam, and stating:

Leona and I are dealing with an issue in Marketing concerning payments to casual staff for coordination and teaching, as we briefly discussed at our meeting last week.

We need to confirm common practice across the school.

- Have you employed any casual staff to coordinate subjects over the past year?

- If so,

• How may hours per week and for how many weeks per term are you paying them and at what rate?

o What rate are you paying them for teaching of the same subject?[152]

125M. On 4 October 2018 at 5.16 pm, Professor Tam wrote to Professor Rhodes stating:

To summarize, the common practice in the Bus School is either zero (Econ, Acct) or one (Mgmt, Fin) hour per week for the length of the session at the rate of about $65.

John Burke has been paid 17 weeks in the range of 4 - 5.75 hours per week at the same rate of about $65 in Autumn 2018 for each subject coordination.

The over-payment is 68-97.75 hours compared to 12 hours. It's between 5.5 times to over 8 times over other DGs.

I am gathering the numbers for his over-payment since he started in Marketing 7 or 8 years ago.[153]

125N. On 4 October 2018 at 7.21 pm, Professor Rhodes acknowledged Professor Tam's email.[154]

126. On 5 October 2018 at 12.38 pm, the Applicant responded to Professor Rhodes email accepting his invitation to meet.[155]

126A. On 5 October 2018 at 3.13 pm, Professor Tam wrote to Professor Rhodes stating:

John Burke has been paid the following amounts each year for the PG subject for coordination, lecturing, tutoring and marking. I put the number of students in the bracket.

AS a reference point, a Level B Step 5 salary is $112,981 right now. Assuming a 40% teaching load, one subject would be 10% which is $11,298. Adding 17% super, it'd be $13,219 for one subject. Please note, that includes only the lecture and one tute. But there are not that many tutes for the student numbers. Just one or two additional ones.[156]

126B. On 5 October 2018 at 10.30 pm, Professor Rhodes wrote to Professor Tam stating:

Do you know how he managed to negotiate this over generous deal?[157]

126C. On 6 October 2018 at 4.47 am, Professor Tam wrote to Professor Rhodes stating:

He didn't need to negotiate. It's our system that allows it.

The coordination was overblown because of our historical way of calculating the number of coordination hours in Marketing. And he has been doing all the lectures, tutes, and marking himself since 2013. Nobody else did anything for the PG subject since 2013.

Looking at the contract history, he only did the lecture and coordination (no tutes or marking) when he taught this subject for the first time in 2011 (he did tutes with no coordination for other subjects before). He was paid 97 hours for coordination.

My guess is, he then understood our system of calculating casual hours and pay. He started allocating the tutes and marking to himself as coordinator from the next time he was asked to teach this subject in 2013 (he didn't teach in 2012 at all for us). Coordinators decide on the tutors and markers in Marketing.

The above explains why neither of them [the Applicant and Iain McDonald] want to give up the coordinator role. Once you are not the coordinator, not only you lose the over-generous coordination pay, you have no control over who does how many tutes or marking.

We should have at least one, ideally two, continuing academic who can teach each subject rather than relying on casuals...[158]

126D. On 6 October 2018 at 2.04 pm, Professor Rhodes to Professor Tam stating:

Just to be clear, for the $25,554 we paid him in 2018 how many classroom hours did he have (lectures and tutorials) and how as the coordination hours calculated?[159]

126E. On 7 October 2018 at 1.35 am, Professor Tam wrote to Professor Rhodes stating:

For $25,554, we have 24 lecture hours (2-hour lecture * 12 weeks) and 36 tutorial hours ( 3 one-hour tutes * 12 weeks, I am checking why it is 12 weeks instead of 11 weeks). The total is 60 hours.[160]

127. On 12 October 2018, the Applicant received a voucher for $150 to acknowledge him being in the "top 20" of post graduate teaching.[161]

1. On 16 October 2018 at 9.11am, Professor Rhodes sent an email to the Applicant containing the following words:

"During our meeting, and as Leona had set out in her email to you on 24 August 2018, I mentioned that whilst you were not going to be asked to coordinate the subject in the Summer session, the Faculty was still happy to offer you casual work teaching the Pricing subject. During our meeting you refused to consider teaching into the subject in the upcoming summer session, unless you were also employed as the subject coordinator. I note that the School retains the discretion to appoint and vary course coordinators as it sees appropriate, from time to time. I also point out this subject has never run previously in the new Summer session.

As I said previously, the School very much appreciates the work you had done and contributions you have made to the Faculty, which is why we hoped that you would continue to teach for the School on the upcoming Pricing subject.

Further, whilst the School will not be offering you casual shifts to coordinate the Pricing subject in the same subject in that session. I note that Leona has also tried to understand from you whether you are interesting in teaching into other subjects.

Whilst I had indicated that we would not be asking you to teach on the upcoming Pricing subject, this was because you had indicated you were not interested in doing this. If that is no longer the case, we are happy to extend this offer of casual teaching work to you, again, for the Pricing subject in this upcoming summer session. Further, we are happy to discuss whether there are any other opportunities for you to teach as a casual in other subjects across the School. Please let me know if you wish to engage in such casual teaching work.

I am happy to discuss any of the above further in our next meeting and hope that the School and students can continue to benefit from your contributions."[162]

128A. On 16 October 2018 at 9.37 am, Professor Tam wrote to Mr Lee stating:

You can cancel the coordination contract for Summer now. We won't issue any more casuals coordination contract unless it's emergency.[163]

128B. On 16 October 2018 at 10.53 am, Mr Lee wrote to UTS Payroll, cc'ing the Applicant, stating:

We would like to cancel casual academic contract #1333912 *John Burke, ID 110147), due to run from 19 Nov 2018 to 08-Mar-2019.

I have completed the Variation of Contract form attached, although the entire contract is being cancelled because we have changed the staffing arrangement so the position is no longer required.[164]

129. On 18 October 2018, the Applicant filed a claim for unfair dismissal. The Applicant did not regard Professor Rhodes' offer as being one he could reasonably accept.[165] Mr Burke stated in cross-examination:

"But you didn't accept the offer. You filed the unfair dismissal claim instead?---Yes. Because of that reason. It was a diminished role."[166]

130. On 21 October 2018 at 11.34 am, the Applicant responded to Professor Rhodes email of 16 October 2018 indicating a preparedness to meet again.[167]

131. Professor Rhodes responded to the Applicant on 24 October 2018 offering to schedule a meeting on return from an overseas trip for 1.00pm on 13 November 2018. [168]

132. Professor Rhodes was notified by the Fair Work Commission later that day (at 5.53pm) that an Application Alleging Unfair Dismissal had been filed by the Applicant on 18 October 2018. [169]

1. On 25 October 2018, Mitchel Osmond, Teaching & Learning Officer (UTS Business School) provided a reference for the Applicants Learning and Teaching Award application stating:

While I have worked with many dedicated academics over the years, I believe John to be the most dedicated in his pursuit of enhancing his student learning and success in a typically difficult subject for students: 24760 Pricing and Revenue Management." and, "Despite the fact that John only taught as a casual academic in Autumn sessions, I would frequently be contacted by John throughout the Spring and Summer sessions, looking for advice, exchanging ideas and looking for the best possible adjustments to make his assessments more authentic for the students. This culminated in the creation of the best authentic assessment I have seen in the UTS Business School.[170]

134. On 26 October 2018 at 11.18 am, the Applicant acknowledged Professor Rhodes' email of 24 October 2018 and said "Thanks Carl".[171]

134A. On 9 November 2018, the Respondent produced a document titled "Subject Outline 24760 Pricing and Revenue Management" in respect of the summer 2018/19 semester. The document stated:

1. On 13 November 2018 at 5.16 pm, UTS wrote to the Applicant. A subject outline was attached to the letter, and it set out the shifts that the Applicant was being offered, being:

"● 2.00pm-5.00pm, 7 December 2018: Applying the Basic Pricing Methods and Understanding Margin Arithmetic; Pricing a Complex Event.

● 2.00pm-5.00pm, 14 December 2018: Pricing a New Product.

● 2.00pm-5.00pm, 25 January 2019: Pricing a Consumer Packaged Good.

● 2.00pm-5.00pm, 1 February 2019: Pricing a B2B Product.

● 6.00pm-9.00pm, 15 February 2019: Pricing a Consumer Durable."[173]

136. The Applicant estimates that the value of teaching these classes (being 3 contact hours per week for five weeks) would be $3,959.70.[174]

137. Professor Tam, indicated in that letter that "If you wish to accept these shifts, please advise me within the next 7 days, by no later than 20 November 2018, and we will issue you with a casual contract." The letter also stated that 'the Business School is happy to consider you for casual teaching in other suitable subjects' and stated that the Applicant should let Professor Tam know whether there were any Department of Marketing subjects that he would be interested in for teaching or tutorial work in 2019.[175]

1. On 14 November 2018 at 11.03 am, the Applicant stated:

Can you please send through the Coursepack and other material, as well as the textbook for review.

138A. On 14 November 2018, Professor Rhodes wrote to Professor Tam as follows:

There is no need to send him the materials in advance. I suggest replying along the lines:

The materials are currently under review, but subsequent to a contract being signed, we can send them to you in ample time for you to prepare for delivering machines[177]

1. On 14 November 2018 at 5.24 pm, Professor Tam responded to the Applicant:

Thank you for your email. The materials are currently under review. Subsequent to a contract being signed, we can organize to send you the materials. There will be plenty of time for you to prepare for delivery the classes.

1. On 16 November 2018, Mr Burke wrote to Professor Alexander, Deputy Vice Chancellor (Education and Students) seeking her intervention because:

1. To accept to teach an inferior version of PG Pricing..."[179]

1. Professor Alexander responded to the Applicant on 16 November 2018 and said that she could not "see a compelling reason to seek overturn the decision made by the facility's courses committee or faculty board". She further said:

"I am told that you have been offered a casual teaching role on the subject which I do hope you will give strong consideration to accepting..."

1. Professor Alexander also referred the Applicant to the process for staff related grievances should he wish to take it further.
2. Mr Burke responded to Professor Alexander on 18 November 2018 and stated that "had a look at the grievance process and it will not provide any benefit for me."
3. Under cross examination the Applicant stated:

"Until the first pay period after 18 November you continued to be employed and paid by the University? Yes.[180]"

1. On 19 November 2018 at 12.38 pm, the Applicant emailed Dean Earley, the Dean of UTS Business School seeking "a genuine apology and be converted to part-time if necessary, and allow me to continue coordinating and teaching pricing" and stated:

"They have offered me to teach what I believe to be a massively altered inferior version of a subject including the removal of the real client projects, but not the coordination. Even if I accepted the offer which is clearly a demotion and disregard for my past work for no valid reason, this would mean relying on another contract that they can just cancel anytime based on the previous cancelled coordination contract."[181]

1. On 19 November 2018 at 12.49 pm, Dean Earley responded the Applicant offering to meet with him to discuss his concerns but indicated that:

"the authority and decisions made by the department are reasonable, appropriate and within their scope of decision-making. While this may be disappointing news, I appreciate your inputs into the education of our students and I understand that you will be continuing some work with the university as a casual academic in the near future."[182]

146A. On or about 20 November 2018, Professor Tam attempted to remove the Applicant as a user in respect of "UTS Online 24760 Sum 2018".[183]

147. On 20 November 2018, UTS received a response to this letter from the Applicant's lawyer indicating that his client "refused to accept a diminished role of only teaching and not coordinating the Pricing and Revenue Management subject".[184]

147A. On 28 November 2018 at 2.42 pm, Professor Tam wrote to Mr Tucker stating:

Please go ahead and block ... John Burke from UTS Online.[185]

[13] The Applicant submits he was unfairly dismissed. He seeks an order that he be reinstated into what he considers to be his former substantive role with UTS, namely an ongoing role teaching and coordinating the undergraduate and postgraduate Pricing subjects.

[14] As stated above the Respondent contends that the Applicant is not protected from unfair dismissal because he did not complete a period of employment with UTS of at least the minimum employment period (being 6 months). In the alternative UTS says it did not dismiss the Applicant.

[15] Because it must first be established that a person is protected from unfair dismissal (s.383 of the FW Act), before it is determined if they have been dismissed (s.385(a)), it is necessary to deal with the MEP objection before the Not Dismissed Objection.

[16] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[17] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[18] In the present matter there is a dispute about whether the Applicant has completed the MEP of 6 months. That issue needs to be determined as a preliminary jurisdictional matter.

[19] The Applicant says that the employment ended on 16 October 2018. Without deciding, at this stage, whether the employment ended at the initiative of UTS, in order for the Applicant to have served the MEP he must have been employed for the 6 months "immediately before dismissal" (s.383(a)(ii) of the FW Act) i.e. prior to 16 October 2018. That means the Applicant must have been continuously employee on and from 16 April 2018.

[20] Although the Applicant has worked for UTS at least since August 2010, the Applicant's most recent employment with UTS comprised the following periods[186]:

Teaching and (separately contracted) coordination (26 weeks)

Teaching and (separately contracted) coordination (18 weeks)

Teaching and (separately contracted) coordination (16 weeks)

Teaching and (separately contracted) coordination (20 weeks)

Payment in advance of coordination role in Summer 2018/2019.

Primary purpose of the contract was to keep the Applicant on the UTS IT system.

Also, 1 payment on 6 September ($55.74) for completing a training session.

[21] During the hearing I put the above summary to the Applicant. He agreed with the same including the fact of the significant breaks.

[22] From the payroll information it is clear that during the breaks there was no work performed by the Applicant for UTS for which he was paid.

[23] For the first time in the Summer Term the Pricing subject was to be offered in addition to the usual offering in the Autumn Term.

[24] On or about 25 July 2018 the Applicant was offered:

1. A "small contract #1333911 (1 hour) for coordination work which might be required in advance of the subject's commencement, during Spring Session". This 1 hour payment was spread over the period 9 August 2018 to 29 November 2018. The primary purpose of this contract was to keep the Applicant on the UTS IT system.

2. A "normal coordination contract #1333912 for a Summer PG subject with one class taught by the coordinator - 15 weeks at 2.5 hours per week". The contract was due to start on 19 November 2018 through until 8 March 2019. The covering email to the contract provided that "if we decide to employ a different coordinator... then the contract #1333912 will be cancelled in its entirety."

[25] On 30 July 2018 the Applicant accepted these contracts.

