Mr Fady Abadear v Airservices Australia
[2025] FWC 3503
•25 NOVEMBER 2024
| [2024] FWC 3220 [Note: An appeal pursuant to s.604 (C2025/616) was lodged against this decision and the order PR781635 arising from this decision - refer to Full Bench decision dated 7 March 2025 [[2025] FWCFB 51] for result of appeal.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Fady Abadear
v
Airservices Australia
(C2024/7423)
| COMMISSIONER REDFORD | MELBOURNE, 25 NOVEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed – whether employee engaged under a contract of employment for a specified period of time – application dismissed.
Mr Fady Abadear is an engineering specialist who was engaged to work by Airservices Australia on the Sydney Basin Airspace Modernisation Project (SBASM Project). He was employed pursuant to a written contract of employment.
After Mr Abadear’s employment with Airservices Australia ended on 11 October 2024[1] he filed an application in the Commission pursuant to s 365 of the Fair Work Act 2009 (the Act) claiming he was dismissed in contravention of the Act. Airservices Australia objected to the application on the basis it says Mr Abadear was not dismissed. Specifically, Airservices Australia claims Mr Abadear was employed under a contract of employment for a specified period of time, and his employment ceased at the end of that period.
While ordinarily, the Commission does not have a determinative or decision-making function in relation to an application of this kind, where a Respondent disputes that an Applicant was dismissed within the meaning of the Act, a determination in relation to that dispute must be made before any other step may be taken[2]. I conducted a hearing to determine the matter on 21 November 2024. Mr Abadear appeared at the hearing for himself, and Airservices Australia Legal Counsel Mr Ryan Gould appeared for the Respondent.
A large amount of material was filed by the parties prior to the hearing, particularly by Mr Adadear. Some of the material was repetitive or appeared to be related to Mr Abadear’s substantive application. I have read and considered all of the material filed by the parties even if not expressly referred to in these reasons for decision.
The approach to employment for a specified period of time.
Section 386 of the Act explains when a person has been “dismissed” including with respect to s 365 of the Act. In this matter, s 386(2)(a) is particularly relevant - it 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.”
A Full Bench of this Commission has set out how this provision of the Act should be approached, as follows[3]:
(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 82). 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).
Relatively recently, this approach to s 386(2)(a) was confirmed by another Full Bench, in Isaac Howard v Falls Creek Ski Lift Pty Ltd T/A Falls Creek Ski Lift Group[4].
Accordingly, the following questions arise for consideration:
(a) Has the employment relationship ended?
(b) Do the terms of Mr Abadear’s employment contract reflect a genuine agreement that the employment relationship will not continue after a specified date?
(c) If the terms of Mr Abadear’s employment contract reflect a genuine agreement that the employment relationship will not continue after a specified date, was that agreement vitiated by some other factor?
If the answers to the first two of these questions is “yes”, and the third, “no” then it follows that Mr Abadear was not “dismissed” for the purposes of s 386 of the Act, taking into account s 386(2)(a), and I must dismiss this application.
The possibility of another role for Mr Abadear.
Before dealing with these questions, it is first necessary to say something about several matters which arose leading up to the end of Mr Abadear’s employment.
Sometime before the end of Mr Abadear’s employment, it became clear that the SBASM project would not be completed before 11 October 2024. Mr Abadear’s Team Leader, Mr Telford, wanted him to continue after this date working on the project until April 2025. However, to continue on the project, Mr Abadear would only be utilised at 20 per cent. Mr Telford liaised with another program manager who agreed to support a request that Mr Abadear continue in employment by engaging the other 80 per cent of his time on another project. There was also a suggestion that this project manager would seek to engage Mr Abadear in another project beyond the likely end-point of this arrangement in April 2025. I will refer to this proposal, which was made by the relevant managers in about early October 2024, as the “continuation proposal”.
Mr Abadear was obviously positive about the continuation proposal. It meant he would not lose his job, could continue working with Airservices Australia after 11 October 2024, at least until April 2025 and possibly further into the future.
The person who would be required to give approval to the continuation proposal was Mr Glenn Williams, who is the Aerodrome Platform Head for Airservices Australia. Mr Williams gave evidence at the hearing. It was to Mr Williams that Mr Telford and the other program manager submitted the continuation proposal concerning Mr Abadear for his approval.
