[2022] FWCFB 171

The attached document replaces the document previously issued with the above code on 7 September 2022.

Paragraph [156] has been amended from “Appeal ground 4 is dismissed” to “Appeal grounds 5 and 6 are dismissed.”

Associate to Vice President Catanzariti

Dated 12 September 2022

Fair Work Act 2009
s.604—Appeal of decision

Timothy Andrew Alouani-Roby
v
National Rugby League Limited, Bernard Sutton and Graham Annesley
(C2021/8124)

Appeal against decision [2021] FWC 6282 of Deputy President Cross at Sydney on 12 November 2021 in matter number C2020/9100

Introduction

[1] Mr Timothy Andrew Alouani-Roby (Appellant) applies for permission to appeal and appeals from a Decision of Deputy President Cross 1 (the Decision) issued on 12 November 2021. In the Decision, the Deputy President upheld a jurisdictional objection in response to a general protections application involving dismissal, made under s. 365 of the Fair Work Act 2009 (FW Act) by Mr Alouani-Roby, against the National Rugby League Limited (NRL/First Respondent), Bernard Sutton (Second Respondent) and Graham Annesley (Third Respondent) (collectively Respondents).

[2] The Deputy President determined that the Appellant was engaged under a series of maximum term contracts of employment and that the terms of the final contract of employment, expiring on 30 November 2020, reflected a genuine agreement between the parties that the Appellant’s employment relationship with the First Respondent would come to an end on that date. Accordingly, the Deputy President concluded that the Appellant’s employment ceased through the effluxion of time upon the expiry of the contract, and that he was not dismissed within the meaning of s.386(1)(a) of the FW Act and dismissed the general protections application.

The Decision at First Instance

[3] At [9] – [18] of the Decision, the Deputy President summarised what he described as “uncontroversial facts”, as follows:

[10]  The Applicant was born on 15 August 1989, and is currently 32 years of age. He is a British national, however on 14 July 2020, he became an Australian citizen. He commenced his career as a Rugby League referee in the United Kingdom in 2010. Between 2011 and 2015 inclusive, he refereed in excess of 75 Super League matches. He officiated finals matches, international matches, and in the 2013 Rugby League World Cup as a touch judge.

[11]  Following the 2013 Rugby League World Cup in the United Kingdom, the NRL sponsored the Applicant’s skilled migration to Australia to officiate matches in the NRL. He was the second or third UK referee for whom the NRL offered to sponsor migration to work in Australia at that time.

[12]  In around 2015, the Applicant migrated to Australia with his wife, and following some transitional training, he commenced officiating in the NRL at the end of the 2016 season. The transitional training was relatively lengthy because the rule interpretations in the NRL were significantly different to those governing Rugby League games in the UK or at International Test Match level, including the appointment and involvement of an assist referee, also known as a pocket referee.

[13]  The Applicant’s employment with the NRL was governed by a series of maximum term contracts of employment. Those contracts were:

[14]  The Applicant’s final contract of employment was dated 25 November 2019 (the Contract).

[15]  From 3 June 2019, the Applicant’s employment with the NRL was also covered by the national Rugby League (Match Officials) Agreement 2019 (the Agreement).

[16]  Between the end of the 2016 NRL season and the end of the 2017 NRL season, the Applicant was one of two members of the emerging referees’ squad to be appointed to the assist referee role. He was consistently officiating as a touch judge up until the end of the 2017 NRL season.

[17]  Following the 2017 Rugby League World Cup in Australia, New Zealand and Papua New Guinea, the Applicant took a period of annual leave to Vietnam, where he contracted an illness that affected him badly for many weeks (the Illness). On around January 2018, the Applicant returned to pre-season training while still feeling unwell due to the Illness.

[18]  In around late 2017, the Second Respondent commenced in the position of General Manager of Elite Officiating, taking over from Mr Tony Archer.”

[4] We assume that the table contains a typographical error in the fourth column with respect to the contract said to have operated for the period from 23 March 2017 – 31 November 2019 and that this contract ended on 31 November 2018. We make this assumption based on the statement at [94] of the Deputy President’s decision that four of the five contracts were of 12 months’ duration, and one had a duration of 18 months, and that the contract described in the fourth column of the table as operating from 23 March 2017 – 31 November 2019, is the only contract with a term of more than 12 months and that if the contract ended on 31 November 2018, it could be described as having a duration of 18 months. We also note that the next contract in the series commenced on 1 December 2018, immediately after 21 December 2018 and there is no reason why two contracts would overlap. If this is a typographical error, then it is immaterial, as no issue was taken with the duration of the various contracts the Appellant’s employment was governed by.

[5] At [19] – [44] the Deputy President set out what he described as “contested facts”. These related to the adverse action alleged to have been taken against the Appellant. The Deputy President generally accepted the Appellant’s evidence about these matters. The findings were in relation to the conduct of the First and Second Respondents and in summary were that: reference had been made to the Appellant struggling with the physical demands of his role after his illness; the Appellant’s English accent had been criticised; and that a “yo-yo” fitness test had been ordered, against the advice of the First Respondent’s then Referees’ Performance Co-ordinator, to target the Appellant because of his illness. The Deputy President also accepted that the Appellant was told that in the context of meetings about his performance plan and the offer of a one-year contract, that if the position had not changed by the following year, then it could, or would likely be, the Appellant’s last contract.

[6] At [39] the Deputy President recorded that the Appellant commenced a period of stress leave on 28 July 2020 and that, at [40], on 23 August the Appellant corresponded with the First Respondent’s General Manager of People and Culture, by email stating:

“I was really just following up on what you said about putting something in writing. However, having had time away to reflect and take advice, I do feel that the situation requires a resolution that goes beyond simply waiting for my contract to expire. I have explained why an internal investigation or reinstatement would not currently solve the issues at hand and I think it is reasonable to expect that we might enter into some sort of discussion as to a satisfactory settlement of my grievances given their gravity – bullying and personal victimisation, damage to my mental and physical health, constructive dismissal including breaches of the EBA-mandated performance appraisal process, unsafe workplace, toxic culture of fear and so on. I feel that I’ve been frank, open and professional throughout this process stretching back to last year and I would hope that I’ve laid everything out in a way that allows the organisation to find an appropriate resolution.”

[7] At [41] the Deputy President recorded that on 2 September the Appellant received a calculation of his severance package based on an earlier cessation of employment and on 16 October the Appellant received a letter from the First Respondent regarding the end of his employment contract on 30 November 2020 and proposing severance terms in response to the Appellant’s email of 23 August 2020. The Appellant ceased employment with the First Respondent on 30 November 2020.

[8] At [45] – [46] the Deputy President set out provisions of the National Rugby League (Match Officials) Agreement 2019 (Agreement). Relevantly, the Agreement provides for Match Officials to be engaged as a Full Time Referee or a Casual Match Official. In relation to Full Time Referees the Agreement provides as follows at clause 5.2:

5.2 Full Time Referees

(a) A Full Time Referee is one designated as such by the NRL.

(b) All Full Time Referees will be employed pursuant to a maximum-term Full Time Referee Employment Contract.

(c) Any Full Time Referee Employment Contract must be for a minimum period of 12 calendar months. There is no restriction on the maximum duration of a Full Time Referee Employment Contract.

…

[9] The Agreement also provides that full time referees are to be appointed to a tier, which determines their remuneration. Such appointments are at the absolute discretion of the First Respondent. Further, the Agreement provides for a monthly performance review. The Deputy President then turned to consider the Appellant’s final contract of employment, setting out relevant provisions at [47] as follows:

“2. Commencement and Term

Your employment will be for a maximum term identified in Item 3 of the Schedule (‘the Term) unless terminated earlier in accordance with clause 11.

3. Duties

…

(f) During the Term, the NRL is entitled to appoint you as a match official in any capacity it chooses (including as a video referee or standby official) in any rugby league match.

(g) You have no entitlement to be appointed, nor is the NRL required to appoint you, as a match official in the NRL Competition or any other competition for a fixture in a particular week.

11. Termination

Your employment with the NRL may be terminated at any time during the Term in writing by either you or the NRL providing the notice period specified below:

*In the case of notice to be given by the NRL only, the period of notice specified above is increased by one week if the Match Official is over 45 years old and has completed at least 2 years of continuous service with the NRL at the end of the day the notice is given.

17. Alteration of agreement

This Agreement constitutes the entire agreement between the parties. Any variation must be in writing and executed by all parties.

Item 3: Term

Your employment will be for a maximum term commencing on 1 December 2019 and concluding on 30 November 2020 unless terminated earlier in accordance with this Agreement. You acknowledge and agree that the NRL does not warrant or represent that your employment will continue beyond the Term and, without limiting the capacity to terminate the employment earlier than the completion of the Term, it is intended that the employment relationship will end on the completion of the Term and any decision to offer you further employment is separate and distinct from this Agreement.”

[10] The Deputy President set out s.386 of the FW Act before turning to consider the judgement of the High Court in Workpac Pty Ltd v Rossato & Ors (Workpac v Rossato) 2 and listed the following propositions derived from the reasons of the plurality:

“(a) The character of a legal relationship between parties – including the type of employment relationship between an employer and employee - is ”determined only by reference to the legal rights and obligations which constitute that relationship.” This involves construing the terms of the contract according to their plain and ordinary meaning to determine the nature of the relationship between the parties. The parties’ ”binding contractual promises” are the ”reliable indicators of the true character of the employment relationship” and ”the function of the courts [is] to enforce [such] legal obligations.”

(b) Where the parties have comprehensively committed the terms of the employment relationship to a written contract and have adhered to those terms, the characterisation of the relationship must be determined by reference to the written contract. It is also relevant to have regard to the terms of any enterprise agreement which regulates the employment relationship between the parties in determining the correct characterisation of the relationship. The express terms must be given effect unless contrary to statute.

(c) Nothing in the Act regulating the employment relationship ”inhibits the freedom of the parties to enter into a contract” and “so far as casual employment is concerned, the Act leaves the making of such an arrangement to be agreed between the parties.”  The proper construction of a contract of employment does not involve straining legal language and concepts ”in order to moderate the perceived unfairness resulting from a disparity of bargaining power between the parties so as to adjust their bargain.” Even the doctrines of unconscionability or undue influence do not operate to address any perceived unfairness arising from such disparity.

(d) In determining the correct legal characterisation of the employment relationship, the court’s function in construing the written employment contract is ”not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences” or ”to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgment as to the just settlement of an industrial dispute.”

(e) In determining the character of a legal relationship between parties, it is not relevant to have regard to:

(i) ”unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed the agreement;” or

(ii) the nature of the relationship between the parties based on the ”real substance”, “practical reality” or the ”true nature of the relationship,” because such ”an outcome does not accord with elementary notions of freedom of contract” and ”involve[s] the very kind of obscurantism that has been said to be alien to the judicial function.”

(f) To the extent that unspoken mutual undertakings or shared unenforceable expectations or understandings are capable of potentially giving rise to an implied term or a subsequent variation to the written contract, they cannot contradict or be inconsistent with express terms of the contract.” (citations omitted)

[11] After summarising the submissions of the parties, the Deputy President set out extracts from the majority decision of a Full Bench of the Commission in Saeid Khayam v Navitas English Pty Ltd 3 (Khayam v Navitas) and cases considered by the Full Bench. In his consideration, the Deputy President identified the issue of jurisdiction, in the following terms:

“[91]  The Application alleges various contraventions of the general protections contained in Pt 3-1 of the Act involving dismissal. The Commission has jurisdiction to entertain the Application only if the Applicant has been dismissed (Coles Supply Chain Pty Ltd v Milford 4).

[92]  The Respondents dispute the Applicant’s assertion that his employment terminated on the First Respondent’s initiative. If the Respondents’ contention is correct, it follows that the Applicant does not have standing to bring the Application under s.365 of the Act and the Commission therefore does not have jurisdiction either to deal with the dispute under s.368 of the Act, including conciliating the dispute and issuing a certificate that it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. Absent such a certificate being issued, the Applicant cannot commence an application in the Federal Court of Australia or the Federal Circuit and Family Court of Australia regarding whether the Respondents have contravened the alleged general protections in relation to his dismissal.

[93]  The Respondents submit that the Applicant’s employment was terminated upon the expiry of a maximum term of the Contract, and accordingly as the Applicant has not been dismissed, the Commission lacks jurisdiction to deal with the Application due to the provisions of s.368(2)(a) of the Act.”

[12] It is common ground in the appeal that the reference to “s.368(2)(a)” of the FW Act in [93] of the Deputy President’s decision is erroneous, as there is no section s.368(2)(a) in the FW Act and s.368(2) concerns conferences of the Commission being held in private and is not relevant to any of the matters the Deputy President was determining. However, the parties do not agree as to what section of the FW Act the Deputy President intended to refer to, and the impact of the error. This is a matter to which we will return.

[13] The Deputy President concluded that it was clear the parties had comprehensively committed the terms of the employment relationship to the written form of the contract, and that it was a maximum term contract commencing on 1 December 2019 and concluding on 30 November 2020. The Deputy President also concluded that the terms of the contract were clear and unambiguous, and that the Agreement confirmed that the correct characterisation of the relationship is that of a maximum term contract. In reaching this conclusion, the Deputy President stated that the express terms of the contract must be given effect unless contrary to statute.

[14] The Deputy President went on to consider that the contract represented a genuine agreement between the parties, in the sense that term is used in Khayam v Navitas, that the employment relationship would not continue past 30 November 2020 and found that the unfairness or disparity of bargaining power alleged by the Appellant did not exist and that he understood that one- or two-year contracts would be given by the First Respondent. The Deputy President noted that the Appellant accepted that he signed contracts acknowledging the terms of the offers and his acceptance. The Deputy President also noted that the Appellant accepted that NRL match officials did not have indefinite careers and that those careers must come to an end eventually, because contracts are not renewed. Additionally, the Deputy President noted that the Appellant was involved in the negotiations for the Agreement and voted in favour of its approval after reading the Agreement and understanding its terms and effect and that the Agreement prescribed the use of maximum term contracts. The Deputy President found that there were maximum term contracts covering the entire period of the Appellant’s employment and that the employment relationship was co-extensive with each of the contracts.

[15] The Deputy President rejected the Appellant’s submissions to the effect that the Respondent engaged in a process aimed at ending the employment relationship before the last contract, regardless of its terms, and that the actions of the Appellant were the significant contributing factor resulting in the termination of employment. The Deputy President found this submission to be illogical on the basis that most of the conduct relied on by the Appellant and considered by the Deputy President under the heading “Contested facts”, occurred in the six month period prior to the Appellant receiving and signing the last contract, on 28 November 2019. The Deputy President also found that none of the conduct referred to by the Appellant, could be seen as constituting an act on behalf of the Respondents that brought about the end of the employment relationship.

[16] In relation to the question of whether the Appellant’s contract was vitiated by one of the relevant factors set out in Khayam v Navitas, the Deputy President found that the First Respondent had a legitimate purpose in using maximum term contracts for the engagement of its match officials and that such contracts did not contain objectionable terms as defined in s. 12 of the FW Act. The Deputy President also found that the contracts did not have the substantial purpose of avoiding the First Respondent’s obligations as an employer in relation to the unfair dismissal provisions or under other parts of the FW Act. Further, the Deputy President considered that the Appellant is entitled to make claims other than a general protections application involving dismissal, on the grounds that the Respondents took adverse action against him by altering his position to his prejudice or discriminating between him and other employees, thereby satisfying the objects of the FW Act.

[17] After noting difficulty in understanding the conduct or representations that the Appellant alleged provided a proper legal foundation to prevent the First Respondent from relying upon the terms of the contract, the Deputy President noted the Appellant’s submission to the effect that while major sports use fixed term contracts to engage players and match officials, such contracts cannot be used as a cover to avoid accountability for the unlawful treatment of their employees. In relation to this submission, the Deputy President concluded that even accepting the Appellant’s submissions at their highest, the conduct and failures relied on by the Appellant did not go anywhere near providing a proper foundation for the First Respondent being prevented from relying on the express terms of the contract and went on to dismiss the application.

