Industrial Relations Commission of New South Wales CITATION: Knipe v Mayumarri Pty Limited [2006] NSWIRComm 1058 APPLICANT Maria Therese Knipe PARTIES: RESPONDENT Mayumarri Pty Limited FILE NUMBER(S): 3762 of 2005 CORAM: Stanton C CATCHWORDS: Termination of employment - Claim of unfair dismissal - Applicant's employment subject to funding - Termination at initiative of employer or contract for a specified period of time - Jurisdiction - Found - Contract for a specified period of time and brought to an end by effluxion of time - Application dismissed LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 2/12/2005 DATE OF JUDGMENT: 04/06/2006 APPLICANT Applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT Ms L Mullinar with Mr R Phillips Mayumarri Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Stanton C 6 April 2006 Matter No IRC 3762 of 2005 Maria Therese Knipe and Mayumarri Pty Limited Application by Maria Therese Knipe re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2006] NSWIRComm 1058 1 This is an application by Maria Therese Knipe (the applicant) against Mayumarri Pty Limited (the respondent) regarding unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 (the Act). The respondent is a not for profit healing centre providing support programs to survivors of childhood trauma and abuse. 2 The applicant commenced employment with the respondent on a part- time basis on 1 July 2004 and was subsequently employed on full-time basis from 1 December 2004. The applicant claims the respondent informed her on 19 June 2005 that her contract would cease on 30 June 2005. The applicant also claims the respondent had told her that she would revert to casual or part-time employment after 30 June 2005. She contends her dismissal was harsh, unreasonable and or unjust. 3 The respondent contends the applicant was employed for a specified period of time or fixed term reflecting the nature of certain program funding and the employment relationship came to an end on 30 June 2005 by the expiry of its own fixed term. 4 The respondent contends the applicant's employment came to an end on 30 June 2005 by the expiry of its own fixed term. The applicant's ongoing relationship as a casual or part-time employee with the respondent beyond 30 June 2005 was subject to the receipt of additional government funding. 5 Agreement in principle to settle this matter was reached on 17 August 2005, subject to the execution of a Deed of Release. The matter was relisted for further conciliation and directions on 16 September 2005 at the request of the applicant on the grounds that she felt the respondent's legal representative had placed undue pressure on her to settle the claim. Directions for the filing and serving of witness statements were subsequently issued and the matter was brought to hearing on 2 December 2005. 6 The parties were self represented. The applicant appeared in person. Ms L Mulliner appeared with Mr R Phillips for the respondent. Evidence For the Applicant The Applicant 7 It was the applicant's evidence that she was first employed by the respondent on a part-time or casual basis conducting "Kids Kamps" on 1 July 2004. 8 In September 2004, Ms Mullinar met with the applicant and said words to the effect: Would you be interested in going full-time in 2005 carrying out Kids Kamp counselling, drug and alcohol counselling and general healing facilitating? The applicant subsequently replied, words to the effect: Yes. I would like to go full-time. 9 The applicant deposed that on 24 November 2004, Ms Mullinar asked her whether she could commence working full-time from 1 December 2004. The applicant accepted this offer. It was the applicant's evidence that Ms Mullinar subsequently took her out onto the office balcony and said to her words to the effect: There ... (is) only enough money in that particular program to pay (you) full-time until 30 June 2005. After 30 June 2005 and up until December 2005 ... (you will) revert back to part-time and be paid out of other available monies. 10 It was the applicant's evidence that in May 2004 the respondent's office manager, Ms Bev Kembrey confirmed employment beyond 30 June 2005 by providing the applicant with a roster setting out her counselling commitments through to December 2005. The applicant deposed she was rostered to work on four Kids Kamps, two general healing course weeks and one drug and alcohol program week between 30 June and December 2005. 11 The applicant denies her employment was for a specified period of time or fixed term on the grounds that in December 2004, the respondent had offered her other counselling related work post 30 June 2005. 12 The applicant claimed $6865.38 compensation for the part-time or casual work she contended that she was rostered to work between July and December 2005. The applicant contends she had made the necessary arrangements to ensure her availability to meet the respondent's roster requirements. 13 On 20 June 2005, Ms Mullinar advised the applicant her contract would not be renewed beyond 30 June 2005 allegedly on the grounds that a volunteer worker, Mr Steve Hughes, had informed her that the applicant was in the process of establishing a business in Sydney and was also writing a book on Satanic Ritual Abuse. The offer of casual or part-time work beyond 30 June 2005 was rescinded and at the time Ms Mullinar did not canvas the lack of government funding as a ground for rescission. 