Thomas Bonney v Monash University
[2023] FWC 469
•24 FEBRUARY 2023
| [2023] FWC 469 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Thomas Bonney
v
Monash University
(C2022/7762)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 24 FEBRUARY 2023 |
Application under s 365 – jurisdictional objection – expiry of contract in accordance with its terms – no dismissal – application dismissed.
The following is an edited version of a decision delivered ex tempore on transcript earlier today, to which I have added a brief introduction, as well as extracts from the relevant contract of employment, the legislation, and case law.
Mr Thomas Bonney (Applicant) made an application under s 365 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a general protections dispute involving an alleged dismissal. He contended that Monash University (Respondent) dismissed him in contravention of Part 3-1 of the FW Act. The Respondent denied this, and objected to the application on the basis that it did not dismiss the Applicant. It said that the employment ended on the expiry of the Applicant’s twelve-month contract.
Section 365 states that if a person has been dismissed, and the person alleges that the dismissal was in contravention of Part 3-1, he or she may apply to the Commission to ‘deal with the dispute’. Generally speaking, the Commission does not have a determinative function in relation to applications made under s 365. The Commission will typically deal with the dispute by conducting a conciliation conference. If it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the Commission will issue a certificate that allows the applicant to bring proceedings in a court (see s 368(3)). However, in a case where the respondent denies that it dismissed the applicant and objects to the application on this basis, the Commission is required to determine whether the applicant was dismissed (see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152).
The factual background to this application is as follows. The Applicant was employed by the Respondent from 18 November 2021 until 17 November 2022 as a buildings and grounds assistant as part of its indigenous traineeship program. The Applicant’s employment was subject to a contract dated 26 October 2021. Item 4 of Part 1 of the contract stated that the employment was on a fixed-term full time basis. Items 6 and 7 identified the commencement and expiry dates of the contract as 18 November 2021 and 17 November 2022. Clause 3 of Part 2 stated:
“3. Term
This Employment Contract commences on the Commencement Date set out in Part 1 and continues until the Expiry Date unless terminated earlier in accordance with the termination provisions in the Employment Contract (the Term).
If you are not offered further employment by the University, your employment will cease at the expiry of the Term. The University is under no obligation to offer, and there should be no expectation of, further employment after the expiry of the Term.”
During the Applicant’s employment, the Respondent received several complaints about his conduct. The allegations were put to the Applicant. On 2 November 2022, the Respondent advised the Applicant by letter that it considered the allegations to be substantiated. The letter stated that the Respondent had grounds to terminate the Applicant’s employment without notice, but that it would not do so, given that the fixed term of the employment would shortly expire. The letter further stated that in light of the Applicant’s conduct, the Respondent would not be renewing the employment when it ended on 17 November 2022.
The Respondent contended that the Commission had no power to deal with the application because at the time it was made, the Applicant did not meet the precondition specified in s 365. That section states that ‘if a person has been dismissed’, the person may apply to the Commission to deal with the dispute. The Respondent said that in the present case, the Applicant had not been dismissed. Instead, his employment had ended in accordance with the terms of his contract, which reflected the parties’ mutual agreement. The Applicant’s position, as I understood it, was that he had an expectation that the employment would continue beyond the 12 month period because the engagement was intended to provide ongoing or further opportunities, and that instead, the Respondent had decided not to renew his contract, thereby bringing the employment to an end.
Consideration
Section 386(1)(a) of the FW Act provides that a person has been ‘dismissed’ if the person’s employment has been terminated ‘on the employer’s initiative’. In Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 (Navitas), a Full Bench of the Commission considered whether an employee engaged on a time-limited contract was terminated ‘at the employer’s initiative’ within the meaning of s 386. Although s 386 is found in Part 3-2 of the FW Act, which concerns unfair dismissal, it is also relevant to dismissals in the context of general protections claims under Part 3-1 (see the definition of ‘dismissed’ in s 12). At [75] (point 4), the Full Bench majority stated:
“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 Applicant’s contract was limited to one year. There is no indication that this limitation did not reflect a genuine agreement. The employment ended on the expiry date specified in the contract. None of the vitiating or other factors referred to by the Full Bench majority in Navitas has been established. There is simply nothing in this case to suggest that the Applicant’s employment was terminated by the Respondent. The Applicant was clearly told that, although there were grounds to terminate his employment, the Respondent would not dismiss him, but instead allow his contract to end on its expiry date. The decision of the Respondent not to offer a further contract was not an act of dismissal. The employment did not end ‘on the employer’s initiative’. It ended precisely in the manner that the parties had agreed. If the Applicant had any expectation of continuing employment, it was misplaced. The contract explicitly stated that the Applicant should have no expectation of further employment after the expiry of the term.
The Applicant was not dismissed. He was therefore not able to make an application under s 365. The jurisdictional objection is upheld. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
T. Bonney for himself
M. Garozzo of counsel for the respondent
Hearing details:
2023
Melbourne
24 February
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