Natalie Dean v Woodford Agricultural, Pastoral & Industrial Assn. Inc
[2024] FWC 1977
•26 JULY 2024
| [2024] FWC 1977 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Natalie Dean
v
Woodford Agricultural, Pastoral & Industrial Assn. Inc
(C2024/2146)
| COMMISSIONER SCHNEIDER | PERTH, 26 JULY 2024 |
Application to deal with contraventions involving dismissal
Natalie Dean (the Applicant) has made an application pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving her alleged dismissal by Woodford Agricultural, Pastoral & Industrial Assn. Inc (the Respondent).
The Respondent has raised a jurisdictional objection to the application being that the Applicant was not dismissed.
The Commission must determine if the Applicant was dismissed before the matter may proceed.
The jurisdictional objection was listed for a Hearing on 17 June 2024.
Legislation
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at section 386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his 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 his remuneration or duties; and
(ii) he or he 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.”
This decision deals only with the jurisdictional objection to be determined.
Submissions and Evidence - Respondent
The Respondent submits that the Applicant was not dismissed for the purposes of section 365 of the Act.
The Respondent submits the Applicant was not dismissed as she was terminated at the end of the fixed term and paid the contract entitlement.
The Respondent provided a copy of the contract which stated the following “Probationary Contract Between Woodford Show Society & Caretaker – February 2024 to 13th April 2024 to be reviewed”. The Applicant signed the contract as a Caretaker.
The Respondent submits it did not employ the Applicant on a recurring fixed-term basis. The Respondent submitted that this was the first relationship the Applicant and the Respondent had with one another.
The Respondent submitted it did not use the contract on a recurring basis to enable the fixed-term contract ending to be an excuse for avoiding a dismissal claim or general protections claim.
The Respondent submits that on 24 March 2024 it formed the view that based on complaints from customers and general dissatisfaction with the Applicant’s performance that her contract would not be renewed.
On 24 March 2024 the Respondent provided notice to the Applicant that her contract would not be renewed, and that she would no longer be required to perform her duties effective immediately.
The Respondent submits that it paid the Applicant her notice period to the end of her contract being 13 April 2024.
Accordingly, the Respondent submits that as the Applicant was not dismissed, the application made by the Applicant has not been made in accordance with the Act and should therefore be dismissed on jurisdictional grounds.
Submissions and Evidence - Applicant
The Applicant’s submissions focussed heavily on the merits of her application. As this decision deals only with the jurisdictional objection raised by the Respondent, the submissions focussed on the merits of the matter will not be outlined in detail.
The Applicant disagrees with the Respondent that the engagement was for a fixed term contract. The Applicant submits that the engagement was for an initial period of three months, however would be permanent for 12 months or longer after that.
The Applicant submitted that she would never have left her previous place of residence had she known it was only a three-month contract, as the Applicant was under the belief that after the initial three-month probation, she would receive a 12 or 24 month contract.
The Applicant submitted that on the day of signing the contract things were busy and she was not aware that she was signing a contract for a fixed duration.
Consideration
Central to the consideration in this case is the operation of section 386(1) of the Act. The word dismissed is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act.
Section 386(1) of the Act reads:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
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 his remuneration or duties; and
(ii) he or he 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.”
The Applicant is clearly aggrieved at the termination of her employment by the Respondent, which is entirely reasonable given the current rental and housing crisis facing many Australians.
The contract that was signed by the Applicant clearly stated that the contract was for a fixed period that would end on 13 April 2024. I accept that although the Applicant and representatives of the Respondent would have discussed the idea of a longer-term arrangement at the Applicant’s interview, the contract in place between the parties was that of a fixed term contract that would end effective 13 April 2024.
This is not a situation whereby the Respondent had sought to have the Applicant engaged on multiple fixed term contracts to avoid its obligations under s386 of the Act, rather this was the first engagement between the parties and from the submission provided it was an engagement that neither party were satisfied with the other party.
From the submissions of the parties, the Respondent provided the Applicant with a contract for a fixed period until 13 April 2024. The contract stated that it was a probationary contract. The Respondent then formed the view on 24 March 2024, that it would not renew the contract for a further period. This is consistent with the probationary nature of the contract.
As I have highlighted, the Applicant is aggrieved at the decision the Respondent made, however the Applicant signed a fixed term contract that was due to end on the 13 April 2024. Therefore, having considered the submissions and evidence of the parties, I find that the Applicant was not dismissed for the purposes of section 386 of the Act.
The Applicant in her submissions raised allegations of alleged unpayments by the Respondent during her engagement. These allegations were outside the scope of this application and this decision does not factor in these allegations. The Applicant may seek to dispute these allegations further in another jurisdiction.
Conclusion
Not being satisfied that the Applicant has been dismissed for the purposes of section 386 of the Act, I have no alternative but to dismiss the application for want of jurisdiction.
The application is dismissed and an Order reflecting this will be issued in due course. [1]
COMMISSIONER
Appearances:
Ms Dean, on her own behalf.
Mr Rule, with permission, for the Respondent
Hearing details:
2024.
Perth (by Video)
17 June.
[1] PR777536.
Printed by authority of the Commonwealth Government Printer
<PR777535>
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