Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Susan Esther Benfell) v Department of Education and Training [2008] NSWIRComm 16 (8 February 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Susan Esther Benfell) v Department of Education and Training [2008] NSWIRComm 16



FILE NUMBER(S):
IRC 272 of 2007; 392

HEARING DATE(S):
9, 10 January 2008

DATE OF JUDGMENT:
8 February 2008

PARTIES:
APPLICANT:
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Susan Benfell)

RESPONDENT:
Director-General, Department of Education and Training

CORAM:
Boland J


CATCHWORDS: Unfair dismissal - Teacher's Aide employed on a temporary basis by Department of Education and Training - Employee advised that she would not be assigned any work after the end of 2006 school year - Whether employee engaged under fixed term contract or whether there was a continuing employment relationship - Effect of s 21 of Education (School Administrative and Support Staff) Act 1987 - Whether employee dismissed within meaning of s 84 of the Industrial Relations Act 1996 - Whether employer dispensed with the services of the employee within the meaning of s 83(5)(b) of the Industrial Relations Act 1996 - Whether employer refused to employ Teacher's Aide - Whether the dismissal was harsh, unreasonable or unjust - Appropriate form of relief

Industrial dispute - Teacher's Aide employed on a temporary basis by Department of Education and Training - Employee advised that she would not be assigned any work after the end of 2006 school year - Whether employee engaged under fixed term contract or whether there was a continuing employment relationship - Whether employee was dismissed - Power of the Commission to make an award or order under Pts 1 or 2 of Ch 3 of the Industrial Relations Act 1996

LEGAL REPRESENTATIVES
APPLICANT:
Mr A A Hatcher of Counsel
Solicitors:
Ms A L McRobert
W G McNally Jones Staff Lawyers

RESPONDENT:
Mr P Ginters of Counsel
Mr E Dailly
Department of Education and Training

CASES CITED:
Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385
D’Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19
Department of Justice v Lunn (2006) 158 IR 410
Director-General of Education and Others v Suttling [1987] HCA 3; (1987) 162 CLR 427
Licensed Clubs Association of Victoria v Higgins (1988) 4 VIR 43
New South Wales Department of School Education v Andrews (1995) 60 IR 126
Notification under Section 130 by the PSA of a dispute with Department of Education and Training re loss of hours, Re [2007] NSWIRComm 284
Orange City Bowling Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1979] AR (NSW) 90
Police Association v NSW Police (No 2) (2005) 139 IR 103
Re Government Cleaning Services (Privatisation) Award (1993) 54 IR 112
Ryde-Eastwood Leagues Club Limited v Taylor [1994] NSWIRComm 112; (1994) 56 IR 385
Smith v Director-General of School Education [1993] NSWIRComm 134; [1993] 31 NSWLR 349
State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371
The State of Victoria v The Commonwealth of Australia (1996) 187 CLR 416
Transport Workers Union of Australia, New South Wales Branch v CWS Transport Services Pty Ltd (1990) 39 IR 8
Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273

LEGISLATION CITED:
Education (School Administrative and Support Staff) Act 1987 ss 21, 21(3), 21(4), 25
Industrial Relations (General) Regulation 2001 cl 6(1)(d)
Industrial Relations Act 1991 s 245
Industrial Relations Act 1996 ss 6(2)(e), 83, 83(1), 83(5)(b), 84, 84(2)), 89, 89(2), 89(3), 89(4), 89(8), 130, 136(1)(a), 136(1)(b), 136(1)(d), 137(1)(b), 193
Teaching Service Act 1980 ss 48(2), 48(4), 97, 97(1)
Workplace Relations Act 1996 (Cth) s 170CE


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BOLAND J

Friday 8 February 2008

Matter No IRC 272 of 2007

NOTIFICATION UNDER SECTION 130 OF THE INDUSTRIAL RELATIONS ACT 1996 BY THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES OF A DISPUTE WITH DEPARTMENT OF EDUCATION AND TRAINING RE LOSS OF HOURS

Matter No IRC 392 of 2007

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES (ON BEHALF OF SUSAN ESTHER BENFELL) v DEPARTMENT OF EDUCATION AND TRAINING

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member Susan Esther Benfell re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2008] NSWIRComm 16

1 The two matters that are the subject of these proceedings are: (i) a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (‘the Act’); and (ii) an application under s 84 of the same Act alleging unfair dismissal. Both matters arise out of a decision taken by the Department of Education and Training ('the Department') not to assign any work as a teacher's aide (special) ('TAS') to Mrs Susan Benfell after the end of the 2006 school year. Mrs Benfell is a member of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('the PSA' or 'the applicant'), a registered industrial organisation of employees whose rules permit it to enrol as members all persons employed by the Department as teachers' aides. Both the dispute notification and the application under s 84 were made by the PSA, the latter being on behalf of Mrs Benfell (see s 84(2)).

2 The dispute notification was lodged on 6 March 2007. It described the "question, dispute or difficulty" in the following terms:

a. Sue Benfell was employed as a Teacher's Aide (Special) at Tumut Public School for 9 years 9 months and 25 days and was advised of NO work at the School in 2007.

b. Up until Term 3 2006 Sue Benfell was working 45.25 hours per fortnight. In term 4 this was reduced to 23.20 hours per fortnight. There was NO consultation regarding the reduction and loss of hours.

c. The usual practice regarding loss of hours in schools is through consultation and agreement of staff or last on first off principle.

d. The Association has had discussions with the Department concerning the loss of hours for Sue Benfell, however, have failed to resolve the issue.

3 The remedy sought was that DET:

(i) employ Ms Benfell as a teacher's aide special at the School from the beginning of the 2008 school year, on the basis that the available hours of work at the School would be fairly and equitably allocated as between her and other Teacher's Aide Specials who regularly worked at the School prior to the end of the 2006 school year; and

(ii) pay Ms Benfell a sum of money equal to the amount of earnings foregone by her as a result of the failure of DET to allocate her any hours of work on a fair and equitable basis during the 2007 school year.

4 On 3 April 2007, the PSA filed the application under s 84 of the Act. In providing reasons for the application, reference was simply made to matter No IRC 272 of 2007, that is, the dispute notification. The primary remedy sought in the unfair dismissal application was reinstatement to Mrs Benfell's former position. In the alternative, the PSA sought an order for re-employment together with orders for the payment of remuneration (see s 89(3)) and continuity (see s 89(4)).

5 The two matters were joined. Conciliation by Tabbaa C had failed to resolve the issues in dispute. In August 2007, the Department filed contentions asserting that the Commission did not have jurisdiction to entertain the unfair dismissal application on the basis that Mrs Benfell had been engaged on a fixed term contract, which had expired by effluxion of time and, consequently, there had been no dismissal that would attract the Commission's jurisdiction.

6 In proceedings before Commissioner Tabbaa on 19 September 2007, the PSA made application to have the jurisdictional issue referred to the President of the Commission pursuant to s 193 of the Act to determine whether or not a Full Bench should deal with it. The reference was made on 21 September 2007. Subsequently, the President allocated both matters to a Full Bench.

7 In Notification under Section 130 by the PSA of a dispute with Department of Education and Training re loss of hours, Re [2007] NSWIRComm 284, a decision given on 19 November 2007, the Full Bench held as follows:

[11] Here the Union must succeed in its challenge to the Department's motion, in our view, if it demonstrates that the Commission arguably has the power to grant the relief sought by the Union, in whole or in part, under the dispute proceedings (Pts 1 and 2 of Ch 3 of the Act). We do not agree with the Department's assertion that if its motion to strike out the s 84 proceedings is correct, it must be dealt with at the outset of the proceedings. This is because, if the determination of that issue cannot entirely extinguish any available basis for relief sought by the Union (even if that is because that relief is available under an alternative source of power), it is premature and inappropriate for adjudication at the threshold, having regard to the principles stated in Virtue. This conclusion is a fortiori when account is taken of the fact that the respective proceedings have been joined and a source of power to resolve the proceedings in Matter No IRC 272 of 2007 arises under Ch 3 of the Act. This latter consideration is important because of the significance of the Commission's dispute settling powers to the resolution of issues such as those arising in this matter. Dispute proceedings should not be diverted nor should the Commission's dispute resolution functions and powers be depreciated by reference to more specific powers available to the Commission under the Act which may intersect with part of the subject matter of those proceedings: Express Data (a Division of Dimension Data Australia Pty Ltd) v NUW [2005] NSWIRComm 140 at [7].

[12] Thus, in these proceedings, having regard to the point they have reached, the question remaining for the resolution of the strike out motion is whether the Commission has any arguable power (as here) under ss 136 or 137 of the Act to grant relief to the Union's member in these matters. If it does, then, on the principles in Virtue, the motion should be dismissed.

[13] In our view, there is an arguable basis for concluding that the Commission has power to grant the relief claimed in this matter under Ch 3 of the Act, see, for example, the decision of Boland J in Police Association v NSW Police (No 2) (2005) 139 IR 103 and the principles espoused in Sydney Water v ASU (2005) 146 IR 388.

[14] The Full Bench therefore orders that the Department's motion be dismissed...

The two matters (including outstanding jurisdictional issues) were subsequently remitted to me for hearing and determination.

Factual Background

8 Mrs Benfell is 61 years of age. She first commenced employment with the Department in 1985 on a casual basis. Mrs Benfell commenced working at the Tumut Public School as a TAS in 1997. She worked continuously at the School as a TAS from 1997 to the end of the last Term of 2006 (Term 4). As at Term 4 in 2006, there were six temporary TAS employed at Tumut School, of which Mrs Benfell was the oldest and longest serving. Mrs Benfell was employed by the Department pursuant to s 21 of the Education (School Administrative and Support Staff) Act 1987 as a long-term temporary employee. Her employment was covered by the Crown Employees (School Administrative and Support Staff) Award and the Crown Employees (School Administrative and Support Staff, General Assistants in Schools) Stand Down Award. The former Award defined a "Long term temporary employee" as meaning:

a member of the school administrative and support staff employed by the Director-General on a temporary basis, either full-time or part-time, under section 21 of the Act, for a period in excess of one school term.

9 Section 21 of the Education (School Administrative and Support Staff) Act provides:

21 Employment of temporary employees

(1) The Director-General may appoint persons to be employed in the service of the Crown on a temporary basis as members of the school administrative and support staff of the Department in any classification.

(2) A temporary employee may be employed for a period not exceeding 4 months, but may, from time to time, be employed at the end of that period or any subsequent period for a further period not exceeding 4 months.

(3) A person may not be employed under this section for:

(a) a continuous period of 12 months, or

(b) 2 or more periods that together are in excess of 12 months in any period of 2 years,

except with the concurrence of the Minister.

(4) The services of a temporary employee may be dispensed with at any time by the Director-General.

