Muria Roberts v TasTAFE - [2025] FWCFB 3

[2025] FWCFB 3

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Muria Roberts
v

TasTAFE

(C2024/7477)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT ROBERTS

SYDNEY, 8 JANUARY 2025

Appeal against decision [2024] FWC 2586 of Commissioner Lee made in Melbourne on 26 September 2024 – Application under s 365 of the Fair Work Act 2009 (Cth) alleging contravention of Part 3-1 in relation to dismissal – Jurisdictional objection on grounds that the appellant was not dismissed – Appellant employed under an initial 12 month fixed term contract as a Teacher Under Supervision – Contemplation of permanent appointment on completion of qualifications and satisfactory performance – Extension of appointment for further period – Qualifications not achieved within time – Appellant informed prior to expiry of contract period that employment would cease at end of term – Whether the appellant had been “dismissed” for the purposes of s 386 of the Act – Whether no dismissal by operation of s 386(2)(a) – Exception in s 386(2)(a) applies – No utility in considering remainder of the parties’ contentions – Permission to appeal refused.

Introduction

This appeal concerns whether an employee was “dismissed” for the purposes of the Fair Work Act 2009 (Cth) (the Act) in circumstances in which, on its face, the employment came to an end as a result of the expiry of a time-limited contract.

The issue arose in the following way. Ms Muria Roberts is a teacher. She commenced employment with TasTAFE on 6 March 2023. The letter of offer, which was dated 1 March 2023, described her initial appointment as for a “fixed term of up to 12 months”. The letter indicated that:

We are pleased to offer you (Employee) fixed-term employment with TasTAFE ABN 54 248 304 374 (TasTAFE).
Your initial appointment will be fixed term for up to 12 months as a Teacher Under Supervision. On successful completion of the Certificate IV in Training and Assessment qualification, and satisfactory performance in the role, approval will be sought for your conversion to permanency.

The schedule to the letter of appointment contained the following provision:

SCHEDULE
1(a) Commencement Date 6 March 2023
1(a) End Date 5 March 2024
For the avoidance of doubt, no notice is required to bring your employment to an end on this date.
You acknowledge and agree that nothing in this contract is to be construed as providing you with an entitlement to ongoing employment with TasTAFE.

By email dated 13 February 2024, Ms Roberts was advised that an extension had been approved to 3 May 2024. The email advised as follows:

Hi Robin and Muria, extensions to your contracts have been approved. This is the only extension that you can receive (new Fair Work laws).
Muria – until 3^rd May
Robin – until 17 May
You now have until those dates to complete your TAE. If you do not complete your TAE in that time frame your employment will be terminated (them’s the rules). Robeka is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCFB 3
Decision Date: 8 JANUARY 2025

CaseChat Overview and Summary

In the matter of an appeal under s 604 of the Fair Work Act 2009 (Cth) by Muria Roberts against a decision of Commissioner Lee [2024] FWC 2586, the Full Bench of the Fair Work Commission found that Ms Roberts had not been dismissed for the purposes of s 386 of the Act. The Full Bench concluded that the Full Court’s decision in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 (Alouani-Roby (Full Court)) applied to Ms Roberts’ case and meant that she was not dismissed for the purposes of the Act by operation of s 386(2)(a). Ms Roberts was employed under a contract for a specified period of time and her employment came to an end at the conclusion of the period. The appeal was dismissed and permission to appeal was refused.

The appeal concerned whether an employee was dismissed for the purposes of the Fair Work Act 2009 (Cth) in circumstances in which, on its face, the employment came to an end as a result of the expiry of a time-limited contract. Ms Muria Roberts was employed by TasTAFE as a Teacher Under Supervision under a fixed term contract. The contract was to run for 12 months, from 6 March 2023 to 5 March 2024, and could be extended by a further period of up to three months. Ms Roberts’ contract was extended to 3 May 2024. Ms Roberts did not complete the required qualification within the period of her employment. On 30 April 2024, TasTAFE sent an email to Ms Roberts stating that her employment would cease at the end of the contract period on 3 May 2024. Ms Roberts filed an application under s 365 of the Act for the Commission to deal with a general protections dispute involving dismissal. TasTAFE objected to the application on grounds that Ms Roberts had not been dismissed. The Commissioner dismissed Ms Roberts’ application. Ms Roberts sought permission to appeal, and to appeal, from the decision of the Commissioner.

The Full Bench considered whether Ms Roberts had been dismissed for the purposes of s 386(1)(a) of the Act. Ms Roberts contended that her employment was terminated on the employer’s initiative because TasTAFE had engaged in conduct that had the effect of preventing Ms Roberts from achieving the qualifications that would have permitted her conversion to permanency. TasTAFE submitted, however, that it had engaged in no such conduct and Ms Roberts’ employment came to an end by reason of the expiry of her contract and for no other reason. The Full Bench concluded that, even if Ms Roberts’ contentions were accepted, the reasoning of the Full Court in Alouani-Roby (Full Court) meant that Ms Roberts was not dismissed for the purposes of the Act. The Full Bench found that s 386(2)(a) applies to a contract of employment that records a designated end date at which the employment will terminate, even if the contract contains an unqualified right to terminate during its term. As Ms Roberts’ employment terminated at the end of the period, s 386(2)(a) applies and she was not “dismissed” for the purposes of the Act. There is no utility in granting permission to appeal to consider the remainder of Ms Roberts’ contentions. The appeal was dismissed and permission to appeal was refused.

Orders