FWAFB 5455
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT DRAKE
SYDNEY, 6 AUGUST 2010
Appeal against decision  FWA 3534 of Commissioner Deegan at Canberra on 4 May 2010 in matter number U2009/12914.
 This is an application for leave to appeal and an appeal from a decision 1 of Commissioner Deegan.
 Commissioner Deegan ordered that Dr Drummond’s application be dismissed for want of jurisdiction. She found that Dr Drummond’s employment was terminated at the expiration of a fixed term contract which expired on 30 September 2009. In that circumstance she found that there was no jurisdiction for an application pursuant to s.386 of the Fair Work Act 2009 (the Act) because there was no termination of employment at the initiative of the employer.
 At the hearing of the appeal Dr Drummond represented himself. He filed an objection to CIT being represented at the appeal by legal advisers 2. He withdrew that objection at the hearing3. Mr Jarvis, of Senior Counsel, appeared for the Canberra Institute of Technology (the CIT).
 Leave to appeal from a decision made following upon application of this kind is governed by Section 400 of the Fair Work Act 2009 (the Act). This is a new approach to the grant of leave to appeal. This change has been discussed in GlaxoSmithKline Australia Pty Ltd v Colin Makin, 4 a recent full Bench decision of this Tribunal. The application for leave to appeal is to be determined by a consideration of whether or not the issues for determination are of such importance that, in the public interest, leave should be granted and also, as to whether or not the decision involved a significant error of fact.
 Commissioner Deegan was hearing a jurisdictional objection. The question on appeal is whether Commissioner Deegan’s conclusion was correct.
 Grounds of Appeal
Dr Drummond provided a very large quantity of written submissions which expanded upon his grounds of appeal. Some of these submissions were provided after the date on which he had been directed to cease providing submissions. In the circumstances, as Dr Drummond was representing himself in what he perceived to be a very difficult legal challenge, we decided to allow his submissions in full. Dr Drummond informed the Bench that he found the process of appearing and appealing “very scary”. 5 The CIT provided written submissions6. Both Dr Drummond and CIT’s Counsel supplemented their written submissions by further oral submissions at the hearing of this appeal on 15 July 2010.
 Dr Drummond submitted that there were legal errors in the reasoning of Commissioner Deegan. Dr Drummond had obviously spent many hours in research and preparation for the presentation of his appeal. He had examined the Act and its predecessor. He had read text books, legislation, regulations and learned articles on the operation of the Act and he provided expansive extracts from all these sources. We recognise he approached it as a difficult matter to be determined.
 We have set out below some of the discrete points raised in oral submissions by Dr Drummond, going to the public interest as well as alleged errors of fact and law in the decision under appeal, namely:
• CIT conspired to bring about the end of his employment 7. He was put off balance by the last minute concession made by CIT at the hearing before Commissioner Deegan concerning a matter he had thought was in dispute. As a result he did not put his argument in this respect, although he did make that submission before this Full Bench.8
• Section 386 of the Act has terminal problems from a theoretical point of view, unless the jurisdictional objection of an employer and merit case are heard together. 9 In Dr Drummond’s application they were not heard together.
“---with an emphasis on the exclusion and counter exclusion proof burdens. If it is a so-called true specified period contract then it seems fairly clear if you’re captured by 386(2) the proof of burden goal posts are quite clear in that it is 386(2) and 386(3) to counter exclude.”
• Case law in this Tribunal is not “fair game”, “---because of the emphasis on it being a non-lawyer tribunal system.” 12 We understood this to be a submission that reliance on precedent was unfair to an unrepresented applicant.
• Section 386 hasn’t yet been “sorted out and therefore the decision on his application is premature 13.”
• Dr Drummond has an increasing certainty “---that outer limited specified period contracts and so-called true specified period contracts are henceforth going to be treated the same.” 14 This submission arose from Dr Drummond’s examination of the Explanatory Memorandum.
• The Bench asked Dr Drummond to address the subject of CIT’s objection.
“COMMISSIONER ROBERTS: Mr Drummond, 386(1)(a) it says, “Has been terminated on the employer’s initiative.” 15
COMMISSIONER ROBERTS: The issue here seems to be what was the application of the Act in circumstances where the contract reached its use by date in a very colloquial sense? 16
SENIOR DEPUTY PRESIDENT CARTWRIGHT: The question is, well, was that a termination on the employer’s initiative? I hear your submission but I’m sort of struggling with, okay, how do you fit that into the words, ‘Has been terminated on the employer’s initiative?’” 17
Dr Drummond’s response was as follows:
“Yes, your Honour. In relation to your question is it in the context of - I mean what I’m trying to articulate is a restitution style argument that but for a whole lot of things that happened well before that last contract. In terms of the Mohazab and O’Meara style chain of events line of argument, that I believe it is unfair to fixate on just one narrow interpretation of one isolated contract that just happened to be the one that I ended up with, high and dry as a teacher.
