T13173
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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
The Community and Public Sector Union
and
Minister Administering the State Service Act 2000
Industrial dispute – mode, terms and conditions of employment – fixed-term contract - application amended – termination of employment – application dismissed
REASONS FOR DECISION [1] On 27 June 2008, The Community and Public Sector Union (State Public Services Federation Tasmania) Inc. (the union) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000 (Department of Primary Industries and Water) (the Minister) re alleged refusal to continue fixed term contract of employment – Ms K Nutter. [2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on Wednesday, 23 July 2008. [3] Appearances: Mr S Arditto and Mr M Di Pretoro for the union; and Ms K Steenhuis with Mr D Gillie for the Minister. [4] The matter was first listed in the application as an industrial dispute when Ms Nutter was still an employee of the Department of Primary Industries and Water (the department). Subsequently, due to the termination of her employment, the union sought and was granted leave to amend the application to one of unfair dismissal. No objection was entered on behalf of the Minister. [5] Ms Nutter was initially employed under the National Training Wages Agreement for the period 31 January 2005 until 31 January 2007 to complete a Certificate III in laboratory skills. This Agreement was within the Disabled New Apprentice Wage Support Scheme. Subsequently she applied for and gained a fixed-term position as a Technical Officer, Level 1. The fixed term was from 25 January 2007 until 30 June 2008 to work on the Tasmanian Devil Facial Tumour Project. [6] On 14 May 2008 Ms Nutter wrote to Mr Daniel Gillie, Senior HR Consultant requesting that her Fixed Term Employment Contract be converted to a permanent appointment under the Fixed Term Moratorium. On 15 May, Mr Jim Lentern, Executive Officer of the Diagnostics Services Branch, interviewed Ms Nutter with respect to the impending cession of her contract. Her request for permanency was rejected by way of letter on 26 May 2008. Ms Nutter’s employment was terminated on 30 June 2008, in line with the end date in her contract.
BACKGROUND [7] Mr Arditto, for Ms Nutter, argued that Ms Nutter had an expectation of ongoing employment under s.30 of the Act. Section 30(1) of the Act refers to “continuing employment”. It states:
““Continuing Employment” means employment that is of a continuing or indefinite nature or for which there is no expressed or implied end date to the contract of employment;” [8] Mr Arditto asserted that Ms Nutter believed she had been recruited to work on a cure for the Tasmanian Devil facial tumour disease, which was still ongoing. [9] Mr Arditto stated that Ms Nutter’s duties had been redistributed among higher level employees. And further, he asserted that staff had been recruited to the department to participate in the project and that other staff had their fixed-term contracts converted to permanent appointments. He argued that it was a ridiculous situation where broadly experienced staff had to be trained in the specifics of the role Ms Nutter had occupied. [10] Mr Arditto asserted the department had the option to extend Ms Nutter’s contract or to convert her fixed-term contract, under the Office of the State Service Commissioner’s (OSSC) Fixed Term Moratorium, to a permanent appointment. He argued CD1 had provision to enable the Minister to convert Ms Nutter from a fixed-term contract to permanent employee status (Exhibit 1A). [11] Ms K Steenhuis, for the Minister, asserted the department had undertaken a review of all the fixed-term contracts at the commencement of the State Service Fixed Term Moratorium. [12] Ms Steenhuis cited an explanatory passage in the letter to Ms Nutter rejecting her request for transfer to a permanent appointment; she stated:
