Fair Work Act 2009
s.394—Unfair dismissal

Brett Anthony O’Connor
v
ILSC (Brisbane) Pty Ltd
(U2021/9066)

Application for an unfair dismissal remedy – jurisdictional objection – whether application made out of time – when was the applicant dismissed – casual employment – extension of time not required.

[1] On 9 October 2021, Mr Brett O’Connor made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from ILSC (Brisbane) Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable. The Respondent provides educational services to international students, and in particular, ELICOS, being English Language Intensive Courses for Overseas Students and VET qualifications, being Vocational Educational and Training.

[2] In his Form F2 application, Mr O’Connor contended that he was dismissed from his employment on 20 August 2021, however, he was not made aware of his dismissal until 27 September 2021. The unfair dismissal application was made on 9 October 2021, 50 days after the first date of 20 August 2021.

[3] On 1 November 2021, the Respondent filed a Form F3 Employer’s Response objecting to the application on the jurisdictional grounds that Mr O’Connor filed his application outside of the 21 days statutory time limit, contending that Mr O’Connor’s last engagement with the Respondent was in the week of 31 July 2021. The Respondent stated that Mr O’Connor was notified on 18 August 2021 that he was not to be engaged in the following teaching term.

[4] In addition, the Respondent objected to the application on the jurisdictional basis that Mr O’Connor had not been dismissed at the initiative of the employer.

[5] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objections. The matter was listed for a jurisdiction hearing on 26 November 2021 in Brisbane. At the hearing, Mr O’Connor represented himself and gave evidence on his own behalf. Ms Babette Furstner, National Director Greystone College & Corporate Services, represented the Respondent and gave evidence on behalf of the Respondent.

Background

[6] The Respondent provides educational services to international students for ELICOS and VET qualifications. The Respondent’s trading names, as identified in Mr O’Connor’s Employment Schedule include ILSC-Australia, ILSC-Sydney, ILSC-Brisbane, ILSC-Melbourne, ILSC-Education Group and ILSC-Business College.

[7] Mr O’Connor commenced employment with the Respondent on 27 January 2020 as a VET Trainer for ILSC-Brisbane, employed on a casual basis. As stipulated in his Offer of Casual Employment, Mr O’Connor is required to carry out duties and responsibilities contained in his job description and other duties reasonably required by ILSC-Brisbane that he is skilled and capable of performing duties. It was also noted that his duties, responsibilities and reporting lines may change in accordance with the needs of the business. In particular, the conditions of termination of employment outlined in Mr O’Connor’s Employment Schedule stipulate that:

“ILSC values our people and we will offer ongoing work where possible and where this meets the needs of the business. However casual employment is on an engagement by engagement basis and ongoing work cannot be guaranteed. ILSC-Australia may terminate your employment at any time without notice or payment in lieu of notice in the case of serious misconduct…”

[8] The Respondent advised that each engagement is reflective of a unit and is either three weeks, four weeks, or six weeks long.

[9] Between 15 July 2021 and 30 August 2021, Mr O’Connor engaged in a lengthy email exchange with Mr Michael Richards, Director of Studies & Director of Training. The email of 15 July 2021 commenced the communication between the two:

“Hi Michael,

Here is the program that I have launched for international students in Brisbane to encourage them to stay in Australia, finish off their diploma, and help hospitality, retail, and tourism businesses recover.

This email is being sent around to agents this week, so feel free to send it around to agents that supply students to ILSC so they don’t miss out as I have already had students signing up and have limited place for the first intake.

Regards,

Brett

…

Subject: Onshore international student diploma enrolments

I would like to introduce you a new free PRogram starting next week that is supported by businesses, not government funding.

It has been developed to encourage onshore VET enrolments with CRICOS leading up to Diploma qualifications in Business, Marketing, and leadership as a support program for student enrolled with any RTO.

I would like to invite you to a live information session we are hosting to launch the PRogram on the Thursday 22^nd of July at 2pm at the Coffee Commune in Bowen hills.

We have already started taking applications for the PRogram, as word has spread from the students that were involved in the trial program. We have now opened it up to any CRICOS RTO based in Brisbane as a networking opportunity for the student community. (Sign up process starts HERE)

Feel free share around the links above if you have student that would be interested in the program as we only have limited placements available. Please be aware that the student must submit their own application as part of the selection process as this is a voluntary program,

The program is not just designed to meet the AQF requirements to apply for occupational skills visas. It is designed to get International student the workplace training and experience needed to get a better result from the skills assessment to improve their chance of being invited to apply for a skilled visa.

We have also engaged hospitality, Tourism, and Retail employers to get support for the PRogram as many students already work in this industry. Employers understand International student need to progress in their course, and as a trainer of Certificate IV in marketing communications I have seen how the temporary lifting of student visa work hour restrictions has had on their course progress.

The employers know that if their staff don’t progress in their course, they will lose the hard working international students that have helped get them through the COVID-19 restrictions. However, many businesses were not aware that they had the opportunity to retain the students in management positions to continue to help with the post-COVID economic recovery on a work visa. Particularly smaller businesses that are usually not in a position to sponsor students to stay in Australia after their student visa expires.

As you know, this type of program is not right for everyone, and employers have asked us to ensure that only students that are likely to meet the requires for a skilled visa be accepted into the program. To ensure students and employers of this, and to back up the advice given to students by educational agents, we have asked Australia’s top Immigration appeals lawyer, who specialises in Visa refusals and appeals, to review each application.

My Visa Australia will give legal advice through a no cost, no obligation, independent assessment of the prospective students visa options. As a supporter of our PRogram, this provides a networking opportunity for educational agents to assist agents to lodge their own applications for your clients.

We have also received feedback form CRICOS providers with concerns of students being used as slave labour in PRograms such as this. Although this is not an internship program, we will be closely monitoring employers to make sure it does not replace employment opportunities under Fair Work Act voluntary work rules. To ensure this, program supporters will help monitor this, include the Australian Retailers Association, and Australian based AgUnity who specialises using technology enforcing Fair Trade and creating profitable farming communities worldwide.

We hope the timing of this program launch works in well for you to take advantage of the visa and immigration changes from 1 July 2021.

Please see the brochure and poster attached with information for students on the professional development activities and the supporters of the program that is currently being circulated by employers in the hospitality, Tourism, and Retail industry as a way of encouraging international students to stay in Australia and attract talent to their organisation.

If you have any questions, or need more information, let me know. Or we can meet at the information event on Thursday 22nd

I you can’t make it along, I’m happy to meet agents in Brisbane where I am based, or can zoom if you like too.” [errors in original text]

[10] Mr O’Connor included a business card to the bottom of the email detailing, “Founder – Inception Training”.

[11] In response to receiving such an email, Mr Richards replied the following day that “on the face of it, there seems to be a significant conflict of interest here” and that he was not sure that the “program is compatible” with Mr O’Connor’s employment. Mr Richards advised he would look into this and get back to him as soon as possible. On 18 July 2021, Mr O’Connor replied:

“It is no more of a conflict of interest than the intern program I was running Michael, that I was told I had to do outside of Greystone college, so if you are going to use this as a reason to dismiss me you will have a fight on your hands.

