Mark Dowling v Auditing & Assurance Standards Board T/A Auditing and Assurance Standards Board

[2018] FWC 1388

[2018] FWC 1388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Dowling
v
Auditing & Assurance Standards Board T/A Auditing and Assurance Standards Board
(U2017/13231)

DEPUTY PRESIDENT MASSON MELBOURNE, 21 MARCH 2018

Application for an unfair dismissal remedy – jurisdictional objection – employee not dismissed at the initiative of the employer within the meaning of s 386(1) of the Fair Work Act – jurisdictional objection upheld – application for unfair dismissal dismissed

Introduction

[1] Mr Mark Dowling (the Applicant) commenced employment with the Auditing & Assurance Standards Board T/A Auditing and Assurance Standards Board (the Respondent) on 23 May 2016 in the role of a senior Project Manager and was subject to a six month probationary period.

[2] Prior to the conclusion of the Applicant’s probationary period, the Respondent determined that the Applicant had not met the probationary period performance requirements and would not be retained in the role. The Applicant was advised of this on 22 November 2016 and offered another Project Manager role at a lower level on the basis of a twelve month “outer limits” or “maximum term” contract commencing on 23 November 2016.

[3] Subsequently, the Respondent determined prior to the end of the twelve month contract period not to offer the Applicant a further period of employment. The Respondent advised the Applicant of this decision and his employment ceased on 23 November 2017.

[4] On 13 December 2017, the Applicant filed an application for an unfair dismissal remedy (Application) with the Fair Work Commission (the Commission) pursuant to s 394 of the Fair Work Act 2009 (the Act).

[5] The Respondent raised a jurisdictional objection to the Application on the grounds that the Applicant was not dismissed within the meaning of s 386(1) of the Act and that the Application should be dismissed for want of jurisdiction.

[6] The question to be determined is whether the Applicant was dismissed within the meaning of s 386(1)(a) of the Act. That is, whether the Applicant was dismissed on the initiative of the employer.

[7] The matter was set down for hearing of the Respondent’s jurisdictional objection on 8 March 2017. The Applicant was self-represented at the Hearing. I granted permission to Ms Natalie Campbell of Counsel to appear on behalf of the Respondent. Evidence was given at the Hearing by the Applicant on his own behalf and by Mr Matthew Zappulla on behalf of the Respondent.

Statutory framework

[8] Part 3-2, Unfair Dismissal, of the Act contains the statutory scheme concerning access to remedies for unfair dismissal. Section 385 provides that a person has been “unfairly dismissed” if the Commission is satisfied as to four specified matters, the first of which is that “the person has been dismissed.” Section 386 defines when a person has been dismissed as follows:

“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.

[9] The operation of s 386(1) of the Act was recently considered by a Full Bench in Saeid Khayam v Navitas English Pty Ltd t/a Navitas English (Navitas) 1 where the proper approach to the construction of s 386(1) of the Act was summarised by the Full Bench majority as follows:

“[75] Having regard to these propositions and the court decisions to which we have earlier referred, 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).”

[10] Having regard to the Full Bench authority of Navitas it is necessary for me to consider whether the terms of the Applicant’s time limited contract represented a genuine agreement between the parties that the employment relationship would not continue beyond an agreed date. It may also be necessary to go further and consider whether there were any determinative vitiating factors.

Evidence and Submissions

Evidence of Mr Matthew Zappulla

[11] Mr Zappulla is employed as the Technical Director of the Respondent, having commenced employment with them on 6 February 2017.

[12] Mr Zappulla gave evidence that the Applicant commenced employment with the Respondent on 23 April 2016 as a senior Project Manager pursuant to an ongoing employment contract dated 21 April 2016 (April 2016 Contract). 2 The employment contract specified a six month probationary period which the Applicant failed to satisfactorily complete.3

[13] The Applicant was offered a further contiguous contract of employment in a Project Manager role at a lower level in correspondence dated 22 November 2016 (November 2016 Contract). 4 That November 2016 Contract was a twelve month “outer limits” contract that commenced from 23 November 2016 and expired on 22 November 2017.

