1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Francis Parriman
v
Waardi Limited
(U2023/9114)
DEPUTY PRESIDENT O'KEEFFE PERTH, 5 FEBRUARY 2024
Application for relief from unfair dismissal – jurisdictional objection – does not meet
minimum employment period – jurisdictional objection dismissed.
[1] On 20 September 2023, Mr Francis Parriman (the Applicant) made an application to the
Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a
remedy, alleging that he had been unfairly dismissed from his employment with Waardi Limited
(the Respondent). The Respondent has objected to the FWC dealing with the matter on the basis
that the Applicant does not meet the minimum employment period, the dismissal was a case of
genuine redundancy and the Respondent is a small business and complied with the Small
Business Fair Dismissal Code. Before dealing with the second and third of the jurisdictional
objections, the FWC must first determine that the Applicant is a person protected from unfair
dismissal.
Permission to appear
[2] The Applicant sought to be represented before the FWC by a paid agent. The
Respondent did not object to the Applicant being represented. The Applicant made submissions
addressing s.596(2) of the FW Act outlining the Applicant’s lack of experience with formal
court or tribunal proceedings and the FW Act and submitted that the matter could be dealt with
more efficiently if representation were allowed. I accepted that this was the case, and I exercised
my discretion to allow the Applicant to be represented. The Respondent did not seek to be
represented.
Witnesses
[3] The Applicant gave evidence on his own behalf, but the Respondent advised that it did
not require the Applicant for cross-examination. The Respondent chose to rely upon its
submissions and did not call any witnesses.
[2024] FWC 285
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 285
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Has the Applicant been dismissed?
[4] A threshold issue to determine is whether the Applicant has been dismissed from their
employment.
[5] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the
Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because
of conduct, or a course of conduct, engaged in by the Respondent.
[6] Section 386(2) of the FW Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[7] There was no dispute and I find that the Applicant was an employee of the Respondent
and his employment was terminated at the initiative of the Respondent.
[8] I am therefore satisfied that the Applicant has been dismissed within the meaning of
s.385 of the FW Act.
Initial matters
[9] Under section 396 of the FW Act, the FWC is obliged to decide the following matters
before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
and
(d) whether the dismissal was a case of genuine redundancy.
[10] For the purposes of this initial hearing, the FWC was considering only the first two of
these criteria, albeit that the issue of whether the Respondent is a small business was required
to be considered to determine the relevant minimum employment period.
Was the application made within the period required?
[11] Section 394(2) requires an application to be made within 21 days after the dismissal
took effect.
[12] It is not disputed and I find that the Applicant was dismissed from his employment on
30 August 2023 and made the application on 20 September 2023. I am therefore satisfied that
the application was made within the period required in subsection 394(2).
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Was the Applicant protected from unfair dismissal at the time of dismissal?
[13] Section 382 of the FW Act provides that a person is protected from unfair dismissal if,
at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or
her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if
any) worked out in relation to the person in accordance with the regulations,
is less than the high income threshold.
Modern Award Coverage / Applicant’s annual rate of earnings
[14] In its initial submissions, the Respondent noted that the Applicant had claimed his
employment was subject to the Aboriginal Communities and Organisations Western Australian
Interim Award 2011 (the Interim Award) and further noted, correctly, that this was an award
made by the Western Australian Industrial Relations Commission. The Respondent submitted,
again correctly, that as the Respondent is a national system employer, the Interim Award could
not cover the Applicant’s employment. The Respondent further submitted that there was no
modern award in the national system that could possibly cover the Applicant’s employment and
that as a consequence the FWC did not have jurisdiction in this matter. However, at the hearing
the Respondent indicated that it was not continuing to pursue that objection.
[15] Although there was some contention over the Applicant’s annual rate of earnings, at
hearing the Respondent conceded that the figure, even taken at its highest, was less than the
high income threshold of $167,500 per annum.
Minimum employment period
[16] It was not in dispute and I find that the Respondent is a small business employer, having
fewer than 15 employees at the relevant time and, as such, the required minimum employment
period as per s.383(b) of the FW Act is one year.
[17] The Respondent claims that the Applicant does not meet the minimum employment
period of one year.