If you want more information on the program, as always, feel free to give me a call, but this program has come out of the industry consultation I have been required to do for the new BSB units, so relevant to my current employment and securing work for my students particular when COVID-19 restrictions come into effect. …”

[12] On 19 July 2021, Mr Richards responded:

“Hello Brett,

I think any talk of a fight is premature and not at all constructive.

I suggest that when we talk about this a more conciliatory and cooperative tone might be appropriate on both sides.”

[13] Mr O’Connor responded the same day:

“You are the one who mentioned my continuing employment Michael, and I have been told by Jared on a number of occasions that you were going to talk to me about issues, which never happened. You have had multiple opportunities to talk about this if you wanted to have a conciliatory and cooperative tone, you would have by now? You even got offended in email when I said that I had no support for the intern program from the college and again said you would talk to me about this too.

But, I also understand that you may not have currency to deliver HR units at diploma level, but as I am, it is only fair that I ask you to look up what is considered “Adverse action” in relation to continuing employment on the fair work website and see if you believe you have used an appropriate tone in your email before continuing discussion…”

[14] On 20 July 2021, Mr Richards wrote to Mr O’Connor in response to his email. Mr O’Connor responded to that email on 23 July 2021. The email of Mr Richards email of 20 July 2021 and Mr O’Connor’s email of 23 July 2021 is extracted below, noting that the italic text is Mr O’Connor’s response to Mr Richards’ concerns:

“Hi Michael,

Just some quick notes as I have been very busy this week not only with the 33 students that turned up to do their assessment presentations this week, validation of the cert IV in learning design and facilitation for the registered course owner, and of course the launch of the program of which you speak.

Yes, will to talk to you about it, but I see that the conflicts of interest you see mentioned below as your opinion are not in fact part of the program.

The program is not associated with and RTO, or educational agent. As to why the program has been set up, you can watch the video of the launch that explains to employers in retail, Hospitality, and Tourism businesses why they should employ international students, who are allowed to work extra hours in their industry, and encourage them to keep up their studies using the work experience to relate their work to their studies by developing their skills through a paid internship under fair work act conditions, allowable under the ESOS act July release where it also named accredited course CRICOS students can now do without requiring them to have a CoE for that course. This includes prepare and serve coffee and RSA, required to work in the hospitality industry.

…

I will answer your comments directly below in green [changed in this decision to italics for ease of reading] so you can prepare for a discussion if you have time next week.

Regards,

Brett

…

From: Michael Richards …
Sent: Tuesday, 20 July 2021 8:51 AM
To: Brett O’connor …
Subject: RE: Onshore international student diploma enrolments

Dear Brett,

Thank you for your reply.

As you are an HR expert with “currency to deliver HR units at diploma level” I’m sure you will understand my intention to de-escalate a situation which seems to have developed a somewhat unfortunate tone.

I’m sure also that because you are an HR expert with “currency to deliver HR units at diploma level” you will share my intention to de-escalate, and be willing to excuse any clumsiness or imprudence in my earlier communication, and to calibrate your own response appropriately.

I do apologise for the brevity of my email, written in haste and sent at 2:22 PM on Friday 16th July.

In that email I drew attention to a possible conflict of interest between your (Inception Training’s) student skilled visa program and your work as a trainer at Greystone College.

The exact words I used in that email were “On the face of it, there seems to be a significant conflict of interest here and I’m not sure that this program is compatible with your employment at Greystone College”.

I suggest that these words, if understood literally, do no more than draw your attention to the existence of a perceived conflict of interest, and I apologise if my rather cursory manner left them open to misinterpretation.

They were not intended to be a threat or precursor of dismissal, and it is a source of some considerable distress to me that you should have interpreted them in this way.

If I may say so without offending you, you jumped to an unwarranted conclusion.

However, since I sent that email at 2:22 PM on Friday 16th, consultation with senior Greystone College staff along with a further review of your earlier emails, has confirmed that there is indeed a conflict of interest between the aims of Inception Training’s student skilled visa program and Greystone College programs.

Of course a conflict of interest does not necessarily mean the end of a relationship, and I believe that what we now need to do is to meet in a spirit of goodwill and amicability, to examine this conflict of interest and determine how any impacts might be ameliorated.

The conflict which I perceive emerges from the juxtaposition of two overlapping but divergent programs: Inception Training’s student skilled visa program and the Greystone College business suite. Inception Training allows me to create commercial agreements with industry experts to use their IP for training for the College business suite, and comes from industry engagement I am required to do under SRTOs 1.13b, and is listed on my trainer matrix approved as confirmation that RTO only users trainers and assessor qualified to deliver training for the qualifications they are allocated to deliver. So yes, there is overlap between the 2 businesses, which is a conditions of my employment.

The overlap manifests insofar as both programs seek to engage overseas students currently studying in Brisbane (and possibly beyond), meaning that the two programs are in effect competing for the same relatively limited market or pool of students, a market that has become increasingly limited since the advent of COVID-19 and consequent restrictions. This is not what the program is doing, not is it my intent. In fact, the program is designed to encourage student studying Cert IV to continue on to complete their diploma as it is a requirement to get a skilled visa in the job role mentioned in the program as this is a requirement by immigration as well as a skills assessment before even being invited to apply for a skilled Visa. It is not a competing program as it training done by their employers under the fair work act, voluntary, and separate from the course they are enrolled in. In fact, ASQA is well aware of the Free Diploma program I run and the only issue they have with it is an RTO can only accept prospective students from an agent that that has a written agreement in place to refer student to the RTO. So again, the skilled visa program is only associated with employers, not ANY RTO or marketing agent. It is solely for the benefit of the students living and working conditions, which under the ESOS act an RTO has a duty of care to provide support service for. So I remind you, that it was Greystone college that refused my request to do this as part of my employment with Greystone college (and I was even told by Jared not to talk to other ILSC employees about the intern program)

If you are losing students to other RTOs, that’s not because of m program as the only RTO I can mention students could enrol with specifically is Greystone college as I am employed as a trainer. This include My cert IV students that are finishing off their CERT IV in the 3 classes I have been assigned this term, who are still deciding where they are going to do their diploma, which at Shona’s request I have spoken to some of the students and recommended they undertake their diploma with ILSC as Liz also places interns and helps students get a jobs as part of her other employment, and Liz is also working with me on the teaching the business technology business see as valuable to improve the students employability skills to get a job in their field of study.

This PRogram intended to be used by ILSC to get onshore enrolment. There were 2 million temporary entrants in Australia at the start of COVID-19 which ILSC could tap into as many of these visa holders are running out of time. This figures were provided to my by My Visa Australia, who is a marketing client of mine and I an required to maintain industry currecy an do marketing work for real businesses to have continuing employment with ILSC. so it seems your comment that “a market that has become increasingly limited since the advent of COVID-19 and consequent restrictions” is ill informed as the official government figures show an increase in VET enrolments from 2019 to 2020 (by 15%), and no change in the number of enrolments as a percentage from 2020 to march 2021. The COVID-19 restrictions have actually benefited the college as online classes are not limited by the 1 student per 2 square meters that set the college attendance capacity under the 9b building classification. So yes, the program seeks students that are studying, or they are not called students, obviously, and students that have more than 11 months left in their diploma course as immigration website says only 75% of skilled visa applications are processed in under 11 months.

