DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Kirsty Fraser
v
Act for Kids
(U2016/1721)

Application for relief from unfair dismissal – jurisdictional objection – was the Applicant dismissed at the initiative of the respondent – jurisdictional objection dismissed.

Introduction

[1] Ms Kirsty Fraser applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Act for Kids. Act for Kids is a national charity whose purpose is to prevent and treat child abuse and neglect.

[2] Ms Fraser commenced employment with Act for Kids on 30 March 2015 pursuant to a letter of engagement issued by Act for Kids. Ms Fraser’s employment came to an end on 1 April 2016.

[3] Following the cessation of the employment, Ms Fraser made application to the Fair Work Commission (the Commission), alleging that her dismissal was harsh, unjust or unreasonable.

[4] Act for Kids objected to the application proceeding on the basis that it submits that Ms Fraser was employed pursuant to a fixed-term contract with an end date of 1 April 2016. Act for Kids contends that the date of 1 April 2016 having passed, Ms Fraser’s employment ended with the effluxion of time, and not on the initiative of Act for Kids.

[5] Directions were issued for the filing of evidence and submissions to determine the jurisdictional objection only. Act for Kids is represented by Mr Craig Pollard, a paid agent of CTMA Workplace Consulting.

[6] The matter was listed for hearing by videolink to Cairns on the jurisdictional objection only. While the parties filed some material in relation to merit arguments and an alleged underpayment of entitlements, which was denied by Act for Kids, I have had regard only to the material relating to the jurisdictional objection.

[7] Leave was granted for Mr Pollard to appear pursuant to s.596(2)(a) of the
Act. I determined that Mr Pollard’s appearance would enable the matter to be dealt with more efficiently, taking into account the complexity of the jurisdictional issue.

[8] Ms Fraser was assisted by her mother, Mrs Dawn Fraser. During the proceedings I referred to Ms Kirsty Fraser as Ms Fraser, and to her mother as Mrs Fraser.

[9] During the hearing it became apparent that it would be beneficial if the matter was heard as a determinative conference, and the parties consented to this course of action. This allowed the giving of evidence more freely over the videolink after all witnesses had taken their respective affirmations.

Relevant Provisions of the Legislation

[10] The Act at s.385 provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[11] Further, ss.386(1), (2)(a) and (3) provide:

“386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

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

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

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

Jurisdictional Issue

[12] It is not contended by Act for Kids that Ms Fraser was employed pursuant to 386(2)(a) for a stated period of time. This is so because relevant authorities have determined that only contracts of employment that are truly fixed – that is, there is no ability to terminate the employment by the giving of notice during the period – are contracts for a specified period of time.

[13] In the case of Ms Fraser, it is contended by Act for Kids that Ms Fraser’s employment agreement was for a fixed period of time, that being the period from 30 March 2015 and concluding on 1 April 2016. A termination clause within the agreement allowed for the contract to be terminated prior to 1 April 2016.

Evidence of Act for Kids

[14] Act for Kids led evidence of the following witnesses:

• Ms Koni Hanlon, Executive Director People, Culture and Infrastructure;



• Ms Tangala Priscilla Coleman, Team Leader; and



• Mr Paul Harris, Practice Manager – Remote Services.

[15] During late 2014, the Queensland Government Department of Communities, Child Safety and Disability Services (the Department) contacted Act for Kids in relation to a service it wished for Act for Kids to potentially run. The Department enquired if Act for Kids would be willing to run a Family Reunification House in Cairns.

[16] The purpose of the Family Reunification House (titled Redlynch) is to allow large Aboriginal and Torres Strait Islander sibling groups to remain housed and cared for together. The siblings identified to be homed in Redlynch are selected due to identification that their parents have a high likelihood of family reunification.

[17] Act for Kids had never before provided services such as the services required at Redlynch. The usual work performed by Act for Kids includes residential care safe houses in smaller, remote communities. The caring needs for children typically looked after by Act for Kids differed to the caring needs for the siblings in Redlynch.

