Fair Work Act 2009
s.365—General protections

Bradley Alan Fisk
v
State of Victoria (Department of Health)
(C2021/4254)

Application to deal with contraventions involving dismissal – whether employee dismissed.

[1] On 21 July 2021, Mr Bradley Alan Fisk applied to the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (Cth). The application is made against the State of Victoria (Department of Health) (“the Department”), relating to his former employment working on Victoria’s response to the COVID-19 pandemic.

[2] An application under section 365 can only be made by (or on behalf of) an employee who has been dismissed. A person has been “dismissed” for the purposes of the Act if their employment has been terminated at the initiative of the employer or they have resigned from employment but were forced to do so by the employer’s conduct. 1

[3] The Department objects to the application on jurisdictional grounds: specifically, that Mr Fisk was not dismissed. The Department submits that there was no termination at the initiative of the employer because the employment of Mr Fisk simply came to an end by effluxion of time when his fixed-term contract expired.

[4] On 8 March 2022 I decided to determine the jurisdictional objection on the papers.

[5] The question is whether Mr Fisk was dismissed. I have decided that Mr Fisk was dismissed. These are my reasons.

The dismissal of Mr Fisk

[6] Mr Fisk was initially employed in the role of Public Health Officer for a fixed term (specified task: support the department respond to the Coronavirus pandemic) commencing on 26 August 2020 and ending on 31 December 2020. He worked in the Hotel Quarantine Unit which was part of the Department’s contact tracing team.

[7] For the first 11 weeks, Mr Fisk received no payment for his services. It was a sign of things to come. Significant under-resourcing of the Department’s administrative functions supporting the COVID-19 response left it exposed to “key risks” to its “ability to function”. Management of internal human resources during this period was haphazard, characterised by reactive rather than proactive action. Large numbers of employees were engaged both directly, on secondment and through contractors on fixed-term employment contracts. Inadequate record-keeping meant that managers were reliant on individual employees for information about their employment status or issues, and communication with employees was poor.

[8] On 18 September 2020, the Department revised and circulated a Fixed-term employment contract extensions fact sheet. The fact sheet was to be read in conjunction with Part B of the Recruitment and Deployment during the COVID-19 Health Emergency policy dealing with contract extensions for fixed-term employees. This in turn sought to give effect to the Industrial Relations Framework for Managing the Coronavirus (COVID-19) Pandemic (the Framework), which set out the approach of the Victorian Government to managing pandemic-related industrial relations considerations for the Victorian public sector workforce. The initial Framework, in place until 30 September 2020, was later revised with effect from 14 September 2020.

[9] The Recruitment and Deployment during the COVID-19 Health Emergency policy is not before the Commission: a matter to which I will return. But for now, it is enough to say that through the fact sheet (and presumably the policy), employees were told that if they were on a fixed-term employment contract established before 18 September 2020, their contract would be extended to 30 June 2021, subject to exceptions ‘including’ three specific categories of exception and three additional conditions. The last of the conditions was that there be “no work performance or conduct issues that have been documented and raised with the employee which would make extension of the Employee’s fixed term employment inappropriate.” This mirrored a condition in clause 12.3 of the Framework, which otherwise obliged Victorian public service employers to offer to extend the employment of fixed-term employees to 30 June 2021 “if their contract would otherwise expire after 20 April 2020 and before 30 June 2021”.

[10] Mr Fisk read the information provided to employees on 18 September 2020. On 23 September 2020, he wrote to the Department seeking confirmation as to whether “we are all” being extended to 30 June 2021. It is not apparent that any response was sent to Mr Fisk.

[11] Mr Fisk performed higher duties as Acting Team Leader from 14 – 31 October 2020.

[12] On 1 November 2020, Mr Fisk was asked if he would be interested in a “minimum contract of 4 days a week until 30 June 2021”. He replied by saying “Definitely after full time hours so that would be great if they can work the contract extension for that?” Again, it is not apparent if any response was sent to Mr Fisk.

