Aboriginal Hostels Limited v Louise McCue - [2025] FWCFB 189

[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
DEPUTY PRESIDENT MASSON
DEPUTY PRESIDENT FAROUQUE

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCFB 189
Decision Date: 26 AUGUST 2025

CaseChat Overview and Summary

Aboriginal Hostels Limited appealed to the Fair Work Commission Full Bench against a decision of Commissioner Riordan to reject its jurisdictional objection to an application for an unfair dismissal remedy by Louise McCue. The Full Bench was required to decide whether the Commissioner was correct to find that Ms McCue was dismissed for the purposes of s 385(a) and s 386 of the Fair Work Act 2009 (Cth). The Full Bench concluded that the Commissioner was wrong to find that Ms McCue had been dismissed. The Full Bench found that, as Ms McCue was employed under a contract of employment for a specified period of time, and her employment terminated at the end of this period, she was not dismissed for the purposes of s 386(2)(a). The Full Bench allowed the appeal, quashed the decision of the Commissioner and dismissed Ms McCue’s application for an unfair dismissal remedy.

Orders