10 Mrs Benfell's employment involved working with students with a range of physical, intellectual and learning/behavioural disabilities. She carried out her duties according to the General Conditions of Employment for Teacher’s Aide (Special) from the Handbook for non-teaching staff (“the General Conditions”). Tumut School gains funding for students with disabilities in accordance with the “Students with Disabilities in Regular Classes - Funding Support” and the supporting document “Funding Support - Students with Disabilities in Regular Classes - Support Document”.

11 According to the evidence, in 2004 Mrs Benfell was employed for 27.5 hours per week for the whole school year. In 2005, Mrs Benfell was employed for 25 hours per week for the whole school year. Towards the end of Term 4, from 1997 to 2005, the Principal of Tumut School would meet with Mrs Benfell and other temporary TAS's and inform them of what funding was available the next year. This did not occur with Mrs Benfell during Term 4 of 2006.

12 At the commencement of Term 1 2006, Mrs Benfell was provided with a document entitled "Appointment/Variation Form for Long Term Temporary Non-Teaching Staff in Schools". In previous years Mrs Benfell had been provided with and signed a document entitled “Supply Appointment Form for Non Teaching Staff in Schools”. This latter document served a similar purpose to the Appointment/Variation Form.

13 The 2006 Appointment/Variation Form contained Mrs Benfell's personal details and other relevant information, including the name and address of the school at which Mrs Benfell was employed, namely, Tumut Public School. The Form referred to a “New Appointment" period for Mrs Benfell of 30 January 2006 until 21 December 2006 and indicated that Mrs Benfell's hours of work would be 50 per fortnight. The Form also had provision for a "reduction/increase" in hours and the period that the reduction/increase was to apply for. The Form was signed by "S Jenkins", Principal and under the words "Employee acknowledgement" Mrs Benfell signed the form and dated it "31/1/06". Immediately above the words "Employee acknowledgement" was the following instruction in bold type:

Important details regarding your employment are contained on the attached sheets so you must read them before signing the acknowledgement below.

14 The reference to "attached sheets" on the Form was ostensibly a reference to a single page document entitled "Terms of Temporary Employment". The Terms provided, inter alia:

4. Cessation of employment

This appointment is in accordance with the Guidelines for the Appointment of Temporary Non Teaching Staff in Schools for 2006. Should the circumstances of this appointment change, you will be given as much notice as practicable before the change occurs or your employment is terminated.

There is no guarantee or expectation of any further or on going temporary employment continuing beyond the end date as specified in the attached Appointment/Variation Form for Long Term Temporary Non Teaching Staff in Schools.

Circumstances which may arise which would lead to the dispensing of the services of a temporary employee include, but are not limited to:

a) the reason or purpose for employment is no longer necessary, e.g. the specified task or project is completed;

b) the position is no longer temporarily vacant;

c) additional assistance is no longer required;

d) budget constraints including the termination of funding for the work;

e) misconduct by the temporary employee; and

f) poor or unsatisfactory performance by the temporary employee.

If circumstances arise where the services of a temporary employee are dispensed with, the temporary employee will be given as much notice as practicable prior to the termination of the temporary employment.

15 The evidence about whether the "Terms of Temporary Employment" single sheet was attached to the Appointment/Variation Form signed by Mrs Benfell on 31 January 2006 was not entirely clear cut. Mrs Benfell equivocated between being sure the Terms were not attached to the 2006 Form to not recollecting whether she saw the Terms as an attachment. Mrs Benfell's evidence in cross examination by Mr P Ginters of counsel for the Department was as follows:

Q. I think Mr Hatcher has taken you to this point. Under the employee acknowledgment, your signature appears and the date?

A. Yes.

Q. Immediately above that there are some words in bold. Can you read those to yourself or read them aloud, please?

A. "Important details regarding your employment are contained in the attached sheets, so you must read them before signing the acknowledgment below".

Q. What I want to suggest to you is that the document that is attached or photocopied on the other side provided to you is a document located at tab 10 of the agreed bundle. Do you see that document?

A. Behind tab 10?

Q. Or located at tab 10 of the document?

A. Yes.

Q. And that was the document that was either attached to or on the reverse side of the appointment variation form that you were provided with?

A. I don't honestly remember seeing that form or that letter.

Q. You appreciate there is a difference between not recalling something and saying that you have never seen it, correct?

A. I would say that, yes.

Q. I am not being disparaging, but your evidence to this commission is you don't recall seeing this document, is that right?

A. No, I don't, because there were many times we signed appointment variation forms and that is merely what we got, an appointment variation form, in our pigeonhole, "Please Sign", and that's what happened. I don't remember this form.

...

Q. You knew that on the form there was the text that I asked you to read in bold which was that there were important details regarding your employment contained in the attached sheets and that you would read them before signing the acknowledgment below?

A. There wasn't always an attached sheet. I can't remember the attached sheet, okay.

...

Q. Do you care to answer my question. The question is are you suggesting to this commission that you thought that it was appropriate or sufficient for you to sign this document without reading or considering the important details that related to your employment that were referred to in this document?

...

A. In bold it says that important details regarding your employment were contained on the attached sheets. I say there wasn't attached sheets. There was simply an appointment variation form, and that is what I signed.

Q. With respect, Ms Benfell, the evidence that you gave earlier was that you do not recall having seen that document. How is it that you can now say there was no such document?

A. Because most times we were just given the appointment variation form, and that's what I remember.

...

Mrs Benfell, just so I understand the position in my mind, the document behind tab 10, the "Terms of Temporary Employment" document, your evidence is you don't recall having seen this document, correct?

A. No, I don't, honestly.

Q. And you understand that the Department's position is that this document was previously provided to you?

A. Can I please just add to that. I was put on supply casual in 2007 (sic). Seven years is a long time. I honestly cannot remember what happened 7 (sic) years ago. I may have seen it then. I cannot say that I saw it every time I signed the form, the variation form, because I am quite sure I didn't.

Q. Would you accept, though, that there may have been occasions at least when this document was provided to you--

A. I don't recall....

16 I think there may have been some confusion on Mrs Benfell's part. As far as I am able to ascertain, the Terms of Employment sheet was first used in 2006. Prior to that time TAS's were required to complete and sign the form known as "Supply Appointment Form for Non Teaching Staff in Schools". There was no suggestion that there was attached to the Supply Form any terms of employment.

17 Nevertheless, the import of Mrs Benfell's evidence regarding the Terms of Employment Sheet was that she could not recollect having seen it.

18 Mrs Donna Reeves gave evidence for the Department. Mrs Reeves was the Principal of the Tumut School commencing from Term 2 of 2006. Mrs Reeves was asked in examination in chief about the Terms of Employment sheet:

Q. Mrs Reeves, could I firstly ask you this question? Could you turn to paragraph 10 of your first statement? And in that statement do you see that you say that a copy of the single sheet of the terms of employment was attached to the employment form to be signed by Mrs Benfell? Do you see that?

A. I do.

Q. On what basis do you say that, Mrs Reeves?

A. It is procedure at our school to attach that to all if not most of the variation forms.

Q. And are you able to explain how it is that that is attached to the appointment form?

A. Usually at our school it would be back to back.

Q. What do you mean by that?

A. I mean two-sided photocopy.

19 In cross-examination, however, Mrs Reeves conceded that in the majority of cases TAS's were only provided with the Appointment/Variation Form and not the Terms of Employment Sheet. Mrs Reeves also conceded that in 2006 Mrs Benfell might only have been provided with the Appointment/Variation Form.

20 One would have to conclude that on the balance of probabilities Mrs Benfell did not see and did not read the Terms of Employment when she signed the Appointment/Variation Forms in 2006. As for the instruction in bold type on the Appointment/Variation Form, it was Mrs Benfell's evidence that she did not follow the instruction because:

I had been at the school for ten years. I had - we had been signing these forms for many years and there was a certain trust and certainly an expectation of employment and that you were going to be treated with respect and dignity, and that had been the system right up until 2006.

And further:

Q. Mrs Benfell, do you accept that if you had concerns about matters that were referred to in the appointment variation form, an obligation rested on you to satisfy yourself of those matters before you signed the acknowledgment?

A. There had never been a concern until term 4 2006.

Q. There had never been a concern and you had been happy to sign the acknowledgement, having read or having seen the paragraph which is marked in bold immediately above your employee acknowledgment?

A. As I said before, I was merely acknowledging the hours.

Q. No, with respect, you weren't because immediately above the acknowledgment is the statement that the details regarding your employment are contained in attached sheets so you must read them before signing the acknowledgment below?

A. I understand that, but the forms were put in our pigeonhole, we would come in, starting at 10 past 9, check your thing, sign it, hand it back in. There were years and years of that. There was an element of trust. You didn't feel you needed to check for a change every time you were given a temporary variation form.

21 Whilst it would appear that the Department's practice was to require TAS's to complete the Appointment/Variation Form at the commencement of an appointment, I note that the Form's provenance was as an appendix (Appendix A) to a 12-page document entitled "Guidelines for the Employment of Temporary Non-Teaching Staff in Schools for 2006". The Guidelines provided, inter alia:

The Appointment/Variation Form for Long Term Temporary Non Teaching Staff in Schools (Appendix A) should be forwarded to the Bathurst Employee Service Centre each time a long term temporary employee is employed, has a variation to their employment or ceases employment.

Please note that all temporary appointments for non-teaching staff must terminate at the end of each school year.

...

Appointment of long term employees (from 10 weeks)

Principals must submit an Appointment/Variation Form for Long Term Temporary Non Teaching Staff in Schools (Appendix A) for:

· all instances where employment is to be for ten weeks or more;

· after 10 weeks continuous employment if the employee has been paid by e-CPC.

This will ensure that employees receive the correct rate of pay and employment entitlements.

The completed form, signed by the employee and the Principal on behalf of the Department, becomes the employee's Appointment Notice and is given to the employee.

A copy of the form should be faxed to the Bathurst Employee Service Centre on fax number ... and retained at the school for audit purposes.

Please note no notification will be sent to the employee or the school.

...

There was no suggestion that Mrs Benfell was provided with a copy of the Guidelines.

22 During Term 1 of 2006, Mrs Benfell was assigned to work with students in a combined class 2/3A with a Teacher, Mrs Rolfe. On 28 February 2006, another TAS verbally informed Ms Benfell that she and Mrs Benfell were to swap duties. In this respect, Mrs Benfell deposed in her Statement that:

Due to violent and abusive behaviour from student 2, Mrs Rolfe was forced to take stress leave for several weeks very early in Term 1.

On February 28 I arrived at school and was informed by another aide she and I had swapped duties. I then had to seek out an executive teacher who had made the decision to ask why. She said it was felt that I too could be vulnerable and they didn't need me going off on stress leave as well.

I expressed my annoyance that decisions had been made with my peers without any consultation with myself and that the message had been delivered in the corridor by another aide.

The executive spoke to me later apologising, admitting that this should not have happened.

However, hours were changed and I dropped from 25 hours to 22 hours 51 minutes weekly.