[13] From 1-18 December 2020, Mr Fisk performed higher duties in the role of Acting Team Leader.

[14] On 2 December 2020, an update was posted to an internal Sharepoint site titled Contract extensions update: what you need to know. The update began:

“Contract extensions are underway and all impacted staff should by now have received advice from managers about the status of their contract.”

[15] Consistent with the advice contained in the earlier fact sheet, the update confirmed that most staff on fixed-term contracts due to expire before 30 June 2021 would be extended to that date, subject to the same exceptions and conditions, including that there be no work performance or conduct issues. In other words, while a contract extension was likely, it was not guaranteed.

[16] At the time he received the update on 2 December 2020, Mr Fisk had not been advised by his manager about the status of his contract. Two days later, a new contract of employment was prepared for Mr Fisk. The contract was sent to Mr Fisk on 8 December 2020 with an offer of employment in the position of Team Leader, VPS 5.2 on a fixed-term basis from 1 December 2020 to 30 June 2021. Mr Fisk did not accept the offer because he disagreed with the rate of pay applicable to the role. He asked for the contract to be changed, but this did not occur. As a result, Mr Fisk did not accept the offer of the Team Leader role and there was no change to his contract of employment.

[17] From 19 December 2020, Mr Fisk performed higher duties in the role of Acting Operations Lead. The expiry of his contract on 31 December 2020 came and went with no further discussion about the status of Mr Fisk’s employment. Mr Fisk continued working as Acting Operations Lead throughout the first quarter of 2021.

[18] By 16 December 2020, contract extension emails had “started flowing” to employees, but not to Mr Fisk. On 6 January 2021, Ms Mercedes Walklate, A/g Assistant Director, Employee Relations, sent an email to Ms Kirsten Dunn, Portfolio Lead, Workforce Deployment and another manager, Ms Mette Jorgensen, about contract extensions for fixed-term employees. The email attached a list of employees showing “a large number of staff who have not been extended beyond 31 Dec 2020”. Mr Fisk was on the list and recorded as “terminated as of 01/01/2021”, with a note “Extend - 30/06/21”.

[19] It is relevant to observe at this point that despite Mr Fisk’s contract of employment not being extended, his access to the Department’s online systems continued unaffected. This is at odds with the evidence of Ms Dunn to the effect that once the expiry date of a contract passes, the employee’s information technology access is automatically revoked. It is however consistent with earlier advice to employees that IT access for employees including Mr Fisk, whose contracts nominally expired on 31 December 2020, was “continuing as the contract extensions and IT are not mutually exclusive”.

[20] An extension to Mr Fisk’s contract was approved by Ms Dunn on 6 January 2021 in response to the email from Ms Walklate. There is no evidence that the approved extension was actioned. The change was not communicated to, or agreed with, Mr Fisk. On 21 January 2021, Mr Fisk sent an email to Mr Ken Jones, Acting Senior Operations Manager, to advise that he was “still waiting for the updated contract to come for that back from the 13/10/20 and the extension”. Mr Jones’ reply, if there was one, is not in evidence.

[21] On 17 February 2021, Mr Fisk responded to a general invitation to employees sent by Warren Crittle, A/g Senior Operations Manager, seeking information about employees’ contractual status and any issues they had with their employment. Mr Fisk’s response set out that he had not been paid for acting up as Team Leader since the previous October, had been issued a new contract with the wrong pay rate, could not elicit a response from human resources and he was not even sure if he had been paid for the first week of his employment.

[22] Towards the end of February 2021, the employment relationship began to deteriorate. Mr Fisk was given a formal direction on 27 February 2021 “in relation to the hours that you have been working above what is required for your Operational Lead role and the impact these hours are having on you in terms of fatigue and your ability to make sound judgements and decisions.” Mr Fisk was directed not to work more than 9.5 hours per day without approval.

[23] Mr Fisk was becoming increasingly frustrated and indignant at how he felt he was being treated. His attitude and behaviour both to work and toward his colleagues began to generate complaints in late March and early April 2021. Separately, but around the same time, further work was being done within the Department on the purported further extension of fixed-term contracts for employees.

