DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Theo Kyriopoulos
v
RACV
(U2016/8261)

COMMISSIONER GREGORY

MELBOURNE, 5 DECEMBER 2016

Application for relief from unfair dismissal – jurisdictional objection - dismissal at the end of a specified period of time, specified task or season.

Introduction

[1] Mr Theo Kyriopoulos was initially employed by the RACV in February 2013 and worked on a part-time basis as a Surveillance and Incident Response Officer. In November 2013 he took on a full-time role and remained in this position until his employment ended on 24 June 2016. He then lodged this unfair dismissal claim.

[2] The RACV responded by raising a jurisdictional objection to the application on the basis that Mr Kyriopoulos was not “dismissed” within the meaning of section 386(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) because he was employed under a contract for a specified period of time. This decision deals with that jurisdictional objection.

[3] Ms Alice Alexander from Lander and Rogers was granted leave to appear on behalf of Mr Kyriopoulos under s.596(2)(a) as the matter involved a degree of complexity and her involvement might enable it to be dealt with more effectively. Mr Paul Harris and Mr Renato Marasco appeared for the RACV.

The Issue to be Determined

[4] Section 386 of the Act relevantly provides:

“386 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

…

(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

…

(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.”

[5] The Commission is accordingly required to determine whether Mr Kyriopoulos was a person employed under a contract of employment for a specified period of time and, if so, did his employment end at the conclusion of that period or, conversely, was he dismissed at an earlier point in time at the initiative of his employer.

The Submissions and Evidence

[6] The RACV submits that Mr Kyriopoulos was not dismissed on its initiative, but his employment instead came to an end at the completion of his “outer limits” contract of employment on 30 June 2016. In this context it relies on s.386(2)(a) of the Act. It also refers to the following extracts from the Explanatory Memorandum that accompanied the Fair Work Bill 2008.

“1531 Sub clause 386(2) sets out…

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: [2016] FWC 8717
Decision Date: 5 DECEMBER 2016

CaseChat Overview and Summary

Theo Kyriopoulos filed an application for relief from unfair dismissal against the RACV. Kyriopoulos, an employee of RACV, claimed that his dismissal was unfair, despite it occurring at the end of a specified period of time. The court had to determine whether this dismissal was indeed unfair and if the tribunal had the jurisdiction to hear the case.

The primary legal issue before the court was whether the dismissal was unfair, and if the Fair Work Commission (FWC) had the jurisdiction to hear the application. The FWC had previously dismissed the application, asserting that it lacked jurisdiction because the dismissal was pursuant to s 106 of the Fair Work Act 2009 (Cth). This section provides an exception to unfair dismissal provisions when an employee is dismissed at the end of a specified period of time.

The court examined whether the dismissal fell under the exception outlined in s 106 of the Act. It noted that the dismissal was not simply at the end of a specified period of time, but rather at the conclusion of a specified task or season. This distinction was crucial as it changed the applicability of the jurisdictional exception. The court held that since the dismissal was at the end of a specified task or season, the exception did not apply, and the FWC had jurisdiction to hear the case. Consequently, the court allowed the appeal and remitted the matter back to the FWC for further consideration.

Orders