Mr Williams rejected the continuation proposal. This is explored in more detail below.
Has the employment relationship ended?
I consider the employment relationship between Mr Abadear and Airservices Australia to have ended. As mentioned above efforts to have his employment extended beyond the end date of his employment contract - 11 October 2024 - were unsuccessful. In his Form F8 Application Form, he describes this date as the one on which his dismissal took effect. I did not understand it to be contended that the employment relationship between Mr Abadear and Airservices Australia had not ended.
In coming to this conclusion, I have considered evidence that shortly before the end of his employment, Mr Abadear made a complaint to “Safe Places”. Safe Places is an independent area or department of Airservices Australia responsible for handing employee complaints. It may be that the complaint Mr Abadear made to Safe Places continued on foot after the apparent end of his employment contract on 11 October 2024, and may still be under investigation, although the evidence was not entirely clear on this point. In any event, I do not consider that, based on the evidence before me, Mr Abadear’s complaint to this department provides a basis to conclude that his employment relationship continued after the cessation date of his contract of employment.
The answer to the question as to whether the employment relationship between Mr Abadear and Airservices Australia has ended is “yes”.
Do the terms of Mr Abadear’s employment contract reflect a genuine agreement that the employment relationship will not continue after a specified date?
On first blush, the terms of Mr Abadear’s employment contract seem emphatic that the employment relationship is for a fixed term, and will not continue after 11 October 2024. It says:
“Your employment is for a fixed term. In accordance with the Agreement, you have been engaged to fulfil duties of SBASM Senior Engineering Specialist, which is a discrete project for a finite period, commencing on 11 April 2023 and ceasing on 11 October 2024. There is no prospect of ongoing employment in this role beyond the cessation date, nor any entitlement to permanent employment with Airservices after this time.”
The contract does not provide for some other means of termination before the cessation date, such as through an unqualified right on the party to terminate the contract at any time on notice.
The contract also says:
“You will be employed in the role of SBASM Senior Engineering Specialist on a full-time basis and may subsequently be employed in other roles as determined by Airservices. Your main duties and responsibilities are as discussed with you at the time of appointment. Airservices may vary these duties and responsibilities from time to time or assign you additional duties and responsibilities.
Unless otherwise agreed with you, the terms and conditions in this document will continue to apply to you in respect of any role that you hold.”
As I understand it, Mr Abadear’s interpretation of this part of his contract leads him to suggest, in effect, that it should be read as meaning that while there may not be a prospect of ongoing employment in the role connected to the SBASM project, there was a prospect of ongoing employment with Airservices Australia in “other roles”. Which leads him in turn to suggest that the contract is not evidence of a genuine agreement that the employment relationship will not continue after a specified date.
I cannot agree with this interpretation of the contract. The contract involves employment with Airservices Australia in a role called “SBASM Senior Engineering Specialist”. It says “there is no prospect of ongoing employment in this role beyond the cessation date …”. Even if the mention of “other roles” created a suggestion that such roles might be offered, there seems to be no obligation that this occur.
I suspect the interpretation of this contract contended for by Mr Abadear is affected by, to some extent, other matters which I deal with below, such as comments which were made to him upon the commencement of his employment, or his belief about how other employees may have been treated, or that he considers it simply unjust that an option to extend his employment was somewhat cursorily rejected. While these matters may be argued to have vitiated the contract (again, dealt with below) before those matters are considered, the terms of the contract itself must be construed. This contract, executed by both parties, is explicit that the “employment” (as defined) will not continue beyond the cessation date. It must be read as evidence of a genuine agreement on the part of the employer and employee that the employment relationship will not continue after 11 October 2024. Put another way, cessation of employment on this date is perhaps not what Mr Abadear hoped would happen, but it is what the contract said would happen.
In this regard, I note in particular the comments of the Full Bench in Navitas, that “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”, and the “decision not to offer further employment is separate and distinct from the earlier agreement that the employment will end the employment relationship on a particular date”[5].
The answer to this question is “yes”.
Was the contract vitiated by some other matter?
Having found that there was a genuine agreement that the employment relationship will not continue after a specified date, I now turn to the question alluded to by the Full Bench in Navitas as to whether the contract is vitiated by one of the recognised categories by which the law excuses parties from performance of a contract[6].