[26] At least from August 2018 the Applicant understood that, for the Summer Term 2018/2019 and thereafter, coordination was not going to be offered to him (i.e. that contract #1333912 was being cancelled).

[27] The Applicant says he did not focus on the words "if we decide to employ a different coordinator". His decision not to focus on those words is a matter he should take responsibility for. The document is clear in its face. The document was only one page in length. The Applicant is a very intelligent and competent adult. He chose to enter into the agreement on the basis that it was offered to him.

[28] As noted above, although the Applicant was paid during the Spring Term of 2018 that payment was in large part manufactured to ensure that the Applicant remained on the UTS IT system. In reality the Applicant finished the actual performance of work around 12 July 2018. As the chronology demonstrates there were some emails engaged in by the Applicant after 12 July 2019, but this was not substantial work for which he was paid. The payment arrangement from August 2018 was then an administrative convenience.

[29] Because of the administrative practice adopted by UTS the $65.45 earned by the Applicant for that preparatory work was paid in instalments during Spring Term 2018. He was paid through until 29 November 2019 despite the Applicant contending that the employment relationship ended on 16 October 2019.

[30] What is clear from the above is that:

1. there was a break between around 12 July 2018 and 9 August 2018 (Most Recent Break Period),

2. the period from 9 August 2018 to the Applicant's nominated termination date of 16 October 2018 is a period of approximately 10 weeks. That period of time does not meet the MEP, and therefore

3. only if the Most Recent Break Period is counted as service (or not a break in service) can the Applicant's period of employment extend back six months from 16 October 2018 to at least 16 April 2018 (thus satisfying the MEP).

[31] The Applicant says the Most Recent Break Period counts for service. He contends that that "despite the Respondent's decision to classify the Applicant as a casual, he has had an ongoing employment relationship with the Respondent, such that his employment is (at least) an ongoing and systematic casual employee and, more likely as an ongoing employee incorrectly characterised as a casual."

[32] The Applicant submitted that,

1. "The Applicant makes application for unfair dismissal remedy.

1. The Applicant is a lecturer and coordinator. His specialisation is "pricing".[187]
2. The Respondent is a university.
3. The Applicant seeks reinstatement to what was his substantive role at the Respondent prior to his dismissal - an ongoing role, teaching and coordinating the undergraduate and postgraduate Pricing Subjects.
4. In support of his position, the Applicant submits:
   1. his employment relationship with the Respondent began in 2010;2
   2. he commenced performing work as a teacher and coordinator of the relevant

1. since 2012, he has worked as the coordinator and teacher of the relevant subjects on each and every occasion on which these subjects has been offered by the Respondent (which as been at least annually);[189]

1. despite the Respondent's decision to classify the Applicant as a casual, he has had an ongoing employment relationship with the Respondent, such that his employment is (at least) as an ongoing and systematic casual employee and, more likely, as an ongoing employee incorrectly characterised as a casual;
2. at the end of 2017, it was agreed that the Applicant would work as teacher and coordinator of the postgraduate Pricing Subject when it was run during the Summer 2018/19 semester (the first occasion on which it had been run);[190]
3. in April 2018, the Applicant was involved in a discussion with during which there was a discussion about "casuals" coordinating subjects, the Applicant advocated for his continued role as the coordinator of the undergraduate and postgraduate Pricing Subjects, and (while the Summer 2018/19 semester was not discussed) the balance of the information that was provided to the Applicant meeting provided him with sufficient certainty to write to the Respondent "I look forward to continuing in 2019 and beyond";[191]
4. in July 2018, as it had already been agreed that the Applicant would work as teacher and coordinator of the postgraduate Pricing Subject during the Summer 2018/19 semester, the Applicant was provided with a document confirming this to be the case;[192]
5. on 24 August 2018, the Applicant was unilaterally informed by email, and without prior consultation, that he would not be the coordinator of the postgraduate Pricing Subject during the Summer 2018/19 semester (and, by implication, that would not work as coordinator of any future Pricing Subjects, whether undergraduate or postgraduate), and that this was because he was a casual employee;[193]

1. on 19 September 2018, the Applicant met with Professor Rhodes, who informed the Applicant that he was could not work as a coordinator, and further could not work as a teacher, of the Pricing Subjects;[194] and

1. on 27 September 2018, Professor Rhodes confirmed this position in writing by email.[195]

1. The Respondent resists the application, raising a jurisdictional objection - namely, that the Applicant was not dismissed. In support of this position, the Respondent submits:

1. the Applicant was a casual employee;[196]
2. the Respondent offered the Applicant casual teaching work on 16 October 2018 and 13 November 2018, which offers were rejected;[197] and

1. the Respondent did not act in a way that forced the Applicant to resign, but rather that the Applicant has conducted himself unreasonably.[198]

1. There are disputes between the parties as to:
   1. the nature of the employment relationship; and
   2. whether or not the Applicant has been dismissed.
2. The Applicant submits that the first dispute contextualised the second dispute, which is the core question that the Commission is called upon in determining jurisdiction.

1. The Respondent does not oppose the Application on the basis of the Applicant's period of service as a casual not counting towards the Applicant's period of service for the purpose of determining whether or not the Applicant has fulfilled the minimum period of employment required to be protected from unfair dismissal.[199]
2. The Applicant understands this to be a concession that, at minimum, the Applicant was employed on a regular and systematic basis, and had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.[200] Such a concession is appropriate.
3. The Applicant's primary case, however, goes further than this concession. The Applicant contends that the nature of the employment relationship between the Respondent and the Applicant did not have a fundamental "essence of casualness",[201] and that this contextualises the events from September 2018 onwards.
4. The Applicant relies upon the ratio of the Full Federal Court of Australia in WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [159], and [168] to [182] as setting out what relationships are, and are not, "casual". Importantly:

1. the Court accepted that "whether any particular employee is a casual employee depends upon an objective characterisation of the nature of the particular employment as a matter of fact and law having regard to all the circumstances";[202]
2. ongoing employment does not need to be life-long employment. However, ongoing employment is for an indefinite term subject to rights of termination;[203]

1. by contrast, a casual employee has no firm advance commitment from the employer to continuing and indefinite work;[204]

1. the indicia of causal employment - irregular work patters, uncertainty, discontinuity, intermittency and unpredictability - are manifestations, but an absence of these usual features does not necessarily mean that the essence of casualness is absent;[205]
2. a casual employee may become a permanent employee because the characteristics of the employment, overtime, have come to reflect ongoing employment;[206] and
3. the nature of the employment relationship may be legitimately examined by reference to the actual way in which the work was carried out.[207]

1. In the instant case, the circumstances that support the conclusion that there was a firm advanced commitment to continuing and indefinite work (subject to the rights of termination) include as follows:
   1. the Applicant has worked as the coordinator of the Pricing Subjects since 2012;

1. the Applicant was given autonomy to determine and develop the curriculum for these subjects, which he did from 2012 to 2018;[208]

1. the Respondent asked the Applicant to be involved in work outside of semesters during which the Pricing Courses were offered;[209]

1. the Applicant performed unpaid work outside of the semesters during which the Pricing Courses were offered, which was ultimately recognised by the Respondent at the start of 2018;[210]
2. the Respondent recognised the Applicant's contributions to the Pricing Subjects, through awards and similar forms of acknowledgment;[211] and
3. the Applicant's contract of employment was not terminable on the provision of one hour's, or one day's, notice.

1. While some written statements by the Respondent's employees, and some aspects of the Applicant's written contract(s) of employment, run contrary to these propositions, limited weight should be placed on these matters. The Applicant submits that these matters do not outweigh the factors consistent with the Applicant having been engaged on an ongoing basis. Further, such statements should be viewed in the context of the Respondent having an interest in representing to the Applicant that he was a casual employee.

1. The Applicant must establish on the balance of probabilities that he was dismissed.
2. Section 386 of the FW Act provides 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.

(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.

1. The Applicant contends that he was dismissed within the meaning of the FW Act.

1. The Applicant relies upon section 386(1)(a) in support of this position. A person's employment with his or her employer will have been terminated on the employer's initiative if there was action by the employer that either intends to bring the relationship to an end, of has that probable result.[212]
2. The Applicant submits that the events of September 2018 satisfy this test.
3. Prior to August 2018, the Applicant held the position of coordinator and teacher of the Pricing Subjects for all upcoming semesters, including the Summer 2018/19 semester. His role as coordinator of the Summer 2018/19 semester had been confirmed in writing, and signed by the Applicant in July 2018.
4. On 24 August 2018 the Applicant, without notice, received an email stating that he was no longer engaged as coordinator of the Pricing Subject for the Summer 2018/19 semester. The Applicant complained.
5. On 19 September 2018, the Applicant met with Professor Rhodes who told the Applicant that he was no longer engaged as coordinator and could no longer teach the Pricing Subject.
6. On 27 September 2018, Professor Rhodes' wrote in an email to the Applicant (unequivocally) as follows (emphasis added):

While we very much appreciate the work you have done and contributions you have made to our teaching program over a long period of time, based on the issues above we are proceeding with bringing the subject coordination of the subjects you have taught back in-house and will not be asking you to teach on the upcoming Pricing subject.

1. Even if the Respondent did not intend to bring the employment relationship to an end (which is a submission that is difficult to accept), the probable result of removing the Applicant's two roles at the Respondent (teaching and coordination) such that he would have no work to perform, and would not be paid any money, is that his employment would end.
2. The cancellation of shifts of a regular and systematic casual employee (if the Commission is of the view that the Applicant was a casual employee) has been treated by the Fair Work as a dismissal.28 The instant situation is analogous. The Applicant's primary submission is that he was set to teach and coordinate in the Summer 2018/19 semester, and that he was then told this would no longer occur, and thus dismissed. This is different from a circumstance in which an employee rejects an offer of reduced shifts, and resigns.
3. In circumstances where the Applicant was informed that he could no longer perform any of the roles that he had hitherto performed, it is difficult to see how this conduct could be characterised as anything but a dismissal at the initiative of the employer.

The Respondent's position, and the Applicant's response

1. The above notwithstanding, the Respondent contents that "in circumstances where work is offered it cannot be said that UTS had decided to terminate his employment, or acted to terminate his employment".[213] No authority is cited by the Respondent for this proposition.
2. The Respondent says that the Applicant must prove that the Applicant was forced to resign because of the conduct, or a course of conduct, engaged in by the UTS.[214]
3. First, there is no evidence that the Applicant ever used the word "resign".
4. Second, even if the Commission were minded to accept the Respondent's submission (which is, apparently, that the employment limped along until 16 October 2018, when the Respondent offered the Applicant a reduced teaching role in the Summer 2018/19 semester) section 386(2)(c) of the FW Act recognises that a demotion involving a significant reduction in duties may amount to a dismissal.
5. A "demotion" may result in the Applicant resigning his or her employment. Alternatively, a "demotion" may result in the contract of employment being terminated by the employer and, if the employee continues to work, the creation of a new contact of employment.[215]

32. Whatever the case, the Applicant submits that where the removed (or not offered) duties or responsibilities are substantive (in the sense of being a very important aspect of the employment), and there is no right for the employer to unilaterally remove those duties from the employee, a unilateral decision of an employer to remove those duties (or to cancel a contract whereby those duties are offered, and offer a new contract without those duties) will amount to a dismissal (whether directly at the initiative of the employer, or by the rejection of an offer by the employee).[216]

1. The significance of the Applicant's coordination role is set out in the Applicant's evidence.[217] It was the Applicant's coordination role that facilitated the Applicant developing and implementing the practical engagement aspect of the postgraduate pricing subject. Coordination is also recognised as a significant role by the Respondent. Lists of those employees who are coordinators of particular subjects are published on the Respondent's website.
2. Third, if the Commission considers that by the Applicant rejecting an offer on 16 October 2018 of employment in the position of teacher (but not coordinator), the Applicant brought the employment relationship to an end, the following facts are relevant:

1. the explanation(s) provided by the Respondent for the decision to not offer coordination were that the Applicant's employment cost too much money,[218] and that the Respondent had decided that casual employees were not to perform coordination duties;[219] and
2. the Applicant was being offered employment in circumstances where he had:
   1. already been told that he would perform coordination work and teaching work in the Summer 2018/19 semester;
   2. been told, without notice by email, that he would not perform coordination work;
   3. he had been told during a meeting that he would not perform coordination or teaching work; and
   4. he had been told by subsequent email that he would not perform coordination or teach work.

1. As to the reasons advanced by the Respondent (cost and basis of engagement), neither provides a valid reason for the Respondent's position.
2. The Applicant's rate of pay is determined by the Respondent's enterprise agreement. The Respondent cannot punish the Applicant for an entitlement arising under that document.
3. The characterisation of the Applicant as a casual employee is an issue in contention. However, even if that characterisation is correct, the Applicant asked to be recognised as a permanent part time employee. Again, the Applicant should not be the subject of an adverse determination simply because of his type of employment.
4. Finally, the Respondent's reliance on Andrew Kim v ORC International Pty Ltd [2016] FWC 1029 (Kim) and City of Sydney RSL and Community Club v Ms Roxana Balgowan [2018] FWCFB 5 (Balgowan) as authority for the proposition that the common law concept of repudiation is not applicable to casual employees does not assist the Commission.
5. In Kim, the Commission considered whether or not a decision to temporarily remove an employee from a shift roster, subject to the return of a manager, constituted a dismissal ([50] to [52]), and in the alternative whether or not the conduct in removing the employee from a shift roster left the employee with no alternative but to resign ([53] - [66]).
6. In Balgowan the Full Bench of the Commission was dealing with the question of whether a decision to not offer shifts to a casual employee in the hospitality industry was a constructive dismissal. The Full Bench held that it was not on the basis that there was no contractual entitlement to work particular shifts at a particular club ([29]). In the present case, the Applicant signed a contract on 30 July 2018 in respect of which the coordination work was expressly contemplated.
7. Further, and consistent with the Applicant's primary contention, the Full Bench also observed that where an Applicant contends that he or she has not resigned, which is the instant case, it is necessary for the Commission to determine whether or not there has been a dismissal pursuant to section s386(1)(a) ([30]).

1. The Applicant submits that the issues in dispute should be resolved in favour of the Applicant. Namely:
   1. the Applicant was, in substance, engaged on an ongoing basis; and
   2. the Applicant was dismissed within the meaning of section 386 of the FW Act."

