[2010] FWAFB 5455

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Fair Work Act 2009
s.604 - Appeal of decisions

Dr Mark Lea Drummond
Canberra Institute of Technology



Appeal against decision [2010] FWA 3534 of Commissioner Deegan at Canberra on 4 May 2010 in matter number U2009/12914.

[1] This is an application for leave to appeal and an appeal from a decision 1 of Commissioner Deegan.

[2] 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.

[3] 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).

Appeal Principles

[4] 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.

[5] Commissioner Deegan was hearing a jurisdictional objection. The question on appeal is whether Commissioner Deegan’s conclusion was correct.

[6] 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.

[7] 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.

[8] 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:



Leave to Appeal

[1] 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

[2] 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.

[3] 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.

[4] 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.

[5] We decline to grant leave to appeal.


 1   PR999761

 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

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<Price code C, PR999617>