Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Susan Esther Benfell) v Department of Education and Training

Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Susan Esther Benfell) v Department of Education and Training - [2008] NSWIRComm 16 - NSWIRComm 2008 case summary — Zoe

[12]

1 The two matters that are the subject of these proceedings are: (i) a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ('the Act'); and (ii) an application under s 84 of the same Act alleging unfair dismissal. Both matters arise out of a decision taken by the Department of Education and Training ('the Department') not to assign any work as a teacher's aide (special) ('TAS') to Mrs Susan Benfell after the end of the 2006 school year. Mrs Benfell is a member of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the PSA' or 'the applicant'), a registered industrial organisation of employees whose rules permit it to enrol as members all persons employed by the Department as teachers' aides. Both the dispute notification and the application under s 84 were made by the PSA, the latter being on behalf of Mrs Benfell (see s 84(2)). 2 The dispute notification was lodged on 6 March 2007. It described the "question, dispute or difficulty" in the following terms: a. Sue Benfell was employed as a Teacher's Aide (Special) at Tumut Public School for 9 years 9 months and 25 days and was advised of NO work at the School in 2007. b. Up until Term 3 2006 Sue Benfell was working 45.25 hours per fortnight. In term 4 this was reduced to 23.20 hours per fortnight. There was NO consultation regarding the reduction and loss of hours. c. The usual practice regarding loss of hours in schools is through consultation and agreement of staff or last on first off principle. d. The Association has had discussions with the Department concerning the loss of hours for Sue Benfell, however, have failed to resolve the issue. 3 The remedy sought was that DET: (i) employ Ms Benfell as a teacher's aide special at the School from the beginning of the 2008 school year, on the basis that the available hours of work at the School would be fairly and equitably allocated as between her and other Teacher's Aide Specials who regularly worked at the School prior to the end of the 2006 school year; and (ii) pay Ms Benfell a sum of money equal to the amount of earnings foregone by her as a result of the failure of DET to allocate her any hours of work on a fair and equitable basis during the 2007 school year. 4 On 3 April 2007, the PSA filed the application under s 84 of the Act. In providing reasons for the application, reference was simply made to matter No IRC 272 of 2007, that is, the dispute notification. The primary remedy sought in the unfair dismissal application was reinstatement to Mrs Benfell's former position. In the alternative, the PSA sought an order for re-employment together with orders for the payment of remuneration (see s 89(3)) and continuity (see s 89(4)). 5 The two matters were joined. Conciliation by Tabbaa C had failed to resolve the issues in dispute. In August 2007, the Department filed contentions asserting that the Commission did not have jurisdiction to entertain the unfair dismissal application on the basis that Mrs Benfell had been engaged on a fixed term contract, which had expired by effluxion of time and, consequently, there had been no dismissal that would attract the Commission's jurisdiction. 6 In proceedings before Commissioner Tabbaa on 19 September 2007, the PSA made application to have the jurisdictional issue referred to the President of the Commission pursuant to s 193 of the Act to determine whether or not a Full Bench should deal with it. The reference was made on 21 September 2007. Subsequently, the President allocated both matters to a Full Bench. 7 In Notification under Section 130 by the PSA of a dispute with Department of Education and Training re loss of hours, Re [2007] NSWIRComm 284, a decision given on 19 November 2007, the Full Bench held as follows: [11] Here the Union must succeed in its challenge to the Department's motion, in our view, if it demonstrates that the Commission arguably has the power to grant the relief sought by the Union, in whole or in part, under the dispute proceedings (Pts 1 and 2 of Ch 3 of the Act). We do not agree with the Department's assertion that if its motion to strike out the s 84 proceedings is correct, it must be dealt with at the outset of the proceedings. This is because, if the determination of that issue cannot entirely extinguish any available basis for relief sought by the Union (even if that is because that relief is available under an alternative source of power), it is premature and inappropriate for adjudication at the threshold, having regard to the principles stated in Virtue . This conclusion is a fortiori when account is taken of the fact that the respective proceedings have been joined and a source of power to resolve the proceedings in Matter No IRC 272 of 2007 arises under Ch 3 of the Act. This latter consideration is important because of the significance of the Commission's dispute settling powers to the resolution of issues such as those arising in this matter. Dispute proceedings should not be diverted nor should the Commission's dispute resolution functions and powers be depreciated by reference to more specific powers available to the Commission under the Act which may intersect with part of the subject matter of those proceedings: Express Data (a Division of Dimension Data Australia Pty Ltd) v NUW [2005] NSWIRComm 140 at [7]. [12] Thus, in these proceedings, having regard to the point they have reached, the question remaining for the resolution of the strike out motion is whether the Commission has any arguable power (as here) under ss 136 or 137 of the Act to grant relief to the Union's member in these matters. If it does, then, on the principles in Virtue, the motion should be dismissed. [13] In our view, there is an arguable basis for concluding that the Commission has power to grant the relief claimed in this matter under Ch 3 of the Act, see, for example, the decision of Boland J in Police Association v NSW Police (No 2) (2005) 139 IR 103 and the principles espoused in Sydney Water v ASU (2005) 146 IR 388. [14] The Full Bench therefore orders that the Department's motion be dismissed…

