1
Fair Work Act 2009
s.365—General protections
Narelle Wilson
v
Commonwealth of Australia as Represented by Australian Electoral
Commission
(C2023/7610)
DEPUTY PRESIDENT DOBSON BRISBANE, 1 MARCH 2024
Application to deal with contraventions involving dismissal – jurisdictional objection – no
dismissal – fixed term contract - jurisdictional objection upheld – application was not
dismissed - application dismissed.
[1] Ms Narelle Wilson (the Applicant) lodged a general protections application involving
dismissal to the Fair Work Commission (the Commission) on 5 December 2023. The Applicant
claimed that adverse action was taken against her by Australian Electoral Commission (the
Respondent) under ss.340 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Respondent raised a jurisdictional objection that the Applicant was not dismissed.
For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need
to establish that she was dismissed in accordance with the definition in s.386 of the Act.
[3] Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v
Milford,1 the Commission must determine whether the Applicant was dismissed before it can
exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was
dismissed in contravention of the general protections provision.
[4] The matter was heard by video using Microsoft Teams on 13 February 2024.
[5] The Applicant filed the application and listed the Respondent as “Australian Electoral
Commission”. The Respondent filed their Form F8a Response and specified that the correct
entity is “Commonwealth of Australia as Represented by the Australian Electoral
Commission”. I sought the views of the parties at the hearing, who consented to the amendment
and have determined to exercise my discretion pursuant to s586 of the Act to amend the
Application.
[2024] FWC 573
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 573
2
Background
[6] The Respondent is the statutory authority responsible for maintaining an impartial and
independent electoral system for eligible voters.
[7] The Applicant commenced employment with the Respondent on 11 September 2023
under section 22 of the Public Service Act 1999 (Cth) as an APS 6.2 employee on a ‘non-
ongoing’ basis. On 14 November 2023, the employment of the Applicant came to an end.
Permission to appear
[8] Both parties sought to be represented before the Commission by a lawyer.
[9] Relevantly, section 596(1) of the FW Act provides that a party may be represented in a
matter before the Commission by a lawyer or paid agent only with the permission of the
Commission.
[10] Section 596(2) provides that the Commission may grant permission for a person to be
represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the
complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is
unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account
fairness between the person and other persons in the same matter.
[11] The decision to grant permission is not merely a procedural step but one which requires
consideration in accordance with s.596 of the FW Act.2 The decision to grant permission is a
two-step process. First it must be determined if one of the requirements in s.596(2) have been
met. Secondly, if the requirement has been met, it is a discretionary decision as to whether
permission is granted.3
[12] I considered the submissions made by both parties on the basis that:
• Allowing the parties to be represented would permit the matter to be dealt with more
efficiently as the Respondent has raised a jurisdictional objection and the complexity
of the matter; and
• it would be unfair not to allow the Applicant to be represented because the Applicant
is unable to represent herself effectively; and
• the fairness between the parties both seeking to be represented4.
[2024] FWC 573
3
[13] Accordingly, at the hearing on 13 February 2024, the Applicant was represented by Mr
Gary Scott of Scott Kustom Law and the Respondent was represented by Ms Stephanie
Cheligoy of counsel, instructed by Ms Diana Diaz of Gadens.
Applicant’s Submissions
[14] The Applicant filed submissions on 31 January 2024 in response to those filed by the
Respondent. During the Hearing, the Respondent highlighted that the submissions provided
included what was proposed to be evidence but had not been contained within a witness
statement. The Applicant sought that certain paragraphs of her submissions be considered to be
her witness evidence. The Respondent did not object to the Applicant admitting these
paragraphs in the interest of advancing the matter.
[15] The Applicant stated that she had been employed for three specific tasks to be carried
out over the period of 11 September 2023 to 5 April 2024. The first task being carrying out her
role as a team leader in the administration of the Referendum. The second task, the Applicant
says, was leading a team in planning and preparing for the next federal election. Finally, the
third task was the offer or request that the Applicant says the Respondent made in relation to a
permanent position, fulfilling a vacancy of the Divisional Returning officer role (DRO) or
Divisional Office Manager (DOM) outside an election period.