The diversion and the conflict lie in the extent to which the Inception Training student skilled visa program might motivate students to move away from Greystone College programs. I suggest that Inception Training’s focus on Skilled Visas, and in particular the references to Hospitality and Tourism (areas on which Greystone College does not explicitly focus) give Greystone College cause for legitimate concern. Your suggestion seems to come from confusion between working in the Hospitality and Tourism industry, which the majority of our students do, and doing hospitality or tourism qualifications that the college does not do. At the top of the PRogram application page, in bold large font, “Would you like to stay in Australia and apply for an Occupational Skilled Visa after completing your Diploma level studies? We are looking for international students currently studying Business, Marketing, or Leadership qualifications in Australia and help them get the experience they need while completing their studies. Are you says Greystone College does not explicitly focus on Business, Marketing, or Leadership qualifications? If so, this is a concerning comment to me as the campus director as I believe the college offers diploma qualification in all 3?

The promise, on Inception Training’s promotional materials, of “free advice from Australia’s best immigration lawyers” further raises the prospect of Greystone College students being referred to or solicited by other colleges, or their agents, who might offer (whether legitimately or not) visa pathway programs not offered by Greystone College. This constitutes a genuine, immediate and potentially serious risk for Greystone College. Nilesh Nandan from MyVisa Australiais the best immigration lawyer in Australia for his record in numbers and percentages of cases won at ATT to appeal refusals and cases at the federal circuit court. I know this because he is a marketing client of mine and I had to ask him for evidence to back up this claim under ACCC regulations. Nilesh is not affiliated with other colleges, or their agents, so I am comfortable with the fact that as Nilesh does not himself do student visa his advice will not favour any other college, except for Greystone college as he is happy to as a referee for my marketing skills and industry currency as a trainer. Nilesh has a free 10 minute chat anyone can book to discuss and recommend potential visa as a no obligation discovery call to give people advice on migration options. If he thinks they may be suitable for a skilled visa, he has offered to give advice to the students applying to my program on what they have to get to get invites to apply for a skilled visa, which he says completing their dip0loma is the preferred options for students enrolled in cert IV as it opens up more options. You comment also concerns me as it appears that the college agents are not giving advice on the students situation staying in Australia and that a student visa is their only option. If this is the case, I’m not surprised you think this potentially serious risk for Greystone College as this would be considered unconscionable conduct by the ACCC. This is why I have ask Nilesh if he would talk to the applications for my program if they felt signing up to a diploma was the right advice for the applicants current given by an educational agent as the age gets a commission from the college if the student enrols with the college. So you may have just identified a conflict of interest if Greystone college students are being told to only get advice from the college immigration agents. The college, as far as I am aware, does not employ an immigration lawyer, and I question if you know the difference between an immigration lawyer and an immigration agent. You need to be a lawyer to do an appeal, which is what Nilesh specialises in. If you would like to find out what the difference is between Nilesh and your agents and what they do, your conflict of interested concerns my be cleared up by Nilesh’s article here: https://link.edgepilot.com/s/08a6c057/yzchpu4lkkCemcrO7rZi1A?u=https://myvisa.com.au/guide-toimmigration-lawyers-and-migration-agents-in-australia/

I would like to discuss this with you so that we might manage and ameliorate any impacts arising from this clear conflict of interest and the ensuing risk to Greystone College. I would appreciate receiving your thoughts in advance so as to provide a ground for our conversation. I am happy to discuss, however the first thing I would dispute is that there is not a clear conflict of interest and the defamatory claims made of what I am doing in this email is the only ensuring risk to Greystone college due to an apparent lack of research and discussion of this program. We can have the conversation in the scenario outlines in the Role play for BSBLDR402, so I can record it and put in on my PD log as evidence of industry currency for this unit.

When we meet, I would also like to touch on other matters including the recording of student attendance, adherence to Greystone College curricula, and amendment of or deviation from authorised Greystone College materials. This is going to have to be another discussion, and it raises more questions as to the real reason behind the conflict of interest claim. The rest of the email is about a matter that would come before the fair work commissioner, where as matters including the recording of student attendance, adherence to Greystone College curricula, and amendment of or deviation from authorised Greystone College materials comes under ASQA, so will have to be discussed in a separate meeting. On the ASQA matters, I have explained in detail in writing with Shona and Jared these matters. So if you could please forward what you would like to touch on in another email I am happy to discuss this with you. As I’ve already discussed this with both Jared and Shona verbally following on from written reports, please detail you concerns in writing too as the resolutions and changes made to correct the noncompliances identified were consistent with the assessor role to determine if valid sufficient evidence is gathers to inform a competency outcome, and consistent with the advice given by ASQA in the “spotlight on validation” webinar last week.

As you an HR expert with “currency to deliver HR units at diploma level” I am sure we will be able to discuss these matters in an amicable and reasonable manner to arrive at a mutually acceptable understanding.

Yes Michael, but again with the negative tone? Or is that what triggered you. Are you saying I’m not? Or do you think I’m saying you are not? I am happy to do this, but I feel you may not be mentally competent to do this. I understand that you have had your hours reduced and told it was for medical reason, so this is an inference, not the assumption you made above, so not intended to upset you further. I am concerned that you see my employment as a threat to your authority, which I have been told you were going to discuss with me on numerous occasions over the last 6 months, and refused the help I offered to address the deficiencies in the training and assessment material, I urge you to consider you physical health the meeting may have on you as you appear to be under a lot of stress. I hope that the facts of the situation we are in now as stated above alert you to your split from reality as your assumptions stated above are not ground in the reality of what I am doing. I hope you are speaking to someone professional about this as the projections in the email above are cues of people that have serious mental health issues that can have fatal effects when core sensitivities are triggers, so when you do schedule a meeting, please make sure that there are others present, including a health and safety representative as I also have experience physical safety previous when having discussions with people that have similar cues you have exhibited when requestioin what they claim was a reational and calm discuss

Once I have received your preliminary thoughts, I will arrange a suitable time for us to meet.

Kind regards,

Michael Richards.” [errors in original]

[15] On 26 July 2021, Mr Richards responded as follows:

“Hello Brett,

Thank you for detailed response to my email.

It will take me a little time to consider your response and determine which aspects of it are relevant and might be constructively pursued.

I will respond to those aspects only.”

[16] Meanwhile, on 13 August 2021, Ms Shona McIntyre, Assistant Director of Training emailed the Respondent’s VET Brisbane Trainers, attaching a Pre-Session 11 Notices PowerPoint. The email is produced below:

“Hi VET Brisbane Trainers,

…

Those of you who are delivering our older BSB units will be aware that students numbers are dropping during the ‘teach-out’ phase as students in these qualifications graduate.

To manage these dropping numbers Greystone College is combining classes into a national cross-campus simulcast schedule so as to provide our students with the greatest flexibility and opportunity.

This national schedule is being planned in conjunction with out Melbourne, Sydney and Adelaide campuses, meaning that from Monday 23rd August we will offer fewer classes out of Brisbane. As a result, from 23rd August, we will unfortunately not be able to offer work to all of our current trainers.