[33] After the close of the hearing the Applicant further submitted that,

1. "There are two questions that the Commission is required to determine.
   1. Was the Applicant dismissed, and if so on what date?
   2. As at the date of dismissal, had the Applicant completed the minimum period of employment, whether by reason of his being a permanent part-time employee, or regular and systematic casual employee?
2. During oral submissions, the Commission was provided with a folder of authorities on behalf of the Applicant. Due to time constraints, the Applicant was unable to assist the Commission by directing the Commission's attention to those aspects of each decision that the Applicant considers to be relevant.
3. These submissions are provided in order to assist the Commission in its task.

1. The Applicant provides the following brief chronology.
   • 2011 to 2017 - Applicant teaches and coordinates the pricing subjects
   • As to the importance, status and pay of the Applicant's role as a coordinator, the Applicant refers particularly to the following:
     • Paragraphs [23], [24], [31], [55], [59], [123] [132] of the Applicant's Statement (which were unchallenged);
     • The Applicant's evidence on re-examination; and
     • Professor Rhodes evidence during cross-examination, particularly following the lunch adjournment.
   • November 2017 - Applicant offered teach and coordination work in the Summer 2018/19 semester: Applicant's Statement [55] - [57], Applicant's Facts [69] - [71]
   • 5 January 2018 - Applicant listed as coordinator for Autumn 2018 and Summer 2018/19; Applicant's Facts [75]
   • Autumn 2018 - Applicant teaches and coordinates the pricing subjects
   • 18 July 2018 - email exchanges regarding the summer 2018/19 coordination contract
   • 23 July 2018 - Summer 2018/19 "Appointment" nominally starts: ASoF [109] + Pages 307 and 308 of the Annexure to Burke Statement
   • 24 August 2018 - Applicant thanked for agreeing to "teach" in Summer 2018/19, but advised he will not "coordinate" in Summer 2018/19: Applicant's Facts [113]
   • 24 August 2018 - Applicant remains listed as coordinator on website: Applicant's Facts [114]
   • 24 August 2018 - Applicant describes events as a demotion: Applicant's Facts [115]
   • 24 August 2018 to 19 September 2018 - August 2018 - Professor Rhodes and Professor Tam confer regarding the Applicant: Rhodes XXM
   • 27 August 2018 - Professor Tam sends email to Professor Rhodes: Applicant's Facts [119B]
   • 27 August 2018 - Rhodes emails Applicant: Applicant's Facts [119]
   • 27 August 2018 - Applicant proposes fractional contract: Applicant's Facts [121]
   • 30 August 2018 - Professor Tam and Professor Rhodes discuss the Applicant's remuneration: Applicant's Facts [121C] - [121D]
   • 17 September 2018 - Professor Tam and Professor Rhodes email Professor Denize about AQ+1 RULE: Applicant's Facts [121H]
   • 17 September 2018 - Professor Tam says to Professor Rhodes that Applicant does not meet any of the four criteria: Applicant's Facts [121K]
   • 19 September 2018 - Meeting between Applicant and Professor Rhodes
   • 19 September 2018 - Professor Tam confirms that she will teach the "PG subject John Burke taught before": Applicant's Facts [122A]
   • 27 September 2018 - Professor Rhodes writes that (emphasis added) "subject coordination of the subjects you have taught back in-house and will not be asking you to teach on the upcoming Pricing subject: Applicant's Facts [124]
   • 16 October 2018 - Rhodes email to Applicant, position changes re teaching: ASoF [128]
   • 17 October 2018 - Unfair dismissal filed

5. The Applicant says that there are two different dates on which a dismissal occurred. The arguments are run in the alternative.[220] Either:

1. 27 September 2018 (being the date on which the Respondent said in writing that the Applicant would not coordinate any subjects, and would no longer teach during the Summer 2018/19 semester); or
2. 16 October 2018 (being the date on which the Applicant confirmed that the Applicant would not coordinate any subjects, but would again be asked to teach during the Summer 2018/19 semester).

1. In considering whether the conduct of 27 September 2018 amounted to a dismissal event, the Applicant relies upon:

1. Tab 2 of the authorities bundle, being Barkla v G4S Custodial [2011] FWAFB 3769, and particularly [24] at which reliance in placed on the decision of Mohazab. Particularly, the Applicant says that if the conduct has the "probable result of bringing the employment relationship to an end" a dismissal event has occurred. In other words, an intention to dismiss on behalf of the Respondent is not a necessary ingredient in a finding that a dismissal has occurred. 2. Tab 7 of the authorities bundle, being O'Meara v Stanley Works Pty Ltd PR 973462, at [23].

1. Tab 11 of the authorities bundle, being Thi Nho Tran v Bupa Dental Corporation Pty Ltd [2018] FWC 3237 at [78].

1. Tab 6 of the authorities bundle, being Mulhallen v Roy Morgan [2017] FWC 1942 at [19].
2. The Applicant, in short, submits that conduct by which the Applicant determined that it would no longer offer coordination work, or teaching work to the Applicant - being the very work that the Applicant had performed regularly for the past six to seven years, objectively viewed is conduct that would have the probable result of bringing the employment relationship to an end.
3. The Respondent's conduct after that date, as a means to alter the effect of its earlier decision, do not transform the events leading up to and including 27 September 2019.
4. In the event the Commission is not persuaded by this submission, the Applicant's alternate argument is that the Respondent's conduct on 16 October 2018 amounted to a demotion dismissal.
5. In this regard, the Applicant relies on the following authorities.

1. Tab 4 of the authorities bundle, being Harrison v FLSmidth Pty Ltd [2018] FWC 6695 generally, but particularly at [33], and [36] - [38]. 2. Tab 5 of the authorities bundle, being Moyle v MSS Security [2016] FWCFB 372 at [8] - [9].

1. Tab 1 of the authorities bundle, being Charlton v Eastern Australian Airlines Pty Limited [2006] AIRC 393 generally.
2. The Applicant submits that, in determining whether or not there has been a demotion, the Commission should compare the position of the Applicant as at 23 August 2018 (as a teacher and coordinator) with the offer on 16 October 2018 (to work as a teacher).

1. The Applicant provides the following brief chronology.
   • 9 August 2010 - employment starts: Applicant's facts [2]
   • 11 October 2012 - Applicant informed of plan to have him coordination in 2013: Applicant's facts [5]
   • 24 June 2013 - Mr Lee acknowledges that the Applicant needs year round access as he continues to perform a small amount of work between semesters: Applicant's facts [8]
   • 4 October 2013 - Confirmation of Respondent's "plan" to have the Applicant teach and coordinate in 2014: Applicant's facts [9]
   • 8 July 2014 - Applicant "resigns": Applicant's facts [13]
   • 10 September 2014 - Applicant asked to perform coordination work: Applicant's facts [14]
   • 27 October 2014 - Applicant asked to participate in working group for Respondent: Applicant's facts [15]
   • 30 October 2014 - Applicant meets to discuss Respondent's pricing structure: Applicant's facts [16]
   • 6 November 2014 - Respondent confirms "plan" to have Applicant teach and coordinate in 2015: Applicant's facts [23]
   • 19 to 22 December 2014 - Respondent recognises the need for the Applicant to maintain year-round access to Respondent's IT systems: Applicant's facts [24] - [25]
   • 3 January 2015 - Appointment nominally starts: Applicant's facts [28]
   • 15 January 2015 - Applicant is allocated new desk: Applicant's facts [40]
   • 26 June 2015 - Appointment nominally ends: Applicant's facts [28]
   • 3 August 2015 - Applicant invited to be member of DG external engagement committee: Applicant's facts [41]
   • 4 August 2015 - Applicant accepts invitation: Applicant's facts [42]
   • 15 September 2015 - Respondent describes Applicant as subject coordinator: Applicant's facts [45]
   • 3 November 2015 - Respondent confirms discussion that would coordinate and teach in 2016: Applicant's facts [46]
   • November 2015 - Applicant attends a DG external engagement committee meeting: Applicant's facts [48]
   • 14 March 2016 - Applicant signs 2016 document: Applicant's facts [49]
   • 19 March 2016 - Appointment nominally starts: Applicant's facts [49]
   • 7 April 2016 - Teaching pricing for Autumn 2017 is confirmed: Applicant's facts [57]
   • 8 July 2016 - 2016 appointment nominally ends: Applicant's facts [58]
   • 15 August 2016: Respondent refers to Applicant in article: Applicant's facts [60]
   • 14 November 2016: Teaching for Autumn 2017 confirmed again: Applicant's facts [61]
   • 16 November 2016: Applicant attends UTS event: Applicant's facts [62]
   • 27 February 2017 - Appointment nominally starts: Applicant's facts [64]
   • 6 March 2017 - Applicant signs contract: Applicant's facts [64]
   • 1 July 2017 - Appointment nominally ends: Applicant's facts [64]
   • Between 2 July 2017 and 1 February 2018:
     • the Applicant sends around 219 UTS Related Emails JB [148]. Evidence unchallenged that "some emails are replying to students and staff and some were liaising with Shopfront" JB [148] and PN954.
     • Handles last minute problems, rescheduling exams, finalising marks, varying student results, responding to students about their results, reviewing their projects, reviewing their assessments, planning for the new semester: PN953
     • Performs coordination work: PN377, PN379
   • 19 September 2017: Reference to the Applicant as "our John Burke": Applicant's facts [66]
   • 26 October 2017: Applicant attends Respondent committee meeting: Applicant's facts [67]
   • 16 November 2017: Applicant attends Respondent committee meeting: Applicant's facts [68]
   • 16 November 2017: Applicant confirmed for Autumn 2018: Applicant's facts [69]
   • 17 November 2017: Applicant asked for Summer 2018/19: Applicant's facts [70]
   • 20 November 2017: Applicant confirmed for Summer 2018/19: Applicant's facts [70]
   • 28 November 2017: Applicant receives Summer 2018/19 schedule: Applicant's facts [70]
   • 21 December 2017: Respondent refers to Applicant twice on social media: Applicant's facts [73] - [74]
   • 5 January 2018: Applicant listed as subject coordinator for Autumn 2018 and Summer 2018/19: Applicant's facts [75]
   • 16 January 2018: Applicant asked to undertake subject coordination work: Applicant's facts [76]
   • 24 January 2018: Applicant performs subject coordination work: Applicant's facts [77]
   • 12 February 2018: Applicant signs Autumn 2018 contract: Applicant's facts [81]
   • 14 February 2018: Applicant completes subject outline document: Applicant's facts [82]
   • 19 February 2018 - Appointment nominally starts: Applicant's facts [81]
   • 8 July 2018 - Appointment nominally ends: Applicant's facts [81]
   • 9 July 2018 - Applicant receives email relating to employment as coordinator: Applicant Facts [94A]
   • 10 July 2018 - Applicant receives email relating to employment as coordinator: Applicant Facts [94B]
   • 11 July 2018 - Applicant receives email relating to employment as coordinator: Applicant Facts [94C]
   • 12 July 2018 - 8 payments to Applicant: ASoF [95]
   • 13 July 2018 - Applicant performs coordination work: Applicant Facts [95A] - [95F]
   • 16 July 2018 - Applicant performs coordination work: Applicant Facts [95G] - [95H]
   • 17 July 2018 - Applicant performs coordination work: Applicant Facts [95I]
   • 18 July 2018 - Autogenerated email and discussions about offering contract
   • 19 July 2018 Applicant performs coordination work: Applicant Facts [95J]
   • 19 July 2018 Applicant performs coordination work: Applicant Facts [95I]
   • 19 July 2018 - Applicant included in email planning for 20 September 2018 meeting: Applicant's facts [106]
   • 23 July 2018 - Appointment nominally starts: Applicant's facts [109] + Pages 307 and 308 of the Annexure to Burke Statement
   • 25 July 2018 - Email explaining contract: Applicant's facts [108]
   • 30 July 2018 - Applicant signs contract: Applicant's facts [109] + Pages 307 and 308 of the Annexure to Burke Statement
2. The Applicant does not abandon the submission that he was, at the time of his employment, a part-time employee. The Applicant respectfully submits that the test as outlined in the decision of WorkPac Pty Ltd v Skene [2018] FCAFC 131 is that which is to be applied in determining the question. The Applicant relies upon its opening written submissions in this regard, particularly [12].
3. In resisting this argument, the Respondent relies heavily on the words of the contract. The Applicant makes the following observations:
   1. the Respondent has not established, in evidence, that the Applicant was provided with the full terms and conditions document on each occasion that he was nominally appointed; and
   2. close regard should be had to the words of the document signed by the Applicant. The document stats (emphasis added):

I have read and accept the Conditions of Appointment below and I accept Contract of Employment as specified in this form

1. there is no document in evidence described or titled "conditions of appointment". The document relied upon by the Respondent as containing terms relevant to the Applicant is titled "Conditions of Employment": Applicant's Facts [32] - [34]; and

1. the "form" is described as the contract of employment. The "form" makes no reference to casual loading, or other features ordinarily associated with casual employment.

1. In the alternative, the Applicant contends that his employment was as a regular and systematic employee, and that he had, during his employment, a reasonable expectation of ongoing employment.
2. The Applicant relies upon the following authorities:

1. Tab 10 of the authorities bundle, being Ponce v DJT Staff Management Pty Ltd [2010] FWA 2078 at [64] - [66]. 2. D Grey v Ardmona Foods [2000] AIRC 338 at [31] - [33] (a copy of which was provided to the Commission in hard copy).

1. Tab 12 of the authorities bundle, being Thomas v Warra Vineyard [2014] FWC 513 at [21].

1. Tab 8 of the authorities bundle, being Hartson v Australian Leisure & Hospitality [2019] FWC 41 at [69] and [71]. 2. Tab 17 of the authorities bundle, being Shortland v Smiths Snackfood Co Limited [2010] FWAFB 5709 at [10] - [13]. 3. Tab 9 of the authorities bundle, being Palpal-Latoc v Cloud Catcher [2018] FWC 3746 at [10]. 4. Tab 13 of the authorities bundle, being Tital Plant Hire v Van Malsen [2016] FWCFB 5520 at [26]. 5. Tab 18 of the authorities bundle, being Beeton v Toowoomba Community Housing Services Inc [2013] FWC 896 at [29] - [31]. 6. Tab 16 of the authorities bundle, being Price v United Management Services Pty Ltd [2013] FWC 4227 at [16] and [28]. 7. Tab 19 of the authorities bundle, being Tilbrook v Willall Industries Pty Ltd [2011] FWA 6300 at [24], [31] and [36]. 8. Tab 3 of the authorities bundle, being Calleri v Swinburne Uni of Tech [2017] FWC 2702 at [44], and noting that the facts at [39] and [55] demonstrate that the facts in Calleri are distinguishable from the facts in the instant case."