[18] The funding for the services was anticipated to be approved for a period of approximately three years and expire in December 2017.

[19] Act for Kids determined that it would provide the services at Redlynch, but in doing so, would employ employees for a specified term. The existing Act for Kids structure was adopted, and Act for Kids determined that it would be in a better position in 12 months’ time to assess the needs of the family and the staffing rosters that had been in place during the first 12 months.

[20] Positions were advertised on an electronic job board. The roles advertised were:

● House Parent

● House Parent (Practice)

● House Parent (Operations)

● Residential Support Worker

[21] The position descriptions state the following functions are required for three of the four roles:

“House Parent – in this role you will provide direct care to the children placed within the service, by creating a home environment that will look after their emotional, physical, cultural, relational and spiritual needs.

House Parent (Operations) – in this role there will also be a greater focus on the day to day operations of the house such as purchasing supplies, rostering, maintenance and safety.

House Parent (Practice) – in this role there will be an increased focus on the day to day care of the children including child files and record keeping, developing care plans, reporting, advising best practice strategies for child care, and advocating for the needs and rights of the children.”

[22] Applicants were invited to go to the Act for Kids’ website and click on a link to view the position description.

[23] A copy of the position description for House Parent and House Parent (Practice) was filed in this matter. On the right hand side, at the top of the first page of the document, the following is stated:

• House Parent: Employment Status: Full time Fixed Term until 1 March 2016;



• House Parent (Practice): Employment Status: Full Time Fixed Term for 6 months.

[24] There were 97 applicants for the seven positions on offer to perform work at Redlynch, noting that there were various Residential Support Workers employed; some on a casual basis.

[25] It is Ms Coleman’s evidence that she was present during all of the interviews with the candidates. Interviewees were informed that the positions were to be for a period of 12 months as it was a pilot project. Ms Coleman explained that Act for Kids did not know on commencement what the requirement to staff the home would look like in the following years.

[26] It is Ms Coleman’s evidence that she specifically recalls the interview with Ms Fraser and a discussion was had regarding the role being for a 12 month period. Ms Fraser did not ask any questions regarding the role being for a period of 12 months.

[27] In evidence, Mr Harris declared, “We would routinely advise the applicants that although we were funded for a three year period we would only be offering employment based on 12 month contracts. We asked at the end of the interview if the applicants had any questions about the Position Description or any other matter. I remember that Ms Fraser did not ask any questions at this point.” 1

[28] Ms Fraser was offered the role of House Parent by letter dated 12 March 2015. The relevant parts of the offer letter are reproduced below:

“Dear Kirsty,

Letter of engagement

I am pleased to offer you employment in the position of House Parent, Family Reunification House, with us at Act for Kids (‘the employer’) on the terms and conditions set out in this letter.

Position

Your employment will be full-time from 30 March 2015 to 1 April 2016.

Your ongoing employment is subject to the continued Government funding of the role as part of the SafeKIDS program. Should this funding cease prior to the expected end date of 31 December 2017 your employment will be terminated at the time the funding ceases.

You will report to the Team Leader – Family Reunification House.

The duties of this position are set out in the attached position description. You will be required to perform these duties and any other duties the employer may assign to you, having regard to your skills, training and experience. You will be required to perform your duties at Cairns or elsewhere as reasonably directed by the employer.

Probation

A probation period will apply for the first six months of your employment. During this time we will assess your progress and performance in the position.

During the probation period you or the employer may end your employment by providing notice in accordance with the table in the Termination of Employment clause below.

….

….

Termination of employment

Under the Fair Work Act 2009 the employer may terminate your employment at any time by providing you with notice in writing in accordance with this table:

Length of continuous service with employer	Period of notice
Not more than 1 year	1 week
More than 1 year but less than 3 years	2 weeks
More than 3 years but less than 5 years	3 weeks
More than 5 years	4 weeks

You are entitled to an additional week’s notice if you are over 45 years old and have completed at least 2 years of continuous service with the employer on the day the notice of termination is given.