We understand this may be difficult for those of you affected. We greatly appreciate the contributions each and every one of you has made, especially as we’ve struggled under COVID restrictions during the last twelve months.

We will offer Brisbane-based trainers as much work as we can including on our new BSB07 program where possible in future sessions.

If we are not able to accommodate you on our new BSB07 units immediately, we look forward to inviting you back onto our schedule as soon as possible. …”

[17] On the same day, Mr O’Connor replied to Ms McIntyre as follows:

“I’m happy to just do the Monday/Tuesday lectures and give the afternoon hours to Liz if you like so she gets enough hours as I’m getting loads of offers for other work. Already doing it with 3 campuses, so a 4th won’t make much difference as the students are used to doing work in 8 groups now.

The work I’m doing outside of GC Includes employability skills training for the ARA and Project management, and developing content for RTO trainers for BSB7.2 units. I think Liz would understand it and would like to do PD with the consultants that give me content, so I can introduce her to them as she showed an interest, but I am concerned that Michael will see the interest as a conflict due to her interest is outside of the marketing units she delivers. If you send a list of unit PE I’ll see if I have some content already. Particularly if it is social media, WordPress, and mobile phone for business related as that’s been the major call for in digital literacy and online training as this is now as required knowledge for small business and customer service staff. Part of lockdown proofing businesses, so more valid interstate.

I’m also consulting to consultants submitting to the TAE review if you want to put some PD on doing industry engagement relating to TAE units, and validating the certificate IV in Learning Design and Facilitation for the qualification owners if trainers are looking to cross train into L&D to improve their own employability skills. If things are as bad as Michael says it is with the industry, might help confidence to get more facilitation skills rather than training, better for mental health?”

[18] Ms McIntyre responded on 16 August 2021, advising as follows:

“Hi Brett,

Thanks for your email. I’m glad you understand the difficulty we are in and it’s great that you are getting offers of work from other places.

I am still negotiating with our Sydney and Melbourne campuses to find out which classes we will be able to run out of Brisbane.

Once I receive the schedule I will send it out to all Brisbane trainers.”

[19] On 18 August 2021, Ms McIntyre wrote to Mr O’Connor, by a separate email, advising the schedule for the next session. The email is extracted below:

“Hi Brett,

The national team have completed the schedule for next session but, unfortunately, we are unable to offer you any work this session due the dropping numbers of students in the Teach Out Courses. I wanted to say thank you for the work you’ve done with the Marketing & Communication students and we look forward to being able to offer you work in the future, if at all possible.

Don’t hesitate to reach out if you need anything.

Stay safe and well,

Shona.”

[20] In the evening of 18 August 2021, Mr O’Connor wrote to Mr Richards again seeking a response to his previous email on 23 July 2021, indicating that the situation must now be referred to an external agency for mediation. The email is extracted below:

“Hi Michael,

I feel that 21 days is a reasonable amount of time to get a response if you were looking for the amicable solution, however the situation must now be referred to an external agency for mediation.

It is not my job to educate you on compliance with the standards for RTO 2015, However I must address the defamatory claims in your email as I consult on compliance. As an industry stakeholder I am required to refer your disagreement over compliance to ASQA to investigate and make a recommendation to the Fair Work commissioner if they feel adverse action has been taken, removing a quarrelsome employer who had the rights to question the action of his employer as part of the job he was employed to do, to ensure compliance from other trainers and assessors if they want to keep their job.

That is what ASQA does now under their new regulatory strategy, so are looking to work closely with RTOs, and as an industry stakeholder I will be recommending that you consult with and ASQA performance appraiser and undertake gap training as part of performance review to provide evidence to the TAE IRC of what is required to be added as part of the review of the TAE40116 as the minimum standard for RTOs, with is equivalent to a code of practice for RTOs.

Including the following standards where you have identified possible non-compliances through referencing STO practices in you accusations that any RTO is required to do claiming that my actions setting up a support program for all international students is damaging the business interests of Greystone college:

•  7.1. The RTO ensures that its executive officers or high managerial agent:

•  a) are vested with sufficient authority to ensure the RTO complies with the RTO Standards at all times; and – you have said in the implementation meetings for BSB 7.0 that you have voiced your concerns of non-compliance with management, but have decided to not comply with the process to design and develop assessments tools as outlined in TAEASS502

•  b) meet each of the relevant criteria specified in the Fit and Proper Person Requirements in Schedule 3, including

•  g) whether the person has ever provided a VET Regulator with false or misleading information or made a false or misleading statement to a VET Regulator, and if so, whether it is reasonable to assume that the person knew that the statement made or information provided to the VET Regulator was false or misleading; - relating to the defamatory claims as to why I am not delivering the curriculum content approved as I detailed the changes required including not meeting 2 out of the 4 assessment conditions in a unit that is a prerequisite unit for enrolment into the diploma of marketing.

•  h) whether the person has ever been determined not to be a fit and proper person as prescribed under any law of the Commonwealth or of a State or Territory of Australia, and if so, whether that determination remains in place – You seem to have forgotten conversations you had with me and with others where you said you would follow up and talk to me about the issues regarding the above point, and appear to be consistent actions and frequency with a person who is in the early stages of dementia, so I feel you should be medically assess to determine if you should be allowed to continue in your job role.

•  whether the public is likely to have confidence in the person's suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications – The effect on CRICOS students of an RTO breaching SRTOs 3.1. may lead to the cancelations of current and previous students Visas under PIC4020 of the immigration act, providing a bogus document to apply for a visa, and have a person banned from applying for any Australia Visa for up to 10 years. The RTO issues AQF certification documentation only to a learner whom it has assessed as meeting the requirements of the training product as specified in the relevant training package or VET accredited course.

•  3.1 The RTO issues AQF certification documentation only to a learner whom it has assessed as meeting the requirements of the training product as specified in the relevant training package or VET accredited course.

•  1.1. (and 1.2) The RTO’s training and assessment strategies and practices, including the amount of training they provide, are consistent with the requirements of training packages and VET accredited courses and enable each learner to meet the requirements for each unit of competency or module in which they are enrolled. – The college ADOT and the assessment tools do not allow for RPL for industry experience or even map to units undertake in the same qualification. For the unit BSBMKG420, students from 6 different learner cohorts were placed in the 1 online class and form groups that a trainer could not effectively observe in Zoom, so coassessment was not an option for this unit. Some students working in marketing also identified that the assessment task breached Facebook community standards and the competition outlined would be illegal in each state in Australia under Fair trading regulations.

•  1.3. The RTO has, for all of its scope of registration, and consistent with its training and assessment strategies, sufficient:

•  a) trainers and assessors to deliver the training and assessment; - trainers who do not meet the requirements of 1.13 would grade assessments as satisfactory completed and sign off on the competency checklist in the student submission so determining the competency outcome for the unit.

