Worker argued representations were made that her employment was not subject to fixed term
The Fair Work Commission (FWC) recently dealt with a general protections application involving dismissal from a transport project lead who alleged she had been dismissed from her employment.
The worker made the application on 11 April 2025. The employer raised a jurisdictional objection to the application on the basis that the worker was not dismissed.
The worker signed an employment agreement on 28 June 2024 in the position of transport project lead with a commencement date of 8 July 2024.
The employment agreement contained a contract period of six months ending on 6 December 2024. The worker said the founder promoted her to business development manager a few weeks after her employment commenced.
The case required the FWC to examine whether the worker had been dismissed, whether the employment agreement was a contract for a specified period of time, and whether the Commission had jurisdiction to deal with the application.
Employment agreement and promotion claim
The employment agreement outlined ordinary hours of work of 7.6 hours per day from Monday to Thursday, plus reasonable additional hours as required.
The agreement provided for a salary of $85,000 per annum pro rata plus superannuation.
The contract period was six months, ending on 6 December 2024. Ongoing employment was subject to the satisfactory completion of a six-week probationary period, during which mutual suitability would be monitored and "ongoing permanent employment being confirmed and determined" by the employer at its completion.
The employment could be terminated during the probationary period by either party giving the other one week's notice in writing.
The worker said the founder returned from leave a few weeks after her employment commenced and promoted her to the position of business development manager.
The founder confirmed that she returned from leave in early August 2024.
She acknowledged that she had neither recruited the worker nor negotiated the employment agreement, but she said she had suggested to the worker that they create an ongoing business development role for her.
The founder also said that before her resignation took effect on 30 August 2024, she had given instructions for the worker's employment agreement to be amended to reflect this promotion, but she subsequently discovered that her instructions were never actioned.
An interim chief executive officer gave evidence that she at no stage provided assurances, promises or offers to the worker that she was or would be employed on an ongoing, permanent or full-time basis.
She said that she was not authorised by the employer's board to offer the worker long-term employment, but that in November 2024, having consulted with the board, she was able to offer extensions to the worker and other employees whose fixed-term contracts were due to expire in December 2024 and January 2025.
Contract variation offered and signed
By letter dated 7 November 2024, the interim chief executive officer offered the worker a variation to the employment agreement that would extend her contract term until 28 March 2025.
The worker said that when presented with the offer of the variation to the employment agreement, she raised some concerns.
These were outlined in a letter she addressed to the interim chief executive officer, which was dated 13 November 2024 and included the assertion that her title had previously been changed to business development manager. The worker also outlined a request for various contract adjustments.
The worker said that when she asked what would happen if she elected not to sign the variation to the employment agreement on offer, she was told by the interim chief executive officer that her employment would end on 6 December 2024.
This assertion was confirmed by the interim chief executive officer. The worker characterised the response as an ultimatum and said she "reluctantly" signed the written variation to the employment agreement on 27 November 2024.
The written variation outlined that the contract term due to end on 6 December 2024 would be extended until 28 March 2025, and that all other conditions remained the same.
A new chief executive officer commenced on or about 13 January 2025. The worker sent the new chief executive officer and the employer's board an email on 21 February 2025, asserting that the written variation neither reflected her responsibilities and qualifications nor did it include an additional day per week.
The worker continued by outlining a request for contract adjustments, including a transition from four to five days per week, a salary increase to align with an award level, a transition to permanent employment, and a remuneration adjustment from 1 September 2024.
Employment not renewed at end of term
Evidently, the employer was unmoved by the worker's 21 February 2025 email. The new chief executive officer said that she notified the worker during a conversation on or about 24 February 2025 that her employment would not be renewed at the expiration of her term.
On 28 February 2025, the chief executive officer sent an email to the worker formally confirming the discussion that the worker's fixed-term contract would conclude on 28 March 2025, in accordance with the terms of the employment agreement.
The email stated the employment would end on this date. However, the employer was open to concluding the employment earlier by mutual agreement and would pay the worker out for the remaining period of the contract if she chose this option.
The FWC examined whether the worker had been dismissed. Section 386(1) of the Act relevantly defines the meaning of "dismissed" to include where the person's employment has been terminated on the employer's initiative, or the person has resigned but was forced to do so because of conduct engaged in by the employer.
However, section 386(2) provides that a person has not been dismissed if the person was employed under a contract of employment for a specified period of time and the employment has terminated at the end of the period.
While the worker relied on representations she said were made both when she was hired and then by the founder in asserting that her employment was to be ongoing and not subject to a fixed term, the employment agreement provided that in entering into the agreement, the worker was doing so on the basis of the terms and conditions in the agreement and not based on any representation or warranties made by any other person.
The agreement recorded the entire agreement and understanding between the parties and overrode any prior agreement or written or oral understanding.
Fixed-term contract finding made
The Commissioner stated: "The terms of the Employment Agreement signed by [the worker] on 28 June 2024 were clear. Item 7 of Schedule 1 outlined that [the worker] was employed for a period of 6 months ending on 6 December 2024."
As regards the worker's reliance on a clause stating that, following the probationary period, "ongoing permanent employment" would be confirmed and determined by the employer at its completion, the Commissioner noted that a written agreement between the parties was required to vary the terms of the employment agreement.
In this case, there was no written agreement between the parties confirming "ongoing permanent employment" for the worker.
The only variation of the employment agreement made in writing and signed by both parties was the written variation dated 7 November 2024, communicating the employer's offer to extend the employment to the further fixed date of 28 March 2025.
This was signed by the interim chief executive officer on 7 November 2024 and by the worker on 27 November 2024.
The Commissioner stated: "I am satisfied that the Employment Agreement, as varied in writing, was 'a contract of employment for a specified period of time' within the meaning of s.386(2)(a) of the Act."
The Commissioner noted that the employment agreement provided that the worker's employment could be terminated on the giving of notice, but stated this did not alter its status.
The Commissioner referred to a Full Court of the Federal Court decision which concluded that the phrase "a contract of employment for a specified period of time" is apt to include fixed-term contracts which permit termination otherwise than at the expiry of the term.
The Full Court said: "...a contract of employment that is expressed to terminate upon the expiry of a nominated term is a contract for a specified period of time; and it is no less so merely because it reserves for the parties other modes of earlier termination."
Application dismissed for lack of jurisdiction
The Commissioner stated: "The application of the reasoning...to [the worker's] case is clear. [The worker] was employed under a contract for a specified period, and she received confirmation that her employment would end at the conclusion of that period by the email from [the chief executive officer] sent on 28 February 2025. The email put [the worker] on notice that no further employment would be offered, and her employment would cease at the end of the specified period, that is, at the conclusion of the varied specified period on 28 March 2025."
The Commissioner found the reasoning meant that the worker was employed under "a contract of employment for a specified period of time" for the purposes of section 386(2)(a) of the Act.
That was so notwithstanding that the contract conferred an unconditional right on the employer to terminate the employment by the giving of notice in accordance with the Act. As the worker's employment terminated at the end of that period, section 386(2)(a) applied, and she was not "dismissed" for the purposes of the Act.
The Commissioner concluded: "[The worker] was not dismissed by the Respondent. As such, her application does not meet the requirements of s.365 of the Act, and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by [the worker] pursuant to s.365 of the Act is dismissed."
The decision confirmed that where a person is employed under a fixed-term contract and the employment terminates at the end of the specified period, the person has not been dismissed even if the contract contained provisions allowing for earlier termination by giving notice.