The appeal

[18] The notice of appeal was filed on 1 December 2021. On 15 December 2021, Directions were issued requiring the filing of outlines of submissions concerning permission to appeal, the merits of the appeal and permission for the parties to be legally represented. The following submissions were received:

•  The Appellant filed Outlines of Submissions on permission for legal representation, permission to appeal and merits of the appeal, dated 6 January 2022 and amended on 8 February 2022.

•  The Respondents filed Outlines of Submissions on permission for legal representation, permission to appeal and merits of the appeal, dated 28 January 2022.

[19] The matter was listed for hearing on 8 February 2022 in respect of both permission to appeal and the merits of the appeal. Both parties sought and were granted permission to be represented by lawyers in the appeal, on the basis that we were satisfied, pursuant to s.596(2) that legal representation would allow the Commission to deal with the appeal more efficiently, taking into account the complexity of the issues raised. We were also satisfied that it would not be unfair to allow permission. The Appellant was represented by Mr M Harmer, of Harmers Workplace Lawyers. The Respondent was represented by Mr Seck of Counsel, instructed by MinterEllison.

[20] Following the hearing, a decision was issued on 8 April 2022 by a Full Bench in NSW Trains v James. 5 On the basis that the decision in NSW Trains v James came to a different conclusion in relation to a matter considered by the Full Bench in Khayam v Navitas, the parties were provided with an opportunity to make further written submissions on the relevance of NSW Trains v James to the issues raised in the present appeal. On 6 May 2022, further written submissions were filed by the Appellant. Submissions in response were filed by the Respondents on 20 May 2022 to which submissions in reply were filed by the Appellant on 27 May 2022.

Permission to appeal

[21] The Appellant submits that it is in the public interest for the Commission to grant permission for the appeal on the basis of errors by the Deputy President in his consideration and application of the principles espoused by the High Court in Workpac v Rossato and that the principles in Workpac v Rossato are not determinative of the operation of s.386(1) of the Act. The Appellant submits that the impact of Workpac v Rossato, on areas of employment law other than the characterisation of the relationship between employer and employee as being casual as distinct from permanent in nature, is an important issue of public interest. The Appellant also contends that the implications arising from the Decision on the integrity of sport and particularly on the national competition conducted by the NRL raise an additional issue of public interest.

[22] Further, the Appellant submits that the correctness of the Decision is attended with sufficient doubt to warrant reconsideration and that substantial injustice will result if permission to appeal is refused. In this regard, the Appellant contends that the Deputy President conflated the concept of the employment relationship with the employment contract, misinterpreted the Full Bench decision in Khayam v Navitas and misconstrued the significance of Workpac v Rossato in respect of the approach to of s.386(1)(a) of the FW Act. In oral submissions at the hearing of the appeal, reference was also made by the Appellant to the erroneous reference to s.368(2)(a) in paragraph [93] of the decision, which was submitted to be a further indication that the Deputy President did not properly apply the test in s.386(1)(a) of the FW Act.

[23] The Respondents contend that permission to appeal should be refused because:

•  The Full Bench in Khayam v Navitas addressed the correct principles regarding the use and operation of maximum term contracts in relation to s.386(1)(a).

•  The Deputy President has adopted an orthodox approach to the application of the principles enunciated in Khayam v Navitas and the decision is not attended by sufficient doubt to warrant reconsideration.

•  The Deputy President’s approach is not disharmonious with other recent decisions of the Commission including Nasr v Mondelez Australia Pty Ltd 6 and Murphy v University of Southern Queensland.7

•  The High Court decision in WorkPac v Rossato reinforces the correctness of the statement of principle in Khayam v Navitas that the parties’ written contractual terms should be given their full force and effect in defining the character of the employment relationship. Once this approach is applied, then it must follow that under the terms of the parties’ written contract of employment, the Appellant’s employment ended by expiry of the maximum term on 30 November 2020 and not at the initiative of the Respondent.

[24] Section 604 of the FW Act provides that a person aggrieved by a decision of the Commission may appeal the decision with the permission of the Commission. By virtue of s. 604(2) without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission Tribunal identified some of the considerations that may attract the public interest as follow:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters ...” 8

[25] Permission to appeal may be granted where there is an arguable case of appealable error, and the decision is attended with sufficient doubt to warrant its reconsideration. In the present case, we are of the view that the appeal raises questions of general importance and significance concerning the proper construction and correct application of s.386(1)(a) of the FW Act, in the context of the interaction between Full Bench decisions in Khayam v Navitas and Sydney Trains v James. The decision is also affected by uncertainty because it refers to s.368(2)(a) of the FW Act, in circumstances where the parties accept that this section had no relevance to the issues in contest and that the references are erroneous. Further uncertainty is created by the fact that the parties do not agree on the section of the FW Act that Deputy President intended to refer to. As a result, the decision is attended with sufficient doubt to warrant reconsideration.

[26] Accordingly, we are satisfied that it is in the public interest to grant permission to appeal, and we do so.

Appeal grounds

[27] The Appellant advanced ten grounds, involving some overlap. The grounds in the notice of appeal did not align with the grounds as set out in the submissions filed by the Appellant and were corrected in an amended submission. The grounds of appeal assert that the Deputy President erred by:

“1. Failing to correctly apply the statutory test set out at section 386(1)(a) of the FW Act in determining whether there had been a dismissal within the meaning of the FW Act.

2. Mis-stating the statutory test by asserting that the express terms of the contract of employment must be given effect unless contrary to statute (at [99]).

3. Conflating the concepts of the employment relationship (which in this case extended for five years across several successive contract periods) with the concept of the employment contract (at [99]).

4. Finding that a single employment relationship can be “co-extensive” with several independent employment contracts. The finding that the employment contract, at Item 3 of the Schedule, determined the extent of the employment relationship (rather than the extent of the instant iteration of the contract fixing terms for the relationship for a particular period) is inconsistent with the findings of the High Court of Australia in Concut Pty Ltd v Worrell. The Applicant’s employment relationship with the First Respondent was not co-extensive with his final contract, but with the entire series of contracts by which the First Respondent periodically determined the terms of his engagement (at paragraph 103).

5. Creating a dichotomy between pre and post contract conduct and failing to take into account as a relevant consideration the pre-contract conduct of the Respondents that occurred prior to 28 November 2019 (at paragraph 105).

6. Failing to properly consider the post-contract conduct of the Respondents at all or as part of the continuum of conduct that constituted termination on the employer’s initiative for purposes of section 386(1)(a) of the FW Act (at paragraphs 106 – 108).

7. Failing to properly consider the contract as an attempt to evade the unfair dismissal and General Protection provisions of the FW Act (at paragraphs 112 – 116) and finding that the First Respondent’s use of maximum term contracts is “intended to ensure that it has the flexibility to engage the best available match officials to be part of its elite squad each session”. The use of arbitrarily determined fixed term intervals for considering the continuation of the employment relationship is a strategy with a “substantial purpose . . . to avoid the employer’s obligations” under Part 3-2 of the FW Act, within the meaning of section 386(3).

8. Failing to properly state in the decision, and failing to take into account, the relevant considerations put forward by the Applicant for the purposes of providing a proper legal foundation to prevent the Respondents from relying upon the terms of the contract as the means by which the employment relationship was terminated (at paragraphs 117 – 119).

9. Misconstruing the impact of the decision of the High Court of Australia in Workpac Pty Ltd v Rossato on the statutory test at section 386(1)(a) of the FW Act in context of the decision of the Full Bench of the Commission in Khayam v Navitas English Pty Ltd and other relevant authorities concerning the operation of maximum term contracts and the meaning of dismissal under the FW Act.

10. Mischaracterising the role of the Commission (at paragraph 117). The Commission is a tribunal, empowered under the FW Act to perform its functions according to the objects of the FW Act. It is not constrained in the performance of its role by contracts made by employers. The statutory protections for employees against adverse action taken on prohibited grounds survive attempts by employers to circumvent those protections by contract provisions. The High Court specifically distinguished its own role in Workpac v Rossato as the role of a court, and not a tribunal.”

Appellant’s submissions

[28] In relation to grounds 1 and 2, the Appellant submits that the threshold jurisdictional issue that the Deputy President was required to determine, was whether the Appellant had been dismissed as that term is defined in s.386(1)(a) of the FW Act. In ground 1 it is contended that the Deputy President erred by failing to correctly apply the statutory test and in ground 2 that the test was mis-stated, by the Deputy President asserting that the express terms of a contract of employment must be given effect unless contrary to statute. The Appellant submits that while the existence and construction of the contract or contracts of employment between the parties are not irrelevant to the determination of the central issue, neither should they have been determinative.

[29] The Appellant submits that there is currently no authority or legislative basis to support the approach to resolving the question of whether an employment was “terminated on the employer’s initiative” in s.386(1) merely by reference to the existence of a valid maximum term contract or by limiting the inquiry to the terms of such a contract. The Full Bench decision in Khayam v Navitas provides the correct approach to the construction of s.386(1)(a) in contrast with the earlier Full Bench decision in Department of Justice v Lunn 9 (Lunn). The Full Bench in Khayam v Navitas which held that the correct interpretation of s.386(1) of the FW Act requires a consideration of the following propositions:

a) A termination at the initiative of the employer does not refer to the termination of the contract of employment. 10

b) A termination of employment at the initiative of the employer occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. 11

c) It is possible that when a maximum term or outer limit contract comes to an end by effluxion of time, there may be no action on the part of the employer which resulted directly or consequently in the termination of the employment relationship. However, this cannot be assumed to be the case merely by examining the terms of the contract. 12

d) Since a series of outer limit contracts, or even a single outer limit contract, can co-exist with an employment relationship which is ongoing, it is necessary for the purposes of determining whether the employment contract and the employment relationship are coterminous, to have regard to circumstances outside the written terms of the contract. 13

e) In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequently, in the termination of the employment. This will necessarily involve a focus on the conduct of the employer. It will not be sufficient to assert the terms of the contract. 14

[30] With respect to the propositions in (b) and (e), the Appellant submits that, rather than affording primacy to the written contract of employment, the Full Bench in Khayam v Navitas adopted the decision in Mohazab v Dick Smith Electronics Pty Ltd (No2) 15 (Mohazab) as the starting point in the construction and application of s.386(1)(a). The Appellant therefore submits that in circumstances where the Appellant did not leave his employment voluntarily, it becomes necessary to interrogate whether the acts on the part of the employer have the effect of bringing about or contributing principally to the termination of the employment in a direct or consequential manner.

[31] The acts of the Respondents said by the Appellant to have such an effect include: not allowing the Appellant to fully recover from his illness; victimising the Appellant; corrupting the performance data of the Appellant to set him up for removal; scapegoating the Appellant in relation to any error which occurred in games in which he participated; placing inappropriate performance demands on the Appellant in an attempt to force him to resign; the Second Respondent informing the Appellant in October 2019 that the First Respondent would be deciding whether to continue the employment relationship depending on its assessment of his performance in October 2020, and then prematurely telling the Appellant in June 2020 that his contract would not be renewed. These acts were said to have caused the Appellant’s health to break down to such an extent that the Appellant was unable to continue to work following a meeting on 9 June 2020.

[32] The Appellant further contends that even if some of the Respondents’ conduct occurred prior to the signing of the last maximum term contract, it is irrelevant to distinguish between conduct that occurred before, and conduct that occurred after, the parties entering the last contract, because s.386(1)(a) is concerned with the termination of the employment relationship rather than any one of a series of employment contracts. According to the Appellant, the First Respondent’s conduct must first be assessed in accordance with principles in Mohazab and only after such an assessment is carried out, can attention be directed to the consideration of the presence or absence of a genuine agreement about the ending of the employment relationship. The concept of genuine agreement that the employment relationship will not continue after a specified date, contemplates more than the assertion of words in a written contract. In the present case, the Deputy President failed to appreciate the significance of the conduct of the employer and erroneously gave primacy to the terms of the maximum term contract. The vitiating factors referred to by the Full Bench in Khayam v Navitas is not a reference to a closed or exhaustive list and in some cases it will be necessary to go further than examining the terms of the contract. 16 According to the Appellant, the approach taken by the Deputy President is to the effect that a form of words in the employment contract is prima facie proof of a genuine agreement which can only be rebutted in a limited set of circumstances and resurrects the propositions from Lunn which were rejected in Khayam v Navitas.

[33] The Appellant draws a distinction between employment contracts and employment relationships and submits that the Deputy President conflated the two concepts and erred in the conclusion that the Appellant’s employment contract and employment relationship were “coterminous”. The Appellant submits that it follows from the distinction between the contract of employment and the employment relationship, that a wider range of circumstances, apart from the written contract, are relevant to determining the way the contract ended. The Deputy President erred by limiting the inquiry to merely the terms of the final contract of employment rather than inquiring into a wider range of circumstances. It is contended that the correct characterisation of the Appellant’s employment relationship is one that endured for 5 years across several consecutive contractual periods. The last of the series of maximum term contract was only the final instrument imposed by the NRL. On that basis, the Appellant submits that the Deputy President misunderstood the task before him in the construction of s.386(1)(a) of the Act.

[34] In oral submissions at the hearing, the Appellant raised an additional error said to be relevant to ground 1, at [93] of the decision where the Deputy President referred to “s. 368(2)(a)” of the FW Act. Paragraph [93] of the decision is as follows:

“[93] The Respondents submit that the Applicant’s employment was terminated upon the expiry of a maximum term of the Contract, and accordingly as the Applicant has not been dismissed, the Commission lacks jurisdiction to deal with the Application due to the provisions of s.368(2)(a) of the Act.” (emphasis added)

[35] The Appellant points out that there is no section numbered “s.368(2)(a)” in the FW Act and posits that the Deputy President intended to refer to s.386(2)(a), which provides that a person has not been dismissed if the person is employed under a contract of employment for a specified period of time, a specified task or a season, if the employment has terminated at the end of the period, on completion of the task or at the end of the season. The Appellant contends that this is an error on the basis that in the proceedings before the Deputy President, it was not disputed between the parties that the contract and the enterprise agreement carry a right of termination provision that would clearly take the whole case outside the exception in s. 386(2)(a). The Appellant’s entire case was put under s.386(1)(a) and that was the case met by the Respondents. This error is asserted to be the reason why there has been a fundamental miscarriage and the test under s.386(1)(a) was not properly applied. This was also said to be relevant to ground 2 and to explain the Deputy President’s misapplication of the High Court decision in Workpac Pty Ltd v Rossato. 17 In this regard, the Appellant submits that consideration of that decision would have been appropriate if the Deputy President were dealing with a case under s.386(2)(a).

[36] Grounds 3 and 4 concern the way the Deputy President dealt with the concepts of the employment relationship and the employment contract. In relation to ground 3 the Appellant submits that is incorrect to say, as the Deputy President does at paragraph [99] of the decision that: “the correct characterisation of the relationship is that of a maximum term contract”. Such a statement inappropriately conflates the concept of the employment relationship, which in the Appellant’s case extended for five years across several successive contract periods, with the concept of the employment contract. The correct characterisation of the relationship is an employment relationship enduring for five years. The maximum term contract was the final instrument imposed by the Respondent.

[37] In relation to appeal ground 4, the Appellant contends that the Deputy President was in error in reaching a conclusion that the employment contract and the employment relationship were coterminous, by examining only the employment contract. Further, the Appellant contends that finding that the contract dated 25 November 2019 determined the extent of the employment relationship (rather than the extent of the instant iteration of the contract fixing terms for a particular period) is inconsistent with the findings of the High Court in Concut Pty Ltd v Worrell. 18

[38] Grounds 5 and 6 concern the relevance of conduct occurring prior to the Appellant signing the final contract. The Appellant contends that the Deputy President created a dichotomy between pre and post-contract conduct, and failed to take into account as a relevant consideration the pre-contract conduct of the Respondents that occurred prior to 28 November 2019 (at [105] of the decision) and to properly consider the post-contract conduct of the Respondents at all, or as part of the continuum of conduct that constituted termination on the employer’s initiative for the purposes of s.386(1)(a) of the FW Act (at [106]-[108] of the decision). The Appellant also contends that the Deputy President’s identification of certain conduct as “pre contract” conduct, and certain other conduct as “post contract” conduct is derived from, and perpetuates, the misconception that the employment relationship was co-extensive with separate contract periods rather than a continuing employment relationship enduring for five years. The Appellant also points to the finding at paragraph [106] where the Deputy President accepts that the Second Respondent said to the Appellant that the First Respondent would be deciding whether to continue the employment relationship depending on its assessment of the Appellant’s performance.