23 This reduction in hours took effect from 24 March 2006. Ms Benfell was provided with an "Appointment/Variation Form for Long Term Temporary Non-Teaching Staff in School" dated 28 March 2006 and in the space reserved for "reduction/increase in hours" the reduction was recorded for the period of 24 March 2006 to 21 December 2006. Mrs Benfell signed the Form. Mrs Benfell was provided with a further Form dated 24 June 2006, by which the Department varied her hours from 44.20 per fortnight to 45.42 hours per fortnight for the period of 31 July 2006 to 21 December 2006. Mrs Benfell signed her acknowledgement.

24 At the end of Term 3 2006, Mrs Benfell and the other temporary TAS's at the Tumut School were advised by Mrs Reeves that temporary TAS hours would be trimmed. Mrs Benfell's evidence was that she and the other TAS's were told by Mrs Reeves, "our hours would be trimmed due to lack of funding, but she assured us it wouldn’t affect us by much." Mrs Reeves denied she told the TAS's they would not be affected by much. Mrs Reeves said she could not recall whether the reason she gave for trimming the hours was due to lack of funding. In my opinion, Mrs Reeves did give that as the reason and did advise the TAS's that it would not affect them much.

25 I have no desire to be critical of Mrs Reeves, but it has become necessary for me to decide whose evidence is to be preferred where there is a conflict - either that of Mrs Reeves or of Mrs Benfell. Mrs Reeves was evasive, unforthcoming and contradicted herself on a number of occasions. The barely concealed antagonism in her manner and demeanour in answering questions put to her by counsel for the applicant only served to create the impression that she was not prepared to be completely open and candid with counsel in giving her evidence. On the other hand, apart from some episodes of confusion, I found that Mrs Benfell was forthright and truthful. Where there was a conflict in the evidence between the two witnesses I have preferred the evidence of Mrs Benfell.

26 On the last day of school Term 3 in 2006 Mrs Benfell was informed of new hours for Term 4. Her hours were to be reduced by the Department by about half to 11 hours 40 minutes per week. On learning of this, Mrs Benfell stated:

I was shattered. I couldn’t believe what had just happened to me. Since my involvement with the Department I had always been treated with appreciation, consideration and respect. At this point I did not approach Mrs Reeves, as my confidence was totally destroyed. I felt totally humiliated and confused.

I never have had hours so unfairly or unequally distributed. No explanation was offered to me as to why I was the only one to lose so many hours. Another aide had picked up some of my hours in the classroom. So much for lack of funding.

One of my peers immediately approached Mrs Reeves indicating how upset I was and she was instructed to give me a call to make sure I was okay. This roster was handed out at lunchtime on the last day of term and my hours finished at 1.10pm.

On returning in term 4 2006 I discovered that the aide who sometimes covered clerical or classroom had been given my 2 mornings a fortnight at the Infants Department, working the same mornings with the same student on the same class that had been taken from me. I have still not been given an explanation as to why this happened. I continued on my reduced hours to work with my original student in 2/3A and a few minutes a week with the year 6 student, up until my sick leave commenced.

During November I needed to take some sick leave due to surgery. I phoned Mrs Reeves a week before the end of term and asked what hours would be available in 2007. Her reply to me was that “she didn’t know and at the moment she wasn’t coping.”

I was actually in the school staff room at lunchtime during the last week of term and Mrs Reeves made no attempt to offer any information regarding 2007. I found this a little difficult to understand. Considering for the past 9 years employment was always ongoing, it just depended on the funding as to the number of hours I would work the following year.

Principals would meet with us towards the end of term and inform us what funding was available the next year. Because of the number of special children in our school there never has been a reason to doubt that there would not be a position available the following year. Due to a steady flow of special student funding and through consultation from the principal, there was an expectation and understanding that hours would be ongoing while ever funding continued and this occurred until the end of 2006. Such consultation resulted in hours being distributed equitably.

27 Mrs Benfell was provided with the relevant Form dated 18 October 2006 for the period of 16 October 2006 to 21 December 2006 reflecting the reduced hours. Initially, Mrs Benfell did not sign the Form. She stated in her evidence in chief:

I didn't sign the first one. I actually had a second one put in my pigeonhole asking me to please sign. I was really annoyed by that and I expressed my annoyance when I handed my form in to the administration aide.

Q. When you signed this document, did you understand yourself to be voluntarily consenting to a reduction of hours from about 45 down to 23?

A. I understood that the hours had already been decided and that I probably had no choice as to whether - it really didn't matter whether I agreed with them or not. If I wanted any hours, I had to sign the form.

Q. And is it the basis upon which you signed it?

A. That is the basis, yes.

28 Other than being advised at the end of Term 3 that temporary TAS hours would be trimmed due to lack of funding, but that this would not affect her much, Mrs Benfell was not provided with any explanation as to why her hours of work in Term 4 had been reduced to less than half of what they were in Terms 1, 2 and 3. Some attempt was made by Mrs Reeves in her evidence in the proceedings to justify the cut in Mrs Benfell's hours by suggesting that Mrs Benfell was not able to continue to support one particular student, Student E, because greater emphasis needed to be placed on technology assisted learning for this student and Mrs Benfell was not competent in that area. But there was no attempt to explain what Miss Benfell's shortcomings were; what technology system was actually used; and what was the extent of the deficiency or how it was identified. There was no document in the nature of a report that indicated what the problem or how it should be addressed. Moreover, another TAS, Ms Matthews, was also said to suffer a lack of competency in the area of technology assisted learning but she was allowed to continue with the student throughout Term 4 until, in Mrs Reeves' opinion in early 2007, Ms Matthews had become competent in her duties.

29 On returning from holidays in January 2007, Mrs Benfell received a letter from Mrs Reeves, dated 20 December 2006, which stated:

Dear Sue,

I am writing to inform you that at this stage there will be no teachers' aide special work for you at Tumut Public School during 2007.

I will, however, with your permission keep you as a casual for as you are aware we are often in need of an aide for day-to-day work and block employment.

I would be more than delighted to be a referee if you choose to seek employment.

Thank you again for the work you have done for the students of Tumut Public School.

30 No explanation was provided as to why there was no more work for Mrs Benfell in 2007 at the School. Moreover, Mrs Benfell has not worked at Tumut School in any capacity since 21 December 2006 despite the fact that she was to be included in the casual pool and despite the fact that on 73 occasions in 2007 the School required a casual TAS. Other persons were employed as TAS's on a casual basis in 2007, some of them not having been employed previously at the School and none of them with anywhere near the experience of Mrs Benfell.

31 Mrs Benfell stated in her evidence that until Term 4 of 2006, she had always been confident of being employed the following year because this had been an established pattern over the past years.

32 It is very clear from the evidence that Mrs Benfell was given no reason for the decision taken by Mrs Reeves that there would be no work for Mrs Benfell in 2007. At no time was Mrs Benfell advised that she was not competent to undertake any aspect of her work; at no time was she advised there had been any complaint about her work; and at no time was she counselled about any inadequacy regarding her work performance, conduct or skills. On the contrary, there were a number of references tendered in evidence and not contested by the Department, regarding her successful work with disadvantaged students and the courses undertaken by her over the years to increase her skills and knowledge as a TAS.

33 Furthermore, in 2007 funding to the School in relation to students with a physical, intellectual or learning/behavioural disabilities was not reduced, the number of students requiring assistance was six, no other TAS was advised their services were not required in 2007 and there was no evidence of a re-allocation of funding away from the employment of TAS's at the School.

CONSIDERATION

34 The Department contended in its submissions that:

(1) The Commission’s jurisdiction to hear and determine the s 84 application only arises if there has been a dismissal: s 83(1). Mrs Benfell was engaged on a series of temporary, fixed term contracts. The contracts between the parties expired by effluxion of time and upon their own terms. As a consequence, there was no “dismissal” of Mrs Benfell by the Department.

(2) As there had been no “dismissal” of Mrs Benfell, the Commission did not have jurisdiction to make dispute orders pursuant to s 137(1)(b) of the Act; the Commission’s power pursuant to s 136(1)(d) of the Act was confined to the making of “any other kind of order” that the Commission was “authorised” to make. If the Commission did not have jurisdiction to determine an unfair dismissal application the Commission was not “authorised” to grant a remedial order (such as that found in s 89 of the Act) by means of s 136(1)(d).

(3) Whilst it was conceded that a "refusal to employ" was an industrial matter and could be the subject of an order by the Commission, on the evidence there was no "refusal to employ" Mrs Benfell. Consequently, there was no power to make an order against the Department requiring it to employ Mrs Benfell.

(4) In the event that the Commission finds there was a “dismissal” and that it was harsh, unreasonable or unjust, it would be impracticable for the Commission to order Mrs Benfell’s reinstatement or re-employment:

(a) There is no former position to which Mrs Benfell could be reinstated or re-employed. The School has a full complement of teachers’ aides (special). The reinstatement/re-employment application begs the question. Reinstatement or re-employment to what, for how long and doing what?

(b) The position held by Mrs Benfell was one that was contingent upon available funding and, most importantly, an assessment of the needs of the students at Tumut Public School.

(c) As the evidence discloses a discretion resides with a school Principal to determine how best to use available funding to meet the needs of students. Understandably, the paramount consideration for a Principal in determining how best to use available funding is the question of the needs of the students. This can and does involve the making of professional judgments as to which person is best suited to be a teachers’ aide for a student or students. It is not and cannot simply be a matter of dividing teachers’ aide (special) hours up and distributing them amongst a pool of teachers’ aides (special) or reducing the hours of teachers’ aides (special) so as to provide hours for Mrs Benfell.

(d) To order the reinstatement or re-employment of Mrs Benfell would have the practical result that funding that is intended to meet the best interests of students would need to be allocated to the employment of Mrs Benfell in circumstances where the engagement of a further temporary teachers’ aide (special) is not warranted.

Whether Mrs Benfell was dismissed

35 As it has been explained, the Department contended that Mrs Benfell was engaged on a "series of temporary, fixed term contracts that expired by effluxion of time and upon their own terms" and, therefore, there had been no dismissal by the Department. The question arises as to whether this series of fixed term contracts existed.

36 The documents said to evidence the fixed term contracts were the Appointment/Variation Forms completed by Mrs Benfell in 2006. The first of these specified an appointment period of 30 January 2006 until 21 December 2006. Under the words "Employee acknowledgement", Mrs Benfell signed the form and dated it "31/1/06". The second Form signed by Mrs Benfell recorded a reduction of hours for the period 24 March 2006 to 21 December 2006. Mrs Benfell was provided with a further Form dated 24 June 2006, by which the Department varied her hours from 44.20 per fortnight to 45.42 hours per fortnight for the period 31 July 2006 to 21 December 2006. Mrs Benfell signed her acknowledgement. The fourth Form signed by Mrs Benfell in 2006 recorded a significant reduction in her working hours for the period 16 October 2006 to 21 December 2006.

37 There was no discussion with Mrs Benfell regarding the changes to her working hours before she was presented with the relevant Form. In her statement Mrs Benfell said:

In 2006 my hours were changed a number of times without my agreement.

...