•  b) educational and support services to meet the needs of the learner cohort/s undertaking the training and assessment;

•  c) learning resources to enable learners to meet the requirements for each unit of competency, and which are accessible to the learner regardless of location or mode of delivery; - assessment tools did not meet the assessment requirements to a current industry benchmark, and assessment conditions were not met including not providing policies and procedures for a business and requiring the students to select a real world business in the assessment instructions, and in BSBMKG420 students did not have access to the analytical tool plugin listed in the assessment as the licence had not been reviewed by the RTO and

•  d) facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment – Zoom did not allow to observe assessment for 8 student groups, adding to the students presentational to authenticate their group work

•  5.1. Prior to enrolment or the commencement of training and assessment, whichever comes first, the RTO provides advice to the prospective learner about the training product appropriate to meeting the learner’s needs, taking into account the individual’s existing skills and competencies.

•  5.2. Prior to enrolment or the commencement of training and assessment, whichever comes first, the RTO provides, in print or through referral to an electronic copy, current and accurate information that enables the learner to make informed decisions about undertaking training with the RTO and at a minimum includes the following content:

•  b) the training and assessment, and related educational and support services the RTO will provide to the learner including the:

•  v) any work placement arrangements. - Students were required to provide their own business and have access to policies and procedures to complete some units. Sim businesses did not meet the use of sim business checklist in TAE3.0 compendium volume, as it was not sufficient for sim businesses to not provide details of products and service sold by the sim business, only list“Quality products” for the retail sim business, and no nutritional product information was provided for the products in a Burger chain that claim a “healthy burger” range

•  5.3. Where the RTO collects fees from the individual learner, either directly or through a third party, the RTO provides or directs the learner to information prior to enrolment or the commencement of training and assessment, whichever comes first, specifying:

•  the learner’s rights as a consumer, including but not limited to any statutory cooling-off period, if one applies. – Students have the right as a consumer to be provided with information to make an informed decision as to if the student visa was the best option for their situation, however when I spoke to students about signing up for the diploma the campus director said I was not to refer students to get independent advice as this was seen to have a negative impact on the college business interest

•  the learner’s right to obtain a refund for services not provided by the RTO in the event the:

•  arrangement is terminated early; or

•  the RTO fails to provide the agreed services. – The RTO did not provide training and assessment resources that allow assessors to meet the rules of evidence and follow the principles of assessment as required under SRTOs 1.8

•  1.5. The RTO’s training and assessment practices are relevant to the needs of industry and informed by industry engagement. – RTO did not provide an evidence this occurred prior to selection of units for the BSB7.0 implementation which was requested as trainers wanted to do PD to update industry currency. The RTO purchased training and assessment resources however could not provide evidence that all units were validated by a person that meets the requirements of 1.13b. When asked the director of training did not state if all validators held the training and assessment credential specified in Item 2, or Item 5 of Schedule 1, and said they held diplomas in TAE (not cert IV TAE as required).

•  1.6. The RTO implements a range of strategies for industry engagement and systematically uses the outcome of that industry engagement to ensure the industry relevance of:

•  its training and assessment strategies, practices and resources; and

•  the current industry skills of its trainers and assessors. – “New” trainer matrix supplied for BSB7.0 did not have a place for assessors to list current industry skills for unit assessment requirements, only training elements

Regards,

Brett O'Connor”

[21] On 20 August 2021, Mr Richards responded as follows:

“Hello Brett,

Thank you for your email.

Shona McIntyre has drawn to my attention that due to a drop in student and class numbers, along with our shift to a single national schedule in conjunction with our Sydney and Melbourne campuses, she has not been able to offer you any training during the upcoming term.

This means of course that the question of any conflict of interest is, for the time being, not a live one.

We hope to offer you more work in the future and I suggest that any further discussion on this matter be deferred until then.

That will allow us to begin with a ‘clean slate’ and discuss any potential concerns in a more temperate tone.

I wish you well in the meantime.”

[22] On 22 August 2021, Mr O’Connor replied as follows:

“So just to be clear Michael, as I understand this email it is the RTO’s position:

1. There is currently a conflict of interest, which you stated in your original response that you would not be continuing my employment if this was the found to be the case.

2. The reason I am not being offered work next term is because it is not financially viable to run face-to-face classes for the course I deliver at the Brisbane Campus, and the apparent conflict of interest and the job performance issues that you mentioned were not contributing factors in this decision, so I have been stood-down due to the downturn in student numbers at the Brisbane campus and this is not to be considered termination of my employment.

3. If I want to continue my employment with Greystone college, I am not to question the compliance of the RTO’s practices identified in the email below, nor question the training resources for the units I have previously delivered, and you will give me work provided I do not question the RTO’s resources in a manner that involved detailed emails listing both the issues meeting specific requirements of the Unit of competency and assessment requirements, and possible solutions which were approved by Jared Prior to delivering the unit, Discussions that you did not involve yourself in even though Jared said on multiple occasions you would have discussions with me if you had an issues, and in the future if the RTO gives me any hours I am do have such discussions directly with you.

4. If you decide to give my any more hours, it will be conditional ending my involvement with the international student voluntary internship program started 18months ago while I was working at the college, that informs students of options available to them when they graduate from a Diploma gained at Greystone college, but you are only willing to discuss this if I am given hours at the college, which will not be for at least 6 weeks

Please respond to each of the 4 points this email within the next 7 days.

This should be a reasonable amount of time to respond as you can do so with a simple yes or no answer to indicate how and when you propose to resolve the outstanding issues with this case as it now appears it will take longer than 60 calendar days to process and finalise the complaint.”

[23] On 23 August 2021, Mr O’Connor made a complaint about the Respondent to the Australian Skills Quality Authority (ASQA).

[24] On 27 August 2021, Mr Richards replied to Mr O’Connor’s email of 22 August 2021 as follows:

“Dear Brett,

Thank you for your email.

I’m sure this is a difficult and stressful time for you, as it is for all of us in the educational sector.

I refer you to my email send at 3:55 PM on Friday 20^th August 2021. Please read it carefully.

I remain open to amicable and constructive discussion at an appropriate time.

Please do take care of yourself in the meanwhile,”

[25] On 28 August 2021, Mr O’Connor replied as follows:

“Thanks for the reply Michael

However as you have shown in this email trail you are not open to ‘remain open to amicable and constructive discussion’ As you so claim. As such, and as an industry stakeholder, I have handed my concerns regarding compliance over to ASQA. Although they do not investigate individual cases, They will notify the RTO as part of their formal complaint process, and may request further information from me.

So as this is now a formal complaint lodged with ASQA, I would ask that you do not attempt to have any discussions with me. Accordingly, ASQA will only contact me further in the following instances:

•  If ASQA identifies issues contained in your complaint that are not within our jurisdiction, we will inform you of the name and contact information of an agency(s) that is best able to manage those concerns.

•  If ASQA requires additional information or evidence.

As for the matter of the conflict of interest, I would recommend you see legal advice over the defamatory claims that I answered in great detail that you did not respond to or present any matters of fact to back up your claims. I do not believe you are aware of the consequences of your actions for you personally, and show no indications that you are willing to take any accountability for your actions, only projecting your own fears, indicating to me that you intend to use mental health as a defence of your actions.