14 The applicant branded Mr Hughes' claims as false and misleading. Despite her denial, it was the applicant's evidence that Ms Mullinar would not withdraw the accusations. The applicant did not bring evidence from Mr Hughes. 15 The applicant vigorously denied the respondent's allegation that on 19 June 2005 she said to Ms Mullinar, words to the effect: I will get you for unfair dismissal. 16 The applicant contended the respondent had employed Ms Natalie Murray, a part-time counselling facilitator to undertake certain rostered general healing courses and was in the process of training Ms Carmel Thompson as her replacement. The applicant questioned how the respondent could afford to pay Ms Thompson if program funding ended on 30 June 2005. 17 The applicant contended the roster prepared by Ms Kembrey was confirmation of her pending work commitments with the respondent. Ms Kembrey would ascertain a facilitator's availability, prepare the roster and subsequently distribute the roster to each facilitator as confirmation. 18 In cross examination, the applicant conceded that rosters were subject to change and further agreed they changed regularly due to program cancellations, facilitator availability or insufficient enrolments. 19 It was the applicant's experience that the respondent was extremely reluctant to cancel courses and on occasions, courses were conducted with as few as four participants. 20 The applicant claimed $6,865.38 for work she maintained that she had been rostered and contracted to perform between 31 July and 9 December 2005. Ms Lynette Grant 21 Ms Grant was a volunteer Kids Kamp carer until December 2004. It was her evidence and experience that the facilitator rostered by the respondent for Kids Kamp while she was a volunteer carer was the facilitator who conducted the relevant camp. For the Respondent Ms Liz Mullinar 22 Ms Mullinar deposed she was the CEO of the respondent and worked in a volunteer capacity. 23 Ms Mullinar deposed the applicant was initially employed on a part-time basis for a 12 month period from 1 July 2004. Employment was formally confirmed in correspondence addressed to the applicant dated 28 June 2004 in the following terms: This is to confirm that we are really thrilled that you have agreed to be our substance abuse counsellor. We have funding to pay for the next twelve months commencing July 1 2004 - part-time, with a salary package of $30,000 ... You also agree to work within the written Mayumarri protocols at all times, and accept that any serious breach could lead to dismissal ... 24 On or about 15 November 2004, Ms Mullinar offered the applicant full-time employment. In submitting the offer to the applicant, Ms Mullinar stated she said words to the effect: We only have enough funding to pay you until 30 June 2005. After that, we hope to offer you some form of work, which will be entirely dependant on funds at the time. Ms Mullinar deposed the applicant accepted the offer and replied with words to the effect: I understand. In cross examination, Ms Mullinar confirmed the gist of the conversation concerning the possibility of additional work beyond 30 June 2005 in the following terms: I would always say to anyone I was employing - I do hope we can continue to employ - I'd never say to someone there is no hope ... bringing up the question of funding rounds because we always hope that we can continue employment. 25 The applicant's revised employment arrangements were confirmed in an email message dated 24 November 2004 sent to her by the respondent's book keeper, Ms Kerrie McSporran in the following terms: Hi Maria As per agreement with Liz - I outline the following information for your salary. From 1st December 04 to 30 June. Salary @ $45,000 per annum plus superannuation @ 9% ($4050). To be paid weekly into your bank account. This includes a paid holiday break over Christmas of 2 weeks from 17th Dec to 9th Jan 05. If you have any problems or questions, just call me or email me if I don't see (you) beforehand. Have a great Christmas and enjoy your time off Regards Kerrie It was Ms Mullinar ' s evidence that Ms McSporran's email was confirmation that the duration of the applicant's employment as a full-time employee was from 1 December 2004 until 30 June 2005. 26 Ms Mullinar confirmed that a roster or calendar of events covering the period May to December 2005 had been prepared and distributed to facilitators including the applicant. No names had been placed against Kids Kamps because the respondent had not made a final decision as to whether they would proceed as proposed. 27 Ms Mullinar stated that while she approved rosters, they were not a guarantee of work to facilitators Rosters were required to be flexible to accommodate cancellations due to the lack of participant support or funding shortfalls. In this regard, she stated that a drug and alcohol course week scheduled for 31 July 2005 had been cancelled due to poor participant numbers. 28 It was the respondent's evidence that the applicant was aware that she was only employed up to 30 June 2005. Any future offer of casual employment was subject to the respondent obtaining additional funding and the applicant herself had been involved in that quest. 29 Ms Mullinar deposed she met with the applicant on 20 June 2005 to confirm her employment would end on 30 June 2005. The respondent had failed to secure the necessary additional funding beyond 30 June 2005. 