To everything there is a season: Ski employee was not dismissed

The Fair Work Commission (FWC) has dismissed an application for unfair dismissal in Bosley v Kosciuszko Thredbo Pty Ltd [2017] FWC 3763, upholding the jurisdictional objections of the employer.

Mr Bosley was employed as a fulltime seasonal employee in the ski patrol team and had worked in this capacity for the past 13 ski seasons. His 2016 contract of employment stated that the period of his seasonal employment would commence on 11 June 2016 and would end on 3 October 2016.

On 3 October 2016, the employer asked Mr Bosley if he could work an extra day on 4 October 2016 to help pack up. Mr Bosley agreed and on the following day, 5 October 2016, he returned to hand in his uniform and keys.

On 21 December 2016, the employer advised Mr Bosley that it had made the decision not to re-employ him for the 2017 and future ski seasons as a result of his behaviour and a poor attitude in the workplace, which he had failed to improve. Mr Bosley lodged an unfair dismissal application arguing that:

  • He was assured he would have continuing employment in 2017;
  • The renewal of his seasonal contract each year was regular and systematic;
  • He had a reasonable expectation that he would return in the 2017 ski season;
  • By working beyond 3 October 2016, his employment contract became ongoing and he was entitled to notice of the termination of his employment; and
  • His employment ceased because of the employer’s decision not to re-employ him.

The employer rejected the Applicant’s claim for unfair dismissal on jurisdictional grounds and submitted that:

  • Mr Bosley was employed on a seasonal basis and his employment ended on the end date provided in the contract;
  • Mr Bosley and other seasonal employees were given notice that the season would end on 3 October 2016 consistent with the contract of employment;
  • Mr Bosley was asked to work an additional day but was not offered and did not request any further shifts; and
  • Mr Bosley was familiar with the employer’s hiring process. This process included that all former employees would be contacted and advised whether they would be re-employed or not. If a former employee was offered re-employment and wished to take up the offer, they were required to complete and return documentation.

From the outset, the employer relied upon jurisdictional objections and sought to have the application dismissed. Simply put, the employer argued that Mr Bosley was not dismissed because he was not employed on the alleged dismissal date.

In our previous blog "You shall not pass!” Jurisdictional objections in unfair dismissal claims we looked at the various jurisdictional objections an employer can raise in response to an unfair dismissal claim to argue that the FWC does not have jurisdiction to hear the matter and / or the employee is not eligible to make a claim.

Relevant to this matter is the requirement for the employee to have been “dismissed”. Subsection 386(2) of the Fair Work Act 2009 (Cth) provides that an employee is not dismissed if they are employed under a contract for the duration of a specified season and the employment has terminated at the end of the season.

After considering the evidence, the FWC held that while Mr Bosley may have had an expectation to be employed for the following season given he worked in the team for 13 seasons, there was no evidence that the employer gave an indication at the end of the season that he would be employed for the next season.

In the FWC’s view, Mr Bosley’s seasonal employment was extended by one day by agreement and it was obvious to Mr Bosley that his employment ended as he handed in his uniform and keys the following day.

For these reasons, the FWC held that Mr Bosley was not dismissed and accordingly was not eligible to make the application. Mr Bosley’s application was dismissed.

Lessons for employers

It is important for employers that employment contracts are clearly drafted where an employee is to be employed for a period of time, for a particular task (e.g. a project) or on a seasonal basis. This should also be supported by processes which ensure that important dates in term contracts are monitored and that contracts for a period of time are not continuously and / or automatically extended. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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