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  4. Lindquist v Redland City Council - [2018] QIRC 141

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Lindquist v Redland City Council[2018] QIRC 141

Lindquist v Redland City Council[2018] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Lindquist v Redland City Council [2018] QIRC 141

PARTIES: 

Lindquist, Stephanie

(Applicant)

v

Redland City Council

(Respondent)

CASE NO:

TD/2018/4

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

21 November 2018

HEARING DATES:

2 July 2018

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Black

ORDER:

Application dismissed

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – jurisdiction – applicant engaged on a series of fixed term contracts – whether employment ended by the effluxion of time or at the initiative of the employer.

CASES:

Industrial Relations Act 1999, s 35

Industrial Relations Act 2016, s 315, s 317

D’Lima v Board of Management Princess Margaret Hospital for Children (1995) 64 IR 19

Khayam v Navitas English Pty Ltd [2017] FWCFB 5162

Dale v Hatch Pty Ltd [2016] FWCFB 922

Anderson v Umbakumba Community Council (1994) 126 ALR 121

APPEARANCES:

Ms S Lindquist, self-represented.

Mr S Blaney, for the Redland City Council.

Reasons for Decision

Introduction

  1. [1]
    Ms Stephanie Lindquist (the applicant) has applied pursuant to s 317 of the Industrial Relations Act 2016 (the IR Act) for reinstatement in employment with the Redland City Council.  The applicant had been employed by the Council on a series of fixed term contracts between 19 November 2012 and 31 December 2017.
  1. [2]
    The respondent has submitted however that Ms Lindquist does not have an unfair dismissal remedy in circumstances where her employment was for a fixed period and has ended by the effluxion of time.

Facts and Circumstances

Applicant's employment arrangements 

  1. [3]
    The applicant commenced employment with the respondent on 19 November 2012. She was employed under a fixed term contract with an end date of 22 November 2013. The applicant's first letter of employment (Exhibit 1) discloses that:
  • The applicant was appointed for a limited term pursuant to s 35 of the Industrial Relations Act 1999;
  • The applicant was appointed to the position of Director – Redland Art Gallery (CUL012);
  • The commencement date of the contract was 19 November 2012 and the end date of the contract was 22 November 2013;
  • The appointment was for the purpose of replacing an employee on maternity leave;
  • That should the employee on maternity leave return earlier than 22 November 2013, the applicant would be given one months' notice of termination;
  • The employment may cease in accordance with the notice of termination provisions specified in the Redland City Council Officers' Certified Agreement No. 1 2009 (the 2009 certified agreement);
  • The applicant's employment was subject to the certified agreement, the Local Government Act 2009, the relevant award, and the code of conduct; and 
  • The applicant was required to perform all aspects of the position as referred to in an attached position description for the position of Director – Redland Art Gallery (Exhibit 2).
  1. [4]
    Section 35 of the Industrial Relations Act 1999 related to parental leave and provided:

(1) The employer must, before a replacement employee starts employment, give the replacement employee a written notice informing the replacement employee of—

(a) the temporary nature of the employment; and

(b) the parent’s right to return to work.

(2) In this section—

replacement employee means—

(a) a person who is specifically employed because an employee (the parent)—

(i) starts parental leave; or

(ii) is transferred to a safe job under section 36; or

(b) a person replacing an employee who is temporarily promoted or transferred to replace the parent.

