1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nimet Zeybek
v
University Of Melbourne
(U2023/13051)
COMMISSIONER PERICA MELBOURNE, 26 JULY 2024
Application for an unfair dismissal remedy
[1] On 23 December 2023, Ms. Nimet Zeybek made an application to the Fair Work
Commission alleging she had been unfairly dismissed from her employment with the University
of Melbourne (UniMelb). The remedy she seeks is compensation.
[2] On 3 April 2024, the matter was heard by determinative conference in-person. Ms.
Zeybek represented herself and gave evidence. UniMelb was represented by Mr. Bower,
Director of Workplace Relations. Ms. Brooke Whyte, the Service Centre Team Lead in the
Client Services Team within the Business Services Unit of UniMelb, gave evidence for
UniMelb.
[3] For the reasons that follow, I find:
• Ms. Zeybek was not dismissed as required by s 385(a). Her employment was not
terminated at the initiative of UniMelb. Her employment was terminated by the
expiration of the maximum term of her last employment contract; and
• Ms. Zeybek could not have had a reasonable expectation of continuing employment
under s 384(2) and therefore she did not meet the minimum employment period required
by s 382(a).
[4] The Application is therefore dismissed.
BACKGROUND FACTS
[5] Ms. Zeybek was employed by UniMelb as a casual service centre consultant in the
Client Services Team from 28 March 2022 until 22 December 2023. Her role involved
interacting with UniMelb staff concerning human resources and financial issues arising out of
their employment.
[2024] FWC 1988
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1988
2
The four contracts
[6] Ms. Zeybek was employed under four separate maximum term contracts: the first for
the period 28 March 2022 to 7 October 2022;1 the second for the period 8 October 2022 to 7
April 2023;2 and the third for the period 8 April 2023 to 6 October 2023.3 The letter of offer for
the fourth contract was expressed as “casual employment with UniMelb to be scheduled from
time to time throughout the period of engagement” (hereon referred to as the Fourth Contract).
The period of engagement was from 7 October 2023 to 22 December 2023.4
[7] The terms of the letter of offer of the Fourth Contract included the following:
“I am pleased to offer you casual employment with the University of Melbourne
(University) to be scheduled from time to time throughout the period from 07/10/2023
to 22/12/2023 (Period of Engagement).
CASUAL ENGAGEMENT DETAILS
The University anticipates that it will have casual hours of work to offer you throughout
the Period of Engagement. By accepting this offer you confirm that you will be available
for casual employment with the University as outlined below.
The Period of Engagement provides a timeframe in which casual hours of employment
might be offered by the University. As a casual employee you will be employed by the
University on an hourly basis, as scheduled by the University from time to time
throughout the Engagement Period, and where continuing hours of work are not
guaranteed.
The duration of the Period of Engagement and anticipated categories of work specified
in this offer of casual employment are indicative only.
Employment with the University ceases at the end date of the Period of Engagement
unless otherwise ended earlier by the University. The University is under no obligation,
does not guarantee, nor make any representation that it will offer employment to you
beyond the Period of Engagement.
…
Termination
The anticipated end date and anticipated number of hours specified in this offer of casual
employment is subject to change at the University's discretion. The University is under
no obligation and does not guarantee or make any representation that it will offer
employment to you up to the Anticipated End Date, or for all of the anticipated hours
referred to above. This casual contract of employment is subject to termination without
notice.”
[8] It is not contested Ms. Zeybek accepted this offer and commenced working under the
terms of the Fourth Contract.
October 2023 call for expressions of interest for ongoing employment
[2024] FWC 1988
3
[9] Ms. White gave evidence around “late 2023” the volume of tasks coming into the Client
Services Team created a need for new positions to manage the work on an ongoing basis.5 This
process aligned with the project across UniMelb to reduce reliance on casual employees.6
[10] On 9 October 2023, Ms. White sent an email seeking expressions of interest by 13
October 2023 for continuing and fixed term Service Delivery Consultant positions and attached
a position description. Ms. Zeybek’s work email address was included within that email list.7
[11] On 17 October 2023, Ms. Zeybek sent Ms. Whyte an email which read:8
“Dulara just told me that the roles for Continuing/Fixed-term were advertised and closed
on the 13th! I did not receive/see that email so I haven’t applied!! Is there any way I can
still apply or is it closed for good?”
