What happened

Brendon Jeffs commenced employment with Urapuntja Aboriginal Corporation as a building supervisor on or about 20 December 2019 under a written employment contract signed 24 December 2019. The contract included multiple probation clauses, one and another indicating a six month probation and another clause referring to three months; the Commission found the contract had some internal inconsistency but was properly construed as providing an initial six month probationary period (see [16]–[18], [30]).

After the initial six months the employer assessed performance and extended the probationary period by a further three months (making nine months in total). Around 23–24 September 2020 the CEO told Mr Jeffs that his extended probation had not been successful and that his employment would not continue beyond the extended probationary period. On 25 September 2020 the CEO provided a written letter stating that the CEO had decided that, after the extension, Mr Jeffs was unsuitable and that his employment would be terminated, that his employment would officially end on 25 September 2020, and that he could remain in employer housing until 9 October 2020 to get his affairs in order (see [19]–[22]).

Mr Jeffs lodged a general protections application on 14 October 2020 alleging adverse action in the form of dismissal. The Corporation raised a jurisdictional objection: the claim failed at the threshold because Mr Jeffs had not been 'dismissed' within the meaning of the Fair Work Act 2009 (FW Act) (see [1]–[4], [24]). The Commission heard the jurisdictional issue and concluded that Mr Jeffs was employed for a specified probationary period which was lawfully terminated at the end of that period; accordingly, under s 386(2)(a) he had not been 'dismissed' and the Commission lacked jurisdiction under s 365 to proceed with the general protections dismissal claim. The application was dismissed (see [26]–[37]).

Why the court decided this way

The decision turns on statutory definitions and a jurisdictional threshold. Section 365 permits an application to the Fair Work Commission (FWC) to deal with a dismissal dispute only where "a person has been dismissed" (see [26]). The statutory definition of "dismissed" is in s 386(1): a person has been dismissed if the person's employment has been terminated on the employer's initiative, or the person resigned but was forced to do so because of employer conduct (see [27]). Critically, s 386(2)(a) creates an exclusion: a person has not been dismissed if they were employed under a contract "for a specified period of time" and the employment terminated at the end of that period (see [28]).

Deputy President Anderson applied those statutory provisions to the facts. He construed the written contract and the parties' conduct to find the initial six month probation (notwithstanding the inconsistent three month clause) and that the employer validly extended probation by three months. The CEO's oral and then written communications at the end of the extended probation were held to bring the employment to an end at the conclusion of the specified probationary term; the Commission treated that as termination of a specified period rather than a dismissal for s 365 purposes (see [30]–[35]).

Finally, the Commission checked s 386(3), which prevents misuse of specified terms where they are a device to avoid statutory obligations. The Commission was satisfied the probationary term was genuinely for assessing suitability and not a sham designed to avoid obligations under the FW Act (see [36]). Because the jurisdictional prerequisite did not exist, the Commission could not exercise the remedial powers under s 368 and the application was dismissed (see [37]).

The Court also relied on a precedent from the Full Federal Court, Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, which emphasises the Commission must determine the fact of dismissal as a jurisdictional question before proceeding under s 368; the decision applied that principle in resolving the threshold question here (see [4]).

Before and after state of the law

Before this decision the statutory framework was already that the Fair Work Commission has jurisdiction to deal with dismissal disputes only if a dismissal has occurred, and that the definitions in ss 365 and 386 control whether that jurisdictional threshold is met. The Full Court decision in Coles Supply Chain v Milford (cited at [4]) had recently emphasised that the Commission must determine the fact of dismissal as a jurisdictional fact before exercising s 368 powers.

This decision applies those statutory principles and the procedural requirement articulated in Milford to a common factual scenario: termination at the end of an express probationary term which had been extended by agreement. The Commission confirms that where the contract and the parties' conduct show employment was for a specified probationary period, termination at the end of that period falls within s 386(2)(a) and is not a 'dismissal' for s 365 jurisdictional purposes (see [29]–[35]).

After this decision, the practical consequence for practitioners is a reaffirmation that claims framed as dismissal under the general protections provisions require close attention to the contract terms and the parties' conduct in relation to probationary terms. The Commission will treat termination at the end of a specified contract or probationary term as outside its dismissal jurisdiction unless there is evidence that the specified-term arrangement was a sham aimed at avoiding statutory protections (s 386(3)).

