[2018] FWC 7402
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Kelvin Mateer
v
International Education Services Limited T/A IES Senior College
(U2018/5924)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 DECEMBER 2018

Application for an unfair dismissal remedy –series of fixed term employment contracts – whether applicant dismissed.

[1] On 8 June 2018 Mr Kelvin Mateer made an application to the Fair Work Commission pursuant to s.394 the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by International Education Services Limited T/A IES Senior College (IES).

[2] IES disputes that the Commission has jurisdiction to hear the application on the ground that Mr Mateer was not dismissed within the meaning of s.386(1) of the Act.

[3] The matter was listed on 29 August 2018 to determine the jurisdictional objection. At the hearing, Mr Mateer appeared on his own behalf and Ms A Smeaton, having been granted permission pursuant to s.596 of the Act, appeared on behalf of IES.

[4] For the reasons set out below, I find that Mr Mateer was not dismissed within the meaning of s.386(1), and accordingly I will dismiss his application.

Factual background

[5] IES provides educational programs to international students, including the Foundation Year Program (FYP) to meet entry level requirements of the University of Queensland.

[6] The FYP is divided into two streams which follow the University of Queensland’s intake program, being

a. Stream A: student program runs from February to December;

b. Stream B: student program runs from August to May.

[7] Mr Mateer was employed by IES as a full time Stream B subject teacher working in the academic English and research units of the FYP, under three consecutive specified term contracts for a period of approximately three years and four months, being:

a. 19 February 2015 to 31 December 2015;

b. 1 January 2016 to 31 December 2016; and

a. 1 January 2017 to 25 May 2018.

[8] Mr Mateer’s employment was covered by the International Education Services Ltd Collective Enterprise Agreement 2014 (the Agreement) which provides for fixed term appointments under clause 4.4.

[9] Each of the three contracts contained agreed commencement and end dates and provided an unconditional right to terminate on notice, or payment in lieu of notice, in accordance with clause 5.10 of the Agreement.

[10] On 4 May 2018, Mr Mateer attended a meeting with the IES personnel where he was informed that he would not be offered a further contract of employment after his third contract expired on 25 May 2018.

Legislative framework

[11] Fundamental to a finding of unfair dismissal is that the person seeking relief must have been dismissed. Section 386 sets out the meaning of ‘dismissed’ for the purposes of the operation of this part of the Act. It provides, relevantly:

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; …

(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; …

(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.

[12] These provisions were considered by a Full Bench of the Commission in Saeid Khayam v Navitas English Pty Ltd t/a Navitas English1 (Navitas). The majority of the Full Bench in Navitas summarised the proper approach to the operation of s.386(1)(a) as follows:

“[75] Having regard to these propositions and the court decisions to which we have earlier referred, we consider that s 386(1)(a) should be interpreted and applied as follows:

(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.

(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date. However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:

● the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;

● the employee entered into the contract as a result of a serious mistake about its contents or subject matter;

● there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;

● the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;

● the employee lacked the legal capacity to make the contract; or

● the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-limit on the employment.

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts.

(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies.

(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship.

(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated.

(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract.” (citation and references omitted)

[13] The majority of the Full Bench in Navitas also endorsed the proposition of an earlier court decision in Andersen2 to the effect that where the contract has an unqualified right to terminate on notice or with payment in lieu of notice, it is not a contract for a specified period of time within the meaning of s.386(2)(a).

Issues to be determined

[14] There is no dispute that Mr Mateer was employed by IES under three successive fixed term contracts between 2015 and 2018, and that his employment came to an end on 25 May 2018 at the expiry of the last contract. The contracts between Mr Mateer and IES are ‘outer limit contracts’ which contain an unqualified right for the parties to terminate with notice before the specified end date.

[15] Following the approach in Navitas, it is clear that Mr Mateer’s contract cannot be characterised as one for a specified period of time for the purpose of s.386(2)(a) of the Act.

[16] It follows that the exclusion provision in s.386(2) is not enlivened and the issue left to be determined is whether Mr Mateer’s employment was terminated on the initiative of IES, by not offering him a further contract. In doing so, matters requiring consideration include:

1. the circumstance of the entire relationship;

2. whether the action of IES was the principal contributing factor which resulted directly or consequentially in the termination of Mr Mateer’s employment;

3. whether there were any vitiating factors; and

4. whether the terms of the contract reflect a genuine agreement that the employment relationship would end with the expiry of the employment contract. If such a genuine agreement exists then generally there will be no termination at the initiative if the employer.

