s 365 - General protections

Application to deal with contraventions involving dismissal - whether dismissal

[1] The issue in these proceedings, pursuant to the Applicant's application under s 365 of the Fair Work Act 2009 (Cth) ('Act'), was whether the Commission had jurisdiction to deal with contraventions involving dismissal. By an Order of the Commission dated 27 November 2025 ('Confidentiality Order'), the Applicant cannot be publicly named and will be subsequently referred to as 'The Applicant'. The Applicant was employed by a tertiary institution that will be subsequently referred to as 'University' or 'Respondent'.

[2] The Applicant claimed to have commenced employment with the Respondent on 23 October 2023 and to have been dismissed by the Respondent on 25 September 2025.

[3] On 17 October 2025, the Respondent filed a Form F8A - Response to a general protections application involving dismissal raising a jurisdictional objection to the Applicant's application. The Respondent alleged that the Applicant was not dismissed within the meaning of s 386 of the Act because she was not dismissed.

[4] On 3 November 2025, my chambers issued directions to the parties ('The Directions'). The Directions were issued to program the manner in which the Application was to proceed to hearing. In response to the Directions each party filed materials; however, the Confidentiality Order did not permit the identification of individual deponents of statements.

[5] On 27 February 2025, the University issued the Applicant with an offer of employment, that was subsequently accepted by the Applicant ('Contract'). The Applicant was previously employed by the Respondent having signed and executed contracts of employment on 28 June 2021, 19 April 2022, 7 July 2023, 3 August 2023, and 9 December 2024. The Contract was to cover the remaining portion of the Applicant's two year research term. That offer included the following individual terms:

6 AUGUST 2025 (OR AS OTHERWISE AGREED BETWEEN YOU AND THE UNIVERSITY IN WRITING)

Your employment is for a period from the Commencement Date and end on 25 September 2025.

Your employment will end on the expiry of the Term. If required by the Enterprise Agreement, the University will provide notice of the termination of your employment before the expiry of the Term ...

• you have no expectation of ongoing employment with the University beyond the Term of this contract; and

• unless your employment terminated earlier in accordance with this Contract, it is intended your employment will end on the expiry of the Term of this Contract and any decision to offer you further employment is separate and distinct from this Contract.

[6] Part of clause 13 'General' of the Contract states 'this Contract can only be varied by written agreement between you and the University. Only the Chief Human Resources Officer (or their nominee) is authorised to agree on behalf of the University'.

[7] In May 2025, the Applicant requested that the Contract be varied to part time (0.5 FTE) with an end date of 25 January 2026. On 20 May 2025, the Applicant request that change by preparing and issuing a signed HR09 (Academic) Change of Hours form ('CoH Form'). The CoH Form was signed by a Director (Division) or Equivalent Financial Delegate Signature_'_ who I will refer to as 'Ms EE'. There was no variation to the Contract's end date, albeit, the Change of Hours Form recorded a proposed end date of 25 January 2026.

[8] On 21 August 2025, the Respondent wrote to the Applicant by email as follows (with appropriate redactions):

As you are aware, you are currently employed with [the Respondent] on a Fixed Term Contract.

The terms and conditions of your current fixed term employment contract with [the Respondent] are due to cease on 25 September 2025.

In line with the [The Respondent's Enterprise Agreement], we want to ensure you are provided with appropriate notice of this upcoming date.

If we receive notification from your supervisor to extend your engagement, then a new contract will be issued to you.

If we do not receive notification from your supervisor to offer you further employment, we advise you that your employment with (the Respondent) will end on 25 September 2025.

[9] On 28 August 2025, the Applicant received a letter from a superior, whom I shall refer to as 'Professor P' titled 'Referral of misconduct allegations and suspension on pay' ('Suspension Letter'). The Suspension letter stated that the Respondent had decided to suspend the Applicant from work on full pay for the duration of the misconduct process.

[10] On 31 August 2025, the Applicant lodged a formal internal complaint in relation to the Suspension Letter.

[11] On 11 September 2025, on behalf of the Respondent, Professor P issued a letter to the Applicant seeking their response to six allegations implicating the Applicant ('Allegations Letter'). The Applicant was to provide a response to the Allegations Letter 'by no later than 4:00 pm on 25 September 2025'.

[12] On 21 September 2025, the Applicant provided a detailed written response to the Allegations letter.

[13] On 24 September 2025, the Applicant received a 'Without Prejudice' Deed of Release offering 17 weeks pay, which the Applicant claimed covered the period from 26 September 2025 to 25 January 2026, being the exact period of her requested contract extension.