[17]

13 The 2006 Appointment/Variation Form contained Mrs Benfell's personal details and other relevant information, including the name and address of the school at which Mrs Benfell was employed, namely, Tumut Public School. The Form referred to a "New Appointment" period for Mrs Benfell of 30 January 2006 until 21 December 2006 and indicated that Mrs Benfell's hours of work would be 50 per fortnight. The Form also had provision for a "reduction/increase" in hours and the period that the reduction/increase was to apply for. The Form was signed by "S Jenkins", Principal and under the words "Employee acknowledgement" Mrs Benfell signed the form and dated it "31/1/06". Immediately above the words "Employee acknowledgement" was the following instruction in bold type: Important details regarding your employment are contained on the attached sheets so you must read them before signing the acknowledgement below. 14 The reference to "attached sheets" on the Form was ostensibly a reference to a single page document entitled "Terms of Temporary Employment". The Terms provided, inter alia: 4. Cessation of employment This appointment is in accordance with the Guidelines for the Appointment of Temporary Non Teaching Staff in Schools for 2006 . Should the circumstances of this appointment change, you will be given as much notice as practicable before the change occurs or your employment is terminated. There is no guarantee or expectation of any further or on going temporary employment continuing beyond the end date as specified in the attached Appointment/Variation Form for Long Term Temporary Non Teaching Staff in Schools . Circumstances which may arise which would lead to the dispensing of the services of a temporary employee include, but are not limited to: a) the reason or purpose for employment is no longer necessary, e.g. the specified task or project is completed; b) the position is no longer temporarily vacant; c) additional assistance is no longer required; d) budget constraints including the termination of funding for the work; e) misconduct by the temporary employee; and f) poor or unsatisfactory performance by the temporary employee. If circumstances arise where the services of a temporary employee are dispensed with, the temporary employee will be given as much notice as practicable prior to the termination of the temporary employment. 15 The evidence about whether the "Terms of Temporary Employment" single sheet was attached to the Appointment/Variation Form signed by Mrs Benfell on 31 January 2006 was not entirely clear cut. Mrs Benfell equivocated between being sure the Terms were not attached to the 2006 Form to not recollecting whether she saw the Terms as an attachment. Mrs Benfell's evidence in cross examination by Mr P Ginters of counsel for the Department was as follows: Q. I think Mr Hatcher has taken you to this point. Under the employee acknowledgment, your signature appears and the date? A. Yes.

[33]