[34] Prior to the close of the hearing the Respondent submitted that,

1. "UTS has taken two jurisdictional objections to the application.
2. First, that Mr Burke is not protected from unfair dismissal because he has not completed a period of employment with UTS of at least the minimum employment period.
3. Second, that Mr Burke was not dismissed.
4. UTS has filed an Outline of Submissions dated 6 December 2018 and Outline of Submissions in Response dated 14 January 2018. UTS supplements these submissions below.
5. The Commission indicated at the hearing:

"Before I can establish whether someone has been unfairly dismissed, which means I have to be satisfied that they have been dismissed, I must first satisfy myself that they are protected from unfair dismissal. So the ME point, the MEP point, has to be determined in advance of the dismissal point because if I determine he hasn't met the minimum employee period then I don't need to go on to determine whether or not he was dismissed. I'm just telling you that's how I propose to deal with it. I plan to deal with the MEP point first. I'm required to, and then if he satisfied the minimum employment period I will then address the dismissal point under 385."[221]

1. If either jurisdictional objection was upheld, then the Application should be dismissed and the other objection need not be determined.

1. UTS contends that Mr Burke has not had continuous service on a regular and systematic basis or could have had a reasonable expectation of continuing employment on that basis.
2. The Fair Work Act 2009 (FW Act) provides that a person who is protected from unfair dismissal includes a person who is an employee who has completed a period of employment with his or her employer of at least the minimum employment period. The relevant minimum period of employment for this matter is six months.
3. The FW Act defines 'period of employment' in s.384(1) as follows:

"An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee."

1. The FW Act then goes on to provide in s.384(2) that:

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

1. The determination of whether an employee's period of employment "at a particular time" meets the six month minimum requirement of s.383 of the FW Act is prescribed by s.384(1) of the FW Act. If "the" period of "continuous" service "at that time" is six months, then the requirement of s.383 is met.
2. Section 384(2) of the FW Act provides which periods of casual service should count in ascertaining the employee's period of employment. A period of casual service may only count in that calculation if the circumstances of s.384(2)(a)(i) and s.384(2)(a)(ii) exist.

13. The approach to be taken to the minimum employment period is summarised by DP McCarthy in Leslie Holland v UGL Resources Pty Ltd,[222] with reference to Shortland v The Smith's Snack Co. Ltd[223] as follows:

"The determination of whether an employee's period of employment "at a particular time" meets the six month minimum requirement of s.383 is prescribed by s.384(1). If "the" period of "continuous" service "at that time" is six months, then the requirement of s.383 is met."[224]

"Section 384(2) provides which periods of casual service should count in ascertaining the employee's period of employment. A period of casual service may only count in that calculation if the circumstances of (a)(i) and (ii) exist."[225]

"The wording in s.384 with respect to various times and periods is specific. Firstly, s.384 refers to "a" period of employment "at a particular time". It also states that "the" period of employment is "the" period of service completed "at that time". The period of employment clearly must be "a" singular period of service and not multiple or a plurality of periods of service. That singular period also must be a singular "continuous" period of service "at that time". The meaning of a period of service then envisages different periods of service but only the last of those periods of service count for the purpose of ascertaining the length of the period. Other periods, which may be previous periods of service, do not count.

What s.384(2) then specifies is that "a" period of service as a casual does not count towards the employee's period of employment unless it has the characteristics of being regular and systematic and expected to continue on that basis. The period of service referred to in s.384(2)(a) is "a" singular period. What s.384(2)(a) and (b) do is to regard regular and systematic engagements as "a" period of service.

Importantly, s.384(2) does not refer to a plurality of periods of service to determine the nature of the relationship but rather, the nature of the relationship is determined by the nature of the one singular period. There is no notion of counting discrete periods of prior service. Thus, s.384(2) does not alter the condition attached to s.384(1) viz; that the period of service at a particular time needs to be a continuous period.

Section 12 of the FW Act prescribes that "continuous service" has a meaning affected by s.22. "Service" and "continuous service" are dealt with in s.22 as follows:

"(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee's continuous service."

Continuous service is not expressly defined by either s.12 or s.22. Rather, s.22(3) deems what would otherwise be service that is not continuous, to be continuous for periods of particular types of "absences". Therefore, other than for the deeming effect of s.22(3), "continuous service" should be given its ordinary meaning. The Macquarie Dictionary gives two meanings to "continuous" relevant here:

1. having the parts in immediate connection, unbroken; and
2. uninterrupted in time; without cessation.

In addressing the meaning of continuous the service at the time of the termination I should consider answers to questions such as whether it had parts in immediate connection? Was it unbroken? Was it uninterrupted in time? Was it without cessation? The services cannot be continuous if there were periods of absence. But if the absences were of a type within the meaning of s.22(2), then the service is deemed to be continuous.

Whether "a" period of service which is casual counts for that calculation and purpose, depends on whether it meets the requirements of s.384(2)."[226]

1. Leslie Holland v UGL Resources Pty Ltd was also applied by DP Booth in Van Kampen v Transfield Services [2013] FWC 8127 at [36] to [38].

Continuous Employment on a regular and systematic basis?

1. UTS contends that Mr Burke's service was not continuous for the purposes of s.384 of the FW Act when he alleges, contrary to the position of UTS, that he was dismissed.
2. The contract under which Mr Burke was employed, and under which UTS say he continued to be employed, was #1333911 for the period 23 July to 18 November 2018.

17. Work under that contract could not be recorded as regular and systematic. Mr Burke had never previously had a casual contract for work at that time. The contract was for a total of one hour's work/pay and was only issued so that he would have email access if required.[227]

18. Mr Burke could not have had a reasonable expectation that such work would continue as, for amongst other reasons, this was the first time the subject had been offered in the Summer session. Michael Lee alerted him to the risk in an email of 18 July 2018 "that the subject doesn't run for some reason".[228]

1. His previous casual contracts for the pricing subjects were for the Autumn Session 2018 (the period 10 March 2018 to 30 June 2018) and the Autumn sessions only in 2017, 2016 and 2015.
2. Each casual engagement was pursuant to a separate casual academic contract. Each such contract stated, amongst other things:

"This is a casual contract of employment and does not entitle the Employee to subsequent employment with UTS."

21. Mr Burke has not been employed continuously by UTS. Mr Burke had various casual engagements with UTS between 2010 and 5 July 2013. This was followed by a number of fixed term contracts, the last of which ceased, due to Mr Burke's resignation, on 8 June 2014. The cessation of this fixed term contract constituted a break in service. While difficult circumstances are pointed to for this resignation, it does not matter for the purposes of determining "continuous service" under the FW Act as to what the circumstances were of the employment ending. It still means that the employment and the service at that juncture came to an end.[229]

1. Mr Burke gave the following evidence in relation to his employment from 2015:

"And so that period from 15 January 2015 to 16 July 2015 is you teaching and coordinating in the pricing subject in the autumn semester of 2015. Is that correct? It ends on 16 July.

Yes. That's what I'm saying. That period from January to July, is that you teaching and coordinating in the Autumn of 2015? Yes, Commissioner.

Right. And then you will see the next payment is 24 March 2016. Do you see that? Yes.

And so you had 36 weeks break in your employment. Is that right? From July to - in paid employment. Yes, Commissioner.

Right. And then look over to page 4 and the sixth last row says 28 July 2016. Do you see that? Yes, Commissioner.

So going back to page 3, where it starts on 24 March 2016, over to page 4, 28 July 2016, is that you teaching and coordinating in the pricing subject in the autumn semester of 2016? Yes, Commissioner.

And you will see after that, the next entry is 23 March 2017. Is that right? That's correct.

So there was a break there are some 34 weeks when you weren't getting paid by the University. Is that right? That's correct, Commissioner.

And come across to page 6, a little over halfway down you will see an entry 13 July 2017. Do you see that? Yes, Commissioner.

For $69.70. So from page 4 where it starts, 23 March 2017, over to page 6 where it says 13 July 2017, that's you teaching and coordinating the pricing subject in the Autumn semester of 2017. Is that right? Yes, Commissioner.

And then the next payment is 22 February. So you had a break of 32 weeks without being paid by the University. Is that right? Yes, Commissioner.

Right. So 22 February 2018, then come across to page 9, and you will see an entry 12 July 2018? That's right.

So that period of 22 February 2018 through to 12 July 2018, is that you teaching and coordinating the pricing subject in the autumn of 2018? The autumn semester? Yes. I've got a feeling one of the 12th ones is as well. One of the 12 July ones is also. It's possible, because I remember the contract went to July. I might be wrong on that. I can check.

All right. But then the next entry - so for weeks later there is a payment on 8 August and that goes through to 29 November. Now that's the coordination of the spring semester. Isn't that right? That's right."[230]

Mr Burke later corrected this evidence to say that he did not teach in Spring semester and that this payment related to the Summer semester.

23. In summary, there were breaks of 36 weeks between the 2015 and 2016 engagements, 34 weeks between the 2016 and 2017 engagements and 32 weeks between the 2017 and 2018 engagements.[231]

1. These contracts may be considered to be a plurality of periods of service but could not be considered to be one singular period for the purposes of the FW Act, and should not be regarded as part of the minimum employment period required by the FW Act.
2. This is particularly so having regard to the fact that each casual contract was separate and expressed to not entitle Mr Burke to further casual contracts, and the very substantial intervals (over 30 weeks) between each of the contracts.
3. Such lengthy breaks between engagements breaks continuous service.
4. These intervals could not be regarded as due to leave or factors referred to in s.22 of the FW Act. These intervals related to periods when employment had come to an end because the contract had been completed. Further, during these intervals Mr Burke was conducting a separate business, ..........

1. Even if it could be argued that the engagement was regular and systematic, it needs to also be established under s.384(2)(a)(ii) of the FW Act that the employee had a reasonable expectation of continuing employment on that basis.

29. The expectation must be "reasonable". An expectation based "upon inferences that could not reasonably be drawn from the material" would be unreasonable[232].

1. What is clear from the requirement in s.384(2)(a)(ii) of the FW Act of a reasonable expectation that work would continue on a regular and systematic basis is that more is required then establishing that there has previously been regular and systematic work as required by s.384(2)(a)(i) of the FW Act.
2. In this regard, there is nothing that Mr Burke points to that UTS had said or done to give him such a reasonable expectation. In fact, it is clear that UTS was careful not to give him any such expectation despite Mr Burke making it clear to UTS that he was concerned that it was not providing him with a firm commitment to future engagements.
3. The fact that there was no firm advanced commitment to future engagements was expressly stated in each casual academic employment contract under which Mr Burke was engaged. Point 12 of the Conditions of Employment, which were part of the Casual Academic Contract, stated:

"This is a casual contract of employment and does not entitle the Employee to subsequent employment with UTS."

1. When such statements have been made, the FWC has accepted that there should be no expectation of continuing employment. In Leslie Holland v UGL Resources Pty Ltd it was stated:

"Even if the periods of employment were regular and systematic, I do not consider the Applicant should have had a reasonable expectation of continuing employment on that basis. UGL made it clear on each occasion that there should be no expectation."[233]

1. UTS acted consistently with Mr Burke's contract in not giving him an expectation of continuing employment.

35. When he was engaged in 2015 Professor Pam Morrison (Professor Morrison) (the then Professor and Head of Marketing Discipline Group) said to him that there was no guarantee of continuing engagements.[234]

36. On 15 March 2016, Mr Burke emailed Professor Morrison "asking for your [her] commitment for coordinating 24224 and 24760 in Autumn 2017 and beyond".[235]

37. When Professor Morrison had not responded, he emailed Professor Taylor on 22 March 2016 concerned that "my coordinating position may come to an end as they plan to appoint someone else; either with a PHD or for some other reason, to run the two subjects from next year" and that he did not want to "feel" that "I will be out of a job in 2017".[236]

1. On 23 March 2016, Professor Morrison, emailed the Mr Burke stating that:

"Current planning would have you teaching pricing (ug and pg) in Autumn 2017, and this is the most likely outcome. As I've said to you previously I can't guarantee what the DG needs will be in 2017, but with current information I have I will be asking you to teach again in 2017."[237]

1. On 24 March 2016, Mr Burke emailed Professor Morrison again about uncertainty as to whether he would continue to be involved in the Pricing subject. Professor Morrison responded on the same day stating:

"When we spoke in 2015 I did say I was unable to guarantee you teaching Pricing forever, because as the recruitment of new academics continue, at some stage in the future 'pricing' may get taught by one of the new academics. However I don't see this happening before 2018 at the earliest."[238]

40. Mr Burke responded on 24 March 2016 saying "I don't really care about your academic replacement policy".[239]

41. In 2016, Mr Burke applied for the continuing full-time positon of Scholarly Teaching Fellow so that he could have certainty about his employment continuing but his application was unsuccessful.[240]

1. Similarly, no firm advanced commitment to casual contracts was expected of Mr Burke. Mr Burke was free to accept or reject each contract when it was offered:

"And each and every time that you were engaged as a casual employee on a contract, you were given a new contract? Yes.

And you were - it was for you to decide whether to accept it or not? Yes."[241]

43. This absence of a requirement for a firm advanced commitment from Mr Burke was also apparent from the email of Michael Lee of 25 July 2018[242] in which it is indicated that the contract can be cancelled if Mr Burke decides that he does not wish to teach the subject in the Summer Session.

1. Professor Morrison's successor, Professor Tam, similarly gave no firm commitment but invited expressions of interest from the pool of academics in the Marketing Department, including Mr Burke, as to the subjects that each academic would be interested in teaching (pricing being one such subject).
2. Asking other academics, as well as Mr Burke, to express interest in teaching pricing, could not give any expectation to Mr Burke that there was a firm commitment to his involvement in the subject.
3. It is also noteworthy in the emails referred to above (in which Mr Burke sought certainty as to coordinating and teaching pricing) that he received the responses set out above addressing teaching but at no stage was any representation made to him, despite his empathic requests, in relation to coordinating the pricing subjects.
4. There was generally no certainty of engagement until a casual contract was issued. Casual contracts were generally not issued until the time of the engagement commencing.
5. In relation to the Summer Session, while a contract had been issued for coordination of the post graduate pricing subject it could not be regarded as a firm commitment as it was conditional upon whether Mr Burke was to be the coordinator, whether he wanted to teach the subject and whether the subject was to run at all.
6. Accordingly, there was never a firm advanced commitment from UTS, or Mr Burke, in relation to the contract for the Summer session.