Relevant provisions of the Agreement

[17] The Agreement provides the following in respect of fixed term contracts:

4.4 Fixed Term

4.4.1 Appointment

(a) Fixed-term positions are those identified as meeting an identifiable short-term need.

(b) Employees whose positions are identified as continuing positions will be appointed to continuing status.

(c) It is recognised that in some situations a teacher may accept appointment to a series of fixed-term appointments for a series of identifiable, short-term needs. It is recorded that, where reasonably possible, employees should be employed on continuing contracts of employment.

(d) For employees employed before 01 January 2014: Where an employee has been employed on a series of fixed-term appointments for five (5) consecutive years, the employer will offer the option to convert to continuing status on their anniversary date.

(e) For employees employed after 01 January 2014: Where an employee has been employed on a series of fixed-term appointments for four (4) consecutive years, the employer will offer the option to convert to continuing status on their anniversary date.

(f) It is noted that the non-renewal of a fixed-term appointment to avoid the operation of this clause is considered adverse action and subject to the operation of both the disputes clause of this agreement and applicable legislation.

4.4.2 Fixed term appointees shall be paid in accordance with the scale of salaries prescribed in Schedule C - Salaries.

4.4.3 A fixed term appointee will be provided with at least four (4) weeks’ notice of the conclusion of employment or the offer of a further contract of employment.

4.4.4 Any agreement reached between the college and the individual teacher as prescribed by this clause shall be in writing, signed by both parties and shall clearly identify the terms conditions and specific duration of the appointment.

4.4.5 Should an employee be offered successive contracts, there will be no break in employment between the termination of the first and the commencement of the second.

Evidence

[18] Oral and/or written evidence was given by the following persons:

a. Mr Kelvin Mateer;

b. Ms Rebecca Cameron – Teacher;

c. Mr Michael Schiffke – Teacher;

d. Ms Natalie Oostergo – Deputy Academic Director (Arts and English Language Intensive Courses for Overseas Students (ELICOS)), IES;

e. Mr Russell Thompson – Academic Director, IES;

f. Mr Ashley Moor – Head of Department (Academic English), IES;

g. Mr Scott Leisemann – Deputy Academic Director (Science and Business).

[19] I have carefully considered all of the evidence and submissions made by both parties. The matters set out below are confined to the issues I need to determine.

Kelvin Mateer

[20] It was Mr Mateer’s evidence that he was under the impression that his position was stable and if he performed his work well he would be retained as an ongoing employee.

[21] Mr Mateer asserted that representations were made to him to the effect that there was the prospect of an ongoing employment relationship beyond the third fixed term contract. He said that the discussion at a Professional Performance Review and Development (PPRD) meeting on 1 May 2018 gave him every indication that the employment relationship was to continue. There was no performance issues raised at the PPRD meeting and it concluded with a very cordial handshake and the invitation to meet on Friday 4 May 2018 for the contract meeting.

[22] Mr Mateer said that he presumed that an offer of a further contract was a fait accompli given the positive feedback. At no time was he advised that there was a downturn in student numbers or that IES’s revenue base was under threat.

[23] Mr Mateer raised an issue of him working through his meal breaks. Mr Mateer said that this served to illustrate the ongoing nature of the employment relationship. He said that he had demonstrated a preparedness to forgo breaks and work extended hours to accommodate the vagaries of increased student numbers and timetabling issues. There was no reciprocity when the contract was terminated on 4 May 2018.

[24] Mr Mateer denied that he was told by Ms Oostergo that IES could not guarantee continuing employment and that he should look for other work if he was not comfortable with the inability of IES to provide information about further contracts.

[25] Mr Mateer asserted that he was not offered another contract because IES wanted to avoid its obligation to convert his employment to ‘continuing status’ in accordance with clause 4.4(1)(e) of the Agreement. He said that IES used the ruse of dwindling student numbers as part of a strategy to avoid offering permanency to employees who had been employed on successive fixed term to contracts. Mr Mateer also gave evidence that less than 10% of academic staff have full-time permanent status, which he said dispelled the myth that IES was committed to offering stable employment.

