Nicole Morath v Adani Mining Pty Ltd T/A Adani

[2021] FWC 990

[2021] FWC 990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nicole Morath
v
Adani Mining Pty Ltd T/A Adani
(C2020/7748)

COMMISSIONER HAMPTON ADELAIDE, 4 MARCH 2021

General protections application to deal with alleged contraventions involving dismissal – jurisdictional objection – no dismissal within the meaning of the Act – outer-limits contract – contract represents the genuine agreement of the parties to conclude the employment relationship at its end date – no dismissal at the initiative of the employer – application cannot proceed – application dismissed.

1. What this decision is about

[1] Ms Nicole Morath has made an application under s.365 of the Fair Work Act 2009 (Act) seeking to advance a general protections application involving an alleged dismissal. Ms Morath worked with Adani Mining Pty Ltd (Adani), the Respondent in this matter, as a Document Controller between 4 September 2017 and 1 November 2020.

[2] The s.365 application requires, amongst other matters, that there be a dismissal within the meaning of the Act.

[3] Adani contends that the employment concluded on 1 November 2020 because of the effluxion of time and the operation of a “maximum term” (outer-limits) contract. This it further contends, is not a dismissal for present purposes.

[4] Ms Morath contends on a number of grounds that there was a dismissal. These grounds include that Adani had treated her as a “permanent employee” by affording parental leave and access to an incentive bonus scheme, she had a reasonable expectation of returning to work with a minimum of six months contract renewal and was willing and ready to return to work and demonstrated this by initiating contact with Adani in September 2020 to discuss this process.

[5] Given the nature of the objection and the Commission’s present role, I have not dealt with the substance of the s.365 application or the merit or otherwise of the decision by Adani not to offer further work to Ms Morath.

[6] I have conducted a hearing to deal with the dispute about the existence of a dismissal and both parties provided sworn written and oral evidence and supporting submissions.

[7] I have ultimately determined that Ms Morath was not dismissed within the meaning of the Act. I have found that the employment contract and relationship came to an end by operation of the genuine agreement between the parties and Ms Morath was not terminated by Adani. The reasons for my conclusion are set out below and the consequences of this finding are confirmed at the end of this decision.

2. What is a dismissal and why is it important to the application?

[8] 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.

[9] The Commission’s role with respect to an application of this kind under s.368 of the Act includes to:

•  Conduct a conference for the purposes of dealing with the dispute (other than by arbitration) – s.368(1) and (2); and

•  If satisfied that all reasonable steps to resolve the dispute (other than by arbitration) have been, or are likely to be unsuccessful – issue a (certificate) confirming this – s.368(3).

[10] A s.368(3) certificate is necessary for this application to proceed to the Court for determination 1 or the Commission for consent arbitration.2

[11] A Full Court of the Federal Court 3 has determined that in a s.365 matter, the Commission must (where the respondent employer has raised an objection of the nature present here) decide whether the jurisdiction exists for it to conduct a conference and issue a certificate as contemplated by s.368 of the Act. That is, in this case, I need to determine whether Ms Morath has been dismissed.

[12] The meaning of ‘dismissed’ is provided at s.386 of the Act:

“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.”

[13] Section 386 is found in Part 3-2 Unfair Dismissal of the Act. “Dismissed” for the purposes of the Act more generally is defined in s.12 by reference to s.386 and the provisions of s.386 have been applied by the Courts 4 to s.365 General Protections matters. I have followed that approach.

[14] Adani relies upon the proposition that it did not dismiss Ms Morath within the meaning of s.386(1) of the Act. Adani also relies upon the “exclusion” in s.386(2)(a); namely that Ms Morath was employed under a contract of employment for a specified period of time (a fixed-term contract) and the employment has terminated at the end of the period.

[15] For reasons that I will come to, there is a difference for present purposes between an “outer-limits contract” – where the contract specifies a fixed period with an outer limit, but permits earlier termination on notice without cause, and a contract for a specified period of time (“fixed-term contract”) that also has a definite end date but does not permit early termination other than for serious breaches such as misconduct.