[12] On 18 October 2023, Ms. White replied to Ms. Zeybek:
“Did you not receive the email? … I checked and saw you are subscribed to the email. If
you are not receiving these emails we will need to raise this with IT asap.
I know we have previously discussed but wanted to mention again they will be full time
positions.
If you are interested in applying please send through your resume and expression of
interest by COB today 18/20/23 and I will schedule an interview with yourself.”
[13] Ms. Zeybek did not send Ms. Whyte an expression of interest and did not say anything
further about wishing to apply for the positions.
[14] Ms. Zeybek explains her failure to apply for the ongoing positions in her submissions
of fact which were received into evidence.
[15] Ms. Zeybek “does not disagree that she had an opportunity to apply for one of the
continuing roles and failed to do so”.9 She explains: “…I failed to receive the initial email
advertising the roles internally. I had issues with my university email in not receiving certain
correspondence, to which Ms. Whyte had previously known”.10
[16] Ms. Zeybek’s evidence was she had emailed Ms. Whyte asking for another opportunity
to apply for one of those roles to which she granted. She “had reached out to Ms. Whyte on 17
October 2023 regarding this and Ms. Whyte did not respond to me until the 18th”. She explained
that on 18th October, she “began the work day as normal but had to leave early due to immense
pains caused by a menstrual cycle. Ms. Whyte and Ms. Kim Adie were both informed of this
reason, and I was given permission to log off for the day. Ms. Whyte responded to my email
from the day before after I had already logged off for the day, asking me to submit all my
documents before COB same day”.11
[17] Ms. Zeybek contends “it is unreasonable for Ms. Whyte, to expect any of her staff
members to be viewing and responding to emails on their days off”. She continues: “Therefore,
[2024] FWC 1988
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it was impossible for me to know that she had responded to me and it is unreasonable, especially
since Ms. Whyte [was] aware of the reasoning behind logging off early, to expect her staff, in
agony, to view and/or respond to any emails sent on days off.”12
[18] Ms. Whyte gave evidence that, in mid-November 2023, four internal casual employees
were appointed to the positions. Three were employed on a continuing basis and one on a fixed
term contract to backfill a seconded employee. The four successful candidates were all from
the internal casual pool, like Ms. Zeybek.13
End of Ms. Zeybek’s casual employment
[19] Ms. Whyte’s evidence on the reasons why Ms. Zeybek’s contract was not renewed was
that “while it remained necessary to engage some casual employees in the role of Service Centre
Consultant, the total number of casual employees required in the role reduced because of the
successful ongoing appointments”. She explains that “the head count was reduced by two, as
there were only three continuing roles created”.
[20] On 11 December 2023, Ms. Whyte met with Ms. Zeybek by Zoom and confirmed that
no further casual employment would be offered and that her employment would end on the date
set out in the Fourth Contract on 22 December 2023.
[21] At the hearing, Ms. Zeybek was cross examined about the Zoom meeting 11 December
2023:14
Martin Bower
So, Ms. Zeybek, notwithstanding your views about the rolling contracts you had a
discussion with Ms. Whyte on 11 December; is that right?
Nimet Zeybek
Yes.
Martin Bower
In which she confirmed that the contract would not be renewed?
Nimet Zeybek
Yes.
Martin Bower
So why did you feel you had an ongoing expectation of employment after that
conversation?
Nimet Zeybek
I did not have an expectation after that conversation, especially after the 12th when I
had received more information in writing, because on the 11th it was very broad and I
was not given a real like explanation of why the contract was not being renewed.
