Louise McCue v Aboriginal Hostels Limited - [2025] FWC 420

[2025] FWC 420

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Louise McCue
v

Aboriginal Hostels Limited

(U2024/11200)

COMMISSIONER RIORDAN

SYDNEY, 1 APRIL 2025

Application for an unfair dismissal remedy

On 21 September 2024, Ms Louise McCue (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant alleges that she was dismissed by Aboriginal Hostels Limited (the Respondent) on 19 September 2024.

On 15 October 2024, the Respondent filed its F3 – Employer response to unfair dismissal application, raising a jurisdictional objection on the grounds that the Applicant was not dismissed, rather, her employment ceased at the end of her non-ongoing employment on 19 September 2024.

Telephone Conferences were conducted in this matter on 15 November 2024 and 9 December 2024, however, a resolution was unable to be reached and the Respondent pressed that its jurisdictional objection be determined in this matter in the first instance.

Directions were issued for filing of jurisdictional materials, and a Jurisdictional Hearing was conducted by Video via Microsoft Teams on 11 February 2024.

This decision determines the jurisdictional objection only.

Relevant Provisions of the Act

Section 394 of the FW Act provides that:

“394      Application for unfair dismissal remedy
(1)       A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2)       The application must be made:
(a)       within 21 days after the dismissal took effect; or
(b)       within such further period as the FWC allows under subsection (3).

(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a)       the reason for the delay; and
(b)       whether the person first became aware of the dismissal after it had taken effect; and
(c)       any action taken by the person to dispute the dismissal; and
(d)       prejudice to the employer (including prejudice caused by the delay); and
(e)       the merits of the application; and
(f)       fairness as between the person and other persons in a similar position.”

Section 385 provides the meaning of ‘unfairly dismissed’ as follows:-

“385      What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a)       the person has been dismissed; and
(b)       the dismissal was harsh, unjust or unreasonable; and
(c)       the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)       the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

The meaning of ‘dismissed’ is outlined at section 386 of the FW 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.”

New provisions of the FW Act relating to ‘fixed term contracts’ came into effect on 6 December 2023, and relevantly provide:

“Subdivision A—Limitations on fixed term contracts
333E Limitations

(1)   A person contravenes this subsection if:
(a)   the person enters into a contract of employment with an employee; and
(b)   the contract includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and

(c) the employee is not a casual employee of the employer for whom the period referred to in paragraph (b) is identified by reference to the completion of the shift of work to which the contract relates; and

(d) subsection (2), (3) or (4) applies.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: A contract referred to in this subsection includes (and is not limited to) a contract of employment for a specified period of time, for a specified task or for the duration of a specified season.

Employment for more than 2 years

(2) This subsection applies if the identifiable period is greater than 2 years.
Renewable contracts
(3) This subsection applies if:

(a) the sum of the identifiable period and any other period for which the contract may be extended or renewed is greater than 2 years; or
(b) the contract provides for an option or right to extend or renew the contract more than once.

Consecutive contracts
(4)   This subsection applies if the contract comes into effect after another contract (the previous contract) of employment between the person and the employee in circumstances referred to in subsection (5).
(5)   The circumstances for the purposes of subsection (4) are:
(a)   the previous contract included a term that provided that the contract would terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period); and
(b)   the previous contract was for the employee to perform the same, or substantially similar, work for the person as the employee is required to perform under the contract referred to in paragraph (1)(a) (the current contract); and

(c) there is substantial continuity of the employment relationship between the person and employee during the period between the previous contract terminating and the current contract coming into effect; and

(d) any of the following apply:

(i) the sum of the period for which the previous contract was in effect and the identifiable period referred to in paragraph (1)(b) for the current contract is greater than 2 years;
(ii) the current contract contains an option for renewal or extension;
(iia) the previous contract contained an option for extension that has been exercised;
(iii) the previous contract came into effect after another contract (the initial contract) that satisfies the requirements of paragraphs (a) and (b) of this subsection and there was substantial continuity of the employment relationship between the person and the employee during the period between the initial contract terminating and the previous contract coming into effect.

…
333G   Effect of entering prohibited fixed term contract
(1)   If a person enters into a contract of employment with an employee in contravention of subsection 333E(1):
(a)   the term of the contract that provides that the contract will terminate at the end of an identifiable period is taken to have no effect; and
(b)   the contravention is taken not to affect the validity of any other term of the contract.

(2)   Subsection (1) of this section has effect for the purposes of all of the following:
(a)   this Act and any other law of the Commonwealth;
(b)   a law of a State or Territory;

(c) any fair work instrument that applies to the employee;

(d) a copied State instrument;

(e) the employee’s contract of employment.

Note 1: One effect of subsection (1) of this section is that Division 11 of Part 2‑2 (notice of termination and redundancy pay) may apply to the employee because the employee is not covered by paragraph 123(1)(a) (which deals with the application of that Division).

Note 2: Another effect of subsection (1) of this section is that Part 3‑2 (unfair dismissal) may apply to the employee because the employee is not covered by paragraph 386(2)(a) (which affects the meaning of dismissed).

333H   Anti‑avoidance
(1)   A person must not do any of the following in order to avoid any right or prohibitionunder this Division:
(a)   terminate an employee’s employment for a period;
(b)   delay re‑engaging an employee for a period;

(ba) not re‑engage an employee and instead engage another person to perform the same, or substantially similar, work for the person as the employee had performed for the person;

(c) change the nature of the work or tasks the employee is required to perform for the person;
(d) otherwise alter an employment relationship.

Note: The general protections provisions in Part 3‑1 also prohibit the taking of adverse action by an employer against an employee (which includes an employee on a fixed term contract) because of a workplace right of the employee under this Division.

(2) For the purposes of subsection (1), a person takes action for a particular reason if the reasons for the action include that reason.”

Respondent’s Submissions

The Respondent submitted that the Commission should dismiss the Applicant’s application for an unfair dismissal remedy on the basis that the Applicant was not dismissed at the Respondent’s initiative. The Respondent made this submission on the basis that:

“• the Applicant was employed under a contract of employment for a specified period of time and the employment ceased at the end of this period. As such, s 386(2)(a) of the Fair Work Act 2009 (FW Act) applies and so the Applicant was not ‘dismissed’

· if (contrary to the above) s 386(2)(a) does not apply, any dismissal was not at the Respondent’s initiative for the purposes of s 386(1)(a).”

The Respondent submitted that the Applicant was initially engaged pursuant to s.22(2)(b) of the Public Service Act 1999 (PS Act) as a non-ongoing APS 2 employee for a specified term from 24 March 2021 to 28 October 2021.

The Respondent submitted that the Applicant was then engaged as a non-ongoing APS 3 employee on 28 October 2021 for a specified period until 13 April 2022.

The Respondent submitted that the Applicant’s non-ongoing APS 3 employment was subsequently extended on three occasions. The final extension, dated 20 March 2023 and commencing 22 March 2023, extended the specified period of employment to 19 September 2024.

The Respondent confirmed that the Applicant’s employment ceased on 19 September 2024.

Jurisdictional objection – the Applicant was not dismissed

The Respondent submitted that to find that a person has been ‘unfairly dismissed’, the Commission must be satisfied of the 4 matters listed in s.385 of the FW Act, including that ‘the person has been dismissed’ pursuant to s.385(a).

The Applicant’s employment ceased at the time specified in her contract

The Respondent submitted that the term ‘dismissed’ is defined in s.386 of the FW Act, with s.386(1) setting out the primary definition and providing:

“(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.”

The Respondent submitted, however, this is subject to subsection 386(2)(a), which relevantly provides:

“(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
…”

The Respondent cited the recent decision of the Full Court of the Federal Court in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 (Alouani-Roby), in which it was found that there is no limitation on s.386(2)(a) applying to ‘outer limit’ contracts which allow for early termination.

The Respondent submitted that prior to the decision in Alouani-Roby, there had been some division in Commission decisions applying s.386(2)(a) in whether to apply the considered obiter reasons of Raper J in Alouani-Roby v National Rugby League Ltd [2024] FCA 12, or to continue to apply the Full Bench reasoning in Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 [77]–[96] (Navitas). The Respondent submitted that any uncertainty in whether the Commission should continue to apply Navitas on this issue has been resolved by the Full Federal Court judgment in Alouani-Roby. The Respondent submitted that their Honours’ conclusion regarding the correct interpretation of s.386(2)(a) forms the determinative ratio of their judgment and was reached having noted the contrary view expressed in Navitas.

The Respondent submitted that the Applicant was employed under the contract of employment dated 28 October 2021, as varied on three subsequent occasions, the final occasion being on 20 March 2023. The Respondent submitted that the Applicant’s contract of employment specified that she was employed for a specified period of time which, following the final variation, was to end on 19 September 2024. The Respondent submitted that the Applicant’s employment terminated in accordance with this contract on 19 September 2024.

The Respondent submitted that on a straight-forward application of s.386(2)(a) of the FW Act, the Applicant’s employment terminated at the end of the specified period in her employment contract. As such, by operation of s.386(2)(a), she was not dismissed.

The ‘anti-avoidance’ provision does not apply

The Respondent submitted that s.386(2)(a) of the FW Act is subject to an ‘anti-avoidance’ provision in s.386(3), which provides:

“(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.”

The Respondent submitted that for subsection 386(3) to apply, the Applicant would need to establish that the Respondent’s purpose in engaging her under a non-ongoing contract of employment was to avoid its obligations under Part 3-2 of the FW Act. The Respondent denied that it had such a purpose. The Respondent submitted that it engaged the Applicant as a non-ongoing APS employee in a manner authorised and required by the PS Act and its associated statutory instruments.

The Respondent cited the decision in Doku v BlaQ Aboriginal Corporation,[1] in which Boyce DP stated:

“Section 386(3) places the word “substantial” prior to “purpose”. The term “substantial” directs itself to matters of ‘real’ substance, that are large, weighty, big or considerable, greater than the less. The term “purpose” requires evidence going to a particular purpose, such as motivations and reasons, and involves evidence going to subjective considerations (not subjective intent, but including the state of mind of the relevant person/s, or what the person actually knew and believed at the time they were offered and then entered into the contract), although all the relevant circumstances, including objective elements, will be considered to determine whether a relevant ‘purpose’ exists. The short point is that an employer would need knowledge of, or be reckless to, what is being avoided, before accusations of engaging in anti-avoidance have a foundation to be made, and there is no reverse onus to assist in making out such an accusation (with its inherent seriousness). The fact that anti-avoidance is a purpose in entering into a contract of a kind referred to in s.386(2)(a) is not the test, i.e. anti-avoidance must be a ‘substantial’ purpose in entering into such a contract. Further, I do not accept that s.386(3) is a provision that searches for an exception to s.386(2), so that s.386(1)(a) may or must have some work to do in particular factual scenarios involving a maximum term or outer limit contract. Section 386(3) has an anti-avoidance purpose, such that it only has work to do where avoidance is actually established on the evidence. If s.386(2) applies, any requirement to turn consider s.386(1)(a), separately or in parallel with s.386(2), falls away, unless there is avoidance to which s.386(3) applies.”[2]
(Respondent’s emphasis)

The Respondent submitted that the relevant decision by the company to engage the Applicant on a non-ongoing basis occurred on or around 28 October 2021, when she was engaged as a non-ongoing APS 3 employee. The Respondent submitted that subsequent decisions occurred on or around the time her contract was subsequently extended, on 27 April 2022, 19 September 2022 and 20 March 2023.