[16] In submissions, Adani referred to Ms Morath’s employment as a “maximum term” contract and sometimes as a fixed-term contract. As will become clear, the contract with Ms Morath was an outer limits contract and not a fixed-term contract as described above.

[17] Ms Morath, who was representing herself, did not expressly rely upon, or have a position about, whether s.386(3) of the Act should operate in this case to mean that the exclusion in s.386(2)(a) was not available to Adani. That is, how this provision should be applied and whether any fixed-term contract that may have been involved was designed to avoid the employer’s obligations relevant to this matter. I make absolutely no criticism of Ms Morath on that count and as a matter of abundant caution and to provide natural justice, I put Adani on notice about this aspect and questioned it about the basis for its contract with Ms Morath.

[18] I will return to the application of these provisions and concepts in light of the propositions advanced by the parties and the circumstances as I have found them to be.

3. The propositions advanced by the parties

3.1 Adani

[19] Adani’s primary contention is that Ms Morath’s employment was not 'dismissed' but came to an end at a specified time (being 1 November 2020) by the passage of time. As a result, there has been no termination of employment at the initiative of the Respondent.

[20] The basis for the proposition is as follows:

•  Ms Morath was employed as a Document Controller pursuant to a maximum term employment contract dated 22 August 2017 (Contract).

•  As outlined in the Contract, the term of employment commenced on 4 September 2017 and was originally due to come to end on 31 March 2020, unless terminated earlier in accordance with its terms.

•  On 21 November 2019, the Respondent implemented a paid parental scheme, the terms of which were set out in clause 5.3.2 of the Employee Handbook. Ms Morath did not qualify for the paid leave due to the end date of her maximum term contract.

•  In late 2019, a representative of Adani had discussions with Ms Morath about the timing of her maternity leave and the paid parental scheme. The representative explained the eligibility criteria to Ms Morath including that she “did not comply”.

•  As an act of good faith, and mindful of the timing of the introduction of a paid parental leave scheme in the Respondent's business, representatives of Adani decided to offer Ms Morath an extension of her maximum term contract to 1 November 2020. The extension was designed to enable Ms Morath to access paid parental leave before her employment came to an end, albeit she did not meet the eligibility criteria for paid parental leave.

•  There was nothing unlawful about what Adani did. Indeed, it was an act of good faith over and above Ms Morath’s strict legal entitlements.

•  Nothing the Respondent did altered the status of the Applicant's employment.

•  Ms Morath subsequently took parental leave in the period 23 March 2020 to 23 October 2020, of which the first four months were paid by the Respondent. Ms Morath was due to return to work on 26 October 2020.

•  On 23 September 2020, representatives of Adani met with Ms Morath and advised her that, consistent with the Contract, her employment would come to an end on 1 November 2020. Ms Morath was also advised that she was not required to return to work. This was done so as to give the Applicant as much time as possible to look for alternative employment. This was also confirmed in writing.

•  Accordingly, any suggestion that the extension of the expiry date of the outer-limit contract altered the status of the Applicant’s employment is misconceived. Adani made clear in correspondence to Ms Morath that there were no other changes to the terms of the Applicant’s employment. At all times, representatives of Adani communicated the extension to the expiry of the outer-limit contract in accordance with that correspondence. Similarly, it is misconceived to assert that the mere enjoyment of paid parental leave was an indicator of permanency given the circumstances in which paid parental leave was extended to the Applicant.

•  In addition, Ms Morath participated in short-term incentive arrangements in accordance with express terms of the outer-limit contract. This was not an indicator of permanency.

•  Ms Morath’s employment came to an end on 1 November 2020 by the passage of time.

[21] Ms Wells, Lead of Human Resources and Industrial Relations for Bravus Mining and Resources Pty Ltd, 5 gave sworn evidence6 in support of the facts relied upon in Adani’s case.