[39] In ground 7 the Appellant asserts that the Deputy President erred by failing to properly consider the contract as an attempt to evade the unfair dismissal and General Protections provisions of the Act (at paragraphs [112]-[116]). Reference was made to the statement at paragraph [112] that:

“[t]he First Respondent’s use of maximum term contracts is intended to ensure that it has the flexibility to engage the best match officials to be part of its elite squad each season.”

[40] This is contended by the Appellant to describe a deliberate strategy on the part of the First Respondent to secure an exemption from the application of the FW Act’s requirements that employers are able to provide a demonstrably valid reason and fair procedures when terminating employment relationships and that employers must not dismiss employees for prohibited reasons for the purposes of the General Protections provisions in Part 3-1 of the FW Act. The FW Act’s General Protections and unfair dismissal provisions are purposefully intended to provide oversight by the Commission of the exercise by employers of this kind of “flexibility”. The Appellant submitted that the Deputy President’s acceptance of the First Respondent’s use of maximum term contracts for the engagement of match officials as having a “legitimate, considered and understandable purpose” also ignores uncontested evidence that the performance data of the Appellant was actively manipulated by the Second Respondent to support the unfair treatment of the Appellant.

[41] It was also submitted that at [75](5)(b) of Khayam v Navitas, the Full Bench recognised that maximum term contracts should not be used as a shield to avoid scrutiny of, and accountability for, conduct which the FW Act makes unlawful. The statement of the Deputy President at paragraph [115] of the decision to the effect that the ‘exclusion of the jurisdiction arising in relation to general protections arises from the meaning in the Act prescribed for dismissal’ generally, and the exclusion contained at s.386(2)(a), and not from the terms of the contract, reassigns responsibility for an exclusion which the Deputy President has derived from reliance entirely on the terms of the contract. It is small comfort to the Appellant that the Deputy President does not consider that the contract precludes action in relation to, or accountability for, the full range of unlawful conduct under Part 3-1 of the FW Act, where the NRL has been permitted to contract out of accountability for its most significant contravention.

[42] Ground 8 asserts that the Deputy President erred by failing to properly state in the decision or take into account the relevant considerations put forward by the Appellant for the purposes of providing a proper legal foundation to prevent the Respondents from relying upon the terms of the contract as the means by which the employment relationship was terminated (at paragraphs [117]-[119]). The Appellant also pointed to the fact that the Deputy President noted at [21] that he preferred the evidence of the Appellant and his witnesses to that of the Second Respondent. The evidence preferred by the Deputy President was that work practices external to the written contract were such that contracts of match officials were routinely renewed unless there was a specific reason for non-renewal and there was an expectation of ongoing employment absent some active step on the part of the NRL by way of a “tap on the shoulder”. The Deputy President also accepted the evidence of the Appellant that he was told by the Second Respondent that the First Respondent would decide whether to continue the employment relationship depending on its assessment of the Appellant’s performance in October 2020 when the reality was that the Second Respondent had already decided to get rid of the Appellant.

[43] It was also submitted that the evidence accepted by the Deputy President was that the Respondents had engaged in a series of acts, as described in the Schedule of Factual Findings attached to the Appellant’s written submissions, providing a proper legal foundation to prevent the Respondents from relying on the terms of the contract as the means by which the employment relationship was terminated.

[44] In appeal ground 9 it is asserted that the Deputy President erred by misconstruing the proper effect of the decision of the High Court in Workpac v Rossato on the statutory test at s.386(1)(a) of the FW Act in the context of the Full Bench decision in Khayam v Navitas. In this regard it is submitted that the Deputy President erred by finding that a valid maximum term contract is sufficient to constitute a genuine agreement, such that the contract itself must be found to be invalid to avoid the existence of a genuine agreement, is contrary to the decision in Khayam v Navitas. The Deputy President also incorrectly cited Workpac v Rossato to assert the primacy of the terms committed to a contract document, to determine the rights of the parties to an employment relationship. This, the Appellant contends, misconstrues the import of Workpac v Rossato in the context of a claim brought under the general protections provisions, because that case is relevant to determining how employment was characterised, but irrelevant to the question of how the end of an employment relationship is characterised.

[45] In appeal ground 10 it is contended that unlike a court, the Commission is a Tribunal empowered to perform its functions under the Act and is not constrained by contracts. The statutory protections for employees against adverse action taken on prohibited grounds, survive attempts by employers to circumvent those protections by contract provisions and statutory obligations that override arrangements made by private contract.

[46] In oral submissions the Appellant contended that if the test in Mohazab is properly applied to the facts in the present case, it is clear that as a matter of practical reality, it was the First Respondent that initiated the end of the Appellant’s employment relationship. The Appellant also contended that consistent with the judgment of Perram J in Quirk v Construction, Forestry, Mining, Maritime, Mining and Energy Union 19 (Quirk), it is not the case that a contract which comes to an end under its own terms, cannot in any circumstance constitute a termination within the meaning in s.386. Even if an outer limit contract ends through effluxion of time, the test under Mohazeb as to who initiated that outcome, must still be applied. According to the Appellant, the initiative of the First Respondent was to set up an entire scheme of employment which gave it discretion to select and rank match officials and decide who will get a shorter or longer contract, or who will get a contract at all. While it is appropriate for the First Respondent to have that discretion, what is in issue is the attempt to purport that the scheme and the process of selecting who will or will not be given contracts and the duration of the contracts given, escapes the general protections and unfair dismissal provisions in the FW Act. The Appellant contends that the scheme was used to select him out of the entire group and then marginalise him through discriminatory and artificial statistics to force him out.

[47] Further, the fact that the Deputy President generally preferred the evidence of the Appellant and his witnesses, and submitted that this meant that the evidence should be considered as additional facts over and above the scheme operated by the second Respondent, that impacted the Appellant being selected and not offered a further contract. The result was that the Appellant was informed that the October 2019 contact would likely be his last and the Second Respondent allowed the contract to run until the end date, and for the Appellant to be selected as one of two referees who would not get further employment. Reference was also made to the evidence before the Deputy President, said to have been accepted, that indicated the Appellant was discriminated against on the ground of disability and that the selection process which resulted in him not being offered a further contract, was corrupt. In this regard, reference was made to evidence of corruption of data and other conduct engaged in by the Second Respondent which was accepted by the Deputy President. It was submitted that this corruption by an employer should be scrutinised under unfair dismissal or general protections provisions of the FW Act.

[48] In summary, it was submitted that the evidence before the Deputy President established that the Appellant was placed in a position whereby, he was linked to a scheme, brought about by a series of acts, discretions, and selections by the First Respondent, and that the selection of the Appellant within that scheme was based on disability discrimination, dishonesty, and corrupt data. It was further contended that, but for this conduct, the Appellant would not have been in a position where he was selected and not offered a further contract. It was clearly an initiative of the First Respondent to bring about the position that was reached in October 2019 and when the test in Mohazab is applied to the facts, the termination of the Appellant’s employment did not occur through the effluxion of time and consistent with what the Full Bench said in Khayam v Navitas, consideration of the entire employment relationship establishes this.

[49] The Appellant also contended that the decision of Perram J in Quirk has modified the position in Fisher v Edith Cowan University (No 2) (Fisher) and is authority for the proposition that: “Even if one comes to the end of a genuine outer limit contract, and effluxion of time is the legal event that brings the employment relationship to an end, one still has to ask was there an initiative of the employer that brought that about.” 20 Further, in response to a question from the Full Bench as to whether it was the Appellant’s submission that the act of entering into a 12 month contract in 2019 was equivalent to the First Respondent giving notice to the Appellant, Mr Harmer for the Appellant said:

“MR HARMER: Justice Perram, with respect, selects that example as a very simplistic example. The employer gives notice, so of course the employer brought it about yet the event is the end of the notice that brings about the end of the contract. He goes on to say that one has to look at whether, regardless of whether the contract ends by whatever mode of operation of law. So here, yes, the mode of operation of law is arguably effluxion of time, outer limit contract. But one has to look at whether that results from the actions of the employer.

So the acts of the employer here, as we’ve said, are the ones that set up the scheme, make a selection, rank people within that selection, select Mr Alouani-Roby, corrupt material to confirm that - base that pressure on disability discrimination and because of his chronic fatigue he’s seen as not being up to it - they are all acts by the employer that result across the 23 referees, and Mr Alouani-Roby being one of the 2 put in that, quote, ‘position’. So the conduct that brought about that position is what brings about his being in a position whereby he falls off the end of his contract. No one else did except for Mr Badger.” 21

[50] In response to a further question, Mr Harmer clarified that the Appellant does not contend that merely by entering a fixed term or outer limit contract, the First Respondent brought about the end of the employment relationship, and submitted that in the present case, there are numerous acts of the employer that resulted in the Appellant’s employment being terminated on the initiative of the First Respondent. 22 Reference was also made to the decision of the Full Court of the Federal Court in Fisher where it was observed that recourse to contracts of employment for a specified period, which while on their face may provide for consensual termination of the employment relationship by the effluxion of time, did not, in itself, avoid the protection that results from implementation of the Convention that then underpinned the legislation. The termination may, in certain circumstances, be a termination at the initiative of the employer.23

[51] Clarification was provided in relation to the “scheme” alleged by the Appellant which was said to be not only the use of outer limit contracts by the First Respondent, but the totality of circumstances including the contract and the manner the Appellant was dealt with by the Respondents. Reference was also made to the cross-examination of the Appellant in the proceedings before the Deputy President, where the Appellant was asked about his understanding of time limited contracts and said that he did not understand that a 12-month contract meant that his employment would end at that time or that he would not have employment after the contract expired. 24 The Appellant’s evidence in re-examination was to the effect that he believed that despite the contract stating that it will run for a year, this did not mean that he could be pushed arbitrarily out of employment and there would have to be performance reasons for this to occur.25

[52] Further, it was submitted that it was held out to the Appellant that he would have the 2020 season to demonstrate whether his ranking was sufficient for him to be offered a further contract, and contrary to that representation, by February 2020, prior to the end of the season, the Second Respondent was expressing the pre-emptive view that the Appellant “was already gone” and would not be offered a further contract. This was also said to be consistent with the view expressed by the Second Respondent in 2019. 26 Subsequently, in June 2020, without proper testing, the decision was confirmed and what was held out to the Appellant was not fulfilled. This is a circumstance of the kind set out in Khayam v Navitas at [75] (5)(e). While the Appellant could argue estoppel, the application of Mohazab to the facts in this case, results in jurisdiction being established without the need to go that far. The Deputy President’s failure to capture this aspect of the Appellant’s case at first instance, was said to be the result of him erroneously applying s.386(2)(a) of the FW Act.

[53] In oral submissions in reply, the Appellant contended that the Respondents’ submissions about the nature of the error in paragraph [93] of the Deputy President’s decision ignores the repeated instances in the decision where the Deputy President referred to s.368(2)(a) of the FW Act. The Appellant further submitted that principles 2 and 4 of in Khayam v Navitas were relevant and maintained that at first instance arguments in relation to principle 5 (b) and (e) had been raised. In this regard, it is the Appellant’s case that although he was given a final 12-month contract, within three months of that contract commencing a decision had already been made that he would not be offered a further contract. As a result, the opportunity to shift the position was never fulfilled, which gives rise to an estoppel. In terms of the “but for” test in Mohazab, whether one refers to this as a causal nexus, there is a link between the facts, including the conduct of the Second Respondent, and the Appellant being placed in a position where he was selected and not offered a further contract.

[54] In further written submissions addressing the Full Bench decision in NSW Trains v James, the Appellant identified that the Full Bench in that case had departed from the earlier conclusion in Khayam v Navitas by finding that s.386(1)(a) of the FW Act would be satisfied if either the employment relationship or the contract of employment had been terminated at the initiative of the employer. 27 If s.386(1)(a) should be construed as including termination of the person’s employment relationship with his or her employer on the employer’s initiative, and also termination of the person’s contract of employment with his or her employer on the employer’s initiative, then the person will be dismissed if the employer terminates either the employment relationship or the employment contract. Even if the contract comes to an end without the intervention of the employer, there remains the possibility that the contract was not coterminous with the employment relationship and that the employer has taken active steps to bring the employment relationship to an end. In this manner, just because a contract terminates by operation of its terms does not preclude the possibility of a dismissal under s.386(1)(a).

[55] Assuming that the proposition adopted by the Full Bench in NSW Trains v James is to be applied to all circumstances in which it falls to be considered whether an employee has been dismissed for the purposes of s.386, then the question of whether an employee has been dismissed cannot be determined by looking only to the contract and its operation, except in circumstances which fit within s.386(2)(a). Further, the decision in NSW Trains v James maintains the distinction between the contract of employment and the employment relationship and indicates that if either one is terminated at the employer’s initiative, then the employee will have been dismissed for the purposes of s.386(1)(a). Regardless of the terms of the Appellant’s final contract of employment, it is sufficient if either that contract, or the employment relationship between the First Respondent and the Appellant, was terminated on the initiative of the First Respondent, for the Appellant to fall within the terms of s.386(1)(a) of the FW Act, as it has now been interpreted in NSW Trains v James. Nothing in NSW Trains v James suggests that a different interpretation should be given to the term “termination at the initiative of the employer” than given in Mohazab or Quirk.

[56] The Appellant submitted that the Full Bench should determine the appeal by finding that the Commission has jurisdiction to deal with the Appellant’s general protections application and remit the matter for the process of conciliation and if necessary, the issuing of a certificate.

Respondents’ submissions

[57] The Respondents submit that each of grounds 1, 2, 8 and 9 28 concern the correct construction and application of s.386(1)(a) of the FW Act and the relevance of the terms and operation of a maximum term contract of employment, to determining whether there has been a termination of employment on the First Respondent’s initiative. Grounds 1, 2 and 8 concern a contention by the Appellant that the Deputy President misapplied the statutory test in s.386(1)(a) by concluding that the express terms of the contract of employment must be given effect rather than enquiring whether the First Respondent’s actions comprised the principal contributing factors which resulted, directly or consequently, in the termination of the employment relationship. Ground 9 relates to a contention that the Deputy President erred in finding that the High Court decision in Workpac v Rossato concerning the contract of employment, is conclusive to determining whether there has been a termination of the employment on the first Respondent’s initiative.

[58] The Respondents also submit that it is not in dispute that the Appellant’s employment relationship ceased on 30 November 2020 and the central dispute between the parties is whether the employment relationship ended by the effluxion of time as a result of the expiry of the Appellant’s maximum term contract or by the Respondents’ actions. In this respect, the Respondents contend that the Appellant’s submission consists of two related propositions. The first proposition is that in determining whether termination of employment was on the initiative of the employer within the meaning of s.386(1)(a), the central focus is placed on the actions of the employer and not the legal event or mechanism that brought the contract to an end. The second proposition is that the phrase “termination of employment” in s.386(1) is a reference to the employment relationship and therefore requires an examination of all circumstances in determining whether there has been a termination of employment on the initiative of the employer and not just the contract of employment.

[59] In relation to the first proposition, the Respondents submit that for the purposes of demonstrating that a person has been dismissed within the meaning of s.386(1)(a) of the FW Act, the employer’s action must be the “principal contributing factor” that results in the termination of the employment relationship. 29 The use of the passive verb “terminated” does not require that the legal event which ends the employment relationship to have been taken by the employer. Rather, it is sufficient that an employer “initiated” the termination by engaging in conduct which is intended or had the probable effect or result of bringing the employee’s employment to an end.30 There must therefore be a causal nexus between the actions of the employer and the ending of the employment relationship.31 According to the Respondents, the types of cases which have generally invoked the application of principles such as the statement of Perram J in Quirk32, cited by the Appellant, involve constructive dismissal, where an employee has terminated the contract by accepting a repudiatory breach by the employer or has been “forced” to resign as a result of the employer’s conduct.