The Respondent submitted that all of the allegations made by the Applicant in her Form F2 application arose after 20 March 2023. The Respondent submitted, therefore, they cannot show any anti-avoidance purpose by the company. The Respondent submitted that as a result, there is no evidence before the Commission to suggest that s 386(3) could apply.

Requirements of the PS Act

The Respondent submitted that for the reasons below, the company’s decisions to engage the Applicant in the manner and form it did were in accordance with the PS Act and its supporting instruments. The Respondent submitted that the engagement of the Applicant as a non-ongoing employee was, on that basis, ‘appropriate and adapted to [the] particular employment scenarios’;[3] it was in accordance with the legislation governing the employment relationship. The Respondent submitted that this further establishes that s 386(3) could not apply.

The Respondent submitted that all of its employees are engaged under the PS Act. The Respondent submitted that the PS Act, and its supporting instruments, impose limitations on when an agency can engage an ongoing employee, and for how long an agency can engage a non-ongoing employee. The Respondent submitted that, due to those limitations at the time the Applicant was engaged, and each time her contract was extended, the Respondent could not have:

“• engaged the Applicant as an ongoing APS employee, or

· engaged the Applicant as a non-ongoing APS employee for a meaningfully longer period of time.”

The Respondent submitted that under the PS Act and the Australian Public Service Commissioner’s Directions 2022 (APSC Directions), an Agency Head may only (subject to confined and nonapplicable exceptions) engage an ongoing APS employee based on a competitive merit selection process (PS Act s.10A(1)(c), APSC Directions Part 4, Div 1). The Respondent submitted that at the time each of the agreements were made, the Applicant had not been a successful candidate in a merit selection process. As such, the Respondent could not have engaged the Applicant as an ongoing APS employee at the time it entered into any of those agreements.

The Respondent submitted that there are limitations on the total length of engagement of a non-ongoing APS employee. Under the Public Service Regulations 2023 s.13(5) (and prior to that, the Public Service Regulations 1999 r 3.5(4)):

“• the initial period can be no longer than 18 months, and

· the total period, including any extensions, can be no more than 3 years.”

The Respondent submitted that the 3-year maximum period can be extended by 1 year in very limited circumstances which did not apply here (Public Service Regulations 2023 s.13(6)).

The Respondent submitted that the Applicant was originally engaged as a non-ongoing APS 3 employee on 28 October 2021. The final extension of her engagement was until 19 September 2024. The Respondent submitted that it could not have lawfully extended the Applicant’s non-ongoing employment for a meaningfully longer period; the total amount remaining in the permitted 3 years was slightly over 1 month.

FW Act fixed term contract limitations

For completeness, the Respondent noted that the limitations on fixed term contracts in Div 5 of Part 2-9 of the FW Act do not apply to the agreements referred to above. The Respondent submitted that section 333E of the FW Act only applies in relation to a contract of

employment entered into after commencement, which was 6 December 2023. The Respondent noted that the final contract variation occurred on 22 March 2023.

No dismissal at the Respondent’s initiative

In the alternative, the Respondent submitted that there was no dismissal at its initiative for the purposes of s.386(1)(a) of the FW Act. The Respondent submitted the Commission would only need to consider this issue if it did not accept that s.386(2)(a) applies.

The Respondent submitted that the Applicant’s employment ceased at the end of a fixed-term contract. The Respondent noted that the relevant principles for applying s.386(1)(a) were previously set out in paragraph [75] of Navitas. However, the Respondent submitted that paragraph [75] of Navitas must now be read with the Full Court’s reasoning in paragraphs [57]–[69] of Alouani-Roby. In particular, the Respondent noted that the Full Court rejected arguments going to the ‘practical reality’ of the employment and emphasised a contractual analysis, stating at [63]:

“At least for present purposes, distinctions between employment relationships and employment contracts are artificial: the termination of an employment relationship and the termination of an employment contract are the same thing. Employment relationships can be created, changed and brought to an end; but (leaving aside possible exceptions involving repudiatory breach, as to which see Visscher v Giudice (2009) 239 CLR 361) only ever upon the execution, variation or termination of an employment contract. That being so, the reference in s 386(1)(a) of the FW Act to “the person’s employment with his or her employer [having been] terminated” can only be understood as a reference to the person’s contract of employment being brought to an end (or, perhaps in some cases, repudiated).’”

The Respondent submitted that the Court made clear that the employer’s reasons for not renewing the employee’s contract are ‘irrelevant’, “[t]he question has always been and remains: how did the employment contract terminate (and, more specifically, did it terminate by force of some conduct attributable to the [employer])?” As such, the processes referred to by the Applicant in relation to recruitment for ongoing APS 4 employment are irrelevant to

the inquiry for s.386(1)(a).

The Respondent submitted that as in Alouani-Roby (at [65]), there is nothing to suggest that the agreements set out above represent an ineffectual record of the terms of the Applicant’s employment. The Respondent submitted that there is no basis to consider that any of the factors identified in [75(5)] of Navitas apply. The Applicant’s employment contract “clearly and expressly stated that her employment would cease on 19 September 2024”. Her employment did cease on 19 September 2024 in accordance with this term. Therefore, the Respondent submitted that any dismissal was by operation of this agreed contractual term and not at the Respondent’s initiative.

Applicant’s Submissions and Evidence

The Applicant filed a ‘Statement of Evidence’ which is taken to be her Outline of Submissions in this matter.

In addition to her Statement of Evidence, the Applicant filed an ‘Aid Memoire’ providing the following Chronology:

“The Applicant, Ms Lousie McCue (LM) was employed as a Cook on APS Level 2 from 24 March 2021 to 28 October 2021. The letter of offer dated 23 March 2021.

Ms McCue was promoted to Assistant Hostel Manager on APS Level 3.7 from 28 October 2021 to 13 April 2022. The letter of offer dated 26 October 2021.

On 27 April 2022 received notice of extension (first extension) changing the date from 14 April 2022 to 21 September 2022.

On 19 September 2022 received notice of extension (second extension) changing the cessation date from 22 September 2022 to 21 March 2023.

On 20 March 2023 received notice of extension (third extension) changing the cessation date from 22 March 2023 to 19 September 2024.

On 26 June 2024 Ms McCue submitted a bullying complaint.

In July 2023 AHL began the first bulk recruitment round.

On 1 September 2023 Ms McCue made a second complaint.

In September 2023 Ms McCue received confirmation that she was unsuccessful in this round.

In November 2023 AHL began the second bulk recruitment round.

In March 2024 Ms McCue received confirmation that she was unsuccessful in securing a position but was placed in the merit pool.

On 29 April 2024 the FWC approved AHL’s new Enterprise Agreement.

On 15 September 2024 Ms McCue send AHL her Australian Citizenship certificate.

On 17 September 2024 Ms McCue made a third complaint.

On 19 September 2024 AHL ended the employment relationship.”

(My emphasis)

While the Respondent has made a jurisdictional objection on the grounds that the Applicant was not dismissed, the Applicant refuted this assertion.

The Applicant submitted that the Respondent has attempted to invoke the exception to a rule (subsection 386(2)(a) of the FW Act) prior to explaining their position to the rule (subsection 386(1)(a) of the FW Act). The Applicant submitted that this approach is reflected in the F3 Employer Response as well as the Respondent’s Outline of Submissions.

The Applicant submitted that it is unclear on what basis the Respondent is alleging that the Commission would be constrained from considering s.386(1)(a) as the jurisdictional objection is not regarding the application of s.386(2)(a) but rather the meaning of dismissed as

outlined by s.385 of the FW Act.

Meaning of Dismissed under Section 385 of the FW Act

The Applicant submitted that s.385(a) of the FW Act explains that the Commission is able deal with an unfair dismissal application if a person has been ‘dismissed’. The meaning of ‘dismissed’ is deﬁned by s.386 of the FW Act, as extracted at paragraph [8] of this decision.

The Applicant submitted, therefore, for the Commission to consider this jurisdictional objection accurately, it must consider the entirety of s.386 of the FW Act as demonstrated in Alouani-Roby v National Rugby League Limited[2022] FWCFB 171; 318 IR 389, Anne Le Nepveu v West Gippsland Healthcare Group[2024] FWC 1569, Warren George Francis v Volunteer Marine Rescue Assoc Qld Inc[2024] FWC 978; 330 IR 130, Erwin Wibowo v Equifax Australasia Group Services Pty Limited[2024] FWC 1591 and Sami Doku v BlaQ Aboriginal Corporation[2024] FWC 1815.

Section 386(1)(a) of the FW Act

The Applicant submitted that s.386(1)(a) of the FW Act defines dismissed as “the person's employment with his or her employer has been terminated on the employer's initiative.” The Applicant cited the Full Bench decision in Khayam v NavitasEnglish Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Navitas), where at paragraph [75] it was stated:

“…we consider that s 386(1)(a) should be interpreted and applied as follows:

(1) The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.

(2) As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(3) In Mahony v White the Full Court stated that a termination of employment may be done at the initiative of the employer even though it was not done by the employer. In circumstances where the parties to a time-limited contract have agreed that their contract will expire on a specified date but have not agreed on the termination of their employment relationship, it may be the case that the termination of employment is effected by the expiry of the contract, but that does not exclude the possibility that the termination of employment relationship occurred at the initiative of the employer - that is, as a result of some decision or act on the part of the employer that brought about that outcome.

(4) Where the terms of an operative time-limited contract reflect a genuine agreement on the part of the employer and employee that the employment relationship will not continue after a specified date and the employment relationship comes to an end on the specified date, then, absent a vitiating or other factor of the type to which we refer in (5) below, the employment relationship will have been terminated by reason of the agreement between the parties and there will be no termination at the initiative of the employer. Further, in those circumstances a decision by the employer not to offer any further contract of employment will not be relevant to the question of whether there was a termination of employment at the initiative of the employment. The decision not to offer further employment is separate and distinct from the earlier agreement between the parties to end the employment relationship on a particular date (Griffin/Fisher). However if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time (as, for example, in D’Lima), the decision not to offer a further contract will be one of the factual matters to be considered in determining whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.