Key passages with plain-English translation

Paragraph [26] (statutory trigger): "If: (a) a person has been dismissed; ... the person may apply to the FWC ..." Translation: You can only bring a dismissal-based general protections claim to the Commission if you were actually dismissed.
Paragraph [27] (definition of 'dismissed'): "A person has been dismissed if ... terminated on the employer's initiative, or ... forced to resign ..." Translation: 'Dismissal' covers employer-initiated terminations and 'constructive' resignations caused by employer conduct.
Paragraph [28] (exclusion for specified-term employment): "However, a person has not been dismissed if ... employed under a contract ... for a specified period ... and the employment has terminated at the end of the period." Translation: If you were hired for a fixed term or specified time and your job naturally ended when that period expired, that is not a 'dismissal' for the purposes of filing a dismissal-based general protections claim.
Paragraph [30]–[33] (construction and application): The Commission finds that notwithstanding the word "permanent" on the contract, the repeated probation clauses and the employer's conduct (extension and termination at the end of probation) mean the engagement was for a specified probationary period and ended at the end of that period. Translation: What matters is how the contract actually reads and how the parties behaved; those facts can show a specified-term employment even if the contract elsewhere says 'permanent'.
Paragraph [36] (s 386(3) check): The probation was for a genuine purpose (assessing suitability) and not a device to avoid the Act. Translation: The Commission will not allow employers to hide behind sham contracts; if the specified term was honestly for testing suitability, the exclusion applies.
Paragraph [37] (disposition): Because the applicant had not been 'dismissed', the Commission had no power to proceed, and the application was dismissed. Translation: The case ends at the jurisdictional threshold; no merits consideration occurs.

What fact patterns trigger this precedent

This decision is triggered where:

A written employment contract contains an express probationary period or otherwise specifies a fixed term for employment (here the contract twice referred to a six month probation and also contained a clause allowing termination during or at the end of probation by one week's notice) (see [18], [30], [31]).
The employer and employee act consistently with the contract terms, including the employer assessing performance, extending a probationary term by agreement, communicating the non-renewal at the end of that specified period, and allowing a short notice/exit period (see [19]–[22], [31]–[33]).
There is no evidence that the specified term was a pretext or sham designed to avoid the protections of the Fair Work Act (see [36]).

If those factual predicates are present, the Commission will likely treat the termination as the end of a specified period and not a 'dismissal' for s 365 purposes.

How later courts have treated it

This decision itself refers to a Full Federal Court authority, Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152, as establishing that the Commission must determine the fact of dismissal as a jurisdictional fact before exercising s 368 powers (see [4]). Beyond that internal reference, the decision does not record or analyse subsequent treatment by later courts. The practical effect within Commission practice is to apply Milford's jurisdictional approach and to treat s 386(2)(a) as excluding specified-term terminations, unless s 386(3) provides a basis to treat the specified-term as a sham (see [4], [26]–[36]).

Still-open questions

Interplay of "permanent" language with express probation clauses: While the Commission resolved the internal inconsistency in favour of treating the repeated probation clauses as determinative (see [30]), situations with clearer or more complex drafting might raise closer questions on construction and which contractual statements control.
The evidentiary threshold for s 386(3): The Commission concluded the probation was genuine on the evidence (see [36]). How much and what kind of evidence an employee must produce to overturn a specified-term characterisation where an employer asserts a genuine probationary purpose is an open factual inquiry and will depend on case-specific material.
The treatment of oral assurances or representations by other managers: The Commission emphasised the CEO's decision and authority under the contract (see [34]). Where front-line managers give differing representations about continuation of employment, the weight to be given to such representations, and whether they can create a dismissal, will be fact-sensitive.
Interaction with constructive dismissal claims where an employee remains engaged in employer housing or is given transitional arrangements: in this case the Commission treated the exit arrangements as consistent with termination of the specified period (see [21]–[22], [33]). Different or harsher exit behaviours could change the characterisation.
Procedural consequences: The decision underscores the importance for applicants and practitioners to identify whether the dismissal jurisdictional fact exists before pursuing remedies under s 368; following Coles/Milford and this decision, early focus on contract terms and the s 386 exclusions is critical (see [4], [26]–[28], [37]).

This deep dive is an explanatory analysis of the Commission's reasoning in Brendon Jeffs v Urapuntja Aboriginal Corporation [2020] FWC 6722, grounded in the text of the decision. It is general legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis or any draft document, get a qualified Australian lawyer to check it.

Judgment (37 paragraphs)

[1]

Brendon Jeffs v Urapuntja Aboriginal Corporation [2020] FWC 6722 (16 December 2020)

[2]

Fair Work Act 2009

[3]

Section 365 - Application to deal with contraventions involving dismissal

[4]

Application to deal with contraventions involving dismissal - jurisdictional issue - whether dismissed - probationary period - termination at end of specified period - no dismissal - application dismissed

[5]

[1] On 14 October 2020 Brendon Jeffs made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (FW Act) alleging contraventions of the FW Act associated with his alleged dismissal.