If you wish to terminate your employment you are required to provide the employer with prior notice in accordance with the table above. In exceptional circumstances Act for Kids reserves the right to terminate an employee without notice.”

[29] The position description for House Parent was included in the documentation issued to Ms Fraser in offering to her the position. The position description continued to say, in the top right corner of the document:

Employment Status: Full Time Fixed Term until 1 March 2016. [my emphasis]

[30] It is Mr Harris’ evidence that at the time the position descriptions were drafted, it was hoped that employment could commence on 1 March 2015. A 12 month employment period would take employees through until 1 March 2016, although it is noted that this is just beyond 12 months.

[31] There was some difficulty in sourcing a suitable home on the private rental market, and the employment could not commence until 30 March 2015. Accordingly, when the letter of engagement was prepared, it referred to the period nominated as 30 March 2015 to 1 April 2016.

[32] The position description issued to Ms Fraser was not subsequently amended from 1 March 2016 to 1 April 2016.

[33] In the first few months of operation of Redlynch, it became apparent to Act for Kids that the standard staffing model it had adopted was not working. It was not possible to alter the hours of the full-time House Parents to work extra hours, work fewer hours, or obtain the flexibility that was required to care for the children and meet medical appointments and the like.

[34] At a staff meeting attended by Ms Fraser on 8 December 2015, two staff members, Rosina and Sarah made inquiries about the contracts ending in April. The minutes of the meeting record the following:

“Rosina and Sarah brought up the end of their contracts in April. Priscilla discussed that this was something that I was currently looking into as there were changes that needed to happen, the current roster does not work.”

[35] The issue was discussed again at a staff meeting on 22 December 2015. Ms Fraser was not in attendance at the staff meeting as she was on leave. The minutes of the meeting record the following:

“I also discussed that the model does not work and that we have too many full time workers. As to what that looks like, I am not sure. Discussed the casual position and what was. This was discussed was a casual position PD in front. I reminded staff that this conversation has been ongoing throughout the year and reminded people that the initial interviews were people’s roles, expectations of shift work and hours.”

[36] In early 2016, Ms Hanlon and Ms Coleman had a discussion regarding the staffing structure in place at the time at Redlynch. Ms Coleman informed Ms Hanlon that she considered that the structure was not working as there were too many full-time House Parent roles.

[37] On the belief that the full-time employees were on mutually agreed 12 month contracts, Ms Hanlon informed Ms Coleman that there was no obligation to extend employment beyond 1 April 2016.

[38] The staffing issue was discussed again at a staff meeting on 4 February 2016. Ms Fraser was in attendance at the meeting. The minutes of the meeting record the following:

“Priscilla informed staff that there will be two full time contracts will end, and Madeline and I will discuss this with the two staff members.”

[39] It is Ms Coleman’s evidence that she had to await until Ms Madeline Lea, Workforce Development Manager was available to meet with the two affected staff members. It was Ms Coleman’s intention to meet individually with the employees in the presence of Ms Lea and inform them that their positions “will be coming to an end.” 2

[40] Ms Lea was unavailable due to interstate travel, and when the opportunity arose for Ms Coleman to speak with the applicant, Ms Fraser had developed pneumonia and was unable to attend work for a period of time. Ms Coleman then commenced a period of annual leave.

[41] At a meeting of 23 March 2016, attended by Ms Fraser, Mr Harris and Ms Lea (by telephone), Ms Lea informed Ms Fraser, “As you are aware, all employment contracts for staff at the Family Reunification House are due to expire within the next few weeks. As a courtesy, I asked you to come in to the office today, to let you know that we have made a decision not to renew your contract.”