Mr Burke's alternate submission - part-time employment

50. Despite it being patently clear that Mr Burke was engaged and paid as a casual employee, he puts an alternate submission that he was a part-time employee.[243]

1. It is not apparent how, if it cannot ever be established that the employment was regular and systematic with a reasonable expectation that it would continue on that basis, that it could be reasonably asserted that Mr Burke was a part-time employee.

52. The meaning to be given to casual employment for the purposes of Part of the FW Act dealing with unfair dismissal was set out by the Full Bench in Telum[244] as follows:

"The FW Act makes special provision in relation casual employees accessing the unfair dismissal remedy. Relevantly for present purposes, an employee is not protected from unfair dismissal by the FW Act unless her or she has "has completed a period of employment with his or her employer of at least the minimum employment period" (s.382(a)). The minimum employment period is 6 months or 12 months depending upon whether the employer is a "small business employer" (s.383). The expression "period of employment" is defined in s.384 which relevantly provides:

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; ...

Again, the language of s.383(2)(a) presupposes that an employee employed on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis can still be a "casual employee". A conclusion at odds with the general law approach adopted by the Commissioner.

In summary, the FW Act provides for the regulation of terms and conditions of employment of national system employees through an interrelated system of the National Employment Standards, modern awards, enterprise agreements (and, in some cases, workplace determinations or minimum wage orders). Having regard to the objects and purpose of the legislation, it is obvious that the legislature intended that those components should interact consistently and harmoniously. We conclude that on the proper construction of the FW Act the reference to "casual employee" in s.123(3)(c) and the rest of the NES - and, indeed, elsewhere in the FW Act - is a reference to an employee who is a casual employee for the purposes of the Federal industrial instrument that applies to the employee, according to the hierarchy laid down in the FW Act (and, if applicable, the Transitional Act). That is, the legislature intended that a "casual employee" for the purposes of the NES would be consistent with the categorisation of an employee as a "casual employee" under an enterprise agreement made under Part 2-4 of the FW Act (or under an "agreement based transitional instrument" such as a workplace agreement or certified agreement made under the WR Act) that applies to the employee or, if no such agreement applies, then consistent with the categorisation of an employee as a "casual employee" within the modern award that applies to the employee. Subject to any terms to the contrary, a reference to a "casual employee" in an enterprise agreement (or agreement based transitional instrument) will have a meaning consistent with the meaning in the underpinning modern award (or pre-reform award/NAPSA)."[245]

53. In the subsequent case of MacMahon[246], which, like WorkPac Pty Ltd v Skene[247], was considering annual leave entitlements, the Federal Court took a more general law approach to the meaning of casual to that taken by the Full Bench in Telum.

54. The MacMahon judgment was considered by the Full Bench in the Casual Conversion case but the Full Bench followed and endorsed its approach in Telum.[248]

1. The judgment in Skene dealt with annual leave entitlements not the minimum employment period provisions for access to unfair dismissal. These provisions have a very different history to the NES provisions. While the Full Court in Skene makes more broad ranging comments regarding casual employment, they are properly described as obiter.
2. The effect of Telum is that, even if a casual is employed on a regular and systematic basis for a long period with a commitment to ongoing employment they can remain, subject to any casual conversion rights, characterised as a casual employee.
3. The approach of the Full Bench in Telum remains the appropriate authority for a member of the FWC to apply in an unfair dismissal case.
4. Even if the more narrow view of casual employment referred to in Skene was taken, Mr Burke would not be considered to be a part-time employee.
5. In Skene, the Full Court discusses the distinction between the types of employment as follows:

"A "type" of anything is usually distinguished by a characteristic or perhaps several characteristics not present in other categories of a like nature. The characteristic that distinguishes full-time and part-time employment is that those employments are on-going (sometimes called "permanent") employments. On-going employment does not mean life-long employment (McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594 at 601 (Lord Goddard); Haley v Public Transport Corporation of Victoria [1998] VSC 132; (1998) 119 IR 242 at [82] (Ashley J) but on-going employment is employment for an indefinite term subject to rights of termination (McClelland at 601 (Lord Goddard)). It is characterised by a commitment by the employer, subject to rights of termination, to provide the employee with continuous and indefinite employment according to an agreed pattern of ordinary time (as distinct from overtime) work. A corresponding commitment to provide service is given by the employee. What distinguishes a full-time employee from a part-time employee is the pattern of work agreed to. A full-time employee's pattern of work will be the ordinary full-time hours applicable at the particular workplace (eg eight hours each week-day). A part-time employee's pattern of work will be a fixed number of ordinary hours, the number of hours being less that the full-time ordinary hours applicable at the workplace, worked at a regular time on regular days (eg 9.00 am to 1.00 pm every Monday, Tuesday and Thursday)". [249]

"Whether the requisite firm advance commitment to continuing and indefinite work (subject to rights of termination) is absent or present must be objectively assessed including by reference to the surrounding circumstances created by both the contractual terms and the regulatory regime (including the FW Act, awards and enterprise agreements) applicable to the employment."

"The payment by the employer and the acceptance by the employee of a casual loading, like the description of the type of employment given by the parties in their contractual documentation, speaks to the intent of the parties to create and continue a casual employment. But the objective assessment will need to consider whether that intent has been put into practice and if achieved, has been maintained. The objectively demonstrated existence of a firm advance commitment to continuing and indefinite work (subject to rights of termination) according to an agreed pattern of work will ordinarily demonstrate a contrary intent and the existence of on-going full-time or part-time employment rather than casual employment. The key indicators of an absence of the requisite firm advance commitment will be irregularity, uncertainty, unpredictability, intermittency and discontinuity in the pattern of work of the employee in question. Those features will commonly reflect the fact that, whilst employed, the availability of work for the employee is short-term and not-ongoing and that the employer's need for further work to be performed by the employee in the future is not reasonably predictable."[250]

"Furthermore, WorkPac contended that the fact that the WorkPac Agreement defined or described Mr Skene as a casual employee was "highly relevant if not determinative". We agree that if the Agreement had defined or described Mr Skene as a casual employee, for the purposes of s 86 of the FW Act, that fact would have been a relevant factor to be taken into account just as a designation in a contract would be a relevant factor. However, as we later determine, the Agreement did not define or describe Mr Skene to be a casual employee.[251]

1. Mr Burke was not a part-time employee as described by the Full Court above.
2. Mr Burke's engagements were not ongoing, continuous or of indefinite duration. Mr Burke did not work each week but for a small part of the year under a specific contract for a specific time and which was expressed to not entitle Mr Burke to further engagements with breaks in between each contracts of over 30 weeks. He was clearly engaged and paid as a casual employee under the Agreement and his contracts of employment.

62. As set out in Skene[252] the fact the Agreement defines or describes Mr Burke as a casual employee is "highly relevant if not determinative". The Full Court also indicated that "just as a designation in a contract would be a relevant factor"'.[253]

1. Unlike Mr Skene, Mr Burke was defined or described as a casual employee under the Agreement.
2. The Agreement provides the following definition or description of casual employment in clause 42.4.3:

"Casual employment shall mean a staff member engaged in accordance with the provisions of clause 44 of the Agreement.'

1. Clause 44 of the Agreement sets out the circumstances in which casual employment is appropriate. These circumstances include:

"- provision of industry or professional experience to teaching programs;

- where the work is of a temporary, irregular or intermittent nature."

1. Clause 44.4 of the Agreement provides for employment contracts for casual staff which specify, amongst other things, the duties, the amount of time expected for each duty, and the appropriate rate/s of pay.
2. Rates of pay and activity descriptors for casual employees are referred to at clause 44.5 of the Agreement as follows:

"The rates of pay and activity descriptors for casual staff are described in Schedule 2 and Schedule 4, respectively of this Agreement. The rate of pay includes a loading in lieu of agreements benefits for which a casual staff member is ineligible including some leave entitlements (eg annual leave, sick leave, etc) [see Schedule 2 for details of the casual loading]."

1. Schedule 2 of the Agreement sets out the casual rates of pay and states that:

"(b) The rates of pay include a casual loading of 25%."

1. Unlike for casual academic staff, the work performed by continuing academic staff is prescribed by the Agreement. Clause 37.9 of the Agreement provides:

"The normal pattern of academic workload is 40% teaching, 40% research and 20% other activities."

70. Mr Burke is a casual academic employed under the Agreement.[254]

71. He is engaged in circumstances deemed appropriate for casual employment by clause 44. In particular, he is "providing industry or professional experience to teaching" and his work is of a temporary irregular or intermittent nature.[255]

72. Each time Mr Burke was engaged a 'casual academic contract of employment' was generated.[256] This contract specified the duties, the amount expected for each and the appropriate rates of pay.

73. Mr Burke was paid the rates of pay for casual staff set out in Schedule 2 of the Agreement which include a 25% loading which is designed to compensate a casual or benefits for which a casual staff member is ineligible, including some leave entitlements (eg annual leave, sick leave, etc).[257]

74. Mr Burke's work did not satisfy the description of a continuing part-time academic. For example, Mr Burke was not engaged in research which would normally constitute 40% of the normal workload of a continuing academic.[258]

75. Unlike Mr Skene, Mr Burke's contract also designated him as a casual employee. From 2015 any engagement of Mr Burke as a casual employee was subject to a Casual Academic Contract of Employment ('the Casual Contract') under which he was clearly designated as a casual employee. The Casual Contract included Conditions of Employment.[259]

1. Point 10 of those Conditions of Employment provided that:

"A 25% loading is included in the gross salary rate specified in Part B of this Contract of Employment. This loading is paid in lieu of all leave entitlements. The employee is not entitled to any termination payment on completion of this casual contract of employment."

1. Point 12 of those Conditions of Employment stated:

"This is a casual contract of employment and does not entitle the Employee to subsequent employment with UTS."

1. Point 24 of those Conditions of Employment stated:

"This Contract and the UTS enterprise agreement are relevant to the Employee's position (refer to clause 13) constitutes the entire agreement between the parties as to the Employee's employment and supersedes all previous communications, understandings, representations and agreements and any prior condition, warranty or indemnity or representation imposed, given or made by a party. In executing this Contract, the Employee acknowledges that he/she is not relying on any representations by, or on behalf of, UTS unless expressly incorporated in to this Contract."[260]

79. Even if it were to be accepted that Mr Burke work was regular and systematic, it does not follow from Skene that he cannot be a casual employee[261]. Throughout Skene, the Full Court cites with approval the decision of the Full Court in Hamzy v Tricon International Restaurants trading as KFC.[262] The Full Court stated in Hamzy:

"the essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work. But that is not inconsistent with the possibility of the employee's work pattern turning out to be regular and systematic." [emphasis added]

80. Altobelli J in Newcombe v Amrou Metawa Pty Ltd[263] commented upon this statement as follows:

"In other words, the Full Court was not being dogmatic about a regular and systematic work pattern being inconsistent with casual employment. The Full Court appeared to contemplate the possibility that an employee could still be a casual if their work pattern was regular and systematic."

1. Unlike in Skene, there was no firm advance obligation upon Mr Burke to provide ongoing work and he therefore had a capacity to take a break from work. There was no need for a guarantee of annual leave like in Skene because his employment was not continuing. As the Full Court stated in Skene:

"the purpose of Div 6 includes providing to employees a guaranteed break from work, an entitlement which it is likely was directed at employees in continuous employment rather than those in irregular, intermittent, occasional or discontinuous employment."[264]

1. For the same reasons given earlier in relation to whether there was a reasonable expectation of ongoing employment, it is submitted that there was no firm advanced commitment to continuing and indefinite work from either UTS or Mr Burke. In fact, there was not continuing and indefinite work.

Comparison between Mr Skene and Mr Burke's employment

1. The Full Court in Skene referred to the factual findings regarding Mr Skene's employment as follows:

"The primary judge found that for the entire period of his employment at the Clermont mine, Mr Skene performed the duties of a dump-truck operator working a pattern of seven shifts of 12.5 hours per shift, followed by seven days off in accordance with a pre-set roster provided by Rio Tinto. Throughout the duration of that employment, Mr Skene remained part of C Crew. He did not work any other shifts apart from those provided for by his rosters."[265]

"There were further findings made by the primary judge recorded at [81] of his Honour's reasons. The primary judge found that, on the evidence, Mr Skene's employment at the Claremont mine was:

1. regular and predictable. His working arrangements and shifts were set 12 months in advance in accordance with a stable and organised roster;
2. his employment was continuous, save for one period of seven days that went unpaid but which was arranged with the respondent's client. For that purpose, Mr Skene was under the direction and control of the client, not the respondent (see cl.5.7 of the general terms and conditions);
3. his employment was facilitated by the fly in, fly out arrangement and the provision of accommodation at no cost to himself;
4. the fly in, fly out arrangement was inconsistent with the notion that Mr Skene could elect to work on any day and not work for others without first making the necessary arrangements with the respondent's client;
5. there was plainly an expectation that Mr Skene would be available, on an ongoing basis, to perform the duties required of him in accordance with his roster, until such time as the assignment was complete: cl.5.4 of the general terms and conditions; and

6. the evidence suggests that the work undertaken by Mr Skene was not subject to significant fluctuation from one day, or one week, or one month, or one year to the next. The hours of work were regular and certain as revealed by Mr Skene's pay slips."[266]

1. Unlike Mr Skene, Mr Burke:
   • (a) Was not subject to a roster;
   • (b) Was not contracted for work 12 months in advance (contracts were generally made when the session was commencing);
   • (c) Was not engaged continuously;
   • (d) Apart from attending UTS for a few hours each week in Autumn, Mr Burke was free to do what he wanted, including working from home when he wished, and engaging in his business, .........;
   • (e) Was not required to give an ongoing commitment to UTS (other than for the period specified in this contract);

(f) Worked for only about 3 or 4 months of the year, and then for only a few hours twice per week;[267]

(g) Was defined or described by the Agreement and his employment contracts as a casual employee;

(h) Was paid a 25% casual loading.

1. Notwithstanding his claim that he was dismissed on 27 September 2018, Mr Burke continued to be employed for coordination duties for postgraduate pricing in the Summer session on casual contract 1333911. He confirmed this in cross examination:

"Until the first pay period after 18 November you continued to be employed and paid by the University? Yes.[268]"

1. The position of UTS is that the employment relationship was still on foot when Mr Burke filed his Application, and the Application should be dismissed.
2. If the Commission considers that there was a termination of Mr Burke's employment, UTS submits that it did not dismiss him.