Verbal representations
Mr Abadear gave evidence that during his job interview with Mr Telford prior to the commencement of his employment, there was a discussion about the possibility of ongoing employment. Mr Abadear’s evidence was clear – that Mr Telford said (among other things) there were “no promises” about ongoing employment. However, Mr Abadear said Mr Telford said that if a project is not completed and is extended there is an “expectation” that a person’s role might be extended, or if a project is completed, there might be an engagement in other roles. Mr Williams confirmed in his evidence that he had no knowledge of this conversation.
I was urged by Airservices Australia not to credit this evidence because, among other things, it was said that Mr Abadear did not disclose it in his witness statement. I do not accept this submission. There is a reference to the conversation at paragraph [3] of Mr Abadear’s Statement, which he expanded upon in his oral evidence and repeated under cross examination. For whatever reason, Mr Telford was not called to contradict it. I accept that during his job interview, because of this conversation, Mr Abadear had hope that his employment with Airservices Australia might continue after the end of the cessation date stated in his contract of employment.
But crucially for Mr Abadear, and on his own evidence (which I accept) he was told – “there were no promises”, and his assignment to other roles after 11 October 2024 depended on matters such as “work requirements and funding approval”[7].
The comments made by Mr Telford during Mr Abadear’s job interview gave him no surety that his employment would be extended beyond what was described clearly in his contract as its cessation date, and, even if Mr Telford had sufficient authority, did not create a legal obligation that Airservices Australia continue the employment past this date. I do not consider the comments made by Mr Telford in Mr Abadear’s job interview were sufficient to provide a proper legal foundation to prevent Airservices Australia from relying on the clear terms of the contract of employment.
Misrepresentation
In his evidence, Mr Williams said he rejected the continuation proposal because it was his “usual practice”. He also said he had a “policy” of no extension of fixed term arrangements.
The use of the terms “policy”, and “practice” by Mr Williams was perhaps somewhat unfortunate, because it caused Mr Abadear to conclude that Mr Williams had a private and pre-conceived approach to any and all requests for the extension or re-employment of employees who had been engaged on fixed term contracts. Because Mr Abadear was convinced there was a prospect that his employment could continue, the idea that, all along, there was never a chance of that occurring, because of a private or secret “policy” Mr Williams had that Mr Abadear was not aware of, he considers himself to have been misled.
It was unclear as to when Mr Williams adopted his “policy” to refuse requests for the extension or re-employment of employees engaged on fixed term contracts, whether it is Airservices Australia’s policy, and whether there might have been any exceptions to such a policy. Mr Abadear is convinced that there have been occasions on which other employees engaged on a fixed term arrangement were continued in employment beyond their cessation date, and while there was some evidence given by Mr Williams to suggest this may have been so, there was very little detail about those occasions – when they occurred or the circumstances. Mr Williams gave evidence that advice he received internally about the commencement of reforms to the Act in relation to fixed term engagements from December 2023 was a factor – a significant factor – in his approach to such requests, such as the continuation proposal concerning Mr Abadear.
I consider it likely that at least from about the time at which the amendments to Part Division 5 of Part 2-9 of the Act of the Act took effect, Mr Williams and possibly Airservices Australia generally began to take a “hard line” to proposals that fixed term engagements be renewed or extended, which heavily informed Mr Williams decision not to approve the continuation proposal.
While Mr Abadear’s sense of injustice about all of this is palpable, I cannot find on the basis of this evidence that the genuine agreement I have found existed between Mr Abadear and Airservices Australia that the employment relationship would end on 11 October 2024 was vitiated because of a misrepresentation or misleading conduct engaged in by Airservices Australia or Mr Williams. Neither Mr Williams or Airservices Australia ever represented, in a manner certain enough for Mr Abadear to rely on, that a proposal for the extension or renewal of his employment would be approved. On Mr Abadear’s best evidence, there were “no promises”.
Any contention of misrepresentation lacks evidence of a representation that Mr Abadear could rely on, that his employment was going to continue beyond 11 October 2024.
The enterprise agreement
Mr Abadear’s employment was covered by the Airservices Australia Enterprise Agreement 2024-2026. I was not taken to any clause in this agreement that prohibits or regulates fixed term employment which would have the effect of overwhelming the cessation date stated in the contract.