[42] Ms Fraser asked if she was able to work up until the end of her contract, to which Ms Lea responded, “Yes, Kirsty, if that’s what you want to do.”

[43] Notes taken by Mr Harris following the meeting record that Ms Fraser was upset. She said to Mr Harris that she was only going to work another six weeks or so until needing to finish before having her babies, and would have preferred to have worked up until then. It is noted that Ms Fraser gave birth to twins in June 2016.

Submissions of Act for Kids

[44] Act for Kids submits that when taking the position description that describes a fixed term into consideration, the role of House Parent was advertised for a period of 12 months, with a firm end date.

[45] It is conceded that the advertisement did not contain any reference to the role of House Parent being for a fixed period of time. It is Mr Harris’ evidence that the advertisement was based on template documents.

[46] Act for Kids submits that during the interview process, Ms Fraser was informed that the role was for a 12 month period. Mr Harris’ evidence is that the interviewers would “routinely” advise the applicants that although the program was funded for a three year period, the contracts were only for 12 months.

[47] Following selection of Ms Fraser for the role of House Parent, the offer was made for her to commence on 30 March 2015. Due to the delay in sourcing a home, the 12 month period then slipped to 1 April 2016, but the position description accompanying the offer of employment paperwork was not amended.

[48] Act for Kids submits that the period offered and accepted by Ms Fraser, that being 30 March 2015 to 1 April 2016 is clearly a fixed period of time.

[49] The sentence within the letter of engagement reads:

“Your employment will be full-time from 30 March 2015 to 1 April 2016.”

[50] Act for Kids understands that to mean that the employment was for a fixed period of time, ending on 1 April 2016 due to the effluxion of time.

[51] I questioned Mr Pollard on the ambiguity within the contract, having regard to the doctrine of contra proferentem. Where an ambiguity exists, an agreement will normally be interpreted contra proferentem, that is, against the party who formulated the document.

[52] Mr Pollard contested that the inherent meaning of “to” is “ending on”.

[53] It is the contention of Act for Kids that the following paragraph in the letter of engagement referencing continuing funding for the program is simply an indication to Ms Fraser that funding is expected. It is submitted that the paragraph does not take away from the sentence above, that being a fixed period of time.

[54] Act for Kids relies on the decisions in the Department of Justice v Lunn 3 (Lunn) and also Drummond v Canberra Institute of Technology (Drummond).4

[55] In the matter of Lunn the contract in question was not for a “specified period” because the contract provided that it could be terminated on notice during its term, making it such that it was not possible to identify the “period”. Rather such a contract was an “outer limits” contract and a termination occurring simply by the agreed term being reached. It was determined that the contract, having reached its term could not be a termination at the initiative of the Employer.

[56] In Drummond, the Full Bench stated:

“Leave to Appeal

[1] Having considered all of the material and submissions relied upon by Dr Drummond, we are satisfied that Commissioner Deegan did not err when she concluded that Dr Drummond was not dismissed from his employment at the initiative of CIT, but that his contract expired by the ordinary passing of time. Dr Drummond was employed under a contract concluding on 30 September 2009. We agree with the Commissioner, in noting paragraph 1532 of the Explanatory Memorandum, which deals with s.386(2) of the Act, that the effect of s.386 is that “a contract which ends with the effluxion of time does not terminate at the initiative of the employer.””

Evidence and Submissions of Ms Fraser

[57] I accepted into evidence Ms Fraser’s submissions. As the matter was heard as a determinative conference, the matter was less formal than a hearing, and questions were put by Ms Fraser to the respondent’s witnesses as the conference progressed.

[58] Ms Fraser’s written submissions largely centred on merit arguments, and how the employment ended. I informed Ms Fraser that I was required to determine whether her employment was for a fixed period of time (subject to the ability to terminate during the term), and whether it could be determined that there had been a dismissal at the initiative of the employer.