(5) In some cases it will be necessary to go further than just examining the terms of any contract in which the parties have ostensibly agreed to terminate the employment relationship at a particular time. It is not necessary or appropriate that we attempt to identify exhaustively all relevant matters, but the authorities to which we have earlier referred indicate that the following are likely to be relevant and may in some cases be determinative:

(a) The time-limited contract itself may be vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The categories potentially relevant in an employment context include the following:

· the employee entered into the contract as a result of misrepresentation or misleading conduct by the employer;
· the employee entered into the contract as a result of a serious mistake about its contents or subject matter;
· there has been unconscionable conduct associated with the making of the contract, which may relevantly include that the employer took advantage of a disability affecting the employee such as lack of education, lack of information, lack of independent advice or illiteracy;
· the employment contract was entered into by the employee under duress or coercion (which might include the types of coercion prohibited in ss 343(1)(a), 348 and 355) resulting from illegitimate pressure on the part of the employer;
· the employee lacked the legal capacity to make the contract; or
· the contract was a sham in the sense that it was not intended by the parties to give legal effect to its apparent terms or in the broader sense dealt with in Pt 3-1 Div 6 of the FW Act.

If any of the above applies there will be no legally effective time-limit on the employment (Fisher).

(b) The time-limited employment contract may be illegal or contrary to public policy (for example, it contains relevantly objectionable terms as defined in s 12 of the FW Act or has the purpose of frustrating the policy or operation of the FW Act or preventing access to the Commission’s unfair dismissal jurisdiction). Whether the employment was constituted by successive short-term contracts or the use of time-limited contracts was appropriate in the relevant field of employment may be some of the considerations relevant to an examination of the employer’s purpose for entering into such contracts (D’Lima/Fisher).

(c)   The contract may have been varied, replaced or abandoned by way of a separate agreement, whether in writing and/or orally, such that its ostensible time limit no longer applies (Fisher).
(d)   The employment contract may not be limited to the terms of a written document and may, for example, be one of a series of standard-form contracts which operated for administrative convenience and did not represent the reality or the totality of the terms of the employment relationship (Fisher/D’Lima).
(e)   During the term of the employment relationship the employer may have engaged in conduct or made representations (for example, representing to the employee that the employment will continue subject to conduct and performance notwithstanding a contractual time limit on the employment) which provide a proper legal foundation to prevent the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated(Fisher).

(f) The terms of the contract time-limiting the employment may be inconsistent with the terms of an award or enterprise agreement given effect by the FW Act which prohibit or regulate fixed-term employment, in which case the terms of the award or agreement will prevail over the contract (Fisher).”

The Applicant applied these sub-paragraphs (1) to (5) in Navitas and addressed the relevant matters as below.

The Applicant submitted that, in accordance with this decision and the facts of this matter, the Commission must consider the entire employment relationship rather than simply focus on how the last employment contract ended. The Applicant submitted of importance is that the Respondent defines a non-ongoing employee as an “employee employed for a specific term or for the duration of a specified task as defined by section 22(2)(b) of the Public Service Act 1999 (Cth).” The Applicant submitted that the PS Act reaffirms this definition and goes on to clarify under s.22(6)(B) that “The engagement of an APS employee (including an engagement under section 72) may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters: citizenship.”

(My emphasis)

The Applicant referred to clause 10.2 of the Aboriginal Hostels Limited Enterprise Agreement 2017 (2017 Agreement), which states:

“If a non-ongoing employee is to be re-engaged, AHL will provide the employee with at least three weeks written notice before the end of the specified term.”

The Applicant submitted that there is no evidence to suggest that the extension depends on a merit selection. Further, the Applicant noted that at the time of each extension there were two applicable internal policies, the Recruitment and Selection Policy and Guidelines and Pre-Employment Checks Policy and Guidelines.

The Applicant submitted that her employment contract had been automatically extended on three occasions and when signing the last contract extension on 29 March 2023 there was no indication by the employer that it would not happen again. The Applicant submitted that in fact, the first time she received any notice that there was a risk to her ongoing employment was when the Respondent advised that they were abolishing her position whilst she still had an employment agreement with them.

The Applicant submitted, therefore, as her position was allegedly abolished it is unclear how this action was not at the initiative of the employer when prior to the recruitment rounds her contracts were automatically extended.

The Applicant further submitted that in the F3 Employer Response, the Respondent argues that the “…recruitment processes conducted by AHL are not relevant for reasons.” The Applicant strongly disagreed with this proposition, submitting that it was this process which contributed to her employment relationship with the Respondent ending.

The Applicant submitted that in ‘Attachment LM-12’, being an email to all staff dated 24 July 2023 from Ms Karyn Ervin, Acting General Manager Human Resources, the Respondent argues that the reason why they undertook the bulk recruitment rounds in 2023 was due to a reclassification of positions. The Applicant submitted that it seems like this reclassification occurred because employees were being underpaid as they were all performing at a higher level than classified otherwise there would be no reason to pay them at a higher level. However, the Applicant submitted that what the employer cannot explain is why employees had to go through a recruitment process to be then paid correctly, nor can it explain why employees would then be demoted if they were unsuccessful in this process.

The Applicant submitted that based on this, it seems like the Respondent attempted to circumvent the (at the time) upcoming changes under Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), because if their actions were about ensuring that employees like the Applicant were not underpaid, if they continued in their role their pay should have been adjusted accordingly. However, this was not the case. The Applicant submitted that she only remained in her position after her representatives highlighted their concerns with how the Respondent conducted the recruitment process.

The Applicant submitted that her payslip demonstrates that she was not paid as an APS 4 whilst she continued in the Assistant Manager’s position after the ﬁrst and second bulk recruitment rounds. I note that the Applicant annexed a copy of her payslip.[4]

Further, the Applicant submitted it is evident that she was not given the same opportunity as other employees to become ongoing because she submitted a bullying complaint, and the bullying continued throughout the bulk recruitment rounds due to unreasonable management actions.

The Applicant submitted that ‘Attachment LM-14’, being an ‘Individual Assessment Summary of Shortlisted Applicant’ for Ms McCue, confirms she was not successful due to two selection criteria - “Understanding of Aboriginal and Torres Strait Islander cultures and issues affecting First Nations peoples” (selection criteria one) and “Proven ability to manage a high performing team including supporting individual development of team members and supporting effective performance” (selection criteria two). However, the Applicant submitted that the Respondent has no evidence to support this assessment. The Applicant submitted that there were multiple issues with how the process was undertaken:

· Firstly, in accordance with section 10.6 of Attachment LM-26, AHL should have used Tresna Appo’s reference for Ms McCue. This did not happen.

· Secondly, Ms McCue lodged a complaint against the selection panellist Ms Tait who then failed to declare a declare a conflict of interest in accordance with section 9.4 of Attachment LM-26.

· Thirdly, it is unclear why AHL did not provide Ms McCue with the opportunity to interview for this position and relied upon documentation and an invalid reference which breaches section 10.6 of Attachment LM-26.

The Applicant submitted that prior to the second bulk recruitment round, the Respondent was aware of these deficiencies in the process as outlined by ‘Attachment LM-17’, being a letter dated 10 October 2023 from Mr John Ryall, National Organiser for the CPSU, to Mr Dave Chalmers, CEO of the Respondent. However, they did not address them or alter their approach to the next round of recruitment.

The Applicant submitted that, regarding the second bulk recruitment, the first issue is that Ms Mirthil failed to declare a conflict of interest in accordance with section 9.4 of the Respondent’s Recruitment and Selection Policy and Guidelines, as she was the support person for Elaine Tait. Secondly, the Applicant submitted that she was refused the opportunity of an interview as shown by Madeline Quinn, Manger-People Solutions from Horizon One, who stated in an email to Ms Mirthil dated 14 December 2023: “…I’m making an assumption that she wouldn’t want to attend an interview either”.[5]

The Applicant submitted a further concern in relation to the Respondent raising in its Form F3 that whilst the Applicant secured a place in the merit pool, “An agency must only engage a person who is not an Australian citizen as an APS employee if the Agency Head considers it is ‘appropriate to do so’ (PS Act s 22(8)).” The Applicant submitted that she obtained Australian citizenship on 13 September 2024. The Applicant submitted that prior to this recruitment round, it appears her citizenship status was only considered on two occasions, and no evidence has been given by the employer to show that they sought and obtained the delegates permission to employ her in accordance with PS Act s.22(8) for any of the employment contracts. The Applicant submitted that if her citizenship status was an issue, she would not have been employed in the first instance. The Applicant referred to a job listing by the Respondent for ‘VN14223 APS 4 Assistant Hostel Manager (Various locations)’ with a closing date of 13 November 2023,[6] “which only considers the applicant’s status after they have been found successful”. Therefore, the Applicant submitted that it was inappropriate for the Respondent to use her citizenship status as the reason for not offering her the job. The Applicant submitted that “citizenship status was not a part of the selection criteria”.

The Applicant also noted that the second recruitment round was undertaken by a third party, and they found the Applicant to be suitable when compared to the Respondent’s findings in the initial round. The Applicant submitted that it is unclear how the parties would have reached such differing conclusions without noting the apparent conflict of interests.

The Applicant submitted that, consequently, whilst the Respondent was not obliged to seek delegate approval for the Applicant’s citizenship status, it was the Applicant’s view that if the Respondent had followed the process, the delegate would approve her again as they had done for the last three years. The Applicant submitted, therefore, due to the employer’s behaviour the employment relationship did not simply end due to an effluxion of time, but rather, they were actively preventing any further employment after the 19 September 2024 due to the Applicant’s numerous complaints.

The Applicant submitted that the Respondent made representations to her, in accordance with subparagraph 5(e) of Navitas above, which gave the Applicant grounds to argue that the Respondent could not rely on the terms of the agreement. The Applicant submitted that in accordance with these representations, the agreement cannot be truly considered a fixed term contract under section 386(2)(a) of the FW Act.

Section 386(2)(a) of the FW Act

The Applicant noted that s.386(2)(a) of the Act provides that “… 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.”

The Applicant acknowledged that the Respondent has relied on the decision in Alouani-Roby v National Rugby League Limited [2022] FWCFB 171; 318 IR 389, Sami Doku v BlaQ Aboriginal Corporation[2024] FWC 1815 and Erwin Wibowo v Equifax Australasia Group Services Pty Limited[2024] FWC 1591 to substantiate why they believe that the Applicant’s employment contract meets this legislative exception. However, the Applicant submitted that the Respondent’s reasoning is unsound by reference to each case as outlined below.

