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Introduction

You can read the full decision here.

When hiring for temporary or fixed-term employment, always ensure that there is a written contract in place that clearly sets out the parameters of the employment. And don’t forget: if hiring for a fixed term, if the job ends before that date arrives, then your business is still required to pay the “balance” of the employment period.

In hiring for additional or project work, consider casual employment, which (arguably) is not subject to unfair dismissal laws, unless the casual employment has been regular and systematic for more than 12 months.

Background

The Applicant was employed as a Housing Support Worker for a community legal centre in Western Australia.

The Respondent objected to the application for unfair dismissal on the grounds that the Applicant was not dismissed because she was a person employed under a contract of employment for a specified period of time and her employment terminated at the end of that period, or she was employed for a specified task and her employment was terminated on completion of that task.

Facts

  • The Applicant was first employed by the Respondent on a written contract dated 27 February 2017 for a period up until 31 October 2017. That employment was based in Port Hedland. This contract refers to it being a “…fixed term contract…”. The contract expressly states the commencement date is 27 February 2017 and the contract end date is 31 October 2017.
  • The Applicant then moved to Karratha and was again employed under a written contract dated 30 April 2018, for a period up until 30 June 2018. This second contract refers to it being a “…fixed term contract…”. The second contract expressly states the commencement date is 30 April 2018 and the contract end date is 30 June 2018.
  • The Applicant then had her employment aligned with others in the organisation, that is according to the term of the funding (which concluded 30 June 2019). This was a “verbal” arrangement.
  • The Respondent’s evidence relied upon the “common knowledge” that all roles within the organisation were aligned to funding. That is, no funding, no job.
  • The Applicant failed to attend a performance management meeting in early June 2019 to discuss a breach of the organisation’s code of conduct and performance issues due to her late or failure to submit reports for her program and her overall work management. She was subsequently she was stood down with pay until the “end” of her contract being, according to the respondent, 30 June 2019.

Not to worry?

The Applicant’s evidence was that in 2019, the then CEO and acting CEO, told her not to worry about funding and because she was still employed, she thought her position was secure. Other employees were worried about their contracts, but employees were never given a full and clear explanation that their contracts had ended or ceased, or they were no longer working. The Applicant says employees were told to “…keep working and we’ll see what happens”.

The Applicant’s evidence was that when she an email from the CEO she knew there was no contract and she was upset and distraught that the CEO was dismissing her, so she walked out and sought legal advice from there. The Applicant, following her dismissal, requested a copy of her contract of employment, but this was not supplied.

Onus of proof on the employer

Given this decision deals with the Respondent’s jurisdictional objection the onus is on the Respondent to put forward evidence to the Commission in support of its objection.

Case law

In Dale v Hatch Pty Ltd [2015] FWC 4970 (12 October 2015). His Honour Chief Justice Wilcox held that the exclusion does not apply whenever an employer employs a person to work on a particular project, whatever its size and duration. His Honour further held that:

“The words “for a specified task” qualify the words “contract of employment “. The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words “for a specified task” have nothing to do with the employer’s task, or project.”

The Commissioner also noted that:

“His Honour also observed that it is understandable that the provisions relating to unfair dismissal should not be available to people who undertake only a specified task, and that it would be anomalous to restrict the employer’s right to terminate the contract after the task is completed. Conversely, given that many projects continue for many years while employees come and go, it would be equally anomalous to exclude relief from unfair dismissal simply because an employee was engaged in connection with a particular project”.

These principles have been applied in a number of decisions of the Fair Work Commission including:

  • Hewitt v ACTek Custom Engineering Pty Ltd, in which it was emphasised that the phrase “a specified task” covers situations: “where an employee has been employed to perform a project or job which is distinct or identifiable in its own right…”.
  • Derar v Recruitco Pty Ltd, where it was held that an employment offer from a labour hire company restricted to an engagement by a host organisation, defines the specific duration of that particular employment and results in the employee being engaged for a specified task.
  • Henderson v John Holland Pty Ltd where it was held that an employee was employed for a specified task in circumstances where the employee had been engaged on a number of successive projects under a series of separate employment contracts relating to each project, specifying the task of ‘concrete finisher’, that the employee performed on each project.

The Commissioner finding

The commissioner found that that following the end of the second written fixed term contract, on 30 June 2018, the parties did not enter into a third written contract.

The Applicant’s employment relationship was not made up of a sequence of time-limited contracts of employment. She was first employed by the Respondent under a written contract of employment for a specified period of time, from 27 February 2017 until 31 October 2017; and was then not employed again until six months later; with this “second” contract of employment ending 30 June 2018.

There was no written contract dealing with the employment after 30 June 2018.

Concluding

In dismissing the jurisdictional objection, the Commissioner concluded that:

“What little evidence there is as to what occurred before 1 July 2018, does not demonstrate there was an oral contract made between the Applicant and the Respondent which was either a contract of employment for a specified period of time end 30 June 2019 or for the completion of a specified task by 30 June 2019.

“This is not an instance where it could be argued that it was an implied term of the contract between the Applicant and the Respondent that the contract of employment was for a specified period of time or for the completion of a specified task. There is no evidence that such a term was in the circumstances absolutely necessary for the effective operation of the contract, such that it should be taken by the Commission to have been implied.

“Further the Respondent sought to adduce evidence to support their submission that it was custom and practice in the sector for employees to have fixed term contracts which temporally aligned with the period of grant funding; however, the evidence of the Applicant rejected this proposition. The evidence in this case does not demonstrate that there was an industry custom or practice so well-known as to be implied as a term of the contract in this instance, that the contract was for a specified term or for the completion of a specified task”.