Clause 16.14 of the agreement deals with fixed term employment. The effect of the clause is to provide that where an employee is engaged on a permanent basis at the conclusion of their fixed-term engagement, the employee’s fixed term employment will count as service. It also creates an obligation to permanently appoint an employee who is continuously employed for more than 24 months, including roll-over or consecutive engagements. The clause is not inconsistent with Mr Abadear’s employment contract, that it will cease on a particular date, or create an obligation to continue or renew his employment.
Mr Abadear sought to rely on clause 70 of the agreement. Clause 70 relates to career development and requires that employees’ managers once removed will meet with them annually to formally provide them with guidance and feedback on their capability, goals and aspirations for their future with Airservices. Mr Williams said in his evidence that clause 70 does not apply to fixed term employees. I was not taken to, nor could I find such an exception.
Mr Abadear appears to believe that Airservices Australia did not comply with this clause of the agreement in respect to his employment. For example, Mr Abadear appears to have taken issue with the fact that Mr Williams never met with him or had a discussion with him about his career development.
To the extent that Mr Abadear was in effect submitting that the effect of clause 70 of the agreement was to mean that Airservices Australia was somehow compelled to accept proposals like the continuation proposal, or otherwise provide Mr Abadear with continued employment past the cessation date in his contract, I do not accept this submission. That is not the effect of this clause.
Section 333E of the Act
Division 5 of Part 2-9 of the Act commenced operation from 6 December 2023. Section 333E of the Act provides that a person who enters into a contract of employment with an employee must not include a term in that contract that provides it will terminate at the end of an identified period in certain circumstances. In particular, any such term should not provide for termination at the end of an identifiable period of greater than 2 years, including with respect to renewable contracts if the sum of the identifiable period is greater than 2 years. It also purports to prohibit contracts which provide for termination at the end of an identifiable period which provide for an option or right to extend or renew the contract more than once. Section 333F contains various exceptions. Section 333G provides that a term in a contract of employment which offends the Division is taken to have no effect.
The contract entered into with Mr Abadear by Airservices Australia did contain a term that it would terminate at the end of an identified period, but that period was not more than 2 years.
Mr Abadear appeared to argue that the contract provided for an option or right to extend or renew the contract more than once (within the meaning of s 333E(3)(b)). He referred in particular to parts of his contract which provided as follows:
“You will be employed in the role of SBASM Senior Engineering Specialist on a full-time basis and may subsequently be employed in other roles as determined by Airservices …”
and
“Airservices may vary these duties and responsibilities from time to time or assign you additional duties and responsibilities …”
and
“Unless otherwise agreed with you, the terms and conditions in this document will continue to apply to you in respect of any role that you hold”.
Mr Abadear’s submission appears to rely on the contention that these parts of the contract had the effect of creating an option or right, perhaps in favour of Airservices Australia, to extend or renew the contract more than once. I do not agree with this interpretation of the contract. Undoubtedly, Airservices Australia could have chosen to ask Mr Abadear to stay in employment with it, take on a different role or extend his existing role. But it’s ability to do so does not arise from the contract. While the contract might envisage the employee being engaged in “other roles” it does not create any option, or right vesting in either party to extend or renew it more than once, or at all.
Was the contract vitiated such that the parties are excused from performance of the contract?
I have considered the question of whether Mr Abadear’s employment contract was vitiated by one of the recognised categories by which the law excuses parties from performance of a contract. The answer to this question is “no”.
Conclusion
Mr Abadear was engaged by Airservices Australia under a contract of employment for a specified period of time. His employment came to an end because the date stated in that contract as the end of the employment was reached. Mr Abadear was therefore not dismissed within the meaning of the Act. Airservices Australia’s jurisdictional objection is upheld.
The application is dismissed.
An order[8] to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances
Mr Fady Abadear, Applicant
Mr Ryan Gould, for the Respondent
Hearing details:
21 November 2024
Microsoft Teams
[1] General Protections dismissal Form F8 16 October 2024
[2] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152
[3] Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWFCB 5162 [75]
[4] [2023] FWCFB 154
[5] Navitas [75(4)]
[6] Navitas [75(5)(a)]
[7] Witness Statement Mr Fady Abadear [3]
[8] PR781635
Printed by authority of the Commonwealth Government Printer
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