[14] Mr Zappulla gave evidence that on commencement of his employment with the Respondent, he was alerted by the Respondent’s National Director to performance issues of the Applicant whom Mr Zappulla would be required to manage. Mr Zappulla claimed that he quickly concluded that the Applicant did not have the necessary skills and capabilities to perform the tasks required in his role. These performance issues were the subject of regular informal meetings between Mr Zappulla and the Applicant in the period prior to the Applicant’s cessation of employment. 5

[15] According to Mr Zappulla’s evidence, both he and Mr Roger Simnett, the Chairman of the Respondent, encouraged the Applicant during the latter period of his employment to look for alternate employment. Mr Zappulla also asked the Applicant on 25 September 2017 to complete a self-assessment against the job description for his role which was returned by the Applicant on 3 October 2017. 6 The Applicant’s self-assessment along with Mr Zappulla’s assessment, staff and Board member feedback were considered prior to Mr Simnett and Mr Zappulla deciding not to offer the Applicant a further contract of employment beyond the expiration of the November 2016 Contract.7

[16] The Applicant was advised by Mr Zappulla and Mr Simnett in a meeting on 11 October 2017 that he would not be offered a further contract beyond the expiration of the November 2016 Contract. This was confirmed in correspondence from Mr Simnett to the Applicant dated 26 October 2017 (the 26 October 2017 Letter). 8 Further meetings were subsequently conducted by Mr Zappulla with the Applicant on 1 and 2 November 2017 with the purpose of providing feedback to assist the Applicant’s professional development.

[17] The 26 October 2017 Letter to the Applicant stated in part as follows:

“As outlined in your letter of appointment dated 22 November 2016, your employment with AASB-AUASB was for a fixed term contract with an end date of 23 November 2017.

This letter is to advise that after due consideration, we have determined not to extend your employment with AASB-AUASB post the conclusion of your contract effective 23 November 2017.”

[18] Mr Zappulla conceded that the final date of the Applicant’s employment, that of 23 November 2017, was not in accordance with the terms of the November 2016 Contract. The correct date of contract expiration was in fact 22 November 2017. He stated that he and the Applicant had verbally agreed however that the Applicant’s final day would be 23 November 2017. This finishing date was to accommodate various arrangements including: Respondent staff interstate travel; Mr Simnett’s availability for a farewell lunch for the Applicant; and to enable an effective handover of the Applicant’s work to Ms Anne Waters. 9

Respondent submissions on jurisdictional objection

[19] The Respondent submitted that there were concerns about the Applicant’s performance throughout his period of employment. This was evident by the decision of the Respondent taken in November 2016 that the Applicant had failed to satisfy the probationary period requirements and the regular discussions held between Mr Zappulla and the Applicant during 2017.

[20] The November 2016 Contract was clear in its terms regarding the expiration of the contract of employment, this being confirmed to the Applicant both in the meeting of 11 October 2017 and in the 26 October 2017 Letter sent to the Applicant.

[21] The Respondent acknowledged that the final date of the Applicant’s employment, that of 23 November 2017, was not consistent with the November 2016 Contract which provided for a final date of 22 November 2017. Nor was there an agreed variation made to the November 2016 Contract in terms required by the contract. The contract variation terms in the November 2016 Contract were as follows:

“Variation

Any variation to this letter of appointment will be of no force and effect unless it is in writing and signed by you and AUASB.”

[22] The Respondent submitted that as the November 2016 Contract was not varied by a signed mutual agreement in accordance with the terms of the contract, then the additional day, that being 23 November 2017, represented a separate and agreed contract of employment the expiration of which ended the employment relationship.

[23] The Respondent submitted that, having regard to the relevant legal tests and the factual circumstances of the matter, the jurisdictional objection to the Application proceeding should be upheld for a number of reasons:

•  The Applicant was employed on a genuine “outer limits” contract;

•  The Applicant did not remain employed by the Respondent beyond the expiration of the November 2016 Contract, save for the mutually agreed additional day of 23 November 2017;

•  The effluxion of time brought the employment relationship to an end, not the action of the employer; and

•  The November 2016 Contract was the second contract entered into and was not part of an ongoing series of employment contracts.