Q. No, with respect, you weren't because immediately above the acknowledgment is the statement that the details regarding your employment are contained in attached sheets so you must read them before signing the acknowledgment below? A. I understand that, but the forms were put in our pigeonhole, we would come in, starting at 10 past 9, check your thing, sign it, hand it back in. There were years and years of that. There was an element of trust. You didn't feel you needed to check for a change every time you were given a temporary variation form. 21 Whilst it would appear that the Department's practice was to require TAS's to complete the Appointment/Variation Form at the commencement of an appointment, I note that the Form's provenance was as an appendix (Appendix A) to a 12-page document entitled "Guidelines for the Employment of Temporary Non-Teaching Staff in Schools for 2006". The Guidelines provided, inter alia: The Appointment/Variation Form for Long Term Temporary Non Teaching Staff in Schools (Appendix A) should be forwarded to the Bathurst Employee Service Centre each time a long term temporary employee is employed, has a variation to their employment or ceases employment. Please note that all temporary appointments for non-teaching staff must terminate at the end of each school year. … Appointment of long term employees (from 10 weeks) Principals must submit an Appointment/Variation Form for Long Term Temporary Non Teaching Staff in Schools (Appendix A) for: · all instances where employment is to be for ten weeks or more; · after 10 weeks continuous employment if the employee has been paid by e-CPC. This will ensure that employees receive the correct rate of pay and employment entitlements. The completed form, signed by the employee and the Principal on behalf of the Department, becomes the employee's Appointment Notice and is given to the employee. A copy of the form should be faxed to the Bathurst Employee Service Centre on fax number … and retained at the school for audit purposes. Please note no notification will be sent to the employee or the school. …

[35]

22 During Term 1 of 2006, Mrs Benfell was assigned to work with students in a combined class 2/3A with a Teacher, Mrs Rolfe. On 28 February 2006, another TAS verbally informed Ms Benfell that she and Mrs Benfell were to swap duties. In this respect, Mrs Benfell deposed in her Statement that: Due to violent and abusive behaviour from student 2, Mrs Rolfe was forced to take stress leave for several weeks very early in Term 1. On February 28 I arrived at school and was informed by another aide she and I had swapped duties. I then had to seek out an executive teacher who had made the decision to ask why. She said it was felt that I too could be vulnerable and they didn't need me going off on stress leave as well. I expressed my annoyance that decisions had been made with my peers without any consultation with myself and that the message had been delivered in the corridor by another aide. The executive spoke to me later apologising, admitting that this should not have happened. However, hours were changed and I dropped from 25 hours to 22 hours 51 minutes weekly. 23 This reduction in hours took effect from 24 March 2006. Ms Benfell was provided with an "Appointment/Variation Form for Long Term Temporary Non-Teaching Staff in School" dated 28 March 2006 and in the space reserved for "reduction/increase in hours" the reduction was recorded for the period of 24 March 2006 to 21 December 2006. Mrs Benfell signed the Form. Mrs Benfell was provided with a further Form dated 24 June 2006, by which the Department varied her hours from 44.20 per fortnight to 45.42 hours per fortnight for the period of 31 July 2006 to 21 December 2006. Mrs Benfell signed her acknowledgement. 24 At the end of Term 3 2006, Mrs Benfell and the other temporary TAS's at the Tumut School were advised by Mrs Reeves that temporary TAS hours would be trimmed. Mrs Benfell's evidence was that she and the other TAS's were told by Mrs Reeves, "our hours would be trimmed due to lack of funding, but she assured us it wouldn't affect us by much." Mrs Reeves denied she told the TAS's they would not be affected by much. Mrs Reeves said she could not recall whether the reason she gave for trimming the hours was due to lack of funding. In my opinion, Mrs Reeves did give that as the reason and did advise the TAS's that it would not affect them much. 25 I have no desire to be critical of Mrs Reeves, but it has become necessary for me to decide whose evidence is to be preferred where there is a conflict - either that of Mrs Reeves or of Mrs Benfell. Mrs Reeves was evasive, unforthcoming and contradicted herself on a number of occasions. The barely concealed antagonism in her manner and demeanour in answering questions put to her by counsel for the applicant only served to create the impression that she was not prepared to be completely open and candid with counsel in giving her evidence. On the other hand, apart from some episodes of confusion, I found that Mrs Benfell was forthright and truthful. Where there was a conflict in the evidence between the two witnesses I have preferred the evidence of Mrs Benfell.

