Aboriginal Hostels Limited v Louise McCue
[2025] FWCFB 189
•26 AUGUST 2025
| [2025] FWCFB 189 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Aboriginal Hostels Limited
v
Louise McCue
(C2025/3137)
| VICE PRESIDENT GIBIAN | SYDNEY, 26 AUGUST 2025 |
Appeal against decision [2025] FWC 420 of Commissioner Riordan at Sydney on 1 April 2025 in matter number U2024/11200 – Application for unfair dismissal remedy – Jurisdictional objection to application – Whether employee had been “dismissed” – Whether employee employed under a contract of employment for a specified period of time – Employee offered non-ongoing appointment because she was not an Australian citizen – Whether conditional offer of ongoing employment upon demonstration of Australian citizenship – Whether automatically became employed on an ongoing basis upon producing proof of Australian citizenship – No offer of ongoing employment – Employee not dismissed by operation of s 386(2)(a) of the Fair Work Act 2009 (Cth) – Permission to appeal granted and appeal allowed – Application for unfair dismissal remedy dismissed.
Introduction and background
Aboriginal Hostels Limited (AHL) is a not-for-profit company wholly owned by the Australian Government. Since 1973, AHL has provided accommodation for First Nations people at various locations throughout Australia. One of the facilities operated by AHL is the Sid Ross Hostel on the lands of the Arrente people in Alice Springs.
The present appeal arises from an unfair dismissal application made under s 394 of the Fair Work Act 2009 (Cth) (the FWAct) by a former employee of AHL, Louise McCue. AHL objected to Ms McCue’s application on jurisdictional grounds. AHL says that Ms McCue was not “dismissed” because she was “employed under a contract of employment for a specified period of time … and the employment has terminated at the end of the period” for the purposes of s 386(2)(a) of the FW Act. Commissioner Riordan rejected AHL’s jurisdictional objection.[1] AHL says he was wrong to do so and has applied for permission to appeal, and to appeal, from the decision of the Commissioner under s 604(1) of the FW Act.
The relevant background to the appeal can be summarised as follows. Ms McCue emigrated to Australia from the United Kingdom in 2008 and moved to Alice Springs. Ms McCue initially worked for AHL as a cook at the Sid Ross Hostel from 2011 to 2013 when she left Alice Springs. Ms McCue returned to Alice Springs in around 2021. By letter dated 23 March 2021, Ms McCue received what was described as an “Offer of Non-ongoing Employment” at the APS Level 2 (Cook). The letter indicated that Ms McCue would be “employed as a non-ongoing employee under Section 22 of the Public Service Act 1999 (PS Act)”. The terms of engagement attached to the letter recorded a “Termination Date” of 28 October 2021 and set out a number of conditions of engagement including:
Australian Citizenship Documentation. You must be an Australian citizen. In accordance with subsection 22(8) of the PS Act, the AHL CEO must not engage a person who is not an Australian citizen as an APS employee. In exceptional circumstances only, the AHL CEO may determine that citizenship may be waived or a permanent resident be conditionally engaged pending receipt of citizenship.
The evidence indicated that, in October 2021, Ms McCue went through an interview process for the position of Assistant Hostel Manager. In an email dated 19 October 2021, the then Acting Assistant Business Manager for AHL, Patricia Murdoch, sought approval for Ms McCue, who was recorded to be first on the merit list, to be put into the position of Assistant Hostel Manager. That approval was forthcoming.
During the recruitment process, it was discovered that Ms McCue was not an Australian citizen, although she had assumed she was. In an email dated 20 October 2021 addressed to a human resources employee of AHL, Ms Murdoch stated:
As discussed this afternoon, AHL employee Louise McCue is not an Australian Citizen but has been a permanent resident in Australia since 2008. She mistakenly thought as she had ongoing permanent residency that this was in fact her citizenship.
Louise has been working as the main cook at Sid Ross Hostel since March 2021, she has been a great asset to the team at Sid Ross.
Louise recently went through the interview process for the role of Assistant Hostel Manager at Sid Ross Hostel and was successful. I have only found out today about her citizenship status from rec recruitment and contacted her immediately, Louise immediately applied for citizenship. She was obviously shocked and upset at the prospect of not been able to continue with her employment with AHL, and more upsetting was that she had been notified on Monday about her success in acquiring the Assistant Manager role at Sid Ross Hostel.
In the email, Ms Murdoch requested that Ms McCue be granted an exception from the citizenship requirement. After some further email correspondence, it appears that a waiver of the citizenship condition was granted for a period of six months.