Applicant Evidence

[24] The Applicant did not dispute that he commenced employment with the Respondent on 23 April 2016. He acknowledged that during his probationary period, concerns regarding his performance were raised by the then Chair of the Respondent, Ms Merran Kelsall, in a meeting on 30 August 2016. 10 He also stated that he was subsequently encouraged to seek alternate employment.

[25] The Applicant stated that confirmation that he had not met his probationary period requirements was provided at 11.51 am on 22 November 2016, that being the final day of his probationary period. 11 He was however offered a further twelve month contract of employment (November 2016 Contract) at 2.27 pm on 22 November 2017 for a Project Manager role at a reduced level of remuneration.12 The Applicant conceded that he was not pressured or forced to sign the November 2016 Contract but that the timing of the offer did not allow him time to obtain appropriate advice.

[26] The Applicant stated that on being offered the November 2016 Contract, he understood that any decision regarding ongoing employment would be decided by the incoming Chair and incoming Technical Director of the Respondent, both of whom according to the Applicant subsequently stated to the Applicant that he would be given every opportunity to continue in his role subject to performance evaluation. 13 The Applicant also stated that he was assured by the then National Director, Mr Justin Lachal at the time of the November 2016 Contract offer, that as part of his further contract he would receive intense mentoring sessions to assist him improve his performance.

[27] The Applicant stated that arising out of a meeting with Mr Simnett and Mr Zappulla on 2 August 2017; he perceived that there were no issues with his performance for the prior year (1 July 2016 – 30 June 2017). He also understood from that meeting however that his contract end date remained as per the November 2016 Contract and that any extension was subject to a review of his performance. He stated that he was subsequently advised in a meeting on 11 October 2017 by Mr Simnett and Mr Zappulla, that he was not performing at the expected level of a Project Manager and that he would not be retained in the role beyond 23 November 2017. 14 This was confirmed in the 26 October 2017 Letter.

[28] The Applicant claimed that while participating in regular informal meetings with Mr Zappulla at which his performance was discussed, he had received no mentoring and limited counselling in relation to his performance throughout his eighteen months of employment with the Respondent. Further he claimed that he was not afforded an opportunity to address any of the issues raised regarding the assessment of his performance. 15

[29] The Applicant conceded during cross-examination that he had no expectation of his employment being extended beyond 23 November 2017 following advice from Mr Simnett and Mr Zappulla on 11 October 2017 and as subsequently confirmed in the 26 October 2017 Letter. The Applicant also acknowledged the Respondent’s plans to restructure the team and accepted that, even had he performed to the Respondent’s expectations, he may not have secured a contract extension due to organisational restructuring. The Applicant also confirmed that he commenced looking for alternate employment in October 2017.

[30] With respect to his final day, the Applicant stated that he was acutely aware that the last day provided for under the November 2016 Contract was 22 November 2017 but that he had agreed with Mr Zappulla to finish a day later on 23 November 2017 for the reasons outlined by the Respondent. 16 Notwithstanding the additional day, the Applicant confirmed that he knew as of 11 October 2017 that his last day of employment with the Respondent would be 23 November 2017.

Applicant submissions on jurisdictional objection

[31] The Applicant submitted that while he understood that his employment was to cease on expiry of the November 2016 Contract, absent a decision by the Respondent to extend his employment, there were a number of vitiating factors that should be considered. Those vitiating factors were as follows:

1. The employee entered into the November 2016 Contract as a result of misrepresentation or misleading conduct of the employer. Specifically that he would be provided with intense mentoring sessions which did not eventuate;

2. Duress or coercion was applied by the Respondent to the Applicant by reason of the compressed timeframe allowed between advice to the Applicant that he had failed to satisfy the probationary requirements of the April 2016 Contract and the offer of the November 2016 Contract;

3. The November 2016 Contract was not appropriate having regard to the Applicant being employed in an ongoing role that was not subject to funding requirements, raising the issue of whether the contract was illegal or contrary to public policy;

4. The November 2016 Contract was varied or abandoned by reason of the purported extension to the contract. The November 2016 Contract was only able to be varied by the signed agreement of both parties which did not occur;

5. The Respondent had engaged in conduct and made representations during the Applicant’s employment that prevented the Respondent relying on the terms of the November 2016 Contract. Specifically assurances were given to the Applicant that he would be given every opportunity to continue in the role subject to performance.