[2] The Urapuntja Aboriginal Corporation (the Respondent, the Employer or the Corporation) opposes the application. It filed a response on 16 October 2020 raising a jurisdictional issue.

[3] The jurisdictional issue is that Mr Jeffs was not dismissed from his employment.

[4] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the FW Act before the Commission can exercise powers conferred by section 368. It is thus necessary to determine the jurisdictional issue for Mr Jeffs's application to proceed further.

[5] I issued directions on 16 November 2020.

[6] I heard the jurisdictional matter by telephone on 10 December 2020.

[7] Both parties were self-represented.

[6]

[8] I heard evidence from Mr Jeffs and from the Corporation's CEO Mr Michael Gravener.

[9] Both Mr Jeffs and the Corporation brought into evidence the same two documents - Mr Jeff's contract of employment dated 24 December 2019, and a letter from the Corporation to Mr Jeffs dated 25 September 2020.

[10] Neither party took issue with the accuracy of this documentary evidence.

[11] However, there were differences between the evidence of Mr Jeffs and Mr Gravener as to certain matters. In particular, Mr Jeffs says that the first he was told that his employment would cease was when on 25 September 2020 that day Mr Gravener gave him the letter of that date. In contrast, Mr Gravener's evidence was that a meeting between he and Mr Jeffs was held a day or two earlier in which he (Mr Gravener) told Mr Jeffs that his employment would not be continuing beyond his probationary period, and the reasons why. Mr Gravener's evidence was that a second meeting on 25 September 2020 was held to formally communicate those details and hand over the letter.

[12] To the extent relevant, I prefer the evidence of Mr Gravener for three reasons:

[7]

his recall that there were two meetings was clearer and more plausible than that of Mr Jeffs;

[8]

the letter of 25 September 2020 commences with the words "This is to officially advise...". Whilst not conclusive, the use of the word "officially" is consistent with the oral evidence that an earlier discussion had been held. The letter goes on to claim that the terms of leaving had been "agreed". This also supports the oral evidence that an earlier discussion had been held; and

[9]

Mr Jeffs stated in his application that he was told by Mr Gravener that there were eighteen reasons given, four of which were discussed. The letter does not list reasons. A discussion of reasons is more consistent with a discussion having occurred prior to official notification (as claimed by Mr Gravener) than a discussion at the time of official notification.

[10]

[13] I now set out further findings of fact.

[14] The Urapuntja Aboriginal Corporation provides services to indigenous people from the Alyawarra and Anmatjirra land in the Northern Territory (north-east of Alice Springs) and is the peak body representing the interests of people living in the Utopia area on the Angarapa Aboriginal Land Trust.

[15] In December 2019 the Employer agreed to employ Mr Jeffs as a building supervisor, with a probationary period.

[16] Mr Jeffs commenced on or about 20 December 2019.

[17] A formal contract giving effect to the agreement was signed by the Corporation and Mr Jeffs on 24 December 2019 (the Employment Contract).

[18] The Employment Contract relevantly provides as follows:

[11]

"Position Type: Permanent - Ongoing from 20/12/2019

[12]

We are pleased to offer you employment with the Urapuntja Aboriginal Corporation, (UAC) (the Board). The details of this offer are described below.

[13]

A probation period of 6 months applies. The purpose of the probationary period is to allow the Board and yourself to assess your suitability for the position. While on probation your employment is temporary and may be terminated without compensation at any time during, or at the end, of your probationary period either by you or the Board giving one week's notice or payment in lieu of notice, or termination without notice, or payment in lieu of notice for misconduct.

[14]

Your employment will be on a probationary basis for 3 months following your commencement. The purpose of the probationary period is to allow the Board and yourself to assess your suitability for the position. During this time your performance will be assessed on at least 2 occasions. Prior to the end of your probationary period your performance will be assessed again to determine if your probation will be extended; or if your employment will be continued according to this contract; or terminated. On a decision being reached on each occasion by the Board you will be advised in writing what the decision is.

[15]

While on probation your employment is temporary and may be terminated without compensation at any time during, or at the end, of your probationary period wither (sic) by you or the Board giving one week's notice or payment in lieu of notice, or termination without notice, or payment in lieu of notice for misconduct.

[16]

Your contract of employment may be terminated before its expiry date as follows:

[17]

The CEO or you may terminate this contract during or at the end of the probationary period described in Clause 5 of this contract by giving one week's notice."

[18]

[19] After a period of six month's employment, the Employer assessed Mr Jeffs's employment and extended the probationary period by a further three months.

