David Purdon v Services Australia, Centrelink
[2023] FWC 523
•2 MARCH 2023
| [2023] FWC 523 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Purdon
v
Services Australia, Centrelink
(U2022/11499)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 2 MARCH 2023 |
Application for relief from unfair dismissal – jurisdictional objection – whether applicant was dismissed – application dismissed.
Introduction
Mr David Purdon was employed by the Commonwealth of Australia, as represented by Services Australia (Respondent), in the classification of APS Level 3. Mr Purdon’s employment with the Respondent came to an end on 15 November 2022. Mr Purdon alleges that he was unfairly dismissed. The Respondent contends that Mr Purdon was not dismissed. This decision deals with the jurisdictional question of whether Mr Purdon was dismissed within the meaning of s 386 of the Fair Work Act 2009 (Cth) (Act).
I conducted a hearing, by telephone, on 2 March 2023 in relation to the jurisdictional objection raised by the Respondent. At the hearing Ms Lindy Fennell, Acting Director of Services Australia, and Ms Megan Roberts, Acting Service Centre Manager for Services Australia in Lismore, gave evidence, as did Mr Purdon.
Dismissal
The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his 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;”
General principles
The expression “termination at the initiative of the employer” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[1] that is brought about by an employer and which is not agreed to by the employee.[2]
Absent any relevant vitiating factors, if the parties to a contract of employment genuinely agree that the employment of the employee will end in particular circumstances and it does so end, the termination occurs by reason of the agreement between the parties and there will be no termination at the initiative of the employer.[3]
A “contract of employment for a specified period of time” within the meaning of s 386(2)(a) is a contract of employment where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. If the contract contains an unqualified right to terminate the employment, without reason, during the term of the contract, the period of the contract is indeterminate and thus not for a specified period of time.[4]
Relevant facts re dismissal
There is no dispute that Mr Purdon made a written contract of employment with the Respondent and that contract was binding on the parties to it at the time it came to an end. The written contract included the following relevant provisions:
“…I am pleased to offer you non-ongoing employment with Services Australia.
Offer Details
Job reference number TER-APSL-2021-3400 Start date 15-Nov-2021 End date 15-Nov-2022 Classification APS Level 3 …
Your engagement as a non-ongoing employee
You’ll be engaged by Services Australia as an [sic] non-ongoing employee under paragraph 22(2)(b) of the Public Service Act 1999 (Cth)…
Your non-ongoing engagement will not take effect until you:
·have met the conditions of engagement in Attachment A; and
·start work on 15-Nov-2021.
…
Your employment will cease on the 15-Nov-2022 unless your employment is extended, in writing, by Services Australia.
We may terminate your employment prior to the end date in circumstances including, but not limited to, where:
·your work performance or conduct is unsatisfactory; or
·the duties for which you were engaged are no longer available, have been completed ahead of time or are no longer to be performed.
Terms and conditions of employment
The terms and conditions of your employment with Services Australia are as provided in:
·this letter (including Attachment A);
·the Department of Human Services Agreement 2017-2020…
Resignation
Should you wish to resign, you are required to advise the agency of this in writing one week in advance. This period of notice may be shortened by agreement with your manager…”
The Department of Human Services Agreement 2017-2020 is an enterprise agreement made under the Act. It does not contain any provisions relevant to the cessation of employment of a non-ongoing employee such as Mr Purdon.
On 1 November 2022, Ms Roberts told Mr Purdon that his contract was coming to an end and would not be extended.
Mr Purdon’s employment relationship with the Respondent came to an end on 15 November 2022.