[16] The Applicant acknowledged that the first task was in respect of the 2023 Referendum.
On 11 September 2023, the Governor-General issued a writ that the date of the Referendum
would be 14 October 2023, with a return date of on or before 20 December 2023 (writ period).
The Applicant stated that because the Referendum Writ period is a set timeframe, a contract
ending in April 2024 indicates that work with the Respondent would proceed beyond the
Referendum. The Applicant stated that she considered that if her employment was to only
involve the 2023 Referendum, then the contract period should have been much shorter than 5
April 2024.
[17] The Applicant stated that the contract was partly in writing and partly verbal. The tasks
that the Applicant says she was contracted to perform, were additional to just the “planning and
preparation for a potential referendum” as per the letter from the Respondent to the Applicant.
The Applicant stated that the tasks also included leading a “team in planning and preparing for
the next federal event”. The verbal aspect of the contract was a conversation with the Applicant
at the time the position was offered. The Applicant stated that Ms Manchip of the Respondent,
represented that the position available was a permanent role to fill a vacancy. The Applicant
stated that when she was introduced to the staff in the Cairns Leichardt Office, that she was
introduced as replacing the outgoing employee in the DRO role at the conclusion of the writ
period.
[18] The Applicant stated that she had been employed for a 7 month contract which was not
reliant on the writ period or writ budget and her work was tied to the planning, preparation and
logistics to lead the team in preparation for the upcoming Federal Election in 2024.
[19] The Applicant stated that if her contract was solely to complete tasks for the
Referendum, then it would have had a conclusion date in December. The Applicant stated that
she had seen an advertisement on SEEK with the Respondent within two weeks of her being
[2024] FWC 573
4
informed that she was “excess to requirements”. The Applicant stated that this role was to
replace her position as Team Leader/DRO/DOM.
[20] The Applicant stated that she had accepted employment on the basis that the offer had
been for a specific period from 11 September 2023 to 5 April 2024. The Applicant stated that
she had been employed for three specific tasks expressly in the written words of “planning and
preparation for a potential referendum” and “lead your team in planning and preparing for the
next federal event” and finally the verbal representations of Ms Manchip. The Applicant’s
position is that she was not allowed to carry out all the specific tasks for which she had been
employed and that she had been dismissed prior to the period specified in her contract.
[21] The Applicant alleges that she had been dismissed because she, along with other staff,
had raised serious formal complaints of bullying and harassment in the workplace. The
Applicant states that she had never been given the results of the investigation into these
complaints and had suffered psychological impacts because of these actions. The Applicant
also raised complaints about her salary and that she had not been offered the DRO/DMO
position when it became vacant.
Respondent’s Submissions
[22] The Respondent filed submissions on 24 January 2024 and included witness statements
from the following:
• Ms Catherine Dalton – Director of Operations for Queensland
• Ms Angela Manchip – Assistant Director Operations
[23] The Respondent submitted that the Applicant had been employed for a specific task, had
not been dismissed and that her employment ended on the completion of the task. The
Respondent therefore submitted that the Commission’s Jurisdiction to deal with a dispute
pursuant to s365 of the Act had not been enlivened5. The Respondent referred to the
Explanatory Memorandum to the Fair Work Bill 2009 (Cth) in that it confirmed that the
intention of subsection 386(2) of the Act was that a person would not be dismissed if they had
been employed under a contract of employment for a specified task and that the employment
would be terminated on the completion of the task.