Submissions and Evidence
[18] The Respondent’s initial written submissions were that the Applicant had been
employed on a series of fixed term contracts, the first of which covered the period 6 April 2021
to 30 June 2021. The Respondent submitted that the next contract was for the period 1 July
2021 to 31 March 2022. The Respondent conceded that as these two contracts were, to use its
expression “back to back”, then the Applicant’s employment for the entirety of that period could
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be said to be continuous. However, the Respondent further submitted that after the expiry of
the second contract, there was a period of three months during which there was no employment
contract with the Applicant, notwithstanding that he continued to work for the Respondent on
what it describes as a casual basis.
[19] The Respondent submitted that this period should not, consistent with the provisions of
s.384(2) of the FW Act, be treated as service for the purposes of calculating the Applicant’s
period of employment. The Respondent drew my attention to s.384(2)(a)(ii), which requires
that for service as a casual employee to count towards a period of employment, the casual
employee, during the period of service as a casual, must have a had a “reasonable expectation
of continuing employment by the employer on a regular and systematic basis.” The Respondent
submitted that the Applicant was aware that his position, consistent with the Respondent’s
policy, would be advertised and was in fact present during the discussion where the decision to
do so was canvassed. As such, he could not, it was submitted, have had an expectation of
continuing employment, as the public recruitment process involved opening the job up to other
applicants, conducting interviews and shortlisting candidates. Although the Applicant was
successful in being employed for the position, the Respondent submits that he was issued with
a new fixed term contract, with a commencement date of 1 September 2022 and an express end
date of 31 July 2024. Given that the Applicant’s employment was terminated one day short of
one year into that contract, the Respondent submits that the Applicant does not meet the
required minimum employment period of one year.
[20] In summarising its position, the Respondent sought to emphasise what it considered to
be a break in the Applicant’s service between the second and third fixed term contracts, stating
as follows:
“…whilst no formal action was taken to end Mr Perriman’s (sic) employment, and he
may well have continued to attend the place of work and to be paid, it is clear that his
employment had come to an end and for a period of three months there was no
employment contract in operation.”
[21] The Respondent submitted into evidence copies of the three employment contracts it
claimed covered the Applicant’s employment. The first contract, which was unsigned by either
party, was dated 1 April 2021 and provided for a fixed term appointment commencing 6 April
2021 and ending on 30 June 2021. The second of these contracts, which was unsigned by either
party, was dated 29 June 2021 and indicated that the contract was for a fixed term, commencing
1 July 2021 and ending on 31 March 2022. The third of the contracts, which was also unsigned
by either party, was dated 1 September 2022 and indicated that the contract was for a fixed
term, commencing 1 September 2022 and ending on 31 July 2024.
[22] The Applicant submitted that he did meet the minimum employment period of one year
on the basis that his employment with the Respondent had been continuous between 6 April
2021 and 30 August 2023.
[23] In support of this submission, the Applicant entered into evidence copies of three
employment contracts. The first contract was identical to the first contract provided by the
Respondent and described in paragraph [21] above. The third contract was identical to the third
contract provided by the Respondent and described in paragraph [21] above. However, the
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second contract differed from the second contract provided by the Respondent. The second
contract entered into evidence by the Applicant, which was signed by both parties, was dated
11 March 2022 and indicated that the contract was for a fixed term, commencing 1 July 2021
and ceasing on 31 August 2022.
[24] In addition to this evidence, the Applicant submitted a payroll activity statement that
outlined the payments made to him in the period 1 April 2021 to 8 December 2023. That
activity statement demonstrated that he had been paid a salary every fortnight during that
period. While the amount changed over the period, it was the case that for the period between
April 2022 and September 2022, being the period where the Respondent submitted the
Applicant had been a casual employee, the amount was $4,091.23 for each fortnight, save for
one fortnight where the amount was $4,087.64 and one fortnight where the amount was
$4,154.19. At the hearing, the Respondent conceded that the payroll activity statement was
correct and had been provided by its accountants.
[25] At the hearing, I questioned the Respondent about the second employment contract
submitted into evidence by the Applicant, being the contract dated 11 March 2022. The
Respondent conceded that although it had been unaware of the existence of that document and
had concerns that it did not properly reflect the decisions of the Respondent’s board of directors,
it was nonetheless a genuine contract signed by the chairman of the Respondent’s board and
countersigned by the Applicant. As such, it was conceded that this contract covered the period
between 31 March 2022 and 31 August 2022, which the Respondent had previously submitted
was a period where there was no contract and the Applicant had been engaged on a casual basis.