[14] On 29 September 2025, Professor P on behalf of the Respondent wrote a letter to the Applicant referring to the Allegations Letter, and the Applicant's response dated 21 September 2025. That letter went on to advise (with appropriate redactions):

However, I am aware that your employment with (the Respondent) ceased on 25 September 2025 due to the conclusion of your fixed term contract. If you had remained a (Respondent) employee, given the seriousness of the allegations, I consider that it would be appropriate for the matter to be referred to a Misconduct Investigation completed as per clause 28 of the Agreement. As you are no longer an employee of (the Respondent) this course of action cannot occur, and therefore this misconduct process will cease.

[15] The Applicant submitted the Respondent's reliance on the strict contractual end date, that being the 25 September 2025, was a pretext and an act of active severance, directly constituting a dismissal.

• [16] The Applicant relied on Francis v Volunteer Marine Rescue Assoc Qld Inc ('Francis')[1] and submitted the Respondent took active steps to sever the relationship by:

(a) Initiating a misconduct process and imposing a suspension on full pay; and

(b) Enforcing the disputed end date while the Applicant was suspended, after the Applicant filed a formal internal complaint on 31 August 2025.

[17] The Applicant submitted the financial concession of the "Without Prejudice" Deed of Release offering a payout of 17 weeks' pay, which precisely covered the disputed contract extension period (26 September 2025 to 25 January 2026), proves the Respondent acknowledged a financial liability that directly contradicted its legal claim of a genuine expiry date.

[18] The Applicant further submitted the Respondent's management of the misconduct process was fundamentally inconsistent with its claim of a genuine fixed-term expiry. The Allegations Letter required the Applicant's response no later than 4:00 pm on 25 September 2025, which was the exact date the Respondent claims the contract expired. Alternatively, setting a deadline that required substantive action on 25 September 2025 suggested the Respondent initially acknowledged that the employment was expected to continue to allow the disciplinary process to be concluded.

[19] Regarding the issue of variation of the contractual expiry date, the Applicant submitted the Respondent's technical defence relying on Clause 13 of the Contract was legally unsustainable given the facts and the hierarchy of the Respondent's contractual responsibilities.

[20] In conclusion, the Applicant submitted that the Respondent's actions constituted an active, unilateral decision to terminate the Applicant's employment by using the administrative pretext of a contractual expiry to avoid dealing with a misconduct process and an internal complaint.

[21] The Respondent noted that it is well accepted that it will not be a dismissal of employment at the initiative of the employer if employment ends by reason of the effluxion of time under a fixed term or a maximum term contract. It depends on whether, properly characterised, the employment relationship ends by reason of the specified date being reached under the contract. A refusal to re-employ an employee after the employee's employment has ended is not a termination at the initiative of the employer.

[22] The Respondent emphasised clause 13 of the Contract and the requirement for written agreement to vary the terms.

• [23] The Respondent submitted the Full Court of the Federal Court held in Alouani-Roby v National Rugby League Ltd (Alouani-Roby),[2] that where the employment of an employee who was engaged under a series of fixed-term contracts came to an end, the non-renewal of the final contract did not amount to a dismissal within the meaning of the Act.

[24] Regarding the question of amendment of the Contract to a later completion date, the Respondent submitted that the formal process to vary a contract had not been completed and a formal contract had not been issued.

[25] Based on the relevant common law requirements, the relevant facts support the conclusion that the parties did not arrive at a clear and enforceable offer and acceptance for a variation to the Applicant's employment end date.

• [26] The Respondent submitted that the Applicant was familiar with the level of formality involved in contracts to extend employment or amend an end date, having entered into five previous contracts before the Contract.[3]

[27] In conclusion, the Respondent submitted that the Applicant's employment ended in accordance with the fixed term specified in the Contract. There was no dismissal of the Applicant's employment at the initiative of the employer.

(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, engage in by his or her employer.

[29] Section 386(2)(a) of the Act provides, however, that a person will not be considered to have been dismissed if:

'the person was an employee whose employment was for a specified period of time ... and the employment terminated at the end of that period...'

[30] That the Contract was for a specified period of time, being for a period from the commencement date and end on 25 September 2025, is clear from the 'Term' clause. That specified term was reinforced by the acknowledgments that the Applicant had no expectation of ongoing employment with the University beyond the 'Term' of the Contract, it was intended the Applicant's employment would end on the expiry of the 'Term' of the Contract, and any decision to offer further employment was separate and distinct from the Contract.