[60] In determining whether there is a causal nexus between the actions of the employer and the ending of the employment relationship, it is relevant to determine whether the mechanism for terminating the contract of employment has been enlivened by the actions of the employer under the contract. If a contract of employment ends by operation of law without any act by the employer to trigger the termination, then there will be no termination of employment within the meaning of s.386(1)(a). However, if the contract or other law requires an employer to take an antecedent step that results in the termination of the contract by operation of its terms, then the employer may have initiated the termination of employment.

[61] The Respondents contend that the Appellant’s reliance on statements made in Khayam v Navitas at [75] (1) – [75](3) concerning the acts of the Respondents, erects a false dichotomy by treating the employment relationship and the contract of employment as distinct concepts. This is not correct. It is uncontroversial that the employment contract creates the basis of, and underpins, the employment relationship. 33 The employment relationship does not stand independently to the contract of employment and indeed cannot exist without a contract of employment. Even though an ongoing employment relationship is capable of being comprised by successive contracts of employment, it does not change the fact that the terms and conditions of the employment relationship will be chiefly defined by the contract of employment supplemented by statute (including modern awards and enterprise agreements).34

[62] Once it is understood that the notion of the employment relationship is based upon, and therefore necessarily shaped by, the proper construction and content of the contract of employment, the starting point must be to examine the character of the legal relationship between the parties by reference to its terms. It is therefore critical to have regard to the terms of the contract to ascertain the means by which it terminates and whether an employer’s conduct is causally linked to its termination. In Workpac v Rossato at [56] citing the earlier judgment in Commonwealth Bank of Australia v Barker, the High Court highlighted that employment concepts used in the FW Act must be understood in a “legal” framework defined by statute and common law, which informs the common law concept of the contract of employment. Even though this proposition was applied by the High Court to the notion of casual employment, it has equal application to the notion of the termination of employment in s.386(1)(a) of the FW Act. In particular, the plurality in Workpac v Rossato found that the nature of the employment relationship, including the termination of that relationship, must be ascertained by reference to its written terms. This involves construing the terms of the contract according to their plain and ordinary meaning, to determine the nature of the relationship between the parties. Thus, where the parties have comprehensively committed the terms of the employment relationship to a written contract and have adhered to those terms, the characterisation of the relationship must be determined by reference to the written contract, and the relevant industrial instruments such as an enterprise agreement, and given effect, unless contrary to statute.

[63] As a result of the principles set out in Workpac v Rossato, it is therefore necessary to have regard to the terms of the Appellant’s employment contract, to determine whether the contract, according to its terms, initiated the termination of employment. Relevantly, clause 2 and item 3 of the last contract dated 25 November 2019, define the nature of the employment relationship as a maximum term contract which ends upon its expiry on 30 November 2020 and that the parties intended that the employment relationship would end at the completion of the term. Clause 5.2 of the Agreement approved by Commissioner Lee on 27 May 2019, mandated maximum term contracts to be the sole basis for engagement. The Appellant voted in favour of the Agreement after reading it and understanding its terms and effect. The First Respondent did not have to take any additional antecedent steps to give effect to the expiry of the term. Moreover, the written contract constituted “the entire agreement between the parties” and that “any variation must be in writing and executed by all the parties” (clause 17). It follows that under the agreement the Appellant’s employment ended by expiry of the maximum term on 30 November 2020 and not on the initiative of the First Respondent.

[64] Consistent with this approach, the Full Bench in Khayam v Navitas recognised that where a valid and applicable maximum term contract exists, it is capable of operating according to its terms to terminate the employment relationship by the effluxion of time and not on the initiative of the employer. Relevantly, the Full Bench in that case stated at [75(4)] that a “genuine agreement” made between an employer and employee that the employment relationship will not continue after a specified date, results in the employment terminating by reason of the agreement of the parties and not at the initiative of the employer, unless there is a vitiating or other type of factor that excuses the parties from performing the contract. Conversely, the Full Bench stated that mere decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date and therefore does not terminate the employment relationship on the employer’s initiative. To adapt the language of the test used in Mohazab, in the present case, the expiry of the maximum term under the Appellant’s contract of employment was the “principal contributing factor” resulting in the termination of the employment relationship and not the actions of the First Respondent.

[65] Accordingly, the Deputy President correctly held that the High Court’s approach in Workpac v Rossato to the interpretation and effect of comprehensive written employment contracts in relation to the correct characterisation of the nature and type of employment relationship under the FW Act, supports the proposition that where the parties have entered into a genuine agreement in the sense expressed in Khayam v Navitas, the agreement must be given effect according to its ordinary language. Contrary to the Appellant’s submission, Workpac v Rossato supports the Full Bench’s approach in Khayam v Navitas. In determining jurisdiction, the Commission must apply this approach. Also, contrary to the Appellant’s submission, the Respondents contend that the Commission’s approach to construing and applying the law is not different to a court of law.

[66] In relation to the Appellant’s submission with respect to active steps being taken to bring about the termination of his employment, while contending that the Appellant has embellished and not accurately described the relevant acts, even assuming such conduct occurred, once the terms of the written agreement are given effect, it is irrelevant to have regard to those factors. This is because under the contract the First Respondent did not have to take any additional action to terminate the Appellant’s employment. The Appellant also contends that the Appellant’s submission appears to be more consistent with an allegation of constructive dismissal. However, the Appellant does not contend that he resigned from his employment in response to the Respondents’ alleged action and accepts that his employment ended on 30 November 2020 (consistent with the expiry of the maximum term under the contract). As there is no causal relationship between the First Respondent’s alleged acts and the termination of employment, none of the matters listed by the Appellant could have played a part in his employment coming to an end. Accordingly, appeal grounds 1, 2, 8 and 9 are not made out.

[67] In relation to grounds 5 and 6 – the relevance of conduct occurring prior to the signing of the contract – the Respondents submit that once it is accepted that the Appellant’s contract of employment dated 24 November 2019, represented a valid and genuine agreement, then it must follow that this ground must also fail. The Deputy President correctly held that none of the alleged conduct prior to entering the contract could have resulted in bringing the employment relationship embodied in the final contract to an end.

[68] In ground 7 it is contended that the maximum term contracts between the First Respondent and the Appellant were vitiated on the basis that they are contrary to public policy by erecting “a shield to avoid scrutiny of, and accountability for” unlawful conduct under Pt 3-1 of the FW Act. In support of this submission, the Appellant relies on the statement of the Full Bench in Khayam v Navitas, that a time-limited contract may be contrary to public policy because it has the purpose of frustrating the policy or operation of the FW Act.

[69] There is no evidence to support the Appellant’s assertion that the First Respondent’s use of maximum term contracts to ensure that it has the flexibility to engage the best match officials to be part of the elite squad, “describes a deliberate strategy on the part of the [NRL] to secure an exemption” from the requirements of Pt 3-1 and Pt 3-2 of the FW Act or that the First Respondent had such a purpose. In determining whether a contract has an impermissible purpose contrary to public policy, the Full Bench importantly noted in Khayam v Navitas that it is relevant to have regard to whether the use of time limited contracts “is appropriate in the relevant field of employment”.

[70] In the present case, no challenge is made to the Deputy President’s finding that the use of maximum term contracts is appropriate in elite professional sports. This is consistent with its recognition as the sole type of employment under clause 5.2 of the Enterprise Agreement. 35 As found by the Deputy President, there is nothing in the contract of employment, evidencing, as one of its purposes, the frustration of the objects or operation of the FW Act or preventing access to the courts. To have such a purpose, it is necessary that the contract have as one of its chief purposes the furtherance of an illegal purpose or that the activities contemplated to be carried out under the contract would have such a purpose.

[71] The text and authorities cited by the Full Bench in Khayam v Navitas concern a class of contracts where one or more of the key terms seeks to contract out of the employee’s statutory rights and entitlements. The Appellant seems to suggest that any contract which, by virtue of its operation, excludes the operation of beneficial provisions, such as unfair dismissal or general protection provisions, is contrary to public policy. Based on that argument, taken to its extreme, any provision of a contract which takes an employee outside the operation of the FW Act is contrary to public policy, and is an absurd outcome, highlighting the fallacy of the Appellant’s claim.

[72] The Appellant’s submission also appears to be that any use of a maximum term contract, by itself, is contrary to public policy because it would exclude the operation of Pt 3-1 of the FW Act where an employer has allowed a maximum contract to expire and decided not to engage the employee beyond that time. This submission, in effect, seeks to throw into doubt the legal efficacy of time-limited contracts. However, the exclusion of contracts for a specified period in s.386(2)(a) of the FW Act and the principles at [75(4)] in Khayam v Navitas English recognise that there is nothing inherently illegitimate in using fixed term or maximum term contracts as a means of engaging employees.

[73] To the extent that the Appellant claims that the maximum term contract erects “a shield to avoid scrutiny of, and accountability for” unlawful conduct under Pt 3-1 of the FW Act, this submission is misconceived. As the Appellant claims that the alleged adverse action occurred during the course of his employment, even if he cannot make a claim of adverse action in relation to his cessation of employment because he has not been dismissed, he is entitled to make claims that Respondent’s took adverse action against him by injuring him in his employment, altering his position to his prejudice in his employment or that there has been discrimination between him and other employees. Further, to the extent that the expiry of the maximum term contract is not capable of giving rise to a claim for adverse action, this is a result of the operation of the FW Act. The Appellant’s assertions about the Second Respondent manipulating data to support unfair treatment of the Appellant (which is denied) is not relevant to the question of whether the Appellant’s contract is contrary to public policy.

[74] In relation to the alleged typographical error in paragraph [93] of the decision, it was submitted by the Respondents that the typographical error is in the subsection and the reference was intended to be to s.368(3)(a) rather than to s.368(2)(a) of the FW Act. In support of this submission the Respondents referred to the context in which paragraph [93] of the Deputy President’s decision appears. Firstly, the paragraph in which the reference appears is under a heading “(a) The Issue of Jurisdiction”. Paragraph [91] which appears immediately under that heading, refers to the application alleging various contraventions of the general protections contained in Part 3 – 1 of the FW Act, involving dismissal.

[75] Secondly, in paragraph [92] the Deputy President refers to the Respondents’ assertion that the Appellant was not dismissed, and observes that if this contention is correct, the Appellant does not have standing to bring the application under s.365 of the FW Act and the Commission does not have jurisdiction to deal with the application under s.368, including by conciliating the dispute and issuing a certificate that it is satisfied that all attempts to resolve the dispute have been or are likely to be, unsuccessful. Thirdly, the Deputy President goes on in that paragraph to observe that absent such a certificate being issued the Appellant cannot commence an application in the Federal Court or the Federal Circuit Court, regarding whether the Respondents have contravened the alleged general protections in relation to the Appellant’s dismissal. The Respondents submit that read in this context, the reference in paragraph [92] of the Deputy President’s decision should be taken to be a reference to s.368(3)(a) of the FW Act.

[76] The Respondents submit that the certificate under s.368(3)(a) is a “gateway” for the Federal Court or the Federal Circuit Court determining any general protections claim made under Part 3 – 1 of the FW Act. Further, the Respondents submit that no certificate could be granted unless the Commission formed the view that a dismissal had taken place. The error should not be seen as some major flaw in the entire analysis which followed from paragraph [94] of the decision onwards, but rather as a contextually incorrect reference to the wrong section. This was also said to be clear from the remainder of the decision and the references to the principles in Khayam v Navitas. Finally, the decision directs attention to the correct question under s.386(1)(a) “Termination at the First Respondent’s initiative.” As a result, the error has no substance and was raised opportunistically. While accepting that the case before the Deputy President was fought entirely on s.386(1)(a) and that s.386(2)(a) had no relevance, the Respondent maintained that s.386(2)(a) was not analysed in the Deputy President’s decision in any event.

[77] The Respondents submitted that the Appellant’s case appears to be that notwithstanding that the employment ended on 30 November 2020, consistent with the Appellant’s last contract, there were anterior or antecedent actions which meant that the Appellant was not selected to be given another contract, which in effect, was an action at the initiative of the First Respondent, constituting a dismissal within the meaning of s.386(1)(a) of the FW Act. This oversimplifies the approach in Khayam v Navitas on the basis that the Full bench in that case said that “depending on the facts” determining whether the employment ended at the initiative of the employer, may require consideration of the entire employment relationship and not merely the terms of the final employment contract. This suggests that the analysis is factual and while the Respondent did not disagree with this proposition, it contended that the factual analysis must be informed by the terms of the final employment contract. Proposition 2 in Khayam v Navitas is that consistent with the statement in Mohazab, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor resulting directly or consequentially, in the termination of employment. This was submitted by the Respondents to indicate that it is not just a matter of simply pointing to a particular action which might be consistent with a hypothesis that the employer wants to terminate the employment, there must be a direct causal nexus.

[78] After traversing the propositions from cases cited by the Full Bench in Khayam v Navitas (at [75]) the Respondents contended that the present case is a case of the kind identified in proposition 4. That is, the terms of the operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship will end on the specified date. In such cases, absent vitiating factors of the kind identified in proposition 5, the employment relationship will have been terminated by reason of the agreement between the parties. Further, the decision not to offer further employment, is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date. The Respondents submitted that there are no vitiating factors in the present case and that the Appellant relied on the factor in 5(b) contending that the contract was illegal or contrary to public policy on the basis that it frustrates the operation of the FW Act.

[79] It was also submitted that while the argument that the contract was not a genuine agreement was advanced during oral submissions, it did not find any substance in the notice of appeal or the oral submissions. While there was a contest before the Deputy President that the agreement was not genuinely made, no appeal was made against the findings that there was a valid, genuine agreement between the Appellant and the First Respondent, giving effect to a maximum term contract. Further, there was no appeal against the finding at first instance that the use of maximum term contracts by the First Respondent had a legitimate operational basis.

[80] Reference was also made to the decision of the Full Court of the Federal Court in Griffin v Australian Postal Corporation 36 in which Spender J held that there was no remedy under the Industrial Relations Act 1988 for a termination of employment that was not a termination at the initiative of the employer and that where termination comes about as a consequence of a valid award provision, that termination is not a termination at the initiative of the employer.37 While the Court was considering an award provision in Griffin, the reasoning underpinning the judgment of Spender J is apt, in relation to the contract in the present case. A similar submission was made in relation to the judgment of Von Doussa J in Griffin. The Respondents submitted that when the cases are understood, the contract is the starting point, and it is not only one factor, but the main factor. It is only in circumstances where one can genuinely say that the contract does not, in reality, reflect the terms and conditions of employment, that one ignores the contract and does not give it effect according to its written terms. Such examples are very limited, based on case law.

[81] It is in this context that the Respondents submitted that the High Court’s decision in Workpac v Rossato reinforces the statements made in proposition 4 of paragraph 75 of the decision of the Full Bench in Khayam v Navitas. The Respondents also referred to Workpac v Rossato as establishing that it is the function of the courts to enforce legal obligations and not to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgement as to the just settlement of an industrial dispute. This was said to be the approach of the Appellant, who contends that the Commission should have regard to the substantive merits of the case by reference to the objects of the FW Act and that the contract should not be given effect according to its terms, because the FW Act contemplates the Commission having some quasi-judicial function in trying to work out what is a fair and reasonable outcome. This approach was rejected by the High Court in Workpac v Rossato and should be rejected in the present case.

[82] Reference was also made to the specific terms of the contract of employment and the Agreement, to support the contention that the parties had made abundantly clear that the relationship would end on the completion of the term and that even if there was any ongoing employment relationship, it would be a separate relationship. Given that the Agreement required that Full Time Referees be employed on a maximum term Full Time Referee employment contract, and that the Agreement prevails over an inconsistent contract, it would have been unlawful for the Appellant to have been employed any other way, because it would have been inconsistent with the Agreement. The decision of Perram J in Quirk relied on by the Appellant, was submitted to be distinguishable on the basis that it involved action taken by the executive of a trade union to remove two officers of the union, while the present case involved no action by the First Respondent and the contract ended in accordance with its terms rather than by an antecedent act of the First Respondent.