  1. [5]
    In a letter dated 16 September 2013 (Exhibit 3), the respondent confirmed that the applicant's contract of service had been extended from 23 November 2013 to 10 October 2014. The letter stated that the applicant's terms and conditions of her employment remained unchanged. Her position remained Director – Redland Art Gallery (CUL012).
  1. [6]
    On 8 October 2014, the applicant was offered and accepted a new limited term employment contract. The letter of employment (Exhibit 4) included the following features:    
  • The applicant was appointed to the position of Director – Redland Art Gallery (CUL106);
  • The employment was for a limited term with a commencement date of 11 October 2014 and an end date of 9 October 2015;
  • The employment was to cease on 9 October 2015 or in accordance with the notice of termination provisions specified in the Redland City Council Officers' Certified Agreement 2013 (the 2013 certified agreement);
  • The employment was on a part time basis for 21.75 hours (3 days) per week;
  • The employment was subject to the 2013 certified agreement, the Local Government Act 2009, the relevant award, and the code of conduct; and
  • The applicant was required to perform all aspects of the position as referred to in an attached position description for the position of Director – Redland Art Gallery (Exhibit 5).
  1. [7]
    On 8 October 2015, the applicant was offered and accepted a limited term contract extension. In a letter dated 8 October 2015 (Exhibit 6), the respondent confirmed the "extension of your limited contract of service in the position of Director – Redland Art Gallery (CUL106)". The letter extended the applicant's employment from 10 October 2015 to 7 October 2016. The features of the contract extension included the following:
  • Should "the requirement for the contract of service end prior to the cessation date", the applicant would be provided with "the appropriate notice of termination provisions" as specified in the 2013 certified agreement;
  • The applicant would "continue to work 21.75 hours per week";
  • The terms and conditions of the employment remained unchanged; and
  • The employment was subject to the 2013 certified agreement, the local government act, the relevant award and the code of conduct.
  1. [8]
    On 4 October 2016, the applicant was offered and accepted a limited term contract extension. In a letter dated 4 October 2016 (Exhibit 15), the respondent confirmed that the applicant's limited contract of service had been extended from 8 October 2016 to 31 December 2017. The features of the contract extension included the following:
  • The applicant's position remained Director – Redland Art Gallery (CUL106);
  • Should "the requirement for the contract of service end prior to the cessation date", the applicant would be provided with "the appropriate notice of termination provisions" as specified in the 2013 certified agreement;
  • The terms and conditions of the employment remained unchanged;
  • The employment was subject to the 2013 certified agreement, the local government act, the relevant award and the code of conduct.
  1. [9]
    An effect of the 4 October 2016 extension arrangement was that the applicant would continue to work part-time for 21.75 hours a week or three days a week. This arrangement was revised by mutual agreement in June 2017 when it was agreed that the applicant would, from 3 July 2017, work 29 hours per week or four days per week. The new hours arrangement was formalised in correspondence dated 5 July 2017.
  1. [10]
    In this correspondence, the applicant was offered and accepted the changed hours of work in the position of Director-Redland Art Gallery (CUL106). The letter (Exhibit 32) indicated that the applicant's "terms, conditions and reporting framework, along with the position description" remained unchanged. The applicant's employment was stated to be subject to the 2013 certified agreement, the Queensland Local Government Industry Award – State 2017, and the code of conduct.
  1. [11]
    In an email dated 24 May 2017 (Exhibit 17), Mr Trow informed the applicant that he had a positive conversation with Mr Photinos about "increasing your employment around Public Art management and coordination". Mr Trow went on to say that he would like to review the applicant's position description with a view to creating a permanent position and said that he wanted first of all to talk to the applicant to ascertain her interest in what he was proposing.
  1. [12]
    In an email to Emma Hoy in HR on 7 June 2017 (Exhibit 18), the applicant said that she had discussed with Mr Trow an extension of her hours from 21.75 to 29 hours per week because of the increased workload flowing from the new five year public art plan. The applicant also said that she and Mr Trow had "discussed the option of the position becoming permanent". On 14 June 2017, the applicant prepared a briefing note (also Exhibit 18) for use by Mr Trow in support of his proposal to increase the applicant's hours and to convert her status to permanent.
  2. [13]
    An email in the evidence as Exhibit 19 disclosed that Mr Trow wrote to the applicant on 3 July 2017 under the subject line of "Public Art Officer" and said, inter alia, that he was meeting with HR as soon as he could to get clear advice as to the best way forward in creating a new or revised existing position. He also said that the General Manager had approved the making of a request for a new Public Art Officer position and that he was drafting a position description for such a position and preparing an accompanying business case.
  1. [14]
    In an email dated 9 October 2017 (Exhibit 22), the applicant informed Mr Trow that she had reviewed the position description for the position of Public Art Officer and had added comments and suggested alterations.
  1. [15]
    An email in the evidence as Exhibit 24 disclosed that the applicant wrote to Mr Trow on 2 November 2017 under the subject line of "Contract extension and 2018 public art program" and said that she was confirming the outcome of a discussion that she had held with Mr Trow the previous day. The email referenced a review of the public art officer position title, the transfer of salary funds in budget review, and that the applicant would follow up on a six months extension of contract under a new position description. The email also noted that the applicant would continue planning content for January to May public art events.
  1. [16]
    On 13 November 2017, the applicant emailed Ellie Collins in HR (Exhibit 41) and said that she had discussed a contract extension with Mr Trow on 1 November 2018 and that she understood that Mr Trow was finalising a position description with HR and that a contract extension would be confirmed. The email was copied to Mr Trow who sought advice or direction from Mr Photinos. In this email Mr Trow told Mr Photinos that the General Manager was not positive about the extension.
  1. [17]
    In an email dated 22 November 2017 (Exhibit 42) the applicant told a colleague that she had received advice that her contract would not be extended beyond 31 December 2017 and that there was "no operational or salary funds for the continuation of a public art officer's position next year". On the same day the applicant met with Gary Photinos to discuss her circumstances. A file note summarising the discussion was prepared by Mr Photinos and is in the evidence as attachment GP4 to Exhibit 46. The file note indicated that Mr Photinos explained to the applicant that the decision to not renew her contract was not performance related. He said that there was support for a budget bid to extend the applicant's contract for a further six months "but ultimately that bid was not successful based on the directive that no budget bids requesting additional funds would be progressed". 
  1. [18]
    The applicant was informed in correspondence dated 4 December 2017 (Exhibit 32B) that her "limited term employment contract" would cease on 31 December 2017. The correspondence explained that "the substantive position holder, Emma Bain, will be returning to full time employment in January 2018".  The correspondence also noted that when Emma Bain returned to work part-time in October 2014 "a duplicate part time position, CUL106, was created and advertised and you were appointed to this temporary part-time role".

Ms Bain's employment arrangements

  1. [19]
    Evidence of Ms Bain's employment arrangements is provided by copies of the formal communications between her and the respondent around the issue. The documents are in the evidence as attachment ZT5 to Exhibit 45.
  1. [20]
    Ms Bain held the substantive position of Director – Redland Art Gallery. She commenced a period of maternity leave in November 2012. On 31 July 2014, Ms Bain wrote to the respondent, noted that she was due to return to work on 6 October 2014, said that since her last correspondence her personal circumstances had changed, outlined her changed personal circumstances, and made the following request:

I am writing to request a staged return from parental leave and seek approval to return to work 2 days per week for a period of 12 months with a view to review and increase the hours at the end of the 12 month period.

  1. [21]
    The uncertainty around Ms Bain's plans was reflected in the response she was given by the respondent to her request. In an email to Ms Bain dated 12 August 2014, the respondent informed Ms Bain that her request had been considered, that a number of operational factors made it more difficult to accommodate a staged return to work, and said:

On balance we are able to accommodate your request on a 12 month trial basis, however the 2 days you have requested will need to be consecutive days.

