Fixed-term employee disputes contract end date following formal confirmation of permanent status
The Fair Work Commission (FWC) recently dealt with a general protections application involving dismissal where the employer raised a jurisdictional objection, arguing that no dismissal had occurred.
The employer said the worker's employment had simply ended when his fixed-term contract expired as originally agreed, and therefore no dismissal within the legal definition had taken place.
The worker argued that his original fixed-term contract had been varied to permanent employment through a formal letter from the company congratulating him on completing his probationary period and appointing him to "permanent staff."
He maintained that this variation meant his employment could not simply end when the original contract date arrived, and that the employer's decision to terminate constituted dismissal at the employer's initiative.
The worker had been initially engaged as a rostering officer on a fixed-term contract dated 9 May 2022, with employment commencing on 31 May 2022 and scheduled to end on 30 March 2025. The employer provides general community support services through various funded programs including the National Disability Insurance Scheme (NDIS) and Home Care Packages.
The original contract noted that the employment period aligned with the worker's subclass 485 Temporary Graduate Visa and stated that any changes to visa dates or conditions would trigger a review of the employment agreement. The worker signed the letter of employment on 10 May 2022, establishing the fixed-term arrangement.
In June 2022, shortly after starting work, the worker provided the company with confirmation of his permanent residency status. This change in visa circumstances would prove significant in the subsequent legal analysis, as the original contract specifically contemplated that visa changes might affect the employment arrangement.
On 11 January 2023, the company provided the worker with a significant letter from the CEO congratulating him on successfully completing his probationary period. The letter stated: "Congratulations, we wish to advise you that you have successfully completed your probationary period […] and therefore have been appointed to our permanent staff in the position of Rostering Officer."
The letter requested that the worker sign it in acknowledgement and return it, which he did on 16 January 2023. The communication concluded by wishing the worker "a long and mutually rewarding career with [the employer]." This letter would become central to the worker's argument that his employment status had been varied from fixed-term to permanent.
Following this correspondence, the company's internal TRACCS system was updated to reflect an employment end date of 2050. The worker claimed that after he raised concerns about workplace rights and roster changes, the system was updated with an end date of December 2025, though the FWC noted there was no evidence demonstrating any actual change beyond assertions made.
The situation began to deteriorate in February 2025 when the worker verbally raised concerns about unsafe roster changes and their impact on his health and caring responsibilities with management on 20 February 2025.
On the same day, the worker sent an email to his operations manager and CEO seeking confirmation about whether his employment contract ending on 30 March 2025 would be reviewed, asking if he would be "getting another one."
The company's response came swiftly. On 21 February 2025, the worker received an email from the new CEO advising that his employment would end on 30 March 2025, citing the original fixed-term contract. This communication effectively confirmed that the company intended to honour the original contract end date despite the intervening correspondence about permanent appointment.
On 25 February 2025, the worker lodged a formal complaint about his manager and a range of issues. The worker then took sick leave from 26 February 2025 to 7 March 2025 and subsequently parental leave from 7 March 2025 to 28 March 2025. The FWC found that the email confirming his employment was ending was prompted by the worker's own inquiry about contract renewal.
The FWC examined whether the worker had been dismissed within the meaning of section 386(1) of the Fair Work Act 2009. Section 386(2) provides an exception stating that a person has not been dismissed if they were employed under a contract for a specified period and employment terminated at the end of that period. This exception was central to the employer's argument.
The employer relied heavily on established case law which requires that written contract terms must be given effect unless they are contrary to statute. The employer argued that the original fixed-term contract should govern and that any expectations of ongoing employment were irrelevant to determining whether dismissal had occurred.
The employer also cited legal precedent establishing that hopes or expectations falling short of binding promises are not sufficient to establish ongoing employment rights. However, the FWC said that the worker's case could be distinguished because he had a specific basis for claiming an implied variation to his contract existed - the formal letter from the company appointing him to "permanent staff."
The FWC found that the letter of 11 January 2023 constituted a valid contract variation. The Commission stated: "This letter tells [the worker] that he is 'appointed to our permanent staff'. This is an offer and one that requested his acceptance, which he gave in signing it on 16 January 2023."
The FWC determined that all necessary elements of a contract variation were present: "[The employer] made the offer which [the worker] accepted. [The employer] lawfully continued to pay [the worker] and the agreement was set out in a manner clearly intended to be binding on the parties and that much is clear as a consequence of [the worker] being asked to sign and return it."
The Commission rejected the employer's argument that this variation was inconsistent with the original contract terms. Since the worker had obtained permanent residency in June 2022 and immediately provided this information to the company, the January 2023 letter was "entirely consistent with the express terms of the contract."
The FWC concluded: "[The worker] was dismissed at the initiative of [the employer], with his employment coming to an end on 30 March 2025 in accordance with s.386(1) of the Act." The employer's jurisdictional objection was dismissed, and the matter was programmed for conference to proceed with the substantive general protections claim.