[20] On or around 23 or 24 September 2020 Mr Gravener met with Mr Jeffs. He told Mr Jeffs that his suitability had been further assessed and was not considered suitable to continue beyond the extended probationary period. He told Mr Jeffs some of the reasons why the Employer had formed this view. He told Mr Jeffs that his employment would cease on 25 September 2020 but that Mr Jeffs could continue to reside in an Employer provided residence for a short time (a further two weeks). Nothing was exchanged in writing that day.

[21] On 25 September 2020 Mr Gravener again met Mr Jeffs and provided Mr Jeffs a letter as follows:

[19]

This is to officially advise you that on behalf of the Board I have decided that after extending you probation for a further 3 months from your initial probation period that you are unsuitable for the position as Supervisor.

[20]

Your performance was assessed on 2 occasions and I determined that your employment would be terminated. I agreed with you that you would continue your official employment until the 25th of September 2020. We also agreed that you could reside in the Employer's housing for a further two weeks while you got your affairs in order to leave. You will be required to vacate the property on the 9th October no later than 12 PM.

[21]

I will be inspecting the property prior to your leaving and will determine any costs incurred as a result of deliberate damage caused. You will be made responsible for those costs and any repairs that may have to be done to the property.

[22]

Thank you very much for all the work and effort you have given us during the past nine months. We wish you well in the future.

[23]

[22] Mr Jeffs remained until 9 October 2020 and was paid casually in this notice period.

[23] Mr Jeffs filed his general protections application on 14 October 2020 claiming adverse action in the form of dismissal in connection with a workplace right.

[24]

[24] The Corporation says there was no dismissal; that Mr Jeff's employment ceased at the conclusion of a probationary period, which had been once extended by three months from its original term of 6 months.

[25] Mr Jeffs says that he believed that his immediate manager was satisfied with his work and that he was dismissed when the Corporation's Chief Executive Officer (CEO) terminated his employment.

[25]

[26] Section 365 of the FW Act provides:

[26]

"365 Application for the FWC to deal with a dismissal dispute

[27]

(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;

[28]

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

[29]

[27] Section 365 requires a dismissal to have occurred as a jurisdictional fact. "Dismissal" for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:

[30]

(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."

[28] However, section 386(2) provides circumstances in which a person is said not to have been dismissed. Section 386(2)(a) is relevant for current purposes. It provides:

[31]

(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; ..."

[29] For the following reasons, I conclude that Mr Jeffs was employed for a specified period of time and that his employment was terminated at the end of that period.

[30] Firstly, whilst the Employment Contract provided for "permanent" employment, this was subject to a probationary period. By including two probationary clauses in the contract in different terms (one three months and one six months) the Employer created grounds for contractual confusion. Nonetheless, the contract is sufficiently clear. Twice (on the first page and again in clause 5) the probationary period is expressed as 6 months. A proper construction of the contract is that Mr Jeffs was employed on an initial period of six months' probation.

[31] Secondly, the manner in which the Employment Contract was given effect to is consistent with an initial term of six months' probation. It was at the end of the first six months' that the Employer told Mr Jeffs that his probation was being extended by a further three months in order to allow further assessment of his suitability. The extension of the probationary period was consistent with the terms of the Employment Contract, and in particular clause 8.

[32] Thirdly, the Employer informed Mr Jeffs both orally on 23 or 24 September 2020 and then in writing on 25 September 2020 at the end of the (once extended) probationary period (that is, nine months after commencing) that his employment beyond the (extended) probationary period would not be continuing, save a period to organise his affairs and leave the residence. The letter of 25 September 2020 makes this abundantly clear.

[33] The specified period for which Mr Jeffs was employed was terminated by the Corporation at the end of that period and after a period of notice was worked out, his employment ceased.

[34] It matters not that Mr Jeffs believed that his immediate manager may or may not have considered him to be a suitable employee. I heard no evidence on the merit of that claim. What the evidence clearly establishes is that it was the CEO Mr Gravener who made the decision and communicated the decision to Mr Jeffs. Both under the terms of the Employment Contract, and generally at law, the CEO (who signed the Employment Contract on behalf of the Corporation) had the lawful authority to terminate the contract at the end of the probationary period (clause 13(g)).

[32]

[37] As Mr Jeffs had not been "dismissed" a jurisdictional pre-requisite required for a general protections application under section 365 of the FW Act does not exist. The Commission is thus unable to further proceed with the application or exercise any powers conferred by section 368.

[38] That being so, the application is dismissed. An order[2] giving effect to this decision is issued in conjunction with its publication.

[33]

[34]

M. Gravener, for Urapuntja Aboriginal Corporation

[35]

[1] [2020] FCAFC 152

[36]

[2] PR725404

[37]

Printed by authority of the Commonwealth Government Printer

Brendon Jeffs v Urapuntja Aboriginal Corporation [2020] FWC 6722

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Cited legislation

Deep Dive