[43]

29 On returning from holidays in January 2007, Mrs Benfell received a letter from Mrs Reeves, dated 20 December 2006, which stated: Dear Sue, I am writing to inform you that at this stage there will be no teachers' aide special work for you at Tumut Public School during 2007. I will, however, with your permission keep you as a casual for as you are aware we are often in need of an aide for day-to-day work and block employment. I would be more than delighted to be a referee if you choose to seek employment. Thank you again for the work you have done for the students of Tumut Public School. 30 No explanation was provided as to why there was no more work for Mrs Benfell in 2007 at the School. Moreover, Mrs Benfell has not worked at Tumut School in any capacity since 21 December 2006 despite the fact that she was to be included in the casual pool and despite the fact that on 73 occasions in 2007 the School required a casual TAS. Other persons were employed as TAS's on a casual basis in 2007, some of them not having been employed previously at the School and none of them with anywhere near the experience of Mrs Benfell. 31 Mrs Benfell stated in her evidence that until Term 4 of 2006, she had always been confident of being employed the following year because this had been an established pattern over the past years. 32 It is very clear from the evidence that Mrs Benfell was given no reason for the decision taken by Mrs Reeves that there would be no work for Mrs Benfell in 2007. At no time was Mrs Benfell advised that she was not competent to undertake any aspect of her work; at no time was she advised there had been any complaint about her work; and at no time was she counselled about any inadequacy regarding her work performance, conduct or skills. On the contrary, there were a number of references tendered in evidence and not contested by the Department, regarding her successful work with disadvantaged students and the courses undertaken by her over the years to increase her skills and knowledge as a TAS. 33 Furthermore, in 2007 funding to the School in relation to students with a physical, intellectual or learning/behavioural disabilities was not reduced, the number of students requiring assistance was six, no other TAS was advised their services were not required in 2007 and there was no evidence of a re-allocation of funding away from the employment of TAS's at the School. CONSIDERATION

[44]

34 The Department contended in its submissions that: (1) The Commission's jurisdiction to hear and determine the s 84 application only arises if there has been a dismissal: s 83(1). Mrs Benfell was engaged on a series of temporary, fixed term contracts. The contracts between the parties expired by effluxion of time and upon their own terms. As a consequence, there was no "dismissal" of Mrs Benfell by the Department. (2) As there had been no "dismissal" of Mrs Benfell, the Commission did not have jurisdiction to make dispute orders pursuant to s 137(1)(b) of the Act; the Commission's power pursuant to s 136(1)(d) of the Act was confined to the making of "any other kind of order" that the Commission was "authorised" to make. If the Commission did not have jurisdiction to determine an unfair dismissal application the Commission was not "authorised" to grant a remedial order (such as that found in s 89 of the Act) by means of s 136(1)(d). (3) Whilst it was conceded that a "refusal to employ" was an industrial matter and could be the subject of an order by the Commission, on the evidence there was no "refusal to employ" Mrs Benfell. Consequently, there was no power to make an order against the Department requiring it to employ Mrs Benfell. (4) In the event that the Commission finds there was a "dismissal" and that it was harsh, unreasonable or unjust, it would be impracticable for the Commission to order Mrs Benfell's reinstatement or re-employment: (a) There is no former position to which Mrs Benfell could be reinstated or re-employed. The School has a full complement of teachers' aides (special). The reinstatement/re-employment application begs the question. Reinstatement or re-employment to what, for how long and doing what? (b) The position held by Mrs Benfell was one that was contingent upon available funding and, most importantly, an assessment of the needs of the students at Tumut Public School. (c) As the evidence discloses a discretion resides with a school Principal to determine how best to use available funding to meet the needs of students. Understandably, the paramount consideration for a Principal in determining how best to use available funding is the question of the needs of the students. This can and does involve the making of professional judgments as to which person is best suited to be a teachers' aide for a student or students. It is not and cannot simply be a matter of dividing teachers' aide (special) hours up and distributing them amongst a pool of teachers' aides (special) or reducing the hours of teachers' aides (special) so as to provide hours for Mrs Benfell. (d) To order the reinstatement or re-employment of Mrs Benfell would have the practical result that funding that is intended to meet the best interests of students would need to be allocated to the employment of Mrs Benfell in circumstances where the engagement of a further temporary teachers' aide (special) is not warranted. Whether Mrs Benfell was dismissed

[64]