Alouani-Roby v National Rugby League Limited [2022] FWCFB 171; 318 IR 389

The Applicant submitted that in Alouani-Roby, the applicant was employed in the same role over numerous seasons of professional sports. However, the Applicant submitted that the fundamental difference between Alouani-Roby and the present matter is that Mr Alouani-Roby was engaged in professional sports which requires employees on a seasonal basis. The Applicant submitted, however, this is not the case in relation to her employment with the Respondent. The Applicant submitted that she was told she was on a fixed-term contract due to her citizenship status rather than the needs of the business.

Erwin Wibowo v Equifax Australasia Group Services Pty Limited [2024] FWC 1591 (Wibowo)

The Applicant submitted that in Wibowo, during cross examination the applicant admitted that he understood that his employment was only guaranteed until the end of the contract period 31 December 2023 and his employer never agreed to extend the contract. The Applicant submitted that this was not the case in relation to her employment with the Respondent. The Applicant submitted this was the case not only due to the fact that she was told she would become ongoing, but also due to the Respondent actively preventing her from securing an ongoing position by finding her unsuitable during a flawed recruitment process.

Sami Doku v BlaQ Aboriginal Corporation [2024] FWC 1815 (Doku)

The Applicant submitted that in Doku, the applicant was employed for two different roles - Training and Programs Facilitator (first contract) and Community Engagement Officer (second contract). The Commission found that the applicant was not dismissed because the Respondent satisfied s.386(2)(a) due to the contractual term of the second contract 2.4.2:

“In accepting the terms of this agreement, you expressly acknowledge and understand that:
2.4.1 the employment is not ongoing and the maximum period of employment will be until the End Date; and
2.4.2 you have no expectation of ongoing employment beyond the End Date.”

The Applicant submitted that in Doku, after raising concerns about the applicant’s performance and reliability, the employer chose not to offer a contract renewal or extension. The Applicant submitted that:

“These facts directly contradict our matter as the AHL Enterprise Agreement 2017, which enables fixed term contracts to be extended and therefore, as there are no contractual clauses which explicitly express that the employment relationship will cease the facts in issue are too dissimilar”.

The Applicant submitted that in light of the above, the Respondent’s arguments are in conflict with what the Respondent did in practice in terms of how the employee relationship is maintained.

The Applicant submitted that the Commission should rely on the decisions in Anne Le Nepveu v West Gippsland Healthcare Group[2024] FWC 1569 (Le Nepveu) and Warren George Francis v Volunteer Marine Rescue Assoc Qld Inc [2024] FWC 978; 330 IR 130 (Francis). In particular, the Applicant referred to paragraph [105] of Commissioner Hunt’s decision in Francis, where the Commissioner stated that:

“Each of the three employment contracts provide the parties with a right to terminate the employment by the provision of notice equal to that within s.117(3) of the Act. The contracts were therefore not a contract of employment for a specific period, and the exclusion in s.386(2)(a) does not apply.”

The Applicant submitted that as all of her employment agreements allow for early termination of ongoing employment, they cannot be deemed as being for a specified term according to the decision in Francis. The Applicant acknowledged that early termination is allowed under s.29 of the of the PS Act and clause 8.24 of the 2017 Agreement. However, the Applicant argued that the internal process is similar to redundancy in which the Respondent would need to determine if there are redeployment opportunities after finding that there is insufficient productive work available. The Applicant submitted that both the legislation and enterprise agreement demonstrate that as the non-ongoing employees had the same rights as ongoing employees, then they do not meet the definition of fixed term employment under s.386(2)(a) of the FW Act.

Section 386(3) of the FW Act

The Applicant submitted that operation of subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) of s.386 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. The Applicant submitted therefore, the question remains as to whether during her employment, the Respondent attempted to prevent her agreement from continuing. That is, “did AHL actively prevent Ms McCue’s employment from being extended?”

The Applicant argued that prior to the bulk recruitments, there was an agreement between the parties that the Applicant would remain on successive non-ongoing contracts until she received her Australian Citizenship. However, the Applicant submitted that due to the legislative changes as outlined by Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), by undergoing bulk recruitment there was an attempt to change the nature of the employee’s relationship with the Respondent whether it be by promotion, demotion or resignation. The Applicant submitted that this is aﬃrmed by subsequent policy changes that occurred after 4 March 2024. The Applicant submitted as follows:

“Even though prior to 30 June 2023, the Respondent has admitted the following in its ‘Annual Report 2022-2023’:

In line with the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, we focused on prioritising ongoing employment as the primary basis of engagement. Reducing the instances of non ongoing engagements has ultimately created better job security for our employees.”

The Applicant submitted that it is for these reasons that s.386(3) of the FW Act is satisfied.

Section 333H of the Fair Work Act

The Applicant submitted that Justices Snaden, Meagher and Needham in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 explain that:

“…fixed-term employment contracts are not available as a concocted vehicle through which an employer might illegitimately avoid subjection to the FW Act’s unfair dismissal provisions. On the contrary, there is much to commend the suggestion that the Act will only inoculate fixed-term employment contract from the application of those provisions in circumstances where their use is appropriate and adapted to particular employment scenarios. So much is consistent with the recent introduction (after Mr Alouani-Roby’s employment terminated) of Div 5 of Pt 2-9 of the FW Act, which imposes substantial limitations upon the use of fixed-term employment contracts.”

The Applicant submitted that the “substantial changes” under ss.333H of the FW Act provide as follows:

“(1) A person must not do any of the following in order to avoid any right or prohibition under this Division:
(a)terminate an employee's employment for a period;
(b)delay re - engaging an employee for a period;

(ba) not re - engage an employee and instead engage another person to perform the same, or substantially similar, work for the person as the employee had performed for the person;
(c)change the nature of the work or tasks the employee is required to perform for the person;
(d)otherwise alter an employment relationship.”

(My emphasis)

The Applicant submitted that “[d]ue to the facts of this matter, it is questionable why [she] was placed in the merit pool rather than offered employment.”

The Applicant referred to provisions 101 – 104 of the Aboriginal Hostels Limited Enterprise Agreement 2024-2027 (2024 Agreement), which provide:

“Non-ongoing employment

101. A non-ongoing employee is deﬁned in the deﬁnitions section.

102. Non-ongoing employees will generally have the same terms and conditions of employment as ongoing employees under this agreement’s terms, except:

102.1 personal/carer’s leave accrual in section 6, and
102.2 redundancy provisions in section 11, subject to clause 103.

103. If the non-ongoing employee’s contract is not permitted by section 333E of the FW Act, then the redundancy provisions in section 11 will apply.

104. If the redundancy provisions apply to an employee under clause 103, AHL must adhere to the consultation requirements in section 10 and, where applicable, the consultation provisions in section 11.”

The Applicant submitted that as she held an assumption that there would be another successive contract, which under the s.333E changes the Respondent cannot enter into, it could be argued that as she would be considered ‘permanent’ and should have been offered redundancy. However, the Applicant submitted that the ‘complicating factor’ is the merit pool. The Applicant submitted that under the PS Act, if an employee has been found redundant and then re-employed the employee must pay back the employer, however, the Applicant submitted that this should not be a factor if the Respondent were to re-engage her.

Additionally, the Applicant submitted that it can be argued that by placing her in the merit pool, after not seeking permission from the delegate to employ her, the Respondent breached ss.333H(b) and 333H(ba).

Conclusion

The Applicant submitted that in this case, the Commission must consider the entire employment relationship to determine if there was a mutual agreement that the employment relationship would end on the stated cessation date.

The Applicant submitted that she had a reasonable belief that her employment with the Respondent would continue beyond 19 September 2024, in light of previous assurances made by the Respondent that she was only given a non-ongoing position due to her Citizenship status and that once she received her Citizenship then she would be changed to ongoing employment.

The Applicant submitted that the Respondent’s behaviour, including abolishing her position, a ﬂawed recruitment process and an attempted demotion, were the cause of the employment relationship ending.

The Applicant submitted that “[i]t is noteworthy that whilst AHL did not consider her to be employable at an APS 4, that she continued to train employees and work as an APS 5 when her manager, Tresna Appo, was absent from work.”

The Applicant submitted that, notwithstanding above, the Commission must also ﬁnd that due to the terms of her employment agreement, she cannot be considered a “ﬁxed term employee” and thus, in accordance with the decision in Francis, the Respondent is unable to claim the exception under s.386(2)(a).

Regarding s.386(3) of the FW Act, the Applicant submitted that as the Respondent used the ﬁrst bulk recruitment process and second bulk recruitment process to alter the employment relationship during the Applicant’s employment, the Commission must ﬁnd that the Respondent attempted to avoid their obligations.

Furthermore, the Applicant submitted the fact that she was placed in the merit pool and then not given the position when it became available, demonstrates that by delaying her re-engagement, the Respondent has breached s.333H of the FW Act.

The Applicant submitted, therefore, as the jurisdictional prerequisite in s.394 of the FW Act is met, and the Commission must deal with the application pursuant to s.394.

Respondent’s Submissions in Reply

In reply, the Respondent submitted that “[t]he Applicant was a non-ongoing or fixed term employee, who applied for ongoing employment, but was unsuccessful in two competitive merit selection processes”. The Respondent acknowledged that the Applicant disagrees with the outcome of those merit selection processes. However, the Respondent submitted that they were substantively and procedurally fair. The Respondent submitted that the Commission does not need to consider or resolve any issues regarding those processes. The issue for the Commission is whether the Applicant was dismissed. In this regard, the Respondent submitted that the Applicant’s contract of employment provided the straight-forward answer to that question: “she was not dismissed, her employment terminated at the end of the period specified in her contract in accordance with the terms of that contract and so she was not dismissed”.

In response to the Applicant’s Witness Statement of 21 January 2025, the Respondent submitted that it:

“• maintains that the two recruitment processes referred to in the McCue Statement were conducted appropriately, fairly and in accordance with the requirements of the Public Service Act 1999, its supporting instruments and AHL policies and procedures, and

· denies that the Applicant was subject to bullying, and says that it engaged an independent and external investigator to consider the Applicant’s allegations of bullying.”

The Question before the Commission

The Respondent submitted that the question before the Commission is whether the Applicant was ‘dismissed’ within the meaning of s.386 of the FW Act. The Respondent submitted that question arises because the Applicant can only have been ‘unfairly dismissed’ if the Commission is satisfied she was dismissed (s.385) and not because of any operation of s.365 of the FW Act.

The Respondent submitted that s.386(2)(a) provides a complete and straight-forward answer to the question of whether the Applicant was dismissed. The Respondent submitted that if the Commission agrees that the Applicant was employed under a contract of employment for a specified period of time, and her employment terminated at the end of the period, then she has not been dismissed. The Respondent submitted that conclusion avoids any need for the Commission to consider the question of whether there was a dismissal at the Respondent’s initiative.