88. The approach to determining whether there was a dismissal was recently set out in in Ligou Zhou v Central Capital:[269]

"In this case, the applicant says the respondent dismissed him. Obviously, then, he does not contend that he was forced to resign, so s.386(1)(b) of the FW Act is not relevant to this application. The issue for determination is whether the applicant's employment was terminated at the respondent's initiative.

In City of Sydney RSL & Community Club Limited v Balgowan, a Full Bench of the Commission considered s.386 of the FW Act and noted that:

'Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:

"... a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment'."

Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was "... unnecessary to consider whether the facts fall within or without the notion of constructive dismissal.".

A Full Bench of the Australian Industrial Relations Commission has also found that for a termination to be at the initiative of the employer, there must be:

'... some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end."[270]

1. It was Mr Burke's decision not to accept UTS's offers of employment.
2. UTS had made it clear to Mr Burke that it offered him further teaching engagements but he did not find that acceptable, initially because he was not prepared to teach the subject Pricing and Revenue Management unless he could also coordinate the subject, and subsequently because he had concerns about the quality of the content of the subject he was being asked to teach. UTS indicated a preparedness to work through his issues but Mr Burke instead elected to pursue this Application.
3. This was apparent in relation to teaching postgraduate pricing in the Summer Session.
4. On 17 September 2017, Professor Morrison emailed the Applicant stating:

"Yesterday I confirmed your AU Tug and pg Pricing subjects, but I forgot to ask if you'd also be able to teach the pg Pricing subject in Summer 2018 (this spans 2018/19).

I hope you're interested and available to teach this additional subject."[271]

93. UTS had not only offered the Applicant further teaching work but it had been very encouraging of his teaching[272] and on 12 October 2018 (only 5 days before Mr Burke filed this Application), Professor Tam sent him a voucher for $150 to acknowledge him being in the "top 20" of postgraduate teaching.[273]

1. On 16 October 2018 at 9.11am, Professor Rhodes emailed Mr Burke confirming his preparedness to offer casual teaching to Mr Burke. He indicated, amongst other matters:

"During our meeting, and as Leona had set out in her email to you on 24 August 2018, I mentioned that whilst you were not going to be asked to coordinate the subject in the Summer session, the Faculty was still happy to offer you casual work teaching the Pricing subject. During our meeting you refused to consider teaching into the subject in the upcoming summer session, unless you were also employed as the subject coordinator. I note that the School retains the discretion to appoint and vary course coordinators as it sees appropriate, from time to time. I also point out this subject has never run previously in the new Summer session.

As I said previously, the School very much appreciates the work you had done and contributions you have made to the Faculty, which is why we hoped that you would continue to teach for the School on the upcoming Pricing subject.

Further, whilst the School will not be offering you casual shifts to coordinate the Pricing subject in the same subject in that session. I note that Leona has also tried to understand from you whether you are interesting in teaching into other subjects.

Whilst I had indicated that we would not be asking you to teach on the upcoming Pricing subject, this was because you had indicated you were not interested in doing this. If that is no longer the case, we are happy to extend this offer of casual teaching work to you, again, for the Pricing subject in this upcoming summer session. Further, we are happy to discuss whether there are any other opportunities for you to teach as a casual in other subjects across the School. Please let me know if you wish to engage in such casual teaching work.

I am happy to discuss any of the above further in our next meeting and hope that the School and students can continue to benefit from your contributions."[274]

95. However, Mr Burke did not regard Professor Rhodes' offer as being one he could reasonably accept.[275]

"But you didn't accept the offer. You filed the unfair dismissal claim instead?---Yes. Because of that reason. It was a diminished role."[276]

97. Professor Rhodes emailed Mr Burke on 24 October 2018 offering to schedule a meeting on return from an overseas trip for 1.00pm on 13 November 2018 to discuss any concerns. [277]

98. Professor Rhodes was notified by the Fair Work Commission later that day (at 5.53pm) that an Application Alleging Unfair Dismissal had been filed by Mr Burke on 17 October 2018. [278]

99. On 26 October 2018 at 11.18am, Mr Burke acknowledged Professor Rhodes' email of 24 October 2018 and said "Thanks Carl".[279]

1. The conciliation of the Unfair Dismissal Application occurred by telephone on 13 November 2018. Following that conciliation, UTS wrote to Mr Burke extending the previous offer made in Professor Rhodes' email of 16 October 2018 to teach in Pricing and Revenue Management (24760). The subject outline was attached to the letter, and it set out the casual shifts that he was being offered, being:

"● 2.00pm-5.00pm, 7 December 2018: Applying the Basic Pricing Methods and Understanding Margin Arithmetic; Pricing a Complex Event.

● 2.00pm-5.00pm, 14 December 2018: Pricing a New Product.

● 2.00pm-5.00pm, 25 January 2019: Pricing a Consumer Packaged Good.

● 2.00pm-5.00pm, 1 February 2019: Pricing a B2B Product.

● 6.00pm-9.00pm, 15 February 2019: Pricing a Consumer Durable."[280]

101. Professor Tam, indicated in that letter that "If you wish to accept these shifts, please advise me within the next 7 days, by no later than 20 November 2018, and we will issue you with a casual contract." UTS also reiterated that 'the Business School is happy to consider you for casual teaching in other suitable subjects' and invited him to let Professor Tam know whether there were any Department of Marketing subjects that he would be interested in for teaching or tutorial work in 2019. [281]

Can you please send through the Coursepack and other material, as well as the textbook for review.

Thank you for your email. The materials are currently under review. Subsequent to a contract being signed, we can organize to send you the materials. There will be plenty of time for you to prepare for delivery the classes.

1. On 16 November 2018, Mr Burke wrote to Professor Alexander, Deputy Vice Chancellor (Education and Students) seeking her intervention because:

1. To accept to teach an inferior version of PG Pricing..."[283]

105. Importantly, it was Mr Burke's decision whether to accept the offer of teaching not UTS.[284]

1. Professor Alexander responded to Mr Burke in a detailed way on 16 November 2018 after investigating the issues raised and reviewing the proposed subject outline but could not "see a compelling reason to seek overturn the decision made by the faculty's courses committee or faculty board". She says:

"I am told that you have been offered a casual teaching role on the subject which I do hope you will give strong consideration to accepting..."

1. Professor Alexander also refers him to the process for staff related grievances should he wish to take it further. Mr Burke responds to Professor Alexander on 18 November 2018 and says that "had a look at the grievance process and it will not provide any benefit for me."
2. On 19 November 2018, Mr Burke emailed Dean Earley, the Dean of UTS Business School, seeking "a genuine apology and be converted to part-time if necessary, and allow me to continue coordinating and teaching pricing" and stated:

"They have offered me to teach what I believe to be a massively altered inferior version of a subject including the removal of the real client projects, but not the coordination."

1. Later that day, Dean Earley responded to Mr Burke offering to meet with him to discuss his concerns but indicated that:

"the authority and decisions made by the department are reasonable, appropriate and within their scope of decision-making. While this may be disappointing news, I appreciate your inputs into the education of our students and I understand that you will be continuing some work with the university as a casual academic in the near future."[285]

110. On 20 November 2018, UTS received a response to this letter from Mr Burke's lawyer indicating that his client ("refused to accept a diminished role of only teaching and not coordinating the Pricing and Revenue Management subject").[286]

1. None of these actions by UTS suggest that they did not wish to engage Mr Burke in further employment. Indeed, it is difficult to understand what more UTS could have done to have Mr Burke teach:
   • (a) Professor Morrison, Head of Marketing of the UTS Business School, asked if he would be prepared to teach postgraduate pricing in the Summer Session;
   • (b) Professor Tam, the successor to Professor Morrison, asked him to teach postgraduate pricing in the Summer Session;
   • (c) Professor Rhodes, the Deputy Dean of the UTS Business School asked him to teach postgraduate pricing in the Summer Session and to discuss teaching other subjects if he wished, as well as having ongoing dialogue about his concerns;
   • (d) Professor Alexander, Deputy Vice Chancellor (Education and Students) of UTS, also encouraged him to teach postgraduate pricing in the Summer Session, reviewed and responded in detail to his concerns about the subject outline and offered him access to the grievance procedure if his concerns were unresolved;
   • (e) Professor Early the Dean of the UTS Business School also made it clear that he understood Mr Burke was going to teach.

1. Mr Burke contends that he was "dismissed" because he was demoted in his employment. The position of UTS is that Mr Burke was not demoted.
2. The Macquarie Dictionary defines "demote" as follows:

"to reduce to a lower grade or class (opposed to promote)."

1. There was no change to Mr Burke's contract to reduce his grade or rate of pay.
2. Mr Burke continued to be employed and paid as at the alleged date of dismissal until such time as that contract expired due to the effluxion of time.

116. The contract which was to commence in November was cancelled in accordance with the terms upon which it had been offered (if UTS did not decide another coordinator would be appointed or if Mr Burke decided not to teach the subject).[287]

117. In any event, the rate for "lecturing" and "other academic activity - subject coordination" as prescribed in Schedule 2 of the Agreement, are both calculated on the same grade using Level A step 3 (as referred to in note 3 found at the end of page 54 of the Agreement).[288]

1. As set out in the statement of Professor Rhodes had Mr Burke accepted the offer to teach his remuneration would have been higher not lower:

"(e) Subject coordination tasks are paid at a significantly lower hourly rate ($65.35) compared to lecturing (about $263.98), and are therefore less remunerative. Accordingly, the offer of additional lecturing also offered the potential for increased remuneration.

(f) The teaching that was offered to Mr Burke over the Summer Session involved additional work over Summer that he had never done before (Pricing had traditionally only been offered to students in the Autumn semester).

(g) The work being offered would have meant that Mr Burke's remuneration from UTS would have been substantially higher than in previous years as he had not previously taught in the Summer Session."[289]

119. Mr Burke's remuneration for coordination of post graduate pricing in the Summer Session, as set out in the contract, would have been $2,450.25.[290] On Mr Burke's own estimation, he would have earned considerably more if he accepted the offer to teach the subject ($3,959.70).[291]

1. The Application should be dismissed because either Mr Burke is not protected from unfair dismissal because he has not completed a period of employment with UTS of at least the minimum employment period, or, Mr Burke was not dismissed.

[35] UTS' further submissions were as follows,

1. The Applicant filed 'Applicant's closing submissions' following the adjournment of the proceedings; the decision on the jurisdictional issues having been reserved. These 'closing submissions' were submitted without leave of the Commission and without seeking the Respondent's consent. Leave was given by the Commission to the Respondent to put submissions in response.
2. We note that the Applicant proposes a very detailed chronology which cannot be engaged at this late stage which appears to be based on the Applicant's proposed facts. This document does not reflect agreed facts and is no substitute for the evidence itself. For example, the first point in paragraph 4 of the Applicant's Closing Submissions refers to the Applicant teaching and coordinating the pricing subjects from 2011 but this is inconsistent with the Applicant's own evidence: see Annexure 1 to Exhibit 7

1. Until receipt of the 'Applicant's Closing Submissions', the Respondent had understood that the date of dismissal being alleged was 16 October 2018. This is set out in the Applicant's Unfair Dismissal Application in answer to question 1.3 "what Date did your dismissal take effect?" which was answered "16/10/2018 Coordination for Summer postgraduate pricing contract cancelled."
2. In the 'Applicant's Closing Submissions' at paragraph 1(a), it is now put that the date of the dismissal is now an issue to be determined by the Commission. The Applicant should not be permitted to change such a significant part of his case at this time particularly when the proceedings have concluded.
3. The Applicant now alleges that 27 September 2018 was the date of his alleged dismissal. He then advances a case that Professor Rhodes email of that date, indicating that he would not be offered teaching in Summer Session, was a dismissal.
4. This contention, however, ignores the evidence given by Professor Rhodes who explained that the email was written in the context of the Applicant stating that he was only prepared to accept the offer of teaching in circumstances where there was also an offer of coordination duties. As Professor Rhodes, and numerous other senior staff of the Respondent, have made clear to the Applicant they had wanted him to accept their offer to teach in the Summer Session.
5. If there was any doubt about this, it would certainly have been dispelled by Professor Rhodes' email of 16 October 2018 (the day before the Applicant filed his Application alleging unfair dismissal) making it clear that the Respondent was prepared to offer him teaching work not only in pricing but even in other subjects.

8. Indeed, the Applicant accepts that there was an offer of casual teaching work from Professor Rhodes but he "did not regard Professor Rhodes' offer being one that I could reasonably accept"[292]

1. As the Respondent has previously submitted, the Applicant was not only actually employed when he claims to have been dismissed but he was being offered further teaching work which he refused.
2. It is important to observe that the Applicant's claim is not being pursued as a constructive dismissal under s.386(1)(a) of the FW Act (nor could it having regard to City of Sydney RSL & Community Club Limited v Roxana Balgowan) but whether he was dismissed within the meaning of s.386(1)(b) of the FW Act. When there is a current contract in place and future work is being offered there simply cannot be a dismissal within the meaning of s.386(a) of the FW Act.FN See Zhou v Central Capital [2018] FWC 6747
3. The Applicant's alternate argument was that he was demoted and therefore dismissed.
4. The Respondent submits that there was no demotion on 16 October 2018 as alleged. Contract #1333911, under which the Applicant was employed at the time, and which continued to 18 November 2018 was not changed at all. This Contract was honoured by the Respondent and it continued to pay the Applicant pursuant to it until 18 November 2018 (well after the alleged date of dismissal). On any view of it, leaving a contract as it is, cannot constitute a demotion.

13. In any event, it is difficult to imagine how the concept of a demotion could ever be applicable to casual employment as, in the law of contract, casual employment is on a per engagement basis.[293] The Applicant provides no authorities that would support the view that a casual employee could be demoted at law and the Respondent is not aware of any such authority.