[24] The Respondent submitted that they did not dismiss the Applicant, and that her
employment ended following the completion of the specified task for which she had been
employed. The Applicant’s contract was for the position of Team Leader (Agile) and provided
that she was employed as a “Non-Ongoing, Specified Task” employee pursuant to s22(2)(b) of
the Public Service Act 1999 (Cth). The Respondent submitted that the contract also included
the following terms:
“By accepting this offer of employment, you acknowledge that you are being employed
for a specified task, specifically, the planning and preparation for a potential
referendum.”6
“Your employment with the AEC will cease on the Contract Expiry Date, unless your
employment is otherwise terminated in accordance with this contract.” 7
[2024] FWC 573
5
“3.2 Termination of a non-ongoing APS employee occurs where the employee’s
employment is terminated by either party before the Contract Expiry Date, or before the
completion of the specified task for which the person was engaged. Early termination
by the AEC must comply with the relevant provisions of the Public Service Act 1999
(PS Act) and be consistent with the requirement to uphold the APS Values and APS
Employment Principles. This means that your non-ongoing engagement may be
terminated, with or without cause, by either you or the AEC by written notice with
immediate effect.” 8
“3.6 Your non-ongoing employment may be terminated by the AEC by written notice for
the following grounds: a. You are undertaking a role, in relation to the specified task for
which you have been engaged, that is no longer required by the AEC, …”9
[25] The Respondent submitted that the expiry date of 5 April 2024 provided an outer limit
which afforded sufficient time for the task to be completed and was indicative of the lack of
certainty regarding the timing of the referendum when the Applicant was employed. The
Respondent submitted that despite this outer limit, the contract confirmed that the employment
was for a specific task, and that the Applicant had been offered and accepted employment on
that basis.
[26] The Respondent submitted that their evidence reflects that the Applicant had been
employed for a specific task in that:
(a) although the specified task was by necessity linked directly to the AEC’s project
(being delivery of the 2023 Referendum), Ms Wilson was employed for a specified
task which was clearly defined in express words as the “planning and preparation
for a potential referendum”;
(b) the task was a discrete piece of work required only for the purposes of delivering the
2023 Referendum and was not otherwise a task that was required by the AEC at
other times, and in that sense, the task can be distinguished from a role or job that
may be required to be performed on an ongoing basis for an indefinite period of
time;
(c) the specified task that Ms Wilson was employed to perform was sufficiently definite
in its nature and delineation such that the AEC was able to identify when the task
was completed by Ms Wilson in a clear and predictable manner, without doubt or
speculation or contingency – this is evident in the process undertaken by the AEC
once the 2023 Referendum writ was returned when it identified the specific
cessation date for each surge employee based on whether each employee had
completed the task for which they had been employed.
Ms Dalton’s Witness Statement
[27] Ms Dalton provided a witness statement as the Director of Operations for Queensland.
Ms Dalton oversees operations for all electoral events, including matters relating to staffing,
premises and event delivery. Ms Dalton stated that given the nature of the work that the
[2024] FWC 573
6
Respondent performs for electoral events, from time to time, they need to engage staff in ‘surge’
roles. These roles are only required for specific events and are considered to be non-ongoing.
[28] In relation to the Applicant’s role, Ms Dalton stated that she had attended meetings as
part of her role to discuss the preparation for the 2023 Referendum. Ms Dalton stated that the
Respondent only needed the Team Leader (Agile) role to perform specific tasks during an
electoral event (such as the Referendum). Ms Dalton stated that she was aware that in April
2023, it had been identified that there was a need for a Team Leader (Agile) surge role in North
Queensland.
[29] Ms Dalton stated that by July 2023, the Respondent had been unsuccessful in identifying
a Team Leader (Agile) in their internal networks, and therefore decided to advertise the role
through the APS Gazette and to approach their labour hire providers. Ms Dalton, whilst not
involved in the recruitment process, had been informed that the Applicant had been successful
in obtaining the role and would commence employment on 11 September 2023.