[32] By reason of the vitiating factors, the Applicant submitted that there was not a genuine agreement between the parties that the Applicant’s employment would not extend beyond an agreed date. Consequently, the Applicant submitted that the termination of his employment had been at the initiative of the Respondent and that the Respondent’s jurisdictional objection to the Application must fail.

Consideration

[33] I am satisfied on the evidence that the following timeline of events occurred with respect to the Applicant’s employment with the Respondent:

•  On 21 April 2016, the Applicant received an offer of employment (April 2016 Contract) with the Respondent as a senior Project Manager;

•  On 23 April 2016, the Applicant commenced employment with the Respondent;

•  On 30 August 2016, Ms Merran Kelsall, the then Chair of the Respondent, met with the Applicant and raised concerns with the him regarding his performance;

•  On the morning of 22 November 2016, the Applicant was advised that he had failed to pass his probationary period provided for in the April 2016 Contract;

•  On the afternoon of 22 November 2016, the Applicant was offered and accepted a new “outer limit” twelve month contract (November 2016 Contract) with the Respondent in a less senior Project Manager role;

•  On 23 November 2016 the Applicant commenced in the new role pursuant to the November 2016 Contract.

•  On 2 August 2017, the Applicant met with Mr Zappulla and Mr Simnett and as a consequence of the meeting perceived that there were no performance issues with respect to the previous performance year (1 July 2016 – 30 June 2017);

•  On 25 September 2017, the Applicant was provided by Mr Zappulla with a copy of his Position Description and was requested to complete a self-assessment against it;

•  On 3 October 2017, the Applicant returned the completed self-assessment against the Position description;

•  On 11 October 2017, Mr Zappulla and Mr Simnett met with the Applicant and confirmed that arising out of a review of his performance, the Applicant would not be offered a further contract and that he would cease employment on 23 November 2017;

•  On 26 October 2017, Mr Simnett wrote to the Applicant confirming the advice provided to the Applicant in the meeting of 11 October 2017 that his employment would cease on 23 November 2017;

•  On 1 and 2 November 2017, Mr Zappulla met with the Applicant to provide feedback to assist the Applicant’s professional development;

•  On 23 November 2017, the Applicant completed agreed handover activities and ceased employment with the Respondent.

Was there genuine agreement between the parties that the employment relationship would end on 23 November 2017?

[34] The terms of the November 2016 Contract entered into by the parties were very clear as to the term of the employment contract – that being an “outer limit” of twelve months commencing on 23 November 2016. Consequently, the end date of that contract of employment was 22 November 2017 and was not subject to any subsequent agreed and signed variation in accordance with the terms of the contract.

[35] I am satisfied that both parties understood and acted in the clear belief that the employment relationship would cease at the end of the November 2016 Contract, other than in circumstances where the Respondent offered a new contract. The Applicant’s own evidence was that he “was acutely aware” that the last day of the November 2016 Contract was 22 November 2017 and that he was under no misapprehension following a meeting with Mr Zappulla and Mr Simnett on 11 October 2017 that he would not be offered a contract extension.

[36] While there appears to have been some confusion on the part of the Respondent as to the final date of the Applicant’s employment under the November 2016 Contract, what is clear is that there was an agreement between the Respondent and the Applicant that the Applicant would finish on 23 November 2017 to assist manage the logistics of his handover and departure. The additional day was not provided for by way of a signed variation to the November 2016 Contract and as such constituted a separate and distinct agreed contract of employment.

[37] I am satisfied that the necessary elements of offer, acceptance and consideration were present to establish a separate, distinct and contiguous contract of employment for the additional day of 23 November 2017. It is also clear that by the parties agreeing to the additional day, there was no intention to establish an ongoing employment relationship but to simply facilitate an effective handover and departure of the Applicant. I am satisfied that the additional day of employment did not alter the behaviour or understanding of the parties that the employment relationship would end on 23 November 2017.