Ms McCue gave evidence that, at a meeting involving Ms Murdoch, and Director Human Resources of AHL, Regina Gorecki, she was told that she was being given a non-ongoing contract because she was not an Australian Citizen. Ms McCue says she was advised that, as soon as she was given Australian Citizenship, she would be offered a permanent position. In her witness statement filed in the proceedings, Ms McCue said:
In the meeting to sign Attachment LM-3 in Alice Springs with Patricia Murdoch and Regina Gorecki, ex-HR manager, I was told that I was being given a nonongoing contract as I was not an Australian Citizen. I was advised that as soon as I was to be given Australian Citizenship, I would be offered a permanent position.
In her oral evidence, Ms McCue said:
… All - all I can remember is Trish Murdoch came to see me at Sid Ross. She told me, 'Louise, you're not a citizen, can you explain?'. I explained. Then we rang Regina Gorreke and the three of us had a conversation. Yep. And I was made aware that I would be a non ongoing. I had to apply for my citizenship. When I got my citizenship I would be made ongoing. Yeah.
I put it to you that they didn't say that you'd be made ongoing. I put it to you that
what they said - - -?---Actually - - -You can - - -?---Sorry. Actually they did. That's exactly what they said.
Neither Ms Murdoch nor Ms Gorecki gave evidence. There was no other evidence in relation to this meeting other than the account given by Ms McCue and there was no reason for the Commissioner not to accept the evidence of Ms McCue as to what was said to her at the meeting. There is some uncertainty, however, as to the timing of the conversation. In her witness statement, Ms McCue indicated that the conversation took place at a meeting the purpose of which was to sign a letter of offer dated 26 October 2021. The chronology of events, and the documentary evidence, suggest that the conversation most likely happened on 20 October 2021 or at the latest on 26 October 2021.
On 26 October 2021, Ms McCue sent an email offering her “non-ongoing employment” with AHL at APS Level 3.7 in the position of Assistant Hostel Manager. The email attaching the letter of offer commenced as follows:
I am delighted to present you with an offer of non‐ongoing employment as an APS 3.7, Assistant Hostel Manager at Sid Ross Hostel to commence on 28 October 2021 for a period of 6 months.
The email attached a letter of offer and a document entitled “Notice of Engagement Non-Ongoing APS Employee” signed by Regina Gorecki, Director Human Resources, which contained the following notation:
This Notice of Engagement, the attached Letter of Offer and the Aboriginal Hostels Limited Enterprise Agreement 2017 (AHL EA) form the complete offer of employment from Aboriginal Hostels Limited to Louise McCue (you).
…
The terms of your engagement will be as specified in this Notice of Engagement and those which apply generally to APS Employees.
Later in the document, Ms Gorekci recorded:
As delegate of the AHL Chief Executive Officer (AHL CEO) under the PS Act, I hereby:
i)engage the person who is specified below as a non-ongoing APS employee under section 22(2)(b) of the Act and subject to the subsection 22(6) conditions set out below;
ii)assign to you under section 25 of the Act the duties as specified; and
iii)allocate to you under Rule 6 of the Public Service Classification Rules 2000 the classification of APS Level 3.7.
On 27 October 2021, Ms McCue signed an acceptance of the offer and ticked a box which read “I formally accept the offer of non-ongoing employment”.
Ms McCue’s employment was then extended on a number of further occasions. On 27 April 2022, Ms McCue was issued with a Notice of Extension of Non-ongoing Employment, with a commencement date of 14 April 2022 and “New Cessation Date” of 21 September 2022. On 19 September 2022, Ms McCue was issued with a further Notice of Extension of Non-ongoing Employment, with a commencement date of 22 September 2022 and “New Cessation Date” of 21 March 2023. Ms McCue gave evidence that, prior to the extensions, she did not attend any meetings to discuss the potential extensions and was just sent the letters.
Finally, on 20 March 2023, Ms McCue was issued with a final “Notice of Extension of Non-ongoing Employment” again in the position of Assistant Hostel Manager. The “Extension Commencement Date” was recorded to be 22 March 2023 and a “New Cessation Date” was stipulated to be 19 September 2024. Each of the documents entitled “Notice of Extension of Non-ongoing employment” contained the following notation:
This extension is made under Section 22(5) of the Public Service Act 1999. During the period of the extension, your employment will continue to be subject to the terms and conditions set out in the original offer of non-ongoing employment.
It is unnecessary, for the purposes of this appeal, to set out in detail the events which preceded Ms McCue’s employment coming to an end (to use a neutral expression). However, it is appropriate to describe the events in overview.