[30] Ms Dalton provided her understanding of the cessation of the Applicant’s employment
with the Respondent and stated that the writ period had ended earlier than expected when it was
returned on 6 November 2023. Ms Dalton stated that she had not been directly involved in the
process leading to the Applicant’s employment cessation, however, was aware that the usual
process taken in Queensland involves the line manager having a conversation with each staff
member and sending an email confirming their role had ceased due to the completion of their
work for the delivery of the event.
Ms Manchip’s witness statement
[31] Ms Angela Manchip is employed with the Respondent in the role of acting Assistant
Director of Operations and overseas the operation and delivery in four Federal electoral
divisions. As part of her role, Ms Manchip stated that while she does not make decisions about
the number and type of surge roles required in her divisions, that she worked in the Queensland
State Office and was aware that decisions about surge roles were made based on the specific
needs of each region and electorate.
[32] Based on Ms Manchip’s experience working for the AEC during the 2022 Federal
election, she stated that she was aware that one of the key concerns relating to staff was ensuring
that the AEC had contingent staff available at the right level to provide back-up options in case
any of our Divisional Retuning Officers (DROs) left their employment or could not perform
their duties in the lead up to an electoral event. This is a key risk as the DRO position is a
statutory position and each electorate is required to have one DRO so that the AEC can deliver
an electoral event. Ms Manchip stated that she was also aware that the Respondent would need
to rely on a pool of APS6 “agile” staff to act as back up.
[33] In the lead up to the 2023 Referendum, Ms Manchip stated that she was aware that
Andrea Murphy, the DRO for the Leichhardt electorate, had indicated that she wanted to leave
her employment with the AEC and there would be a need for the AEC to have a staff member
available in her electorate who could act as a contingent DRO in case she decided to leave
during the 2023 Referendum process. She was also aware that the DRO in the Kennedy
electorate was relatively new to their role and would need support.
[2024] FWC 573
7
[34] On or about 23 June 2023, Ms Manchip stated that she was told that the Respondent had
received approval for APS surge positions. This meant she was permitted to employ two Team
Leader (Agile) employees on a non-ongoing (surge) basis to carry out work for the delivery of
the 2023 Referendum. The work of the Team Leader (Agile) roles was only required by the
AEC for the period leading up to the 2023 Referendum and for a period of time afterwards so
that the AEC could finalise operational matters following the referendum. The roles would also
be at the same APS level as the DRO to act as contingent or back up resources and take on DRO
duties in case the DROs in Leichhardt and Kennedy were unable to perform their statutory
duties.
[35] Ms Manchip was tasked to take part in the recruitment process for the two roles. She
stated that she initially reached out to multiple labour hire agencies to provide the AEC with
suitable candidates for the roles, but that process resulted in only a single interview and that
candidate did not accept the Respondent’s offer. Eventually the Respondent advertised the non-
ongoing role publicly in the Australian Public Service Gazette and Ms Manchip took part in
further interviews as part of a panel of AEC staff. On or about 15 August 2023, Ms Manchip
took part in an interview with the Applicant who had applied for the Team Leader (Agile)
position based in Cairns and working for the Leichhardt electorate. During the interview, Ms
Manchip stated that she told Ms Wilson that the Team Leader position she was being
interviewed for was a non-ongoing position and that the DRO for Leichhardt was expected to
resign. Ms Manchip stated that she did not want the Applicant to accept the contingent role and
find this information out after she started. Ms Manchip wanted to the Applicant know that she
would be likely to have to perform the contingent DRO duties at some point during her contract.
Ms Manchip also told the Applicant that the permanent DRO position was likely to be
advertised but that this would not happen until January 2024 at the earliest after the wrap up
Referendum activities had been completed. Ms Manchip stated that the Applicant told her that
she was interested in the permanent role.
[36] Ms Manchip stated that after the interview, Ms Wilson confirmed that she would be able
to start the Team Leader Agile non ongoing role after she returned form a holiday to Indonesia.