The actual change of hours was never discussed with me prior to me being given the revised roster with reduced hours. When the revised roster was handed out we were then requested to sign the appointment variation form to acknowledge the changes.

I didn’t agree with the change in hours but I was not given the option to agree, or disagree. I signed the variation / appointment form because I needed my job. I was not happy with the change in my hours but because I was not permanent I felt I had no choice.

38 In her evidence in chief, Mrs Benfell was asked some questions about the fourth Form she signed:

Q. When you signed this document, did you understand yourself to be voluntarily consenting to a reduction of hours from about 45 down to 23?

A. I understood that the hours had already been decided and that I probably had no choice as to whether - it really didn't matter whether I agreed with them or not. If I wanted any hours, I had to sign the form.

Q. And is it the basis upon which you signed it?

A. That is the basis, yes.

39 In cross examination, Mrs Benfell was asked whether by signing the Appointment/Variation Form she was expressing her consent to the matters set out on the Form:

Q. Your understanding is that by signing the acknowledgment you were expressing your consent or signature to the matters that are set out in the document which is document 8?

A. When I signed the appointment variation forms I was merely acknowledging the changes in my hours.

40 In cross examination, Mrs Reeves was asked about the Department's right to unilaterally change the appointment form:

Q. In each case where Ms Benfell and other teachers' aides special were provided with one of these notification of appointment forms, those forms reflected a decision already made by you in consultation with the school executive, correct?

A. Correct.

Q. You will recall Ms Benfell had been, at the beginning of the 2006 school year, provided with a notification of appointment form which indicated her hours for the whole of the school year would be 50 hours per fortnight?

A. Yes.

Q. Of course, what was stated in that form was not adhered to by the school, correct?

A. Correct.

Q. That is, the school itself made a decision, without consultation with Ms Benfell, to reduce her hours on two occasions below 50, correct?

A. Yes.

...

Q. In any event, you and the school executive proceeded on the basis you had the right during the school year to change the appointment form as you saw fit in accordance with your assessment of the prevailing circumstances?

A. Yes.

Q. Without any prior consultation or agreement of the teacher's aide special involved?

A. Yes.

41 Mrs Reeves was also asked in cross examination what were the consequences if a TAS did not sign the Appointment/Variation Form:

Q. Is that the position; if the teacher's aide special wished to perform work at the school they would need to acknowledge by way of signing the document the hours identified in the notification of appointment form, correct?

A. Correct.

Q. And the consequence of failing to sign the acknowledgement would be --

A. Not get paid.

Q. Not getting paid and not being given the work?

A. Not being paid.

42 In circumstances where there was no discussion between Mrs Benfell and representatives of the Department beforehand, including with regard to changes to working hours; where Mrs Benfell signed the Appointment/Variation Form as an acknowledgement of the Department's decision to change her working hours and not as an indication of consent; where Mrs Benfell either accepted the changed hours or she would not be paid; where Mrs Reeves considered she had a unilateral right to vary Mrs Benfell's working hours and exercised that right; and where it could not be said there was an agreement based on the mutual will of the parties, it could not be concluded that there was any agreement between Mrs Benfell and the Department to the terms of a series of fixed term contracts. The Appointment/Variation Form is not in the nature of a contractual document but rather it is a form to be completed by long-term temporary non-teaching staff for the administrative purpose of recording periods of appointment and hours of work. The Form contains no other information of the type that would normally be included in an employment contract. The Form does refer to attached sheets which are said to contain "Important details regarding your employment..." but the evidence is that Mrs Benfell did not see the attached sheets. It was contended for the Department that Mrs Benfell was obliged to inquire about the attached sheets before signing the acknowledgement. Her evidence, however, was that she had been signing similar forms for years and she did not feel she needed to check for any change in employment arrangements each time she signed a Form.

43 In my opinion, the Appointment/Variation Forms reflect the terms of a series of appointments, not inconsistent with s 21 of the Education (School Administrative Support Staff) Act, and not fixed term contracts. This may be demonstrated by the fact that the first of Mrs Benfell's Appointment/Variation Forms provided for 50 hours per fortnight for the whole of the 2006 school year. If this had constituted a fixed term contract reflecting a mutual agreement as contended for by the Department, it could not have been varied, as it was on three occasions by the Department, without Mrs Benfell's consent. There was no consent required because the evidence is clear that the Department regarded itself as having a unilateral right to vary the appointment and exercised that right consistent with s 21 of the Education (School Administrative Support Staff) Act. The unilateral variations were also consistent with the "Terms of Temporary Employment" document, which reserved the Department's right to change the terms of the appointment of a temporary employee, or terminate the appointment (“dispensing of the services of a temporary employee”), including that the reason or purpose for the employment was no longer necessary, the additional assistance was no longer required, or funding was no longer available.

44 The Department contended there was consent by Mrs Benfell because she signed the Forms by way of "acknowledgement". In the light of Mrs Benfell's evidence that in signing the Forms she was not consenting to the terms of a fixed term contract but rather recognising or "acknowledging" the terms of the appointment already determined by the Department, I accept the applicant's contention there was no consent on Mrs Benfell's part. Counsel for Mrs Benfell referred to the Macquarie Dictionary (4th edition) definition of "acknowledge", which includes "to recognise the existence of a fact of something".

45 In relation to the fourth Form covering the period 16 October 2006 to 21 December 2006, (which presumably the Department relies upon as constituting the particular fixed term contract that expired by effluxion of time thereby bringing Mrs Benfell's employment to a mutually agreed end) it is quite apparent that Mrs Benfell was most upset at the significant reduction in hours. Mrs Benfell initially resisted signing the Form in protest at the reduction. Whilst Mrs Benfell relented and worked according to the hours specified, I do not consider this could be taken as consent to the terms of a fixed term contract. The harsh reality for Mrs Benfell was that she either complied with the appointment or she faced the prospect of the Department dispensing with her services and unemployment.

46 The notion that Mrs Benfell was employed under a series of fixed term contracts is not only inconsistent with the variation of the contracts at will by the Department but it is also inconsistent with the relevant statute, the Education (School Administrative Support Staff) Act, which empowers the Department to dispense with Mrs Benfell's services at any time. Such an inconsistency is impermissible. In Director-General of Education and Others v Suttling [1987] HCA 3; (1987) 162 CLR 427 the headnote discloses that a teacher applied for a temporary position advertised by the Director-General of Education (NSW) and was appointed on secondment for a fixed term at a higher salary than he then received. During the term, the establishment to which he was seconded was closed. No alternative position at an equivalent salary being available, he accepted one at a lower salary and sought to recover from the Director-General the difference between those salaries with interest. In confirming the decision of the New South Wales Court of Appeal, the High Court (Brennan J, Mason ACJ and Deane J concurring, Wilson and Dawson JJ dissenting) held, inter alia:

(1) A period of appointment fixed pursuant to the section could not be abbreviated without cause, and an intention to close a section of the teaching service was not a sufficient cause to ground the exercise of the general power of removal.

(2) Power under the Education Commission Act to abolish positions, and power to remove under s 30 of the Interpretation Act, being general in nature, could not be exercised in derogation of rights of members of the teaching service created pursuant to the power of making particular appointments under s 51 of the Education Commission Act.

(3) Accordingly, the teacher had been wrongfully required to give up his temporary position and its perquisites.

47 On the relationship between a contract of employment and the statutory provision affecting the employment relationship between the Crown and a civil servant, Brennan J at 437 stated:

Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, eg, Gould v Stuart [1896] AC 575 at 577; Carey v The Commonwealth [1921] HCA 54; (1921) 30 CLR 132 at 137; Lucy v The Commonwealth [1923] HCA 32; (1923) 33 CLR 229 at 238, 249, 253. However, the contractual nature of the relationship has not been universally accepted: see, eg, Monckton v The Commonwealth [1920] HCA 3; (1920) 27 CLR 149 at 155, 156; Lucy v The Commonwealth at 244; Geddes v Magrath; Morgan v Geddes [1933] HCA 57; (1933) 50 CLR 520 at 533- 534; The Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245 at 262, 274; and cf Ryder v Foley [1906] HCA 61; (1906) 4 CLR 422 at 440. And sometimes an espousal of one view rather than the other has been avoided: see, eg, Reilly v The King [1934] AC 176 at 180; Kodeeswaran v Attorney-General (Ceylon) [1970] AC 1111 at 1118. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v Commissioner for Railways (NSW) [1951] HCA 50; (1951) 83 CLR 521 at 527 (emphasis added).

48 It is clearly not open for the Department to contend, on the one hand, that Mrs Benfell was engaged under a series of fixed term contracts on terms that were mutually agreed but, on the other hand, maintain it had a unilateral right under the statute to vary the contracts at will, or to determine the contracts at its discretion at any time prior to the expiry of the fixed terms. One is, therefore, drawn irresistibly to the conclusion that there were no fixed term employment contracts in the nature contended for by the Department; that Mrs Benfell was subject to a series of back-to-back appointments, always renewed until the end of 2006. Whether the appointments conformed to s 21(3) of that Act, I do not know because the evidence did not disclose whether or not the Minister's concurrence had been obtained.

49 In support of its contention that Mrs Benfell was dismissed from her employment, counsel for the applicant relied on Smith v Director-General of School Education [1993] NSWIRComm 134; [1993] 31 NSWLR 349. In that case the Full Court of the Industrial Court was concerned with the question of whether the annulment of the appointment on probation of an officer of the Education Teaching Service, and the determination that the officer shall cease to be employed in that service, was a "dismissal" for the purposes of Pt 8 — Unfair Dismissals (s 245 to s 255) of Chapter 3 of the Industrial Relations Act 1991.

50 Section 245 of the 1991 Act provided:

245. (1) This Part applies only to the dismissal or threatened dismissal

of:

(a) an employee for whom any conditions of employment are

fixed by an award or agreement; or

(b) an employee of the Crown; or

(c) any other employee of a class prescribed by the regulations as a class of persons to whom this Part applies.

(2) ...

(3) ...

(4) This part applies to any dismissal, or threat of dismissal, of an

employee that occurs on or after 5 July 1991 (being the date of

commencement of the Industrial Arbitration (Unfair Dismissals)

Amendment Act 1991).

(5) In this Part, a reference to the dismissal, or threatened dismissal,

of an employee includes, in relation to a person employed in the public

sector, a reference:

(a) to the Crown's dispensing with, or proposing to dispense with, the services of the person; and

(b) to the dismissal, or the proposed dismissal, of a person as a consequence of disciplinary proceedings against, or the

commission of an offence by, the person.

The use of the term "dismissal" in s 245 of the 1991 Act is relevantly no different to its use in s 83 of the 1996 Act. As to the meaning of the term, the Full Court said at 365-366:

We apprehend no real issue may be taken with the ordinary meaning of the word "dismissal" as so applied to s 245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s 245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of "dismissal" suggested by Brereton J in Ex parte Wurth as being "the termination of services by the employer without the employee's consent"...