In May 2023, Ms McCue attended a meeting with the Operations Manager, Lorraine Tait. Ms Tait informed Ms McCue that she was being reassigned to another facility known as the Alyerre Hostel. Ms McCue was taken aback and asked why the change was necessary. Ms McCue says that Ms Tait became upset, raised her voice and slammed her fist on the desk. The incident resulted in Ms McCue making a complaint of bullying in relation to the conduct of Ms Tait and taking a period of time away from work on workers compensation.
In July 2023, Ms McCue applied for the APS4 position of Assistant Manager. She was not selected to be interviewed for the position. Ms McCue says she received a phone call during which she was advised that she was not successful for an Assistant Manager position and that her contract would not be extended beyond 19 September 2024. A second round of recruitment occurred in October 2023 and Ms McCue again applied for an Assistant Manager position. On this occasion, she was informed that she was “pipped to the post” by another employee because he had citizenship and that she would be put in the merit pool.
On 15 May 2024, Ms McCue sent AHL an email confirming that she would be granted Australian Citizenship. Ms McCue says she was told that this was not enough and that she needed to provide a citizenship certificate. On 13 September 2024, Ms McCue received her certificate of Australian citizenship. On 15 September 2024, with the end date of her contract approaching, Ms McCue wrote an email to Deane Bear, Business Manager, providing the certificate of citizenship and setting out a number of options for her to continue her employment with AHL. Ms Bear responded by saying:
Hi Louise,
Thank you for your message and congratulations on formally obtaining your Australia citizenship. As discussed on the telephone I have no authority to appoint you to positions you requested at the expiration of your contract. I will forward this onto HR for review.
Best wishes, Deanne
Ms McCue interpreted the message to mean that her contract had expired. A further incident occurred on 17 September 2024 in which Ms McCue encountered Ms Tait in the workplace and then left the building. Ms McCue indicated that she took her last two days of work off due to stress. It does not appear to be disputed that Ms McCue’s employment ended on 19 September 2024.
Decision of the Commissioner
On 21 September 2024, Ms McCue filed an application for an unfair dismissal remedy with respect to the cessation of her employment with AHL. In its response to the application filed on 15 October 2024, AHL objected to the application on the ground that Ms McCue was not “dismissed” either because she was employed under a contract of employment for a specified period of time and the employment ceased at the end of this period for the purposes of s 386(2)(a) or, in the alternative, any dismissal was not at AHL’s initiative for the purposes of s 386(1)(a) of the FW Act.
The application was unable to be resolved in conference. The Commissioner conducted a hearing in relation to the jurisdictional objection on 11 February 2025 and handed down his decision on 1 April 2025. After setting out the submissions of the parties, the Commissioner referred to the decision of the Full Court of the Federal Court of Australia in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161; (2024) 307 FCR 65 which was relied upon by AHL. The Commissioner appeared to distinguish the decision of the Full Court as follows:[2]
Rugby league referees are seasonal employees. All of them. No exceptions. The season starts and it concludes. Referees are not employed for 52 weeks of the year. There is a significant gap or off season at the conclusion of the competition where the referees can undertake alternate work in what would be described as their normal hours. The Applicant, on the other hand, was required to work full time for the duration of her contracted period. Apart from taking approved leave, in accordance with the NES, the Applicant was not at liberty to perform alternate work or not undertake her duties during her normal hours. Further, the overwhelming majority of employees who work for the Respondent are permanent full-time employees. I have taken these issues into account.
The Commissioner observed that Ms McCue gave unchallenged evidence that her “non-ongoing” appointment would be converted to an “ongoing” appointment once she obtained Australian citizenship and found that she was “conditionally engaged as a non-ongoing employee pending receipt of her relevant citizenship documents”.[3] The Commissioner noted that it was not disputed that Ms McCue had provided her citizenship certificate and asserted that there was no need for her to provide her citizenship certificate at that point unless she had been promised an ongoing role once she had become an Australian citizen.[4] The Commissioner found that “[w]hilst the Applicant was appointed as a non-ongoing employee”, her role was ongoing and her manager, Ms Appo, was of the opinion that Ms McCue was a competent and worthy candidate for the position of Assistant Manager at Alice Springs or a Manager position at a different hostel.[5]
The Commissioner referred to recent amendments to the FW Act in relation to fixed term contracts and said:[6]
The FW Act was amended by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022, which received Royal Assent on 6 December 2022. This included new provisions in relation to ‘fixed term contracts’ which came into effect on 6 December 2023. This new legislation basically prohibited the Respondent from treating any future employee in the same manner as it has treated the Applicant. Fixed-term contracts can now only be extended once and the total duration of the fixed-term contract is 2 years. The Respondent submitted that the new provisions did not apply to the Applicant’s situation, because her last contract was signed before this legislative amendment came into force. I do not agree. Once the new legislative provisions came into effect, the Respondent was required to comply with the legislation. The Respondent’s business activity was not an excluded activity as per the Fair Work Amendment (Fixed Term Contracts) Regulations 2023. The Respondent should have dealt with the Applicant’s employment situation at that point in time, not simply let it meander to its conclusion on 19 September 2024.