[38] In the circumstances, I am satisfied that there was a genuine agreement between the Respondent and the Applicant that the employment relationship would not extend beyond 23 November 2017.

Were there any vitiating factors?

[39] It is now necessary to consider whether there were any vitiating factors that would disturb the finding that there was genuine agreement between the parties that the Applicant’s employment would not extend beyond 23 November 2017.

[40] I am satisfied that at the time of the offer of the November 2016 Contract, the Applicant held discussions with the former National Director, Mr Justin Lachal, and that it was stated to the Applicant that he would receive mentoring sessions to assist him address performance issues that were evident during the April 2016 Contract and which adversely impacted his probationary employment outcome.

[41] What was also made clear to the Applicant at the time of the November 2016 Contract offer, which he confirmed in his evidence, was that any decision regarding the Applicant’s ongoing employment beyond the term of the November 2016 Contract would be made by the incoming Chair and Technical Director of the Respondent.

[42] While the Applicant stated that a major factor in his decision to accept the November 2016 Contract was that of the foreshadowed mentoring sessions he also understood at the time of the November 2016 Contract offer that his ongoing employment would ultimately be subject to decisions of persons not yet employed by the Respondent. The Applicant understood and accepted the role on the basis that he had no assurance of employment beyond the terms of the November 2016 Contract.

[43] In any event Mr Lachal subsequently left the organisation and the responsibility of supervising and managing the Applicant fell to Mr Zappulla when he commenced employment in February 2017. I am satisfied that while mentoring did not occur in the form anticipated by the Applicant there were regular informal discussions between Mr Zappulla and the Applicant regarding his performance.

[44] Mr Lachal’s departure appears to have impacted on the commitment to provide mentoring to the Applicant although the Applicant was provided with regular informal coaching by Mr Zappulla. Importantly, the Applicant was offered an “outer limit” twelve month contract on 22 November 2016 when he failed to pass his initial probationary period of employment. The November 2016 Contract was offered on the basis of affording him an opportunity to satisfy the Respondent that he (the Applicant) was capable of filling a lesser role than he had been engaged to perform initially under the April 2016 Contract. The Applicant accepted the November 2016 Contract with full knowledge that his performance would be assessed by the incoming Chair and Technical Director.

[45] Having regard to the informal coaching provided to the Applicant by Mr Zappulla during 2017 and the Applicant’s clear understanding that any future employment contract extensions would be considered by the incoming Chair and Technical Director I am not satisfied that the conduct of the Respondent was misleading or deceptive such that it would vitiate the “outer limit” contract terms.

[46] I will now deal with the Applicant’s contention regarding the alleged duress and coercion applied by the Respondent with respect to the timing of the November 2016 Contract offer to the Applicant.

[47] It is clear that the timeframe between the Applicant being advised that he had been unsuccessful in his initial probationary period of employment and the subsequent November 2016 Contract offer was a matter of hours. While the decision of the Respondent on the Applicant’s probationary employment was not a surprise to the Applicant, the fact that the decision was not confirmed until the final day of his six month probationary period reflects poorly on the Respondent. The tight timeframe clearly left the Applicant little or no time to consider his options and unsurprisingly he accepted the November 2016 Contract.

[48] The Applicant readily conceded that the time pressure did not force or compel him to accept the November 2016 Contract and as such did not strictly constitute coercion or duress. As such I am not satisfied that the evidence supports the Applicant’s submission that he had been subjected to duress or coercion to accept the November 2016 Contract.

[49] The next contention of the Applicant to be considered is whether the time–limited November 2016 Contract was unlawful or contrary to public policy. The fact that the time-limited nature of the November 2016 Contract role was not a feature of the Respondent’s normal employment arrangements or may not have been subject to periodic funding approval requirements does not render the terms of the contract unlawful or contrary to public policy.

