CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON - PROCEDURAL FAIRNESS - CONTRACT OF EMPLOYMENT FOR SPECIFIED PERIOD OF TIME - COMPENSATION INDUSTRIAL RELATIONS ACT 1988 , ss170EA INDUSTRIAL RELATIONS REGULATIONS, reg. 30B(1) Cooper v Darwin Rugby League Inc (1994) 57 IR 278 BARBARA ANN CHINNAPPAN v QUEENSLAND UNIVERSITY OF TECHNOLOGY No. QI94/0250 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 6 JULY 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI94/0250 QUEENSLAND DISTRICT REGISTRY BETWEEN: BARBARA ANN CHINNAPPAN Applicant AND: QUEENSLAND UNIVERSITY OF TECHNOLOGY Respondent MINUTE OF ORDERS BEFORE: BOULTON JR PLACE: BRISBANE DATE: 6 JULY 1995 THE COURT ORDERS THAT: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $3100 within 14 days of these orders. NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) No. QI 94/0250 QUEENSLAND DISTRICT REGISTRY BETWEEN: BARBARA ANN CHINNAPPAN Applicant AND: QUEENSLAND UNIVERSITY OF TECHNOLOGY Respondent BEFORE: BOULTON JR PLACE: BRISBANE DATE: 6 JULY 1995 REASONS FOR JUDGMENT The applicant, now aged 43, is a very well‑qualified language teacher, specialising in the teaching of English as a second language. In late December 1993 she began relief teaching in English courses conducted for overseas students at the Queensland University of Technology, Kelvin Grove, Brisbane. In early 1994, the applicant began teaching on a regular basis at the same institution. This persisted until November 1994, to the events of which I now turn. The first matter for my determination is whether or not there was, in terms of the Industrial Relations Act 1988, a termination of the applicant's employment at the initiative of the respondent. If so, it is said by the parties to be necessary to examine regulation 30B of the Industrial Relations Regulations to determine if it denies to the applicant recourse to Subdivisions B, C, D and E of Division 3 of Part VIA of the Act. Finally, if the applicant is otherwise successful, a question arises concerning the appropriate remedy in her case. Termination of Employment The applicant's case was that on Monday 7 November 1994, the Director of Studies of ELICOS (English Language Intensive Courses for Overseas Students) at the University, a Doctor Valkhoff told her that she was being taken off that part of her teaching program known as English for Academic Purposes (EAP), and being put into the general English program. The applicant was also to continue teaching another program titled "English for Science and Technology". This change was to occur only part-way through a teaching cycle. The applicant, although very reluctant to accept the change, agreed to it that day. The next day was her day off. She phoned Dr Valkhoff to debate with him further the mooted change. She raised the prospect with him that she did not want to go back to her class the next day. She said that she felt that students must have complained about her and that was the reason for the change. Dr Valkhoff insisted she take the next day's class. The applicant taught the next day, informing her students of the mooted change. She gave evidence that some of her students informed her they were unhappy with the course content. One spoke to her after class, and was very supportive. The applicant had, prior to the Wednesday morning class, confronted a Jillian Schiffmann, the EAP co-ordinator, it having occurred to her that Ms Schiffmann had instigated the change to her teaching program. According to the applicant, Ms Schiffmann told her that the real reason for the change was student complaints about her. There occurred the next day a lunch-time meeting arranged by Dr Valkhoff at which a team leader, Judith Douse, Ms Schiffmann, Dr Valkhoff and the applicant were present. During the meeting, the applicant swore that the other three each attacked her as being professionally incompetent and not following the program as laid out. The applicant proposed that she be allowed to continue teaching EAP for the balance of the 12 week cycle, with support and guidance from Ms Schiffmann. Ms Schiffmann refused her proposal. The applicant walked out of the meeting "in a huff" and went to her class. The applicant swore that all but two of her class walked out on hearing her confirm the change in teaching. She claimed to have continued the class for the two who remained, until normal completion time of 3.30 pm. She then felt very unwell, and shortly after vomited in the toilet. That night she asked her husband to phone Dr Valkhoff, telling her husband to say that she was sick and would not be in for work. She was in a position to hear what her husband said, and denied hearing him say that she was sick and would not be returning for the rest of the teaching cycle. Her husband gave evidence that he told Dr Valkhoff on the phone that his wife was not well and would not be coming in for work the next day, possibly longer. On the other hand, Dr Valkhoff, who gave evidence before me, swore that the applicant's husband said words to the effect of: Jaap, things at work have got on top of Barbara, she is taking the rest of the year off. He also swore that the applicant did not finish her class that afternoon as she claimed, he having gone to where she normally taught at 2.30/2.45 pm, and not seen her there. For reasons which emerge, I do not consider it necessary to resolve these conflicts in the evidence. The applicant did not turn up for work on Friday, 11 or Monday, 14 November. On the week-end between those days, she went to the University to type up some relief lessons, in case she had to be off work recovering from surgery for a medical condition she had. She took home some personal items. The applicant also left a typed letter dated 13 November 1994 for a John Stanley, the then Manager of the International Education and Programs Unit at the University. He had a supervisory role over three programs, including ones on which the applicant taught. A true copy of this letter became exhibit R2. It makes interesting reading, throwing some light on contemporaneous events. The applicant commences: I wish to lodge a complaint against Jaap Valkov and Jill Schiffman for unfair dismissal from a teaching appointment. In reference to the telephone conversation between Dr Valkhoff and her husband, the applicant wrote: My husband called Mr Valkov at his home on Thursday night to tell him I was unable to teach the whole day and possibly the whole term. Further on, she wrote: Furthermore, my husband was given the distinct impression that Mr Valkov took my present illness to mean that I shall not ever be returning to work. She also wrote: I ....... hope that my health improves sufficiently to return to work. On Monday, 14 November, the applicant received a phone call from Dr Valkhoff. He asked her about the whereabouts of a book she was using. He was aware that she had been in the university over the week-end, and having found