Consideration re dismissal
I do not accept the Respondent’s contention that Mr Purdon was employed under a contract of employment for a specified period of time within the meaning of s 386(2)(a) of the Act. The contract permitted the Respondent to terminate Mr Purdon’s employment at any time prior to the end date (15 November 2022) in a range of circumstances. It is clear from the expression “but not limited to” that the contract did not set out in an exhaustive manner the circumstances in which the Respondent could terminate Mr Purdon’s employment prior to 15 November 2022. One circumstance expressly contemplated by the contract for the exercise of the Respondent’s right of early termination was where the duties for which Mr Purdon was engaged were “no longer available, have been completed ahead of time or are no longer required to be performed”. This provision conferred on the Respondent an express right to terminate Mr Purdon’s employment at any time prior to 15 November 2022, even if Mr Purdon did not breach any term of the contract or engage in any conduct or behaviour which warranted his dismissal. The Respondent could simply decide, at any time prior to 15 November 2022, that the duties for which Mr Purdon was engaged were no longer required to be performed. In my opinion, this meant that Mr Purdon was not employed under a contract of employment for a specified period of time. At any point during the period from 15 November 2021 to 15 November 2022 neither party to the contract could know with any certainty when the period of the contract of employment might come to an end.[5]
I accept the Respondent’s contention that Mr Purdon’s employment with the Respondent was not terminated on the Respondent’s initiative within the meaning of s 386(1)(a) of the Act. I am satisfied that Mr Purdon’s employment with the Respondent came to an end by reason of the agreement made between the parties to the employment contract that Mr Purdon’s employment would “cease on the 15-Nov-2022 unless … extended, in writing, by Services Australia”. Mr Purdon’s employment was not extended, in writing, by the Respondent. Contrary to a submission advanced on behalf of Mr Purdon, I do not accept that the publication of a roster constitutes an extension of the employment, in writing, within the meaning of the employment contract. A copy of the relevant roster was not put into evidence, so I have not been able to examine its contents. Putting that issue to one side, I accept Mr Purdon’s unchallenged evidence that the Respondent placed Mr Purdon’s name in a roster which it published in early October 2022 in a program named ‘Genesis’, and the roster showed Mr Purdon performing duties until 16 December 2022. The roster was not modified. However, the publication in October 2022 of a roster which extended beyond the contract end date of 15 November 2022 does not, in my view, constitute the written notification of an extension of Mr Purdon’s employment with the Respondent. I consider that a roster is primarily a scheduling tool to let employees know of the days and hours they will be required to work if they remain employed by their employer during the period of the roster.[6] It does not constitute a promise, assurance or notification that the employee will remain employed during the period of the roster. In my opinion, a reasonable person in the position of Mr Purdon would not consider the publication of their name on a roster to constitute notification, in writing, of a decision by the Respondent to extend their employment beyond the end date stated in their employment contract. Apart from the roster, Mr Purdon does not contend that he received any other written document to notify him of the extension of his employment beyond 15 November 2022.
There is no suggestion that any vitiating factors of the kind explained in Navitas and National Rugby League were present in this case.
Nor is there any suggestion that Mr Purdon resigned, or was forced to do so, as contemplated by s 386(1)(b) of the Act.
It follows that Mr Purdon was not dismissed within the meaning of s 386 of the Act.
The dispute resolution procedure in the Department of Human Services Agreement 2017-2020 is not relevant to the question of whether Mr Purdon was dismissed. Nor is any alleged non-compliance by the Respondent with an obligation to consult with Mr Purdon about changes to his employment arrangements.
Conclusion
Because Mr Purdon was not dismissed, he cannot have been unfairly dismissed within the meaning of the Act.[7] Accordingly, Mr Purdon’s application for relief from unfair dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D Hunter, Solicitor, for the Applicant
Ms R L Gall, Counsel, for the Respondent
Hearing details:
2023
Newcastle
2 March (by telephone)
[1] NSW Trains v James[2022] FWCFB 55 at [45]
[2] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[3] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 (Navitas) at [75(4)]; Alouani-Roby v National Rugby League Ltd[2022] FWCFB 171 (National Rugby League) at [166]
[4] Andersen v Umbakumba Community Council (1994) 56 IR 102 at 106-7; Navitas at [81]-[82]
[5] Andersen v Umbakumba Community Council (1994) 56 IR 102 at 106-7
[6] Clause F8 of the Department of Human Services Agreement 2017-2020
[7] Section 385(a) of the Act
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