Alfred Ochieng v MercyCare Community Services Inc. T/A MercyCare

[2014] FWC 2749

[2014] FWC 2749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alfred Ochieng
v
MercyCare Community Services Inc. T/A MercyCare
(U2013/17732)

DEPUTY PRESIDENT MCCARTHY PERTH, 30 APRIL 2014

Application for relief from unfair dismissal.

Background

[1] Mr Alfred Ochieng (the Applicant) lodged an Unfair Dismissal Application (the Application) on 23 December 2013 asserting that he was unfairly dismissed from his employment with MercyCare Community Services Inc. T/A MercyCare (the Respondent).

[2] The Application stated that the reasons for dismissal were that:

“I was told that my contract would end on 19th December and that would conclude by employment with Mercy Care”.

[3] The Application also stated amongst other things that:

“The letter of appointment I received when I got employed clearly stated that I was going to [sic] employed till 19th of December based on my visa which was expiring on that date. I had since applied for another visa and [sic] placed on a bridging visa which was going to be effective on 20th December with the same condition attached to my previous visa.

Under the conditions of my employment it clearly stated that I would get a performance review after 3 months of probation after which my employment contract will be agreed in writing by both parties.

I never got performance review in the 3 months period instead I got my performance review in August and I was never given feedback in writing as per the contract.”

[4] The Respondent lodged an Employers Response to the Application (the Employer’s Response) on 3 February 2014. In the Employer’s Response the Respondent stated amongst other things that:

“1 - We are of the view that the Applicant was not dismissed. He was engaged as a casual employee and it was stipulated on his contract that his period of engagement as a casual employee would end on 19 December 2013. (Appendix 1 - Contract of Employment). His employment with the Respondent ended as his engagement period had come to an end.

2 - We are of the view that the Applicant does not meet the minimum employment period as the Applicant was employed on a casual basis and there were a number of shifts where he was not available to work when we needed him to hence this breaks his continuity of services.

3 - The Applicant’s contract of employment stipulated 19 December 2013 as the date when his casual services would no longer be required. Therefore it was unreasonable for the Applicant to expect or assume that his employment will continue beyond this point.”

[5] I conducted a Directions Conference on 17 March 2014. At that Conference the Respondent maintained their objections to the Application consistent with those in the Employer’s Response. The Applicant asserted that he signed another document which displaced his previous contract that specified a fixed term. I issued Directions on 18 March 2014 requiring the parties to lodge documentary support for their contentions regarding the Respondent’s objections to the Application.

The Fair Work Act 2009 Requirements

[6] A person is protected from unfair dismissal if amongst other things the employee has completed a period of employment with his or her employer of at least the minimum employment period 1. Here the employer is not a small business employer thus the minimum period of employment is six months². A period of employment is the period of continuous service³.

[7] A period of service as a casual employee does not count towards the employee’s period of employment unless the employment was on a regular and systematic basis and, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis⁴.

[8] A person has not been dismissed if the person was employed for a specified period of time and the employment has terminated at the end of the period⁵.

Submissions

[9] The Respondent provided submissions and documents in support of their contentions that the Applicant was employed under a contract of employment for a specified period of time and his employment ended at the end of that period.

[10] A letter of appointment dated 11 March 2013 states:

“Commencement date: 13 March 2013

End Date: 19 December 2013(as per Visa Requirments)

Employment status: casual”

[11] A letter from the Respondent to the Applicant dated 12 December 2013 stated as follows:

“This letter is to thank you for your time that you have spent working with MercyCare. We acknowledge that your contract ends on 19 December 2013 and this would conclude your employment with MercyCare.

Once again we thank you for your valued contribution and wish you all the best with your future endeavors.”

[12] On 10 April 2014, the Applicant provided written submissions in support of his contentions. Importantly, the document referred to by the Applicant in the Directions Conference that he asserted replaced the letter of appointment was not produced. The Applicant contended that (i) he was a casual employee; (ii) he was employed on a regular and systematic basis; and (iii) he had a reasonable expectation of continuing employment beyond 19 December 2013. The first two of those contentions were not disputed. I will deal further with the third contention below.

[13] Secondly, the Applicant submitted that s.386(2)(a) of the Fair Work Act 2009 (the FW Act) did not apply by operation of s.386(3) by asserting that a substantial reason for the contract of employment being for a specified period was to avoid the obligations of the Unfair Dismissal provisions of the FW Act.

[14] Thirdly, the Applicant submitted that his contract of employment was of a generic nature provided to all employees and yet it contained specific terms for him as an individual. I find there is no substance or relevance in this element of the Applicant’s submissions.

[15] In respect of the Applicant’s contention that he had a reasonable expectation of continuing his employment he submitted that he had been rostered for shifts until the end of February 2014.

Consideration

[16] It is abundantly clear that the Applicant was employed on a fixed term contract that expired on 19 December 2013. There is nothing that prevents a contract from being on a fixed term for different types of employment. The provision of s.386(2)(a) provides that “a” contract of employment for “a” specified period cannot be a dismissal if the period ends. Similarly, a contract for the duration of a specified season cannot be regarded as a dismissal at the end of that season. For a seasonal employee it would be usual that the contract would be casual. Thus, a contract of employment that is for a specified period is not limited to specific types of employment arrangements.

[17] The only basis for an application to to be allowed for a fixed term employee would be if the Respondent established the contract for a specified period to avoid the obligations of the Unfair Dismissal provisions of the FW Act⁶.

[18] Here there is no basis for a finding that the Respondent established the contract to avoid any obligations. Indeed the letter of appointment identifies that the reason for the fixed term nature of the contract was to be consistent with Visa requirements.

[19] It could be suggested that the end date of employment was conditional upon the Visa requirements and if the Applicant’s Visa obligations changed then the term of the period of employment also changed. However, there is no suggestion either in the letter of appointment or in the submission that this was the case.

[20] Even if the Applicant did have reasonable grounds to expect that his employment would continue beyond six months (which I do not find) he was not dismissed from his employment but rather his employment came to an end due to the end of the period of his contract of employment.

Conclusion

[21] I find that the Applicant was employed for a specified period of time and his employment ended at the end of that period. The Applicant has therefore not been dismissed within the meaning of that term in the FW Act(s.386(2)).

DEPUTY PRESIDENT

Final written submissions:

Respondent, 19 March 2014

Applicant, 10 April 2014

 1   Fair Work Act 2009 (Cth) s.382(a).

2 Ibid s.383(a).

3 Ibid s.384(1).

4 Ibid s.384(2).

5 Ibid s.386(2)(a).

6 Ibid s.386(3).

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