…

A number of matters will require further detailed work such as clear work accountabilities and responsibilities; resource sharing and communications.

…

Could you please advise as soon as practicable that you can return to work on the Thursday and Friday as working days. This will allow us to finalise the current tenure of the Acting Director Redland Art Gallery.

  1. [22]
    On 24 August 2014, the respondent formally communicated with Ms Bain and set out the terms of the return to work arrangement. These terms included that Ms Bain would be working in a temporary part-time capacity as Director – Redland Art Gallery (CUL012); that the arrangement would commence on 9 October 2014 and conclude on 9 October 2015; and that at the conclusion of the arrangement Ms Bain may return to her substantive position, but that this arrangement will be reviewed on an annual basis and may be varied by mutual agreement.
  1. [23]
    On 8 October 2015 the respondent wrote to Ms Bain and confirmed the continuation of her part time role in the position of Director – Redland Art Gallery, commencing 10 October 2015 and ceasing on 27 January 2017. The correspondence stated that from 10 October 2015 to 29 January 2016, Ms Bain would work for two days per week. However from 1 February 2016 until 27 January 2017, Ms Bain would work for three days per week. Her position description remained unchanged.
  1. [24]
    In correspondence dated 16 March 2016, the respondent confirmed an amendment to Ms Bain's hours and stated that she would work on four days of the week between 4 April 2016 and 17 June 2016. The correspondence also stated that from 20 June 2016 Ms Bain would resume working three days a week "until you are due to return full time on 30 January 2017". This is the first indication that the arrangement reached with Ms Bain included an indicative date for return to full time work. Ms Bain's position description remained unchanged.
  1. [25]
    In correspondence dated 18 July 2016, the respondent confirmed an amendment to Ms Bain's hours and stated that she would work four days per week between 1 August 2016 and 31 December 2017 "after which time you will return to your standard hours of 36.25 hours per week". This correspondence reveals that the previously agreed date for return to full-time work had been pushed back to 1 January 2018. However the correspondence added that the arrangement "can be reviewed and may be varied by our mutual agreement". Ms Bain's position description remained unchanged.
  1. [26]
    In correspondence dated 21 November 2016, the respondent said that Ms Bain's work pattern would change to allow her to take Mondays off in lieu of Wednesdays for the period from 9 January 2017 to 31 December 2017. This communication again stated that after 31 December 2017, Ms Bain would return to full-time employment. The position description remained unchanged.
  1. [27]
    There is no material before me contradicting an expectation that Ms Bain would return to full time employment in early 2018, and the evidence established that Ms Bain did return to full time employment in January 2018.

Evidence

  1. [28]
    Evidence in support of the application was given by the applicant.  The applicant's affidavits are in the evidence as Exhibits 1 and 2.  The witnesses for the Council were:
  • Mr Zane Trow (Creative Arts Manager – Redland City Council); and
  • Mr Gary Photinos (Manager of Community and Cultural Services – Redland City Council).

Legislative test

  1. [29]
    Pursuant to s 315(1)(d) of the IR Act, an employee is excluded from the unfair dismissal provisions of the IR Act if the employee is engaged for a specific period, unless the main purpose of the specific period engagement was to avoid the employer's obligation in terms of unfair dismissals.

Avoidance of obligations

  1. [30]
    The evidence does not support a finding that the respondent was motivated, in entering into the fixed term contracts, by a desire to avoid the unfair dismissal provisions of the IR Act.

Fixed Term Contracts

  1. [31]
    The applicant was engaged under at least two separate and distinct contracts of employment. The first contract (CUL012) was made pursuant to s 35 of the Industrial Relations Act 1999 and was specifically brought about by the absence from work on maternity leave of Ms Emma Bain. The contract covered the period 19 November 2012 to 9 October 2014.
  1. [32]
    The second contract was made on 8 October 2014 (Position no. CUL106) for a term of one year. This contract was for a part-time position for three days a week which the applicant accepted in her outline of evidence (Exhibit 44) involved a job sharing arrangement with Ms Bain who had returned to work on 9 October 2014 for two days per week. This contract was extended on 8 October 2015 to 7 October 2016. The last contract extension entered into in October 2016 was a fixed term contract ending on 31 December 2017.
  1. [33]
    In the case of both the 2012 and 2014 contracts and in the case of the contract extensions in 2013, 2015 and 2016, the applicant was informed in writing of the terms of the proposed employment arrangement. In every case the offer made clear that the employment was for a fixed term, and specified a start date and an end date for the term. 
  1. [34]
    In every instance, where correspondence was entered into between the respondent and the applicant relating to her contract of employment, the correspondence included a signed acceptance by the applicant of the terms set out. The acceptance was expressed in the following form:

I am pleased to accept the position of Director – Redland Art Gallery (CUL012) on the above terms and I acknowledge that my employment is subject to the terms and conditions as set out in the Redland City Council Officers' Certified Agreement No. 1 2009, the Local Government Act 2009 along with the relevant industrial Award and Council's Code of Conduct and Polices as amended from time to time.

