Job was advertised as 12 months but the actual contract was just nine months
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application that raised questions about the distinction between a dismissal and the natural expiry of a fixed-term employment contract.
The worker argued that he had been dismissed when his employment ended on a specified date, whilst the employer contended that no dismissal had occurred because the contract had simply reached its predetermined conclusion.
The worker advanced several arguments to support his claim, pointing to inconsistencies between the initial job advertisement and the final contract terms, conversations with managers about future employment prospects, and statements from colleagues about pathways to permanent positions.
He also argued that economic circumstances had pressured him into accepting contract terms that differed from what was originally advertised.
The case turned on whether the ending of a fixed-term contract could constitute a dismissal under the Fair Work Act, and whether informal conversations about future employment could override the written terms of an employment contract.
From labour hire to direct employment
Between March 2024 and 6 September 2024, the worker had been engaged as a contractor through a labour hire agency and was placed with a state government department performing duties as a contract manager.
This engagement was for a six-month period and was scheduled to expire on 6 September 2024.
On 9 July 2024, whilst still working through the labour hire arrangement, the department advertised a position for a contract manager in the same work unit.
The position was described as "Fixed term - full time" with a "Job Duration" listed as "12 months – 1/7/2024 – 30/6/2025".
Around this time, the worker spoke to an operations manager about concerns in the job posting.
The salary was lower than his current rate through the labour hire agency.
He also pointed out that the advertised duration was inconsistent, as the advertisement was posted on 9 July 2024, yet the duration was expressed to expire on 30 June 2025, which could not actually be 12 months.
The operations manager said she would "look into it", but nothing came of this discussion. The worker proceeded with his application and was successful.
On 6 September 2024, the worker received an offer email from the department. The email specified a start date of 9 September 2024 and an end date of 30 June 2025, meaning the duration was just under nine months.
Shortly after receiving the offer, the worker spoke to his manager and asked whether there was a mistake about the duration.
The manager explained there were budget issues affecting contracts and said that "if he got past his probation period, there shouldn't be issues obtaining ongoing employment".
After this conversation, the worker accepted the offer. His engagement with the labour hire agency had ended on 6 September 2024, the same day he received and accepted the department's offer.
Expectations developed during employment
During his employment, the worker spoke with two colleagues who shared their own experiences in the state's public service.
They explained they had started in fixed-term positions and eventually obtained ongoing positions.
The worker gave evidence that these colleagues used the phrase "foot in the door" to describe starting in a fixed-term role as a pathway to ongoing employment.
In April and May 2025, the worker applied for two other fixed-term positions within the department but was unsuccessful both times.
On 30 June 2025, the worker's employment came to an end. This was the exact end date specified in the offer email he had accepted on 6 September 2024. The worker filed an unfair dismissal application with the FWC.
The department raised an objection, arguing the worker was not dismissed because his employment had simply ended at the conclusion of the fixed-term contract period.
The worker performed his job effectively throughout his employment. He received positive feedback for his first unsuccessful application for another position and was encouraged to apply for future roles.
However, when told he was unsuccessful in the second application in early June 2025, he was disappointed by the brief feedback received.
How the Fair Work Act defines dismissal
The FWC examined section 386 of the Fair Work Act, which is the provision that defines what counts as a dismissal. Section 386(1) says a dismissal happens when an employer ends the employment on their own initiative, or when an employee resigns because they were forced to by the employer's conduct.
However, section 386(2)(a) creates an important exception. It says that a person has not been dismissed if they were employed for a specified period of time and the employment ended at the end of that period.
The FWC referred to an earlier decision that explained how this exception works.
That decision said that if the circumstances in section 386(2) exist, then the person will not have been dismissed, and there's no need to consider anything else.
The FWC found this case fell within that exception. The Commissioner stated: "The terms and conditions of employment set out in the offer email had a designated end date of 30 June 2025. On that date, [the worker's] employment terminated. By operation of s 386(2)(a), this cessation of [the worker's] employment did not constitute a dismissal within the meaning of s 386."
The worker made several arguments trying to establish that he had been dismissed despite the fixed-term contract.
He argued there was misrepresentation about the employment duration, that he was under economic pressure when accepting the offer, that he had a reasonable expectation of continuing employment, and that his employment relationship was actually continuous from March 2024 when he started through the labour hire agency.
The FWC rejected all arguments
The Commissioner found that whilst the advertisement did refer to 12 months, "any sense from the advertisement that the employment would be for a 12-month duration was superseded by the subsequent offer email. The offer email clearly specified a duration of employment just under 9 months. [The worker] was cognisant of this more limited duration prior to accepting the offer of employment."
The Commissioner concluded: "Consequently, there is no basis to find that his entry into the contract of employment was procured by misrepresentation."
On the question of economic pressure, the Commissioner stated:
"Furthermore, there is no basis to conclude that [the worker] was subject to duress which vitiated his acceptance of the offer as set out in the offer email. The fact that his engagement with [the labour hire agency] was due to expire on the day that he received the offer email from the Department, does not give rise to duress."
Regarding expectations of ongoing employment, the Commissioner found: "In addition, at no stage was [the worker] in fact given any 'assurance' by the Department that the employment dates in his contract of employment would be amended or that good performance would 'guarantee' ongoing employment."
The Commissioner addressed the "foot in the door" statements made by colleagues:
"Moreover, the 'foot in the door' statements by his colleagues (one of whom was then a team leader), amounts to no more than colleagues, relaying their own experiences of obtaining more secure employment. Those statements in no way constituted a representation on behalf of the Department, or any variation or formation of any legal relationship or obligation."
On the continuous employment argument, the Commissioner stated:
"Lastly, there is no basis for [the worker's] contention that the true terms of the employment with the Department constituted a continuous employment relationship commencing from March 2024. The true terms of the employment were set out in the offer email, which specified a commencement date of 9 September 2024 and expiry date of 30 June 2025."
Application dismissed for lack of jurisdiction
The Commissioner acknowledged the worker's disappointment:
"The ending of [the worker's] employment in the Department was clearly deeply disappointing for him. This is entirely understandable, and I accept that he genuinely holds this sentiment."
However, the Commissioner concluded: "However, by operation of s 386(2)(a), [the worker] was not dismissed by the Department within the meaning of s 386. As [the worker] was not dismissed by the Department, his application under s 394 must fail for want of jurisdiction."
The FWC ordered that the application be dismissed.