[24] On 3 April 2021, issues arose about with Mr Fisk’s behaviour both toward a colleague, about her participation in a meeting, and toward his manager, Mr Jones. It seems that the issues were related to Mr Fisk’s distress about the tone of an email he had received by Acting Senior Operations Manager, Ms Vanessa Gorman, which he told Mr Jones was “causing him significant stress and raising issues with his mental health”. Mr Jones had his own concerns about Mr Fisk’s behaviour, which he recorded as “passive aggressive” and “not willing to reflect on his behaviour or actions”.

[25] At 11.22am on 4 April 2021, Ms Gorman emailed Mr Fisk (copying in Mr Jones) about his not attending a meeting set up to discuss an email (not produced) which it appears was about his “TOIL hours” (time off in lieu), and his declining to talk with Ms Gorman on the teams chat. Mr Fisk responded at 1.35pm, copying in Mr Jones:

“Hi Vanessa,

As per the teams message I have declined to meet, subsequently your follow up email to the teams message including the other SOM, who is not on shift, has left me feeling further threatened by your actions.

If upon investigation I am being treated differently to other staff, then I will demand an apology in written form.

The off-lines status is via my mobile not via the laptop. You would be well aware that has no impact upon calls being received or not. As with two key witnesses in [REDACTED] and [REDACTED] present when I joined the call i disclosed i was in a call at that time, which an audit will demonstrate.

Subsequently it is in the best interests of my health to not entertain any further dialogue at this time.”

[26] At 2.27pm on 4 April 2021, Mr Fisk sent another email to Mr Jones and Ms Gorman. The email said:

“Due to the current climate that has been created by the two of you in your acting SOMs roles and for self preservation of my health – ill be stepping off the floor as per 1430 – without another lunch break ill be using 3 hours this afternoon – effect of immediately, officially for TOIL purposes 1500. I will be non contactable until I return to shift on Thursday 8 April at 0800.”

[27] Ms Gorman responded at 2.45pm:

“Good afternoon Brad,

I am acknowledging our email and I will have a conversation with Human Resources tomorrow around you ‘instructing me’ that you are taking TOIL this afternoon. If you are advising that you are not fit for work today, then I would want to ensure that we are applying the correct leave type, so probably best that I clarify this with HR. I also would as your manager, want to ensure that if there is anything I can do by way of support, that I am actioning that from a well-being perspective.

Again I have reached out multiple times to speak throughout today to speak with you via teams and email, even setting a formal meeting to protect some time for us, all of which you have declined and/or failed attended.

If you have any further queries or concerns please reach out with a phone call on [REDACTED] or via teams I am available all afternoon.”

[28] On 5 April 2021, Ms Gorman made two file notes about Mr Fisk’s behaviour. One included a “PLAN” to do two things: firstly, to “discuss with HR sudden escalation from Brad re: behaviours on 6 April 2021 after the easter long weekend when staff available”, and secondly, to “support [REDACTED] with any issues arising”. Mr Jones sent two further file notes about Mr Fisk to Ms Gorman early the following morning.

[29] On 6 April 2021, Ms Gorman sent hers and Mr Jones’s file notes about Mr Fisk to Ms Dunn and Ms Fran Tiplady in the Department’s Workforce Deployment team.

[30] Separately, but also on 6 April 2021, an email was sent to Operations Leads including Mr Fisk, setting out the process “to provide a list of resources for Executive Director endorsement by 9 April 2021 to have contracts conclude on 30 June 2021, or extended to either 30 September or 31 December 2021.” Once again, fixed-term contract extensions were not guaranteed: as the email noted:

“The conditions for offering an extension of VPS fixed term employment, is subject to no documented work performance or conduct issues, rendering contract extensions inappropriate.”