51 At 366 the Full Court referred to the respondent's submission in the following terms:

The real barrier raised here by the respondent was that the probationary nature of the appellant's appointment and its "annulment" under the Teaching Services Act, by its very nature, could not fit within the concept of dismissal. We are of the view that

Mr Hodgkinson's submissions in that respect regard too narrowly the nature of an appointment on probation under the Teaching Services Act and do not give full effect to the meaning of the word "annul". It was suggested by counsel that at the end of the period of probation the appellant's appointment had to be either confirmed or annulled so that an annulment, without more, was not a dismissal but rather an ending of employment by the statutory provision.

52 In response to this assertion, the Full Court determined at 366:

Whilst the nature of probationary employment may well be as Mr

Hodgkinson asserted, that does not mean, in our view, that where such

employment is brought to an end by the deliberate decision of an employer, even in the exercise of a statutory power to annul, it may not otherwise be a dismissal from employment. The key point, it seems to us, in such a situation is that the employer may either end the appointment by annulment or continue it by confirmation. That is the statutory position here under s 48(2) of the Teaching Services Act with subs (3) and subs (4) thereof providing for the officer concerned to cease to be employed. It represents, in our plain view of it, a statutory scheme for a person to be sent away from employment (or removed from office) — a dismissal...

53 The support that the applicant seeks to draw from Smith is that as with the respondent in that case, the Department (through Mrs Reeves) made a "deliberate decision" to bring Mrs Benfell's employment to an end (by not allocating to her any hours in 2007) and in so doing that constituted a dismissal, in the sense that Mrs Benfell was sent away from her employment without her free consent.

54 The circumstances of this case are not entirely on all fours with Smith. That case involved a decision by the employer to annul the appellant's probationary employment under s 48(2) of the Teaching Service Act 1980 and to end the employment under s 48(4). The Full Court, having determined that the term dismissal meant "the termination of services by the employer without the employee's consent", held that an annulment fitted within the concept of dismissal. In the present case, the Department waited until the period of appointment asserted to have been made under s 21 of the Education (School Administrative Support Staff) Act had expired and then advised Mrs Benfell that she was no longer required. But one may properly ask what was the real reason for Mrs Benfell's employment coming to an end? It was not as a consequence of a fixed term contract coming to an end by effluxion of time and, therefore, the employment ended by mutual agreement (see The State of Victoria v The Commonwealth of Australia (1996) 187 CLR 416; 66 IR 392), because there was no fixed term contract. The true cause of the employment ending was that the Department, through Mrs Reeves, decided (for whatever undisclosed reason) at some time prior to the expiry of the appointment period that she no longer wanted Mrs Benfell as a TAS. The Department used the expiry of the appointment period as a convenient occasion to advise Mrs Benfell she was no longer required, but it could not, on any view of the evidence, be concluded that Mrs Benfell's employment terminated because the appointment period expired. That is to say, there was no evidence contradicting Mrs Benfell's evidence to prove that the employment of Mrs Benfell terminated for the reason that the appointment period shown on the fourth Appointment/Variation Form constituted the expiry date of a fixed term contract. In this respect, I note in passing that the Crown Employees (School Administrative and Support Staff, General Assistants in Schools) Standdown Award provides in cl 4 as follows:

When schools are in recess and employees are not required to work they shall be paid half ordinary pay for the period of recess provided that they are continuously employed for the full school term immediately preceding and for the full school term immediately following the recess.

Provided that where an employee takes leave without pay, in accordance with the Crown Employees (School Administrative and Support Staff) Award or Part 6 Division 6 of the Public Sector Employment and Management (General) Regulation 1996, exceeding five continuous days in a school term, the period of the school vacation next following such leave for which payment is made pursuant to this clause shall be reduced proportionately. A period of leave without pay of five continuous days or less shall not lead to a reduction in award entitlement.

4.2 Subclause 4.1 shall not apply in the first four weeks of the summer vacation whether or not the employee is receiving payment for recreation leave pursuant to the Crown Employees (School Administrative and Support Staff) Award or Part 6 Division 8 of the Public Sector Employment and Management (General) Regulation 1996, or when the employee is being paid for a public holiday.

55 Presumably, pursuant to cl 4, Mrs Benfell would have received payment for periods of recess during 2006, which tends to suggest an ongoing employment relationship despite the contention that Mrs Benfell was employed under series of fixed term contracts during that year.

56 For her part, Mrs Benfell genuinely expected and understood that she would continue in her employment with the Department in 2007 because that had been the pattern established over the previous decade and nothing had occurred, such as a shortage of funding or lack of students requiring assistance, to alter that pattern.

57 In these circumstances, I consider it is open to conclude that the Department made a deliberate decision to terminate Mrs Benfell's employment in the absence of her consent and that this constituted a dismissal for the purposes of s 83 of the Act.

58 The applicant also relied on Ryde-Eastwood Leagues Club Limited v Taylor [1994] NSWIRComm 112; (1994) 56 IR 385 for the proposition that Mrs Benfell was dismissed from her employment in circumstances where the employment relationship was ongoing despite the completion of an engagement for a fixed period. The Full Bench of the Commission in Ryde-Eastwood considered the question of whether a casual employee employed by the appellant had been dismissed. The employee had been engaged as a casual on a regular basis between June and August 1993. On 30 August 1993 he completed a rostered shift and was advised the appellant was no longer prepared to re-engage him. The reason for not re-engaging the employee was the result of allegations of dishonesty, which were not ultimately substantiated. At 393 the Full Bench referred to Smith, indicating that, prima facie, although the respondent had completed a period of casual engagement according to a roster, it was open to conclude that what occurred to the respondent involved him in being discarded from employment or deprived of employment:

As was submitted in the present case, the respondent had completed a period of casual engagement according to the roster and so could not have been dismissed in any relevant sense because the employment had come to an end, even though there was a deliberate decision by the employer not to offer him employment in the future and work was available; the appellant's decision, without the respondent's concurrence, was made due to alleged misconduct by the respondent. But, applying the reasoning of the Full Court in Smith v. Director-General of School Education, it appears to us, prima facie at least, open to conclude that what occurred to the respondent involved him in being sent away or discarded from employment or even, perhaps, deprived or disappointed of or from some employment advantage. Such a finding, supported by the reasoning in Smith v. Director-General of School Education by applying the ordinary meaning of "dismissal", seems to us logically available.

59 At 399 the Full Bench elaborated on its reasoning and explained the circumstances whereby, despite the completion of a fixed period of casual employment (i.e., a rostered shift), there may be, nevertheless, a continuing common law contract of employment:

In principle, and using the technical terminology of contract, an enforceable contract may readily be drawn, namely - in consideration of a payment by X to Y, in accordance with the relevant award or enterprise agreement for work actually performed, X agrees to employ Y as a casual employee on work as mutually agreed as and when it arises from time-to-time pursuant to a weekly roster published by X at least seven days in advance of such work and Y agrees to make himself available to perform such work subject to the release of Y allowed by X for illness, holidays and other reasonable cause. Such a contract, in our opinion, would represent an appropriate common law contract of employment to give effect to an on-going or continuing enforceable contract of casual employment. It would not conflict with nor be contrary to the Award here. We think that if the employer to such contract, X, declined during the course of its operation to offer further work to the employee, Y, then there would be a dismissal from employment of Y in a relevant sense within the meaning of Pt.8 of Ch.3 of the Act. The Commission's jurisdiction would therefore be attracted and, if the dismissal were found to be harsh, unreasonable or unjust, the remedies of reinstatement, re-employment or compensation would be available. The only remaining question then is whether the facts of this case enable the conclusion that such a contract existed between the appellant and the respondent.

60 At 401-402 the Full Bench concluded that the respondent belonged to that class of casual employment where there was a continuing relationship:

It is apparent that two classes of employee colloquially described as 'casual' can readily be identified in the organisation of industrial relationships. The first class refers to those employees who are truly casual in the sense that there is no continuing relationship between the employer and the employee. The second class is where there is a continuing relationship which amounts to an on-going or continuing contract of employment; it is this second class of contract which, for the reasons set out earlier by us, is of such a nature as to attract the Commission's jurisdiction under Pt 8 of Ch 3 of the Act. Whilst the cross-over point between the above described classes may be difficult to ascertain, it being a matter of fact in each case, we are confidently of the view that the relationship particular to this case fell clearly within the class of an on-going contractual relationship so as to be within the Commission's remedial powers under the Act.

The Full Bench held that the appeal by the Club failed.

61 Thus, Ryde-Eastwood is authority for the proposition that the termination of employment of casuals subject to a continuing relationship that amounts to an on-going or continuing contract of employment will constitute a dismissal capable of attracting the Commission’s unfair dismissal jurisdiction. As the applicant submitted, the same principle has been applied to casuals employed under statute for single defined periods. In New South Wales Department of School Education v Andrews (1995) 60 IR 126 Bauer J stated at 133:

For the purposes of the Industrial Relations Act I can see no reason why the employment of casual teachers by statute for single defined periods is different in concept to casual employment which at common law is also for single defined periods. Further, it seems to me that the scheme set out in the Teaching Service Act and the elaborate regulations and guidelines which have the force of legislative provisions to which Mr Benson properly took the Court, far from making the point that the casuals in the Education Teaching Service were true casuals, demonstrated the opposite proposition as was explained in the Ryde-Eastwood Case.

62 Counsel for the applicant submitted that the reasoning in Ryde-Eastwood may be applied to temporary appointments under the Education (School Administrative Support Staff) Act (noting that this Act does not provide in terms for casual employment) where the facts demonstrate the existence of an ongoing employment relationship. In the present case, as it was submitted by Mr Hatcher:

Ms Benfell was, by virtue of the decision of the Department not to assign her any work in 2007, deprived of the advantage or benefit she had enjoyed of long-term continuous employment which she reasonably expected to continue.

63 Mr Ginters for the Department contended that Ryde-Eastwood had to be viewed against the particular factual context in which it was decided and was distinguishable. That is, in Ryde-Eastwood there was a continuing contract of service and a reasonable mutual expectation of continuity of employment. That was not the case in the present matter, it was submitted.

64 Whilst Mr Ginters was correct in observing that in the present case it was not contended by the applicant that there was a continuing common law contract of employment, I am unable to see why I should not follow Andrews. In Andrews, relying on the reasoning in Ryde-Eastwood, Bauer J found that the withdrawal of a casual teaching approval from a casual teacher who had been engaged by the appellant from 1985 to 1994, amounted to a dismissal. Here, Mrs Benfell worked continuously over a period of nearly 10 years under a series of appointments. Her employment was terminated by advice from the Department that she was no longer required.

65 As to the question of expectation, in Ryde-Eastwood the Full Bench cited with approval the decision of the Industrial Relations Commission of Victoria in Full Session in Licensed Clubs Association of Victoria v Higgins (1988) 4 VIR 43. In that case the Full Session identified a number of tests for determining whether service has been given under a continuing contract or series of contracts. Two of those tests were "Whether there was reasonable mutual expectation of continuity of employment" and "Whether the worker reasonably expected that work would be available".

