s.365 - General protections

Section 365 - fixed term role, but no fixed term employment - objection dismissed

• [1] This decision concerns an objection raised by West Gippsland Healthcare Group (respondent) to an application made under s 365 of the Fair Work Act 2009 (Act) by Anne Le Nepveu (applicant). The respondent contends that the applicant was not dismissed because her employment ended pursuant to a fixed term contract, and therefore by agreement. The applicant denies this and says that her employment was terminated on her employer's initiative.

• [2] The applicant commenced employment on 5 April 2021 as a registrar in the respondent's emergency department (ED) pursuant to a written contract which identified a 'cessation date' of 6 February 2022 (2021 contract). At the end of the 2021 contract, the applicant's employment continued, without a new written contract, first in the ED, and then from early November 2022 in the gynaecology department (GD). In or around December 2022, the applicant had a discussion with Dr Warwick Pill, the clinical lead of obstetrics in the GD. According to the respondent it was in this discussion that the relevant fixed term contract was agreed between the parties.

• [3] Dr Pill's evidence was that he offered the applicant employment in the department for the next medical year, this being the 12 month period from 4 February 2023 to 4 February 2024. He said that the medical year was a well-known concept, and that the applicant would have understood that she was being offered employment only for this period, and that she proceeded to work a roster that reflected it. Dr Pill said that he did not offer the applicant ongoing employment, nor did he ever offer registrars such employment due to the nature of their roles. He said that it was unlikely that the applicant could have thought that it was a certainty that her employment would be extended beyond the medical year, as staffing for each year depends on many circumstances, and no registrar has any certainty about ongoing employment.

• [4] The applicant's evidence was that she and Dr Pill discussed her roster in the GD and agreed that she would continue to work Mondays, Tuesdays and Thursdays until at least around late January or early February 2024. She said that they never agreed a specific date on which this arrangement would end, however she acknowledged that she understood the meaning of the 'medical year' and that the arrangement for her to work in the GD was for this period. The applicant said that she did not think that her employment with the respondent would end at the conclusion of this period, and that instead she would continue to work either in the GD or in another department. She said that registrar positions were regularly advertised, and she thought that the respondent would find another role for her in the hospital, as it had done before. The applicant further contended that her role in the GD was not that of a registrar, but that she was instead working as a qualified GP obstetrician, such that any practice concerning fixed term employment for registrars would not have applied to her. However, she accepted that her work in the GD was covering for a registrar who was absent on leave. I find that she was a registrar, but I accept, as did Dr Pill, that she undertook GP obstetric work on weekends.

• [5] I reject the respondent's contention that the applicant's employment ended pursuant to a fixed term contract. I find that the discussion between the applicant and Dr Pill established an oral contract whereby she would work as a registrar in the GD for the term of the following medical year. But that contract did not contain a term that the applicant's employment with the respondent would terminate at the end of that year. The respondent's argument was to the effect that the applicant must have known that, as a registrar, her employment would indeed end at this time. But the applicant denies having any such knowledge or understanding. I accept this. Her denial is credible for several reasons.

• [6] First, the applicant's own experience as a registrar of the respondent had been that, at the end of the 2021 contract, her employment continued beyond the specified cessation date. Secondly, her employment had been unregulated by any written or oral contract from February 2022 until around December 2022 when she had the discussion with Dr Pill. There was clearly some form of contract implied by fact, but on no view could this contract be said to have contained a term specifying a fixed term of employment. Thirdly, the applicant said in her evidence that she was aware of other registrars whose employment had continued beyond the end of a fixed-term contract of employment. This evidence was not contradicted. Fourthly, the applicant had worked in several areas, first in the ED, then in the GD, and latterly had undertaken some GP obstetrician work on weekends. A variety of work had been found for her over the course of her employment. The applicant said, credibly in my view, that she believed this would continue once the role in the GD concluded.

• [7] I accept that Dr Pill did not offer the applicant ongoing employment. But at the time of their discussion, she already had ongoing employment that had continued beyond the term of the 2021 contract. I accept that Dr Pill offered the applicant work in the GD for the medical year, but this did not mean that her employment with the respondent would terminate at the conclusion of that year. It meant that this role would finish at the end of the medical year. Dr Pill said that the applicant could have had no certainty that there would be any work for her after the end of the medical year. However, the relevant question is not whether it was certain that the applicant would have further work, but whether it was certain, in the sense of contractual certainty of terms, that the applicant's employment with the respondent would not continue at the end of the medical year. This was not certain. It was not agreed.

• [8] In a letter to the respondent dated 4 August 2023, the applicant's solicitors, in the course of addressing certain workplace complaints raised by the applicant at that time, stated that her contract of employment had been varied by Dr Pill in April 2023 when he told the applicant that she would continue working the same roster until January 2024. The applicant's solicitors went on to state that this had given rise to a 'fixed term or maximum term employment contract, concluding in January 2024'. It must be inferred that this letter was sent on the applicant's instructions. The applicant and her representative (who was not the author of the letter) contended that this statement in the letter of 4 August 2023 had simply been an error. Nevertheless, if the statement had been a factual one, affirming the existence of an agreed term that the applicant's employment would end on a certain date, it would be difficult for the applicant now to resile from it. In my view however, this passage is in the nature of a legal submission which the applicant, who is not a lawyer, could not be expected to have fully comprehended. The passage did not display an acknowledgement from the applicant that her employment would end on 4 February 2024. Another letter from the applicant's solicitors dated 31 August 2023 referred to a 'fixed term contract' concluding in January 2024. But a fixed term contract is perfectly capable of relating to a role rather than to a person's employment. That was the case here.

• [9] The fundamental point is that the evidence does not bear out the existence of any mutual intention that the employment would end on 4 February 2024. I readily accept that Dr Pill and Dr Clark believed that this would be the case. They were credible witnesses. In the event that this matter proceeds to a court, the fact that I have found these witnesses to be credible might give the applicant some pause in respect of her case theory (i.e. that she was dismissed for a prohibited reason), but it is of no relevance to the disposition of the jurisdictional objection. What Dr Pill and Dr Clark genuinely believed does not establish an agreed term that the applicant's employment would end at the conclusion of the medical year. No one told the applicant that it would do so. Nor was this circumstantially or contextually obvious, for the reasons mentioned earlier.

• [10] I further find that the applicant's employment with the respondent in fact continued beyond the end of the medical year. In November 2023, she commenced a period of leave. On 12 March 2024, while still on approved leave, she received a payslip for the period ending 10 March 2024, and noticed that the taxation was different. She asked the respondent why this was. On 18 March 2024, she was told that her employment had ended on 7 February 2024 because she had been engaged on a fixed term contract. She was given a copy of an unsigned fixed term letter of offer dated 7 February 2023. The applicant said, and I accept, that she had never seen the document before. The respondent said that its approval of the applicant's leave had been a mistake. That may be, but these facts are evidence of the subsistence of a contract of employment as of March 2024. The continuation of the employment beyond the putative fixed term of employment is another indication that no fixed term was in fact agreed. (It would also render unavailable an argument that there was a contract for a 'specified period' within the meaning of s 386(2)(a)).

• [11] I find that the applicant's employment terminated on the employer's initiative as a result of its decision to treat the employment as having ended by agreement of the parties when this was not the case. The applicant was therefore dismissed within the meaning of s 386(1)(a). The jurisdictional objection is dismissed. The application will be listed for conference.

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