Ms Manchip therefore emailed the Respondent’s recruitment team telling them that the
Applicant was the successful candidate and asked them to prepare an employment contract for
Ms Wilson to perform the Team Leader (Agile) non-ongoing role. The Team Leader (Agile)
surge role is a pre-approved role that the Respondent knows will be required only for the
delivery of an electoral event, which means that offers are made on the basis that the employee
will be employed to perform a specified task, being the planning and preparation and delivery
for a potential referendum.
[37] Ms Manchip instructed the recruitment team to reflect the Applicant’s availability in the
starting date of the contract and that because the writ period had not yet been issued, they did
not know the exact date that the referendum would take place. From experience, Ms Manchip
stated that she knew that there would be a period following the referendum that would require
further work to be completed and that the Applicant’s role might be required until then. This
lead to the expiry date as being 5 April 2024. This would permit enough time for the tasks for
which she had been employed to be competed.
[2024] FWC 573
8
[38] In relation to the cessation of the Applicant’s employment, Ms Manchip stated that it
had been approximately 24 years since the previous referendum, and it had become clear that
the assumptions made by the Respondent regarding timetabling had not anticipated that the
counting of the votes would conclude so quickly.
[39] On 9 November 2023, Ms Manchip received an email from Cathy Dalton, Director of
Operations for the Respondent listing each of the surge roles in the Queensland operations team
and their proposed employment cessation dates. Ms Manchip provided input as to the
outstanding tasks for each surge role for which she was responsible however was not the final
decision-maker. Ms Manchip was aware that the cessation date for each surge role was different
because it depended on the work they were required to do within their specific electorate.
[40] On 14 November 2023, Ms Manchip met with the Applicant and informed her that her
non-ongoing Team Leader (Agile) position with the AEC would be ending because the
specified task she was employed for, being her work as a Team Leader (Agile) for the 2023
Referendum, was complete. During the meeting Ms Manchip thanked the Applicant for her
efforts supporting Leichhardt through the 2023 Referendum. Ms Manchip told the Applicant
that because the writ was returned early on 6 November 2023, funding for referendum positions
would be ending earlier than anticipated. Ms Manchip stated that she then told the Applicant
that her employment would be ending early in line with clause 3.6 of the Employment Contract
which states that the employment may end when an employee becomes excess to the
requirements of the AEC which resulted from the 2023 Referendum ending.
[41] Ms Manchip told the Applicant that she would be providing her with written notice
shortly, that she would not be required to work the two-week notice period in the Employment
Contract and that she would be paid in lieu of that notice period. Ms Manchip said to the
Applicant that today is her last day with the Respondent and that she can take a couple of hours
to finish up what she needs to. Ms Manchip stated that the Applicant said she was being kicked
out of the building. Ms Manchip refuted this and told the Applicant to take some time and to
please let her know when she was leaving. Ms Manchip also told the Applicant where to leave
her laptop, keys and pass. Later that same day, Ms Manchip sent the Applicant an email
confirming the cessation of her employment.
[42] Ms Manchip also provided a supplementary statement following the submission of the
Applicant’s material. Ms Manchip denied that she ever made a ‘verbal term or representation’
to the Applicant that she would be offered a permanent role to replace the resigning DRO. Ms
Manchip stated that she had told the Applicant that she was being hired for the non-ongoing
position and that the positions were needed for the preparation and delivery of the Referendum.
Ms Manchip denied having told the Applicant that she would be involved in a 2024 Federal
Election and that at the time of the hearing, the election still had not been called. Ms Manchip
stated that in telling the Applicant that the permanent role would be advertised, that she was not
offering the role and was rather explaining how the typical process would go.
[43] Ms Manchip denied that there was any announcement that the Applicant would be
replacing the DRO. Rather she had introduced her as taking over some of the duties of the DRO
when the current employee was not there and had been employed to assist in the planning and
preparation of the 2023 Referendum. Ms Manchip stated that in the lead up to the referendum,
she was aware that the current DRO had indicated her intention to leave. She was also aware
[2024] FWC 573
9
that the DRO had an approved period of leave during the Referendum. In the Applicant’s role
as Team Leader (Agile), the Applicant was expected to act as a contingent or back up DRO.