66 The Full Bench in Ryde-Eastwood found Higgins to be "compelling" because of the similarity of facts (see 398). But the tests posited in Higgins were not adopted in Ryde-Eastwood. What is apparent in Ryde-Eastwood is that the Full Bench placed particular emphasis on "the respondent's continuing expectation... that he would participate in the casual work as it became available..." (see 400). That test, the employee's continuing expectation, is now reflected in cl 6(1)(d) of the Industrial Relations (General) Regulation 2001, which provides:

(1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act:

...

(d) employees engaged on a casual basis for a short period except employees who:

(i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and

(ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer.

67 It was contended that the Department gave no guarantee and had no expectation of continuing employment for Mrs Benfell after the expiry of the last appointment period in 2006. Subject to what I say shortly, it does not seem to me that a guarantee or an expectation or otherwise on the part of the Department as to whether or not Mrs Benfell's employment would continue in 2007 is, of itself, definitive of whether or not there was an ongoing employment relationship. It seems to me that one has to consider all of the relevant circumstances. In this respect, I note the following:

· Mrs Benfell worked continuously at the School as a TAS for 10 years.

· Given the pattern of her engagement, Mrs Benfell was confident that her employment would continue from year to year. Each year she reported for work on the first day of term and throughout the year performed the work of a TAS. At the end of the 2006 school year Mrs Benfell had every expectation that, as in past years, she would continue to be employed in 2007.

· The practice had been that Mrs Benfell continued to be employed while funding was available, while there were special students needing support, while teachers' aides were required and while she continued to competently perform her duties. None of these factors altered in 2006 or 2007 such as to negative the 10-year-old practice.

· Mrs Benfell had not seen the "Terms of Employment" document.

· There was no evidence of any agreement between Mrs Benfell and the Department that her employment contract would terminate coincident with the expiry date of her appointment in the last Term of 2006.

· The Appointment/Variation Forms, especially in the absence of the "Terms of Employment" document, and which were placed in Mrs Benfell's "pigeonhole" for her to sign did not constitute contracts of employment. As Mrs Benfell stated in her evidence, "we would come in, starting at 10 past 9, check your thing [Form], sign it, hand it back in. There were years and years of that. There was an element of trust. You didn't feel you needed to check for a change every time you were given a temporary variation form". Marshall J in D’Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 at 26 described temporary appointment forms in that case as “mere administrative conveniences” that did not outweigh "strong countervailing factors indicating a continuous employment relationship". "Administrative convenience" is an apt description for the Appointment/Variation Forms in this case.

68 As for the Department's proposition that it had no expectation that the employment of Mrs Benfell would continue past the end of the last appointment period in 2006, that proposition was based on the Department's view that the Appointment/Variation Forms constituted a series of fixed term contracts between the parties, which expired by effluxion of time and upon their own terms and on the statement in the "Terms of Employment" document that:

There is no guarantee or expectation of any further or on going temporary employment continuing beyond the end date as specified in the attached Appointment/Variation Form for Long Term Temporary Non Teaching Staff in Schools.

69 However, it seems to me the Department's actions spoke louder than its words. For all but the last year of the 10 years Mrs Benfell worked for the Department, she was advised by the School Principal towards the end of the last term of each year what funding was available for the next year. Mrs Benfell said in her evidence that due to a steady flow of special student funding and through consultation with the Principal, there was an expectation and understanding that hours would be ongoing whilst ever funding continued.
70 It may be inferred, subject to the question of funding, that between 1997 and 2005 both the Principal and Mrs Benfell had an expectation, indeed, an intention that the relationship with the Department whereby Mrs Benfell performed the work of a TAS at the school would continue into the following year. Why the relationship did not continue after the 2006 school year was left largely unexplained by the Department, except to say that the asserted fixed term contract had come to an end and a decision was made in the best interests of the students that meant Mrs Benfell was not required in 2007. What the basis of the decision was that was made in the best interests of the students, thereby rendering Mrs Benfell redundant, was not advised to the Commission. It did not involve a shortage or re-allocation of funding, it did not involve Mrs Benfell's competence, conduct or work performance and it did not involve a lack of students needing special support at the School.

71 As for an expectation on the part of Mrs Reeves about the continuation of the arrangement with Mrs Benfell that had subsisted since 1997, it is my view of the evidence that Mrs Reeves, in consultation with the School Executive, made a decision prior to the end of Term 4 that she did not want Mrs Benfell as a TAS in 2007 (I note the termination letter to Mrs Benfell was dated 20 December 2006). The Commission is not privy to the reason for that decision because Mrs Reeves declined to elaborate, but it appears it may have been related to alleged confidential information given to Mrs Reeves by a parent but which Mrs Reeves chose to keep confidential. It may also have been related to a view formed by Mrs Reeves - on what basis was not adequately explained - that Mrs Benfell was not competent in relation to some aspect of technology-assisted learning. Neither of these matters was raised with Mrs Benfell nor were they put forward to the Commission as the reason for dispensing with Mrs Benfell's services.

72 The inference is available that if Mrs Reeves had not decided for her own reasons that she did not want Mrs Benfell as a TAS in 2007, the employment relationship that had subsisted over the previous years would have continued, as it did with all other TAS's employed in the 2006 school year, and that would have been Mrs Reeves' expectation. In those circumstances, there would have been no reliance by Mrs Reeves on the proposition that, as Mrs Benfell's asserted fixed term contract had expired on 21 December 2006, the employment had come to an end and, therefore, no obligation on the Department to offer Mrs Benfell a new period of employment in 2007 nor, for that matter, any obligation to explain to Mrs Benfell the reasons why the arrangement was not continued in 2007.

73 Thus, the conclusion is open that, but for Mrs Reeves deciding for an undisclosed reason that she no longer wanted Mrs Benfell as a TAS at the School, the Department's expectation would have been that Mrs Benfell would, subject only to funding considerations, continue to work in accordance with the arrangement that had applied since 1997.

74 Even if the expectation of an employer is a requisite element in proving an ongoing employment relationship such as that found to have existed in Ryde-Eastwood, that element existed here in the same way as it did in Ryde-Eastwood.

75 A feature of the general law of contract, and which is applicable in relation to contracts of employment, is that the intention of the parties is determined objectively. In the context of considering Ryde-Eastwood I have considered what the expectations of the parties were. It seems to me that if both parties expected the employment relationship to continue, subject to funding, then it follows that was their intention. In my opinion, all of the matters I have referred to in [67] and following support a finding that, considered objectively, it was the parties' intention that there would be an ongoing employment relationship between Mrs Benfell and the Department that did not terminate at the completion of each appointment period.

76 I referred earlier to the decision of Marshall J in D'Lima. There his Honour identified the existence of an ongoing employment relationship notwithstanding the existence of a series of temporary appointment forms, which were characterised by his Honour as “mere administrative conveniences”. Marshall J held as follows:

I likewise reject the submission of Mr Hooker that the dismissal of Ms D'Lima was not a termination of employment at the initiative of the employer. The fact of the matter was that Ms D'Lima was continuously employed from 18 June 1993 to 11 December 1994 on which latter date her employment was terminated by the hospital. The practice of signing of further contracts for alleged periods of temporary employment appears to have been one of mere administrative convenience and cannot compel the Court to ignore the weight of strong countervailing factors indicating a continuous employment relationship. Mr Hooker described the relationship as "relatively" continuous. I find no basis for the use of the adjective "relatively" in that context.

77 Mr Hatcher, for the applicant, relied on D'Lima for the proposition that notwithstanding the existence of one or more fixed term appointments/engagements, the facts of a particular case may demonstrate the existence of an ongoing employment relationship brought to an end by a unilateral act of the employer. Mr Ginters, for the Department, contended that in light of the decision of the Full Bench of the Australian Industrial Relations Commission in Department of Justice v Lunn (2006) 158 IR 410, D'Lima had to be "treated with caution". Moreover, that the Commission should follow Lunn in the present proceedings.

78 Lunn was an appeal from a single Commissioner. In Lunn the respondent was employed as an articled clerk and later as a law officer under a series of contracts, the last of which covered the period 16 January 2005 until 15 April 2005 (the 'Final Contract'). In a meeting on 24 March 2005 the respondent was informed that she would not be offered a new contract. She was told that she would be paid all of her entitlements to 15 April 2005 but that she was not required (or obliged) to attend for work. The respondent brought an action for relief. A Commissioner dismissed a jurisdictional objection to the action brought by the appellant on the ground that there had been no termination of employment "at the initiative of the employer" as required by s 170CE of the Workplace Relations Act 1996 (Cth) as it then was. The Commissioner found that the employment of the respondent was terminated on 24 March 2005 and did not terminate due to the expiry of her contract at a later date on 15 April 2005. The appellant appealed.

79 It was held, inter alia, that the final contract did not terminate upon the employer informing the employee that the final contract would not be renewed nor, given the absence of a common law obligation to provide work, did it terminate upon the employer relieving the employee of the obligation to perform work. The final contract terminated through the effluxion of time and, accordingly, there was no termination of employment "at the initiative of the employer" within the meaning of s 170CE.

80 It may be seen from this brief description that in Lunn there was, in fact, a contract - described in the Full Bench's decision as an "outer limit" contract - signed by the respondent, specifying a period commencing on 16 January 2005 and ending on 15 April 2005 unless terminated sooner. The Full Bench noted at [10] that when an "outer limit" contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer. Thus, the critical issue identified was whether what occurred on 24 March 2005 involved a termination at the initiative of the employer. The Full Bench decided it did not. Consequently, it was held that the contract terminated by mutual agreement and not at the instigation of the employer: see Victoria v Commonwealth at 519-520.

81 Another issue in Lunn, and the one that has attracted the attention of the Department, concerned the appeal from the Commissioner's finding at first instance that the series of contracts that preceded the Final Contract was "a 'sham' arrangement". The Commissioner, nevertheless, proceeded on the basis that the Final Contract was operative as between the parties. On the appeal, counsel for the respondent contended that the Commissioner erred in proceeding in that way and that the Commissioner should have found that the Final Contract was also part of the same 'sham' arrangement such that the true contract between Ms Lunn and the Department as at 24 March 2005 was an ongoing contract of employment and not the "outer limit" Final Contract. Reliance was placed on D'Lima. It was in this context that the Full Bench referred to D'Lima at [38]:

The Department correctly noted in its written submissions that in D'Lima Marshall J did not purport to apply some special rule to contracts of employment whereby written agreements not amounting to a sham or a pretence not intended to create legal relations (and not coming within one of the other established categories of exception) can be ignored. The decision in D'Lima might be explained on the basis that it was one of those rare cases where the written "contracts" were a sham or pretence in accordance with conventional principles, however his Honour did not use the term "sham" or "pretence" and did not conduct an analysis of the sort required by Sharrment. Given the subsequent decision of the High Court in Equuscorp the decision in D'Lima must now treated with caution. Certainly, the expression "strong countervailing factors" in the judgment of Marshall J in D'Lima should not be elevated to an independent test or treated as some form of jurisdictional talisman that obviates the need to consider whether, in the particular circumstances, a signed contract was objectively intended to create binding legal rights and obligations according to its terms consistent with the well established principles of contract law.