1. There was no change to the Applicant's existing casual contract, or potential future casual contracts to reduce his grade or rate of pay. The Applicant was, however, being offered a contract to teach which involved work at the same grade and a not inferior rate of pay than for coordinating duties. In fact, the rate for lecturing is considerably higher than for coordination duties but it is accepted that the rate for lecturing assumes some preparation time. There is no disagreement that the hourly rate has not been reduced; see paragraph 22 of the Applicants proposed facts-Exhibit 11. As set out in Schedule B of the University of Technology Sydney Academic Staff Agreement 2014 at note (3) the rates for 'lecturing' and the rates for 'other academic activity-coordination' are both calculated by using level B, step 2, as defined in Schedule 3.
2. The Respondent submits that the Applicant could earn more as a result of being offered teaching hours than would have been available if performing coordinating duties. While the Applicant takes issue about how his pay may be impacted when speculating as to what contracts may or may not be offered in the future, this does not amount to a demotion.
3. Minimum employment period
4. At paragraph 14 of the Closing Submission the Applicant seeks to make observations about the casual contract. These observations should not be permitted. If the Applicant wanted to advance a case that the Applicant did not understand that he was engaged pursuant to a casual contract it could have done so during the evidence.
5. When regard is had to the evidence, while the Applicant appeared unhappy that he would be engaged on a casual basis and did not consider that the Respondent gave him the commitment to further engagements that he desired, he was never under any doubt, from 2015, that his employment was only ever offered on a casual basis. The Applicant conceded this on numerous occasions throughout his evidence. The Conditions of Employment of casual contracts were clear and the Applicant had been engaged under numerous such contracts. He was also clearly engaged and paid in accordance with the UTS Academic Staff Enterprise Agreement 2014. So much is clear even from the Applicant's Proposed Facts.
6. The Respondent contends that the Applicant's service was not 'continuous' for the purposes of s.384 of the FW Act when he alleges, contrary to the position of the Respondent, that he was dismissed.
7. The Applicant argues that, despite his designation as a casual employee, that he was a part time employee. The Respondent relies on previous submissions in this regard.
8. The Respondent also submits that, if the Applicant was considered to be a part-time employee, he would also not satisfy the minimum employment period for part-time employees prescribed by the FW Act.
9. If the Applicant was correct in his argument that he was a part time employee, he would have to satisfy the Commission under s.384 of the FW Act that he was employed on a 'continuous' part time basis during the six months preceding the alleged dismissal occurring on 16 October 2018 (the six months being the period 16 April 2018 to 16 October 2018). This would require him to establish that there were no breaks in service other than of the kinds specified in s.22 of the FW Act.
10. During this six month period the Applicant had been engaged under two relevant contracts. The first contract was the Autumn session contract (19 February to 8 July 2018). After a break, the second contract was issued for coordination duties for the Summer session (18 July 2018 to 18 November 2018 for a total of one hour of work for the whole of that period).
11. The Respondent submits that the one hour contract for coordination would not constitute part time employment. If this contract was not counted as service as apart time employee, this would mean that the Applicant would have only worked between 16 April and 8 July 2018-well short of the requisite six month period.
12. Also, to be considered a part-time employee, the Applicant's contracted one hour would not go remotely close to meeting the minimum hours required of part time employees in clause 41.2.2 of the University of Technology Sydney Academic Staff Agreement 2014 (generally at least 0.2 of a full time load).
13. However, even if contrary to the submission of the Respondent, this one hour contract is considered to constitute part time employment and therefore count as service, there was not 'continuous' service for the purposes of the FW Act as there was a break between the contracts for reasons other than those set out in s.22 of the FW Act.
14. In relation to the alternative argument that the applicant was otherwise a casual employee engaged on a regular systematic basis, the applicant has referred to various authorities which base their decisions on the Full Bench decision in Shortland v Smiths Snack Food Co Ltd (2010) FWAFB 5709 ('Shortland') or cases which rely upon it, like Price v United Management Services (2013) FWC 4227 ('Price').
15. The Respondent has referred in previous submissions to the decision of DP McCarthy in Lesley Holland v UGL Resources Pty Ltd t/a UGL Resources (2012) FWA 3453 ('Holland'). That decision specifically considers the need for 'continuous' service as set out in s.384 of the FW Act even in circumstances where there may be contiguous periods of casual employment. In this regard, the decision emphasises the need to consider the circumstances of the engagements
16. DP McCarthy distinguishes the circumstances of Holland from those considered in Shortland given the significantly larger breaks involved. In particular His Honour states
17. 'There, the applicant had been employed almost every week or over three years. His only time off was for four isolated weeks, presumably as a period of authorised absence. Shortland sustained an injury in 2009 and had been on workers compensation or other absences since that time until his employment was terminated.'
18. Like in Holland, the Applicant's periods of work and the period of absences are significantly different from Shortland and Price. The substantial breaks between the Applicant's engagements of over 30 weeks, combined with the provisions in the contract which made it clear that he is not entitled to further engagements.
19. The Holland decision also draws attention to the importance of the words in s.384 of the FW Act to service 'at a particular time' that being the service under the one hour contract for coordination duties between 18 July and 18 November 2018. As previously submitted, there was nothing regular and systematic about that contract. It was a one off contract that had never been offered before, nor had any other contract been offered before for one hour or for work at that time of year.
20. The Applicant appears to make much of the fact that he continued to use his email address even between contracts. Details of all the emails are not in evidence and care has to be taken in making any assumptions in relation to them. These emails cannot be counted towards the Applicant's 'period of employment' for the purposes of s384 of the FW Act as it is only the periods when the Applicant was actually employed which are relevant. Outside of the casual contracts that had been issued by the Respondent, the various elements that could found a contract of employment are lacking, such as offers and acceptance of employment at those times, an intention to create a legal relationship and that the contract be supported by valuable consideration: see the Full Bench decision in Fox v Kangan Batman TAFE; Print S0253

1. It is respectfully submitted that he Application should be dismissed as the Applicant has not completed the minimum employment period nor was he dismissed as he alleges.

[36] Determining the MEP Objection also requires a consideration of the status of the Applicant's employment. As can be seen from the table above at least since the Autumn Term in 2015 the Applicant's employment was characterised by a period when he was teaching and coordinating the Pricing subject (usually for around a 20 week period, teaching on Friday nights once a week) followed by a lengthy break usually in excess of 30 weeks.

[37] The exception to this pattern is that at the end of the Autumn Term 2018 the Applicant did not take his usual break of in excess of 30 weeks, but rather after a shorter break he was placed "back on the books" and paid 1 hour's pay over a lengthy period of time. The primary purpose of which was to allow the Applicant continuing UTS IT access. Payments were spread out over the Spring Term.

[38] I accept that during each term time the applicant was employed on a regular and systematic basis. During term time the Applicant was a casual employee engaged on a regular and systematic basis. He was paid a casual loading of 25% in lieu of other benefits that non-casuals are entitled to.

[39] Alternatively, it was argued that the Applicant was, during term time, a part-time employee. If so he was engaged on a fixed term basis. There are indicia either way. On one analysis there was a casual relationship because that is the basis upon which it was paid and how the parties characterised it in their contractual documents.

[40] Against the notion that the employment was ongoing is the fact that, having regard to the decision in WorkPac,[294] it may be that the regular and systematic casual characterisation is the correct one because it is clear that the work was not of an indefinite term subject to rights of termination. However, because of what I say below about the breaks between term times not very much turns on a final determination about the nature or status of the Applicant's employment.

[41] This is because I'm not satisfied that the break between each term did not cause there to be a break in continuity of service. The Applicant runs his own business called ................ under which he provides pricing education and consulting services. It is in this pursuit that he is engaged during the long term break periods.

[42] Despite the fact that at the end of each term (or at some point thereafter):

1. there was a discussion about the Autumn term in the following year; and
2. the Applicant and UTS (at least since 2015) agreed that the Applicant would return the following year,

there was still a substantial break in service between each engagement. Each engagement, each year was separately contracted. The teaching and the coordination too were separately contracted. In the break periods, the Applicant did not render service for which he was paid, nor was he paid, during those long breaks. He was running his own business.

[43] The meaning of continuous service is addressed in s.22 of the FW Act. Relevantly for present purposes s.22 provides that,

"22 Meanings of service and continuous service

(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period ) that does not count as service because of subsection (2).

(b) any period of unpaid leave or unpaid authorised absence, other than:

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

(c) any other period of a kind prescribed by the regulations.

(3) An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee's continuous service."

[44] In the present matter the lengthy breaks in term time cannot be characterised as "authorised absences". They are not periods of unpaid leave.

[45] Each time term ended the contract of employment ceased. This was not "downtime". It was a break in the continuity of service to enable the Applicant to pursue his own personal business interests. During those breaks the Applicant did not perform work for UTS in respect of which he was paid. His continuing use of email during this time is irrelevant. It is not evidence of the existence of a wages/work bargain continuing between the Applicant and UTS.

[46] For this reason even if I treat the period August - November 2018 as an employment period it does not meet the MEP because of the break in service following the end of teaching in July 2018.

[47] However, noting that all that was occurring in the period August - November 2018 were payments to the Applicant it is arguable that, to consider that period as a period of employment is a fiction. The payments were in advance of the coordination contract used to facilitate the Applicant's continuing access to the UTS IT system The payments were an administrative convenience not made in respect of work undertaken in that period.

[48] Properly considered, it is more likely than not that the employment ended around in July 2018 when the Applicant finished the Autumn Term 2018. If that is the case then his UFD application is out of time. If an extension of time was granted the employment period would only then be the Autumn 2018 term time. That is not sufficient to meet the MEP because the break from July 2017 to the Autumn Term in 2018 broke continuity of service.

[49] For these reasons, on any analysis, I am not satisfied that the Applicant meets the MEP, no matter what dates are used.

[50] If I am wrong about whether the Applicant served the MEP then it becomes necessary for me to decide whether the Applicant was dismissed. Having regard to the factual matrix I'm not satisfied that the Applicant was dismissed as that term is understood pursuant to s.386(1)(a) of the FW Act. There is nothing in the factual matrix which evidences that UTS terminated the employment relationship or that it ever intended to do so. Nor was there anything in the conduct of UTS that had the probable result of bringing the employment relationship to an end.

[51] The question then becomes whether the Applicant was forced to resign "because of conduct, or a course of conduct, engaged in by his ... employer" (s.386(1)(b) FW Act). While I accept that the Applicant never used the word "resign" (or anything like it) it is difficult to see how the Applicant can establish that there was a dismissal unless he says that, by reason of the conduct of UTS, he had no option but to resign.

[52] At all times, during the employment relationship between the Applicant and UTS, teaching and coordination were contracted separately.

[53] On 27 September 2018 UTS decided not to offer the Applicant coordination duties. He was only to be offered teaching the Pricing subject. On 16 October 2018 UTS confirmed an offer that comprised only of casual teaching in Pricing for the Summer Term. UTS also indicated a preparedness to discuss other subjects with the Applicant.

[54] It is important to note that nothing in the conduct of UTS reflected, on its behalf, an adverse view about the performance of the Applicant. On the contrary, at all times and still to this day, the Applicant is held in high regard. There is no doubt that he is an excellent teacher and was a very competent coordinator of the Pricing subject. The decision by UTS to only offer teaching reflected its desire that, for the most part, subject coordination should not be undertaken by casual employees. UTS was clear in making this known to the Applicant. To the extent that the Applicant treated the proposed removal of coordination as a reflection upon his performance or standing, he was being precious.

[55] It seems that the Applicant treated the act of removing coordination duties, and the events leading up to it, as the conduct or course of conduct engaged in by UTS that forced him to resign (or having been terminated).

[56] Having had the offer of only teaching confirmed on 16 October 2018 the Applicant commenced the present UFD Application on 18 October 2018.

[57] However, at all relevant times on and before 16 October 2018 UTS was offering the Applicant teaching roles. In fact, even as late as 13 November 2018 UTS continued to offer the Applicant teaching roles.

[58] On any analysis the factual circumstances in this matter do not give rise to a finding that the Applicant was dismissed by UTS pursuant to s.386(1)(a).

[59] However, it is necessary to determine whether the conduct of UTS forced the Applicant to resign. It is important to note that the Commission is not required to determine if UTS repudiated the Applicant's contract. As a casual employee the concept of repudiation is foreign.[295]

[60] In order to be satisfied that the Applicant was forced to resign I must be satisfied, based on an objective analysis, the conduct of UTS had the probable result that the Applicant would resign or that he had no effective or real choice but to do so.[296] No doubt the Applicant felt that he had no choice in the matter, however, his subjective view is not relevant.

[61] I am not satisfied that an objective analysis of the factual matrix left the Applicant with no choice but to resign or that it was the probable result of the conduct of UTS. On 27 October 2018, 16 October 2018 and even as at 13 November 2018 UTS very clearly demonstrated that it wanted the employment relationship to continue. It was prepared to be engaged in an ongoing dialogue with the Applicant about teaching in the Pricing subject and other subjects. Despite those offers the Applicant acted pre-emptively in commencing his UFD Application on 18 October 2018.

[62] The decision of UTS to not offer coordination duties (communicated as early as 24 August 2018) was not an act that could, objectively viewed, be characterised as forcing the Applicant to resign (or otherwise end the employment relationship).

[63] Had the Applicant engaged with UTS about its preparedness for him to teach in subjects in addition to the Pricing subject he could have been remunerated more advantageously. This is because subject coordination is paid at an hourly rate of $65.35, whereas lecturing is paid at around $263.98. Even agreeing to teach Pricing in the Summer Term and then Pricing in the Autumn Term would have seen the Applicant better off financially. This is because the Pricing subject was not previously taught in the Summer Term, but only in the Autumn Term.

[64] Because UTS provided the Applicant with an opportunity to earn more than he would have by offering multiple teaching opportunities as compared with the coordination and teaching role I'm not satisfied that, if the removal of the coordination role is to be considered a demotion, it involved a significant reduction in the Applicant's remuneration (s.386(2)(c)).

[65] I'm also not satisfied that the removal of the coordination duties involved a significant reduction in duties. It was an adjunct role, necessary, but subordinate to the teaching role. The relative importance is reflected in the payment schedule for teaching as compared with coordination. In his own mind, and in these proceedings, the Applicant elevated the status of the coordination role beyond its actual importance. I have had regard to the Applicant's characterisation of the coordination duties.[297] Coordination does not require any particular skill or competency. That is to be contrasted with the in-depth subject matter knowledge that is required to teach a subject. This leads to a conclusion that the Applicant was overly concerned with or attached to the notion of being recognised as a "Coordinator".

[66] In any case it was always the intention of UTS that the Applicant remain an employee of UTS following the removal of the coordination duties (which the Applicant characterises as something akin to a demotion) (s.386(2)(c)(i)). A proper application of s.386 of the FW Act leads to a conclusion that the Applicant was not dismissed.