These claims not only affect me, I am currently working with Australian Government Department of Education, Skills and Employment, and the Australian Retailers Association, implementing the PaTH program for Job Seekers and recommending improvements. The PaTH program include free and paid internships, and traineeships ‘Brokered’ by third parties between Jobactive providers, jobseekers, and businesses, using a process very similar to the Free Diploma intern and international student traineeship programs. So you may want to choose your words more carefully in future and state facts rather than your opinion.

Furthermore, if it is your opinion that my programs affect severely affect the business interest of Greystone college and ILSC, I would encourage you to lodge a complaint with Australian Government Department of Education, Skills and Employment as their program is a lot bigger than mine.

I do understand that it is a stressful time for many in the educational sectors however this is not the case for me.

It is only a stressful time for those who cannot adapt to the new environment, which is only going to get worse for you as the Education training package is now officially under review.

I do wish you well Michael, and hope that your employer assistance program will get you the help that you need.

However as you do not appear to be a high managerial agent or executive vested with sufficient authority to correct non-compliance (as you have been moved from the position), as this is now a matter for ASQA I must not have any further discussions with you. Under clause 7.1 of the standards for RTO I must now wait to be notified by one of the RTO listed contacts on the government register (TGA website) as to who I can discuss this matter with.

I appreciate your offer to have a ‘amicable and constructive discussion at an appropriate time’, however it is not appropriate at this time to have discussions with you as that time has passed. Now we have to wait to see if you are the appropriate person to have the discussion with at all, and that is not my decision to make.

I wish you well Michael, and urge you to talk to your GP if this is a difficult and stressful time for you as there are many options available for you.”

[26] On 30 August 2021, Mr Richards replied as follows:

“Dear Brett,

Thank you for your email.

I am very sorry you have chosen to express yourself in this way.

I am now referring this matter to specialist senior Greystone College personnel. These are:

Global HR: Global HR Director Laura Ochsendorf

Brisbane Campus matters including local HR: Brisbane Campus Director Babette Furstner

Compliance: National Compliance Manager Phoebe Bastion

Should you wish to communicate further on these matters, these are the appropriate people to contact.”

[27] On 31 August 2021, Mr O’Connor responded as follows:

“Thanks Michael,

Has nothing to do with how I have chosen to express myself, it is the process mandated by ASQA!

What is disappointing for me is how unprofessional you have acted all the way through this process. You even cannot respect ASQA’s directions not to contact me unless they want further information, and can’t resist sending another harassing email having one last go at me. To Further show your incompetence, how many of the names below are listed on TGA as the RTO contacts.

Please do not contact me again, and if you want to escalate it to one of these people you can if you like. I have to wait to hear from ASQA or the listed contact.

Kind regards,

Brett O’Connor”

[28] On 6 September 2021, Ms McIntyre sent an email to the “team” regarding the session notes for Sessions 12 and 13. The Respondent stated at item 3.1 of its F3 that Mr O’Connor had received the email as follows:

“Hi Team,

Hope you're all staying safe and well, looking forward to warmer weather now that Spring has apparently sprung (a leak, judging by all the rain).

We wanted to share a few things with you for the session to keep you updated and let you know what's coming, especially with the New Qualifications where so much is going on.

We also wanted to give a thank you to the trainers working the Teach Out classes, some of which have large numbers and others which are moved to other campuses and other timetables as we work nationally to manage the numbers dropping across all qualifications and timetables (from graduations but also from low enrolments, visa changes, and ongoing withdrawals and cancellations).

As we have explained previously, we are working hard in conjunction with the other Australian campuses to maintain shifts as much as possible but as numbers continue to drop, VET is now being affected significantly, although not to the extent of our ELICOS schools which have been severely reduced. We'll update you as soon as the next rosters are confirmed.

In the PPT (Session 12 + 13 2021 Trainer Notices.pptx), you'll see the new units running for the next sessions, both in Teach Out and New Qualifications.

You'll also find some updates on our digital landscape and we hope you're making the effort to encourage your students to access Microsoft 365 and download the myGreystone app.

If you’re teaching on the New Quals, you’ll have access to the next unit in the Trainers’ Staff Room (the new one) 2 weeks before the unit runs. There are also new WalkThrough videos being created to give trainers an overview of the unit and the assessment. A great resource, so check them out in the Trainers’ Staff Room.

This week, I'll be reaching out to everyone individually through Teams (during your PASS class hours), so please make sure you've logged into Teams and you know how some of the basics work.

We’ll also be undertaking a review of the Assessment Essentials videos so please make sure you’re creating, saving and sharing your content with the students.

Finally, it's timesheet week, so please input your shifts by tonight if possible. Those who attended the New Quals training session, please remember to add that under Professional Development. I'll send out the recording of the session soon.

That's about it. Stay safe and let us know if you need anything. And remember to keep an eye on your students - they're doing it tough, especially in MEL and SYD in lockdown.

Shona.”

[29] On 17 September 2021, Mr O’Connor emailed Ms McIntyre a fresh email titled, “Work Next Term”, reproduced below:

“Hi Shona

Just check in if you have an work scheduled for me next term?” [errors in original]

[30] On 24 September 2021, Ms McIntyre responded as follows:

“Hi Brett,

Thanks for reaching out. We’ve just finalised the schedule for the next session, starting October 4, but I’m afraid the numbers continue to drop and we are not able to roster you onto any classes for this term.

We’ll keep you posted if there are any opportunities in future sessions.”

Legislation

[31] Section 394 of the Act provides:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[32] Section 386 provides the definition of “dismissed” as:

“386 Meaning of dismissed

(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

(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.”

Mr O’Connor’s evidence and submissions

[33] In Mr O’Connor’s initial submission to the Commission, when asked to explain when it is he believed his employment came to an end, he stated that he was not aware of his dismissal until 27 September 2021. Mr O’Connor submitted that he was led to believe that he was still employed by virtue of the fact Mr Richards stated on 30 August 2021, “I am now referring this matter to specialist senior Greystone College personnel”.

[34] Mr O’Connor believed this action may have been taken to delay notification of his dismissal, and he submitted that he was led to believe that he had been stood down and not dismissed regarding the conflict of interest issue. Mr O’Connor stressed that in his view, Ms Furstner would also have been notified that his disagreement over compliance was serious enough to make an official complaint to ASQA and was listed to have received the complaint as raised by Mr Richards in his email of 30 August 2021. He noted that Ms Furstner did not contact him to try and resolve his employment situation.

[35] In Mr O’Connor’s Form F2, prior to being informed that if the application had been made out of time and he would need to make relevant submissions as to whether an extension should be granted, Mr O’Connor said the following, relevant to the emails between himself and Ms McIntyre in late September 2021:

“I believe that even if they did offer me work I would not be able to do it on a casual basis at short notice as access to my email account, Microsoft office, Zoom, and the student learning website have all be cut off. Which I believe is confirmation that they have no intention of giving me any casual work even though Shona’s response said she hoped to do so “if at all possible”, which appears to me that she has been instructed not to allocate me any work.”

Reason for delay and when first notified of dismissal had taken effect

[36] Mr O’Connor submitted that the Respondent had made multiple misrepresentations about his employment status. He advised he became aware of the actual date the Respondent considered the dismissal took effect during the conference with the Commission, which the Respondent put at late July 2021.