  1. [35]
    The only variation to the terms of the acceptance given over time involved the inclusion of the current version of the certified agreement and the inclusion of a different position number once the applicant had commenced sharing the Director-Redland Art Gallery position with Ms Bain and a duplicate part time position was created (CUL106).
  1. [36]
    It is not in dispute that during the period from May to November 2017, Mr Trow had discussed full time employment with the applicant and had also discussed an extension of her existing contract.
  1. [37]
    In this regard, the applicant submitted that the assurance she had been given about permanent employment and the discussions that had been entered into about her ongoing contribution to the Council, disclosed that the parties were conducting themselves in a way which was inconsistent with her employment ending as a result of the effluxion of time. Rather, the assurances provided during 2017 were consistent with a shared understanding that her employment was continuing and that the outer limit fixed in the 2016 contract was not a true reflection of the employment arrangements.
  1. [38]
    The fact that in 2017 the applicant was actively canvassing the prospect of a permanent appointment and her supervisor had sought approval for the creation of a new position, does not alter the fixed term nature of the employment arrangements in place. The prevailing contract of employment remained in force until such time as it was replaced or amended.
  1. [39]
    While the applicant had hoped that her fixed term contract would be extended beyond 31 December 2017, or that this contract would have been replaced by a permanent contract, she had been informed in unambiguous terms by the respondent in June 2017 that she remained in a job share role and told that a new permanent position could be not created unless and until the various approval processes had been successfully navigated.  Soon after receipt of this advice, on 5 July 2017, the applicant agreed to accept an increase in her hours and in so doing signed a document confirming that her terms, conditions, reporting framework and position description remained unchanged.
  1. [40]
    The evidence supports a conclusion that, notwithstanding the discussions in 2017 about the possibility of permanent employment, at all times the applicant's continuing employment was conditional on the arrangements agreed between the respondent and Ms Bain relating to Ms Bain's return to full time employment.
  1. [41]
    While the applicant promoted the proposition that the efforts to secure permanency involved a recognition of continuous service, such a proposition reflects her aspiration and not the factual or legal scenario.

 Unqualified right to terminate

  1. [42]
    As explained in Dale v Hatch,[1] Anderson v Umbakumba Community Council[2] is authority for the proposition that:

An employment contract will not be one for a specified period of time if it gives either party an unqualified right to terminate the contract on notice or with payment in lieu of notice within any specified term. The basis for this proposition is that a specified period of time is a period of employment that has certainty as to its commencement and time of completion, and where a contract provides a broad or unconditional right of termination during its term, the period of the contract is indeterminate and thus not for a specific period of time.[3]

  1. [43]
    Both the 6 November 2012 letter of appointment and the 8 October 2014 letter of appointment included a statement to the effect that the applicant's employment will end on the specified date "or in accordance with the notice of termination provisions" specified in the relevant version of the Redland City Council certified agreement.
  1. [44]
    In more specific terms, the October 2014 letter of appointment provided that the applicant's employment would cease on 9 October 2015, or in accordance with the notice of termination provisions specified in the Redland City Council Officers' Certified Agreement 2013.
  1. [45]
    The applicant submitted that the inclusion in the letter of appointment of a term permitting the employment to be ended before 9 October 2015 meant that the respondent had an unrestricted right to terminate her contract before its expiry date. In these circumstances, the contract could not be characterised as a fixed term contract pursuant to s 315(1)(d) of the IR Act.
  1. [46]
    Clause 40 of the 2013 certified agreement provides that the employer can terminate the employment on notice ranging from two weeks to four weeks, depending on the length of service of the employee.
  1. [47]
    However, clause 5 of the 2013 agreement provides that the agreement is to be read and applied "wholly in conjunction" with the Queensland Local Government Officers Award 1998, except in the case of inconsistency when the agreement provisions were to prevail. In these circumstances certain award provisions are, in effect, incorporated into the certified agreement.
  1. [48]
    The award in its current terms, and its predecessor applying at the time of the applicant's employment, included specific provisions regulating maximum term employment. There has been no material change to these provisions over time. The provisions included in the Queensland Local Government Industry (Stream A) Award – State 2017 are set out below:

8.4 Maximum-term employment

  1. (a)
    Subject to clauses 8.4(b) and (c), a maximum-term employee is one who is engaged for a specified period of time or for a specified task.
  1. (b)
    A maximum-term employee's employment may be terminated by the employer before the specified period of time or before the completion of the specified task in the following circumstances:
  1. (i)
    by written agreement with the employee; or
  2. (ii)
    in the event of an incapacity which prevents the employee from performing the duties they were employed to perform; or
  3. (iii)
    in the event of misconduct (in which case the termination may be without notice); or
  4. (iv)
    by the employer providing six months' pay in lieu of notice or the amount of wages due to the employee for the balance of the contract, whichever is the lesser amount.
  1. (c)
    A maximum-term employee may terminate their employment by the giving of four weeks' notice or the forfeiture of wages for any shortfall in the four weeks' period of notice.
  1. [49]
    The respondent submitted that the intent and the effect of the maximum term provisions in the award was to restrict the way in which local government employers and employees entered into fixed term contracts and precluded any unqualified right of termination on the part of the employer.
  1. [50]
    The respondent submitted that the applicant's appointment for the term specified in her letter of appointment dated 8 October 2014 could not have been severed other than in a manner consistent with the award provisions. There was therefore no unqualified right to terminate the applicant's employment.
  1. [51]
    The effect of clause 8.4 of the award is to expressly regulate the use by employers of maximum term employment arrangements. These provisions in my view can be read consistently with the provisions included in clause 40 of the certified agreement in that they impose more beneficial provisions for employees engaged under fixed term contracts in circumstances where the agreement is silent on the subject.
  1. [52]
    Consequently the terms of any fixed term contract entered into by an employee covered by the award and certified agreement, must be consistent with the provisions set out in clause 8.4 of the award.
  1. [53]
    There is no dispute that the applicant's employment was regulated by both the certified agreement and the award. This is made clear in the various contract of employment and contract extensions. The applicant's concurrence with the terms of the contracts also includes her acceptance that her employment is regulated by both the agreement and the award. It follows that the maximum term employment provisions of the award have application to the applicant's fixed term arrangements.
  1. [54]
    Notwithstanding this, the applicant questioned whether the award provision provided a qualified right to terminate the employment before the expiration of the specified period. 
  1. [55]
    I am not prepared to accept this proposition. A requirement that an employer could only end the employment relationship by paying six months wages constitutes a serious limitation on the capacity of an employer to end a fixed term contract before its expiry date. It is a restriction of substance, and the imposition of this restriction is sufficient to establish that the award provision does not allow for an unqualified right to terminate.
  1. [56]
    In short, the operation of the law in not allowing parties to contract out of the terms of the award, the terms of the contracts of employment, and the provisions included in clause 5 of the certified agreement all contribute to a conclusion that the maximum term provisions of the award applied to the applicant and that those provisions do not allow for an unqualified right of termination within the terms of the contract.