[67] There was nothing in the decision of UTS (to prefer that ongoing employees undertake coordination duties) that was unreasonable. As stated above, it was not a reflection on the coordination skills or ability of the Applicant. It was entirely an operational decision that was rightly within the remit of UTS to make. The Commission should not lightly interfere with the employer's right to manage its business[298] and I decline to do so.

[68] For the reasons above I am not satisfied that the Most Recent Break Period should be counted as service. Rather there was, between July 2018 and August 2018 a break in the Applicant's continuity of service. Consequently, by the time the Applicant treated himself as having been dismissed by UTS (16 October 2018) he had only worked (in that most recent period) for a period of around 10 weeks. That period does not meet the MEP.

[69] Consequently, the Commission, as presently constituted, is not satisfied that the Applicant was protected from unfair dismissal because he did not complete the MEP. Consequently, his application for an unfair dismissal remedy must be dismissed.

[70] An order will be issued with this decision.

Applicant's Closing Submissions filed on 1 March 2018.

Respondent's Closing Submissions filed on 11 March 2018.

[1] Witness Statement of John Burke dated 3 January 2019 (Burke Statement) [10(f)].

[4] Page 2 of the Annexure to Burke Statement.

[5] Page 9 of Annexure to Burke Statement.

[6] Page 29 of Annexure to Burke Statement.

[7] Page 19 of Annexure to Burke Statement.

[8] Page 48 of Annexure to Burke Statement.

[9] Page 52 of Annexure to Burke Statement.

[10] Page 54 of Annexure to Burke Statement.

[11] Page 60 of Annexure to Burke Statement.

[12] Page 68 of Annexure to Burke Statement.

[13] Page 63 of Annexure to Burke Statement.

[16] Annexure to Burke Statement, JB10.

[17] Statement of Professor Carl Rhodes signed 11 December 2018 (Rhodes Statement), [6].

[18] Schedule 4 Activity Descriptors - Casual Academic Staff, item 3.

[19] Page 138 of Annexure to Burke Statement.

[20] Page 135 - 136 of Annexure to Burke Statement.

[21] Page 135 of Annexure to Burke Statement.

[22] Page 139 of Annexure to Burke Statement.

[23] Pages 141 and 144 of Annexure to Burke Statement.

[27] Annexure to Burke Statement Page 253.

[29] Annexure to Burke Statement Page 253 - 255.

[31] Page 172 of Annexure to Burke Statement.

[32] Page 172 of Annexure to Burke Statement.

[35] Page 518 of Annexure to Burke Statement.

[36] Page 181 of Annexure to Burke Statement.

[37] Burke Statement Annexure page 179.

[38] Page 202 of Annexure to Burke Statement.

[39] Burke Statement Annexure page 187.

[40] Statement of John Burke at page 187.

[42] Burke Statement Annexure JB19 page 186.

[43] Burke Statement Annexure JB19 page 185.

[44] Burke Statement Annexure JB19 pages 185-186.

[45] Burke Statement, Annexure JB19 page 184

[46] Burke Statement, Annexure page 182

[48] Statement in Reply of Professor Carl Rhodes signed 14 January 2019 (Reply Rhodes Statement) [6]

[49] Burke Statement, Annexure page 517

[50] Burke Statement, Annexure page 210

[51] Burke Statement, Annexure page 210

[52] Burke Statement, Annexure page 216.

[53] Page 219 of Annexure to Burke Statement.

[54] Page 227 of Annexure to Burke Statement.

[55] Page 503 of Annexure to Burke Statement.

[56] Page 68 of Annexure to Burke Statement.

[57] Page 498 of Annexure to Burke Statement.

[58] Burke Statement, Annexure JB30 page 234.

[59] Burke Statement Annexure pages 233 - 234.

[60] Burke Statement Annexure page 233.

[61] Burke Statement Annexure page 237.

[62] Page 502 of Annexure to Burke Statement.

[63] Page 503 of Annexure to Burke Statement.

[64] Burke Statement Annexure page 239.

[65] Burke Statement Annexure page 241.

[66] Production Documents Schedule 2(d) page 1.

[67] Production Documents Schedule 2(d) page 3.

[68] Burke Statement Annexure Page 242.

[69] Burke Statement Annexure Page 242.

[70] Burke Statement Annexure Page 244.

[71] Page 246 of Annexure to Burke Statement.

[72] Burke Statement Annexure pages 481 - 482.

[73] Burke Statement [148] and Annexure pages 490 - 497.

[74] Burke Statement Annexure page 265.

[75] Burke Statement Annexure page 266.

[76] Statement of John Burke signed 3 January 2019, paragraph [63].

[77] Production Documents Schedule 2(d) pages 69.

[78] Burke Statement Annexure page 272.

[79] Production Documents Schedule 2(d) pages 76.

[81] Page 275 of Annexure to Burke Statement.

[82] Production Documents Schedule 2(d) page 110.

[83] Burke Statement Annexure page 279.

[84] Applicant's Further Tender Bundle, page 1.

[85] Applicant's Further Tender Bundle, pages 3 - 11.

[86] Applicant's Further Tender Bundle, page 12.

[87] Statement of Professor Rhodes dated 14 January 2019, CR3 Page 9.

[88] Applicant's Further Tender Bundle, page 16.

[89] Applicant's Further Tender Bundle, page 15.

[90] Applicant's Further Tender Bundle, page 14.

[91] Applicant's Further Tender Bundle, page 14.

[92] Applicant's Further Tender Bundle, page 18.

[93] Applicant's Further Tender Bundle, pages 19 and 20.

[94] Applicant's Further Tender Bundle, pages 21.

[95] Burke Statement Annexure page 287.

[96] Burke Statement Annexure page 286.

[97] Production Documents Schedule 2(a) page 227.

[98] Burke Statement Annexure page 286.

[99] Productions Documents Schedule 2(a) page 87.

[100] Production Documents Schedule 2(d) page 123.

[101] Production Documents Schedule 2(d) page 124.

[102] Production Documents Schedule 2(a) page 226.

[103] Burke Statement Annexure page 291.

[104] Production Documents Schedule 2(d) page 129.

[105] Production Documents Schedule 2(a) page 143.

[107] Burke Statement Annexure page 305.

[108] Rhodes Statement, paragraph 14, Pages 307 and 308 of the Annexure to Burke Statement.

[109] Pages 307 and 308 of the Annexure to Burke Statement.

[110] Rhodes Statement, paragraph 41(f).

[111] Production Documents Schedule 2(a) page 83.

[112] Production Documents Schedule 2(a) page 82.

[113] Burke Statement Annexure page 317.

[114] Burke Statement Annexure pages 318 - 326.

[118] Burke Statement Annexure page 315.

[119] Production Documents Schedule 2(d) page 189.

[120] Production Documents Schedule 2(a) page 75.

[121] Production Documents Schedule 2(b) page 278.

[122] Production Documents Schedule 2(a) page 73.

[123] Production Documents Schedule 2(a) page 231.

[124] Production Documents Schedule 2(a) page 231.

[125] Production Documents Schedule 2(a) page 230.

[126] Production Documents Schedule 2(a) page 71.

[127] Production Documents Schedule 2(a) page 71.

[128] Production Documents Schedule 2(a) page 70.

[129] Production Documents Schedule 2(b) page 106.

[130] Production Documents Schedule 2(a) page 67.

[131] Production Documents Schedule 2(a) page 62.

[132] Production Documents Schedule 2(a) page 61.

[133] Production Documents Schedule 2(a) page 60.

[134] Production Documents Schedule 2(a) page 59.

[135] Production Documents Schedule 2(a) page 59.

[136] Production Documents Schedule 2(a) page 58.

[137] Production Documents Schedule 2(d) page 199.

[138] Production Documents Schedule 2(d) page 200.

[139] Burke Statement Annexure page 353 & 354.

[140] Burke Statement Annexure page 339.

[141] Burke Statement Annexure pages 334.

[142] Production Documents Schedule 2(b) page 153.

[143] Production Documents Schedule 2(a) page 52.

[144] Production Documents Schedule 2(a) page 51.

[145] Production Documents Schedule 2(c) page 19.

[146] Production Documents Schedule 2(b) page 28.

[147] Production Documents Schedule 2(b) page 33.

[148] Production Documents Schedule 2(b) page 32.

[149] Production Documents Schedule 2(b) page 32.

[150] Production Documents Schedule 2(b) page 32.

[151] Burke Statement Annexure page 332.

[152] Production Documents Schedule 2(a) pages 40 - 41.

[153] Production Documents Schedule 2(a) pages 38 - 39.

[154] Production Documents Schedule 2(a) page 38.

[155] Burke Statement Annexure page 332.

[156] Production Documents Schedule 2(a) pages 37 - 38.

[157] Production Documents Schedule 2(a) page 37.

[158] Production Documents Schedule 2(a) pages 36 - 37.

[159] Production Documents Schedule 2(a) pages 36.

[160] Production Documents Schedule 2(a) pages 35.

[162] Burke Statement Annexure page 329.

[163] Production Documents Schedule 2(d) pages 203.

[164] Production Documents Schedule 2(b) pages 323.

[167] Burke Statement Annexure page 329.

[168] Burke Statement Annexure page 328.

[170] Burke Statement Annexure page 438.

[172] Production Documents Schedule 2(a) pages 217 - 225.

[173] Burke Statement Annexure page 521.

[176] Supplementary Statement in Reply of Professor Rhodes dated 18 January 2019, CR10.

[177] Production Documents Schedule 2(c) pages 253.

[178] The email chain of 14 November 2018 is at annexure CR10 of Statement in Reply of Professor Carl Rhodes signed 18 January 2019.

[183] Production Documents Schedule 2(a) pages 258.

[185] Production Documents Schedule 2(a) pages 304.

[187] Witness statement of John Burke dated 3 January 2019 (Burke Statement) at [10], [11], [19] and [20] (for example) 2 Burke Statement at [15] .

[188] Burke Statement at [19] and [20].

[190] Burke Statement [55] to [59] .

[191] Burke Statement [66] to [68] and JB-36.

[192] Burke Statement [74] to [76] .

[193] Burke Statement [80] and JB-43.

[194] Burke Statement [92] to [103] .

[195] Burke Statement [107] to [109].

[196] Respondent's Outline of Submissions [13].

[197] Respondent's Outline of Submissions [6] - [8].

[198] Respondent's Outline of Submissions [17] - [18].

[199] See sections 383 and 384 of the Fair Work Act 2009 (Cth) (FW Act).

[200] Section 384(2)(a) of the FW Act.

[201] See WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPack) at [169].

[206] WorkPac at [178] to [179].

[208] See, for example, Burke Statement [21] to [23] .

[209] See, for example, Burke Statement [42].

[212] Thi Nho Tran v Bupa Dental Corporation Pty Ltd [2018] FWC 3237 at [78] citing O'Meara v Stanley Works Pty Ltd with authority.

[213] Respondent's Outline of Submissions at [11].

[214] Respondent's Outline of Submissions at [16].

[215] See, for example, Andrew Kenneth Charlton v Eastern Australia Airlines Pty Limited (C2006/2519) PR972773 (7 July 2006) .

[216] See, for example, Mulhallen v Roy Morgan Interviewing Services Pty Ltd [2017] FWC 1942 at [19].

[217] See for example, Burke Statement at [23].

[220] See Questions 1.2, 1.3 and 1.4 of the Unfair Dismissal Application. At 1.4 the Applicant writes "I am realty not sure what date to apply...".

[222] [2012] FWA 3453.

[223] [2010] FWCAFB 5709.

[229] Leslie Holland v UGL Resources Pty Ltd at [34].

[232] See Byrne v Australian Airlines Ltd (1995) 185 CLR at 465.

[235] Statement of John Burke at page 187.

[237] Statement of John Burke signed 3 January 2019, Annexure JB-19 page 186.

[238] Statement of John Burke signed 3 January 2019, Annexure JB-19 pages 185-186.

[239] Statement of John Burke, Annexure JB-19 pages 185 to 188.

[240] Statement in Reply of Professor Carl Rhodes signed 14 January 2019, paragraph 6.

[242] Attachment C to Professor Rhodes Statement.

[244] Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434.

[246] MacMahon Mining Services Pty Ltd v Williams [2010] FCA 1321.

[247] [2018] FCAFC 131.

[260] See CR2 of the Statement in Reply of Professor Rhodes.

[262] [2001] FCA 1589.

[263] [2016] FCCA 89 at [34].

[269] [2018] FWC 6747; [2019] FWCFBC23.

[271] Statement of John Burke signed 3 January 2019, Annexure JB30 page 234.

[273] Statement of John Burke signed 3 January 2019, paragraph 114.

[274] Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 33.

[275] Statement of John Burke signed 3 January 2019, paragraph 116.

[277] Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 35.

[282] The email chain of 14 November 2018 referred to at paragraphs 46 and 47 is outlined in annexure CR10 of Statement in Reply of Professor Carl Rhodes signed 18 January 2019.

[285] The email chain of 19 November 2018 at paragraphs 48 and 49 of the Statement of Facts is CR11 of the Supplementary Statement in Reply of Professor Carl Rhodes signed 18 January 2019.

[286] Statement of Professor Carl Rhodes signed 11 December 2018, paragraph 40.

[287] The rate for lecturing depends on the type of lecture. The post graduate pricing subject is classified as "Developed" whereas the undergraduate pricing subject is classified as "Basic".

[288] The rate for lecturing depends on the type of lecture. The post graduate pricing subject is classified as "Developed" whereas the undergraduate pricing subject is classified as "Basic". The hourly rate for lecturing is higher than for coordination (although it is effectively the same when regard is had to Schedule 4(i) which sets out assumed non-contract hours associated with each hour of delivery).

[289] Statement of Professor Carl Rhodes signed 11 December 2018, paragraphs 41(e), (f) and (g).

[293] Andrew Kim v ORC International Pty Ltd [2016] FWC 1029 at [47]; City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [27].

[294] WorkPac Pty Ltd v Skene [2018] FCAFC 131.

[295] Kim v ORC International Pty Ltd [2016] FWC 1029.

[296] O'Meara v Stanley Works Pty Ltd [2006] AIRC 496.

[297] See in particular para 23 of Exhibit 7.

[298] Australian Federated Union of Locomotive Employees v State Rail Authority of New South Wales (XPT Case) [1984] CthArbRp 432; (1984) 295 CAR 188, 191.

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