[37] Mr O’Connor contended that the lateness of the application was due to the fact he was not made aware of the dismissal. In Mr O’Connor’s witness statement, he advised he became aware of his dismissal on 27 September 2021 when he received an email from a friend asking if he had been sent a Casual Employee information statement. Mr O’Connor advised he checked his email to see if he had been offered casual conversion to permanent employment, or told of why he could not be offered a casual conversion, but found no such email. He advised that he read through the lengthy email exchange between himself and Mr Richards to see if it stated that his employment had been terminated due to the conflict of interest, and found no confirmation of that.

[38] Mr O’Connor stated that he did find a representation from Mr Richards in the email of 20 August 2021 that he was still employed as a casual, and as he had not been allocated work, Mr Richards advised that “this means of course that the question of any conflict of interest is, for the time being, not a live one.” Mr Richards followed with, “We hope to offer you more work in the future and I suggest that any further discussion on this matter be deferred until then.” It is Mr O’Connor’s contention that he asked Mr Richards to clear up if he was going to be dismissed for the conflict of interest or not in further two emails.

[39] Mr O’Connor noted that Mr Richards’ last email to him notified that he was referring the matter to the specialist senior Greystone College personnel.

[40] Mr O’Connor stated that he enquired about his employment status with Ms McIntyre on 17 September 2021, asking whether she had any work scheduled for him next term. Ms McIntyre’s response, on 24 September 2021, was that she would keep him posted for any opportunities in the future sessions. Mr O’Connor submitted that this represents to him that he was still employed at that time. Mr O’Connor noted that Ms McIntyre had a new title, being Acting Director of Training, which was the first time Mr O’Connor was made aware that Mr Richards was no longer in that position.

[41] Over the next week, Mr O’Connor researched his options on the Fair Work Ombudsman’s website and the Commission’s Benchbook to see how to proceed, and submitted an application for an unfair dismissal claim on 9 October 2021 when he came to the conclusion that the employer had no intention of offering him future work.

[42] Mr O’Connor further submitted that he made the claim well under 21 days from when he became aware his employment may have ended.

Action taken to dispute the dismissal

[43] Mr O’Connor submitted that the reasons given by the Respondent as to why work was taken from him are not relevant, given the Respondent did not suggest that the dismissal was a result of a genuine redundancy.

[44] It is Mr O’Connor’s belief that he had a workplace right to seek mediation with an outside agency if a matter could not be resolved in a timely manner internally. Mr O’Connor submitted that this application is the continuation of the dispute process recommended by the Fair Work Ombudsman as there were no other alternatives made available to Mr O’Connor by the Respondent to resolve the matter.

Prejudice to the Employer

[45] Mr O’Connor made submissions on this criterion however the submissions were not relevant considerations.

Merits of the application

[46] Mr O’Connor submitted that the Respondent does not allow casual trainers and assessors to swap shifts or swap classes unless scheduled, as swaps could only be made with others qualified to deliver the unit who have supplied a valid trainer matrix. He stated that it is the Respondent’s policy that trainers and assessors supply evidence prior to commencing employment that the new employee is qualified to train and assess the core and elective units selected by the Respondent, listed in their training and assessment strategy for the qualification the trainers and assessor has been tasked to deliver.

[47] Mr O’Connor submitted that this requires trainers and assessors to undertake continuing professional development and maintain knowledge of current industry practices, and the Respondent does not pay casual trainers when they do this. He stated that this is a requirement under the standards that apply to a Registered Training Organisation (RTO), not a company policy. He submitted that this raises questions as to whether any person employed to be both a trainer and assessor meets the definition of a casual employee under the Act and the NES.

[48] Mr O’Connor referred to his communication with Mr Richards from 15 July 2021 and submitted that he informed the Respondent that it might be taking adverse action against him. In Mr O’Connor’s communication to Mr Richards, he denied that there was any conflict of interest.

[49] On 13 August 2021, Mr O’Connor confirmed to the Respondent that he was available Mondays and Tuesdays to continue delivering the course he was scheduled to deliver and had been doing regular work each term for the last 15 month. Mr O’Connor understood that there were no new enrolments as it was a superseded qualification, but there were a number of existing students who had to finish off the course they were enrolled in. Mr O’Connor stated that he was told the reason he was allocated extra students than what would fit into his classroom was because the Respondent could not get a trainer and assessor on another campus. Students were moved from Wednesday and Thursday class to the Monday and Tuesday class that Mr O’Connor was available to deliver as a commitment to ongoing work for the rest of the season as Mr O’Connor was allocated 52 students, with only 10-15 student completing their last unit in the course.

[50] It is Mr O’Connor’s submission that the Respondent would not provide him with any further work unless he dropped the complaint about the assessment resources being non-compliant.

Fairness as between the person and other persons in a similar position

[51] Mr O’Connor made submissions on this criterion however the submissions were not relevant considerations.

Dismissed at the Employer’s Initiative

[52] Mr O’Connor submitted that his casual employment was not for a specific period of time and was expected to be ongoing with the ongoing intakes of new students at the start of each scheduled class. Before his employment commenced, trainers and assessors were asked to confirm their commitment that they can deliver all the units offered to students as part of the qualification before the Respondent would give a firm commitment to ongoing work. Classes were scheduled up to 1 year in advance to meet the requirements of the department of immigration requirements for confirming that student was enrolled in the full course as listed on the student visa. As this is the case, Mr O’Connor argued that s.386(2)(a) of the Act is not relevant to the objection.

[53] Mr O’Connor further noted that s.386(2)(b) is not relevant for the consideration of the objection, noting that the employment was not related to training of employees of a workplace. Section 386(2)(c) is also not relevant as submitted by Mr O’Connor.

[54] In respect of s.386(3), Mr O’Connor submitted that if the substantial purpose of the employment of the person under a casual contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligation under this section, this would relate more to the reasons why the application for unfair dismissal was made later than 21 days after the dismissal took effect as this section may be interpreted that casuals were not required to be informed of a termination date prior to a casual conversion. Mr O’Connor advised that it appears to complicate the matter, but has similarities to “sham contractor” arrangements, but rather than the question being whether he is a contractor or not, the definition of casual employment allows the Commission to make a similar ruling as to if an employee is a casual or permanent employee, which he believes falls under the Commission’s jurisdiction.

When did the employment end?

[55] Mr O’Connor noted that the Respondent claimed that Mr O’Connor was dismissed 31 July 2021. The casual employment was on an engagement-by-engagement basis. However, Mr O’Connor objected that there was no work task specified in the work contract supplied by the Respondent, only that Mr O’Connor was a VET trainer tasked to deliver a full qualification. As this is the case, Mr O’Connor rejected the claim that the employment ended at the completion of the task as there were still units yet to be delivered so the task was still ongoing.

The Respondent’s evidence and submissions

[56] By way of context, the Respondent advised that due to the international borders being closed at the time, no students had been able to enter the country. The Respondent’s ELICOS has dropped to under 300 students nationally with 40% of those students studying online, based offshore. Prior to the border closure, the Respondent’s numbers sat just under 3,000. The Respondent’s vocational student numbers saw a slight increase in 2020 as students remaining onshore after border closures moved into vocational studies. At the end of 2021, the Respondent had a 30% decrease.