Martin Bower
[2024] FWC 1988
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Okay. So on the 12th you say you were given an explanation and you understood that
there would be no further work after 22 December?
Nimet Zeybek
Yes.
[22] At 9:03 AM on 12 December 2023, Ms. Zeybek sent an e-mail to Ms. Whyte:
“Yesterday I was pretty distraught, for obvious reasons, and so I still do not understand
the reason why my contract is not being renewed. It would be appreciated if you could
just pop in writing why, for my understanding.”
[23] At 5:22 PM on the same day, Ms. Whyte responded:
“I am sorry we didn’t get a chance to discuss this further in depth during our catch up. As
mentioned, the requirement for casual rostered shifts in 2024 has reduced because of the
successful continuing appointments across the team.
During the later part of this year, we opened an expression of interest for continuing
Service Centre consultant roles within our team in which you were able to apply for. On
your request I also extended a submission deadline for you to apply.
Upon completion of the process, I appointed the successful candidates."
As we had discussed please reach out should you require any support or assistance
during this time.”
[24] Ms. Zeybek’s employment at UniMelb ceased on 22 December 2023.
Relevant Law
Dismissal at the initiative of the employer and contracts for a specified period
[25] Before I can determine whether Ms. Zeybek has been “unfairly dismissed”, I must be
satisfied that she has been “dismissed” under s 385(a). Under s 386(1), a person is dismissed if
the person’s employment has “terminated at the initiative of the employer”. However, under s
386(2)(a), a person is not dismissed if the person is employed under a contract of employment
for a specified period of time and the employment is terminated at the end of the period.
Minimum employment period
[26] Section 382 provides that a person is protected from unfair dismissal if the employee
has completed a period of employment with her employer of “at least the minimum employment
period”.
[27] As UniMelb is not a small business under s 383, the minimum employment period is 6
months.
[2024] FWC 1988
6
[28] Ms. Zeybek was a casual employee. The term of the Fourth Contract was for a period
of two months and fifteen days. Under s 384(2), her employment does not count towards her
“period of employment” unless she was employed as a “regular casual employee” and during
the period of service Ms. Zeybek had a “reasonable expectation of continuing employment by
the employer on a regular and systematic basis”.
Was Ms. Zeybek dismissed at the initiative of UniMelb?
[29] Ms. Zeybek argues that the cessation of her employment on 22 December 2023 was
initiated by UniMelb.
[30] UniMelb relies on a number of arguments why the ending of the Fourth Contract at the
expiration of its maximum term should not be regarded as a termination at the initiative of the
employer under s 386(1):
“• Ms. Zeybek was not dismissed at the University's initiative because the Fourth
Contract naturally expired on 22 December 2023, thereby ending the employment
relationship between the Applicant and the University. There was no action by the
University that either intended to bring the employment relationship to an end or had
that probable result.
• The Fourth Contract is a maximum-term casual contract. There is no inconsistency
between casual employment and a maximum term contract. The Fourth Contract
reflects a genuine agreement between the University and the Applicant that the
employment would end on the End Date. The leading case of Khayam15 indicates that
where there is such genuine agreement, and in the absence of vitiating factors,
dismissal at the End Date will not be at the employer's initiative.
• None of the vitiating factors described in Khayam exist The use of successive
maximum-term casual contracts by UniMelb did not reflect the use of standard-form
contracts used for merely administrative convenience. UniMelb used successive six-
month casual contracts because the Client Services team was in a state of flux, with
new work being absorbed into the team as part of the evolving service delivery model.
UniMelb conducted six-monthly reviews of work absorption and resources required,
with casual contracts offered in line with that planning cycle. At the end of 2023, the
University concluded that the workflow justified the creation of new continuing
positions.
• UniMelb made no representation to Ms. Zeybek that following the end of the Fourth
Contract, there would be another. There was no broken promise of future work. There
is no evidence that the agreement to end the employment relationship on 22 December
2023 was not genuine.
