Amy Kilpatrick v University of Canberra [2024] FWC 1602

1 Fair Work Act 2009 s.365—General protections Amy Kilpatrick v University of Canberra (C2024/2361) DEPUTY PRESIDENT DEAN CANBERRA, 6 AUGUST 2024 Application to deal with contraventions involving dismissal – whether applicant dismissed – no dismissal. [1] This decision concerns an application made under s.365 of the Fair Work Act 2009 by Ms Amy Kilpatrick (Applicant) for the Commission to deal with a general protections dispute involving her alleged dismissal by the University of Canberra (Respondent). [2] The Respondent has raised a jurisdictional objection that the Applicant was not ‘dismissed’ for the purposes of s.365(a) of the Act. It argues that the Applicant was employed pursuant to a maximum term contract (the Contract), and her employment ended upon the Contract reaching its maximum term on 22 March 2024. [3] The meaning of ‘dismissed’ in s.386 of the Act relevantly provides as follows: (1) A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (2) However, a person has not been dismissed if: (a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or …” [2024] FWC 1602 DECISION -- 1 of 11 -- [2024] FWC 1602 2 [4] A dismissal is a fundamental prerequisite that must be established before the Commission can exercise powers under s.368 of the Act to deal with a dispute about whether a dismissal was in contravention of the general protections provisions.1 There is no dispute the Applicant did not resign. The question, then, is whether her employment was terminated on the Respondent’s initiative. Also relevant in this case is whether s.386(2)(a) is applicable, that being whether the Contract was for a specified period of time and the employment ended at the end of the specified time period. [5] A hearing was conducted on 20 June 2024 to determine the jurisdictional objection. The Applicant was represented with permission by Mr D Ager of Counsel, and the Respondent was represented with permission by Mr N West-Foy of Clayton Utz. [6] At the hearing, the Applicant gave evidence on her own behalf. Professor Geoffrey Crisp (Deputy Vice Chancellor Academic), Dr Robert Rigby (at the relevant time, Faculty General Manager) and Professor Uwe Dulleck (Executive Dean of the Faculty of Business, Government and Law) gave evidence for the Respondent. Neither party required the other party’s witnesses for cross examination. [7] For the reasons set out below, I find the Applicant was not dismissed within the meaning of the Act and as a result the application is dismissed. Brief background [8] For the most part, the factual circumstances are not in dispute and are briefly stated here. [9] The Applicant commenced employment with the Respondent on 21 March 2022 in the position of Director, Strategy and Governance, 50/50 by 2030 Foundation. [10] As noted earlier, the Contract was for a maximum term of two years, finishing on 22 March 2024. [11] The relevant terms of the Contract are as follows: “2.3 Term a) The Employment is for a two (2) year maximum term. b) The Employment will commence on the Commencement Date and will cease automatically at the end of the maximum term, unless terminated earlier in accordance with clause 15 of this Agreement. c) The University may, at its absolute discretion, offer the Employee a further period of maximum term Employment under this Agreement. The terms of this Agreement will continue to apply to any further period of Employment unless the Parties expressly agree otherwise in writing. … 15.1 Termination on notice Notwithstanding any other provision of this Agreement, this Agreement may be terminated at any time by either Party giving the other Party the period of notice -- 2 of 11 -- [2024] FWC 1602 3 required by Schedule One, or such shorter period as may be agreed by the Parties. 19.3(a) Effect of Agreement This Agreement states all the express terms of the agreement between the Parties in respect of [the Applicant’s] employment by the [Respondent] and supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.” [12] The parties agreed the Contract was a legally binding contract capable of being varied in the usual ways, that being in writing or by oral agreement. [13] On or around 31 January 2024 the Applicant was advised that her Contract would not be renewed, and her employment ended on 22 March 2024. [14] The Applicant contends there was an oral agreement to vary the Contract resulting from conversations with Professor Crisp and Dr Rigby in or around September or October 2023 (the Contract Extension Representation). The Respondent denies this occurred. This is the fundamental factual dispute between the parties. When is a person ‘dismissed’? [15] As noted above, s.386 sets out the meaning of ‘dismissed’, which has been considered in a number of decisions of the Commission. [16] In Saeid Khayam v Navitas English Pty Ltd t/a Navitas English2 (Navitas), the majority of the Full Bench summarised the approach to the operation of s.386(1)(a) as follows: “[75] Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows: (1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract. (2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the -- 3 of 11 -- [2024] FWC 1602 4 inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. (3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome. (4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date. However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment. (5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative: (a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following: ● the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer; -- 4 of 11 -- [2024] FWC 1602 5 ● the employee entered into the contract as a result of a serious mistake about its contents or subject matter; ● there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy; ● the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer; ● the employee lacked the legal capacity to make the contract; or ● the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act. If any of the above applies there will be no legally effective time-limit on the employment. (b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts. (c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies. (d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship. (e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated. -- 5 of 11 -- [2024] FWC 1602 6 (f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract.” (citation and references omitted) [17] As is clear, where there has been genuine agreement to enter into a maximum term contract, and absent any vitiating or other factor identified above, then any decision not to extend such a contract does not constitute a termination at the initiative of the employer. [18] Time limited contracts were recently considered by the Federal Court of Australia in Alouani-Roby v National Rugby League Ltd3 (NRL), in which the following principles, as relevant to this application, were expressed: a. Nothing in the statutory framework within which the employment relationship is established inhibits the freedom of parties to enter into a maximum term contract. b. Remedies for dismissal available under the Act are not available for employees whose employment ends pursuant to the expiry of a genuine outer limit contract. c. It cannot be that the mere act of the entering into such a contract can, of itself, be the principal contributing factor resulting in the termination of employment if employment terminates as provided for in the contract. d. A contract will not be contrary to public policy or be found to evade the dismissal provisions simply because statutory exclusions operate upon it. e. Employers are entitled to structure their employment arrangements on the basis that such exclusions will operate. f. The exclusion from the meaning of ‘dismissed’ contained in s.386(2)(a) of the Act applies to outer limit contracts which allow for early termination, in circumstances where an employee’s employment has been terminated at the end of the specified period of time. The case for the Applicant [19] Relying on Navitas, the Applicant submitted that her employment was terminated at the Respondent’s initiative. She gave evidence that the Contract Extension Representation was made by Professor Crisp and Dr Rigby, acting with the authority of the Respondent, in around September or October 2023 which had the effect of extending the outer limit of the Contract by a further 12 months, and with the possibility of a further five year extension. [20] Specifically, she said she had numerous conversations with Professor Crisp, in his capacity as Executive Dean Faculty Business, Government and Law, in mid-2023 about transferring her role to the Law School, and requested she begin teaching in 2024 in addition to her responsibilities as a program Director. The Applicant gave evidence that she was subsequently appointed as the convenor and lecturer of a law subject to commence in term 1 of 2024. [21] The Applicant gave evidence that in around August/September 2023, Professor Crisp and Dr Rigby assisted her write a business case seeking approval for the direct appointment of a gender economist to work with the Applicant on gender focused professional education and -- 6 of 11 -- [2024] FWC 1602 7 research. The business case was successful, and a new staff member commenced in February 2024. [22] The Applicant said that in around September 2023, Professor Crisp assisted her with a business plan for the Vice Chancellor, and that he told her that “the Vice Chancellor supports this funding”. [23] The Applicant’s evidence included that from August to October 2023, the Applicant delivered the inaugural Pathways to Politics Program for Women, for which she received significant positive feedback from a range of internal and external parties, including Professor Crisp and Dr Rigby. [24] Of particular relevance for these proceedings, the Applicant gave evidence that in around September or October 2023, Professor Crisp and Dr Rigby said to her: “your contract will be extended for at least another 12 months regardless of whether the Vice Chancellor grants funding for the Gender Equity UC plan. The Faculty is backing the gender equity business plan and has included your salary and the costs of the gender economist into the Faculty budget. The budget is already approved”. This is what has been referred to as the Contract Extension Representation. [25] In late October 2023, Professor Dulleck commenced in his role. The Applicant gave