[57] The Respondent stated that they had to experience losing one-to-two trainers each intake, and this continued. Some senior academics were made redundant.

[58] Regarding the considerations the Commission must have when determining whether to grant an extension of time to a late application, the Respondent submitted that there are no exceptional circumstances. The Respondent noted that Mr O’Connor’s contract specified the nature of the employment as being both casual and on an engagement-by-engagement basis.

[59] The Respondent stated that Mr O’Connor’s last engagement finished the week of 31 July 2021, and no further engagements were offered to Mr O’Connor. The Respondent confirmed that Mr O’Connor contacted the Respondent about possible work for 23 August 2021 and 13 September 2021. The engagement blocks of the Respondent at this time were on 2 August 2021, 23 August 2021, 30 August 2021 and 13 September 2021.

Witness Statement of Babette Furstner

[60] Ms Furstner stated that she had seen a dramatic decline during the COVID-19 pandemic period resulting in the Respondent being unable to offer ongoing engagements to a large number of its casual and permanent staff.

[61] On 13 August 2021, Mr O’Connor emailed stating his availability to work, suggesting he would be available for Mondays and Tuesdays but had quite a lot of other work elsewhere. Ms Furstner stated that scheduling for the upcoming engagement was still in progress. On 18 August 2021, Mr O’Connor was notified that the Respondent would not be engaging him for the upcoming delivery session of 23 August 2021.

[62] Ms Furstner’s evidence is that on 23 August 2021, the Brisbane campus was not able to offer work for two trainers and it reduced hours of work for a further two. Since then, a further six trainers from the Brisbane campus alone had lost some or all work. Ms Furstner stated that the Respondent has regularly advised casual trainers of the ongoing drop in work.

Consideration

[63] Section 15A of the Act defines a casual employee:

“15A  Meaning of casual employee

(1) A person is a casual employee of an employer if:

(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; and

(c) the person is an employee as a result of that acceptance.

(2) For the purposes of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had only to the following considerations:

(a) whether the employer can elect to offer work and whether the person can elect to accept or reject work;

(b) whether the person will work as required according to the needs of the employer;

(c) whether the employment is described as casual employment;

(d) whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

Note: Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.

(3) To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

(4) To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.

(5) A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until:

(a) the employee’s employment is converted to full-time or part-time employment under Division 4A of Part 2-2; or

(b) the employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.”

[64] I am satisfied that Mr O’Connor’s work with the Respondent was as a casual employee. The contract entered into between the parties stated the following:

“ILSC values our people and we will offer ongoing work where possible and where this meets the needs of the business. However casual employment is on an engagement by engagement basis and ongoing work cannot be guaranteed. ILSC-Australia may terminate your employment at any time without notice or payment in lieu of notice in the case of serious misconduct…”

[65] An employment schedule was issued to Mr O’Connor stating, “Casual Trainer”. There are further references to the employment being casual within the agreement between Mr O’Connor and the Respondent. I am satisfied that the Respondent did not make any firm advance commitment to continuing and indefinite work. The title of the role, signed by Mr O’Connor on 28 January 2020 is “casual trainer”.

[66] The terms entered into between the parties give the strongest clarity that the casual employment may end at the conclusion of an engagement. In the circumstances between these parties, an engagement is each block of work, or a term. Mr O’Connor’s last engagement was completed on 31 July 2021.

[67] Mr O’Connor was hopeful of securing his next engagement to commence 23 August 2021, noting he had last worked for the Respondent on 31 July 2021. He was informed on 18 August 2021 that he would not be offered any work in the new term commencing 23 August 2021. Despite his protestations, on 20 August 2021 this information was repeated to him.

[68] Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their “employment” has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee. 1

[69] When analysing whether there has been a ‘termination at the initiative of the employer’ for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment. 2

[70] A ‘termination at the initiative of the employer’ is when two criteria are satisfied:

•  the employer's action 'directly and consequentially' results in the termination of employment, and

•  had the employer not taken this action, the employee would have remained employed. 3

[71] For there to be a ‘termination at the initiative of the employer’ there must be action by the employer that either intends to bring the relationship to an end or has that probable result.

[72] I am satisfied that the termination of the contract between the parties took effect at the initiative of the Respondent on 18 August 2021 in the communication sent by Ms McIntyre. I cannot, however, be satisfied that the employment relationship was terminated at this time. This is so because of the communication by Ms McIntyre on 18 August 2021, hoping to offer to Mr O’Connor work in the future, if at all possible. Mr O’Connor was not informed that he would never be offered work by the Respondent again. The block terms were and are very short, so in my view, sitting out one term of only around three weeks, with the potential for future work did not end the employment relationship.

[73] I have also had regard to the communication sent by Mr Richards on 20 August 2021 where he stated that the Respondent hoped to offer to Mr O’Connor more work in the future, where there would be a clean slate.

[74] On 22 August 2021, Mr O’Connor responded, saying he knew he was not being offered work for the term, but he understood he was being stood down, which he concluded did not constitute termination of his employment. The Respondent took no action to correct him on this issue. Accordingly, this weighs in favour of Mr O’Connor reasonably concluding that the employment relationship was still alive at that time.

[75] I am in no doubt that Mr O’Connor’s email to Mr Richards of 28 August 2021 was condescending, disrespectful and insulting. While suggesting to Mr Richards that Mr Richards had mental health issues and encouraging him to utilise the Respondent’s employee assistance programme, Mr O’Connor stated that he did not wish to hear from Mr Richards at all. Mr Richards responded on 30 August 2021, offering other individuals within the Respondent’s business to whom Mr O’Connor may wish to speak to.

[76] Noting that the 23 August 2021 block term was to run for just a few weeks, it is not unreasonable for Mr O’Connor to have concluded that he might be offered casual work in the next block. He inquired about this and when this did not eventuate, and he was informed by Ms McIntyre on 24 September 2021 that the Respondent would keep him posted if any opportunities arose in future sessions. I accept that he still considered he was employed as a consequence of the language used by Ms McIntyre in her email to him.

[77] Mr O’Connor considered the employment relationship was at an end on 27 September 2021 when he became aware that he had not received a casual conversion letter sent by the Respondent to other casual employees. I accept that this action by the Respondent of not providing to Mr O’Connor a casual conversion letter constituted a termination of the employment relationship as it had no intention, by that act, of providing to Mr O’Connor future work.

[78] I find that the employment relationship came to an end on 27 September 2021 when Mr O’Connor reasonably satisfied himself that he would not be offered further casual teaching work by the Respondent. I am not satisfied that this occurred on 18 August 2021 or at any other time within August, due to the written communication to Mr O’Connor by Mr Richards and Ms McIntyre, suggesting that future casual work was a distinct possibility. I am not satisfied that the employment relationship was severed in their communication; simply, they said there was no casual work at that time, which was for a very short period of time.

[79] Accordingly, I am satisfied that the application has been made within time and there is no requirement to consider the granting of an extension of time.

Conclusion

[80] Having satisfied myself that the application has been made within time, the substantive matter, to determine the application on the merits will be programmed for hearing.

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 1   Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75], see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

 2   Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].

 3   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.