[83] In response to the submissions of the Appellant that the corrupt ranking system resulted in him not being given a further contract, it was contended by the Respondents that while the ranking may have that result, the relevant act that terminates the contract is the terms of the contract. Further, it was asserted that the Deputy President did not make any factual findings adverse to the Respondents other than those set out at paragraph [22] of the Decision. It was also pointed out that the proceeding before the Deputy President at first instance was a jurisdictional hearing and the fact that responses were not made to all the evidence of the Appellant or that evidence in response to all matters raised by the Appellant was not called, did not mean that the factual matters asserted by the Appellant should be accepted. A call was made by the Respondents and their representatives, that the contract was sufficient to deal with the matter. Further, it was submitted that if the decision was read sequentially and in context, the Deputy President was setting out the basis for making his factual findings rather than drawing a conclusion that everything which the Appellant asserted was to be accepted. Issue was also taken with the manner that the asserted findings of fact were set out in the Appellant’s submissions and in particular the Respondents submitted that the Deputy President made no finding of corruption.

[84] The Respondents submit that the evidence at its highest, establishes that the First Respondent allowed the contract to expire on 30 November 2020 as it was permitted to do under the contract and acted passively. The Appellant accepted the contract which gave him a further year of employment and was given fair warning that it was unlikely that he would receive a further contract past 30 November 2020. While the Deputy President looked at the facts, he found that there was no causal nexus between the facts alleged by the Appellant and the termination of employment. Because of shifting arguments about the nature of the causal connections advanced by the Appellant, it was submitted that if the Full Bench formed a view that the Deputy President erred by not considering all the relevant circumstances, the matter should be remitted to the Deputy President.

[85] In further written submissions in relation to the Full Bench decision NSW Trains v James, the Respondents asserted that the effect of the decision was to restore the correctness of the reasoning in Lunn and to establish that the expression “termination of employment” in s.386(1)(a) refers to the employment relationship or the employment contract even though the employment relationship may continue after the termination of the contract.

[86] The Respondents also contend that the Full Bench decision in NSW Trains v James undermines the Appellant’s submissions on appeal in three key respects. First, central to the Appellant’s contention on appeal is that s.386(1)(a) applies to the termination of the employment relationship and not just the contract of employment and therefore there must be an examination of the factual circumstances to determine whether the First Respondent’s conduct initiated the termination of the Appellant’s employment. The plurality in NSW Trains v James spurned this approach by concluding that s.386(1)(a) applies to either the termination of the employment relationship or the termination of the employment contract or both. In so doing, the Full Bench in that case acknowledged that the termination of the employment relationship necessarily involves the termination of the employment contract but that s.386(1)(a) also applies even where the employment relationship continues because a new employment contract has come into existence following the termination of the employment contract. 38

[87] Thus, where an employer has repudiated the contract and the employee has accepted the repudiation to bring the contract to an end, there has been a termination of the employment contract even though the employment relationship may continue under a fresh contract of employment. This is sufficient for an employee to be “dismissed” under s.386(1)(a). Determining whether there is a repudiation necessarily involves identification and construction of the contractual terms. 39 Applied to the context of a maximum term contract, to determine whether an employer has initiated the termination of the employment relationship, there must be an examination of the contractual terms to ascertain whether there has been a breach of the contract by the employer amounting to a repudiation or whether the contract has been terminated by the effluxion of time in accordance with its terms.

[88] According to the Respondents’ submission, the logical consequence of the Full Bench’s analysis in NSW Trains v James is that a critical aspect of the factual inquiry in determining whether the First Appellant has initiated the termination of employment, must be the proper construction of the contract and its operation. If the parties conducted themselves on the basis that a maximum term contract operated according to its terms and acted consistently with the maximum term contract expiring, then the relevant action that has terminated the contract is the effluxion of time and not the employer’s actions. The Respondents submit that the Full Bench’s approach supports their main submission that where the employment ceases upon the expiry of the maximum term under the contract, then there has been no termination of employment at the initiative of the First Respondent.

[89] Second, the plurality in NSW Trains v James found that s.386(2) serves to clarify the scope of s.386(1) which is evident from the language and structure of ss.386(1) and 386(2). 40 The use of the word “clarify” suggests that s.386(2) has been inserted to make clear, for abundant caution, a pre-existing legal position. So understood, s.386(2)(a) is merely a restatement of the existing common law position that a person employed “under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season” has not had their employment terminated at the initiative of the employer but as a result of the contract of employment coming to an end upon the expiry of a specified period of time, the completion of a specified task, at the end of a specified season: In similar terms, s.386(2)(b) serves to clarify the existing common law position in relation to persons to whom a training arrangement applies.

[90] The Respondents submit that by accepting NSW Trains’ submissions about the construction of s.386(2), the Full Bench also accepted its submission “that the operation of ss 386(2)(a) and 386(2)(b) confirm Parliament’s intent to make clear that a termination of the contract by operation of its terms will [not] be a dismissal under s 386(1)(a)”. 41 This submission included a reference in footnote 4642 to NSW Trains’ submission that the Explanatory Memorandum to the Fair Work Bill at [1532]-[1539] supported the construction that ss.386(2)(a) and 386(2)(b) are intended to reflect the common law position that termination of employment in these circumstances would not be a dismissal. Relevantly, the Explanatory Memorandum states at [1532] (underlining added):

“Paragraph 386(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.”

[91] Thus, contrary to the Appellant’s position, the Full Bench in NSW Trains v James accepts the position that s.386(2)(a) was inserted to make clear that the operation of certain types of contracts of employment did not give rise to a dismissal. Rather than s.386(2)(a) creating specific independent exclusions, it merely sought to reinforce the common law position, that a contract of employment which by its terms brings the employment to an end, does not constitute a termination of employment. This fortifies the notion that regard to the terms of a valid contract of employment is central to determining whether there has been a dismissal under s.386(1)(a).

[92] Third, the Full Bench plurality in NSW Trains v James accepted the primacy of an enterprise agreement which prevails over the contract of employment to the extent of any inconsistency. 43 This suggests that where an enterprise agreement is the source of the terms and conditions of employment, it must be given effect according to its terms. The Agreement which applied to the Appellant’s employment at the time of his termination of employment, mandated that full-time match officials only be engaged on maximum term contracts. It is relevant to have regard to the terms of the Agreement in determining the correct characterisation of the relationship.44 By prescribing that a maximum term contract is the only possible basis for the engagement of NRL match officials, the maximum term contracts must therefore be read in conjunction with the Agreement as embodying the terms and conditions of employment of NRL match officials and the basis of their engagement.45

[93] It must also follow that there is an implied prohibition in the Agreement forbidding the engagement of full-time match officials under different types of employment except by a maximum term contract. Non-compliance with the enterprise agreement in relation to the engagement of maximum term employees cannot convert the contract into a different type of employment relationship that cannot exist under the agreement (such as permanent employment of an indefinite duration). 46

[94] Thus, the engagement of NRL match officials under a type of employment agreement other than a maximum term contract would be contrary to clause 5.2 of the enterprise agreement and would contravene s.50 of the FW Act. This means that entering into a contract to engage employees for an indefinite duration would be illegal because it is impliedly prohibited by the enterprise agreement. 47 Alternatively, it would be illegal because it is associated with or made in furtherance of a purpose frustrating a policy, or the operation of the FW Act that parties abide by enterprise agreements.48 The Respondents also submitted that contrary to the Appellant’s submission that his contract of employment was contrary to public policy, the enterprise agreement indicates that his maximum term contract operated validly according to its terms to terminate his employment by agreement through the effluxion of time.

Consideration

Legislation and relevant case law

[95] The application from which the present appeal arises, was made under s.365 of the FW Act, which provides that:

“Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person or the industrial association, may apply to the FWC, for the FWC to deal with the dispute.”

[96] Section 12 of the FW Act defines “dismissed” by reference to s.386, which provides as follows:

‘386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the

employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[97] The reference in s.365 of the FW Act, to a person being “dismissed in contravention of this Part”, is to Part 3 – 1, which provides general workplace protections, and prohibits adverse action, including dismissal, being taken against a person in contravention of a matter with respect to which the person is protected.

[98] The matter for determination before the Deputy President, was whether the Appellant had been dismissed within the meaning in s.386(1)(a) of the FW Act. In the decision subject of the appeal the Deputy President upheld a jurisdictional objection made by the Respondents and found that the Appellant was not dismissed. In so doing, the Deputy President was not required to make findings about whether the Respondents had taken adverse action against the Appellant in contravention of a protection in Part 3 – 1 of the FW Act.

[99] During his employment, the Appellant was subject to five sequential contracts described in the decision as “maximum term contracts of employment”. The last contract started on 1 December 2019 and ended on 30 November 2020. It is common ground that this contract was not “a contract of employment for a specified period of time” within the meaning in s.386(2)(a) of the FW Act, on the basis that the contract provided an unqualified right of termination with notice, before the specified end date – 30 November 2020. As a Full Bench of the Commission in Khayam v Navitas explained, there is a distinction between “a contract of employment for a specified period of time…” within the meaning in s.386(2)(a) and a contract which specifies an outer limit or a maximum term. Essentially, the distinction depends on whether the contract provides for an unqualified right for either party to terminate the contract. The former type of contract is sometimes referred to as a fixed term contract and the latter, variously, as an outer limit, time limited or maximum term contract.

[100] The question of when a person has been dismissed for the purposes of s.386(1)(a) was the subject of a decision of a Full Bench of the Commission in NSW Trains v James, issued on 8 April 2022, after the present appeal had been heard and the decision reserved. The parties in the present appeal were given an opportunity to make further submissions in relation to the Full Bench decision in NSW Trains v James. That case concerned an application for an unfair dismissal remedy by an employee who was demoted as a disciplinary outcome, continued to work for the employer and claimed that the demotion constituted a dismissal which could be the subject of an application for an unfair dismissal remedy. The issues in NSW Trains v James included the interaction between s.386(2)(c) and s.386(1)(a). The majority in NSW Trains v James determined that the expression “employment … has been terminated” in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment. 49

[101] Khayam v Navitas concerned an employee who was employed on a series of outer limit contracts. At the end of the term of the last of those contracts, the employee (Mr Khayam) was not offered a further contract due to concerns the employer had about his performance. Mr Khayam contended that this constituted a dismissal within the meaning in s.386(1)(a) of the FW Act. Navitas contended that there had been no dismissal and that Mr Khayam’s employment contract had terminated through the effluxion of time. The majority in that case held – at [75](1) – that the analysis of whether there has been a termination at the initiative of the employer for the purposes of s.386(1)(a) is to be conducted by reference to the employment relationship, not by reference to the termination of a contract of employment operative immediately before the cessation of the employment. 50 This conclusion was contrary to an earlier decision of a Full Bench of the Commission in Department of Justice v Lunn51 (Lunn), which held inter alia that the expression “termination at the initiative of the employer” referred to termination of a contract of employment not termination of the employment relationship.

[102] The Respondents submitted that the Full Bench in NSW Trains v James found the proposition set out by the Full Bench in Khayam v Navitas English at [75](1) of the decision, to be incorrect, and that the Full Bench in that case erroneously overruled the earlier decision of a Full Bench of the Australian Industrial Relations Commission in Lunn. The Respondents also submitted that the effect to the decision in NSW Trains v James was to restore the correctness of the reasoning in Lunn.

[103] We do not accept either of those submissions. The Full Bench in NSW Trains v James made no finding as to the correctness of Khayam v Navitas English and in our view the outcomes in the two cases are not inconsistent and simply reflect differences in the respective factual scenarios and legal issues that arose in those cases. We are also of the view that the principles established by a Full Bench of the Commission in Khayam v Navitas and set out at [75], and the cases from which those principles are derived, remain relevant in the present appeal and that the parties presented their respective cases on the basis that decision was correct. In this regard, we note that the Appellant does not dispute that his employment relationship with the First Respondent ended on 30 November 2020, at the same time as the term of his last contract of employment. In those circumstances the issue of whether the employment relationship survived the termination of the employment contract does not arise. We are also of the view that given the terms of the Agreement that applied to the Appellant, in conjunction with the terms of his contract of employment, the issue of whether there was a single employment relationship that was coterminous with the contract, is not determinative. The matter that is determinative is whether the Appellant’s employment was terminated on the initiative of the First Respondent.

[104] We turn now to consider the following principles in [75] of the Full Bench decision in Khayam v Navitas:

“(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.

(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:

•  the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;

•  the employee entered into the contract as a result of a serious mistake about its contents or subject matter;

•  there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;

•  the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;

•  the employee lacked the legal capacity to make the contract; or

•  the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction 82). Whether the employment was constituted by successive short term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).

(c) The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).

(d) The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).

(e) During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated (Fisher).

(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).”

[105] Principle 2 refers to the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics (Mohazab) 52 – the seminal decision in relation to the meaning of “termination at the initiative of the employer” as it was formulated in the former Industrial Relations Act 1988 and in the form in which it presently appears in s.386(1)(a) of the FW Act. In Mohazab the Court said:

“…a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression termination of employment...

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” 53

[106] In Mahoney v White 54 referred to in principle 3, the Full Court of the Federal Court considered a case where the Catholic Education Office terminated the employment of teachers charged under child protection legislation, which the employer argued made the employment of the teacher illegal, so that there was no dismissal at the employer’s initiative. The Court held, that the formula “at the initiative of the employer” had been retained in the FW Act (albeit in a different grammatical arrangement) and that Mohazab remains a good authority as to its connotation. The Court observed that the effect of the judgement in Mohazab is that notwithstanding the use of the active voice in the legislation, a termination that had not been done by the employer, might nonetheless have been done at the initiative of the employer. The Court concluded that in each case, the termination of the teacher concerned was the deliberate, considered act of the employer’s CEO and that even if the CEO was under a statutory obligation requiring the initiative to be taken in bringing the employment to an end, it was the act of the employer which resulted in the termination of employment.55

[107] Other case references in the Khayam v Navitas principles refer to the decision of the Full Court of the Industrial Relations Court in Fisher v Edith Cowan University (Fisher) 56 and the decision of Marshall J D’Lima v Board of Management, Princess Margaret Hospital for Children (D’Lima)57 Both cases concerned employees on outer limits or maximum term contracts and warrant consideration in some detail for present purposes. In Fisher, the Full Court of the Federal Court identified circumstances in which a termination of employment occurring at the end of a time-limited contract of employment, could constitute a termination at the initiative of the employer, for the purpose of Part VIA Div 3 of the WR Act. The matter concerned an application by an academic (Ms Fisher) for relief from termination of employment in circumstances where she had been employed under three successive annual contracts and employment had terminated at the end of the third contract, in circumstances where Ms Fisher had been unsuccessful in merit selection for a three-year appointment to the same role. The case was initially heard by Ritter JR who held that there had been a termination at the employer’s initiative. In a decision dealing with an application for judicial review58, Madgwick J noted that Ritter JR had arrived at a central conclusion that:

“(i) A termination at the initiative of the employer may be treated as a termination that is brought about by an employer and which is not agreed to by the employee…a termination in which action by the employer is the principal contributing factor which leads to termination of the employment relationship.