[22] In terms of the operation of s.386 of the Act, Adani contends:

•  In Khayam v Navitas English Pty Ltd, 7 (Navitas), the Full Bench of the Commission clarified the position in Department of Justice v Lunn,8 (Lunn) explaining that when determining whether termination had occurred at the employer’s initiative, consideration should be given to the employment relationship in addition to the employment contract operative immediately before the cessation of employment. There is nothing unusual or novel about the above. It does not mean that an outer-limit contract, if properly characterised as such, involves termination at the initiative of the employer when it comes to an end. Navitas simply clarifies that the totality of the circumstances need to be considered when considering how a contract came to an end.

•  The parties did not enter into a series of outer-limit contracts. Rather, they entered into an initial outer-limit contract and Ms Morath was afforded one extension to enable her to access paid parental leave before her employment came to an end, albeit she did not meet the eligibility criteria for paid parental leave.

•  In the absence of any vitiating or other factors along the lines of those referred to in Navitas, which would affect the analysis of how the employment relationship might end, the employment relationship terminated by the passage of time.

[23] In summary, Adani contends that there has been no termination of employment at the initiative of the employer such as to give the Commission jurisdiction in this matter.

3.2 Ms Morath

[24] Ms Morath’s fundamental contention is that she was dismissed within the meaning of the Act and that the application is properly made and before the Commission. The basis of that approach is as follows:

•  Ms Morath was employed by Adani with an initial employment contract signed on 22nd August 2017 and commencing on 4th September 2017. This contract was subsequently extended on 31st December 2019 to ensure she would receive Parental Leave.

•  As stated in clause 5.3.2 of the Employee Handbook, and as noted by the Respondent, the additional qualifying criteria for Parental Leave is that the employee must have at least six months engagement after the conclusion of the paid parental leave period. This indicates a reasonable expectation that the contract would be extended for a minimum of six months at the conclusion of Parental Leave, and failure to renew by the Respondent amounts to termination of employment.

•  Adani’s own actions, by affording the paid parental leave, an entitlement only for permanent employees or employees with more than six months left on their contract, gave Ms Morath a further reasonable expectation of returning to work at the conclusion of the Parental Leave period.

•  Adani has awarded previous contract extensions (and a change to part-time under another contract) and short-term incentive bonuses, indicating that the employment relationship was permanent. The basis of this employment relationship indicates that Adani has indeed dismissed Ms Morath and the application is not misconceived.

•  The employment did not come to an end on 1st November 2020 “by passage of time”. Ms Morath was willing and ready to return to work and demonstrated this by initiating contact with the Respondent in September 2020 to discuss this process.

•  Representatives of Adani indicated in the meeting of 23rd September 2020 that the role of Document Controller no longer existed, however the role has since been awarded to the person filling in for the Applicant while on Parental Leave. This indicates a breach of s.340 of the Act and that the employment with Adani has been terminated on the employer’s initiative. 9

[25] Ms Morath gave sworn evidence 10 in support of the facts relied upon in her case.

[26] In terms of the operation of s.386 of the Act in this case, Ms Morath contends:

•  The decision in Navitas found that when assessing whether a termination was at the initiative of the employer, the totality of the employment relationship, not merely the terms of the contract that operated immediately prior to the cessation of employment has to be considered.

•  Adani afforded a workplace right (Parental Leave), and this has implied that Ms Morath had reasonable expectation of contract extension or permanency in her role, and at the very least should have been afforded the right to return to work.

[27] In summary, Ms Morath contends that there is jurisdiction for this case under the General Protections provisions of the Act.

4. The facts based upon the evidence before the Commission

[28] There is little dispute on the facts between the parties. These is some tension between the evidence of Ms Morath and Ms Wells about the detail of a discussion on 23 September 2020 about the precise reasons stated for the decision not to offer a further contract. I accept that both are witnesses of truth and the difference is one of perspective and recall. I find that the Adani representatives mentioned that changes in requirements do occur and this was stated in connection with a broader explanation as why maximum term contracts, such as that applying to Ms Morath, were utilised. Ms Morath, perhaps reasonably, understood that this was a direct reference as to why she was not being offered ongoing work. However, I find on balance that this was not stated in that manner by the Adani representatives.

[29] The broader context and events leading to the conclusion of the employment were as follows.