47 On the relationship between a contract of employment and the statutory provision affecting the employment relationship between the Crown and a civil servant, Brennan J at 437 stated: Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, eg, Gould v Stuart [1896] AC 575 at 577; Carey v The Commonwealth (1921) 30 CLR 132 at 137; Lucy v The Commonwealth (1923) 33 CLR 229 at 238, 249, 253. However, the contractual nature of the relationship has not been universally accepted: see, eg, Monckton v The Commonwealth (1920) 27 CLR 149 at 155, 156; Lucy v The Commonwealth at 244; Geddes v Magrath ; Morgan v Geddes (1933) 50 CLR 520 at 533- 534; The Commonwealth v Welsh (1947) 74 CLR 245 at 262, 274; and cf Ryder v Foley (1906) 4 CLR 422 at 440. And sometimes an espousal of one view rather than the other has been avoided: see, eg, Reilly v The King [1934] AC 176 at 180; Kodeeswaran v Attorney-General (Ceylon) [1970] AC 1111 at 1118. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service : McVicar v Commissioner for Railways (NSW) (1951) 83 CLR 521 at 527 (emphasis added). 48 It is clearly not open for the Department to contend, on the one hand, that Mrs Benfell was engaged under a series of fixed term contracts on terms that were mutually agreed but, on the other hand, maintain it had a unilateral right under the statute to vary the contracts at will, or to determine the contracts at its discretion at any time prior to the expiry of the fixed terms. One is, therefore, drawn irresistibly to the conclusion that there were no fixed term employment contracts in the nature contended for by the Department; that Mrs Benfell was subject to a series of back-to-back appointments, always renewed until the end of 2006. Whether the appointments conformed to s 21(3) of that Act, I do not know because the evidence did not disclose whether or not the Minister's concurrence had been obtained.

[71]

51 At 366 the Full Court referred to the respondent's submission in the following terms: The real barrier raised here by the respondent was that the probationary nature of the appellant's appointment and its "annulment" under the Teaching Services Act , by its very nature, could not fit within the concept of dismissal. We are of the view that Mr Hodgkinson's submissions in that respect regard too narrowly the nature of an appointment on probation under the Teaching Services Act and do not give full effect to the meaning of the word "annul". It was suggested by counsel that at the end of the period of probation the appellant's appointment had to be either confirmed or annulled so that an annulment, without more, was not a dismissal but rather an ending of employment by the statutory provision. 52 In response to this assertion, the Full Court determined at 366: Whilst the nature of probationary employment may well be as Mr Hodgkinson asserted, that does not mean, in our view, that where such employment is brought to an end by the deliberate decision of an employer, even in the exercise of a statutory power to annul, it may not otherwise be a dismissal from employment. The key point, it seems to us, in such a situation is that the employer may either end the appointment by annulment or continue it by confirmation. That is the statutory position here under s 48(2) of the Teaching Services Act with subs (3) and subs (4) thereof providing for the officer concerned to cease to be employed. It represents, in our plain view of it, a statutory scheme for a person to be sent away from employment (or removed from office) - a dismissal… 53 The support that the applicant seeks to draw from Smith is that as with the respondent in that case, the Department (through Mrs Reeves) made a "deliberate decision" to bring Mrs Benfell's employment to an end (by not allocating to her any hours in 2007) and in so doing that constituted a dismissal, in the sense that Mrs Benfell was sent away from her employment without her free consent. 54 The circumstances of this case are not entirely on all fours with Smith. That case involved a decision by the employer to annul the appellant's probationary employment under s 48(2) of the Teaching Service Act 1980 and to end the employment under s 48(4). The Full Court, having determined that the term dismissal meant "the termination of services by the employer without the employee's consent", held that an annulment fitted within the concept of dismissal. In the present case, the Department waited until the period of appointment asserted to have been made under s 21 of the Education (School Administrative Support Staff) Act had expired and then advised Mrs Benfell that she was no longer required. But one may properly ask what was the real reason for Mrs Benfell's employment coming to an end? It was not as a consequence of a fixed term contract coming to an end by effluxion of time and, therefore, the employment ended by mutual agreement (see The State of Victoria v The Commonwealth of Australia (1996) 187 CLR 416; 66 IR 392), because there was no fixed term contract. The true cause of the employment ending was that the Department, through Mrs Reeves, decided (for whatever undisclosed reason) at some time prior to the expiry of the appointment period that she no longer wanted Mrs Benfell as a TAS. The Department used the expiry of the appointment period as a convenient occasion to advise Mrs Benfell she was no longer required, but it could not, on any view of the evidence, be concluded that Mrs Benfell's employment terminated because the appointment period expired. That is to say, there was no evidence contradicting Mrs Benfell's evidence to prove that the employment of Mrs Benfell terminated for the reason that the appointment period shown on the fourth Appointment/Variation Form constituted the expiry date of a fixed term contract. In this respect, I note in passing that the Crown Employees (School Administrative and Support Staff, General Assistants in Schools) Standdown Award provides in cl 4 as follows: When schools are in recess and employees are not required to work they shall be paid half ordinary pay for the period of recess provided that they are continuously employed for the full school term immediately preceding and for the full school term immediately following the recess.