[26] In cross examination, Mr Mateer confirmed that he was admitted as a solicitor in the Supreme Court of Queensland and since 2006 has conducted a business as an immigration lawyer and migration agent.

[27] He confirmed that he was ‘very familiar with’ clause 4.4 of the Agreement, which he acknowledged was ‘hotly contested’ in negotiations for the Agreement. He also confirmed that he had read his contract of employment carefully and acknowledged that the contract had a start and end date.

[28] He also acknowledged in cross examination that he was not a permanent employee, and agreed that his contract expiry date coincided with the end of the 2017 Stream B Program.

Rebecca Cameron

[29] Ms Cameron was employed by IES as an English Language teacher for a period of two years and 10 months over three successive fixed term contracts. It was her evidence that she was advised at a meeting on 4 May 2018 that she would not be offered a further contract, based on lower student projections.

[30] She gave evidence that during an Academic English (AE) staff meeting on 30 August 2018, the Head of Department announced that no staff from AE had ‘volunteered’ to contribute to the development of resources for the STEM programme. Staff were advised that contributing to this program would be a key performance indicator in 2018. It was her impression that if people did not volunteer to work on the STEM programme, they would be seen not to be meeting key performance indicators, thereby putting the renewal of their contracts in jeopardy.

Michael Schiffke

[31] Mr Schiffke was employed by IES as an Academic English Language Teacher on two fixed term contracts from 22 February 2016 to 31 December 2017. He said he was advised in a meeting on 1 December 2017 that he would not be offered a further contract, due to lower student numbers.

[32] Mr Schiffke gave evidence that during a meeting on 23 August 2017, Ms Oostergo implied that future contracts would be less likely if teachers did not participate in the STEM project.

Natalie Oostergo

[33] Ms Oostergo is the Deputy Academic Director (Arts and English Language Intensive Courses for Overseas Students).

[34] Ms Oostergo gave evidence that student numbers fluctuate from year to year for a number of reasons, including but not limited to, the exchange rate; the popularity of Australia as a destination, and international laws relating to immigration and studying abroad. It was her evidence that fixed term contracts are a business requirement and an operational necessity across the sector due to this fluctuation in student numbers.

[35] Ms Oostergo said that a decision was made in April/May of 2018, based on student enrolments and projection of student numbers for Stream B in 2018, that staffing levels needed to be reduced by four equivalent loads. It was her evidence that two of these positions needed to be reduced in the Academic English and Research Area.

[36] Ms Oostergo stated that she was required to recommend two fixed term contract employees to be offered further contracts for the 2018 Stream B program and that in coming to her recommendation she considered various factors, including performance, teamwork, motivation and skills. She said that the decision came down to which staff were most valuable to her department. She considered that there were two staff members who contributed more to the curriculum and resource development in addition to teaching duties. Mr Mateer was not one of those and therefore did not form part of her recommendation.

[37] Ms Oostergo said that she did not consider teaching performance or length of service of fixed term staff in coming to her recommendation. She said that all fixed term staff had satisfactory performance and positive student feedback. Also, she was not aware of the length of fixed term staff’s employment prior to her commencing employment in 2016.

[38] Ms Oostergo denied that the decision not to offer Mr Mateer a further contract was to obviate IES’s obligation to offer him the option to convert to a permanent position.

[39] Ms Oostergo further denied that IES ever provided an expectation of ongoing employment to Mr Mateer. She said that all academic staff including fixed term staff had to undergo the PPRD process, regardless of whether they were continuing or not. The meeting between Mr Moor and Mr Mateer was the final stage of the PPRD process and should not have led to an impression that the relationship was continuing.

[40] It was Ms Oostergo’s evidence that she and Mr Mateer had a discussion on 19 March 2018 during a PPRD meeting and she informed him that IES could not guarantee continuing employment or that he would be offered a further fixed term contract beyond 25 May 2018. She stated that she encouraged Mr Mateer to look for other work at this time if he was not comfortable with the inability of IES to provide information about further contracts.