30 It was Ms Mullinar's evidence that during the meeting on 20 June 2005, the applicant replied to her, words to the effect: Yes, I knew it was due to end. There was a subsequent altercation and the applicant left the office slamming the door. 31 Ms Mullinar deposed she had become aware that the applicant may have obtained some alternate work in Sydney during September 2005. Ms Mullinar subsequently expressed her relief to the applicant that she had some work plans and alternate opportunities for the future whereupon the applicant became angry and started yelling and screaming at her. The applicant subsequently said to her words to the effect: It's untrue, who told you that? Ms Mullinar deposed she replied with words to the effect: It was what I was told and (I) was just happy that you had some work to go to. The applicant subsequently stated words to the effect: I will get you for unfair dismissal. 32 Ms Mullinar denied Ms Thompson was being trained to replace the applicant. It was her evidence that Ms Thompson's casual position was funded by "FACS" prior to June 2005 and further, the position of drug and alcohol counsellor with the respondent had ceased to exist. 33 Ms Mullinar contended the applicant was not "rostered" to work between September and December 2005, and in any event, the roster did not guarantee work to facilitators. Ms Beverley Kembrey 34 Ms Kembrey deposed she was responsible for the preparation of rosters. Rosters were determined and varied according to facilitator availability and, program or course numbers. The roster is not confirmation that a particular facilitator or counsellor is guaranteed work. 35 It was Ms Kembrey's evidence that the Drug and Alcohol Course week scheduled in July 2005 and a Kids Kamp scheduled for the second half of 2005 were cancelled due to insufficient participants and interest. She stated the respondent could not afford to conduct courses with less than 7 or 8 participants. 36 Ms Kembrey recalled the meeting between the applicant and Ms Mullinar on 20 June 2005 in the outer office adjacent to her office. She recalled hearing a loud voice and a door banging loudly. Shortly thereafter, Ms Kembrey said Ms Mullinar returned to the office and said to her, words to the effect: That didn't go well, she's threatened unfair dismissal. Submissions Applicant 37 The applicant submitted Ms Mullinar had relied on hearsay and speculation in forming the view that she would not be offered casual employment after 30 June 2005. 38 The applicant denied the respondent's claim that she threatened to make an unfair dismissal claim following the meeting on 20 June 2005. 39 The applicant submitted that the roster confirmed that she had made herself available to work consistent with that roster up to 18 December 2005. Her dismissal was therefore harsh, unreasonable and unjust. Accordingly she was seeking payment of $6865.38 only for the actual time she had been rostered to work by the respondent. 40 The applicant sought monetary compensation only. She had been unsuccessful in obtaining alternative work. The applicant did not canvass, nor did the respondent seek details concerning her efforts to mitigate. The Respondent 41 Ms Mullinar submitted the applicant was employed only for the period of time the respondent received funding for the position. She further submitted that the respondent was predominantly a volunteer body and could only afford to engage counselling staff when it had the appropriate funding. 42 Ms Mullinar submitted the applicant was offered the full-time position from 1 December 2004 following a fund raising event and Ms McSporran's email of 24 November 2004 confirmed the position was for the period 1 December 2004 to 30 June 2005. 43 Ms Mullinar referred the Commission to Exhibit 6 setting out details of two emails exchanged between the applicant and respondent on 12 and 15 May 2005 concerning the respondent's quest for additional drug and alcohol program funding from the Department of Health. 44 Ms Mullinar contended Ms Kembrey had prepared the roster while she (Ms Mullinar) was overseas. Ms Mullinar submitted she approved all rosters. She had not told Ms Kembrey to take the applicant off the roster because: I would have been happy if we'd found some money to have paid Maria for casual weeks. 45 Ms Mullinar submitted the applicant's behaviour during the meeting on 20 June 2005 was such that the respondent had formed the view that it was now inappropriate to consider offering the applicant casual or part-time employment should suitable work or additional funding become available after 30 June 2005. Consideration 46 Section 83(2)(a) of the Act is expressed as follows: 83(2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task. Accordingly, the applicant is not exempt from the unfair dismissal provisions of the Act by virtue of s 83(2). The applicant was engaged as a full-time employee for a fixed term of 7 months. An employee engaged for a fixed term is only exempt from Part 6 of Chapter 2 of the Act where the fixed term is for a specified period of less than six months: rule 6(1)(a). 47 The key issue for determination in this matter is therefore, whether the applicant was dismissed by the respondent or, whether the applicant's employment ceased with the effluxion of time. 48 Insofar as the respondent was concerned, there were no issues related to the applicant's capacity or conduct prior to the meeting previously referred to on 20 June 2005. During the hearing of this matter, it became clear to the Commission as presently constituted that the respondent had valued the advice and opinions of the applicant. 