This was why Ms Manchip had introduced the Applicant in the way described. Ms Manchip
stated that it was not her intention to indicate that the Applicant would take over the DRO role.
Consideration
[44] Section 365 of the Act requires a person to be dismissed to be eligible to make a General
Protections application involving dismissal.
[45] Section 386(1) of the Act relevantly provides that 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.
[46] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v
Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee
to be terminated at the initiative of the employer.10 In short, it is not sufficient to simply
demonstrate that the employee did not voluntarily leave their employment.11
[47] While it may be that some action on the part of the employer is intended to bring the
employment to an end, it is not necessary to show the employer held that intention.12 It is
sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the
employment relationship to an end.13
[48] All the circumstances – including the conduct of both the employer and employee –
must be examined.14 In other words, it must be shown 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.
[49] The Respondent’s objection to the Application is on the basis that they say the Applicant
was not dismissed and that her employment came to an end upon the completion of the task for
which she had been employed. The Applicant contended that she had been employed for three
specific tasks and two of which were and continue to be on-going. Further, the Applicant stated
that there was a verbal term or representation given by the Respondent to her regarding an offer
of a permanent role to fill the vacancy of one of its employees. The Respondent rejected this
assertion.
[50] The bulk of the evidence provided is oral evidence by the Applicant and Respondent.
As a result, there are a lot of contentious facts. I reiterate the Briginshaw principle and the
assessment of fact on the balance of probabilities, Dixon J said:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an
actual persuasion of its occurrence or existence before it can be found. It cannot be
found as a result of a mere mechanical comparison of probabilities independently of any
[2024] FWC 573
10
belief in its reality. No doubt an opinion that a state of facts exists may be held according
to indefinite gradations of certainty; and this has led to attempts to define exactly the
certainty required by the law for various purposes. Fortunately, however, at common
law no third standard of persuasion was definitely developed. Except upon criminal
issues to be proved by the prosecution, it is enough that the affirmative of an allegation
is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is
not a state of mind that is attained or established independently of the nature and
consequence of the fact or facts to be proved. The seriousness of an allegation made, the
inherent unlikelihood of an occurrence of a given description, or the gravity of the
consequences flowing from a particular finding are considerations which must affect the
answer to the question whether the issue has been proved to the reasonable satisfaction
of the tribunal. In such matters “reasonable satisfaction” should not be produced by
inexact proofs, indefinite testimony, or indirect inferences.15
[51] I note that the Employment Contract of the Applicant included the following terms:
“By accepting this offer of employment, you acknowledge that you are being employed
for a specified task, specifically, the planning and preparation for a potential
referendum.”16
“3.1 Your employment with the AEC will cease on the Contract Expiry Date, unless your
employment is otherwise terminated in accordance with this contract.”17
“3.2 Termination of a non-ongoing APS employee occurs where the employee’s
employment is terminated by either party before the Contract Expiry Date, or before the
completion of the specified task for which the person was engaged. Early termination
by the AEC must comply with the relevant provisions of the Public Service Act 1999 (PS
Act) and be consistent with the requirement to uphold the APS Values and APS
Employment Principles. This means that your non-ongoing engagement may be
terminated, with or without cause, by either you or the AEC by written notice with
immediate effect.”18
“3.6 Your non-ongoing employment may be terminated by the AEC by written notice for
the following grounds: a. You are undertaking a role, in relation to the specified task