 Continuous employment

  1. [57]
    The facts and circumstances associated with the 8 October 2014 contract, which included a number of contract extensions, caused the applicant to suggest that the employment arrangement was something other than that claimed by the respondent. The period of employment in question is from 10 October 2014 to 31 December 2017.  The applicant submitted that across this period her employment was to be seen as involving in reality a continuous employment relationship in the manner contemplated in D'Lima v Board of Management Princess Margaret Hospital for Children[4] ('D'Lima').
  1. [58]
    The applicant submitted that consistent with D'Lima, the regulation of her employment by a series of contracts or extensions of contracts was a product of administrative convenience which did not mirror a factual scenario in which her public art work was ongoing into 2018, her hours of work were increasing, and she had received assurances of either permanency or an extension of her contract. These factors were not consistent with an employment arrangement which was expected to end on the effluxion of time on 31 December 2017. 
  1. [59]
    The facts in D'Lima are substantially different to the present matter. Ms D'Lima was employed under a series of fixed term contracts between September 1992 and December 1994 when Ms D'Lima's services were utilised as an on-call contract cleaner. Around June 1993, Ms D'Lima was offered regular work and she performed this work under a series of monthly contracts. The evidence in the proceedings was to the effect that at the end of the monthly term, the practice was for workers to keep working unless they were told by their supervisor something to the contrary. Ms D'Lima's evidence was that while she signed forms specifying an end date for a period of work, it was often the case that at the end of the period she would continue to work and at some point her supervisor would ask her to sign a new form which was back-dated to the end of her last contract.
  1. [60]
    It was in these circumstances, that the Court concluded that "in substance and in truth, Ms D'Lima was employed continuously from 18 June 2013".
  1. [61]
    In my view, there were many markers supporting a conclusion that the extensions made to the applicant's contract did not result from administrative convenience as the term was used in D'Lima, but were necessitated by the significant uncertainty associated with Ms Bain's changing return to work arrangements.
  1. [62]
    Changed return to work arrangements were demonstrated by reference to Ms Bain's personal circumstances which were very challenging, the "trial" nature of her initial arrangement, the inclusion of a caveat in some instances to the effect that the agreement reached was alterable by mutual consent; and the change in her date for resumption of full time employment from 30 January 2017 to 31 December 2017. 

Job Share

  1. [63]
    The respondent submitted that the main purpose of the applicant's employment after 8 October 2014 was to job share the work associated with the position of Director-Redland Art Gallery with the incumbent, Ms Bain. The job sharing was said to extend across a period wherein Ms Bain was returning from maternity leave and was only available to work part-time because of family responsibilities and personal circumstances. The applicant's employment was always limited by these circumstances and it was consistent with these circumstances that the applicant's employment ended with the effluxion of time on 31 December 2017.
  1. [64]
    The applicant however saw the matter differently. She said that the underpinning reason for her employment changed over time and that increasingly her role was disassociated from a role contingent on complementing or supplementing Ms Bain's role while she was returning to full time employment. In the applicant's view, her role commensurately was to be seen as a different role specialising in public art and that this role was operationally distinct from Ms Bain's role and that her ongoing employment was not conditional on Ms Bain's return to work arrangements.
  1. [65]
    It followed, in the applicant's view, that her role should not be characterised as a job sharing role or simply an extension of Ms Bain's substantive role as Director-Redland Art Gallery. Rather, her role at least for two years prior to the ending of her employment, should be seen as a role separate and distinct from Ms Bain's role, and a role in which there was an expectation of continuing employment. A conclusion to this effect was justified by reference to the following factors.
  2. [66]
    First, the applicant said that her work functions were dedicated to public art and not to the suite of functions assigned to the Director-Redland Art Gallery position; second, she was responsible for the management of a separate public art budget; third, the development of the public art plan was a substantial and ongoing project; fourth, she could not be considered to be in a job share role from 1 February 2016 when the combined hours of herself and Ms Bain exceeded 1 FTE. This position was emphasised when by July 2017, and throughout the rest of 2017, the combined hours of Ms Bain and the applicant had reached 1.6 FTE.
  1. [67]
    While the applicant's duties may have changed and while it is accepted that her principal focus was the development of public art plan and work related thereto in 2016 and 2017, the evidence supports a conclusion that the applicant was always engaged in the duplicate position of Director-Redland Art Gallery, and that the public art work that she was performing fell within the position description of Director-Redland Art Gallery. The coverage of public art functions in the Director-Redland Art Gallery role is clearly evident upon a reading of the position description. It is also evident in the division of work agreed between Ms Bain and the applicant in August 2016.
  1. [68]
    The agreed division of work was set out in an email included in the evidence as Attachment ZT2 to Exhibit 45. The manner in which work was divided is clear evidence of a job sharing arrangement and a job sharing arrangement which shared jobs or responsibilities according to the five key accountabilities identified in the position description for the position of Director-Redland Art Gallery.
  1. [69]
    In effecting the division by reference to the key accountabilities, functions assigned to the applicant included "manage and develop communication strategies in relation to public art"; "provide leadership and management for gallery staff in public art"; "manage public art and collection contractors, and staff working across collections"; manage public art capital budget; and "deliver 5 Year Public Art Strategic Plan" and other 2016/7 public art projects identified in the plan.
  1. [70]
    It is also relevant that there is nothing in the applicant's second contract dated 8 October 2014, nor in her position description, nor in the contract extension letters of October 2015 or 2016 which supported the applicant's position. In each instance the applicant was offered and accepted the position of Director-Redland Art Gallery. The only basis for the applicant to assert that she was performing a function separate from the position of Director-Redland Art Gallery was if a separate public art position had been created and consequential changes had been made to the Director-Redland Art Gallery position description. These things however never eventuated.
  1. [71]
    While the applicant was correct in stating that for a period of time the combined hours of herself and Ms Bain exceeded the hours allocated to one full time position, this does not alter the job sharing nature of the arrangement, nor does it establish that the work performed fell outside of the position description of Director-Redland Art Gallery. The combined hours figure is only evidence of the fact that an increased demand for work necessitated both the applicant and Ms Bain working in excess of their standard part-time or budgeted hours. In neither case is there any evidence that they objected to working the additional hours.