[26] Notwithstanding this concession, the Respondent submitted at hearing that although the
fixed term contracts were contiguous and as such, from a practical perspective the Applicant’s
employment had been continuous from 6 April 2021 to 30 August 2023, from a legal
perspective I should regard each contract as a separate and distinct period of employment. As
a result, the Applicant’s service at the time of his termination on 30 August 2023 should only
be considered to have been from 1 September 2022, being the commencement of what was at
that point his current fixed term contract.
[27] This submission was something of a departure from the Respondent’s written
submissions, but it was clear that it formed the basis of the Respondent’s revised jurisdictional
objection. However, it was a line of argument not previously presented to the Applicant and
one that the Applicant did not accept, albeit that the Applicant was not in a position at hearing
to provide me with any case precedent to rebut the contention. As such, I directed the parties
to provide supplementary written submissions addressing this issue and to provide me with
references to any authorities in support of their position.
[28] In its supplementary submissions, the Respondent sought to emphasise that the three
contracts entered into with the Applicant ought to be considered as separate and distinct periods
of employment. Further, the Respondent submitted that I should be mindful of the
circumstances into which each of those contracts were entered. Specifically, the first contract
arose when the Applicant offered to step in to replace the former CEO who had resigned. The
first extension contract was offered in a situation where there was much uncertainty about the
future of the Respondent organisation and the Applicant had expressed some reservations
regarding continuing in the role due to family commitments. The second contract extension
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had been made following an open recruitment process whereby the Applicant had, in the first
instance, indicated he would not be a candidate for the position but had later changed his mind
and applied. The Respondent contended that notwithstanding that, the Applicant had ultimately
made an application and been successful:
“…when Waardi made a decision to advertise the role publicly and to go through an
external recruitment process in preparation for the termination (by the terms of the
employment contract in play) and any subsequent employment was a new beginning.”1
[29] The Respondent’s submission was that the circumstances surrounding the offering of
the contract extensions and the fact that contracts expired as per their stated expiry dates meant
that the Applicant’s employment could not be regarded as continuous. In support of this
proposition, the Respondent cited the findings of the Full Bench in Department of Justice v
Lunn (Lunn) as follows:
“When a contract for a specified period or an 'outer limit' contract reaches the nominated
end date, the contract terminates through the effluxion of time and there is no
termination of employment at the initiative of the employer…”2
“A particular consequence of the fact that the law of employment in the modern era rests
on contract is that, with some qualifications and subject to any statutory provisions to
the contrary, ordinary contractual principles apply in relation to employment contracts.
A fundamental feature of the general law of contract, applicable in relation to the
contracts of employment, is that the intention of the parties is determined objectively
and, indeed, evidence of the subjective intention of the parties is not admissible in
construing a contract. Subjective intention is relevant in determining whether the parties
to a written document intended to create binding legal rights and obligations but it is
not determinative and the objective test will prevail where, to all outward appearances,
there was an intention to create legal relations.”3
[30] The Respondent also cited the findings of Vice President (as he then was) Hatcher and
Commissioner Saunders in Khayam v Navitas English Pty Ltd (Navitas) as follows:
“The primary question which arises for consideration in the appeal is whether the
interpretation and application of s 386(1)(a) should continue to be guided by the AIRC
Full Bench decision in Lunn. At the outset it is necessary therefore to determine what
propositions Lunn can be characterised as standing for. As earlier noted, there was
considerable disagreement in the parties’ submissions about this. We consider that Lunn
can be regarded as standing for at least the following propositions:
(1) the expression “termination of employment at the initiative of the employer”
in s 170CB of the WR Act as it then was bore its “ordinary meaning” and
referred to the termination of a contract of employment, not the termination of
the employment relationship
(2) the High Court decision in Victoria v The Commonwealth was authority for
the proposition that when a time-limited contract reached its nominated end
date, the contract terminated through the effluxion of time and there was no
termination at the initiative of the employer for the purpose of the WR Act;
[2024] FWC 285
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(3) in the application of s 170CB, time-limited employment contracts were to be
given effect according to their terms, unless “one of the well-established
categories of exception is established” (which appear to include by reference to
the passage quoted in Lunn from the High Court decision in Equuscorp Pty Ltd
v Glengallan Investments Pty Ltd whether the agreement is capable of
rectification by a court, whether the agreement was signed by a party under a
misapprehension about its character or otherwise executed by mistake, or
whether the execution of the agreement was procured by misrepresentation as to
its contents or effect), or the contract is a sham; and
(4) a sham contract is one which the parties intend should not have the legal
