David Purdon v Services Australia, Centrelink - [2023] FWC 523

[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…

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: [2023] FWC 523
Decision Date: 2 MARCH 2023

CaseChat Overview and Summary

In the case of David Purdon v Services Australia, Centrelink, the applicant, Mr David Purdon, sought relief from unfair dismissal against the Commonwealth of Australia, represented by Services Australia, following the end of his employment on 15 November 2022. Mr Purdon contended that his dismissal was unfair, while Services Australia argued that he had not been dismissed. The Fair Work Commission was required to determine whether Mr Purdon had been dismissed within the meaning of the Fair Work Act 2009. The jurisdictional issue before the Commission was whether Mr Purdon's employment had been terminated on the employer's initiative or if he had been forced to resign due to the employer's conduct, as outlined in section 386 of the Act. The Commission found that Mr Purdon's employment was not terminated on the employer's initiative, as it had ended by mutual agreement due to the terms of his employment contract. The contract allowed for termination prior to the end date if certain conditions were met, and since no extension was provided in writing, the employment concluded as per the agreed terms. Consequently, the Commission concluded that Mr Purdon was not dismissed, and thus, his application for relief from unfair dismissal was dismissed.

Orders