Unfair dismissal claim following unclear employment terms – a lesson for schools

Unfair dismissal claim following unclear employment terms – a lesson for schools

02 November 2021 Authored by: Annie Smeaton & Megan Cheng   |   Topics: Education and training

Unclear employment terms resulted in a casual relief teacher claiming that she was unfairly dismissed because she had ‘no reason to think’ that her position was only for a fixed term.

In Caliskan v Ilim College [2021] FWC 3061, a dispute arose about whether a casual relief teacher was employed on a fixed term or ongoing basis due to over-reliance on automated systems, human errors, and unclear documentation of employment terms.

Ms Caliskan’s terms of employment 

Ms Caliskan started working at Ilim College in 2016 as a casual relief teacher. In term 4 of 2019, Ms Caliskan was offered a fixed term full-time position as a primary teacher for the remainder of the school year to replace a teacher who was on leave.

In 2020, Ms Caliskan attended a meeting with the school principal. Since there were no permanent teaching positions available for 2020, Ms Caliskan was offered a casual relief teacher position for two days per week. She also worked additional irregular days to cover absent teachers.

At the end of 2020, Ms Caliskan was advised that there were no permanent positions available for her in 2021.

Ms Caliskan claimed that she was unfairly dismissed from her employment. Ilim College defended this, arguing that Ms Caliskan was not ‘dismissed’ since her fixed term position ended at the end of the 2020 school year.

Was Ms Caliskan’s position ongoing or for a fixed term?

Ilim College argued that Ms Caliskan’s position was only for a fixed term for the 2020 school year. The principal recalled expressly telling Ms Caliskan that the 2020 position would be for a fixed term since there were no permanent ongoing roles available. Ms Caliskan disputed ever being told that the position was only for a fixed term.

The procedure at Ilim College was to send a template employment conditions document to all ongoing teachers, which was created by an automated HR process. Due to ‘human error’, Ms Caliskan was sent the employment conditions document because her appointment was mistakenly not entered into the system as being for a fixed term. Ms Caliskan argued that this constituted an admission by Ilim College that her employment was ongoing.

The employment conditions document did not specify whether Ms Caliskan was employed on a fixed term or ongoing basis. Ms Caliskan argued that she ‘had no reason to think’ that the 2020 position was only for a fixed term.

Decision

The Commission accepted that the 2020 position was for a fixed term for the following reasons:

  • The calendar invitation for the meeting between Ms Caliskan and the school principal had the subject line ‘Re: Fixed term contract and 2020 forward planning’. This likely intended to convey that the subject matter for discussion was a fixed term contract for 2020.
  • The principal had made a handwritten note in her diary after the meeting that stated, ‘2 days CRT for 2020 and if anything suitable thereafter’. This was consistent with the offer of employment being for a fixed period for 2020.
  • During the meeting, the principal did not say that the position offered was ongoing, and the principal also said that Ilim College did not have any ongoing teaching roles for Ms Caliskan for 2020.

Therefore, the fixed term position ended at the end of the 2020 school year. Ms Caliskan was not dismissed from her employment when she was not offered a role for 2021. Ms Caliskan’s application for an unfair dismissal remedy was dismissed.

Lessons for schools

While Ilim College was successful in this case, the dispute and confusion could have been avoided by specifying in writing whether the position was ongoing or for a fixed term, and by clearly communicating this with Ms Caliskan.

Schools and principals should ensure that documents containing employment terms are carefully checked to avoid errors. The terms of each teacher’s employment should be clearly stipulated and communicated to prevent costly misunderstandings.

For further information on this topic, contact Cooper Grace Ward’s education and training team.

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