1
Fair Work Act 2009
s.394—Unfair dismissal
David Purdon
v
Services Australia, Centrelink
(U2022/11499)
DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 2 MARCH 2023
Application for relief from unfair dismissal – jurisdictional objection – whether applicant was
dismissed – application dismissed.
Introduction
[1] Mr David Purdon was employed by the Commonwealth of Australia, as represented by
Services Australia (Respondent), in the classification of APS Level 3. Mr Purdon’s
employment with the Respondent came to an end on 15 November 2022. Mr Purdon alleges
that he was unfairly dismissed. The Respondent contends that Mr Purdon was not dismissed.
This decision deals with the jurisdictional question of whether Mr Purdon was dismissed within
the meaning of s 386 of the Fair Work Act 2009 (Cth) (Act).
[2] I conducted a hearing, by telephone, on 2 March 2023 in relation to the jurisdictional
objection raised by the Respondent. At the hearing Ms Lindy Fennell, Acting Director of
Services Australia, and Ms Megan Roberts, Acting Service Centre Manager for Services
Australia in Lismore, gave evidence, as did Mr Purdon.
Dismissal
[3] The question of when a person has been dismissed is governed by s 386 of the Act. It
relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or his
employer.
(2) However, a person has not been dismissed if:
[2023] FWC 523
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 523
2
(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;”
General principles
[4] The expression “termination at the initiative of the employer” in s 386(1)(a) is a
reference to a termination of the employment relationship and/or termination of the contract of
employment1 that is brought about by an employer and which is not agreed to by the employee.2
[5] Absent any relevant vitiating factors, if the parties to a contract of employment
genuinely agree that the employment of the employee will end in particular circumstances and
it does so end, the termination occurs by reason of the agreement between the parties and there
will be no termination at the initiative of the employer.3
[6] A “contract of employment for a specified period of time” within the meaning of s
386(2)(a) is a contract of employment where the time of commencement and the time of
completion are unambiguously identified by a term of the contract, either by the contract stating
definite dates, or by stating the time or criterion by which one or other end of the period of time
is fixed, and by stating the duration of the contract of employment. If the contract contains an
unqualified right to terminate the employment, without reason, during the term of the contract,
the period of the contract is indeterminate and thus not for a specified period of time.4
Relevant facts re dismissal
[7] There is no dispute that Mr Purdon made a written contract of employment with the
Respondent and that contract was binding on the parties to it at the time it came to an end. The
written contract included the following relevant provisions:
“…I am pleased to offer you non-ongoing employment with Services Australia.
Offer Details
Job reference number TER-APSL-2021-3400
Start date 15-Nov-2021
End date 15-Nov-2022
Classification APS Level 3
…
Your engagement as a non-ongoing employee
You’ll be engaged by Services Australia as an [sic] non-ongoing employee under
paragraph 22(2)(b) of the Public Service Act 1999 (Cth)…
Your non-ongoing engagement will not take effect until you:
[2023] FWC 523
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• have met the conditions of engagement in Attachment A; and
• start work on 15-Nov-2021.
…
Your employment will cease on the 15-Nov-2022 unless your employment is extended,
in writing, by Services Australia.
We may terminate your employment prior to the end date in circumstances including,
but not limited to, where:
• your work performance or conduct is unsatisfactory; or
• the duties for which you were engaged are no longer available, have been
completed ahead of time or are no longer to be performed.
Terms and conditions of employment
The terms and conditions of your employment with Services Australia are as provided
in:
• this letter (including Attachment A);
• the Department of Human Services Agreement 2017-2020…
Resignation
Should you wish to resign, you are required to advise the agency of this in writing one
week in advance. This period of notice may be shortened by agreement with your
manager…”
[8] The Department of Human Services Agreement 2017-2020 is an enterprise agreement
made under the Act. It does not contain any provisions relevant to the cessation of employment
of a non-ongoing employee such as Mr Purdon.
[9] On 1 November 2022, Ms Roberts told Mr Purdon that his contract was coming to an
end and would not be extended.
[10] Mr Purdon’s employment relationship with the Respondent came to an end on 15
November 2022.
