Time goes by so slowly: FWC finds that employee’s employment ended at end of fixed term and was not dismissed

Access to the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth) (FW Act) is on the basis that the employee is “dismissed” from the employment. A jurisdictional objectional can be raised if the employee has not been actually dismissed by the employer.

Subsection 386(2)(a) of the FW Act provides that an employee who was employed for a specified period of time, specified task or for the duration of a specified season and where that employment was terminated because of the end of the period, completion of task or end of season, was not “dismissed”.

In Caliskan v Ilim College [2021] FWC 3061, the Fair Work Commission (FWC) was required to determine whether an employee was dismissed from her employment, or whether the fixed term employment came to an end as a result of the effluxion of time. To do this, it was necessary for the FWC to first determine the nature of the contract that had been agreed between the parties.

The employee had commenced employment with the College as a casual relief teacher (CRT) in 2016. In term 4 of 2019, the employee was offered fixed-term employment as a Primary Teacher for the school term, replacing an employee who went on leave.

The employee argued that during 2020, she was employed on an ongoing basis as follows:

  • In terms 1 and 4, two days per week relieving for absent teachers and casual relief teaching for the other days of the week; and
  • In terms 2 and 3, teaching a regular class for two days per week.

The employee argued that she was dismissed from her employment on 15 December 2020.

The College submitted that the employee was not dismissed as the employment was not terminated on the College’s initiative. In this regard, the College submitted that in 2020:

  • The employee was employed on a fixed term contract which ended at the end of 2020.
  • The employee’s employment had continued in 2021 on a casual basis under a casual employment contract where she would cover absent or unavailable teachers.

The main dispute concerned the meeting which was held in November 2019 (November 2019 meeting) between the employee and the College’s Principal. The College Principal gave evidence that during the meeting, she offered the employee a fixed term two day per week to cover for absent or unavailable teachers position (CRT position) for the 2020 school year. In support, the College relied upon the calendar invitation which was described as “Re: Fixed term contract and 2020 forward planning”.

The employee gave evidence that she was advised that her existing fixed term role was to end at the conclusion of term 4 in 2019 and that she was offered the CRT position for 2020, but denied that she was told that it was for a fixed term for the duration of the 2020 school year. The employee relied upon an email which attached a document outlining her 2020 employment conditions and submitted that it was the College’s usual practice to issue all ongoing teachers an employment conditions document. The employment conditions document did not provide that her employment was on a fixed term basis.

The FWC did not agree that because the employee had continued to be employed under a casual employment contract in 2021 meant that the employee had not been dismissed. The FWC found that this was a new employment relationship and was “no bar to finding that the Applicant was dismissed.”

The FWC then was required to resolve what occurred in the November 2019 meeting. The FWC determined that in the November 2019 meeting, the employee and the College Principal had agreed for the employee to be employed as a fixed term part-time CRT in 2020. The FWC found that overall, the evidence supported the College Principal’s version of events – that is, that the employee was offered and accepted fixed term employment as a CRT for the 2020 school year.

The FWC also found that the fixed term employment ended at the end of 2020 school year. Accordingly, the FWC held that subsection 386(2)(a) of the FW Act applied and the employee was not “dismissed” from her employment.

Lessons for employers

Under a fixed term or project-based agreement, the parties agree that the employment will come to an end when the end date is reached, or for example, the project is completed.  Where an employee is to be engaged for a period of time or specific project only, it is important that the employment contract properly sets out when the employment is to commence and when it is to end. For the avoidance of doubt, fixed term employment should not be extended without any extension also being recorded in writing and a new end date specified.

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.

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