Under the heading “Conclusion”, the Commissioner indicated he was satisfied that the decision in Alouani-Roby could be distinguished on the basis that AHL runs accommodation hostels for Indigenous Australians not a professional sporting competition, the overwhelming majority of AHL’s employees are permanent full-time employees and not fixed term or seasonal employees and the role performed by Ms McCue was an ongoing and required function.[7] The Commissioner’s conclusion continued:[8]
The Respondent acknowledged that there may have been a commitment to engage the Applicant as an ongoing employee once she obtained citizenship, but incorrectly stated that this commitment expired on 6 March 2023, 18 months after the Applicant was placed on a merit list. The incontrovertible evidence shows that the Applicant was placed on a second merit list in March 2024.
I am satisfied and find that the Applicant was promised an ongoing role if she was able to gain Australian citizenship. I’m surprised that the Respondent did not act on this advice on 15 May 2024, rather than wait for the Citizenship Ceremony, which is a mere formality and are only held at the convenience of the appropriate dignitary. However, even if the Respondent required to see the actual certificate, the Applicant produced this certificate a few days before her fixed term employment expired. The Respondent was obligated to appoint the Applicant to a role at that point in time.
Based on this reasoning, the Commissioner was satisfied that Ms McCue was dismissed by AHL and dismissed AHL’s jurisdictional objection.
Statutory provisions
Part 3-2 of the FW Act is entitled “Unfair dismissal”. Relevantly, s 394(1) provides that a person who “has been dismissed” may apply for an order granting an unfair dismissal remedy. Section 390(1) provides for the Commission to order reinstatement, or the payment of compensation, if it is satisfied the person is protected from unfair dismissal and “the person has been unfairly dismissed”. One of the requirements which must be found to exist for a person to have been “unfairly dismissed” is listed in s 385(a) and is that the Commission is satisfied “the person has been dismissed.”
Section 386 is entitled “Meaning of dismissed” and provides:
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
(b)the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c)the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
(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.
In accordance with s 386(1), a person has been “dismissed” if the person’s employment has been “terminated on the employer’s initiative” or if the person resigned “but was forced to do so because of the conduct, or a course of conduct, engaged in by his or her employer”.
Section 386(2) then sets out various circumstances in which a person is taken not to have been dismissed.[9] It is not entirely clear whether s 386(2) identifies, for the avoidance of doubt, circumstances that are not intended to fall within the description of when a person has been “dismissed” in s 386(1) or to exclude circumstances that might otherwise be caught by that description. It is sufficient, for present purposes, to observe that, if one of the circumstances in s 386(2) exists, the person will not have been “dismissed”, and it is unnecessary to consider whether the cessation of the person’s employment might otherwise have given rise to a dismissal for the purposes of s 386(1) (at least unless the exception in s 386(3) is enlivened).
Section 386(2)(a) is of primary importance in this matter. Relevantly, s 386(2)(a) provides that a person has not been dismissed if the person was “employed under a contract for a specified period of time … and the employment has terminated at the end of the period”. As explained by the Full Bench in Roberts v TasTAFE[2025] FWCFB 3, the expression “engaged under a contract of employment for a specified period of time” was, for a long time, understood to refer only to a contract under which the period of employment has certainty as to both its commencement and time of completion.[10] On this interpretation, a person was not considered to be employed under a contract for a “specified period of time” if their contract provided for a cessation date but contained an unqualified right to terminate on notice prior to its expiry.[11] The Commission continued to apply that view to the same language in s 386(2)(a).[12]
In Alouani-Roby, the Full Court adopted a different construction of s 386(2)(a). The Full Court concluded that, in the context of s 386(2)(a), 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.[13] The consequence is that a contract of employment which records a designated end date at which the employment will terminate is capable of being described as “a contract of employment for a specified period of time” even if the contract contains an unconditional or unqualified right to terminate during its term. If the employment of a person who is employed under such a contract terminates “at the end of the period”, the person has not been “dismissed” for the purposes of s 386 of the FW Act by operation of the exception in s 386(2)(a).[14]
Permission to appeal
A person aggrieved by a decision of a member of the Commission may only appeal under s 604(1) of the FW Act with permission. The Commission is required, by s 604(2), to grant permission to appeal if it is satisfied it is in the public interest to do so. Otherwise, the Commission generally has a broad residual discretion as to whether to grant permission to appeal. That discretion is limited in the case of an appeal concerning a decision under Part 3-2 of the FW Act. Section 400(1) dictates that the Commission may only grant permission to appeal in such a case if it is satisfied it is in the public interest to do so.