evidence of a conversation she had with Professor Dulleck and Professor Crisp on or around 31 October 2023 in which Professor Dulleck said words to the effect of: “I do not see the value in gender equity as a focus of a program, I don’t think the Pathways Program belongs in universities. While I was at QUT I said the same thing. There is just no value of Pathways to Politics being at universities as it does not attract ARC Linkage grants”. The Applicant said Professor Crisp expressed his support for the program and said the Vice Chancellor was supportive of this agenda. The Applicant also said words to the effect that the program was of national significance and had widespread support. [26] The Applicant said that she met with the new Chancellor on 22 November 2023 and expressed her concern for the security of her position given Professor Dulleck’s apparent lack of support for the program. [27] On 20 December 2023 the Applicant emailed a copy of the Gender Equity UC business case to the new Deputy Vice Chancellor Academic, Professor Lincoln, following the retirement of Professor Crisp. [28] The Applicant gave evidence that in early January 2024 she secured ongoing external funding for 2024 and 2025 to continue the Pathways to Politics program. [29] On 16 January 2024 the Applicant met with Professor Lincoln. During this meeting the Applicant said she did not feel Professor Dulleck supported her program and thought it should not sit under his supervision. She also advised Professor Lincoln that she was in discussions with other staff about commencing a PhD in a topic related to the program. The Applicant gave evidence that Professor Lincoln encouraged her to commence a PhD, which she considered to be “a really positive forward-looking conversation”. -- 7 of 11 -- [2024] FWC 1602 8 [30] The Applicant met with Professor Dulleck on 31 January 2024, during which the Professor said words to the effect of: “Your contract will not be renewed. Gender equity funding is not supported. You are not qualified to be a Director because you don’t even have a PhD. Managing the Pathways program is not a full-time job and a part time administrator can run it. You might be able to do that, but it would be at a far lower salary”. [31] The Applicant said she was shocked, and explained that she was going to start a PhD that year and that she was a very experienced lawyer with over 20 years experience. She said Professor Dulleck replied stating that “people don’t like it when appointments are based on professional practice rather than academic achievement”, and she should ask the head of law school for a sessional contract instead. [32] She contends this conversation had the effect of terminating her employment as it had already been extended as a result of the Contract Extension Representation. The case for the Respondent [33] The Respondent contended that the Applicant was not terminated at its initiative, but rather she was engaged on a maximum term contract which had reached its expiry date. [34] The Respondent denied the Contract Extension Representation ever occurred and pointed to the evidence of Professor Crisp and Dr Rigby in this regard. [35] Professor Crisp’s evidence was that as he had given notice of his retirement in May 2023, it was his practice not to make major decisions on matters that would impact his successors in case they wanted to take a different approach to matters. He gave evidence as to his understanding of the process the Respondent had if it were to extend a maximum term contract and said he was not aware of any offers being made by the Respondent verbally. In relation to the Contract Extension Representation, Professor Crisp said he did not recall saying the words attributed to him by the Applicant, and his recollection was that he in fact said: “the incoming Executive Dean will need to make all decisions for new positions or extensions to positions for 2024. Uwe [Professor Dulleck] will have the final say”. He denied saying that the budget for her role had been approved, as the budget was approved in December and so could not have been approved at that time. [36] Dr Rigby’s evidence was that he never made the Contract Extension Representation, and the reason he knew he did not is because as a General Manager he did not have the delegation to approve or renew the contract of a Senior Manager. He also gave evidence that he did not recall Professor Crisp saying the words that were said to be the Contract Extension Representation, and that he was aware Professor Crisp was “very cautious not to make decisions which may impact Professor Dulleck as the incoming Executive Dean of the Faculty”. Dr Rigby said he is likely to have spoken with the Applicant about the budget, but saying the budget had been approved does not mean that the expenditure of the budget had been approved. Dr Rigby disagreed with some of the words attributed to him by the Applicant in their conversations, but nothing turns on those differences in terms of the outcome in this matter. -- 8 of 11 -- [2024] FWC 1602 9 [37] The Respondent also contended that the Applicant never advised it that she held the belief that her Contract had been renewed, and in fact explicitly communicated via email that her Contract had not been