[41] Ms Oostergo denied that at a meeting on 30 August 2018 there were any representations made that teachers who were involved in the curriculum process would be more favourably considered for contract renewals. She also denied that there was an implication that teachers who did not volunteer to work on the STEM programme would be perceived as not meeting KPIs, therefore jeopardising future contracts.

Russell Thompson

[42] Mr Thompson is the Academic Director of IES and has been in this role for eleven years.

[43] Mr Thompson said that IES’s engagement of fixed term staff is a legitimate employment option and is supported by the Agreement.

[44] Mr Thompson said that he was of the view that all fixed term staff including Mr Mateer were well aware of the operational requirements in the use of fixed term contracts and that fixed term contracts were dependant on fluctuations in student projections. He asserted that there are constant reminders of the conclusion of fixed term contract dates in staff meetings throughout the relevant Stream A or Stream B programs.

[45] Mr Thompson stated that IES do not offer any guarantee of further fixed term contracts being offered to fixed term staff for ongoing employment.

[46] He gave evidence that based on the student projections for the 2018 Stream B program, IES considered that it did not require as many academic staff and so employment could only be offered to seven fixed term staff across the two departments (Science and Business and Arts and English) as at May 2018. It was his evidence that in coming to the decision about which staff would not be offered further fixed term contracts, IES did not consider:

a) performance, as no teachers were on a performance management plan;

b) the length of a fixed term employee’s employment with IES; or

c) the age or pay level of fixed term employees.

[47] Mr Thompson stated that at the cessation of the 2017 Stream B Program on 25 May 2018, four fixed term staff including Mr Mateer were not offered further fixed term contracts. IES retained seven fixed term staff for the 2018 Stream B Program.

[48] Mr Thompson said that since the Agreement came into force in July 2014, there had been 15 fixed term staff offered the option to convert to permanent and 14 out of the 15 accepted the option and converted to permanent employment.

[49] Mr Thompson denied that there was a reasonable expectation of ongoing employment provided by IES to Mr Mateer. The PPRD process was solely about performance and professional development and did not provide fixed term staff with any guarantee of ongoing employment. Mr Thompson said that he communicated to Ms Oostergo and Mr Leisemann that there was to be no discussion about the offer of further fixed term contracts in the PPRD process.

Ashley Moor

[50] Mr Moor is the Head of Department (Academic English). He is responsible for the day to day running of the academic English department and the academic staff within the department. He was Mr Mateer’s direct supervisor for the 2017 Stream B Program.

[51] Mr Moor attended a meeting on 4 May 2018 with Mr Mateer and Mr Leisemann. At the meeting Mr Mateer was informed that his employment with IES would be concluding on the expiry of his fixed term contract date of 25 May 2018.

[52] Mr Moor said that he told Mr Mateer he would not be offered a further contract because student projections for the 2018 Stream B Program were still ‘up in the air and not known’. Mr Moor said that Mr Mateer was told by Mr Leisemann that he was welcome to apply for any future positions with IES.

[53] Mr Mateer left the meeting without taking the cessation of employment letter dated 4 May 2018 prepared by IES’s human resources. The letter was later provided to Mr Mateer.

[54] Mr Moor said that in the academic English department, another fixed term staff member finished at the same time as Mr Mateer. There was no other person performing Mr Mateer’s position as his position concluded at the cessation of the 2017 Stream B Program.

[55] Mr Moor stated that Mr Mateer’s performance was satisfactory and did not have any impact on the conclusion of his fixed term contract and fixed term employment with IES as it simply concluded on 25 May 2018, being the cessation of his fixed term contract and the end of the 2017 Stream B Program.

[56] Mr Moor denied making any representations to Mr Mateer about the continuity of his fixed term employment with IES. Mr Moor said that he reinforced to Mr Mateer that he was not aware of whether a further fixed term contract would be offered.

[57] Mr Moor maintained that there was no discussion with Mr Mateer about his fixed term contract at the 1 May 2018 PPRD meeting.

Scott Leisemann

[58] Mr Leisemann is the Deputy Academic Director (Science and Business).

[59] Mr Leisemann did not have any involvement with Mr Mateer’s position at IES, although he is involved in the decision-making process for staffing levels required for the Stream A and Stream B intakes of the FYP.