“Although you state in your letter that you believe that your current position should have been filled on a permanent basis, due to the ongoing nature of your work associated with the Devil Facial Tumour Project, permanent appointment was not made in 2007 as the future needs of the program were uncertain. At that time the majority of the staff employed in the program were employed on a fixed-term basis, and while the program will continue, the nature of the work has changed and our staffing needs have changed with it.” (Transcript p.5, L.25) [13] Ms Steenhuis also asserted Ms Nutter had been advised that she could have the decision reviewed under the conditions of the OSSC’s fixed term Memorandum. She did not exercise this right. [14] Mr Arditto argued that Ms Nutter’s failure to seek a review of the decision was not a tacit acceptance of the decision. [15] Ms Steenhuis further asserted that the technical work within the particular section had been restructured and the position Ms Nutter had held no longer existed. [16] Ms Steenhuis cited a communiqué from the Secretary of the department to all staff distributed on 27 February 2008 (Exhibit M1). The communiqué invited those employees who felt they had a case for conversion from fixed term to permanency to apply through the Human Resources branch. [17] Ms Nutter took the opportunity to apply for conversion some two and a half months later. [18] Ms Steenhuis addressed Ms Nutter’s application to the Human Resources branch of 14 May 2008 (Exhibit M2) and the subsequent rejection of her request, asserting the department had followed proper process. [19] Mr Arditto argued that the issue of funding was critical in this matter and pointed out that Ms Nutter’s letter of appointment (Exhibit A5) cited “subject to funding” as a prerequisite for her appointment. He cited the matter of Robert Francis Gaffney V MASSA 2000/Department of Primary Industries and Water[1] in which the Commission put the proposition at paragraph 50:
“Accepting that the core business of the Department is ongoing, it would not be unreasonable to expect that each year a base budget would be developed embracing a certain amount of planned project work taking into account potential external funding.” [20] Mr Arditto argued that as a result of the Gaffney matter a Moratorium was put in place between December 2007 and May 2008 to allow, where appropriate, those employees on fixed-term contracts to be offered permanent appointments. He asserted Ms Nutter’s situation “fitted” with the principles of the Moratorium. He cited a letter from Mr Frank Ogle, Director Public Sector Management Office, (Exhibit A7) in which Mr Ogle elaborates on the criteria for appointments to be made within the conditions of the Moratorium; specifically, the matter of reviewing the reasons behind making an appointment a fixed-term contract in the first instance. [21] Mr Alex Schaap, General Manager, Biosecurity and Product Integrity Division sent a Memorandum (Exhibit A8) to all staff on 24 April 2008 confirming some employees had their employment status changed from fixed term to permanent. [22] Mr Arditto raised the issue that the selection of those employees who became permanent was because of the appropriateness of their employment histories. Further, Mr Schaap gave an expectation that further permanent and fixed-term positions may be required and that these would be advertised. [23] Ms Nutter’s application for permanency was not successful. [24] Mr Kim Evans, the Secretary, responded to her on 21 May 2008. He said, with respect to the two contracts already enjoyed by Ms Nutter:
“… are quite different in the level of responsibility and supervision involved. The trainee position was a training position with a high level of supervision and the duties it involved provided you with the opportunity to develop your skills and apply your studies to your work. The position that you currently occupy has a higher level of responsibility with a lower level of supervision than that of the trainee position. These are two different positions.