Withdrawal of earlier submission

The Respondent submitted that in preparing its reply evidence, it identified that the Applicant was found suitable for an ongoing/non-ongoing APS 3 position on 18 October 2021. The Respondent acknowledged that this is contrary to the position reflected in its earlier submissions. The Respondent withdrew the relevant paragraphs of its earlier submissions.

Application of s.386(2)(a) of the FW Act

The Respondent relied principally on the unanimous Full Federal Court judgment in Alouani-Roby, in which the Full Court authoritatively determined that there is no limitation on s.386(2)(a) applying to ‘outer limit contracts’.

The Respondent submitted that the Applicant failed to properly address the decision in Alouani-Roby. The Respondent noted that the Applicant relied on the decisions in Le Nepveu and Francis. The Respondent submitted that both were decided prior to Alouani-Roby, and so must not be followed where they are contradicted by Alouani-Roby, which is a unanimous decision of the Full Federal Court that binds the Commission. The Respondent submitted that Le Nepveu concerned different facts; it was relevantly determined on the basis that the employment continued beyond the claimed fixed term. The Respondent submitted that Francis applied a construction of s.386(2)(a) such that the provision does not apply to ‘outer limit contracts’. The Respondent submitted that the Applicant has relied on that same construction. However, the Respondent submitted that in light of Alouani-Roby, that construction is wrong, and the Applicant’s submission in that regard should be rejected.

The engagement in October 2021

The Respondent noted that in her Witness Statement, the Applicant has claimed that in a meeting with Ms Patricia Murdoch and Ms Regina Gorecki, presumably on or around 27 October 2021, “[she] was advised that as soon as [she] was to be given Australian Citizenship, [she] would be offered a permanent position”. The Respondent noted that the Applicant has claimed that this amounted to ‘representations’ such that the Respondent cannot rely on the terms of the agreement or alternatively that there was an agreement that the Applicant would remain on successive non-ongoing contracts until she received her Australian citizenship.

The Respondent relied on the Witness Statement of Ms Eva Kirby as setting out the relevant events and records leading up to the Applicant’s engagement as a non-ongoing APS 3 employee on 27 October 2021, based on the Respondent’s records. The Respondent submitted that the Applicant was successful in an ongoing/non-ongoing recruitment process for an APS 3 position, and was placed on a merit list. The Respondent submitted that there was an initial decision by Ms Murdoch and Ms Lucinda Mirthal to offer her a position, subject to pre-employment checks. The Respondent submitted that the Applicant appears to have been verbally notified of an offer by Ms Murdoch on 18 October 2021, and that it appears that on or around 20 October 2021, Ms Murdoch became aware that Ms McCue was not an Australian citizen as she had claimed in her application.

The Respondent cited s.22(8) of the PS Act, which states:

“An Agency Head must not engage, as an APS employee, a person who is not an Australian citizen, unless the Agency Head considers it appropriate to do so.”

The Respondent submitted that, unless delegated, the authority to decide ‘it is appropriate to do so’ rests with the Agency Head, which for the Respondent is the CEO. The Respondent submitted the issue was escalated to the CEO, who decided to grant a 6-month waiver. Ms Gorecki, then Director Human Resources, then decided on 26 October 2021 to make an offer to the Applicant of a 6-month non-ongoing contract. The Respondent submitted that this offer was sent to the Applicant by email the same day, which the Applicant signed the following day. Ms Tresna Appo emailed the signed agreement back on the Applicant’s behalf. The Respondent submitted that on the same day, a HR officer emailed the Applicant regarding the terms of the citizenship waiver.

The Respondent submitted that, given this sequence of events, it is very unlikely that the alleged discussion between Ms Gorecki, Ms Murdoch and the Applicant occurred as the Applicant describes. The Respondent submitted that Ms Gorecki and Ms Murdoch have since left the Respondent business, and were therefore not available to give evidence at such short notice. The Respondent noted that Ms Gorecki was based in Canberra, and the Respondent has found no records of her travelling to Alice Springs. The Respondent submitted that it is much more likely that the Applicant is recalling a discussion between her and Ms Murdoch.

The Respondent submitted that, even if the conversation occurred as the Applicant has claimed, it would not support the arguments made by the Applicant in her submissions as follows:

“28. … AHL made representations to the Applicant which means that as per (e) above, gives Ms McCue grounds to argue that the Respondent cannot rely on the terms of the agreement. That being, that the agreement cannot be truly considered a fixed term contract under section 386(2)(a).

…

42. It is our argument that prior to the bulk recruitments, there was an agreement between the parties that Ms McCue would remain on successive non-ongoing contracts until she received her Australian Citizenship.”

The Respondent submitted that employment under the PS Act is statutory employment and must comply with the terms of the PS Act and its supporting instruments. In the context of statutory employment, to the extent that the relationship is contractual, the contract must be consistent with the statutory provisions which affect that relationship. The Respondent submitted that the alleged ‘representation’ or agreement could not have been authorised under the PS Act, and (if it was made) would be contrary to the terms of the PS Act and its supporting instruments, and therefore incapable of giving rise to any enforceable right.

The Respondent submitted that, first, the PS Act at s.22(1)(b) permits the engagement of a non-ongoing employee for a specified term (or specified task). Subsection 22(5) permits the extension of such a term. However, that is subject to limitations prescribed by the regulations. The Respondent submitted that as set out in its initial submissions, at all relevant times the regulations have prescribed a maximum total period, inclusive of extensions, of 3 years. The Respondent submitted that any representation that the Applicant’s non-ongoing employment would be extended in perpetuity would have been contrary to this restriction, and so of no legal effect.

Second, the Respondent submitted that the Applicant had been placed on a merit list following the selection process referred above. The Respondent submitted that a merit list relevantly remains valid for 18 months under s.25 of the Australian Public Service Commissioner’s Directions 2022, which provides:

“(1) Subject to this section, a selection process for a decision to fill a vacancy meets the requirements of this Subdivision only if:

(a)The vacancy, or a similar vacancy, in the Agency was notified in the Public Service Gazette within a period of 12 months before the written decision to engage or promote the successful applicant; and

(i)was notified in the Public Service Gazette within the period of 18 months before the written decision to engage or promote the successful candidate for the vacancy; and
(ii)the requirements in subsection (2) are met; or

(b) the vacancy (the new vacancy) is a similar vacancy to another vacancy that was notified in the Public Service Gazette within the period of 18 months before the written decision to engage or promote the successful candidate for the new vacancy.”

The Respondent submitted that once the merit list expired, the selection process referred to above could no longer support the Respondent to lawfully engage the Applicant as an ongoing employee. As such, any commitment or agreement to engage her as an ongoing employee once she obtained citizenship could only have been effective until the expiry of the merit list, which was on 6 March 2023. The Respondent noted that the Applicant obtained her citizenship on 13 September 2024.

(My emphasis)

The Respondent submitted that the alleged representation or oral agreement are also contrary to the express terms of the written agreement which the Applicant signed on or around the time of the alleged meeting. The Respondent submitted that the agreement is clear and express in its terms that it is an offer of non-ongoing employment for a specified term. It contains no offer, or commitment or agreement to future extensions or to future ongoing employment. The Respondent submitted that the same applies to the terms of Ms Gorecki’s authorisation of the offer.

Application of s.386(3) of the FW Act

The Respondent submitted that the Applicant has misstated the question posed by s.386(3) of the FW Act. The Respondent submitted that s.386(3) is not concerned with actions or decisions regarding further employment or an extension of employment after the employment contract has commenced. Subsection 386(3) is concerned with the substantial purpose for employing the person under the contract of employment which would otherwise satisfy s.386(2)(a). That is, the operative fixed term contract at the end of the employment. The Respondent submitted that here, this is the fixed term contract (including variations) described in its initial submissions as follows:

“4. The relevant history of the Applicant’s employment by AHL is set out below:
4.1. The Applicant was initially engaged pursuant to s 22(2)(b) of the Public Service Act 1999 (PS Act) as a non-ongoing APS 2 employee for a specified term from 24 March 2021 to 28 October 2021.
4.2. The Applicant was then engaged as a non-ongoing APS 3 employee on 28 October 2021 for a specified period until 13 April 2022.
4.3. The Applicant’s non-ongoing APS 3 employment was subsequently extended on three occasions. The final extension (dated 20 March 2023 and commencing 22 March 2023) extended the specified period of employment to 19 September 2024.”

The Respondent submitted that the Applicant’s Witness Statement does not present any evidence that any of the fixed term contract or variations described above had the substantial purpose of avoiding the Respondent’s obligations under Part 3-2 of the FW Act. The Respondent submitted that the various allegations all post-date the final variation to the fixed term contract. The Respondent reiterated that s.386(3) “only has work to do where avoidance is actually established on the evidence”.

The Respondent submitted that when it decided to engage the Applicant as a non-ongoing employee in October 2021, she had been successful in an ongoing/non-ongoing merit selection round. The Respondent submitted that its reason for engaging her as a non-ongoing employee is clearly identified: she was not an Australian citizen. The Respondent submitted that it was bound to apply the obligations or restrictions imposed on it in s.22(8) of the PS Act. The Respondent submitted that a decision made for the purposes of complying with s.22(8) of the PS Act clearly could not have the purpose referred to in s.386(3) of the FW Act.

The Respondent submitted that the argument made in the Applicant’s submissions, as follows, is unclear:

“43. As outlined in paragraph 16 of this submission, it is submitted that due to the legislative changes as outlined by Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), by undergoing bulk recruitment there was an attempt to change the nature of employee’s relationship with AHL whether it be by promotion, demotion or resignation. This is aﬃrmed by subsequent policy changes that occurred after 4 March 2024. Even though prior to 30 June 2023, AHL admits the following in page 50 of the Respondent’s Annual Report 2022-2023 -

In line with the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, we focused on prioritising ongoing employment as the primary basis of engagement. Reducing the instances of nonongoing engagements has ultimately created better job security for our employees.”

The Respondent submitted that this argument can nevertheless be answered simply. The Respondent submitted that there was no change to the employment relationship by the bulk recruitment rounds (attempted or otherwise). The Respondent submitted that it advertised a number of ongoing positions. The successful candidates were engaged as ongoing employees. The Applicant was unsuccessful, so her existing employment relationship with the Respondent remained unchanged as a non-ongoing APS 3 employee until 19 September 2024. The Respondent submitted that this was made very clear by the letter of 24 October 2023, following the first recruitment round.