for which you have been engaged, that is no longer required by the AEC, …”19
[52] I further note that in executing the employment contract, the Applicant acknowledged:
“I accept the offer of a non-ongoing engagement with the AEC for a specified task and
agree to the commencement date of 11/09/2023 and cessation date of 5/04/2023.”20
[53] The Respondent submitted that the Contract Expiry Date was set as 5 April 2024 in
order to provide an outer limit that afforded sufficient time for the task required to be performed
by Ms Wilson in relation to the 2023 Referendum to be completed, and was indicative of the
lack of certainty regarding referendum timing before the writ was issued and potential delays
in finalising all aspects of the count which were not foreseeable at the time the Applicant was
engaged by the AEC.21
[2024] FWC 573
11
[54] The Respondent further submitted that despite the outer limit set by the Contract Expiry
Date, the Employment Contract for the Applicant confirmed that the employment was for a
specified task. The Applicant was offered and accepted employment on that basis.22
[55] The Applicant was employed for a specified task which was clearly defined “...you
acknowledge that you are being employed for a specified task, specifically, the planning and
preparation for a potential referendum.”23
[56] I am satisfied that given this background, the Employment Contract of the Applicant
reflects that her employment was on the basis of a specified task consistent with s.386(2)(a) of
the Act. The specified task was directly linked to the AEC project being the delivery of the
2023 Referendum.24
[57] Further, there was never any promise made that work would be ongoing for any
indefinite period. The specified task that the Applicant was employed to perform was
sufficiently definite in its nature and delineation such that the AEC was able to identify when
the task was completed by the Applicant in a clear and predictable manner, without doubt,
speculation or contingency – this is evident in the process undertaken by the AEC once the
2023 Referendum writ was returned when it identified the specific cessation date for each
surge employee based on whether each employee had completed the task for which they had
been employed.25
[58] I find that the Applicant’s employment came to an end upon completion of the specified
task for which she was engaged and as a result she was not dismissed pursuant to section
386(2)(a) of the FW Act.
[59] I am therefore satisfied that the employment did not end at the initiative of the employer.
[60] As such the Applicant’s general protection claim cannot continued because she was not
“an employee who was dismissed from [her] employment”.
[61] I dismiss Ms Wilson’s application lodged on 5 December 2023.
DEPUTY PRESIDENT
Appearances:
G.Scott from Scottkustom Law appearing for the Applicant.
S.Cheligoy of Counsel instructed by D.Diaz of Gadens on behalf of the Respondent
Hearing Details:
AIR WORT WORK COM boon + AUSTRALIA ISSION THE SEAL OFFLINE
[2024] FWC 573
12
9 October 2023
Hearing via Microsoft Teams
Brisbane
Printed by authority of the Commonwealth Government Printer
PR772013
1 [2020] FCAFC 152.
2 Warrell v Fair Work Australia [2013] FCA 291.
3 Ibid.
4 S.596(2)(c) of the Act
5 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, (2020) 279 FCR 591; (2020) 300 IR 146 at [67]-[69], [74]-[75]
6 Digital Court Book p.53.
7 Digital Court Book p53
8 Digital Court Book p57 [3.2].
9 Digital Court Book p58 [3.6]a.
10 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.
11 Ibid
12 Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works
Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
13 Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A
Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [31].
14 Whirisky v DivaT Home Care [2021] FWC 650at [77].
15 (1938) 60 CLR 336 per Dixon J, at pp.362-363
16 Digital Court Book p53.
17 Digital Court Book p57.
18 Digital Court Book p57.
19 Digital Court Book p58.
20 Digital Court Book p54.
21 Digital Court Book pp.90-91; Exhibit R2 [5] and [15].
22 Digital Court Book pp.90-91; Exhibit R2 [4] - [16].
23 Digital Court Book p53.
24 Digital Court Book pp.73-76; Exhibit R1 [7] - [9] and [20] - [24]; See also Digital C
25 Digital Court Book pp.92-93; Exhibit R2 [18] – [20] and [23] – [25]. See also Digital Court Book pp.75-76; Exhibit R1 [36
– [39] and Digital Court Book pp.80-81; Exhibit R1 Annexure CD3.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc650.htm