[30] In relation to the area of work in which Ms Morath was engaged, Adani is heavily involved in construction project work. This includes the construction of a mine and railroad, which are due to be completed later this year. The requirements for particular roles change from time to time and Adani has sought to have the majority of employees associated with this work on what it describes as “maximum term” contracts. This is the basis upon which Ms Morath was recruited and employed.

[31] It is not necessary for present purposes that I form a view about the substantial purposes behind the use of maximum term contracts by Adani more generally. To the extent that it is required, it is the motivations behind Ms Morath’s contract that may be relevant. In that respect, based upon the evidence before the Commission, I do not consider that a substantial purpose for adopting an outer-limits contract in respect of Ms Morath was an attempt by Adani to avoid relevant unfair dismissal or general protections obligations. Given the context in which it operated, and the motivation to extend Ms Morath’s contract for the specific purpose of enabling access to paid parental leave (in circumstances where an entitlement under its policies did not exist and the leave could not otherwise have operated in practice), I am strongly disposed to the opposite view. I will return to this aspect shortly.

[32] Ms Morath was employed as a Document Controller under a written employment contract dated 22 August 2017 11 (original contract). The employment commenced on 4 September 2017 and the term of the original contract stated that the maximum term expiry date was 31 March 2020. The original contract also provided that:

“TERM

7 If your employment is for a maximum term:

…

(b) The Company does not warrant or represent that your employment will be continued beyond the Expiry Date;

… …

PROBATIONARY PERIOD

8 Your employment may be subject to a Probationary Period, the length of which is set out in the Term Schedule.

9 During the Probationary Period, your performance will be formally reviewed and the Company will assess your suitability for the position. The Probationary Period may be extended at the discretion of the Company and you will be notified where an extension is implemented.

10 During the Probationary Period, either party may elect to terminate the employment relationship with receipt of one (1) weeks written notice.

11 The Probationary Period does not limit the operation of the minimum employment period under the Fair Work Act 2009 (Cth).

… …

COMPANY POLICES

34 The Company has policies and procedures that operate independently of this Contract of Employment and which are available and accessible on the Intranet.

… …

TERMINATION

Notice Period

44 Notwithstanding the provisions of Summary Termination below, either party may terminate the employment relationship by providing in writing the notice as set out in the Term Schedule.

45 The Company may, at its sole discretion and in accordance with the terms of this Contract of Employment, elect to terminate the employment relationship and not require you to carry out your duties or attend the Company's premises and in this event the Company will pay you in lieu of notice.

Suspension

46 The Company at its discretion may suspend your employment while investigating any matter that the Company believes may constitute gross misconduct and may result in disciplinary action up to and including termination of employment.

Summary Termination.

47 The Company may terminate your employment without notice if you:

(a) Engage in any act or omission constituting serious misconduct in respect of your duties;

(b) Wilfully fail or wilfully neglect to perform or carry out your powers, functions or duties in accordance with this Contract of Employment;

(c) Perform your powers, functions or duties in a manner that is not honest or is not impartial;

(d) Commit a serious or persistent breach or non-observance of any of the provisions of this Contract of Employment or the Company's policies or procedures;

(e) Engage in conduct that adversely affects, or could adversely affect, directly or indirectly, the honest and impartial performance of functions or exercise of powers of the Company;

(f) Engage in insider trading or misuse information, property including intellectual property or material acquired in or in connection with your duties, whether the misuse is for your benefit or the benefit of someone else;

(g) Engage in any conduct, whether at work or outside of work, which is likely to injure the reputation or standing of any member of the Group; or

(h) Refuse or neglect to comply with any lawful and reasonable order given to you by the Company or any other person duly authorised by the Company.

48 For the purposes of this Clause, serious misconduct includes but is not limited to:

(a) Abandonment of employment

(b) Intoxication whilst performing your duties;

(c) The taking of drugs where those drugs may impair the proper and safe performance of your duties;

(d) Work related theft. fraud, wilful dishonesty or assault;

(e) Misrepresentation of your qualifications or employment history; or

(f) Conviction of a serious criminal offence which substantially affects your ability or suitability to perform your duties.”