(ii) The controversy about whether there is or can be a distinction between a relationship of employer and employee and the contract of employment out of which such a relationship grew, should, after Byrne v Australian Airlines Ltd (1995) 69 ALJR at 803; 61 IR 32 at 40, be regarded as settled in favour of the view of Wilcox J in Siagan v Sanel Pty Ltd (1994) 1 IRCR; 54 IR 185 that:

“termination of employment means termination of a relationship of employer and employee and is not confined to a case where an employee’s contract of service has been terminated: Mohazab at 205 and Grout v Gunnedah Shire Council (1995) 62 IR 150 at 156.” 59

[108] Madgwick J assumed that the second conclusion was correct but did not accept the first conclusion based on what he described as the two fold “nub of the Registrar’s position … that an employment relationship between Ms Fisher and the University would have continued, apart from a positive decision not to appoint her under a new contract of employment, and that such decision was the ‘principal contributing factor’, the ‘critical action’, which led to the termination of the employment relationship.” 60

[109] Madgwick J concluded that the questions is: by whose act or decision, primarily, was the employment terminated? His Honour answered the question by finding that Ms Fisher’s employment terminated as and when it did, by reason of the agreement of the parties, made a year earlier, that it should so terminate. His Honour also found that the decision of the employer not to offer Ms Fisher a fresh, contiguous fixed term appointment, did not and could not affect that fact. His Honour concluded by stating that: “had the decision been to re-appoint Ms Fisher, that would, in the instant circumstances, for the purposes of the Industrial Relations Act, have simply created another employment (and contractual) relationship.” 61

[110] Affirming the decision of Madgwick J, the Full Court of the Industrial Relations Court 62 made findings which can be summarised as follows:

•  Where the provisions of an industrial instrument given force by the WR Act regulate or prevent the use of fixed term contracts, such provisions would be part of the material on which a finding of fact may be made that an employment relationship exists beyond the term fixed by an employment contract; 63

•  If the termination was effected by reliance by the employer, contrary to the terms of the award, on the expiration of the period for employment specified in the contract as the occurrence that has terminated the employment relationship, the remedies in Division 3 of the WR Act (termination of employment) would apply to a termination of an employment relationship governed by the award; 64

•  There may also be termination of employment at the initiative of the employer if the terms of a fixed period contract have been varied in the course of performance of the contract or it has been abandoned and replaced by another contract, by another agreement. or the employer has engaged in representations which estop the employer from relying on the terms of the contract as the means by which the employment relationship has been terminated and in such cases the employee may show that reliance by the employer upon the purported effluxion of a period of time for employment is, in fact, termination of the employment at the employer’s initiative; 65

•  While the case before Madgwick J was decided on the facts before the court, on a different set of facts, a different conclusion could have been reached for example a fixed term contract that was “unreal, unconscientious or oppressive as against an employee of any special vulnerability” or where such contracts were not regarded as appropriate in the relevant field of employment and where there was a continuation of the employee’s position after termination of the employee’s employment, including cases of academic appointments made under successive short term contracts. 66

[111] The Full Court went on to refer to cases sought to be relied on by Ms Fisher’s representative in which it had been determined that employment had been terminated on the initiative of the employer, notwithstanding that the employer maintained that the employment had been brought to an end by the expiration of a period of employment specified in a contract of employment. The cases referred to by the Full Court were: Christie v Qantas Airways Pty Ltd 67; Minister for Health v Ferry68 and D’Lima v Board of Management, Princess Margaret Hospital for Children (D’Lima)69. The Full Court noted that in Christie and Ferry the relevant findings of fact were that the contracts of employment did not specify a period for employment and in D’Lima it was held that the evidence established that the employment contract was not restricted to the terms of a written document.

[112] Griffin v Australia Postal Corporation 70 concerned an application alleging unlawful termination in circumstances where an award covering the employee stated that he could be employed in his role until the age of 65. The Court held that the termination resulted from the provision of an award and was not at the initiative of the employer (per Spender and Marshall JJ). Spender J held that there was no remedy under the former Industrial Relations Act that is not a termination at the initiative of the employer and that when a termination comes about as a consequence of a valid award provision it is not a termination at the employer’s initiative.71

[113] The facts in D’Lima were that the applicant was a cleaner employed by the respondent hospital for a period of approximately a year and a-half under a series of fixed term employment contracts, each for a period of about four weeks. Ms D’Lima’s employment terminated at the end of the last contract because the employer was dissatisfied with her performance. The contracts were set out on forms headed “Temporary Application/Appointment Form”. The forms indicated that Ms D’Lima was applying for a “temporary post” for a period starting and ending on dates which were inserted on each occasion the form was completed.

[114] Ms D’Lima’s evidence was that every time she signed one of the forms, all the details had been inserted except for her signature. Sometimes she was asked to sign forms which had been backdated. Marshall J observed that in such circumstances Ms D’Lima worked beyond the time of expiry of the alleged short-term contracts and then worked pursuant to an alleged short-term contract that was supposed to have commenced before she signed the relevant documentation. Ms D’Lima also gave evidence that there were a large number of contract employees in the cleaning department and the practice was that if a contract came to an end, employees would continue to work unless they received a letter from the hospital saying they were no longer required. There was also a general understanding that the decision as to employees whose contract was extended was made by management.

[115] The Court rejected an argument advanced by the employer that Ms D’Lima was employed on a series of fixed term contracts and that each contract expired on its own terms. Citing the decision of Von Doussa J in Andersen v Umbakumba Community Council 72 the Court observed that this submission was at odds with the evidence and that because Ms D’Lima was subject to an award entitlement for two weeks’ notice of termination of employment, the cessation date merely recorded the outer limit of a period beyond which the contract would not go unless a new contract was entered into. Accordingly, the last contract was not a contract for a specified period within the meaning of Regulation 30B(1)(a) of the then Industrial Relations Regulations, which excluded from the Court’s jurisdiction the consideration of an application under s.170(EA) of the Industrial Relations Act, made by an employee under a contract of employment for a specified time.

[116] The Court also rejected an argument that the dismissal of Ms D’Lima was not a termination at the initiative of the employer concluding that:

“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. As Ms D’Lima said in unchallenged evidence on the review:

‘... I had continuous employment ... except for my father’s death [on] which I approached Ms Dyson and asked her to grant me leave’.” 73

[117] As observed by the Full Bench in Khayam v Navitas, the Full Court in Fisher characterised D’Lima as a case where “it was held that the evidence established that the employment contract was not restricted to the terms of a written document” 74 and observed that this appears to be a reference to the fact that the substance of the employment relationship in D’Lima was established by work practices external to the written contracts.

[118] The Appellant in the present case contended in oral submissions that the decision of Perram J in Quirk is decision “modified” the position in Fisher and stands for the proposition that “even if one comes to the end of a genuine outer limit contract, and effluxion of time is the legal event that brings that employment relationship to an end, one still has to ask was there an initiative of the employer that brought that about.” We do not accept that submission. Firstly, Quirk did not concern an outer limit or maximum term contract. Quirk concerned two elected organisers of a union (Mr Quirk and Mr Miller) who were removed from office for gross misbehaviour and as Perram J described the circumstances, the employment of both employees was coterminous with them holding the office of an organiser and came to an end with the termination of that office, subject to them being validly removed under the rules of the unions concerned 75. The union argued that the employment relationship ended by operation of law, upon their removal from office and that there had been no dismissal.

[119] In his consideration of this contention, Perram J compared the facts with those in Mylan v Health Services Union NSW 76 (Mylan). In that case, Mr Mylan was elected to the position of Deputy General Secretary of the union, which under its rules, also entitled him to be employed in that position. A judge of the Court made orders that vacated all elected offices of the relevant branch of the union and placed it in administration, with the consequence that Mr Mylan ceased to be the Deputy General Secretary. Mr Mylan brought various proceedings alleging that his employment had been terminated. Buchanan J concluded that the union had not terminated his employment, which had instead come to an end by operation of law, on the basis that the circumstances upon which employment depended no longer existed and employment was at an end without any necessity for action by the union.77

[120] After considering Mohazab and Mahony, Perram J said in relation to the meaning of the word “terminated” in s.386(1):

“What that provision requires is two things: (a) an initiative of the employer; that (b) results in the termination of the employment relationship. The provision does not require the employer pull the trigger but only to load the gun. In my view the provision is expressed in such a way that it is agnostic as to the precise means by which the employment relationship comes to an end. Its focus is upon, however it might have ended, at whose initiative this might have occurred.

I do not accept that a contract which comes to an end under its own terms cannot in any circumstance constitute a termination within the meaning of s 386 (although this issue does not strictly arise). If it does then the termination provisions contain a lacuna. For example, if a contract of employment made provision for the issue of a notice of termination by an employer in certain circumstances and a later provision saying that the employment relationship would come to an end 7 days after the issue of the notice then this would be an example of the employment relationship coming to an end by operation of law. The termination clause would take its effect upon the occurrence of a given factual circumstance but it is the operation of the contract and not the factual circumstance which would result in the termination of the employment relationship.

I therefore do not accept the Respondents’ submission that there can be no termination of an employment relationship purely because the contract of employment came to an end by operation of law. Nor do I accept that Mylan stands in the way of that conclusion. As I have already indicated, the critical part of his Honour’s reasoning is the statement that ‘any employment was at an end without any necessity for action by the union’. I do not read his Honour’s statement ‘In any event, Mr Mylan’s office (and any employment) was lost by operation of law as a result of the Orders’ as a holding that in every case where a contract of employment ends by operation of law there can be no termination within the meaning of s 386. I would accept that Mylan is authority for the proposition that where a contract of employment ends by operation of law without any act by the employer then there will be no termination within the meaning of s 386. But I do not accept that his Honour intended to say, or did say, anything about the situation where a contract of employment ends by operation of law as a result of the actions of the employer. Facts of that kind were not before the Court in Mylan.”

[121] Notably, Perram J neither considered Fisher nor applied that case to the facts before him. The example employed by his Honour simply illustrates that a lacuna would exist in the legislation, in a hypothetical situation where a contract of employment contains a term providing for it to end in a particular time frame, and in addition, a provision that requires an action to be taken before the contract will end. The fact that both the time frame in which the contract will end, and the triggering action, are provided for in the contract, does not necessarily mean that the contract ends according to its terms if the employer takes the action to trigger the end of the contract. Quirk does not modify the position in Fisher and in the example given by Perram J, the employer acts to initiate the end of employment notwithstanding that the contract ends by the operation of law, in accordance with its terms. The example given by Perram J is not relevant in the present case and it is arguable that a contract containing such a provision is not an outer limit contract at all, but rather a contract with a termination provision that can be triggered at any time, by the employer taking a specified action. In contrast with that example, Fisher concerned an employment on a series of outer limit contracts, with specified start and end dates and there is no indication that the contract required anything other than effluxion of time to bring it to an end in accordance with its terms, which had been agreed by the parties and were not illegitimate or vitiated. Further, the contract in the present case does not contain a triggering provision to bring about the termination but rather the terms of the contract simply provide that it ended on 30 November 2021 without any action on the part of the First Respondent. For reasons we develop later in relation to the present appeal, the mere act of making such a contract, was not of itself, an initiative of the First Respondent that resulted in the termination of the Appellant’s employment.

[122] The outcome in Quirk was that his Honour found that the action of the union’s divisional executive in removing Mr Quirk and Mr Miller from office, which led to the repudiation of their contracts of employment, was a dismissal. Of relevance in the present case is that his Honour also observed that if he was wrong and Mr Quirk and Mr Miller had not been dismissed, they had been injured in their employment and their positions had been altered to their prejudice by virtue of their removal from office giving them an alternative basis upon which to pursue claims of adverse action.

[123] Before turning to consider the appeal grounds in the present case, we make some general observations. As the cases establish, the central question posed by s.386(1)(a) is whether a person has been dismissed by virtue of the person’s employment being terminated on the employer’s initiative. The use of the verb “terminated” does not require the legal event that ends the relationship to be an action of the employer and simply requires that the employer initiate the ending of the employment.

[124] Sections 386(1)(a) (and (b) which deals with forced resignation and is not presently relevant) exclusively define the circumstances in which a person has been dismissed. There is no reference in s.386(1) to the concept of an employment contract or an employment relationship and generally such a distinction is not central to the analysis of whether a person has been dismissed. However, the distinction may be relevant in circumstances, such as those which arose in Khayam v Navitas and NSW Trains v James. Such a distinction was also of significance in Broadlex which concerned the entitlement of an employee to be paid redundancy pay in circumstances where the employee remained in employment with the employer but her status and working hours were altered from full time to part time, because the employer’s contracted cleaning hours were reduced. Relevantly in that case, s.119(1) of the FW Act provides that an employee is entitled to redundancy pay “if the employee’s employment is terminated … at the employer’s initiative”.

[125] The employment relationship and the employment contract are interrelated. The contract of employment creates the basis of and underpins, the employment relationship. As McHugh and Gummow JJ observed in Byrne v Australian Airlines Ltd:

“The evolution in the common law as to the relationship of employment has been seen as a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee).”

[126] And in Workpac v Rossato 78 the plurality cited the judgement of French CJ, Bell and Keane JJ in Commonwealth Bank v Barker who said:

“The employment relationship in Australia operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment.” 79

[127] Also, as Katzman J observed in Broadlex: “The employment relationship is inherently a contractual one. Consequently, there can be no employment relationship without a contract of employment.”

[128] The Full Bench in Khayam v Navitas did not determine that the contract of employment is irrelevant to the question posed by s.386(1)(a) and nor did it establish a principle that the circumstances of the entire employment relationship trump the terms of an employment contract in all cases. Rather, it emphasised that there may be cases where, notwithstanding that employment has ended at the same time as the end date in a time-limited contract, and ostensibly in accordance with the terms of the contract, it will be necessary to analyse the entire employment relationship to determine whether an employee has been dismissed within the meaning of s.386(1)(a).

[129] Further, the Full Bench in Khayam v Navitas did not assert in the first principle in [75] that in all cases, the question of whether a person has been dismissed, is answered by focusing only on the employment relationship and whether it has ended, in isolation from whether there has been a termination of the contract of employment. The paragraphs preceding the principle in paragraph [75](1) deal with propositions that the definition of “dismissed” in s.386(1) is not to be read as excluding in all circumstances, a termination of employment that occurs at the end of a time limited contract of employment, and that the mere fact that an employer has decided not to offer a new contract of employment at the end of a time limited contract, which represents a genuine agreement by parties that employment should come to an end not later than a specified date, will not by itself, constitute termination of employment.

[130] This is also evident from the fact that the first principle in [75](1) is expressed with an important qualification, that where the employment relationship is made up of a sequence of time-limited contracts, analysing whether there has been a dismissal for the purposes of s. 386(1)(a) of the FW Act, may, depending on the facts, require consideration of the circumstances of the entire employment relationship rather than the terms of the last of those employment contracts. Subsequent principles set out by the Full Bench make clear that this broader analysis will not be appropriate in all cases and there will be cases where the circumstances of the entire employment relationship do not establish anything other than a genuine agreement, constituted by a time limited contract, that employment will not continue after a specified date.

[131] For the purposes of analysing whether there has been a dismissal, within the meaning in s.386(1)(a), consideration of the entire employment relationship as posited by the Full Bench in Khayam v Navitas, includes consideration of the contract of employment in operation at the time of the employment ending and may also include consideration of other employment contracts during the entire employment relationship (or series or employment relationships as posited by Katzman J in Broadlex). As we have noted, the contract of employment is fundamental to, and underpins, the employment relationship. In addition to the terms of the contract, consideration of the entire employment relationship may, depending on the facts, require examination of a range of matters encompassed in the principles set out in paragraph [75] by the Full Bench in that case, including: the field of employment in which the contract operates; the terms of any industrial instruments including awards and enterprise agreements applicable to the relevant employment; all contracts in a series of time limited contracts; the context in which the contract of employment and the employment relationship operated; conduct of the parties during the relationship and the circumstance in which the employment ended. Consideration may also be required as to whether there are vitiating factors so that there is no legally effective time limit on the employment.

[132] To state the obvious, the issue for determination in the present appeal is whether the Appellant was dismissed within the meaning in s.386(1)(a), and not whether the Respondents engaged in conduct, which if established at hearing, would constitute adverse action. The Respondents’ conduct is relevant in this appeal, only to consideration of whether it was the principal contributing factor which resulted, directly or consequentially, in the termination of the Appellant’s employment or insofar as it relates to matters encompassed within the principles in Khayam v Navitas.