effect which it appears to have, and there was no independent test of “strong
countervailing factors” as suggested in the decision of the Industrial Relations
Court of Australia (Marshall J) in D'Lima v Board of Management, Princess
Margaret Hospital for Children.4
[31] The Respondent also drew my attention to the finding of the Full Bench in Marsh v
Macquarie University,5 which it noted was:
“…a case of university employee that (sic) had been employed on a series of fixed term
contracts. The university notified the employee that her employment would end when her
then current contract expired. At first instance, the Commission found the employee had
been engaged under a contract of employment for a specified period of time. The member
at first instance also rejected the employee's evidence that when she commenced with
the university she was told that if she performed satisfactorily she could consider herself
a continuing member of staff. On appeal, the employee argued that in the circumstances
she was a continuing employee whose employment was terminated by the university by
reason of the fact that she was not offered a further contract of employment. The Full
Bench rejected this argument.6
[32] In summarising its position, the Respondent contended as follows:
“There is a pattern of decisions in both the casual employment arena but also in respect
of end to end or rolling fixed term contracts to give weight to the question of “an
expectation of ongoing employment.” Whilst this is a required consideration for casual
employees seeking relief from unfair dismissal there is no statutory requirement for an
employee employed under a fixed term or maximum duration contract. In this case
there is no question that Mr Parriman had any basis for anticipating ongoing
employment beyond the term of the contract. Furthermore in the juncture that this issue
turns on (the transition from Contract 2 to Contract 3) Mr Parriman had clearly
indicated to Directors that he would not be an applicant right up to the day that
applications closed.
At the expiration of the last two fixed or maximum term contracts the position was
advertised, and a recruitment process ensued. Therefore, there was no expectation of
ongoing employment on the part of Mr Parriman.”7
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[33] In seeking to address the Applicant’s contention that the employment relationship
should be regarded as continuous on the basis of the payments made to the Applicant, the
Respondent essentially reiterated its points regarding expectations of ongoing employment but
also sought to emphasise that the ending of the fixed term employment contracts ended the
employer-employee relationship at that point. In support of this, the Respondent cited as
follows:
“Bearing all these matters in mind, and given that the courts have sometimes recognised
the possibility of a difference between a termination of employment and a termination
of the contract of employment, it seems preferable to treat the words "termination of ...
employment" in Division 3 of Part VIA of the Industrial Relations Act as including any
act that brings to an end the employer-employee relationship, whether or not the act, or
any acceptance of it, also brings to an end the contract of employment.”8
“In Mohazab v Dick Smith Electronics Pty Ltd a Full Court of the Industrial Relations
Court also stated, consistent with Siagian, that the expression “termination of the
employment” was to be understood as referring to the termination of the employment
relationship.”9
“To my mind, the answer is that the employment terminated as and when it did by reason
of the agreement of the parties, made a year earlier, that it should so terminate. The
decision of the employer not to make a fresh, “contiguous, fixed-term appointment” of
the employee did not and could not affect that fact: 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.”10
[34] The Respondent concludes its submission as follows:
“Assuming that the Full court (sic) chose its words carefully we note that they do not
refer to establishing or creating a continuous employment relationship in this
circumstance. In fact all of the authorities are consistent in saying that at the conclusion
of a fixed or maximum term contract the employment comes to an end based on the
terms of the agreement so made. Any subsequent contract, of any kind, commences a
new employment relationship and this is completely in keeping with the intent of
s384(1) and s386(2).
If the end of a fixed or maximum term contract signals both the end of the contract of
employment and the employment relationship then there is nothing binding the parties
until a new contract and relationship is entered into, if that in fact is what happens. S
384 refers to (1) An employee's period of employment with an employer at a particular
time is the period of continuous service the employee has completed with the employer
at that time as an employee. The Applicant is arguing that we should entertain including
a period in which there is no employee, no employer or employee-employer
relationship, however brief, as somehow ‘jumping the puddle’ between two distinct
periods of employment and joining two distinct employment contracts as if they were
one.
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In summary we say that this is precedence for the view that payment of wages does not
in itself cement the employment relationship except in special categories of employment
which are not relevant to this case. Furthermore, the employment relationships (and
therefore service) are defined by Contracts 1, 2 and 3 as distinct and stand-alone events
and on that basis the Applicant does not meet the minimum employment period.”11
[35] In his supplementary submissions, the Applicant firstly noted that section 382 of the FW
Act is concerned with an employee’s period of employment. In his submissions, the period of
employment was the period of service with the Respondent which commenced on 6 April 2021.