[31] On 7 April 2021, there were internal discussions about dealing with Mr Fisk. This led to the proposal of a meeting with Mr Fisk for an “initial informal conversation around his performance”. A request was made by Ms Dunn to various managers asking them (about Mr Fisk) to:

“In the interim please keep any future emails/messages you receive that demonstrate misconduct (ie not following explicit directions, refusing to attend calls or catch up with Senior management/stakeholders etc).”

[32] On 8 April 2021, Mr Jones asked Mr Fisk if he had time to talk about staff contract extensions. He then left a voice message for Mr Fisk, flagging the need to discuss the extension of two staff contracts, as well as Mr Fisk’s higher duties.

[33] On 9 April 2021, there was a managerial email exchange about the extension of contracts for Operations Leads including Mr Fisk. Much of the exchange is redacted. What can be discerned is that Mr Jones was asked to provide direct advice concerning Mr Fisk’s ongoing employment “as VPS5”. A table identifying 14 Operations Leads was circulated, with all but one marked “Yes” for extension to 31 December 2021. Ms Gorman then recommended “No” for Mr Fisk as he was “currently being performance managed so would not qualify”. In response, an unidentified person advised as follows:

“Vanessa – I understand that Brad is not “officially” on a performance management plan, therefore we will have to offer an extension to him. However, as I advised ken this morning, we can limit the extension until 30 September.”

[34] Ms Gorman responded by thanking the unidentified person and saying:

“Can we check this with HR, this seems very contradictory and I would not endorse for a contract extension as Brad has being monitored and received a performance directive on email at the end of February and has breached this on 2 occasions.

Fran could we check with Mercedes as i would be concerned about sending mixed messages.”

[35] An unidentified person then responded:

“Hi Vanessa,

Per the advice provided Kirsten:

Have informal conversations with these staff occurred already in regards to underperformance as per the first step outlined on – Unsatisfactory work performance and misconduct – VPS (dhhs.vic.gov.au)?

If staff have not had any communication or documented feedback from their manager about underperformance before now then they cannot be excluded from the extension process of the role is being extended.”

[36] It appears that this advice did not sit well with Ms Gorman. On 11 April 2021, she sent an email to Ms Dunn and others in the Department, including the following statement:

“I would also like to raise my concerns that Bradley may be offered a contract extension as per Dino’s email on Friday, which to me sends a contradictory message around his repeated poor behaviour and disregard to his email directive in late February regarding his working hours. I know that he hasn’t been on a formal performance plan, so seeking your advice in regards to this also.”

[37] On 15 April 2021, a meeting was held between Mr Fisk and his managers. A representative of the CPSU, the Community and Public Sector Union attended with Mr Fisk. The issue of TOIL was discussed. Mr Fisk was questioned by the Department about both his entitlement and accrued amount. He became upset and the meeting ended shortly thereafter.

[38] Mr Fisk took personal leave after the meeting and did not return to work for the Department.

[39] While there are gaps in the evidence, it seems that the internal advice on 9 April 2021 to the effect that Mr Fisk’s contract would have to be extended was either ignored or overruled.

[40] On 22 April 2021, Ms Kirsten Dunn wrote to Mr Mat Williams, Executive Director, Corporate and Logistics under the subject heading of “Sensitive – Removal from FTC Letter - Bradley Fisk”. The body of the email was as follows:

“Hi Mat

As discussed can we look to withhold the processing of the Fixed term Contract for Bradley Fisk

ICCOM – tab CR ICCOM Intellignce [sic] Case Contc.
Position – 581040
Employee – Bradley Fisk
Employee PIN - 2652123

Thank you”

[41] Mr Williams approved the request the same day. Mr Fisk was then excluded from the contract extension process.

[42] On 28 April 2021, a group email was sent by Hugo Chatwin-Smith, Acting Operations Lead, to employees including Mr Fisk. The email stated simply:

“As an FYI – contract extensions are coming out in batches. Don’t stress if you haven’t got yours yet.”

[43] On 3 May 2021, Mr Fisk made a workers compensation claim. The Department accepted liability for the claim on 7 June 2021.