Termination at the initiative of the employer

  1. [72]
    The effect of the applicant's submission was that the ending of her employment was not consistent with the assurances that she had been given of both permanent employment and a contract extension across the course of 2017. Given her expectation of continuing employment, it would be inaccurate to characterise the ending of her employment on 31 December 2017 as having been caused by the effluxion of time and the more likely outcome was that the termination had occurred at the initiative of the employer.
  1. [73]
    The applicant referred to the decision of the majority in Khayam v Navitas English Pty Ltd[5] ('Khayam') where considerations were identified relevant to a determination about whether the employment was terminated at the initiative of the employer. These considerations included propositions to the effect that:
  • Where the employment relationship is made up of a sequence of time-limited contracts of employment and where the termination has occurred at the end of the term of the last of those contracts, the analysis may require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract;
  • Whether an action on the part of the employer was the principal contributing factor which resulted in the termination of the employment;
  • Consistent with D'Lima, whether the employment arrangements included 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; and
  • Whether the terms of the contract are inconsistent with the terms of an award or enterprise agreement which regulates fixed-term employment, in which case the terms of the award or agreement will prevail over the contract.
  1. [74]
    None of these considerations assist the applicant's cause. An examination of the entire employment relationship reveals that Ms Bain's return to work arrangements were always a pivotal factor in relation to the duration of periods of employment; the respondent took no action precipitating the end of the employment in circumstances where the applicant was a valued employee and would have been retained by the respondent had funds been able to be allocated to support the creation of a new position; D'Lima is distinguished because of the substantial differences in the factual matrix; and the term of the contract purporting to allow an unqualified right of termination was rendered void by the terms of the award applying to the applicant.
  1. [75]
    The facts in Khayam are significantly different to the facts in the present case. Mr Khayam had been employed by Navitas as a casual teacher between 2005 and 2012. After this, he was employed on fixed term contracts between April 2012 and June 2016. The final fixed term contract included a provision to the effect that either party could terminate the contract on notice or, in the case of Navitas, on payment in lieu of notice. Ultimately, Mr Khayam was not issued with a new contract because of concerns about his performance. In a reflection on the mode of employment and the factual matrix, the presiding member in the first instance had observed that it was "inherently unfair that an employee with 11 years' service on consecutive maximum-term contracts" could have his employment end due to performance concerns "without the employee having the opportunity to challenge the concerns".
  1. [76]
    In the appeal proceeding, Mr Khayam argued that his employment was terminated at the initiative of the employer and not at the effluxion of time, and that the employer had brought the employment relationship to an end in circumstances where it had decided not to continue the employment due to alleged performance issues.
  1. [77]
    In terms of the law, there are significant differences between this matter and Khayam. There are differences in the legislation, there are differences in the relevant terms of the applicable certified agreement, and in Khayam, there was no relevant underpinning award provision.
  1. [78]
    While the certified agreement in Khayam included express provisions authorising the use of fixed term contracts, these provisions did not deal in any way with the capacity of either party to end the contract on notice before its expiry date. Therefore the agreement did not modify or otherwise place any fetter on the term in Mr Khayam's contract which provided an unqualified right to terminate the contract before its end date.
  1. [79]
    In terms of the legislation, the IR Act provides that an unfair dismissal remedy is not available to "an employee engaged for a specific period or task". The equivalent provision in the Fair Work Act 2009 provides that a person has not been dismissed if the person was employed under a contract of employment for a specified period of time, and the employment has terminated at the end of the period.