82 The "strong countervailing factors" relied upon by the Commissioner at first instance to find the successive contracts was a sham arrangement was the appellant's practice of engaging all or almost all staff on a series of temporary contracts. At [40] the Full Bench observed:

[40] The mere fact that all or almost all of the Department's staff were engaged on temporary contracts and that there was a strong expectation that contracts would be renewed upon their expiry simply does not permit a conclusion that, determined objectively, there was a common intention (that is, the objective intention of both the Department and the relevant employee) that the contracts were not to create the legal rights and obligations which they give the appearance of creating. We have reservations as to whether the evidence before the Commissioner permitted a finding that the practice of engaging staff on serial temporary contracts "was dictated by some unknown policy considerations and not the operational needs of the Department." However, even assuming this to be so, the existence of such a policy, if anything, supports a conclusion that, viewed objectively, the Department entered "outer limit" contracts with its staff as a deliberate implementation of the policy and thus, at very least, the Department intended the contracts to have legal effect according to their terms. Without more, a "common intention that the... documents [were] not to create the legal rights and obligations which they [gave] the appearance of creating" could not be established.

83 The most significant difference between Lunn and the present case is that in Lunn there were a series of written contracts to which the respondent was undoubtedly a party. In the face of the written contracts, the Full Bench declined to find a continuing contract of employment merely on the basis that all or almost all of the Department's staff were engaged on temporary contracts and that there was a strong expectation that contracts would be renewed upon their expiry. No such written contracts have been found to exist here. The nature of the relationship between Mrs Benfell and the Department is to be inferred, to a large extent, from their objective dealings with each other over a number of years. Mrs Benfell's confident expectation that the employment relationship would be ongoing is only one of a number of factors taken into account. As to the question of objective intentions of both parties, I have already addressed that matter earlier in the judgment. Lunn is distinguishable.

84 When one considers the facts as Marshall J in D'Lima described them, although his Honour did not use the term "sham" or "pretence", his Honour considered the practice of signing of further contracts for alleged periods of temporary employment to be one of "mere administrative convenience". It is apparent his Honour regarded the forms said to constitute contracts as either sham contracts and that the true position was a continuing contract of employment or, alternatively, took a similar view to Ryde-Eastwood that notwithstanding engagements for fixed periods there was an overarching, ongoing common law contract of employment. The "strong countervailing factors" referred to by his Honour included that:

· Sometimes Ms D'Lima was asked to sign the forms that had been backdated. She worked beyond the time of expiry of the alleged short-term contracts in such circumstances and then worked pursuant to an alleged short-term contract that was supposed to have commenced before she signed the relevant documentation (at 25).

· That Ms D'Lima requested and was granted leave without pay in March/April 1994 (at 25).

· That the alleged fixed term contracts were terminable by two weeks' notice (at 25).

85 D'Lima reinforces the principle that the existence and terms of an employment contract may be inferred on an objective basis from the dealings of the parties, what is set out in writing and what is stated orally. It does not seem to me with respect to the Full Bench of the Australian Commission in Lunn that D'Lima is a decision that needs to be regarded with caution.

Dispensing with the services of the employee

86 I turn to the extended definition of dismissal in s 83(5)(b) of the Act, which defines a dismissal to include:

In the case of a public sector employee – dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee.

87 If I am wrong in finding that there was no dismissal in the sense described in Smith, in my view the evidence supports a conclusion that the Department, nevertheless, dispensed with Mrs Benfell's services. Mrs Reeves, I am satisfied, made a deliberate decision that she no longer wanted Mrs Benfell's services, but rather than "dismiss" Mrs Benfell, using that term in the ordinary sense, she waited until the appointment period expired. Believing that Mrs Benfell's employment had terminated by effluxion of time, Mrs Reeves then advised Mrs Benfell she would not be required in 2007.

88 This was done against the background of a long established pattern whereby Mrs Benfell had worked under a series of back-to-back statutory appointments. Further, given there was no supervening factor negativing the long established pattern (except for Mrs Reeves deciding she no longer wanted Mrs Benfell's services), it may be inferred there was a mutual expectation Mrs Benfell would again be employed in 2007. Mrs Benfell was most certainly confident of continuing employment.

89 In these circumstances, I am unable to see why Mrs Reeves' action in advising Mrs Benfell she was not required in 2007 could not be regarded as being within the ordinary meaning of the expression "dispensing with the services of the employee" and, therefore, a dismissal within the meaning of s 83 of the Act. The true reason for Mrs Benfell's departure from employment with the Department was not because a fixed term contract had expired, but rather because the Department decided it no longer wished to employ Mrs Benfell, for whatever reason.

90 Counsel for the Department contended that the expression "dispensing with the services of the employee" in s 83(5)(b) of the Act was to be read as confined to an exercise of the Crown's power to dismiss its servants at pleasure or the annulment of a probationary period of employment. I am unable to find any authority supporting such a contention. As to annulment, it is referred to separately in s 83(5)(b) and, in any event, in Smith the Full Court held that an annulment fell within the ordinary meaning of dismissal.

91 Reference was made to Re Government Cleaning Services (Privatisation) Award (1993) 54 IR 112 at 120. However, a reading of that decision does not disclose a determination to the effect that "dispensing with the services of the employee" is to be read as confined to an exercise of the Crown's power to dismiss its servants at pleasure.

92 The Department also made reference to State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371. In Paige, Spigelman CJ considered the provisions of s 97 of the Teaching Service Act 1980. Section 97 relevantly provides:

97 Crown's right to dismiss not abrogated

(1) ... nothing in this Act shall be construed or held to abrogate or

restrict the right or power of the Crown to dispense with the services of

any person employed in a Teaching Service.

(2) An officer or temporary employee of a Teaching Service shall not

be entitled to any compensation by reason of any reduction in salary or of his or her services being dispensed with, whether under this section or otherwise.

93 At [305] and [312] Spigelman CJ stated:

[305] Section 97(2) makes reference to services being dispensed with "whether under this section or otherwise". The submissions of the appellant focused on the proposition that what had occurred was a "dispensing with". No submission was directed to the particular mechanism used to effect the "dispensing". Nothing turned in this respect in the submissions on the phrase at the end of

s 97(2) "whether under this section or otherwise". These are difficult words to construe in the context. Section 97(1) is not a subsection "under" which services are dispensed with. Section 97(1) preserves the prerogative right of the Crown to "dispense with the services" of, relevantly, a teacher. The dispensing is done "under" the prerogative, rather than "under" the section. Nor is it clear what conduct is intended to be encompassed within the words "or otherwise".

...

[312] The purpose of s 97 is to preserve to the Crown the prerogative that it traditionally enjoyed with respect to servants of the Crown and to provide for the consequences, or rather the lack thereof, of an exercise of such power. The focus is on the acts of the Crown.

94 Mason P and Giles JA agreed with the Chief Justice's reasons explaining why s 97 of the Teaching Service Act did not assist the appellant (see [332] and [388]).

95 It seems to me, given the provisions of s 97 of the Teaching Service Act, that it is unsurprising that the Court of Appeal would find that the purpose of s 97 is to preserve the prerogative right of the Crown to "dispense with the services" of servants of the Crown and s 97(1) is not a subsection "under" which services are dispensed with.

96 I agree with the applicant's submission that Paige is not authority for the proposition that the words "dispense with the services of the employee" wherever they appear in any statute always refers to the Crown prerogative. I see that s 25 of the Education (School Administrative Support Staff) Act preserves the Crown prerogative in the same way as s 97 of the Teaching Service Act. However, as the applicant submitted, s 21(4) of the Education (School Administrative Support Staff) Act is a separate provision that allows, by force of the statute rather than Crown prerogative, for a temporary employee's services to be "dispensed with" at any time. The Department's submission is that "dispensing with the services of the employee" in s 83(5)(b) of the Act is limited to the exercise of the Crown's prerogative to dismiss at pleasure. On that submission a "dispensing with" of a temporary employee under s 21(4) of the Education (School Administrative Support Staff) Act would not fall within the words "dispensing with the services of the employee" in s 83(5)(b) of the Act because it involves an exercise of statutory power rather than Crown prerogative. As the applicant submitted, this cannot be correct.

97 In any event, it is not apparent to me that Mrs Reeves, presumably acting on delegation from the Director-General of the Department, had authority to act on behalf of the Crown. So that if "dispensing with the services of the employee" in s 83(5)(b) of the Act is limited to the exercise of the Crown's prerogative to dismiss at pleasure, there is significant doubt in my mind there was any power to do so under s 21(4).

98 I find in the alternative that the Department dispensed with the services of Mrs Benfell within the meaning of s 83(5)(b) of the Act.

Whether there is jurisdiction to make dispute orders pursuant to s 137(1)(b) of the Act

99 Section 137(1)(b) is in the following terms:

(1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings:

...

(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.

...

100 The Department's contention was that there was no jurisdiction to make a dispute order under s 137(1)(b) of the Act because there had been no dismissal. Given I have found there was a dismissal I consider the Department's jurisdictional objection falls away: see Police Association v NSW Police (No 2) (2005) 139 IR 103. I do not understand the Department to have contested the proposition that the dismissal resulted in an industrial dispute within the meaning of that term as defined in the Act, the dispute being manifested in the dispute notification lodged by the PSA on 6 March 2007.

Whether there is jurisdiction to exercise powers under s 136 of the Act

101 The applicant had contended that not only was there jurisdiction to make an order under s 137(1)(b), but that the Commission could also exercise its power under s 136(1)(a) and (b), which provide:

Arbitration of dispute

(1) The Commission may, in arbitration proceedings, do any one or more of the following:

(a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

...

102 Given that I have determined Mrs Benfell was dismissed, there is ample jurisdiction to deal with the matter, either under the provisions of Ch 2, Pt 6 or Ch 3, Pt 2 of the Act. I, therefore, do not propose to address the question of whether there is power under s 136(1)(b), except to note what was said in Police Association v NSW Police (No 2) at [29]:

I do not decide whether power exists under s 136(1)(b) to make an award to require the respondent to reinstate or re-employ Mr Walpole because of the view I have taken in relation to s 136(1)(d). However, on one view, on the authorities of Wallis and Downey, the Commission would not have the power to make such an award. The consequences of assuming power to do so may be to enable Pt 6 of Ch 2 of the Act to be effectively bypassed and that does not seem to me to be consistent with the legislature's intention. Alternatively, the Commission does have power to make an award but that power must be read as being confined by the provisions of s 90 of the 1996 Act, in the same way as the power is confined when an application for reinstatement is brought directly under s 84: see Johnston v Department of Mineral Resources (1997) 73 IR 267 at 274. As Schmidt J observed in that case:

The limitations imposed by s 90 upon the Commission's power to make reinstatement orders cannot be avoided by reinstatement being pursued by way of dispute notification, rather than by way of a direct reinstatement application.
103 In Police Association v NSW Police (No 2) the Commission held that it had power to make a recommendation or give a direction under s 136(1)(a) in relation to a dismissal or refusal to employ in the context of an industrial dispute: see [42]. I have no reason to doubt the correctness of that finding.