The Applicant noted that the FWC has given careful consideration to the issue of “outer limit”
contracts of employment and how these should be regarded for various purposes of the FW Act.
While noting that it was not precisely on point, the Applicant noted the decision of the FWC in
Navitas, citing in part as follows:
“Having regard to these propositions and the court decisions to which we have earlier
referred, we consider that s 386(1)(a) should be interpreted and applied as follows:
(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.
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(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.”12
[36] The Applicant submitted that the principles set out in paragraph [75] of Navitas were
sound, clearly delineated the line between employment contract and employment relationship,
and could be adopted in the present matter.
Consideration
[37] The issue to be decided in this initial hearing was whether the Applicant met the
minimum employment period. The relevant sections of the FW Act are as follows:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment
with his or her employer of at least the minimum employment period;
and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the
employment;
(iii) the sum of the person's annual rate of earnings, and such other
amounts (if any) worked out in relation to the person in
accordance with the regulations, is less than the high income
threshold.
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383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at
the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that
time.
383 Period of employment
(1) [Meaning of period of employment] An employee's period of
employment with an employer at a particular time is the period of
continuous service the employee has completed with the employer at that
time as an employee.
(2) When casual employment counts toward period of
employment] However:
(a) a period of service as a casual employee does not count towards the
employee's period of employment unless:
(i) the employment as a casual employee was as a regular casual
employee; and
(ii) during the period of service as a casual employee, the
employee had a reasonable expectation of continuing
employment by the employer on a regular and systematic
basis; and
(b) if:
(i) the employee is a transferring employee in relation to a
transfer of business from an old employer to a new employer;
and
(ii) the old employer and the new employer are not associated
entities when the employee becomes employed by the new
employer; and
(iii) the new employer informed the employee in writing before the
new employment started that a period of service with the old
employer would not be recognised;
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the period of service with the old employer does not count towards the
employee's period of employment with the new employer.
[38] In summary, and given it was not disputed that the Respondent was a small business,
the Applicant must have completed a period of employment of one year. As per section 384(1)
the period of employment is the employee’s period of continuous service. Continuous service
is defined in the FW Act at section 22 as follows:
General meaning
(1) A period of service by a national system employee with his or her national
system employer is a period during which the employee is employed by the
employer, but does not include any period (an excluded period) that does
not count as service because of subsection (2).
(2) [Exceptions to meaning of service] The following periods do not count as
service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2-2 (which deals with
community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise
agreement that applies to the employee, or under the employee's
contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the
regulations;
(c) any other period of a kind prescribed by the regulations.
[39] There is no submission or evidence that there were any periods during the Applicant’s
employment that fall within the scope of section 22(2)(a) or (b) and the regulations do not
prescribe any other periods. As such, the question to be answered is the period during which
the Applicant was employed by the Respondent.
[40] I am not persuaded by the submissions of the Respondent. I find that much of what was
argued revolved around concepts relevant to determining if an employee had been terminated
at the end of a fixed term contract, such as ongoing expectations. In this matter, I do not need
to look forward to determine what the Applicant’s expectation may have been had the contract
under which he was engaged at the time of his termination been allowed to run its course. Nor
do I need to examine what the attitudes of the parties were at the time of the renewal of the
fixed term contracts: the facts are clear that the parties freely and deliberately entered into new
contracts of employment. I need instead to look backwards and determine if he was employed
by the Respondent for at least a year. Clearly, if the extent of this examination were to find that
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the contract entered into on 1 September 2022 comprised the entirety of his employment with
the Respondent, then he does not meet the minimum employment period.
[41] However, I do not find this to be the case. I find instead that the period during which the
Applicant was employed by the Respondent commenced on 6 April 2021 and ended with his
termination on 30 August 2023, being a period in excess of one year. My reasons for this
conclusion are as follows. As both parties have identified, the issue of employment contract,
employment relationship and period of employment have been examined at some length and it
is possible to find competing contentions on the relevance and meaning of each. In this matter,
I am looking to the employment relationship and I am guided primarily by three propositions.