We are satisfied that it is in the public interest to grant permission to appeal in this matter. The appeal raises issues of general importance and broader application as to the implications of the recent decision of the Full Court in Alouani-Roby. That decision concerns an important and frequently utilised aspect of the Commission’s jurisdiction. It is appropriate that the implications of Alouani-Roby in the context of this matter be considered by the Full Bench. We are also satisfied that AHL has demonstrated arguable grounds of appeal which, for the reasons which appear below, establish error in the decision of the Commissioner and that Ms McCue was not able to apply for an unfair dismissal remedy.
Grounds of appeal
AHL’s notice of appeal contains three grounds with, in each case, a number of particulars.
(a)Ground 1 is that the Commissioner erred in failing to apply the reasoning of the Full Court in Alouani-Roby in circumstances that were not relevantly distinguishable, including by distinguishing the present case on the basis of the nature of Ms McCue’s role, failing to consider the terms of the contract of employment entered into by Ms McCue and taking into account a number of irrelevant considerations.
(b)Ground 2 is that the Commissioner misapprehended or misconstrued the matters about which he had to be satisfied in order to find that Ms McCue had been dismissed for the purposes of ss 385(a) and 386 of the FW Act, including that the Commissioner erred by failing to find that Ms McCue’s non-ongoing contract expired by the effluxion of time, misconstrued the operation of the Public Service Act 1999 (Cth) (the PS Act) and erred in finding that the grant of Australian citizenship to Ms McCue had the effect of converting her employment to ongoing employment.
(c)Ground 3 is that the Commissioner erred in finding that AHL had obligations under s 333E of the FW Act with respect to Ms McCue and that such obligations were relevant to whether Ms McCue was dismissed.
Counsel for AHL appropriately addressed grounds 1 and 2 together. In substance, grounds 1 and 2 contend that the Commissioner erred in finding that Ms McCue was dismissed in circumstances in which he should have found that she was “employed under a contract of employment for a specified period of time … and the employment has terminated at the end of the period” for the purposes of s 386(2)(a). As counsel for Ms McCue acknowledged, if AHL’s submissions in that respect are correct, the appeal must be allowed. The submissions were directed at whether the Commissioner took into account irrelevant considerations, misapprehended the question posed by s 386(2)(a) and as to the operation of the PS Act were useful and instructive as to the conclusion the Commissioner should have reached. However, in the context of this matter, it is sufficient for the Full Bench to consider whether the conclusion of the Commissioner that Ms McCue had been dismissed was correct or not.
Counsel for Ms McCue made helpful and thorough submissions in opposition to the appeal. The submissions had the further effect of narrowing the dispute. On appeal, Ms McCue accepted that, if she was employed under a contract of employment for a specified period of time at the time her employment came to an end on 19 September 2024, s 386(2)(a), as understood in Alouani-Roby, means that she had not been dismissed. Ms McCue does not suggest that Alouani-Roby can be distinguished on the bases suggested by the Commissioner. However, Ms McCue contends that the Commissioner found that the grant of Australian citizenship to Ms McCue in September 2024 had the effect of converting her non-ongoing employment to ongoing employment and that, as at 19 September 2024, she was not employed under a contract of employment for a specified period of time. Ms McCue submits that, as a result, s 386(2)(a) and the reasoning of the Full Court in Alouani-Roby have no application to the termination of her employment and she was dismissed for the purposes of s 386(1)(a).
The submission advanced by Ms McCue on appeal is that a standing offer of ongoing employment was made during the conversation involving Ms Murdoch and Ms Gorecki in October 2021 which was capable of acceptance at all times thereafter by provision of proof of Australian citizenship. Ms McCue says that she provided her certificate of citizenship prior to her employment ceasing on 19 September 2024 and she became an ongoing employee at least at the time she provided her certificate of citizenship. Ms McCue submits that, as a result, she was not employed on a contract of employment for a specified period of time for the purposes of s 386(2)(a) at the time her employment was terminated, and her employment was terminated on 19 September 2024 at the initiative of AHL.