• In Drakoulis v. TAFE Online,16 Commissioner Johns accepted that the expiry of a
casual contract with an anticipated expiry date was not at the employer's initiative. In
its decision regarding Ms. Drakoulis' unsuccessful appeal, the Full Bench noted that
the terms of the particular casual contract included an "anticipated expiry date" but
also provided that employment would end when the employee was notified she would
[2024] FWC 1988
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not be offered further hours of work. The Full Bench said that it would have regard to
all the terms of the contract to assess whether an employment relationship ended on
an "anticipated expiry date" by operation of the contract.
• By contrast with the terms. of the contract in Drakoulis, the Fourth Contract very
clearly states that “Employment with the University ceases at the end date of the Period
of Engagement unless otherwise ended earlier by the University”. The Commission
should find that the terms of the Fourth Contract demonstrate that the employment
relationship between the parties ended on the End Date by operation of the Contract.”
[31] It also relied on an alternative argument in relation to s 386(2)(a) that I should not follow
the Full Bench decision in Khayam and find that a maximum term contract is not a contract “for
a specified period of time”. This argument relies on adopting obiter statements of Justice Raper
in the Federal Court in Alouani-Roby v. National Rugby League Ltd.17
Consideration
[32] Khayam is the principal authority on whether the failure to renew a maximum term
contract is a dismissal for the purposes of s 386. It stands for the proposition that a maximum
term contract is not a “contract of employment for a specified time” under s 386(2)(a). I see no
reason to depart from that decision and therefore reject the alternative argument of UniMelb in
relation to s 386(2)(a).
[33] The Full Bench in Khayam did not decide whether Mr. Khayam was dismissed “on the
employers’s initiative” within the meaning of s 386(1)(a). That matter was referred back to
Commissioner Hunt. In the course of its decision, the Full Bench provided an interpretation of
s 386(1)(a) based on its analysis of relevant case law. At paragraph [75] subparagraph (4), the
Bench stated (with emphasis added and excluding case names):
“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:
…
(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 , 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. However if the time-
limited contract does not in truth represent an agreement that the employment
relationship will end at a particular time 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
[2024] FWC 1988
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part of the employer was the principal contributing factor which results, directly or
consequentially, in the termination of the employment.”
[34] The relevant “vitiating factors” referred to in that paragraph include:
• 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 a consideration relevant to an examination of the employer’s purpose for entering
into such contracts;
• The employment contract may not be limited to the terms of a written document. It
may 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; and
• During the term of the employment relationship, the employer may have engaged in
conduct or made representations 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
[35] It is clear the Full Bench in Khayam considered a maximum term contract could be a
genuine agreement that the employment relationship will not continue after a specified date,
and that the employment relationship comes to an end on that date. In those circumstances (and
absent one of the “vitiating factors”), the employment relationship will have terminated by
reason of the agreement and there will be no termination at the initiative of the employer.
Was there a genuine agreement here?
[36] The terms of the Fourth Contract which Ms. Zeybek accepted two months and fifteen
days before the expiration of the maximum term are pellucidly clear and unequivocal. The
“employment would end at the end date of the period of engagement”, which was 7 October
2023 until 22 December 2023. It also clearly states that UniMelb is under “no obligation and
does not guarantee, nor make any representation that it will offer employment beyond the period
of engagement”.
[37] Ms. Zeybek does not dispute that she accepted these terms. Following Khayam, unless
there are vitiating circumstances the effect of those terms is that the contract terminated
according to its terms and therefore there was no termination at the initiative of UniMelb.
Are there vitiating circumstances?
[38] I accept the evidence of Ms. Whyte (which was not contested by Ms. Zeybek) that the
reason Ms. Zeybek was offered casual employment for six-month periods was because of an
ongoing review of work coming into the client services team. Reviews of the required resources
occurred every six months. Casual contracts were offered in line with the planning cycle where
it was determined there was a need for casual resources.18 I consider the use of maximum term
contracts was appropriate in the relevant field of employment and was not merely for
administrative convenience. There were appropriate reasons why the contracts were used.