[133] A finding as to whether a person has been dismissed within the meaning in s.386(1) is a jurisdictional pre-requisite to the person making a general protections application involving dismissal, under s.365 of the FW Act. The Commission is not empowered to determine whether a person has been dismissed, based on a view that it would be fair or just for the person to be eligible to seek a particular remedy. Neither is the Commission empowered to find that that because a person claims to have been subjected to adverse action, the person should be permitted to make a claim for a remedy for which dismissal is a jurisdictional pre-requisite, in circumstances where the person has not been dismissed. There is no discretion, even where the Commission is satisfied that it is probable that adverse action has been taken, to extend remedies for dismissal to persons who have not been dismissed. Furthermore, a person who is employed on a time limited contract that reflects a genuine agreement that the employment relationship will not continue after a specified date, cannot seek to effectively set aside the contract by altering his or her position, and asserting that employment is not ending voluntarily, simply to access a remedy under the FW Act that requires that the person was dismissed.

[134] In our view the grounds of appeal and the submissions in relation to the construction and application of s.386(1)(a) advanced by the Appellant, invert the inquiry by focusing on the Deputy President’s findings about the conduct alleged by the Appellant rather than on the entire employment relationship. The existence of a valid maximum term contract is not disregarded in consideration of whether there has been a dismissal for the purposes of s.386(1)(a) but is considered in the overall factual matrix of the employment relationship and the ending of employment. Similarly, conduct on the part of the Respondents of the kind alleged by the Appellant, and about which the Deputy President made findings, is also part of the factual matrix. However, that conduct must be such that it, rather than the terms of the contract, brought the Appellant’s employment to an end.

[135] We turn now to consider the grounds of appeal in light of the relevant principles.

The construction and application of s.386(1)(a)
[136] It is convenient to deal with appeal grounds 1, 2, 8 and 9 together, on the basis that these grounds concern the construction and application of s.386(1)(a). The gravamen of the matters asserted in grounds 1, 2 and 8 is that the Deputy President failed to correctly apply the statutory test set out at 386(1)(a) in determining whether the Appellant was dismissed, by giving effect to the terms of the contract as the means by which the Appellant’s employment ended, rather than considering whether the actions of the Respondents comprised the principal contributing factors which resulted directly, or consequentially, in the termination of employment. The incorrect reference to s.368(2)(a) in paragraph [93] of the Deputy President’s decision is also said to demonstrate the error asserted in ground 1 of the appeal. Ground 9 asserts that the Deputy President misconstrued the impact of the decision of the High Court in Workpac v Rossato in the context of authorities concerning the operation of maximum term contracts and the meaning of dismissal under the FW Act.

[137] Given its centrality to the employment relationship, it is appropriate to commence our consideration of these appeal grounds by examining the Appellant’s contract of employment. Commencing with an analysis of contract is consistent with the principles in Khayam v Navitas which make clear that the circumstances of the entire employment relationship include the terms of the relevant contract. The Appellant does not dispute the Deputy President’s findings that the Agreement – an enterprise agreement approved by the Commission prior to the Appellant’s final contract of employment commencing – specifically provided for all persons employed as full-time referees to be employed on maximum term contracts, which must be for a minimum of twelve months. The Appellant was employed on a series of such contracts and other than in one instance where a contract of eighteen months duration was orally agreed, all the Appellant’s employment contracts were for a period of twelve months. While not necessarily accepting the proposition that to employ the Appellant on any basis other than a time limited contract, would breach the Agreement, we do accept that employment on that basis is authorised by the Agreement, and that its terms underpin such contracts.

[138] The final contract provided that the Appellant’s employment would commence on 1 December 2019 and conclude on 30 November 2020, unless terminated earlier. Further, the final contract included a provision whereby the Appellant agreed that the employment relationship would end on the completion of the contract term and that any decision as to whether to offer further employment would be separate and distinct from the contract. The final contract also provided for a career transition payment payable after a full-time referee had five years’ service and where employment terminated other than for misconduct.

[139] On the Appellant’s evidence, he was informed at the meeting at which the final contract was discussed, that the one-year contract he was being given at that time could be his last contract, if the parties were in the same position next year in relation to the Appellant’s improvement plan. We agree with the submission for the Respondents that the evidence at its highest, establishes that the First Respondent allowed the contract to expire as it was permitted to do, and acted passively, rather than taking any steps that could constitute termination of employment on the First Respondent’s initiative. The Appellant accepted the contract which gave him a further year of employment and was warned that it was unlikely that he would receive another contract past 30 November 2020.

[140] In all the circumstances, including the evidence set out in the Deputy President’s decision, the final contract reflected a genuine agreement on the part of the Appellant and the First Respondent, that the employment relationship would not continue after 30 November 2020, and it is not in dispute that it came to an end on that date. It is also the case that circumstances of the kind that pertained in D’Lima are not evident in the present case. There is no indication that the contracts were a practice put in place by the First Respondent for mere administrative convenience. The Deputy President accepted the Respondents’ evidence and submissions that the use of maximum term contracts was appropriate in the field of elite professional sports and the intention was to ensure that the best available match officials would be engaged each season. The Deputy President also found that there was a legitimate purpose for this mode of employing match officials and it was significant that maximum term contracts were specified as the mode of employment for all persons employed in the same capacity as the Appellant. The Appellant did not dispute these findings in the appeal and appears to contend that notwithstanding that a mechanism for employing other match officials was legitimate, it was not legitimate with respect to the employment of the Appellant. We do not accept that submission.

[141] While there was an 18-month period where the Appellant worked under a contract that was not signed, no issue was taken with this, and it is not contended that there was a factual scenario of the kind that applied in D’Lima with respect to backdated contracts. Further, the Deputy President found in the present case that the Appellant understood that one- or two-year contracts would be given by the First Respondent and signed those contracts. In making these findings, the Deputy President also had regard to the Appellant’s evidence, under cross examination, that he understood that the reference in the Agreement to maximum term contracts was to a time-limited contract of one- or two-years duration, and that while he did not understand that he definitely would not have employment after the term of each contract, he also knew that there was no guarantee that he would have employment. 80 The Appellant agreed under cross-examination that he knew that each of the contracts offered to him had a maximum term as specified in the contract. Under re-examination, the Appellant agreed that his understanding was that while the contracts were limited, they would be renewed, and he would not be arbitrarily pushed out of the role unless there were performance reasons.81 Further, on the Appellant’s own evidence, which the Deputy President accepted, he was told that if the parties were in the same position next year it was likely to be his last contract. The Appellant’s evidence is that notwithstanding this advice he signed what would be his last contract, dated 25 November 2019.

[142] Accordingly, consistent with principle 4, there was a genuine agreement on the part of the employer and employee that the employment relationship would not continue past 30 November 2020. Notwithstanding that position, the Appellant asserts that he did not leave his employment voluntarily and that the following matters are initiatives of the Respondents, which were the principal contributing factors to the ending of his employment. The first initiative is said to have been that the First Respondent set up an entire scheme of employment which gave it discretion to select and rank match officials and decide who will get shorter or longer contracts, or who will get contracts at all.

[143] Secondly, it is asserted that the Respondents engaged in conduct described in paragraph [31] above, including not allowing the Appellant to fully recover from his illness; victimisation; corruption of the Appellant’s performance data to set him up for removal; scapegoating the Appellant in relation to any errors; placing inappropriate performance demands on the Appellant in an attempt to force him to resign; informing the Appellant in October 2019 a decision would be made whether to continue the employment relationship depending on his performance in October 2020, and then prematurely telling the Appellant in June 2020 that his contract would not be renewed; and causing the Appellant’s health to break down to such an extent that the Appellant was unable to continue to work following a meeting on 9 June 2020.

[144] With respect to the first initiative alleged by the Appellant, consistent with the observation in Workpac Pty Ltd v Rossato, nothing in the statutory framework within which the employment relationship has been established, inhibits the freedom of parties to enter into a maximum term contract. It cannot be that the mere act of the First Respondent entering a maximum term contract with the Appellant is, of itself, the principal contributing factor resulting in the termination of employment if employment terminates as provided in the contract. Maximum term contracts are also authorised by the National Rugby League (Match Officials) Agreement 2019, an enterprise agreement approved by the Commission, as a mechanism for the First Respondent to employ match officials. The Appellant’s contract was consistent with the terms of that agreement.

[145] In relation to the second initiative alleged by the Appellant, we are of the view that if it is accepted that all the conduct took place, the conduct was not the principal contributing factor which resulted directly or consequentially in the termination of the Appellant’s employment. For the reasons set out below in relation to other related grounds of appeal, on the Appellant’s evidence, the conduct occurred before the final contract commenced and was unrelated to the terms of the final contract when the context in which the final contract was made is considered. Further, the Appellant’s employment ended pursuant to the agreed terms of the final contract, independently of the conduct and there is no causal relationship between the conduct and the ending of the employment consistent with the term of the last contract. The Appellant did not resign his employment because of the conduct and the Respondents took no steps to end the employment either directly or consequentially and there was no requirement that they take such steps for the contract to end, given its terms. In the context of the entire employment relationship, the last employment contract is not connected to the alleged conduct but is consistent with the manner in which the First Respondent employed all full-time match officials as provided for in the Agreement. In short, the final contract was entered into despite the conduct and there is no causal connection between the conduct and the ending of the Appellant’s employment consistent with the terms of his contract.

[146] Nor is there any basis for a contention that the mere act of the First Respondent making a maximum term contract with the Appellant was an additional form of such conduct relevant to the Appellant’s contract. As we have noted, there is no prohibition on maximum term contracts in the FW Act. The use of outer limits contracts is not illegal or contrary to public policy and the fact that it prevents the Appellant from accessing remedies under the FW Act for unfair dismissal or dismissal for reasons constituting adverse action, does not mean that the contract has that purpose. As we have noted, the contract is authorised by an enterprise agreement and is appropriate in the relevant field of employment. The contract was not varied or abandoned so that its ostensible time limit no longer applies. As discussed above, the contract is limited to the terms of a written document and in contrast with the situation in D’Lima did represent the reality of the employment relationship.

[147] We are also of the view that the Deputy President correctly considered the entire employment relationship and did not focus only on the terms of the final contract of employment, in concluding that the Appellant was not dismissed within the meaning in s. 386(1)(a). We do not accept, as asserted in appeal ground 2, that the Deputy President misstated the statutory test by asserting that the express terms of the Appellant’s final contract must be given effect unless contrary to statute. On a fair reading of the decision, the statement in [99] is in the context of the Deputy President’s consideration of all relevant matters, both in paragraphs before and after the paragraph in which the comment appears, including the contract of employment and the entire employment relationship. However, we are also of the view that the Deputy President was correct to place significant weight on the Agreement and the terms of the contract. In this regard, we agree with the Respondent’s submission that the Full Bench in NSW Trains v James emphasised the primacy of enterprise agreements which prevail over a contract of employment to the extent of inconsistency and suggests that where an enterprise agreement is the source of terms and conditions of employment, it should be given effect according to its terms.

[148] Further, we are of the view that the Deputy President properly considered and applied principle 5 of the decision in Khayam v Navitas in relation to the Appellant’s contract and the alleged conduct of the Respondents. There was no basis for the Deputy President to find that any of the vitiating factors in principle 5(a) applied. If the conduct alleged by the Appellant occurred, that conduct is not conduct of the kind that vitiates the contract. The fact that the Appellant wanted a further contract and did not wish his employment relationship with the Respondent to cease, does not support a finding that the contract was not genuinely agreed or that the Respondents misled the Appellant or misrepresented the position to him or that he was under mistake or a disability so that there was unconscionable conduct associated with the contract being made. The Appellant had legal capacity to make the contract and it was not varied or replaced by way of a separate agreement.

[149] While the vitiating factors listed in principle 5 in Khayam v Navitas may not be exhaustive, there were no additional factors relied on by the Appellant in the present case, as far as we can discern from the submissions. As we have already stated, we do not accept that the conduct of the Respondents referred to by the Appellant is conduct that vitiated the final employment contract. The use of outer limits contracts by the First Respondent was not contrary to the FW Act and was authorised by the terms of the Agreement and there is no causal link between the making of the final contract and the conduct that the Appellant alleges was engaged in by the Respondents.

[150] In relation to appeal ground 8, the Appellant also submitted that there were representations to the Appellant such that the First Respondent should not be permitted to rely on the contract. We share the Deputy President’s view that it is difficult to precisely understand the conduct or representations that the Appellant alleged provided a proper legal foundation to prevent the First Respondent relying on the contract. In oral submissions in the appeal, the Appellant appeared to step away from this assertion, stating that while estoppel could be argued, the application of Mohazab to the facts, meant that jurisdiction could be established without the Appellant going that far. The only contention even approaching misrepresentation of the kind that would be necessary to ground estoppel, is that it was held out to the Appellant that he would have the 2020 season to demonstrate whether his ranking was sufficient for him to be offered a further contract, while the Second Respondent had already expressed the pre-emptive view that the Appellant was “gone” regardless of his performance. In our view, given the Appellant’s evidence at first instance about what was said to him when the final contract was offered, this conduct, to the extent it occurred, does not ground estoppel or anything approaching it. Further, the conduct is not a representation as described in principle 5(e) at paragraph [75] of Khayam v Navitas.

[151] In relation to appeal ground 9, we also accept that recent decisions of the High Court have directed attention to comprehensive written contracts of employment where they exist. In Workpac v Rossato the plurality held that a court can determine the legal relationship between parties only by reference to the legal rights and obligations which constitute the relationship. 82 Further, the plurality observed:

“To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgement as to the just settlement of an industrial dispute has been emphatically the case in Australia at the Federal level since the Boilermakers Case.

To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce ‘something more than an expectation’ but less than a contractual obligation.” 83

[152] We agree with the Respondent’s submissions to the effect that it was entirely appropriate for the Deputy President to have considered the decision of the High Court in Workpac v Rossato, given that it concerns the function of courts with respect to legal obligations under contracts. The approach to that task as elucidated by the High Court has relevance in the present case. As we have stated, the Commission is not free to simply wave the application through on the basis that it would be unfair to deny the Appellant the right to advance a claim predicated on his employment being terminated on the initiative of the employer, when this is not the case. The Appellant cannot make the application unless he has been dismissed and it is no part of the Commission’s role to allow an application to proceed to a court if it is not satisfied that prerequisite has not been met. We are also of the view that the decision in Workpac v Rossato underscores the analysis of matters in principle 5 of the decision in Khayam v Navitas. While the Full Bench in that case did not exhaustively identify all matters relevant to the analysis of whether it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time, the decision in Workpac v Rossato indicates that such matters should relate to established contractual principles rather than amorphous assertions of unfairness.

[153] Finally, we do not accept that the typographical error at [93] of the decision is a material error. While such an error is regrettable, regardless of the section the Deputy President intended to refer to, it does not alter his consideration and the correct application of the principles in Khayam v Navitas. Quite simply, the Deputy President did not consider s. 386(2)(a) to any substantive degree in his analysis of the relevant provisions and case law. We also think it probable that the Respondents’ submission on this error is correct and that the Deputy President intended to refer to s.368(3)(a).

[154] For these reasons, appeal grounds 1, 2, 8 and 9 are dismissed.

Relevance of conduct occurring prior to the signing of the contract

[155] In relation to grounds 5 and 6, we agree with the Respondent’s submission that this appeal ground fails on the basis that as the Appellant’s final contract of employment was a valid and genuine agreement, none of the conduct identified by the Deputy President prior to entering into the contract in November 2019, resulted in bringing the employment relationship to an end on 30 November 2020. For the reasons we have discussed, there was no causal connection between the conduct and the ending of the contract by effluxion of time. In short, the contract ended consistent with the terms agreed between the First Respondent and the Appellant, regardless of the conduct complained of by the Appellant, and without any action on the part of the First Respondent, other than the action of making the contract. This was not a case where, but for the conduct, the contract would not have ended and absent the conduct, the Appellant would have been in exactly the same position – party to a time limited contract, ending on 30 November 2020.

[156] Appeal grounds 5 and 6 are dismissed.