Application of s.386(1) of the FW Act

The Respondent noted that the Applicant has relied on paragraph [75] of Navitas. However, the Respondent referred to and repeated its submissions as to the status of this passage of Navitas following Alouani-Roby, and the relevance of the recruitment processes to s.386(1). The Respondent submitted that none of the Applicant’s submissions engage with the terms of her contract or address how she could be dismissed at the Respondent’s initiative when her employment ceased in accordance with the terms of her contract of employment. The Respondent submitted that the irrelevance of the Respondent’s reasons for not offering the Applicant further employment is clearly established by Alouani-Roby at paragraph [66].

Relevance of s.333H of the FW Act

The Respondent submitted that there was no ‘assumption’ of another successive contract as submitted by the Applicant. The Respondent submitted that such an ‘assumption’ would have been contrary to the PS Act limitations as addressed by the Respondent. The Respondent submitted that if this refers to the Applicant’s expectation, that expectation is irrelevant in accordance with the decision in Alouani-Roby at paragraphs [62]–[63].

The Respondent submitted, further, that engagement of the Applicant as an ongoing employee (which is what was under consideration in each of the recruitment rounds) would not have engaged any right or prohibition in s.333E of the FW Act, given it would have been ongoing employment, and so could not engage s.333H of the FW Act.

Applicant’s Further Submissions in Reply

In light of matters raised in the Respondent’s Reply Materials, the Applicant was granted an opportunity to file further submissions in reply. The Applicant’s ‘Reply Response’ provided as follows.

The Applicant strongly disagreed with the Respondent’s argument that the Commission

should dismiss this application on the basis that the Applicant’s employment agreement gives rise to the exemption under s.386(2)(a) of the FW Act.

Section 386(1)(a) of the FW Act

The Applicant argued that:

“a) There was an agreement between the parties that Ms McCue would become ongoing once she obtained her Australian Citizenship and, due to AHL breaching the Enterprise Agreement and section 22(8) of the Public Service Act 1999 (PS Act), when they extended the employment agreements, Ms McCue had a reasonable belief that her employment would continue.

b) Further or in the alternative, the unilateral decision of abolishing Ms McCue position and then, varying her contract, demonstrated that AHL intended to end the employment relationship.”

Section 386(2)(a) of the FW Act

The Applicant argued that:

“a) This matter and Alouani-Roby v National Rugby League Ltd [2024] FCA 12 are distinguishable and therefore, the Fair Work Commission must agree with Warren George Francis v Volunteer Marine Rescue Assoc Qld Inc [2024] FWC 978; 330 IR 130 and find that Ms McCue was dismissed.

b) Further or in the alternative, in accordance with section 55 of Alouani-Roby v National Rugby League Ltd [2024] FCA 12, due to the unilateral actions of AHL, the employment agreement does not met (sic) exception under s 386(2)(a).”

Section 386(3) of the FW Act

The Applicant argued that:

“a) AHL purpose of non-ongoing employment agreement were to avoid the Applicant claiming Unfair Dismissal because of the multiple bulk recruitment processes including, but not limited to, the repudiation of the employment agreement.

b) Further or in the alternative, AHL delayed the re-employment of Ms McCue and hired an employee to do her position in breach of section 333H of the Fair Work Act 2009 (Cth).”

Notwithstanding the above, the Applicant acknowledged that if the Commission finds that the variation of the employment agreement on 10 November 2023 results in a finding that s.386(2)(a) cannot be used as an exception by the Respondent, then s.386(3) no longer applies. Therefore, the jurisdictional objection should be dismissed.

Correction of Applicants Submissions

The Applicant submitted that in preparing her Further Submissions in Reply, she became aware of two mistakes as follows:

“a) The reference to section 365 of the FWA should have been 386. We do not believe this has caused any confusion due to the Respondent’s comments at Paragraph 6 of the Respondents Reply Submission.

b) The reference to section 333G referred to section 333H. We believe the confusion caused would have been minimal as we included extracts of the legislation at paragraph 46 of the Statement of Evidence.”

The Applicant submitted that both of these errors have now been corrected in these submissions.

History of s.386 of the FW Act

The Applicant cited the decision in Muria Roberts v TasTAFE[2025] FWCFB 3, in which President Gibian, Deputy President Clancy and Deputy President Roberts at paragraphs [21] – [22] explained:

“The principal aspect of the concept of a person being “dismissed” is found in s 386(1)(a) and arises where the person’s employment has been “terminated on the employer’s initiative”. The concept of the termination of employment having been at the “initiative” of the employer has been a feature of Commonwealth industrial legislation dealing with unfair dismissal since 1994 when the Industrial Relations Act 1988 (Cth) (the IR Act) was amended by the Industrial Relations Reform Act 1993 (Cth) to incorporate the first comprehensive Commonwealth unfair dismissal regime. The language has its genesis in the Convention concerning Termination of Employment at the Initiative of the Employer (the Convention) adopted by the International Labour Organisation in Geneva on 22 June 1982.The language has been retained in s 386(1)(a) even though the provisions of the Act to which the definition applies no longer seek to give effect to the Convention. Commonwealth industrial legislation has also consistently provided for various exceptions to the entitlement of employees to access the protection against unfair dismissal also initially derived from the Convention. One of those exceptions has involved a situation in which an employee was “engaged under a contract of employment for a specified period of time”. The history and development of those provisions was described by the majority of the Full Bench in Khayam v Navitas as follows:

An exception with respect to contracts for employment for a specified period of time long predates the FW Act, and was originally derived from Article 2 of the Convention. Under the initial termination of employment scheme in the IR Act, s 170CC authorised the making of regulations excluding employees from the operation of specified provisions in Div VIA subject to specified conditions, including that the exclusion was permitted by paragraph 2, 4 or 5 of Article 2 of the Convention. Reg 30B of the Industrial Relations Regulations 1996 was made in exercise of this power and relevantly provided that “employees engaged under a contract of employment for a specified period of time” were excluded from the operation of Subdivs B, C, D and E of Div 3 of Pt VIA (reg 30B(1)(a)), except where the employee was engaged under a contract of that kind “if a main purpose of the employee’s engagement under a contract of that kind is to avoid the employer’s obligations under Subdivision B, C, D or E of Division 3 of Part VIA of the Act”(reg 30B(2))....The approach in Andersen and Cooper was followed in subsequent Industrial Relations Court decisions such as D’Lima and Dadey v Edith Cowan University, and was later referred to with approval by the Federal Court Full Court in Barratt v Howard. In 1997 reg 30B(1)(a) was amended (by Statutory Rule No 101 of 1997) to add the following note:

“[NOTE: The expression `employee engaged under a contract of employment for a specified period of time' used in paragraph 30B(1)(a) has been addressed in a number of cases before the Industrial Relations Court of Australia, including, in particular, Cooper v Darwin Rugby League Inc(1994) 57 IR 238, Andersen v Umbakumba Community Council(1994) 136 ALR 121, D'Lima v Board of Management, Princess Margaret Hospital of Children(1995-1996) 64 IR 19 and Fisher v Edith Cowan University(unreported judgement of Madgwick J, 12 November 1996, No. WI 1061 of 1996).]”

…As a result of the Workplace Relations Amendment (Fair Termination) Act 2003, the exclusion that had been contained in reg 30B(1)(a) became part of the WR Act, as s.170CBA(1)(a). There was no change to the language used in the exclusion. The note which had previously accompanied reg 30B(1)(a) now followed s 170CBA(1)(a), and remained in the WR Act until the enactment of the FW Act.

Section 386(3) of the FW Act

The Applicant maintained that if the Commission finds that there was an agreement between the parties that the Applicant would receive ongoing employment once she obtained Australian citizenship, then s.386(3) of the FW Act is satisfied.

The Applicant submitted that in response, the Respondent argued that:

“AS [41] misstates the question posed by s 386(3). Subsection 386(3) is not concerned with actions or decisions regarding further employment or an extension of employment after the employment contract has commenced. Subsection 386(3) is concerned with the substantial purpose for employing the person under the contract of employment which would otherwise satisfy s 386(2)(a). That is, the operative fixed term contract at the end of the employment. Here, this is the fixed term contract (including variations) described in RS [4].”

However, the Applicant submitted that the legislation provides as follows:

“subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) of s 386 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.”

(Applicant’s emphasis)

The Applicant submitted that, therefore, the Commission not only must consider the ‘purpose’ of employing the Applicant as a non-ongoing employee but also whether the Respondent used the contract to avoid the operation of Part 3-2 of the FW Act.

The Applicant noted that the Respondent has argued that, at the time of the Applicant’s employment:

“Under the PS Act and the Australian Public Service Commissioner’s Directions 2022 (APSC Directions), an Agency Head may only (subject to confined and non-applicable exceptions) engage an ongoing APS employee based on a competitive merit selection process (PS Act s 10A(1)(c), APSC Directions Part 4, Div 1). At the time each of the agreements in paragraph [4] above were made, the Applicant had not been a successful candidate in a merit selection process. As such, the Respondent could not have engaged the Applicant as an ongoing APS employee at the time it entered into any of those agreements.”

The Applicant submitted that as part of these proceedings, she requested all correspondence between the Respondent and herself regarding her Australian citizenship. The Applicant referred to her Citizenship Certificate dated 13 September 2024,[9] and the following email correspondence dated 15 May 2024 from the Applicant to Ms Mirthil and others, in which she provided:

“Hi team and Lucinda,

I received the good news on the 13/05/2024 that my citizenship has come through and I am now a full Australian citizen.
I am aware that this was the only reason as to why I did not get my position in the bulk recruitment round. As you can understand I have been trying to keep my job for some time now. So with this news I am excited as I love my job and really would like to stay in my position at Sid Ross.
If you could give me a call Lucinda when you return to work on Monday I would really appreciate it.
Thank you.
Kind regards
Louise.”[10]

The Applicant submitted that the only mention of the Respondent seeking approval from the delegate are mentioned in the Second Extension Letter and in email correspondence regarding her employment as a Cook. The Applicant annexed a copy of her email correspondence.[11] The Applicant submitted therefore, the Respondent has no evidence to support the claim that, during the offer of employment as Assistant Hostel Manager on 26 October 2021 or the third extension as of 20 March 2023, that her Australian citizenship was considered. The Applicant submitted that if it had been, the Respondent would have been required under the PS Act to seek delegate approval.

Further, the Applicant submitted that when considering the intention of the employer at the time of the third contract extension, the question that remains unanswered as a part of the Respondent’s Submissions is when the Respondent decided to undergo the bulk recruitment round. The Applicant submitted that if it is found that the organisation knew prior to the third contract extension, it would mean that the Respondent knowingly entered a contract for a position that would be abolished.

Further or in the alternative, the Applicant submitted that:

“…when the Commission considers Ms McCue employment as a non-ongoing employee ‘is’ used to avoid the employer’s obligations under 3-2 of the Act, we must consider the consequences of the bulk recruitment rounds. Which brings us to the question – why would AHL vary her agreement if they were not concerned about the possible legal consequences of abolishing her position?”