out she had a key, he asked if she had sent the key back. This question stunned the applicant, and she put the phone down. She then phoned the personnel section. She later received a call from Mr Stanley, who said he had read her letter. He said he would phone Dr Valkhoff and have a talk to him. She expressed her concern to Mr Stanley that her job was in jeopardy, and wondered why Dr Valkhoff would ask for the return of the key. Mr Stanley phoned back, to tell her that Dr Valkhoff was "not going to have you back at your work". She asked why and he said, "Oh, because your husband said you weren't coming back to work". The applicant then said, "Well, I'm telling you that I am coming back to work". The same day she received a phone call from a Mark Nugent from Personnel. She wanted to know the position in respect of her job, and he said he would have to speak to Dr Valkhoff. Mr Nugent phoned back and said, "Your husband said that you weren't coming back to work, and it is reasonable to assume that you aren't and therefore other arrangements have been made, and I'm sorry, but you don't have a job", or words to that effect. The applicant responded "How can that be so, here am I saying I'm coming to work". Mr Nugent was, however, insistent that she no longer had employment at QUT. That same day the applicant made contact with her union. The next day was her rostered day off. The following day, Wednesday, the applicant went to work. When she arrived, she reported to Mr Stanley who told her "I'm sorry, Jaap Valkhoff says that other arrangements have been made and you don't have a class to teach". The applicant has not to date resumed teaching at the university. Curiously, she was called in by the university to conduct examinations as an assessor, subsequent to the November events herein described. I have thought it necessary to set out in greater detail than I would normally this chain of events. In my view the detail which emerges makes it clear beyond any reasonable doubt that whether or not the applicant left her class early on 10 November, and whatever had transpired between the applicant's husband and Dr Valkhoff in the telephone conversation of Thursday 10 November, and in her telephone conversation with Dr Valkhoff on Monday 14 November, the university was wrong in treating the applicant as having abandoned her employment with it. It could not reasonably entertain that view, at least after the contents of the applicant's letter exhibit R2, were known by Mr Stanley on Monday 14 November, and communicated by him to Dr Valkhoff that same day. The applicant was firm in her protestations to both Mr Stanley and Mr Nugent that day that she was coming back to work. Those in authority ought to have established beyond any doubt what the true position was, before effectively shutting down the applicant's teaching duties. I find that there was a termination of employment at the initiative of the employer. In the event that I made such a finding, the respondent submitted that "You have no alternative but to find that it was an unfair dismissal". I agree. The respondent is in breach of the Act. It terminated the applicant's employment without having a valid reason to do so. It follows as a matter of course that it failed to accord her procedural fairness. Contract for a Specified Period The respondent submitted that the applicant was an employee engaged under a contract of employment for a specified period of time, within the meaning of Regulation 30B(1)(a) of the Regulations. I consider this submission is misconceived. I drew the attention of the parties during submissions to the remarks of Northrop J in Cooper v Darwin Rugby League Inc (1994) 57 IR 278, and I do so again. If there were a term specified by the contract of employment, it certainly did not end by effluxion of time. In any event, there was not that degree of specificity in the applicant's engagement by the university as I consider contemplated by the Regulation. True it is that if the events of November 1994 had not supervened, she was due to finish teaching on 23 December 1994, but that was simply in anticipation of the Christmas-New Year break. The need for her services in 1995 was conditioned on the numbers of students taking the course in the first cycle of 1995. On the evidence, there was a real prospect that, absent any difficulties between her superiors and her, the applicant would have been offered further teaching in 1995. Reinstatement The applicant sought reinstatement as the primary remedy. It will be recalled that she attached conditions to her continued role as teacher in the meeting of 10 November. Additionally, in her letter exhibit R2, she had this to say: .....hope that my health improves sufficiently to return to work. In order to do so, there are two compensations which I am seeking.....I am more than willing to step down from the EAP class.....however, the conditions are that I get a signed letter from Jaap Valkov to say that I will be given a full or part load of the first session of EAP in the new year excluding General English,..... I consider it impracticable to order reinstatement in circumstances where the applicant was insisting upon resuming teaching the very part of the program from which her superior had decided to remove her. On the evidence, I am unable to determine the merits or otherwise of that removal. However, that is not to say the parties ought not to speak even now to canvass whether or not they might amicably agree on the applicant's taking classes suitable to both in the next teaching cycle. I urge that course upon them. Compensation The parties agreed before me that the applicant had had other employment since 29 January 1995, at earnings about double of what she was being paid by the respondent. The pre-Christmas 1994 cycle was due to end on 23 December 1994. The 1995 year was due to commence on 3 January 1995. On the applicant's behalf, it was claimed that she had lost the sum of $4665 (rounded-off), being nine weeks (to and including 28 January 1995) at 15 hours per week at $34.56 per hour. That assumes the applicant would have resolved her differences with Dr Valkhoff, and continued on after the end of the 1994 academic year. I am not so sanguine about this prospect, given the rather acrimonious events of early and mid-November 1994. I consider that appropriate compensation, including damages for the respondent's failure to give the notice, or compensation in lieu of notice, required by section 170DB of the Act, is the sum of $3100. The orders I make are that: 1. The application be allowed. 2. The respondent pay to the applicant the sum of $3100 within 14 days of these orders. I certify that this and the preceding FIVE (5) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 6 July 1995 Appearing for the Applicant: Mr McAlpine Appearing for the Respondent: Mr Lambert Dates of hearing: 16 & 17 May 1995 Date of judgment: 6 July 1995