[59] Ms Fraser’s merit arguments contend that she was 27 weeks pregnant with twins at the time the employment ended, and she considers that she was discriminated against on the basis of her pregnancy. Act for Kids strongly denies that it discriminated against Ms Fraser in any way. I am not determining this issue as I am limited to determining the jurisdictional issue raised by Act for Kids.

[60] In a question put to Ms Fraser by Mr Pollard during the conference, she accepts that the position description of House Parent was provided with the offer letter. She accepts that the position description contains a reference to the employment being “Full Time
Fixed Term until 1 March 2016”.

[61] It is Ms Fraser’s evidence that she understood, “Your employment will be full-time from 30 March 2015 to 1 April 2016” to mean that her employment during the period 30 March 2015 and 1 April 2016 would be full-time. She submitted that she understood that her employment beyond 1 April 2016 could be part-time or casual, and she would have been open to discussions on that issue.

[62] Ms Fraser contends that the sentence does not say that her employment will end on 1 April 2016. The contract does not say at all that it will end on a certain date.

[63] When read with the paragraph below regarding the funding of the program, Ms Fraser contends that she was shocked when she was informed in late March 2016 that her employment was ending on 1 April 2016.

[64] Ms Fraser acknowledges that she was present during the team meeting of 8 December 2015, but she did not understand the discussion to mean that employment for her and those with similar contracts would end altogether. Her evidence is that she understood that full-time employment might end, but it would not result in a termination of the employment all-together. Ms Fraser would have been comfortable discussing ongoing part-time or casual work.

[65] It was Mrs Fraser’s submission on behalf of Ms Fraser that if her daughter had known that the employment would end all-together on 1 April 2016, she would have sought employment elsewhere. It was impossible to seek alternative employment when 27 weeks pregnant with twins.

[66] It was submitted that the funding for Redlynch is still in place, and new employees were employed in the various roles, but not that of House Parent. Ms Fraser had not been offered any role.

Consideration

[67] Act for Kids has an obligation to demonstrate the basis of its jurisdictional objection.

[68] It is necessary to determine on the information before me, whether the terms entered into by the parties provided for a clear and unambiguous fixed period of time.

[69] If I am satisfied that the contract was for a fixed period of time, I am bound by the authorities of Lunn and Drummond to find that the fixed period of time ending on 1 April 2016 had been reached. The date having arrived, the contract ended by the passing of time, and not at the initiative of Act for Kids.

[70] The advertisement placed by Act for Kids made no mention whatsoever of the employment being for a fixed period of time ending on a certain date. While applicants were directed to refer to the position description, the position description ultimately given to Ms Fraser nominates the fixed term ending on 1 March 2016.

[71] I am not satisfied that the position description assists Act for Kids in the manner in which I assume they hope that it would. The effect of the position description is that because of the delay in obtaining the house for the children to live in, and Ms Fraser to work in, the position description, if relied upon, would have the employment concluding on 1 March 2016. Ms Fraser’s attendance at work beyond 1 March 2016 does not give strength to reliance by Act for Kids that the position description carries with it some agreement or knowledge that the employment was for a fixed term.

[72] In any event, the position description states, “Employment Status: Full time Fixed Term until 1 March 2016.” It does not definitively state that the employment will end on 1 March 2016. It is possible that it means that the full-time employment is fixed until 1 March 2016.

[73] The position description is not, however, the determinative issue. It is merely a reference document. It is necessary to give consideration to the letter of engagement nominating 1 April 2016 as a period when an event might come about.

[74] In addition, Act for Kids relies on the matters discussed during the interview of Ms Fraser to demonstrate the objective intention of the parties to enter into a contract for a fixed period of time. This is despite a clause within the letter of engagement stating, “The terms and conditions referred to in this letter constitute all of the terms and conditions of your employment and replace any prior understanding or agreement between you and the employer.”