As such, it is considered that your employment history does not indicate that you could have a reasonable expectation of ongoing employment.” (Exhibit A9) [25] Mr Arditto claimed this statement was fundamentally flawed and that the statements of duty (SOD) for the two positions held by Ms Nutter were “virtually identical”, other than the addition of a seventh Major Duty in the SOD for a Technical Officer (Exhibit A6). He asserted Ms Nutter worked without supervision alone during her traineeship regularly. [26] Ms Steenhuis argued that the duties required of the two categories of employment enjoyed by Ms Nutter did indeed differ significantly. The duties differ particularly with respect to levels of supervision and responsibility. She cited extracts from Exhibits A4 and A6 to illustrate her point. [27] For the reporting structure trainee role:
“The occupant reports directly to the supervisor and veterinary pathologist who may direct the occupant to activities principally involving cytogenetics, clinical pathology, immunology and parasitology as part of the Devil Facial Tumour Project. While the occupant is working in these sections the section supervisor is responsible for the day-to-day supervision of the occupant. During the learning phase the work given is consistent with the level of theoretic knowledge being gained by the trainee while undertaking laboratory skills certificate III course through TAFE.” (Transcript p.19, L.22) [28] While the reporting structure for the technician:
“The occupant receives guidance regarding the broad objectives of the animal health lab from the principal veterinary pathologist. The occupant reports directly to the cytogeneticist for project direct and admin duties. For technical duties the occupant receives detailed technical direction and close technical supervision from both the cytogeneticist and the technical officer pathology.” (Transcript p.19, L.40) [29] For the level of responsibility of the trainee role:
“The occupant is responsible for undertaking training in application of conventional techniques, methods and standards associated with the operation of the animal health lab and assisting in assuring the quality assurance protocols with the animal health lab quality system required for ANATA accreditation are met.” (Transcript p.20, L.1) [30] While the level of responsibility for the technician:
“The occupant is responsible for assisting in the day-to-day operation of the Devil Facial Tumour Disease research area specifically relating to pathology and cytogenetics, with regard to sample collection and processing, use of equipment, consumables and administration, applying the conventional diagnostic investigatory methods and standards. Initially the work is limited in scope and complexity, but as knowledge and experience is gained the scope and complexity of the work is expanded.” (Transcript p.20, L.10) [31] Ms Steenhuis argued that although the tasks may look similar the level of responsibility and supervision differ significantly. [32] Ms Steenhuis also argued that, while a trainee, Ms Nutter was supervised by different people for different aspects of her training. She rejected Mr Arditto’s assertion that Ms Nutter regularly “worked alone” without supervision during her training. [33] Mr Arditto argued that Mr Evans’ advice that a permanent appointment was not made in 2007 because the future of the program was uncertain was a funding issue. He asserted that funding was not a sufficient reason for denying permanency and cited the Gaffney decision as an authority for his position. [34] Mr Arditto referred to an email sent to him by Mr D Gillie in which Mr Gillie outlined the redistribution of Ms Nutter’s responsibilities. He argued that had the department employed Ms Nutter in accordance with CD1 at the outset it would have had a responsibility to redeploy Ms Nutter within the department if her skills were not required in the particular unit in which she was engaged. He argued that the work was still ongoing. He further argued that Ms Nutter could have been “… accommodated elsewhere within the Mount Pleasant laboratories.” (Transcript p.10, L.45) [35] Mr Arditto cited Ms Nutter’s Salary Increment Report dated 27 November 2007 (Exhibit A11); her Performance Management Review – Record of Meeting (Exhibit A12); and a letter dated 24 June 2008 from Ms Steenhuis (Exhibit A13) to illustrate there were no performance reasons why she should not have been given a permanent position. [36] Ms Steenhuis acknowledged there was no issue with Ms Nutter’s performance. [37] However Ms Steenhuis cited diary notes and a subsequent email from Mr Jim Lentern dated 17 July 2008 in regard to Ms Nutter’s then imminent termination (Exhibit M3):
“… this is a summary of the interview I had with Karen on the afternoon on 15/05/2008.
Reason for interview: Karen’s contract was due to expire on 30 June. I needed to ascertain whether Karen was aware of this and whether or not she had applied for one of the TO positions in the general laboratory.
Karen did not seem to be aware that her contract was terminating, or at least that it would not be renewed. She seemed surprised and was upset by the news. … I told her … that the whole team had been restructured from the viewpoint of meeting requirements into the future.
Karen had not applied for either of the TO positions and I encouraged her to do so immediately as applications were to close the next day. I mentioned to Karen that she could seek an extension to the closing date, which I understand was granted.” [38] Ms Steenhuis argued that the department had been accommodating in giving Ms Nutter every opportunity to apply for available positions. She noted that Ms Nutter had left the application, referred to above, until the very last moment. [39] Mr Arditto argued that Ms Nutter could not understand why she had to apply for a job she already held. [40] Ms Steenhuis referred Exhibit M4, a Memorandum from Mr Alex Schaap dated 15 May 2008, sent to all the participants in the Mount Pleasant Devil team, the same day Ms Nutter met with Mr Lentern. She asserted the Memorandum clearly spelt out the process adopted by the department and the reasoning behind it.