The entire employment relationship

  1. [80]
    A review of the entire employment relationship does not support a finding that the employment contract was ended at the initiative of the employer. The applicant's continued employment was always contingent on Ms Bain's return to work arrangements. It was only after it was known that Ms Bain would resume full time employment on 1 January 2018, that consideration was given to the possibility of the creation of a new position.
  1. [81]
    When Ms Bain returned to work for two days a week in October 2014, the applicant was offered and accepted a part-time contract to work three days a week. She continued to work for three days a week until 3 July 2017 when she worked for four days a week. For her part, Ms Bain worked two days a week until 29 January 2016 when she commenced working for three days a week. There can be no contest, in my view that between October 2014 and 29 January 2016, a conventional job share arrangement was in place and that the job share arrangement was utilised because Ms Bain did not want to, and had not, returned to work on a full-time basis.
  1. [82]
    While Ms Bain's hours increased during 2016 and for about seven and a half months she worked four days a week, the essential character of a job share arrangement caused by Ms Bain's graduated return to work was not altered. While there was some informal adjustments to titles, both Ms Bain and the applicant were regarded as holders of the position Director – Redland Art Gallery. Further, the email in the evidence as attachment ZT2 to Exhibit 45 established that an agreed division of work between Ms Bain and the applicant was implemented from 1 August 2016 by reference to the key accountabilities of the position of Director-Redland Art Gallery. Finally, while Ms Bain's hours were progressively increased, the applicant's hours had remained at three days a week since October 2014.
  1. [83]
    The fact that Mr Trow's budget permitted the increased human resource commitment to the Director-Redland Art Gallery role, and that work demands and operational priorities supported the allocation of further resources, does not mean that the applicant's employment became disconnected from the shared position of Director-Redland Art Gallery. This had been explained to the applicant in an email sent to her by the senior workplace relations advisor, Ms Carlson, on 30 June 2017 (Attachment GP 3 to Exhibit 46):

My initial understanding was you and Emma Bain were sharing a position whilst she took some parental leave? If this is the case the hours of the two positions can't exceed the full-time FTE without there being some kind of approval go through for the increase to FTE (and hence budget).

  1. [84]
    Consistent with this evidence, Mr Trow said in his evidence that from late 2015 onwards there was an increase in work demands placed on the position of Director-Redland Art Gallery and the increase in work was attributable to an increase in spending by Council on public art between 2015 and 2017 and to an increase in work requirement associated with the development of a longer term public art plan. It was in these circumstances that Mr Trow approved an increase in the combined hours for the Director-Redland Art Gallery position on the basis that he had scope in his budget to allocate the additional hours.
  1. [85]
    Beyond this, the applicant always knew that unless her contract was extended or unless Mr Trow was successful in getting approval for a new position, her employment would end on 31 December 2017.  She was told this by Mr Blaney in Human Resources on 27 June 2017 when she was received the following advice by email (Attachment GP 2 to Exhibit 46): 

With respect to a change to your current employment status (being fixed term, ending 31 December 2017), this is not as straight forward a process. I understand that your role is backfilling an incumbent permanent Director – Art Gallery position. To convert a fixed term position to permanent would first require CEO approval, and would naturally require an accompanying briefing note and details as to why. Additionally, if you were to be appointed directly to a newly created permanent role, we would also need justification as to why a recruitment process would not be warranted.

  1. [86]
    The applicant's own characterisation of her circumstances in the briefing note (Exhibit 18) she prepared on 14 June 2017 supports a conclusion that her employment was never continuous and was contingent on either Ms Bain's arrangements or the outcome of the proposal to create a new permanent position:

On the return of Emma Bain from 2 years parental leave, Stephanie was appointed to the temporary position CUL106 in November 2014 on a 0.6 FTE basis following a formal recruitment process (initially FTE for several months while Emma transitioned back to work). This contract has been extended twice, with the role changing over that time from Director (Strategic) to Director (Collections & Public Art) to accommodate Emma's staged return to full-time work.

Stephanie Lindquist is requesting permanency on the basis that the temporary CUL106 contract has extended twice (expiring 31 December 2017). In addition, with the extra hours to 0.8 FTE or, should extra budget be available, to full-time.

  1. [87]
    In this communication, the applicant acknowledges the interdependency between her role and the role of Ms Bain, acknowledges that her current contract expired on 31 December 2017, and acknowledges Ms Bain's staged return to full-time work. It is also self-evident that the request for permanency is subject to approval.
  1. [88]
    It is reasonably clear that by July 2017, the applicant's employment would end on 31 December 2017 unless Mr Trow was successful in getting approval for the new position. Mr Trow hoped to be able to create a new permanent position for the applicant in circumstances where it was known that Ms Bain would resume full time employment in early 2018 and that the job share arrangement had to end. Discussions took place between Mr Trow and the applicant about the matter and Mr Trow set in chain the process that needed to be followed to secure the necessary approvals.
  1. [89]
    While discussions were held about a contract extension beyond 31 December 2017, this may not have been an alternative proposition. Rather, the discussion about a contract extension was conditional on approval being given for the creation of the permanent public arts position. In this context, the extension was necessary because if the budget bid for the new position was successful, the new position would not commence until the start of the new financial year viz 1 July 2018.
  1. [90]
    In his affidavit (Exhibit 46), Mr Photinos said that he was aware that Mr Trow had made a budget bid for the creation of a new public art officer position. He said that the bid was made to Council's executive management team and the Council CEO. He explained the process in the following terms:

Approval to make a request for a new position was nothing out of the ordinary, and follows a well-known process to accommodate RCC's financial policy of not increasing its permanent head count. As positions across RCC become vacant and are not replaced, bids/proposals are made from various areas of RCC's operations for new positions, which are considered by the RCC Executive Team, and CEO, on a case by case basis, and whether a new position is approved in a given circumstance depends on competing requests for additional staffing across the entire organisation.