[60] Mr Leisemann gave evidence that the decision to offer a fixed term contract is based on student numbers, projections and enrolments.

[61] He attended the meeting on 4 May 2018 with Mr Moor and Mr Mateer to provide Mr Mateer with formal notification of the conclusion of his fixed term contract. Mr Leisemann was present at the meeting because Ms Oostergo was on sick leave.

[62] Mr Leisemann said that there was no discussion at the meeting about Mr Mateer’s performance as this had no bearing on the conclusion of his fixed term contract.

Submissions of IES

[63] IES summarised the basis of its objection at the outset as follows:

a. Mr Mateer was not dismissed at its initiative within the meaning of s.386(1) of the Act. Rather, Mr Mateer’s employment was terminated due to the effluxion of time at the expiry of his fixed term contract;

b. Mr Mateer was employed under a contract of employment for a specified period of time and his employment with IES terminated at the end of the period, within the meaning of s.386(2)(a) of the Act;

c. the anti-avoidance provisions under s.386(3) of the Act have not been enlivened; and

d. Mr Mateer has not been dismissed within the meaning of the Act, and does not have jurisdiction to bring the application in accordance with s.394(1). Accordingly, the application should be dismissed.

[64] The contract represented a genuine agreement by the parties. The terms were clear and unambiguous and had not been vitiated, varied or replaced. It came to an end at the effluxion of time on the agreed expiry date of 25 May 2018 coinciding with the cessation of the 2017 Stream B Program.

[65] The decision by IES not to offer Mr Mateer a further fixed term contract was based on legitimate business reasons, and was not related to his performance or length of service with IES. There is no other person performing Mr Mateer’s position following the cessation of the 2017 Stream B Program.

[66] IES submitted that the engagement of fixed term staff is a feature of the education industry, particularly in the pre-university international education industry due to fluctuations in student numbers. Further, the use of fixed term contracts to engage academic staff is a legitimate operational necessity to resource the Stream A and Stream B intakes of the FYP and not to avoid any of its obligations under the Act.

[67] IES submitted that it made no representation at all to Mr Mateer about the continuity of his employment or that he would be offered a further fixed term contract.

[68] IES argued that it was clear at all relevant times to Mr Mateer that there was no guarantee that he would be offered a further fixed term contract.

[69] The contract complies with the requirements of clause 4.4 of the Agreement and there was no requirement for IES to take some positive act to bring it to an end beyond the mere step of communicating to Mr Mateer that his fixed term contract would be concluding at its expiry date and that he would not be offered a further contract.

[70] IES’s submissions addressed matters raised in Navitas and drew distinction to the present case. It argued that the relationship in Navitas came to an end due to performance issues and the position continued to be performed by another employee.

Submissions of Mr Mateer

[71] Mr Mateer provided detailed written submissions which I have taken into account in coming to my decision.

[72] Mr Mateer submitted that IES has used fixed term contracts on a rolling basis, leading to doubts about the true nature of the employment relationship.

[73] Mr Mateer asserted that there were a series of fixed term contracts over the course of four consecutive years and that IES terminated the employment relationship to avoid an obligation under clause 4.4.1(e) to offer the option to convert to continuing status which would be applicable in early 2019. He further argued that the dismissal was at the initiative of the employer motivated by IES wishing to avoid offering permanency and its obligations for redundancy under the Act.

[74] Mr Mateer’s submissions also went to the following matters:

a. IES replaces fixed term staff with less qualified casual and tutorial staff.

b. IES had recently unfairly dismissed 4 mature teachers (who are all over 50 years of age) who all had been employed on a series of fixed term contracts.

c. He performed other administrative duties apart from his teaching role.

[75] Mr Mateer submitted that the third fixed term contract did not capture the reciprocity and ongoing nature of the employment relationship. He referred to an email of 4 November 20163 which he submitted made explicit reference to further contracts and pointed to an indication that his employment was ongoing. That email from Mr Thompson, addressed to ‘IESFY Teaching staff’, was in the following terms:

“Hi everyone

I was not able to attend the Stream B staff meeting this week, so I am writing this email to provide Stream B teachers with the information provided in the Stream A meeting today regarding the proposed teaching stream 2017. I explained that Stream A contracts for 2017 will be the standard 1 year but that Stream B contract for around 18 months. This is to allow for both contract streams to end at the time of the long break period main enrolment. Further contracts after those being issued for next year will all revert to the standard 1 year duration. I also informed staff that there would be limited opportunities to change from Stream A to Stream B … but there may be opportunities to change stream options within Stream A or B. We will also have a morning Staff meeting next week from 8:00 am until 9:00am on 11 November to allow staff to ask questions of the new stream options. Staff can also email Lorraine Dyer with questions or discuss options during their meeting for the final part of the performance review process.”

