David Mayor v Australian Government Department of Human Services T/A Australian Government Department of Human Services

[2016] FWC 6324

[2016] FWC 6324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

David Mayor
v
Australian Government Department of Human Services T/A Australian Government Department of Human Services
(U2016/3205)

COMMISSIONER WILSON MELBOURNE, 7 SEPTEMBER 2016

Application for relief from unfair dismissal; jurisdictional objection; whether Applicant dismissed at initiative of employer; jurisdictional objection upheld.

[1] This matter concerns an application made by David Mayor alleging unfair dismissal against his former employer, the Australian Government Department of Human Services.

[2] The Department of Human Services objects to the application, contending that Mr Mayor’s contract of employment finished, not because he was dismissed, but for reason of his fixed term contract of employment coming to an end through the effluxion of time. The Respondent therefore contends that Mr Mayor has not been “dismissed” within the meaning of the Fair Work Act 2009 (the Act), and therefore is not entitled to make an unfair dismissal application.

[3] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Mr Mayor, the Applicant.

BACKGROUND

[4] Mr Mayor worked continuously for the Department of Human Services between 16 June 2014 and 30 June 2016. However during that time he was engaged by the Department of Human Services as a non-ongoing employee and was subject to several offers and extensions of employment. The first offer of employment commenced on 16 June 2014 and was characterised as ending on 31 January 2015. An extension to that contract was offered by the Department on 25 November 2014 which extended the contract by a further three months to 30 September 2015. A fresh non-ongoing offer of employment was made on 24 June 2015 stipulating that employment would continue until 30 September 2015 and then a further extension was offered on 31 August 2015 which extended the period of employment until 30 June 2016.

[5] The evidence discloses that each of these offers of employment and extensions were agreed to by Mr Mayor.

[6] In May 2016 Mr Mayor was advised that the Department of Human Services was investigating certain allegations about him, pursuant to the Australian Public Service Code of Conduct. That process resulted in adverse findings against Mr Mayor, with minor sanctions being applied in June 2016. The Department of Human Services initially took the view that it would not offer Mr Mayor an extension to his contract of employment because of the Code of Conduct investigation; however it changed its mind about that situation.

[7] On 24 June 2016, the Department offered a three-month extension to the prevailing non-ongoing contract of employment.

[8] After taking some time to consider the proposal, Mr Mayor declined to accept the offer of an extension.

[9] When 30 June 2016 came, the Department of Human Services regarded Mr Mayor’s contract of employment as at an end by reason of an effluxion of time.

[10] Mr Mayor is critical of the Department of Human Services for the way that it has handled both the investigation of the allegations against him and its decision about the future of his employment. He puts forward that initially he was told that because of the Code of Conduct investigation, he would not be offered an extension on the contract of employment, which evidence accords broadly with the submissions made by the Department about its original position.

[11] His evidence also points to having made an enquiry to an internal advisory service about the conduct of the investigation, including whether it could be regarded as fair and independent. Mr Mayor puts forward that the Department of Human Services’ subsequent offer of a contract extension was only made after he had made an enquiry to the internal advisory service. He therefore puts forward that the Department of Human Services had only offered him a contract extension because it was endeavouring to cover up its failings in the investigation process.

[12] Mr Mayor explains his decision not to accept the offer of an extension to his employment contract in two ways; he was suspicious of the Department’s motives for its change of heart in which it initially told him he would not be offered further employment, and then offering an extension; and he thought he deserved an extension of greater than 3 months given that he had been employed, in total, for about two years.

[13] Despite his characterisations about the Department of Human Services’ motives, Mr Mayor accepts that his underlying contract of employment was for a fixed term, with an outer limit of 30 June 2016.

LEGISLATION

[14] The central question to this matter is whether Mr Mayor was dismissed at the initiative of the employer, or rather, as is contested by the Respondent, his employment ended on 30 June 2016 due to the effluxion of time. Relevant to the Commission’s consideration of this question are the provisions in s.386 of the Act;

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.

CONSIDERATION

[15] In this case, there is sufficient evidence before the Commission for a finding to be made that Mr Mayor was subject to a contract of employment that expired at its outer limit of 30 June 2016. The Full Bench has held that a contract of employment which ends with the effluxion of time does not terminate at the initiative of the employer. 1 A contract purportedly for a specified period of time will not meet that description if it provides for a broad or unconditional right of termination during its term.2

[16] The forms of contract offered to Mr Mayor are explicit and unambiguous in that they are for non-ongoing employment and for maximum terms only.

[17] There is no reliable evidence before me that would allow a challenge to the fixed term face of the contract under which Mr Mayor was working with an argument that the appearance of a fixed term arrangement is a sham and that it in truth did not have that effect. 3

[18] The evidence as reviewed above indicates that Mr Mayor was subject to an initial offer of employment which was then the subject of several extensions. The evidence accords with the proposition that each of those extensions was a separate offering of employment that was within the discretion of the Respondent to make.

[19] The characterisation of Mr Mayor’s employment as fixed term, or one with outer-limits, was not a sham. There is no “weight of strong countervailing factors indicating a continuous employment relationship” that might, instead, indicate a continuous employment relationship. 4

[20] I am satisfied that the Department of Human Services’ jurisdictional objection is made out. Mr Mayor’s contract of employment expired through effluxion of time on 30 June 2016.

[21] Having made these findings, it follows that Mr Mayor’s application for unfair dismissal remedy is without jurisdiction and that it must now be dismissed. An order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr D Mayor on his own behalf.

Mr A Abbas, solicitor, for the Respondent.

Hearing details:

2016.

Melbourne:

September 2.

 1   Drummond v Canberra Institute of Technology[2010] FWAFB 5455 [9]; see also D’Lima v Princess Margaret Hospital for Children Board of Management (1995) 64 IR 19, 25.

 2   Department of Justice v Lunn (2006) 158 IR 410 [9]; see also Andersen v Umbakumba Community Council (1994) 56 IR 102, 107.

 3   Department of Justice v Lunn (2006) 158 IR 410 [33], [38]; with reference to D’Lima v Princess Margaret Hospital for Children Board of Management (1995) 64 IR 19, 26.

 4   D’Lima v Princess Margaret Hospital for Children Board of Management (1995) 64 IR 19, 26.

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