  1. [91]
    This evidence is consistent with the content of an email Mr Photinos sent to the applicant on 28 June 2017 (Exhibit 26), when Mr Photinos informed the applicant:

As I explained the conversion from part time contract to full time is an additional FTE request which requires a Business Case and PMO project bid, that ultimately requires General Manager approval in the first instance before it progresses. We will also have some feedback from the Councillor Workshop on the approval of the public art strategy sometime in August/September that may add weight to the business case. In any case, if the business case is approved then a budget bid is required and potential approval in the 2018-2019 financial year.

  1. [92]
    In the same email Mr Photinos also informed the applicant that he would approve an extension in her hours to 29 hours per week "until the end of the contract being December 2017".
  1. [93]
    In the 28 June 2017 email, Mr Photinos is reminding the applicant that the end date of her contract is December 2017; that the creation of any new public art position will require a business case, General Manager approval and a project bid; and that if approvals are given, the start date for any new position would not be before the 2018-2019 financial year.

Findings

  1. [94]
    The following findings are entered:
  • At all times during the applicant's employment, her employment was contingent on either Ms Bain continuing in a part-time capacity, or the creation of a new position;
  • At all times during the applicant's employment after 8 October 2014, the applicant's position was a duplicate Director-Redland Art Gallery position created to facilitate the job sharing of that position with Ms Bain;
  • At all times during the applicant's employment, her role, duties and responsibilities fell within the position description of Director-Redland Art Gallery;
  • The terms of the applicant's October 2014 contract and her October 2015 contract extension were consistent with Ms Bain's graduated return to work in circumstances where there was continuing uncertainty up to July 2016 about Ms Bain's return to work arrangements;
  • While it was first thought on 16 March 2016, that Ms Bain would return to full time employment on 30 January 2017, this arrangement was changed on 18 July 2016 when it was agreed that Ms Bain would return to full time employment on 1 January 2018;
  • When the applicant was offered a contract extension on 4 October 2016, it was known to the respondent that Ms Bain would be resuming full-time employment on 1 January 2018. It is consistent with this development that the respondent offered an extension to 31 December 2017, rather than to 4 October 2017 which would have been consistent with past practice when contracts or contract extensions provided for a one year term;
  • The fact that the respondent actively considered appointing the applicant to a newly created permanent position, does not diminish from the central character of the applicant's actual employment arrangement which was to provide part-time support for the position of Director-Redland Art Gallery until such time as Ms Bain resumed full time employment;
  • While Mr Trow sought approval for the creation of a new public art position, approval was not given. Save and except for the creation of a new position, in circumstances where Ms Bain was returning to full time employment in January 2018, the applicant's employment ended on 31 December 2017 by the effluxion of time.

Decision

  1. [95]
    The factual matrix described above does not support the applicant's case that the employment arrangement struck by the respondent was a sham and that she was in truth engaged in a continuing employment relationship with the respondent. The duration of the applicant's employment was always limited by Ms Bain's return to work arrangements and, after 10 October 2014, the nature of the relationship was defined by the job sharing arrangement in place with Ms Bain. These circumstances are not indicative of an employment arrangement which was continuing or indeterminate.
  1. [96]
    The effect of s 315(1)(d) of the IR Act, is that the applicant is excluded from the unfair dismissal provisions of the IR Act if the applicant has been engaged for a specific period. I am satisfied, having regard to the relevant facts and circumstances, that the applicant's employment arrangements ended in a manner consistent with s 315(1)(d) of the IR Act. In the circumstances the applicant is precluded from bringing an unfair dismissal application.
  1. [97]
    The application is therefore dismissed. 

Footnotes

[1] Dale v Hatch Pty Ltd [2016] FWCFB 922.

[2] Anderson v Umbakumba Community Council (1994) 126 ALR 121.

[3] Dale v Hatch Pty Ltd [2016] FWCFB 922 [22].

[4] D'Lima v Board of Management Princess Margaret Hospital for Children (1995) 64 IR 19.

[5] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162.

Close

Editorial Notes

  • Published Case Name:

    Stephanie Lindquist v Redland City Council

  • Shortened Case Name:

    Lindquist v Redland City Council

  • MNC:

    [2018] QIRC 141

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    21 Nov 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Anderson v Umbakumba Community Council (1994) 126 ALR 121
2 citations
Jump To
Cite 1 - (1994) 126 ALR 121
Cite 2 - (1994) 126 ALR 121
D'Lima v Board of Management Princess Margaret Hospital for Children (1995) 64 IR 19
2 citations
Jump To
Cite 1 - (1995) 64 IR 19
Cite 2 - (1995) 64 IR 19
Khayam v Navitas English Pty Ltd [2017] FWCFB 5162
2 citations
Jump To
Cite 1 - [2017] FWCFB 5162
Cite 2 - [2017] FWCFB 5162
Kirsten Dale v Hatch Pty Ltd [2016] FWCFB 922
3 citations
Jump To
Cite 1 - [2016] FWCFB 922
Cite 2 - [2016] FWCFB 922
Cite 3 - [2016] FWCFB 922

Cases Citing

Case NameFull CitationFrequency
Pardal De Souza Dias v State of Queensland (Department of Environment and Science) [2024] QIRC 171 citation
The Association of Professional Engineers, Scientists and Managers, Australia, Queensland Branch, Union of Employees v Brisbane City Council [2019] QIRC 572 citations
1

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