“I have decided to offer a number of permanent positions in areas where I think it likely that there will be a need for that position for the life of the program. In cases where there is a current incumbent in the position with no competition for the position, we will be seeking approval to convert the person to permanent under the current moratorium. In cases where there is no incumbent or there may be competition for the position we will advertise without delay with a view to ensuring that successful internal applicants can maintain continuity of employment. There will also be a couple of fixed term positions advertised for roles which I expect will not persist for the life of the program. These too will be advertised without delay to allow continuity for employment for successful internal applicants.
…
I appreciate this may seem unfair to those of you who are not fortunate enough to be converted to permanent. Please be clear that this outcome has nothing to do with how your supervisors or I perceive your individual value to the agency. It just reflects the fact that in your case there is a real potential for other devil team members to compete with you for the roles that will be available or the role you have been filling is no longer to be filled.
Please don’t hesitate to talk to Jim if any of this is not clear to you or discuss with me when I am at the lab next Monday.” (Exhibit M4) [41] Ms Nutter applied for a Level 1 or 2 Technical Officer, but was unsuccessful (Exhibit A14). Mr Arditto argued that Ms Nutter had the experience to perform the role and could have been accommodated in the revised structure. [42] Ms Steenhuis stressed that the position Ms Nutter had occupied no longer existed:
“… as the Devil Facial Tumour Disease program progressed and scientific discoveries were facilitating the changing direction of the program. There was no longer any need for Ms Nutter’s full time role …” (Transcript p.25, L.5) [43] And further
“… is a program that has a mix of fixed-term and permanent staff based solely on its operations requirements and will continue into the future to have a mix of fixed and permanent staff based on its operational requirements.” (Transcript p.25, L.37)
FINDINGS [44] Mr Arditto argued that the department had the capacity under CD1 to extend Ms Nutter’s contract or to convert her employment to permanent. He further argued that the department also had facilities to change the conditions of employment under the then Fixed Term Moratorium. [45] Mr Arditto is correct that CD1, at 5.15, allows for the Minister on the recommendation of the OSSC to change the status of a fixed-term employee to that of a permanent employee. [46] Mr Arditto asserted:
“Now, one of the criteria that agencies were to consider in making that determination was the initial decision to make a fixed-term appointment rather than make a permanent appointment. There was clear recognition from PSMO that agencies had inappropriately engaged fixed-term employees where the work was ongoing and should have been undertaken by permanent employees.” (Transcript p.12, L 5) [47] It is my view that Mr Arditto has missed the point with regard to the Moratorium. My understanding is that, in the main, the Moratorium was aimed at rectifying a position where recurring fixed-term contracts had been used over an extended period to facilitate long-term needs, in contravention of the then CD1’s limitation on the duration of fixed-term engagements. The Moratorium sought to identify those fixed-term contracts which had been inappropriately “rolled over” and to remedy the situation. [48] Ms Nutter’s employment did not fit into this scenario. [49] In my view her engagement as a trainee should stand alone. Ms Nutter was given an opportunity to attain a technical qualification with the support of the department. There appears to be no obligation on the part of the department to place Ms Nutter in a substantive position beyond the training period. Subsequently Ms Nutter applied for and was appointed to, on merit, a Technical Officer’s position. The role was for 18 months duration, well within CD1’s limitation of 24 months. [50] Mr Arditto suggests that because the Tasmanian Devil Facial Tumour Project is ongoing, Ms Nutter’s initial appointment should have been on a permanent basis. [51] I turn to Exhibit A9 in which Mr K Evans, the Secretary, makes it clear that the initial appointment was not made on a permanent basis at the time because “… the future needs of the program were uncertain….” This is a perfectly reasonable proposition for the department to follow. Indeed, the department’s position is vindicated in Mr Evans’ statement in the same communication “… the nature of the work has changed and our staffing needs have changed with it.” [52] It was demonstrated further through Exhibits A8 and M4, Mr Alex Schaap’s emails of 24 April and 15 May 2008, where he clearly explains the evolution of the changing staffing requirements and the process he intended to follow to make the required changes for the Tasmanian Devil Facial Tumour Project. [53] In his letter to Mr Tom Lynch, Secretary of the union, Mr Frank Ogle outlined the procedure to be adopted where a person had sought a conversion to permanent as a result of the Moratorium. (Exhibit A7).