[75]

58 The applicant also relied on Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 for the proposition that Mrs Benfell was dismissed from her employment in circumstances where the employment relationship was ongoing despite the completion of an engagement for a fixed period. The Full Bench of the Commission in Ryde-Eastwood considered the question of whether a casual employee employed by the appellant had been dismissed. The employee had been engaged as a casual on a regular basis between June and August 1993. On 30 August 1993 he completed a rostered shift and was advised the appellant was no longer prepared to re-engage him. The reason for not re-engaging the employee was the result of allegations of dishonesty, which were not ultimately substantiated. At 393 the Full Bench referred to Smith, indicating that, prima facie, although the respondent had completed a period of casual engagement according to a roster, it was open to conclude that what occurred to the respondent involved him in being discarded from employment or deprived of employment: As was submitted in the present case, the respondent had completed a period of casual engagement according to the roster and so could not have been dismissed in any relevant sense because the employment had come to an end, even though there was a deliberate decision by the employer not to offer him employment in the future and work was available; the appellant's decision, without the respondent's concurrence, was made due to alleged misconduct by the respondent. But, applying the reasoning of the Full Court in Smith v. Director-General of School Education , it appears to us, prima facie at least, open to conclude that what occurred to the respondent involved him in being sent away or discarded from employment or even, perhaps, deprived or disappointed of or from some employment advantage. Such a finding, supported by the reasoning in Smith v. Director-General of School Education by applying the ordinary meaning of "dismissal", seems to us logically available.

[77]

60 At 401-402 the Full Bench concluded that the respondent belonged to that class of casual employment where there was a continuing relationship: It is apparent that two classes of employee colloquially described as 'casual' can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an on-going or continuing contract of employment; it is this second class of contract which, for the reasons set out earlier by us, is of such a nature as to attract the Commission's jurisdiction under Pt 8 of Ch 3 of the Act. Whilst the cross-over point between the above described classes may be difficult to ascertain, it being a matter of fact in each case, we are confidently of the view that the relationship particular to this case fell clearly within the class of an on-going contractual relationship so as to be within the Commission's remedial powers under the Act. The Full Bench held that the appeal by the Club failed. 61 Thus, Ryde-Eastwood is authority for the proposition that the termination of employment of casuals subject to a continuing relationship that amounts to an on-going or continuing contract of employment will constitute a dismissal capable of attracting the Commission's unfair dismissal jurisdiction. As the applicant submitted, the same principle has been applied to casuals employed under statute for single defined periods. In New South Wales Department of School Education v Andrews (1995) 60 IR 126 Bauer J stated at 133: For the purposes of the Industrial Relations Act I can see no reason why the employment of casual teachers by statute for single defined periods is different in concept to casual employment which at common law is also for single defined periods. Further, it seems to me that the scheme set out in the Teaching Service Act and the elaborate regulations and guidelines which have the force of legislative provisions to which Mr Benson properly took the Court, far from making the point that the casuals in the Education Teaching Service were true casuals, demonstrated the opposite proposition as was explained in the Ryde-Eastwood Case .