[2024] FWC 1988
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[39] Ms. Zeybek relies on “past practice and custom’ to argue that the renewal of her
maximum term contract three times established “a pattern of behaviour that created a legitimate
expectation on my part that my contract would be renewed”. She also relies on “explicit and
implicit assurances and representations regarding renewal” of her contract.
[40] I do not consider Ms. Zeybek’s expectation that she would be offered a new contract on
the basis that she had been offered three previous contracts is sufficient as a “representation”
that her contract would be renewed.
[41] Ms. Zeybek provides no evidence of explicit representations that another contract would
be offered to her. The evidence before me establishes the opposite. She was informed on 11 and
12 December 2023 that her contract would not be renewed. This is well before the maximum
term expired on 22 December 2023.
Finding
[42] I accept that on or about 7 October 2023, Ms. Zeybek entered into a genuine agreement
which included an express term that her contract would expire on 22 December 2023. There
were no vitiating circumstances that affected the genuineness of the agreement she had reached.
[43] In those circumstances, applying the test in Khayam, I consider the termination of her
employment was not initiated by the employer. It merely expired according to the terms of her
contract of employment. It follows she was not “dismissed” as defined by s 386 and required
under s 385(a).
Did Ms. Zeybek have a “reasonable expectation of continuing employment” and meet
the minimum employment period?
[44] If I am wrong in finding that Ms. Zeybek was not dismissed, I must consider whether or
not she had a “reasonable expectation of continuing employment” under s 384(2) for the
purpose of determining whether she had been employed for the minimum employment period
as defined by s 3s84 and 385 and as required by s 382(a).
[45] The period of her last contract was two months and 15 days - well short of the minimum
employment period of six months. As a casual employee, her total period of employment with
UniMelb under the successive contracts will only count if, during the period of her employment,
she had a “reasonable expectation of continuing employment on a regular and systematic basis”
under s 384(2).
Ms. Zeybek’s arguments
[46] Ms. Zeybek argues that despite the length of the maximum term of the Fourth Contract,
she has a “reasonable expectation of continuing employment”. She makes a series of arguments
why she had a “reasonable expectation of continuing employment”:19
• Ms. Zeybek’s employment contract had been “consistently renewed without fail. This
established pattern of behaviour created a legitimate expectation on her part that her
contract would be renewed for subsequent periods of employment”.
[2024] FWC 1988
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• Ms. Zeybek had “consistently demonstrated exemplary performance and conduct in
my role, consistently meeting and exceeding performance expectations.” She explains:
“My performance appraisals and feedback from supervisors have consistently
reflected my dedication, reliability, and contribution to the success of the team and the
organisation.”
• UniMelb had made “assurances and representations either explicitly or implicitly,
regarding the renewal of my contract. Positive performance feedback and discussions
about future plans within the organisation have all contributed to my reasonable
expectation of contract renewal”.
• Ms. Zeybek had “relied on the expectation of contract renewal to my detriment,
making financial commitments and turning down other employment opportunities
based on the assurance of continued employment with the University of Melbourne.
The sudden and unexpected non-renewal of my contract has therefore caused
significant financial and emotional hardship”.
UniMelb’s arguments
[47] UniMelb’s argument is that Ms. Zeybek could not have had a reasonable expectation of
continued employment. It argues that:
• Ms. Zeybek “may have had a subjective expectation of continuing employment but
that expectation was not reasonable”.
• The clear terms of the contracts take primacy over other factors including Ms.
Zeybek’s own expectations. Each of her contracts (including the Fourth Contract)
clearly provide UniMelb is under no obligation and does not guarantee or make any
representation that it will offer employment beyond the end point of the contract.