Ms McCue submits that the Commissioner found that a conditional offer of employment as an ongoing employee was made to her in the conversation which took place in October 2021. Ms McCue refers to the finding of the Commissioner, at paragraph [181], that he was satisfied she “was conditionally engaged as a non-ongoing employee pending receipt of her relevant citizenship documents” and, at paragraph [186], that there was no reason for Ms McCue to provide the certificate of citizenship if she had not been promised an ongoing role once she had become an Australian citizen. Further, Ms McCue refers to the finding, at paragraph [195], that the Commissioner was satisfied that she was “promised an ongoing role if she was able to gain Australian citizenship” and that AHL “was obligated to appoint the Applicant to a role” upon provision of her citizenship certificate.
AHL disputes that the decision of the Commissioner should be understood as including a finding that a conditional offer of ongoing employment was made to Ms McCue in October 2021 which was capable of acceptance, and was accepted, in September 2024. In the alternative, if the Commissioner did make such a finding, AHL submits he was wrong to do so. Ms McCue accepted that, if the decision of the Commissioner is to be understood as she submits, it is open to AHL to contend on appeal that the finding was wrong. Although perhaps advanced as an alternative, particular (f) to ground 2 of the notice of appeal contends that the Commissioner erred in finding that the grant of Australian citizenship upon Ms McCue in September 2024 had the legal effect of converting her employment to that of an ongoing employee. In any event, the question turns on a legal conclusion drawn from an objective assessment of the facts as found by the Commissioner and is able to be ventilated on appeal.
AHL complained that the contention now advanced by Ms McCue on appeal differs from the manner in which the case was advanced at first instance and causes it unfairness. Upon examination, the only complaint with substance is that, if the Full Bench concludes that a conditional offer of ongoing employment was made in October 2021, AHL was denied the opportunity to explore, or put on evidence in relation to, whether Ms Gorecki or Ms Murdoch had authority to offer Ms McCue ongoing employment. Given the conclusions we have reached, it is unnecessary to address that matter.
Contract of employment for a specified period of time
It is appropriate to first consider the submission that Ms McCue was not employed under a contract of employment for a specified period as at 19 September 2024 at all despite the terms of the written offer of employment and the extension documents executed in the course of her employment.
The fact that an employee is ostensibly employed under a written contract of employment which contains a specified end date might not be the extent of the inquiry necessary to ascertain the true contractual position of the employee. It is possible that the contract may be vitiated by misrepresentation, fundamental mistake in relation to its subject matter or terms, misrepresentation or unconscionability, duress or coercion, illegality or because the contract is a sham.[15] In other cases, the conduct of the parties may give rise to a variation to the contract, the abandonment of the contract and its replacement or an estoppel that precludes the employer from relying on the strict terms of the contract. Ms McCue referred to the decision of the Full Court in Fisher v Edith Cowan University (No 2) (1997) 72 IR 464 where it was said:[16]
There may also be termination of the employment at the initiative of the employer and not pursuant to the mutual will of the parties if the terms of a fixed period contract have been varied in the course of performance of the contract, or the contract has been abandoned and replaced by another agreement, or the employer has engaged in conduct or representations which estop the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated. In those circumstances an employee may show that reliance by the employer upon the purported effluxion of a period of time for employment is, in fact, termination of the employment at the employer's initiative.
There is no reason to doubt that this statement represents the present state of the law. In the context of identifying whether the relationship created by a contract is one of employment, or whether an employment is properly characterised as casual in nature, the High Court has emphasised that the focus must be on the legal rights and obligations created by the contract.[17] However, even where there is an apparently comprehensive written contract, the conduct of the parties may be relevant to ascertaining the rights and obligations of the parties, or the terms of their agreement. That may be the case where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver, or where it is alleged that the contract is a sham.[18] An inquiry into whether a contract of employment has been varied or replaced, or an estoppel arises, does not involve an impermissible examination of whether the employee had grounds for a legitimate expectation that the employment might continue.[19] It involves a determination of the legal rights and obligations of the parties properly understood.
Having regard to the submissions now advanced on behalf of Ms McCue, the task in this matter is to determine whether the statements made to Ms McCue in the meeting with Ms Gorecki and Ms Murdoch in October 2021 constituted a conditional offer of ongoing employment capable of being accepted by Ms McCue when she achieved Australian citizenship. Leaving aside the operation of the PS Act to which we will return, we accept it is possible for an employer to make a conditional offer of employment available to be accepted upon the occurrence of a stipulated event. The question is whether that is what occurred in the circumstances of Ms McCue.