The Applicant submitted that it is clear that the employment agreement was varied, and that her employment was misrepresented by the parties in response to the concerns raised in the letter from Mr Ryall to Mr Chalmers dated 10 October 2023.[12]

Consequence of Section 333H on Section 386(3)

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)

The Applicant submitted that the Explanatory Memorandum at paragraph [559] explains:

“Fixed term contracts help business to source workers to perform discrete tasks for a fixed period and can be used genuinely for many purposes. However, fixed term contracts exacerbate job security for employees when they are used for the same role for an extended period, or where employees are subject to rolling contract renewals for jobs that would otherwise be ongoing. The amendments would limit fixed term contracts for the same role to two consecutive contracts or a maximum duration of two years, while preserving the legitimate use of fixed term contracts in certain circumstances.”

The Applicant submitted that the Explanatory Memorandum explains the proposed anti-avoidance provisions at paragraph [583] – [584] as follows:
“New section 333H would prohibit an employer from making changes to the timing or terms of a fixed term contract in order to avoid the operation of the new section 333E. If the employer has multiple reasons for making the changes, as long as one of the reasons is to avoid the operation of the new section 333E, this section would apply. It would be a matter for the person making the complaint against the employer to prove that the employer was making the changes to avoid the operation of the new section 333E.
This section would apply where the employer:
- terminates the employee’s employment for a period, and then engages the employee again for the same duties, so as to artificially break the continuity of their employment;
- delay re-engaging the employee, so as to artificially break the continuity of their employment;
- artificially changes the work duties of the employee between two contracts, so that the employee could not be said to be performing the same or similar work to the employer, and;
- otherwise make a change to the employment relationship.”

The Applicant submitted that, for completeness, the intention behind the legislation was reaffirmed by the Revised Explanatory Memorandum at paragraph [593], which stated:

“New section 333H would prohibit an employer from making changes to the timing or terms of a fixed term contract in order to avoid the operation of the new section 333E. If the employer has multiple reasons for making the changes, as long as one of the reasons is to avoid the operation of the new section 333E, this section would apply. It would be a matter for the person making the complaint against the employer to prove that the employer was making the changes to avoid the operation of the new section 333E.”

The Applicant also referred to the Supplementary Explanatory Memorandum, which at paragraph [4] added:

“This amendment would insert a further anti-avoidance provision at new paragraph 333H(1)(ba). This provision would prohibit an employer from ending one employee’s employment in accordance with the terms of their fixed term contract, and engaging another employee to do the same or similar work. In order for this provision to apply to an employer’s decision to terminate an employee’s employment, the employer must have made the decision so as to avoid the operation of section 333E.”

The Applicant maintained that s.333H is applicable to s.386 due to the comments from Justices Snaden, Meagher and Needham in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161.

The Applicant submitted that to avoid uncertainty, the only issue relevant to this section of the legislation is the second bulk recruitment round and the resulting merit pool, as the outcome was given after the 6 December 2023.

The Applicant submitted that in the Respondent’s Reply Submissions, it has suggested that s.333E would not be a consideration because the jobs at the end of the bulk recruitment rounds were ongoing positions. However, the Applicant submitted that the Respondent has no evidence to suggest that the successful applicants who gained employment as part of those bulk recruitment rounds were engaged in ongoing employment.

The Applicant submitted that as the second bulk recruitment round was an extension of the first, it can be argued that the reasoning behind it was the same – the issue regarding the classification of the Assistant Managers and Managers.

Further, the Applicant submitted that s.333H(1)(ba) does not concern the permanency of the positions offered but rather whether another employee was engaged to do the same or similar work. The Applicant alleged that this happened.

The Applicant noted that the Respondent has maintained throughout their submissions that the reason for the non-ongoing contract was due to the Applicant’s citizenship status. She submitted that insofar as s.333H is concerned, as she obtained citizenship on 13 September 2024, this restriction of the PS Act was no longer applicable.

The Applicant submitted that it was also worth noting that the original date of the arbitration hearing was 30 January 2025. She stated that the Respondent had advertised her position again, confirmed her interest and then changed the position to ‘Affirmative Measures’.

The Applicant submitted that in light of the Respondent delaying engagement of her in the second bulk recruitment round and then engaging another employee in her position, s.333H is satisfied and in accordance with s.386(3), the Respondent cannot rely upon the exception of s.386(2)(a).

Conclusion

The Applicant submitted that in its Reply Submissions, the Respondent argued that:

“…The issue for the Commission is whether the Applicant was dismissed. Her contract of employment provides a straightforward answer to that question: she was not dismissed; her employment was terminated at the end of the period specified in her contract in accordance with the terms of that contract and so she was not dismissed.”

The Applicant responded by stating that the “straightforward answer” is that the Applicant was dismissed.

The Applicant submitted that whether the Commission finds that it was due to the Respondent’s “questionable use of non-ongoing employment agreements, a flawed bulk recruitment process, the abolishment of Ms McCue’s position, the unilateral variation of her employment agreement and/or the subsequent misleading merit pool the fact remains that Ms McCue is no longer employed by AHL as Assistant Hostel Manager”.

The Applicant submitted that the jurisdictional objection should be dismissed, and the unfair dismissal application should proceed.

Consideration

I have taken into account all of the submissions that have been submitted by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account, however, some of the submissions also relate to the merits of the Application and a possible remedy and, therefore, have not been considered in this decision.

There is no dispute between the parties as to the applicability of Alouani-Roby. Relevantly, the Full Court said:-

“70. … Regardless, the statutory intention is, we think, patently clear: fixed-term employment contracts are not available as a concocted vehicle through which an employer might illegitimately avoid subjection to the FW Act’s unfair dismissal provisions. On the contrary, there is much to commend the suggestion that the Act will only inoculate fixed-term employment contracts from the application of those provisions in circumstances where their use is appropriate and adapted to particular employment scenarios. So much is consistent with the recent introduction (after Mr Alouani-Roby’s employment terminated) of Div 5 of Pt 2-9 of the FW Act, which imposes substantial limitations upon the use of fixed-term employment contracts.

71. Much as did the Commission (albeit in a slightly different context), we have no doubt that the use of such contracts in the engagement of professional sports personnel (including match referees) would suffice as appropriate in that sense. It is in the very nature of engagement in that universe that one’s tenure will be limited by the ravages of age. Fixed-term contracts are an obvious and appropriate way of accounting for that reality. Had Mr Alouani-Roby attempted any argument to the contrary, we would have been very slow to accept it.”[13]

(My emphasis)

Rugby league referees are seasonal employees. All of them. No exceptions. The season starts and it concludes. Referees are not employed for 52 weeks of the year. There is a significant gap or off season at the conclusion of the competition where the referees can undertaken alternate work in what would be described as their normal hours. The Applicant, on the other hand, was required to work full time for the duration of her contracted period. Apart from taking approved leave, in accordance with the NES, the Applicant was not at liberty to perform alternate work or not undertake her duties during her normal hours. Further, the overwhelming majority of employees who work for the Respondent are permanent full-time employees. I have taken these issues into account.

The Respondent has failed to provide evidence to challenge the recollections of the Applicant. Whilst the Respondent claims that it could not locate Ms Murdoch and Ms Gorecki, it failed to provide any evidence of any attempt to contact either former employee. I also note that the Alice Springs’ Hostel Manager was not called by the Respondent. It would not be unusual practice for Ms Murdoch, Ms Gorecki or the Applicant to have had a discussion with the Applicant’s Manager after the interview process in circumstances as unusual as these. I have taken this into account.

The Applicant provided unchallenged evidence that her ‘non-ongoing’ appointment would be converted to an ‘ongoing’ appointment once she obtained Australian citizenship. Whilst the Respondent’s representative initially challenged the veracity of the Applicant’s recollection, he accepted a scenario that I raised that an individual may not have a perfect recollection of every facet of a discussion or meeting that occurred more than 3 years previously, but that they would remember with some precision the critical point of the discussion. Further, the Respondent submitted:

“You heard Ms Kirby's evidence about how more commonly the applicant might have been cut out from even getting to an interview stage, a very unusual situation where they had someone who'd made it all the way through an ongoing recruitment round and then it had come to everyone's attention, at the 11th hour, that they weren't an Australian citizen. AHL settled on an approach of, okay, well let's engage her as a non ongoing employee, we'll impose a condition that she needs to go and apply for her citizenship and we'll engage her as a non ongoing for now.”[14]

(My emphasis)

I have taken this into account.

The Applicant was advised in May 2024 that her application to be an Australian citizen had been successful (see email extracted at paragraph [155] of this decision). I note clause 5 of the Applicant’s original contract (26 October 2021) states:-

“5. Australian Citizenship Documentation. You must be an Australian citizen and provide relevant documents i.e. an Australian Passport or Birth Certificate. In accordance with subsection 22(8) of the PS Act, the AHL CEO must not engage a person who is not an Australian citizen as an APS employee. In exceptional circumstances only, the AHL CEO may determine that citizenship may be waived or a permanent resident be conditionally engaged pending receipt of relevant citizenship documents.”

(My emphasis)

I am satisfied and find that this accurately describes what transpired with the Applicant. She was conditionally engaged as a non-ongoing employee pending receipt of her relevant citizenship documents. I have taken this into account.

I have also taken into account the undisputed evidence of the Applicant that she continued to perform the duties of the Assistant Hostel Manager, even after a new Assistant Hostel Manager had been appointed and she had returned to her substantive position of an APS 3.7.

Regarding the unchallenged evidence of the Applicant, I note that in the Full Bench decision of INPEX Australia Pty Ltd v The Australian Workers’ Union,[15] it was stated that:-

“[29] The Commission is not a court. It is not bound by the rules of evidence.6 It is required to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities.7 But when the Commission makes a finding of fact, it must proceed by reference to rationally probative material. 8 That material may include, inter alia, evidence or, in an appropriate case, submissions. For example, it may be appropriate for a finding of fact to be made on the basis of an unchallenged submission made by one party, particularly when the other party is legally represented.”

(My emphasis)

Further, a Full Court of the Federal Court of Australia stated in Ashby v Slipper[16] that:-

“The second aspect, critical to this appeal, relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.”

(My emphasis)

I am satisfied and find that the Applicant’s unchallenged evidence should be believed. I regard the Applicant to be a witness of credit. I have taken this into account.

Further, the evidence of Ms Rogers indicates that the Respondent was waiting for the Applicant to provide her citizenship certificate:-

“So as a part of the second bulk recruitment round in November, was a recommendation made?‑‑‑To my knowledge, no. There was no recommendation made.