The first is drawn from Navitas. The relevant section is as follows, with my emphasis:
“Having regard to these propositions and the court decisions to which we have earlier
referred, we consider that s 386(1)(a) should be interpreted and applied as follows:
(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…”13
[42] It is clear from the above statement that the majority of the Full Bench acknowledges
that an employment relationship can be comprised of a sequence of time-limited contracts, as
is the case with the Applicant. Secondly, I note the findings of the Full Bench in Lunn, as cited
in Navitas which states in part as follows, again with my emphasis added:
“Whatever may have been the position in the past, under the modern law, there can be
no employment relationship without there also being a contract of employment in
existence between the parties to the employment relationship. However, as the Full
Court of the Federal Court in Brackenridge v Toyota Motor Corporation Australia
Ltd made clear, the termination of a contract of employment does not necessarily
result in the termination of the employment relationship between the parties to that
contract of employment: if the parties enter, or are taken to have entered, a new
contract of employment of employment, the employment relationship continues
notwithstanding the termination of the prior contract of employment. Thus,
a "continuous employment relationship" is not inconsistent with a series of back-to-back
fixed term or 'outer limit' contracts, each of which takes effect according to its terms.14”
[43] Again, it can be seen that an employment relationship can be comprised of multiple
contracts of employment and the making of a new contract to replace an old contract does not
sever the employment relationship. When considering an employee’s service with an employer
for the purposes of section 22 of the FW Act, I find that it is the employment relationship that
must be considered. I can see nothing in that section that suggests that where an employee has
a series of contiguous employment contracts, they should each be taken to be a discrete period
of service.
[2024] FWC 285
14
[44] Thirdly, I note the finding of the Full Bench in Automotive, Food, Metals, Engineering
Printing and Kindred Industries Union v Donau Pty Ltd, where in considering the period of
service for the purposes of redundancy, the Full Bench noted as follows:
“…A period of continuous service as defined by s.22 of the Act includes a period of
regular and systematic casual employment.”15].
While there is no suggestion that the Applicant was engaged as a casual, it seems to me that
this finding by the Full Bench stands in opposition to the principle in the Respondent’s
argument regarding employment contracts versus employment relationships. In the case of a
casual employee, the FWC has found:
“As a matter of the common law of employment, and in the absence of an agreement to
the contrary, each occasion that a casual employee works is viewed as a separate
engagement pursuant to a separate contract of employment.”16
As such, it is clear that a casual employee who meets the definition of regularly and
systematically employed is subject to a new contract on each occasion he or she works, but can
still be found to have a period of continuous service. It is also clear that an employee who has
an employment history where there is a mix of casual and permanent employment can still be
regarded as continuously employed throughout the changes in contract status. If this is indeed
the case, it logically follows that the Applicant, who had a contiguous series of full time
employment contracts must also be deemed to have had continuous service during the entire
period of those contracts, which is consistent with the propositions set out in paragraphs [41]
and [42] above.
[45] For the reasons set out above, I therefore find that the Applicant had a period of
continuous service with the Respondent which commenced on 6 April 2021 and ended on 30
August 2023. As this period of employment is in excess of one year, the Applicant meets the
minimum employment period. The Respondent’s jurisdictional objection of not meeting the
minimum employment period is dismissed. The matter will be listed to consider the other
jurisdictional objections and the merits of the case.
DEPUTY PRESIDENT
Appearances:
P Mullally, Applicant.
T Noonan, Respondent.
TE FAIR WORLE SOMECCION
[2024] FWC 285
15
Hearing details:
Heard at Perth on 10 January 2024
Printed by authority of the Commonwealth Government Printer
PR770938
1 Respondent Supplementary Submissions, page 2 at [7].
2 Department of Justice v Lunn [2006] AIRC 746 [10].
3 Ibid [29].
4 Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 [31].
5 Marsh v Macquarie University (2005) 147 IR 401; [PR963299] 30 September 2005.
6 Respondent Supplementary Submissions, pages 3-4 at [19].
7 Respondent Supplementary Submissions, page 4 at [20]-[21].
8 Decision of Wilcox J in Siagian v Sanel Pty Ltd [1994] IRCA 1 (Siagian), cited in Navitas at [34].
9 Navitas [37].
10 Decision of Madgwick J in Fisher v Edith Cowan University (1996) 70 IR 206, cited in Navitas at [56].
11 Respondent Supplementary Submissions, page 5 at [26]-[28].
12 Navitas [75].
13 Navitas [75].
14 Ibid [17].
15 Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v Donau Pty Ltd [2016] FWCFB 3075
[18].
16 Wayne Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709 [10].
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr963299.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb3075.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5709.htm