[33] Ms Morath had access to what was described as short-term incentive bonuses. This is referenced in the original contract 12 and were made generally available to all employees on outer-limits (maximum term) contracts.

[34] At some point, Ms Morath worked on a part-time basis and this was facilitated by signing a part-time version of the original contract. However, there were no changes to the term nature of the contract.

[35] At some point during 2019, Ms Morath advised Adani that she was pregnant.

[36] On 21 November 2019, Adani implemented a paid parental scheme. Under the terms of the scheme 13 an employee must have at least twelve months continuous service with the Respondent to qualify for paid parental leave. Further, if an employee is engaged on a maximum term contract, the additional qualifying criteria is that the employee must have at least six months engagement after the conclusion of the paid parental leave period.

[37] In late 2019, a representative of Adani had discussions with Ms Morath about the timing of her maternity leave and the paid parental leave scheme. The representative explained the eligibility criteria to Ms Morath and confirmed, in effect, that she was not entitled to paid leave according to its terms. However, in the context of a request for access to paid leave, Adani subsequently offered to extend the original contract to enable Ms Morath to access paid parental leave before her employment came to an end.

[38] On 31 December 2019, Adani wrote to Ms Morath in the following terms:

“…

I refer to your contract of maximum term employment dated 18 August 2017.

Your current contract is due to expire on 31 March 2020, but as discussed with you, I am pleased to advise that this Agreement has been extended to 1 November 2020. As discussed with you this will now allow you to take paid maternity leave as requested and of course give you a longer timeframe in which to make arrangements. Please note that there are no other changes to your terms of employment.

Congratulations on your extension and thank you for your contributions to the Carmichael Project. Please address any questions you may have to Rebecca Wells. Project Lead, HR & IR.

…” 14

[39] I observe that the contract extension meant, in effect, that Ms Morath could in practice take the paid Parental Leave whilst employed, but the eligibility criteria, in terms of post-leave employment, would not be met. The extension also meant that Ms Morath was given “a longer timeframe in which to make arrangements.”

[40] Ms Morath took parental leave in the period 23 March 2020 to 23 October 2020. The first four months were paid by Adani consistent with the Parental Leave policy. The balance was a combination of government funded parental leave and unpaid parental leave. Ms Morath was due to return to work on 26 October 2020.

[41] The evidence 15 before the Commission is that from March 2020, when Ms Morath commenced her leave, there was a “backfill” employee in the Document Controller position until July. At that time, the backfill employee moved to another separate role and Ms Morath’s position remained vacant whilst management considered what they wanted to do with the position.

[42] In July 2020, Ms Morath advised Adani that she intended to return to work as scheduled and in mid-September 2020 contacted Adani Human Resources to discuss this.

[43] On 23 September 2020, Ms Wells and Mr Daniel Augustin, Project Control Manager of Bravus and the Applicant’s direct line manager, met with Ms Morath. The Respondent advised, in effect, that consistent with the employment contract, Ms Morath’s employment would come to an end on 1 November 2020; however she was not required to return to work. Ms Wells confirmed that Ms Morath would be paid her usual salary up until her last day and that this was being done so as to give her as much time as possible to look for alternative work. Mr Augustine explained to Ms Morath that the needs of the project were ever changing and that this is one of the reasons why it engaged employees on maximum term contracts. Mr Augustine thanked Ms Morath for all of her efforts and offered Employee Assistance counselling and any other support that Adani could give.

[44] This conversation was subsequently confirmed in writing to Ms Morath by way of a letter dated 24 September 2020:

“…

Thank you for meeting today with me and Dan Augustin.

Your maximum term contract dated 4 September 2017 was extended by correspondence dated 31 December 2019. This extension also ensured that you were able to partake in the paid maternity leave entitlement that we introduced late last year.

As we discussed, the project demands are ever moving and over the past 6 months we have seen a change in the requirements of the role that you hold. As such we will not be extending your maximum term engagement and it will end on the completion day of 1 November 2020.

This letter confirms that we do not require you to work out the remaining days of your contract and we will pay to you your salary up until the last day. This will give you as much time as possible to look for alternative employment.