49 During the hearing, the applicant did not directly challenge the respondent's Employer's Reply filed on 3 August 2005 stating the applicant's employment came to an end "by the expiry of its fixed term". 50 Both parties spent a large part of the hearing dealing with matters other than the critical issue of whether the employment arrangement entered into was for a fixed term. 51 In cross examination, the applicant conceded that rosters were subject to change and further agreed they changed regularly. 52 The initial part-time employment was formally confirmed by the respondent in correspondence addressed to the applicant dated 28 June 2004 in the following terms: We have funding to pay for the next twelve months commencing July 1 2004 - part-time ... 53 It was the applicant's evidence that on 24 November 2004, Ms Mullinar asked her whether she could commence working full-time from 1 December 2004. She accepted. Ms Mullinar subsequently said to her there was only enough funding monies for her to work full-time until 30 June 2005. 54 The revised employment arrangements were confirmed by Ms McSporran on 24 November 2005 in an email message cast in the following terms: Hi Maria As per agreement with Liz - I outline the following information for your salary. From 1st December 04 to 30 June ... ... If you have any problems or questions, just call or email me ... 55 In her own evidence, the applicant acknowledged the respondent's offer of part-time employment from 1 July 2004 was subject to 12 months funding. The applicant also agreed the respondent informed her on 24 November 2004 that there was only enough program money to pay her on a full-time basis until 30 June 2005. There was no evidence put to the Commission that the applicant challenged this arrangement at the time. 56 In summary, the evidence with respect to the applicant's employment between 1 July 2004 and 30 June 2005 is largely consistent. It is clear that the applicant commenced part-time employment on 1 July 2004 for a fixed term of 12 months in accordance with the respondent's funding. Similarly, the evidence points to a new contract consisting of full-time employment between 1 December 2004 and 30 June 2005 - a fixed term of 7 months. The respective letters of appointment, however cryptic, leave little room for doubt or confusion. 57 Where a contract provides for employment for a specified period of time then the contract will automatically end when the term expires or, unless, of course, it is lawfully terminated in some other way in the meantime. 58 A specified period of time has certainty as to its commencement and completion. 59 Where both parties to the contract for a specified period of time or fixed term have rights to terminate the contract which are not conditioned upon a breach of any term of the contract, then the period of the contract is indeterminate and not a contract for a specified period of time or fixed term. 60 Where a contract of employment provides for termination within the specified period on grounds analagous to the common law right of an employer to terminate a contract or agreement for say misconduct may still be a contract or agreeement for a specified time. 61 The respondent's correspondence to the applicant dated 28 June 2005 stated serious breach of Mayumarri protocols could lead to dismissal. No other grounds for termination were referred to or put to the Commission as evidence by either party. 62 On the evidence and submissions before the Commission, the respondent's funding provided a genuine commercial base to underpin the requirement for a specified period of time or fixed term characteristic to be incorporated into the employment relationship. 63 The applicant did not bring evidence nor did she make submissions to ground the contention set out in the application that the respondent's program was funded until 15 October 2005. 64 Having considered all the evidence and the submissions of the parties in this matter, there can be no confusion as to the true nature of the applicant's employment with the respondent. It was for a specified period of time or fixed term and was brought to an end automatically with the effluxion of time. 65 The prospect of some part-time employment being offered to the applicant post 1 July 2005 was no more than a representation by the respondent to a prospective contract of employment quite separate and distinct from the applicant's then current contract. 66 The roster setting out the respondent's proposed programs from 1 July 2005 were indicative rather than confirmatory of the prospect that the applicant may be offered some casual or part-time work sometime into the future. The roster itself characterises the nature of the work for facilitators and counsellors subject to the proposed roster as irregular and casual, rather than part-time. 67 Despite the applicant's deep feelings that the loss of her employment with the respondent was harsh, unreasonable or unjust, there was, on the evidence before the Commission, no termination at the initiative of the respondent. Accordingly, the Commission has no jurisdiction to determine the applicant's claim. The application must be dismissed. I so determine. 68 These proceedings are concluded. J D Stanton Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.