[76] Mr Mateer submitted that his higher pay rate was another salient factor in not offering him a new fixed term contract.

[77] Mr Mateer denied that staff were regularly reminded in staff meeting of the conclusion of fixed term contract dates. Weekly staff meetings, he argued, generally took the form of information dissemination concerning issues surrounding assessment, timetabling and subject presentations. However, Mr Mateer acknowledged that “staff were always reminded of impending finish dates for different Stream A and Stream B cohorts in order to hastily finalize the administrative elements of the programs.”

Consideration

[78] I now turn to consider whether Mr Mateer’s employment ended at the initiative of IES.

[79] It is not in dispute that Mr Mateer was informed at a meeting on 4 May 2018 that he would not be offered a further contract. The cessation of employment letter dated 4 May 2018 indicated that his last working day at IES would be 25 May 2018, being the specified end date of his last contract.

[80] The Agreement specifically provides for the use of fixed term contracts at clause 4.4, and the evidence demonstrates this clause was the subject of much debate during the negotiations for the Agreement. Further, the Agreement provides that where an employee has been employed on a series of fixed term contracts for four consecutive years, IES will offer the option to convert to ‘continuing status’ on their anniversary date.

[81] I do not accept Mr Mateer’s contention that IES did not offer a further contract so as to avoid its obligation to offer him a permanent position and possible future redundancy. In this regard, I accept the evidence of Mr Thompson that IES has in the past fulfilled the agreement provision by converting staff on fixed term contracts to permanent positions. There was no challenge to the evidence that in recent years, 14 out of 15 employees on fixed term contracts who met this criterion accepted an offer continuing employment in accordance with that provision.

[82] I cannot discern any vitiating factors identified in Navitas as being applicable in Mr Mateer’s circumstances. To this end, I am satisfied and find that Mr Mateer did not enter into the contract as a result of misrepresentation or misleading conduct by IES. Notwithstanding the views of Mr Mateer, Ms Cameron and Mr Schiffke that their contracts were not renewed due to their lack of participation in the curriculum process, their claims were not substantiated by any evidence.

[83] There was no issue raised concerning Mr Mateer’s performance, and I accept IES’s submission that performance did not form part of the decision to not offer Mr Mateer a further contract.

[84] I am also satisfied that IES did not make representations to Mr Mateer to the effect that he would be offered a further contract.

[85] I am further satisfied on the evidence that the decision not to offer a further contract to Mr Mateer was based on student projections, which constituted a legitimate business reason for not making a further offer. While there is no doubt Mr Mateer wanted a further contract, it is clear on the evidence that he understood his employment would cease at the end of the contract if no further contract was offered.

[86] I note that Mr Mateer is legally qualified, having conducted his own migration business for a number of years. I am satisfied he was fully aware of the terms and effect of both the Agreement and his employment contract.

[87] I am satisfied that Mr Mateer’s employment with IES ceased in accordance with the agreed terms in the contract and that it reflected a genuine agreement between Mr Mateer and IES that the employment relationship would end at the expiry of the contract on 25 May 2018. As confirmed in Navitas, the decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date.

[88] I find that there was no action on IES’s part which was the principal contributing factor resulting directly or consequentially in the termination of Mr Mateer’s employment. It follows that the termination of Mr Mateer’s employment was not at the initiative of IES. The jurisdictional objection is upheld and Mr Mateer’s application is dismissed.

[89] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

K Mateer, on his own behalf.

A Smeaton, for IES.

Printed by authority of the Commonwealth Government Printer

<PR702878>

1 [2017] FWCFB 5162.

2 Andersen v Umbakumba Community Council (1994) 126 ALR 121.

3 Exhibit 1, Annexure 8.