You are currently receiving the government parental leave pay scheme of $754 per week until 30 September and as such we will top up this amount to your normal weekly salary ($2,413 plus super) and continue this till 1 November 2020.

We appreciate this was a difficult conversation and please utilise our Employee Assistance service if you think it will be of help to you -1800 818728. I wish you well for your future endeavours and thank you for your contribution to the Carmichael Project.

… 16”

[45] In effect, Ms Morath remained on (partially and later fully) paid leave until the expiry of the contract term, being 1 November 2020.

[46] For completeness I note that on 12 October 2020, Ms Morath was contacted by a former line manager who was apparently unaware that Ms Morath had ceased work with Adani. Ms Morath was also subsequently informed that her role apparently continued. No doubt that this has informed Ms Morath’s view about the merit of her substantive claim. However, given the indirect (hearsay) nature of that evidence, I am not in a position to make any findings about the present status of the Document Controller position and this is not presently relevant to the immediate issue before the Commission.

5. Was Ms Morath dismissed?

[47] It is appropriate to commence this discussion with the operation of s.386(1) of the Act.

[48] The Full Bench in Navitas comprehensively considered the operation of this provision. The majority, after considering the import of previous decisions, the various statutory contexts and the impact of the inclusion of casual employees within the scope of the unfair dismissal jurisdiction, confirmed that:

“[72] However it should be made clear that the mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end not later than a specified date will not by itself constitute a termination at the initiative of the employer. …..”

[49] In relation to the operation of s.386(1) of the Act the majority 17 in Navitas summarised the approach in the following terms:

“[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 jurisdiction82). 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).” (footnotes omitted)

[50] Before dealing with the application of this approach to the present matter, it is convenient that I deal initially with Adani’s reliance upon the “exclusion” in s.386(2)(a) of the Act for specified (fixed) term contracts.

[51] Relying upon an analysis of previous decisions, the majority in Navitas concluded 18 that a time-limited contract of employment that provided for an unqualified right for either party to terminate the contract on notice, was not a contract for a specified period and s.386(2)(a) did not apply.19 This is the form of contract entered into by the parties here,20 and as a result, applying the majority view I find that the “exclusion” in s.386(2)(a) is not available to Adani in this matter.

[52] I observe that given my findings, and the fact that s.386(2)(a) is not engaged, the curb provided in s.386(3) of the Act is also not relevant here. That is, I do not consider that the contract for Ms Morath was undertaken with a substantial purpose of avoidance (however applied). 21 Further; and in any event, the contract was not a contract for a specified period within the meaning of s.386(2)(a) of the Act and that is the circumstance to which that curb applies.

[53] This then leaves the original consideration as to whether the conclusion of Ms Morath’s employment was, in all of the circumstances, a dismissal within the meaning of s.386(1) of the Act.

[54] The employment contract was in my view a genuine outer-limits (or time limited) contract. It had a clearly specified term, and the conduct of the parties was consistent with that representing an actual end date.

[55] The contract was extended for a specific purpose. That is, to enable the provision of the paid parental leave to Ms Morath and to provide her with additional time to make other arrangements. This extension did not change or undermine the fixed-term nature of the employment commitments. This aspect was expressly confirmed by Adani to Ms Morath as part of that extension, as was its purpose.

[56] The extended contract continued to have a clear and operative cessation date and, in my view, represented the genuine mutual understanding of the parties.

[57] I accept that Ms Morath may have had a subjective hope that her employment would continue for at least 6 months after her return from parental leave. However, there was no objective basis for this expectation, and it was not a mutual expectation or supported by any express or implied commitments made by Adani.

[58] I also do not consider that any guarantees of further employment were expressed or implied by Adani. This includes the fact that the Parental Leave policy contemplates that a “maximum term” contract employee must have at least 6 months of employment at the conclusion of the leave. In this case, Adani expressly overlooked that requirement to provide the paid leave and I do not consider that granting the leave in those circumstances created an obligation or mutual expectation that a further contract would be provided.