• UniMelb made no representations to Ms. Zeybek that she would be offered a further
employment contract after the Fourth Contract. She was not rostered to any shifts after
the end date.
• Ms. Zeybek was aware of changes to the Client Services team workforce. She was
invited to apply for a continuing position within the team such that she could not
reasonably have anticipated that the University’s need for casual employment.
Consideration
[48] Ms. Zeybek’s argument that she had an expectation that she would be offered a further
contract because she was offered three continuous casual contracts previously could not have
been reasonable in the circumstances in which the Fourth Contract came to an end:
• In October, just over two months before her employment ceased, Ms. Zeybek had
entered into a contract which included a clear and express terms that “Employment
with the University ceases at the end date of the Period of Engagement unless
otherwise ended earlier by the University. The University is under no obligation, does
not guarantee, nor make any representation that it will offer employment to you
beyond the Period of Engagement”.
[2024] FWC 1988
11
• She was informed by Ms. Whyte on 11 December 2023, 11 days before the end of the
contract period, that “no further casual employment would be offered, and her
employment would end on 22 December 2023”.
• On 12 December 2023, she asked for an explanation “why my contract is not being
renewed”. Later that day Ms. Whyte replied by e-mail with an explanation.
• In cross examination, Ms. Zeybek conceded that at the meeting on 11 December 2023,
Ms. Whyte “confirmed her contract would not be renewed” and that “she did not have
an expectation of employment after that conversation”; she added, “Especially after
the 12th December when I received more information in writing.”
[49] Ms. Zeybek argues she had explicit or implicit assurances and representations regarding
the renewal of her contract. Other than an implication arising from the fact that she had her
contracts renewed on three earlier occasions there is no evidence before me of any assurances
or representations that the Fourth Contract would be renewed. I accept the evidence of UniMelb
that there were none.
[50] The evidence shows to the contrary, Ms. Zeybek was explicitly told orally on 11
December 2023 and in writing on 12 December 2023 that her contract would not be renewed.
Further, Ms. Zeybek herself concedes that by 12 December 2023 she knew the Fourth Contract
would not be renewed.
[2024] FWC 1988
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CONCLUSION
[51] Ms. Zeybek presents as an intelligent and competent person. I accept that during her
employment with UniMelb her work was often praised. Through a series of unfortunate events,
in October 2023 she missed the chance of securing ongoing employment when she failed to
reply to the expressions of interest for those positions. Had Ms. Zeybek applied she may have
continued to be employed at UniMelb.
[52] None of those facts change my decision that her application fails for want of jurisdiction
on the following bases:
• She was not dismissed. Her employment was not terminated at the initiative of the
employer as required by s 385(a). Her employment was terminated by the expiration
of the maximum term in the Fourth Contract; and
• She could not have had a reasonable expectation of continuing employment under s
384(2) and therefore she did not meet the minimum employment period required by s
382(a).
[53] The application in this matter is therefore dismissed.20
COMMISSIONER
Appearances:
Ms. Nimet Zeybek, the Applicant, for herself
Mr. Martin Bower for the Respondent
Hearing details:
3 April 2024
Melbourne
Printed by authority of the Commonwealth Government Printer
PR777577
MISSION C THE SEALO KE FAIR WORK
[2024] FWC 1988
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1 DCB at 42-48.
2 DCB at 49-55.
3 DCB at 56-59.
4 DCB at 60-63.
5 DCB at 40.
6 PN202 – submission of fact made by Mr. Bower.
7 DCB at 40.
8 Ibid.
9 DCB at 14.
10 Ibid.
11 Ibid.
12 Ibid.
13 DCB at 40.
14 PN123 to PN126.
15 Khayam v. Navitas English Pty Ltd trading as Navitas English [2017] FWCFB 5612.
16 [2022] FWCFB 127.
17 [2024] FCA 12.
18 DCB at 14.
19 DCB at 12.
20 PR777578.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5612.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb127.htm
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2024/12.html
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr777578.pdf