“While Agencies will use the proposed moratorium to identify persons who should more appropriately be appointed as permanent employees, the moratorium does not require all fixed term employees to be forwarded by Agencies for conversion. Rather, it provides Agencies with the opportunity to review eligible persons taking into account any, or all, of the following: · The initial decision to make a fixed term appointment rather than make a permanent appointment · The decision to extend the fixed term appointment rather than make a permanent appointment.” [54] CD1 specifies the conditions under which an employee on a fixed-term contract can request conversion. [55] Mr Arditto argued that Ms Nutter qualified to make such a request. In my view he is correct. [56] As noted above, Ms Nutter had two fixed-term contracts. The first was a training program of two years duration followed immediately by her appointment to a functional position. [57] Mr Arditto argued that the two positions were almost identical and should been seen as one extending into the other. [58] Ms Steenhuis argued that the level of supervision and the responsibility of the latter position deemed it to be a more senior position than the former. [59] I do not accept Mr Arditto’s view that supervision, or lack of it, during aspects of the training period is material in the argument. It is my view the two positions were demonstrably different and one cannot be seen as an extension of the other. [60] Mr Arditto argued that had Ms Nutter been appointed according to CD1 then the department would have an obligation to utilise her skills elsewhere if a position was not available on the Devil team. I take it he was making reference to clause 5.1, “Permanent employment is the usual form of employment in the State Service.” [61] Ms Nutter, in my view, was appointed in accordance with CD1. The department had the capacity to employ her on two fixed-term contracts, particularly when one was a specific traineeship. CD1 is quite clear as to the overall duration of a fixed-term contract. There is no obligation ascribed to the department to actively search out positions for Ms Nutter. [62] Mr Arditto argued that Ms Nutter had an expectation of ongoing employment. He cited the fact that when Mr Jim Lentern interviewed her on 15 May 2008, she did not seem aware that her contract was about to end. Mr Lentern had noted “… she seemed surprised and was upset …” and further, that the Tasmanian Devil Facial Tumour Project was ongoing and she was fully occupied. He asserted “Why would you think you were going to be terminated when nobody had said there was a problem with your work performance, and the job remained to be done.” (Transcript p.27, L.10) [63] It should be noted that on 14 May 2007, the day before Mr Lentern met with her, Ms Nutter had applied for her fixed-term contract to be converted to permanent. One must assume she had some idea that her contract was coming to an end. Further, when examining Exhibit A5, a copy of her last contract, it clearly states that the term of her engagement was “… from 25 January 2007 until 30 June 2008 inclusive …” [64] Albeit Ms Nutter alleged she had an expectation of ongoing employment, in my view it could not be clearer that, subject to no other influences, her contract would end on 30 June 2008. [65] In February the Secretary had distributed a general communiqué to staff outlining the process the department had gone through to identify employees who would have a reasonable expectation of ongoing employment. He referred to reviewing employment histories as an identifier. [66] On 24 April 2008, Mr Schaap emailed the staff of the Biosecurity and Product Integrity Division (BPI devil crew) informing them that some fixed-term contracts had been converted to permanent. Further he expressed his intention to identify what positions would be required into the future so that they can be advertised. He also sought to progress matters without delay to “provide certainty”. (Exhibit A8) [67] The applicant did not apply for conversion until midway through May. There is no evidence that timing was a factor, however, one would reasonably assume that those employees applying early in the process, possibly as a reaction to the February communiqué, may have had an advantage. [68] Ms Nutter did not pursue a review of the Secretary’s decision not to convert her employment status. A review to which she was entitled had she sought it. [69] Mr Arditto asserted that:
“That in no way implies an acceptance of the correctness of that decision based on the advice that her industrial representatives had at the time that was imparted to her. We advised her we believed we would stand a greater chance of success through seeking to negotiate with the agency.” (Transcript p.29, L.7) [70] The decision process has a built-in check in the form of a review. On advice from her industrial representative Ms Nutter did not take advantage of this. The loss of this opportunity cannot be laid at the department’s door, but was a conscious decision by Ms Nutter. [71] Mr Arditto alleged Ms Nutter “… appears to have been singled out by the employer for termination.” (Transcript p.17, L.45) [72] All the evidence shows that the Tasmanian Devil Facial Tumour Project was undergoing extensive reshaping through what appears to be a transparent and open process as shown in Exhibits M1, M4, A8 and A9. [73] Mr Arditto adduced no evidence to substantiate his allegation referred to above. [74] Mr Lentern made a note in Exhibit M3 that Ms Nutter, as at 15 May 2008, had not applied for any of the technician positions available. [75] Mr Arditto argued that Ms Nutter “… didn’t understand why she had to apply for a job she already had.” (Transcript P.27, L.5) [76] I find this position incongruous. As previously stated in paragraph 69, Exhibits M1, M4, A8 and A9 all refer to the changing position of the Tasmanian Devil Facial Tumour Project staffing. The need could not be made clearer for those on fixed-term contracts to nominate for the positions available. If this truly was Ms Nutter’s view, I find it abjectly naïve in the circumstances. [77] From the evidence provided of the communications to the Tasmanian Devil Facial Tumour Project staff regarding the changes required to manage the project into the future, it is perfectly plausible that Ms Nutter’s position was no longer required and that those aspects of her role which were necessary could be absorbed by others. [78] I turn now to Mr Arditto’s assertion that it was not legitimate for the department to terminate Ms Nutter’s employment based on funding. He cited the Gaffney case in support of his assertion. He quoted:
“The commissioner stated in paragraph 50 of his decision that:
Accepting that the core business of the department is ongoing, it would not be unreasonable to expect a certain amount of planned project work, taking into account potential external funding.” (Transcript p.10, L.10) [79] And further, Mr Arditto asserted:
“And as the Gaffney matter demonstrated, funding by itself is not a sufficient reason.” (Transcript p.14, L.20) [80] It is my opinion that there is a considerable difference between Gaffney and the instant matters. Mr Gaffney had been employed for a considerable number of years on rolling fixed-term contracts in the same department performing a generic role. It was the Commission’s view at the time that using the lack of funding as a reason for not continuing Mr Gaffney’s employment was not legitimate, given the long history of the role he had played in the department. [81] Ms Nutter, on the other hand, had one contract filling a functional role. [82] It is a fact that Ms Nutter’s contract of 22 January 2007 stipulated her employment would be “… from 25 January 2007 until 30 June 2008 inclusive, subject to funding …”. It should be noted that the funding proviso was specific to her then current role finishing at the end of June 2008. There was no evidence presented to suggest that the department’s reason for not re-employing Ms Nutter was for “funding by itself”. The evidence is clear that the reason for Ms Nutter not retaining her role was that the needs of the project had changed and her role no longer existed. It can be reasonably assumed that the positions open to competitive selection were chosen by merit. [83] In summary the department communicated openly to its employees on the forthcoming changes; it conducted a transparent process in deciding on who should be appointed and, in my view, adhered to CD1. [84] Ms Nutter’s fixed-term contract came to an end by the efflux of time. Her employment was terminated in accordance with her contract. Ms Nutter was not unfairly dismissed, and I so find. [85] Pursuant to s.21(2)(c) of the Act I dismiss the application, and I so Order.
James P McAlpine
Appearances:
Date and Place of Hearing: |