renewed. [38] The emails relied on by the Respondent were: a. an email dated 1 November 2023 to Professor Crisp and Professor Dulleck which included the following: “As Geoff mentioned yesterday, my contract expires at the end of February 2024. I am very keen to progress discussions about my position as soon as possible. As my contract is connected directly with the timely consideration of the Gender Equity UC proposal, I hope we can agree on a way forward very soon”; and b. an email dated 1 December to Professor Dulleck in which the Applicant said: “I am conscious that time is running very short now for my contract to be renewed”. [39] These emails were sent by the Applicant after the time the Contract Extension Representation was said to have occurred. [40] The Applicant explained these emails in her oral evidence, saying that she intended to refer to the paperwork that needed to be done, which normally took a long time, to confirm her contract renewal, and that she thought she was “secure” at the time these emails were sent. [41] The Respondent submitted that the Applicant’s reliance on Navitas was the incorrect framework for determining whether a termination occurred at the initiative of the employer. Rather, it contended that the NRL decision was a better approach where Raper J concluded that s.386(2)(a): “applies to outer limit contracts which allow for early termination but only applies where the employee’s employment has been terminated at the end of the specified period of time”. [42] In applying this approach, said the Respondent, it follows that if the Applicant’s employment with the Respondent ended at the end of the period specified in the Contract, she would not have been ‘dismissed’ within the meaning of the Act. [43] It submitted that the evidence supports a conclusion that the Contract Extension Representation was never made, and as the Applicant’s employment terminated upon reaching the maximum term set out in the Contract, the termination fell squarely within the exclusion of being ‘dismissed’ contained in s.386(2)(a) of the Act. Consideration [44] For the following reasons, I find that the Applicant was not dismissed. [45] In terms of the factual dispute, that being whether there was an agreement to extend or renew the Contract through the Contract Extension Representation, I am not satisfied that this occurred. The emails sent by the Applicant in November and December 2023 make it clear in my view that she did not hold the view that the Contract had already been extended. I do not accept her oral evidence that she was referring to ‘the paperwork’ that needed to be done to -- 9 of 11 -- [2024] FWC 1602 10 confirm the renewal of her Contract. Had this been the case, I consider she would have said so. Further, I accept the evidence of Professor Crisp and Dr Rigby that no such representation was made. The Applicant’s emails in this regard are consistent with their evidence. [46] I am also satisfied that the Contract Extension Representation was not made given the evidence of the usual process the Respondent would follow if it were to extend an employment contract, which had not been undertaken in respect of the Applicant. I also accept that Dr Rigby would not have made such a representation given his inability based on the level of his role to do so. [47] Further, the Applicant is an experienced lawyer, including having held the position of Deputy General Counsel at the Australian National University immediately prior to her employment commencing with the Respondent. She ought to have been aware of the process for contract extensions within the Respondent, and her emails support a finding that she did not, at the time of sending the emails in November and December 2023, consider her employment had been extended. [48] Accordingly, I am satisfied that the Contract Extension Representation did not occur. [49] I am otherwise satisfied that the Contract is clear in its terms that it was for a maximum term which ended on 22 March 2024. The Contract represented a genuine agreement on the part of the Applicant and Respondent that the employment relationship would not continue beyond 22 March 2024, and that the employment relationship did in fact end on this date. To the extent Navitas is relevant, there is no evidence which supports a finding that any of the possible vitiating factors outlined in Navitas were at play in this case. In particular, given the Applicant’s extensive legal background, I am satisfied she was aware of the terms of her employment and entered into the Contract freely. [50] I respectfully agree with the findings of Raper J in NRL. In this case, I am satisfied that the exclusion in s386(2)(a) applies given the Contract reached its maximum term and ended at the end of the specified time. As a result, the Applicant was not dismissed within the meaning of the Act. This application is therefore dismissed. DEPUTY PRESIDENT Appearances: D Ager of Counsel for Amy Kilpatrick. N West-Foy of Clayton Utz for University of Canberra. Hearing details: -- 10 of 11 -- [2024] FWC 1602 11 2024. By video: June 20. Printed by authority of the Commonwealth Government Printer <PR776199> 1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152. 2 [2017] FWCFB 5162. 3 [2024] FCA 12. -- 11 of 11 --