[44] A subsequent group email appears to have been sent to employees on 11 May 2021 extending their fixed term contracts for a further period from 1 July 2021. The email was not sent to Mr Fisk.

[45] On 19 June 2021, yet another group email was sent to employees in the Hotel Quarantine Unit, this time by Melissa Lipari, administrative project officer. It is not clear whether the email was sent to Mr Fisk. The email said:

“Hello team,

I hope you are all doing well!

Could we please ask that any staff awaiting contract extension/being advised of extension please let both Rita and myself know as soon as possible (Marisa C is on leave, please do not include her in the email). We will be passing this information onto the Operations Team to be raised with HR.

Please only advise if you have not received a contract.

Remember to take your breaks, move about and get some fresh air!

Many thanks”

[46] On 25 June 2021, a letter of termination was sent to Mr Fisk by Janelle Francis in the Department’s Health, Safety and Wellbeing Team. The letter began:

“Hi Bradley

I am writing to you about your fixed term employment contract with the department, which will conclude on 30 June 2021. We have been advised that your fixed term contract of employment will end on 30 June 2021.”

[47] The letter went on to outline how Mr Fisk’s entitlement to accident pay was affected by the cessation of his employment. This appears to have been the last communication sent to Mr Fisk from the Department in its capacity as his employer.

[48] What emerges from these facts is that Mr Fisk’s contract of employment did not come to an end by effluxion of time. It could not have, because on 30 June 2021, Mr Fisk was no longer employed on a fixed-term basis. The fixed-term period of his contract of employment had come and gone and yet his employment continued. After 31 December 2020, there was no further agreement in relation to a new fixed term or any other variation to his contract. Mr Fisk’s contract, which was no longer susceptible to effluxion of time because the agreed fixed term had passed, became one of ongoing employment.

[49] I accept this may not have been the Department’s intention, or even what Mr Fisk thought was likely to be the case. But the Department’s contention in this regard rises no higher than that Mr Fisk’s contract of employment was varied at some unspecified time, because he must have known his employment would only ever be fixed-term, and because there were multiple general employee communications about contract extensions to that effect.

[50] The contention fails to grapple with the process established by the Department for extending fixed-term contracts, set out in the Fixed term employment contract extensions fact sheet revised on 18 September 2020. Under the process, even where contracts were to be extended ‘en masse’, employees were to be issued contract extension letters and asked to “indicate their acceptance of the fixed term contract extension by signing and returning the letter of offer as soon as possible before the expiry of their current contract”. An employee who did not sign and/or submit their contract extension acceptance by the due date, would have their contract “lapse and their employment with the department … cease at the end of their current contract.” For employees performing higher duties, as the fact sheet explained: “Any temporary high duties arrangements subsequently established do not automatically extend with the extension of the employment contract.” Mr Fisk was offered a new fixed-term contract but did not accept it. However, his contract did not lapse and his employment did not cease at the end of the initial fixed-term contract on 31 December 2020.

[51] Further, the materials do not support a finding that after 31 December 2020, Mr Fisk understood that his employment was continuing on a fixed-term basis. What they show is that Mr Fisk was unsure about the situation in relation to his own contract of employment and was seeking clarification. He did so on 21 January 2021, and then again on 12 March 2021, almost three months after his fixed-term contract had ended. In this later exchange, Mr Fisk asked what was happening with his contract, sought help to fix a back pay issue and “the contract ongoing please”. No such clarity was provided until the termination of his employment by notice on 25 June 2021, with effect from 30 June 2021.

[52] Neither the subjective assumptions of the parties nor the general employee communications assist the Department to establish that the contract of Mr Fisk was varied as alleged. It does not matter what the parties intended if they did not put those intentions into effect. There is no evidence of any agreement between the parties to amend Mr Fisk’s contract of employment to provide for a further fixed term ending on 30 June 2021. Nor can it be said that there was any implied variation of contract by performance. For the duration of his employment, Mr Fisk remained employed under the terms of his original contract of employment. The second offer of fixed-term employment, which was not accepted by Mr Fisk, did not result in any change to his classification, role or other terms and conditions of employment. The role that had been offered to Mr Fisk was instead offered to another employee.