[59] The fact that the incentive scheme was extended to Ms Morath, and others on “maximum term” contracts, does not mean that the employment was ongoing. This is merely a benefit made available by Adani to a wider group of employees than may operate in some other workplaces; but does not by implication, or express statement, speak to the nature of the employment contract or relationship between these parties.

[60] The decision by Adani in late September 2020 to provide Ms Morath with further paid leave until the expiry of the agreed term was also consistent with the fixed-term nature of that contract.

[61] In Navitas, 22 the Full Bench also outlined a non-exhaustive series of limits or factors that might vitiate (invalidate) the effect of a time-limited contract. I do not consider that any of these factors, or conduct that might have that result, are present in this matter.

[62] In this case, the contract as operating at the time of the conclusion of the employment was a legitimate and operative time-limited contract which reflected a genuine agreement on the part of the employer and employee that the employment relationship would not continue after a specified date. The employment relationship came to an end on the specified date and was terminated by reason of the agreement between the parties. Further, in these circumstances, the decision by Adani not to offer any further contract of employment is not relevant to the question of whether there was a termination of employment at the initiative of the employer. 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. This is completely consistent with the first of the time-limited contract scenarios outlined in Navitas. 23 As a result, this was not a termination at the initiative of the employer.

6. Conclusions and consequences

[63] Given my findings, Ms Morath has not been dismissed within the meaning of the Act. As a result, there is no jurisdiction for the Commission to compel Adani to attend a conference or to issue the certificate as contemplated by s.368(3) of the Act.

[64] The absence of the s.368(3) certificate means that this application cannot proceed to the Court 24 or the Commission for consent arbitration.25 As a result, this application cannot proceed at all.

[65] Accordingly, this application must be dismissed by the Commission and an Order 26 is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

N Morath, the Applicant on her own behalf.

R Wells with T Watson, on behalf of Adani Mining Pty Ltd T/A Adani.

Hearing details:

2021

February 25

By Video Hearing.

Printed by authority of the Commonwealth Government Printer

<PR727237>

 1   Section 370(a) of the Act.

 2   Section 369(1)(a) of the Act.

 3   Coles Supply Chain v Milford (2020) 300 IR 146 at [67] to [68].

 4   Coles Supply Chain v Milford (2020) 300 IR 146; Fair Work Ombudsman v Austrend International (2018) 273 IR 439. See also the discussion in Morris v Allied Express Transport [2016] FCCA 1589 at [116] and [117].

 5   Bravus Mining and Resources is a coal miming business within the Adani Group of Companies.

 6   In addition to a witness statement – exhibit R1.

 7   [2017] FWCFB 5162.

 8   [2006] AIRC 756.

 9   Ms Morath accepted that this submission went to the substantive application and not to the immediate jurisdictional issue. For reason outlined earlier, I have not dealt with the substantive merit of this application in this Decision.

 10   In addition to a witness statement – exhibit A1.

 11   Attachment RW1 to exhibit R1.

 12   Clauses 20 to 22 – attachment RW1 to exhibit R1.

 13   Clause 5.3.2 of the Employee Handbook – attachment RW2 to exhibit R1.

 14   Contract Extension – attachment RW3 to exhibit R1.

 15   Oral evidence of Ms Wells.

 16   Maximum Term Contract letter – attachment RW4 to exhibit R1.

 17   Although reaching a different conclusion on the disposition of the appeal, Colman DP took a similar approach to the operation of s.386(1) – see paras [120] to [122] and [128] to [129].

 18   At [77] to [96].

 19   Coleman DP took a different view about the operation of s.386(2)(a) of the Act – see pars [143] to [147].

 20   The Contract provided in clause 49 for a broad right for the parties to give notice of termination (in addition to summary/misconduct termination rights).

 21   See the discussion in Khayam v Navitas English Pty Ltd T/A Navitas English[2017] FWCFB 4092 – concerning whether permission to appeal should be granted – at [41] and [42].

 22   Para [75] (5).

 23   Para [75] (4).

 24   Section 370(a) of the Act.

 25   Section 369(1)(a) of the Act.

 26   PR727511.