A married man with three kids, where people knew that I would struggle to get work until when it eventuated in January of 2010, I felt that there was intent and knowledge, and that these people knew what was going to happen to me. The individual referred - the central figure in the email that I sent yesterday afternoon told me on the phone on 25 September that he knew when he rejected my application for permanency that I submitted in May and which wasn’t actioned until September, he knew that that would have the effect of leaving me out of work.
I have always, from my original form F2 on 14 October have always maintained in what to me what was just a positive assertion that 386(1)(a) did apply. That that is one of the things that brought an end to my contract and it is only the fact that there were other lines of attack on my employment security that, well, it has made it hard for me in part I think because I’ve had many strong lines of argument only because I was attacked from many different directions that are set out in different what I call exhibits that I have entered in.” 18
• Dr Drummond submitted that he did not have an adequate opportunity before Commissioner Deegan to put what he wanted to say:
“---Somewhere in the transcript I said, ‘Yes, Commissioner, I think I do actually have a strong case,’ and thereafter I was basically at the mercy of what the Commissioner was letting me say. I felt shut out. Bluntly, I wasn’t given a fair hearing to say what I wanted to say. I can’t emphasise too strongly, I was given the Lunn case to read over the lunch. I had my own ideas of how I would have wanted to present my case after lunch, but Lunn took over everything, and the thing with Lunn your Honour, is that Lunn has nothing to do with shams. Lunn is part of that parallel universe that is at the core of the problem here.” 19
“---several occasions where I was if you like, cut short, where I didn’t feel I was given a fair hearing to say what I wanted, and in particular to me an overwhelming significant point is that when that hearing concluded the Commissioner made it clear that there were things that she still needed to figure out and that the respondent and I were going to be given an opportunity to help her figure that out if you like, almost in a research assistant role, in that question we were given, and I felt that that is a lot to ask of any parties to this because, I mean, with all due respect - - -” 20
• Dr Drummond also made the following submission:
“---Yes. Your Honour, I guess the point I want to make, and I would appreciate it if you could let me know if I have made it, is that the wording of 386(3), the counter exclusion proof burden goal posts articulated in 386(3) differ from those in Lunn where Lunn refers to an Equus court case which talks about established categories of exclusion which I took to mean, well, it articulated mistake, fraud, misrepresentation and my understanding is that you would add to that coercion and duress.” 21
Leave to Appeal
 Having considered all of the material and submissions relied upon by Dr Drummond, we are satisfied that Commissioner Deegan did not err when she concluded that Dr Drummond was not dismissed from his employment at the initiative of CIT, but that his contract expired by the ordinary passing of time. Dr Drummond was employed under a contract concluding on 30 September 2009. We agree with the Commissioner, in noting paragraph 1532 of the Explanatory Memorandum, which deals with s.386(2) of the Act, that the effect of s.386 is that “a contract which ends with the effluxion of time does not terminate at the initiative of the employer.” 22
 Nor do we accept that there is any evidence on the material before the Commissioner, or before us, that CIT used that particular form of contract as a device to end Dr Drummond’s employment.
 In our view the Commissioner was correct in concluding that, in the circumstances of this case, there was no termination at the initiative of the employer.
 Further, we have determined that none of the matters raised by Dr Drummond are matters of such importance that leave to appeal should be granted in the public interest.
 We decline to grant leave to appeal.
SENIOR DEPUTY PRESIDENT
2 Exhibit D1 12 July 2010
3 Transcript PN25 and PN26
4 PR999462 - 23 July 2010
5 Transcript PN63
6 Exhibit CIT 1
7 Transcript PN103 and PN116
8 Transcript PN’s197, 199 and 201
9 Transcript PN81
10 Transcript PN85
11 Transcript PN101
12 Transcript PN102
13 Transcript PN103
14 Transcript PN107
15 Transcript PN197
16 Transcript PN199
17 Transcript PN201
18 Transcript PN205 - 207 inclusive
19 Transcript PN157
20 Transcript PN230
21 Transcript PN168
22 Print PR999617, para 51
Printed by authority of the Commonwealth Government Printer
<Price code C, PR999617>