[53] As for the general employee communications, these were uncertain in their effect in relation to individual employees. Consistent with the Framework and Victorian Government policy, individual arrangements were required to be made with each employee. The Department reserved the right to make exceptions to the general rule. Indeed, the Department purported to exercise its discretion in this regard when it terminated the employment of Mr Fisk on performance grounds on 25 June 2021.

[54] It is likely that the failure to vary Mr Fisk’s contract for a further fixed term was the result of resourcing and administrative pressures affecting the Department’s ability to function (discussed earlier) as well as a failure to resolve the classification dispute that caused Mr Fisk not to accept the offer of the second fixed-term contract after it was sent to him on 8 December 2020.

[55] I find that Mr Fisk’s employment was terminated at the initiative of the Department by email on 25 June 2021. The communication of his dismissal occurred more than two months after the decision on 22 April 2021 not to offer him a contract extension on performance grounds. The termination of employment occurred while Mr Fisk was absent from work on workers’ compensation.

Failure to comply with orders of the Commission

[56] On 28 September 2021, I ordered the Department to produce documents in four categories by 5.00pm on 12 October 2021. The Department did not comply with the order in the timeframe required. Instead, it produced a series of documents over the period from 12 October 2021 to 10 November 2021 under what it described as its “continuing obligation” to produce.

[57] On 14 October 2021, I issued a second order for production, requiring the Department to produce documents by 5.00pm on 19 October 2021 in the following category:

“Any document pertaining to the Respondent’s staffing requirements in the Case, Contact and Outbreak Management division in 2021 and any decision not to offer continuing employment to employees on fixed term contracts in that division beyond 30 June 2021, as well as any document setting out the criteria upon which the decisions as to contract extensions beyond 30 June 2021 were made.”

[58] The effect of the second order was to broaden the scope of one category of documents required by the first order. On 19 October 2021, the Department filed a single document in response to the second order for production – an incredible response to such a broad category of documents. Additional documents were produced by the Department on 1 and 10 November 2021.

[59] It is apparent on the face of the record that there are documents in existence that are captured by the scope of the orders but which have not been produced. I referred above to the Recruitment and Deployment during the COVID-19 Health Emergency policy, which was to be read in conjunction with the Fixed-term employment contract extensions fact sheet sent to employees in September 2020. The policy would plainly fall within the scope of the order, both as a document “pertaining to the assessment as to whether or not to extend the Applicant’s employment beyond 30 June 2021” and a document “setting out the criteria upon which the decisions as to contract extensions beyond 30 June 2021 were made.” Other documents referred to in the materials appear not to have been produced, including the full chain of email correspondence in numerous exchanges and email attachments to various emails produced.

[60] Of the documents that have been produced, many are so redacted as to be rendered meaningless – more akin to an indecipherable QR Code or black screen than a document containing information that may be relevant to the proceedings. The explanation given for some of the redactions is “confidentiality”. A party to whom an order to produce documents applies is not at liberty to choose which documents it produces, or which it will produce in full or in part. These are matters for the Commission. Confidentiality orders can be sought if needs be, or an application for orders to be set aside or amended - for example if they impose an unreasonable burden on a party. No application for orders of this kind was made by the Department.

[61] Failure to comply with orders of the Commission is a serious matter. While enforcement of provisions of the Act is beyond the power of the Commission, it reflects very poorly on the Department, a representative of the State of Victoria, that the matter arises for comment at all.

Disposition

[62] As the termination of Mr Fisk’s employment was at the initiative of the Department, Mr Fisk was dismissed for the purposes of the Act. He can apply to the Commission to deal with the dispute under section 365.

[63] The jurisdictional objection is dismissed. The application will now be referred for conciliation.

COMMISSIONER

Hearing details:

Matter determined on the papers.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth), ss 12 and 386.