Why wasn't it made?‑‑‑There were several other recommendations of waivers for the Australian citizenship. We had been advised that Ms McCue would be producing her Australian citizenship, and we were waiting for that documentation to be produced.

…
Who would know?‑‑‑There was no reason to ask that question, in my opinion, following that - receiving that email. There was a clear email back to Ms McCue stating that once she received her Australian citizenship, if she could please provide that documentation to us, and we also put in that email that we believed that the citizenship paperwork for the granting of the citizenship would occur following her attending that ceremony. So there was – for me, there was never any reason to ask any other further questions.”[17]

It is not in dispute that Ms Rogers forwarded on the Applicant’s citizenship certificate to Ms Bear once she received it. The Respondent did not provide any evidence from Ms Bear. I have adopted a Jones v Dunkel inference as a result of this omission. Relevantly, there was absolutely no need for the Applicant to provide her citizenship certificate at this point, or at any time following her final extension, if the Applicant had not been promised an ongoing role once she had become an Australian citizen. I have taken this into account.

It is not in dispute that the Applicant was originally offered a full-time ongoing role by the Respondent. This offer was altered to a non-ongoing role after it was discovered that the Applicant was not an Australian citizen. The Applicant was encouraged, and applied for her citizenship immediately. The Applicant’s non-ongoing contracts were renewed whilst they waited for the Applicant’s citizenship application to be processed. I have taken this into account.

Whilst the Applicant was appointed as a non-ongoing employee, the role was ongoing. Non-ongoing or fixed term contracts have traditionally been utilized in Australian workplaces for a specified period of time, a specified season or for a particular task. Relevantly, the Applicant’s role of Assistant Hostel Manager continued. It was not a temporary role due to an event or specified circumstance. The role is certainly not seasonal. Further, there was no limitation to the role due to an employee being on long service leave, extended sick leave or parental leave. I have taken this into account.

The Respondent submitted that the Applicant was not appointed to a merit pool for a second occasion, so even if a commitment to ongoing employment existed, such commitment had expired:

“So the merit list for the applicant expired on 6 March 2023. So any commitment to engage her as an ongoing employee, once she obtained her citizenship, must have expired with that merit list.”[18]

However, correspondence was filed in this matter which confirmed that the Applicant was placed in a further merit pool in March 2024:

“Tuesday, 5 March 2024
Good morning Louise,
Re: Aboriginal Hotels Limited (AHL) – VN14223 APS 4 Assistant Hostel Manager Bulk Round

Thank you for your interest in the above mentioned position with AHL. The selection panel appreciated the time you took to prepare and submit your application.
Unfortunately, on this occasion you have been unsuccessful for a position, however you were rated ‘suitable’ by the Selection Committee and you have been placed on the Merit Pool. The Merit Pool remains active for 18 months from the date of advertising and may be accessed to fill a position should a position become vacant within that time. Please note, should future vacancies arise, to be eligible for ongoing engagement the successful employee will need to meet Australian Citizenship requirements as a condition of employment. This requirement was notified as part of the vacancy advertisement.
We wish you success in your future endeavours.
Kind Regards,
Recruitment
Aboriginal Hostels Limited”[19]

I am satisfied and find that the evidence clearly shows that the Applicant was appointed to the merit pool for a second time in March 2024. I have taken this into account.

The Full Bench decision of the Commission in Alouani-Roby v National Rugby League Limited, Bernard Sutton and Graham Annesley[2022] FWCFB 171 provides guidance in relation to the consideration that must be undertaken in concluding whether or not a dismissal has occurred. As outlined in the Full Court decision, it provides as follows:

“22. After a lengthy analysis of relevant case law, the Full Bench was drawn to state the following conclusions, namely (Full Bench Decision, [131]):

For the purposes of analysing whether there has been a dismissal, within the meaning in s.386(1)(a), consideration of the entire employment relationship ... includes consideration of the contract of employment in operation at the time of the employment ending and may also include consideration of other employment contracts during the entire employment relationship (or series o[f] employment relationships...). As we have noted, the contract of employment is fundamental to, and underpins, the employment relationship. In addition to the terms of the contract, consideration of the entire employment relationship may, depending on the facts, require examination of a range of matters...including: the field of employment in which the contract operates; the terms of any industrial instruments including awards and enterprise agreements applicable to the relevant employment; all contracts in a series of time limited contracts; the context in which the contract of employment and the employment relationship operated; conduct of the parties during the relationship and the circumstance in which the employment ended. Consideration may also be required as to whether there are vitiating factors so that there is no legally effective time limit on the employment.

23. Thereafter, the Full Bench addressed the discrete appeal grounds that Mr Alouani-Roby had advanced. In doing so, it concluded that Mr Alouani-Roby’s “...final contract reflected a genuine agreement on the part of [he and the NRL] that the employment relationship would not continue after 30 November 2020... [and that there was] no indication that the contracts were a practice put in place by the [NRL] for mere administrative convenience”: Full Bench Decision, [140]. The Full Bench continued:

[Deputy President Cross] accepted the Respondents’ evidence and submissions that the use of maximum term contracts was appropriate in the field of elite professional sports and the intention was to ensure that the best available match officials would be engaged each season. The Deputy President also found that there was a legitimate purpose for this mode of employing match officials and it was significant that maximum term contracts were specified as the mode of employment for all persons employed in the same capacity as [Mr Alouani-Roby]. [Mr Alouani-Roby] did not dispute these findings in the appeal and appears to contend that notwithstanding that a mechanism for employing other match officials was legitimate, it was not legitimate with respect to the employment of [Mr Alouani-Roby]. We do not accept that submission.”

I have taken this into account.

I have taken into account the glowing reference of the Applicant’s supervisor, Ms Tresna Appo:

“13/08/2023

To whom it may concern,
I am pleased to be asked to give Louise a reference, I have the pleasure of working with Louise for several years, she was also my full time cook at AMVP and Sid Ross Hostel, so I have known her since 2012.

I have also had the opportunity to have her as my assistant manager at Sid Ross Hostel for the last 2 years. Louise has demonstrated that she is committed to assisting first nations people.

Louise has demonstrated that she is willing to learn, understand that there is a difference between individuals from the various communities within SA, NT, WA and QLD. This difference makes her role complex and often more difficult as the clients coming through are unwell, away from community/family and are often frustrated. This is role that she excels in, she shows compassion and empathy, but she also follows the rules, she goes out of her way to welcome people even when they are rude and cranky.

I have seen her demonstrate her ability to build a rapport with children and adults and she dotes on the elderly.

Louise has great writing skills, her reports are well written and descriptive, her handovers are in-depth and communicate any issues that have arisen and what her response has been.

Louise completes her workload in a timely manner, able to prioritize her workload to meet deadlines, she can enter and update reservations in our RMS program.

Louise meets any challenge head on with an open and honest willingness to overcome it and learn from it.

Louise has been an invaluable asset to AHL as an assistant hostel manager, and I can see her developing into a great manager, she demonstrates that she is reliable, experienced in dealing with difficult behaviors and is always willing to listen and assist not on those that are clients but family members and people off the street. I have seen her call all the hostels for accommodation for someone that has come in off the street who was homeless as the buses were not working.

I have no hesitation in recommending her to be an assistant manager (Sid Ross Hostel) or as Manager at any other hostel.

Yours Sincerely
Tresna Appo”[20]

It is plainly obvious that Ms Appo was of the opinion, from her personal experience of having worked with the Applicant, that the Applicant was a competent and worthy candidate for the Assistant Manager role at Alice Springs or a Manager position at a different hostel.

The FW Act was amended by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022, which received Royal Assent on 6 December 2022. This included new provisions in relation to ‘fixed term contracts’ which came into effect on 6 December 2023. This new legislation basically prohibited the Respondent from treating any future employee in the same manner as it has treated the Applicant. Fixed-term contracts can now only be extended once and the total duration of the fixed-term contract is 2 years. The Respondent submitted that the new provisions did not apply to the Applicant’s situation, because her last contract was signed before this legislative amendment came into force. I do not agree. Once the new legislative provisions came into effect, the Respondent was required to comply with the legislation. The Respondent’s business activity was not an excluded activity as per the Fair Work Amendment (Fixed Term Contracts) Regulations 2023. The Respondent should have dealt with the Applicant’s employment situation at that point in time, not simply let it meander to its conclusion on 19 September 2024.

Conclusion

I am satisfied and find that the decision of Alouani-Roby can be distinguished based on the facts of this matter:-

a)The Respondent runs accommodation hostels for Indigenous Australians, not a professional sporting competition.
b)The overwhelming majority of the Respondent’s employees are permanent full-time employees, not fixed term, seasonal employees.

c)The role performed by the Applicant was an ongoing and required function, 24 hours a day, 7 days a week, 52 weeks of every year, unlike the function of a rugby league referee.

The Respondent acknowledged that there may have been a commitment to engage the Applicant as an ongoing employee once she obtained citizenship, but incorrectly stated that this commitment expired on 6 March 2023, 18 months after the Applicant was placed on a merit list. The incontrovertible evidence shows that the Applicant was placed on a second merit list in March 2024.

I am satisfied and find that the Applicant was promised an ongoing role if she was able to gain Australian citizenship. I’m surprised that the Respondent did not act on this advice on 15 May 2024, rather than wait for the Citizenship Ceremony, which is a mere formality and are only held at the convenience of the appropriate dignitary. However, even if the Respondent required to see the actual certificate, the Applicant produced this certificate a few days before her fixed term employment expired. The Respondent was obligated to appoint the Applicant to a role at that point in time.

For the reasons stated above, I am satisfied and find that the Applicant was dismissed by the Respondent and s.385(a) of the FW Act has been satisfied.

The Respondent’s jurisdictional objection is dismissed.

I so Order.

A Directions Conference will be convened in the near future.

COMMISSIONER

[1] [2024] FWC 1815.

[2] Ibid at [47].

[3] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [70].

[4] Applicant’s Statement of Evidence, Attachment LM-25.1.

[5] Ibid, Attachment LM-29.

[6] Ibid, Attachment LM-30.

[7] Ibid, Attachments LM-3, LM-4, LM-5 and LM-6.

[8] Ibid, Attachment LM-17.

[9] Ibid, Attachment LM-2.

[10] Ibid, Attachment LM-20.

[11] Ibid, Attachment LM-35.

[12] Ibid, Attachment LM-17.

[13] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [70]-[71].

[14] Transcript at PN732.

[15] [2021] FWCFB 1038.

[16] [2014] FCAFC 15.

[17] Transcript at PN144-145 and PN155.

[18] Transcript at PN684.

[19] Applicant’s Statement of Evidence, Attachment LM-19.

[20] Ibid, Attachment LM-31.

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