[50] It is clear that the Respondent held concerns regarding the Applicant’s performance and capability hence its decision that the Applicant failed to meet the probationary employment requirements under the April 2016 Contract. The decision of the Respondent to subsequently offer the Applicant the November 2016 Contract and an opportunity to perform in a less senior role was clearly unrelated to any funding issues at the time but was due primarily to the Respondent’s concerns regarding the Applicant’s performance and suitability. I am not satisfied that any of the material or evidence adduced demonstrated an unlawful intent or action on the part of the Respondent or that there were any public policy considerations that would vitiate the “outer limit” contract terms.

[51] With respect to the contract variation, I have already found the November 2016 Contract was not subject to variation as there was no variation signed by both parties as required under the terms of that contract. Consequently, the November 2016 Contract reached its expiration date on 22 November 2017 and a separate and discreet contiguous contract of employment was entered into between the parties that enabled the Applicant to complete handover tasks and end his employment on 23 November 2017.

[52] In agreeing with the Respondent to work on 23 November 2017, the Applicant understood and clearly accepted that his employment relationship would cease on that day. I am not persuaded that the agreement of the Applicant to work an additional day altered the understanding between the parties or changed the character of the cessation of the employment relationship. Specifically, that it was mutually agreed that the Applicant’s employment was time-limited and would end on the revised date of 23 November 2017.

[53] I now turn to the final contention of the Applicant, that the Respondent engaged in conduct or made representations that would prevent it from relying on the terms of the November 2016 Contract. The Applicants submitted that it did so by assuring the Applicant he would be given every opportunity to continue in the role subject to performance.

[54] I am satisfied that the evidence establishes that the Applicant, having failed to pass his probationary employment under the April 2016 Contract, was afforded a further employment opportunity in a less senior role with the Respondent under the terms of the November 2016 Contract. It is also clear that the Respondent, in extending the Applicant’s employment beyond 22 November 2016 intended to review the Applicant’s performance and suitability for ongoing employment in the subsequent twelve month period.

[55] I am not persuaded that the Respondent made representations to the Applicant that his employment would continue subject to performance and conduct. Rather, the Respondent consistently maintained, and the Applicant understood and accepted, that the Applicant’s performance and suitability would be considered as part of any review and decision as to extending his employment. In these circumstances, I am not satisfied that the Respondent made representations to the Applicant that would estop their right to rely on the terms of the “outer limit” contract into which the parties entered.

Conclusion

[56] I am satisfied that the Applicant’s employment relationship ended in accordance with the terms of a time limited contract which represented a genuine agreement between the Applicant and Respondent that the employment relationship would not continue beyond 23 November 2017.

[57] In reaching this conclusion I have also found that there were no vitiating factors that would prevent the Respondent from relying on the time limited contract entered into with the Applicant. Consequently, the Applicant was not terminated on the Respondent’s initiative and therefore has not been dismissed within the meaning of s 386(1)(a) of the Act.

[58] Having found that there was not a dismissal on the Respondent’s initiative; the Application must be dismissed for want of jurisdiction. The Application is dismissed. A separate Order will be issued.

DEPUTY PRESIDENT

Appearances:

Mr Mark Dowling on his own behalf.

Ms Natalie Campbell, of counsel, for the Respondent.

Hearing details:

Melbourne.

2018

March 8.

Printed by authority of the Commonwealth Government Printer

<PR600986>

 1   [2017] FWCFB 5162.

 2   Exhibit R2, Statement of Mr. Matthew Zappulla at paragraph [5], Attachment MGZ1

 3 Ibid at paragraph [7].

 4   Ibid, Attachment MGZ2.

 5   Ibid at paragraph [8]-[10].

 6 Ibid at paragraph [19].

 7 Ibid at paragraph [20].

 8   Ibid, Attachment MGZ3.

 9 Ibid at paragraph [27].

 10 Exhibit A1, Statement of Mr. Mark Dowling at paragraph [6].

 11   Ibid at paragraph [5.1].

 12   Ibid at paragraph [5.2].

 13   Ibid at paragraph [5.5].

 14 Ibid at paragraph [9].

 15   Ibid at paragraph [13]-[15].

 16 See paragraph [19].