Dr Nitya Karmakar v Australian Campus Network Pty Ltd T/A ACN

[2013] FWC 3937

[2013] FWC 3937

FAIR WORK COMMISSION

EXTEMPORE DECISION NO. 2

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

Dr Nitya Karmakar
v
Australian Campus Network Pty Ltd T/A ACN
(U2012/10464)

COMMISSIONER CAMBRIDGE SYDNEY, 20 JUNE 2013

Application for unfair dismissal remedy - jurisdictional objection upheld.

[1] The following is the unedited text of the transcript of proceedings in this matter on 14 June 2013 when an Extempore Decision was made.

[2] I should firstly note that this is Decision number 2 in this matter. Back on 17 April last a Decision was made in respect of the discrete question as to whether the Commission should grant permission for the employer to be represented by a lawyer and so this is now the second Decision that the Commission makes in this matter. My Decision is as follows.

[3] This matter involves an application taken pursuant to section 394 of the Fair Work Act 2009. The applicant, Nitya Karmakar has alleged that he was unfairly dismissed on 29 May 2012. The applicant last worked for the respondent employer on 15 February 2012 at which time his employment finished pursuant to a contract to teach as a casual lecturer for a fixed period. That fixed period coincides with a teaching semester period.

[4] The applicant was not offered a further fixed term contract for semester 1 of 2012. Advice of this determination was provided to the applicant on 3 January 2012. On 27 January 2012 the applicant made a general protections claim pursuant to section 365 of the Fair Work Act. This general protections application was settled in proceedings before Commissioner McKenna on 13 February 2012.

[5] The application made in this matter has arisen as a consequence of the applicant being advised that he was not offered a further fixed term employment contract. Relevantly, this confirmation appeared to have been provided by way of an email communication to the applicant made on 29 May 2012. The application in this matter was the subject of apparently successful conciliation proceedings. Unfortunately, the apparent settlement of this matter has not endured.

[6] Subsequently, the respondent has raised jurisdictional objections which are broadly based on three particular issues and the Hearing today has been held to deal with these jurisdictional objections by way of the three identified issues.

[7] The first of these issues is the contention that there has been no dismissal as the applicant’s employment came to an end at the completion of a fixed term period as at 15 February 2012. Of particular relevance to this particular jurisdictional objection is subsection 386(2)(a) of the Fair Work Act which reads as follows:

‘However, a person has not been dismissed if 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.’

[8] Further, it is relevant to consider subsection (3) of section 386 of the Fair Work Act and that reads as follows:

‘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.’

[9] Having examined the evidence in this matter and in particular the nature of the contracts which governed the employment of the applicant, I am of the view that there is no intention of those contracts to in any way avoid the employer’s obligations as is considered by subsection (3) of section 386 of the Fair Work Act.

[10] The circumstances of this case, in fact, satisfy the provisions of section 386 subsection (2) paragraph (a) of the Fair Work Act. Therefore, the applicant was not dismissed for the purposes of the meaning of dismissed as prescribed by section 386 of the Fair Work Act.

[11] As the applicant was not a dismissed employee, the respondent employer’s first jurisdictional objection must be upheld. It is unnecessary to consider the further jurisdictional objections raised by the respondent. Accordingly, as the applicant was not a dismissed employee, the application must be dismissed and these proceedings now stand concluded accordingly.

COMMISSIONER

Appearances:

Mr N Karmakar, appearing as the applicant in person

Ms K Adair with Mr J Braithwaite on behalf of the respondent

Hearing details:

2013.

Sydney:

June, 14.

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