Whether the parties intended to create a legal relationship or, by oral or written statement, to create a contractually binding obligation, involves an objective assessment of the intention of the parties understood in light of the whole of the circumstances. In Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120, for example, the Full Court considered whether a policy document had been incorporated into the contract of employment of an employee. Black CJ explained:[20]
The principles to be applied in determining whether any, and if so what, parts of WWU were terms of the contract of employment are not in doubt. It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179, the Court said:
“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”
The question of whether an enforceable contractual obligation has been created depends upon an assessment of the intention of identified parties, viewed objectively, to voluntarily assume legally enforceable duties for real consideration.[21]
Approached in this way, we are not convinced that anything said to Ms McCue in the meeting with Ms Gorecki and Ms Murdoch in October 2021 could have reasonably been understood to evidence an intention on the part of AHL to make a contractually binding offer of ongoing employment capable of being accepted in the event that Ms McCue obtained Australian citizenship. We do not consider that a reasonable person in the position of Ms McCue would have concluded that AHL intended to be bound by an offer of ongoing employment which was available to be accepted by her indefinitely into the future whenever she obtained Australian citizenship.
First, the words attributed to Ms Gorecki and Ms Murdoch do not suggest that AHL intended to make an immediate offer of ongoing employment. Ms McCue’s recollection of the conversation varied somewhat. In her witness statement, she recalled that she was told that, as soon as she was to be given Australian citizenship, she “would be offered a permanent position”. In oral evidence, she said she was told: “When I got my citizenship I would be made ongoing”. At most, those statements suggest a promise was made that ongoing employment would be offered in the future. That is, it was suggested to Ms McCue that, if she obtained citizenship, she would then be offered ongoing employment, rather than that an offer of ongoing employment was being made which was capable of acceptance by Ms McCue without any further action by AHL. We do not accept that Ms McCue’s evidence in relation to the meeting in October 2021 can reasonably be understood as demonstrating an intention on the part of AHL to be immediately bound by an offer of ongoing employment.
Second, shortly after the meeting with Ms Gorecki and Ms Murdoch, Ms McCue was given a formal offer of non-ongoing employment which she accepted by signing the offer on 27 October 2021. The fact that non-ongoing employment was offered and accepted is itself inconsistent with a conclusion that, objectively understood, AHL intended to make a separate offer of ongoing employment which was capable of acceptance at any time. Furthermore, the offer of non-ongoing employment was made in a formal document setting out, in apparently comprehensive form, the terms of the relationship. The “Notice of Engagement” document indicated that the documents formed “the complete offer of employment”. It is difficult to infer from that course of events, that AHL could be reasonably understood to have made a separate, contractually binding offer of ongoing employment without any formality or documentation and purely arising from an earlier oral discussion.
Third, the employment which was already held by Ms McCue, and the further non-ongoing employment which was offered to her in October 2021, was employment in the Commonwealth public service. Leaving aside the direct requirements of the PS Act, it was plainly the general approach of AHL that matters to do with the creation of an employment relationship, and setting out the terms and conditions of employment, were done formally and documented by way of detailed written offers of employment. That pattern of conduct, known to Ms McCue by reason of her existing employment, cannot be reconciled with the assertion that a reasonable person in the position of Ms McCue would have understood the discussion with Ms Gorecki and Ms Murdoch to have been intended to constitute a binding offer of ongoing employment. We consider that a reasonable person in the position of Ms McCue would not have drawn that conclusion.
For those reasons, we do not accept that a conditional offer of ongoing employment was made to Ms McCue in October 2021 which was capable of acceptance by her whenever she provided evidence of Australian citizenship. Ms McCue’s employment did not convert to ongoing employment in September 2024 when she provided her certificate of citizenship to AHL. The consequence is that the only contract of employment to which Ms McCue was a party in September 2024 was that created by “Notice of Extension of Non-ongoing Employment” dated 22 March 2023. It stipulated a “New Cessation Date” being 19 September 2024. As such, Ms McCue was employed under a contract of employment for a specified period of time and her employment terminated at the end of the period for the purposes of s 386(2)(a). By operation of s 386(2)(a), Ms McCue was not dismissed.