• [31] The Full Court's decision in Alouani-Roby has clearly established that where the employment of an employee who was engaged under a series of fixed-term contracts came to an end, the non-renewal of the final contract does not amount to a dismissal within the meaning of the Act. The Full Court specifically held that:[4]

(a) There can be no expectation of an ongoing employment relationship without an ongoing employment contract; and

(b) Any expectation by an employee that his or her fixed-term contract would be renewed is irrelevant.

[32] As to the motive for non-renewal of a contract and whether such non-renewal could amount to dismissal, the Full Court held:

It may well be that the reasons that the NRL proffered for not renewing Mr Alouani-Roby's employment after November 2020 were unfair or invalid in some way. That is not for this Court to say. To venture into that territory is to be distracted from the terms of the contract and the circumstances in which it envisaged that it would terminate. For present purposes, the NRL's reasons for not renewing Mr Alouani-Roby's engagement are irrelevant. The question has always been and remains: how did the employment contract terminate (and, more specifically, did it terminate by force of some conduct attributable to the NRL)?

• [33] The above extract of the judgment of the Full Court in Alouani-Roby was followed by the Full Bench of the Commission in Roberts v TasTAFE,[5] and confirmed that regard should not be had to the alleged unlawful reasons for the non-renewal of the contract. That conclusion would preclude reliance on Francis and any submission that early notice of non-renewal and active employer conduct prior to the expiry of the term may constitute a dismissal under s 386(1)(a) of the Act.

[34] The decisions in Alouani-Roby and Roberts v TasTAFE provide that whether an employee was employed for a specified period of time for the purposes of s 386(2)(a) or was

dismissed for the purposes of s 386(1) is likely to depend on the terms of the contract between

the employer and the employee. However, ascertaining the true contractual relation between the parties might require an investigation which goes beyond the ostensible contractual document. For example, the Full Bench explained in Aboriginal Hostels Ltd v McCue:[6]

The fact that an employee is ostensibly employed under a written contract of employment which contains a specified end date might not be the extent of the inquiry necessary to ascertain the true contractual position of the employee. It is possible that the contract may be vitiated by misrepresentation, fundamental mistake in relation to its subject matter or terms, misrepresentation or unconscionability, duress or coercion, illegality or because the contract is a sham. In other cases, the conduct of the parties may give rise to a variation to the contract, the abandonment of the contract and its replacement or an estoppel that precludes the employer from relying on the strict terms of the contract. Ms McCue referred to the decision of the Full Court in Fisher v Edith Cowan University (No 2) [1997] IRCA 98; (1997) 72 IR 464 where it was said:

There may also be termination of the employment at the initiative of the employer and not pursuant to the mutual will of the parties if the terms of a fixed period contract have been varied in the course of performance of the contract, or the contract has been abandoned and replaced by another agreement, or the employer has engaged in conduct or representations which estop the employer from relying upon the terms of the contract as the means by which the employment relationship has been terminated.In those circumstances an employee may show that reliance by the employer upon the purported effluxion of a period of time for employment is, in fact, termination of the employment at the employer's initiative.

[35] The evidence, however, disclosed a clear level of formality involved in contracts to extend the Applicant's employment, and the Applicant had entered into five previous contracts before the Contract. That formality was reflected in the Contract, which at Clause 13, 'General' provides that (with appropriate redactions):

This Contract can only be varied by written agreement between you and the (Respondent). Only the Chief Human Resources Officer (or their nominee) is authorised to agree on behalf of the (Respondent).

[36] While the Applicant had engaged with sponsors, completed and had signed CoH Form with Ms EE, and discussed the extension of the Applicant's employment, she had not completed the formal, and customary, steps to extend her employment contract. Mere discussions about a possible extension, or plans to engage in a process, are insufficient to change the contractual terms. I do not consider that the Contract is vitiated by misrepresentation, fundamental mistake, unconscionability, duress or coercion, illegality, or because the contract is a sham.

[37] The Applicant's employment ended in accordance with the fixed term specified in the Contract. There was no dismissal of the Applicant at the initiative of the employer.

[confidentiality suppressed] appearing on behalf of the Respondent.

Applicant's submissions were received on 17 November 2025.

Respondent's submissions were received on 1 December 2025.

Applicant's reply submissions were received on 8 December 2025.

[1] [2024] FWC 978.

[2] [2024] FCAFC 161 at [62] to [63]

[3] See Aboriginal Hostels Limited v Louise McCue [2025] FWCFB 189.

[4] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [62] to [63].

[5] [2025] FWCFB 3.

[6] Aboriginal Hostels Ltd v McCue [2025] FWCFB 189 at [43].

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