[75] The letter of engagement includes some terms within it unsuitable for a fixed term contract. Specifically, this includes a termination clause replicating the table of notice required by the National Employment Standards. The clause nominates additional notice to be given by Act for Kids if the employee is over 45 years of age and has completed at least 2 years of continuous service at the time of termination. If the contract was to be for a fixed period of 12 months (or just slightly more than 12 months), the termination clause should be specific to the circumstances.

[76] The remuneration clause in the letter of engagement is one more suitable for an open-ended employment agreement. It states, “Your remuneration will be reviewed annually, and may be increased at the employer’s discretion.”

[77] The sentence, “Your employment will be full-time from 30 March 2015 to 1 April 2016” could reasonably read one of two ways:

One: Your employment will be to 1 April 2016; or
Two: Your full-time employment will be to 1 April 2016.

[78] It is Ms Fraser’s evidence and submissions that she understood this sentence to mean, in effect: Your full-time employment will be to 1 April 2016.

[79] The additional paragraph commencing, “Your ongoing employment is subject to ………prior to the expected end date of 31 December 2017….” Provides for additional ambiguity and uncertainty as to whether the term is for a fixed period ending on 1 April 2016.

[80] As I understand the submission of Act for Kids, I should not have regard to the paragraph in [79] as it is merely informative, and does not detract from the paragraph describing a period of time in [77].

[81] If the paragraph informing Ms Fraser of the expected funding had no work to do other than to be informative, or the paragraph should carry less weight than the paragraph above it, it is incumbent on the drafter to be clear.

[82] I do not consider that the sentence, “Your employment will be full-time from 30 March 2015 to 1 April 2016” is sufficient to find that the employment was clearly stated to be for a fixed term ending on 1 April 2016.

[83] Clear words are necessary to satisfy the test that the employment was entered into by the parties to be for a fixed term, ending on 1 April 2016. Ms Fraser did not propose wording to the agreement, nor did she draft the terms.

[84] While I do not infer that Act for Kids was underhanded or mischievous in the wording put to Ms Fraser and agreed by her, it is not available to Act for Kids to now seek to rely on clumsy wording to satisfy a jurisdictional objection. The evidence of all of the witnesses for Act for Kids was highly credible; I have no doubt on the evidence presently before me that it was in the mind of Act for Kids that the employment of Ms Fraser was to be strictly for a fixed period of time, concluding on 1 April 2016. However, the execution of that desire was poor.

[85] Where there is ambiguity in such documents as the contract of employment, I have adopted, with respect, the decision of Tracey J in Carr v Blade Repairs Australia Pty Ltd (No 2) [2010] FCA 688 at paragraph [45]:

“...an agreement will normally be interpreted contra proferentem, that is, against the party who formulated the document: see Maye v Colonial Mutual Life Assurance Society Ltd [1924] HCA 26; (1924) 35 CLR 14 at 26-7; Wesoky v Village Cinemas International Pty Ltd [2001 FCA 32 at [47]”

[86] The evidence of Ms Fraser demonstrates that a reasonable person in the circumstances, having read the letter of engagement would not have considered that she had entered into a fixed term contract.

Conclusion

[87] Act for Kids is unable to demonstrate that Ms Fraser was employed pursuant to a fixed-term contract with an end date that has passed. For the aforementioned reasons I find that Ms Fraser was dismissed at the initiative of Act for Kids pursuant to s.386(1)(a), and the Commission’s jurisdiction is enlivened to determine Ms Fraser’s application for unfair dismissal.

[88] The jurisdictional objection, that there was no dismissal at the initiative of the employer, is dismissed. I Order accordingly.

[89] A separate notice of listing will issue for the progress of the application.

COMMISSIONER

 1   Witness Statement of Mr Paul Harris at [8].

 2   Witness Statement of Ms Tangala Priscilla Coleman at [8].

 3   Department of Justice v Lunn (2007) 158 IR 410.

 4   Drummond v Canberra Institute of Technology [2010] FWAFB 5455.

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