[85]

· Mrs Benfell worked continuously at the School as a TAS for 10 years. · Given the pattern of her engagement, Mrs Benfell was confident that her employment would continue from year to year. Each year she reported for work on the first day of term and throughout the year performed the work of a TAS. At the end of the 2006 school year Mrs Benfell had every expectation that, as in past years, she would continue to be employed in 2007. · The practice had been that Mrs Benfell continued to be employed while funding was available, while there were special students needing support, while teachers' aides were required and while she continued to competently perform her duties. None of these factors altered in 2006 or 2007 such as to negative the 10-year-old practice. · Mrs Benfell had not seen the "Terms of Employment" document. · There was no evidence of any agreement between Mrs Benfell and the Department that her employment contract would terminate coincident with the expiry date of her appointment in the last Term of 2006. · The Appointment/Variation Forms, especially in the absence of the "Terms of Employment" document, and which were placed in Mrs Benfell's "pigeonhole" for her to sign did not constitute contracts of employment. As Mrs Benfell stated in her evidence, "we would come in, starting at 10 past 9, check your thing [Form], sign it, hand it back in. There were years and years of that. There was an element of trust. You didn't feel you needed to check for a change every time you were given a temporary variation form". Marshall J in D'Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 at 26 described temporary appointment forms in that case as "mere administrative conveniences" that did not outweigh "strong countervailing factors indicating a continuous employment relationship". "Administrative convenience" is an apt description for the Appointment/Variation Forms in this case. 68 As for the Department's proposition that it had no expectation that the employment of Mrs Benfell would continue past the end of the last appointment period in 2006, that proposition was based on the Department's view that the Appointment/Variation Forms constituted a series of fixed term contracts between the parties, which expired by effluxion of time and upon their own terms and on the statement in the "Terms of Employment" document that: There is no guarantee or expectation of any further or on going temporary employment continuing beyond the end date as specified in the attached Appointment/Variation Form for Long Term Temporary Non Teaching Staff in Schools .

[96]

81 Another issue in Lunn, and the one that has attracted the attention of the Department, concerned the appeal from the Commissioner's finding at first instance that the series of contracts that preceded the Final Contract was "a 'sham' arrangement". The Commissioner, nevertheless, proceeded on the basis that the Final Contract was operative as between the parties. On the appeal, counsel for the respondent contended that the Commissioner erred in proceeding in that way and that the Commissioner should have found that the Final Contract was also part of the same 'sham' arrangement such that the true contract between Ms Lunn and the Department as at 24 March 2005 was an ongoing contract of employment and not the "outer limit" Final Contract. Reliance was placed on D'Lima. It was in this context that the Full Bench referred to D'Lima at [38]: The Department correctly noted in its written submissions that in D'Lima Marshall J did not purport to apply some special rule to contracts of employment whereby written agreements not amounting to a sham or a pretence not intended to create legal relations (and not coming within one of the other established categories of exception) can be ignored. The decision in D'Lima might be explained on the basis that it was one of those rare cases where the written "contracts" were a sham or pretence in accordance with conventional principles, however his Honour did not use the term "sham" or "pretence" and did not conduct an analysis of the sort required by Sharrment . Given the subsequent decision of the High Court in Equuscorp the decision in D'Lima must now treated with caution. Certainly, the expression "strong countervailing factors" in the judgment of Marshall J in D'Lima should not be elevated to an independent test or treated as some form of jurisdictional talisman that obviates the need to consider whether, in the particular circumstances, a signed contract was objectively intended to create binding legal rights and obligations according to its terms consistent with the well established principles of contract law. 82 The "strong countervailing factors" relied upon by the Commissioner at first instance to find the successive contracts was a sham arrangement was the appellant's practice of engaging all or almost all staff on a series of temporary contracts. At [40] the Full Bench observed: [40] The mere fact that all or almost all of the Department's staff were engaged on temporary contracts and that there was a strong expectation that contracts would be renewed upon their expiry simply does not permit a conclusion that, determined objectively, there was a common intention (that is, the objective intention of both the Department and the relevant employee) that the contracts were not to create the legal rights and obligations which they give the appearance of creating. We have reservations as to whether the evidence before the Commissioner permitted a finding that the practice of engaging staff on serial temporary contracts "was dictated by some unknown policy considerations and not the operational needs of the Department." However, even assuming this to be so, the existence of such a policy, if anything, supports a conclusion that, viewed objectively, the Department entered "outer limit" contracts with its staff as a deliberate implementation of the policy and thus, at very least, the Department intended the contracts to have legal effect according to their terms. Without more, a "common intention that the... documents [were] not to create the legal rights and obligations which they [gave] the appearance of creating" could not be established.

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