Having regard to that conclusion, it is unnecessary for the Full Bench to consider whether the decision of the Commissioner, properly understood, involved a finding that a conditional offer of ongoing employment was made in October 2021. It appears to us that, at most, the Commissioner found that Ms McCue had been promised an ongoing role if she was able to obtain Australian citizenship rather than that an offer of ongoing employment was actually made. To the extent the Commissioner concluded that AHL was “obligated” to appoint Ms McCue to an ongoing role upon provision of her citizenship certificate, he did not identify the source of the obligation.[22] With respect, if the Commissioner did find that such an obligation arose from a conditional offer of ongoing employment made in October 2021, the conclusion was wrong. The conclusion was also in error if the Commissioner concluded that AHL was obliged to offer Ms McCue ongoing employment by s 333E of the FW Act.[23]
Finally, it is also unnecessary to address in detail the submission of AHL that the PS Act did not permit Ms Gorecki and Ms Murdoch to make a conditional offer of ongoing employment to Ms McCue capable of acceptance upon her obtaining Australian citizenship. Section 22(6) of the PS Act permits the engagement of an APS employee subject to conditions notified to the employee, including in relation to citizenship. However, we are inclined to the view that the section contemplates an immediate offer of ongoing employment which is subject to conditions which must be satisfied, rather than an open offer of employment capable of acceptance in the future upon satisfaction of the condition. However, in the circumstances, it is unnecessary to express a firm conclusion in relation to that question. It is also unnecessary to resolve the question as to whether Ms Gorecki or Ms Murdoch had been delegated sufficient authority to offer ongoing employment to Ms McCue.
Conclusion and disposition
For these reasons, permission to appeal should be granted, the appeal allowed and the decision of the Commissioner quashed. On redetermination of AHL’s jurisdictional objection, the appropriate finding to be made is that Ms McCue was not dismissed by reason of s 386(2)(a). As a result, the Full Bench is not satisfied that she was dismissed for the purpose of s 385(a) of the FW Act. Ms McCue’s application for an unfair dismissal remedy must be dismissed.
The Full Bench makes the following orders:
(a)Permission to appeal is granted;
(b)The appeal is allowed;
(c)The decision of Commissioner Riordan in [2025] FWC 420 given on 1 April 2025 is quashed; and
(d)The application made by Louise McCue in Matter Number U2024/11200 is dismissed.
VICE PRESIDENT
Appearances:
V Bulut, of counsel, instructed by S Reeves of the Australian Government Solicitor for AHL.
J McKenna, of counsel, instructed by E Kilpatrick of the NT Working Women’s Centre for Louise McCue.
Hearing details:
16 June 2025.
Melbourne (in person).
[1] McCue v Aboriginal Hostels Limited[2025] FWC 420.
[2] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [178].
[3] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [179]-[182].
[4] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [186].
[5] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [188]-[191].
[6] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [192].
[7] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [193].
[8] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [194]-[195].
[9] Explanatory Memorandum to the Fair Work Bill 2009 (Cth) at [1531].
[10] Roberts v TasTAFE[2025] FWCFB 3 at [24]-[28].
[11] Cooper v Darwin Rugby League Inc (1994) 57 IR 238 at 241; Andersen v Umbakumba Community Council (1994) 56 IR 102 at 106-107; D'Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 at 25; Dadey v Edith Cowan University (1996) 70 IR 295 at 296-297; Ledington v University of Sunshine Coast (2003) 127 IR 152 at [34]; SPC Ardmona Operations Ltd v Esam (2005) 141 IR 338 at [68]-[69].
[12] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162; (2017) 273 IR 44 at [88]-[89] and [96] (Hatcher VP and Saunders C); Howard v Falls Creek Ski Lift Pty Ltd (t/as Falls Creek Ski Lift Group)[2023] FWCFB 154; (2023) 325 IR 434 at [25].
[13] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161; (2024) 307 FCR 65 at [50]-[53].
[14] Roberts v TasTAFE[2025] FWCFB 3 at [31].
[15] Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162; (2017) 273 IR 44 at [75](5)(a).
[16] Fisher v Edith Cowan University (No 2) (1997) 72 IR 464 at 471.
[17] WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 at [57] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ); Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 at [59]-[61] (Kiefel CJ, Keane and Edelman JJ) and [172]-[173] (Gordon J).
[18] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 at [42]-[43] and [49] (Kiefel CJ, Keane and Edelman JJ).
[19] Cf. Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161; (2024) 307 FCR 65 at [62]-[63].
[20] Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 at [23].
[21] Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8; (2002) 209 CLR 95 at [24]-[25] (Gaudron, McHugh, Hayne and Callinan JJ); Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 231 FCR 403 at [34]-[48].
[22] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [195].
[23] McCue v Aboriginal Hostels Limited[2025] FWC 420 at [192].
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