Ms Rosemary White v Sydney College of English Pty Ltd

[2010] FWA 7644

[2010] FWA 7644

FAIR WORK AUSTRALIA

DECISION

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

Ms Rosemary White
v
Sydney College of English Pty Ltd
(U2010/10875)

COMMISSIONER THATCHER SYDNEY, 30 SEPTEMBER 2010

Jurisdiction - specified period of time.

[1] Rosemary White has made application to Fair Work Australia (FWA) for an unfair dismissal remedy on the grounds that the termination of her employment by the Sydney College of English Pty Ltd (the College) was harsh, unjust or unreasonable.

[2] The College has lodged a jurisdictional objection on the basis that Ms White was employed under a contract of employment for a specified period of time.

[3] Section 386 (Meaning of Dismissed) of the Fair Work Act 2009 relevantly prescribes:

“(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; ....

(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 ... and the employment has terminated at the end of that period ...”

[4] When considering whether an employee has been engaged under a contract of employment for a specified period of time it is necessary to examine the nature of the tenure of the employment provided in the contract. If the termination provisions therein are such that the contract is actually indeterminate and the cessation date merely recorded the outer limit of a period beyond which the contract of employment would not run, it is not a contract of employment for a specified period of time within the meaning of the legislation. 1

[5] Ms White was employed under a contract of employment for a specified term (not to be confused with a specified period of time) for the period 12 July 2009 to 11 July 2010. 2

[6] The contract of employment included:

“9. TERMINATION

Except on grounds of dismissal, either party shall provide (one) month notice for termination irrespective of the reason.”

[7] Clause 9 prevents Ms White’s contract being a contract for a specified period of time within the terms of s.386.

[8] Therefore the jurisdictional objection on the basis that Ms White was employed under a contract of employment for a specified period of time is dismissed and I order accordingly.

[9] Nevertheless it may be of significance that Ms White may have been employed by way of a series of specified term contracts commencing from 16 June 2005 and her employment was terminated at the end of her latest contract of employment, namely 11 July 2010.

[10] Consequently, given that each party was not represented and there was an obvious difference between them as to whether the College could terminate Ms White’s employment at the end of her latest contract of employment, I referred the parties to various decisions for their consideration.

[11] In relation to whether Ms White may have been employed by way of a series of contracts, I referred the parties to the decision of D'Lima v Board of Management, Princess Margaret Hospital for Children. 3 This decision related to a practice of entering into a series of fixed term contracts as a matter of mere administrative convenience such that there was, in effect, a continuous employment relationship. I indicated that, depending on the evidence that case may or may not be relevant to whether a termination of employment at the end of a specified term contract is or is not a termination on the employer’s initiative.

[12] In relation to Ms White’s employment being terminated at the end of her latest contract of employment, I referred the parties to a decision of the High Court in Victoria v Commonwealth (1996) 4 which held that when a contract of employment for a specified term exists, an employer does not terminate the employee's employment when his or her term of employment expires. Instead, the employment comes to an end by agreement and by the effluxion of time5 and there is no termination on the employer’s initiative. This approach has been affirmed by the then Industrial Relations Court of Australia in Fisher v Edith Cowan University,6 by a Full Bench of the Australian Industrial Relations Commission in Qantas Airways Limited v Fetz & Ors7and a Full Bench of FWA in Dr Mark Lea Drummond v Canberra Institute of Technology.8

[13] The file will be referred to the Unfair Dismissal Rosters unit for processing of the arbitration of the merits of the application and the initial matters to be considered (s.396).

COMMISSIONER

 1   Cooper v Darwin Rugby League Inc (1994) 57 IR 238 and Andersen v Umbakumba Community Council (1994) 126 ALR 121.

 2   Exhibit A1.

 3 (1995-1996) 64 IR 19.

 4 186 CLR 416.

 5   Or by the operation of a statute or an award.

 6 (1996) 70 IR 206.

 7   Q1482, 9 June 1998, per Giudice P, Harrison SDP and Lawson C.

 8   [2010] FWAFB 5455, 6 August 2010, per Drake SDP, Cartwright SDP and Roberts C.

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