104 Section 136(1)(d) provides:

The Commission may, in arbitration proceedings, do any one or more of the following:

...

(d) make any other kind of order it is authorised to make (including an order made on an interim basis).

105 The power of the Commission to make an order under s 136(1)(d) where there has been a dismissal was considered at length in Police Association v NSW Police (No 2) at [30]-[40]. Where the Commission may make orders under s 89 of the Act, I consider the Commission is authorised to make an order under s 136(1)(d).

Whether there was a refusal to employ Mrs Benfell

106 It was contended by the applicant in the alternative that there was a refusal by the Department to employ Mrs Benfell. The definition of industrial matter in the Act includes the following in s 6(2)(e):

(e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry.

107 The Department conceded a refusal to employ was an industrial matter and could be the subject of an order by the Commission: see Orange City Bowling Club Limited v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch [1979] AR (NSW) 90. However, it was submitted that on the evidence there was no "refusal to employ" Mrs Benfell. Consequently, there was no power to make an order against the Department requiring it to employ Mrs Benfell.

108 Whether there was a refusal to employ Mrs Benfell is a question of fact. There is no doubt that the Department employed Mrs Benfell as a TAS over a long period of time. There is also no doubt that Mrs Benfell wishes to be employed by the Department - something that has been blindingly obvious since at least the dispute notification was filed by the PSA. The Department, through Mrs Reeves, made a decision in Term 4 of 2006 that it no longer wished to employ Mrs Benfell as a TAS. That is, it made a decision that it would not employ Mrs Benfell after her period of appointment expired on 21 December 2006 and has not changed its position in that regard.

109 The indication in Mrs Reeves' letter dated 20 December 2006 that the School would keep Mrs Benfell on as a casual was, in my opinion, a sham. That is demonstrated by the fact that Mrs Benfell was never engaged as a casual despite the fact that on 73 occasions in 2007 casuals were required and persons not previously employed by the School were engaged as casual TAS's. That it failed to engage Mrs Benfell as a casual despite her skill, experience and unblemished record in the role of a TAS over a 10-year period, lends strong credence to the view that the Department has made a decision that it will not employ Mrs Benfell. In my opinion, there was a refusal by the Department to employ Mrs Benfell and I so find.

Whether the dismissal of Mrs Benfell was harsh, unreasonable or unjust

110 The question of whether the termination of Mrs Benfell's employment (or, alternatively or in addition, its refusal to employ her) was harsh, unjust or unreasonable is relatively easy to resolve. Mr Ginters conceded, quite properly, that he would have considerable difficulty convincing the Commission that if it were to find that Mrs Benfell had been dismissed that the dismissal was not harsh.
111 I find the dismissal was harsh and unjust and unreasonable for reasons submitted by the applicant as follows:

(1) There was no valid operational reason for her termination. There was no issue of a funding shortage. Indeed, funding increased from 2006 to 2007. There remained six students to be supported in 2007. One of the seven in 2006 had gone on to high school but the other six remained to be supported in 2007. Apart from Mrs Benfell the TAS's employed in 2006 at the School continued to work hours of employment in 2007 broadly consistent with their experience in 2006. There was no evidence of funding being re-allocated to other measures of support. The evidence did not support there having been a reduction in work such that it required one less TAS. But even if it did there was no explanation as to why Miss Benfell, the TAS with the longest service and an unblemished record was selected as against any other employee or as against a shared reduction of work.

(2) There was no reason related to Ms Benfell's work performance, conduct or skills that could have justified her termination. The evidence was that Mrs Benfell was an experienced TAS with appropriate qualifications for the job. In evidence were a variety of references attesting to the quality of Miss Benfell's work over the course of her employment in the public school system. There was no issue of any substance raised by the Department as to her conduct, her capacity, her skills or her work performance.

(3) No reasons were ever given for Mrs Benfell's termination. No reasons were provided at all by the Department to Miss Benfell as to why the dismissal occurred, nor did the Department provide the Commission with any reason as to why Miss Benfell was denied employment in 2007. Whilst there was some extremely vague reference to a complaint by a parent, "ministerials" and failure to come to terms with technology, no attempt was made to elaborate on these matters and they, therefore, lacked substance and credibility. It was submitted by counsel for Mrs Benfell that:

It's apparent from the way in which Mrs Reeves gave her evidence and her demeanour and the attitude she expressed with respect to Ms Benfell on certain occasions that there is something motivating her. But the simple fact is that it hasn't been revealed and the Commission can't find out what it is. But the fact that it hasn't been revealed and neither Mrs Reeves nor the Department as a whole is not forthcoming about it, it is a very reason by itself why the Commission should conclude that something unfair has occurred and that if something is fit to be disclosed then it would have been disclosed and the Commission is entitled to infer that something inappropriate or improper is being concealed and is not being exposed to the Commission's consideration.

It seems to me, at the very least, that in the absence of any reason that would explain Mrs Benfell's dismissal it is open to conclude that the Department's conduct towards Mrs Benfell was harsh and unjust: see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 277 per De Baun and Cook JJ; Transport Workers Union of Australia, New South Wales Branch v CWS Transport Services Pty Ltd (1990) 39 IR 8 at 11-12.

(4) Ms Benfell was denied procedural fairness. Whilst no reason was proffered to the Commission for Mrs Benfell's dismissal it strains credulity to believe there was no reason at all. Whatever the reason may have been it was not communicated to Mrs Benfell. There was no counselling or consultation as to any perceived shortcomings in Mrs Benfell's performance, skills or competence. A denial of procedural fairness may be enough to demonstrate unfairness: Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 387. In my view, the failure to advise Mrs Benfell of any deficiency in her work performance, conduct or skills, and the failure to provide Mrs Benfell with any reason for her dismissal, amounted to a denial of procedural fairness and was unjust and unreasonable.

(5) In not being allocated any work in 2007, Mrs Benfell was treated in an inequitable and discriminatory fashion as compared to other Teachers' Aides (Special). Mrs Benfell received no work. All of the other TAS's were provided with work in 2007. No explanation was given as to why they were treated differently from Ms Benfell; why they were suitable and Mrs Benfell was not.

(6) Ms Benfell's termination has, by virtue of her age and geographic location, effectively brought an end to her opportunities for future employment. Mrs Benfell gave evidence of the difficulties faced by a 61 year old woman obtaining employment in the Tumut area. She had only managed to obtain four days casual employment in 2007.

112 The applicant had contended that the Commission should draw an inference that Mrs Benfell was the subject of age discrimination by the Department. However, it was conceded there was no direct evidence of such discrimination. That Mrs Benfell was 61 years of age, that there was no reason forthcoming for her dismissal, that she was the oldest of the TAS's at the School and that the department's pay records recorded Mrs Benfell as having retired, certainly raises the spectre of age discrimination. It is possible though that there were reasons other than Mrs Benfell's age that caused the Department to dismiss her. Accordingly, it is not open to find on the balance of probabilities that Mrs Benfell was the subject of age discrimination.

Relief

113 The Department contended that it would be impracticable for the Commission to order Mrs Benfell’s reinstatement or re-employment. The reasons given were that: the position held by Mrs Benfell was one that was contingent upon available funding and an assessment of the needs of the students at the School; it was not a matter of dividing hours up and distributing them amongst a pool of TAS's or reducing their hours so as to provide hours for Mrs Benfell; and, to order the reinstatement or re-employment of Mrs Benfell would have the practical result that funding that was intended to meet the best interests of students would need to be allocated to the employment of Mrs Benfell in circumstances where the engagement of a further TAS was not warranted.

114 The dismissal of Mrs Benfell was harsh and unreasonable and unjust. Even if there was a genuine belief that Mrs Benfell's employment had terminated by effluxion of time, there was a lack of common decency in the manner her services, after 10 years, were dispensed with. The dismissal was effected without any explanation to Mrs Benfell and for reasons that have not been disclosed to the Commission. There was nothing in the evidence that would suggest there was the slightest justification for dispensing with Mrs Benfell's services; no credible challenge was made to her competence, experience, work performance, conduct or skills in the proceedings. The dismissal occurred without proper regard for the consequences for Mrs Benfell of being left without employment after a decade of good service with the Department.

115 The contention by the Department that a TAS had to be selected according to the best interests of the students requiring support implies that Mrs Benfell did not meet that criterion. But there was no evidence at all elicited by the Department that showed that Mrs Benfell could not provide the type of support that was in the best interests of the student.

116 As for the Department's submission regarding funding and its allocation, and the contention that engagement of a further TAS was not warranted, all of these matters - funding, allocation of funds and engagement of TAS's - are matters within the control of the Department. It cannot be seriously suggested that these matters are immutable and some adjustment could not be made to accommodate Mrs Benfell's employment, especially in light of her unfair treatment.

117 I am not satisfied that reinstatement is a practicable remedy in the circumstances. That would mean placing Mrs Benfell in her former position, which was based on a certain number of hours and which the Department says, in any event, is no longer available. I see no barrier, however, to the Department being ordered to re-employ Mrs Benfell in another position as a TAS at the Tumut Public School on terms set out below. Accordingly, pursuant to s 89(2), (3) and (8) of the Act I propose to order that Mrs Benfell be re-employed as a TAS at the School on the following bases, namely, that the Department shall:

(i) employ Mrs Benfell as a Teacher's Aide (Special) at Tumut Public School as soon as reasonably practicable after the date of this decision, on the basis that the available hours of work at the School would be fairly and equitably allocated as between her and other Teacher's Aide (Specials) who regularly worked at the School prior to the end of the 2006 school year; and

(ii) pay Mrs Benfell a sum of money equal to the amount of earnings foregone by her as a result of the failure of the Department of Education and Training to allocate her any hours of work on a fair and equitable basis during the 2007 school year.

I do not propose to make a continuity order under s 89(4) of the Act.

Orders

118 The Commission makes the following orders:

The Director General of the Department of Education and Training shall:

(i) employ Mrs Susan Esther Benfell as a Teacher's Aide (Special) at Tumut Public School as soon as reasonably practicable after the date of this decision, on the basis that the available hours of work at the School would be fairly and equitably allocated as between her and other Teacher's Aide (Specials) who regularly worked at the School prior to the end of the 2006 school year; and

(ii) pay Mrs Benfell a sum of money equal to the amount of earnings foregone by her as a result of the failure of the Department of Education and Training to allocate her any hours of work on a fair and equitable basis during the 2007 school year.

119 If any disagreement occurs in relation to how these orders are to be implemented, the parties, or either of them, may refer the disagreement to the Commission for resolution.

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LAST UPDATED:
16 May 2008