Consideration re dismissal
[11] I do not accept the Respondent’s contention that Mr Purdon was employed under a
contract of employment for a specified period of time within the meaning of s 386(2)(a) of the
Act. The contract permitted the Respondent to terminate Mr Purdon’s employment at any time
prior to the end date (15 November 2022) in a range of circumstances. It is clear from the
expression “but not limited to” that the contract did not set out in an exhaustive manner the
circumstances in which the Respondent could terminate Mr Purdon’s employment prior to 15
November 2022. One circumstance expressly contemplated by the contract for the exercise of
[2023] FWC 523
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the Respondent’s right of early termination was where the duties for which Mr Purdon was
engaged were “no longer available, have been completed ahead of time or are no longer required
to be performed”. This provision conferred on the Respondent an express right to terminate Mr
Purdon’s employment at any time prior to 15 November 2022, even if Mr Purdon did not breach
any term of the contract or engage in any conduct or behaviour which warranted his dismissal.
The Respondent could simply decide, at any time prior to 15 November 2022, that the duties
for which Mr Purdon was engaged were no longer required to be performed. In my opinion,
this meant that Mr Purdon was not employed under a contract of employment for a specified
period of time. At any point during the period from 15 November 2021 to 15 November 2022
neither party to the contract could know with any certainty when the period of the contract of
employment might come to an end.5
[12] I accept the Respondent’s contention that Mr Purdon’s employment with the
Respondent was not terminated on the Respondent’s initiative within the meaning of s 386(1)(a)
of the Act. I am satisfied that Mr Purdon’s employment with the Respondent came to an end by
reason of the agreement made between the parties to the employment contract that Mr Purdon’s
employment would “cease on the 15-Nov-2022 unless … extended, in writing, by Services
Australia”. Mr Purdon’s employment was not extended, in writing, by the Respondent.
Contrary to a submission advanced on behalf of Mr Purdon, I do not accept that the publication
of a roster constitutes an extension of the employment, in writing, within the meaning of the
employment contract. A copy of the relevant roster was not put into evidence, so I have not
been able to examine its contents. Putting that issue to one side, I accept Mr Purdon’s
unchallenged evidence that the Respondent placed Mr Purdon’s name in a roster which it
published in early October 2022 in a program named ‘Genesis’, and the roster showed Mr
Purdon performing duties until 16 December 2022. The roster was not modified. However, the
publication in October 2022 of a roster which extended beyond the contract end date of 15
November 2022 does not, in my view, constitute the written notification of an extension of Mr
Purdon’s employment with the Respondent. I consider that a roster is primarily a scheduling
tool to let employees know of the days and hours they will be required to work if they remain
employed by their employer during the period of the roster.6 It does not constitute a promise,
assurance or notification that the employee will remain employed during the period of the
roster. In my opinion, a reasonable person in the position of Mr Purdon would not consider the
publication of their name on a roster to constitute notification, in writing, of a decision by the
Respondent to extend their employment beyond the end date stated in their employment
contract. Apart from the roster, Mr Purdon does not contend that he received any other written
document to notify him of the extension of his employment beyond 15 November 2022.
[13] There is no suggestion that any vitiating factors of the kind explained in Navitas and
National Rugby League were present in this case.
[14] Nor is there any suggestion that Mr Purdon resigned, or was forced to do so, as
contemplated by s 386(1)(b) of the Act.
[15] It follows that Mr Purdon was not dismissed within the meaning of s 386 of the Act.
[16] The dispute resolution procedure in the Department of Human Services Agreement
2017-2020 is not relevant to the question of whether Mr Purdon was dismissed. Nor is any
[2023] FWC 523
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alleged non-compliance by the Respondent with an obligation to consult with Mr Purdon about
changes to his employment arrangements.
Conclusion
[17] Because Mr Purdon was not dismissed, he cannot have been unfairly dismissed within
the meaning of the Act.7 Accordingly, Mr Purdon’s application for relief from unfair dismissal
is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D Hunter, Solicitor, for the Applicant
Ms R L Gall, Counsel, for the Respondent
Hearing details:
2023
Newcastle
2 March (by telephone)
Printed by authority of the Commonwealth Government Printer
PR751356
1 NSW Trains v James [2022] FWCFB 55 at [45]
2 Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
3 Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 (Navitas) at [75(4)]; Alouani-Roby v National Rugby League Ltd
[2022] FWCFB 171 (National Rugby League) at [166]
4 Andersen v Umbakumba Community Council (1994) 56 IR 102 at 106-7; Navitas at [81]-[82]
5 Andersen v Umbakumba Community Council (1994) 56 IR 102 at 106-7
6 Clause F8 of the Department of Human Services Agreement 2017-2020
7 Section 385(a) of the Act
OF THE FOR WORK AUSTRALIA MMISSION THE SE
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb171.htm