Conflation of the employment relationship and the employment contract

[157] We do not accept that the Deputy President conflated the employment relationship with the concept of the employment contract as asserted in ground 3. It is well established that there are cases where a series of rolling outer limits contracts with substantially similar terms, can extend across a single employment relationship. It may also be the case that upon the ending of an outer limit contract of employment and its replacement with a new contract, a new employment relationship may be created. In Fisher, Madgwick J considered that had the decision been made to reappoint the employee, another employment and contractual relationship would have been created. However, in that case, Ms Fisher’s employment ended when she was unsuccessful in being appointed to a three-year role which was otherwise substantially the same as the role she had filled under three successive one year contracts. It may have been that the view of Madgwick J that a new employment relationship would have been created because the final contract would have had a term of three years, rather than one year and accordingly would have resulted in a new and different employment relationship being created.

[158] Conversely, the outcome in Khayam v Navitas, may have been that the multiple outer limits contracts were coterminous with a single employment relationship. There were no substantial differences between the contracts in Khayam v Navitas and it is arguable that there was a single employment relationship coterminous with the maximum term contracts spanning the entire period from 14 April 2012 when the first of such contracts was agreed and 20 June 2016 when the last contract ended. In this regard we note that the Full Bench remitted the matter to the Commissioner to determine in accordance with the principles established in its decision and the matter was subsequently resolved without further hearing. It was also suggested by Katzman J in Broadlex that when a new contract is offered and accepted, and the subsequent employment relationship is fundamentally different, there may be a termination of the employment relationship. Regardless of whether there is a single employment relationship that is coterminous with the entire period covered by a series of maximum term employment contracts, or a new employment relationship is created when each maximum term contract is made, determining whether an employee has been dismissed within the meaning in s.386(1) involves a similar exercise of examining the contract in effect at the time the employment ends and may require the entire period over which the contracts extended to be considered to determine whether there has been a termination of employment at the initiative of the employer at the end of the last of those contracts. Further, it would be entirely consistent with the principles in Khayam v Navitas to consider each employment relationship over the period of the employment, if it was determined that there was more than one employment relationship.

[159] However, in the present case, whether the employment relationship was coterminous with the period from the commencement of the Appellant’s first contract to the completion of his final contract, is not determinative of whether he was dismissed within the meaning in s.386(1)(a) upon the completion of the term of his final contract. As was the case with each of the preceding contracts, the final contract was for a maximum term and terminated at the conclusion of the term. For reasons we have stated, we consider that the Deputy President did not err in his consideration of the relevant matters in concluding that the Appellant was not dismissed.

[160] In relation to appeal ground 4, it is asserted that the conclusion at [103] of the Deputy President’s decision is inconsistent with the findings of the High Court in Concut Pty Ltd v Worrell 84 on the basis that the Deputy President found that the employment contract determined the extent of the employment relationship and that his final contract periodically determined that relationship. Paragraph [103] of the decision is in the following terms:

“[103] The employment relationship between the First Respondent and the Applicant was co-extensive with each of the maximum term contracts that the First Respondent and the Applicant entered into, and the Agreement. I accept that there were maximum term contracts in place covering the whole of the Applicant’s employment with the First Respondent. The Contract, at Item 3 of the Schedule, specifically provided that ‘it is intended that the employment relationship will end on the completion of the term and any decision to offer you further employment is separate and distinct from this Agreement’.” (emphasis in original).

[161] The Appellant contends that the Deputy President should have found that the employment relationship was co-extensive with the entire series of contracts. Firstly, for reasons we have given in relation to ground 3 above, this is not determinative of whether there has been a termination of the Appellant’s employment at the initiative of the employer. The Deputy President considered the last contract in the series of time limited contracts that had applied to the Appellant’s employment and all other relevant matters consistent with the principles in Khayam v Navitas. In this regard, the Appellant does not complain of a failure to consider a relevant matter, but rather the weight that was put on matters in the overall assessment of whether the Appellant’s employment was terminated for the purposes of s.386(1)(a).

[162] Secondly, the decision in Concut v Worrell does not support the Appellant’s contentions. That case concerned an appeal from a decision of the Queensland Court of Appeal, which held that an oral employment agreement reached at the commencement of employment and a subsequent written contract of employment (referred to as the Service Agreement), were discrete agreements and that the Service Agreement terminated and replaced the earlier oral agreement. At issue was whether a provision of the Service Agreement that provided for termination of employment without notice, if the employee was guilty of misconduct, applied to conduct before the written agreement was made. To answer this question required an analysis of what the High Court described as the relationship between the Service Agreement and the antecedent employment relationship. The majority (Gleeson CJ, Gaudron and Gummow JJ) said (citations omitted):

“The relevant principles are well settled. In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd, Gleeson CJ, Gaudron, McHugh and Hayne JJ said:

‘When the parties to an existing contract enter into a further contract by which they vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists.’

Their Honours went on to refer to the judgment of Taylor J in Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd. Taylor J had rejected submissions that (a) ’it is impossible by a subsequent agreement, merely, to vary or modify an existing contract” and (b) ”[an] agreement which purports to vary an existing contract operates … first of all to abrogate entirely the existing contractual relationship and, then, to reinstate the terms of the old contract as varied or modified by the new agreement’. His Honour, to the contrary, accepted the propositions that (a) the earlier contract might be rescinded altogether, the determining factor being the intention of the parties disclosed by the later agreement; (b) partial rescission is a variation, not the destruction, of the contractual relationship between the parties; and (c) the earlier contract may be varied by way of (i) partial rescission with or without the substitution of new terms for those rescinded and (ii) the addition of new terms with or without any partial rescission at all. In Tallerman, Kitto J spoke in terms which involved acceptance of propositions (a) and (b) as identified above, adding that whilst ‘in strict logic’ a variation may be a new contract, ‘the discharge of an old contract is a matter of intention’.” 85

[163] The majority considered that the text of the Service Agreement itself, as well as the surrounding circumstances, indicated that a conclusion that the Service Agreement discharged the prior contractual relationship and became the exclusive charter of the rights of the parties, would not be in accord with their manifest intention. The majority went on to conclude the employment relationship continued but was supplemented by the terms of the Service Agreement.

[164] The facts in Concut v Worrell bear little resemblance to the present case. The first four contracts the Appellant entered into had fixed terms, which expired. In the present case, the manifest intention of the parties, indicated by the clear terms of the final contract, was that the employment relationship would end on the completion of the term of that contract and any decision to offer further employment to the Appellant would be separate and distinct from the contract. In those circumstances the Deputy President was correct to conclude as he did in paragraph [93] that the employment relationship between the First Respondent and the Appellant was coextensive with each of the maximum term contracts.

[165] Accordingly, appeal grounds 3 and 4 are dismissed.

Contract as an attempt to evade unfair dismissal and general protections provisions

[166] In our view, this ground of appeal is misconceived. The FW Act contains provisions excluding employees whose employment ends pursuant to the expiry of a genuine outer limit contract of employment, from remedies for dismissal. No party in the appeal contends that the contract was not an outer limit contract and that where such contracts are genuine, a termination of employment as agreed between the parties to the contract will not be a termination at the initiative of the employer for the purposes of s.386(1)(a). The exclusion of an employee whose employment terminates in accordance with the terms of an outer limit contract from remedies for unfair dismissal or dismissal involving adverse action, operates because the FW Act provides for such exclusions. A contract of employment cannot be contrary to public policy or be found to evade such provisions, simply because statutory exclusions operate upon it. Further, employers are entitled to structure their employment arrangements on the basis that such exclusions will operate.

[167] Applying the principles in Khayam v Navitas, which both parties submitted were appropriate, the Deputy President’s finding that the use of time limited contracts is appropriate for elite sports was open to him on the evidence and discloses no error. The contracts are not successive short-term contracts of the kind described in D’Lima and the minimum duration of the contracts is specified in the Agreement approved by the FW Commission. The Full Bench in Khayam v Navitas referred in principle 5(b) to contracts that may be illegal or contrary to public policy and (in end note 82 in that paragraph) gave as examples contracts containing objectionable terms as defined in s.12 of the FW Act or terms of the kind discussed by the New South Wales Court of Appeal in Qantas Airways Ltd v Gubbins. 86 The contract terms discussed in that case by Gleeson CJ and Handley JA, involved persons affected by discriminatory practices bargaining away in advance their rights to seek relief under relevant legislation. It was held that the evident policy of the statute is that such practices should cease, and this was supported by the existence of the power given under the Anti-Discrimination Act 1977 for the Equal Opportunity Tribunal to declare void, any contract or agreement made in contravention of that Act.

[168] While the FW Act does not contain such a provision, the Commission is to act in all matters according to equity, good conscience and the substantial merits of the case. This requires the Commission to apply the ordinary law and if the contract in the present case infringed the principle that rights under statute should not be bargained away, this would have been a relevant matter in determining whether the contract represented a genuine agreement or was vitiated.

[169] In our view, the contract in the present case contains no such provision. The mere fact that an employer and employee make a maximum term contract, attracts exclusions from rights associated with dismissal if employment ends by the operation of the agreed terms of the contract. This is because of the operation of the exclusions in the relevant provisions of the FW Act is predicated on the legitimate existence of time limited contracts and contracts of the kind described in s.386(2)(a) and the mere act of an employer initiating and making such a contract with an employee, cannot, of itself, constitute an attempt to evade unfair dismissal and general protections provisions in the FW Act.

[170] For these reasons we also do not accept that the contract is caught by the anti-avoidance provisions in s.386(3) of the FW Act as its purpose, much less its substantial purpose, is not to avoid obligations under Part 3 – 1 of the FW Act. In any event, those provisions apply to contracts of the kind described in s.386(2) and it is common ground that the contract in the present case is not such a contract. Further, we agree with the Deputy President’s assessment that the general protections provisions are not excluded by the contract between the First Respondent and the Appellant, and that the Appellant is entitled to make an adverse action claim asserting conduct including injury in employment, prejudicial alteration of his position or discrimination. We note that such claims may include adverse action involving the Appellant in his capacity as an employee or possibly as a prospective employee, in circumstances where the Appellant has not been dismissed and cannot make an application under s.365 of the FW Act.

[171] Accordingly, appeal ground 7 is dismissed.

Mischaracterisation of the Commission’s role

[172] Appeal ground 10 asserts that the Commission is not a court and is empowered to perform its role under the FW Act, unconstrained by the contracts made by employers. It is further asserted that statutory protections for employees against adverse action on prohibited grounds, survives attempts by employer to circumvent such provisions by contract terms.

[173] For the reasons we have given in relation to appeal ground 7 we do not accept that the contract in the present case is such a contract. Further, as we have observed in relation to the appeal grounds concerning statutory construction, the matter subject of the proceedings before the Deputy President and the present appeal, concerns a jurisdictional objection to the application. The Appellant cannot make the application unless he has been dismissed and it is no part of the Commission’s role to allow an application to proceed to a court if that jurisdictional prerequisite has not been met. Even if we had concluded that adverse action had been taken against the Appellant (which we have not) the Commission would have no jurisdiction to allow the application to proceed. Appeal ground 10 is also dismissed.

Disposition of the appeal

[174] For the reasons given, the appeal is dismissed.

VICE PRESIDENT

Appearances:

M Harmer of Harmers Workplace Lawyers LP for the Appellant.

M Seck of Counsel instructed by MinterEllison for the Respondent.

Hearing details:

2022.
Sydney (via Microsoft Teams)
8 February.

Final written submissions:

Appellant, 27 May 2022

Respondent, 20 May 2022

Printed by authority of the Commonwealth Government Printer

<PR745590>

 1   [2021] FWC 6282.

 2   [2021] HCA 23.

 3   [2017] FWCFB 5162.

 4   [2020] FCAFC 152 at [74]-[75].

 5   [2022] FWCFB 55.

 6   [2021] FWC 2802.

 7   [2021] FWCFB 3603.

 8   [2010) 197 IR 266, [27].

 9   (2006) 158 IR 410.

 10   Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [50].

 11   Ibid at [50].

 12   Ibid at [44], [54], [55], [60], [63] and [66].

 13   Ibid at [33] and [63].

 14   Ibid at [75](2).

 15   (1995) 62 IR 200.

 16   Op cit at [75](5).

 17   [2021] HCA 23; 95 ALJR 681.

 18   [2000] HCA 64.

 19   [2021] FCA 1587.

 20   Transcript of Appeal PN208.

 21   Transcript of Appeal PN218 – 219.

 22   Transcript of Appeal PN220 – 223.

 23   (1997) 72 IR 464 at 469.

 24   Transcript of proceedings 27 May 2021 PN747, 925 (Appeal Book page 123,139).

 25   Transcript of proceedings 28 May 2021 PN1175 – 1182.

 26   Transcript of appeal PN282.

 27   [2022] FWCFB 55 at paragraph [45]

 28   Subsequent to the Appellant correcting the references to specific appeal grounds, in its outline of submissions in the appeal.

 29   Mohazab (1995) 62 IR 200 at 205-205; Mahony v White [2016] FCAFC 160, 226 IR 221 at [21].

 30   Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154 at 160-161; Mahony v White [2016] FCAFC

160, 226 IR 221 at [18]-[24].

 31   Pawel v Australian Industrial Relations Commission (1999) 94 FCR 231; (1999) 97 IR 392 at [56]-[58]; Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 at [221].

 32   [2021] FCA 1587.

 33   Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [1]; also at [16], citing Byrne v Australian

Airlines Ltd (1995) 185 CLR 410 at 436; Workpac Pty Ltd v Rossato [2021] HCA 23 at [57]

 34   Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312 at [18]-[22].

 35   Exh R4, Annexure E3, Appeal Book page 2108

 36   155 ALR 369.

 37   Ibid at 371 citing Gummow J in Qantas Airways Ltd v Christie (1998) 152 ALR 365.

 38   NSW Trains v James op. cit. at [76]-[80].

 39   Ibid at [124]-[126].

 40   Ibid at [33].

 41   Ibid at [38].

 42   Ibid at [38].

 43   Ibid at [123], [131].

 44   WorkPac Pty Ltd v Rossato [2021] HCA 23; 95 ALJR 681 at [81].

 45   Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 418-421, 456; Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423; CFMEU v Wagstaff Piling Pty Ltd (2012) 203 FCR 371 at [30]; DL Employment Pty Ltd v Australian Manufacturing Workers Union (2014) 247 IR 234 at [53].

 46   NTEIU v University of Wollongong [2002] FCA 31 at [38]-[39]; Independent Education Union of Australia v Australian International Academy of Education Inc [2012] FCA 1512 at [13]-[19].

 47   See Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 423.

 48   Yango Pastoral Company Pty Ltd (1978) 139 CLR 410 at 432; Nelson v Nelson (1995) 184 CLR 538 at 552.

 49   [2022] FWCFB 55 at [45].

 50   [2017] FWCFB 5162 at [75](1).

 51   (2006) 158 IR 410.

 52   (1995) 62 IR 200.

 53   Ibid at 205 – 206.

 54   (2016) 262 IR 221.

 55   Ibid at 228.

 56   (1997) 72 IR 464.

 57   [1995] IRCA 407, 64 IR 19.

 58   Fisher v Edith Cowan (1996) 70 IR 206.

 59   Ibid at 210.

 60   Ibid at 209 – 211.

 61   Ibid at 211.

 62   Fisher v Edith Cowan University (No. 2) (1997) 72 IR 464.

 63   Ibid at 470.

 64   Ibid at 471.

 65   Ibid at 471.

 66   Ibid at 472.

 67   (1996) 68 IR 248;

 68   (1996) 65 IR 374.

 69   (1995) 64 IR 19.

 70   155 ALR 369.

 71   Ibid at 371.

 72   (1994) 1 IRCR 457 at 462; 56 IR 102 at 106.

 73   (1995) 64 IR 19 at 25-26.

 74   (1997) 72 IR 464 at 472.

 75   [2021] FCA 1587 at [49].

 76   (2013) FCA 190.

 77   Ibid at [26].

 78   [2021] HCA 23.

 79   Ibid at [56].

 80   Transcript of proceedings 27 May 2021 PN925 Appeal Book p. 139.

 81   Transcript of proceedings 28 May 2021 PN1177 Appeal Book p. 162 – 163.

 82   [2021] HCA 23 at [57].

 83   Ibid at [62].

 84   [2002] HCA 64.

 85   Ibid at [19].

 86   (1992) IR 292 at 295.